Second Circuit: Kirschenbaum, et al. v. 650 Fifth Avenue and Related Properties

International, FSIA


Error for court below to use the Executive Order implementing sanctions to define the scope of foreign state entities under the FSIA.  Definition comes from established constructions.

US corporate entities cannot equitably be read as alter egos of foreign citizens in order to qualify for the protections of a statute requiring foreign nationality.  An equitable alter ego construction can, however, be used to establish the merits of a claim against the entity on behalf of the state.

Insufficient day-to-day control and disregard of the corporate form to establish entity's liability on behalf of the foreign state.

Although second statute is codified proximate to the FSIA, an agency or instrumentality might qualify under one but not the other, since the reference in one statute is to foreign states, and the other refers to terrorist organizations.

Alter ego implies a more profound degree of control than does agency/instrumentality.

Government had a possessory interest in the seized assets because the assets met the terms of the executive order, not because the court trustee had actual possession.



Kirschenbaum, et al. v. 650 Fifth Avenue and Related Properties

Second Circuit: In re 650 Fifth Avenue and Related Properties

FRCP, Fourth Amendment


(Summary judgment rulings on merits.)

Sua sponte grant of summary judgment on affirmative defense of statute of limitations procedurally prejudiced the nonmovant, and is barred under FRCP.

Warrant in civil forfeiture action that did not explicitly incorporate the supporting affidavit was insufficiently particular.  Error by the court below in holding that evidence preservation and discovery obligations meant that the evidence was admissible under inevitable discovery, since the action at the time of the service of warrant imposed limited production requirements.

Seven page caption.


In re 650 Fifth Avenue and Related Properties

First Circuit: Marrero-Mendez v. Calixto-Rodriguez

S1983, Religion, First Amendment, Establishment Clause


Even absent consideration of the on-point precedent, denial of qualified immunity for S1983 challenge to police group prayer would be upheld.



Marrero-Mendez v. Calixto-Rodriguez

Out of Time

Out of time -- here are the rest of the links:

Ninth:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/18/14-15695.pdf


Tenth:

https://www.ca10.uscourts.gov/opinions/14/14-1294.pdf

https://www.ca10.uscourts.gov/opinions/14/14-1164.pdf


Eleventh:

http://media.ca11.uscourts.gov/opinions/pub/files/20161366114000.ORD.pdf

http://media.ca11.uscourts.gov/opinions/pub/files/201614556.ord.pdf

http://media.ca11.uscourts.gov/opinions/pub/files/201614756.ORD.pdf


DC:

https://www.cadc.uscourts.gov/internet/opinions.nsf/6F1E74625D7898A985257FF5005066F6/$file/12-3086-1625475.pdf

https://www.cadc.uscourts.gov/internet/opinions.nsf/3D375003952F4CDE85257FF500506715/$file/14-5305-1625459.pdf

https://www.cadc.uscourts.gov/internet/opinions.nsf/19C8333280CE902F85257FF50050673C/$file/15-5051-1625448.pdf

https://www.cadc.uscourts.gov/internet/opinions.nsf/9890A7B22D2FAFC385257FF500506755/$file/15-5118-1625439.pdf


Federal Circuit:

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1038.Opinion.7-15-2016.1.PDF


Cheers.

-CB

Eighth Circuit: James Pudlowski v. The St. Louis Rams LLC

Class Actions, CAFA, Federal Jurisdiction



Absent claim of lack of jurisdiction, removal notice under CAFA need only make a short plain statement with a plausible claim to removal.  As there was no obligation to prove diversity at removal, affidavits establishing diversity can be considered post-removal.


James Pudlowski  v.  The St. Louis Rams LLC

Eighth Circuit: Mary Hurst v. Southern Arkansas University

Bankruptcy


As payments can be made while maintaining a minimal standard of living, no discharge of student loan debt.

Dissent: Undue hardship under totality.


Mary Hurst  v.  Southern Arkansas University

Eighth Circuit: Civic Partners Sioux City, LLC v. Main Street Theatres

Contracts, Property



Covenant outside the lease to obtain the consent of a third party prior to the ending of a lease did not bar the ending of the lease according to the lease's plain terms.  Lease's commitment to make payments between the parties did not bar the ending of the lease.

Although the third party was a more than incidental beneficiary of the lease, this would merely provide a cause of action upon breach.


 Civic Partners Sioux City, LLC  v.  Main Street Theatres

Eighth Circuit: United States v. Shane Rodriquez

Fourth Amendment, Sentencing


Given parole record and explicit general consent to search of the vehicle, vehicle search was a legitimate parole search, and not an unlawful search incident to arrest.

United States  v.  Shane Rodriquez

Eighth Circuit: Capson Physicians Insurance Co v. MMIC Insurance Inc.

Insurance, Contracts


Although state insurance law does not recognize an affirmative duty to inform an insurance company of facts relevant to the contract, state principles of equitable rescission compel a party with superior knowledge of facts relevant to the contract to disclose those facts in order for the contract to withstand challenge.


Capson Physicians Insurance Co  v.  MMIC Insurance Inc.

Eighth Circuit: Kim Shultz v. Bryan Buchanan

S1983, Fourth Amendment


Yelling and a thud sufficed for emergency aid exception to Fourth Amendment bar to entry of home.

Officer's having sent putative victim into the house does not bar the exception.

Qualified immunity on Taser shock, as the injury was de minimis.

Supplemental jurisdiction over state claims was appropriate.


Kim Shultz  v.  Bryan Buchanan

Eighth Circuit: Jose Perez-Garcia v. Loretta E. Lynch

Immigration


Sufficient evidence and due process where process is issued for compulsory removal on the belief that the alien did not comply with an order of voluntary removal, despite petitioner's claim that he had in fact had departed and then later returned with foreign documents to that effect.

Jose Perez-Garcia  v.  Loretta E. Lynch

Seventh Circuit: Thomas Wilson v. Warren County, Illinois

FHA, S1983, Discrimination



Deliberate photographing of property, conduct that triggered psychological hospitalization, would have been done regardless of the plaintiff's condition, and therefore cannot be the basis for a claim of discrimination under the FHA.

Personal and and municipal S1983 claims barred, as officials were unaware that the repossession was unlawful.

Substantive due process not implicated, as a verbal statement of the law was insufficient to create a state-sponsored danger of inaction during the subsequent repossession.


Thomas Wilson v.   Warren County, Illinois

Sixth Circuit: James McKinney v. Bonita Hoffner

Habeas, AEDPA, Miranda


State Supreme Court's holdings -- that a facially equivocal statement was not interrogation and that deft's invocation of right to counsel followed shortly thereafter by an expressed willingness to talk was not a Miranda violation -- might have been made by a fair-minded jurist.

Dissent doesn't account for AEDPA default.

Dissent -- analysis of second utterance should be considered solely as waiver of expressed invocation.


James McKinney v. Bonita Hoffner

Sixth Circuit: Sheet Metal Employers v. Absolut Balancing

Labor, Arbitration


Federal law governs on issues of formation relevant to CBA agreements to arbitrate.


Sheet Metal Employers v. Absolut Balancing

Fifth Circuit: USA v. Quentin Jeffries

Denial of En Banc, Sentencing


Petitioner did not establish that sentence was passed under the residual clause of the Guidelines.

Circuit has held that the Guidelines residual clause is not implicated by the ACCA residual clause holding of the Supreme Court.


USA v. Quentin Jeffries

Fifth Circuit: Orlando Gutierrez v. Loretta Lynch

Immigration, Estoppel


For the purpose of determining status at the attainment of majority, an alien becomes a lawful permanent resident upon approval of application, not upon the date of an eventually approved application.

Given lack of affirmative misconduct, agency cannot be equitably estopped from arguing that the status was not timely obtained.

Orlando Gutierrez v. Loretta Lynch

Fifth Circuit: Helen Nicholson v. Securitas Security Svc USA

Employment, Discrimination


Right to control the work of an employee is not relevant under the federal age discrimination statute where there is an admission of employment.

Staffing services agreement to end employment at the request of the client company can create a genuine issue of material fact as to complicity in discrimination where the usual inquiries are not made.


Helen Nicholson v. Securitas Security Svc USA

Fifth Circuit: USA v. Benito Sanchez-Rodriguez

Sentencing, Immigration


 For the purposes of immigration determinations, under modified categorical review, state statute prohibiting trafficking in stolen goods is not necessarily a crime of theft
 

USA v. Benito Sanchez-Rodriguez

Fifth Circuit: Karen Sudduth v. TX Hlth and Human Svc Cmsn, et al

Appellate Procedure, FRCP,


Given that courts are permitted to use electronic filing and that the local rules required it, appeal that generated notice and receipt a day late is untimely, despite assertion of technical issues.

Karen Sudduth v. TX Hlth and Human Svc Cmsn, et al

Fifth Circuit: Jillian Johnson v. World Alliance Financial Corp.,

Contract, Tort



Agency regulations on reverse mortgages must be explicitly incorporated in the terms of the mortgage in order to be the basis for a borrower's claim.

No implicit guarantee in a reverse mortgage that the lender will subordinate all intervening liens.

No cause of action of fraudulent inducement where the intervening lien does not support foreclosure.



Jillian Johnson v. World Alliance Financial Corp.,