The Circuit Barrister

End of day

More here:

http://www.opn.ca6.uscourts.gov/opinions/opinions.php

http://media.ca7.uscourts.gov/opinion.html

http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl

https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531

http://www.ca11.uscourts.gov/todays-published-opinions

-CB

Fifth Circuit: USA v. Raylin Richard

Plea bargain appeals waiver bars challenge to element of crime charged in bill of information; a guilty plea to the bill with a factual resume concedes all elements of conviction.

Sentence increase for causing victim to engage in certain behavior does not require that the victim is conscious of engaging in the behavior.

Sentence increase for obstruction justified when the obstruction is in a closely related matter.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30654-CR0.pdf

Third Circuit: Edward Mitchell v. Superintendent Dallas SCI

Although co-deft was correctly granted the writ on question of severance at trial, a subsequent change in the law has established that there was no confrontation clause issue requiring severance, and since the present petitioner is not being held in violation of the law, Habeas would not run.

http://www2.ca3.uscourts.gov/opinarch/173118p.pdf

Second Circuit: HealthBridge Management, LLC v. National Labor Relations Board

Given the evidence that the move was an attempt to avoid obligations under the CBA, employer's shift of a group of employees to a subcontractor was simply a disguised continuance of the business, and the protections of the CBA continued, whatever the technical employment status of the employees.

Holiday time-and-a-half provision of CBA not limited by parallel provision granting holiday pay to certain classes of workers; plain meaning and course of performance establish this.

CBA counts lunch half-hour as time actually worked, as it is compensated.

http://www.ca2.uscourts.gov/decisions/isysquery/d47790dc-6fa3-4dbe-a24f-0ca686fe2fbe/1/doc/17-934_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d47790dc-6fa3-4dbe-a24f-0ca686fe2fbe/1/hilite/

First Circuit: Harry, Jr. v. Countrywide Home Loans, Inc.

Fraud that voids a transaction ab initio does not toll or waive the relevant statute of limitations for actions to claiming fraud that voids a transaction ab initio.

Tolling a statute of limitations due to fraudulent concealment requires a threshold showing of due diligence by the movant, which can be disproved by delays in filing.

Acceleration of a mortgage note does not affect the time limits under state law on the right to foreclose.

Mortgagor does not have a private right of action against mortgagee under state mortgage licensing law.

http://media.ca1.uscourts.gov/pdf.opinions/16-2380P-01A.pdf

The rest of the story

End of day. Perfunctory coverage continues.

http://www.ca3.uscourts.gov/opinions-and-oral-arguments

http://www.opn.ca6.uscourts.gov/opinions/opinions.php

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes

https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531

http://www.ca11.uscourts.gov/todays-published-opinions

-CB

Third Circuit: USA v. Anthony Mayo

A second or successive habeas petition will be entertained if the sentence challenged may have been based on the retroactively invalidated sentencing provision.

State statute is categorically not a valid predicate crime of violence, as it can be committed by an omission.

http://www2.ca3.uscourts.gov/opinarch/164282p.pdf

Third Circuit: Encompass Insurance Co v. Stone Mansion Restaurant Inc

Given the plain reading of the statute, a domestic opponent can remove a case to federal court despite the forum defendant rule if the notice of removal is filed before acceptance of service of the complaint; the rule as set forth in the statute only applies to parties who have been properly joined and served. Party's agreement to accept electronic service did not have a preclusive effect on consent to jurisdiction.

As contribution within joint liability arises not from a finding of liability, but from an equitable allocation of costs, the insurer of a driver who harms another can recover a contribution from the bar that served the driver, despite the dram shop law limiting liability to third parties.

http://www2.ca3.uscourts.gov/opinarch/171479p.pdf

Third Circuit: Brandy Kane v. Shawn Barger

Denial of qualified immunity, as circuit precedent involving illicit videotaping of fellow officers and inappropriate physical contact with arrestees clearly established a due process right to bodily integrity that was offended by the manner of the assault investigation.

http://www2.ca3.uscourts.gov/opinarch/173027p.pdf

Third Circuit: Elaine Levins v. Healthcare Revenue Recovery

A debt collector's phone message left under a DBA states a claim for a violation of the "true name" provision of the statute, but importing the "true name" requirement into other prohibited deceptive practices would make the provision superfluous.

http://www2.ca3.uscourts.gov/opinarch/173330p.pdf

Second Circuit: United States v. Philip Zodhiates

Subpoena of cellular phone location records permissible under good faith exception via the third party doctrine.

A court order from a state in which the marriage was legal was entitled to full faith credit in the state of residence, which otherwise would not have recognized the marriage. Prior circuit precedent holding the law of the state of residence to determine the applicable protections applies only in the absence of this type of direct mandate.

Prosecution statements in closing were permissible inferences.

http://www.ca2.uscourts.gov/decisions/isysquery/88b38eb6-51ce-4c1c-a328-b7ffd5f2edf9/2/doc/17-839_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/88b38eb6-51ce-4c1c-a328-b7ffd5f2edf9/2/hilite/

First Circuit: Richard v. Regional School Unit 57

Establishment that the employer's nondiscriminatory justification was in fact pretextual does not establish causation, which must be proved separately.

Sufficient evidence for court's inferences.

Dissent: From totality of record, retaliation was plain.

http://media.ca1.uscourts.gov/pdf.opinions/17-2200P-01A.pdf

First Circuit: United Food & Comm. Workers v. Novartis Pharm.

Claiming that a potentially obvious invention was in fact surprising is not a basis for invalidating the subsequent patent or holding the filing to be fraudulent -- there is no indication that the use of the word caused the patent to be awarded. Subsequent attempt to enforce the patent rights therefore not a sham.

http://media.ca1.uscourts.gov/pdf.opinions/17-1714P-01A.pdf

First Circuit: Scholz v. Goudreau

Given uncontroverted evidence of attempted compliance with the terms of the agreement, court did not abuse its discretion in holding that there was no issue for trial.

As the question was relevant to other matters, lack of objection to cross-examination questions on actual versus apparent authority did not constitute implied consent to an amendment of claim to include breach.

As damages are an element of the breach claim, court did not abuse its discretion in refusing entry of judgment on breach claim after jury's finding of breach in order to dispel the counterclaim.

Allegation that litigation was used to obtain contract rescission sounds in malicious prosecution, not in abuse of process.

Where the legitimate purpose of the claim is truthfully stated in the claim itself, the claim is not an abuse of process, however spitefully it might have been raised.

Court was within its discretion in refusing an award of fees.

Court was within discretion in admitting contemporaneous, ostensibly independent YT clip under the theory that it was part of the album's marketing.

http://media.ca1.uscourts.gov/pdf.opinions/17-1264P-01A.pdf

First Circuit: US v. Arias-Mercedes

Denial of minor-participant sentence reduction was within court's discretion where the deft helped to pilot the craft with the drugs through a dangerous ocean voyage.

Within-guidelines sentence substantively reasonable.

http://media.ca1.uscourts.gov/pdf.opinions/17-1229P-01A.pdf

First Circuit: Boudreau v. Lussier

Expert testimony is required to establish that time-stamped screenshots taken of employees computer are, for purposes of the statute, contemporaneous intercepts of electronic communications.

Impoundment and subsequent inventory search of arrestee's vehicle from employer's private lot were justified under the community caretaker exception; even if the motive was investigatory, subjective intent is irrelevant, and the towing was objectively justified.

Employer defts would be protected by qualified immunity for consenting to search of employees computer where their authority to do so was not plain.

http://media.ca1.uscourts.gov/pdf.opinions/16-1049P-01A.pdf

End of day

Much law to the west (and southeast), viz:

http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions

http://www.opn.ca6.uscourts.gov/opinions/opinions.php

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Time=week&FromMonth=&FromDay=&FromYear=&ToMonth=&ToDay=&ToYear=&Author=any&AuthorName=&Case=any&CaseY1=&CaseY2=&CaseN1=&CaseN2=&CaseN3=&CaseN4=&Submit=Submit&RssJudgeName=Wood&OpsOnly=yes

http://media.ca8.uscourts.gov/cgi-bin/TodayOpn.pl

https://www.ca9.uscourts.gov/opinions/?pk_id=0000009531

https://www.ca10.uscourts.gov/clerk/opinions/daily

http://www.ca11.uscourts.gov/todays-published-opinions

https://www.cadc.uscourts.gov/internet/opinions.nsf

http://www.cafc.uscourts.gov/opinions-orders

-CB

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