Sixth Circuit: United States v. Kurt Mallory

Court did not abuse its discretion in finding that a witness was unavailable, since although the medical records were old, they indicated chronic conditions, and while the witness was earlier produced to the courtroom from the local jail, he was home-bound at the time of the trial.

No Confrontation Clause issue where the evidence that emerged after the deposition of the later-unavailable witness might have been presented at trial to attack the witness' credibility.

Although handwriting analysis does not have significant empirical support, it is a field of specialized expertise that might be useful to the finder of fact.  

Error for judge to weigh motion to set aside the verdict as an objective question of sufficiency of the evidence, as the correct question was whether the judge subjectively understood the verdict to be against the weight of the evidence.



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Sixth Circuit: League of Women Voters of Mich. v. Ruth Johnson

Elected representatives' interest in preserving relationships with their constituents merited permission to intervene in a redistricting action, as the interest was distinct from the interests represented by the other plaintiffs.  In appellate review of the decision to deny permissive intervention, the equitable factors balanced are those prevailing at the time of the original decision to deny intervention.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0194p-06.pdf
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Fifth Circuit: USA v. Carlos Fuentes-Canales

Although petitioner's sentence was flawed in that it counted a state statute as its generic federal equivalent, since the special verdict form required that the jury have found that either all the elements of the generic offense or all the elements of another generic offense had been met, the error in sentencing does not merit reversal for reasons of fairness or judicial integrity.

 http://www.ca5.uscourts.gov/opinions/pub/15/15-41476-CR0.pdf
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Third Circuit: USA v. Jay Goldstein

En banc order.

http://www2.ca3.uscourts.gov/opinarch/154094po.pdf
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Third Circuit: USA v. Theodore Clark, III

Traffic stop was in violation of the Fourth Amendment, as the questioning into criminal history continued past the point at which the computerized driver's licence check had been completed.

 http://www2.ca3.uscourts.gov/opinarch/172739p.pdf
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First Circuit: Narragansett Indian Tribe v. RI Dep't of Transportation

Sovereign immunity bars claim arising from highway construction, as the private right of action in the Act exists only to enforce the Act, not to challenge the program-based decisions of the agency.

Federal court does not have jurisdiction over a breach of contract suit against a state unless the claim states a disputed and substantial federal issue, and prudential factors are favorable.

http://media.ca1.uscourts.gov/pdf.opinions/17-1951P-01A.pdf
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First Circuit: Lemelson v. Bloomberg L.P.

News organization's pre-publication fact checking and investigation did not justify a finding of actual malice, as comment was sought from the investigating agency, and the fact that the agency's investigation centered on a company and not the plaintiff didn't make it less likely that the plaintiff was under investigation.

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End of day

More here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0192p-06.pdf

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0193p-06.pdf'
'
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-29/C:17-3196:J:Wood:aut:T:fnOp:N:2210037:S:0

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-29/C:17-1399:J:Rovner:aut:T:fnOp:N:2210117:S:0

http://media.ca8.uscourts.gov/opndir/18/08/164372P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/171327P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/171414P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/172612P.pdf

Also 9, 10 & 11th.

-CB
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Fifth Circuit: SCF Waxler Marine, L.L.C., et al v. Aris T M/V, et al.

Appellate court does not have jurisdiction over an interlocutory appeal challenging the trial court's holding that contractually, the excess insurers liability under the state's direct recovery statute is limited to the insured vessel.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30805-CV0.pdf
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Fifth Circuit: Swinterton Builders v. Oklahoma Surety

Insurer had duty to defend, since the written agreement establishing the company as an insured party did not need to be countersigned by the company to be a written agreement; the company's consent can be inferred.

Where the claim is for breach of contract, an insurer still has a duty to defend against a claim for property damage where the factual situation alleged might present a claim for property damage.

Whether or not anti-stacking provisions apply to duty to defend, it would be inequitable to apply them here.

Damages in suit where insurer breached duty to defend qualify for state statute requiring prompt payment for the schedule.

Damages can be recovered under statute regardless of independent injury from the lack of payment.

http://www.ca5.uscourts.gov/opinions/pub/16/16-20195-CV1.pdf
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Third Circuit: Ronald Cup v. Ampco Pittsburgh Corp

An order compelling arbitration, when issued while dismissing all counts in the present action, is sufficiently final for appeal.

Absent an explicit mention, employees who retired before the CBA are not integrated in the CBA   by references to other documents without an attempt to incorporate them.  As the arbitration provision requires that the matters arise under the CBA, it was error to compel arbitration.

http://www2.ca3.uscourts.gov/opinarch/172349p.pdf
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First Circuit: Campbell v. Ackerman

As deft shifts the argument from actual innocence to an unjustified use of force during the search, trial court's exclusion of testimony as to irregularities in the search warrant is prudentially upheld, as the second argument was not raised squarely below.

Where the trial court found no liability, a claim of error in the damages testimony is moot.

http://media.ca1.uscourts.gov/pdf.opinions/17-1927P-01A.pdf
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First Circuit: Perry v. Spencer

Qualified immunity for prison officials in suit challenging placement of inmate in segregation cells, as it was unclear at which point the due process interest arose, and safety concerns allow prison officials considerable discretion in scheduling adversarial challenges to administrative decisions.

http://media.ca1.uscourts.gov/pdf.opinions/16-2444U-01A.pdf
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End of day

The pace, it must increase.  Look for increased coverage in coming days, if you're reading this.  Which you shouldn't be, as it shouldn't be relied upon for anything.

Other precedential holdings on 8/28

http://www2.ca3.uscourts.gov/opinarch/171990p.pdf

http://www2.ca3.uscourts.gov/opinarch/163346p.pdf

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0190p-06.pdf

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0191p-06.pdf

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-28/C:17-2132:J:Easterbrook:aut:T:fnOp:N:2208964:S:0

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-28/C:17-2920:J:Barrett:aut:T:fnOp:N:2209369:S:0

http://media.ca8.uscourts.gov/opndir/18/08/164275P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/164440P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/171300P.pdf

http://media.ca8.uscourts.gov/opndir/18/08/172296P.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/16-55249.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/16-50096.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17517.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17517.pdf

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/28/15-17497.pdf

http://media.ca11.uscourts.gov/opinions/pub/files/201711742.pdf

-CB


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Third Circuit: Clayton Tanksley v. Lee Daniels

Although the standard is the perception of a layman, where no reasonable juror could find substantial similarity in the allegedly infringing content, judgment as a matter of law for not stating a claim is appropriate.

Although similarities in unprotectable elements of the two works can be probative of allegations of actual copying, striking similarities in the concept for the protagonist do not make the superficial similarities in the protectable expression a violation of copyright.

http://www2.ca3.uscourts.gov/opinarch/172023p.pdf
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Third Circuit: Craig Geness v. Jason Cox

An argument for equitable tolling must be raised in the opening appellate brief; otherwise, it's waived.

When inquiring as to whether a nolle prosequi was a favorable determination, a court must look beyond the four corners of the order.

Given an affidavit to the contrary and absent any deposition testimony, speculation that exculpatory evidence was known at the time was insufficient to present a genuine issue of material fact.

Claim of discrimination under federal law is a new and separate claim not barred by Rooker-Feldman after earlier state court adjudication relating to the events.

Motion to amend at summary judgment stage within a year of filing is presumptively timely.





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Second Circuit: Empire Merchants, LLC, et al. v. Reliable Churchill, LLLP, et al.

Smuggling operation is a single conspiracy for the purposes of civil RICO, as the particularly pleaded effects all result from the single operation.

Assertion of actual and foreseeable economic loss is insufficient to state a civil RICO claim, since the predicate conduct must be the proximate cause of the harm, and many factors might have prompted the economic loss. 

http://www.ca2.uscourts.gov/decisions/isysquery/4fbb3ac1-668c-4c5a-9a00-4ef6d292767a/1/doc/17-887_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4fbb3ac1-668c-4c5a-9a00-4ef6d292767a/1/hilite/
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End of day

Really, a city that never sleeps should have some 24 hour coffeehouses.  #itsleeps

Only 1 & 2 covered tonight.  More in 5-10 and Federal Circuit.  Cheers.

-CB
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Second Circuit: Olagues v. Perceptive Advisors LLC

Defts were no longer corporate insiders for the purposes of the statute when the options expired, since regardless of whether the regulations imposed an earlier constructive time cutoff for the expiration of the option, the plain meaning of the statute, which is to be favored for the ease of mechanical implementation, refers to the actual expiration time of the option.

http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/2/doc/17-2703_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/2/hilite/
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Second Circuit: United States v. Le

Acquisition of biological toxin through the Internet and the mails is fundamentally different than the local use of a similarly proscribed substance, so a statute need not be construed to avoid offending the police power of the states.

Even within such a narrowing construction, acquisition of this substance would be within the plain proscription of the federal statute.

Law implementing international convention is constitutional under the Commerce Clause.

http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/1/doc/16-819_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e893b2c5-2f54-4145-a8ca-90ff73122a40/1/hilite/
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