7/20/09 - 7/24/09 Opinions: US 5th Cir.

July 27, 2009 – 11:08 am

The following opinions designated for publication were released by the United States Court of Appeals for the Fifth Circuit on July 21, 2009:
Burton v. Terrell (Jones, C.J., Higginbotham, Haynes, JJ.; opinion by Higginbotham, J.) (appeal from W.D. La.) (habeas appeal - plea voluntariness). Affirming the district court’s denial of habeas relief. The Fifth Circuit held, regarding the petitioner’s claim that his plea was not voluntary because the trial court failed to inform him of the maximum possible sentence that he faces, that “the critical question is not whether the court informed the defendant of the maximum sentence, but whether the defendant knew, in fact, the maximum he faced,” slip op. at 5; and that there was not clear and convincing evidence that the petitioner was in fact unwitting of the maximum sentence he faced.
Castellanos-Contreras v. Decatur Hotels LLC (Jones, C.J., Jolly, Haynes, JJ.; opinion by Jolly, J.) (appeal from E.D. La.) (Fair Labor Standards Act) (on grant of panel rehearing). Reversing the district court’s partial judgment in favor of plaintiff-employees, and rendering judgment in favor of defendant-employer-hotel on plaintiffs’ FLSA claims. The Fifth Circuit held that, under the Fair Labor Standards Act (”FLSA”) minimum-wage requirements, an employer’s minimum-wage duty is not required to include remuneration for guest workers’ recruitment expenses, transportation expenses, or visa expenses.
Oscar Renda Contracting Inc. v. City of Lubbock (Higginbotham, Garza, Prado, JJ.; opinion by Higginbotham, J.) (appeal from N.D. Tex.) (public bid contract dispute). Affirming the district court’s summary judgment in favor of city on claim brought by contractor on contractor’s claim that the city had violated his First Amendment free speech rights in denying his low bid on a contract for city work allegedly on the basis of his litigiousness. The Fifth Circuit held that there was no genuine issue of material fact as to whether the Lubbock decisionmakers were even aware that there were aspects of the contractor’s previous litigation against another city that were constitutionally protectable.
U.S. v. Whaley (Jolly, Smith, Benavides, JJ.; opinion by Benavides, J.) (appeal from N.D. Tex.) (criminal appeal - Sex Offender Registration and Notification Act). Affirming the defendant’s conviction for failure to register under the Sex Offender Registration and Notification Act (”SORNA”). The Fifth Circuit held that Congress had the power under the Commerce Clause to regulate sex-offender registration for offenders who move to other states following serving their sentence; that the notice the defendant received that he would have to register under state law satisfied any Due Process requirements, such that the lack of specific notice that he would have to register under SORNA was not a Due Process violation; and that any delegation of broad authority to the Attorney General under SORNA to determine retroactive applicability of SORNA would have been permissible under the nondelegation doctrine.
U.S. v. Miller (Higginbotham, Smith, Southwick, JJ.; per curiam opinion) (appeal from W.D. Tex.) (criminal appeal - assault on law enforcement officers). Affirming the defendant’s conviction for assault on law enforcement officers arising from his attempt to run over officers blocking his escape, but vacating sentence for multiple convictions and remanding. The Fifth Circuit held that there was no manifest miscarriage of justice in the defendant’s conviction because the record was not devoid of evidence pointing to his guilt; that there was no abuse of discretion in the exclusion of photographic evidence of the defendant’s gunshot wounds; and that there was plain error in two assault convictions for one incident, such that the defendant’s sentence was impermissibly lengthened from the double-conviction.
Bluefield Water Association Inc. v. City of Starkville (Jones, C.J., Higginbotham, Haynes, JJ.; opinion by Higginbotham, J.) (appeal from N.D. Miss.) (preliminary injunction). Affirming portion of district court’s preliminary injunction award requiring city water agency accused of encroaching on non-profit water district’s service area to supply water through larger main; and reversing that portion of the preliminary injunction requiring that billing and customer service for the encroachment area be handed over to the non-profit water district on a finding that the district court abused its discretion in finding that this relief was required to avoid irreparable harm.
Additionally, the Court released 58 unpublished opinions from July 20 to July 24, 2009.

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La. Supreme Ct. releases 2008 statistics and courts guide

July 20, 2009 – 4:13 pm

The Louisiana Supreme Court has released its Annual Report 2008, compiling 2008 statistics from Louisiana courts. As this Blawg did last year, we will crunch the numbers in an occasional series of “Stat of the Day” entries. The Louisiana Supreme Court has also released its Guide to Louisiana Courts, including updated contact information for all Louisiana courts.

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7/16/09 - 7/17/09 Opinions: US 5th Cir.

July 20, 2009 – 4:09 pm

The following opinions designated for publication were released by the United States Court of Appeals for the Fifth Circuit on July 16 and 17, 2009:

  • Nowlin v. Peake (King, Dennis, Elrod, JJ.; opinion by Elrod, J.) (appeal from S.D. Tex.) (bankruptcy appeal - “projected disposable income”). Affirming the district court’s affirmance of the bankruptcy court’s denial of confirmation of the debtor’s Chapter 13 reorganization plan that based on a mechanistic application of the “disposable income” standard. The Fifth Circuit held that the phrase “projected disposable income” “allow[s] consideration of reasonably certain future events by bankruptcy courts. Under this approach, an above-median Chapter 13 debtor’s ‘projected disposable income’ presumptively consists of his statutorily defined ‘disposable income’ mechanically projected into the future for the duration of the plan. This presumption may be rebutted during the confirmation hearing with evidence of present or reasonably certain future events that will affect the debtor’s income or expenses.” Slip op. at 1-2.
  • Holland v. International Paper Co. Retirement Plan (King, Garwood, Davis, JJ.; opinion by King, J.) (appeal from W.D. La.) (ERISA - retirement disability defendants). Reversing district court’s judgment in favor of plaintiff on claim that retirement plan administrator abused its discretion in denying benefits, and remanding for judgment in favor of defendant. The Fifth Circuit held that the plan administrator’s conflict was not a significant factor in the abuse-of-discretion analysis; that there was no abuse of discretion in the administrator’s reliance on the report of a cardiologist regarding the plaintiff’s ability to work; that ERISA did not require a report of an occupational therapist to establish the ability to work; and that the evidence was otherwise more than sufficient to support the administrator’s exercise of discretion.
  • Great American Insurance Company of New York v. Lowry Development LLC (Jolly, Prado, Southwick, JJ.; opinion by Southwick, J.) (appeal from S.D. Miss.) (Hurricane Katrina, insurance coverage). Reversing district court’s judgment that the insured’s builder’s risk policy included wind coverage. The Fifth Circuit held that the insurer had adequately notified the insured’s agent of the wind exclusion in the builder’s risk policy, such that the exclusion was effective to bar coverage on the insured’s Katrina claim.
  • Barden Mississippi Gaming LLC v. Great Northern Insurance Company (Higginbotham, Garza, Prado, JJ.; opinion by Garza, J.) (appeal from N.D. Miss.) (insurance coverage - defense and indemnity). Vacating the district court’s judgment that stool manufacturer’s insurer was not obligated to defend and indemnify a casino for claim by patron injured through use of stool manufactured by the stool manufacturer, and remanding for further proceedings. The Fifth Circuit held that, because the underlying claim could arguably lead to recovery for the patron-plaintiff on a finding that only the stool manufacturer is liable, the stool manufacturer’s insurer was obligated to defend and indemnify the casino.

Additionally, the Court released 12 unpublished opinions on July 16 and 17, 2009.

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7/13/09 - 7/15/09 Opinions: US 5th Cir.

July 17, 2009 – 12:24 pm
  • The following opinions designated for publication were released by the United States Court of Appeals for the Fifth Circuit on July 13 - July 15, 2009:
    U.S. v. Castro-Guevarra (Jones, C.J., King, Owen, JJ.; opinion by Jones, C.J.) (appeal from S.D. Tex.) (criminal appeal - sentencing, “crime of violence”). Affirming defendant’s sentence for illegal reentry, which the district court based on the “crime of violence” enhancement due to a prior conviction for sexual assault of a child. The Fifth Circuit held that the defendant’s challenge to the “crime of violence” enhancement was foreclosed by its precedent in United States v. lvarado-Hernandez, 465 F.3d 188, 189 (5th Cir. 2006).
  • Technology Lending Partners, LLC v. San Patricio County Community Action Agency (Jolly, Prado, Southwick, JJ.; opinion by Southwick, J.) (appeal from S.D. Tex.) (bankruptcy appeal - equitable mootness). Reversing the district court’s dismissal of appeal of bankruptcy court’s approval of settlement order on equitable mootness grounds, and remanding for further proceedings. The Fifth Circuit held that equitable mootness was unavailable where the “difficulty is not of the same nature or magnitude as the undoing of a complicated plan of reorganization.”
  • Skinner v. Quarterman (Smith, Wiener, Owen, JJ.; opinion by Smith, J.) (appeal from N.D. Tex.) (habeas appeal - ineffective assistance of counsel). Affirming the district court’s denial of habeas relief. The Fifth Circuit held that the petitioner failed to show the prejudicial value of a blood spatter report that was omitted by his trial counsel; and that the trial counsel’s investigation regarding whether another man committed the murders was constitutionally adequate.
  • Xtreme Lashes, LLC v. Xtended Beauty, Inc. (Barksdale, DeMoss, Stewart, JJ.; opinion by DeMoss, J.) (appeal from S.D. Tex.) (trademark protection). Reversing district court’s summary judgment in favor of defendant on trademark claim, and district court’s judgment stripping the plaintiff’s mark EXTEND YOUR BEAUTY of trademark protection, and remanding for trial. The Fifth Circuit held that, for summary judgment purposes, the plaintiff’s mark was entitled to trademark protection as the determination of strength of the mark should be for the jury to decide; that there is sufficient threshold resemblance between the plaintiff’s and defendant’s marks to survive summary judgment; and that there was sufficient evidence of actual confusion to create a genuine issue of fact for a jury.

Additionally, the Court released 20 unpublished opinions on July 13 - 15, 2009.

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7/10/09 Opinions: US 5th Cir.

July 13, 2009 – 9:42 am

The following opinions designated for publication were released by the United States Court of Appeals for the Fifth Circuit on July 10, 2009:

  • Benson v. St. Joseph Regional Health Center (King, Stewart, Southwick, JJ.; opinion by Southwick, J.) (appeal from S.D. Tex.) (Rule 59(e), antitrust). Affirming summary judgment in favor of defendants on plaintiff doctor’s claims that his medical privileges at hospital were terminated due to an unreasonable and malicious peer review process. The Fifth Circuit held that a legal error raised by the appellant for the first time in a successive Rule 59(e) motion, which was not an “obvious error of law,” could not properly reserve the issue for appeal where the appeal was pursuant to a notice of appeal prior to judgment on the successive Rule 59(e) motion. The Court then held that the district court did not err in issuing summary judgment against the plaintiff on his antitrust claims, as the denial of privileges at the hospital did not have an adverse effect on the availability of options in OB/GYN services in Brazos County because he could still provide services at his own clinic.
  • East Texas Medical Center Regional Healthcare System v. Lexington Insurance Co. (King, Stewart, Southwick, J.; opinion by Southwick, J.) (appeal from E.D. Tex.) (insurance coverage). Vacating district court’s judgment as a matter of law in favor of defendant insurer on insured medical center’s suit for failure to cover a medical malpractice claim against it by a patient. The Fifth Circuit held that there was evidence sufficient for the jury to determine whether “loss runs” constituted written notice of a claim from the insured medical center to the malpractice insurer on the claims made policy; that the policy at issue required separate notice of claim and notice of suit as soon as practicable; that, to benefit from the lack of prompt notice as to the underlying suit, the insurer was required to show that it was prejudiced by the delay in notice; that the insurer did not waive a separate notice provision, but would still be required to show actual prejudice; and that the medical center failed to show that the insurer committed any act of misrepresentation under the Texas Insurance Code.
  • Kling Realty Co., Inc. v. Chevron USA, Inc. (Higginbotham, Benavides, Stewart, JJ.; opinion by Stewart, J.) (appeal from W.D. La.) (prescription, property damage). Affirming dismissal of plaintiff’s legacy land damage suit against oil exploration company on prescription grounds. The Fifth Circuit held that neither contra non valentem for the continuing tort doctrine were applicable to extend the one-year prescriptive period for tort liability to salt contamination of the property that commenced at least by 1973.
  • Little v. KPMG, LLP (Jolly, DeMoss, Prado, JJ.; opinion by Jolly, J.) (appeal from W.D. Tex.) (Article III standing). Affirming the district court’s 12(b)(6) dismissal of the plaintiffs’ claims against accounting firm arising from the failure of the accounting firm to be properly licensed to practice public accountancy in the state of Texas, on the basis that the plaintiffs’ claims were too speculative and that they therefore lacked Article III standing. The Fifth Circuit held that there was no concrete injury because there was no possibility that the accounting firm’s license could be revoked when the defect in licensure was discovered six years after the defective condition ceased: “Whatever the status of KPMG’s registrations and licenses from 1984 until 1999 may have been — ‘proper’ or ‘improper’ — is now only of academic interest and is immaterial as far as establishing any relief.” Slip op. at 14.

Additionally, the Court released 12 unpublished opinions on July 10, 2009.

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7/6/09 - 7/9/09 Opinions: US 5th Cir.

July 10, 2009 – 2:55 pm

The following opinions designated for publication were released by the United States Court of Appeals for the Fifth Circuit on July 7-9, 2009:

  • Northrop Grumman Ship Systems, Inc. v. Ministry of Defense of the Republic of Venezuela (Reavley, Barksdale, Garza, JJ.; opinion by Garza, J.) (appeal from S.D. Miss.) (settlement enforcement). Reversing district court’s judgment to enforce settlement, and remanding for further proceedings. The Fifth Circuit held that the district court abused its discretion in refusing to consider Venezuela’s offer of the text of certain Venezuelan statutes regarding Venezuelan agency law on the basis that Venezuela’s Rule 44.1 notice was 18 months late, where there was no showing of prejudice to the other parties by the delay; that the district court did not err in selecting Mississippi law as the law governing the dispute; that the Mississippi Supreme Court would give effect to Venezuelan laws prescribing the procedure by which agency authority is to be conferred; and that, under the Venezuelan statutes, the district court clearly erred in determining that Venezuela’s attorney had actual authority to enter into the settlement agreement.
  • Paredes v. Quarterman (Smith, Wiener, Owen, JJ.; per curiam opinion) (appeal from W.D. Tex.) (habeas appeal - ineffective assistance of counsel). Affirming the district court’s denial of habeas relief; but granting a certificate of appealability on additional issues. The Fifth Circuit held that the petitioner was not entitled to relief for ineffective assistance of counsel based on his trial counsel’s failure to raise Confrontation Clause objections, because the petitioner could not show prejudice from any violation in the face of overwhelming other evidence to support his conviction; denied to extend a COA on the petitioner’s claim that there was not a fair cross-section of the community represented in the grand jury pool due to disproportionate representation of the hispanic community, finding that claim procedurally defaulted; held that the petitioner failed to make a showing of prejudice on additional IAC claims regarding jury shuffling, failure to object to a special instruction not requiring proof beyond a reasonable doubt as to the lack of mitigating circumstance; but held that the petitioner was entitled to a COA on the IAC claim regarding whether his trial counsel should have objected to the failure to require the jury to make a unanimous finding as to which victim’s death for which it found the petitioner responsible.
  • Frame v. City of Arlington (Jolly, Prado, Southwick, JJ.; opinion by Jolly, J.; partial dissent by Prado, J.) (appeal from N.D. Tex.) (ADA, statute of limitations). Vacating the judgment of the district court that the plaintiffs’ Americans with Disabilities Act (”ADA”) claims against the city for failure to have ADA-compliant curbs, sidewalks, and other infrastructure had expired under the Texas’s two-year statute of limitations. The Fifth Circuit held that the ADA did cover the plaintiffs’ claims as the sidewalks, curbs, and parking lots were a “service” within the meaning of Title II of the ADA; that the two-year statute of limitations under Texas law applied to the plaintiffs’ ADA Title II claims for injunctive relief; that the statute of limitations would be triggered by the completion of the construction of the features at issue, and would not be subject to the continuing violations doctrine; but that the burden to prove the date of completion of the noncompliant construction was on the city, not the plaintiffs. The Court vacated the judgment and remanded to the district court to hear evidence regarding whether the city could meet this burden. Judge Prado dissented, opining that the statute of limitations should not be triggered until a plaintiff actually incurs injury due to a noncompliant feature.
  • Longhi v. Lithium Power Technologies, Inc. (Higginbotham, Benavides, Stewart, JJ.; opinion by Stewart, J.) (appeal from S.D. Tex.) (False Claims Act). Affirming the district court’s judgment of liability on the False Claims Act, award of $5 million, and award of attorneys’ fees to the qui tam plaintiff. The Fifth Circuit held that the district court did not err in finding of FCA liability where the defendant’s government grant application contained numerous misrepresentations that affected the government’s decision to award the grant to the defendant; that the district court did not err in finding that the entire amount of the grant was the basis for the FCA’s treble damages calculation; and that enforcement of a release and indemnification agreement between the defendant and the qui tam plaintiff was against public policy.
  • Petroleum Pipe Americas Corp. v. Jindal Saw Ltd. (Jones, C.J., Wiener, Benavides, JJ.; opinion by Benavides, J.) (appeal from S.D. Tex.) (arbitration). Affirming district court’s denial of judgment denying motion to stay litigation and compel arbitration. The Fifth Circuit held that, even assuming arguendo that the dispute was subject to a valid arbitration clause, the defendant had waived its right to compel arbitration by substantially invoking the judicial process to the detriment of the plaintiff.
  • South Texas Electrical Cooperative v. Dresser-Rand Co. (Jones, C.J., Higginbotham, Haynes, JJ.; opinion by Haynes, J.) (appeal from S.D. Tex.) (warranty claim). Affirming judgment based on jury verdict that defendant was liable for plaintiff’s repair costs incurred as a result of the defendant’s failure to fulfill warranty obligations. The Fifth Circuit held that there was sufficient evidence in the record to support the jury’s verdict; and that the district court did not err in its formulation of the jury questionnaire.
  • U.S. v. Garcia-Quintanilla (Higginbotham, Garza, Prado, JJ.; opinion by Prado, J.) (appeal from W.D. Tex.) (immigration appeal - sentencing). Vacating the district court’s sentence of the defendant on conviction of failure to make the acquire the requisite travel documents following an order of removal, to the statutory maximum of four years’ imprisonment subject to a later suspension of sentence should the defendant agree to interview with Salvadoran consular officials. The Fifth Circuit held that the district court’s above-Guidelines-range sentence was based on the erroneous belief under the Probation Act that it could suspend the remainder of the sentence after the sentence had begun, upon the defendant’s subsequent agreement to interview with consular officials to arrange for his removal.
  • State Industrial Products Corp. v. Beta Technology Inc. (Smith, Garza, Clement, JJ.; opinion by Garza, J.) (appeal from S.D. Miss.) (discovery rule, contempt). Affirming in part and vacating in part the district court’s summary judgment in favor of the defendant, and remanding for further proceedings. The Fifth Circuit held that Mississippi’s three-year statute of limitations was applicable to the plaintiff’s business tort claims, and that the discovery rule was inapplicable because the alleged actions of the defendant were reasonably discoverable; and that the district court erred with regard to the plaintiff’s contempt claim by failing to apply Fed. R. Civ. P. 65 to determine if the defendant - which was not a party to a prior consent judgment - was bound by the injunctive provisions of the consent judgment.
  • Keenan v. Donaldson Lufkin & Jenrette, Inc. (Jones, C.J., Higginbotham, Haynes, JJ.; opinion by Haynes, J.) (appeal from E.D. La.) (prescription). Affirming in part and reversing in part the district court’s summary judgment in favor of defendants on Louisiana prescription grounds, and remanding for further proceedings. The Fifth Circuit held that the plaintiff’s detrimental reliance claims were based on a breach of promise, rather than a breach of duty, and that the district court therefore erred in applying Louisiana one-year prescriptive period for delictual actions rather than the ten-year period applicable to contract claims; that the district court’s summary judgment on the breach of fiduciary claims should be affirmed on the alternative ground that the plaintiff failed to show the existence of a fiduciary relationship; and that the prescriptive period did not start on a fraud claim until the plaintiff knew or should have had knowledge, not just of the defendant’s failure to perform, but of the defendant’s present intention to not perform at the time of the promise.

Additionally, the Court released 22 unpublished opinions on July 6-9, 2009.

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7/1/09 Opinions: La. Supreme Ct.

July 10, 2009 – 12:27 pm

The following opinions were released by the Louisiana Supreme Court on July 1, 2009:

  • In re: A Matter Under Investigation (Opinion for the Court by Kimball, C.J.; Victory, J., concurring in part; Knoll, J., concurring in part; Weimer, J., concurring) (certiorari to La. 4th Cir.) (Public Records Act, return of records). Reversing the courts’ judgment ordering the return of documents produced pursuant to a subpoena duces tecum pursuant to La. R.S. § 15:41, and remanding judgment of courts below for contradictory hearing on the issue of whether criminal litigation may be reasonably anticipated such as to support an exception to the disclosure obligation under the Public Records Act pursuant to La. R.S. § 44:3(A)(1). The Louisiana Supreme Court held that CNN lacked standing to intervene in Tenet’s motion for return of property from the attorney general’s office; that the Orleans Parish Criminal District Court has jurisdiction over proceedings for return of property used in criminal proceedings under La. R.S. § 15:41; that documents secured through a valid subpoena duces tecum are not “seized” and therefore are not subject to an order of return under La. R.S. § 15:41; and that investigation records by the attorney general are exempt from disclosure as long as criminal litigation is reasonably anticipated. Dissenting in part, Justice Victory would read 15:41 to broadly include any documents and materials obtained by the government in the course of an investigation, including by subpoena duces tecum. Also dissenting in part, Justice Knoll would have found that the Orleans Parish Criminal District Court lacked jurisdiction to preside over a 15:41 motion.
  • In re: Ellender (Opinion by Weimer, J.; concurrence by Johnson, J.; dissent by Victory, J.) (judiciary discipline proceeding). Imposing suspension of judge for thirty days without pay, and ordering completion of seminar in handling domestic violence cases, for judge who, during a hearing on a temporary restraining order to prevent a husband from having contact with his wife and children based on threats and abuse, belittled the family’s restaurant choice for eating at Subway; spoke approvingly of the husband’s threatened action to take his two-year-old daughter into the restaurant bathroom and “make her booty bleed”; and concluded the hearing by telling the parties that there was a lot of smoke, no fire, go get a divorce. The Supreme Court observed, “Judges are called upon to render difficult decisions in sensitive and emotional matters. Being in court is a common occurrence for judges, but for litigants, especially pro se litigants, a courtroom appearance can be an immensely difficult experience. Litigants appear before judges to have their disputes resolved. Judges serve the public, in part, by setting an example in how to resolve these disputes in a patient, dignified, and courteous manner. If a judge acts belligerently, those before the judge believe belligerence is acceptable. Judges have an opportunity to teach by example and demonstrate those attributes which all should strive to possess.” Slip op. at 11. Balanced against this, the Court also observed, “In donning the judicial robe, judges are not suddenly cloaked with faultlessness. Thus, judges cannot be subjected to discipline merely because someone mistakes decisiveness, forcefulness, or sternness for a lack of patience, dignity, or courtesy.” Slip op. at 11. The Court found that the judge’s comments during the TRO hearing, as well as a prior incident regarding the judge’s dressing in black-face for a costume event, displayed a lack of insensitivity; and that the judge’s comments during the disciplinary hearing, speaking approvingly of corporal punishment, were “disturbing” in the context of a hearing involving allegations of domestic violence. Justice Johnson concurred separately to remark on the particularly “egregious” and “devastating” effect that the judge’s behavior had in the domestic violence context. Justice Victory dissented, finding that a punishment of public censure would have been appropriate.
  • In re: Curry, Spiller, and Theus (Per curiam opinion of the Court; dissent by Victory, J.) (attorney disciplinary proceeding). Imposing six-month suspensions from the practice of law, with three months deferred, as to each of three attorneys found to have entered into an unenforceable contingency fee arrangement, to have entered into a business arrangement with a client without first informing the client of the need to retain independent counsel to advise him as to the arrangement, to have let their own self-interest interfere with their representation of the client, to have failed to maintain adequate financial records regarding the client’s account for five years after conclusion of the representation, and to have failed to provide a contingent fee disbursement statement.
  • State v. Palmer (Per curiam opinion of the Court) (certiorari to La. 3d Cir.) (search and seizure). Reversing the judgment of the Third Circuit, which reversed the ruling of the trial court denying the defendant’s motion to suppress evidence of the Lortab seized during a search of his person. The Supreme Court held that “the police acted reasonably under the circumstances in detaining and handcuffing defendant among several other individuals during an investigation conducted on the premises of a residence long the subject of citizen complaints about ongoing drug trafficking.” Slip op. at 1.
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7/1/09 - 7/2/09 Opinions: US 5th Cir.

July 6, 2009 – 5:05 pm

The following opinion designated for publication was released by the United States Court of Appeals for the Fifth Circuit on July 2, 2009:

  • Admiral Insurance Co. v. Abshire (Wiener, Stewart, Clement, JJ.; opinion by Wiener, J.) (appeal from M.D. La.) (Class Action Fairness Act of 2005). Affirming district court’s order remanding putative class action to state court on finding that suit was commenced prior to the effective date of the Class Action Fairness Act (”CAFA”). The Fifth Circuit held that the amendment of the plaintiffs’ petition to add class allegations did not “re-commence” the action for purposes determining the date the action was brought under Louisiana law, and therefore the action was not brought after the effective date of CAFA; and that the district court’s denial of attorneys’ fees to the plaintiffs on a finding that the state’s removal under CAFA, though erroneous, was not objectively unreasonable, was not an abuse of discretion.

Additionally, the Court released 28 unpublished opinions on July 1 and 2, 2009.

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Stats and Observations: June 2009

July 6, 2009 – 12:21 pm

Time for the June 2009 update on statistics and observations from opinions and happenings at the United States Supreme Court, United States Court of Appeals for the Fifth Circuit, and the Louisiana Supreme Court. Normally, I follow the stats and observations with news from the Bartlett Blawg and The Bartlett Law Firm, but I’m going to reverse order this month, as there is a major development on that front.

The Bartlett Blawg and (no more) Bartlett Law Firm

As I reported in a post last week, I have an accepted an opportunity to move my appellate practice to the law firm of one of my best clients over the past fifteen months, Jones, Swanson, Huddell & Garrison. The appellate-focused practice that I have developed over this time at The Bartlett Law Firm will continue to grow, but from this new platform within an already-premier litigation practice. I look forward to this evolution in my own practice, and also look forward to continuing my relationship with many of you (as colleagues and as clients).

The Bartlett Blawg, however, will continue reporting on the U.S. Supreme Court, U.S. Fifth Circuit Court of Appeals, and the Louisiana Supreme Court, from this same URL. In fact, this change has resulted in a more streamlined Bartlett Blawg, as this is now a stand-alone site for the blog. Keep returning here for your daily updates and opinions summaries. I know many of you do, as June 2009 far surpassed the previous record for hits on this site, and July already shows no signs of slowing down.

On with the statistics and observations …

U.S. Supreme Court

The U.S. Supreme Court has completed the October 2008 Term with the release of 22 opinions in the month of June. Justice Kennedy authored the most opinions for the Court in June, with four; followed by Justices Scalia and Thomas, with two each; Chief Justice Roberts and Justices Stevens, Souter, Breyer, and Alito, with two each; and Justice Ginsburg with one. One decision was designated per curiam, though it did carry two dissenting justices. The main dissent author in June was Justice Stevens, with six full dissents and one partial dissent; followed by Justice Ginsburg, with three full dissents and one partial dissent; Justices Scalia and and Alito, each with two full dissents and a partial dissent; Chief Justice Roberts, with one full dissent and two partial dissents; Justice Thomas, with three partial dissents; Justices Souter and Breyer, each with two full dissents; and Justice Kennedy, with one full dissent and one partial dissent.

In the 22 June opinions, Justice Kennedy was most often in the majority, authoring or joining the opinion of the Court 17 times. On the other extreme, Justice Stevens authored or joined a dissent or partial dissent in 11 of the 22 opinions. In his last month as a Justice on the Court, Justice Souter authored two opinions of the Court and two dissents; joined or authored the majority opinion in 14 of 22 cases; and authored or joined in a dissent in seven of 22 cases.

U.S. Court of Appeals for the Fifth Circuit

In June 2009, the U.S. Fifth Circuit released 365 opinions, 42 opinions designated for publication and 323 unpublished opinions; the 2009-year-to-date totals are 1,626 opinions, 214 designated for publication and 1,412 unpublished. One of the decisions released in June was from the May 2009 en banc sitting, with the Court coming to e, resulting in the panel decision being vacated and the district court judgmea non-decision “tie” in U.S. v. Sealnt being allowed to stand.

In addition to the non-decision opinion in U.S. v. Seale, six other opinions designated for publication were released as per curiam opinions. (Notably, though a per curiam, Seale did carry a dissent from Judge DeMoss). The busiest opinion author on published June opinions was Jude Wiener, with 5 opinions for the Court; followed by Judge Stewart (4), Chief Judge Jones (3), and Judges Clement (3), Davis (2), Smith (2), Benavides (2), Dennis (2), Haynes (2), Higginbotham (2), Jolly (1), Prado (1), Southwick (1), Reavley (1), and DeMoss (1) (two other published opinions for the Court were authored by judges sitting by designation). In addition amond opinions designated for publication, Judge Owen authored one concurring opinion, Judges Stewart, Higginbotham, and DeMoss authored one dissent each, and retired Justice O’Connor also authored one dissent.

More published opinions came out of appeals from the Southern District of Texas in June 2009, with 11, followed by W.D. La. (6), W.D. Tex. (5), N.D. Tex. (4), E.D. La. (4), E.D. Tex. (3), agency decision appeals (3), N.D. Miss. (2), S.D. Miss. (2), and on remand from the U.S. Supreme Court (1).

In news from the Fifth Circuit, as reported on this Blawg the Court has issued proposed rule changes in June, primarily focused on ramping up for e-filing with the Court. The Fifth Circuit also, in June, began to tee up its next round of en banc cases, granting en banc rehearing in Grand Isle Shipyard, Inc. v. Seacor Marine.

In one final bit of Fifth Circuit news, I noted that, a few months back, the Fifth Circuit website no longer carried biographies of the judges sitting on the Court. At the beginning of June, I emailed Fifth Circuit Clerk Charles Fulbruge, noting the deletion of the information. I explained in my email that (1) while not the be-all, end-all of oral argument preparation, the judge bios provided through the Court’s website were always a good starting point for such preparation, especially when the Court’s judges often bemoan the lack of adequate preparation by counsel appearing before them; (2) the judge bios provided a needed measure of humanization of the Court to the public; and (3) the move away from electronic accessibility seemed odd in light of the new proposed rules designed to enable electronic accessibility of the Court. Clerk Fulbruge emailed in response that the order had come from Washington for the Courts of Appeals to police their websites for information that might endanger judges by revealing information about where their homes are located or other compromising identifying information; so the Fifth Circuit determiend to remove its links to the biographies hosted on the government website of the Federal Judicial Center. The reason for caution on judicial biographies is understandable, but the solution to remove the FJC-hosted biographies is not. The FJC biographies provide no information that might compromise a judge’s personal identifying or location information: They contain the year and city of birth; positions, dates, and nominating President for federal judicial service; schools attended and years of graduation; a brief list of non-federal-judiciary professional positions; race/ethnicity; and gender. Not only is the information bare-boned, but it is also still available at the FJC website. In separate posts on this Blawg over the next couple weeks, I will post the FJC biography information, and invite in the comments to each Judge’s biography the contribution of further information that may be helpful for oral argument preparation. Consider this your new judicial biography resource for the U.S. Fifth Circuit.

Louisiana Supreme Court

In June 2009, the Louisiana Supreme Court concluded its current term, releasing 13 opinions (all on June 26). Five of the opinions for the Court were designated per curiam (though one of these carried three concurrences “in result”). Chief Justice Kimball authored one opinion for the Court; Justice Victory, three; Justice Knoll, two; Justice Weimer, one; and Justice Guidry, one. Chief Justice Kimball also dissented in one case; Justice Johnson dissented in three; and Justice Weimer in one. An interesting phenomenon in June’s decisions were a number of concurrences-in-result, in at least one case stripping the nominal opinion of the Court of any precedential value (Warren v. Louisiana Medical Mutual Insurance Co., at first blush a 5-2 decision, but two of the justices in the majority specifically concurred “in result,” apparently not joining in the reasoning of Justice Victory’s designated opinion for the Court).

In Louisiana Supreme Court news for June, the Court instituted a Pro Se Litigant Task Force, and issued revisions to the proposed new lawyer advertising rules set to go into effect in October.

By Tad Bartlett | Posted in LA Supreme Court, The Bartlett Blawg, U.S. 5th Circuit, U.S. Supreme Court | Tagged , , , , | Comments (0)

6/29/09 - 6/30/09 Opinions: US 5th Cir.

July 2, 2009 – 10:50 am

The following opinions designated for publication were released by the United States Court of Appeals for the Fifth Circuit on June 29 and 30, 2009:

  • Young v. Memorial Hermann Hospital System (Higginbotham, Smith, Owen, JJ.; per curiam opinion) (appeal from S.D. Tex.) (health care liability). Affirming district court’s summary judgment in favor of health care defendants on the element of causation on the plaintiffs’ claims of health care liability arising from the the delay of a stroke diagnosis for several hours. The Fifth Circuit held that the plaintiffs did not, as per Texas law, present evidence that the stroke victim more likely than not would have not suffered lasting injuries had the stroke been diagnosed a few hours sooner and t-Pa administered.
  • U.S. v. Jang (Davis, Owen, Haynes, JJ.; opinion by Haynes, J.) (appeal from N.D. Tex.) (criminal appeal - violation of supervised release). Affirming district court’s finding that the defendant violated terms of his supervised release by providing misleading answers to the South Korean consulate, resulting in his non-admittance to South Korea upon his removal order. The Fifth Circuit held that there was no plain error in the district court’s finding that the defendant provided misleading answers to the South Korean consulate in stating that he was not voluntarily seeking readmittance.
  • Lee v. Kansas City Southern Railway Co. (Jones, C.J., Wiener, Benavides, JJ.; opinion by Wiener, J.) (appeal from W.D. La.) (employment discrimination - Title VII, FMLA, retaliatory discharge). Reversing the district court’s summary judgment in favor the defendant employer railroad on plaintiff’s Title VII claim, but affirming summary judgment in favor of defendant on plaintiff’s claims of retaliatory discharge for filing an EEOC complaint and for use of FMLA leave. The Fifth Circuit held that the plaintiff’s evidence regarding retaliatory discharge on the basis of EEOC filings was only speculation that the employer was even aware of the filings, and therefore insufficient to survive summary judgment; that the plaintiff offered no evidence to create a genuine issue of material fact as to a nexus between his use of FMLA leave and his termination; but that the plaintiff did present a prima facie Title VII claim because one of the comparator employees he presented was sufficiently similarly situated.

Additionally, the Court released 34 unpublished opinions on June 29 and 30, 2009.

By Tad Bartlett | Posted in The Bartlett Blawg, U.S. 5th Circuit | Tagged , , , , , | Comments (0)