The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on July 10, 2008:

• Waltman v. Payne (Garwood, Dennis, Owen, JJ.; opinion by Owen, J.) (appeal from S.D. Miss.). Affirming district court’s dismissal in part, and vacating in part and dismissing without prejudice the claim of the owner of a hunting camp against the local sheriff in his individual and official capacities for destruction of 500 kenaf plants (a plant that is similar in appearance to marijuana). The district court dismissed the claims against the sheriff on the basis of qualified immunity, and dismissed the state law claims without prejudice. The Fifth Circuit affirmed that the sheriff was entitled to qualified immunity on the landowner’s Fourth Amendment claim of unreasonable seizure of the kenaf plants, and on the Fourteenth Amendment claim because the landowner does not have a Due Process interest in his reputation alone; vacated the district court’s summary judgment on the landowner’s Fifth Amendment takings claim and dismissed it without prejudice on the basis that the claim was not ripe because the landowner had not properly availed himself of available state judicial remedies to seek compensation for the destruction of the kenaf plants; and affirmed the summary judgment on the claims against the sheriff in his official capacity on the basis that the landowner failed to meet his burden under § 1983 of showing deliberate indifference by the sheriff.
• Nelson v. University of Texas at Dallas (Smith, Prado, Yeakel, JJ.; opinion by Prado, J.) (appeal from N.D. Tex.). Reversing district court’s dismissal on basis of Eleventh Amendment immunity and remanding for further proceedings. Plaintiff Nelson was an employee of University of Texas at Dallas (”UTD”). He requested FMLA leave following injuries received in a car accident and the subsequent suicide death of his son, on his doctor’s recommendation that he would need four to six weeks to recover. UTD granted the request, subject to its policy that FMLA leave should be granted only upon notification of the amount of time to be taken. Prior to the expiration of the FMLA’s twelve-week period (but after the four to six weeks in the doctor recommendation), UTD terminated Nelson for failure to appear at work or notify of absences for three consecutive days; UTD then rejected Nelson’s request for reinstatement. Nelson sued UTD, then, as employers, defendants Daniel, Jarrell, and Rutledge. The claims against the defendants were dismissed on Eleventh Amendment immunity. Nelson appealed the dismissal of the claims against Daniel in his official capacity, on the basis that Ex Parte Young should except that claim from Eleventh Amendment Immunity. The Fifth Circuit agreed, holding that, while the Eleventh Amendment is available as a defense to claims under 29 USC § 2612(a)(1)(D), Ex Parte Young allowed for reinstatement claims under the FMLA against individuals in their official capacity.
• Newby v. Enron Corp. (Garza, Stewart, Dennis, JJ.; opinion by Garza, J.) (appeal from S.D. Tex.). Affirming dismissal of claims as preempted under the Securities Litigation Uniform Standards Act (”SLUSA”). This decision involves ten cases (”the Fleming cases”) brought by Enron investors (”the Fleming plaintiffs”) against former Enron managers, Enron’s accounting firm and various partners thereof, and various financial institutions (”the Anderson defendants”). Nine of the cases were brought initially in state court, and one was brought in federal court; the state plaintiffs appeal the district court’s denial of their motion for leave to amend their complaints, and all plaintiffs appeal the district court’s preemption dismissal under SLUSA. The Fifth Circuit held that the district court retained “related to” bankruptcy jurisdiction over the Fleming cases at the time it dismissed them post-confirmation, because the claims concerned pre-confirmation relations and were themselves filed pre-confirmation. The Fifth Circuit then held that SLUSA preempted the Fleming cases, because its condition of coverage as applying to a “covered class action” applied to a group of related lawsuits pending in the same district court.
• Smith v. Liberty Life Insurance Co. (Prado, Elrod, Haynes, JJ.; opinion by Haynes, J.) (appeal from W.D. La.). Affirming summary judgment in favor of life insurer on basis of exclusion for death resulting directly or indirectly from drug use, where deceased insured died in a car accident where his car left the road and collided with two trees and his autopsy revealed potentially lethal levels of hydrocodone in his system. The Fifth Circuit rejected the plaintiff’s contention that she should not be bound by the exclusions in the policy because it was not delivered to her, holding that the insurer is not required under Louisiana law to employ certified mail in delivering policies, and that the district court did not abuse its discretion in admitting testimony of the insurer’s compliance with its internal policies regarding mailing and delivery of certificates of insurance. The Fifth Circuit then held that, under Louisiana law, for the insurer to invoke the intoxication exclusion, it need only show by a preponderance of the evidence that the intoxication was a contributing cause, rather than a sole cause, of the death.