The U.S. Court of Appeals for the Fifth Circuit has officially extended its closure through the end of the week and will reopen on Monday, September 8. The Court has also extended the automatic filing extension for documents due during the closure-period to September 10, 2008.

Both courts made it through Gustav with no damage, and I believe that both are within those small portions of the power grid that regained power yesterday. Indeed, other than wind damage to trees in the area, the rebuilding city of New Orleans fared remarkably well, and even the Corps of Engineers’ floodwall repairs were demonstrated to the nation to have held up successfully under a prolonged attack of surge up the Mississippi-River Gulf Outlet and into the Inner Harbor Navigation Canal (the “Industrial Canal”) (seemingly much to the chagrin of the ever-error-prone national media). In case you have not gotten the memos we have been sending out over the past couple of years, New Orleans is most decidedly back and open for business.

• The U.S. Court of Appeals for the Fifth Circuit is officially closed September 2 & 3 (oral arguments for this week have been moved to Texas courthouses), and all filings due between September 1 and 5 have been automatically extended to September 8, 2008. At 10 a.m. on September 2, a team will inspect the New Orleans courthouse and clerk’s offices and make further determinations regarding closure and reopening. Expect further updates to be posted at the Court’s website.
• The Louisiana Supreme Court is officially closed through September 3, 2008, with possible further closure announced later by court order. This week’s oral arguments have been rescheduled to the week of October 13, 2008. All filings due during the time of closure will be automatically extended until five days after the end of the closure period. The Supreme Court’s website also contains notices of state district court closures throughout the state.

• U.S. v. Salazar (Higginbotham, Davis, Barksdale, JJ.; opinion by Barksdale, J.) (appeal from E.D. Tex.). Affirming conviction and sentence for witness tampering offense. The Fifth Circuit affirmed the conviction against the defendant’s sufficiency challenge, holding that there was no miscarriage of justice; and that the district court did not err in applying 18 U.S.C. § 1512(j) in sentencing the defendant.

• In the Matter of: SI Restructuring, Inc. (Davis, Southwick, Clark, JJ.; opinion by Davis, J.) (appeal from W.D. Tex.). Vacating order of district court affirming bankruptcy court order to disburse reserve fund. The Fifth Circuit remanded to bankruptcy court with orders to reinstate the reserve fund through disgorgement of appellees’ attorneys’ fees.

• Jenkens & Gilchrist APC v. Groia & Co. (Jones, C.J., Davis, Garza, JJ.; opinion by Garza, J.) (appeal from S.D. Tex.). Affirming in part and vacating in part district court’s denial of Rule 60(b) motion to vacate default judgment. Defendant was served with the complaint in an interpleader action, but never filed an answer. Plaintiff law firm then successfully moved for default judgment. Claiming that she was never served with the summons in the lawsuit, the defendant moved under Fed. R. Civ. P. 60(b)(4) to have the default judgment vacated; without making factual findings regarding service of summons or announcing any findings under Rule 60(b)(1), the district court summarily denied the Rule 60(b) motion. The Fifth Circuit held that the record did not support the defendant’s averments that she was not served with summons, and affirmed the denial of Rule 60(b)(4) relief; but found that the record did not support denial of Rule 60(b)(1) relief and vacated that portion of the district court’s judgment and remanded with instructions to enter findings regarding the Rule 60(b)(1) denial or proceed with trial.
•  Campbell v. Countrywide Home Loans, Inc. (Higginbotham, Stewart, Southwick, JJ.; opinion by Southwick, J.) (appeal from S.D. Tex.). Reversing partial summary judgment rendered by district court in favor of plaintiffs. Plaintiffs brought claim against their home mortgage lender, claiming that certain unpaid amounts due under their security agreement violated the automatic stay in the Chapter 13 bankruptcy proceedings. The district court granted partial summary judgment on the basis that the amounts due did violate the automatic stay. The Fifth Circuit held that, while the amounts due were claims under the Bankruptcy Code, they did not violate the automatic stay.
• U.S. v. King (Davis, Smith, DeMoss, JJ.; opinion by DeMoss, J.) (appeal from W.D. La.). Affirming conviction and sentence for one count of conspiracy to possess cocaine with the intent to distribute and one count of conspiracy to launder money. At trial, the defendant objected to admission into evidence of recordings amongst the alleged co-conspirators on grounds of the Confrontation Clause, and of recordings of conversations with his wife on the grounds of marital privilege. The recordings were admitted and the jury convicted him. The Fifth Circuit found no plain error in the district court’s sentencing of the defendant to concurrent terms of 400 months and 240 months where the Sentencing Guidelines range was 360 months to life, rejecting the defendant’s argument that the district court had impermissibly presumed that a sentence within the Guidelines range was reasonable; and held that there was no error in admitting recordings of co-conspirators’ statements where they were in furtherance of the conspiracy; and that the recordings of conversations between the defendant and his wife were in the course of their joint participation in the crime and therefore excepted from the marital privilege.
• Ramirez v. Knoulton (Smith, Prado, Ludlum, JJ.; opinion by Prado, J.) (appeal from W.D. Tex.). Reversing denial of summary judgment on qualified immunity defense and rendering judgment in favor of defendant. Plaintiff brought a claim of excessive force against defendant police officer. The district court denied the summary judgment motion brought by defendant on qualified immunity grounds. The Fifth Circuit held that the plaintiff had failed to allege facts supporting a constitutional violation, because there was no showing of constitutionally excessive force where the plaintiff had shown that he had a handgun and had failed to comply with officers’ repeated orders to drop the gun prior to being shot by the defendant, and reversed and rendered in favor of the defendant.

• Columbia Casualty Co. v. Georgia & Florida Railnet, Inc. (King, Higginbotham, Southwick, JJ.; opinion by Southwick, J.) (appeal from N.D. Tex.). Affirming district court’s decision after bench trial on a declaratory judgment action that railroad had no coverage for a former employee’s injury claims. The employee brought claims in Georgia state court under the Federal Employers Liability Act (”FELA”) and the Locomotive Boiler Inspection Act (”LBIA”), alleging that improperly designed and maintained locomotives caused high levels of diesel fumes and hazardous dusts to accumulate in the locomotive cabs where he worked, leading to respiratory maladies. The railroad’s policy issued by Columbia specifically excepted FELA claims from two relevant exclusions, but did not expressly except FELA claims from the exclusion for bodily injury resulting from “the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants[.]’” Slip op. at 4. While the state court claim brought by the former employee was still pending, Columbia brought the federal court declaratory judgment action seeking a declaration that the employee’s inhalation damage claims were excluded from coverage. The district court granted declaratory judgment after a bench trial. The Fifth Circuit held that the declaratory judgment action was ripe for review, since it was apparent prior to resolution of the state court action that Columbia had no indemnification obligation; that to allow the FELA exceptions from two other exclusions to apply to the inhalation claim impermissibly would render the pollution exclusion meaningless; that there was no presumed prejudice to the railroad in the delay in Columbia’s disclaimer of coverage; and that Columbia’s reservation of rights and the timing of its disclaimer did not violate the Texas Insurance Code.
• In the Matter of: Southern Scrap Material Co. (Wiener, Barksdale, Dennis, JJ.; opinion by Dennis, J.) (appeal from E.D. La.). On interlocutory appeal, affirming district court’s judgment lifting Limitation Act stay to allow United States to bring a Wreck Act claim against Southern Scrap for full cost of removal of wrecked drydock from the New Orleans Inner Harbor Navigation Canal following Hurricane Katrina. The Fifth Circuit held that, viewing the facts in a light most favorable to the United States, the 1986 amendments to the Wreck Act allow the United States to bring an action seeking to hold Southern Scrap liable for the cost of removal of the sunken drydock, without being subject to the Limitation Act.
• Lisle v. Commissioner of Revenue (Higginbotham, Davis, Barksdale, JJ.; opinion by Davis, J.) (appeal from U.S. Tax Ct.). Vacating Tax Court’s judgment that the Lisles failed to report and pay taxes on approximately $1.3 million earned by Mr. Lisle as kickbacks in relation to various real estate transactions. The Fifth Circuit held that the Tax Court failed to give due regard to the Special Trial Judge’s factfindings and erred in issuing a judgment contrary to those findings.

• Mapes v. Bishop (King, Higginbotham, Garza, JJ.; per curiam opinion) (appeal from M.D. La.) (sua sponte recalling mandate, withdrawing prior panel opinion, and issuing new panel opinion). One year following his acquittal on charges of soliciting a prostitute, the plaintiff brought a § 1983 claim for false arrest against various officials. The district court dismissed plaintiff’s claims on the basis that the one-year prescriptive period commenced at the time of his arrest. The Fifth Circuit held that the prescriptive (limitations) period on a Fourth Amendment false imprisonment claim commences to run at the time the plaintiff was detained pursuant to legal process, and vacated the judgment of dismissal and remanded for determination of that date by the district court.
• U.S. v. Zavala (Smith, DeMoss, Stewart; opinion by DeMoss, J.) (appeal from S.D. Tex.). Reversing judgment of conviction of defendant on two counts of possession with intent to distribute more than five kilograms of cocaine and two counts of conspiracy. The Fifth Circuit held that the district court erred in denying the defendant’s motion to suppress testimony regarding a search of the defendant’s cell phone and number found in that search, because the cell phone search was without probably cause and was not equivalent to a license check such that it could be considered a search incident to arrest.
• North American Specialty Insurance Co. v. Royal Surplus Lines Insurance Co. (Smith, Wiener, Haynes, JJ.; opinion by Haynes, J.) (appeal from S.D. Tex.). Affirming summary judgment in favor of primary insurers against excess insurer arising from tort claims against a nursing home. The district court found that the various policy limits at issue could not be stacked for indemnity or defense cost purposes due to temporal separation of the underlying incidents alleged in the tort action, and that costs of defense could not be allocated to the CGL portions of the policies. The Fifth Circuit held that the alleged incidents were part of one continuous cause of action, and were not discrete incidents giving rise to discrete causes of action, such that the policy limits could not be stacked, or applied anew to each alleged incident; and that the underlying action was one solely for breach of professional standards of care, triggering only HPL coverage, and did not also involve separate negligence claims that would trigger CGL coverage.

• Bolton v. City of Dallas (Jolly, Clement, Owen, JJ.; per curiam opinion) (appeal from N.D. Tex.). Affirming judgment of the district court that the city was not liable in this § 1983 action for the termination of the police chief plaintiff by the city manager. The district court entered summary judgment in favor of the city manager; the Fifth Circuit affirmed on the basis that the city manager was entitled to qualified immunity. On remand, the district court found that the only remaining claim was against the city, and entered summary judgment in favor of the city. The Fifth Circuit held that, even though the city manager was the final decisionmaker, the city was not liable because the city manager’s termination of the police chief did not reflect policies of the city.

• U.S. v. Duhon (Reavley, Garza, Benavides, JJ.; opinion by Benavides, J.) (appeal from W.D. La.) (on remand from U.S. Supreme Court). Affirming downward variance for sentence of sixty months’ probation on conviction on one count of possession of child pornography. After originally vacating the sentence and remanding, the Fifth Circuit held that, in light of Gall v. United States, 128 U.S. 596 (2007), the sentence was not reversible error because there was no indication that the district court’s sentence resulted from any error in application of the Sentencing Guidelines.
• U.S. v. Bonin (Smith, Wiener, Haynes, JJ.; per curiam opinion) (appeal from W.D. La.). Vacating judgment committing defendant to custody of the attorney general, and remanding. Defendant was arrested for making threats to George Strait; after the district court deemed the defendant incompetent to stand trial, a doctor found him to be a continuing and long-term threat to the safety of Mr. Strait due to the his mental condition, but the facility found him competent to stand trial and released him. The statutorily required certificate of dangerousness was never issued. The defendant then sent threatening letters to the federal magistrate judge; defendant was again arrested and again found to be incompetent to stand trial, that his release would create a substantial risk of harm to others, and that sufficient arrangements for state custody for care of the defendant were not available, and the court ordered him committed to the custody of the attorney general. Again, however, the statutorily required certificate of dangerousness was not issued. The Fifth Circuit therefore vacated the judgment and remanded for purposes of temporarily committing the defendant to federal custody where he may be evaluated for issuance of the certificate.
• In the Matter of: N A Flash Foundation, Inc. (Prado, Elrod, Haynes, JJ.; opinion by Prado, J.) (appeal from W.D. Tex.). Affirming district court’s decision to refuse to avoid three pre-petition transfers of funds as preferential transfers under 11 U.S.C. § 547(b). The Fifth Circuit held that “the creditor . . . would have received the same amount in a hypothetical Chapter 7 proceeding as a result of Texas construction trust fund law as it did in the allegedly preferential transfers.” Slip op. at 1.