In The News

Case Summaries

Civil Procedure

[07/03] Followell v. US
In a dispute between plaintiffs and the Environmental Protection Agency involving underlying Comprehensive Environmental Response Compensation and Liability Act (CERCLA) claims against plaintiffs and the EPA's attempts to collect on their resultant debt, dismissal of plaintiffs' claim is affirmed pursuant to Eighth Circuit Rule 47B for the reasons stated by the district court in its opinion.

[07/03] City of Jefferson City v. Cingular Wireless LLC
A declaratory judgment finding a wireless service provider of telecommunication services subject to local business taxes is affirmed where: 1) city's request for declaratory judgment on the issue of tax liability was properly before the district court and 2) a cell phone is a telephone and cell phone services are telephonic services for purposes of the city's tax ordinance.

[07/03] Kountze v. Gaines
In an action seeking to remove trustees from an educational board, summary judgment for defendants and imposition of sanctions on plaintiff are both affirmed where: 1) the district court did not err in finding that plaintiff was not a member of the board at the time he filed this derivative action and that he lacked capacity under state law to bring the action; and 2) there was no abuse of discretion in sanctioning plaintiff on basis that he included a defendant for improper purpose, knowing that the claims against it were barred by a prior dismissal.

[07/03] Easley v. Reuss
On petition for rehearing, the circuit court grants a petition to cure an administrative error to a prior order but declines further review where: 1) petitioner failed to meet the strict requirements of Appellate Rule 35 for a hearing en banc; and 2) petitioner was raising issues that were not previously raised.

[07/03] MLC Automotive, LLC v. Town of Southern Pines
In a suit alleging that the rezoning of a certain piece of real estate violated plaintiff's common law vested rights in the property and its federal and state substantive due process rights, denial of defendants' Rule 60(b) motion is affirmed where: 1) defendant-town's Rule 60(b) motion was filed within ten days of the original judgment, called into question the correctness of the judgment, and is properly construed as a Rule 59(e) motion; 2) the district court did not abuse its discretion in concluding that Burford abstention was appropriate because the case involved difficult issues of state land use policy.

[07/02] Anderson v. Commerce Construction Services, Inc.
In an action for negligence arising out of a Nebraska subcontractor's employee's injuries while performing demolition work in Kansas, summary judgment for defendant is affirmed where: 1) Kansas courts would have applied the lex loci delicti choice of law rule whereby the state where the tort occurred governs the merits of the litigation; 2) Kansas courts have only applied section 185 of the Restatement (Second) of Conflict of Laws to cases dealing with subrogation; and 3) application of section 184's most significant relationship test would result in defendant prevailing.

[07/02] US v. Aref
In an appeal involving challenges to a denial of a third party's motion to intervene in a terrorism-related criminal case for purposes of asserting a First Amendment right to discovery of documents sealed by court order, the circuit court finds that: 1) pursuant to section 4 of the Classified Information Procedures Act, a criminal defendant is entitled to discovery of relevant classified evidence that is helpful to his defense, and such decision is within the district court's discretion and may be made without a defendant's or his lawyer's participation; 2) denials of motions to intervene in criminal cases are reviewed for abuse of discretion; 3) while district courts ordinarily should refrain from entirely (as opposed to selectively) sealing court orders and documents filed by the parties, there was no error in doing so under the circumstances of this case.

[07/02] Brady v. Wal-Mart Stores, Inc.
In the context of Americans with Disabilities Act (ADA) failure-to-accommodate claims and the general rule that it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed, the circuit court rules that an employer has a duty reasonably to accommodate an employee's disability if the disability is obvious?which is to say, if the employer knew or reasonably should have known that the employee was disabled.

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Civil Rights

[07/03] Easley v. Reuss
On petition for rehearing, the circuit court grants a petition to cure an administrative error to a prior order but declines further review where: 1) petitioner failed to meet the strict requirements of Appellate Rule 35 for a hearing en banc; and 2) petitioner was raising issues that were not previously raised.

[07/03] White v. Baxter Healthcare Corp.
In an employment discrimination suit brought under federal and Michigan state law, summary judgment for defendant is reversed and the case is remanded for a new trial where: 1) plaintiff offered sufficient evidence to suggest that defendant's purported reason for not promoting him had no basis in fact, did not motivate defendant's decision, or was not sufficient to explain its hiring choice; and 2) plaintiff produced sufficient evidence for a reasonable jury to find in his favor on both single motive and mixed motive race discrimination claims.

[07/03] Jacob v. West Bloomfield
In a suit brought under 42 U.S.C. section 1983 alleging a violation of plaintiff's Fourth Amendment rights when defendant entered plaintiff's property without a warrant to inspect the property for criminal violations of a land use ordinance, denial of summary judgment for defendant is affirmed where: 1) the purpose of the government intrusion was not merely administrative but also bore the threat of criminal sanctions; and 2) the fact that plaintiff did not endure an even more intrusive search does not obviate the Fourth Amendment's requirement that, absent exigent circumstances, officials may not conduct criminal investigations within the curtilage of a person's home without a warrant.

[07/02] Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dep't
In an action alleging police officers violated plaintiffs' constitutional rights by ordering them to remove their truck (which displayed enlarged, graphic photographs of early-term aborted fetuses) from an area adjacent to a middle school, and by detaining them and searching the vehicle, summary judgment and dismissal rulings for defendants are reversed in part where: 1) plaintiffs' First Amendment rights were violated; 2) however, individual defendants were entitled to qualified immunity from a damages action on the issue; 3) plaintiffs established a violation of their Fourth Amendment rights because of the unreasonable length of two individuals' detention; and 4) they raised a genuine issue of fact as to whether the deputy sheriffs unlawfully entered their security vehicle.

[07/02] S.S. v. E. Kentucky Univ.
In a suit raising Americans with Disabilities Act, Rehabilitation Act, 42 U.S.C. section 1983, and state law claims alleging discrimination while plaintiff attended a middle school run by defendants, summary judgment for defendants is affirmed where: 1) there was no abuse of discretion in denying both an overbroad discovery request and a request for an increase in the page limit for a pleading; 2) plaintiff's ADA and section 504 claims failed because the alleged disparate treatment originated from the fact that defendant investigated every incident plaintiff complained about and determined a different response depending on the circumstances; 3) dismissal of procedural due process claims was proper; 4) a substantive due process claim failed; 5) section 1983 equal protection claims failed because any difference in treatment was due to defendant's attempts to protect plaintiff from harassment or to discipline him when he was responsible for incidents with other classmates; and 6) state law claims failed as they did not raise a genuine issue of material fact.

[07/02] Appel v. Spiridon
A preliminary injunction, preventing defendants from requiring plaintiff to submit to a psychological examination in order to maintain her teaching position at a state school, is reversed and remanded in light of a recent Supreme Court decision holding that the Equal Protection Clause does not apply to a public employee asserting a violation of the Clause based on a "class of one" theory.

[07/02] Brady v. Wal-Mart Stores, Inc.
In the context of Americans with Disabilities Act (ADA) failure-to-accommodate claims and the general rule that it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed, the circuit court rules that an employer has a duty reasonably to accommodate an employee's disability if the disability is obvious?which is to say, if the employer knew or reasonably should have known that the employee was disabled.

[07/01] Desmond v. Mukasey
In a suit brought under the Rehabilitation Act alleging discrimination and retaliation by the FBI after plaintiff was dismissed from the FBI Academy because of his post-traumatic stress disorder, summary judgment for defendant on a discrimination claim is reversed in part where: 1) sleep is a major life activity for purposes of the Act; 2) plaintiff presented enough evidence to allow a reasonable jury to find he was substantially limited in that basic human function; and 3) plaintiff presented enough evidence to allow a reasonable jury to find that the FBI's professed reasons for dismissing him from the FBI Academy were pretexts for discrimination.

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Consumer Protection

[07/02] Cavin v. Home Loan Ctr., Inc.
In a suit involving a mailer sent by defendant announcing its mortgage program and claiming that defendant violated the Fair Credit Reporting Act by failing to present plaintiffs' with a firm offer of credit, summary judgment for defendant is affirmed where: 1) the letter at issue presented a firm offer of credit, despite the absence of some material terms and the minimal number of consumers who obtained the loan; and 2) thus, defendant did not violate the FCRA.

[06/30] In Re: New Motor Vehicles Canadian Export Antitrust Litig.
In a putative class action lawsuit brought under section 1 of the Sherman Act claiming that defendants-manufacturers conspired in a price collusion to restrict free automobile trade, dismissal of plaintiffs' complaint is affirmed where, as indirect purchasers, plaintiffs lacked standing to sue under section 4 of the Clayton Act.

[06/30] Rodi v. S. New England Sch. of Law
In a lawsuit filed against plaintiff's alma mater legal institution claiming that the school's deans fraudulently misrepresented the school's prospects for ABA accreditation upon which he detrimentally relied upon, summary judgment for law school is affirmed where no rational jury could find plaintiff's reliance upon weak predictions of accreditation to be reasonable.

[06/30] Strawn v. AT&T Mobility LLC
In a class action suit brought under the West Virginia Consumer Credit and Protection Act challenging defendant-AT&T's practice of enrolling new subscribers to a "roadside assistance" program for an additional charge without the customer's knowledge, an order remanding the case to state court is reversed and the case remanded where: 1) a party seeking to invoke federal jurisdiction must allege it in its notice of removal and, when challenged, must demonstrate the basis for federal jurisdiction; 2) defendant correctly defined the class as any customer who was charged after being automatically enrolled in the program without ever requesting or enrolling for the service; and 3) defendant demonstrated that the jurisdiction amount under the Class Action Fairness Act's (CAFA) was satisfied.

[06/26] Absher v. Autozone, Inc.
Civil Code section 1747.08, which prohibits merchants from obtaining personal identification information from credit card users, does not apply to a refund for the return of merchandise purchased by credit card.

[06/24] Nat'l Union Fire Ins. Co. of Pittsburgh v. Puget Plastics Corp.
In a suit seeking declaratory judgment with regard to indemnification sought from plaintiff-insurer after a jury found that defendants knowingly violated the Texas Deceptive Trade Practices Act, partial summary judgment for defendants and denial of plaintiff's motion for summary judgment is affirmed where: 1) although defendant's actions were deliberate, the jury made no finding that defendant intended or expected the harm or whether the harm was highly probable; 2) plaintiff had the burden to establish that an impaired property exclusion applied; and 3) defendants could present evidence at trial regarding facts necessary to determine coverage that were not adjudicated in the underlying case.

[06/24] Dicarlo v. St. Mary Hosp.
In a class action suit asserting numerous claims against several medical care defendants for their billing practices to uninsured patients, grant of defendants' motion for judgment on the pleadings is affirmed where the district court's analysis correctly stated the law with respect to each of plaintiff's claims on unjust enrichment, breach of contract, defendant's alleged violation of state consumer protection law and breach of fiduciary duties.

[06/20] Muir v. Navy Fed. Credit Union
In a suit against a credit union and a debt collection agency for tortious conversion, tortious interference with a business expectancy, breach of fiduciary duty, and violation of the Fair Debt Collection Practices Act, dismissal of the claims against the credit union for breach of fiduciary duty and denial of a request for punitive damages for tortious conversion are affirmed. However, rulings that plaintiff lacked standing to bring his statutory claims against the collection agency, that plaintiff failed to state a claim against the credit union for tortious interference, and that plaintiff was not entitled to interests or lost profits are reversed.

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Dispute Resolution & Arbitration

[07/03] United Steel, Paper & Forestry, etc. v. TriMas Corp.
In an action to compel arbitration under the Labor-Management Relations Act (LMRA) arising out of the parties' dispute over a neutrality agreement, summary judgment for union is affirmed where the district court correctly: 1) found that the dispute was covered by the language of the arbitration clause; and 2) left consideration of certain extrinsic evidence to the arbitrator.

[07/01] In the Matter of Fiveco, Inc. v. Haber
In the context of a party commencing a proceeding to permanently stay arbitration after the 20-day limitations period for objecting to arbitration under CPLR 7503(c), such petitions are time-barred unless the basis of a party's objection falls within the exception set forth in Matter of Matarasso (Continental Cas. Co.) (56 NY2d 264 [1982]). That exception does not apply, however, when an arbitration provision found within a contract prevents finding that the parties never agreed to arbitrate.

[07/01] Espericuenta v. Shewry
In an action to recover damages arising from an automobile accident wherein a lien was asserted against the settlement proceeds to recover certain medical payments, an order denying a motion to extinguish or strike the lien imposed is affirmed where: 1) there had already been a judicial allocation of the medical expenses portion of the settlement in the order approving the victim's compromise; and 2) thus, there was no basis for modifying the order.

[06/30] Waltrip v. Kimberlin
In a priority dispute between competing liens, by a judgment creditor and debtor's attorney, over settlement proceeds, judgment finding the judgment lien had priority over the attorney lien is reversed and remanded where: 1) the creditor had a lien which did not cover commercial tort claims while the settlement proceeds at issue stemmed from commercial tort claims; 2) the attorney lien was created by the retainer agreement between plaintiffs and counsel, and it was created before creditor filed a notice of lien in the pending action; and 3) the notice of lien did not relate back to prior liens, as those liens covered different property.

[06/30] Ontiveros v. DHL Express (USA), Inc.
In a lawsuit against plaintiff's employer alleging claims of sex discrimination, harassment, and retaliation, denial of defendant's motion to compel arbitration pursuant to an arbitration agreement is affirmed where the agreement, contained within a contract of adhesion, was unconscionable, and hence unenforceable.

[06/27] ITT Educ. Serv. Inc. v. Arce
In an arbitration proceeding, a ruling that plaintiff was entitled to a permanent injunction preventing defendants from revealing any aspect of the arbitration proceedings is affirmed where: 1) any alleged finding of fraudulent inducement did not taint the validity of the arbitration clause as a whole or its confidentiality provision since the clause should be considered separable; 2) the grant of injunctive relief was proper as plaintiff alleged specific facts to support a finding of irreparable injury, the injunction would not burden defendant, and confidentiality provisions are not unconscionable or contrary to public policy; and 3) the injunction was neither vague nor overbroad.

[06/27] Kashner Davidson Sec. Corp. v. Mscisz
Although substantial deference is generally accorded to arbitrators' decisions, an arbitration judgment in a contract and securities dispute is vacated where the arbitrating panel manifestly disregarded the law by dismissing counterclaims and third-party claims as a sanction in contravention of the explicit terms of the parties' governing arbitration rules, which specifically provide that such a sanction can be entered only after lesser sanctions have been imposed and proven ineffective.

[06/25] AG Capital Funding Partners v. State Street Bank and Trust Co.
In an action alleging breach of contract, violation of federal Trust Indenture Act, breach of fiduciary duty, and negligence based on defendant's alleged failure to deliver debt transaction registration statements required to secure a debt, the court of appeals finds that: 1) plaintiffs' contract and Trust Indenture Act claims were barred by a release previously executed by plaintiffs as part of a bankruptcy settlement and that no fiduciary duties existed; however; 2) because negligence claims were not barred by the release and there were issues of fact as to whether defendant owed and violated a duty of care, plaintiffs' cause of action for negligence is reinstated.

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Ethics & Disciplinary

[06/26] Florida Bar v. Glueck
Upon review of a referee's report recommending that respondent be found guilty of professional misconduct and be suspended from the practice of law for three years, the court affirms the recommendation of guilt and changes the punishment to disbarment over claims of error regarding: 1) a finding that respondent formed a partnership with a non-lawyer; 2) whether the partnership's activities did not conduct constitute the practice of law; 3) findings of fact that respondent made misrepresentations to the Bar during its investigation; 4) findings of fact to support the recommendation of misconduct with regard to clients; and 5) the referee's failure to find mitigating factors.

[06/24] Black v. Shultz
In an attorney malpractice suit arising from a law firm's negligent representation of a client's sexual harassment claims against her employer, judgment in favor of client and amount of damages awarded by the jury is affirmed where: 1) law firm failed to show how it was prejudiced or denied of a fair trial by client's violation of an in limine order; and 2) the district court did not err in submitting separate jury instructions for client's sexual harassment claim and counsel's negligent misrepresentation, as the record suggested that counsel failed to render competent legal advice in other instances as well.

[06/18] In re Kristen B.
Juvenile court's jurisdictional and dispositional findings from parental custody proceedings are affirmed over claims that: 1) minor received ineffective assistance of counsel when the minor's counsel was impermissibly argumentative and undermined the minor's credibility on direct examination; and 2) the duty of loyalty prohibits a minor's attorney, whose position diverges from that of his or her client, from calling the minor as a witness.

[06/18] Ali v. Mukasey
An order terminating petitioner's grant of deferred removal under the CAT is vacated and remanded where the petitioner was deprived of his right to a fair hearing by the IJ's apparent bias against him and reliance on unfounded assumptions about homosexuals.

[06/16] US v. Hoffecker
Conviction and sentence for mail fraud along with conspiracy to commit mail and wire fraud is affirmed over defendant's claims that: 1) the district court erred in admitting the testimony of his former attorney; 2) the prosecution was time-barred; 3) the prosecutor engaged in prejudicial misconduct and made improper comments during closing argument; 4) the district court erred in its instructions to the jury; 5) a government witness committed perjury; 6) the district court erred in evidentiary rulings by excluding expert witnesses, admitting evidence of a civil injunction against him, and excluding certain out-of-court statements; and 7) the district court erred in calculating his sentence.

[06/12] US v. Hasarafally
Motion to recuse the entire United States Department of Justice from representing the government because the criminal judgment under review had been rendered by then-district judge Michael Mukasey, the current Attorney General, is denied as the circuit court finds the potential conflict of interest in the underlying case too attenuated to warrant disqualifying the entire DOJ when: 1) there was no allegation that Mukasey received, as a trial judge, any privileged communication that should be kept out of the prosecution's hands; and 2) nothing suggested that Mukasey harbored some specific personal interest in this case, which would damage defendant's right to a neutral prosecutor.

[06/12] Pena v. US
An appellate counsel's failure to inform his client's of his right to file for certiorari, as opposed to first-tier appellate, review does not constitute ineffective assistance of counsel.

[06/12] Nnebe v. US
When an appellate counsel promises to file a certiorari for a criminal defendant but fails to do so, one of the possible remedies available to defendant is to construe his appeal as a motion to recall the mandate and vacate the judgment so that a new one can be entered in order to afford defendant an opportunity to petition for certiorari.

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Ethics & Professional Responsibility

[06/26] Florida Bar v. Glueck
Upon review of a referee's report recommending that respondent be found guilty of professional misconduct and be suspended from the practice of law for three years, the court affirms the recommendation of guilt and changes the punishment to disbarment over claims of error regarding: 1) a finding that respondent formed a partnership with a non-lawyer; 2) whether the partnership's activities did not conduct constitute the practice of law; 3) findings of fact that respondent made misrepresentations to the Bar during its investigation; 4) findings of fact to support the recommendation of misconduct with regard to clients; and 5) the referee's failure to find mitigating factors.

[06/26] Commodity Futures Trading Comm'n v. Wilshire Inv. Mgmt. Corp.
In a case involving defendants' misconduct in its commodities trade practices, judgment awarding restitution, imposing civil penalties, and issuing a permanent injunction pursuant to defendants' violations of the Commodity Exchange Act is vacated and remanded in part where the district court abused its discretion in awarding restitution in the full amount of customer loss rather than the sum which defendant wrongfully gained by their misrepresentations, as the equitable remedy of restitution does not consider plaintiff's losses, but only focuses on defendant's unjust enrichment.

[06/25] People v. Grasso
In an action charging defendant Richard Grasso, former chairman and CEO of a public corporation, with receiving excessive compensation from NYSE, judgment for defendant is affirmed where: 1) each of the challenged causes of action sought to ascribe defendant's liability based on the mere "size" of his compensation package; however; 2) the legislature's specifically enacted statute requires more to overcome the hurdles of the business judgment defense.

[06/25] Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Cmty. Synagogue
In an action for breach of fiduciary duty against a cleric-defendant premised on his alleged inducement of a consenting sexual relationship which lasted for over 3 years, the court of appeals finds no breach of fiduciary duty when: 1) plaintiff had only shown that she was deceived by the cleric, not that she was vulnerable as to surrender her will and capacity to determine her own best interest; and 2) in absence of a prima facie showing of a fiduciary obligation owed by defendant, no cause of action can be maintained for an extended voluntary sexual affair between consenting adults, even if plaintiff could prove that her acquiescence was obtained through lies, manipulation, or other morally opprobrious conduct.

[06/25] AG Capital Funding Partners v. State Street Bank and Trust Co.
In an action alleging breach of contract, violation of federal Trust Indenture Act, breach of fiduciary duty, and negligence based on defendant's alleged failure to deliver debt transaction registration statements required to secure a debt, the court of appeals finds that: 1) plaintiffs' contract and Trust Indenture Act claims were barred by a release previously executed by plaintiffs as part of a bankruptcy settlement and that no fiduciary duties existed; however; 2) because negligence claims were not barred by the release and there were issues of fact as to whether defendant owed and violated a duty of care, plaintiffs' cause of action for negligence is reinstated.

[06/24] Black v. Shultz
In an attorney malpractice suit arising from a law firm's negligent representation of a client's sexual harassment claims against her employer, judgment in favor of client and amount of damages awarded by the jury is affirmed where: 1) law firm failed to show how it was prejudiced or denied of a fair trial by client's violation of an in limine order; and 2) the district court did not err in submitting separate jury instructions for client's sexual harassment claim and counsel's negligent misrepresentation, as the record suggested that counsel failed to render competent legal advice in other instances as well.

[06/24] Dicarlo v. St. Mary Hosp.
In a class action suit asserting numerous claims against several medical care defendants for their billing practices to uninsured patients, grant of defendants' motion for judgment on the pleadings is affirmed where the district court's analysis correctly stated the law with respect to each of plaintiff's claims on unjust enrichment, breach of contract, defendant's alleged violation of state consumer protection law and breach of fiduciary duties.

[06/24] Gray v. Branker
Denial of a petition for habeas relief from a conviction for first degree murder and death sentence is reversed in part and the case remanded for re-sentencing where: 1) counsel rendered ineffective assistance by failing to investigate and develop, for sentencing purposes, evidence that petitioner suffered from a severe mental illness, and it was reasonably probable that this failure prejudiced the outcome at sentencing; and 2) a state court's denial of denial of such claim was contrary to, and an unreasonable application of, the standards set out in Strickland.

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Injury & Tort Law

[07/03] Crowley Marine Servs. Inc. v. Maritrans Inc.
In an action arising out of the collision of plaintiff's tug boat with defendants' oil tanker, a district court's reallocation of fault in the matter is affirmed where: 1) the district court did not err in considering the coordinated nature of the tug escort, the tug boat's violations of Rules 5 and 17(b), or the negligence of both plaintiff and the tug's captain; and 2) it did not err in apportioning 70% of the responsibility for the collision to the tug boat.

[07/03] Sherman v. Winco Fireworks, Inc.
In an action arising from an accident with fireworks, order granting defendant-fireworks manufacturer leave to amend and remand for a new trial on the plaintiffs' failure-to-warn claim in addition to plaintiff husband's pendent consortium claim is reversed in part where: 1) the district court did not apply the good-cause standard in ruling on motion to amend; 2) and the district court abused its discretion in allowing the amendment; 3) and the error was not harmless as it significantly affected plaintiffs' claims.

[07/02] Anderson v. Commerce Construction Services, Inc.
In an action for negligence arising out of a Nebraska subcontractor's employee's injuries while performing demolition work in Kansas, summary judgment for defendant is affirmed where: 1) Kansas courts would have applied the lex loci delicti choice of law rule whereby the state where the tort occurred governs the merits of the litigation; 2) Kansas courts have only applied section 185 of the Restatement (Second) of Conflict of Laws to cases dealing with subrogation; and 3) application of section 184's most significant relationship test would result in defendant prevailing.

[07/02] Allen v. Brown Clinic, P.L.L.P
In a medical malpractice suit, jury verdict for defendant-doctor is affirmed over claims that the district court erred when it denied his motion to exclude for cause: 1) all jurors who had ever received medical treatment at a particular clinic or with a particular doctor; 2) all jurors who had family members who had been treated at the clinic or by the doctor; and 3) two jurors who had relatives with connections to the defendants. A claim that the district court erred in denying a motion to exclude defendants' medical expert is also rejected.

[07/02] Rodriguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina
In a medical malpractice case against defendant-hospital presenting the issue of whether an Asset Purchase Agreement entered between past and present owners of the hospital absolved the current owner's liability for acts or omissions by the hospital's previous owners and/or operators, the circuit court finds that the terms of the asset purchase agreement not only could, but did, absolve the present owners from liability.

[07/02] Ellison v. US
In an action brought against the government under the Federal Tort Claims Act (FTCA) arising from a motorcycle accident with a vehicle driven by a United States Postal Service employee, dismissal of the complaint on timeliness grounds is affirmed where: 1) the FTCA requires claimants to file their claims within six months of an agency's written denial of a claim; 2) plaintiff filed this lawsuit almost seven months after the Postal Service denied her claim; and 3) plaintiff's alternative readings of the FTCA were unconvincing.

[07/02] S.S. v. E. Kentucky Univ.
In a suit raising Americans with Disabilities Act, Rehabilitation Act, 42 U.S.C. section 1983, and state law claims alleging discrimination while plaintiff attended a middle school run by defendants, summary judgment for defendants is affirmed where: 1) there was no abuse of discretion in denying both an overbroad discovery request and a request for an increase in the page limit for a pleading; 2) plaintiff's ADA and section 504 claims failed because the alleged disparate treatment originated from the fact that defendant investigated every incident plaintiff complained about and determined a different response depending on the circumstances; 3) dismissal of procedural due process claims was proper; 4) a substantive due process claim failed; 5) section 1983 equal protection claims failed because any difference in treatment was due to defendant's attempts to protect plaintiff from harassment or to discipline him when he was responsible for incidents with other classmates; and 6) state law claims failed as they did not raise a genuine issue of material fact.

[07/01] Espericuenta v. Shewry
In an action to recover damages arising from an automobile accident wherein a lien was asserted against the settlement proceeds to recover certain medical payments, an order denying a motion to extinguish or strike the lien imposed is affirmed where: 1) there had already been a judicial allocation of the medical expenses portion of the settlement in the order approving the victim's compromise; and 2) thus, there was no basis for modifying the order.

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Legal Malpractice

[07/02] Allen v. Brown Clinic, P.L.L.P
In a medical malpractice suit, jury verdict for defendant-doctor is affirmed over claims that the district court erred when it denied his motion to exclude for cause: 1) all jurors who had ever received medical treatment at a particular clinic or with a particular doctor; 2) all jurors who had family members who had been treated at the clinic or by the doctor; and 3) two jurors who had relatives with connections to the defendants. A claim that the district court erred in denying a motion to exclude defendants' medical expert is also rejected.

[07/02] Rodriguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina
In a medical malpractice case against defendant-hospital presenting the issue of whether an Asset Purchase Agreement entered between past and present owners of the hospital absolved the current owner's liability for acts or omissions by the hospital's previous owners and/or operators, the circuit court finds that the terms of the asset purchase agreement not only could, but did, absolve the present owners from liability.

[06/26] Florida Bar v. Glueck
Upon review of a referee's report recommending that respondent be found guilty of professional misconduct and be suspended from the practice of law for three years, the court affirms the recommendation of guilt and changes the punishment to disbarment over claims of error regarding: 1) a finding that respondent formed a partnership with a non-lawyer; 2) whether the partnership's activities did not conduct constitute the practice of law; 3) findings of fact that respondent made misrepresentations to the Bar during its investigation; 4) findings of fact to support the recommendation of misconduct with regard to clients; and 5) the referee's failure to find mitigating factors.

[06/25] Ellis v. Grant Thornton LLP
In a suit for negligent misrepresentation arising from plaintiff's acceptance of a job as president of a small community bank based on audit reports made by defendant, judgment against defendant is reversed where: 1) plaintiff was not the member of a limited group for whose benefit the report was prepared; 2) defendant was hired for the benefit of the company and not for the benefit of potential employees; 3) more than tenuous awareness is required in order to impose liability since it would turn the Restatement rule relied upon by the court into a foreseeability approach that has been rejected; 4) defendant was not assuming the risk that third parties would rely on its report; and 5) the report stated that it was not intended to be used by third parties, and as such, plaintiff could not rely on statements made based on the report.

[06/24] Black v. Shultz
In an attorney malpractice suit arising from a law firm's negligent representation of a client's sexual harassment claims against her employer, judgment in favor of client and amount of damages awarded by the jury is affirmed where: 1) law firm failed to show how it was prejudiced or denied of a fair trial by client's violation of an in limine order; and 2) the district court did not err in submitting separate jury instructions for client's sexual harassment claim and counsel's negligent misrepresentation, as the record suggested that counsel failed to render competent legal advice in other instances as well.

[06/18] Mendoza v. Murphy
In a medical malpractice suit brought against defendants alleging that a diagnosis of invasive cancer was in error and resulted in the unnecessary removal of plaintiff's entire bladder, the district court's decision to retain supplemental jurisdiction over plaintiffs' state law claims and grant summary judgment based on Texas statute of limitations is affirmed where: 1) the district court did not abuse its discretion in retaining jurisdiction after federal claims were dismissed; 2) the statute of limitations began running for plaintiffs when defendants allegedly misdiagnosed invasive bladder cancer and they did not file suit until 4 years after; and 3) the Texas "open courts doctrine" does not apply since it was not "impossible or exceedingly difficult to discover the wrong and bring suit" within the limitations period.

[06/13] Leland v. Brandal
In the context of health care liability claims and Tex. Civ. Prac. & Rem. Code section 74.351(c), when elements of a timely filed expert report are found deficient, either by the trial court or on appeal, one thirty-day extension to cure the report may be granted.

[06/12] Florida Bar v. Dove
A referee's recommendation that respondent be disciplined by a public reprimand, receive two years probation, and forfeit fees of eight-thousand dollars for her actions during an adoption case is rejected and respondent's cross-appeal for rejection of disgorgement of fees is approved where: 1) although disbarment is the presumptive sanction in a case in which candor and material misrepresentations to the court are at issue, a three year suspension is proper given the mitigating factors; 2) disgorgement is only permitted to the Client Security Fund of the Florida Bar and not to the Florida Bar Foundation since it is not mentioned in the rule; 3) disgorgement does not apply since the fee was not prohibited, illegal, or excessive; 4) fines are not permitted in disciplinary cases; and 5) the award of costs to the complainant was proper since the members should not unnecessarily bear the costs of prosecuting misdeeds of unethical members.

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Professional Malpractice

[07/02] Allen v. Brown Clinic, P.L.L.P
In a medical malpractice suit, jury verdict for defendant-doctor is affirmed over claims that the district court erred when it denied his motion to exclude for cause: 1) all jurors who had ever received medical treatment at a particular clinic or with a particular doctor; 2) all jurors who had family members who had been treated at the clinic or by the doctor; and 3) two jurors who had relatives with connections to the defendants. A claim that the district court erred in denying a motion to exclude defendants' medical expert is also rejected.

[07/02] Rodriguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina
In a medical malpractice case against defendant-hospital presenting the issue of whether an Asset Purchase Agreement entered between past and present owners of the hospital absolved the current owner's liability for acts or omissions by the hospital's previous owners and/or operators, the circuit court finds that the terms of the asset purchase agreement not only could, but did, absolve the present owners from liability.

[06/26] Florida Bar v. Glueck
Upon review of a referee's report recommending that respondent be found guilty of professional misconduct and be suspended from the practice of law for three years, the court affirms the recommendation of guilt and changes the punishment to disbarment over claims of error regarding: 1) a finding that respondent formed a partnership with a non-lawyer; 2) whether the partnership's activities did not conduct constitute the practice of law; 3) findings of fact that respondent made misrepresentations to the Bar during its investigation; 4) findings of fact to support the recommendation of misconduct with regard to clients; and 5) the referee's failure to find mitigating factors.

[06/25] Ellis v. Grant Thornton LLP
In a suit for negligent misrepresentation arising from plaintiff's acceptance of a job as president of a small community bank based on audit reports made by defendant, judgment against defendant is reversed where: 1) plaintiff was not the member of a limited group for whose benefit the report was prepared; 2) defendant was hired for the benefit of the company and not for the benefit of potential employees; 3) more than tenuous awareness is required in order to impose liability since it would turn the Restatement rule relied upon by the court into a foreseeability approach that has been rejected; 4) defendant was not assuming the risk that third parties would rely on its report; and 5) the report stated that it was not intended to be used by third parties, and as such, plaintiff could not rely on statements made based on the report.

[06/24] Black v. Shultz
In an attorney malpractice suit arising from a law firm's negligent representation of a client's sexual harassment claims against her employer, judgment in favor of client and amount of damages awarded by the jury is affirmed where: 1) law firm failed to show how it was prejudiced or denied of a fair trial by client's violation of an in limine order; and 2) the district court did not err in submitting separate jury instructions for client's sexual harassment claim and counsel's negligent misrepresentation, as the record suggested that counsel failed to render competent legal advice in other instances as well.

[06/18] Mendoza v. Murphy
In a medical malpractice suit brought against defendants alleging that a diagnosis of invasive cancer was in error and resulted in the unnecessary removal of plaintiff's entire bladder, the district court's decision to retain supplemental jurisdiction over plaintiffs' state law claims and grant summary judgment based on Texas statute of limitations is affirmed where: 1) the district court did not abuse its discretion in retaining jurisdiction after federal claims were dismissed; 2) the statute of limitations began running for plaintiffs when defendants allegedly misdiagnosed invasive bladder cancer and they did not file suit until 4 years after; and 3) the Texas "open courts doctrine" does not apply since it was not "impossible or exceedingly difficult to discover the wrong and bring suit" within the limitations period.

[06/13] Leland v. Brandal
In the context of health care liability claims and Tex. Civ. Prac. & Rem. Code section 74.351(c), when elements of a timely filed expert report are found deficient, either by the trial court or on appeal, one thirty-day extension to cure the report may be granted.

[06/12] Florida Bar v. Dove
A referee's recommendation that respondent be disciplined by a public reprimand, receive two years probation, and forfeit fees of eight-thousand dollars for her actions during an adoption case is rejected and respondent's cross-appeal for rejection of disgorgement of fees is approved where: 1) although disbarment is the presumptive sanction in a case in which candor and material misrepresentations to the court are at issue, a three year suspension is proper given the mitigating factors; 2) disgorgement is only permitted to the Client Security Fund of the Florida Bar and not to the Florida Bar Foundation since it is not mentioned in the rule; 3) disgorgement does not apply since the fee was not prohibited, illegal, or excessive; 4) fines are not permitted in disciplinary cases; and 5) the award of costs to the complainant was proper since the members should not unnecessarily bear the costs of prosecuting misdeeds of unethical members.

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Sanctions

[07/03] Kountze v. Gaines
In an action seeking to remove trustees from an educational board, summary judgment for defendants and imposition of sanctions on plaintiff are both affirmed where: 1) the district court did not err in finding that plaintiff was not a member of the board at the time he filed this derivative action and that he lacked capacity under state law to bring the action; and 2) there was no abuse of discretion in sanctioning plaintiff on basis that he included a defendant for improper purpose, knowing that the claims against it were barred by a prior dismissal.

[06/30] US v. Morse
In proceedings arising from investigations into defendant's tax filing, grant of the government's petition to enforce IRS summons to provide testimony and produce documents to assess defendant's tax liability is affirmed where defendant's tax liability challenges were insufficient to rebut the government's prima facie case for enforcing the summons. Also, the government's request for imposing sanctions upon defendant is granted where defendant asserted frivolous arguments while previously warned against raising them.

[06/27] Kashner Davidson Sec. Corp. v. Mscisz
Although substantial deference is generally accorded to arbitrators' decisions, an arbitration judgment in a contract and securities dispute is vacated where the arbitrating panel manifestly disregarded the law by dismissing counterclaims and third-party claims as a sanction in contravention of the explicit terms of the parties' governing arbitration rules, which specifically provide that such a sanction can be entered only after lesser sanctions have been imposed and proven ineffective.

[06/23] In re Rothwell
Petition for habeas relief from an administrative sanction imposed solely on the basis of petitioner's "possession" of a controlled substance is granted where the heroine concealed on a postcard addressed to him was intercepted by a guard working in the prison mail room before it ever got to him.

[06/19] People v. Sons
In a homicide case involving a defendant who was retried by reason of prosecutorial withholding of discovery after his previous murder conviction was vacated, defendant's conviction on retrial of manslaughter with use of a firearm is affirmed over claims that: 1) double jeopardy barred any retrial of his case; 2) the trial court erred as a matter of law when it declined to give a sanction instruction from prior trials; and 3) the trial court erred in rejecting a proposed clarifying instruction on self-defense.

[06/10] Wheeler v. Comm'r of Internal Revenue
Judgment against petitioner assessing various deficiencies and fees for underpayment of taxes, as well as for advancing frivolous and groundless arguments, is affirmed and a motion for sanctions granted where: 1) petitioner's argument that he had not received due process because he was never informed of the statutory authority for the country's income tax was not raised until after the Tax Court had issued an opinion and was frivolous; 2) petitioner failed to raise the argument before the Tax Court that the signature requirement of the 1040 forms under penalty of perjury violates his Fifth Amendment rights; 3) petitioner's arguments that he was under duress when he signed certain stipulations was frivolous; 4) petitioner made frivolous claims regarding the authentication of evidence; 5) the Paperwork Reduction Act does not require each form requesting information to inform the person responding to the request that he is not required to respond unless a valid control number is displayed; and 6) the court must exercise its own discretion in setting the sanction.

[06/05] In the Matter of Honorable Robert M. Restaino
A judge is sanctioned and removed from office based on his actions when, after a device rang in his courtroom and its owner could not be determined, he arbitrarily revoked or denied the recognizance release status of 46 individuals present in his courtroom. Despite the judge's proffered psychological evidence of suffering from an anxious state of mind due to a strained marriage and recognizable prior service record, the public confidence which had been lost was irreparable.

[05/29] In re Marriage of Gong
An appeal from an order to pay child support and related obligations is dismissed as frivolous and monetary sanctions are imposed on appellant who pursued every possible avenue to evade his support obligations, even when ordered to do so by the court, and prosecuted a meritless appeal solely for the purpose of taking advantage of the delay in discharging his payment obligations.

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Sentencing

[07/03] Tablada v. Thomas
In a case involving whether the Bureau of Prisons (BOP) violated the Administrative Procedure Act (APA) in promulgating a regulation interpreting 18 U.S.C. section 3624(b), which governs the calculation of good conduct time for federal prisoners, the court finds that: 1) the BOP concededly violated the APA by failing to articulate a rational basis for its decision to promulgate the regulation; but 2) the remedy for the violation is to interpret the federal statute in accordance with the BOP's Program Statement 5880.28; and 3) the BOP's methodology for calculating good time credits under Statement 5880.28 was both reasonable and persuasive under applicable law.

[07/03] US v. Dodds
Sentence for possession of child pornography is affirmed over claims that: 1) the district court failed to adequately consider relevant sentencing factors; and 2) defendant's due process rights were violated because the sentence was imposed after the government presented an inaccurate picture of relevant conduct.

[07/03] US v. Anderson
A conviction for insider trading and money laundering is affirmed over claims of error that: 1) the government's evidence was insufficient to convict him, 2) the district court erred in failing to give his theory-of-the-case jury instruction; and 3) that he is entitled to a new trial. The sentence is affirmed over the government's claims of error that the sentence was unreasonable because the court erroneously excluded certain stock sales as relevant conduct when considering the U.S.S.G. for illegal insider training.

[07/03] US v. Feemster
A reduction of defendant's sentence to 120 months from 240 months for knowingly and intentionally distributing crack cocaine is reversed and remanded where the district court: 1) considered irrelevant factors; 2) failed to explain its unusually lenient sentence with sufficient justifications to support the degree of the variance; and 3) thus committed procedural error and abused its discretion.

[07/03] US v. Pearce
Convictions and sentences for being a felon in possession of a firearm and ammunition are affirmed over claims of error regarding: 1) a denial of a motion to suppress evidence based on officers' lack of either reasonable suspicion or probable cause to stop defendants; and 2) imposition of the 235 months sentence without addressing the sentencing factors in 18 U.S.C. section 3553(a).

[07/02] US v. Warr
A sentence for wildland arson is affirmed where: 1) the district court did not err in calculating the advisory sentencing guidelines range when it included fire suppression costs in the loss calculation, resulting in an elevated total offense level; 2) the sentence was not unreasonable; and 3) although the district court erred in relying on a Bureau of Prisons' study at sentencing without notifying defendant in advance, the failure to provide notice did not constitute plain error.

[07/02] US v. Evans-Martinez
Fed. R. Crim. P. 32(h) requires that a district court provide notice of its intent to depart from the applicable sentencing range suggested by the Guidelines post-Booker, as it did pre-Booker.

[07/02] People v. Miller
Defendant's conviction and sentence for hit and run driving, assault with a deadly weapon, evading a peace officer, and driving with a suspended license are reversed and remanded in part where: 1) the trial court improperly instructed the jury on the elements of assault; 2) there was insufficient evidence to support a finding that the person from whom defendant fled met the statutory definition of peace officer; and 3) the trial court imposed a legally unauthorized sentence in failing to conduct a trial or make findings for certain allegations in dispute.

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Workers' Comp

[07/03] State Comp. Ins. Fund v. WCAB
The California Supreme Court finds that the Legislature intended to require employers to conduct utilization review when considering requests for medical treatment, and employers may not use Labor Code section 4062 as an alternative method for disputing employees' treatment requests.

[07/03] BNSF Ry. Co. v. Swanson
Provisions of Minnesota Statute sections 609.849(a)(1) and (a)(2), governing a railroad's treatment of injured workers, are both preempted by the Internal Control Plans regulations adopted by the Federal Railroad Administration pursuant to the Federal Railroad Safety Act.

[07/02] Anderson v. Commerce Construction Services, Inc.
In an action for negligence arising out of a Nebraska subcontractor's employee's injuries while performing demolition work in Kansas, summary judgment for defendant is affirmed where: 1) Kansas courts would have applied the lex loci delicti choice of law rule whereby the state where the tort occurred governs the merits of the litigation; 2) Kansas courts have only applied section 185 of the Restatement (Second) of Conflict of Laws to cases dealing with subrogation; and 3) application of section 184's most significant relationship test would result in defendant prevailing.

[07/02] Wakkinen v. UNUM Life Ins. Co. of Am.
In an ERISA action, summary judgment for defendant upholding its denial of long-term disability benefits under an employer-offered plan is affirmed where substantial evidence supported plan administrator's finding that claimant was not "continuously disabled" through the 180 days of his elimination period as defined within the policy in dispute.

[06/23] Barr v. WCAB
The Workers' Compensation Appeals Board has the discretion to award costs for preparing a vocational rehabilitation consultant's report, regardless of whether or not the report itself is admissible as evidence under Labor Code section 5703.

[06/17] Leighton v. Office of Personnel Management
A decision holding that the Office of Personnel Management (OPM) properly computed petitioner's Federal Employees' Retirement System (FERS) disability retirement annuity is affirmed where: 1) the statute used to compute FERS disability annuities refers to SSA payments as computed under section 223 of the Social Security Act and not under section 224; and 2) the SSA disability benefit must be determined before the SSA applies any offsets for OWCP compensation in order to avoid any duplicate payments.

[06/13] Johnson v. Comm'r of Soc. Sec.
Denial of a claim for disability insurance benefits under Title II of the Social Security Act is affirmed where: 1) the ALJ conducted an exhaustive evaluation of evidence adduced in the case; and 2) the ALJ's final conclusion in finding claimant not disabled was supported by substantial evidence.

[06/12] Berg v. Albany Ladder Co., Inc.
The protections of Labor Law section 240(1) do not apply to every worker who falls and is injured at a construction site. In a case involving a "fall-related accident" wherein a plaintiff was injured after climbing into a bundle of steel trusses to avoid being crushed by another bundle rolling atop of him, dismissal of plaintiff's Labor Law section 240(1) cause of action is affirmed where, although plaintiff asserted that the height at which he worked created an elevation-related risk, he failed to adduce proof sufficient to create a question of fact regarding whether his fall resulted from the lack of a safety device.

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