FindLaw logo

Sample Weekly Opinion Summaries
Civil Procedure

July 05-09, 2010 FindLaw.com Weekly Civil Procedure Newsletter
You may forward this e-mail in its entirety.

Table of Contents

Civil Procedure

  • Hakim v. Holder
  • District Lodge 26 v. United Techs. Corp.
  • Pichardo v. Virgin Islands Comm'r of Labor
  • Aikens v. Ingram
  • Cravens v. Smith
  • Attorney's Process & Investigation Servs., Inc. v. Sac & Fox Tribe of the Miss. in Iowa
  • Orr v. Larkins
  • Gillette v. N. Dakota Disciplinary Bd.
  • In re: Polaroid Corp.
  • Mindys Cosmetics, Inc. v. Dakar
  • Betz v. Trainer Wortham & Co.
  • Couch v. Telescope Inc.
  • Love v. Sanctuary Records Group, Ltd.
  • Small v. Operative Plasterers' & Cement Masons' Int'l. Assn.
  • Toyota Motor Sales, USA, Inc. v. Tabari
  • MD Edgar Borrero v. United Healthcare of N.Y., Inc.
  • In re: Mouzon Enters., Inc.
  • Judicial Watch, Inc. v. Bureau of Land Mgmt.
  • Davis v. Dep't of Justice
  • Nordstrom Comm'n Cases
  • People v. Disandro
  • Clarendon Am. Ins. Co. v. N. Am. Capacity Ins. Co.
  • Litwin v. Estate of Robert Formela
  • Gomez v. Village of Pinecrest

FindLaw's case summaries are copyrighted material and are not intended for republication without prior approval. You may, however, freely redistribute this e-mail in its entirety. To view the full-text of cases you must sign in to FindLaw.com.


SPONSOR



Civil Procedure

United States First Circuit, 07/09/2010
Hakim v. Holder
An Indonesian citizen's petition for review of the BIA's decision reversing a grant of applications for asylum and for withholding of removal is dismissed without prejudice as the petitioner filed a petition for judicial review before the IJ had been afforded the opportunity to determine his eligibility for voluntary departure, and if the court exercised jurisdiction in this case, it would be permitting petitioner to circumvent the voluntary departure regulation by allowing him to seek both voluntary departure and judicial review. Read more...

United States Second Circuit, 07/08/2010
District Lodge 26 v. United Techs. Corp.
In an action claiming that defendant's announced plans to close two facilities in Connecticut and move the work performed at those facilities outside the State violated the collective bargaining agreement between the company and the plaintiff union, a permanent injunction in favor of plaintiffs is affirmed where: 1) the district court did not err in finding that defendant's actions did not constitute "every reasonable effort" to preserve work within the bargaining unit; and 2) the district court did not err in finding that the Closure Plan violated defendant's implied covenant of good faith and fair dealing. Read more...

United States Third Circuit, 07/08/2010
Pichardo v. Virgin Islands Comm'r of Labor
In plaintiff's suit against her former employer for wrongful termination, petition for a writ of certiorari is granted and the decision of the newly-created Supreme Court of the Virgin Islands is affirmed where: 1) the degree of deference afforded to a territorial supreme court allows for reversal on matters of local law only when "clear or manifest error is shown"; and 2) there is no manifest error in the Virgin Island Supreme Court's decisions, including that the writ of review under section 70 is limited to consideration of issues for which an objection was raised and that section 1422 cannot be invoked to seek review of decisions by the DOL, given the existence of section 70. Read more...





United States Fourth Circuit, 07/06/2010
Aikens v. Ingram
In a former colonel's suit against his former colleagues at the North Carolina Army National Guard, claiming that they violated his Fourth Amendment rights by wrongfully intercepting, reading, and forwarding his e-mails while he was deployed in Iraq, district court's order dismissing the action without prejudice for lack of subject matter jurisdiction for failure to exhaust any available intramilitary remedies is affirmed as the district court did not abuse its discretion in denying plaintiff's motion to reopen the judgment under Fed Rule of Civ. Proc. 60(b)(6), because to the extent that plaintiff rests his argument on the district court's earlier purportedly erroneous dismissal of his case, his remedy was to appeal, not to file a Rule 60(b)(6) motion. Read more...

United States Eighth Circuit, 07/06/2010
Cravens v. Smith
In an action raising a claim for indemnification from defendants for a judgment incurred by plaintiff in a separate lawsuit brought by a patient allegedly harmed by the negligence of plaintiff, judgment for defendants is affirmed where: 1) plaintiff failed to identify any contractual language specifying that defendants had a duty to defend plaintiff; 2) any decision not to admit evidence of whether defendants were bound by the underlying judgment was harmless, as the record contained other evidence of prejudice; and 3) the district court did not abuse its discretion in striking a venireperson. Read more...

United States Eighth Circuit, 07/07/2010
Attorney's Process & Investigation Servs., Inc. v. Sac & Fox Tribe of the Miss. in Iowa
In an action by a company which provides security and consulting services to casino operators, seeking a declaratory judgment that an Indian tribal court lacked jurisdiction and an order compelling arbitration, summary judgment for defendant is affirmed in part where the tribal courts could exercise adjudicatory jurisdiction over the tribe's claims against plaintiff for trespass to land, trespass to chattels, and conversion of tribal trade secrets. However, the judgment is reversed in part where the tribal court did not have jurisdiction under the second Montana exception over the tribe's claim for conversion of tribal funds. Read more...

United States Eighth Circuit, 07/07/2010
Orr v. Larkins
In an action claiming that prison officials violated plaintiff's rights under the Due Process Clause of the Fourteenth Amendment, and under the Eighth Amendment, by keeping him in administrative segregation for about nine months following his third "dirty" urine test, dismissal of the complaint is affirmed where a demotion to administrative segregation, even without cause, was not itself an atypical and significant hardship. Read more...

United States Eighth Circuit, 07/09/2010
Gillette v. N. Dakota Disciplinary Bd.
In an action seeking declaratory and injunctive relief preventing an attorney disciplinary board from prosecuting a disciplinary action for alleged misconduct arising out of plaintiff's representation of Native American clients in tribal court litigation, dismissal of the action is affirmed where the three prerequisites to Younger abstention were present in this case: (1) an ongoing state judicial proceeding that (2) implicates an important state interest and (3) affords an adequate opportunity to raise federal statutory and constitutional challenges. Read more...

United States Eighth Circuit, 07/09/2010
In re: Polaroid Corp.
In a creditor's appeal of the bankruptcy court's approval of a debtor's sale, free and clear of any liens, of its assets, the appeal is dismissed where no party obtained a stay of the sale pending appeal, and thus the appeal was moot. Read more...

United States Ninth Circuit, 07/06/2010
Mindys Cosmetics, Inc. v. Dakar
In a trademark infringement action, a denial of defendant's California anti-SLAPP motion is affirmed where defendant made a prima facie showing that the suit against him "arose from" a protected act under the anti-SLAPP statute, but plaintiff made a sufficient showing under the second part of the inquiry to withstand defendant's motion to strike under the anti-SLAPP statute. Read more...

United States Ninth Circuit, 07/07/2010
Betz v. Trainer Wortham & Co.
In a securities fraud action, defendants' motion to remand the case to the district court following the Supreme Court's decision vacating the Ninth Circuit's earlier opinion is granted where: 1) the district court had procedures available to it relating to the scope of the record and the determination of facts which are not available to the circuit court; and 2) once the district court made its decision and a final order was presented, the matter could again be appealed to the Ninth Circuit if either party sought further review. Read more...

United States Ninth Circuit, 07/08/2010
Couch v. Telescope Inc.
In defendants' appeal from the district court's order denying defendants' motion to dismiss plaintiffs' claim that defendants conducted an illegal lottery under California Penal Code section 319 and thereby violated California's unfair business practices law, the appeal is dismissed where the district court expressly, and correctly, found that defendants had failed to demonstrate a substantial ground for difference of opinion. Read more...

United States Ninth Circuit, 07/08/2010
Love v. Sanctuary Records Group, Ltd.
In an action by former Beach Boys member Mike Love against former member Brian Wilson for trademark infringement based on the promotion campaign for Wilson's solo album, a dismissal of the action is affirmed where the Lanham Act and California's common law right of publicity did not apply extraterritorially to events occurring in Great Britain. Read more...

United States Ninth Circuit, 07/08/2010
Small v. Operative Plasterers' & Cement Masons' Int'l. Assn.
In an action by a union against a contractor alleging violation of wage and hour laws and tortious interference with contract, the district court's injunction against state court proceedings pending a decision by the National Labor Relations Board is affirmed where, because any favorable resolution of the state lawsuits would directly conflict with the Board’s section 10(k) determinations, under Local 32 and Bill Johnson's, the union's suits had an illegal objective. Read more...

United States Ninth Circuit, 07/08/2010
Toyota Motor Sales, USA, Inc. v. Tabari
In a trademark infringement action by Toyota involving defendants' use on their website of copyrighted photography of Lexus vehicles and the circular "L Symbol Design mark", judgment for plaintiff is vacated where: 1) the district court's injunction was plainly overbroad because it prohibited domain names that on their face dispel any confusion as to sponsorship or endorsement; and 2) because there was no risk of confusion as to sponsorship or endorsement, defendants' use of the Lexus mark was fair. Read more...

United States Eleventh Circuit, 07/07/2010
MD Edgar Borrero v. United Healthcare of N.Y., Inc.
In an action alleging that defendant health insurer breached its contracts with plaintiff physicians by not paying them the full contracted rate for services rendered to insureds, in violation of common and statutory law, dismissal of the action is reversed where plaintiffs' claims were not subject to claim preclusion because they arose from a nucleus of operative fact distinct from those resolved in prior litigation. Read more...

United States Eleventh Circuit, 07/09/2010
In re: Mouzon Enters., Inc.
In a creditor's appeal from a bankruptcy court's order holding that the motion filed by debtor seeking to vacate the Consent Order was not barred under Rule 9024, the order is reversed where the bankruptcy court erred in holding that an order resolving a claim that has been objected to, but not litigated, constitutes an order "entered without a contest" for the purposes of Fed. R. Bankr. P. 9024. Read more...

United States DC Circuit, 07/06/2010
Judicial Watch, Inc. v. Bureau of Land Mgmt.
In an action brought under the Freedom of Information Act, an attorney's fees award to plaintiff and against the Bureau of Land Management is vacated where the application of the 2007 Open Government Act to the case would have impermissible retroactive effects. Read more...

United States DC Circuit, 07/06/2010
Davis v. Dep't of Justice
In a FOIA action seeking access to tape recordings made during an FBI investigation of a New Orleans mob boss, a denial of plaintiff's motion for attorney's fees is affirmed where the OPEN Government Act of 2007 did not retroactively allow plaintiff to recover fees. Read more...

California Court of Appeal, 07/07/2010
Nordstrom Comm'n Cases
In class action suits against Nordstrom, claiming that the department store's policy of paying net sales commission to its commissioned sales employees violated section 221 and 203 of the Labor Code, trial court's order overruling a class member's objection to the parties' settlement is affirmed as the trial court did not abuse its discretion in overruling the objection and approving the settlement as the court's analysis of the settlement's terms correctly considered the merits of the class's claims and Nordstrom's defenses. Read more...

California Court of Appeal, 07/07/2010
People v. Disandro
Superior court's appellate division's affirmance of the traffic court's judgment finding defendant guilty of driving at an unsafe speed and driving with a load obstructing her control of the vehicle is affirmed, but for a different reason, as the traffic court erred when it proceeded with trial in defendant's absence without making appropriate inquiries into the reasons for the absence in order to determine whether it was both knowing and voluntary. However, the record indicates the error was harmless as defendant has not even presented a colorable argument as to why she would not have been found guilty of both traffic infractions if she had been present at trial. Read more...

California Court of Appeal, 07/07/2010
Clarendon Am. Ins. Co. v. N. Am. Capacity Ins. Co.
In plaintiff's suit for declaratory relief, equitable contribution, and partial equitable indemnity, seeking a proportionate or equitable share of sums it spent to defend an insured in a construction defect action, trial court's grant of defendant's motion for summary judgment is reversed where: 1) defendant did not meet its burden of showing there was no potential for coverage under the terms of its policy, or no duty to defend the insured in the underlying action, as a matter of law; and 2) defendant failed to show that the insured had no reasonable expectation that at the time the policy was issued, a $25,000 SIR would apply only once to the underlying action as a whole, rather than to each eight homes constructed after November 30, 2002, as a matter of law, and all of the papers submitted on the motion leave this possibility open. Read more...

California Court of Appeal, 07/08/2010
Litwin v. Estate of Robert Formela
In plaintiff's personal injury action arising from an automobile accident, judgment of dismissal following the sustaining of a demurrer by defendant-estate is affirmed as the trial court properly entered a judgment of dismissal in favor of the defendant because the action was barred by the statute of limitations and section 351's tolling does not apply. Read more...

Supreme Court of Florida, 07/08/2010
Gomez v. Village of Pinecrest
In forfeiture proceeding against a property owner, claiming that the property was being used for criminal activity by the property owner's leaseholders, Third District's decision in Gomez is approved and the First and Fifth Districts' decisions in Forfeiture of 1993 Lexus and Baggett are disapproved as, based on the plain and unambiguous language of the Florida Contraband Forfeiture Act, the seizing agency is not required to establish the owner's actual or constructive knowledge at the seizure stage. Rather, at the seizure stage, the agency is required to establish only that there is probably cause to believe that the property was being employed or likely to be employed in criminal activity, and establishing the owner's actual or constructive knowledge is not required until the forfeiture stage. Read more...
FindLaw includes summaries of all Supreme and Appellate Court slip opinions posted on the official Illinois Courts site. FindLaw summaries include opinions that have not yet been released for publication and may be subject to modification, correction or withdrawal. Check the Illinois Courts site to determine if a specific opinion has been released before relying on that case as precedent.


Feedback
We value your comments! Please take a moment to tell us what you think by sending us an e-mail.
Subscription Information
Click here to subscribe to a FindLaw Newsletter. To unsubscribe, click here.
Advertising Information
For more information about advertising in FindLaw Newsletters, click here.