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Litigation Cases

June 4, 2010 FindLaw.com Weekly Litigation Newsletter
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Table of Contents

LITIGATION CASES

  • Tiara Condo. Assoc., Inc. v. Marsh & McLennan Cos.
  • Vellejo v. Santini-Padilla
  • Sheinberg v. Sorensen
  • Official Comm. of Unsecured Creditors of Allegheny Health, Educ. & Research Found. v. Price WaterhouseCoopers, LLP
  • Gagnon v. United Technisource Inc.
  • Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter
  • Lucky United Properties Inv., Inc. v. Lee
  • Garcia v. Dep't of Motor Vehicles
  • Scalzo v. Am. Express Co.
  • Nattah v. Bush
  • Shaw v. Marriott Int'l., Inc.
  • Leviton Mfg. Co., Inc. v. Universal Sec. Instruments, Inc.
  • Miccosukee Tribe of Indians v. Kraus-Anderson Constr. Co.
  • US v. Lall
  • Bank of N.Y. v. First Millennium, Inc.
  • US v. Ashley
  • In re: Jordan
  • Valencia v. Smyth
  • National Air Traffic Controllers Assn. v. Fed'l Serv. Impasses Panel
  • Moses v. Howard Univ. Hosp.
  • Porter v. Shah
  • Brooks v. Dist. Hosp. Ptnrs., L.P.
  • Samantar v. Yousuf
  • Levin v. Commerce Energy, Inc.
  • Alabama v. N. Carolina
  • Rule v. Fort Dodge Animal Health, Inc.
  • Harris v. City of N.Y.
  • L-3 Comms. Corp. v. OSI Sys., Inc.
  • In re: Grossman's Inc.
  • Plouffe v. Ligon
  • Wells Dairy, Inc. v. Food Movers Int'l., Inc.
  • Lackawanna Chapter of the Ry. & Locomotive Historical Soc'y, Inc. v. St. Louis County
  • US v. APW N. Am.
  • People v. Chikosi
  • Mabry v. Superior Court
  • US v. Smith
  • US v. Farley
  • US v. Pettiford
  • Castro v. US
  • In re: Velocita Worldwide Logistics Inc.
  • La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency
  • Froud v. Anadarko E&P Co.
  • Collins v. Plant Insulation Co.
  • People v. Chung
  • Miller v. State
  • Banks v. State of Florida
  • Miller v. State of Florida
  • Regal Const. Corp. v. Nat'l. Union Fire Ins. Co.
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LITIGATION CASES

U.S. 11th Circuit, May 28, 2010
Tiara Condo. Assoc., Inc. v. Marsh & McLennan Cos., No. 09-11718
In an action for breach of contract between an insurance broker and the association responsible for managing a condominium tower located on Singer Island, Florida, the Eleventh Circuit affirmed in part summary judgment for defendant, holding that plaintiff failed to offer evidence that any of the alleged errors made by defendant were intentional or made in bad faith. However, the court certifies the following question to the Florida Supreme Court: Does an insurance broker provide a "professional service" such that the insurance broker is unable to successfully assert the economic loss rule as a bar to tort claims seeking economic damages that arise from the contractual relationship between the insurance broker and the insured? Read more...

U.S. 1st Circuit, May 28, 2010
Vellejo v. Santini-Padilla, No. 08-2586
In plaintiffs' suit against the city of San Juan, Puerto Rico, its mayor, and others alleging police brutality, district court's dismissal of the federal and commonwealth-law claims with prejudice, as a sanction for persistent violations of scheduling orders and other discovery misconduct, is affirmed as plaintiffs' arguments are waived as none were timely presented to the district court and, even looking beyond the waiver, on the facts the district court did not abuse its discretion. Read more...

U.S. 3rd Circuit, May 28, 2010
Sheinberg v. Sorensen, No. 08-4148
In plaintiffs' action against companies affiliated with their now bankrupt, former employer, alleging violations of the Fair Labor Standards Act and other claims, district court's denial of plaintiffs' motion to recertify the case as a class action is vacated and remanded as the district court not only failed to follow Rule 23(g) but also failed to apply the alternative standard it identified for determining the adequacy of counsel to the facts before it. Read more...



U.S. 3rd Circuit, May 28, 2010
Official Comm. of Unsecured Creditors of Allegheny Health, Educ. & Research Found. v. Price WaterhouseCoopers, LLP, No. 07-1397
In a now bankrupt nonprofit company's committee's action against a financial auditing company for breach of contract, professional negligence, and aiding and abetting a breach of fiduciary duty, district court's grant of the defendant's motion for summary judgment is remanded as Pennsylvania law requires an inquiry into whether the third party dealt with the principal in good faith. Read more...

U.S. 5th Circuit, May 28, 2010
Gagnon v. United Technisource Inc., No. 09-20098
In an action under the Fair Labor Standards Act (FLSA) based on defendants' failure to increase plaintiff's "per diem" hourly rate, judgment for plaintiff is affirmed in part where: 1) when, as here, the amount of per diem varies with the amount of hours worked, the per diem payments are part of the regular rate in their entirety; 2) there was no clear error in the district court's finding that the violation was willful; and 3) in paying the per diem, defendant did not pay plaintiff any additional sums that could be characterized as advanced or inappropriate amounts subject to an offset against the overtime owed to him. However, the judgment is vacated in part where the district court needed to provide additional explanation for its awards and with specific instructions to include time spent on this appeal in determining the amount of attorney's fees. Read more...

U.S. 5th Circuit, May 28, 2010
Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter, No. 09-20268
In an action against the individual owner of a corporation seeking to pierce the corporate veil based on common law fraud and fraudulent inducement, dismissal of the complaint is affirmed where: 1) plaintiff did not plead that defendant presented any detailed, corroborating information, facts or figures to support the company's financial statement that might entice a reasonable person to attach importance to the statement; and 2) piercing the corporate veil was not a separate cause of action, but a method to impose personal liability on shareholders and corporate officers who would otherwise be shielded from liability for corporate debts. Read more...

California Appellate Districts, May 28, 2010
Lucky United Properties Inv., Inc. v. Lee, No. A124965
Trial court's grant of defendants' motion to compel plaintiff's attorney to acknowledge the satisfaction of a prior order for attorney's fees and costs and denying in part the attorney's motion for other attorney's fees and costs incurred in connection with his successful motion to strike, arising from an underlying suit involving a contract dispute over purchase of real property, is reversed where: 1) trial court erred in denying the attorney's request for attorney fees as the judgment was not fully satisfied by the time the attorney brought his motion for attorney fees incurred in connection with the abstract of judgment and lien notices; 2) the trial court erred in denying the attorney's memorandum of costs; and 3) the trial court erred in granting defendant's motion for satisfaction of judgment under section 724.050. Read more...

California Appellate Districts, May 28, 2010
Garcia v. Dep't of Motor Vehicles, No. A126130
In plaintiff's petition for writ of administrative mandamus, seeking an order directing the DMV to set aside the suspension of his driving privileges, trial court's denial of the petition is affirmed as the trial court did not err in concluding that plaintiff's change of mind regarding a blood test and his eventual consensual submission to such a test did not obviate the consequences of defendant's initial refusal and failure to complete the breath test. Read more...

California Appellate Districts, May 28, 2010
Scalzo v. Am. Express Co., No. B213636
In plaintiff's action for invasion of privacy, violation of California Financial Information Privacy Act, and other claims, trial court's grant of two special motions to strike is affirmed in part, reversed in part and remanded where: 1) trial court's grant of defendant's special motion to strike is reversed as plaintiff's evidentiary support is sufficient to establish the requisite prima facie showing, and defendant has failed to establish as a matter of law that plaintiff cannot succeed on the merits showing that the claimed illegal acts occurred and caused damage unrelated to the underlying litigation; and 2) trial court's grant of the remaining defendants' special motion to strike is affirmed. Read more...

U.S. D.C. Circuit Court of Appeals, May 28, 2010
Nattah v. Bush, No. 08-5119
In an action claiming that the U.S. military abducted plaintiff into slavery and forced him to serve on the front lines in Iraq, dismissal of the complaint is affirmed in part where the Virginia statute of limitations barred plaintiff's fraud claim. However, the order is vacated in part where: 1) sovereign immunity did not protect the Secretary of Defense from plaintiff's non-monetary claims; and 2) even assuming plaintiff was an at-will employee, defendant might nonetheless be obligated to provide promised benefits. Read more...

U.S. D.C. Circuit Court of Appeals, May 28, 2010
Shaw v. Marriott Int'l., Inc., No. 08-7142
In an action under the District of Columbia consumer protection statute to challenge the pricing practices of Marriott's Russian hotels, summary judgment for defendant is affirmed in part where the District of Columbia had an insufficient interest in the dispute for its law to apply. However, the judgment is reversed in part where plaintiffs proffered evidence that Marriott was responsible for their loss because it exercised some control over the franchised hotels at issue, including capping the rates they charge for rooms. Read more...

U.S. Fed. Circuit Court of Appeals, May 28, 2010
Leviton Mfg. Co., Inc. v. Universal Sec. Instruments, Inc. , No. 09-1421
In a patent infringement suit, district court's award of attorney fees and costs to plaintiff based on inequitable conduct and vexatious litigation is vacated and remanded where: 1) genuine issues of material fact exist that preclude summary judgment for inequitable conduct; and 2) the district court clearly erred by finding that defendant engaged in vexatious litigation by raising frivolous work-product objections. Read more...

U.S. 11th Circuit, June 01, 2010
Miccosukee Tribe of Indians v. Kraus-Anderson Constr. Co., No. 07-13039
In an action by an Indian tribe seeking to enforce a judgment in a breach of contract action against defendant, summary judgment for defendant is reversed where the district court lacked subject matter jurisdiction because: 1) federal common law did not create jurisdiction pursuant to 28 U.S.C. section 1331; and 2) the case was not a challenge regarding the reach of Indian power and subject matter jurisdiction did not exist on that basis. Read more...

U.S. 11th Circuit, June 01, 2010
US v. Lall, No. 09-10794
Defendant's convictions for conspiracy to commit credit card fraud, possession of device-making equipment with intent to defraud, and aggravated identity theft are reversed where: 1) defendant did not make a "voluntary, knowing and intelligent waiver of his privilege against self-incrimination and his right to counsel"; 2) in obtaining defendant's confession, an officer explicitly assured defendant that anything he said would not be used to prosecute him; and 3) defendant's subsequent confession was similarly the product of improper promises of non-prosecution and thus not voluntary. Read more...

U.S. 2nd Circuit, June 01, 2010
Bank of N.Y. v. First Millennium, Inc., No. 09-1628
In an action asserting competing claims to the proceeds of a failed securitization of credit card debt, summary judgment for the Bank of New York and against the Federal Deposit Insurance Corporation (FDIC) is affirmed where: 1) the FDIC adduced no evidence to support its contention that the amount due on the notes at their maturity was an "invested amount" by the notes' terms, rather than the unpaid principal amount; 2) the FDIC failed to identify any other provision of the transaction documents that supported its contentions that the amount due on the notes was anything other than their entire unpaid principal; 3) issue preclusion did not apply because a prior action did not consider whether the notes at issue were full recourse or limited recourse obligations of the issuer; and 4) since the Bank of New York asserted no claims against the FDIC as receiver for the failed bank, it was not bound by the jurisdictional limitations or other procedural requirements of 12 U.S.C. s! ection 1821(d). Read more...

U.S. 4th Circuit, June 01, 2010
US v. Ashley, No. 08-4015
Conviction of defendant on federal charges related to his efforts to have a government informant and witness murdered is affirmed where: 1) the evidence satisfied constitutional requirements; and 2) a district court does not constructively amend an indictment by giving a Pinkerton instruction when Pinkerton liability has not been charged by the grand jury. Read more...

U.S. 9th Circuit, June 01, 2010
In re: Jordan, No. 09-72379
In a petition for a writ of mandamus ordering the district court to direct the government to return motorcycles seized in connection with a criminal investigation, the petition is denied where the district court did not clear err in determining that, when the government has failed to provide notice of a seizure in accordance with 18 U.S.C. section 983(a)(1)(A), section 983(a)(1)(F) does not compel the government to return seized property before initiating a judicial forfeiture proceeding. Read more...

California Appellate Districts, June 01, 2010
Valencia v. Smyth, No. B216753
In plaintiffs' suit against real estate agents, title companies, and others, arising from a real estate transaction, trial court's judgment is affirmed where: 1) based on the plain meaning of the arbitration provision, the parties agreed that the California Arbitration Act (CAA), not the Federal Arbitration Act (FAA), would govern the arbitration; and 2) trial court did not abuse its discretion in denying arbitration given the possibility of conflicting rulings if the claims against defendant-agents had been arbitrated and the claims against the remaining defendants had been adjudicated in court. Read more...

U.S. D.C. Circuit Court of Appeals, June 01, 2010
National Air Traffic Controllers Assn. v. Fed'l Serv. Impasses Panel, No. 08-5479
In an action by an air traffic controllers' union against the Federal Service Impasses Panel (FSIP), the Federal Aviation Administration (FAA), and the Federal Labor Relations Authority, seeking both a declaratory judgment that the FSIP had jurisdiction over an impasse involving the FAA and an injunction requiring the FSIP to assert jurisdiction over all such pending and future impasses, dismissal of the action for lack of subject matter jurisdiction is affirmed in part where none of the relief sought by the union could be obtained from the FAA. However, the dismissal is reversed in part where, because the union did not seek review of a decision of either the FSIP or the General Counsel, the district court erred in dismissing the case for lack of jurisdiction. Read more...

U.S. D.C. Circuit Court of Appeals, June 01, 2010
Moses v. Howard Univ. Hosp., No. 08-7087
In an action against a hospital claiming retaliation in violation of Title VII of the Civil Rights Act, summary judgment for defendant is affirmed where, even after he had filed for bankruptcy, plaintiff continued to hold himself out before the district court as a valid plaintiff, a position "clearly inconsistent" with his pursuit of relief in bankruptcy. Read more...

U.S. D.C. Circuit Court of Appeals, June 01, 2010
Porter v. Shah, No. 09-5167
In an action alleging various acts of retaliation and race and sex discrimination by plaintiff's employer, the United States Agency for International Development, summary judgment for defendant is affirmed in part where: 1) plaintiff failed to rebut defendant's legitimate reasons for not promoting him to two positions; 2) res judicata barred certain of plaintiff's claims; and 3) defendant's allegedly retaliatory performance assessment did not constitute a materially adverse employment action. However, the judgment is reversed in part where: 1) a reasonable juror could conclude that plaintiff was substantially more qualified for the position of Deputy Chief in defendant's Personnel Operations Division than the person selected to fill it; and 2) defendant's unfavorable interim performance assessment of plaintiff was a materially adverse employment action. Read more...

U.S. D.C. Circuit Court of Appeals, June 01, 2010
Brooks v. Dist. Hosp. Ptnrs., L.P., No. 09-7036
In a Title VII employment discrimination action, dismissal of the action is reversed where: 1) because plaintiffs' claims were separated under Fed. R. Civ. P. 42(b) and because the dismissal of appellants' claims constituted the adjudication of the rights and liabilities of fewer than all the parties in a multiple party case, the dismissal was eligible for Fed. R. Civ. P. 54(b) certification; and 2) plaintiffs properly invoked the single-filing exception to the administrative exhaustion requirement to join a preexisting lawsuit. Read more...

U.S. Supreme Court, June 01, 2010
Samantar v. Yousuf, No. 08–1555
In an action by persons who were persecuted by the Somali government during the 1980s, alleging that defendant, who then held high-level government positions in Somalia, exercised command and control over the military forces committing the abuses; that he knew or should have known of these acts; and that he aided and abetted in their commission, the Fourth Circuit's reversal of the dismissal of the action is affirmed where the Foreign Sovereign Immunities Act (FSIA) did not govern petitioner's claim of immunity because there was nothing to suggest that "foreign state" in the FSIA should be read to include an official acting on behalf of that state. Read more...

U.S. Supreme Court, June 01, 2010
Levin v. Commerce Energy, Inc., No. 09–223
In an action by independent natural gas marketers (IMs) who offered to sell natural gas to Ohio consumers against the Ohio Tax Commissioner (Commissioner), alleging discriminatory taxation of IMs and their patrons in violation of the Commerce and Equal Protection Clauses, the Sixth Circuit's reversal of the district court's dismissal of the action is reversed where, under the comity doctrine, a taxpayer’s complaint of allegedly discriminatory state taxation, even when framed as a request to increase a competitor’s tax burden, must proceed originally in state court. Read more...

U.S. Supreme Court, June 01, 2010
Alabama v. N. Carolina, No. 132
In an action by Florida and Tennessee against North Carolina seeking monetary sanctions under the terms of the Southeast Interstate Low-Level Radioactive Waste Management Compact (Compact), which was entered into by Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia, a Special Master's recommendations are adopted and exceptions overruled where: 1) the terms of the Compact did not authorize the Commission administering the Compact to impose monetary sanctions against North Carolina; 2) North Carolina did not breach its contractual obligation to take "appropriate steps" toward the issuance of a waste disposal license; and 3) under Arizona v. California, 460 U.S. 605 (1983), the Commission's claims were not barred by sovereign immunity so long as the Commission asserted the same claims and sought the same relief as the plaintiff States. Read more...

U.S. 1st Circuit, June 02, 2010
Rule v. Fort Dodge Animal Health, Inc. , No. 09-1364
In plaintiff's putative class action suit against Weyth Corporation and its subsidiary, alleging that defendants had sold a heartworm medication for dogs without disclosing safety concerns revealed in initial testing and in subsequent use, a grant of defendants' motion to dismiss for failure to sate a claim is affirmed where: 1) recovery generally is not available under the warranty of merchantability where the defect that made the product unfit caused no injury to the claimant and the threat is now gone and nothing now possessed by the claimant has been lessened in value; and 2) plaintiff has suffered no economic injuries under 93A section 4. Read more...

U.S. 2nd Circuit, June 02, 2010
Harris v. City of N.Y., No. 09-0081
In plaintiff's appeal from the district court's order revoking his in forma pauperis status and dismissing his complaint, the order is affirmed in part where: 1) 28 U.S.C. section 1915(g) applies to a plaintiff who has been released from prison subsequent to the filing of his complaint; 2) a court may dismiss a complaint pursuant to section 1915(g) even if the defendants did not raise that provision in the pleadings; 3) a court may rely on docket sheet entries of prior dismissals in order to determine whether section 1915(g) applies; and 4) plaintiff did not qualify for the imminent danger exception under section 1915(g). However, the order is vacated in part to permit the district court to issue a new order of dismissal permitting plaintiff to apply for in forma pauperis status as a non-incarcerated plaintiff if he chooses to refile his complaint. Read more...

U.S. 2nd Circuit, June 02, 2010
L-3 Comms. Corp. v. OSI Sys., Inc., No. 09-2292
In defendant's appeal from the district court's order taxing to defendant, under Fed. R. App. P. 39(e), plaintiff's costs of obtaining a letter of credit to secure the judgment on appeal, the order is affirmed where the court of appeals' order awarding costs to plaintiff without limitation pursuant to Rule 39(a)(4) entitled plaintiff to seek from the district court any and all permissible items of appellate costs properly taxed by that court pursuant to Rule 39(e). Read more...

U.S. 3rd Circuit, June 02, 2010
In re: Grossman's Inc. , No. 09-1563
In Chapter 11 proceedings, district court's affirmance of a bankruptcy court's holding that the plaintiffs' tort claims, arising from exposure to asbestos contained in home improvement products sold by the debtor, were not "claims" under 11 U.S.C. section 101(5) is reversed where: 1) the Frenville accrual test is overruled as it imposes too narrow an interpretation of a "claim" under the Bankruptcy Code; 2) a "claim" arises when an individual is exposed pre-petition to a product or other conduct giving rise to an injury, which underlies a "right to payment" under the Bankruptcy Code, and here, plaintiffs' claims arose sometime in 1977, the date the plaintiff alleged that debtor's product exposed her to asbestos; and 3) on remand, whether a particular claim has been discharged by a plan of reorganization depends on factors applicable to the particular case and is best determined by the appropriate bankruptcy court or the district court. Read more...

U.S. 8th Circuit, June 02, 2010
Plouffe v. Ligon, No. 08-3996
In an action seeking to enjoin attorney disciplinary proceedings that defendant initiated against plaintiff, dismissal of the action is affirmed where the district court properly abstained under Younger because: 1) the disciplinary proceedings against plaintiff implicated important state interests; 2) the attorney disciplinary proceedings provided plaintiff an adequate opportunity to raise his constitutional claims; and 3) Arkansas Rule of Professional Conduct 8.4(e) was not "flagrantly and patently" unconstitutional "in whatever manner and against whomever an effort might be made to apply it." Read more...

U.S. 8th Circuit, June 02, 2010
Wells Dairy, Inc. v. Food Movers Int'l., Inc., No. 09-1628
In a breach of contract action alleging that defendant failed to pay for product it had ordered and received from plaintiff, judgment for plaintiff is affirmed where the district court had personal jurisdiction over defendant because defendant purposefully availed itself of the privilege of conducting activities within Iowa when it solicited an Iowa company for business, sought to purchase the Iowa company's products on credit provided by the Iowa company, negotiated and fulfilled the "customer pick up" delivery term, and entered into more than 100 transactions over the course of two years, during which it relied on the Iowa company for customer support. Read more...

U.S. 8th Circuit, June 02, 2010
Lackawanna Chapter of the Ry. & Locomotive Historical Soc'y, Inc. v. St. Louis County, No. 09-2487
In an action for replevin of the historic locomotive "No. 952," currently on display at the Museum of Transportation (the Museum) in St. Louis, summary judgment for defendant is affirmed where the statute of limitations barred the replevin action because undisputed evidence demonstrated that in 1995 and 1996 defendant took actions inconsistent with the bailment. Read more...

U.S. 9th Circuit, June 02, 2010
US v. APW N. Am., No. 08-55996
In an appeal from the denial of a motion to intervene in an action filed by the EPA under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the order is reversed where, under CERCLA, a non-settling potentially responsible party (PRP) may intervene in litigation to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from the settling PRP. Read more...

California Appellate Districts, June 02, 2010
People v. Chikosi, No. G041014
Conviction of defendant for driving under the influence of alcohol, driving with a blood-alcohol level of .08% or more, and evading the police, is affirmed as the trial court did not err in allowing witnesses to rely on statements contained in accuracy records in forming their opinions, as the statements contained in the accuracy records were nontestimonial in nature. However, the sentence is modified to stay defendant's sentence on a count for driving with a blood alcohol level of .08 percent or more. Read more...

California Appellate Districts, June 02, 2010
Mabry v. Superior Court, No. G042911
In homeowners' petition for a writ of mandate challenging an order of the trial court, allowing for foreclosure to proceed on their home, is granted in part and remanded to the trial court to determine whether or not the lender complied with Civil Code section 2923.5. To the extent that the trial court's order precludes the assertion of any class action claims, the petition is denied. Read more...

U.S. 10th Circuit, June 03, 2010
US v. Smith, No. 09-2040
Defendant's conviction and sentence for sexual assault are affirmed where: 1) nothing suggested that defendant was intoxicated or otherwise incapable of sufficient comprehension, when the police advised him of his Miranda rights or when he signed the form acknowledging that he had been apprised of, understood, and waived those rights; 2) the presentment rule did not support suppressing defendant's confession; 3) the victim's statement that she had been raped constituted an excited utterance; and 4) the conditions of defendant's supervised release were linked to the offense and no broader than necessary to rehabilitate the defendant and protect the public. Read more...

U.S. 11th Circuit, June 03, 2010
US v. Farley, No. 08-15882
Defendant's conviction and sentence for knowingly crossing "a State line" with intent to engage in a sexual act with a person under the age of twelve is affirmed where: 1) the First Amendment did not protect his sexually explicit conversations with an undercover officer who pretended to be offering her daughter for sex; 2) defendant's conviction turned on the criminal intent with which he acted, not on the existence of an actual child; 3) even if the FBI did trick defendant into thinking their investigation was about terrorism, there was no evidence they made any promise that questioning would be limited to that subject, or gave him any assurance that statements relating to other crimes would not be used against him; and 4) there was evidence sufficient for a reasonable factfinder to find guilt beyond a reasonable doubt. However, defendant's sentence is vacated where the thirty-year statutory mandatory minimum sentence imposed on defendant was not constitutionally dispropor! tionate. Read more...

U.S. 4th Circuit, June 03, 2010
US v. Pettiford, No. 09-4119
In defendant's petition for post-conviction relief from an enhanced sentence of 188 months' imprisonment for his felonious firearm possession conviction, district court's grant of the petition on the ground that two of the five convictions used to support his sentence were later vacated, is reversed and remanded where: 1) the district court erred in granting the relief because the court failed to hold defendant to his burden of showing that the vacated sentences rendered his federal sentence unlawful on one of the specified grounds; 2) defendant procedurally defaulted on his claim that the district court improperly enhanced his sentence under the ACCA because he failed to challenge his remaining predicate sentences at sentencing or on direct appeal; and 3) actual innocence applies in the context of habitual offender provisions only where the challenge to eligibility stems from actual innocence of the predicate crimes. Read more...

U.S. 5th Circuit, June 03, 2010
Castro v. US, No. 07-40416
In an action under the Federal Tort Claims Act (FTCA) alleging that the government's negligence caused the wrongful deportation of plaintiff's son, dismissal of the action is affirmed where the government was protected from suit by 28 U.S.C. section 2680(a), the discretionary function exception of the FTCA. Read more...

U.S. 5th Circuit, June 03, 2010
In re: Velocita Worldwide Logistics Inc., No. 09-10416
In an appeal from the district court's judgment affirming the bankruptcy court and declining to imply a right of contribution among defendants who agreed to be jointly and individually liable for a payment as part of the settlement agreement for a state tort action, the order is affirmed where the obligations in the instant settlement agreement were not analogous to the obligations in surety and guaranty agreements, the contractual arrangements in which Texas courts had allowed contribution claims against co-obligors. Read more...

U.S. 5th Circuit, June 03, 2010
La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency, No. 09-40948
In a case involving the Federal Emergency Management Agency's (FEMA) administration of the home repair provisions of Section 408 of the Stafford Act, the district court's preliminary injunction requiring FEMA to publish standards that comply with 42 U.S.C. section 5174(j) is vacated where plaintiffs merely complained that the regulations lacked specificity, not that FEMA wholly abdicated its responsibility to promulgate regulations, or promulgated regulations that directly contravened the statutory language. Read more...

U.S. 8th Circuit, June 03, 2010
Froud v. Anadarko E&P Co., No. 10-8010
In plaintiffs' request for permission to appeal from an order of the district court denying a motion to remand their class action, the request is denied where, while full briefing of the merits may not be necessary to allow the court to exercise its discretion to permit the appeal under Fed. R. App. P. 5, petitioners did not provide any discussion of the merits or the nature or importance of the issues presented by their requested appeal. Read more...

California Appellate Districts, June 03, 2010
Collins v. Plant Insulation Co. , No. A124268
In plaintiffs' suit for the death of a husband and father caused by mesothelioma as a result of asbestos exposure while working as a welder at a shipyard, trial court's grant of plaintiffs' motion for a directed verdict regarding the Navy is reversed and remanded where: 1) the trial court erred in excluding the Navy from the list of entities as to which the jury could apportion fault pursuant to Proposition 51; and 2) on remand, retrial is limited to apportionment of fault among the Navy and defendants already found liable by the jury. Read more...

California Appellate Districts, June 03, 2010
People v. Chung, No. B212210
In a conviction of defendant for animal cruelty, trial court's denial of motion to suppress evidence of an injured dog on the patio of defendant's residence and a dead dog in the freezer is affirmed as exigent circumstances permitted warrantless entry of defendant's residence to aid a live animal police officers reasonably believed was being abused in violation of section 597(a). Read more...

Supreme Court of Delaware, June 03, 2010
Miller v. State, No. 655, 2009
Defendant's convictions for driving under the influence of alcohol and for following a motor vehicle too closely are affirmed where the totality of the circumstances created probable cause for the police to administer an intoxilizer test to defendant. Read more...

Supreme Court of Florida, June 03, 2010
Banks v. State of Florida, No. SC08-1741
Defendant's conviction for first-degree murder and sentence of death are affirmed as none of defendant's claims, including claims that the trial court erred in denying a cause challenge to a prospective juror and in allowing the state to strike two African-American prospective jurors, warrant relief. Read more...

Supreme Court of Florida, June 03, 2010
Miller v. State of Florida, No. SC08-287
Defendant's convictions for first degree murder, attempted first-degree murder, burglary and attempted robbery and a death sentence are affirmed in its entirety as, inter alia: 1) the trial court did not abuse its discretion in excusing a prospective juror for cause; 2) the trial court did not err when it instructed the jury that it could consider the avoid arrest aggravating circumstance; 3) the trial court properly denied a motion to suppress because defendant was fully informed of his right to have counsel appointed; and 4) defendant's claim that Apprendi requires that a unanimous twelve-person jury make the findings of fact to determine eligibility for the death penalty is rejected. Read more...

New York Court of Appeals, June 03, 2010
Regal Const. Corp. v. Nat'l. Union Fire Ins. Co., No. 109
In an action by an insurer seeking a declaratory judgment that the general contractor on a construction project was not entitled to coverage for injuries sustained by an employee of the subcontractor, judgment for defendants is affirmed where the employee's injuries arose out of the subcontractor's work and thus the contractor was entitled to indemnification under the policy. Read more...


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