Corporate Counsel Center Litigation Newsletter

U.S. 4th Circuit, May 16, 2008
U.S. ex rel Wilson v. Kellogg Brown & Root, Inc., No. 07-1516
In a qui tam action brought under the False Claims Act, denial of a motion for leave to file an amended complaint and a decision to stay employment claims pending arbitration are affirmed where: 1) a form submitted to the government does not meet the requirements of an objective falsehood under the FCA since it is based on the interpretation of a contract clause; 2) there was no fraudulent inducement since the form submitted to the government was not key in inducing the government to award work to defendant; 3) a third amended complaint failed to plead with the particularity required by the Federal Rules of Civil Procedure; 4) relator's claims of retaliatory termination fell within the arbitration clause of their employment contract; 5) the FCA allows for arbitration of termination claims; and 6) the arbitration agreements were enforceable under Texas law. Read more...

U.S. 5th Circuit, May 16, 2008
In re: Bayhi, No. 06-30196
A bankruptcy proceeding that vacated a state court judgment, enjoined further state court litigation, and held appellant in contempt is reversed, the order of the bankruptcy court and district court vacated and the case remanded where: 1) appellant did not have to assert his prospective contribution rights in appellee's bankruptcy proceedings since they are both responsible for a per se non-dischargeable debt; 2) the bankruptcy court exceeded its authority when it vacated the relevant state court judgments and enjoined the commencement of any future collection attempts by the appellant; and 3) the court abused its discretion when it held the appellant in contempt. Read more...

U.S. 5th Circuit, May 16, 2008
U.S. v. Smith, No. 07-60385
A sentence in a prosecution for wire fraud, identity theft, identification and authentication fraud, and possession and use of counterfeit and forged bank checks with intent to defraud is affirmed over claims of error regarding: 1) the fact that the plea agreement did not cover restitution, nor was restitution mentioned in the Rule 11 colloquy or in the appeal waiver; and 2) the lack of live testimony or a sworn affidavit from the victim at the sentencing hearing regarding the total amount of loss. Read more...

U.S. 6th Circuit, May 16, 2008
Bailey v. USF Holland, Inc., No. 07-5304
Judgment for plaintiffs in an action brought under Title VII and the Tennessee Human Rights Act is affirmed where: 1) plaintiffs were able to establish their hostile work environment claim; 2) defendant did not establish that they took reasonable care to prevent and correct the harassing behavior; and 3) the award to plaintiffs was not excessive since defendant failed to show that the court's computation was erroneous. Read more...

U.S. 6th Circuit, May 16, 2008
Brittingham v. GMC, No. 06-3114
In a negligence and intentional misconduct case, summary judgment for defendants and denial of a motion to remand the case to state court is vacated and remanded where: 1) there was no federal preemption under section 301 of the Labor Management Relations Act because the collective bargaining agreement (CBA) did not impose a duty on defendant to conduct pre-employment examinations and disclose information; and 2) the district court did not have subject matter jurisdiction over the action since the plaintiff's claims were rooted in state law independent of the CBA. Read more...

U.S. 7th Circuit, May 16, 2008
Dargis v. Sheahan, No. 05-2575
In an action under the Americans with Disabilities Act and other state laws, dismissal of the claims based on a refusal to exercise supplemental jurisdiction, as well as an order directing defendant to hold a hearing on plaintiff's employment status, are affirmed where: 1) plaintiff failed to establish a prima facie case under the ADA since he could not show that he could perform the essential functions required by the position; 2) an order for a hearing is a proper remedy for a due process violation since awarding damages might produce a windfall for plaintiff; 3) a refusal to exercise supplemental jurisdiction over state law claims was proper; and 4) a motion to alter or amend the judgment was properly denied since there is no basis to do so. Read more...

U.S. 8th Circuit, May 16, 2008
Fresenius Med. Care v. US, No. 07-2299
In an ongoing investigation of hemodialysis provider's allegedly improper health care billing practices, denial of its motion to quash or modify subpoenas is affirmed where: 1) a "cold comfort" letter did not immunize it from further investigations; and 2) based on the record, it was not possible to determine which subpoenaed documents were already in the government's possession. Read more...

U.S. 9th Circuit, May 16, 2008
US v. Perez, No. 07-10289
A person on supervised release had a right to cross-examine the laboratory technician who tested a urine sample containing an illegal drug, where: 1) a test report itself stated the sample was "dilute"; 2) the evidence presented showed the person on supervised release did not have an opportunity herself to dilute nor add a substance to the sample; and 3) the result of the urinalysis was critical to support a finding that the person on supervised release had possessed or used illegal drugs. The circuit court emphasizes that it does not hold that a releasee always has a right to cross-examine the technician who tested a urine sample. Read more...

U.S. 9th Circuit, May 16, 2008
Adkins v. Mireles, No. 06-56005
In an appeal arising out of a union-negotiated collective bargaining agreement governing employees of Lucky Stores' warehouse, partial summary judgment and jury trial in favor of defendants-union and officers is affirmed where: 1) the district court did not err in holding that federal law preempted breach of contract, breach of covenant of good faith and fair dealing, misrepresentation, and intentional infliction of emotional distress claims because each implicated the duty of fair representation; 2) it did not err in finding that the Labor Management Relations Act (LMRA) section 301, preempted plaintiffs' fraud and deceit claim, because the claim cannot be maintained without the court interpreting the provisions of the CBA; 3) RICO claims were preempted under case precedent because plaintiffs alleged an unfair labor practice which is prohibited under the NLRA; and 4) plaintiffs failed to perfect their challenge to an evidentiary decision to exclude evidence regarding a teamster jacket-burning incident. Read more...

California Appellate Districts, May 16, 2008
Los Angels County Dep't of Children & Family Serv. v. Superior Court (Stacey P.), No. B204618
In a case primarily addressing whether a juvenile court may dismiss a dependency petition, sua sponte and with no advance notice, at the conclusion of a detention hearing, the court of appeals rules that, barring exceptional and exigent circumstances not present in the underlying case, it may not. Read more...

U.S. D.C. Circuit Court of Appeals, May 16, 2008
U.S. v. Wheeler, No. 05-3038
A conviction for using, carrying, and possessing a firearm in violation of 18 U.S.C. section 924(c)(1) is affirmed over claims of error regarding: 1) the sufficiency of the evidence to support the conviction; and 2) an instruction to the jury regarding the use of a firearm in relation to the underlying crime. Read more...

Supreme Court of Texas, May 16, 2008
In re McAllen Med. Ctr., Inc., No. 05-0892
In the context of a Texas requirement that plaintiffs must support health care claims with expert reports shortly after filing, the Texas Supreme Court rules that, for purposes of challenging the adequacy of the requisite reports, mandamus relief is available when the purposes of the health care statute would otherwise be defeated. Read more...

Supreme Court of Texas, May 16, 2008
In re Citigroup Global Markets, Inc., No. 06-0886
In a suit over losses attributed to relators' research reports, petition for mandamus relief from a ruling finding that relators had waived arbitration is conditionally granted where relators did not expressly or impliedly waived their rights to arbitration by transferring their case from state to federal court. Read more...

Supreme Court of Texas, May 16, 2008
Higgins v. Randall County Sheriff's Office, No. 06-0917
In the context of Texas Rule of Appellate Procedure 20.1, which governs the procedures to establish an appellant's indigence, the Supreme Court of Texas rules that the appeal of a party asserting indigence may proceed when the affidavit lacks complete information on all of the items enumerated in subsection (b), but no contest to the affidavit is filed. Read more...

U.S. 10th Circuit, May 19, 2008
N. Natural Gas Co. v. Nash Oil , No. 07-3104
In an action for, inter alia, common law conversion and unjust enrichment arising out of alleged migration of plaintiff's stored gas to defendant's gas wells, summary judgment for defendant is affirmed where: 1) the unjust enrichment and conversion claims were time barred the statute of limitations; 2) the Kansas Supreme Court would not recognize the continuing-tort exception to the statute of limitations for those claims; 3) a state law merely abolishes the rule of capture and does not set up an independent cause of action; and 4) an injector may conduct tests only on wells of adjoining property owners. Read more...

U.S. 11th Circuit, May 19, 2008
US v. Young, No. 07-14780
Sentence enhancement upon conviction for a Hobbs Act robbery and brandishing a firearm in relation to a crime of violence is affirmed where the district court did not err in determining that a conviction for violating Florida Statute section 784.085, "Battery of a Child by Throwing, Tossing, Projecting, or Expelling Certain Fluids or Materials," is a crime of violence for purposes of the career offender enhancement. Read more...

U.S. 6th Circuit, May 19, 2008
US v. Heath, No. 07-1215
A conviction for tax evasion is affirmed over claims of error regarding: 1) the failure of the district court to properly state a jury charge by omitting that the government had to prove that a "substantial" amount of tax was due; 2) an instruction to the jury that they did not have to find defendant's conduct "willful;" 3) the phrase "Void where prohibited by law" and a jury instruction on whether a document with such a mark qualified as a fictitious financial instrument; and 4) a denial for a downward departure at sentencing stemming from a misapplication of Michigan's definition of legal insanity. Read more...

U.S. 6th Circuit, May 19, 2008
Giant Eagle, Inc. v. Phar-Mor, Inc., No. 06-4142, 06-4188
In a bankruptcy proceeding, an order disallowing appellant's claim for future-rent damages arising from bankrupt lessee's rejection of a lease for personal property is reversed and remanded where the proper calculation of damages was to calculate the benefit of the bargain as of the date of the filing petition, and from there, determine actual damages based on state law by reducing the benefit of the bargain calculation by the amount actually or reasonably mitigated. An order granting appellant administrative expenses in the form of post-petition rent payments is affirmed where there was no abuse of discretion in requiring appellee to pay expenses from the date of appellee's filing of the petition to the date of the rejection of the lease. Read more...

U.S. 7th Circuit, May 19, 2008
Aux Sable Liquid Products v. Murphy, No. 07-1402
In an appeal involving the scope of the Surface Transportation Assistance Act (STAA) preemption after defendant limited access to Interstate 57 on its local road to vehicles weighing less than 14 tons, summary judgment for plaintiff is affirmed where: 1) section 31114 of the STAA prohibits states from denying commercial vehicles "reasonable access" to and from the interstate while allowing state and local government to use their police powers over state highways and local roads so long as they do not impede "reasonable access" for commercial vehicles; and 2) although the STAA does not prohibit denying any form of access to and from the interstate, preemption occurs when reasonable access is denied. Read more...

U.S. 8th Circuit, May 19, 2008
Batiste-Davis v. Lincare, Inc., No. 06-4206
In a Title VII suit brought against a former employer alleging wrongful termination of employment, judgment for employer is affirmed where: 1) improperly admitted evidence of plaintiff-employer's prior employment discrimination suit did not have a substantial effect on the jury's verdict; and 2) evidence of past mental health treatment was properly admitted, as it was relevant to plaintiff's claim for damages for mental anguish and emotional suffering; and 3) viewing the evidence in the light most favorable to the jury verdict, the district court did not err in denying plaintiff's motion for a new trial. Read more...

U.S. 8th Circuit, May 19, 2008
US v. Hudspeth, No. 07-1632
Conviction for money laundering, conspiracy to distribute pseudoephedrine, and conspiracy to launder money is affirmed over claims of error regarding: 1) denial of a motion to suppress evidence; 2) motions for judgment of acquittal; 3) court's response to jury questions about the elements of money laundering; and 4) jury instructions on the issue of interstate commerce. Read more...

California Appellate Districts, May 19, 2008
Adair v. Stockton Unified Sch. Dist., No. C054294
In an action brought by senior-teacher plaintiffs after a school district entered into a collective bargaining agreement for a new "compressed" salary schedule which allows teachers to obtain merit increases in salary more quickly, judgment granting mandamus relief to plaintiffs is affirmed where: 1) the implementation of the salary schedule violated the uniformity requirement of Education Code section 45028; 2) no statutory exception to the uniformity requirement applied; and 3) the trial court did not exceed its powers in remedying the violation. Read more...

U.S. Supreme Court, May 19, 2008
US v. Ressam, No. 07-455
A circuit court's decision setting aside defendant's conviction on a count of carrying an explosive "during the commission of" a felony is reversed where, under a natural reading of 18 U.S.C. section 844(h)(2), since defendant was carrying explosives when he feloniously made a false statement to a customs official, he was carrying them "during" the commission of that felony. Contrary to the court of appeals' ruling, there is no requirement of a relationship between possession of the item in question and the underlying felony. Read more...

U.S. 10th Circuit, May 20, 2008
Regan-Touhy v. Walgreen Co., No. 06-6242
In an action raising claims of unlawful disclosure of plaintiff's confidential medical information and emotional distress, summary judgment for defendant-Walgreen is affirmed where: 1) the court did not abuse its discretion in denying plaintiff's discovery motions and motions to compel since they were overly broad and defendant had adequately responded to most of plaintiff's requests; and 2) there was insufficient circumstantial evidence to show that an employee of defendant accessed plaintiff's medical records and disclosed her confidential health information. Read more...

U.S. 1st Circuit, May 20, 2008
US v. Ortiz-Graulau, No. 06-1768
In a criminal prosecution of adult defendant for taking sexually explicit photographs of a minor with whom he had a legal and consensual sexual relationship, conviction and sentence for possession of child pornography and exploiting a minor for the purpose of producing photographs is affirmed where: 1) despite defendant's claims that his purpose for taking those photographs was to memorialize his intimate relationship rather than to make pictures for displaying to others, the criminal statutory language requires only that a visual depiction be made, even for private use; 2) although excluding depicted minor's testimony as to facts bearing directly on specific statutory element of defendant's offense was arguably erroneous, the issue was not raised on appeal; 3) defendant's plea colloquy confirming his knowing possession of child pornography was relevant and its admission was not unduly prejudicial; and 4) defendant did not establish why a lower sentence was justifiable or why it matters in light of a concurrently running longer sentence. Read more...

U.S. 2nd Circuit, May 20, 2008
Poole v. Mukasey, No. 06-4069
Petition for rehearing of a previous decision remanding a derivative citizenship claim to the BIA is denied where: 1) under 8 U.S.C. section 1252(b)(5), the court's authority of "decide" nationality claims did not preclude a remand for further consideration by the BIA; and 2) there was no reason not to obtain the BIA's view on the merits of the citizenship claim in the underlying case. Read more...

U.S. 3rd Circuit, May 20, 2008
US v. Alston, No. 06-1559
Conviction for possession of a firearm by a convicted felon after the district court precluded defendant from offering a justification defense is affirmed where defendant did not present evidence that: 1) he was under a present threat of death or bodily harm; 2) there was a direct causal relationship between the criminal act and the avoidance of the threatened harm; or that 3) he had no reasonable legal alternative. Read more...

U.S. 6th Circuit, May 20, 2008
Sensations, Inc. v. City of Grand Rapids, No. 06-2168, 06-2508, 06-2510, 07-1504
In a suit seeking a preliminary injunction against an ordinance regulating sexually oriented businesses alleging violations of First Amendment rights, judgment on the pleadings and grant of attorney's fees for non-city defendants is affirmed as to the preliminary injunction, but reversed as to the attorneys' fees where: 1) the court did not convert defendant's motion for judgment on the pleadings into a motion for summary judgment; 2) plaintiffs were not entitled to discovery that might yield evidence disproving negative secondary effects at the local level; 3) the ordinance is constitutional since it was within the city's authority to regulate sexually oriented businesses in order to control the secondary effects of such businesses; 4) a mandatory buffer between performer and audience and a no-touching rule did not violate the right of free association; 5) an offer by private citizens to fund the defense of an ordinance, and acceptance by a local governing body, does not necessarily establish a symbiotic relationship for purposes of a section 1983 claim; and 6) for purposes of attorney's fees, the issue of the symbiotic relationship was an unresolved point of law. Read more...

U.S. 7th Circuit, May 20, 2008
LaGuerre v. Mukasey, No. 06-4164
Petition for review of an order of removal finding petitioner a deportable aggravated felon based on a conviction for battery is denied where: 1) the elements of domestic battery under Illinois law establish that it is a crime of violence subjecting him; and 2) the court lacked jurisdiction to review a claim that the BIA applied the incorrect legal standard when it determined that he did not qualify for protection under the Convention Against Torture. Read more...

U.S. 9th Circuit, May 20, 2008
Washington State Nurses Ass'n v. Nat'l Labor Relations Bd., No. 06-74917
Petition for review of a decision that hospital's ban on union buttons bearing the message "RNs Demand Safe Staffing" did not constitute an unfair labor practice in violation of the NLRA is granted where substantial evidence did not support a finding that the hospital met its burden of establishing special circumstances justifying the button ban. Read more...

U.S. 9th Circuit, May 20, 2008
Duarte v. Bardales, No. 06-56808
In proceedings arising from a petition for the return of plaintiff's children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, denial of plaintiff's motion to vacate a judgment denying her petition is reversed where: 1) the district court abused its discretion in denying the motion; and 2) equitable tolling is available under the Hague Convention and ICARA to toll the one-year filing period, and such issue is to be addressed on remand. Read more...

U.S. 9th Circuit, May 20, 2008
US v. Carpenter, No. 06-15596
In a second appeal in a dispute over the status of a road on U.S. Forest Service land in a Nevada county, denial of intervention to environmental groups, approval of a settlement of a Quiet Title Act claim, and dismissal of intervenors' cross-claims are vacated in part, reversed in part, and remanded where: 1) the district court must permit intervenors to participate as parties in advocating their position in the Quiet Title Act action; 2) thus, vacatur of the settlement was required; and 3) intervenors' cross-claims are reviewable under the APA, as they alleged that the Attorney General circumvented federal law by entering into the settlement agreement. Read more...

California Appellate Districts, May 20, 2008
Postal Instant Press, Inc. v. Kaswa Corp., No. G038270
In a case addressing the doctrine of outside reverse piercing of the corporate veil, the court of appeals rules that a third party creditor may not pierce the corporate veil to reach corporate assets to satisfy a shareholder's personal liability. Read more...

California Appellate Districts, May 20, 2008
Devonwood Condominium Owners Ass'n v. Farmers Ins. Condominium Owners Ass'n, No. A116302
In a fire insurance policy coverage dispute concerning the effects of an appraisal award issued by an appraisal panel pursuant to the policy's provisions, judgment in favor of insured is vacated and remanded where the lower court's judgment did not conform to the appraisal award upon which it was based, in violation of Code of Civil Procedure section 1287.4. Read more...

California Appellate Districts, May 20, 2008
People v. Wardell, No. H031285
Following retrial after defendant's original convictions were reversed on appeal, a conviction for second-degree robbery and felony false imprisonment, as well as a sentence enhancement based on a true finding of personal use of firearm in the commission of crimes, are affirmed where: 1) substantial evidence supported defendant's conviction; and 2) a Penal Code section 12022.5(a) personal use of a firearm enhancement did not require specific intent and did not require sua sponte instructions on the meaning of the phrase "displays a firearm in a menacing manner". However, an increased restitution fund fine imposed on defendant after retrial is modified and reduced to the amount provided in defendant's original sentence. Read more...

U.S. 11th Circuit, May 21, 2008
US v. Mendez, No. 07-13443
A conviction for unlawful production of a state commercial driver's license (CDL) is affirmed where defendant's intent in fraudulently obtaining the CDL was clearly to illegally operate a commercial vehicle, which would sufficiently affect interstate commerce. However, defendant's conviction for conspiracy to defraud the United States is reversed where the United States was not the target of defendant's crime. Read more...

U.S. 1st Circuit, May 21, 2008
Lopez-Quinones v. Puerto Rico Nat. Guard, No. 07-1976
In a 42 U.S.C. section 1983 suit brought by a former official of a significant unit within the Puerto Rico National Guard alleging he was terminated from that position on account of his political affiliation, an order denying officials-defendants' qualified immunity defense is vacated and remanded where: 1) in light of past precedents, plaintiff's position was not unequivocally insulated from political dismissal; and 2) while plaintiff may seek injunctive relief for his termination, he could not obtain monetary relief from individual defendant-officials in their personal capacities. Read more...

U.S. 1st Circuit, May 21, 2008
Ruiz v. Mukasey, No. 07-1783
Petition for review of a BIA order rejecting Colombian petitioner's request for asylum is denied over claims that the BIA erred in determining that petitioner failed to establish either past persecution or objectively reasonable fear of persecution on account of a statutorily protected grounds. Read more...

U.S. 3rd Circuit, May 21, 2008
State of New Jersey v. US Nuclear Regulatory Comm'n, No. 06-5140, 07-1559, 07-1756
Petition for review of a guidance document issued by the United States Nuclear Regulatory Commission (NRC), proposing a long-term control license for facilities that decommission under restricted release regulations but cannot find adequate institutional controls, is dismissed for lack of jurisdiction where: 1) the guidance document is not a final order, as it is non-binding, lacks legal consequences, and does not determine any rights or obligations; and 2) the document's non-binding and legally inoperative nature falls within a categorical exclusion from governmental agency requirements imposed by the National Environmental Policy Act (NEPA). Read more...

U.S. 5th Circuit, May 21, 2008
U.S. v. Gould, No. 06-11058
Sentence for conspiracy to posses with intent to distribute crack cocaine and possession of a firearm in furtherance of a drug offense is vacated and remanded where a two point enhancement under the Sentencing Guidelines for "reckless endangerment during flight" was unsupported by the facts since there was no evidence that: 1) defendant heard an officer command him to stop with his weapon drawn; 2) defendant acted in an aggressive way towards the police; and 3) defendant's flight into an open field created a risk for other people. Read more...

U.S. 5th Circuit, May 21, 2008
Whitt v. Stephens County, No. 07-10729
In a 42 U.S.C. section 1983 action for allegedly causing or failing to prevent the jailhouse death of plaintiff's son, summary judgment for defendants is affirmed where: 1) denial of leave to amend the complaint to name five of the "John Doe" defendants was proper since the statute of limitations rendered amendment futile; and 2) there was insufficient evidence for a reasonable jury to conclude that defendant-sheriff personally caused the death or acted with deliberate indifference. Read more...

U.S. 6th Circuit, May 21, 2008
Myers v. U.S., No. 07-3817
In a suit for damages arising out of the alleged negligence of a postal employee whose mail truck struck plaintiffs' car, dismissal of the suit as time barred is affirmed where the government had no duty to send individual denial of claim letters when both claimants filed an administrative claim form, provide a joint address, and only one claimant signed the form. Read more...

U.S. 8th Circuit, May 21, 2008
Jackson v. US, No. 07-1454
Partial denial of defendant's motion for return of property under Fed. R. Crim. Pro 41(g) is affirmed in part and reversed in part where: 1) evidence indicated that another party had a claim of ownership interest adverse to defendant's stereo/video equipment and clothing found in his girlfriend's vehicle at the time of arrest; but 2) defendant was entitled to return of custom wheels installed on his girlfriend's vehicle as, evidence did not suggest that the property was abandoned, intended as a gift, or integrated under Missouri's doctrine of accession. Read more...

U.S. 8th Circuit, May 21, 2008
Robson v. Astrue, No. 07-1863
Denial of disability benefits under the Social Security Act for alleged disability due to post polio syndrome is affirmed where: 1) questions posed to a vocational expert contained all the concrete consequences of claimant's physical deficiencies during the relevant time period; and 2) vocational expert's response provided substantial evidence to support a finding that claimant could perform sedentary work. Read more...

U.S. 8th Circuit, May 21, 2008
US v. Allebach, No. 07-2916
In a prosecution for possession of powder cocaine with intent to manufacture cocaine base, denial of defendant's motion to suppress evidence and the resultant sentence are affirmed where: 1) materials found in trashbags outside defendant's residence, including cocaine residue, Brillo pads, a film canister, and documents bearing defendant's name and address, sufficiently established probable cause for issuance of a warrant to search defendant's residence; and 2) even if the warrant was unsupported by probable cause, the evidence would still be admissible under the Leon good faith exception; and 3) the district court followed proper procedures in calculating the base offense level and considering the relevant section 18 U.S.C. section 3553(a) factors. Read more...

U.S. 9th Circuit, May 21, 2008
Witt v. Dep't of the Air Force, No. 06-35644
In a suit brought against the Air Force challenging the "Don't Ask, Don't Tell" (DADT) policy after plaintiff was suspended from duty as an Air Force reservist nurse on account of her sexual relationship with a civilian woman, dismissal of the suit for failure to state a claim is reversed in part where: 1) the DADT, after Lawrence v. Texas, 539 U.S. 558 (2003), must satisfy an intermediate level of scrutiny under substantive due process; and 2) such inquiry requires facts not present on the record before the circuit court. Read more...

U.S. 9th Circuit, May 21, 2008
US v. Manning, No. 06-35613, 06-35664, 06-35765
In an appeal arising out of an effort by Washington state voters to "prevent the addition of new radioactive and hazardous waste" to a waste storage and disposal facility until cleanup of existing contamination is complete, the circuit court rules that a statute enacted through the passage of a voter initiative, the Cleanup Priority Act (CPA), is preempted by federal law. Read more...

U.S. 9th Circuit, May 21, 2008
US v. Vasquez-Landaver, No. 07-50226
A conviction and sentence for being found in the United States after being deported is affirmed where: 1) because defendant failed to make a prima facie showing of an immediate threat, the district court properly precluded him from introducing any evidence on a duress defense and properly declined to instruct the jury on duress; 2) the 90-month sentence was reasonable; and 3) the sentence was not an impermissible punishment for exercising his constitutional right to trial. Read more...

California Appellate Districts, May 21, 2008
Santillan v. Roman Catholic Bishop of Fresno, No. B194219
In an action based on plaintiff's allegations of childhood sexual abuse by one of a Diocese's former clerics, summary judgment for defendant-Diocese on statute of limitations grounds is reversed and remanded where there were triable issues of fact concerning whether the defendant had the requisite notice that the offending cleric posed a risk of committing such acts as provided under Code of Civil Procedure section 340.1. Read more...

U.S. Fed. Circuit Court of Appeals, May 21, 2008
1-10 Indus. Assoc., LLC v. US, No. 2007-5124
In a contract dispute, an order imposing sanctions on the government's attorney for violations of counsel's duty of candor to the court under Rule of the United States Court of Federal Claims 11(b) is reversed and the case remanded where: 1) failure to inform the sanctioned attorney that his conduct in a prior case provided evidence of a pattern of misconduct constituted reversible error; and 2) a sanctioned attorney's mistake as to choice of theory or miscalculation of facts necessary to sustain the theory does not necessarily equate with breach of the duty of candor when the attorney does not make any affirmative representation based on the facts. Read more...

U.S. 11th Circuit, May 22, 2008
Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., No. 06-16354
In a breach of contract action involving an ice cream distributorship, denial of plaintiffs' Fed. R. Civ. P. 60(b) motion for relief from judgment is affirmed where: 1) the time for filing notice of appeal had not expired; and 2) Rule 60(b) no longer provides a basis to extend the time to file a notice of appeal due to a failure to receive notice of final judgment. Read more...

U.S. 1st Circuit, May 22, 2008
US v. Sharapka, No. 06-2715
Sentence for identity theft, counterfeiting, and mail fraud is affirmed over claims that the district court: 1) improperly determined, as a factual matter, that 10 or more victims suffered financial losses due to defendant's activities; and 2) erroneously imposed a two-level enhancement for possession of device-making equipment pursuant to U.S.S.G. section 2B1.1(b)(10)(A). Read more...

U.S. 1st Circuit, May 22, 2008
Sok v. Mukasey, No. 07-2113
Petition for review of a denial of petitioner's withholding claim is granted and remanded for further proceeding where: 1) the BIA and IJ afforded a legally insufficient explanation of why petitioner failed to prove that she suffered past persecution in Cambodia; and 2) resolving the matter required the agency to make a well-reasoned and well-explained determination of petitioner's withholding eligibility. However, petition for review of a denial of petitioner's CAT claim is denied where petitioner's failure to develop arguments for her CAT claim was deemed a waiver. Read more...

U.S. 1st Circuit, May 22, 2008
Sourcing Unlimited, Inc. v. Asimco Int'l, Inc., No. 07-2754
A corporate signatory to a written partnership agreement that requires international arbitration of their commercial disputes may not escape arbitration of such disputes by naming as defendants two non-signatories, on the basis that there was no written agreement to arbitrate with those defendants. Read more...

U.S. 3rd Circuit, May 22, 2008
Egolf v. Witmer, No. 06-2193
In an action wherein plaintiffs claimed that several state and municipal actors violated their First and Fourth Amendment rights by arresting them during a demonstration against the war in Iraq, summary judgment for police on the issue of qualified immunity is affirmed where, regardless of whether the police violated protesters' First and Fourth Amendment rights, such rights were not "clearly established" in this circumstance. Read more...

U.S. 6th Circuit, May 22, 2008
U.S. v. Smith, No. 07-1375
A sentence for possession of a firearm by a felon, arising from a search of defendant's residence while he was serving a sentence as a prisoner in a community residential home, is affirmed where: 1) an individual participating in a community residential program has as much of an expectation of privacy as a prisoner in his jail cell since they are treated as prisoners; 2) defendant was informed that officers had the freedom to enter his home and search the area of control where the defendant sleeps; 3) the state has an overwhelming interest in supervising community resident prisoners; and 4) the exclusionary rule does not apply to knock and announce violations in this situation since the rule has nothing to do with the seizure of evidence. Read more...

U.S. 6th Circuit, May 22, 2008
Cristini v. McKee, No. 06-1606
An order conditionally granting petitioner habeas relief based on prosecutorial misconduct is reversed where: 1) the prosecutor relied in good faith on evidentiary rulings which permitted him to use prior bad acts evidence before trial to establish the identity of the perpetrator, and any evidence that went beyond the bounds of the ruling was harmless in view of the admissible evidence used to establish guilt; and 2) it was not improper for the prosecutor to call several witnesses liars since the statements were based on the record evidence, and any improper statements would be insufficiently flagrant to constitute plain error. Read more...

U.S. 7th Circuit, May 22, 2008
Samuelson v. LaPorte Cmty. Sch. Corp., No. 06-4351
In a 42 U.S.C. section 1983 action for violations of plaintiff's First Amendment rights when his contract as a coach was not renewed in alleged retaliation for comments made about the school, summary judgment for defendant is affirmed where: 1) the school's chain of command policy requires staff members to follow the chain of command only on matters requiring administrative attention, and thus does not restrict protected speech; and 2) plaintiff failed to demonstrate that his contract as coach was not renewed because of the incidences of speech at issue. Read more...

U.S. 8th Circuit, May 22, 2008
In re: Zahn, No. 07-1974
A debtor who objects to her own Chapter 13 plan may be an "aggrieved party" and have standing to appeal confirmation of such plan. Read more...

U.S. 8th Circuit, May 22, 2008
US v. Nguyen, No. 07-2555
Conviction for mail fraud and wire fraud is affirmed where: 1) information provided by a postal inspector provided probable cause for the issuance of a search warrant; 2) the district court did not abuse its discretion in denying defendant's motion for a continuance on the morning of the trial; and 3) defendant's motion for a new trial was properly denied over claims regarding a language barrier, Brady violation, and improper admission of evidence. Read more...

Supreme Court of California, May 22, 2008
Richardson v. Sup. Ct. of Tulare County, No. S127275
Denial of petitioner's motion under Penal Code section 1405 for DNA testing of hair samples admitted at trial is affirmed where: 1) the standard of review of a trial court' ruling on a section 1405 motion is abuse of discretion; 2) a defendant is not required to show that a favorable DNA test would conclusively establish his or her innocence because it would be sufficient for the defendant to show that the identity of the perpetrator or accomplice was a controverted issue as to which the results of DNA testing would be relevant evidence; 3) to prevail on a section 1405 motion, a defendant must demonstrate that, had the DNA testing been available in light of all of the evidence, there is a reasonable chance and not merely an abstract possibility that the defendant would have obtained a more favorable result; and 4) although the DNA test would have been relevant to the issue of identity, there was sufficient evidence to determine guilt. Read more...

Supreme Court of California, May 22, 2008
People v. Richardson, No. S029588
On automatic appeal for a sentence of death, the judgment is affirmed over claims of error regarding: 1) the prosecution's use of peremptory challenges to excuse any prospective juror who expressed reservations about the death penalty and religious affiliation; 2) the excusal of jurors for cause who stated that they could not impose the death penalty; 3) a denial to excuse a potential juror who revealed she would vote automatically for death; 4) an affidavit submitted for a warrant; 5) suppression of a post-arrest statement arising from an unnecessary delay in his arraignment; 6) whether the post-arrest statement should have been excluded because it was involuntary; 7) due process and right to counsel violations arising from relieving the public defender based on a conflict; 8) application of Proposition 115 to defendant's case; 9) admission and exclusion of certain evidence; 10) a prosecutorial decision involving a witness; 11) prosecutorial misconduct in presenting inconsistent theories; 12) sufficiency of evidence regarding lewd conduct; 13) erroneous instruction on sodomy as a basis for felony murder; 14) references to innocence in CALJIC Nos. 1.01, 2.01, 2.51 and 2.52; 15) cumulative effect of guilty phase errors; 16) double counting of special circumstances and consideration of sodomy special circumstance; 17) several evidentiary rulings; 18) denial of motion for modification of death verdict; 19) intercase proportionality; 20) instructional error; 21) challenges to the death penalty statute; 22) international law; 23) prosecution delay; 24) missing transcripts; 25) cumulative error; and 26) incorporation by reference of habeas corpus petition claims. However, the case is remanded on the issue of restitution as the issue should be considered in light of the currently applicable statute. Read more...

U.S. Fed. Circuit Court of Appeals, May 22, 2008
W. Shoshone Nat'l Council v. US, No. 2007-5020
In a suit seeking to invalidate a 1977 Indian Claims Commission (ICC) judgment awarding compensation for the taking of plaintiffs' lands, as well as additional compensation and other relief under the Treaty of Ruby Valley of 1863, summary judgment for the government is affirmed where: 1) a claim that the ICC allegedly denied plaintiff due process in reaching its judgment was untimely, and thus the Court of Federal Claims lacked subject matter jurisdiction; and 2) a claim for $14 billion as prejudgment interest from the stipulated date of the taking (1872) until the time of the award, failed as the Treaty of Ruby Valley did not recognize that plaintiffs have title in the disputed territory. Read more...

Supreme Court of Florida, May 22, 2008
Hitchcock v. Florida, No. SC04-1286
Denial of a motion to vacate a first degree murder conviction and a sentence of death is affirmed, and a petition for habeas corpus is denied, over claims of error regarding: 1) ineffective assistance of counsel; 2) destruction of exculpatory evidence by the state; 3) newly discovered evidence; 4) the state's failure to disclose deficiencies of the hair analyst and then knowingly presenting incompetent and false testimony; 5) defendant's failure to be present at a bench conference where peremptory challenges were exercised; and 6) a failure of counsel to properly investigate and present statutory mitigating circumstances. Read more...

Supreme Court of Florida, May 22, 2008
Hartley v. Florida, No. SC04-1387
Denial of a motion to vacate a conviction for first degree murder and sentence of death is affirmed over claims of error regarding: 1) ineffective assistance of counsel for failure to present additional mitigating testimony and failing to obtain a mental health expert; 2) error in denial of a claim that the state knowingly presented false testimony at trial; and 3) whether post-conviction counsel failed to adequately investigate the case and obtain a medical expert. Read more...

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LITIGATION CASES