Case Summaries

Civil Procedure

[06/25] Rathborne Land Co. v. Ascent Engy., Inc.
In an action for breach of defendant's obligations to reasonably develop and explore a leased parcel of oil, gas, and mineral land, judgment for plaintiff is affirmed in part where: 1) plaintiff's letter to defendant met the La. Rev. Stat. Ann. section 31:136 demand requirement; and 2) district court did not clearly err in concluding that plaintiff would have been able to lease the disputed acreage more than once if it had been able to seismically survey the parcel prior to 2006. However, the judgment is vacated in part where neither the district court nor plaintiff could show an adequate ground -- indeed, any relevant precedent -- for awarding consequential damages for lost leasing and seismic revenues on the entire parcel.

[06/25] Kimbrough v. State of Cal.
In an action claiming that the California Department of Corrections and Rehabilitation's (CDCR) grooming regulations concerning hair length interfered with plaintiff's First Amendment right to free exercise of religion, the district court's award of attorney's fees to plaintiff is reversed where, because the district court did not actually adjudicate plaintiff's claims, the Ninth Circuit's decision in Siripongs foreclosed an award of attorneys' fees in this case.

[06/25] Lal v. State of Cal.
In an action against the California Highway Patrol and certain officers for the shooting death of plaintiff's husband, dismissal of the action with prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute when her attorney failed to meet deadlines and attend hearings is reversed where an attorney's gross negligence constituted an extraordinary circumstance warranting relief from a judgment dismissing the case for failure to prosecute under Rule 41(b).

[06/25] Greenspan v. LADT, LLC
In a trust's suit for breach of contract and other claims against two affiliated companies and individuals, trial court's confirmation of an arbitrator's award against defendants in the amount of $6.34 million is affirmed where: 1) per the JAMS rules, the arbitrator, not a court, determines what issues are arbitrable, and here, the arbitrator determined that the issue of joint and several liability was arbitrable; 2) arbitrator's finding of joint and several liability was rationally related to the parties' contract; 3) as to the timeliness of the final award under JAMS rules, the arbitrator's interpretation and application of the rules cannot be judicially reviewed on the merits; and 4) the suit against the arbitrator was barred by arbitral immunity and would not have caused a reasonable person to doubt the arbitrator's impartiality.

[06/25] Lincoln Nat'l Life Ins., Co. v. Bezich
A petition for permission to appeal, arising from the district court's remand of plaintiff's class action lawsuit against an insurer for breach of contract claims on the basis that CAFA's exception to federal jurisdiction for the action applied, is dismissed for lack of jurisdiction as plaintiff's claim "related to the rights, duties,...and obligations relating to or created by or pursuant to...a security," as defined in the Securities Act of 1933.

[06/25] Pickett v. Sheridan Health Care Ctr.
In plaintiff's Title VII suit against her former employer for being fired in retaliation for her complaints about sexual harassment by residents of defendant's nursing home, district court's denial of defendant's motions for a new trial and remittitur are affirmed where: 1) plaintiff presented enough evidence to persuade a reasonable jury that her complaints caused defendant to fire her; 2) it was not an abuse of discretion to deny the motion for a new trial on the basis of plaintiff's counsel's closing arguments; 3) it was not an abuse of discretion in denying remittitur on the compensatory damages as enough evidence supported a jury award of $25,000, which is well within the $200,000 cap set out in 42 U.S.C. section 1981a(b)(3)(C); and 4) it was not an abuse of discretion in denying remittitur on the punitive damage award and the logic of Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008) does not apply to this Title VII case.

[06/24] Bifulco v. Patient Bus. & Fin. Serv., Inc.
In plaintiff's wrongful termination suit against her former employer, Fifth District's reversal of trial court's grant of defendant's motion for summary judgment is affirmed as workers' compensation retaliation claims brought against the state under section 440.205 are not subject to the presuit notice requirements of section 768.28(6)

[06/18] Wal-Mart Stores, Inc. v. Merrell
In plaintiffs' wrongful death and survival claims against Wal-Mart for the death of their son from smoke inhalation, claiming that a halogen lamp purchased from Wal-Mart caused the fire, the court of appeals' reversal of the trial court's grant of defendant's motion for summary judgment on the ground that plaintiffs produced evidence on each challenged element of their cause of action is reversed as, plaintiff's expert's testimony was legally insufficient to support causation.

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Civil Rights

[06/25] Kemp v. Holder
In an action for violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act arising from the termination of plaintiff's employment as a federal court security officer, summary judgment for defendant is affirmed where plaintiff failed to show a genuine issue of material fact regarding whether he had a "disability," as that term is defined under the ADA.

[06/25] Kimbrough v. State of Cal.
In an action claiming that the California Department of Corrections and Rehabilitation's (CDCR) grooming regulations concerning hair length interfered with plaintiff's First Amendment right to free exercise of religion, the district court's award of attorney's fees to plaintiff is reversed where, because the district court did not actually adjudicate plaintiff's claims, the Ninth Circuit's decision in Siripongs foreclosed an award of attorneys' fees in this case.

[06/25] Lal v. State of Cal.
In an action against the California Highway Patrol and certain officers for the shooting death of plaintiff's husband, dismissal of the action with prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute when her attorney failed to meet deadlines and attend hearings is reversed where an attorney's gross negligence constituted an extraordinary circumstance warranting relief from a judgment dismissing the case for failure to prosecute under Rule 41(b).

[06/25] Malone v. Lockheed Martin Corp.
In plaintiff's suit for employment discrimination based on race and retaliation, district court's grant of defendants' motion for judgment as a matter of law is affirmed where, for substantially the same reasons as the court indicated below, the record reveals no significant evidentiary basis for the verdict.

[06/25] Murthy v. Vilsack
In an action by an ex-employee against the Secretary of Agriculture for breach of the terms of a settlement agreement and for non-selection to a GS-15 position in violation of Title VII, an order partially transferring the action and partially granting summary judgment is affirmed where: 1) the filing of an amended complaint after the 180-day waiting period expired could not cure the failure to exhaust; and 2) res judicata would not bar the filing of a new Title VII non-selection civil action after he exhausted his EEOC remedies.

[06/25] Ruiz v. Cty. of Rockland
In an action against a county for national origin and race discrimination under Title VII and the Equal Protection Clause, summary judgment for defendant is affirmed where: 1) the district court erred in finding that plaintiff was not qualified for his position based on evidence of plaintiff's misconduct; but 2) plaintiff failed to raise an inference of discrimination.

[06/24] Brown v. Kelly
In a class action by persons allegedly arrested pursuant to an unconstitutional New York anti-begging statute, the district court's class certification order is affirmed in part where the citywide plaintiff class met the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3). However, the order is reversed in part where the district court erred in certifying a statewide defendant class because the defendant class representatives did not meet the adequacy and typicality requirements of Federal Rule of Civil Procedure 23(a), and the district court also erred in certifying a statewide plaintiff class because the certification of this class was contingent on the bilateral certification of both a statewide plaintiff and a statewide defendant class.

[06/23] Madain v. City of Stanton
In plaintiff's petition for a writ of mandate challenging the city's denial of his application for a permit to operate an adult-oriented cabaret, on the ground that the location selected by the plaintiff was within 300 feet of a planned church, is reversed and remanded as the city abused its discretion in failing to address whether plaintiff's application was presented to, and should have been accepted by, the city prior to the date the church filed its own application in determining whether the church's application was legitimately entitled to sensitive use priority.

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Consumer Protection

[06/24] Olmstead v. Fed. Trade Comm'n
An order to partially satisfy a judgment against defendant in the FTC's suit for unfair or deceptive trade practices is affirmed as Florida law permits a court to order a judgment debtor to surrender all right, title, and interest in the debtor's single-member limited liability company to satisfy an outstanding judgment.

[06/21] Edwards v. First Am. Corp.
In an action claiming that defendant improperly paid millions of dollars to individual title companies and, in exchange, those title companies entered into exclusive referral agreements with defendant, a denial of defendants' motion to dismiss the complaint is affirmed where the text of the Real Estate Settlement Procedures Act did not limit liability to instances in which a plaintiff was overcharged.

[06/21] Kleffman v. Vonage Holdings Corp.
In plaintiff's class action suit under section 17529.5(a)(2), which makes it unlawful to advertise in a commercial e-mail advertisement (i.e. spam) that "contains or is accompanied by falsified, misrepresented, or forged header information," dismissal of the complaint for failure to state a claim is affirmed as sending commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters is not unlawful under section 17529.5(a)(2).

[06/21] Real Estate Bar Ass'n for Massachusetts, Inc. v. Nat'l Real Estate Info. Serv.
In the Real Estate Bar Association's suit against defendant for unauthorized practice of law, judgment of the district court is vacated in part, reversed in part and remanded where: 1) district court's judgment against plaintiff on its unauthorized practice of law claim is vacated as in Massachusetts, the state judicial branch and the Supreme Judicial Court of Massachusetts (SJC) in particular, is solely responsible for defining what is the practice of law, and here, there is no controlling precedent which addresses whether the activities at issue constitute unauthorized practice of law; and 2) district court's judgment on defendant's dormant Commerce Clause counterclaim is reversed as plaintiff is not a state actor, defendant has not stated a dormant Commerce Clause claim against plaintiff, and plaintiff's bringing of its suit against defendant under Mass. Gen. Laws ch. 221, section 46B is protected by the First Amendment.

[06/17] Ehrheart v. Verizon Wireless
In a class action against Verizon Wireless claiming that defendant violated the Fair and Accurate Credit Transaction Act, which prohibits a seller from printing a receipt that displays more than the last five digits of a buyer's credit or debit card and/or the expiration date of the credit or debit card, a district court's order vacating its settlement class certification order and granting defendant's motion for judgment on the pleadings is reversed where: 1) there was a restricted, tightly focused role that Rule 23 prescribes for district courts, requiring them to act as fiduciaries for the absent class members, but that did not vest them with broad powers to intrude upon the parties' bargain; 2) a strong public policy existed, which was particularly muscular in class action suits, favoring settlement of disputes, finality of judgments and the termination of litigation; and 3) changes in the law after a settlement was reached did not provide ground for rescission of the settlement.

[06/02] Rule v. Fort Dodge Animal Health, Inc.
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.

[05/28] Shaw v. Marriott Int'l., Inc.
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.

[05/27] CE Design, Ltd. v. Prism Bus. Media, Inc.
In plaintiff's suit under the Telephone Consumer Protection Act (TCPA), against the defendant for sending a fax advertising a trade show to the plaintiff, district court's grant of defendant's motion for summary judgment is affirmed where: 1) the district court correctly determined that it lacked jurisdiction to consider the validity of the "established business relationship" (EBR) defense; and 2) district court correctly determined that the EBR exemption applies in this case as the parties' publisher-subscriber relationships falls within the scope of business relationships the FCC intended the EBR defense to cover.

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Dispute Resolution & Arbitration

[06/25] Greenspan v. LADT, LLC
In a trust's suit for breach of contract and other claims against two affiliated companies and individuals, trial court's confirmation of an arbitrator's award against defendants in the amount of $6.34 million is affirmed where: 1) per the JAMS rules, the arbitrator, not a court, determines what issues are arbitrable, and here, the arbitrator determined that the issue of joint and several liability was arbitrable; 2) arbitrator's finding of joint and several liability was rationally related to the parties' contract; 3) as to the timeliness of the final award under JAMS rules, the arbitrator's interpretation and application of the rules cannot be judicially reviewed on the merits; and 4) the suit against the arbitrator was barred by arbitral immunity and would not have caused a reasonable person to doubt the arbitrator's impartiality.

[06/24] Granite Rock Co. v. Int'l. Brotherhood of Teamsters
In an action against a labor union by an employer, invoking federal jurisdiction under section 301(a) of the Labor Management Relations Act (LMRA), seeking strike-related damages for the unions' alleged breach of contract, and asking for an injunction against an ongoing strike because the hold-harmless dispute was an arbitrable grievance under the new collective bargaining agreement (CBA), the Ninth Circuit's partial affirmance of the district court's order dismissing plaintiff's tortious interference claims and denying defendant's separate motion to send the parties' dispute over the CBA's ratification date to arbitration is affirmed in part where the Ninth Circuit did not err in declining to recognize a new federal common-law cause of action under LMRA section 301(a) for defendant's alleged tortious interference with the CBA. However, the judgment is reversed in part where the parties' dispute over the CBA's ratification date was a matter for the district court, not an arbitrator, to resolve.

[06/23] Insurance Co. of N. Am. v. Pub. Serv. Mut. Ins. Co.
In an appeal from the district court's order granting respondent's Fed. R. Civ. P. 60(b)(2) motion based on newly discovered evidence that an arbitrator who had resigned was, in fact, able to rejoin the arbitration panel prior to the district court's decision on whether to convene a new panel or order a replacement arbitrator, the order is affirmed where: 1) the rule articulated in Marine Products Export Corp. v. M.T. Globe Galaxy, 977 F.2d 66 (2d Cir. 1992) ? that, absent "special circumstances," if a vacancy arises on an arbitral panel due to the death of an arbitrator prior to the rendering of an award, a new panel should be convened ? does not apply to a vacancy occasioned by a resignation; and 2) in the instant case, the district court's decision either to reappoint the arbitrator who had resigned, or, in the alternative, to direct petitioner to appoint a replacement was proper pursuant to 9 U.S.C. section 5.

[06/21] Rent-A-Center West, Inc. v. Jackson
In an employment discrimination action, the Ninth Circuit's reversal of the district court's dismissal of the action based on the parties' agreement to arbitrate is reversed where, under the Federal Arbitration Act, where an agreement to arbitrate includes an agreement that the arbitrator will determine the enforceability of the agreement, if a party challenges specifically the enforceability of that particular agreement, the district court considers the challenge, but if a party challenges the enforceability of the agreement as a whole, the challenge is for the arbitrator.

[06/17] Nino v. The Jewelry Exch., Inc.
In an action against plaintiff's former employer, alleging that defendant discriminated against plaintiff on account of his gender and national origin, a grant of defendant's motion to compel arbitration is reversed where: 1) the pervasively one-sided nature of the arbitration agreement's terms demonstrates that the employer did not seek to use arbitration as a legitimate means for dispute resolution; and 2) the employer, by engaging in protracted litigation of this matter before belatedly seeking to arbitrate its dispute, waived its right to compel arbitration.

[06/10] Lagstein v. Certain Underwriters at Lloyd's
In plaintiff's appeal from the district court's order vacating an arbitral award on the ground of its excessive size and vacating a punitive damages award on the additional ground that the arbitration panel lacked jurisdiction to enter it after the panel had entered its compensatory award, the order is reversed where: 1) the district court erred in concluding that the size of the arbitration awards demonstrated manifest disregard of the law; 2) the fact that the majority of the arbitrators may have made a mistake in citing a benefit that plaintiff had not purchased did not establish irrationality of its ultimate conclusion that defendant breached its contract; 3) nothing in plaintiff's policy expressly withdrew determination of procedural issues from the panel; and 4) defendant failed to demonstrate either evident partiality or evident corruption in the arbitrators.

[06/10] Morris v. Office of Compliance
In an appeal by an officer of the United States Capitol Police under the Congressional Accountability Act arising from his termination, challenging the Board of Directors of the Office of Compliance's decision denying exceptions to an arbitrator's decision rejecting the officer's request for arbitration, the appeal is dismissed for lack of jurisdiction as the statutes defining the right to judicial review of Board decisions make clear that only the Board's General Counsel and the respondent to an unfair labor practice complaint are authorized to obtain review in federal courts of an adverse Board decision.

[05/07] In re Odyssey Healthcare, Inc.
In plaintiff's negligence case against her employer, defendant's petition for writ of mandamus is conditionally granted as, the trial court abused its discretion by refusing to grant the defendant's motion to compel arbitration as the plaintiff failed to prove a valid defense against enforcement of her agreement to arbitrate disputes with her employer.

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Ethics & Disciplinary

[06/24] Florida Bar v. Ratiner
In Florida Bar's complaint against an attorney in connection to his alleged misconduct during the deposition of a representative of DuPont, referee's findings of fact and recommendations as to guilt are affirmed, as well as the mitigating factors and the aggravating factors found by the referee, but the referee's alternative recommendations of disbarment or a two-year suspension with respect to discipline are disapproved, and instead a public reprimand and a suspension of sixty days followed by two years' probation is imposed.

[06/21] Real Estate Bar Ass'n for Massachusetts, Inc. v. Nat'l Real Estate Info. Serv.
In the Real Estate Bar Association's suit against defendant for unauthorized practice of law, judgment of the district court is vacated in part, reversed in part and remanded where: 1) district court's judgment against plaintiff on its unauthorized practice of law claim is vacated as in Massachusetts, the state judicial branch and the Supreme Judicial Court of Massachusetts (SJC) in particular, is solely responsible for defining what is the practice of law, and here, there is no controlling precedent which addresses whether the activities at issue constitute unauthorized practice of law; and 2) district court's judgment on defendant's dormant Commerce Clause counterclaim is reversed as plaintiff is not a state actor, defendant has not stated a dormant Commerce Clause claim against plaintiff, and plaintiff's bringing of its suit against defendant under Mass. Gen. Laws ch. 221, section 46B is protected by the First Amendment.

[06/17] Harrell v. Fla. Bar
In a First Amendment action by a lawyer who advertised the services of his firm extensively, claiming in a broad facial challenge that nine advertising-related provisions of the Rules Regulating the Florida Bar were so vague as to violate his due process rights, summary judgment for defendants is affirmed in part where plaintiff did not give any substantial reason to believe that submitting a bare script or outline of the advertisements he proposed would constitute a hardship. However, the judgment is reversed in part where: 1) plaintiff satisfied the injury-in-fact requirement with respect to five of the challenged rules; 2) plaintiff made an adequate threshold showing of vagueness in the application of the rules to his proposed advertisements; and 3) the bar did not bear its heavy burden of showing that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur."

[06/10] Florida Bar v. Hines
In the Florida Bar's complaint against an attorney, arising from events in the course of acting as attorney and closing agent in a real estate transaction, the matter is remanded to the referee for a recommendation as to the appropriate discipline as the attorney violated Florida Bar 4-5.3(b) by allowing a nonlawyer, whom she neither employed, supervised, nor controlled, to have signatory authority over an escrow account she opened to handle real estate closings, resulting in misappropriation by that nonlawyer of funds held in trust in the escrow account.

[06/10] Florida Bar v. Scott
In Florida Bar's complaint against an attorney, arising from the attorney's representation of a client-firm against the Commodity Futures Trading Commission, a referee's report recommending the attorney be guilty of professional misconduct and suspended from the practice of law for eighteen months is affirmed in part and vacated in part where: 1) the referee's findings more than amply support the recommendations of guilt as to the conflict-of-interest claims as well as to claims of misrepresentation; and 2) referee's sanction recommendation is vacated and instead a three-year suspension is imposed.

[06/02] Plouffe v. Ligon
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."

[05/03] Jenevein v. Willing
In an action by a censured state judge against the Texas State Commission on Judicial Conduct seeking to have the censure expunged from his record, the denial of plaintiff's motion for attorney's fees is affirmed where plaintiff was not a prevailing party because the commission's censure remained in effect.

[04/23] Fulton v. Med. Bd. of California
In plaintiff's suit against the Medical Board of California, claiming that the publication of plaintiff's disciplinary information on its Web site, including information about a medical malpractice judgment entered against plaintiff, and the surrender, retirement, and indefinite suspension of his licenses to practice medicine in other states, is not required to be disclosed because he was no longer licensed in California, judgment of the trial court denying plaintiff's claim for declaratory and injunctive relief is affirmed as Business and Professions Code sections 803.1 and 2027 required the Board to publish the information.

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Ethics & Professional Responsibility

[06/25] Lal v. State of Cal.
In an action against the California Highway Patrol and certain officers for the shooting death of plaintiff's husband, dismissal of the action with prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute when her attorney failed to meet deadlines and attend hearings is reversed where an attorney's gross negligence constituted an extraordinary circumstance warranting relief from a judgment dismissing the case for failure to prosecute under Rule 41(b).

[06/24] Florida Bar v. Ratiner
In Florida Bar's complaint against an attorney in connection to his alleged misconduct during the deposition of a representative of DuPont, referee's findings of fact and recommendations as to guilt are affirmed, as well as the mitigating factors and the aggravating factors found by the referee, but the referee's alternative recommendations of disbarment or a two-year suspension with respect to discipline are disapproved, and instead a public reprimand and a suspension of sixty days followed by two years' probation is imposed.

[06/22] Jay E. Hayden Found. v. First Neighbor Bank, NA
In a RICO suit against a bank, two law firms, and affiliated individuals, grant of defendants' motion to dismiss on the ground that the complaint itself showed that plaintiffs had missed the four-year deadline governing RICO suits is affirmed as, by the summer of 2003 at the latest, the plaintiffs knew that a lawyer had looted the estate and that bank's employees were trying to prevent further investigation of the lawyer.

[06/21] Real Estate Bar Ass'n for Massachusetts, Inc. v. Nat'l Real Estate Info. Serv.
In the Real Estate Bar Association's suit against defendant for unauthorized practice of law, judgment of the district court is vacated in part, reversed in part and remanded where: 1) district court's judgment against plaintiff on its unauthorized practice of law claim is vacated as in Massachusetts, the state judicial branch and the Supreme Judicial Court of Massachusetts (SJC) in particular, is solely responsible for defining what is the practice of law, and here, there is no controlling precedent which addresses whether the activities at issue constitute unauthorized practice of law; and 2) district court's judgment on defendant's dormant Commerce Clause counterclaim is reversed as plaintiff is not a state actor, defendant has not stated a dormant Commerce Clause claim against plaintiff, and plaintiff's bringing of its suit against defendant under Mass. Gen. Laws ch. 221, section 46B is protected by the First Amendment.

[06/18] US v. 777 Greene Ave.
In a civil forfeiture proceeding, the motion to withdraw of defendant's counsel is denied where such a motion will not be granted unless counsel satisfies the requirements established under Anders v. California, 386 U.S. 738 (1976), and its progeny. With regard to motions to withdraw filed by appellate counsel appointed pursuant to 18 U.S.C. section 983(b)(2)(A), the procedure established under Anders and its progeny is best suited to protect the right to counsel to which indigent litigants are entitled.

[06/17] Harrell v. Fla. Bar
In a First Amendment action by a lawyer who advertised the services of his firm extensively, claiming in a broad facial challenge that nine advertising-related provisions of the Rules Regulating the Florida Bar were so vague as to violate his due process rights, summary judgment for defendants is affirmed in part where plaintiff did not give any substantial reason to believe that submitting a bare script or outline of the advertisements he proposed would constitute a hardship. However, the judgment is reversed in part where: 1) plaintiff satisfied the injury-in-fact requirement with respect to five of the challenged rules; 2) plaintiff made an adequate threshold showing of vagueness in the application of the rules to his proposed advertisements; and 3) the bar did not bear its heavy burden of showing that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur."

[06/15] Siefert v. Alexander
In a judge's action for declaratory and injunctive relief against members of the Wisconsin Judicial Commission, challenging under the First Amendment certain judicial ethical rules, summary judgment for plaintiff is affirmed in part where the partisan affiliation ban at issue impermissibly acted to prohibit plaintiff's speech on both his political views and his qualifications for office. However, the judgment is reversed in part where, unlike restrictions designed, for example, to regulate federal employees' political activity, restrictions on judicial speech may, in some circumstances, be required by the Due Process Clause, and the solicitation ban was drawn closely enough to the state's interest in preserving impartiality and preventing corruption to be constitutional.

[06/15] Mee Indus. v. Dow Chem. Co.
In a malicious prosecution suit based on an underlying, allegedly meritless patent infringement action, partial judgment for plaintiff is affirmed where: 1) sufficient evidence supported the jury's conclusions that Dow filed the patent infringement suit without the requisite probable cause and did not rely in good faith on the advice of counsel; 2) the evidence was not sufficient to meet the clear and convincing standard required for an award of punitive damages; and 3) the district court did not err in excluding plaintiff's loss of goodwill theory of damages.

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Injury & Tort Law

[06/25] Crescent Towing & Salvage Co. v. Chios Beauty MV
In an action for damages sustained when defendant's ship collided with plaintiffs' barges and tugboats during Hurricane Katrina, partial judgment for plaintiff is affirmed in part where the district court did not clearly err in its finding of a predicted "direct hit" on New Orleans by the hurricane, its factual findings based on this finding, and the ultimate finding of negligence to the extent that it relied upon this finding. However, the matter is remanded where the district court needed to enter an order setting the total amount of recovery plaintiffs could recover in rem.

[06/25] Bagby Elevator Co. v. Schindler Elevator Corp.
In an action for tortious interference with contract, judgment for plaintiff is affirmed where: 1) under the court's highly deferential standard of review, there was no reversible error in the district court's decision to use the pattern jury instruction; 2) there was sufficient evidence of both malice and gross negligence to support an award of exemplary damages; and 3) there was ample evidence of causation to support the verdict.

[06/25] Lal v. State of Cal.
In an action against the California Highway Patrol and certain officers for the shooting death of plaintiff's husband, dismissal of the action with prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute when her attorney failed to meet deadlines and attend hearings is reversed where an attorney's gross negligence constituted an extraordinary circumstance warranting relief from a judgment dismissing the case for failure to prosecute under Rule 41(b).

[06/24] DDJ Mgmt., LLC v. Rhone Group L.L.C.
In an action claiming that defendants presented plaintiffs with corporate financial statements that were false and misleading, the appellate division's modification of the trial court's order dismissing plaintiffs' fraud claim is reversed where: 1) when a plaintiff has taken reasonable steps to protect itself against deception, it should not be denied recovery merely because hindsight suggested that it might have been possible to detect the fraud when it occurred; and 2) plaintiffs in this action for fraud have alleged facts from which a jury could find that they were justified in relying on the representations defendants made to them.

[06/24] Granite Rock Co. v. Int'l. Brotherhood of Teamsters
In an action against a labor union by an employer, invoking federal jurisdiction under section 301(a) of the Labor Management Relations Act (LMRA), seeking strike-related damages for the unions' alleged breach of contract, and asking for an injunction against an ongoing strike because the hold-harmless dispute was an arbitrable grievance under the new collective bargaining agreement (CBA), the Ninth Circuit's partial affirmance of the district court's order dismissing plaintiff's tortious interference claims and denying defendant's separate motion to send the parties' dispute over the CBA's ratification date to arbitration is affirmed in part where the Ninth Circuit did not err in declining to recognize a new federal common-law cause of action under LMRA section 301(a) for defendant's alleged tortious interference with the CBA. However, the judgment is reversed in part where the parties' dispute over the CBA's ratification date was a matter for the district court, not an arbitrator, to resolve.

[06/24] Yanez v. SOMA Envtl. Eng'g, Inc.
In plaintiff's suit for injuries she suffered in an automobile accident, trial court's grant of defendants' motion to reduce the award for medical expenses from $44,519.01 to $18,368.24 is reversed and remanded where: 1) trial court erred in reducing plaintiff's damages to the amount actually paid by her insurers as the amounts written off by plaintiff's health care providers constitute collateral benefits of her insurance; and 2) on remand, the trial court is to award plaintiff prejudgment interest under Civ. Code section 3291.

[06/23] Espinosa v. Kirkwood
In plaintiffs' suit against the driver of their getaway vehicle (they were participants in a burglary) for damages for personal injuries sustained in a vehicle collision while fleeing from the police, judgment of the trial court is affirmed as, because their injuries were "in any way proximately caused by their commission of a felony or immediate flight therefrom," plaintiffs were barred from recovering damages based on negligence.

[06/18] Wal-Mart Stores, Inc. v. Merrell
In plaintiffs' wrongful death and survival claims against Wal-Mart for the death of their son from smoke inhalation, claiming that a halogen lamp purchased from Wal-Mart caused the fire, the court of appeals' reversal of the trial court's grant of defendant's motion for summary judgment on the ground that plaintiffs produced evidence on each challenged element of their cause of action is reversed as, plaintiff's expert's testimony was legally insufficient to support causation.

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Legal Malpractice

[06/21] Med. Assurance Co., Inc. v. Hellman
District court's order issuing a stay of federal proceedings in an insurer's request for declaratory judgment, claiming that it no longer has a duty to defend or indemnify a doctor due to his disappearance in more than 350 medical malpractice claims, is reversed and remanded as it was an abuse of discretion to stay this action.

[06/17] Price v. Wolford
In the Oklahoma Health Care Authority (OHCA)'s appeal from the district court's order allotting part of a malpractice settlement to OHCA in full satisfaction of the lien, the order is reversed where the district court correctly construed Oklahoma law but erred in finding that the settling parties had proved by clear and convincing evidence that only $67,666.67 of the settlement could be attributed to medical care paid by Medicaid.

[06/17] Estate of Schneider v. Finmann
In a legal malpractice action alleging that defendants negligently advised decedent to transfer, or failed to advise decedent not to transfer, an insurance policy which resulted in an increased estate tax liability, the appellate division's affirmance of dismissal of the action is reversed where an attorney may be held liable for damages resulting from negligent representation in estate tax planning that causes enhanced estate tax liability.

[06/17] Martinez v. Cui
In plaintiff's suit against a first-year medical resident claiming that she was sexually assaulted during an examination, judgment in favor of the defendant is affirmed where: 1) the district court's evidentiary rulings were not error; and 2) the jury was correctly instructed on the shocks-the-conscious element as this standard applies to claims that an executive official's sexual assault violated the substantive due process clause.

[06/09] Anaya-Burgos v. Lasalvia-Prisco
In plaintiff's suit against an oncologist and others, claiming that the death of his wife was the result of defendants' negligent acts and omissions that induced her to purchase their "cancer vaccine" treatment and forego conventional cancer treatments, a grant of defendants' motion for judgment as a matter of law is vacated and remanded as, plaintiff put forth sufficient evidence including expert testimony, from which a reasonable jury could have concluded - and did conclude - that defendants' breach of the standard of care towards the wife caused her untimely death by inducing her to choose their treatment with promises that it would cure her.

[05/26] Sandarg v. Dental Bd. of California
Superior court's denial of plaintiff's petition for a writ of mandate seeking reinstatement of his dental license, which was revoked by the Dental Board of California, is affirmed as the standard of proof for a petition to revoke a dental licentiate's probation is preponderance of the evidence.

[05/26] Wallace v. McGlothan
In plaintiffs' medical malpractice suit against a doctor for permanent injury to plaintiff's eye as a result of negligently performed LASIK surgery, district court's denial of defendant's motions for judgment as a matter of law is affirmed as the evidence was sufficient to show that the doctor's negligence was the proximate cause of the plaintiffs' injuries and the doctor has not shown any perjury or discovery violations by the plaintiffs that would warrant reversal.

[05/20] Lockton v. O'Rourke
In plaintiff's legal malpractice suit, trial court's dismissal following demurrers by defendants is affirmed in part, reversed in part and remanded where: 1) trial court properly sustained the demurrer on the ground that defendants did not continue to represent plaintiff on his claims against the defendants in the underlying case for a sufficient time to toll the statute of limitations; and 2) trial court's order denying an award of attorney fees to two attorneys is reversed.

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Professional Malpractice

[06/21] Med. Assurance Co., Inc. v. Hellman
District court's order issuing a stay of federal proceedings in an insurer's request for declaratory judgment, claiming that it no longer has a duty to defend or indemnify a doctor due to his disappearance in more than 350 medical malpractice claims, is reversed and remanded as it was an abuse of discretion to stay this action.

[06/17] Price v. Wolford
In the Oklahoma Health Care Authority (OHCA)'s appeal from the district court's order allotting part of a malpractice settlement to OHCA in full satisfaction of the lien, the order is reversed where the district court correctly construed Oklahoma law but erred in finding that the settling parties had proved by clear and convincing evidence that only $67,666.67 of the settlement could be attributed to medical care paid by Medicaid.

[06/17] Estate of Schneider v. Finmann
In a legal malpractice action alleging that defendants negligently advised decedent to transfer, or failed to advise decedent not to transfer, an insurance policy which resulted in an increased estate tax liability, the appellate division's affirmance of dismissal of the action is reversed where an attorney may be held liable for damages resulting from negligent representation in estate tax planning that causes enhanced estate tax liability.

[06/17] Martinez v. Cui
In plaintiff's suit against a first-year medical resident claiming that she was sexually assaulted during an examination, judgment in favor of the defendant is affirmed where: 1) the district court's evidentiary rulings were not error; and 2) the jury was correctly instructed on the shocks-the-conscious element as this standard applies to claims that an executive official's sexual assault violated the substantive due process clause.

[06/09] Anaya-Burgos v. Lasalvia-Prisco
In plaintiff's suit against an oncologist and others, claiming that the death of his wife was the result of defendants' negligent acts and omissions that induced her to purchase their "cancer vaccine" treatment and forego conventional cancer treatments, a grant of defendants' motion for judgment as a matter of law is vacated and remanded as, plaintiff put forth sufficient evidence including expert testimony, from which a reasonable jury could have concluded - and did conclude - that defendants' breach of the standard of care towards the wife caused her untimely death by inducing her to choose their treatment with promises that it would cure her.

[05/26] Sandarg v. Dental Bd. of California
Superior court's denial of plaintiff's petition for a writ of mandate seeking reinstatement of his dental license, which was revoked by the Dental Board of California, is affirmed as the standard of proof for a petition to revoke a dental licentiate's probation is preponderance of the evidence.

[05/26] Wallace v. McGlothan
In plaintiffs' medical malpractice suit against a doctor for permanent injury to plaintiff's eye as a result of negligently performed LASIK surgery, district court's denial of defendant's motions for judgment as a matter of law is affirmed as the evidence was sufficient to show that the doctor's negligence was the proximate cause of the plaintiffs' injuries and the doctor has not shown any perjury or discovery violations by the plaintiffs that would warrant reversal.

[05/20] Lockton v. O'Rourke
In plaintiff's legal malpractice suit, trial court's dismissal following demurrers by defendants is affirmed in part, reversed in part and remanded where: 1) trial court properly sustained the demurrer on the ground that defendants did not continue to represent plaintiff on his claims against the defendants in the underlying case for a sufficient time to toll the statute of limitations; and 2) trial court's order denying an award of attorney fees to two attorneys is reversed.

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Sanctions

[06/25] Claiborne-Hughes Health Ctr. v. Sebelius
The Appellate Division of the Departmental Appeals Board's (DAB) affirmance of the United States Centers for Medicare and Medicaid Services' imposition of a civil money penalty upon, as well as a denial of payment for new admissions for, a skilled nursing facility, due to noncompliance with a number of standards of care required by the U.S. Department of Health and Human Services, is affirmed where: 1) it was clear that the facility failed to achieve substantial compliance with 42 C.F.R. section 483.10(b)(11) as the DAB correctly noted that a sharp decline in food intake persisting for over three weeks should have brought a resident's significant change in status to the facility's attention; 2) DAB's immediate jeopardy determination was not in clear error; 3) substantial evidence existed in the record as a whole to demonstrate that the facility had failed to substantially comply with the requirement that it provide each resident with sufficient fluid intake to maintain proper hydration and health under section 483.25(j); and 4) the ALJ was free not to continue making additional rulings once he determined that the deficiencies concerning the two residents sufficed to support imposition of sanctions.

[06/15] Soria v. Soria
In an appeal from the trial court's award of attorneys' fees on the ground that a trustee contested the claim by a beneficiary of the trust in bad faith, the order is reversed where Probate Code section 17211(b) did not permit recovery of attorney fees for the simple reason that the claimants did not contest a trustee's account.

[06/15] In re: Nosek
In a creditor's appeal from a $250,000 sanction issued sua sponte by the bankruptcy court, the sanction is reduced to $5,000 where: 1) nothing indicated that creditor's claim that it was the holder of the mortgage at issue was a deliberate falsehood or intended in any way to mislead the court or debtor or achieve anything for creditor; and 2) the bankruptcy court did not identify any actual prejudice from the inaccurate claim of holder status.

[06/11] Advanced Magnetic Closures, Inc. v. Rome Fastener Corp.
In a patent infringement suit, related to patents for disclosing a magnetic snap fastener commonly used in women's handbags, judgment of the district court is affirmed in part and reversed in part where: 1) the district court was correct in holding the '773 patent unenforceable as the plaintiff and its president attempted to defraud the PTO; 2) district court did not err in finding that this case was an exceptional case under 35 U.S.C. section 285 justifying an award of attorney's fees; and 3) the district court abused its discretion by sanctioning plaintiff's attorney under 28 U.S.C. section 1927 as the court failed to find that the attorney acted in bad faith.

[06/09] In re: Southern Cal. Sunbelt Developers
In actions seeking punitive damages and attorney's fees arising out of the filing of allegedly meritless involuntary bankruptcy petitions against two alleged debtors, judgment against appellants is affirmed in part where: 1) the bankruptcy court properly concluded that 11 U.S.C. section 303(i) permitted an award of attorney's fees for a section 303 action as a whole, including fees incurred to litigate claims for fees and damages under section 303(i)(1) and (2); 2) section 303(i) permitted an award of punitive damages under section 303(i)(2)(B) in the absence of an award of actual damages under section 303(i)(2)(A); and 3) the bankruptcy court properly held two individual appellants jointly and severally liable for the costs and attorney's fees the debtors incurred in obtaining dismissal of the involuntary petitions. However, the judgment is reversed in part where the bankruptcy court erred by holding the individual appellants liable for the debtors' costs and fees incurred on the section 303(i) motions themselves.

[06/07] Lahiri v. Universal Music & Video Dist. Corp.
In plaintiff's counsel's appeal from an order by the district court sanctioning him for his five-year bad faith pursuit of a frivolous copyright infringement claim, the order is affirmed where: 1) had counsel, a self-described experienced copyright lawyer, made even a cursory investigation into the circumstances of plaintiff's 21-year old composition, he would have known plaintiff had no copyright interest in music he composed for hire; 2) counsel's repeated misrepresentations of Indian copyright law clearly evidenced his recklessness and bad faith; and 3) the district court carefully excluded inadequately documented costs, as well as taxable costs not included in defendants' bill of costs.

[05/27] Fujifilm Corp. v. Benun
In a patent infringement suit involving Fujifilm's patents directed to single-use cameras, or lens fitted film packages (LFFP), arising from defendant's conduct of purchasing used LFFPs and selling them as new after refurbishing them, judgment of the district court is affirmed including denial of defendants' post trial motion for JMOL based on noninfringement of a particular brand of LFFPs and inapplicability of a first sale's location, plus a ruling holding defendants in contempt of a preliminary order enjoining importation of infringing LFFPs.

[05/25] Sneller v. Bainbridge Island
In plaintiffs' appeal from a sanction award to defendants under Federal Rule of Civil Procedure 11 and 28 U.S.C. section 1927, the order is reversed where the imposition of the sanction was error because plaintiffs effectively withdrew any claims that violated Rule 11(b) during the safe harbor period, before defendants filed their motion for sanctions.

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Sentencing

[06/25] US v. Williams
In a case involving a defendant's transport of 74 unlawful aliens, and the death of 19 of them after he left the aliens locked in the trailer of his tractor?trailer without activating the trailer's air conditioning unit, defendant's murder convictions are affirmed where: 1) the Government's articulated reasons for striking a veniremember were supported by the voir dire transcripts; and 2) it was not clear error for the district court to include defendant's first trip, during which he transported approximately 60 unlawful aliens, as part of the relevant conduct. However, his sentence is vacated where the district court erred in its definition of "act of violence" under the Federal Death Penalty Act and, under the correct definition, the evidence at trial cannot support a finding that the requisite threshold intent was met.

[06/25] US v. King
In defendant's appeal from the district court's judgment revoking his term of supervised release and imposing additional supervised release conditions on the basis of five violations of his supervised release conditions, the order is affirmed where: 1) 18 U.S.C. section 3605's language did not limit a transferee court's power to violations that occur after transfer; 2) together, the ordinary meaning of "associate," the court's cases, and defendant's probation officer's instructions adequately notified defendant that telephone and e-mail communications with felons were prohibited; and 3) the evidence was sufficient to support the district court's finding that defendant's misrepresentation was intentional.

[06/25] US v. Buzo-Zepeda
Defendant's sentence for reentry into the U.S. following deportation is affirmed where a "Johnson waiver" in California state court had no effect on the determination of whether a defendant qualifies for a point increase under United States Sentencing Guidelines Manual section 4A1.1, Criminal History Category.

[06/25] US v. Womack
In a prosecution of defendant for distributing cocaine base, district court's application of a career offender enhancement when imposing a sentence of 360 months is vacated and remanded as, although the district court did not err by applying the career offender enhancement in defendant's guidelines calculation and the sentence imposed was within a correctly calculated guidelines range, the district court erred in stating that it could not consider the sentencing disparity between crack and powder cocaine offenses under the guidelines because district courts may disagree with the career offender enhancement on policy grounds related to the crack/powder disparity and impose sentences accordingly.

[06/25] US v. Robinson
District court's grant of pro se defendant's motion to reduce his sentence under 18 U.S.C. section 3582(c)(2) for crack cocaine and firearm related offenses is affirmed and his motion for appointment of counsel denied as, pursuant to section 3582(c)(2), a district court is not authorized to reduce a defendant's sentence below the amended Guidelines range.

[06/25] US v. Alexander
Defendant's sentence for being a felon in possession of a firearm is affirmed where: 1) a conviction under Fla. Stat. section 790.15(2) involved conduct that was "similar in kind and degree of risk posed" to burglary, arson, extortion, and crimes involving the use of explosives -- the crimes enumerated in the Guidelines' definition of crime of violence; and 2) the district court did not have authority to award credit for time served in state custody.

[06/25] US v. Huff
Defendant's convictions and sentences for bribery and conspiracy to commit wire fraud and bribery are affirmed in part where: 1) the evidence was sufficient to establish a single conspiracy in this case, and there was no material variance between the indictment and the evidence presented at trial; and 2) the district court did not err in basing the loss amount on defendant's substantive counts of conviction only. However, a restitution order is vacated in part where the circuit court was unable to determine whether the amount of restitution imposed by the district court exceeded the victims' actual losses.

[06/24] Suggs v. McNeil
In a capital habeas matter, a denial of the petition is affirmed where the decision of the Florida Supreme Court finding that petitioner failed to prove prejudice due to allegedly ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), was neither contrary to nor an unreasonable application of clearly established federal law.

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Workers' Comp

[06/24] Bifulco v. Patient Bus. & Fin. Serv., Inc.
In plaintiff's wrongful termination suit against her former employer, Fifth District's reversal of trial court's grant of defendant's motion for summary judgment is affirmed as workers' compensation retaliation claims brought against the state under section 440.205 are not subject to the presuit notice requirements of section 768.28(6)

[06/22] Hawaii Stevedores, Inc. v. Ogawa
In a petition for review of a decision of the Benefits Review Board (BRB) affirming an Administrative Law Judge's (ALJ) grant of disability benefits under the Longshore and Harbor Workers' Compensation Act, the petition is granted in part where: 1) the mere fact that an expert witness talked with a party's lawyer and then altered his or her opinion language, though it might be considered relevant, did not require a factfinder to find that expert witness was other than credible; and 2) the ALJ's finding of the maximum medical improvement date was not supported by substantial evidence. However, the petition is denied in part where: 1) the ALJ's finding that petitioner did not meet its burden of demonstrating prejudice was supported by substantial evidence, and respondent's late notice was properly excused; and 2) respondent's stroke qualified as a compensable injury under the Longshore Act.

[06/11] Zenith Ins. Co. v. Ayala
In a worker's compensation suit, the court of appeals' affirmance of trial court's holding that the insurer waived its right to contest compensability by not timely disputing the claimant's lumbar condition diagnosis is reversed and remanded as the sixty-day period for challenging compensability does not apply to a dispute over extent of injury.

[06/04] Nat'l Union Fire Ins. Co. v. VP Bldg., Inc.
In Chapter 11 proceedings, district court's affirmance of the bankruptcy court's decision disallowing an insurer's petition for administrative expenses, on the ground that the claim was not "actual" and did not benefit the estate, is affirmed as pursuant to In re HNRC Dissolution Co., 371 B.R. 210, (E.D. Ky. 2007), the insurer's request for reimbursement is not an "actual" expense within the meaning of the bankruptcy code.

[05/25] Los Angeles County Fire Dep't v. Workers' Comp. Appeals Bd.
WCAB's denial of a county's petition for reconsideration in its claim that the battalion chief for the county fire department was not entitled to any maintenance allowance from September 8, 2005, to September 26, 2006 for his permanent disability, is affirmed in part, reversed in part, and remanded as the battalion chief's right to pending maintenance allowance ended with repeal of former section 139.5 except for that part of the maintenance allowance that was not included in the county's petition for reconsideration and, therefore, became final before the repeal of former section 139.5.

[05/20] State Comp. Ins. Fund v. Superior Court
In plaintiff's suit to collect unpaid premiums it claimed were owed for workers' compensation insurance policies issued to defendant, plaintiff's petition for a peremptory writ of mandate seeking to set aside superior court's grant of summary judgment in favor of defendant is granted where: 1) plaintiff's filing of an amended complaint rendered defendant's motion for summary judgment moot; and 2) the FAC raised new issues of fact regarding when the statute of limitations began to run on plaintiff's fraud claim.

[05/14] Alvarez v. Workers' Comp. Appeals Bd.
In claimant's petition for worker's compensation death benefits, a decision of the Workers' Compensation Appeals Board (WCAB) denying claimant's petition for a new panel qualified medical evaluator under section 4062.3(f) is annulled and remanded as section 4062.3 expressly prohibits ex parte communications with a panel qualified medical evaluator, with the only exception being for communications by the employee or deceased employee's dependent in connection with an examination, and in the event of unauthorized ex parte communication permits the aggrieved party to obtain a new evaluation from another panel qualified medical evaluator.

[05/07] In re Odyssey Healthcare, Inc.
In plaintiff's negligence case against her employer, defendant's petition for writ of mandamus is conditionally granted as, the trial court abused its discretion by refusing to grant the defendant's motion to compel arbitration as the plaintiff failed to prove a valid defense against enforcement of her agreement to arbitrate disputes with her employer.

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