U.S. Fifth Circuit: July 2009 Archives
U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

July 2009 Archives

US v. Seale, No. 07-60732

The Court of Appeals certifies the following question to the United States Supreme Court:  What statute of limitations applies to a prosecution under 18 U.S.C. section 1201 for a kidnapping offense that occurred in 1964 but was not indicted until 2007?

Read US v. Seale, No. 07-60732

Appellate Information

Filed July 30, 2009

Judges

Per Curiam

US v. Fasono, No. 08-60750

In a bank robbery prosecution, an ruling refusing to order DNA testing of the clothing worn by the robber under the Innocence Protection Act (Act) is reversed where: 1) the Act does not impose a more exacting standard for a showing of the chain of custody than would be demanded in a trial itself; and 2) the relevant tests could be performed in compliance with the limits of 18 U.S.C. section 3600(a)(4).

Read US v. Fasono, No. 08-60750

Appellate Information

Filed July 31, 2009

Judges

Opinion by Judge Higginbotham

Bluefield Water Assn. Inc. v. Starkville, No. 08-60648

In a breach of contract action regarding a public water utility, an injunction requiring defendant to change its main pipe interface with plaintiff and turn over certain customer information to plaintiff is: 1) affirmed in part where the risk of an overload to Plaintiff's water supply could harm the public interest; but 2) reversed in part, where plaintiff failed to show a threat of irreparable injury justifying its receipt of customer information.

Read Bluefield Water Assn. Inc. v. Starkville, No. 08-60648

Appellate Information

Filed July 21, 2009

Judges

Opinion by Judge Higginbotham

US v. Miller, No. 08-50409

Defendant's conviction for assault against federal officers is affirmed where 1) the government produced sufficient evidence that defendant intended to assault federal agents by driving his large vehicle very quickly in their direction; and 2) the district court properly excluded evidence of defendant's injuries on relevance grounds.

Read US v. Miller, No. 08-50409

Appellate Information

Filed July 21, 2009

Judges

Per Curiam

US v. Whaley, No. 08-10951

Defendant's conviction for failure to register in accordance with the Sex Offender Registration and Notification Act (SORNA) is affirmed where SORNA does not exceed Congress's powers under the Commerce Clause because it forbids sex offenders from using the channels of interstate commerce to evade their registration requirements.

Read US v. Whaley, No. 08-10951

Appellate Information

Filed July 21, 2009

Judges

Opinion by Judge Benavides

Oscar Renda Contracting Inc. v. Lubbock, No. 08-10481

In a 42 U.S.C. section 1983 action claiming that defendant city violated the First Amendment by denying plaintiff a construction contract, summary judgment for defendant is affirmed where not all construction contract disputes involving government entities or agents are matters of public concern.

Read Oscar Renda Contracting Inc. v. Lubbock, No. 08-10481

Appellate Information

Filed July 21, 2009

Judges

Opinion by Judge Higginbotham

Castellanos-Contreras v. Decatur Hotels LLC, No. 07-30942

In an action by guest workers claiming that defendant violated the Fair Labor Standards Act (FLSA) by failing to reimburse plaintiffs for recruitment, transportation, and visa expenses they incurred before relocating to the U.S., denial of Defendant's motion for summary judgment is reversed where the FLSA does not require an employer to reimburse any of these expenses.

Read Castellanos-Contreras v. Decatur Hotels LLC, No. 07-30942

Appellate Information

Filed July 21, 2009

Judges

Opinion by Judge Jolly

Burton v. Terrell, No. 07-30842

In a manslaughter prosecution, denial of petitioner's habeas petition is affirmed where a trial court's failure to inform the defendant of the maximum possible sentence does not invariably lead to constitutional error if he was aware of the maximum sentence.

Read Burton v. Terrell, No. 07-30842

Appellate Information

Filed July 21, 2009

Judges

Opinion by Judge Higginbotham

Great Am. Ins. Co. of N.Y. v. Lowry Dev. LLC, No. 08-60312

In an action by an insurer seeking a declaration that defendant's policy did not cover wind damage, judgment for defendant is reversed where Miss. Code Ann. section 83-5-28 does not prevent a properly authorized agent from being sent the notice that is required under the policy.

Read Great Am. Ins. Co. of N.Y. v. Lowry Dev. LLC, No. 08-60312

Appellate Information

Filed July 17, 2009

Judges

Opinion by Judge Southwick

Nowlin v. Peake, No. 08-20066

In a debtor's appeal from a bankruptcy court's order denying confirmation of her Chapter 13 plan, the order is affirmed where an above-median Chapter 13 debtor's "projected disposable income" presumptively consists of his statutorily defined "disposable income" mechanically projected into the future for the duration of the plan.

Read Nowlin v. Peake, No. 08-20066

Appellate Information

Filed July 17, 2009

Judges

Opinion by Judge Elrod

In an action seeking insurance coverage relating to a personal injury lawsuit against plaintiff, summary judgment for defendant is reversed where the issue under the policy of whether a third-party manufacturer of gaming equipment was "solely negligent" could not be resolved until the underlying lawsuit was complete.

Read Barden Mississippi Gaming LLC v. Great Northern Ins. Co., No. 08-60521

Appellate Information

Filed July 17, 2009

Judges

Opinion by Judge Garza

Xtreme Lashes, LLC v. Xtended Beauty, Inc., No. 08-20578

In a dispute over a trademark relating to eyelash extension products, summary judgment for defendant is reversed where: 1) the trademark at issue arguably had many of the indicia of a suggestive mark and was therefore entitled to protection; and 2) plaintiffs showed several incidences of actual confusion.

Read Xtreme Lashes, LLC v. Xtended Beauty, Inc., No. 08-20578

Appellate Information

Filed July 15, 2009

Judges

Opinion by Judge DeMoss

District court's dismissal of creditors' appeal of a bankruptcy court's approval of a settlement order is reversed where the district court improperly applied the doctrine of equitable mootness because the relief requested would not affect the success of the plan or the rights of parties not before the court.

Read Tech. Lending Ptnrs. LLC v. San Patricio Cty. Cmty. Action Agency, No. 08-40517

Appellate Information

Filed July 14, 2009

Judges

Opinion by Judge Southwick

Skinner v. Quarterman, No. 07-70017

In capital habeas proceedings, denial of the habeas petition is affirmed where: 1) it was not reasonably probable that blood spatter evidence defense counsel failed to introduce would have caused the jury to acquit petitioner; and 2) petitioner failed to show that counsel ignored evidence that suggested a witness might have useful information.

Read Skinner v. Quarterman, No. 07-70017

Appellate Information

Filed July 14, 2009

Judges

Opinion by Judge Smith

US v. Castro-Guevarra, No. 08-40796

Defendant's sentence for illegally reentering the U.S. is affirmed where the District Court properly enhanced Defendant's base offense level based on his previous conviction for sexual assault of a child, because that offense constituted a "crime of violence" under U.S.S.G. section 2L1.2(b).

Read US v. Castro-Guevarra, No. 08-40796

Appellate Information

Filed July 13, 2009

Judges

Opinion by Judge Jones

Little v. KPMG LLP, No. 08-50100

In an action claiming that Plaintiff accounting firms lost business to Defendant when Defendant's partner practiced without a Texas accounting license, the dismissal of the action is affirmed, where the alleged injury to Plaintiff was too speculative.

Read Little v. KPMG LLP, No. 08-50100

Appellate Information

Filed July 10, 2009

Judges

Opinion by Judge Jolly

In an action seeking coverage under a "claims-made" liability insurance policy, judgment for Defendant is affirmed, where the policy required separate notice of claim and of suit, and Plaintiff failed to meet the requirements for giving notice of the underlying tort action.

Read East Tex. Med. Ctr. Regional Healthcare Sys. v. Lexington Ins. Co., No. 07-40904

Appellate Information

Filed July 10, 2009

Judges

Opinion by Judge Southwick

Benson v. St. Joseph Reg. Health Ctr., No. 07-20726

In an action for wrongful termination of medical privileges, summary judgment for Defendants is affirmed, where Plaintiff's arguments were not entitled to be treated as an exception to the usual requirement that an issue must first be presented to the District Court before it may be raised on appeal.

Read Benson v. St. Joseph Reg. Health Ctr., No. 07-20726

Appellate Information

Filed July 10, 2009

Judges

Opinion by Judge Southwick

Kling Realty Co. v. Chevron USA Inc., No. 08-30043

In a tort action for contamination of Plaintiffs' land through oil and gas exploration, summary judgment for Defendant is affirmed, where the action was barred by prescription because Plaintiffs had failed to take action regarding the contamination for many years, although they knew it was occurring.

Read Kling Realty Co. v. Chevron USA Inc., No. 08-30043

Appellate Information

Filed July 10, 2009

Judges

Opinion by Judge Southwick

Keenan v. Donaldson, Lufkin & Jenrette, Inc., No. 09-30102

In a breach of contract dispute involving the extension of a credit facility, summary judgment for Defendant is affirmed in part where Defendants owed no fiduciary duty to Plaintiff; but reversed in part, where Plaintiff's detrimental reliance and promissory estoppel claims derived from a breach of promise rather than a breach of duty, and thus were not barred by the statute of limitations.

Read Keenan v. Donaldson, Lufkin & Jenrette, Inc., No. 09-30102

Appellate Information

Filed July 9, 2009

Judges

Opinion by Judge Haynes

South Tex. Elec. Cooperative v. Dresser-Rand Co., No. 08-40715

In a breach of contract action involving repairs to a steam turbine, judgment for Plaintiff is affirmed, where the doctrine of substantial compliance excuses a party's deviations from a contractual requirement, but only if those deviations do not severely impair the purpose of the requirement.

Read South Tex. Elec. Cooperative v. Dresser-Rand Co., No. 08-40715

Appellate Information

Filed on July 9, 2009

Judges

Opinion by Judge Haynes

Petroleum Pipe Americas Corp. v. Jindal Saw Ltd., No. 08-20461

In an appeal from the District Court's denial of Defendant's motion to stay litigation and compel arbitration, the order is affirmed where Defendant waived its right to arbitrate because it substantially invoked the judicial process by waiting to move to arbitrate until the District Court ruled on an underlying contract issue.

Read Petroleum Pipe Americas Corp. v. Jindal Saw Ltd., No. 08-20461

Appellate Information

Filed July 9, 2009

Judges

Opinion by Judge Benavides

US v. Lithium Power Techs. Inc., No. 08-20194

In a False Claims Act (FCA) action alleging that Defendant made false statements to secure research grants from the federal government, judgment for Plaintiffs is affirmed where the FCA requires proof only that the defendant's false statements "could have" influenced the government's payment decision or had the "potential" to influence the government's decision.

Read US v. Lithium Power Techs. Inc., No. 08-20194

Appellate Information

Filed July 9, 2009

Judges

Opinion by Judge Stewart

In a breach of contract action involving construction of ships, the District Court's order approving a settlement is reversed where the Supreme Court of Mississippi would give effect to Venezuelan statutes that define procedures for conveying settlement authority.

Read Northrop Grumman Ship Sys. Inc. v. Ministry of Def. of Venezuela, No. 07-60861

Appellate Information

Filed July 9, 2009

Judges

Opinion by Judge Garza

State Indus. Prods. Corp. v. Beta Tech. Inc., No. 08-60620

In an action for sharing confidential trade information, summary judgment for Defendant is affirmed in part, where the "discovery rule" regarding the statute of limitations was not applicable because Plaintiff's claims did not involve latent injury; but vacated in part, where a prior consent judgment was binding on Defendant as a related party under Fed. R. Civ. P. 65(d)(2)(C).

Read State Indus. Prods. Corp. v. Beta Tech. Inc., No. 08-60620

Appellate Information

Filed July 7, 2009

Judges

Opinion by Judge Garza

Frame v. Arlington, No. 08-10630

In an Americans with Disabilities Act action alleging that Defendant city officials failed to make parts of the city wheelchair accessible, the dismissal of the complaint is reversed, where it was the city's burden to prove the accrual and expiration of any limitations period.

Read Frame v. Arlington, No. 08-10630

Appellate Information

Filed July 7, 2009

Judges

Opinion by Judge Jolly

US v. Garcia-Quintanilla, No. 08-50400

Defendant's sentence for failure to depart from the U.S. pursuant to an order of removal is vacated, where the District Court sentenced Defendant to the statutory maximum under the mistaken belief that it could later suspend the sentence.

Read US v. Garcia-Quintanilla, No. 08-50400

Appellate Information

Filed July 7, 2009

Judges

Opinion by Judge Prado

Admiral Ins. Co. v. Abshire, No. 09-30121

In an insurance fraud class action, the District Court's order remanding the action to state court is affirmed where the mere addition of class allegations does not commence a new "civil action" for purposes of the Class Action Fairness Act.

Read Admiral Ins. Co. v. Abshire, No. 09-30121

Appellate Information

Filed July 2, 2009

Judges

Opinion by Judge Wiener