U.S. Fifth Circuit: October 2010 Archives
U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

October 2010 Archives

Ellis v. Liberty Mut. Ins. Co., No. 09-60917

Action Based on Injury at Construction Site

In Ellis v. Liberty Mut. Ins. Co., No. 09-60917, a tort action based on plaintiff's injury in Mississippi while working on a construction site for an Alabama employer who was a subcontractor for defendant, the court reversed summary judgment for defendant where Alabama's workers compensation scheme, not Mississippi's, applied.

 

Packard v. OCA Inc., No. 09-41004

Unjust Enrichment Claim Dismissal Affirmed

In Packard v. OCA Inc., No. 09-41004, defendants' appeal from summary judgment for plaintiff on defendant's counterclaims for unjust enrichment and money had and received, the court affirmed where, as a matter of Texas law, defendant could not pursue its equitable counterclaims to recover benefits conferred pursuant to the illegal contract.

 

US v. Wanambisi, No. 10-30175

Heroin Sentencing Issue

In US v. Wanambisi, No. 10-30175, the court affirmed the denial of defendant's motion to reduce his sentence for conspiring to import heroin where 1) nothing in Amendment 505 to the Sentencing Guidelines prohibited the imposition of an enhancement for defendant's role in the offense; and 2) Amendment 505 did not reduce the base offense level for the amount of heroin for which defendant was responsible.

US v. Fisher, No. 10-30424

Reversal of Denial of Motion to Dismiss Indictment

In US v. Fisher, No. 10-30424, a drug prosecution, the court reversed the district court's denial of defendant's motion to dismiss the indictment on double-jeopardy grounds, holding that the government did not show -- nor did the record show -- that the district court carefully considered reasonable alternatives before declaring a mistrial.

 

US v. Jeong, No. 09-11127

Bribery Conviction Affirmed

In US v. Jeong, No. 09-11127, the court affirmed defendant's conviction for bribing American public officials where 1) Article 4.3 of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions was not a bar to multiple prosecutions; and 2) the U.S. did not impliedly or expressly cede its right of prosecution to South Korea.

 

Gene & Gene, L.L.C. v. Biopay, L.L.C., No. 09-31191

Class Certification Order Reversed

In Gene & Gene, L.L.C. v. Biopay, L.L.C., No. 09-31191, a lawsuit involving unsolicited faxes wherein defendant appealed from the district court's grant of plaintiff's motion to re-certify a class, the court reversed the order where 1) the Court of Appeals' prior order foreclosed the re-litigation of the class certification issue, and the district court erred in considering "new" evidence disclosed during the reopened discovery; and 2) the evidence disclosed on remand was not substantially different from the evidence disclosed before the prior decision, and the "substantially different evidence" exception to the law of the case doctrine did not apply.

 

Cates v. Dillard Dept. Stores, Inc., No. 09-31193

Slip and Fall Case

In Cates v. Dillard Dept. Stores, Inc., No. 09-31193, an action against a department store after plaintiff slipped and fell, alleging that her fall was caused by a plastic "wet floor" sign that an employee had negligently left in a high-traffic area of the store, the court reversed summary judgment for defendant where there was a genuine issue of material fact as to whether defendant created an unreasonable risk of harm and whether it failed to exercise reasonable care.

US v. Holy Land Found. for Relief & Dev., No. 09-10875

Third Party Improperly Named in Government's Brief in Criminal Matter

In US v. Holy Land Found. for Relief & Dev., No. 09-10875, third-party movant's appeal from the district court's holding that movant's Fifth Amendment rights were violated by its public naming in an attachment to the government's criminal pre-trial brief but denying its requested equitable relief, including inter alia expungement of its name and a public declaration by the court that its rights were violated, the court affirmed in part where the district court did not abuse its discretion in declining to expunge the mention of movant in the newly sealed attachment.  However, the court reversed in part where, because the power to seal court records must be used sparingly in light of the public's right to access, because movant's interest in mitigating its reputational injuries favored disclosure, and because there was no countervailing government interest in nondisclosure, the district court's decision to seal its opinion and order finding that movant's rights were violated constituted an abuse of its discretion.

Pearson v. Holder, No. 09-10808

Challenge to Sex Offender Registration and Notification Act

In Pearson v. Holder, No. 09-10808, a challenge to the Sex Offender Registration and Notification Act (SORNA) and state sex-offender laws as unconstitutional on the grounds that they impermissibly labeled those convicted of receipt of images of child pornography as "sex offenders," the court reversed the dismissal of the action where, inasmuch as plaintiff's release date was only some two years hence, his case was sufficiently ripe for adjudication.

Rodriguez-Barajas v. Holder, No. 09-60351

Petition for Review of BIA Dismissal of Appeal Granted

In Rodriguez-Barajas v. Holder, No. 09-60351, a petition for review of a decision of the Board of Immigration Appeals (BIA), arguing that the BIA erred in holding that it lacked jurisdiction to hear petitioner's appeal because he had voluntarily left the country while his habeas corpus petition was pending in federal court, the court granted the petition where an alien subject to removal proceedings who voluntarily departs the U.S. after the BIA has issued a decision on his appeal, but while his habeas petition is pending, is not deemed to have withdrawn his appeal pursuant to 8 C.F.R. section 1003.4.

 

In re: SCOPAC, No. 09-40307

Bankruptcy Court Erred in Denying "Superpriority" Claim

In In re: SCOPAC, No. 09-40307, creditors' appeal from the district court's dismissal of their appeal for lack of subject matter jurisdiction, where that appeal alleged that the bankruptcy court erred in denying their "superpriority" administrative claim on the bankruptcy estate, the court vacated where the bankruptcy court undervalued the noteholders' priority administrative section 507(b) claim by $29.7 million, and the court erred in not crediting their interest with timber sales proceeds that were received during the bankruptcy, on which they had a lien and priority interest arising from the court's many cash collateral orders.

 

Bianco v. Holder, No. 09-60597

Petition for Review of BIA Removal Order Denied

In Bianco v. Holder, No. 09-60597, a petition for review of the Board of Immigration Appeals' (BIA) affirmance of a final order of removal, the petition is denied where 1) under 18 U.S.C. section 1227(a), a crime of domestic violence need not have as an element the domestic relation of the victim to the defendant; and 2) the BIA did not limit the remand in petitioner's case for the specific purpose of considering evidence demonstrating her date of admission to the U.S.

 

US v. Banks, No. 08-20518

Mail Fraud Conviction Affirmed

In US v. Banks, No. 08-20518, the court affirmed defendant's convictions for possession of stolen mail and aggravated identify theft, holding that defendant did not dispute that he had agreed that certain stipulated facts were sufficient, and failed to explain in his briefs why the court should permit him to change his mind and challenge the sufficiency of the evidence on appeal.

Casa Orlando Apts., Ltd. v. Fed'l Nat'l. Mortgage Assn., No. 09-40997

Class Action Against Fannie Mae

In Casa Orlando Apts., Ltd. v. Fed'l Nat'l. Mortgage Assn., No. 09-40997, an action by mortgagors whose mortgages for low-income multi-family housing were held or serviced by the Federal National Mortgage Association (Fannie Mae) and insured by the Department of Housing and Urban Development (HUD), for breach of fiduciary duty, the court affirmed the denial of class certification where 1) the District of Columbia could not have the most significant relationship to the issues unless the fiduciary relationship was created and maintained there, so D.C. law did not apply; 2) it would not be incompatible for Fannie Mae to disgorge profits earned from one fund while not disgorging profits earned from a different fund; and 3) various different state laws applied to the class members.

US v. Mata, No. 09-41092

Alien Smuggling Conviction Affirmed

In US v. Mata, No. 09-41092, the court affirmed defendant's sentence for transporting an undocumented alien for financial gain, holding that 1) the district court did not err by applying the reckless-endangerment enhancement under section 2L1.1(b)(6) of the Sentencing Guidelines; and 2) the district court did not commit plain error by impermissibly delegating to a probation officer its judicial authority to determine whether defendant should be required to participate in a mental-health program as a condition of her supervised release.

 

In Re: Great Lakes Dredge & Dock Co. LLC, No. 08-30738

Hurricane Katrina-Related Negligence Action

In In Re: Great Lakes Dredge & Dock Co. LLC, No. 08-30738, an action alleging damages from the flooding of Orleans and St. Bernard Parishes in New Orleans when several levee systems failed as a result of the erosion of protective wetlands allegedly caused by defendants' negligent maintenance dredging operations, the court affirmed the dismissal of the action where the devastation caused by Hurricane Katrina was not a foreseeable result of the allegedly negligent conduct of any defendant.

Hale v. King, No. 07-60997

ADA Action by Disabled Inmates

In Hale v. King, No. 07-60997, an action under the Americans with Disabilities Act (ADA) by disabled inmates who were denied access to prison educational and work programs, the court affirmed the dismissal of the action where the ADA did not validly abrogate state sovereign immunity with respect to such claims.

Green v. Atkinson, No. 09-11050

Civil Rights Action Concerning Prison Food Service

In Green v. Atkinson, No. 09-11050, an action under 42 U.S.C. section 1983 against food service employees, the warden, and the assistant warden of the prison where plaintiff was an inmate, alleging that defendants failed to screen inmates' food for foreign objects (e.g., a metal nut in plaintiff's cornbread), the dismissal of the complaint is vacated in part where the district court erred in dismissing the suit for failure to state a nonfrivolous claim without permitting plaintiff to develop further the factual basis for it.

US v. Schmidt, No. 09-31138

In US v. Schmidt, No. 09-31138, the court affirmed defendant's sentence for conspiracy to possess a pipe bomb, on the ground that defendant's prior conviction for theft of a firearm from a licensed gun dealer, in violation of 18 U.S.C. section 922(u), was a violent felony for purposes of the ACCA.

Brown v. Callahan, No. 09-10843

In Brown v. Callahan, No. 09-10843, an action by a decedent's estate against a sheriff for failure to train and supervise the jail's medical employees and for maintaining an unconstitutional policy of deliberate indifference to detainees' serious medical needs, the court reversed the denial of summary judgment to defendant-sheriff, holding that there was insufficient evidence of deliberate indifference or objective unreasonableness.

US v. Gomez, No. 09-50719

In US v. Gomez, No. 09-50719, the court affirmed defendant's conviction for being a felon in possession of a firearm on the ground that the district court did not err in finding that the responding officers were justified in stopping and searching defendant's vehicle in keeping with the requirements of the Fourth Amendment.

Hunter v. Tamez, No. 09-11026

Challenge to Denial of Sentencing Credit by Bureau of Prisons

In Hunter v. Tamez, No. 09-11026, a 28 U.S.C. section 2241 application challenging the decision of the Federal Bureau of Prisons (BOP) to deny petitioner credit, through a nunc pro tunc order, against his federal sentence for time served in Texas state custody on unrelated state convictions, the court denied the application where 1) the BOP need not give effect to the state sentencing court's direction that petitioner's term of imprisonment on his state conviction run concurrently with his already-imposed term of imprisonment on his federal conviction; and 2) the BOP's order did not violate separation of powers.

Action for Nonpayment of Legal Fees

In Preston Law Firm, L.L.C. v. Mariner Health Care Mgmt. Co., No. 09-31016, an action by a law firm against a client for nonpayment of legal fees, the court vacated judgment for plaintiff where a valid compromise was formed through email communications, and the terms of the compromise clearly and explicitly provided for a permanent discount.

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

FLSA Action Against Hotel

In Castellanos-Contreras v. Decatur Hotels LLC, No. 07-30942, a Fair Labor Standards Act (FLSA) action claiming that defendant-employer was required to reimburse plaintiffs for their travel expenses, visa fees, and recruitment payments during their first week of work, the court reversed the denial of summary judgment for defendant where 1) the FLSA did not require the reimbursement of the travel expenses; and 2) the FLSA did not require defendant to reimburse plaintiffs for the fees they paid to the various job placement firms.

US v. Jefferson, No. 10-30941

In US v. Jefferson, No. 10-30941, the government's appeal from the district court's pretrial order excluding evidence of defendant's prior convictions for purposes of impeachment in a RICO prosecution, the court vacated the order where 1) the court had jurisdiction to hear the appeal under 18 U.S.C. section 3731; and 2) judicial discretion granted with respect to the admissibility of other prior convictions was not applicable to those involving dishonesty or false statements, as defendant's prior convictions did.

Gonzalez v. Thaler, No. 08-10871

Denial of Habeas Petition in Murder Matter

In Gonzalez v. Thaler, No. 08-10871, a murder prosecution, the court affirmed the denial of petitioner's habeas petition where the petition was time-barred under 28 U.S.C. section 2244(d)(1) because petitioner failed to file his petition within one year of the expiration of his time to appeal his intermediate state appellate court judgment to the Texas Court of Criminal Appeals.