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

August 2010 Archives

Denial of Capital Habeas Petition Affirmed, and Insurance Matter

In Paredes v. Thaler, No. 07-70009, a capital habeas matter, the court affirmed the denial of petitioner's habeas petition, holding that 1) the Texas courts did not unreasonably apply clearly established federal law as determined by the U.S. Supreme Court because whether the jury charge at issue went beyond the limits of how a state may define a single offense of multiple murder was not clearly established; and 2) petitioner could not establish prejudice from the disjunctive jury charge because the jury was also permitted to conclude that he was criminally responsible for the murders under Texas's law of parties even if he did not personally shoot any of the victims.

Barge Breakaway Matter, and Civil Procedure Case

Combo Maritime, Inc. v. U.S. United Bulk Terminal, LLC, No. 09-30592, involved an action for contribution and indemnity, and property damage, based on a barge breakaway.  The court reversed summary judgment for defendant on the ground that there were insufficient findings in the record to determine whether the passing vessel presumption should have been applied against third-party defendant.

Capital Habeas Matter Involving Atkins Claim, and Property Issue

In Mathis v. Thaler, No. 08-70021, a capital habeas matter, the court affirmed the denial of petitioner's habeas petition where 1) petitioner's habeas litigation strategy choice to withhold an Atkins claim from the initial federal petition, while simultaneously acting so late as to preclude exploration of other relief, did not make the Atkins rule "previously unavailable" to him within the meaning of 28 U.S.C. section 2244(b)(2)(A); 2) petitioner offered no cogent argument to excuse his failure to include his Atkins claim in his first federal petition when that claim was available to him for nine months after Atkins was decided; and 3) petitioner was not entitled to equitable tolling.

DHHS Suit, Capital Habeas Petition, and Criminal Matters

Sixta v. Thaler, No. 07-20890, involved an intoxication manslaughter prosecution.  The court affirmed summary judgment for respondent on petitioner's habeas petition, holding that the applicable procedural rules required the respondent in a 28 U.S.C. section 2254 proceeding to serve both the answer and any exhibits attached thereto on the habeas petitioner, and respondent complied with this requirement.

Hurricane Katrina-Related Insurance Action, and Antitrust Issue

Consolidated Cos. Inc. v. Lexington Ins. Co., No. 09-30178, involved an action against a commercial-property insurer seeking proceeds arising out of Hurricane Katrina-related damages.  The court affirmed in part judgment for plaintiff on the grounds that 1) plaintiff was not required to draw a bright line in its evidence between loss stemming from property damage and loss stemming from market conditions; and 2) the district court did not abuse its discretion in granting defendant's motion to enter a remittitur adjusting the verdict downward by $3 million.  However, the court vacated in part on the ground that the district court informed jurors that the policy was designed to place the insured in the position that it would have been in if there had been no interruption, but the court did not allow jurors to make the reduction for charges and expenses necessary to do that.

US v. Billingsley, No. 09-40734

US v. Billingsley, No. 09-40734, concerned an action for violation of the Fair Housing Act claiming the wrongful enforcement of restrictive covenants.  The court vacated a preliminary injunction in favor of plaintiff, holding that the Anti-Injunction Act was applicable in this case and the government could not avail itself of the exception for the U.S. when it sought an injunction because of 42 U.S.C. section 3612's explicit limitations on the remedial powers of the federal courts.

In Garland v. Roy, No. 09-40735, which involved petitioner's appeal from the dismissal of his habeas corpus petition brought pursuant to 28 U.S.C. section 2241, the court reversed on the ground that, in light of the Supreme Court's decision in Santos, petitioner brought a claim that satisfied each of the Reyes-Requena factors, and thus his petition fell within section 2255's savings clause, allowing him to bring a habeas petition under section 2241.

Paul Davis Nat'l v. City of New Orleans, No. 09-30529

Paul Davis Nat'l v. City of New Orleans, No. 09-30529, involved an action claiming that defendant-city failed to comply with the mandatory provisions of Louisiana's Public Works Act by not requiring a third party to post a payment bond, thus making the city solidarily liable on plaintiff's claim for the cost of the work in a park.  The court affirmed partial summary judgment for plaintiff for the reasons stated by the district court.

S&M Brands Inc. v. Caldwell, No. 09-30985

S&M Brands Inc. v. Caldwell, No. 09-30985, involved an action claiming that the Master Settlement Agreement (MSA) reached in the 1990s between the four largest tobacco manufacturers and the several states and the Louisiana Escrow Statute violated the Compact Clause, First Amendment, Federal Cigarette Labeling and Advertising Act (FCLAA), Commerce and Due Process Clauses, and federal antitrust laws.  The court affirmed summary judgment for defendant on the grounds that 1) the MSA may result in an increase in bargaining power of the States vis-a-vis the tobacco manufacturers, but this increase in power does not interfere with federal supremacy; 2) the MSA and Escrow Statute working together did not create an antitrust violation; and 3) while the MSA did restrict the speech activities of participating manufacturers (PMs), the plaintiffs were not PMs and were not coerced to become PMs.

In re: Northlake Dev. L.L.C., No. 09-60743

In re: Northlake Dev. L.L.C., No. 09-60743, a creditor's appeal from the district court's affirmance of the bankruptcy court's decision that certain deeds the creditor held were legal nullities, the court certified the following questions to the Supreme Court of Mississippi:  When a minority member of a Mississippi limited liability company prepares and executes, on behalf of the LLC, a deed to substantially all of the LLC's real estate, in favor of another LLC of which the same individual is the sole owner, without authority to do so under the first LLC's operating agreement, is the transfer of real property pursuant to the deed: (i) voidable, such that it is subject to the intervening rights of a subsequent bonafide purchaser for value and without notice, or (ii) void ab initio, i.e., a legal nullity?


Stewart Enters., Inc. v. RSUI Indemn. Co., No. 09-30722, concerned an action by an owner of cemeteries, funeral homes and other commercial properties throughout New Orleans against its excess insurer to recover for wind and flood damage sustained during a storm.  The court reversed partial summary judgment for defendant, on the grounds that 1) under Louisiana law, ambiguities in the policy are to be interpreted in favor of the insured and thus the policy provided flood coverage; and 2) the policies' anti-concurrent causation clause did not operate within the $25 million dollar limit.

Mid-Continent Cas. Co. v. Bay Rock Operating Co., No. 09-50984

Mid-Continent Cas. Co. v. Bay Rock Operating Co., No. 09-50984, involved an action by an insurer seeking a declaration that damages awarded against defendant in an underlying suit arising out of an oil well accident were not covered by the policy at issue.  The court of appeals affirmed summary judgment for defendant on the grounds that 1) the insurer was collaterally estopped from re-litigating the subrogation right at issue because it was in privity with defendant; 2) defendant's subrogee's lack of an ownership interest in one well did not defeat defendant's claim for coverage; and 3) defendant showed that the costs at issue were related to property damage and thus covered by the policy.

Onoh v. Northwest Airlines, Inc., No. 09-10971, involved a state-law breach-of-contract and intentional-infliction-of-emotional-distress action against an airline.  The court of appeals affirmed the dismissal of the complaint on the grounds that plaintiff's conversation with an airline agent, in which the agent allegedly stated that "the U.S. State Department would not permit [her] to travel . . . .", was sufficiently related to defendant's provision of "services" under the Airline Deregulation Act to trigger preemption.

Saenz v. Harlingen Med. Ctr., L.P., No. 09-40887, concerned a Family and Medical Leave Act (FMLA) action based on plaintiff's alleged termination due to her epilepsy.  The court reversed summary judgment for defendant, holding that the district court erred when it held plaintiff to defendant's heightened in-house procedure, and further, plaintiff provided the minimum required notice under FMLA's default requirements.

Spotts v. US, No. 09-41039, involved an action by present and former inmates of the Federal Correctional Complex, United States Penitentiary, in Beaumont, Texas, in connection with the decision made by the Regional Director of the South Central Region of the Federal Bureau of Prisons, not to evacuate the Penitentiary in the aftermath of Hurricane Rita.  The court affirmed the dismissal of the action on the grounds that 1) plaintiffs did not plead, and never argued to the district court, that the Eighth Amendment precluded the application of the discretionary function exception to the Federal Tort Claims Act; 2) plaintiffs' contention that the Safe Drinking Water Act imposed nondiscretionary duties that were contravened by the decision not to evacuate lacked merit; and 3) defendants' decision was the type of policy decision protected by the discretionary function exception and therefore meets the second prong of the Berkovitz test.

In re: Mirant Corp., No. 09-10451, involved a fraudulent transfer adversary proceeding initiated by some of a debtor's affiliates in connection with a bankruptcy petition.  The court affirmed the denial of defendant's motion to compel arbitration on the grounds that 1) defendant moved to compel arbitration only after the district court had partially denied its third motion to dismiss, despite being fully aware of its right to compel arbitration from the outset; and 2) the eighteen-month delay between the filing of defendant's original answer and its motion to compel arbitration wasted judicial resources and disadvantaged plaintiff.

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Action Regarding Fatal Police Shooting, Plus Contract Action

Valle v. Houston, No. 09-20624, involved an action based on an incident in which decedent was shot and killed by Houston police officers during an incident at his family's home.  The Fifth Circuit affirmed on the grounds that 1) although an officer's decision to order entry into plaintiffs' home was arguably the "moving force" behind the constitutional violations that resulted in decedent's death, because his decision was not a decision by a final policymaker of the City, the City could not be liable; and 2) plaintiffs failed to present sufficient evidence of causation as to the entry of their home.

Bonn Operating Co. v. Devon Energy Prod. Co., No. 09-11040, concerned an action for breach of a joint operating agreement regarding an oil field.  The court of appeals affirmed summary judgment for defendant on the grounds that 1) case law was clear that "commencement of operations" for the drilling of a well occurs before the well is spudded; 2) defendant properly charged plaintiff for penalties from the date it commenced operations on the well until payout; and 3) plaintiff was estopped from claiming that the expenses incurred on the well before the ballot were not properly chargeable.

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Employers Mut. Cas. Co. v. Bonilla, No. 09-10476, involved an action for insurance coverage after a state court judgment established liability for a serious accident.  The court of appeals reversed summary judgment for defendants on the ground that the district court erred in denying coverage based on the argument that the injury did not arise from "use" of the vehicle.

In re: Moose Oil & Gas Co., No. 08-40840, involved an action for breach of a Working Interest Unit Agreement and Joint Operating Agreement.  The Fifth Circuit certified the following questions to the Supreme Court of Texas: 1) Did plaintiff have any right to enforce the contract -- the Working Interest Unit Agreement (WIUA) and its attached Joint Operating Agreement (JOA) -- to recover unpaid royalties, regarding certain oil wells, under the "Royalty Provision" of the JOA, either as a third-party beneficiary of the WIUA and JOA or by virtue of having privity of estate with defendant? 2) If plaintiff may enforce the contract, did the WIUA prevent plaintiff from recovering from defendant? 3) If defendant, as a Consenting Party, was responsible for royalties under the JOA, did the JOA Royalty Provision change the agreement within the JOA such that defendant was responsible for all of plaintiff's unpaid royalty jointly and severally, or did the JOA limit defendant's liability for unpaid royalty to the extent of his interest in the two wells at issue between the date of first production and February 2002?

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