In discovery, attorneys are always looking for that smoking gun or a way to hide it. They sometimes forget, however, that the judge is the one who can really pull the trigger. The Black-Robed One doesn’t really want to shoot anybody for playing fast-and-loose with discovery – at least not on the record. But when the judge fires off a warning shot in open court, the lawyers better listen very carefully....
“As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable.” That’s the money quote from Judge Andrew Hurwitz’s opinion for the Ninth Circuit panel, which held that bloggers enjoy the same free speech protections as traditional journalists, and under Gertz v. Welch, cannot be liable for defamation absent proof of negligence regarding the truth of the allegedly defamatory material. That’s true even if, as the court explicitly noted, the blogger “apparently has a history of making similar allegations and seeking payoff in exchange for retraction....
Late last week, a California judge threw out the state’s controversial “gig workers law.” The ruling casts massive uncertainty on the state’s large gig economy and the status of workers for companies like Uber, Lyft, DoorDash, Grubhub, and Instacart. Unconstitutional and ‘Unenforceable’ Approved by voters last November as Proposition 22, the new law exempted ride-share and food delivery drivers from California labor law, maintaining their status as independent contractors who received a limited set of benefits....
In Export-Import Bank of U.S. v. Advanced Polymer Sci., Inc., No. 09-3414, the Sixth Circuit faced a challenge to the district court’s refusal to set aside the Export-Import Bank of the United States’ confession of judgment against the obligor in the amount of $2,166,661. In affirming the district court’s judgment, the court held that a failure to assert the limitations period at the outset of litigation results in a waiver as a matter of course, and finding the defense waived at this later stage of the proceedings due to defendants’ failure to timely assert the defense does not result in a substantial miscarriage of justice....
In a prisoner civil rights action, district court judgment is affirmed in part where the court properly dismissed plaintiff’s claim of having been subjected to a cruel and unusual punishment as the prison guard’s actions could have not have reasonably be taken seriously as a threat. The dismissal of plaintiff’s claim that his right of free speech was infringed is reversed and remanded where plaintiff’s was not merely a personal gripe, and his punishment may have been in retaliation for uttering the grievance and thus an infringement of his freedom of speech....
Summary judgment against plaintiff in his suit against his former employer for violation of the USERRA Escher v. BWXT Y-12, LLC, 09-6054, involved a plaintiff’s suit against his former employer, a managing and operating contractor for the National Nuclear Security Administration (NNSA), claiming violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Tennessee Public Protection Act, and common law retaliation. In affirming the district court’s grant of defendant’s motion for summary judgment, the court held that the plaintiff does not point to evidence showing that his protected status was a motivating factor in the adverse employment action, and even if he could, defendant can show that it would have taken the adverse action anyway, for a valid reason....
FRCP 58 requires that judgments of any federal district court be in a “separate document,” and non-compliance causes an official date of judgment to be set 150 days after the court’s final decision. In Brown v. Fifth Third Bank, Judge Posner of the Seventh Circuit is confronted by a blatant disregard for the Federal Rules of Civil Procedure (FRCP) and decides that it’s time to lay down the law. And who doesn’t love it when Judge Posner lays down the law?...
Algerian national’s petition for review of a decision by the BIA denying his application for withholding of removal under the Immigration and Nationality Act (INA) and the Convention Against Torture (CAT) is granted in part and denied in part where: 1) the petition as to withholding of removal under the INA is granted and remanded as, assuming petitioner’s testimony to be credible, the evidence compels a finding that police abused him based on an imputed political opinion; and 2) the petition with respect to withholding of removal under the CAT is denied as neither the actions of the Algerian police nor those of the GIA (Armed Islamic Group) amounted to torture....
When Memphis Light, Gas and Water denied one of their own in house attorney’s request for a reasonable accommodation to work from home during a period of temporary disability related to a pregnancy, the public utility likely didn’t think they’d get sued. It’s not like lawyers are a very litigious bunch… oh wait… . When it comes to denying an employee a reasonable accommodation, employers should take heed and learn the lesson the Memphis utility is learning the hard way (after losing their Sixth Circuit appeal): if the accommodation is objectively reasonable, it should be granted despite a boss’s subjective beliefs....
Is an elephant a “person” with rights belonging to human beings? The New York Court of Appeals, New York’s highest court, has been asked to say “yes.” The elephant’s name is “Happy.” She has lived for 40 years at the Bronx Zoo in New York. An animal rights organization, the Nonhuman Rights Project (NhRP), sued to have Happy transferred to an animal sanctuary where she would have much more living space....
Bloodied and battered, Rene Richards told police her boyfriend had beaten her. She had trouble explaining details, saying his name was George Harris or George Harrison. The officers showed her a photo, and the woman identified the man. As George Harrison tried to board a plane for vacation, Homeland Security took him into custody. He said they had the wrong guy, and he was right. In a civil rights lawsuit, he says it wasn’t a case of mistaken identity; it was a case of sloppy police work....
In plaintiff’s 42 U.S.C. section 1983 action against two police officers on behalf of the estate of her husband arising from a high speed chase of armed robbery suspects that killed her husband in an automobile crash, summary judgment in favor of the defendant police officers is affirmed where: 1) the estate did not establish a prima facie case of deprivation of the husband’s substantive due process rights as officers’ actions of trying to apprehend what they reasonably believed to be dangerous criminals do not shock the conscience; and 2) in the alternative, even if the officers’ actions did rise to the level of violating the husband’s constitutional rights, it was not clearly established at the time of the incident that actions of that sort crossed the constitutional line....
In a dispute involving insurance liability coverage, district court’s grant of summary judgment for plaintiff is affirmed where: 1) the cotton was in defendant’s custody, control and care at the time of the property-damaging occurrence and thus the control and care exclusion in the insurance policy issued by plaintiff applied; and 2) the damage to the cotton was not covered by defendant’s agribusiness insurance policy as the defects, errors and omissions exclusion in the policy applies and precludes coverage of the loss....
We’ve just about had enough with the notion that breast cancer awareness-promoting bracelets reading “I Heart Boobies” are lewd or indecent. But apparently, the Easton Area School District has not. Earlier this week the school board voted 7-1 to appeal the Third Circuit’s decision to the Supreme Court of the United States, reports The Assoicated Press. In this time of shrinking school budgets, the Pennsylvania school district would rather pursue litigation, than education....
It seems like walking in o a bar and being gay can subject you to being treated like a criminal in Atlanta. CNN reports that a federal lawsuit against Atlanta police was filed last Tuesday. The lawsuit was on behalf of patrons of a gay bar called the Atlanta Eagle who claim that Atlanta police forcibly searched and detained them on the night of September 10. The police who were sued claim that they were just trying to do their job....
In Miller v. LaSalle Bank Nat’l Ass’n, No. 09-3013, the Seventh Circuit was required to interpret the legislative intent of a provision in the 2007 Amendment relating to recoding statutes, arising from an underlying bankruptcy proceeding involving a trustee’s purchase of debtor’s property with a recorded mortgage containing a technical defect. As stated in the decision: “Given the obvious ambiguity in the 2007 Amendment, and the apparent activity of the bankruptcy trustees in aggressively seeking to avoid mortgages on technical grounds even after the 2007 Amendment, we hold that the 2008 Amendment did not change the meaning of the statute as amended in 2007, but merely clarified it to effectuate the legislature’s intent in 2007....
The Supreme Court is taking it easy this week, eschewing First Amendment and regulatory cases (the latter being its new favorite thing) in favor of more prosaic patent and bankruptcy cases. The biggest case set for argument this week is probably one regarding executing a mentally retarded inmate, though even that focuses heavily on procedure. Here’s a roundup of the oral arguments the Supreme Court will hear during the week of March 30....
District court’s grant of summary judgment on claim of violation of Minnesota lemon law and Magnuson-Moss Warranty Act violation is affirmed where: 1) plaintiff failed to present evidence that the engine stalls substantially impaired the use or market value as required by the lemon law, and the claim relating to transmission leaks was barred by statute; and 2) the breach of warranty claim was properly denied, as there was no dispute that an alleged breach of warranty relating to stalls or transmission fluid leaks caused any harm....
Law firms representing 200 customers cheated by Bernard L. Madoff Investment Securities Inc. (BLMIS) filed papers in the Second Circuit Court of Appeals last week requesting a full court rehearing in In Re: Bernard L. Madoff Inv. Sec., LLC. In August, a three-judge panel affirmed a bankruptcy judge’s decision to disregard the Madoff victims’ falsified account statements in calculating recovery from the customer property fund. Irving Picard, the trustee for liquidation of BLMIS, argued that the customer statements do not reflect “securities positions” that could be “liquidated” because the account statements were wholly the invention of Madoff and do not reflect actual securities positions....
Kobus v. Coll. of St. Scholastica, No. 09-1583, concerned an action against plaintiff’s former employer, alleging that his forced resignation interfered with or denied his rights under the Family Medical Leave Act (FMLA), and discriminated against him on account of disability in violation of the Americans with Disabilities Act (ADA), and the Minnesota Human Rights Act (MHRA). The Eighth Circuit affirmed summary judgment for defendant, on the grounds that 1) no reasonable jury could find that defendant’s FMLA documents were ambiguous in requiring a medical certification as part of an FMLA leave application; and 2) the record contains no specific evidence that plaintiff’s limitations were apparent at work....
