The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

We in Texas take our cheer leading seriously--seriously enough for some to make a federal case out of it apparently.

For that is what happened in Sanches v. Carrollton-Farmers Branch I.S.D. where complaints over not making the squad escalated to a federal civil rights lawsuit under Title IX and 42 U.S.C. § 1983.  

Hat tip to the ABA Blog and Above The Law for noticing the case first.

If some lawyers might think twice about seeking federal remedies over such facts, a cautious lawyer might think thrice about whether and how to appeal to the Fifth Circuit. 

After the break, a word about how you can make a weak claim worse through bad grammar or by failing to take some time to sleep on it before you cast darts at the lower court.

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Here is the Murphy's Law of the blogosphere: courts will let fly with all kinds of new opinions when the blogger lacks time to keep up with them.

Lest I fall too far behind, here are three from the mighty Fifth Circuit's output in the last week that may be of interest to the civil practitioner.

The opinions run the gamut from:

• preserving a claim of trade secrets composed of a combination of publicly known components,
• denying discharge of a debt because the officer of a general partner company also controlled the limited partnership, to
• reversing certification of a mass tort class action that lacked a trial plan to deal with the non-common issues between the plaintiffs.

Details after the break.

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The statute creating removal jurisdiction allows a "Defendant" to remove a claim to federal court. But what about an intervenor who later has claims asserted against it? Isn't that kind of like being a defendant?

Maybe, but that's not good enough. The Fifth Circuit released In re Crystal Power Company, Ltd. on Monday, granting mandamus relief to address the district court's refusal to grant a motion to remand such a case. Judge Higginbotham  wrote the court's opinion.

The court found the intervenor's status indistinguishable from that of a state court plaintiff who later tries to remove federal counterclaims -- a procedural posture that the Supreme Court refused to allow 70 years ago in Shamrock Oil & Gas Corp. v. Sheets. Judge Higginbotham wrote:

Although this case involves a cross-claim rather than a counter-claim, the answer is the same. The controlling legal principle from Shamrock is that “the plaintiff, having submitted himself to the jurisdiction of the state court, [is] not entitled to avail himself of a right of removal conferred only on a defendant who has not submitted himself to the jurisdiction.” If the [intervenor] wished for a federal forum, it was required to pursue a separate action in federal court. Having chosen to intervene as a plaintiff in state court, the firm forfeited its right to removal.

Congress meant what it said and said what it meant. "Defendant" means Defendant, one hundred percent.

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We now return you to our regularly scheduled law blog.

Wouldn't you know the week that work piles on, the Fifth Circuit does too. The court released lots of published opinions in the last week. In particular, if you're an administrative law junkie, or a fan of trying to sue the federal government, there will be several cases that float your boat.

If, however, you are an average Joe like me, never fear. We have sorted the ones that might interest the civil appellate practitioner.

• If you ever drive into the side of a non-moving train that has been parked on the crossing too long, Elam v. Kansas City Southern (pdf) sets out which causes of action will survive preemption under the Interstate Commerce Commission Termination Act. (Negligence per se was, general negligence was not). Judge Benavides wrote the court's opinion.
• Del Ray Battery Co. v. Douglas Battery Co. (pdf) involves a federal declaratory judgment action seeking declaratory relief, attorneys fees and experts fees that had been cut off when a state action had been nonsuited.  It reads like a fed courts final exam question involving mootness (it was not), the Rooker-Fedlman doctrine (no bar here), federal question jurisdiction (which was found), preemption of the Texas Solid Waste Disposal Act (it was not preempted). Judge King wrote the court's opinion.
• Finally, Ford, Bacon & Davis LLC v. Travelers Ins. Co. In this case the "LLC" was all important because LLC was trying to piggy back off of Ford, Bacon & Davis, Inc.'s insurance coverage, arguing that the coverage transferred to LLC "as a matter of law" when it bought some of Inc.'s assets. Judge Prado wrote the court's opinion, rejecting the argument because the "product line" theory of successor liability on which the argument depends is not viable under Texas law. 

And in the interest of full disclosure, one of the reasons Ford, Bacon & Davis is so tasty is because it was my case. If you have occasion to deal with successor liability and insurance coverage issues, the opinion will be of use to you.

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The spirit of protest is abroad in the land!

Tyranny quakes in the face of the Jasmine Revolution, the Facebook Revolution, and the Scrabble Revolution!

What? Am I the only one who's familiar with the Scrabble Revolution? Am I a revolution of one?

Am I the only word nerd prepared to cast my Scrabble tiles into Boston Harbor in protest of the tax on letters?

OK, I'll concede that my Scrabble Revolution pales in significance to the real revolutions around us. But the letter tax still makes my head explode. And this is my blog, so in this little corner of the universe, it's all about me.

After the break, find out why I am convinced that there must be a tax on letters to make the courts write the way that they do.

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It has been awhile since we touched on the Fifth Circuit, but the MIghty Mighty Fifth neither slumbers nor sleeps. The Court has taken an ADA case en banc and has released two cases dealing with federal preemption as applied to medical devices.

On the ADA font, Frame v. City of Arlington involves the potential application of the Americans with Disabilities Act to a city and its sidewalks and curbs as well as how the statute of limitations applies to such claims.

• A panel of the Court first held (pdf) that the City’s curbs, sidewalks, and parking lots constitute a service, program, or activity within the meaning of Title II but that the district court had misallocated the burden of proof on limitations.
• On rehearing (pdf), the panel recognized that the case presented an issue of first impression and held that that sidewalks curbs, and parking lots are not Title II services, programs, or activities; thus, the plaintiffs lack a private right of action to enforce the regulations unless noncompliance has denied access to a service, program, or activity--if they survive the statute of limitations on which the district court had misallocated the burden of proof.
• Now (pdf) the en banc Court will consider the case after taking supplemental briefing.

Two different panels of the Court also issued decisions dealing with preemption of personal injury claims arising from medical devices:

• In Hughes v. Boston Scientific Corporation (pdf), the Court held that the Medical Device Amendments to the Federal Food, Drug, and Cosmetics Act preempted the plaintiffs’ claims concerning a HydroThermAblator used to treat excessive uterine bleeding. “Failure to warn” claims against the manufacturer were viable to the extent it was predicated on the failure to comply with federal statutes and regulations. Judge Davis wrote the Court’s opinion.
• In Funk v. Stryker Corporation (pdf), the Court affirmed dismissal of the plaintiff’s claims arising from his hip replacement because the claim, as pleaded, was preempted. There are additional procedural wrinkles. The Court did not consider a potential theory in the plaintiff’s second amended complaint because he had not appealed the order denying leave to file it. Likewise, the Court validated the district court’s use of judicial notice as being consistent with a dismissal on the pleadings. Judge Jolly wrote the Court’s opinion.  

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Yesterday the Fifth Circuit released Janvey v. Alguire (pdf), another chapter the ongoing litigation over R. Allen Stanford and his alleged Ponzi scheme.  The District Court had entered an injunction essentially freezing the accounts of certain former employees and advisers of the Stanford Group.  The Fifth Circuit affirmed and Judge Prado wrote the Court's opinion.

The Court held:

1. the district court had the power to decide the motion for preliminary injunction before deciding the motion to compel arbitration;
2. the district court did not abuse its discretion in granting a preliminary injunction;
3. the preliminary injunction was not overbroad;
4. the district court acted within its power to grant a Texas Uniform Fraudulent Transfer Act (“TUFTA”) injunction rather than an attachment; and
5. the Receiver’s claims are not subject to arbitration.

The case presents a potential conflict between the Federal Arbitration Act (intended to avoid judicial resolution of the merits) and the power of courts to grant an injunction (which may involve entanglement in the merits). The Court noted different approaches taken by different circuits and ultimately held that the FAA did not impair a district court's ability to preserve the status quo while it was deciding whether a claim was arbitrable and before that arbitration decision had been made.

Here, the Court also affirmed the denial of the motion to compel arbitration on the grounds that the receiver stood in the shoes of the Stanford creditors, not the Stanford Companies who were parties to the employee arbitration agreements.

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Many thanks to Jason Shyung, blog contributor and recent Fifth Circuit clerk, for lending a hand in compiling this material, because the Fifth Circuit has been busy this holiday season. It has released a number of opinions that should be of interest to civil practitioners:

• Cal-Dive Int’l, Inc. v. Seabright Ins. Co. (pdf) reverses a district court’s determination that Seabright Insurance Company had a duty to defend a certain personal-injury lawsuit. The court found that Seabright was absolved from any duty to defend the lawsuit because:

(1) Seabright’s policy included a “Protection and Indemnity” exclusion that removed from coverage any injuries covered by another protection and indemnity policy; and

(2) it was undisputed that such a policy existed and covered the injuries at issue. Judge Davis wrote the court’s opinion.

• Overstreet v. El Paso Disposal, L.P. (pdf) affirms a district court’s grant of injunctive relief under Section 10(j) of the Labor Relations Management Act. In its decision, the Fifth Circuit made a number of significant holdings, including the following:

(1) injunctive relief under Section 10(j) of the Labor Relations Management Act is not governed by the traditional four-part equitable test for injunctive relief that requires a showing of irreparable harm;

(2) the National Labor Relations Board (“NLRB”) may delegate its authority to seek injunctive relief under Section 10(j) to its General Counsel;

(3) the NLRB’s General Counsel does not lose any authority delegated to him or her when the NLRB does not have a quorum to do business if it had such a quorum at the time it delegated the particular authority at issue; and

(4) a district court in granting injunctive relief may not order a party to agree to a bargaining proposal.

Judge Wiener wrote the court’s opinion.

• Freeman v. Quicken Loans, Inc. (pdf) holds that section 8(b) of the Real Estate Settlement Procedures Act does not prohibit a lender from charging borrowers loan discount fees or loan processing fees at the closing of a mortgage transaction so long as the lender does not split the fees with another party. Chief Judge Jones wrote the majority opinion. Judge Higginbotham dissented.
• Keller Founds., Inc. v. Wausau Underwrites Ins. Co. (pdf) holds that non-assignment clauses in insurance policies are enforceable under Texas law and coverage does not transfer to an alleged "successor" by operation of law where the policies are excluded from an asset transfer. Judge Owen wrote the court’s opinion. 

 Thanks again to Jason and stay tuned for more Nerdlaws to come. 

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Lest we fall behind with all the Nerdlaw fun and games, I feel compelled to highlight a new opinion that will be of interest to civil and appellate practitioners for its treatment of issues concerning class certification and law of the case. 

The Fifth Circuit recently released Gene & Gene v. Biopay (pdf) in which the Court held that the putative class plaintiff did not get another whack at certifying a class after an interlocutory appeal rejecting their first effort had been remanded for "further proceedings not inconsistent with this opinion." 

The opinion rejecting the second attempt invoked the "law of the case" doctrine providing that “an issue of law or fact decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal.”  Judge Clement wrote the Court's opinion.

The Court held that the District Court's continuing duty under Rule 23 to assess class certification orders did not trump the court's prior opinion denying class certification after discovery was complete, the issue fully briefed below and appellate resources already expended on the issue:

Discovery was complete when Gene successfully moved for class certification. When this court exercised its discretion and heard BioPay’s Rule 23(f) appeal, both parties had another full opportunity to argue the propriety of the class certification decision. When this court reversed, we held that “the determinative question of whether consent can be established via class-wide proof must, given the particular facts of this case, be answered in the negative. Gene has failed to advance a viable theory of generalized proof” concerning lack of consent. . . . The district court interpreted this language, along with this court’s remand “for further proceedings not inconsistent with this opinion,” as meaning “there is nothing in the opinion to preclude Gene from asserting a viable theory on remand.” . . .

[But] [t]he issue of class certification was expressly decided by this court in BioPay I and “that should be the end of the matter.”

Second, the "new evidence" on which the plaintiff relied was not really new at all and did not justify an exception to the law of the case:

Although BioPay did not produce the FileMaker Pro database in its native format in 2006, BioPay did produce selected screenshot printouts of that database at that time. Gene contends that it “now knows” that “an objective methodology exists to identify all class members who gave their consent” as a result of the disclosure of the database in its native format. But the screenshot printouts of the FileMaker Pro database produced in 2006 show every field needed to determine whether a particular contact may have consented to receive a fax. . . . [E]ven assuming that the “new” theory of identifying class members who did not give their consent to receive a fax is viable, the selected screenshot printouts demonstrate that this theory could have been advanced to the court in BioPay I. . . . [T]he evidence disclosed on remand was not “substantially different” from the evidence disclosed before BioPay I and that the “substantially different evidence” exception to the law of the case doctrine does not apply.

So, like Horton, everyone's favorite elephant, the Fifth Circuit "meant what it said and said what it meant."  District courts and parties must follow the mandate, "one hundred percent."    

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Yesterday, the Fifth Circuit released Croft v. Perry(pdf) in which the Court rejected a facial challenge under the First Amendment to the Texas Pledge of Allegiance, to which the words "under God" were added in 2007.  Judge Jolly wrote the Court's opinion.

The plaintiffs did not want their children saying those two words each morning in class, so of course they sued the Governor. They argued that the amended pledge violates the Establishment Clause in four ways:

(1) the pledge’s use of the singular “God” impermissibly favors monotheistic over polytheistic beliefs;
(2) the amendment does not have a secular purpose or effect, as any stated purpose is pretext for a religious motivation;
(3) the pledge impermissibly endorses religious belief by affirming that Texas is organized “under God”; and
(4) the pledge’s recitation in schools pursuant to § 25.082 of the Texas Education Code impermissibly coerces religious belief.

The Court rejected each argument in turn.  It noted that the Supreme Court's lingo on the Pledge of Allegiance was all dicta, but it was really good dicta:

The Supreme Court has never directly addressed the constitutionality of the national pledge, but has suggested in dicta, time and again, that the pledge is constitutional. See Lynch v. Donnelly, 465 U.S. 668, 676 (1984); County of Allegheny v. ACLU, 492 U.S. 602–03 (1989). The closest case to deciding the issue, Elk Grove Unified School District. v. Newdow, was resolved on standing grounds, but three justices would have upheld the pledge either as a recognition of the importance of religious beliefs to our founding, 542 U.S. 1, 32 (2001) (Rehnquist, C.J.), or as a form of ceremonial deism, id. at 36 (O’Connor, J.). Even the majority described the pledge as “a public acknowledgment of the ideals that our flag symbolizes” and its recitation as “a patriotic exercise designed to foster national unity and pride in those principles.” 542 U.S. at 6. Although dicta, we do take such pronouncements from the Supreme Court seriously. See Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n.4 (11th Cir. 1997); United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980).

Three other circuits had found the same dicta persuasive, and the Fifth Circuit did too.  For me, that is the principal use for this case: how to use really good dicta. 

But for you SCOTUS wonks and culture war pundits, "Let the wild rumpus start."

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While I have been drinking deeply at the "font" of typography, the Fifth Circuit has been cleaning its plate.  Lest we fall behind, a quick update on notable cases and issues of interest on the civil side.

En Banc

• Adar v. Smith (pdf): The court granted rehearing en banc (pdf) of the panel opinion requiring the registrar in Louisiana to issue a new original birth certificate listing the parentage of a same sex couple whose adoption of the child was valid and recognized under New York law where the adoption occurred.  Arguments and briefing to come.
• Castellanos-Contreras v. Decatur Hotels (pdf): A divided en banc court sided with the previous panel opinion reversing an interlocutory summary judgment ruling and holding that foreign hotel workers who were present in the country on H2B visas were properly paid under the FLSA.  The workers had argued that their wages were below minimum wage when one deducts placement fees charged by recruiters, visa application fees, and relocation expenses for which they claimed they were entitled to be reimbursed. Judge Haynes wrote for the majority of the en banc court.

Other New Opinions

• Richards v. Louisiana Citizens (pdf): Not really interesting for the substantive issues involved, the court's refusal to grant appellate sanctions is primarily useful in setting out what the court might look for before sanctions are granted: a silly argument (e.g., income tax is voluntary), going back to an argument that has already been rejected, mischaracterizing evidence, and particularly egregious attempts to misinterpret the law.  In Richards, neither side had pointed to a "white horse" case in its favor.  Judge Stewart wrote the court's opinion.
• Gulf Coast Shell & Aggregate v. Newlin (pdf): Arising out of a failed oyster dredging venture, this case was ordered dismissed by the Fifth Circuit because it did not fall within the admiralty jurisdiction of the federal courts.  The court, in an opinion by Judge Jolly, concluded that the claimant's "Rule D" claims failed because it had an equitable rather than legal claim to title and possession of the vessel, and that its contract and tort claims were not maritime in nature.
• Espinoza v. Cargill Meat Solutions (pdf) holds that Texas law permits an employer to put employees to a three way election: (1) worker's comp, (2) retaining common law workplace injury claims, or (3) an "occupation and temporary disability plan" under the Labor Management Relations Act.  Having picked number 3, the plaintiff's workplace injury claim was preempted by federal law and dismissed for failure to follow the claims procedures under the plan. Judge Prado wrote the court's opinion.  

And finally:

• Griffin v. Lee (pdf) holds that an attorney cannot intervene for his fee in a case where jurisdiction is based upon diversity of citizenship where he is neither diverse nor seeking an amount in excess of the jurisdictional minimum--because 28 U.S.C. § 1367(b) says so.*

And that's the way it was.  Tune in again next week for more document design nerdiana.

* Not to put too fine a point on it, but Judge Per Curiam expended 15 pages and numerous block quotes saying the same thing, qualifying this opinion as nominee for the Appellate Record Deforestation Award.

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It's that time of year, campers.  The courts are back to it and the Fifth Circuit is no exception, releasing several opinions this week that civil law wonks will want to know about.

• Rio Grande Royalty Co., Inc. v. Energy Transfer Partners, Inc. (pdf) affirms the 12(b)(6) dismissal of a putative class action attempting Texas common law fraud claims complaining of a failure to disclose alleged market manipulation concerning the price of gas.  Chief Judge Jones wrote the court's opinion. 
• Jackson v. Watkins (pdf) affirms (per curiam) a summary judgment rejecting an employment discrimination claim by a male, Caucasian attorney from the Dallas County District Attorney's office who complained that Caucasian section chiefs had been improperly replaced with African Americans.  The court ruled that he failed to rebut each of the nondiscriminatory reasons offered for his dismissal.
• Positive Software Solutions, Inc. v. New Century Mortgage Corp. (pdf) holds that the district court did not have "inherent authority" to impose sanctions for conduct occurring in an arbitration.  The conduct did not occur before the court, and stretching inherent power so far threatened to entangle the judiciary in arbitration--which by definition is intended to be nonjudicial.  Judge Smith wrote the Court's opinion.
• Anderson v. Cytec Industries, Inc. (pdf) affirms (per curiam) the denial of ERISA disability benefits to a participant claiming PTSD after Hurricane Katrina.  The Court found no abuse of discretion in the administrator requiring objective, clinical proof that the participant (who had been functional with PTSD) was no longer able to function where it appeared the participant's refusal to return to work in New Orleans might have been due to an inability to find suitable housing for his disabled spouse, not his own claimed psychological disability.  
• In re Katrina Canal Breaches Litigation (pdf) rejects the government contractor immunity defense of a defendant who contracted with the Army Corps of Engineers to accomplish its "Inner Harbor Navigation Canal Lock Replacement Project" in New Orleans.  (It had been alleged that negligently performing this work had contributed to post-hurricane flooding).  Judge Smith wrote the Court's opinion.

But my favorite is the most recent.  I think it is my favorite because it shows that karma is still alive and well in the Fifth Circuit.

• Reed v. City of Arlington (pdf) says that you can't collect on a million dollar judgment against a defendant (in this case the plaintiff's employer) after fooling your bankruptcy creditors into thinking you have no assets by keeping the judgment a secret when you file for bankruptcy protection.  Judicial estoppel (and Chief Judge Jones, the author of the opinion) will bar your claim. 

And that's the way it was.  Tune in next week for the first in a series of Nerdlaws for the discriminating brief writer. 

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Several opinions this week from the Mighty Mighty Fifth Circuit that will be of interest to civil practitioners.  They run the gamut from Free Speech and Assembly to original federal proceedings seeking discovery for use in a foreign action. 

• Ecuadorian Plaintiffs v. Chevron Corporation (pdf), written by Judge Benavides, the Court affirmed an order under 28 U.S.C. § 1782(a) requiring a "foundational deposition." Chevron, which had been sued in Ecuador for environmental damage, sought to establish that an ostensibly neutral expert appointed by an Ecuadoran court was really in cahoots with the plaintiffs. 
• International Women's Day March Planning Committee v. City of San Antonio (pdf), again written by Judge Benavides, is a thorough First Amendment test of the parade permitting ordinance enforced by the City of San Antonio.  It passed.  
• Martin v. Halliburton (pdf), written by Judge King, amends the court's earlier opinion of March 23.  The case arose out of the activities of governmental contractors in support of the military effort in Iraq.  The Court dismissed the appeal for lack of appellate jurisdiction, holding that the denial of the defendants' assertions of immunity did not fall within the collateral order doctrine. 

And that's the way it was.  Stay tuned next week for discourse on the hardest instrument to play, and what it has in common with being an appellate lawyer. 

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On Monday, the Fifth Circuit released Jacskon v. Tanfoglio Giuseppe S.R.L. (pdf) affirming the district court’s dismissal for lack of personal jurisdiction over the affiliate of a defunct Italian firearms manufacturer. Judge Garza wrote the court’s opinion.

It only took three appeals to finally result in the district court's dismissal of an affiliate that did not manufacture any part of the allegedly defective firearm. Along the way, the Court held:

• There was no general jurisdiction based upon two unrelated trade show visits, untargeted national advertising and shipment of components (for other than the firearm in question) to Florida for assembly;
• There was no specific jurisdiction based upon the stream of commerce theory principally because the defendant did not start manufacturing the model of firearm at issue until after the decedent’s accident; and
• The jurisdictional contacts of the defunct affiliate that manufactured the firearm could not be attributed to the defendant because they were not alter egos or a single enterprise--the companies had maintained all the corporate formalities required by Italian law and had properly liquidated the failed manufacturer under Italian law.

Also of interest on Monday was Combo Maritime, Inc. v. U.S. United Bulk Terminal (pdf), which deals with settlement, contribution issues, and presumptions in maritime collision cases. It gets an honorable mention just for citing a really really old admiralty doctrine deriving from the Laws of Oleron in the 12th century. 

Evidentiary presumptions and 12th century law from the Consolato del Mare.* It just doesn’t get any better than this.

*According to the History of Law website, The Consolato del Mare inspired the second great code of maritime regulation, the Laws of Oleron, which are supposed to have been compiled about A.D. 1150. It is generally understood that we owe them to a woman, Eleanor, Duchess of Guienne, Queen first of Louis VII of France, who procured a divorce from her, and afterwards of Henry II of England, the first of the Plantagenets.

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Wednesday, the Fifth Circuit released Choice Health Care Inc. v. Kaiser Health Plan of Colorado (pdf) in which it upheld the dismissal of a foreign health insurer/HMO for lack of personal jurisdiction.  The court rejected an attempted extension of the "stream of commerce" theory of minimum contacts in an opinion written by Circuit Judge Davis. 

After the break, analysis and details of the opinion.

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In my last post, I summarized the Fifth Circuit's new MGE UPS Systems opinion.  The substance is sound and important to civil lawyers, but I've got a bone to pick with the author.

This legal writing rant could be brought to you by Radio Shack and its series of Tour de France Alphonse commercials with Lance Armstrong.  The one I have in mind is, "LOL," where Lance sets out the rules of engagement:

First things first: No man over the age of 30 will EVER use emoticons. 

And poor Alphonse replies, "LOL, Lance," to which Lance gives his steely glare: 

Whoa.  LOL??!!!  Don't make me get off this bike.

Not that I am the Lance Armstrong of anything, but I propose a new rule:

No one with a law degree will EVER make up his or her own acronyms.

I've heard judges complain about briefing in which every corporation and affiliate bears its own inscrutable acronymic reference.  And the complaints are well taken.  You shouldn't need a score card or an answer key to tell who did what to whom. If one has to either memorize new abbreviations or flip back and forth to the definitions, the odds of engaging that reader are markedly diminished.

But the same can be said for opinions that are an alphabet soup of abbreviations.  Why not give parties and statutes names that make intuitive sense? (And secondarily, why can't companies have names instead of alphanumeric hieroglyphic identifiers??)  In the first pages of MGE, for example, we are treated to:

• MGE
• GE
• GE/PMI
• DMCA

And this opinion is not even a big offender.  But all one really needs is MGE and Power Management.  Because of all the extras, I can tell you that I was not LOL-ing or ROTFLMAO-ing or even LQTM-ing while I was trying to learn the technology involved in the dispute.  Several times, I was all, like, "BRB--I have to turn back to the first page to figure out what's going on here."

Simply stated, neither briefs nor opinions ought to read like Bankruptcy Plans or Offering Memoranda.  (Bankruptcy Plans and Offering Memoranda likely ought not be the way they are either, but that's a post for another day.)

Now, I'm not condemning acronyms that everybody knows already, e.g., IRS, NASA, USA, AT&T or ERISA.  Those kinds of acronyms aid comprehension because they already contain meaning.  Because they aid in precision and understanding they are good. 

But excessive use of made up acronyms rather than just calling the parties "Power Maintenance" or "Plaintiff" violates Kendall's Prime Directive Of Legal Writing:

No matter what Bryan Garner and the Bluebook say, anything that interferes with understanding is bad.

So, please.  The life you save may be your own:

No one with a law degree will EVER make up their own acronyms.

Don't make me get off this bike.

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Yesterday, the Fifth Circuit released an opinion of some importance for commercial and intellectual property litigation.  

In MGE UPS Systems Inc. v. GE Consumer Industrial Inc. (pdf), the Court affirmed an injunction against a competitor's unauthorized use of security "dongles" to boot up software necessary to service and calibrate uninterruptible power supplies.  All the underlying damage claims, however, failed.  Judge Garza wrote the Court's opinion.   

The Court held that

1. The Digital Millennium Copyright Act's provisions on circumventing technological measures protecting copyrighted work "prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners."  You can get a copy of the Act here (pdf) and a summary of it's contents here (pdf).
2. The plaintiffs' claims for damages for copyright and misappropriation of trade secrets claims could not be sustained based upon evidence of the wrongdoer's gross revenues.  

The damages question has the widest application to commercial and intellectual property litigation.   The Plaintiff's "Plan A" failed when it's damages expert was struck and it's lay witness was found to be insufficient to establish a reasonable royalty.  The Fifth Circuit was not asked to review these trial court rulings.  While the statutory and common law claims would have allowed for recovery of the wrongdoer's profits from the violation or misappropriation, all that was left was information concerning the defendant's gross revenues from a variety of businesses. 

This was not enough. Not only is gross revenue not the same as profit, the Court made an "Erie Guess" that Texas would not adopt a comment from the Restatement (Third) of Unfair Competition placing the burden on the defendant to show what was not attributable to the wrong once a plaintiff had placed a gross number in issue. 

Said the Court:

In the only reported Texas case involving the recovery of defendant’s profits for a misappropriation of trade secrets claim, the Dallas Court of Appeals held that although defendant’s profits are a “proper element[ ] of damages in a case involving the wrongful use of a trade secret,” a plaintiff cannot recover damages without offering evidence “to show the actual profit made by [defendant].” Elcor Chem. Corp. v. Agri-Sul, Inc., 494 S.W.2d 204, 214 (Tex. Civ. App.--Dallas 1973, writ ref’d n.r.e.) . . .

* * * 

MGE points to PMI’s total revenue . . . and argues that, under the Restatement, this exhibit satisfies its burden of proof with regard to PMI’s “sales” of providing service to UPS machines. MGE contends that GE/PMI subsequently had the burden of demonstrating which portions of PMI’s revenue were not attributable to the state law claims, which it failed to do. Texas courts have not adopted the RESTATEMENT (THIRD) OF UNFAIR COMPETITION in its entirety and whether § 45’s comment f is controlling in Texas courts is still an open question. . . . The burden-shifting procedures noted in comment f are not included in the first RESTATEMENT OF TORTS, whose definition of and factors used to identify trade secrets are still used by Texas courts. . . . Neither the Texas Supreme Court nor any of the Texas appellate courts have specifically applied comment f to determine a defendant’s profits in a trade secret action. Given that comment f’s standard sets a plaintiff’s burden of proof for trade secret damageslower than the standard applied in Elcor, we conclude that the Texas Supreme Court would not adopt the burden-shifting procedures of comment f.

Watch this space for some further commentary on MGE. 

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Yesterday, the Fifth Circuit released Willow Bend v. Downtown ABQ Partners, a personal jurisdiction case that will be of interest to commercial practitioners.  The contractual and breach of fiduciary duty claims arose out of a Louisiana real property transaction.  The Court affirmed a dismissal for lack of personal jurisdiction as to a non-signatory individual (Garcia) and the partnership for which that person was the managing partner (Downtown ABQ).   Judge Higginbotham wrote the Court's opinion. 

Determining minimum contacts can sometimes be like trying to nail jello to a tree.  But Judge Higginbotham (in characteristic fashion) gives the analysis some structure. 

Judge Higginbotham's take on minimum contacts requires a nexus between:

• the forum;
• a particular party; and
• a substantive legal duty actually pertaining to that specific party. 

The nexus was present with regard to the company that actually entered into the contract.  It did not exist for Garcia, nor for the partnership managed by Garcia.  The reason: the duties alleged were tethered to the contract to which they were not a party and did not apply to them.

This paragraph from the opinion sums it up:

[The] written agreement is no throwaway: in fact, it is the critical forum contact in this case, and the linchpin of the district court’s exercise of jurisdiction over Blue Dot. Willow Bend’s winning breach of contract and breach of fiduciary duty claims against Blue Dot arose out of and resulted from Blue Dot’s primary contact with the state of Louisiana—its contract with Willow Bend. Without a contract tying the non-signatories Garcia and Downtown ABQ to Willow Bend’s claims against them, however, those claims share an inadequate nexus to the forum: . . .  Willow Bend sued for breach of contract and breach of fiduciary duty, after all, and a defendant cannot be said to have breached a contract it never made or to have skirted a duty it never assumed. . . . Willow Bend contracted with Blue Dot—and Blue Dot alone—and it is with Blue Dot that its claims for breach of contract and breach of fiduciary duty must lie.

Thus, jurisdiction and the merits are enmeshed because jurisdiction is "claim specific." Had the breach of a different legal duty that applied to the non-signatories been alleged (e.g., fraud) a different result might have obtained. 

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Did you notice when the Fifth Circuit ceased to be?

Let me explain.

No, let me sum up.

The Fifth Circuit ceased to exist for one particular case.  The result was a non-en-banc en banc reversal of the panel opinion, and the non-affirmance affirmance of the the district court opinion. 

I am referring to Comer v. Murphy Oil.  The District Court dismissed the case holding that hurricane victims could not sue the military industrial complex for worsening their hurricane damage by contributing to global warming.

A panel of the Fifth Circuit held, "yes you can."

The en banc court said, "no you can't"

Except it didn't.  Well, kinda.  After the jump, an explanation and a recommendation. 

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The next Fifth Circuit Judge may be a Mississippian.  Yesterday, President Obama nominated James E. Graves, Jr. to fill a vacancy on the United States Court of Appeals for the Fifth Circuit.  Justice Graves currently serves as the presiding justice on the Mississippi Supreme Court and had a wide range of prior experience as a trial judge, teacher, and public servant. 

The official announcement reads:

“Throughout his career James E. Graves has shown unwavering integrity and an outstanding commitment to public service,” said President Obama.  “I am proud to nominate him to serve on the United States Court of Appeals.”

Some highlights from Justice Graves' bio at the Mississippi Supreme Court are:

Presiding Justice James E. Graves, Jr., has served on the Mississippi Supreme Court since 2001. He was appointed to the Court by Governor Ronnie Musgrove and later won election to the Court in 2004. Prior to serving on the Mississippi Supreme Court, Justice Graves served as a Circuit Court Judge in Hinds County, Mississippi, for ten years.

Justice Graves was born and raised in Clinton, Mississippi. After graduating as the valedictorian of his high school class, he attended Millsaps College and graduated with a Bachelor of Arts Degree in Sociology. He received his law degree from Syracuse University College of Law and a Master of Public Administration degree from the Maxwell School of Citizenship and Public Affairs at Syracuse University.

* * *
Justice Graves’ background in teaching and education includes serving as a Teaching Team Member of the Trial Advocacy Workshop at Harvard Law School since 1998 and serving as an adjunct professor teaching media law, civil rights law, and sociology of law at Millsaps College, Tougaloo College, and Jackson State University.

* * *

A renowned orator, Justice Graves frequently speaks at universities, schools, churches, and conventions throughout the country. His past speaking engagements include a keynote address at the International Reading Association’s 50th Annual Convention.

Hat tip to Howard Bashman at How Appealing.

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A new case from the Fifth Circuit yesterday that would be of interest to civil practitioners.  The underlying dispute in Lyondell Chemical Company v. Epec Polymers(pdf) involved allocation of responsibility under CERCLA, but the interesting part of the case to me is the application of Rule 408 of the Federal Rules of Evidence (pdf) regarding exclusion of settlement discussions.

Without numbing you with unnecessary detail, part of how the district court quantified the amounts and costs in issue was discussions, after the feds threatened suit, between some of the parties regarding a related but different portion of the same site.  Although there are many more issues involved in the opinion, the Fifth Circuit found this use to be impermissible. 

Judge Higginbotham wrote for the panel:

Although El Paso characterizes the reports as part of a “congenial effort by group members to fairly and cooperatively assess the contamination” unentitled to Rule 408 protection, we cannot agree. It is undisputed that the EPA threatened litigation against Occidental and other members of the task group. . . . The work of the task force was anything but business as usual and its discussions—including the Smythe Reports—went well beyond mere “business communications.”

El Paso argued that “Rule 408 only bars the use of compromise evidence to prove the validity or invalidity of the claim that was the subject of the compromise, not some other claim.”  While acknowledging many different approaches courts and commentators have used to define the scope of a "claim," the court

 . . . decline[d] to adopt any rigid definition of “claim.” Our application of Rule 408 has been and remains fact-specific, and tethered to the rationales underlying the rule. And here, we have no trouble concluding the Smythe Reports were created for use in negotiations regarding the “claim” now being litigated. Though separated by time and location, the disputes associated with the Highway 90 and Turtle Bay sites arise out of the same events: the repeated dumping of hazardous waste intended for Highway 90.

Mmmmm.  I love the smell of evidence in the morning.

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An unusual case from the Fifth Circuit yesterday in which the Court gave the victory to a party who chose not to show up on the merits. 

In Texas Midstream Gas Services LLC v. City of Grand Prairie, the City believed that the appeal was moot, and chose only to brief the jurisdictional issue, not the merits.  The Fifth Circuit found that the case was a live controversy, leaving the City with no briefing on the merits.  Judge DeMoss, writing for the Court, exercised mercy, choosing to consider the merits rather than kicking the City to the curb:

Perhaps convinced that its mootness argument was a winner, Grand Prairie did not brief the merits of this case. At argument, counsel offered no explanation for this omission. In some instances, this would lead us to conclude that a party had forfeited its opportunity to prevail on the merits.. . . However, we retain discretion to consider matters not briefed, especially when they implicate substantial public interests. . . . Additionally, when the derelict party is the appellee, who may rely on a favorable ruling by the trial court, it makes sense to construe the “rule” of forfeiture more leniently. . . . We can also preserve judicial resources and avoid piecemeal litigation by addressing issues sooner rather than later. . . . In this case, it makes sense to proceed to the merits of the dispute. . . .

The Court then even went on to give the City a victory.  But lest you be tempted to go with the "no briefing" approach to appellate practice, the Court condemned the city's tactical choice in no uncertain terms:

We will exercise our discretion to proceed to the merits of this appeal. However, we emphasize that counsel’s amateurish tactical decision to address only Grand Prairie’s mootnes argument is an egregious lapse in counsel’s duty to brief all pertinent issues.

The case involves the substantive law of municipal ordinances, eminent domain, and preemption under the PSA, and I commend it to your reading. But I would not advocate leaving your success to the mercy of Judge DeMoss, or any other busy appellate judge.  As nice a man as he is, it's better still to do your own research and have a brief on file.

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The Fifth Circuit today released Meaux Surface Protection, Inc. v. Fogleman (pdf), affirming a jury's award of lost profits under Texas law for breach of fiduciary duty.  Meaux complained that two of it's key personnel essentially poached foremen, workers and customers from it in breach of their fiduciary duties to the company.  The jury agreed and awarded $1.43 million in lost profits.  

On appeal, the defendants complained that the District Court had subjected them to trial by ambush.  They were supposedly shocked and amazed that Meaux sought lost profits (having omitted those precise terms from the pretrial order) or that the foreign CFO would testify to establish those damages.  The Fifth Circuit rejected the argument.  Its reasoning emphasized that no real surprise had occurred.  On the contrary, the defendants were trying to use the rules as a trap for the unwary. 

In the two years between filing and trial, defendants obtained discovery and filed motions concerning lost profits. Meaux’s inclusion of lost profits instructions, which the court deemed part of the pretrial order, gave defendants a warning shot across the bow months in advance of trial that this remedy was not abandoned. It is unpersuasive for defendants to say that they believed otherwise, especially when the pretrial order and proposed jury instructions made no reference to other remedies. Defendants repeatedly bewail the “ambush” they suffered when the district court allowed Meaux’s case to proceed. As did the district court, we find such protestations empty and disingenuous. Defendants were not waylaid by guerilla litigation tactics. Being denied the ability to prevail on a technicality is not the kind of “prejudice” we must remedy.

This type of practical reasoning also informed the Fifth Circuit's determination that Meaux had proved its lost profits with "reasonable certainty," any alternative explanations for the loss going only to the weight the jury might give the testimony.  Key to the determination: the profit projections used by Meaux's witness were created by the defendant himself, before he left the company and poached its resources:

The jury heard an estimate from Carsten Ennemann that Meaux had suffered a $2.3 million loss of treasure in 2007 thanks to their employees-turned freebooters. Ennemann was personally familiar with the drop in business suffered by Meaux. Ennemann compared 2007 sales figures for several major clients with the budget projections which were prepared by Fogleman himself before he jumped ship. At trial, Fogleman stood by the projections as reasonable estimates of Meaux’s likely business, taking into account the factors he deemed relevant. Fogleman’s testimony supported Meaux’s case; he was keelhauled by his own windlass. In light of the evidence tending to show that defendants’ acts harmed Meaux, the jury was entitled to find that Fogleman’s and Kotrla’s acts in derogation of a fiduciary duty to Meaux harmed it to the tune of $1.43 million. 

The Fifth Circuit only remanded the case so that the District Court could add in pre- and post-judgment interest, thus granting the Plaintiff a Meaux Bettah' Judgment.

There are several other topics of interest in the opinion that are not touched here, and I commend it to your further study.  Circuit Judge DeMoss, who wrote the Court's opinion, must be a fan of Patrick O'Brien or the Horatio Hornblower novels.  As you can see, the decision between these maritime service providers is up to the gunwales with nautical terms and allusions.

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Today, in an appeal  by AT&T and similarly situated carries from a preliminary injunction, the Fifth Circuit found that there was no federal question jurisdiction.  Curiously, the non-federal case arises from a regime set up under the federal Telecommunications Act of 1996.  Even more curious, the complaint, at one time, contained federal antitrust claims, dismissed without prejudice for reasons not stated in the Fifth Circuit opinion. 

As Alice would say, "Curiouser and curiouser."  Curiouser still with the addition of the obligatory, alphabet soup of federal acronyms.

In Budget Prepay v. AT&T, the Court held that the Telecommunications Act of 1966 did not provide for federal jurisdiction because, under the structure of the Act, the construction of interconnection agreements (ICAs) between incumbent carriers (ILECs) and the small, wily, competitive carriers (CLECs) are matters of state law.  The importation, by agreement, of FCC standards into the ICA is still A-OK and does not create an FQ (federal question):

[W]e held in Southwestern Bell that interpretation of the terms of an ICA, even if the ICA terms are intertwined with federal law, is a claim governed by and arising under state law.

* * * 

The fact that the ICA at issue here invokes and incorporates federal law is not to the contrary. As noted above, the Act imposes general duties on ILECs and then fills in the details of enforcement and interpretation with regulations promulgated by the FCC. But the parties are free to negotiate around these statutory and regulatory rules. See 47 U.S.C. § 252(a). The invocation of federal law in an ICA does not turn a contract dispute into a federal question case; rather, it accepts the relevant statutory language or regulation as a binding contract provision in lieu of a privately negotiated provision. . . . The fact that this ICA provision was drawn from 47 U.S.C. § 251(c)(4)(A) and not specifically negotiated does not raise a federal question. It raises an issue of state law contract interpretation.

Judge Clement wrote the opinion. 

To recap: the Federal Telecommunications Act allows ILECs and CLECs to have ICAs with FCC regs from the CFR under authority of 47 USC §§ 251 & 252 without making an FQ under 28 U.S.C. § 1331.

This is "cooperative federalism."  Simple, huh?

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A new Fifth Circuit opinion that may be of interest for civil practitioners in Texas.  In The Offshore Drilling Co. v. Gulf Copper & Manufacturing Corp. (pdf) the Fifth Circuit upheld the summary judgment granting indemnity for the contractor whose "hot work" the rig owner blamed for starting a fire on its jack up rig.

The portion of the indemnity provision quoted by the Fifth Circuit  -- odd in its lack of "express negligence" type language ordinarily required under Texas law -- read:

Owner shall indemnify Contractor . . . against any and all losses [to Owner’s property] . . . (unless such property is under the control of Contractor at the time at which such loss or damage occurs), which arise from, are incident to, connected with, or result directly or indirectly from the performance of the work . . . .

The parties disputed control, and according to the Fifth Circuit, came up with additional arguments on their way to the appellate court.  The Court found those to be waived (about which I hope to write more later).  The Court relied on analogies to Texas premises liability law in finding that the "hot work" contractor was not in "control of the property" even though the rig was located at its dock, primarily because it was one of many subcontractors whose access to the rig was controlled and monitored by the rig's owner:

While no Texas court has analyzed “control” in these circumstances, at least one Texas appellate court has applied this definition in a similar context. See Rendleman v. Clarke, 909 S.W.2d 56, 60 (Tex. App. – Houston [14th Dist.] 1995). Rendleman addressed an issue of premises liability, but its discussion of control is still instructive. Specifically, the Rendleman court found that a subcontractor did not control a construction site when multiple other subcontractors were also at work on it, and the contractor performed substantial coordinating functions. Id. at 60-61.

. . . Although TODCO presents evidence demonstrating Gulf Copper’s duties on the vessel, most of these facts pertain only to control over Gulf Copper’s specific project. . . .

. . . As in Rendleman, the evidence showed that TODCO directed and coordinated the bulk of the work performed by the many unrelated contractors also on board.

Judge Southwick wrote the opinion and was joined by Judge Garwood in all respects.  Judge Owen agreed with the result on liability but dissented on the question of whether indemnitee was entitled to attorneys' fees under the language of the contract.

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That incredibly geeky sound you heard over the weekend was the sound of delight as civil procedure profs and appellate lawyers thrilled over the new Fifth Circuit opinions.  What could be better than federal subject matter jurisdiction involving alienage, diversity and removal?

•  In Halmekangas v. State Farm the defendant removed a case to federal court that had no independent basis for federal subject matter jurisdiction, arguing that it was related to a Katrina coverage case already pending in federal court and would fall under the court's "supplemental jurisdiction" (28 U.S.C. 1367).  The Fifth Circuit said, "Interesting argument, but no. Every case must have its own basis for federal jurisdiction before non-federal claims may hitch a ride."  Judge Higginbotham wrote the opinion. 
• Berik Stiftung v. Plains Marketing involved the wonderfully arcane question of how a Lichtensteinian entity ought to be treated for determining diversity of citizenship jurisdiction.  Berik Stiftung argued that it was like a trust under U.S. law and the court should consider only the citizenship of its beneficiaries (i.e., Florida v. Canada and Texas).  Plains argued that Berik Stiftung was more like a corporate person so that the court should consider the state of its incorporation (i.e. Lichtenstein v. Canada and Texas).   This would mean damn foreigners on both sides of the "v," no diversity of citizenship and no federal jurisdiction. 

Plains won.  Judge DeMoss wrote the opinion and got to use the words "res nova" and  “juristische Person.”  Nice touch, that.

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Psssst.  Check it out.

The Fifth Circuit released a couple of opinions yesterday that were not blogworthy--unless that is you thrive on insurance coverage opinions or arcane, federal statutory questions.  

Not that there's anything wrong with that.

But you know what?  The blog has a tool that you can use to peruse the new, published opinions as they come out, even if I don't post on them individually.

I've set up some RSS feeds from the Court that filter out all the criminal, prisoner, immigration and unpublished cases.  Just look at the side bar for "5th Circuit Opinions" and click on a date.  All the published, civil cases coming out that day will be there for your dining pleasure. 

Enjoy. 

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Well, the Civil Procedure wonks are all a-twitter today over the Supreme Court's Shady Grove opinion  (pdf).  And who wouldn't be?  Combine the Erie Doctrine with prompt pay penalties and Federal Rule 23 and you've got a party.   Add a keg and the law nerds will be off the hook, or chain or whatever mot juste is currently de rigueur.

But I'm still counting votes, reading the opinion and trying to decide who won. 

For me the big news is United Healthcare Ins. Co. v. Davis, released today by the Fifth Circuit. 

The State of Louisiana decided to self-insure its employee health benefits to save money.  But this shut out a Louisiana HMO that handled insured products. 

So the HMO "petitioned the government" for a law creating an insured option in which only Louisiana HMOs (i.e., that HMO) could participate.  And it "petitioned the government for a new, open enrollment period during the middle of the plan year for which the foreigners handling self-insurance were already being paid on a per-member basis. 

The carriers handling self-insured plans called foul, arguing the act violated the dormant Commerce Clause and the Contracts Clause.

The Fifth Circuit held:

Because the State, by choosing with whom it did business, was acting as a participant in—and not a regulator of—the insurance market, the Act fell within the market participant exception, and the dormant Commerce Clause was therefore not a bar to its actions. However, the Act was invalid, as applied, because it interfered with the plaintiffs’ current contracts in violation of the Contract Clause.

Among the reasons the act violated the Contract Clause:

In this case, the record indisputably demonstrates that the Act is narrowly focused on benefiting in-state HMOs (indeed, a specific one) and is not a broad exercise of the State’s police power. The representative who drafted the bill met only with the President and CEO of [that specific Louisiana HMO] for input.

Lagniappe in Louisiana?  Health Care?  Political?  Who knew?

Judge Jolly wrote for the majority and Judge Dennis concurred, stating that he would have invalidated the law on both grounds.

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Yesterday the Fifth Circuit released Evanston Ins. Co. v. Dillard Department Stores Inc., which will be of interest to lawyers and civil practitioners.  The court's per curiam opinion imposes individual liability on the two law partners of a defunct limited liability partnership for a judgment taken against the law firm by Dillards arising from the firm's cyberpiracy-web-site business model.  

The judgment was taken against the law firm after the partners signed an agreement to dissolve the limited liability partnership and after its LLP registration had expired without renewal.  As a result, the "debt" (the judgment) was was "incurred" when the law firm was not an LLP.  When Dillards sued the partners to collect the judgment, the LLP statute provided no protection.

So, if you're dissolving that LLP, it ain't over 'til it's over.  Keep that registration current until all the liabilities are in the rear view mirror. 

Oh, and cyberpiracy to attract clients isn't good either.  No need to thank me.  I'm just here to help.

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The hardest working circuit in the law business continues cranking out the hits.  Two published opinions from the Fifth Circuit yesterday having potential interest to the civil practitioner.

• Laughlin v. Nouveau Body  & Tan ( In re Laughlin) (pdf) involves the question of whether the debtor's renunciation of an interest in his father's estate before seeking bankruptcy protection was a fraudulent transfer (it was not).  Judge King wrote the opinion. 
• Wackman v. Rubsamen (pdf) was a wrongful death case applying Texas law.  It probably deserves an extended post as it involved several interesting issues; however, the main issue was the legal sufficiency of the medical causation evidence.  Depending upon whom one believed, the decedent either died of cancer or (according to her largely estranged family) was killed by an overdose of pain medication intentionally administered by her caregivers. 

The court largely affirmed the judgment, finding the expert testimony and circumstantial evidence sufficient to support the judgment notwithstanding some "analytical gaps" acknowledged by the expert.  Judge Garza wrote the opinion.

I hope to have some time to read Wackman closely and pull apart the expert discussion.  It is worth your time as well.  The question presented is right in the middle of the fairway of the when expert testimony is "no evidence," or when an objection is required, or what type of objection is sufficient, or when defects in testimony go to the admissibility or only to the weight of the testimony. 

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Three days have passed this week, and in all three days the Mighty Fifth Circuit has released published opinions of interest to civil practitioners.  Today the Fifth Circuit released Smith v. Xerox Corp. (pdf) involving jury instructions in a Title VII retaliation case and the standard for punitive damages under the statute.  Judge Reavley wrote the opinion.  Oddly, the Panel released a separate, unpublished opinion (pdf) to explain why the evidence was sufficient to support the retaliation claim.

A divided panel held that the trial court properly inquired of the jury whether Smith's EEOC charge was a "motivating factor in Xerox's termination decision" and then whether "Xerox would have made the same termination decision even if it had not considered Smith's EEOC charge."  The extended statutory analysis is definitely worth your time if you handle employment matters with regularity. 

The Panel Majority concluded that, although the evidence was sufficient to find that retaliation was a motivating factor in the termination, the punitive damages award based on malice or reckless indifference to federal rights could not stand as the requisite mental states had not been established.

Judge Jolly dissented, intimating at a potential circuit split:

First, the majority effectively creates an unnecessary split in the circuits by failing properly to apply the Supreme Court’s ruling in Gross v. FBL Financial Services, Inc. As the Seventh Circuit has correctly reasoned, without statutory language indicating otherwise, the mixed-motive analysis is no longer applicable outside of Title VII discrimination, and consequently does not apply to this retaliation case. Second, the majority errs in treating this case as a mixed-motive case. This case is pretext, pure and simple: it was tried as a pretext case and relies on pretext evidence.

If the Court would take a breather from all this opinion writing, your most humble and obedient blog servant might have time to think deep thoughts about all these developments and commit them to print.  If the Court releases no opinions on Saturdays and Sundays, I still have a chance.

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The Fightin' Fifth Circuit had not yet begun to fight as of this morning's post.  Several more published opinions this evening, one of which might be of interest to civil practitioners.  And even better, an order for en banc review.

• Jurisdiction and procedure nerds will want to read Martin v. Halliburton (pdf) in which the Court dismissed for lack of appellate jurisdiction.  The defendants, contractors in the Iraq War, asserted various immunity defenses, but the district court denied their motion to dismiss for lack of subject matter jurisdiction.  The Fifth Circuit dismissed the interlocutory appeal, most significantly because it found the immunity defenses were not the type that would be subject to the collateral order doctrine. Judge King wrote the opinion.

And finally, the Court ordered rehearing en banc in Castellanos-Contrera v. Decatur Hotels LLC (pdf), which involves FLSA rights of guest workers providing services in the wake of Hurricane Katrina.

The Panel Opinion (pdf), by Judge Jolly, characterized the issues as:

three issues of first impression for this court: whether, under the FLSA, an employer must reimburse guest workers for (1) recruitment expenses, (2) transportation expenses, or (3) visa expenses, which the guest workers incurred before relocating to the employer’s location.

The panel concluded that the FLSA did not require an employer to reimburse any of these expenses, but now the whole court will get to share the fun.

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Well, it's been a quiet week in the United States Court of Appeals for the Fifth Circuit, my home Circuit. 

Actually, the Court has been handing down opinions with such regularity, the sister circuits are starting to take offense because the Mighty Fifth is making them look slothful by comparison.

Yesterday, the court handed down three published opinions, two of which might have interest to civil practitioners.  Very briefly:

• In Carmona v. Southwest Airlines Co. (pdf), the Court reversed the district court's decision to grant judgment as a matter of law on a flight attendant's ADA claim.  The flight attendant's psoriatic arthritis had caused the employee to miss work.  The jury had found in favor of the employee on his ADA claim but had rejected his claim under Title VII.  Judge Garwood wrote the opinion.
• And my personal favorite, Wells v. Smithkline Beecham (pdf).  The Plaintiff brought a products liability claim under Texas law and argued that Smithkline Beecham ought to have warned him that Requip would cause compulsive gambling, resulting in millions of dollars of gambling losses.  The Court affirmed the trial court's Daubert ruling finding that the expert testimony linking compulsive gambling to Requip was not up to snuff.  Judge Higginbotham wrote the opinion.   

 Daubert is one of my favs, so watch this space for some further analysis--unless the Mighty Fifth keeps up this pace, in which case there will be insufficient time!

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The Fifth Circuit let go a blast of new opinions this morning.  As always you can check the RSS feed from the Fifth Circuit in the sidebar of the blog.

Several of the new opinions have potential application to the civil practitioner:

• Sullivan v. Leor Energy LLC (pdf) affirms dismissal under Rule 12(b)(6) and involves application of the statute of frauds to an executive compensation dispute under theories of breach of contract, quantum meruit, unjust enrichment, fraud, equitable and promissory estoppel, and “detrimental reliance."  Judge Owen wrote the opinion.
• Schexnayder v. Hartford Life And Accident Co. (pdf) affirms the summary judgment granted to an ERISA claimant seeking disability benefits.  Judge Prado wrote the opinion.
• In Price v. Johnson (pdf) the Fifth Circuit held it lacked jurisdiction to review an order of remand.  The district court had remanded on the ground that a claim for pre-suit discovery under TRCP 202.1 was not a "civil proceeding" and was not removable.  Judge Reavley wrote the opinion.
• In Acevado v Allsups Convenience Stores Inc. (per curiam) (pdf) the Court held that mass joinder of employees in a claim under the FSLA was improper, but that the district court should not have dismissed the entire action for misjoinder. 
• Catlin Syndicate Ltd. v. Imperial Palace of Mississippi Inc. (pdf) involves the computation of business interruption damages.  Judge Prado wrote the opinion. 
• Pendergest-Holt v. Lloyds  (pdf) involves an expedited appeal from a preliminary injunction requiring the insurer to defray defense costs.  Judge Higginbotham wrote the opinion and affirmed the injunction as modified.

And if all that is not enough appellate goodness for you, then check out Anna Christensen's summary on SCOTUSblog about updates to the SCOTUSwiki concerning the Supreme Court's most recent opinions and the causes granted for certiorari review last week. 

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Two published, civil opinions from the Fifth Circuit just out. 

One, Howard v. St. Germain (pdf), affirms sanctions for frivolous removal and imposes further sanctions for a frivolous appeal, a rare event in the Fifth Circuit and therefore worth a read for that reason alone. It probably did not help matters that adverse authority from the Supreme Court dated from 1866.

The second, Bustos v. Martini Club, Inc. (pdf), is a pro se action involving both the Texas Tort Claims Act and Section 1983 claims.  Notably, the case involves the amended Section 101.106 of the Tort Claims Act which requires dismissal of individual defendants under certain circumstances.  There are several cases pending at the Supreme Court of Texas involving pre and post amendment applications of this same section. 

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Hat tip to Mary Alice Robbins over at the Texas Lawyer Blog, as she reminded me in her post, Prepare now for looming e-filing switch at 5th Circuit, that the Fifth Circuit deadline for adoption of e-filing is almost upon us.  Join me (and all the other late adopters) in checking out the information on the Fifth Circuit's website for what must be done. 

Among other things:

NOTICE: The Fifth Circuit U.S. Court of Appeals . . . will move to MANDATORY electronic case fiing on March 15, 2010.

Electronic filers must complete at least two interactive electronic learning modules (see below) and provide certification that they have done so by using the email button at the end of the modules either before or after they register for an electronic filing account

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