News

Case Summaries

Civil Rights

[09/02] Carlson v. Bukovic
In plaintiff's civil rights action under 42 U.S.C. section 1983 against an officer for excessive force and the city for failure to train the officer, district court's judgment in favor of the defendants is affirmed where: 1) mere physical contact by an officer, although significant factor, does not automatically qualify an encounter as a Fourth Amendment seizure; 2) district court correctly submitted the question of whether a seizure took place to the jury; 3) the jury was entitled to determine that, at the time the officer touched plaintiff's arm, officer's action was more exhortatory than commanding; 4) because plaintiff's section 1983 Fourth Amendment excessive force claim failed, her failure-to-train claim against the city fails as well; and 5) plaintiff's claim that the district judge was biased need not be addressed as recusal was unnecessary in this case.

[09/02] Weber v.Universities Research Ass'n, Inc.
In plaintiff's suit against her former employer for sex discrimination and retaliation in violation of Title VII, district court's grant of summary judgment in favor of the defendant is affirmed where: 1) plaintiff has waived her discrimination and retaliation arguments under the direct method of proof; and 2) plaintiff has failed to establish a prima facie case of sex discrimination, because even if she does not have to show that she was meeting defendant's legitimate business expectations, defendant is still entitled to summary judgment as she has failed to show that there were similarly situated men who were treated more favorably than she was.

[09/02] Goldhamer v. Nagode
In plaintiffs' 42 U.S.C. section 1983 suit alleging violations of their rights under the First, Fourth, and Fourteenth Amendments and under state law, challenging a city ordinance's failure-to-disperse provision of section 8-4-010(d), district court's judgment permanently enjoining the city from enforcing the provision on the ground that it imposes too great a burden on protected free speech and is unconstitutionally vague is vacated and remanded as, plaintiffs lack standing to challenge the facial validity of the ordinance at issue as they were not even arguably violating the failure-to-disperse provision when they were arrested for demonstrating against military recruitment, and plaintiffs have not shown a reasonable prospect of future arrest for again violating that same provision.

[09/01] Hollander v. Copacabana Nightclub
In a 42 U.S.C. section 1983 action brought against several New York City nightclubs for discriminating against men on “Ladies’ Nights," dismissal of the complaint is affirmed where the nightclubs were not state actors and thus were not subject to section 1983.

[09/01] Warf v. Bd of Elections of Green County
In plaintiffs' 42 U.S.C. section 1983 action claiming unconstitutional disenfranchisement against a county elections board and individuals, alleging that their voting rights under the Fourteenth Amendment were violated by a Kentucky state trial court judgment that declared void all 542 votes cast by absentee ballot in the 2006 General Election for the office of Green County Clerk, grant of summary judgment in favor of the defendants is affirmed as the Green Circuit Court's decision to void the absentee ballots does not rise to a level of fundamental unfairness in violation of Due Process as it is evident that the decision to void all absentee ballots cast in the election reasonably applied applicable Kentucky case law, and the court appropriately looked to analogous state cases and applied the careful scrutiny to incumbent clerks described therein.

[09/01] Badger Catholic, Inc. v. Walsh
In a Catholic student group's 42 U.S.C. section 1983 suit against University of Wisconsin for refusing to reimburse any of the group's expenses, district court's declaratory judgment in favor of plaintiff in concluding that reimbursing the expenses of religious speakers, through a program equally available to secular speakers, does not violate the Establishment Clause, and that, having established a public forum, the University must not exclude speakers who want to use the forum for worship, is affirmed as underwriting a religious speaker's costs, as part of a neutral program justified by the program's secular benefits, does not violate the Establishment Clause even if the religious speaker uses some of the money for prayer or sectarian instruction.

[09/01] Gallagher v. Magner
In consolidated actions by several owners and former owners of rental properties in St. Paul, Minnesota, challenging the City of St. Paul's enforcement of its housing code, summary judgment for defendants is affirmed in part where: 1) plaintiffs did not assert a claim under the McDonnell Douglas framework; 2) plaintiffs were not exercising a right under the Fair Housing Act by leasing to racial minorities; and 3) plaintiffs failed to reference a particular section of the St. Paul Code, let alone analyze why that section was vague. However, the order is reversed in part where the city's aggressive enforcement of the Housing Code resulted in a disproportionate adverse effect on racial minorities, particularly African-Americans.

[09/01] Fisher v. Wal-Mart Stores, Inc.
In an action against Wal-Mart Stores, Inc. and two Missouri police officers following an incident involving counterfeit money orders at a Raymore Wal-Mart store, summary judgment for defendants is affirmed where: 1) given these undisputed facts, probable cause supported plaintiff's warrantless arrest; 2) attorney's fees were proper because plaintiff's continued prosecution of her false arrest claim against the officers in the face of the evidence upon discovery was unquestionably groundless and unreasonable; and 3) the record reflected no evidence of racial animus or hostility toward plaintiff.

[08/31] Forrest v. Prine
In plaintiff's excessive force claim against an officer under 42 U.S.C. section 1983, summary judgment for defendant is affirmed where: 1) a reading of the record reveals that the officer's use of the taser was a reasonable, good faith effort to maintain or restore discipline within the jail; 2) there is no genuine issue of triable fact as to whether the officer's decision to employ the taser amounted to a violation of the Due Process Clause of the Fourteenth Amendment; and 3) no reasonable jury would conclude that the officer fired his taser with a malicious or sadistic intent.

[08/31] Wolfe v. Schaefer
In an attorney's 42 U.S.C. section 1983 suit against the State Attorney and others, arising from his failed 2008 bid for State's Attorney of Cumberland County, Illinois, claiming that defendants violated the Fourth Amendment and the due process clause of the Fourteenth Amendment by publicly disclosing that plaintiff was under investigation by Illinois state agencies for possible violations of legal ethics, tax law, and unemployment-insurance law, district court's dismissal of the suit is affirmed as the fact that a candidate for public office is under investigation for legal and ethical violations is a matter of substantial public interest.

[08/31] Colenburg v. STARCON Int'l, Inc.
In an action for race-based employment discrimination, reprisal, and hostile work environment under the Minnesota Human Rights Act (MHRA), summary judgment for defendant is affirmed where: 1) plaintiff lacked evidence suggesting that defendant's decision to promote plaintiff's white coworker was based upon race; and 2) plaintiff could show no other non-class members that were not fired for doing the same things, and thus his claim was required to fail at the outset.

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Entertainment

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Environmental Law

[09/01] Western Watersheds Project v. Kraayenbrink
In a National Environmental Policy Act (NEPA) challenge to eighteen amendments to the Bureau of Land Management's (BLM) grazing regulations, partial summary judgment for plaintiffs is affirmed in part where: 1) the BLM failed to address concerns raised by its own experts, the Fish and Wildlife Service, the EPA, and state agencies; and 2) there was resounding evidence from agency experts that the eighteen amendments to the BLM's grazing regulations may affect listed species and their habitat. However, the order is vacated in part where the district court failed to consider plaintiffs' Federal Land Policy and Management Act claim under the framework and with the deference set forth in Chevron.

[08/31] Cotchett, Pitre & McCarthy v. Universal Paragon Corp.
In defendant's suit against a law firm, claiming that an arbitrator's award of $7,554,149.13 in attorney fees and expenses for the law firm, related to its representation of defendant in an underlying complex environmental litigation, is unconscionable and violates public policy, superior court's affirmance of the award is affirmed as, assuming that defendant's claim of unconscionability is subject to judicial review as a predicate for determining whether the arbitration award violates public policy, the claim is rejected on the merits as neither the fee agreement nor the award actually issued by the arbitrator is unconscionable under rule 4-200 of the Rules of Professional Conduct.

[08/25] Northern Cal. River Watch v. Wilcox
In an action claiming that defendants violated the Endangered Species Act (ESA) by digging up and removing endangered plant species, summary judgment for defendants is affirmed where "areas under Federal jurisdiction" in section 9 of the ESA did not include the privately-owned land at issue here.

[08/20] Modesto Irrigation Dist. v. Gutierrez
In an action by irrigation districts challenging the decision of the National Marine Fisheries Service (NMFS) to list the steelhead, a type of Pacific salmon, as a threatened species in California's Central Valley, summary judgment for defendant is affirmed where: 1) Section 1532(16) of the Endangered Species Act did not require that interbreeding organisms be placed in the same distinct population segment; and 2) the government provided an adequate rationale for the change in policy.

[08/18] US v. Agosto-Vega
Conviction of a company in San Juan, Puerto Rico, and its owner and principal officer for violating criminal provisions of the Clean Water Act is vacated where: 1) district court committed a structural error by excluding the public from the courtroom during the selection of the jury; and 2) the government proved the charges against defendants by sufficient evidence to establish their guilt beyond a reasonable doubt.

[08/17] Northwest Env. Def. Ctr. v. Brown
In an action claiming that defendants violated the Clean Water Act (CWA) and its implementing regulations by not obtaining permits from the Environmental Protection Agency for stormwater -- largely rainwater -- runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers, dismissal of the action is reversed where the discharges were not exempted from the National Pollutant Discharge Elimination System permitting process by the Silvicultural Rule, 40 C.F.R. section 122.27, promulgated under the CWA to regulate discharges associated with silvicultural activity.

[08/17] US v. Magnesium Corp. of Am.
In an action by the U.S. claiming that defendants' handling of wastes failed to comply with regulations promulgated under Subtitle C of the Resource Conservation and Recovery Act (RCRA), summary judgment for defendants is vacated where, because the EPA never previously adopted a definitive interpretation, it remained free, even under the legal precedents on which defendants sought to rely, to change its mind and issue a new interpretation of its own regulations without assuming notice and comment obligations.

[08/13] League of Wilderness Defenders v. Allen
In an action alleging that the Five Buttes Project, which authorized certain logging activities, violated the National Forest Management Act and the National Environmental Policy Act, summary judgment and an injunction in favor of plaintiff-conservation groups are reversed where: 1) the Forest Service's alleged admissions about possible harms actually described the balancing of risks that the Forest Service was required to undertake, and such balancing was entirely appropriate under the Northwest Forest Plan; and 2) the Forest Service adequately considered and responded to alternative views about the Project's potential environmental consequences.

[08/12] Great Rivers Habitat Alliance v. FEMA
In an action against FEMA claiming that a levee did not meet FEMA's requirements and FEMA erred by granting approval for it, dismissal of the complaint is affirmed where: 1) plaintiffs failed to exhaust their administrative remedies before the Federal Emergency Management Agency (FEMA) pursuant to the National Flood Insurance Act; and 2) the judicial review provisions of the Administrative Procedure Act did not apply.

[08/12] Sierra Club v. Otter Tail Power Co.
In a Clean Air Act (CAA) citizen suit alleging that defendants violated the CAA by failing to obtain permits for a series of modifications to a power plant and by exceeding applicable emission limits, dismissal of the action is affirmed where: 1) the CAA and related regulations prohibited only construction or modification of a facility without a Prevention of Significant Deterioration (PSD) permit and best available control technology, and thus plaintiff's PSD civil penalty claims were time barred; and 2) because plaintiff's PSD civil penalty claims were barred by the statute of limitations, the equitable remedies it sought under those causes of action were barred as well.

[08/10] Ebbetts Pass Forest Watch v. California Dep't of Forestry & Fire Prot.
In environmental groups' suit seeking to overturn California Department of Forestry and Fire Protection's (CDF) approval of three timber harvest plans for logging in Tuolumne County, claiming that CDF had not followed the law in approving the plans, trial court's denial of plaintiffs' request for attorney's fees following the California Supreme Court's finding in favor of the defendant is affirmed as the trial court did not abuse its discretion in denying attorney's fees as plaintiffs have failed to meet their burden to show they were successful within the meaning of section 1021.5 considering they did not receive a favorable judgment nor did they achieve their strategic objective of overturning the approval and halting timber operations until additional environmental assessments were performed.

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Health Law

[08/31] Florida Dep't of State v. Mangat
Judgment of the circuit court, finding that the ballot summary for Amendment 9, for creating a new section related to health care services in article I of the Florida Constitution, does not meet the requirements of section 101.161 and therefore may not be included on the November 2010 ballot is affirmed as, the ballot language put forth by the party proposing the constitutional amendment contains misleading and ambiguous language and the only recourse is to strike the proposed amendment from the ballot.

[08/31] Jones v. Astrue
In plaintiff's appeal from the district court's judgment upholding the Commissioner of Social Security's denial of her application for disability insurance benefits and supplemental security income, the order is affirmed where: 1) the ALJ had no need to contact plaintiff's treating physician because there was no ambiguity to resolve in her report, and the report contained all the necessary information, including the results of diagnostic testing; 2) the ALJ appropriately considered plaintiff's subjective complaints of pain under Polaski; and 3) substantial evidence on the record as a whole supported the ALJ's decision.

[08/30] Luo v. Mikel
In an action alleging serious injury sustained during an automobile accident within the meaning of New York Insurance Law section 5102(d), summary judgment for defendants is affirmed in part where the district court's exercise of jurisdiction was proper. However, the order is vacated in part where, taken together with plaintiff's subjective evidence as to the impact of the injury on her functioning, plaintiff's medical evidence was sufficient to raise a question of fact issue as to serious injury pursuant to N.Y. Ins. Law section 5104(a).

[08/30] In re R.R.
In dependency proceedings, juvenile court's order declaring petitioner-father's daughter a person described by Welfare and Institutions Code section 300(b) based on the father's past and current drug use, is affirmed where: 1) the juvenile court did not err in denying father's motion to quash subpoena of his hospitalization; 2) any error in not hearing the motion to quash was harmless because as a matter of substantive law the motion would have been denied as father's hospital records were admissible; 3) father's claim that his right to privacy was violated by dissemination of his medical records is rejected; 4) substantial evidence supported the finding that the daughter was a person described by section 300; and 5) juvenile court did not abuse its discretion by ordering monitored visits.

[08/27] County of Butte v. California Emergency Med. Serv. Auth., Inc.
In a county's suit against the Emergency Medical Services Authority (Authority), seeking declaratory relief and a writ of mandate, arising from the county's designation of a local EMS agency to administer some of the requirements of the EMS Act, while reserving for another local agency all of the remaining statutory powers and duties not covered by the agreement, trial court's grant of Authority's motion for summary judgment is affirmed where: 1) the plain language of the EMS Act precluded Butte County from creating a bifurcated local agency system; 2) the Authority has the statutory authority to review a local EMS agency's creation of an exclusive operating area (EOA) as part of the transportation portion of the local EMS plan, regardless of whether the EOA was created through a competitive process or grandfathering, and then to reject the local EMS plan if it is not "concordant and consistent with applicable guidelines or regulations, or both the guidelines and regulations, established by the Authority"; 3) the Authority's interpretation of the "manner and scope" language of section 1797.224 is a generally applicable policy subject to the rulemaking procedures of the APA, and because the Authority did not comply with those procedures, this interpretative regulation is void and not entitled to any deference; and 4) the fact that the Authority relied on an invalid regulation in rejecting the EOAs does not require reversal as the Authority did not abuse its discretion by rejecting the designation of EOAs based on lack of information provided by Nor-Cal EMS.

[08/27] In re Columbia Valley Healthcare Sys. , LP
In plaintiffs' medical malpractice suit, defendant's petition for a writ of mandamus, challenging the trial court's denial of defendant's motion to disqualify plaintiffs' counsel because of its employment of a legal assistant, is conditionally granted as, because the legal assistant's employer did not take effective reasonable steps to shield the assistant from working on this case, and the assistant actually worked on the case at her employer's directive, disqualification is required and the trial court is directed to grant the defendant's motion to disqualify and recuse plaintiffs' counsel.

[08/27] Garcia v. Gomez
In plaintiff's suit against a hospital and a treating physician for the death of plaintiff's mother from a pulmonary embolism following surgery, court of appeals' affirmance of trial court's dismissal of the suit and denial of defendants' motion for attorney's fees is reversed and remanded where: 1) there is some evidence of reasonable attorney's fees and some evidence that the physician incurred attorney's fees; 2) section 74.351(b) mandates an award of attorney's fees and costs, when expert reports are not served timely.

[08/27] Marks v. St. Luke's Episcopal Hosp.
In plaintiff's suit against a hospital, claiming that its negligence contributed to cause his fall from a hospital bed, court of appeals' affirmance of trial court's dismissal of the suit is affirmed where: 1) because the provision of a safe hospital bed was an inseparable part of the health care services provided during plaintiff's convalescence from back surgery, his cause of action for injuries allegedly caused by the unsafe bed is a health care liability claim under article 4590i; and 2) trial court did not abuse its discretion in refusing plaintiff's request for additional time to file the requisite expert report.

[08/27] EEOC v. UPS Supply Chain Sols.
In an action by the Equal Employment Opportunity Commission under the Americans with Disabilities Act (ADA) alleging that UPS Supply Chain Solutions failed to provide reasonable accommodations for an employee's deafness because UPS did not provide him with a sign language interpreter for certain staff meetings, disciplinary sessions, and training, summary judgment for defendant is reversed where: 1) there was a genuine issue of fact regarding whether the agendas, contemporaneous notes, and written summaries contained information sufficient to enable a person reading those documents to enjoy the same benefits and privileges of attending and participating in the weekly meetings as other employees; and 2) there was an issue of fact regarding whether UPS was aware or should have been aware that certain modifications were ineffective as to the employee.

[08/27] Cedillo v. Sec'y of Health & Human Serv.
In plaintiff's suit brought under the National Childhood Vaccine Injury Act of 1986, claiming a link between childhood vaccines and autism, Court of Federal Claims' affirmance of a Special Master's denial of petitioners' claim for compensation on behalf of their daughter is affirmed as, after careful review of the Special Master's decision, the court finds that it is rationally supported by the evidence, well-articulated, and reasonable.

[08/27] Kirkeberg v. Canadian Pac. Rwy.
In an action pursuant to the Americans with Disabilities Act (ADA), and the Minnesota Human Rights Act (MHRA), alleging that defendant-employer discriminated against plaintiff on the basis of his disabilities and retaliated against him for engaging in protected activity, summary judgment for defendant is affirmed where: 1) plaintiff failed to show that any restrictions resulting from his monocular vision substantially limited his major life activities; and 2) plaintiff failed to present a submissible case that he was "regarded as" disabled.

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Immigration Law

[09/01] Mwasaru v. Napolitano
A Kenyan citizen's appeal of a district court's order dismissing her petition for a writ of mandamus, seeking a court order compelling U.S. Immigration and Customs Enforcement to transfer her file to an immigration judge to commence removal proceedings, review by the IJ of the denial of adjustment status, and the issuance of a diversity visa should the IJ approve her application, is dismissed for lack of jurisdiction as section 1154 rendered petitioner ineligible for a DV-2007 visa as of midnight on September 30, 2007, and therefore, she is likewise ineligible for adjustment of status under section 1255 because no visa is immediately available.

[09/01] Lin v. Holder
A Chinese couple's petition for review of a BIA's affirmance of an IJ's decision that petitioners were not entitled to asylum or withholding of removal and are eligible to be deported is denied as petitioners have not met their burden of demonstrating past persecution or a well founded fear of future persecution that if they return to China they will be persecuted on account of their opposition to and failure to comply with family planning policies.

[09/01] US v. Melchor-Meceno
Defendant's sentence for illegally reentering the U.S. is affirmed where, because defendant's prior Colorado felony menacing conviction was categorically a crime of violence (as outlined in U.S.S.G. section 2L1.2), the district court properly applied the enhancement to defendant's sentence.

[09/01] Garcia v. Holder
In a petition for review of the BIA's order denying petitioners' motion to reopen their removal proceedings, the petition is granted in part where the BIA erred by failing to exercise its discretion to consider or decline to consider petitioners' supplemental brief and the attached exhibit relating to a new medical condition allegedly incurred by mother. However, the petition is denied in part where the BIA did not abuse its discretion in concluding that petitioners' daughter's new medical condition did not warrant reopening.

[08/31] Kone v. Holder
Malian citizens' petition for review of BIA's denial of their application for asylum and related relief is granted, and the BIA's decision vacated and remanded as the BIA effectively only addressed half of petitioner's argument in concluding that petitioner could not assert a derivative claim based on potential hardship to her daughter, but failed to address her assertion that female genital mutilation of the daughter would also constitute direct persecution of her parents.

[08/30] Kurzberg v. Ashcroft
In an action by five Israeli nationals who were illegally present in the United States on September 11, 2001, concerning certain alleged particulars of their arrest on that day and their confinement thereafter at the Metropolitan Detention Center in Brooklyn, dismissal of the action for failure to serve process is affirmed where: 1) plaintiffs failed to comply with Fed. R. Civ. P. 4(i) because they did not effect service on the U.S.; and 2) plaintiffs were afforded a reasonable time to cure their failure to serve, as is required by Rule 4(i).

[08/30] Ghouri v. Holder
A Pakistani citizen's petition for review of a BIA's decision affirming an IJ's denial of his application for asylum and related relief is denied in part and dismissed in part where: 1) petitioner's claim that he fears his brother-in-law will murder him and his wife in an honor killing because his wife converted from Sunni to Shia Islam when she married him, is dismissed for lack of jurisdiction as the claim of asylum is untimely; and 2) substantial evidence supports the determination that petitioner failed to show eligibility for withholding of removal and CAT protection.

[08/27] Qu v. Holder
BIA's reversal of IJ's grant of a Chinese citizen's application for asylum and order that the petitioner be removed from the U.S. to China is vacated and remanded where: 1) although petitioner seems to have made the requisite showing that she was a member of a particular social group of women in China who have been subjected to forced marriage and involuntary servitude for asylum purposes, the BIA did not make an explicit finding on the issue, but rather appeared to base its denial of asylum on the fact that petitioner was not targeted in part on account of her gender; and 2) BIA's denial of petitioner's claim for CAT is remanded for consideration of the merits.

[08/27] US v. Di Pietro
Defendant's convictions for aiding and abetting four individuals in their violations of 8 U.S.C. section 1325(c), which imposes criminal liability on any individual who knowingly enters into a marriage for the purpose of evading federal immigration laws, are affirmed where a party to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.

[08/27] Toby v. Holder
In a petition for review of a Board of Immigration Appeals (BIA) decision affirming an immigration judge's (IJ) order of removal denying petitioner adjustment of status, waiver of inadmissibility, asylum, withholding of removal, and protection under the Convention Against Torture, the petition is denied where: 1) even if petitioner could prevail on her argument with respect to credibility, she failed to appeal independent alternative grounds for each form of relief she requested; and 2) the IJ weighed the equitable factors, none of which petitioner disputed, against her well-established ties to the U.S. and found they did not warrant a favorable exercise of discretion.

[08/27] Saleheen v. Holder
In a petition for review of an order of the Board of Immigration Appeals (BIA) denying petitioner's application for cancellation of removal, the petition is denied where the BIA plainly stated that it was exercising its discretion in denying relief to petitioner, and because that was so, the court had no jurisdiction unless petitioner raised colorable legal or constitutional claims, which she did not.

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Insurance Law

[09/02] Travelers Prop. Cas. Ins. Co. of Am. v. Nat'l. Union Ins. Co.
In an action by one insurer against another seeking $10 million in subrogation proceeds, summary judgment for defendants is affirmed in part where plaintiff waived certain rights by refusing repeated invitations to participate in subrogation discussions. However, the judgment is reversed in part where, as the excess insurer, plaintiff was entitled to a priority interest in the subrogation proceeds representing insured losses.

[09/01] Sprinkles v. Associated Indem. Corp.
In plaintiffs' bad faith action against Fireman's Fund Insurance Company, arising from an underlying suit against defendant and his employer for causing the death of plaintiffs' father in an automobile accident, trial court's judgment sustaining the insurer's demurrer is affirmed as, under the complaint and matters judicially noticed, the defendant-employee was an insured, rendering the automobile exclusion in the GCL policy applicable, and Fireman's Fund had no duty to defend the employer.

[08/31] Hayes Lemmerz Int'l, Inc. v. ACE Am. Ins. Co.
In an employer's suit against its insurer for refusing to tender defense in an underlying suit under its workers' compensation and employer liability policy, judgment of the district court in favor of the insurer is affirmed as, because defendant was, by virtue of Indiana law, a joint employer, insurer was contractually obligated to reimburse the reasonable expense of defendant's getting itself dismissed from the tort suit. However, because the defendant is not claiming that insurer refused to pay that amount, but rather, it is complaining that the insurer breached its duty to defend by failing to advise defendant that it's law firm was not defending the suit properly, the insurer had no duty to provide its insured's lawyers with legal advice.

[08/30] Uhm v. Humana, Inc.
In an action against an insurer for nonpayment of Medicare benefits, the dismissal of the action is affirmed where 1) the district court lacked jurisdiction to consider plaintiffs' breach of contract and unjust enrichment claims because they were not properly exhausted under the Medicare Prescription Drug Improvement and Modernization Act; and 2) plaintiffs' fraud and consumer protection act claims, while not subject to the Act’s exhaustion provisions, were expressly preempted.

[08/30] Vill. Northridge Homeowners Ass'n v. State Farm Fire & Cas. Co.
In homeowners association's suit against an insurance company, claiming that the insurer fraudulently induced it to settle a Northridge earthquake-related claim for less than it was worth under the policy, judgment of the court of appeals is reversed as a release of a disputed claim does not permit a party to elect the remedy of a suit for damages when the release itself bars that option. Instead, the insured party to the release must follow the rules governing rescission of the release before suing the insurer for damages.

[08/30] First Nat'l Bank & Trust Co. v. Stonebridge Life Ins. Co.
In an action by the administrator of the estate of a murder victim, seeking the policy proceeds of a policy in the victim's name obtained by the perpetrator, judgment for plaintiff is affirmed in part where, because the victim had an interest in the policy, payment to her estate was authorized due to the perpetrator's disqualification. However, the judgment is reversed in part where, absent its presence in the case, plaintiff was still required to establish the perpetrator's disqualification in order to recover other insurance policy proceeds.

[08/30] HCM Healthcare, Inc. v. California Ins. Guarantee Ass'n
In a residential nursing facility's suit against California Insurance Guarantee Association (CIGA) for breach of contract and for violating the Insurance Code for refusing to provide plaintiffs with defense counsel and indemnification for underlying lawsuits for elder abuse, judgment in favor of defendant is affirmed where: 1) as a creature of statute, and not of contract, in some instances CIGA may not be responsible for an insured loss to the same extent as the insolvent insurer might be under the terms of its insurance contract; and 2) Pennsylvania's liquidation order imposed a June 30, 2005 deadline for filing against an insurer and because plaintiff did not meet the deadline, CIGA may not honor their claims.

[08/27] Transcon. Ins. Co. v. Crump
In plaintiff's suit against her deceased husband's insurer for workers' compensation death benefits, the judgment of the court of appeals is reversed and remanded where: 1) the treating physician's opinion was based on a reliable foundation and, therefore, legally sufficient evidence supports the jury's verdict; 2) the trial court's omission of the but-for component in the jury charge constitutes reversible error; and 3) an insurance carrier is entitled to have a jury determine the disputed amount of reasonable and necessary attorney's fees for which it is liable.

[08/25] DPC Indus., Inc. v. Am. Int'l Specialty Lines Ins. Co.
In an action seeking additional insurance coverage against a liability insurer, summary judgment for defendant is affirmed where: 1) nothing in the policy or an additional endorsement required that an insured property be actually owned or operated by the specific entity seeking coverage related to that facility; and 2) the record contained uncontradicted evidence that defendant provided indemnity coverage to plaintiff.

[08/24] Penn-America Ins. Co. v. Lavigne
In an insurer's suit against its insured and plaintiff seeking a declaratory judgment that the insured's insurance policy excluded liability coverage for claims arising from roofing, arising from serious injuries sustained by plaintiff when a portion of a scaffolding snapped while visiting his friend, the insured, at the job-site, a grant of summary judgment in favor of the insurer is affirmed where: 1) the only language added to Endorsement A plainly expresses the intent of the parties to exclude claims arising from roofing; and 2) there is no dispute that plaintiff's injuries originated from, grew out of, flowed from, or had a connection with, roofing.

[08/24] State Farm Mut. Auto. Ins. Co. v. Fisher
In an action seeking a declaration of nonliability on defendant's claim for uninsured motorist benefits, summary judgment for plaintiff-insurer is affirmed where the perpetrator of a crime used the insured vehicle, in essence, as a means to transport himself to the scene of his assault of defendant.

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Intellectual Property

[09/02] Bodum USA, Inc. v. La Cafetiere, Inc.
In a suit for common law trade dress of a French-press coffee maker known as the Chambord, district court's judgment in favor of the defendant is affirmed as, Article 4 of the parties' contract is clear and precise as it allows defendant to sell the coffee maker design anywhere except France - provided that it does not use the Chambord or Melior names and does not use plaintiff's supply channels for four years.

[09/01] Eli Lilly & Co. v. Teva Pharm. USA, Inc.
In a patent infringement suit related to a drug for postmenopausal osteoporosis, judgment of the district court is affirmed where: 1) the record amply supports the district court's conclusion that the ordinary artisan would not have considered it obvious to use raloxifene to treat postmenopausal osteoporosis; 2) because the district court's conclusion that the Bone Loss Patents would not have been obvious, its conclusion as to the Low Dose Patent is affirmed as well; 3) district court did not err in concluding that the Bone Loss Patents and the Low Dose Patents were not invalid for lack of enablement; 4) the district court did not clearly err in invalidating the asserted claims of the Particle Size Patents for lack of written description.

[09/01] Funai Elec. Co., Ltd. v. Daewoo Elec. Corp.
In a patent infringement suit pertaining to various electrical and mechanical components of video cassette players and recorders (VCRs), judgment of the district court is affirmed in part, reversed in part and remanded where: 1) district court's judgment of infringement of three patents and the damages for the infringement are affirmed; and 2) district court's determination of no successor liability in applying the South Korean law is reversed and remanded.

[08/31] Stauffer v. Brooks Bros. Inc.
In plaintiff's qui tam action against Brooks Brothers under 35 U.S.C. section 292, claiming that defendants falsely marked its bow ties, district court's dismissal of plaintiff's claim for lack of standing and denial of government's motion to intervene is reversed where: 1) plaintiff had standing as he has sufficient alleged (i) an injury in fact to the United States that (ii) is caused by Brooks Brothers' alleged conduct, attaching the markings to its bow ties, and (iii) is likely to be redressed, with a statutory fine, by a favorable decision; and 2) the district court made an error of law in denying the government's motion to intervene under Rule 24(a)(2).

[08/30] Princo Corp. v. Int'l Trade Comm'n
In plaintiff's patent infringement suit related to two types of digital storage devices, recordable discs (CD-Rs) and rewritable compact discs (CD-RWs), claiming that defendant was violating section 337(a)(1)(B) of the Tariff Act of 1930 by importing CD-Rs and CD-RWs that infringed its patents, the International Trade Commission's decision that the doctrine of patent misuse does not bar intervenor-U.S. Philips Corporation from enforcing its patent rights against defendant is affirmed as, even if Phillips and Sony engaged in an agreement not to license the patent at issue for non-Orange-Book purposes, that hypothesized agreement had no bearing on the physical or temporal scope of the patents in suit, nor did it have anti-competitive effects in the relevant market. Therefore, the asserted agreement between Phillips and Sony did not constitute misuse and cannot justify rendering all of Phillips' Orange Book patents unenforceable.

[08/30] Ajaxo Inc. v. E*Trade Fin. Corp.
In plaintiff's suit against E*Trade Financial Corporation (E*Trade) for misappropriation of trade secrets under the California Uniform Trade Secret Act, trial court's denial of plaintiff's request for award of reasonable royalties is reversed and remanded where: 1) given the jury's finding that E*Trade did not profit from its misappropriation of trade secrets, unjust enrichment is not "provable" within the meaning of section 3426.3; 2) since E*Trade had consistently and successfully taken the position that plaintiff's actual losses are not provable, E*Trade is estopped from arguing otherwise now; and 3) because neither actual loss nor unjust enrichment is provable, the trial court had discretion pursuant to section 3426.3(b) to order payment of a reasonable royalty.

[08/27] Gen. Protecht Group, Inc. v. Int'l Trade Comm'n
The International Trade Commission's determination that the importation into the United States of certain ground fault circuit interrupters (GFCI) violated section 337 of the Tariff Act of 1930, in issuing limited exclusion orders against the importation of GFCI products from the petitioners and judgment finding that these products infringe the '340 patent is affirmed in part, reversed in part, and remanded where: 1) GPG's 2003 and 2006 FCIs and ELE's 2006 GFCIs do not infringe the '340 patent, because they do not have a "detection circuit" as claimed in the patent; 2) Trimone's 2006 GFCIs and ELE's 2006 GFCIs do not infringe the '340 patent because the "load terminals" of the patent do not include receptacle outlets; 3) GPG's 2006 GFCIs do not infringe the '398 patent because GPG performs the function of the "latching means" in a substantially different way than the structure disclosed in the patent; and 4) the Commission's determination is affirmed in all other respects.

[08/27] Pass & Seymour, Inc. v. Int'l Trade Comm'n.
In plaintiff's suit against various defendants claiming infringement of its patents related to circuit interrupters for use with household electrical appliances, the International Trade Commission's judgment in favor of the defendants is affirmed as, because the accused products at issue here do not meet the "mounting means" limitation as properly construed, and thus do not meet every limitation of the asserted claims, there can be no infringement. Accordingly, Commission's finding of no violation of section 337 of the Tariff Act of 1930 is affirmed.

[08/20] Frye v. YMCA Camp Kitaki
In a copyright infringement action regarding a play written by plaintiff and allegedly copied by defendant, summary judgment for defendant is affirmed where the district court's finding that the two plays were not substantially similar was not clearly erroneous.

[08/20] Universal Furniture Int'l Inc. v. Collezione Europa USA, Inc.
In a copyright suit between competing furniture companies, district court's judgment in favor of the plaintiff is affirmed where: 1) the district court did not err in concluding that plaintiff established its ownership of the asserted copyrights; 2) because the designs are original and conceptually separable from the utilitarian aspect of the furniture, the compilation design elements of plaintiff's two furniture lines are entitled to copyright protection; 3) district court did not err in determining that most of defendant's redesigns infringed plaintiff's copyrights; 4) district court's ruling that defendant violated the Lanham Act is affirmed as by displaying plaintiff's furniture as its own for a lower price, defendant appears to have retained customers that would have otherwise purchased form plaintiff; 5) district court's ruling that defendant contravened the UDTPA is affirmed ; and 6) district court's award of more than $11 million to plaintiff in damages is affirmed.

[08/20] Geo M. Martin, Co. v. Alliance Mach. Sys. Int'l., LLC.
In a suit for infringement of a patent, relating to an improvement over the traditional bundle breaker (a machine used to separate stacked sheets of corrugated board), district court's ruling as a matter of law that the '566 patent would have been obvious at the time of invention is affirmed where: 1) the district court correctly concluded as a matter of law that the difference between the prior art and the claimed improvement were minimal; 2) district court correctly concluded that evidence of secondary considerations in this case do not create a reasonable dispute as to obviousness; and 3) because the asserted claims of the '566 patent are invalid, remaining issues are moot.

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International Law

[09/02] Bodum USA, Inc. v. La Cafetiere, Inc.
In a suit for common law trade dress of a French-press coffee maker known as the Chambord, district court's judgment in favor of the defendant is affirmed as, Article 4 of the parties' contract is clear and precise as it allows defendant to sell the coffee maker design anywhere except France - provided that it does not use the Chambord or Melior names and does not use plaintiff's supply channels for four years.

[09/02] Bakalar v. Vavra
In an action seeking a declaration that plaintiff was the owner of a drawing by Egon Schiele, judgment for plaintiff is vacated where: 1) although it is unclear whether a cause of action comparable to the counterclaims of defendants could be successfully brought in Austria, allowing the claims to go forward under New York law was consistent with the principles underlying the decision of the Supreme Court of Austria; and 2) the district judge, by applying Swiss Law, erred in placing the burden of proof on defendants to show that the Nazis looted the drawing.

[09/01] Funai Elec. Co., Ltd. v. Daewoo Elec. Corp.
In a patent infringement suit pertaining to various electrical and mechanical components of video cassette players and recorders (VCRs), judgment of the district court is affirmed in part, reversed in part and remanded where: 1) district court's judgment of infringement of three patents and the damages for the infringement are affirmed; and 2) district court's determination of no successor liability in applying the South Korean law is reversed and remanded.

[08/30] Lechoslaw v. Bank of America
In plaintiff's suit against a bank for damages, claiming that a four-and-a-half month delay in receiving his $31,787.34 disrupted the construction of a motel and restaurant in Poland and caused him severe emotional distress, judgment of the district court is affirmed where: 1) plaintiff has failed to meet his burden of proving that the Bank in Poland met the requirements for the exercise of personal jurisdiction, and trial court did not abuse its discretion in finding that the Bank did not waive its defense of lack of personal jurisdiction; 2) there was no abuse of discretion on the facts in the court's exclusion of the statement as offered against Bank of America (BoA); 3) there was no evidence that BoA violated chapter 93A in any of its dealings with plaintiff, and the district court properly entered judgment in its favor; and 4) it was not an abuse of discretion for the courts not to reopen discovery according to the Hague Convention.

[08/30] Delta Air Lines, Inc. v. Chimet, S.P.A.
In Delta Airlines' suit for declaratory judgment seeking to limit its liability for losing approximately 100 kilograms of pure platinum shipped from Italy to Pennsylvania, district court's grant of defendant's motion to dismiss on forum non conveniens grounds is affirmed as the district court did not abuse its discretion by granting defendant's motion to dismiss as the private interest factors affecting the convenience of the litigants and the public interest factors affecting the convenience of the forum weighed in favor of litigating this dispute in Italy.

[08/24] Karpenko v. Leendertz
In a child custody dispute, a grant of a mother's petition for the child's return under the Hague Convention of the Civil Aspects of International Child Abduction is affirmed and the minor child's immediate return to her mother in the Netherlands is ordered where: 1) the district court's findings of fact were not clearly erroneous; and 2) the application of the unclean hands doctrine would undermine the Hague Convention's goal of protecting the well-being of the child, of restoring the status quo before the child's abduction, and of ensuring that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

[08/17] City of N.Y. v. Permanent Mission of India to the U.N.
In an action by New York City against certain foreign missions for unpaid property taxes, a denial of defendants' motion to dismiss is reversed where the Notice issued by the Department of State was a lawful exercise of the Department's authority under the Foreign Missions Act, and the Notice operated in this case to render appellants exempt from the property taxes imposed by the City, and so nullified the City's existing tax liens against appellants.

[08/16] OSS Nokalva, Inc. v. European Space Agency
In a software corporation's suit against the European Space Agency (ESA), for breach of contract relating to license agreements and corresponding software maintenance agreements, district court's judgment is affirmed based on reasons other than those relied on by the district court as, in light of the "same immunity" language in the International Organizations Immunities Act (IOIA), it is unreasonable to assume that those international organizations that were established under the IOIA after foreign sovereign immunity had been altered by the Foreign Sovereign Immunity Act (FSIA) would still be subject to that level of immunity enjoyed by foreign governments and international organizations in 1945. Therefore, ESA is not entitled to immunity as it stood for foreign sovereigns in 1945.

[08/12] Thai I-Mei Frozen Foods Co., Ltd. v. US
In an anti-dumping duty case, involving frozen and canned warmwater shrimp from Thailand, the Court of International Trade's decision reversing and remanding Commerce's first remand determination is reversed as Commerce's statement of a general preference for exclusion of sales outside the ordinary course of trade where, as here, the date are for like products sold by other respondents, is reasonable. Thus, Commerce reasonably determined that in this case, where such data were readily available, and indeed had been used for the other two respondents, it was reasonable to make its determination excluding sales outside the ordinary course of trade.

[08/12] Cassirer v. Kingdom of Spain
In an action by an American citizen whose grandmother's Pissarro painting was allegedly confiscated in 1939 by an agent of the Nazi government in Germany because she was a Jew, denial of motions to dismiss the complaint are affirmed where: 1) the court lacked jurisdiction to review the district court's decision declining to dismiss the action for lack of personal jurisdiction and a case or controversy; and 2) 28 U.S.C. section 1605(a)(3) did not require the foreign state against whom the claim was made to be the one that took the property.

[08/09] Kern County Dep't of Human Serv. v. Superior Court
A County Department of Human Services' petition for a writ of mandate, challenging a juvenile court's refusal to find that the department properly noticed a parent of a jurisdictional/dispositional hearing on juvenile dependency supplemental and subsequent petitions is granted where: 1) the Hague Service Convention does not apply to supplemental and subsequent juvenile dependency proceedings in light of the juvenile court's ongoing dependency jurisdiction and provided it has previously found proper notice to the parent; and 2) alternatively, assuming that Convention could apply to supplemental and subsequent juvenile dependency proceedings, any duty to serve notice under the Convention was discharged in this case by the father's general appearance in the juvenile court after the department filed its subsequent and supplemental petitions.

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Labor & Employment Law

[09/02] Weber v.Universities Research Ass'n, Inc.
In plaintiff's suit against her former employer for sex discrimination and retaliation in violation of Title VII, district court's grant of summary judgment in favor of the defendant is affirmed where: 1) plaintiff has waived her discrimination and retaliation arguments under the direct method of proof; and 2) plaintiff has failed to establish a prima facie case of sex discrimination, because even if she does not have to show that she was meeting defendant's legitimate business expectations, defendant is still entitled to summary judgment as she has failed to show that there were similarly situated men who were treated more favorably than she was.

[09/02] Branham v. Gannett Satellite Info. Network, Inc.
In plaintiff's suit under the Family Medical Leave Act (FMLA) against her former employer for being terminated from her job as a receptionist, district court's grant of summary judgment in favor of the employer is reversed and remanded where: 1) the district court erred when it granted summary judgment to defendant based on the submission of negative medical certification indicating that plaintiff could return to work; 2) plaintiff has produced sufficient evidence to create a genuine issue of material fact about her entitlement to FMLA leave, and defendant was not permitted to deny her leave based on the certification requirement when it never properly requested certification or informed her of the consequences of failing to provide the same, as required by Department of Labor regulations.

[09/01] Polycarpe v. E&S Landscaping Serv., Inc.
In consolidated Fair Labor Standards Act (FLSA) actions claiming that during plaintiffs' employment they worked more than forty hours per week and defendant employers failed to pay them either a federally mandated minimum wage, federally mandated overtime pay, or both, summary judgment for defendants is reversed where: 1) if a district court, ruling for a defendant, applied the "coming to rest" doctrine -- for instance, by looking at where defendant bought an item instead of where an item was produced, the court must vacate the judgment for the defendant if there was a question about where the "goods" or "materials" were produced or where they moved; and 2) for the purposes of the FLSA's handling clause, an item will count as "materials" if it accords with the definition of "materials" -- tools or other articles necessary for doing or making something -- in the context of its use and if the employer has employees "handling, selling, or otherwise working on" the item for the employer's commercial (not just any) purposes.

[09/01] Sprinkles v. Associated Indem. Corp.
In plaintiffs' bad faith action against Fireman's Fund Insurance Company, arising from an underlying suit against defendant and his employer for causing the death of plaintiffs' father in an automobile accident, trial court's judgment sustaining the insurer's demurrer is affirmed as, under the complaint and matters judicially noticed, the defendant-employee was an insured, rendering the automobile exclusion in the GCL policy applicable, and Fireman's Fund had no duty to defend the employer.

[09/01] Morse v. Merit Sys. Prot. Bd.
In plaintiff's action claiming that the Transportation Security Administration violated his veterans' preference rights when it declined to waive its maximum entry age requirement in connection with his application for employment as a Federal Air Marshal, the Merit Systems Protection Board's dismissal for lack of jurisdiction is affirmed as the TSA is exempt from section 3330(a) of Title 5, which provides Board appeal rights for preference eligible veterans.

[09/01] Smith v. Selma Cmty. Hosp.
In plaintiff's successful suit against a hospital to have his hospital privileges reinstated, trial court's denial of his motion for attorney fees is reversed and remanded where: 1) when the conditions contained in section 809.9 are shown, the prevailing party is entitled to attorney fees; 2) the statutory phrase "frivolous, unreasonable, without foundation, or in bad faith," set forth separate grounds for an award of attorney fees; 3) the terms "frivolous," "unreasonable" and "without foundation" are objective standards that might overlap; 4) the term "bad faith" is a subjective standard concerned with a defendant's motives for defending or litigating a lawsuit; and 5) because a defendant's subjective state of mind is usually proven by circumstantial evidence, a defendant's prelitigaton conduct and postlitigation conduct are relevant evidence from which inferences can be drawn regarding its motives in defending or litigating a lawsuit.

[08/31] Franklin v. Kellogg Co.
In plaintiff's suit against Kellogg Company on behalf of herself and all similarly situated employees to recover wages under the Fair Labor Standards Act (FLSA) for time spent donning and doffing Kellogg's mandatory food safety uniforms and protective equipment, and for time spent walking to and from the changing area and the time clock, district court's grant of summary judgment in favor of Kellogg is affirmed in part, reversed in part, and remanded where: 1) section 203 is not an exemption and therefore not an affirmative defense; 2) the items at issue are clothes within the meaning of section 203(o); 3) the evidence demonstrates that there was a custom or practice of nonpayment for time spent changing clothes under a bona fide CBA, and as such, time spent donning and doffing the equipment is excluded from "hours worked" under section 203(o); 4) under the continuous workday rule, plaintiff may be entitled to payment for her post-donning and pre-donning walking time, and as such, the matter is remanded because there are questions of fact as to the length of time it took her to walk from the changing area to the time clock and whether that time was de minimis.

[08/31] Hayes Lemmerz Int'l, Inc. v. ACE Am. Ins. Co.
In an employer's suit against its insurer for refusing to tender defense in an underlying suit under its workers' compensation and employer liability policy, judgment of the district court in favor of the insurer is affirmed as, because defendant was, by virtue of Indiana law, a joint employer, insurer was contractually obligated to reimburse the reasonable expense of defendant's getting itself dismissed from the tort suit. However, because the defendant is not claiming that insurer refused to pay that amount, but rather, it is complaining that the insurer breached its duty to defend by failing to advise defendant that it's law firm was not defending the suit properly, the insurer had no duty to provide its insured's lawyers with legal advice.

[08/31] Cent. States Southeast & Southwest Areas Pension Fund v. O'Neil Bros. Transfer & Storage Co.
In a multi-employer pension fund administrator's suit against an employer seeking interim payment of withdrawal liability under the Employee Retirement Income Security Act, district court's grant of summary judgment for administrator is affirmed as defendant's default is governed by the provisions of 29 U.S.C. section 1399(c)(5)(B), and under that section, as interpreted reasonably by the Pension Benefit Guaranty Corporation (PBGC), the entire amount of the withdrawal payment is immediately payable upon default and that obligation is not deferred because of the pendency of arbitration.

[08/31] Howley v. Mellon Fin. Corp.
In plaintiff's suit for benefits and for unlawful discrimination under ERISA, as well as several related state law claims, arising from denial of plaintiff's claim for benefits under defendant's Displacement Program, district court's grant of plaintiff's motion for summary judgment is affirmed as, although the district court erred in applying a heightened standard of review and by considering the extra-record evidence that managers helped plan plaintiff's termination prior to the sale of the company, it is nonetheless clear that defendant abused its discretion in denying plaintiff's claim for benefits.

[08/31] Jones v. Astrue
In plaintiff's appeal from the district court's judgment upholding the Commissioner of Social Security's denial of her application for disability insurance benefits and supplemental security income, the order is affirmed where: 1) the ALJ had no need to contact plaintiff's treating physician because there was no ambiguity to resolve in her report, and the report contained all the necessary information, including the results of diagnostic testing; 2) the ALJ appropriately considered plaintiff's subjective complaints of pain under Polaski; and 3) substantial evidence on the record as a whole supported the ALJ's decision.

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Tax Law

[09/02] Bale Chevrolet Co. v. US
In a petition for review of intentional disregard penalties issued against petitioner for failing to file required Forms 8300 information returns with the IRS, the petition is denied where the government's positions were substantially justified.

[09/01] Hongsermeier v. Comm'r of Internal Rev.
The tax court's determination of petitioners' federal income tax deficiencies and liability for underpayment of interest is affirmed where: 1) the tax court's determination of the percentage deduction in the taxpayers' deficiencies, plus other benefits, accorded with the court's mandate in Dixon and was not an abuse of discretion; 2) the IRS Commissioner's position did not constitute fraud on the court or bad faith; and 3) the Tax Court did not abuse its discretion in relying on the materials available to determine a settlement fraction.

[08/30] US v. Blanchard
Conviction of defendant for failure to account for and pay over-withholding and FICA taxes and making and causing the making of a false claim for a tax refund is affirmed where: 1) offenses under section 7202 are covered by section 6531(4)'s six-year limitations period; 2) district court did not err in admitting evidence regarding discretionary expenditures; 3) while a defendant's inability to pay taxes when due bears on the willfulness of his act, it is not an element of the offense under 26 U.S.C. section 7202; 4) district court did not err in refusing to give defendant's proposed jury instructions; 5) sufficient evidence supported defendant's convictions under section 287; and 6) district court's restitution order is vacated and remanded.

[08/30] US v. Kloehn
Defendant's conviction and sentence for four counts of causing tax evasion are reversed where the district court abused its discretion and prejudiced defendant's ability to present his defense when it refused to continue the trial for two days to allow him to see his dying son.

[08/27] US v. Pfaff
In a tax evasion prosecution, the fine imposed on one defendant is vacated where the district court plainly erred in imposing a fine, pursuant to 18 U.S.C. section 3571(d), based on the court's finding that defendant caused a certain pecuniary loss, when that fine exceeded the maximum fine that would have been permitted absent the finding.

[08/27] Russell v. Comm'r of Internal Rev.
In taxpayers' appeal from the tax court’s decision that several loans did not constitute "indebtedness of the S corporation to the shareholder" such that taxpayers could claim losses incurred by the Missouri River Royalty Corporation (MMRC), the order is affirmed where the court's review of the record revealed no error in the tax court's rulings.

[08/25] Giacometti v. Aulla, LLC
In employees' suit for professional negligence against an accounting firm, claiming that the firm negligently or fraudulently over-reported income on their W-2 forms by including tip money taken by the restaurant managers as income to the employees, trial court's order sustaining the demurrer to the employees' second amended complaint against the firm for professional negligence without leave to amend is affirmed where: 1) there are no allegations in the charging complaint that the accountants knew that the restaurant's representation of employees' income was wrong at the time they prepared these documents, and there are no allegations that the accountants were hired to calculate, or in fact did calculate, employees' income for purposes of year-end reporting; and 2) the accountants did not owe the employees a duty of care under the negligence theory alleged in the second amended complaint.

[08/19] US v. Kottwitz
Defendants' convictions for tax fraud-related charges are affirmed in part where the circumstantial evidence was sufficient for the jury to have concluded beyond a reasonable doubt that defendants entered into the charged conspiracy. However, the convictions are vacated in part where: 1) the district court erred in refusing to give defendants' requested special instruction to the jury on their good faith reliance on their accountant's advice; and 2) the evidence was insufficient for a properly instructed jury to convict on the charge of aiding and assisting in the filing of a materially false corporate tax return.

[08/17] City of N.Y. v. Permanent Mission of India to the U.N.
In an action by New York City against certain foreign missions for unpaid property taxes, a denial of defendants' motion to dismiss is reversed where the Notice issued by the Department of State was a lawful exercise of the Department's authority under the Foreign Missions Act, and the Notice operated in this case to render appellants exempt from the property taxes imposed by the City, and so nullified the City's existing tax liens against appellants.

[08/17] Farr v. County of Nevada
In a property owner's challenge of the Nevada County Assessment Appeals Board's property tax assessment decision for his owner-occupied, single family home, trial court's judgment in favor of the Board is reversed and remanded as the Board violated section 167(a) and failed to accord plaintiff the presumption affecting the burden of proof in is favor as required by section 167(a).

[08/16] Found. of Human Understanding v. US
United States Court of Federal Claims' decision that a nonprofit organization did not qualify as a "church" under section 170(b)(1)(A)(i) of the Internal Revenue Code for the period from January 1, 1998 through December 31, 2000 is affirmed where: 1) the record supports the trial court's finding that the in-person services conducted during the years in question were merely incidental to plaintiff's primary purposes, and were therefore insufficient to demonstrate that the organization was a "church" for tax purposes; and 2) disseminating religious information, whether through print or broadcast media, does not fulfill the associational role required to qualify as a "church" under section 170.

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Transportation

[08/31] Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp.
In an action seeking to attach defendant's property in New York as pre-judgment security for a pending arbitration in Hong Kong, dismissal of the action for lack of personal jurisdiction is affirmed where the district court did not err in declining to fashion an equitable remedy in circumstances where it was clear that the original attachment order could not be sustained in light of Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir. 2009).

[08/30] Meyers v. Nat'l R.R. Passenger
In plaintiff's occupational injury lawsuit against his employer, Amtrack, under the Federal Employers' Liability Act (FELA), district court's grant of summary judgment in favor of the defendant on the ground that plaintiff failed to provide any evidence to establish the required causation element of his FELA action is affirmed as, because plaintiff failed to comply with Rule 26(a)(2) of the Federal Rules of Civil Procedure, the reports and testimony of his proffered causation experts were properly barred by the district court, and as such, plaintiff failed to raise genuine issues of material fact with respect to the causation element of his FELA claim.

[08/30] Delta Air Lines, Inc. v. Chimet, S.P.A.
In Delta Airlines' suit for declaratory judgment seeking to limit its liability for losing approximately 100 kilograms of pure platinum shipped from Italy to Pennsylvania, district court's grant of defendant's motion to dismiss on forum non conveniens grounds is affirmed as the district court did not abuse its discretion by granting defendant's motion to dismiss as the private interest factors affecting the convenience of the litigants and the public interest factors affecting the convenience of the forum weighed in favor of litigating this dispute in Italy.

[08/26] R&B Transp., LLC v. U.S. Dep't of Labor, Admin. Review Bd.
Petition for review of a final decision and order of the U.S. Department of Labor's Administrative Review Board's (Board) award of backpay and other expenses to an employee, a commercial trucker, in determining that the employee's termination violated the Surface Transportation Assistance Act of 1982 (STAA), is denied where: 1) it was not an abuse of the ALJ's broad discretion to admit DOT reports not as character evidence but both pursuant to the "public records and reports" hearsay exception and as proof of petitioners' knowledge concerning their history of complying with the driving regulation; 2) substantial evidence supports findings that a causal connection existed between the employee's protected activity and the adverse employment action against him, and that the petitioner's proffered reason for terminating the employee was actually a pretext for unlawful retaliation; and 3) the Board's legal ruling that petitioners waived their claim regarding backpay was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

[08/26] Tanen v. Southwest Airlines Co.
In plaintiff's suit against an airline for refusing to honor an expired $100 travel certificate, claiming that the expiration date violated Civil Code section 1749.5, which makes it unlawful to sell a gift certificate that contains an expiration date, trial court's order sustaining defendant's demurrer on the ground that plaintiff's claims were preempted by the federal Airline Deregulation Act (ADA), is affirmed where: 1) for a claim to be preempted by the ADA, the claim must relate to airline rates, routes or services, and the claim must derive from the enactment or enforcement of state law; and 2) here, both prongs of the test are met as plaintiff's claims relate to "services" because they concern the airline's sale of gift certificates that can be used to purchase airline travel and his claims derive from state law because it is on a California statute that plaintiff bases his claim that the expiration date on the face of the gift certificate is unenforceable.

[08/24] Combo Maritime, Inc. v. U.S. United Bulk Terminal, LLC
In an action for contribution and indemnity, and property damage, based on a barge breakaway, summary judgment for third-party defendant is reversed where there were insufficient findings in the record to determine whether the passing vessel presumption should have been applied against third-party defendant.

[08/24] Jones v. Illinois Cent. R.R. Co.
In plaintiff's negligence action against defendant-railroad company arising from a collision between plaintiff's husband's vehicle and a train owned by defendant, district court's grant of plaintiff's motion for sanctions and denial of of her post-trial motions under Federal Rule of Civil Procedure 60 is affirmed where: 1) plaintiff cannot now demand a new trial as she had ample reason and opportunity to seek corrective action in the form of a mistrial before the jury returned its verdict in favor of defendant; 2) district court did not abuse its discretion in denying post-trial discovery and an evidentiary hearing based on plaintiff's insufficient showing that defense counsel ultimately withheld material information or bribed a witness; and 3) although the district court erred in invoking Rule 11, its entry of sanctions against defense counsel under Federal Rule of Civil Procedure 26, 28 U.S.C. section 1927 was not an abuse of its authority.

[08/23] Eli Lilly & Co. v. Air Express Int'l. USA, Inc.
In an action concerning the spoliation of temperature-sensitive insulin products, which were shipped by air from France to Indiana and were exposed to sub-freezing temperatures en route, summary judgment for plaintiffs is affirmed in part where summary judgment was appropriately granted on the issue of whether the cargo was damaged in transit. However, the order is reversed in part where the parties did not intend for the liability provision of the long-term service agreement to subject the air waybill contracts to increased limits of liability.

[08/17] Wolin v. Jaguar Land Rover N. Am. LLC
In a class action alleging that Land Rover's LR3 vehicles suffer from an alignment geometry defect that caused tires to wear prematurely, the denial of plaintiff's motion for class certification is reversed where: 1) the district court erred when it required plaintiffs to show that a majority of proposed class members’ vehicles manifested the results of the defect; 2) defendant identified no defenses unique to plaintiffs that would make class certification inappropriate; and 3) classwide adjudication of plaintiffs' claims was superior to other means of adjudicating this case.

[08/16] Szekeres v. CSX Transp. Inc.
In plaintiff's action against his employer under the Federal Employers' Liability Act (FELA) and the Locomotive Inspection Act (LIA), district court's grant of summary judgment in favor of the defendant is reversed where: 1) district court improperly granted summary judgment on plaintiff's LLA and C.F.R. claim as he provided sufficient evidence to survive summary judgment on the issue of whether the toilet facility was sanitary and there was a direct tie between his inability to use the onboard toilet facility and his accident; and 2) plaintiff presented sufficient evidence of plaintiff's constructive notice of the muddy conditions surrounding the switch to survive summary judgment.

[08/10] Frederick v. Swift Transp. Co.
In a personal injury action arising out of a truck accident, judgment for plaintiff is affirmed where: 1) although the driver ingested methamphetamine while driving, this did not remove her from the scope of her employment; 2) under the doctrine of respondeat superior, defendant was liable for all the negligent behavior of its employee, which included violations of the Federal Motor Carrier Safety Regulations; and 3) even if New Mexico were to adopt defendant's proposed rule, the court's instruction would have been proper in light of the rule’s exception for punitive damages.

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