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US Court of Appeals for the Fifth Circuit Opinions Coleman v. BP Exploration & Production, Inc. Docket: 20-40811 Opinion Date: November 29, 2021 Judge: Don R. Willett Areas of Law: Labor & Employment Law, Personal Injury The Fifth Circuit affirmed the district court's grant of summary judgment in favor of defendants in an action brought by plaintiff, an oil-platform worker, after he injured his back while building scaffolding. Plaintiff filed suit against the companies managing both the day-to-day construction and the overall construction project. The court concluded, however, that a reasonable jury could not find that either company was liable for the worker's injury because neither was his direct employer. In this case, the Hickman factors weigh in favor of holding that plaintiff was Grand Isle and BP's independent contractor. Furthermore, the court agreed with the district court that the operational-control exception did not apply as to either BP or Grand Isle. Read Opinion
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Early Voting for Dec.11 Election Begins this Weekend in Lafourche Parish
www.houmatimes.com/news/early-voting-for-dec-11-election-begins-this-weekend-in-lafourche-parish/ New York Party Shuttle, LLC v. National Labor Relations Board Docket: 20-61072 Opinion Date: November 22, 2021 Judge: Edith Brown Clement Areas of Law: Labor & Employment Law After the Board concluded that NYPS committed an unfair labor practice and ordered NYPS to reinstate an employee and make him whole, NYPS appealed the Board’s liability finding but failed to file an opening brief. The Fifth Circuit entered a default judgment and the Board held a compliance proceeding to determine damages. At the proceeding, an ALJ awarded some $91,000 in backpay to the employee. The Fifth Circuit concluded that the district court's findings support the Board's conclusion that petitioners constitute a single employer. In this case, substantial evidence supports the Board's finding that there is common ownership and financial control among petitioners; substantial evidence supports the Board's finding of an interrelation of operations between all five petitioners; the record supports the Board's finding that a common cast of characters, who operate on a "readily fungible" team, manage the companies; and substantial evidence once supports the Board's findings that there is centralized control over critical policy matters. The court rejected petitioners' contention that the underlying 2013 merits order is void ab initio because of the Supreme Court's holding in NLRB v. Noel Canning, 573 U.S. 513, 519 (2014). The court affirmed the Board's order to pay the employee backpay except for the portion of that order awarding backpay for the period of October 2014 to 2018. As to that part of the order, the court reversed and remanded. Finally, the court rejected petitioners' evidentiary arguments. Read Opinion US Court of Appeals for the Fifth Circuit Opinions Admar International, Inc. v. Eastrock, LLC Docket: 21-30098 Opinion Date: November 19, 2021 Judge: James C. Ho Areas of Law: Civil Procedure Merely running a website that is accessible in all 50 states, but that does not specifically target the forum state, is not enough to create the "minimum contacts" necessary to establish personal jurisdiction in the forum state under International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The defendant must take the additional step of targeting the forum state in a manner that reflects "purposeful availment" of the opportunity to do business in that state. Plaintiffs filed suit alleging that Eastrock committed copyright and trade dress infringement by displaying copies of their products on its website. The court affirmed the district court's dismissal of the complaint based on lack of personal jurisdiction, concluding that there is no evidence to support the conclusion that Eastrock's website specifically targets Louisiana. Read Opinion Complete election results: Terrebonne Parish
www.wwltv.com/article/news/local/complete-election-results-terrebonne-parish/289-404ba47c-3d02-411a-93df-ce3197937dd0 United States v. Garza-De La Cruz Docket: 21-50394 Opinion Date: November 10, 2021 Judge: Per Curiam Areas of Law: Criminal Law The Fifth Circuit granted the government's motion for summary affirmance, denied the government's alternative motion for an extension of time to file a brief, and affirmed the district court's judgment. Defendant pleaded guilty to illegal reentry and was sentenced to 50 months in prison based on the ten-year maximum because of his prior felony conviction. Defendant argues that the enhancement of his sentence based on the prior felony is unconstitutional because it is based on facts neither alleged in his indictment nor proved to a jury beyond a reasonable doubt. However, defendant concedes that this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998). Read Opinion Fifth Circuit Court of Appeals Blocks Biden's Vaccine Mandate
www.ca5.uscourts.gov/opinions/unpub/21/21-60845.0.pdf "Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court." Louisiana Leads Multi-State Lawsuit Against Biden’s COVID Executive Order
www.houmatimes.com/news/louisiana-leads-multi-state-lawsuit-against-bidens-covid-executive-order/ US Court of Appeals for the Fifth Circuit Opinions Stevens v. St. Tammany Parish Government Docket: 20-30644 Opinion Date: November 3, 2021 Judge: Stephen Andrew Higginson Areas of Law: Civil Procedure, Environmental Law, Real Estate & Property Law In the first suit between the parties, the state trial court entered judgment against plaintiffs in August 2018. Plaintiffs then filed this second suit in federal court, asserting the same state law claims in addition to claims under the federal Clean Water Act (CWA). The Fifth Circuit affirmed the district court's dismissal of the state law claims as precluded by res judicata; dismissal of the CWA claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim; and denial of plaintiffs' motion for injunctive relief. In this case, the non-CWA claims existed at the time of the state court judgment, and are the same as those asserted in the state court litigation. Furthermore, plaintiffs have forfeited any argument that the district court erred in dismissing the CWA allegations in the original, first, and second amended complaints. The court also affirmed the district court's denial of plaintiffs' subsequent Rule 59(e) motion for reconsideration, which included a request for leave to file a third amended complaint. Read Opinion US Court of Appeals for the Fifth Circuit Opinions Gezu v. Charter Communications Docket: 21-10198 Opinion Date: November 2, 2021 Judge: Cory T. Wilson Areas of Law: Arbitration & Mediation, Labor & Employment Law Gezu worked for Charter, 2017-2019. In October 2017, Charter sent an email to all active, non-union employees announcing a new employment-based legal dispute resolution program. The email instructed employees about their right to opt out. The arbitration agreement, which was available in full on Charter’s intranet, required arbitration of all disputes, claims, and controversies that could be asserted in court or before an administrative agency. During his employment, Gezu allegedly suffered discrimination based on his race and national origin and Charter did not take any action to address the discrimination despite being made aware of it. Charter terminated Gezu in May 2019, based on what Gezu alleges were pretextual reasons. Gezu, acting pro se, asserted claims under Title VII of the Civil Rights Act and 42 U.S.C. 1981. The Fifth Circuit affirmed an order granting Charter’s motion to compel arbitration and to dismiss. There was a valid modification to Gezu’s employment contract, consisting of notice and acceptance. Read Opinion New Orleans shoeshine man wins legal battle over $30,000 seized by DEA agents
www.nbcnews.com/news/investigations/new-orleans-shoeshine-man-wins-legal-battle-over-30-000-n1282629 Terrebonne files appeal in coastal damage lawsuit
www.houmatoday.com/story/news/2021/10/29/terrebonne-files-appeal-coastal-damage-lawsuit/6183784001/ United States v. Adair Docket: 21-50218 Opinion Date: October 26, 2021 Judge: Stephen Andrew Higginson Areas of Law: Criminal Law The Fifth Circuit affirmed defendant's conviction for possessing a firearm after a felony conviction. The court concluded that defendant's Texas robbery conviction qualifies as a crime of violence under USSG 4B1.2(a)(2), and the district court properly applied USSG 2K2.1(a)(4)(A). The court explained that defendant misconstrues the fourth footnote in United States v. Santiesteban-Hernandez, which the court previously explained in an unpublished opinion which simply recognizes that the generic definition of robbery did not require a particular mens rea. Furthermore, defendant's reading of this footnote is at odds with the opinion's conclusion that Texas robbery and generic robbery substantially correspond. Read Opinion US Court of Appeals for the Fifth Circuit Opinions United States v. Beard Docket: 20-20116 Opinion Date: October 22, 2021 Judge: W. Eugene Davis Areas of Law: Criminal Law The Fifth Circuit affirmed the district court's denial of defendant's motion to suppress drugs found in a package he mailed via the United States Postal Service from Houston, Texas, to Hammond, Louisiana. Defendant argued that his Fourth Amendment rights were violated, and an unlawful seizure occurred, when the package was rerouted back to Houston, which took five days, before law enforcement took further investigative steps to confirm their suspicion. However, the court agreed with the district court that the U.S. Marshal's choice to reroute the package back to Houston was reasonable and prudent under the facts of this case. The court also agreed that the five days the package was in transit from Hammond back to Houston, as well as the two days it took to obtain the warrant after the package returned to Houston, were not unreasonably long under the circumstances. In this case, the package had extensive connections to Houston and the U.S. Marshal requested that the package be rerouted to Houston because he believed that there was no difference in the time it would take to obtain a warrant in Houston versus Hammond. Read Opinion US Court of Appeals for the Fifth Circuit Opinions Terkel v. Centers for Disease Control and Prevention Docket: 21-40137 Opinion Date: October 19, 2021 Judge: Per Curiam Areas of Law: Civil Procedure The Fifth Circuit granted appellants' voluntary motion to dismiss this appeal involving the CDC's nationwide eviction moratorium under Federal Rule of Appellate Procedure 42(b). The eviction moratorium prevented landlords from exercising their state law eviction rights to prevent the further spread of COVID-19. After considering the record and the parties' oral arguments, the court found it unnecessary to decide mootness. Instead, the court granted the motion to dismiss the appeal "on terms . . . fixed by the court." Read Opinion AG Landry: Contractor, FEMA, and SBA Fraud are Growing Concerns for Law Enforcement
www.houmatimes.com/news/ag-landry-contractor-fema-and-sba-fraud-are-growing-concerns-for-law-enforcement/ Public Notice from Terrebonne Parish DA: “118 Armour Drive will not be in service for the foreseeable future”
www.houmatimes.com/news/public-notice-from-da-118-armour-drive-will-not-be-in-service-for-the-foreseeable-future/ Louisiana Supreme Court Opinions
Zapata v. Seal Docket: 2020-CC-01148 Opinion Date: September 30, 2021 Judge: Griffin Areas of Law: Civil Procedure, Personal Injury The Louisiana Supreme Court granted review in this case to examine the interplay between two provisions of the Louisiana Code of Civil Procedure in the context of partial summary judgment. The specific issue presented was whether a trial court, having granted defendants’ motion for partial summary judgment based on plaintiffs’ failure to timely file an opposition, could later vacate that judgment when the plaintiffs produce an expert affidavit based on evidence that was previously available in advance of the original hearing. The underlying action arose out of a motor vehicle accident in which J. Benjamin Zapata was struck from behind by a vehicle operated by Stephen Seal and owned by Diversified Well Logging, Inc. (collectively “DWL”). Mr. Zapata and his wife filed suit against DWL and its insurer alleging both new injuries and aggravation of preexisting lower back injuries sustained in a prior motor vehicle accident. Dr. Olawale Sulaiman, who performed lower back surgery on Mr. Zapata after the accident, opined in his deposition that he did not causally relate that surgery to the subject accident. DWL moved for partial summary judgment seeking to dismiss the Zapatas’ claim that the lower back surgery was necessitated by the accident. Twelve days before the hearing, the Zapatas filed an opposition, attaching a July 2018 report by Dr. Mohammad Almubaslat to support the assertion that the accident aggravated Mr. Zapata’s preexisting lower back injuries and necessitated the surgery. DWL replied, arguing that because the opposition was untimely, the attachments should be stricken and the Zapatas’ counsel precluded from presenting oral argument. At the hearing the trial court agreed with DWL and granted partial summary judgment in its favor. The Zapatas moved to vacate the partial summary judgment, attaching the affidavit by Dr. Almubaslat, but executed on May 8, 2019. DWL opposed on the grounds that it would be improper for the trial court to disregard the time limitations set forth in La. C.C.P. art. 966(B) and consider evidence that was previously available to the Zapatas in July 2018, prior to the original hearing on the motion for partial summary judgment. The trial court vacated its prior ruling, concluding the Zapatas’ motion to vacate was authorized by La. C.C.P. art. 1915(B) and found a genuine issue of material fact existed with respect to the issue of medical causation based on the “newly submitted affidavit of Dr. Mohammad Almubaslat.” The Supreme Court found the trial court was within its discretion in vacating its prior ruling. Read Opinion Jung v. Starr Surplus Lines Insurance Co. Dockets: 20-30140, 20-30175 Opinion Date: September 24, 2021 Judge: Jerry E. Smith Areas of Law: Insurance Law The Fifth Circuit reversed the district court's grant of summary judgment in favor of the insurer in an insurance coverage dispute regarding flood damage to the property at issue. The insureds interpreted the flood deductible in the policy as covering most of the damage to the property, but the district court determined that the policy is unambiguous and adopted the insurer's interpretation. The court applied Louisiana law and concluded that the policy is ambiguous. The court explained that the predominant use of "Total Contract Value" to denote the value of the entire project indicates that the policy, read in its entirety, does not provide clarity regarding the term "total insured values at risk . . . as respects flood." The court remanded for the district court to determine whether extrinsic evidence resolves the ambiguity. Read Opinion Ida survivors can meet with FEMA representatives in Golden Meadow at Disaster Recovery Center opening Friday www.houmatimes.com/news/ida-survivors-can-meet-with-fema-representatives-in-golden-meadow-at-disaster-recovery-center-opening-friday/ US Court of Appeals for the Fifth Circuit Opinions Texas v. United States Docket: 21-40618 Opinion Date: September 15, 2021 Judge: Gregg Costa Areas of Law: Government & Administrative Law, Immigration Law The Fifth Circuit granted in part and denied in part the United States' motion for a stay pending appeal of the district court's nationwide preliminary injunction preventing the United States from relying on immigration enforcement priorities outlined in memos from DHS and ICE. On Inauguration Day, January 20, 2021, the Acting Secretary of DHS issued a memo announcing that the Department would undergo a comprehensive review of enforcement policies, announcing DHS's interim enforcement priorities, and directing an immediate 100-day pause on removals. ICE issued a memo on February 18, 2021 that incorporates the same three interim priorities. The court did not see a strong justification for concluding that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 detention statutes override the deep-rooted tradition of enforcement discretion when it comes to decisions that occur before detention, such as who should be subject to arrest, detainers, and removal proceedings. Therefore, the United States has shown a likelihood of prevailing on appeal to the extent the preliminary injunction prevents officials from relying on the memos' enforcement priorities for nondetention decisions. The court also concluded that the remaining factors also support a partial stay. The court stated that the injunction will go into effect to the extent it prevents DHS and ICE officials from relying on the memos to refuse to detain aliens described in 8 U.S.C. 1226(c)(1) against whom detainers have been lodged or aliens who fall under section 1231(a)(1)(A) because they have been ordered removed. The court stayed the injunction pending appeal in all other respects including the reporting requirements. Read Opinion US Court of Appeals for the Fifth Circuit Opinions HTC Corp. v. Telefonaktiebolaget LM Ericsson Dockets: 19-40566, 19-40643 Opinion Date: August 31, 2021 Judge: Jennifer Walker Elrod Areas of Law: Contracts, Intellectual Property, International Law, Patents The European Telecommunications Standards Institute (ETSI) established many global standards for 3G, 4G, and 5G cellular communications technology. ETSI members that own standard-essential patents must provide “an irrevocable undertaking in writing that [they are] prepared to grant irrevocable licenses on fair, reasonable and non-discriminatory (FRAND)” terms. Ericsson holds patents that are considered essential to the ETSI standards and agreed to grant licenses to other companies to use its standard-essential patents on FRAND terms. HTC produces mobile devices that implement those standards; to manufacture standard-compliant mobile devices, HTC has to obtain a license to use Ericsson’s patents. Ericsson and HTC have previously entered into three cross-license agreements for their respective patents. Negotiations to renew one of those agreements failed. HTC filed suit, alleging that Ericsson had breached its commitment to provide a license on FRAND terms and had failed to negotiate in good faith. The jury found in favor of the defendants. The district court entered a separate declaratory judgment that the defendants had affirmatively complied with their contractual obligations. The Fifth Circuit affirmed, rejecting challenges to the district court’s exclusion of HTC’s requested jury instructions, its declaratory judgment that Ericsson had complied with its obligation to provide HTC a license on FRAND terms, and the exclusion of certain expert testimonial evidence as hearsay. Read Opinion US Court of Appeals for the Fifth Circuit Opinions
United States v. Sandoval Martinez Docket: 20-11016 Opinion Date: August 27, 2021 Judge: Costa Areas of Law: Criminal Law The Fifth Circuit vacated defendant's sentence imposed after he pleaded guilty to a drug conspiracy charge. In this case, authorities discovered cocaine and other drugs in the back of defendant's tobacco shop, as well as $12,424 in cash, which the authorities treated as proceeds from cocaine transactions rather than legitimate tobacco sales or to any of the other various drugs found in the shop. This resulted in a higher recommended sentencing range than defendant would have otherwise received. Therefore, the court concluded that it was clear error to treat all of the cash as cocaine proceeds and the error was not harmless. The court explained that, although the district court sentenced defendant well below the Guidelines range calculated by Probation, it did not indicate that it would have imposed the same sentence even if it erred in treating all the seized cash as drug proceeds. The court remanded for resentencing. Read Opinion Dickson v. United States Docket: 19-40932 Opinion Date: August 23, 2021 Judge: Stephen Andrew Higginson Areas of Law: Personal Injury Plaintiff appealed the district court's dismissal of his negligence and intentional tort claims alleging that Bureau of Prison (BOP) officials caused him a variety of harm while he was incarcerated at USP Beaumont. The Fifth Circuit affirmed the district court's dismissal of plaintiff's negligence claims based on lack of subject matter jurisdiction. The court concluded that the district court fairly construed plaintiff's complaint as asserting that BOP officials acted negligently in transferring him to USP Beaumont and in housing him in the general population despite his concerns for his safety, and correctly held that those challenged actions are encompassed by the discretionary function exception. The court reversed the district court's dismissal of plaintiff's intentional tort claims for lack of jurisdiction and remanded for the district court to determine, with respect to whether the law enforcement proviso applies, whether the BOP officials were acting within the scope of their employment when committing the alleged torts. Read Opinion |
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