​US Court of Appeals for the Fifth Circuit Opinions
Jones v. Singing River Health Services Foundation

Docket: 16-60550
Opinion Date: July 27, 2017
Judge: Edith H. Jones
Areas of Law: ERISA

This appeal concerned objections to the settlement of class actions that arose in the wake of a financial crisis involving SRHS and its benefits pension fund. The Fifth Circuit held that the terms of the Settlement Agreement as they affect Plan participants should have been more thoroughly examined prior to the district court's approval; the district court improperly limited its consideration to the hospital's ability to pay while ignoring a transparent explanation of the settlement's consequences for the class members; and thus the court vacated and remanded for further consideration of the enumerated issues.

​US Court of Appeals for the Fifth Circuit Opinions
Cartes v. Phillips

Docket: 17-20154
Opinion Date: July 25, 2017
Judge: Higginbotham
Areas of Law: Family Law, International Law

Father petitioned the district court to order mother to return their three-year-old daughter to Paraguay, where she lived with both parents from October 2014 to October 2016. The Fifth Circuit affirmed the district court's determination that Paraguay was the daughter's habitual residence and that mother had wrongfully removed her to the United States. The court held that the district court did not legally err in assessing the parties' shared intent about their child's habitual residence; nor did the district court clearly err in finding that they agreed that their daughter would habitually reside in Paraguay; and any purported evidentiary error was harmless.

NewCSI, Inc. v. Staffing 360 Solutions, Inc.

Docket: 16-50009
Opinion Date: July 25, 2017
Judge: Jennifer Walker Elrod
Areas of Law: Contracts

After a jury found that a staffing company violated the terms of the stock purchase agreement by which it had acquired another company, the district court entered a judgment against the staffing company for approximately $1.3 million in actual and liquidated damages. The Fifth Circuit affirmed and held that the staffing company's challenge to the sufficiency of the evidence failed; the staffing company's argument that the liquidated damages clause was an illegal and unenforceable penalty provision failed because it forfeited the argument under Fed. R. Civ. P. 8 and 50, as well as failed to establish on the merits that the clause provided for a penalty; the challenge to the amount of the liquidated damages award failed because the district court's calculation of the damages was supported by the language of the stock agreement; and challenges to the jury instructions were rejected.

​US Court of Appeals for the Fifth Circuit Opinions
Moore v. Tangipahoa Parish School Board

Docket: 15-31119
Opinion Date: July 24, 2017
Judge: Leslie H. Southwick
Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Education Law

In this appeal stemming from the desegregation of the school district, the Fifth Circuit affirmed the district court's rejection of the School Board's latest proposed candidate, approving instead the candidate supported by plaintiffs and the Court Compliance Officer. The court held that the district court did not abuse its discretion in modifying the academic-qualifications requirement and the selection-and-approval process. The court also held that the district court did not err by denying the motion for relief from judgment under Fed. R. Civ. P. 60(b) where a candidate's role with the Ministerial Alliance did not justify holding that the district court abused its discretion in appointing the candidate as Chief Desegregation Implementation Officer (CDIO).

Wessinger v. Vannoy

Docket: 15-70027
Opinion Date: July 20, 2017
Judge: Edith Brown Clement
Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Fifth Circuit reversed the district court's grant of habeas relief based on his claim of ineffective assistance of trial counsel at the penalty phase. The court held that counsel's performance in raising and developing petitioner's claim for ineffective assistance of trial counsel at the penalty phase was not deficient. Furthermore, petitioner failed to establish prejudice.

​US Court of Appeals for the Fifth Circuit Opinions
United States v. Rico

Docket: 16-10235
Opinion Date: July 20, 2017
Judge: Catharina Haynes
Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's 400 month sentence after he pleaded guilty to conspiracy to possess with intent to distribute a controlled substance. The court held that the district court did not clearly err by applying a two-level enhancement for importation of methamphetamine under USSG 2D1.1(b)(5), and by applying an enhancement to his base offense level for maintaining a premises for the purpose of manufacturing or distributing a controlled substance under USSG 2D1.1(b)(12). Finally, the district court did not err by not granting defendant a three-point reduction for acceptance of responsibility under USSG 3E1.1.

McCarty v. Hillstone Restaurant Group, Inc.

Docket: 16-11519
Opinion Date: July 18, 2017
Judge: James Earl Graves, Jr.
Areas of Law: Personal Injury

Plaintiffs, Pamela and Nick McCarty, filed suit against Hillstone, alleging a premises liability claim after Pamela slipped and fell at one of defendant's restaurants. The Fifth Circuit affirmed the district court's grant of summary judgment dismissal and held that plaintiffs failed to identify evidence from which a jury could, under any of the three methods of proof outlined in Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 12, 814–15 (Tex. 2002), conclude that Hillstone had actual or constructive knowledge of the restaurant floor's allegedly dangerous condition.

Boyer v. Vannoy

Docket: 16-30487
Opinion Date: July 17, 2017
Judge: Higginbotham
Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Fifth Circuit affirmed the district court's denial of habeas relief. The court held that petitioner's Sixth Amendment right to a speedy trial was not violated; his due process and Confrontation Clause rights were not violated when he could not cross-examine his brother on the brother's alleged violence; and petitioner's right to present a complete defense and present witnesses were not violated when his expert on confessions and interrogations was barred from testifying.

Only 1 state has cut more from higher education than Louisiana, study says

www.dailycomet.com/news/20170715/only-1-state-has-cut-more-from-higher-education-than-louisiana-study-says
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​US Court of Appeals for the Fifth Circuit Opinions
Duncan v. Wal-Mart Louisiana, LLC

Docket: 16-31223
Opinion Date: July 14, 2017
Judge: Stephen Andrew Higginson
Areas of Law: Personal Injury

The Fifth Circuit affirmed the district court's grant of summary judgment to Wal-Mart on plaintiffs' negligence claims under Louisiana's merchant liability statute. Plaintiff Duncan slipped on a mat in front of a Reddy Ice freezer and fell forward onto the ground. The next day she had a still birth. Duncan and the child's father filed suit for wrongful death of their unborn child. The court held that plaintiffs failed to present any "positive evidence" that Wal-Mart created or had actual or constructive notice of the condition which caused the damage, as La. Stat. 9:2800.6(B)(2) requires, and therefore they cannot maintain their merchant liability claim.

US Court of Appeals for the Fifth Circuit
July 14, 2017
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BancPass, Inc. v. Highway Toll Administration, LLC

Docket: 16-51073
Opinion Date: July 13, 2017
Judge: Stephen Andrew Higginson
Areas of Law: Civil Procedure

This interlocutory appeal arose out of litigation between rival companies that specialize in highway toll collection technology. The Fifth Circuit affirmed the district court's denial of HTA's motion for summary judgment based on Texas's judicial proceedings privilege. Determining that it had jurisdiction over the appeal, the court proceeded to the merits. The court read Texas caselaw as signaling limits on which communications made prior to the initiation of litigation qualify as sufficiently related to the contemplated judicial proceeding identified by the defendant. In this case, the court agreed with the district court that these limits preclude application of the privilege here, most significantly, because of the disconnect between the purpose of the communications and HTA's later tortious interference litigation, as well as the circumstances of the third-party recipients.

​US Court of Appeals for the Fifth Circuit Opinions
Panetti v. Davis

Docket: 14-70037
Opinion Date: July 11, 2017
Judge: Higginbotham
Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Petitioner was convicted of killing his wife's parents and sentenced to death. In this appeal, the Fifth Circuit reversed the district court's denial of appointed counsel and expert funding under 18 U.S.C. 3599, vacated its factual findings relating to petitioner's competency, and remanded for additional proceedings. The court held that petitioner was entitled to counsel to pursue his claim because Texas's application of Article 46.05 of the Texas Code of Criminal Procedure denied him due process. Furthermore, the court did not see justification for denying petitioner funding for experts and other investigative resources. Because the district court's conclusion was tainted by the inadequate due process protection provided to petitioner by the State, the court vacated the district court's findings of fact regarding his competency to be executed.

​Louisiana-bottled Fireball in tiny tipple tussle over Maine's proposed 'no-nips' law

www.nola.com/business/index.ssf/2017/07/louisiana-made_fireball_in_tin.html

​US Court of Appeals for the Fifth Circuit Opinions
Quinn v. Guerrero

Docket: 16-41344
Opinion Date: July 10, 2017
Judge: Leslie H. Southwick
Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Fifth Circuit affirmed the district court's judgment for defendants in this civil rights case involving claims arising from the execution of a search warrant on plaintiff's house. The court held that the district court did not err in denying plaintiff's motion to remand; the state court did not err in dismissing the common law claims against the officers pursuant to section 101.106(e) of the Texas Tort Claims Act; the district court properly dismissed plaintiff's federal claims against the individual officers; because plaintiff's negligence claims arose from the same conduct as his intentional-tort claims, governmental immunity applied and the state-law claims were properly dismissed; plaintiff failed to allege a claim of municipal liability under 42 U.S.C. 1983 because he never alleged either an official policy or a widespread custom that caused a violation of his constitutional rights; plaintiff's requested period of discovery was impermissible; and the court rejected plaintiff's claim for punitive damages. Finally, the court denied as moot the individual defendants' motion to dismiss.

Associated International Insurance Co. v. Scottsdale Insurance Co.

Docket: 16-20465
Opinion Date: July 7, 2017
Judge: Costa
Areas of Law: Contracts, Insurance Law

The rights that flow through a subrogation clause allow an insurer to seek reformation of a contract between its insured and a third party. After Associated paid the portion of the underlying settlement that was in excess of the Westfield policy, Associated sought reimbursement from Scottsdale, an insurer that issued a commercial umbrella policy to Alpha. The Fifth Circuit held that the district court erred in reading reformation’s privity requirement to necessitate a specific connection to the Alpha-Scottsdale insurance policy. Rather, privity in Texas focuses on the relationship to a party. In this case, the subrogation clause in the Associated-Alpha policy provided that connection. Accordingly, the court reversed and remanded.

​US Court of Appeals for the Fifth Circuit Opinions
United States v. Fidse

Docket: 16-50250
Opinion Date: July 7, 2017
Judge: Stephen Andrew Higginson
Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's sentence for conspiring to obstruct an agency proceeding and conspiring to make false statements to the executive branch in a terrorism investigation. The court held that the district court did not clearly err by applying a sentencing enhancement under USSG 3A1.4, because defendant's offense was a felony that involved, or was intended to promote, a federal crime of terrorism. In this case, the district court found that the Task Force was specifically investigating a possible conspiracy to violate 18 U.S.C. 2339A and 2339B.

​Rivera v. Bonner

Docket: 16-10675
Opinion Date: July 6, 2017
Judge: Edward C. Prado
Areas of Law: Civil Rights, Constitutional Law

After an officer of the county jail sexually assaulted plaintiff, she filed suit against the officers and others under 42 U.S.C. 1983. The Fifth Circuit affirmed the district court's grant of summary judgment and dismissal of plaintiff's claims, holding that the county sheriff and the jail administrator were not deliberately indifferent to known or obvious risks associated with hiring the officers. Therefore, the district court did not err in holding that they were entitled to qualified immunity on this claim. The court also held that the district court did not err in concluding that defendants were entitled to qualified immunity with respect to plaintiff's inadequate training and supervision claims. In this case, it was not clearly established at the time of the alleged misconduct that the county sheriff and the jail administrator needed to make significant changes to their training, supervision, and policies in response to the incident of sexual abuse.

Louisiana in the Interest of A.C.

Docket: 2017-CK-0182
Opinion Date: June 29, 2017
Judge: Per Curiam
Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

The state filed a petition alleging A.C., at the age of 14 years, committed the felony-grade delinquent acts of aggravated rape of a victim under the age of 13 years, and indecent behavior with a juvenile. Pursuant to La.Ch.C. art. 877(B), the state had 90 days to commence the adjudication hearing, which was until Monday, June 6, 2016. The juvenile court set the adjudication hearing for Friday, June 3, 2016. On that date, the state made a motion to continue the hearing alleging that the prosecutor and the family of the victims had been out of town and witnesses had not been subpoenaed. Counsel for A.C. objected and indicated that, as soon as the 90-day limit passed, counsel would file a motion to dismiss the delinquency petition. The juvenile court found there was not good cause to extend the 90-day period and additionally dismissed the delinquency petition at that time. The state objected and gave notice of its intent to seek supervisory review in the court of appeal. The court of appeal granted the state’s writ application and reversed. On October 13, 2016, A.C. moved again to dismiss the delinquency petition, contending that the 90-day time limit had run, and argued in the alternative that the time was not suspended when the state sought supervisory review or, if the time was suspended, it began to run again after the court of appeal’s ruling on October 7, 2016, and had now run out. After the juvenile court denied A.C.’s motion to dismiss, A.C. gave notice of his intent to seek supervisory review from the court of appeal. The court of appeal granted A.C.’s writ application and dismissed the delinquency petition for failure to timely commence the adjudication hearing. The state asserted that there was good cause on day 88, and the court of appeal previously found the juvenile court acted prematurely in dismissing the petition. The Louisiana Supreme Court agreed the juvenile court’s dismissal was premature. While it would have been a better practice for the state to seek a stay from the juvenile court, or obtaining none from that court, seek a stay from the court of appeal, the Supreme Court found the state’s failure to obtain a stay was not fatal under the circumstances. The Court reversed the court of appeals and remanded for further proceedings.

​Why Louisiana is refusing to hand over voter registration data to Trump’s election probe

www.washingtonpost.com/news/the-fix/wp/2017/07/06/why-louisiana-is-refusing-to-hand-over-voter-registration-data-to-trumps-election-probe/?utm_term=.cb2c47cf313d

Louisiana v. Moultrie

Docket: 2015-K-2144
Opinion Date: June 29, 2017
Judge: Per Curiam
Areas of Law: Constitutional Law, Criminal Law

Defendant Joseph Moultrie was found guilty as charged of possession with intent to distribute cocaine, based on approximately two ounces of crack cocaine found by officers in a barbeque grill in a driveway between two trailers, one of which belonged to defendant’s mother. Officers noticed defendant standing in the street in front of the trailer at approximately 11 p.m. in a high crime neighborhood. Defendant quickly retreated out of view into the driveway when he saw the officers before returning to the street. One officer approached defendant while two others entered the driveway to see if defendant had discarded drugs or a weapon. They noticed that there were torn baggies on the ground that appeared to have cocaine and marijuana residue. At the end of the driveway farthest from the street, one officer also noticed a grill whose lid was slightly askew with dew that had been disturbed on the handle. Inside the grill was the large quantity of cocaine. When arrested, defendant claimed he lived in the trailer, the grill belonged to his family, and he disavowed any knowledge of the cocaine. On appeal, defendant contended the district court erred in denying his motion to suppress and that the evidence was insufficient to support the conviction. Although the state ultimately bears the burden of establishing the validity of a warrantless search, in challenging the search a defendant bears an initial threshold burden of showing that he had a reasonable expectation of privacy in the premises. Defendant thus was in the difficult position of having to both distance himself from the barbeque grill, if he hoped to be found not guilty of possession of the cocaine found inside it, and tie himself more closely to the grill, if he hoped to obtain a favorable ruling on the motion to suppress. The Louisiana Supreme Court found, after review, that ownership of the grill was never established: it was never seized as evidence and never identified from any photograph as the grill belonging to defendant’s mother. Although defendant’s sister testified that her mother used a grill, her testimony did not establish that the grill in which the drugs were found belonged to defendant’s mother. Because defendant failed at the threshold to make a showing of any reasonable expectation of privacy in the barbeque grill, the inquiry ended. Accordingly, the Supreme Court reversed the court of appeal and remanded for consideration of defendant’s claim that the evidence was insufficient to support the conviction.