US Court of Appeals for the Fifth Circuit Opinions
Kenai Ironclad v. CP Marine Services

Docket: 22-30311
Opinion Date: October 17, 2023
Judge: John W. deGravelles
Areas of Law: Business Law, Contracts, Personal Injury

Kenai Ironclad Corporation (“Kenai” or “Plaintiff”) alleged that CP Marine Services, LLC, breached its contract to repair and convert Kenai’s offshore supply vessel to a salmon fishing tender for use in Alaska. After Kenai expressed dissatisfaction with the work, the relationship deteriorated. Kenai alleged that, after paying its final invoice, it attempted to remove its vessel from CP Marine’s shipyard, but as it did so, CP Marine and codefendant Ten Mile Exchange, LLC (“TME”) (collectively, “Defendants”) rammed, wrongfully seized, detained, and converted Kenai’s vessel for five days before finally releasing it the district court found that CP Marine did not breach its contract with Kenai but did wrongfully seize, detain, and convert the vessel. The district court awarded punitive damages and attorney’s fees for Defendants’ bad faith and reckless behavior in ramming, seizing, and converting the vessel for five days. Defendants appealed.
 
The Fifth Circuit affirmed the district court’s finding that Defendants wrongfully seized and converted Kenai’s vessel in bad faith and in a manner egregious enough to warrant an award of punitive damages. The court vacated the district court’s award of damages and remanded on the limited basis of clarifying the court’s award. The court found that Kenai presented sufficient evidence and testimony to support the district court’s finding that Defendants’ conduct was in bad faith, in callous disregard for the safety of the people aboard the vessels, and in reckless disregard of Kenai’s rights. Hence, the district court did not clearly err in finding facts sufficient to support an award of punitive damages.

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Louisiana Supreme Court Overturns Criminal Justice Reform Law



www.lasc.org/opinions/2023/22-1827.KK.OPN.pdf

US Court of Appeals for the Fifth Circuit Opinions
In Re: Jeff Landry

Docket: 23-30642
Opinion Date: September 28, 2023
Judge: Edith H. Jones
Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Election Law

Louisiana’s Attorney General filed a request for mandamus relief seeking to vacate the district court’s hearing scheduled to begin on October 3 and require the district court to promptly convene trial on the merits of this congressional redistricting case.
 
The Fifth Circuit granted in part and ordered the district court to vacate the October Hearing. The court explained that redistricting based on section 2 of the Voting Rights Act, 52 U.S.C. Section 10301, is complex, historically evolving, and sometimes undertaken with looming electoral deadlines. The court explained that the district court did not follow the law of the Supreme Court or the Fifth Circuit court. Its action in rushing redistricting via a court-ordered map is a clear abuse of discretion for which there is no alternative means of appeal. Issuance of the writ is justified “under the circumstances” in light of multiple precedents contradicting the district court’s procedure here. The court held that the state has no other means of relief and is not seeking to use mandamus as a substitute for appeal. Further, the court noted that if this were ordinary litigation, the court would be most unlikely to intervene in a remedial proceeding for a preliminary injunction. Redistricting litigation, however, is not ordinary litigation. The court held that the district court here forsook its duty and placed the state at an intolerable disadvantage legally and tactically.

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USA v. Kerstetter

Court: US Court of Appeals for the Fifth Circuit
Docket: 22-10253
Opinion Date: September 25, 2023
Judge: Per Curiam
Areas of Law: Constitutional Law, Criminal Law

Defendant pled guilty to possession of a firearm by a felon. On appeal, he argued that a sentencing enhancement that requires certain prior convictions be for offenses committed on different occasions could not be applied unless the facts supporting it were charged in the indictment and admitted by the accused or proved to a jury. He also argued that his prior convictions did not qualify for the enhancement.
 
The Fifth Circuit affirmed. The court explained that Defendant’s argument that the indictment must allege, and evidence at trial must prove, the facts of the commission of qualifying offenses on different occasions has long been rejected by the Fifth Circuit. Moreover, the court wrote that two of Defendant’s prior convictions were for the Texas offense of burglary of a building. It has been settled that convictions for Texas burglary qualify as violent felonies under the ACCA.

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Explaining the amendments to the Louisiana Constitution on the October 14 ballot


www.shreveporttimes.com/story/news/2023/09/25/explaining-the-amendments-to-the-louisiana-constitution-on-october-election-ballot/70959523007/

US Court of Appeals for the Fifth Circuit Opinions
Dining Alliance v. Foodbuy

Docket: 22-10340
Opinion Date: September 12, 2023
Judge: Edith H. Jones
Areas of Law: Business Law, Civil Procedure

A Texas citizen brought state-law claims in federal court against “Dining Alliance Inc.” Prior to the suit, however, Dining Alliance Inc. had converted into Dining Alliance LLC (“Dining Alliance”), whose citizenship may include both Texas and Delaware. This potential jurisdictional defect was not recognized because Dining Alliance originally answered under the name Dining Alliance Inc. and represented itself as a Massachusetts citizen. Dining Alliance unacceptably hid the ball with respect to the elementary jurisdictional facts during the entire course of litigation, including on appeal. The district court dismissed its third-party claims with prejudice as a sanction for that willful abuse of the judicial process.
 
The Fifth Circuit affirmed. The court explained that a district court may invoke its inherent power to dismiss claims with prejudice in order to protect “the integrity of the judicial process.” It must find that the litigant acted in bad faith or willfully abused the judicial process. It must also find that “lesser sanctions would not serve the best interests of justice.” The court wrote that contrary to Dining Alliance’s assertion, the district court found that Dining Alliance itself willfully abused the judicial process based on the totality of its litigation misconduct, which culminated in its refusal to obey the court’s order. That misstatement was reckless because the company’s transformation into Dining Alliance LLC should have been and apparently was known at the time. Accordingly, the court held that the district court neither lacked jurisdiction nor abused its discretion in dismissing Dining Alliance LLC’s third-party claims with prejudice as a sanction for its willful abuse of the judicial process.

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Rex Real Est I v. Rex Real Est

Docket: 22-50405
Opinion Date: September 6, 2023
Judge: James E. Graves, Jr.
Areas of Law: Intellectual Property, Trademark

Plaintiff Rex Real Estate I, L.P. sued Defendant Rex Real Estate Exchange for trademark infringement. The district court granted Defendant’s motion for judgment as a matter of law after Plaintiff rested its case. Plaintiff appealed the judgment against its federal infringement claims under the Lanham Act.
 
The Fifth Circuit affirmed in part, reversed in part, and remanded. The court held that a reasonable jury could not find in favor of Plaintiff’s Section 32(1) claim, but it could find in favor of Plaintiff’s Section 43(a) claim. The court explained that while there was strong evidence that the marks are perceived by the public as primarily a personal name, the record does not compel that conclusion. Thus, the district court erred by deciding as a matter of law that Plaintiff’s marks are not inherently distinctive.  
 
Moreover, the court explained that Plaintiff also asserts that the numerous calls it received from confused consumers who heard Defendant’s advertisements show that the marks have strong standing in the marketplace because it could mean that the callers assumed that Plaintiff was the sole source of the advertising. This is a plausible inference for a jury to make. The court held that taken together and in the light most favorable to the Plaintiff, a reasonable jury could find that this factor weighs in favor of Plaintiff.

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Louisiana prosecutors won’t be able to use lyrics as evidence of character under new law


www.nola.com/gambit/music/louisiana-prosecutors-won-t-be-able-to-use-lyrics-as-evidence-of-character-under-new/article_40e7ec90-388c-11ee-a290-e361b7e09f7d.html

Babinski v. Sosnowsky

Docket: 22-30588
Opinion Date: August 21, 2023
Judge: Carl E. Stewart
Areas of Law: Civil Rights, Constitutional Law, Education Law

Louisiana State University (“LSU”) (collectively “the Professors”) appealed the district court’s denial of qualified immunity after Plaintiff alleged that they violated his Fourteenth Amendment right to due process by conspiring to prevent his continued enrollment in Louisiana State University’s (“LSU”) theatre program.
 
The Fifth Circuit reversed the district court’s determination that they were not entitled to qualified immunity and dismissed Plaintiff’s claims. The court held that the Professors lacked adequate notice that their conduct was violative of Plaintiff’s constitutional rights, and because they did not have this notice, they are entitled to qualified immunity. The court explained that the clearly established standard requires more than that—there must be a “high degree of specificity” between the alleged misconduct and the caselaw purporting to clearly establish the violation. Without it, the requisite “fair warning” required under the clearly established inquiry is absent.

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Malik v. DHS

Docket: 22-10772
Opinion Date: August 15, 2023
Judge: Don R. Willett
Areas of Law: Civil Rights, Constitutional Law

Plaintiff is an immigration attorney whose work often requires international travel. Upon his return from one such trip, the Department of Homeland Security (“DHS”) diverted him to secondary screening after his surname appeared in connection with an investigation involving an arms dealer. DHS seized Plaintiff’s phone, decrypted it, screened the files for privilege, searched the remaining files, and then returned the phone to Plaintiff. Plaintiff sued DHS for declaratory and injunctive relief. The district court dismissed most of Plaintiff’s claims, reasoning that he lacks standing to seek declaratory relief related solely to past events. Next, while the court held that Plaintiff does have standing to seek an injunction requiring DHS to delete the data that it had seized, the court also held that Malik’s constitutional theories have no merit.
 
The Fifth Circuit affirmed. The court explained that DHS found the cell phone on Plaintiff’s “person” because it was part of the “baggage” that he was carrying with him into the United States. The search easily falls within the “plenary authority” that Congress has granted to the Executive branch. Accordingly, the court held that Plaintiff’s statutory argument therefore fails. Next, the court reasoned that the apparent connection between Plaintiff and “an international arms dealer with known ties to the Dallas area” was plenty to create reasonable suspicion—even if Plaintiff is correct that the connection appears dubious in hindsight.

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Drug user cannot be barred from owning guns, US court rules


www.reuters.com/legal/drug-user-cannot-be-barred-owning-guns-us-court-rules-2023-08-10/

LA State v. Jefferson Parish School Board

Docket: 22-30143
Opinion Date: July 25, 2023
Judge: Don R. Willett
Areas of Law: Civil Procedure, Constitutional Law, Education Law

The Jefferson Parish School Board (JPSB) separately suspended two students for individually having a BB gun visible during virtual school. Each student’s family sued the school board, in part seeking a declaration that the school board’s virtual learning disciplinary policy is unconstitutional. Louisiana intervened, agreeing with the families on the constitutionality of JPSB’s policy and separately challenging JPSB’s disciplinary actions as ultra vires. JPSB settled with the families, ending the private suits. Louisiana wants to continue the case, citing its broad interest in compliance with its laws. The question before us is whether Louisiana has standing to do so.
 
The Fifth Circuit concluded that Louisiana does not have Article III standing and remanded the case to the district court to send back to the capable Louisiana state courts. The court explained that this case lies outside the limits of Article III standing. States undoubtedly have an interest in enforcing their laws. But when it comes to federal courts, Louisiana must claim an injury to a traditional, sovereign interest to invoke Article III jurisdiction. The two are distinctly dissimilar. Louisiana fails to point to “any precedent, history, or tradition,” establishing that its interest in compliance with its laws is the equivalent of an Article III sovereign interest in maintaining its right to govern in the face of competing authority. The state similarly fails to establish an injury to an established quasi-sovereign interest sufficient to show parens patriae standing. Louisiana’s claim of injury to a proprietary interest also falls short.

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Louisiana lawmakers override governor’s veto on gender-affirming care ban


www.houmatimes.com/news/louisiana-lawmakers-override-governors-veto-on-gender-affirming-care-ban/

US Court of Appeals for the Fifth Circuit Opinions
Johnson v. Cooper T. Smith Stevedoring

Docket: 22-30488
Opinion Date: July 14, 2023
Judge: Dana M. Douglas
Areas of Law: Admiralty & Maritime Law, Civil Procedure, Personal Injury

Plaintiff worked as a longshoreman as early as 1998 and worked regularly for Cooper from 2008 through the date of his injury on June 22, 2018, never going more than a week and a half without working. He performed various jobs including operating a front-end loader and track hoe, flagging cranes, and loading barges. Employer classified Plaintiff as a non-assigned employee, meaning he was not assigned to a specific vessel. Employer has other employees who are assigned to vessels.

Plaintiff was hurt when he fell to the deck of a ship he was working on. He filed suit against Employer in federal district court in November 2020, alleging that he was a seaman and a member of the crew, and bringing claims of Jones Act negligence, failure to pay maintenance and cure, and unseaworthiness. In the alternative, Plaintiff alleged that if he was not a seaman and was covered by the LHWCA.

The District Court found Plaintiff failed to cite evidence that showed a genuine dispute of material fact as to whether he was a seaman and, alternatively, as to vessel negligence.

The Fifth Circuit affirmed, finding that Plaintiff did not have a connection to the ship he was working on at the time he was injured, and that he could not establish vessel negligence.

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US District Judge in Louisiana Enjoins Federal Social Media Censors


storage.courtlistener.com/recap/gov.uscourts.lawd.189520/gov.uscourts.lawd.189520.293.0_1.pdf

Louisiana v. Shallerhorn

Docket: 2022-KK-01385
Opinion Date: June 27, 2023
Judge: Crichton
Areas of Law: Constitutional Law, Criminal Law

The issue this case presented for the Louisiana Supreme Court's review was a matter of first impression: whether a defendant who is charged with first degree murder can elect a bench trial when the state has filed a formal notice that it will not seek capital punishment. The question presented involved the interpretation of Louisiana Code of Criminal Procedure article 780, specifically the meaning of the phrase “an offense other than one punishable by death.” In February 2021, defendant John Shallerhorn was arrested for several offenses, including on suspicion of first degree murder. The state filed notice that “for any charges for which the grand jury returns an indictment in [this] case, the State will elect to forego capital punishment.” Shallerhorn was ultimately indicted for first degree murder and armed robbery. Defendant filed a motion for a bench trial, seeking to waive his right to a trial by jury pursuant to the provisions of La. C.Cr.P. article 780. The state opposed this motion, and the trial court, agreeing with the state, denied it. The trial court noted that though the state was not currently pursuing the death penalty, “if something changes at the DA’s office and somehow death is back on the table,” then the defendant could not waive a jury and elect a bench trial. The Supreme Court held that after the state provides formal notice that it will not seek the death penalty, and thereby elects to prosecute the offense of first degree murder as a non-capital case, a defendant may waive a trial by jury and elect a bench trial.

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Seat Belt & DWI Checkpoints in Lafourche Parish Slated for Friday, June 23

www.houmatimes.com/news/seat-belt-dwi-checkpoints-slated-for-friday-june-23/

Every Louisiana driver’s license holder exposed in colossal cyber-attack



www.theguardian.com/us-news/2023/jun/16/louisiana-drivers-license-hack-cyber-attack

US Court of Appeals for the Fifth Circuit Opinions
USA v. Lopez

Docket: 22-40121
Opinion Date: June 13, 2023
Judge: Cory T. Wilson
Areas of Law: Constitutional Law, Criminal Law

Defendant pled guilty to possession of a firearm and ammunition by a felon. He challenged his sentence on several grounds, particularly the district court’s imposition of a four-level enhancement for use or possession of a firearm in connection with another felony offense. The linchpin of this case is whether Defendant’s repeated instances of being a felon in possession of a firearm were relevant conduct justifying the enhancement.
 
The Fifth Circuit affirmed. The court held that the district court thoroughly analyzed the factors for relevant conduct— similarity, regularity, and temporal proximity—and concluded the evidence weighed in favor of the Government. Here, Defendant was sentenced to 70 months—well below the 10-year statutory maximum. The district court committed no error, clear or otherwise, in its analysis. Further, the court explained that the Sentencing Guidelines do not generally prohibit double counting. The Guidelines permit the district court to consider a defendant’s prior felony convictions in calculating both his offense level under Section 2K2.1(a) and his criminal history category. Accordingly, the court held that the district court did not err in calculating Defendant’s sentence on this basis.

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Ficher v. Bickham

Docket: 19-30750
Opinion Date: June 6, 2023
Judge: James C. Ho
Areas of Law: Constitutional Law, Criminal Law

A Louisiana jury convicted Petitioner of second-degree murder. In this habeas proceeding, Petitioner contends that his trial counsel erred by failing to contact an eyewitness who would’ve supported his defense. He has twice been denied state postconviction relief. He sought federal habeas relief for a second time. The district court held the petition untimely and dismissed it with prejudice.
 
The Fifth Circuit vacated and remanded so that the district court can rule on the ineffective assistance of counsel claim in the first instance. The court explained that courts of appeals may reach an abandoned timeliness defense when the waiver or forfeiture results from a mistake—but not when the state’s decision to focus exclusively on the merits of the habeas claim is based on a deliberate judgment call. And that is especially so where timeliness is complex, but the merits are straightforward. But rather than decide the merits of Petitioner’s claim in the first instance, the court concluded that remanding the case back to the district court is appropriate.

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Senate committee advances permitless concealed carry


www.houmatimes.com/news/senate-committee-advances-permitless-concealed-carry/

US Court of Appeals for the Fifth Circuit Opinions
Taylor v. LeBlanc

Docket: 21-30625
Opinion Date: May 15, 2023
Judge: James C. Ho
Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Plaintiff was detained beyond the expiration of his sentence because Department officials gave him credit for time served in pre-trial detention but only for one (rather than both) of his two consecutive sentences. That was the right thing to do under the law, then in effect. But Plaintiff was entitled to the more generous provision in effect at the time his sentence was entered. As a result, he served over a year longer than he should have. After his release, Plaintiff brought suit against various Louisiana officials under 42 U.S.C. Section 1983, among other claims. This appeal concerns only one of those claims: Plaintiff’s claim against the head of the Department, Secretary James LeBlanc (“Defendant”). Defendant appealed the denial of qualified immunity, arguing that his conduct wasn’t objectively unreasonable in light of clearly established law.
 
The Fifth Circuit reversed. The court explained that while the right to timely release is clearly established, Plaintiff does not show how Defendant’s conduct was objectively unreasonable in light of clearly established law. Plaintiff contends that Defendant was objectively unreasonable because he failed to assign the task of calculating release dates to an attorney. But nothing in the Constitution requires that such actions be undertaken by a member of the bar.

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US Court of Appeals for the Fifth Circuit Opinions
Texxon v. Getty Leasing

Docket: 22-40537
Opinion Date: May 3, 2023
Judge: Stephen A. Higginson
Areas of Law: Bankruptcy, Civil Procedure, Contracts

Appellant Texxon Petrochemicals, LLC (“Texxon”) filed for bankruptcy. In that proceeding, Texxon filed a motion to assume executory contract, alleging that it entered into a contract with Getty Leasing in 2018 to purchase the property. Getty Leasing objected to the motion. After an evidentiary hearing, the bankruptcy court denied the motion on the grounds that, for multiple reasons, there was no valid contract to assume. The district court affirmed, finding there was insufficient evidence to show that, as required under Texas law, the alleged contract was sufficient as to the property identity or comprised an unequivocal offer or acceptance. Texxon appealed. Getty Leasing primarily contends that the appeal is mooted by the dismissal of the underlying bankruptcy proceeding.
 
The Fifth Circuit affirmed. The court held that the brief email exchange did not demonstrate an offer or acceptance, as required for a contract to be binding under Texas law. Texxon fails to show that the email exchange satisfied any of the three required elements of an offer. A statement that a party is “interested” in selling a property is not an offer to sell that property—it is an offer to begin discussions about a sale. Nor were the terms of the offer clear or definite. Finally, the alleged offer failed to identify the property to be conveyed. For these reasons, Texxon is unable to show the existence of a binding contract.

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Adams v. City of Harahan

Docket: 22-30218
Opinion Date: April 16, 2023
Judge: Carl E. Stewart
Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Personal Injury

This appeal arises from Plaintiff’s suit against the City of Harahan (“the City”) for its alleged deprivation of his Fourteenth Amendment right to due process. In October 2019, the Harahan Police Department (“HPD”) Chief of Police determined that Plaintiff was guilty of numerous offenses. Plaintiff was entitled to a fifteen-day appeal window of the Chief’s disciplinary determinations. Plaintiff exercised his right to appeal a week after the charges. However, the Chief emailed the Jefferson Parish District Attorney’s office (“JPDA”) to inform it of his disciplinary action against Plaintiff before he exercised his right. Plaintiff brought a civil rights suit against the City for violation of his procedural due process rights, stigma-plus-infringement, and defamation. He included Louisiana state law claims for defamation, invasion of privacy, and negligence. The City moved to dismiss his Section 1983 claims under Rule 12(c). The primary issue is whether the district court erroneously determined that Plaintiff had a liberty interest in his “future employment as a law enforcement officer.
 
The Fifth Circuit reversed the district court’s denial of the City’s Rule 12(c) motion and dismissed Plaintiff’s due process claim. The court explained that Plaintiff’s alleged liberty interest in his career in law enforcement has no basis in Supreme Court or Fifth Circuit precedent. Moreover, he does not provide a different constitutional anchor for this proposed liberty interest. Because he fails to state facts supporting the violation of a cognizable liberty interest, he fails to plead a due process violation. Furthermore, the court declined to address the adequacy of the process he received.

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Southern Orthopaedic Speclalists v. State Farm Fire

Docket: 22-30340
Opinion Date: April 4, 2023
Judge: Per Curiam
Areas of Law: Civil Procedure, Contracts, Insurance Law

Appellant Southern Orthopaedic Specialists, L.L.C. (“Southern Orthopaedic”) sued its insurer, State Farm Fire & Casualty Company (“State Farm”), to recover business interruption losses caused by covid-related shutdowns. It also claims that State Farm negligently misrepresented the scope of the policy’s coverage. The district court dismissed these claims as foreclosed by the policy and Louisiana law.
 
The Fifth Circuit affirmed. The court held that Southern Orthopaedic’s pleadings fall short. They do not allege that covid caused “tangible or corporeal” property damage. Nor do they allege that the presence of covid particles required physically repairing or replacing any part of Southern Orthopaedics’s property. Nor do they claim that the presence of covid necessitated lasting alterations to the property. Without allegations of this nature, Southern Orthopaedic cannot meet the requirement of pleading an “accidental direct physical loss” under the policy.

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