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Dagate, Ellender Jr. Sworn in as New Judges for the Terrebonne Prish 32nd District Court
www.houmatimes.com/news/dagate-ellender-jr-sworn-in-as-new-judges-for-the-terrebonne-prish-32nd-district-court/
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US Court of Appeals for the Fifth Circuit Opinions Rivera v. Kirby Offshore Marine, LLC Docket: 19-40799 Opinion Date: December 22, 2020 Judge: Carl E. Stewart Areas of Law: Admiralty & Maritime Law, Personal Injury Plaintiff was hired by Kirby to pilot a seagoing vessel. While plaintiff was aboard the vessel, he injured his foot when he tripped over a stair inside a hatch door. Plaintiff filed suit against Kirby for lost wages and the district court ultimately determined that Kirby was liable to plaintiff on his claim of Sieracki seaworthiness and that Kirby was alternatively liable under the Longshore and Harbor Workers' Compensation Act (LHWCA). The district court awarded plaintiff $11,695,136.00 in damages. The Fifth Circuit concluded that plaintiff is not an employee of Riben Marine and thus is not eligible to sue under section 905(b) of the LHWCA; the district court did not clearly err in concluding that the vessel was unseaworthy; plaintiff was not contributorily negligent for wearing sunglasses on the vessel and the district court did not make insufficient factual findings on the contributory negligence question; assuming arguendo that the district court erroneously admitted evidence of a subsequent remedial measure, Kirby has not demonstrated that the error affected its substantial rights; and the district court did not err in assessing plaintiff's lost future earnings. Read Opinion Officials Feud Over Transfer of Terrebonne Parish Money
www.usnews.com/news/best-states/louisiana/articles/2020-12-21/officials-feud-over-transfer-of-terrebonne-parish-money Terrebonne Parish Council updates Ordinances on the Sale and Use of Fireworks www.houmatimes.com/news/terrebonne-parish-council-updates-ordinances-on-sale-and-use-of-fireworks/ US Court of Appeals for the Fifth Circuit Opinions Thurman v. Medical Transportation Management, Inc. Docket: 19-60596 Opinion Date: December 15, 2020 Judge: James C. Ho Areas of Law: Civil Rights, Constitutional Law Plaintiff filed suit under 42 U.S.C. 1983 alleging that MTM's failure to pick him up violated his purported right to non-emergency medical transportation under various federal regulatory and statutory Medicaid provisions. The Fifth Circuit affirmed the district court's dismissal of plaintiff's claims, joining its sister circuits in holding that a section 1983 claim may not be brought to enforce an administrative regulation. The court explained that this conclusion is consistent with the principle that federal rights are created by Congress, not agencies of the Executive Branch, as the Supreme Court has affirmed on various occasions. The court also held that none of the statutory provisions invoked by plaintiff clearly and unambiguously create a right to non-emergency medical transportation, as established precedents require for a claim under section 1983. Read Opinion Judge OKs Plan for Settling Hurricane Damage Lawsuits Against Insurers in Louisiana
www.insurancejournal.com/news/southcentral/2020/12/15/594053.htm Louisiana AG joins multistate lawsuit against Facebook
www.houmatimes.com/news/louisiana-ag-joins-multistate-lawsuit-against-facebook/ United States v. Lipscomb Docket: 18-11168 Opinion Date: December 8, 2020 Judge: Edith Brown Clement Areas of Law: Criminal Law The Fifth Circuit held that the district court erred in granting defendant's 28 U.S.C. 2255 motion and vacated the district court's order, directing the district court to reinstate its original judgment. In this case, defendant moved for release under section 2255, based on the Supreme Court's holding in Johnson v. United States, 576 U.S. 591, 597 (2015), that the residual clause of the Armed Career Criminal Act's (ACCA) violent felony definition violated due process. The court explained that case law has crystalized in this area and held that defendant's prior robbery convictions designated him an armed career criminal at the time of his sentencing. Read Opinion Terrebonne, Lafourche elect new city marshals
www.houmatimes.com/news/terrebonne-lafourche-elect- new-city-marshals/ US Court of Appeals for the Fifth Circuit Opinions Future Proof Brands, LLC v. Molson Coors Beverage Co. Docket: 20-50323 Opinion Date: December 3, 2020 Judge: Jerry Edwin Smith Areas of Law: Intellectual Property, Trademark Future Proof filed suit against Coors for trademark infringement, claiming that consumers would confuse Coors' hard seltzer beverage "Vizzy" with Future Proof's hard seltzer beverage "Brizzy." The Fifth Circuit affirmed the district court's denial of Future Proof's motion for a preliminary injunction, holding that the district court did not abuse its discretion in determining that Future Proof cannot determine a likelihood of success on the merits of its claims. In this case, the district court considered the digits of confusion and concluded that three digits supported the injunction and one weighed "marginally in favor of granting the injunction . . . ." But the district court correctly concluded that the other four factors did not support the injunction. The district court also notably concluded correctly that the two digits that have special importance, namely the sixth—which "may alone be sufficient to justify an inference that there is a likelihood of confusion,"—and the seventh—which constitutes the "best evidence of a likelihood of confusion,"—did not support the injunction. Read Opinion Court rulings stall controversial plastics factory in Louisiana
www.ncronline.org/news/earthbeat/court-rulings-stall-controversial-plastics-factory-louisiana Terrebonne Closes All Bars to Indoor Sales and Consumption of Alcohol
www.houmatimes.com/news/terrebonne-closes-all-bars-to-indoor-sales-and-consumption-of-alcohol/ Supreme Court blocks New York coronavirus restrictions on houses of worship
thehill.com/regulation/court-battles/527670-supreme-court-blocks-new-york-coronavirus-restrictions-on-houses-of Louisiana reverting to ‘modified’ Phase 2 restrictions, Gov. Edwards announces
www.wafb.com/2020/11/24/just-new-tighter-covid-restrictions-be-announced-soon/ US Court of Appeals for the Fifth Circuit Opinions Joseph v. Bartlett Docket: 19-30014 Opinion Date: November 20, 2020 Judge: Don R. Willett Areas of Law: Civil Rights, Constitutional Law Kendole Joseph's family filed suit against police officers after Joseph died during the course of an arrest. Plaintiffs alleged violations of Joseph's Fourth Amendment rights, as well as claims of excessive force and failure to intervene. In this case, after a middle school official reported that Joseph was acting "strange" near the school, school resource officers approached Joseph. Joseph ran into a nearby convenience store and jumped behind the check out counter. The school resource officers followed, with twelve additional officers joining them. About eight minutes after Joseph entered the store, the officers apprehended him and carried him to a police car, after which he became unresponsive and was taken to the hospital, where he died two days later. Viewing the facts in the light most favorable to plaintiffs, the Fifth Circuit held that, if a jury found those facts to be true, Officers Martin and Costa violated Joseph's right to be free from excessive force during a seizure by failing to employ a measured and ascending response to the threat Joseph posed. In this case, Joseph was not suspected of committing any crime, was in the fetal position, and was not actively resisting. Nonetheless, Officers Martin and Costa inflicted twenty-six blunt-force injuries on Joseph and tased him twice, all while he pleaded for help and reiterated that he was not armed. Therefore, the actions of Officers Martin and Costa were disproportionate to the situation, in violation of the Fourth Amendment and the clearly established law. They are not entitled to summary judgment on the constitutional claims. However, the court held that nine "bystander officers" are entitled to qualified immunity where plaintiffs failed to meet their burden to show that these officers violated clearly established law. The court dismissed the appeal to the extent it challenges the district court's factfinding; affirmed the denial of summary judgment as to Officers Martin and Costa; and reversed the denial of summary judgment as to the nine bystander officers. Read Opinion Louisiana Supreme Court Opinions Ewing v. Westport Ins. Co., et al. Docket: 2020-C-00339 Opinion Date: November 19, 2020 Judge: Johnson Areas of Law: Civil Procedure, Insurance Law, Legal Ethics, Personal Injury, Professional Malpractice & Ethics The Louisiana Supreme Court granted this writ application to determine whether “collectibility” was a relevant consideration in a legal malpractice action. Specifically, the issue presented was whether plaintiff’s damages in this legal malpractice action were limited to the amount she could have actually collected on a judgment against the tortfeasor in the underlying lawsuit. Elaine Ewing was injured in an automobile accident in 2015, when her vehicle was hit by a vehicle driven by Marc Melancon. Her counsel failed to forward the original petition for damages within seven days as required by La. R.S. 13:850. The original petition was filed on April 22, 2016, after the one-year prescriptive period had passed. Ms. Ewing’s suit was dismissed on an exception of prescription. Ms. Ewing subsequently filed a legal malpractice action against her attorney and Westport Insurance Corporation, counsel's malpractice insurer. Defendants filed a motion for partial summary judgment asserting the court should apply the “collectibility rule.” Defendants alleged Ms. Ewing’s recovery could be no greater than her potential recovery in the underlying personal injury lawsuit, and recovery in this case should have been capped at Mr. Melancon’s insurance policy limits. The Supreme Court held that proof of collectibility of an underlying judgment was not an element necessary for a plaintiff to establish a claim for legal malpractice, nor could collectibility be asserted by an attorney as an affirmative defense in a legal malpractice action. Read Opinion Louisiana pastor seeks emergency relief from criminal charges after defying ban on large gatherings www.foxnews.com/us/louisiana-pastor-emergency-relief-ban-large-gatherings Mardi Gras parades ‘will not be permitted’ in 2021, Mayor Cantrell’s website states www.houmatimes.com/news/mardi-gras-parades-will-not-be-permitted-in-2021-mayor-cantrells-website-states/ US Court of Appeals for the Fifth Circuit Opinions United States v. McKinney Docket: 19-50801 Opinion Date: November 16, 2020 Judge: Leslie Southwick Areas of Law: Criminal Law The Fifth Circuit reversed defendant's conviction for being a felon in possession of a firearm. When defendant pleaded guilty to the crime, he reserved the right to challenge on appeal the denial of his motion to suppress evidence of the discovery of the firearm by an officer patting him down prior to questioning. The court concluded that the evidence before the district court did not support the conclusion that officers had reasonable suspicion of criminal activity to detain defendant for questioning or to subsequently frisk him. In this case, defendant was detained for questioning while standing on a sidewalk with others near a business that in recent days had been the location of multiple gang-related shootings. The court stated that the body-camera videos and police report do not sufficiently explain the events leading up to the initiation of the investigatory detention. Accordingly, the court vacated the district court's order denying defendant's motion to suppress and remanded for further proceedings. Read Opinion United States v. Frierson Docket: 19-31048 Opinion Date: November 11, 2020 Judge: Jennifer Walker Elrod Areas of Law: Criminal Law The Fifth Circuit affirmed defendant's concurrent, within-Guidelines sentences of 120 months for being a felon in possession of a firearm and 151 months for possessing with intent to distribute a controlled substance. The court held that the district court did not err by applying the career offender enhancement because Louisiana R.S. 40:967 is divisible and, under the modified categorical approach, sufficiently narrow to serve as a predicate for a career offender sentence enhancement under section 4B1.1(a). Therefore, defendant's previous conviction under Louisiana R.S. 40:967 was a valid predicate offense for the sentence enhancement in this case. Read Opinion US Court of Appeals for the Fifth Circuit Opinions Raicevic v. Fieldwood Energy, LLC Docket: 19-40580 Opinion Date: November 10, 2020 Judge: Per Curiam Areas of Law: Labor & Employment Law, Personal Injury Plaintiff filed suit against Fieldwood and others after he was injured while working on Fieldwood's offshore platform. The jury found that Fieldwood was the only defendant that was negligent, attributing 50 percent of the responsibility to the company and the other 50 percent to plaintiff. The Fifth Circuit affirmed the district court's entry of judgment for defendants, agreeing with the district court that plaintiff was Fieldwood's borrowed employee and thus the Longshore and Harbor Workers' Compensation Act's (LHWCA) exclusive-remedy provision gave Fieldwood tort immunity. In this case, the evidence showed that both Fieldwood and Waukesha Pearce had LHWCA insurance at the time of plaintiff's injury and that is enough for Fieldwood to invoke the LHWCA's exclusive-recovery provision. Finally, the court held that the district court's consideration of Fieldwood's post-trial evidence was proper. Read Opinion US Court of Appeals for the Fifth Circuit Opinions Pizza Inn, Inc. v. Clairday Docket: 19-11302 Opinion Date: November 4, 2020 Judge: Jerry Edwin Smith Areas of Law: Contracts This case stemmed from a contract dispute between Pizza Inn and defendant, a franchisee of Pizza Inn. Defendant held an option to renew but failed to timely notify Pizza Inn that he wished to do so; Pizza Inn did not honor the tardy notice of renewal and did not renew; and a jury subsequently awarded damages to defendant after finding that Pizza Inn breached the contract. The district court upheld the verdict and awarded defendant attorneys' fees. The Fifth Circuit reversed, holding that the district court incorrectly applied the equitable-intervention doctrine. The court held that, because strict compliance with the agreement does not result in unconscionable hardship, equitable intervention is inapplicable. The court rejected defendant's asserted hardships: forfeiture of a portion of his initial investment, forfeiture of future profits, and shuttering a Pizza Inn franchise store. The court also held that the district court erred in awarding attorneys' fees. The court rendered judgment in favor of Pizza Inn. Read Opinion Atkins v. Hooper Docket: 19-30018 Opinion Date: November 3, 2020 Judge: Leslie Southwick Areas of Law: Civil Rights, Constitutional Law, Criminal Law The Fifth Circuit withdrew its previous opinion and affirmed the district court's denial of habeas relief to petitioner. Petitioner contends that the state court's decision denying his Sixth Amendment Confrontation Clause claim was contrary to and involved an unreasonable application of Supreme Court precedent. The court held that Tennessee v. Street, 471 U.S. 409, 414 (1985), and Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), do not even address the Confrontation Clause issue raised by petitioner's claims. To the extent the state district court was applying either opinion, the court concluded that it was an unreasonable application to hold they controlled as to these different facts. Rather, the court concluded that Gray v. Maryland, 523 U.S. 185 (1998), was closer factually and analytically to what occurred in this case. Nonetheless, the court concluded that any error was harmless because it did not have a substantial and injurious effect or influence in determining the jury's verdict. Read Opinion US Court of Appeals for the Fifth Circuit Opinions In Re: Orlando Hall Docket: 19-10345 Opinion Date: October 30, 2020 Judge: James C. Ho Areas of Law: Criminal Law The Fifth Circuit denied movant's request for authorization to file a third habeas petition under 28 U.S.C. 2255 to challenge his yet-unserved sixty-month sentence for carrying and using a firearm during a crime of violence under 18 U.S.C. 924(c). Movant and his coconspirators were convicted of kidnapping and repeatedly raping a 16 year old high school student, taking turns beating her with a shovel, covering her with gasoline, and burying her alive. The court rejected movant's claim under Davis v. United States, 139 S. Ct. 2319 (2019), and held that, although Davis set aside section 924(c)(3)'s residual clause as unconstitutionally vague, it left intact the elements clause of section 924(c). Furthermore, defendant's conviction for kidnapping resulting in death satisfies the elements clause of section 924(c)(3). Read Opinion |
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