CA1(2.18.05)

Although my coverage of the First Circuit has been described as "abysmal", and my years of experience have been reduced to that of a "law student"  I proudly present Friday's opinions from the First Circuit.

Eight Cases -- Four Published, and Four Unpublished.  But, travel and work seem to be interfering with my real goals this week.  Also, because the First Circuit's website seems to be experiencing technical difficulties, I may have to rely on alternate servers.

In the first, Score One for Confrontation on Habeas

In the second, some doctors fail to show how their patents and secrets were stolen, and how the attorney-client privilege doesn't apply.  With the exception of a discussion of preemption (resolved in favor of state law) and FRCP 15, it is mostly a question of state substantive law.  In the comments someone appears to have strong feelings about this one.

In the third, the habeas statute can be used to vacate a sentence that was enhanced because of a state conviction that was vacated, itself, for constitutional reasons.

In the fourth, the court explores whether lawyers should be sanctioned, and concludes that they should not be.

Score One for Confrontation on Habeas

 White v. Coplan, 04-1044, In this habeas action, the petitioner challenges, on confrontation clause grounds, his sexual assault convictions because “…he was forbidden to offer evidence that both girls had previously made such accusations against other persons, even though the state supreme court ultimately found that such prior accusations showed a reasonable probability of falsity.”  On direct appeal, the state state supreme court held that White had proven the falsity of the girls' earlier accusations to a "reasonable probability," but it concluded that New Hampshire law required a higher standard for prior accusations--demonstrable falsity--which the court equated with clear and convincing evidence. State v. White, 765 A.2d 158, 159, 161 (N.H. 2000). This rule is based on caselaw, not NH R. Evid. 608.

On habeas, a magistrate, applying AEDPA, found that the state had addressed the claim. But the First Circuit held that New Hampshire’s standard seems to be unconstitutional, and “…White was entitled to explore the prior accusations on cross-examination.”

Massachusetts Eye and Ear Infirmary, v. QLT Phototherapeutics, Nos. 03-1682, 03-1683, 03-1725 -- alt site -- . The facts of this case are rather complex, in that they involve a number of interlocking agreements between doctors and hospitals who were developing, or supporting the development of a drug that cures vision problems. This District Court, to manage the discovery, ended up appointing a discovery master. Most of what remains on appeal are, what seem to be, well-settled matters of state law.

However, for purposes of those who do not care what amounts to a bunch of doctors suing each other (yes, doctors are sued by each other, too.) The First Circuit holds thus:

The “common-interest” exception to the attorney-client privilege applies to joint representation, when, in reality the interests of the clients are quite diverse. But, “The rules of discovery therefore do not insulate from discovery the communications of a duplicitous party who feigns common interest while scheming otherwise with a shared, trusted advisor.” While the Court upheld the decision of the District Court it seemed willing to entertain the idea that at some point the “upon the implication that a party has a conditionally adverse interest.”

 As a matter of Massachusetts law, a third-party cannot assert that a non-disclosure was breached unless there was an explicit intent, expressed the language of the contract to benefit him.

 Likewise, as we learned in law school, implied contracts do not exist when it is impossible to tell, with clarity, what the terms of the contract are. The actions of the party are only looked at, “only to determine whether their actions indicate that they, in fact, agreed on those terms.” Where there is no contract, there is no breach of any implied convents of good faith.

 If two parties jointly own property, and neither prevents the other from exercising its property rights, there can be no conversion.

 The court also affirmed the district court’s grant of summary judgment to a defendant on a misrepresentation claim, for lack of evidence.

 The District Court did not abuse its discretion in denying a motion to amend the complaint under Fed. R. Civ. P. 15(e). The movant waited too long.

 An unjust enrichment claim was not preempted by federal patent law. In this case, where the issue was whether “QLT induced MEEI to agree to the change in scope of the claims, and then unjustly profited from that change by denying fair compensation,” which the all of the courts figured was an example of “conflict preemption” under Hunter Douglas, Inc. v. Harmonic Design, 153 F.3d 1318, 1334-35 (Fed. Cir. 1998). In this case, where someone seeks compensation that was allegedly promised, federal law regarding patents doesn’t preempt state law.

Finally, in a misappropriation of trade secrets claim, the court held that Massachusetts’s statute of limitation had passed and the discovery rule did not save the plaintiff.

Some guy named Ted disagreed with my interpretation.  After reading the case, you can read his views on the subject.  He seems quite angry.  Trade Secret Law provides their take here.

Mateo v. US, Nos. 03-2409, 03-2472, holds that under 28 U.S.C. § 2255, a convict can petition for a reduction of a sentence that was enhanced under USSG § 4A1.1(c) because of other convictions that were later vacated. The First Circuit determined that because the state court had rested its decision to vacate a conviction on constitutional grounds, in this case whether a guilty plea was knowing and voluntary.

The lawyers did nothing wrong.

Obert v. Republic Western Insurance Company, No. 04-1525. To set the tone of this opinion, a quote is necessary:

This is a set of consolidated appeals by five lawyers and two law firms from orders of the district court revoking the pro hac vice status of two of the lawyers and making adverse findings yet to be described, with sanctions, based on violations of pertinent ethical rules and other constraints on attorney practice.

 The court first held that even though the case was not settled, “…given the substance of the underlying rulings, the reputations of counsel are affected by the findings that individual counsel and their firms violated state ethics rules or Rule 11, the Rule 11 violations in this case being closely related to the ethics rulings. An affidavit from one of the counsel underscores the serious practical consequences of such findings.”

 Specifically, the court found that in a motion to recuse, an “untruthful” affidavit filed by one attorney, and “adopted as his own” by another attorney. The court held, however, that since RIRPC 3.3(a)(1) requires define “untruthful” as knowingly false, the words used in the motions and affidavits did not constitute lies, but rather “unsound pieces of lawyerly advice,” tenuous characterizations, or uncommon usages of words.

 Finally, the court held that a motion to recuse, while not well-grounded was not frivolous, and certainly wasn’t time-wasting.

The unpublished cases are not that  interesting.

 Hutauruk v. Gonzales, No. 03-2485, affirms a decision of an IJ. The petitioner had argued that the State Department report on human rights practices in Indonesia submitted by the government in the administrative proceedings didn’t support their contention that the government would beat them up, even though they relied on it.

Otero-Varcalcel v. Cantero-Frau, No. 03-2680, is another one of the Puerto Rican First Amendment/Due Process cases (where government employees claim that they were fired because of their political affiliation). Here the plaintiff missed deadlines, and the First Circuit determined that he would have lost, anyway.

Ahlijah v. Ashcroft, No. 04-1120, Affirms a decision of the BIA as to one spouse because it was the appeal was filed late, and goes to the merits of the other. As to the other spouse, the court noted that although he had presented evidence that he was oppressed in one country, he did not present evidence that he was oppressed in the country he was seeking asylum from.

And Furtado v. Maloney, No. 04-1675, is a denial of a certificate of appealability.

Comments

[Ted]

Given the regular "Overlawyered Watch" feature where you anonymously attack a website for real and imagined errors, it's remarkable that every time I double-check an opinion you write upon, you get it wrong.

1. You get the trade secret claim precisely wrong, since, in fact, the First Circuit reversed the summary judgment finding in a lengthy discussion of the facts; the discovery rule did, in fact, "save the plaintiff"--both with the trade secret claim and, in part, the unfair trade practices claim.

2. You write 'While the Court upheld the decision of the District Court it seemed willing to entertain the idea that at some point the “upon the implication that a party has a conditionally adverse interest.”' This sentence makes no sense. If you meant to say "common-interest exception expires upon the implication...", the opinion is quite clear that the First Circuit is not "entertaining" that notion, but merely holding that the question is one of law. The Court quite explicitly rejected that proposition with respect to subject matters still under a common interest.

3. " As a matter of Massachusetts law, a third-party cannot assert that a non-disclosure was breached". One cannot breach a "non-disclosure." Perhaps you mean a non-disclosure agreement? In any event, the rule in Massachusetts law is not one specific to non-disclosure agreements, but applies to all contracts. Indeeed, it's 1L black-letter law. Restatement (2d) of Contracts § 302 (1981).

4. "The movant waited too long" is redundant with "denial of a motion to amend." It tells us nothing. The critical fact is that the movant waited until a dispositive motion for summary judgment was pending without adequate explanation for the delay.

5. Your next-to-last paragraph isn't in English; it contains the phrase 'which the all of the courts figured was an example of “conflict preemption”'. You incorrectly state that "where someone seeks compensation that was allegedly promised, federal law regarding patents [sic: "federal patent law"] doesn’t preempt state law." That's not true; it depends on the promise. There was no pre-emption here because the promise was independent of the inventorship question. If MEEI's unjust enrichment claim was a question of inventorship, rather than a question of an agreement to prosecute one patent over another, federal law would pre-empt. Univ. of Colo. Found., Inc. v. Am. Cyanamid Co., 196 F.3d 1366, 1373-74 (Fed. Cir. 1999). As the First Circuit held, "the proper inventorship of either the '473 application or the '591 application is indeed a non-negotiable question of federal law."

6. You write "a bunch of doctors suing each other"; two corporations in a contract dispute over proceeds from medical patent licensing are not "a bunch of doctors suing each other." We have no basis to conclude that all of the shareholders are doctors.

7. You write "But 'The rules of discovery therefore.'" The "But" is incorrect, as it implies that the court's finding is contrary to the principle of the common-interest rule.

[Ted]

If you're going to make these ad hominem arguments in support of your credibility, you can't hide behind your anonymous handle. Why stop at claiming you have "years of experience"? Why not insist you're a famous multi-millionaire scholar? Yeah, that's the ticket.

Not that the arguments would carry much weight compared to the undefended shoddy analysis.

[S.cotus]

Thanks for your comments. I will look at them and correct the post as appropriate. In fact, I really hated reading this case since I found it annoying, so maybe I will just do a big ol' block quote from you. (I prefer reading cases involving rape or murder. But, that is my preference.)

Considering that most people who read this blog had been admitted more than two years, my comments are not per se unbelieveable. If you want to post your views on the case, go ahead.

[David Behar, 2L]

Mr. Cotus: Excuse me. Not "reduced to that of a law student," "unjustifiably upgraded to that of a law student." The law student still has a quickly receding sight of the real world on its horizon, not being fully indoctrinated into the world of 1200 AD, where the lawyer lives, lies, and steals.

[S.cotus]

I see. You make your point quite well.