Appellate Law & Practice

CA1: TWA800 FOIA

From a questionable source comes this:

On 5/27/05 an appeal was filed to the First Circuit Appeals Court in a freedom of information lawsuit against the FBI to obtain forensic  details about the explosion in1996 of TWA Flight 800.

CA1: It's not the same old song

Johnson v. Gordon, No. 04-2475, affirms granting of summary judgment in a copyright infringement case.  Here there was an unregistered long version of the song, and a registered short version, and the court discusses how copyright law has changed to cover those parts.   But the rest of the opinion contains a rather interesting analysis of the expert reports, in which an expert attempted to show that two songs were the same.  The court concludes, “Relationship does not necessarily breed similarity, and the plaintiff has offered no support for the proposition that musically related but distinct melodic fragments may give rise to an inference of actual copying.”

CA1: Must actually be a non-profit to be immune from CROA

Zimmerman v. Cambridge Credit Counseling Corp, No. 04-2039. This opinion begins:

The Credit Repair Organizations Act (CROA or the Act) creates a cause of action for consumers harmed by the unscrupulous business and advertising practices on the part of credit repair organizations. See 15 U.S.C. § 1679 et seq. But the Act does not permit lawsuits against "any nonprofit organization which is exempt from taxation under section 501(c)(3)" of the Internal Revenue Code.

Keep reading.

CA1: Hospital not state actor

Estades-Negroni v. Cpc Hospital San Juan Capestrano et al., No. 04-1792, affirms a dismissal of a 1983 action against a hospital, which apparently involuntarily committed the plaintiff.  The court went through each of the tests under which a private party could be considered a state actor, and the parties failed all of them.  But, the plaintiff might still have a viable complaint under Puerto Rican law.

CA1: Equitable Tolling and Title VII

Mercado v. The Ritz-carlton San Juan Hotel, No. 04-1630, vacates a dismissal of a Title VII claim to allow the defendants to factually develop their argument that the statute of limitations should be tolled “because the hotel failed to comply with EEOC regulations requiring employers to post notices advising employees of their legal rights relating to employment discrimination.” 

CA11:habeas corpus and jury instructions

Jamerson v Sec'y, DOC affirms the denial of habeas relief. The argument is that a jury instruction was so erroneous as to amount to a violation of due process. Based in part on the narrow scope of review, and in part on the perception that the instructions taken as a whole were not even really wrong, the Court rejects the argument. The instruction at issue had to do with the extent to which the defendant could, under Fla. law, be convicted as an accomplice to second-degree murder. Did the trial court tell the jury that it could convict him of that, even if he knew only that there would be a lesser offense (e.g., battery) and not a murder? No, it did not, says the Court.

CA11: Florida insurance law

When an opinion begins "This diversity action presents an obscure but important question of Florida insurance law ..." my mind wanders. And when it ends without even a decision on that obscure question but instead a certification to the Fla. S.Ct., my mind doesn't bothering wandering back. Read Miller v Scottsdale Ins. Co. if you are either personally or professionally fascinated by obscure questions of Florida insurance law. The question seems to be "whether § 627.848, Fla. Stat. (2002), which governs insurance policy cancellations by premium finance companies, contemplates separate dates of cancellation for different insureds or requires a single cancellation date." I have already said too much.

catching up on CA11: Booker

If you came by this morning you may have seen a post that is no longer here, that I thought might be a good way to start discussion about a recurring sort of advocacy problem. I deleted it, though, once a commenter implicitly informed me that my displeasure about something might be too visible for my clients' good. Better safe than sorry, when it come to one's client's interests, even at the expense of a chance for interesting and potentially useful general discussion.

So, on to the catching up with the Eleventh Circuit in the last few days while I was busy. First, there is a little Booker case: preserved Booker error, but completely harmless since the judge had indicated that the same sentence would be imposed even if the Guidelines were made merely advisory. US v Mathenia.

CA1: Procedure in suspension proceedings

In re Franco, No. 04-1306, vacates and remands the suspension of an attorney by the US District Court for bungling a case because the magistrate assigned to investigate the complaint “"made reference to Franco's conduct in other unrelated cases without fully investigating those cases.” This, like, uh, violates due process.  Or something.

CA1: Warranty and inspection duties under Mass law

Smith v. Robertshaw Controls, No. 04-1262, applies the warrant portion of Massachusetts' UCC to hold that the family of a man injured by a propane explosion can't recover, and the other people who inspected the heater had a complete defense because they didn't increase the risk of harm.  Anyway, corporations win.  Burned man loses.  If this is your bag, read it.

Anyway, back to the BBQ.