Appellate Law & Practice

CA1: how many angels can dance on a Target(and be awarded sanctions)

Mag Jewelry Co., Inc v. Cherokee, Inc., Nos. 06-1556; 06-2127.  The plaintiff claims that Target (or its designer) stole their design for “angel” jewelry. The defendants say defendants say their version of an angel was designed by someone else.  The defendant won a judgment as a matter of law, because they had not presented evidence that the designer had access to the plaintiff’s design.  God I hate IP law.  And really, is society that much better off if angel jewelry is subject to a copyright?

The First also reveres a denial of fees to the defendant, because it holds that the plaintiff’s position was not reasonable, and a shift in theories so demonstrated.  (And that there was nothing inequitable awarding fees even though the defendants might have violated some copyright.)  That’ll teach them not to look for stolen designs at Target.

CA1: sanctions for not making a prima facie case at trial

Sepulveda-Carrero v. Rullan, No. 05-280 (unpublished).  This affirms the entry of attorneys fees (against the plaintiff and in favor of the defendant) in a political discrimination suit that was deemed frivolous.  Strangely, the case went to trial, as far as a JMOL, after the court concluded that “concluding that there was no evidence that Rullán knew of Sepúlveda’s political affiliation before firing him.”  The court says that “A claim on which a plaintiff cannot present a prima facie case at the time she files a complaint may be frivolous.”  The plaintiff’s argument that just because he made it past a motion to dismiss means that the action wasn’t frivolous fails because the First points out that that only means that he plead enough. 

But, it gets a little strange, because the plaintiff argues that he couldn’t testify because of poor health.  But, he didn’t file the transcript, so it seems that those claims were waived.

CA1: R. 11 and fiduciary duties

EIU Group, Inc. v. Gulf Insurance, Nos. 06-1932, 06-1933, 06-1934, 06-1935.  To an average person, this case would seem fairly straight forward: when you take out a loan, the bank isn’t your best friend.  If you can’t pay the loan, a defense isn’t “the bank-come-shareholder-of-a-floundering compnay didn’t help me.”  Nor is it a breach of a fiduciary duty.  Of course, if there was evidence submitted that the defendant (a bank’s nominee as a director) actually had actually been shown to have hurt the plaintiff’s interests (or even not helped them), it would be different.  There seems to have been a lot of vague words like “lobbied” or “influenced” used.  Strangely, a jury ruled in the debtor’s favor.
But, more interesting is a description of conduct that merits Rule 11 Sactions.  Told to negotiate a docket entry, one lawyer sent the other an email that read:

Giving you guys the benefit of the doubt, you still haven't figured out my concerns. Rather than continue this game of 20 questions, why don't you go ahead and file your motion -- consider the exchange of e-mail to have satisfied the . . . obligation to confer -- and I'll review it and respond as appropriate.

This sounds like a comment on a blog, and gets the sender Rule 11 Sanctions.  (The underlying subject matter is insurance, but that doesn't matter.)

CA2: not proper to use ancillary jurisdiction against KPMG

For some reason, I didn’t post the 5/23 decision in which the Second Circuit reversed Judge Kaplan’s decision to use his ancillary jurisdiction to allow (upper middle class) criminal defendants to proceed civilly against their former employer breaching their agreement to pay their attorneys fees. Our earlier coverage was here.

Essentially the court holds:

While we do not exclude the possibility of a legitimate ancillary proceeding involving a non-party to the primary litigation, we believe that the requisite compelling circumstances will be rare, as the need for such a proceeding generally will be far less pressing than in cases involving parties already before the court.  In the present matter, the prejudice to KPMG is clear, and the need for the ancillary proceeding is entirely speculative.

Tnx. WCCPB.  That said, the indictment might be dismissed.  See here for that order.  See our earlier coverage here and here.

CA1: insurance coverage fight over not-so-sudden discharge

Barrett Paving Materials v. Continental Insurance, Nos. 06-1951, 06-2017.  Ah, you gotta love insurance coverage litigation.  If you don’t love it, you need to get your head checked.  Anyway, “This case arises out of a dispute between Barrett Paving Materials, Inc. ("Barrett") and three of its insurers concerning the insurers' respective duties to defend Barrett against a third party complaint for contribution on a claim for environmental clean-up costs.”  You should keep reading.

What a government misconduct dismissal looks like

While this case has hit the papers, it probably is worth taking a look at the District Court’s opinion, dismissing the indictment for outrageous government conduct, in United States v. Carriles, 2007 WL 1433458 (WD Tex. May 8, 2007) (Cardone, J.) .  As usual, since I think it is wrong for blogs to link to pay sites, I uploaded the PACER version of the opinion here. 

The opinion writes a freakin’ treatise on when indictments should be dismissed because the government manipulates a parallel proceeding. 

Tnx White Collar Crime Prof Blog.

CA1: affirming a dismissal for what seems to be a defying some order

Waterline v. US Dept. of Probation, Nos. 06-2360,  07-1687,  07-1274,  05-2712,  05-2307,  05-2306,  05-2259 (unpublished).  This is disturbing.  Why?  Because I don’t see what is happening.  Here is the entire relevant text:

District courts are empowered to dismiss suits when plaintiffs defy court orders...The appellant makes no showing that the court abused its discretion in dismissing his action.

The appellant's argument that civilly committed inmates are not prisoners for certain purposes is beside the point. Moreover, the appellant fails adequately to address the district court's reasoning that [28 U.S.C.] § 1915(a)(1) has been held to require everyone seeking in forma pauperis status to disclose their assets.

Contempt based on ADR fight brewing in 11th

Worth nothing there appears to be some civil litigation surround “Girls Gone Wild.” Of particular interest to lawyers is that the judge’s contempt citation in relation to the breakdown of ADR (by Richard Smoak ) seems to be on appeal to the 11th (as evidenced by a notice of appeal filed).

So, let's see what the hubub is about.  In the contempt order, the judge writes:

I found Defendant Joseph Francis to be in civil contempt because of his willful failure to participate in mediation as required by the Scheduling and Mediation Order. I imposed compensatory and coercive sanctions upon Defendant Francis... upon the condition that he would immediately participate in meaningful settlement negotiations....However, the mediator also reported to me that Defendant Francis has now attempted to revoke his unconditional offer and to impose unacceptable conditions.

Francis’ attempt to renege violates the express condition upon which I suspended the requirement that he surrender to the custody of the United States Marshal. Therefore, I terminate my suspension of the order for sanctions, and the implementation of those sanctions are to take effect immediately.

There is a problem here.  While the judge first held an evidentiary hearing, the fact that a mediator reported something to the judge means that the contempt did not occur inside the courtroom.  Therefore, there seems to be "direct" v. "indirect" contempt problem here.  Although I didn't look on Westlaw, I don't know of a situation where someone has been held in coercive contempt for waivering during a mediation.  Maybe someone can correct me here.  Also, if someone really think that he breached a contract, wouldn't it have been easier just to enter judgment according to terms of such a contract?  E.g. UMW v. Bagwell, 512 U.S. 821, 827 (1994) holds that:

In contrast, civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required.

Looking at the docket, we got Barry Richard for the defendant, and a host of large law firms for the underage girls that went wild and sued.

Cali: Prosecutorial misconduct isn’t that bad

C&F accuses California’s Second Appellate District of basically sanctioning quite egregious prosecutorial misconduct. True enough, in People v. Zurinaga, the prosecutor does many improper things. The panel goes on and on about how what he did was wrong. But, the panel affirms the conviction anyway, sending a clear message to prosecutors (that the First says as well): there are no limits to what you juries, because the courts will never reverse your convictions, doing its very best to find harmless error. Go ahead! No limits! Supervisors: no need to keep an eye on your underlings. They can so whatever they want, and say whatever they want. So long as they do it in front of a jury!

Also, the California court makes it clear that they won’t name the prosecutor. Nor would they refer them to the state bar. Essentially, they condoned all the behavior that they spent pages condemning!

CA1: dismissal is not the right way to treat deposition lethargy

Malot v. Dorado Beach Cottage, No. 06-1035.  The First reverses the dismissal of the plaintiffs claims for failure to comply with various discovery orders.  Essentially the plaintiffs were really busy people.  (Doctors, unlike most people, are trusted when they say that they are busy.  People working in retail or other "lesser" jobs, despite needing to be at work to get paid are deemed to be not busy, and need to show up at court and depositions.)  Relying on Benítez-García v. González-Vega, 468 F.3d 1, 5 (1st Cir. 2006) (our coverage here), the First sets out the factors for disciplining a party that doesn’t participate in discovery.  "the severity of the violation, the legitimacy of the party's excuse, repetition of violations, the deliberateness vel non of the misconduct, mitigating excuses, prejudice to the other side and to the operations of the court, and the adequacy of lesser sanctions."  The First looks at the record, and figures that the delay was only a couple of months, but “we tend to reserve dismissal with prejudice for delays measured in years.”  It also concludes that the reasons given were legitimate, and both sides are to blame. 

The court also notes that “prior notice” before dismissal isn’t required, but it is an important consideration.

So, it is remanded for a better sanction.