Appellate Law & Practice

CA1: The District Court acted just too jerky in dismissing the complaint

Linares v. U.S., No. 08-1548.  This is an FTCA case.  However, it degenerated into a fight over ECF.  For some reason some (perhaps most) courts require that the parties provide the court with paper copies of electronic filings.  I never understood this.  ECF was supposed to reduce paper.  Anyway, the plaintiff filed a paper complaint.  There was a standing order in place that says that all documents filed in paper form should be filed electronically. 

The District Court, on its own motion dismissed the complaint and sanctioned the plaintiff $150.  Counsel filed a motion for reconsideration, and included an electronic copy, coming up with a good excuse (that his computer was broken).  Not good enough for the District Court.  The Plaintiff docketed a notice of appeal, the District Court started to realize that it was looking bad and issued an order saying that now the reason that the complaint was booted was because he waited too long to cure it.  

The First points to the "standing order" which does not even specify a timeframe for filing electronic copies.  It also points out that dismissal is the harshest of sanctions, there were no aggravating circumstances, and the defendant wasn't prejudiced.

The District Court is looking pretty jerky.  The First says so as well.  

A need for headlines?

Dear AL&P,

I missed the headlines on Wednesday, but I have a lay-person newspaper fetish.  Is there some way that I can look at the headlines from newspapers aimed at non-lawyers from throughout the world?

Signed,

/s/FetishD00D at Large Law Firm

Dear FLLF:

Yes. Here.

The End of the Nine-Eleven Era?

I don’t know if anyone else has said this, but I think the recent election has signaled the end of an era where political discourse was centered around the events of that fateful day.

Anyway, please give me credit if you use the term.  Or, if you don't want to give me credit, ask not what your country and do for you, but what you can do for your country.

CA1: crack retroactivity doesn’t go below mandatory minimums

US v. Ganun, 08-1416.  Seems to be the first Crack-retroactivity appeal.  This guy, appearing pro se, wants to get a reduction below the statutory mandatory minimum.  He loses.

CA1: Land Rover dealer not that oppressed

Wagner And Wagner Auto Sales v. Land Rover North America, Inc., 08-1456.  As the name suggests this is a dispute between a car dealer and a manufacturer.  Land Rover terminated the agreement.  Applying  Automobile Dealer's Day in Court Act, 15 U.S.C. § 1222 ("ADDCA"), and Mass. Gen. Laws ch. 93B, the Massachusetts "Dealer's Bill of Rights." the first says that the agreement was terminated for good cause (as required by the contract) when the dealer didn’t meet construction deadlines.  There was some dispute as to whether the manufacturer had properly responded to the proposed plans.  Further, there was no evidence of bad faith.  Moreover, because this was a temporary dealership there wasn’t that much oppression going on, which is supposedly remedied by the act. 

CA1: developer plaintiff moves forward with “class of one” environmental case

SBT Holdings, et al v. Town of Westminster et al , 08-1512.  This is a 1983 case for rich people.  The First reverses the District Court and holds for the developers.  SBT bought property.  Storms came.  Runoff started messing with the environment.  The town and state suggested some remediation and prevention measures.  But the town should have yieled to the state agencies on this (as a jurisdictional matter).  The town sued in state court for an injunction.  The developer won.  The developer went to federal court and sued under 1983, alleging that the town violated his right to be protected equally as a “class of one.”  The District Court dismissed. The First reverses pointing to a number of bits of evidence that show that the town-actors were out to get the developer.  The First also rejects a claim preclusion claim, noting that the state court lawsuit wasn’t about constitutional rights.  Finally, the First unravels a number of basic state-law issues about who the proper party is under state law.

CA1: a Checkbook is not a payment under ERISA

Mogel v. UNUM Life Insurance, No. 08-1334.  This is an ERISA case.  It holds that “security accounts” that were established to fund death benefits are not separate accounts and therefore UNUM’s ERISA-based fiduciary duty applies.  UNUM claims that it complied with its fiduciary duties by “delivering a checkbook” (with small limits on the amount of the checks that could be written).  This seems pretty obvious, but it is a reversal of the District Court.

CA1: the limits of Scott v. Harris

Parker v. Gerrish, No. 08-1045 affirms a jury verdict in a 1983 case where a cop tased someone on video.  That’s a surprise.  So, there must be some important law here.  Actually, the facts are very important in light of the Supreme Court’s recent qualified immunity decisions regarding qualified immunity and summary judgment based on video simply because people move in and out of the frame of the video.  See Scott v. Harris, 127 S. Ct. 1769, 1776 (2007).

On the excessive force claim (where the plaintiff had expert testimony) the First points out that DWI doesn’t pose that much of a risk to the officer, and the arrestee wasn’t meaningfully engaged in the practice of “resisting arrest” and a jury could have found that some hand motion during cuffing was “de minimis in light of the circumstances.”  The First goes on to say that Scott v. Harris, 127 S. Ct. 1769, 1776 (2007) doesn’t change the standard of review regarding videtape evidence, but rather Scott just governs how a court assesses whether a jury could reasonably have found something.    Moreover, reasonable officers don’t taze people just because they are “insolent” and insulting.  (This is something that officers and members of the non-barred class need to understand.  However, a lot of lay people and some summer associates think that insolence is grounds for tazing a poor person.)

CA1: cops can take your drivers’ license without seizing you

US v. Ford, No. 07-2613 upholds a ruling denying a motion to suppress a gun.  Some cops leaned out the window and asked a poor person some questions and took his drivers’ license.  The poor person raised his hands.  He was not represented by counsel at the time and therefore probably did something wrong.  The First say that this encounter wasn’t a seizure because the cops were just asking general questions without turning on their lights.  The First says that “Raised hands” are a sign of protest as well. 

Anyway, taking someone’s drivers’ license and running it though the computer isn’t a seizure, and conducts some balancing test which somehow always goes against poor people. 

CA1: First speaks on material misrepresentation

Commonwealth Land v. IDC Properties, No. 08-1130 affirms a grant of a declaratory judgment declaring some title insurance void because of “material misrepresentations.”  At trial, there was no showing of fraudulent intent, but some showing of omission without specific questions being asked.  Applying Rhode Island law, the First holds that “we need not decide how the Rhode Island courts would resolve a bare non-disclosure issue because it is clear that a half-truth or failure to speak when necessary to qualify misleading prior statements does amount to a misrepresentation.”