129 results for 'filedAt:"2023-11-01"'.
J. Boasberg grants the Office of Federal Acknowledgment's motion to dismiss a tribe's action challenging the agency's refusal to grant it federal recognition. The tribe lacks standing to bring an unreasonable delay claim, and, although it refers to the Administrative Procedure Act, it fails to identify a final agency action it seeks to challenge.
Court: USDC District of Columbia, Judge: Boasberg, Filed On: November 1, 2023, Case #: 1:23cv54, NOS: Other Civil Rights - Civil Rights, Categories: Administrative Law, Government
J. Leval finds that the district court improperly overlooked defendant's right to allocute at sentencing after he pleaded guilty to receiving and possessing child pornography. The plea deal, which tied an appeal waiver to the sentence, did not bar allocution, and thus the issue should be remanded for resentencing and to allow defendant to address the court. Otherwise, defendant was properly convicted since claims challenging evidence discovered after a probation officer searched his cell phone lacked merit.
Court: 2nd Circuit, Judge: Leval, Filed On: November 1, 2023, Case #: 22-178, Categories: Sentencing, Plea
J. Crouse finds the trial court properly allowed the patient to pursue damages for past medical expenses against the spine doctor. She was not required to join them to her action as real parties in interest after she settled subrogation claims with Medicare and her other insurance providers. Meanwhile, the trial court properly granted the doctor's request for a damages setoff of $157,000 following the patient's settlement with the hospital defendants because there was no evidence to support her claim the causes of action against the hospital would have allowed her to seek punitive damages. Affirmed.
Court: Ohio Court Of Appeals, Judge: Crouse, Filed On: November 1, 2023, Case #: 2023-Ohio-3953, Categories: Damages, Medical Malpractice
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J. Lindsey finds the trial court properly terminated the mother's parental rights to her minor daughter and granted sole parental responsibility to the father. Although there were four grounds the trial court cited to terminate the mother's parental rights, the finding of abandonment of the daughter is adequately supported by evidence to be upheld, and the other grounds do not need to be reviewed. Affirmed.
Court: Florida Courts Of Appeal, Judge: Lindsey, Filed On: November 1, 2023, Case #: 22-1756, Categories: Family Law
J. Sweazea grants, in part, the commercial truck driver's motion to compel, ruling the logistics company must provide the name of the co-driver involved in the crash because he could be a crucial witness. However, the driver's request for 10 years of incident records from the logistics company is overly broad and will be denied.
Court: USDC New Mexico, Judge: Sweazea, Filed On: November 1, 2023, Case #: 2:23cv18, NOS: Motor Vehicle - Torts - Personal Injury, Categories: Tort, Vehicle, Discovery
J. Morrison denies, in part, the commission's motion to dismiss, ruling the attorney's allegations of being terminated without warning or cause shortly after she complained of sex discrimination sets forth a plausible claim for age discrimination retaliation. However, the two individual commissioners are entitled to qualified immunity on the attorney's civil rights claims because no state law required them to investigate her claims of discrimination independent of the commission as a whole.
Court: USDC Southern District of Ohio, Judge: Morrison, Filed On: November 1, 2023, Case #: 2:23cv940, NOS: Employment - Civil Rights, Categories: Government, Immunity, Employment Retaliation
J. Holmes dismisses HDI Global Specialty SE from a dispute between insurance companies regarding who should defend and indemnify a construction company in an underlying litigation. The policy associated with HDI Global was issued in Texas and the subcontractor to whom the policy was issued is located in Texas. Therefore, the law of Texas governs this policy and under Texas law the policy is unenforceable to the extent it provides additional insured coverage for the contractor's own negligence or fault.
Court: USDC Western District of Arkansas , Judge: Holmes, Filed On: November 1, 2023, Case #: 5:23cv5037, NOS: Insurance - Contract, Categories: Insurance, Choice Of Law
J. Mueller grants a benefit plan’s motion to dismiss a hospital’s action accusing it of refusing to pay for a patient’s $500,000 chemotherapy treatment. The hospital's claims, as pleaded, are not plausible under the Affordable Care Act.
Court: USDC Eastern District of California, Judge: Mueller, Filed On: November 1, 2023, Case #: 2:23cv676, NOS: Employee Retirement Income Security Act (ERISA) - Labor, Categories: Erisa, Health Care, Insurance
J. Horton finds the trial court properly convicted defendant for the sexual assault of his daughters. Though the trial court excluded evidence that a daughter had made a claim of sexual misconduct committed by another man which was later recanted as false, exceptions to the rule governing such evidence exclusion don’t automatically trigger examination on matters not shown to be relevant to possible bias. Defendant failed to establish error in the court’s ruling that the victim could not be questioned on the accusations. All evidence supports the convictions, and right to confrontation does not apply. Affirmed.
Court: Texas Courts of Appeals, Judge: Horton, Filed On: November 1, 2023, Case #: 09-22-00286-CR, Categories: Evidence, Sex Offender, Child Victims
J. Forst finds that the trial court improperly ruled in this divorce dispute by determining that the wife's motion to enforce the prenuptial agreement was barred by res judicata because the court must consider the motion on its merits. Reversed.
Court: Florida Courts Of Appeal, Judge: Forst, Filed On: November 1, 2023, Case #: 4D2022-2433, Categories: Family Law
J. Melloy finds a lower court properly convicted a defendant who initially pleaded guilty to possessing a firearm while illegally residing in the U.S. The defendant, who worked at a convenience store where he beat a customer to death with a pistol for allegedly stealing, argued that the lower court erred in applying a homicide guideline cross reference, instead of manslaughter, and that he was entitled to be tried before a jury. However, the government presented sufficient evidence in court that the defendant's sentence is proportional to his crime and that he was only entitled to a bench trial. Affirmed.
Court: 8th Circuit, Judge: Melloy, Filed On: November 1, 2023, Case #: 22-2844, Categories: Murder, Sentencing, Assault
J. Eyester denies the contractor's appeal of the Army Corp of Engineers' denial of compensation for 19 days of a 49-day suspension of work on the contract to build outlet and cutoff structures for the Buffalo Bayou flood control project in Houston. The contract included provisions for severe weather extensions, and the contractor fails to prove the government is the sole cause of the flooding which resulted in suspension of the work by its opening of upstream floodgates.
Court: Armed Services Board Of Contract Appeals, Judge: Eyester , Filed On: November 1, 2023, Case #: 62281, Categories: Environment, Government, Contract
J. Murphy finds the trial court properly found defendant guilty of multiple rapes of his step-granddaughter. The girl disclosed to her school counselor that defendant had repeatedly raped her, and her mother testified that her daughter was diagnosed with clinical anxiety between the ages of five and six. The child testified that when she was four or five, defendant performed oral sex on her while she watched Frosty the Snowman, among other events of oral and vaginal copulation. She described her experiences as painful, including that defendant told her to “shut the fuck up and take it” when she complained. Though certain testimony by another victim addressed instances from 30 years ago, this propensity evidence is subject to a “pedophile exception” allowing admittance. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Murphy, Filed On: November 1, 2023, Case #: CR-22-392, Categories: Evidence, Sex Offender, Child Victims
J. Gladwin finds the trial court properly terminated the parents’ rights to their minor child. The department exercised emergency custody after the child’s birth due to the mother’s intellectual disability and inability to care for him. Nurses observed the mother telling the child to “shut up” when he cried, refusing to change his diapers and refusing to wake up and feed him at night. She also failed to attend infant-care classes. After both parents were later found to be in compliance with the reunification plan, DHS learned that the father had violated the plan by leaving the child alone with the mother during an unsupervised visit. The child was then found to have a hand-shaped bruise on his thigh. Further evidence supports the best interest finding and the parents’ attorney’s motion to withdraw is granted. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Gladwin, Filed On: November 1, 2023, Case #: CV-23-138, Categories: Evidence, Family Law, Guardianship
J. Abramson finds the circuit court properly affirmed the commission’s determination that the energy production company improperly deducted postproduction expenses from royalties obtain through production on its newly acquired property. Though the commission says that “net proceeds,” as used in the applicable code, has been historically interpreted to allow only the deduction of taxes, assessments and third-party expenses from royalties paid to mineral owners, the producer says it interpreted “net proceeds” as requiring postproduction expenses incurred between the wellhead and the sale to be deducted when royalties are calculated. Substantial evidence supports the commission’s interpretation. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Abramson, Filed On: November 1, 2023, Case #: CV-21-136, Categories: Energy, Tax, Business Expectancy
J. Murphy finds the trial court improperly dismissed defendant’s petition for postconviction relief from his convictions for negligent homicide, unauthorized use of a vehicle and driving while intoxicated. The court erred in concluding it did not have jurisdiction due to a lack of an explicit assertion in the petition that defendant was in custody. There is nothing in the record to indicate that defendant was not in custody at the court’s entry of the order. Reversed and remanded.
Court: Arkansas Court Of Appeals, Judge: Murphy, Filed On: November 1, 2023, Case #: CR-23-82, Categories: Jurisdiction, Due Process, Negligent Homicide
J. Barrett finds the Arkansas Board of Review improperly affirmed the Division of Workforce Services’ decision that the claimant repay the entirety of her unemployment benefits, allegedly having left work without good cause. The claimant received both state and federal benefits, and the board did not conduct two different waiver analyses. The appeals court affirms the decision requiring the claimant to repay $2,209 in state benefits, and remands for further findings regarding repayment of the $13,521 in federal benefits. Affirmed in part. Remanded in part.
Court: Arkansas Court Of Appeals, Judge: Barrett, Filed On: November 1, 2023, Case #: E-22-406, Categories: Employment, Due Process
Per curiam, the court of appeals denies in part the parties’ motion for dismissal of this appeal of a self-represented defendant on behalf of himself and a business of final judgment. The parties contend the self-represented defendant lacks a standing to appeal because he is not aggrieved by the confirmation order. However, when a judgment enters final judgment against “all defendants,” it is the court’s policy to give all litigants the right to be heard. The business is dismissed from the appeal unless it obtains counsel with in 45 days and files a valid notice of appearance.
Court: Hawai'i Court Of Appeals, Judge: Per curiam, Filed On: November 1, 2023, Case #: CAAP-23-468, Categories: Property, Settlements, Foreclosure
J. Kennelly denies a pharmaceutical company’s and patients’ motion to exclude the testimony of expert witnesses in a litigation by patients who claim they suffered cardiovascular or blood clot injuries as a result of taking prescription testosterone replacement therapy drugs. The pharmaceutical company’s motion for summary judgment on patients’ claims for express and implied breach of warranty, negligent misrepresentation, fraud, consumer protection and unjust enrichment is granted. However, the patients’ motion for summary judgment on claims of fail-to-warn, strict liability, loss of consortium and punitive damages shall be denied and returned to the home districts. The punitive damages question shall be transferred to the Middle District of Florida. This one order applies to several, unconsolidated cases.
Court: USDC Northern District of Illinois, Judge: Kennelly, Filed On: November 1, 2023, Case #: 1:17cv3775, NOS: Personal Injury - Health Care/Pharmaceutical Personal Injury/Product Liability - Torts - Personal Injury, Categories: Product Liability, Experts, Class Action
[Consolidated.] J. Kennelly grants in part a pharmaceutical company’s motion to exclude the testimony of two expert witnesses in a litigation by patients who claim they suffered cardiovascular or blood clot injuries as a result of taking prescription testosterone replacement therapy drugs. The cardiovascular medicine expert is nonqualified for the testimony on marketing techniques and the regulatory expert’s testimony properly applied a method to distinguish their condition from others that share similar clinical features. The pharmaceutical company’s motion for summary judgment on patients’ punitive damages and noneconomic damages is granted. However, the other claims for summary judgment shall be denied and returned to the home districts. This one order applies to several, unconsolidated cases.
Court: USDC Northern District of Illinois, Judge: Kennelly, Filed On: November 1, 2023, Case #: 1:14cv1748, NOS: Personal Injury - Health Care/Pharmaceutical Personal Injury/Product Liability - Torts - Personal Injury, Categories: Damages, Product Liability, Experts
J. Brennan finds that the lower court properly granted immunity to police officers who failed to prevent the murder of a witness leaving the courthouse whom they knew was under a death threat. The performance of courthouse security is subject to absolute immunity, and there are no facts that would support a finding that the estate could cure the defect in its pleadings. Affirmed.
Court: Illinois Appellate Court, Judge: Brennan, Filed On: November 1, 2023, Case #: 230035, Categories: Immunity, Police Misconduct
J. Kautz finds that the lower court properly denied defendant's motion to correct a sentence stemming from his two vehicular homicide convictions. Defendant was ordered to serve his sentences for both counts consecutively, and defendant claims multiple sentences for the same car accident violated his double jeopardy rights. He already raised this issues during a direct appeal in 2015, leaving this motion barred by the doctrine of res judicata. Affirmed.
Court: Wyoming Supreme Court, Judge: Kautz, Filed On: November 1, 2023, Case #: S-23-0091, Categories: Sentencing, Double Jeopardy, Vehicular Homicide