137 results for 'filedAt:"2023-11-07"'.
J. Kobes finds a lower court properly denied a citizen of Guatemala's request to remain in the U.S. The citizen of Guatemala argued that he would face persecution in his native land for being bisexual. However, he failed to present sufficient evidence in court that encountered extreme maltreatment and physical harm based on his sexual orientation. Affirmed.
Court: 8th Circuit, Judge: Kobes, Filed On: November 7, 2023, Case #: 22-3318, Categories: Civil Rights, Immigration
J. Hughes finds that the veterans' court properly denied an extra-schedular rating for plaintiff's lumbar spine injury since the director properly considered recommendations from agency officials. Affirmed.
Court: Federal Circuit, Judge: Hughes, Filed On: November 7, 2023, Case #: 2022-1670, Categories: Veterans
J. Pirtle finds the county court properly terminated defendant from DUI court and sentenced her to a year in prison and 12 months’ post-release supervision. Charged for two counts of felony DUI and for refusal to submit to a blood alcohol test, defendant later drove on a suspended license several times and was once stopped and arrested for a new criminal offense. All witnesses, including law enforcement officers and administrators, were aware of defendant’s multiple infractions and dishonesty. That the witnesses were not sequestered had little prejudicial effect, if any. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Pirtle, Filed On: November 7, 2023, Case #: A-23-348, Categories: Evidence, Dui, Due Process
J. Welch finds the trial court properly granted summary judgment in favor of the attorney against whom was brought this legal malpractice action. Defendant was found guilty by no-contest plea to attempted sexual assault, represented by a different attorney. His ineffective assistance arguments failed related this, as well as his seeking of post-conviction relief. Post-conviction counsel’s affidavit presented evidence sufficient to show his conduct complied with standards regardless of any self-serving or conclusory statements. Allegations that the attorney failed to raise certain defenses present a question for the fact finder, not a question of law for the court. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Welch, Filed On: November 7, 2023, Case #: A-23-054, Categories: Evidence, Legal Malpractice
J. Welch finds the county court properly denied defendant’s motion for absolute discharge on speedy trial grounds from charges of sexual assault of child. Defendant’s motion to continue constituted an effective waiver of his right to a speedy trial because the clock was not set to expire at that point, and the court’s granting of the motion resulted “in a ... delay that ... extended ... trial outside the speedy trial window.” Defendant’s assignment that excludable periods associated with delays caused by his own motions for continuances without admonishment fails. Affirmed.
Court: Nebraska Court Of Appeals, Judge: Welch, Filed On: November 7, 2023, Case #: A-23-048, Categories: Sex Offender, Speedy Trial, Child Victims
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J. Pena finds that a civil contempt order on a newspaper that disobeyed a subpoena to produce a reporter's unpublished jailhouse interview notes in an underlying murder case was procedurally invalid. Counsel seeking the material failed to provide personal service of a show cause order on the newspaper, as required to commence a separate action on the contempt charge. The contempt order failed to specify the punishment, and the trial court's 10-day stay of the judgment was ambiguous. However, the trial court properly denied the newspaper's motion to quash the subpoena. Under the newspersons' shield law, the trial court had discretion to find the newspaper's published story provided nonspeculative indications that the reporter's unpublished notes could be key to codefendant's defense. The subpoenaed material is not confidential or sensitive and there is no alternative source. Defendant faces life without parole, so his right to a fair trial outweighs the protection given to reporters under the law, and the potential importance of the information favors defendant. Vacated in part.
Court: California Courts Of Appeal, Judge: Pena, Filed On: November 7, 2023, Case #: F086308, Categories: Civil Procedure, Civil Rights, Contempt
J. Kennedy finds the lower court erroneously dismissed the vexatious litigator's objections to its previous decision. The objections were mailed three hours before another court declared him a vexatious litigator and, therefore, were part of the "filing process" and not a continuance of the case. Reversed.
Court: Ohio Supreme Court, Judge: Kennedy, Filed On: November 7, 2023, Case #: 2023-Ohio-3993, Categories: Civil Procedure
J. Brown finds that a property owner is entitled to amend his petition and raise a facial constitutionality challenge to the 2008 amended tax sale regime because there have been no cases that have presented a constitutionality challenge to the statute. Therefore, the property owner's application for rehearing is granted for the sole purpose of allowing him an opportunity to amend his petition in an attempt to remove the objection to the exception of no cause of action.
Court: Louisiana Court Of Appeal, Judge: Brown, Filed On: November 7, 2023, Case #: 2023-C-0491, Categories: Civil Procedure
J. Connors finds that the lower court improperly overturned a decision by the town's board of appeals in relation to a permit application for a solar array project. The board of appeals vacated the planning board's approval of the application. The solar energy project does not constitute a "public utility facility" under the zoning ordinance. Accordingly, the case is remanded for a judgment that upholds the decision by the board of appeals. Vacated.
Court: Maine Supreme Court, Judge: Connors, Filed On: November 7, 2023, Case #: 2023ME67, Categories: Energy, Municipal Law
J. Dwyer finds that the lower court properly sentenced defendant for his vehicular homicide and hit-and-run convictions. Defendant claims the lower court improperly calculated his offender score, resulting in an exceptional sentence imposed against him. Claims of insufficient evidence to support the sentence are without merit and the lower court properly found he had not met his burden of showing that his multiple offenses should be counted as a single offense. Affirmed.
Court: Washington Court Of Appeals, Judge: Dwyer , Filed On: November 7, 2023, Case #: 84547-1-I, Categories: Sentencing, Vehicular Homicide
J. Baker finds that the trial court improperly held that an estate's negligence claims were barred by issue preclusion. The Human Rights Bureau, which had heard claims that the estate's decedent was not given adequate treatment because of his race and disability, lacked the authority to hear the estate's tort claims for medical malpractice. The trial court also erred in holding that the county detaining the decedent lacked any duty of care to him. The county did not have a duty to provide detainees medical care, but it did have a duty to transport him to a hospital. Reversed.
Court: Montana Supreme Court, Judge: Baker , Filed On: November 7, 2023, Case #: DA 22-0656, Categories: Negligence, Jurisdiction
J. Zilly grants GRE Management's motion to compel arbitration in the assistant community manager's lawsuit alleging that the real estate agency and others denied her job promotions because of her race and refusal to return to the office while she took care of her disabled son. All five of the assistant community manager's claims against GREM fall within the scope of their agreement, which contains an arbitration provision and is valid because the assistant community manager signed that she acknowledged it as such.
Court: USDC Western District of Washington, Judge: Zilly, Filed On: November 7, 2023, Case #: 3:23cv5578, NOS: Employment - Civil Rights, Categories: Arbitration, Civil Rights, Employment
J. Mitchell finds that the lower court properly denied defendant's post-conviction motion alleging ineffective assistance of counsel. It is unlikely the jury's guilty verdict would have changed had counsel objected to the state's propensity witness testimony. Further, defendant was not prejudiced by alleged hearsay testimony about defendant sexually abusing others because many of the witnesses were available at trial for cross-examination. Affirmed.
Court: Missouri Court Of Appeals, Judge: Mitchell, Filed On: November 7, 2023, Case #: WD85449, Categories: Sex Offender, Witnesses, Child Victims
J. Hall denies the city and police officers' motion for summary judgment on ADA claims brought by the decedent's estate, ruling that even though the officers had been told the decedent was armed with knives, he was unarmed when he opened his apartment door. Therefore, the officers' decision to immediately tackle him to the ground despite knowing he had schizophrenia could be construed as a failure to accommodate and deliberate indifference.
Court: USDC Connecticut, Judge: Hall, Filed On: November 7, 2023, Case #: 3:20cv1834, NOS: Amer w/Disabilities - Other - Civil Rights, Categories: Ada / Rehabilitation Act, Wrongful Death, Medical Malpractice
J. Dooley grants the police department's motion for summary judgment, ruling the Haitian officer's discrimination claims related to the department's decision not to promote him fail as a matter of law because his written and oral test scores, which were lower than 93 percent of the 100 applicants for the position, gave it a legitimate reason to deny him a promotion.
Court: USDC Connecticut, Judge: Dooley, Filed On: November 7, 2023, Case #: 3:20cv1736, NOS: Employment - Civil Rights, Categories: Evidence, Employment Discrimination
J. King declines to reconsider a discovery order in claims contending employees had not been paid for time spent commuting to and from retail job sites because the court already ruled on the discovery request for global positioning systems stored on the employees' electronic devices, and this motion simply asks the court to reevaluate the same facts and legal arguments.
Court: USDC New Jersey, Judge: King , Filed On: November 7, 2023, Case #: 1:22cv1998, NOS: Fair Labor Standards Act - Labor, Categories: Civil Procedure, Employment
J. Ransom finds that the lower court improperly overruled the airline's motion to compel arbitration in a class action suit filed by a pilot who claims the airline failed to pay pilots their promised bonuses. The Federal Arbitration Act does not exempt interstate employees from contractual arbitration agreements and the airline gave employees requisite notice of the arbitration provision as required by the Missouri Uniform Arbitration Agreement. Vacated.
Court: Missouri Supreme Court, Judge: Ransom, Filed On: November 7, 2023, Case #: SC99961, Categories: Arbitration, Class Action, Aviation
J. Quereshi denies Lowe’s motion for summary judgment in this personal injury suit brought by a customer who tripped and fell on a bag of soil. Another customer had left removed the bag from her car and leaving it by a display table earlier in the day. The customer’s injuries were not caused by the action of any Lowe’s employee, she jad seen the bag laying in the floor and was distracted by the display when she tripped over the bag. She fails to establish that a genuine issue of material fact exists.
Court: USDC Maryland, Judge: Quereshi, Filed On: November 7, 2023, Case #: 8:22cv1854, NOS: Other Personal Injury - Torts - Personal Injury, Categories: Negligence, Premises Liability
J. Robart denies the glass infuser company's requests for entry of a permanent injunction and for an order directing the destruction of infringing products against the tobacco shop. The glass infuser company seeks an injunction that is broader than what it outlined in its complaint, which describes the sale of one counterfeit Studenglass glass infuser with one unspecified Studenglass mark as opposed to the wider injunction relating to “the counterfeit Stündenglass product identified in the complaint and any other unauthorized Stündenglass product.”
Court: USDC Western District of Washington, Judge: Robart, Filed On: November 7, 2023, Case #: 2:23cv314, NOS: Trademark - Property Rights, Categories: Trademark, Injunction
J. Land partially rules in favor of the employer in the employee's action alleging retaliation in violation of the Federal Railroad Safety Act. The employee claimed he was suspended and fired for reporting on-the-job injuries, filing personal injury claims under the Federal Employer's Liability Act, reporting locomotive issues and complying with the hours-of-service law which resulted in delays. The employer's motion for summary judgment is granted as to the claim arising after the employee reported work-related injuries. The employee failed to show that the injury reports contributed to the unfavorable personnel actions. However, the employer's motion is denied as to the claims based on reporting locomotive problems and complying with hours-of-service requirements. The employee presented evidence which could contradict the employer's stated reason for his removal from service and termination.
Court: USDC Middle District of Georgia, Judge: Land, Filed On: November 7, 2023, Case #: 4:22cv117, NOS: Railway Labor Act - Labor, Categories: Employment Retaliation
J. Robie finds that the trial court should have suppressed the firearms found in defendant's mother's car after he consented to having it searched. Police said they would not tow the car if he gave consent, but it was a false promise of leniency as they towed it anyway. Defendant would not have voluntarily consented if not for the false promise, which is a form of coercion. Vacated.
Court: California Courts Of Appeal, Judge: Robie, Filed On: November 7, 2023, Case #: C098102, Categories: Firearms, Search
J. Volk grants the broadcasting company's motion for summary judgment in the former advertising executive's suit claiming disability discrimination and retaliatory discharge. The executive sued after the company terminated her employment after being on leave for the birth of her twins, then to recuperate for damage to her ureter when the babies were delivered via C-Section. There is no connection between the executive taking leave under the Family and Medical Leave Act and her later termination since the company not only allowed her to take FMLA leave "when she wanted and without issue," but also gave her an additional 12 weeks of leave once her FMLA leave expired.
Court: USDC Southern District of West Virginia, Judge: Volk , Filed On: November 7, 2023, Case #: 5:22cv396, NOS: Employment - Civil Rights, Categories: Communications, Business Practices, Employment Retaliation
J. D’Agostino dismisses with prejudice a self-represented litigant’s civil rights complaint alleging two county police officers arrested him without cause and in violation of his First Amendment rights for failing to comply with their orders to stop recording video footage with his cellphone inside a local court building. State law prohibits individuals from using a cellphone inside a court building, thus he did not have a First Amendment right to record video inside the courthouse.
Court: USDC Northern District of New York, Judge: D’Agostino, Filed On: November 7, 2023, Case #: 5:22cv1211, NOS: Other Civil Rights - Civil Rights, Categories: Civil Rights, First Amendment
J. Sandefur holds that the trial court properly interpreted an agreement that settled a dispute between a town and developers over zoning requirements for a geotechnical investigation and analysis related to two residential subdivisions. However, on remand, the trial court must determine whether the town's council voted to approve the settlement agreement. Reversed in part.
Court: Montana Supreme Court, Judge: Sandefur, Filed On: November 7, 2023, Case #: DA 22-0312, Categories: Construction, Settlements, Zoning
J. Callahan finds that the district court properly granted summary judgment in favor of agricultural associations and enjoins the California Attorney General from enforcing Proposition 65’s carcinogen warning requirement for the herbicide glyphosate, best known as the active ingredient in the herbicide Roundup. The proposed Proposition 65 warnings as applied to glyphosate were not purely factual and uncontroversial and were therefore subject to "intermediate scrutiny." Affirmed.
Court: 9th Circuit, Judge: Callahan, Filed On: November 7, 2023, Case #: 20-16758, Categories: Administrative Law, Agriculture
J. Copenhaver grants the telecommunications service provider's motion to partially vacate his order granting the technology solutions company's motion for summary judgment as to liability on Count VII of its qui tam suit. The company accused the service provider of defrauding the federal government through approval of its grant application to build an open-access, middle-mile broadband internet network in West Virginia with funds from the American Recovery and Reinvestment Act’s Broadband Technology Opportunities Program. Since a settlement was reached prior to trial in December, vacatur is warranted since "Frontier stands to suffer the material reputational consequences of False Claims Act liability upon a tiny fraction of the case to the same degree as if it had been liable for the case in its entirety."
Court: USDC Southern District of West Virginia, Judge: Copenhaver, Filed On: November 7, 2023, Case #: 2:14cv15947, NOS: False Claims Act - Torts - Personal Injury, Categories: Communications, False Claims, Technology