120 results for 'filedAt:"2023-10-05"'.
J. Hurd denies, in part, a motion to dismiss and preserves two women’s false arrest, excessive force and malicious prosecution claims against two DeWitt police officers that alleged they forcibly arrested the litigants without cause after they attempted to leave a Walmart following an altercation with a separate group of women inside the store. The court finds their claims are not a rehash of their previous state law action for purposes of res judicata because the state court judge overseeing their claims had exceeded his authority by ruling on the merits of their claims despite initially dismissing the complaint for defective service.
Court: USDC Northern District of New York, Judge: Hurd, Filed On: October 5, 2023, Case #: 5:23cv390, NOS: Other Civil Rights - Civil Rights, Categories: Jurisdiction, Police Misconduct
J. Kirsch finds that the lower court improperly found for the employees, ruling that the Fair Labor Standards Act mandates overtime pay for the performance of incidental activities, even if the employee failed to comply with the requirements for payment imposed by the company's practice. In this case, the employees were only paid for incidental activities such as checking work emails during mealtimes if the time was recorded. Because this incidental activity is not "core" to the employee's duties, it is not required to pay for that time if the employee did not request payment for that time on their timesheets. Reversed.
Court: 7th Circuit, Judge: Kirsch, Filed On: October 5, 2023, Case #: 21-3309, Categories: Employment, Labor
Per curiam, the Arkansas Supreme Court joins the Arkansas Access to Justice Commission in designating October as Access to Justice Month in recognition of contributions made by legal aid and pro bono attorneys and to encourage pro bono participation for the legal needs of low-income Arkansans. Participating attorneys are commended, and an email address is given as an informational resource.
Court: Arkansas Supreme Court, Judge: Per curiam, Filed On: October 5, 2023, Case #: 2023 Ark. 136, Categories: Administrative Law, Civil Procedure
J. Aarons finds that the lower court properly convicted defendant based on his guilty plea to selling drugs. Defendant challenged the voluntariness of his plea based on his alleged history of substance abuse, but nothing in the record suggested he failed to understand the nature of his plea at the time. Affirmed.
Court: New York Appellate Divisions, Judge: Aarons, Filed On: October 5, 2023, Case #: 110961, Categories: Drug Offender, Plea
J. Gallagher finds the performance of defendant's attorney did not fall below a reasonable standard when he failed to request removal of a juror who claimed his daughter was friends with one of the victim's children. Not only did the juror state on the record the relationship would not affect his impartiality, but he also had not spoken to his daughter in over four years, so the possibility of prejudice was remote. Meanwhile, the attorney's failure to object to the admission of cell phone records used to pinpoint defendant's location on the day of the crime did not constitute ineffective assistance because the witness's familiarity with cell phone location data properly authenticated the records. Affirmed.
Court: Ohio Court Of Appeals, Judge: Gallagher, Filed On: October 5, 2023, Case #: 2023-Ohio-3623, Categories: Evidence, Ineffective Assistance, Murder
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J. Mackey finds that claimant was properly granted temporary total disability benefits based on his history of work-related abdominal hernia injuries because he was not required to demonstrate attachment to the labor market since his injuries caused involuntary withdrawal from the market. Affirmed.
Court: New York Appellate Divisions, Judge: Mackey, Filed On: October 5, 2023, Case #: CV-22-1987, Categories: Workers' Compensation
J. Golemon finds the trial court properly granted summary judgment in favor of the home builder in this negligence suit arising from a slip and fall occurring on the property of or near one of the company’s model homes. No evidence has been shown that the builder had actual or constructive notice of “slime” on the curb outside the home, caused by the home’s lawn sprinkler system. No duty to protect exists. The injured party’s guess that slime takes days or weeks to form is not competent summary judgment evidence. Affirmed.
Court: Texas Courts of Appeals, Judge: Golemon, Filed On: October 5, 2023, Case #: 09-21-00404-CV, Categories: Property, Tort, Negligence
Per curiam, a panel of the 11th Circuit finds that the district court properly ruled in favor of the employer in a race discrimination and retaliation action brought by the employee after her termination. The employee, a Black woman, failed to present sufficient evidence to show that the unit where she worked was permeated with discriminatory ridicule or intimidation to such a degree that it would have created an abusive work environment. Comments made by the employee's co-workers calling former President Obama a "piece of shit" and comparing former First Lady Michelle Obama to a monkey did not amount to extreme harassment. The employee failed to show that the employer had retaliatory intent behind its decisions to suspend her, test her for drugs or fire her. Affirmed.
Court: 11th Circuit, Judge: Per curiam, Filed On: October 5, 2023, Case #: 21-10017, Categories: Employment Discrimination, Employment Retaliation
J. Gordon grants the loan servicer’s motion for summary judgment, declaring that the deed of trust for which it is the beneficiary remains an encumbrance on the property sold by the homeowner’s association at a foreclosure sale and transferred to the trust. No genuine dispute remains that the HOA did not substantially comply with notice requirements to the original beneficiary of record under the deed of trust. The loan servicer is prejudiced because the original loan servicer on the property was deprived of the opportunity to cure the default, which it would have done had it been given notice.
Court: USDC Nevada, Judge: Gordon, Filed On: October 5, 2023, Case #: 2:16cv2653, NOS: All Other Real Property - Real Property, Categories: Property, Trusts, Banking / Lending
Per curiam, the Fifth Circuit finds the district court properly denied the inmate’s motion for a sentence reduction. Convicted for using, carrying or possessing a firearm during and in furtherance of a drug trafficking crime. A cited change to the applicable sentencing framework is non-retroactive and does not qualify as an “extraordinary and compelling reason” for a sentence reduction. Affirmed.
Court: 5th Circuit, Judge: Per curiam, Filed On: October 5, 2023, Case #: 22-40373, Categories: Drug Offender, Firearms, Sentencing
J. Clark finds defendant's conviction for risk of injury to a child was supported by sufficient evidence, including the 3-year-old victim's claim he touched and hurt her vagina and buttocks, as well as the mother's testimony the victim appeared scared when she returned home and had a shiny substance on her vagina, which corresponded to an empty jar of Vaseline in the home. Affirmed.
Court: Connecticut Court Of Appeals, Judge: Clark, Filed On: October 5, 2023, Case #: AC45243, Categories: Evidence, Sex Offender, Child Victims
J. Lynch finds that defendant was improperly convicted of driving while intoxicated and aggravated unlicensed operation of a vehicle because his speedy trial rights were violated by various delays and adjournments, and counsel's failure to seek dismissal on speedy trial grounds constituted ineffective assistance. Reversed.
Court: New York Appellate Divisions, Judge: Lynch, Filed On: October 5, 2023, Case #: 111252, Categories: Ineffective Assistance, Speedy Trial
J. Egan finds that the lower court properly convicted defendant based on his guilty plea to attempted promoting prison contraband for possessing sharpened metal pieces in prison. Prosecutorial defects in the grand jury proceeding were technical in nature and thus were not tantamount to constitutional flaws. Meanwhile, the claims were forfeited by his guilty plea. Affirmed.
Court: New York Appellate Divisions, Judge: Egan, Filed On: October 5, 2023, Case #: 112277, Categories: Plea
J. Golemon finds the trial court properly ordered the demolition business owner to pay damages to his partner for breaching a settlement agreement. The company defaulted on a loan and the bank collected by garnishing the partner’s personal accounts. The owner then refused to reimburse the partner with his half of the debt. Unambiguous language in the agreement shows the intent for the partner to execute a release of claims in exchange for the owner’s executing a promissory note for $125,000 plus interest. The evidence shows the jury could have reasonably determined that the owner, having agreed to initiate payments, failed to comply. Affirmed.
Court: Texas Courts of Appeals, Judge: Golemon, Filed On: October 5, 2023, Case #: 09-21-00411-CV, Categories: Debt Collection, Business Expectancy, Banking / Lending
J. Bushong allows reconsideration of the Supreme Court’s decision. “We did not consider plaintiff’s second, third, and fourth assignments of error raised in the Court of Appeals that challenged evidentiary rulings by the trial court.” Reconsideration allowed.
Court: Oregon Supreme Court, Judge: Bushing, Filed On: October 5, 2023, Case #: S069762, Categories: Evidence, Medical Malpractice
J. Schroeder denies Walmart’s motion in limine to exclude the testimony of a customer’s doctor after the customer was allegedly injured by a Walmart staff member who hit her parked car with a cart collection machine. The customer claims multiple injuries requiring surgery at a cost of over $400,000. Walmart argues that the doctor solely relied on the customer’s description of what happened, which is not enough evidence for her to proceed on her personal injury claim. However, the doctor compared her account to MRI imaging, which revealed images of injuries that were consistent with what she described. Therefore, the doctor’s testimony is appropriate.
Court: USDC Middle District of North Carolina, Judge: Schroeder, Filed On: October 5, 2023, Case #: 1:22cv327, NOS: Other Personal Injury - Torts - Personal Injury, Categories: Corporations, Tort, Damages
J. Tenney finds that the district court was within the discretion provided by the supreme court on remand to determine the scope of a prescriptive easement and to limit the servient estate to "reasonable" and "minor" changes to the location of the road it provided. Affirmed.
Court: Utah Court Of Appeals, Judge: Tenney, Filed On: October 5, 2023, Case #: 20220195-CA, Categories: Property
J. Graham finds the circuit court properly granted summary judgment to the city in a lawsuit from trade associations seeking to enjoin enforcement of a zoning ordinance requiring the use of bird-safe glass for constructing or expanding certain types of buildings to reduce the risk of bird collisions. The city's valid zoning ordinance does not fall under the scope of a statewide administrative code barring local governments from enacting or enforcing minimum building code standards that are stricter than the statewide code in terms of altering, constructing or adding to some public and commercial buildings, so it is not technically a building code standard and is not preempted. Affirmed.
Court: Wisconsin Court of Appeals, Judge: Graham, Filed On: October 5, 2023, Case #: 2022AP001468, Categories: Administrative Law, Zoning
J. Vaidik finds that defendant was improperly convicted of resisting arrest for intimidation, disorderly conduct, and public intoxication because defendant's actions of pulling away before arresting officers could grab his arm did not rise to the level required for sustaining such a conviction. Reversed in part.
Court: Indiana Court Of Appeals, Judge: Vaidik, Filed On: October 5, 2023, Case #: 23A-CR-523, Categories: Resisting Arrest
J. Renner finds the trial court properly granted summary judgment in favor of the California Department of Water Resources in this suit seeking civil penalties and injunctive relief for the department’s release of water from Lake Oroville down the dam’s spillways. A cited statute authorizes penalties against any person who has deposited harmful materials into California waters. There is no triable issue of fact, as the context of the water release was a declared emergency from flooding. Affirmed.
Court: California Courts Of Appeal, Judge: Renner, Filed On: October 5, 2023, Case #: C093600, Categories: Environment, Water, Injunction
J. Easterbrook finds that the lower court properly found for the village in a suit challenging its condemnation of the owner's property. The owner was given notice of the impending demolition, but chose not to respond to the village's communications until one week before the scheduled demolition and never filed in court to automatically block action on the property. It cannot now complain about the consequences of its inaction. Affirmed.
Court: 7th Circuit, Judge: Easterbrook, Filed On: October 5, 2023, Case #: 22-1775, Categories: Property
J. Currault denies a request by shipping handlers in Southeast Asia to exclude, as time-barred, Goodyear’s proposal to add two more companies to its suit arising from alleged water damage to two shipments of processed natural rubber to New Orleans. Adding the two companies to the suit does not harm the other allegedly responsible litigants and does not impose “unwarranted burdens” on the court.
Court: USDC Eastern District of Louisiana , Judge: Currault, Filed On: October 5, 2023, Case #: 2:22cv4561, NOS: Marine - Contract, Categories: Transportation, Damages, Contract
J. Calabresi finds that the district court improperly assessed comparative liability to a delivery driver who sustained injuries when his motorized bicycle ran into the door of a government vehicle that had been opened by a military recruiter because evidence did not support findings that the bicyclist was 40% liable for damages.
Court: 2nd Circuit, Judge: Calabresi, Filed On: October 5, 2023, Case #: 22-995, Categories: Tort, Vehicle, Negligence
Per curiam, the Fifth Circuit finds the district court properly dismissed the insurance dispute without prejudice. After the insurance company partly denied the property owner’s claims for wind damage stemming from a tornado, the case was first brought in county court before the insurance company removed it to federal court. The property owner’s counsel failed to comply with a local rule requiring the retention of local counsel. The court provided the property owners with two opportunities to file for leave to proceed without local counsel, which was not done. There is no abuse of discretion found. Affirmed.
Court: 5th Circuit, Judge: Per curiam, Filed On: October 5, 2023, Case #: 23-10148, Categories: Insurance, Due Process