18 results for 'judge:"Elrod "'.
J. Elrod finds the district court improperly dismissed the flight attendants' injury claims as time-barred. The Texas Supreme Court answers certified questions confirming that certain civil practice and remedies code applies to invoke a prior district court���s subject matter jurisdiction with proper pleading. The code applies here where the Dallas district court dismissed the previous action for lack of jurisdiction and this second action was filed within 60 days after the flight attendants exhausted all appeals from that dismissal. Reversed.
Court: 5th Circuit, Judge: Elrod, Filed On: May 2, 2024, Case #: 22-20317, Categories: Employment, Tort, Negligence
J. Elrod denies the Honduran native's petition for review of the board's denial of her applications for asylum. The mother and her three children entered the U.S. without documentation and conceded removability before applying for asylum. The mother claims Honduran gangs used an empty lot behind her home to torture, kill and bury victims, subjecting her family to sounds of screaming and the smell of rotting corpses. She still fails to show past persecution or a well-founded fear of persecution. She also fails to present evidence supporting her claim a board member demonstrated partiality by not requiring the government to file a brief.
Court: 5th Circuit, Judge: Elrod , Filed On: April 19, 2024, Case #: 22-60479, Categories: Immigration, International Law, Judiciary
J. Elrod denies the El Salvadoran citizen's petition for rehearing. The immigration judge has previously adjudicated the immigrant removable for lacking documentation. Though the immigrant says she will suffer harm for having reported a rape if returned to El Salvador, the immigration judge determined she had not been harmed for a political opinion or membership in a social group. She also did not show the government would be unwilling or unable to protect her. The Board of Immigration Appeals has not given standards for evaluating when and how single-member panels should exercise discretion to refer a case to a three-member panel, and the circuit lacks jurisdiction.
Court: 5th Circuit, Judge: Elrod , Filed On: March 8, 2024, Case #: 22-60554, Categories: Immigration, International Law, Jurisdiction
J. Elrod denies the El Salvadoran native's petition for review of the Board of Immigration Appeals��� denial of her application for asylum. She failed to show her government would be unable to control her persecutor. Evidence showed the Salvadoran government arrested and detained a man who had raped the petitioner, removed his first two attorneys after they were reported for offering her money to drop the case, and pursued the case even after she stopped cooperating.
Court: 5th Circuit, Judge: Elrod , Filed On: January 3, 2024, Case #: 22-60554, Categories: Evidence, Immigration
J. Elrod finds the trial court properly convicted defendant for various drug trafficking and firearm charges based on sufficient evidence. Quantities of cocaine and firearms were discovered in defendant's possession, and evidence was properly admitted through the independent source doctrine, which allows for information arrived through an independent source. Affirmed.
Court: 5th Circuit, Judge: Elrod , Filed On: December 21, 2023, Case #: 22-30690, Categories: Drug Offender, Evidence, Firearms
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J. Elrod finds the district court improperly sentenced defendant for his guilty plea conviction for conspiracy to commit wire fraud. A prior incident involving meth possession was improperly cited as criminal history rather than relevant conduct in the written judgment and must be amended to conform with the oral pronouncement made at trial. Affirmed.
Court: 5th Circuit, Judge: Elrod , Filed On: December 20, 2023, Case #: 22-11039, Categories: Fraud, Sentencing, Theft
J. Elrod finds the district court properly granted most of the arresting officers��� motions for summary judgment based on qualified immunity in this suit brought on claims of false arrest. After an anonymous person using a blocked number called 911, threatening officers and an alleged hostage, officers arrived at the location provided to find a man with no hostage and no weapons. He was taken into custody and released when the investigation proved inconclusive. Though the officers credibly believed that lives were in danger, the first officer on the scene asserts that the nature of the probable cause changed from the time of the initial arrest to the duration of the detention, and that there was no probable cause after the original facts had dissipated. The district court improperly dismissed the Fourth Amendment claims against the first officer. Affirmed in part. Reversed in part and remanded.
Court: 5th Circuit, Judge: Elrod, Filed On: November 2, 2023, Case #: 21-11100, Categories: Civil Rights, Immunity, Police Misconduct
J. Elrod finds the trial court properly found in favor of the oil and gas production company in this suit alleging that its former operations supervisor breached his fiduciary duty by awarding contracts to companies owned by his friend. The contractors deliberately delayed operations, resulting in nearly $12 million in overbilling damages and $775,549 in recoupment for value received by the former supervisor. The expert properly calculated damages, and testimony regarding the friend���s companies��� better rates was given from memory. The former supervisor���s credibility was in question due to inconsistent answers given on previous questions, so the jury had discretion to reject the testimony. The court���s decision to deny post-trial discovery is vacated. Affirmed in part. Vacated and remanded in part.
Court: 5th Circuit, Judge: Elrod, Filed On: October 31, 2023, Case #: 22-10918, Categories: Employment, Fiduciary Duty, Contract
J. Elrod finds the district court properly modified a number of the special conditions imposed upon defendant���s 15-year term of supervised release after discharge from his 168-month prison sentence for receiving child pornography. All modified terms address defendant���s use of computers and the internet, as well as associating with minors, administered through the potential use of lie detector tests. Defendant contends that the court lacked jurisdiction to modify the conditions based on an unconstitutional ban on access to all computers. This is true, though the probation office gives other reasons for modification, including that the modifications provide for greater efficiency in monitoring defendant. The district court has jurisdiction to modify supervised release conditions even without other changes in circumstance. Affirmed.
Court: 5th Circuit, Judge: Elrod, Filed On: August 30, 2023, Case #: 22-30383, Categories: Constitution, Probation, Child Pornography
J. Elrod finds the district court properly denied the lawful permanent US resident���s motion to withdraw her guilty plea on charges of importation of a controlled substance. Though her lawyer told her that if she pleaded guilty it was ���very likely��� that she would be deported, defendant still received sufficient advice, as required by the Sixth Amendment, to make an informed decision. This is true in spite of the fact that a guilty plea in this circumstance triggered automatic deportation. Affirmed.
Court: 5th Circuit, Judge: Elrod, Filed On: August 29, 2023, Case #: 22-50647, Categories: Drug Offender, Immigration, Plea
J. Elrod denies the petition for mandamus sought by the group yet to have a hearing on class certification in its suit alleging the landfill emits noxious gases. The group seeks to prevent an identical but separate suit from scheduling for trial before it finishes its class certification process. The group argues the novel theory that the rule of civil procedure regarding the filing of a putative class action bars all class members from reaching the merits of separate suits until its own class-certification proceedings conclude. The cited rule is not for testing novel, wrong legal theories. The rule does not cause the filing of a putative class action to universally estop all separate but related actions from proceeding.
Court: 5th Circuit, Judge: Elrod, Filed On: August 24, 2023, Case #: 23-30243, Categories: Environment, Due Process, Class Action
J. Elrod finds the district court improperly granted the medical organization���s motion for injunctive relief by staying the effective date of each of the FDA���s actions surrounding ���morning after pill��� approvals and regulatory modifications. The organization alleges that safety risks have been overlooked, and that doctors sometimes must facilitate abortions when certain women experience complications. The part of the order addressing initial approval of the drug is barred by limitations. The portion relating to the generic approval is vacated, being the organization has not shown injury. Portions concerning the FDA���s decision to not enforce a regulation requiring the drug to be dispensed in person will be stayed during the pendency of the litigation. Vacated in part. Affirmed in part.
Court: 5th Circuit, Judge: Elrod, Filed On: August 16, 2023, Case #: 23-10362, Categories: Health Care, Agency, Injunction
J. Elrod finds the district court did not err in applying a sentencing enhancement for defendant���s prior offense of ���lustful touching of a child��� upon his guilty plea conviction for production of child pornography. The conduct meets all standards for criminality under the relevant statute, including those for contact, abuse and being for the purpose of sexual arousal. Affirmed.
Court: 5th Circuit, Judge: Elrod, Filed On: August 9, 2023, Case #: 22-60431, Categories: Sex Offender, Child Victims, Child Pornography
J. Elrod denies the capital murder convict���s application for a certificate of appealability, also finding the district court properly denied his motion to recuse the judge. Convenience store video clearly shows defendant pouring lighter fluid over the 76-year-old clerk, demanding money, receiving it, then lighting her on fire before calmly leaving. Associates of defendant and officer testimony support the court���s finding on defendant���s being a continuing threat and the Supreme Court has held that Texas��� capital punishment scheme regarding acts of violence constituting a continuing threat is not unconstitutionally vague. The Fifth Circuit has often reaffirmed this holding. No reasonable person would find the court���s assessment of the constitutional claims wrong or would doubt its impartiality. Affirmed.
Court: 5th Circuit, Judge: Elrod, Filed On: July 18, 2023, Case #: 22-70005, Categories: Constitution, Judiciary, Murder
J. Elrod finds the district court improperly granted defendant���s request to terminate his obligation to register as a sex offender as to his convictions for the distribution and possession of child pornography. After his release from prison, defendant has completed treatment and maintained a clean record, also complying with registration for the last 13 years. The district court gave no explanation for its order, and because defendant was convicted for distribution, he is statutorily required to maintain registration for 25 years. Reversed.
Court: 5th Circuit, Judge: Elrod, Filed On: July 11, 2023, Case #: 22-20238, Categories: Sentencing, Sex Offender, Child Pornography
J. Elrod finds the district court properly granted summary judgment to the insurance company in this dispute over its duty to defend as to coverage for financial losses incurred by Blue Bell over factory shutdowns and recalls caused by a Listeria outbreak. The shareholder derivative action does not allege any ���occurrence��� or seek ���damages because of bodily injury��� under the plain language of the contract. There is no colorable argument that the suit seeks damages ���for care, loss of services or death��� because it only seeks compensation for breach of fiduciary duties. Blue Bell does not argue that such damages are at issue. Affirmed.
Court: 5th Circuit, Judge: Elrod, Filed On: July 11, 2023, Case #: 22-50842, Categories: Insurance, Fiduciary Duty
J. Elrod finds the district court improperly dismissed the officer's negligence claim against the organizer of a Black Lives Matter protest which resulted in the officer being assaulted and severely injured. The officer plausibly alleged that the organizer led the protest in an unreasonably dangerous manner, breaching his duty to avoid creating circumstances in which it is foreseeable that another might be injured. The organizer can be held liable, though, only if the officer proves the specific elements of his negligence claim. Affirmed in part. Reversed in part and remanded.
Court: 5th Circuit, Judge: Elrod , Filed On: June 16, 2023, Case #: 17-30864, Categories: Tort, Negligence, Assault
J. Elrod finds the Benefits Review Board properly determined that an audiologist is a ���physician��� as defined in the Longshore and Harbor Workers��� Compensation Act, ordering that the sheet-metal mechanic had a right to select his own audiologist to treat work-related hearing loss. The shipbuilder denied coverage for treatment after its own audiologist found the mechanic had 0% hearing loss after his own audiologist had already found over 17% hearing loss. The company���s argument attempts to group audiologists with ���other practitioners of the healing arts��� as defined by the controlling regulation, which include naturopaths and faith healers. Audiologists are state-licensed practitioners of conventional medicine. The shipbuilder���s petition for review is denied.
Court: 5th Circuit, Judge: Elrod, Filed On: June 6, 2023, Case #: 21-60752, Categories: Employment, Health Care, Insurance