23 results for 'judge:"Southwick "'.
[Consolidated.] J. Southwick grants the petition for panel rehearing, finding the district court properly concluded a setoff reducing the receiver's judgment would be inequitable, refusing to consider it. The bank was exposed as a Ponzi scheme and placed into receivership, and the receiver sought to recover estate assets from various parties. A party who allegedly received fraudulent transfers received a $79 million loan in contemplation of the bank's impending troubles. The court���s reasoning a setoff would be inequitable is consistent with a previous holding that an ���otherwise valid��� transaction must occur ���prior to insolvency and not in contemplation thereof.���
Court: 5th Circuit, Judge: Southwick , Filed On: March 20, 2024, Case #: 22-10235, Categories: Fraud, Banking / Lending
J. Southwick finds the district court properly granted summary judgment to the attorney. The attorney and partner formed a "gentleman's" venture to form a business for making settlement-secured medical loans to litigants, but the partner was not listed on any formational document. After some time of a 50/50 profit-sharing arrangement, the partner sought financial information, but was told that he held an economic benefit only interest, and that the business was owned by a trust. Though the parties made a profit-sharing agreement, tax documentation shows a possible change in payments from profit-sharing to services rendered. The statute of frauds applies to the unenforceable oral agreement. Affirmed.
Court: 5th Circuit, Judge: Southwick , Filed On: March 5, 2024, Case #: 23-50297, Categories: Fraud, Tax, Contract
J. Southwick finds the district court properly dismissed the pilot's claims against the corporate defendants. The pilot suffered injuries from a crash caused by alleged component malfunctions of the single-engine plane he was flying. He filed suit in Mississippi state court against various manufacturers, and the suit was removed to federal court because two Mississippi defendants were improperly joined. Claims against the out-of-state defendants were then dismissed for lack of personal jurisdiction. Although certain requested documents could potentially show Mississippi connections, the pilot relies "on vague assertions that additional discovery will produce needed, but unspecified facts,��� which is insufficient to allow jurisdictional discovery. Affirmed.
Court: 5th Circuit, Judge: Southwick , Filed On: February 23, 2024, Case #: 22-60603, Categories: Product Liability, Jurisdiction, Aviation
J. Southwick finds the district court properly found the investors' challenge of the bankruptcy court's removal of subrogation rights was statutorily and equitably moot. Provisions of the bankruptcy reorganization of the energy company, which stripped the sureties of their subrogation rights, were integral to the sale of the company's assets. Affirmed.
Court: 5th Circuit, Judge: Southwick , Filed On: February 20, 2024, Case #: 23-20104, Categories: Bankruptcy, Construction, Debt Collection
J. Southwick finds the district court properly held a mineral lease is not yet in effect such that the developer has standing to pursue constitutional takings claims against the parish. The clear text of the lease shows the developer has not secured necessary governmental approvals. Therefore, the developer has no vested interest in the property at question or its clay deposits. Affirmed.
Court: 5th Circuit, Judge: Southwick , Filed On: February 16, 2024, Case #: 23-30084, Categories: Constitution, Energy, Property
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J. Southwick finds the district court improperly found a limitation in Texas���s DNA testing statute involving death-row inmates' entitlement to testing was unconstitutional. Convicted for capital murder, defendant made civil rights claims against Texas in an effort to secure postconviction DNA testing. However, new testing of the victim���s blood sample, a shirt belonging to an accomplice, nail scrapings and a loose hair recovered from the victim���s finger would not override the overwhelming evidence of guilt. Defendant admitted to orchestrating the robbery during which he and his accomplice entered the victim's residence with two screwdrivers, both used to stab the victim. Reversed.
Court: 5th Circuit, Judge: Southwick , Filed On: February 8, 2024, Case #: 21-70009, Categories: Constitution, Dna, Murder
J. Southwick finds the trial court improperly denied summary judgment to the police officers. The owner of the house filed suit after officers raided the wrong house, deploying flashbang grenades, breaking windows and breaking in the front door. Though the lead officer's efforts to identify the correct address were deficient, he did not violate clearly established law. The owner has not cited authority demonstrating violations. Reversed.
Court: 5th Circuit, Judge: Southwick , Filed On: February 1, 2024, Case #: 22-10441, Categories: Immunity, Police Misconduct
J. Southwick finds the district court properly sanctioned the attorney who represented a doctor in a due process and contract action against a university. After dismissal of several claims, the attorney continued to present frivolous arguments regarding the university's potential liability. Affirmed.
Court: 5th Circuit, Judge: Southwick , Filed On: January 31, 2024, Case #: 23-30335, Categories: Education, Sanctions, Attorney Discipline
[Consolidated] J. Southwick denies Texas and an energy company's petition for review of the EPA's designation of certain Texas counties as having below-national air quality standards. Although the EPA reclassified the counties as "unclassified" due to inconclusive data following its original classification, and then, later, reclassified them again as below standards, it did not originally have the authority to wait for future data before making the designation. The EPA may change designations based only on available data. Affirmed.
Court: 5th Circuit, Judge: Southwick , Filed On: January 11, 2024, Case #: 17-60088, Categories: Environment, Due Process, Agency
J. Southwick finds the district court improperly held the contract to inspect and repair lifeboats on oil platforms is not a maritime contract. After two workers were killed in a lifeboat accident, the district court decided that since the vessel itself was not engaged in maritime commerce the contract is not a maritime contract, which effects whether indemnity might be owed. Though the platform itself may or may not be considered a vessel, depending on if its legs are attached to the sea floor, the lifeboats themselves are not required to be engaged in maritime commerce. Reversed.
Court: 5th Circuit, Judge: Southwick , Filed On: January 11, 2024, Case #: 22-30582, Categories: Insurance, Maritime, Negligence
J. Southwick finds the district court improperly granted summary judgment in favor of the voter's advocacy organization, which challenges a Texas law requiring an original signature on registrations, arguing it violates the Civil Rights Act and the First and Fourteenth Amendments��� ban on undue voting rights burdens. Physically signing a form with warnings of penalties for perjury will dissuade false statements, the challenged statute imposes a small burden and the constitutional question grants states leeway in their authority. Texas���s interests in ensuring reliability and reducing fraud are sufficient to protect the "wet signature" rule from constitutional attack. Reversed.
Court: 5th Circuit, Judge: Southwick , Filed On: December 15, 2023, Case #: 22-50536, Categories: Civil Rights, Constitution, Elections
J. Southwick finds the district court properly denied the state defendant a writ of habeas corpus. Charged with murder and a number of other offenses, defendant claims that retrial after a mistrial was declared is barred because a juror poll showed that 10 would acquit on four of five counts. Certain issues must be reviewed before the circuit could answer whether acquittal was effective on those four counts. Affirmed.
Court: 5th Circuit, Judge: Southwick , Filed On: December 4, 2023, Case #: 22-30310, Categories: Habeas, Jury, Murder
J. Southwick finds the trial court properly ordered the inmate to be released on parole after its grant was rescinded just before its effective date. Convicted for manslaughter and attempted aggravated rape, defendant served 16 of his 71-year sentence. After multiple parties sought to have the parole rescinded, as well as negative media attention, the parole was rescinded due to a possible irregularity to victim notice. Defendant was notified 10 days after his parole was rescinded. ���Victim notification��� was not a permissible reason to rescind parole at that point. Affirmed and remanded.
Court: 5th Circuit, Judge: Southwick, Filed On: October 23, 2023, Case #: 22-30159, Categories: Parole, Sex Offender, Manslaughter
J. Southwick finds the district court improperly dismissed this suit brought by the modular structures operator, alleging that the construction company misappropriated its trade secrets. Though the district court found that the operator had engaged in claim splitting between this federal suit and a state suit involving the same parties, the pleadings didn���t clarify the relationship between two of the defendants to the extent it could be said claim splitting occurred. The court must assess whether assertions about the relationship between the operator and the construction management company support that the two entities are in privity. Reversed and remanded.
Court: 5th Circuit, Judge: Southwick, Filed On: October 20, 2023, Case #: 22-50945, Categories: Construction, Jurisdiction, Contract
J. Southwick finds the district court improperly granted summary judgment to the trucker, his company and its insurance company in this negligence suit arising from a truck tire de-tread on an interstate, which caused an accident resulting in injury. The company claims that the tire was destroyed due to simple negligence, though the Fifth Circuit finds there are fact issues regarding possible bad faith. The company destroyed this crucial piece of evidence soon after learning about the accident and cannot explain why the tire was taken to another facility or what happened to it following the accident. The company cannot demonstrate it had any preservation policy for equipment that may have caused an injury. Reversed in part.
Court: 5th Circuit, Judge: Southwick , Filed On: September 15, 2023, Case #: 22-30638, Categories: Evidence, Vehicle, Negligence
J. Southwick finds the district and bankruptcy courts properly concluded that a particular claim was not permitted in this suit brought by creditors against the debtor satellite communications network distributor. The distributor filed for bankruptcy after entering into an agreement with the provider by which it would receive a discount in exchange for a minimum number of customers brought to the provider through the distributor���s maritime service. All debts have been satisfied but the one claim for a shortfall of over $2 million for deployment services found not to be permitted. The termination agreement���s definition of ���permitted claims��� unambiguously requires a claim for payment by the provider for services delivered. The provider���s claim for the shortfall amount did not satisfy ���delivery��� requirements. Affirmed.
Court: 5th Circuit, Judge: Southwick, Filed On: August 3, 2023, Case #: 22-20274, Categories: Communications, Maritime, Contract
J. Southwick finds the district court properly affirmed the magistrate judge's conviction of defendant for aiding and abetting hunting over a baited area, violating the Migratory Bird Treaty Act. Defendant was found to be seeding his property and stated the purpose was to attract deer. When asked why he had not covered the seed defendant admitted that he hoped doves would land on his artificial power line and ���get a bite of wheat.��� Defendant illegally baited his field and attempted to craft an after-the-fact argument for why this should fit within the realm of normal agricultural operations. Affirmed.
Court: 5th Circuit, Judge: Southwick , Filed On: July 28, 2023, Case #: 22-30357, Categories: Environment, Property
J. Southwick finds the commission properly reversed the administrative law judge���s finding in favor of the crane-service provider as to the cause of a severe shock to an employee. That judge said the cited regulations did not apply to the pre-disassembly of a crane after an antenna installation, where the crew had not begun to physically disassemble equipment. The regulation is unclear on this point. Substantial evidence supports that the company did not adequately monitor employee compliance with its own safety rules, though; and no evidence was shown that an employee has ever been disciplined for violations. Petition for review denied.
Court: 5th Circuit, Judge: Southwick, Filed On: July 19, 2023, Case #: 22-60399, Categories: Employment, Tort, Agency
J. Southwick finds the district court improperly found in favor of the Pasadena police officers who restrained and tased a detainee several times during an epileptic seizure. Jail video shows that the detainee began to roll, kick and allegedly bite officers. An officer deployed her taser and the detainee got up, was tased again, then fell face-first onto the concrete floor. He died the next day at the hospital. The estate has identified clearly established law that the actions constituted excessive force and delay of emergency medical care. The record is insufficient to support a jury question on whether city use-of-force policies are too vague; summary judgment as to municipal liability was properly entered. Affirmed in part. Reversed in part and remanded.
Court: 5th Circuit, Judge: Southwick, Filed On: July 18, 2023, Case #: 22-20341, Categories: Civil Rights, Wrongful Death, Police Misconduct
J. Southwick finds the district court properly denied the Louisiana Department of Public Safety and Corrections Secretary���s motion to dismiss this civil rights suit base on qualified immunity. The inmate who says he was misclassified as a sex offender and held for over a year past his release date adequately pleaded that sufficiently similar prior incidents occurred in sufficient number, and of which the secretary was aware, to overcome summary judgment. The secretary knew about a legislative audit report regarding the over-detention of inmates, as well as an attorney general op-ed and state court testimony regarding the same. Affirmed.
Court: 5th Circuit, Judge: Southwick, Filed On: July 17, 2023, Case #: 21-30446, Categories: Civil Rights, Immunity, Prisoners' Rights
J. Southwick remands this challenge to Lafayette Parish���s cash bail requirement for pretrial detainees. The party bringing suit was arrested on a felony-theft charge with bail set at an amount he could not pay. There was no inquiry at first hearing as to whether he could afford the bail, and it was not reduced. No finding was made that pretrial detention was necessary and defendant, who had no counsel, had no opportunity to present or contest evidence. During the pendency of his appeal of the district court���s denial of bail relief, the Fifth Circuit held that district courts must abstain from suits contesting a local jurisdiction���s bail practices when there is an opportunity in state court to present constitutional challenges, which is so in this case. The suit is remanded with instructions to dismiss.
Court: 5th Circuit, Judge: Southwick, Filed On: June 21, 2023, Case #: 20-30159, Categories: Civil Rights, Due Process, Prisoners' Rights
J. Southwick affirms the Board of Immigration Appeals��� denial of the Ecuadoran native���s motion to reopen removal proceedings and rescind his in-absentia removal order. After entering the country without inspection, petitioner was detained, signing a form giving the address at which future notices could be sent upon his release. The address had one incorrect letter in the city, otherwise being correct. The eventual notice of hearing was returned: ���ATTEMPTED, NOT KNOWN.��� Not attending the hearing because of this, petitioner was ordered removed in-absentia. The board had jurisdiction to enter the order and petitioner forfeited his right to notice by failing to keep the immigration court apprised of his correct mailing address or to correct an erroneous address. Petition for review is denied.
Court: 5th Circuit, Judge: Southwick, Filed On: June 2, 2023, Case #: 20-60778, Categories: Immigration, Due Process
J. Southwick finds the district court properly entered judgment against the investor who was sued by the receiver to recover funds after his bank was exposed to a Ponzi scheme and placed into receivership. The investor failed to raise his setoff defense before the entry of final judgment and forfeits the defense. Affirmed.
Court: 5th Circuit, Judge: Southwick, Filed On: May 30, 2023, Case #: 22-10235, Categories: Fraud, Securities, Banking / Lending