Nonresident aliens ineligible to take La. bar exam

Louisiana Supreme Court Rule XVII, § 3(B), as interpreted by the Supreme Court in a pair of decisions, (In re Appert, 444 So.2d 1208 (La. 1984) and In re Bourke, 819 So.2d 1020 (La. 2002)), allows aliens to take the Louisiana bar exam only if they have gained entitlement to live and work in the United States permanently. Last Friday, the U.S. Fifth Circuit, applying rational-basis scrutiny, held that this rule does not violate the Equal Protection Clause of the 14th Amendment. LeClerc v. Webb, No. 03-30752, c/w Wallace v. Calogero, No. 03-31009 (5th Cir. 7/29/05).

Thanks to Crime & Federalism for spotting this one.

p.s. (8/2/05): Read lazerwolf's commentary about this decision at Appellate Law & Practice.

Edwards Asks Fifth Circuit to Look at His Case Again

The Advocate reports that lawyers for former governor Edwin Edwards have asked the Fifth Circuit to look at his case yet again. Edwards is alleging several improprieties and also states that the federal sentencing guidelines have been thrown into doubt by a recent Supreme Court decision. Edwards is currently serving 10 years in federal prison for his role in a scheme to extort money from casino riverboat applicants.

5th Circuit Backs Juvenile's Azz Up

Law.com reports that the U.S. 5th Circuit has upheld a jury's finding that Terius Gray (aka Juvenile)'s "Back That Azz Up" did not infringe on Jerome Temple (aka D.J. Jubilee)'s "Back That Azz Up." Juvenile's song was a hit, sold more than 4 million CDs and grossed more than $40 million in sales. However, D.J. Jubilee's song failed to elevate either his bank account or his profile. D.J. Jubilee continues to work as a special education teacher.

Juvenile believed that the songs were substantially different and used different hooks; D.J. Jubilee's hook was the phrase "back that ass up" while Juvenile's was a sample from the Jackson 5's song "I Want You Back." After a 2003 trial, a jury ruled in favor of defendant Juvenile, finding that D.J. Jubilee failed to prove that his version of "Back That Ass Up" was substantially similar to Jubilee's version of "Back That Azz Up."

As a matter of fact, Chief Judge Carolyn Dineen King says she listened to both rap songs before issuing her opinion. "I don't know that I had to," says King, who admits she's not very familiar with rap music. "I'm interested in Brahms, but I did listen to it."

The Court's Opinion is located here. [pdf]

U.S. 5th Circuit Removes "Unduly Harsh Language" From Opinion

The 5th Circuit in New Orleans agreed to remove what it called "unduly harsh language" from its written rejection of ex-Louisiana Senate President Michael O'Keefe's request for a new trial. The Advocate reports that the court agreed to remove a description referring to one of O'Keefe's arguments as "highly misleading and a mischaracterization of the record."

Dissolution of contract dissolves stipulation pour autrui

Judge Dennis wrote an interesting decision for the Fifth Circuit in Shaw Constructors v. ICF Kaiser Engineers, Inc., filed Dec. 30. The decision is a study of the interaction between the Louisiana Private Works Act and the Louisiana Civil Code articles governing third-party beneficiaries of contracts and dissolution of contracts.

What happened: A subcontractor performed its part of the work in building a facility at an industrial plant. In the subcontract with the general contractor, the subcontractor waived its right to file claims or liens against the owner’s property. When the general contractor materially breached its primary obligation to pay the subcontractor the balance due for its work on the owner’s facility, the subcontractor filed claims and privileges or liens against the owner’s property and sued the owner under the Louisiana Private Works Act (“LPWA”). The owner filed a counterclaim, as third party beneficiary of the subcontract’s lien waiver provision, seeking to enforce the lien waiver and to cancel the liens filed.

The Fifth Circuit reversed the magistrate court’s holding that the subcontractor may not raise against the owner third party beneficiary’s demand the defenses it could have raised against the general contractor. Instead, the Fifth Circuit rendered summary judgment sustaining the subcontractor’s right to regard the subcontract as dissolved and the parties restored to their pre-contract positions, due to the general contractor breach of the subcontract. Because the subcontract was dissolved, the owner and third-party beneficiary could no longer obtain the benefit of the lien waiver in the dissolved subcontract.

LPLA plaintiff doesn't always need expert

In Malbrough v. Crown Equipment Corp., filed yesterday, the U.S. Fifth Circuit held that the Louisiana Products Liability Act does not contain "a per se requirement of expert testimony in all design defect cases ..." The manufacturer had won a motion in limine excluding plaintiff's expert because of plaintiff's failure to meet discovery deadlines. But the district court denied the manufacturer's follow-up motion for summary judgment. The Fifth Circuit affirmed, citing its decision in Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 184 (5th Cir. 1990):

"There may be cases in which the judge or jury, by relying on background knowledge and 'common sense,' can 'fill in the gaps' in the plaintiff's case" and thus understake the utility balancing required by the LPLA without the aid of expert testimony.

Medicaid Act Enforceable Under 42 USC § 1983

In S.D. v. Hood, filed yesterday, the Fifth Circuit held:

(1) Louisiana's Medicaid agency, the Louisiana Department of Health and Hospitals, "unlawfully denied [S.D.'s] claim under the Medicaid Act’s program for 'early and periodic screening, diagnostic, and treatment services' (EPSDT) by refusing to pay for his medically prescribed disposable incontinence underwear that is necessary to ameliorate his physical and mental conditions caused by spina bifida, which results in his total bowel and bladder incontinence, loss of sensation, and continual risk of infection."

(2) LDHH’s violation of the statute deprived S.D. of a right secured by federal statute, for which he may bring an action for redress under 42 U.S.C. § 1983.

JMOL before plaintiff rests is premature

In Echeverria v. Chevron USA, Inc., filed yesterday, the Fifth Circuit reversed a JMOL that the trial court had entered before the plaintiff rested his case. The court held that a party has not been "fully heard" for purposes of FRCP 50(a)(1) until after that party has submitted all its evidence and rested its case.

Removal; fraudulent joinder

In Gray v. Beverly Enterprises-Mississippi, Inc., decided November 9, the Fifth Circuit ordered a case to be remanded to state court, reversing a district-court judgment holding that the non-diverse had been fraudulently joined. To get there, the Fifth Circuit made these interesting points:

1. The court held that the "talismanic words" ("no just reason for delay") are not necessary to certify an interlocutory judgment as appealable under FRCP 54(b). Rather, what is required is the district court's "unmistakable intent to render the issue appealable under rule 54(b) ...." In Beverly, the district court found "that there exists a danger of hardship or injustice through delay which would be alleviated by immediate appeal .... As such, the Court finds that justice will be served by the immediate appeal of this issue ...." The Fifth Circuit found that these words satisfied Rule 54(b). "The district court expressed its finding merely using a phraseology different" from the magic words "no just reason for delay."

2. If state law is ambiguous on whether the plaintiff has a cause of action against the non-diverse defendant, then that defendant has not been fraudulently joined. To prove fraudulent joinder, a defendant must prove that the plaintiff has no reasonable basis for recovering againt the non-diverse defendant in state court. In deciding whether the plaintiff has a reasonable basis for recovering, "all disputed questions of fact and all ambiguities in state law must be resolved in favor of the plaintiff." In Beverly, the plaintiffs relied on statutes that had not yet been interpreted by Mississippi state courts. Thus, state law was unclear on whether the statutes gave plaintiffs a cause of action against the non-diverse defendants. For removal / remand purposes, that hiatus in Mississippi law had to be resolved in plaintiffs' favor.

3. On the other hand, where a plaintiff has no law authorizing recovery against the non-diverse defendant, then that defendant has been fraudulently joined. The court explained that, although ambiguous state-law questions must be resolved in plaintiffs' favor, a plaintiff cannot reasonably expect to recover in the absence of any legal authority supporting recovery.

4. The plaintiffs had brought five claims against the non-diverse defendants (simple negligence, gross negligence, medical malpractice, fraud, and breach of fiduciary duty), but appealed only with respect to two (simple negligence and gross negligence). On remand, was the district court's finding of no claim under the other three theories conclusive? The defendants argued that because those three claims had not been appealed, they could not be included in the remand. The Fifth Circuit found the defendants' argument "interesting" and possibly "persuasive," but rejected it. "Underlying the entire argument is the notion that by not appealing the decision on some counts, the plaintiffs have 'waived' the issue of subject matter jurisdiciton over htose counts. Subject matter jurisdiction, however, cannot be waived.... That being so, plaintiffs' failure to appeal the other causes of action is not dispositive."

La. Mineral Code Preempts Shreveport City Ordinance

The City of Shreveport gets its drinking water from nearby Cross Lake. The City passed an ordinance barring new oil and gas drilling within 1,000 feet of the lakeshore. But in Energy Management Corp. v. City of Shreveport, handed down today, the U.S. Fifth Circuit holds that the Mineral Code preempts the ordinance.

Normal Diversity Rules Apply To National Banking Associations

28 USC § 1348 says that national banking associations are "citizens of the States in which they are respectively located." Does this mean that for diversity purposes (28 USC § 1332), a national banking association is a citizen of every state where it has a branch office? No, says the U.S. Fifth Circuit in Horton v. Bank One, N.A., decided yesterday. The court interprets § 1348 as applying the normal rules of diversity to national banking association. "We hold that the definition of “located” is limited to the national bank’s principal place of business and the state listed in its organization certificate and its articles of association." Slip op. at 19.

Fifth Circuit Affirms Dismissal of Union Parish Suit Under Voting Rights Act

Residents of Union Parish brought a suit alleging that a redistricting plan for electing parish police jury members violated the Voting Rights Act. At the close of the case, plaintiffs moved to recuse the district judge, on grounds that his wife was employed as an assistant district attorney in the office that represented the defendants. The district judge declined to recuse and dismissed plaintiffs' suit. Yesterday the Fifth Circuit affirmed. Sensley v. Albritton, No. 03-30866 (5th Cir. Sept. 28, 2004).

Thimerosal Manufacturer Not a Vaccine Manufacturer, U.S. 5th Cir. Holds

"The Vaccine Act [42 U.S.C. § 300aa-1 et seq.] is a remedial program designed to provide swift compensation to persons injured by vaccines, while ensuring that the nation's supply of vaccines is not unduly threated by the costs and risk of tort litigation. To that end, victims of a 'vaccine-related injury or death,' ... are barred from seeking redress in the courts unless they have first filed a claims for recovery in a specialized Vaccine Court." In Moss v. Merck & Co., the Fifth Circuit rejected Eli Lilly's attempt to bring itself under the Vaccine Act's protection. Eli Lilly manufactured Thimerosal, a mercury-containing preservative used in several childhood vaccines. The Mosses alleged that their daughter developed autism because of mercury-containing vaccines. Eli Lilly persuaded the district court to dismiss the Mosses claims against it, but the Fifth Circuit reversed.

Progress Made, Progress Still Needed

Today the U.S. Fifth Circuit released an opinion in Moses v. Washington Parish School Board. The case concerns Bowling Green School. In the 1970, a federal district court found that Bowling Green had been established to preserve racially segregated education, and enjoined the Washington Parish School Board from providing textbooks, equipment, transportation, or any other assistance to Bowling Green. Fast forward to the 1990s: To make its students eligible for TOPS scholarships, Bowling Green admitted its first African-American student. But the district court refused to lift its earlier injunction, because the court was not yet satisfied that Bowling Green had "demonstrated a good faith commitment to eliminating the vestiges of past discrimination" or had made "meaningful progress toward becoming a non-discriminatory school." Today the Fifth Circuit affirmed that decision.

Len Davis may face death penalty

Yesterday, the U.S. Fifth Circuit vacated a district-court order that precluded the government from seeking the death penalty against Paul Hardy and former New Orleans police officer Len Davis. Hardy and Davis had been convicted of conspiring to kill Kim Groves, a citizen who had complained that Davis's partner pistol-whipped someone in her neighborhood. The district court had held that the government could not seek the death penalty, because the indictment failed to allege the intent required by the Federal Death Penalty Act (18 U.S.C. § 3591 et seq.). The Fifth Circuit held that any deficiency in the indictment was harmless error, for two reasons: (1) The government had given Davis and Hardy specific notice of its intent to seek the death penalty. (2) The specific acts alleged in the indictment undoubtedly implied that Davis and Hardy intended to kill Groves. United States v. Davis, No. 03-30077, slip op. (5th Cir. Aug. 4, 2004).

U.S. v. Piniero: Blakely in the Fifth Cir.

On July 12, we reported on the U.S. Fifth Circuit's decision in United States v. Pineiro, in which the Fifth Circuit held that Blakely does not extend to the federal Sentencing Guidelines. Today the Fifth Circuit issued a revised opinion, which you can view here. The holding remains the same.

Episode of Deep Vein Thrombosis Not an "Accident" Under Warsaw Convention

On June 18, 2001, Michael Blansett flew from Houston, Texas to London, England on a Continental Airlines flight. During the flight, he suffered an episode of deep vein thrombosis (DVT), causing a cerebral stroke that left him permanently debilitated. DVT involves the clotting of blood in the extremeties and can cause death or disability if a clot migrates to the lungs or other vital organs.

Blansett sued Continental, alleging Continental's liability under Art. 17 of the Warsaw Convention. Article 17 makes an airline responsible for an injury to a passenger on an international flight when the injury results from an "accident." Continental moved to dismiss Blansett's complaint under FRCP 12(b)(6), but the district court denied the motion. The district court reasoned that Continental's failure to warn passengers about DVT and instruct them how to avoid it might be an "accident" under Article 17. Continental took an interlocutory appeal under 28 USC § 1292(b), and the U.S. Fifth Circuit reversed, holding that Continental's failure to warn and instruct about DVT could not have constituted an "accident" under Article 17. Blansett v. Continental Airlines, Inc., No. 03-40545 (5th Cir. July 21, 2004).

5th Circuit Says Blakely Doesn't Apply to Federal Guidelines

The Times-Picayune reports that the Fifth Circuit has issued an opinion holding that Blakely does not impact the federal sentencing guidelines. The case is US v. Pineiro. SCOTUSblog has more on what might be the quickest circuit split ever.

Mineral Code Requires Individual Notice, Not Class Notice, Before Suit On Mineral Lease

The Louisiana Mineral Code requires a lessor to give the lessee written notice of the lessee's failure to make timely or proper payment of royalties, as a prerequisite to a judicial demand for damages or dissolution of the lease. Can such a notice be given on behalf of a putative class, as a prerequisite to a class action on behalf of lessors against a lessee?

On March 25, we reported that the U.S. Fifth Circuit had certified this question to the Louisiana Supreme Court. But the Louisiana Supreme Court denied certification, leaving the question to be decided by the Fifth Circuit. And on July 6, the Fifth Circuit answered the question, holding that notice on behalf of a putative class does not satisfy the Mineral Code's written-notice requirement.

While this decision does not in itself rule out class actions on mineral leases, it will likely hamper any effort to instigate such a class action.

Casino Boat Not a Vessel for Jones Act Purposes

Is a cocktail waitress on a casino riverboat a Jones Act seaman? Not if the boat is permanently docked, says the U.S. Fifth Circuit. "The rule has never been “once a vessel, always a vessel.” ... [O]nce the TREASURE CHEST was withdrawn from navigation so that transporting passengers, cargo or equipment on navigable water was no longer an important part of the business in which the craft was engaged, the craft was not a vessel. Martin v. Boyd Gaming Corp., No. 03-30389 c/w 03-30459 (5th Cir. July 8, 2004).

Brennan's v. Dickie Brennan's: The Fifth Circuit Speaks

Yesterday the U.S. Fifth Circuit decided cross-appeals in Brennan's Inc. v. Dickie Brennan & Co., No. 03-30470. This Brennan-family squabble arose when Dickie Brennan named two of his restaurants after himself (Dickie Brennan's Palace Café and Dickie Brennan's Steakhouse). The branch of the family that operates Brennan's Restaurant was concerned about possible trademark infringement. The facts, trial-court doings, and issues on appeal are complex, requiring the Fifth Circuit to write a 43-page opinion to sort things out. Bottom line: the Fifth Circuit affirmed a jury verdict against Dickie Brennan's, awarding $250,000 in damages for breach of contract, and remanded the case to the Eastern District of Louisiana for trademark-related claims against the owners of Dickie Brennan's.

U.S. Fifth Circuit Applies Judicial Estoppel

In a decision filed on June 18, the U.S. Fifth Circuit dismissed a personal-injury lawsuit, because in prior bankruptcy proceedings, the plaintiff-debtor had failed to disclose his potential lawsuit to his creditors.

Arthur Hudspeath claimed to have been injured while disembarking from a ship. A little over a year later, he and his wife filed for Chapter 13 bankruptcy. In the bankruptcy proceeding, they were required to report any pending litigation or potential lawsuits, but they filed a schedule that failed to disclose their potential claim against the ship. While their bankruptcy case was still pending, they filed a state-court suit against the ship owner, but withheld service for six months, during which time they failed to amend their bankruptcy filings to disclose their lawsuit. After being discharged in bankruptcy, Mr. Hudspeath intervened in the federal-court limitation action, pressing his personal-injury claim. The vessel owner moved the district court to dismiss Mr. Hudspeath's suit on grounds of judicial estoppel.

The district court denied the vessel owner's motion, but Fifth Circuit reversed. In an opinion by Judge Edith Jones, the Fifth Circuit criticized the district court for "allow[ing] these debtors to have their cake and eat it too, as they retain the enormous benefit of a bankruptcy discharge while standing in line to receive funds from the injury lawsuit after the creditors are paid. Because judicial estoppel is designed to prevent such guile, we reverse." In re: Superior Crewboats, Inc., No. 03-30692, slip op. (5th Cir. June 18, 2004).

Fifth Circuit Sends Certified Question to Louisiana Supreme Court

The US Fifth Circuit has certified the following question to the Louisiana Supreme Court:

Whether the notice given in this case by counsel for a lessor on behalf of the putative class satisfies the requirement of Articles 137-141 of the Louisiana Mineral Code, requiring the lessor to give written notice of the lessee’s failure to make timely or proper payment of royalties as a prerequisite to a judicial demand for damages or dissolution of the lease.

The question can be accessed here [pdf]. A conflict regarding this issue exists among the Louisiana Appellate court decisions. In its context, the issue is whether a demand for royalties on behalf of a royalty owner "and all others similarly situated" is effective as to those "similarly situated." If the answer is "yes," then a class action for mineral royalties would be possible. Alternatively, a "no" answer would impose a substantial impediment to a class action for mineral royalties.

Owen Subject of Third Filibuster

The Times-Picayune reports that Senate Democrats blocked the appointment of Priscilla Owen to the United States Fifth Circuit Court of Appeal in New Orleans for the third time yesterday.

US Supreme Court Refuses to Hear Swaggart Case

The Advocate reports that the United States Supreme Court refused to consider, without comment, an appeal regarding over $2.1 million paid to Jimmy Swaggart Ministries in a failed Baton Rouge real estate development. The case dates back tot he early 1990s when developer Sam Recile proposed a Baton Rouge mall known as Place Vendome. Recile was sentenced to 10 years in federal prison and Jimmy Swaggart Ministries was sued by the bankruptcy receiver for Recile's companies.

Owen's Nomination Running into Trouble

The Times-Picayune reports on the planned filibuster of Priscilla Owen's nomination to the federal appeals court in New Orleans. The article notes that the votes of Senators John Breaux and Mary Landrieu could be critical to prevent the filibuster. Senator Landrieu has indicated she will support the filibuster, while Senator Breaux has declined to take a firm position.

Owen Filibuster Underway

Howard Bashman, of How Appealing, reports that the Priscilla R. Owen filibuster is underway.

Confirmation Battles Heating Up

How Appealing reports on an article appearing in the Sunday edition of The Times-Picayune. The article begins with the following: "A new conservative interest group is raising money and warning Democratic senators, including Louisiana's, that their votes on President Bush's judicial nominees are being closely watched."

Estrada Supporters Rally at Capitol

The Advocate reports on yesterday's rally in support of Miguel Estrada at the state Capitol. The rally was sponsored by Focus on the Family and was attended by nearly 60 supporters.

Focus on the Family organizers said they chose Baton Rouge as a rally site because U.S. Sen. Mary Landrieu, D-La., is one of a dozen senators considered potential swing votes to end the delay in Estrada's confirmation vote. Other rally sites are Little Rock, Ark.; Albuquerque, N.M.; and Miami.

Senator Landrieu was out of town, but her spokeswoman, Maria Purdy, made the senator's position clear: "We still don't know any more about this candidate's views on issues of critical importance than we did when he left the Judiciary Committee, which is to say we know almost nothing about his views. Until we have new information that provides some insight into Mr. Estrada's views and opinions, the senator's position will remain the same."

The original press release from the Focus on the Family web site is available here.

Senate Democrats Will Filibuster Owen Nomination

How Appealing reports that Senate Democrats plan to block a vote on the nomination of Priscilla Owen to the United States Fifth Circuit Court of Appeal. Stay tuned to Howard for updates as they develop.

United States Senate Opens Debate on Owen

How Appealing reports that the United States Senate has opened its debate regarding the appointment of Priscilla Owen to the United States Fifth Circuit Court of Appeal. From the Reuters article: "Senate Democrats were expected to discuss at their weekly strategy meeting on Tuesday if they had the support to block Owen with a procedural hurdle known as a filibuster, aides said."

Federal Rules Amendments.

SCOTUSBlog reports that Chief Justice Rehnquist transmitted amendments to Congress regarding the Federal Rules of Appellate Procedure, Federal Rules of Bankruptcy, Federal Rules of Civil Procedure, and Federal Rules of Evidence. How Appealing notes that changes to the amendments of the Federal Rules of Appellate Procedure are negligible, however, anyone dealing with class action procedures should check out the amendments to Federal Rules of Civil Procedure.

Senate Judiciary Approves Owen's Nomination

How Appealing reports that the Senate Judiciary Committee has approved the nomination of Priscilla R. Owen to the Fifth Circuit today.

Fort Polk Horses to be Rounded Up

The United States Fifth Circuit affirmed the dismissal of an animal-rights group's lawsuit that was intended to bar the proposed roundup of horses running free on Fort Polk in the Kisatchie National Forest, reports The Advocate. The decision upheld the determination of District Judge A.J. McNamara who held that the horses were not "wild" and therefore protected by the Wild Free-Roaming Horses and Burros Act of 1971.

US Fifth Circuit Considers Wild Horses

The Advocate reports on a case argued before a three-judge panel on the US Fifth Circuit Court of Appeal regarding whether horses that roam Fort Polk in the Kisatchie Nation Forest are "wild." Apparentlyk, such a determination would entitle them to sanctuary under federal law. The US Department of Justice argues that the horses are merely strays that wandered onto the Army post and are trespassing. The Army would like to round the estimated 250 horses up, but the Coalition of Louisiana Animal Advocates is trying to stop them by claiming that such action would violate the Wild Free-Roaming Horses and Burros Act of 1971.

Fifth Circuit to Hear Religious Tax Case

The United States Fifth Circuit Court of Appeal will decide whether Louisiana can grant sales tax exemptions to churches and other nonprofit religious groups this week, reports The Advertiser. "Last March, U.S. District Judge Ginger Berrigan struck down the exemptions, saying they were given for a religious purpose, thus breaking the constitutionally required separation of church and state." Louisiana appealled and the case will be heard by a three-judge panel on Wednesday.