5th Circuit Blog

A Curious Decision on Default Judgments

By Razvan Ungureanu on January 27, 2015

Assume the following facts: you file a complaint, serve the defendant, the defendant refuses to answer, you present competent evidence to prove your damages on the claims alleged in the complaint, and you obtain a default judgment.  Should the defendant be able to overturn the default judgment on appeal?  Many legal practitioners would answer no, but a divided panel of the Fifth Circuit recently held otherwise.  So long as a complaint contains insufficient factual allegations to survive a Rule 12(b)(6) motion to dismiss, a defendant against whom a default judgment was entered can overturn that default judgment for the first time on appeal.  That is so even if the plaintiff introduces sufficient evidence at an evidentiary hearing to cure any insufficient-factual-allegation deficiencies the complaint may contain.

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Posted In: Civil Procedure

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Statements Made in Commercial Advertisements, Even If Based on Statements in Scientific Publications, May Be Subject to Lanham Act Claims

By Razvan Ungureanu on December 29, 2014

Eastman Chemical Co. v. PlastiPure, Inc. explores the interaction between the First Amendment and Lanham Act false advertisement claims.  Specifically, the case addresses the situations in which statements based on peer reviewed articles published in scientific journals may form the bases of such claims.  Though the First Amendment may preclude Lanham Act claims alleging that statements in scientific journals are misleading or false, the Lanham Act prohibits false or misleading commercial speech even when that speech makes scientific claims.

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Posted In: Lanham Act

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Fifth Circuit to Reconsider En Banc (and Likely Eliminate) the Pro-Snax Standard for Evaluating Attorney’s Fees Applications in Bankruptcy Cases

By Razvan Ungureanu on November 07, 2014

The Fifth Circuit today granted rehearing en banc in In re Woerner.  The main issue in the case is the proper standard to be applied when evaluating attorney’s fees applications for attorneys assisting debtors-in-possession in Chapter 11 bankruptcy proceedings.  Though the en banc decision is unlikely to change the outcome in In re Woerner --- the Fifth Circuit stated it would have affirmed regardless of the applicable standard --- the decision will likely have substantial consequences in the Fifth Circuit.

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Posted In: Attorney's Fees , Bankruptcy

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Daily Round-Up (Oct. 28, 2014)

By Razvan Ungureanu on October 29, 2014

Published Opinions:

1) U.S. v. Segovia, No. 12-41424 - Criminal Law/Sentencing - Segovia was sentenced to 51 months of imprisonment for being an alien unlawfully in the U.S. after having been previously deported.  The sentence included a sixteen-level enhancement for a prior conviction for a crime of violence.  (Segovia had been previously deported after a Maryland conviction for conspiracy to commit robbery with a dangerous and deadly weapon.)  Relying on Application Note 5 to the Sentencing Guidelines --- which states that conspiracy to commit a crime of violence is also a crime of violence --- the court rejected Segovia's argument that the Maryland conspiracy conviction cannot support a crime-of-violence enhancement.  The court held that the enhancement applies even where an overt act in furtherance of a conspiracy is not a required element for conspiracy under applicable state law. 

Unpublished Dispositions:

1) La. Sportsmen Alliance, LLC v. Vilsack, No. 13-31260 - Constitutional Law/Standing - This case is a reminder of how easy it can be to establish standing and how easy it is to dismiss a case for lack of subject-matter jurisdiction when the plaintiff does not take those easy steps.  The plaintiff, an organization purporting to represent the interests of hunters to use dogs when hunting deer, challenged the U.S. Forest Service's decision to ban the use of dogs to hunt deer in Louisiana's Kisatchie National Forest.  In a long, published opinion, the district court held that the ban was not arbitrary and capricious under the APA.  In a short, unpublished disposition, the Fifth Circuit remanded the case with instructions to dismiss without prejudice for lack of standing.  The Fifth Circuit explained that the plaintiff "never alleged any specific facts showing a concrete injury to any of its members."  All that the plaintiff had to do was submit an affidavit from one of its members stating that he or she wants to hunt with dogs in the Kisatchie National Forest and now cannot do so.

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Quick Thoughts on this Morning’s Oral Argument in Whole Woman’s Health, et al. v. Lakey

By Razvan Ungureanu on September 12, 2014

This morning, the Fifth Circuit heard oral argument for over an hour and a half on the State’s emergency motion for stay in Whole Woman’s Health, et al. v. Lakey, the case challenging the constitutionality of two requirements in Texas’s recent abortion legislation.  A recording of the argument is available on the court’s website.  Below are some quick impressions.

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Posted In: Abortion , Constitutional Law

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Fifth Circuit to Hear Oral Argument in Abortion Case

By Razvan Ungureanu on September 11, 2014

Tomorrow at 10:00 a.m., the Fifth Circuit will hear oral argument in Whole Woman’s Health, et al v. Lakey, a case challenging the constitutionality of two provisions of Texas’s recent abortion legislation (House Bill 2): the admitting-privileges (AP) requirement and the ambulatory-surgical-center (ASC) requirement.  Under the first requirement, a physician performing an abortion in Texas must have hospital-admission privileges at a hospital within 30 miles of the abortion site.  Under the second requirement, an abortion facility must meet the regulatory standards, including construction standards, for ambulatory surgical centers.

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Posted In: Abortion , Constitutional Law

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Fifth Circuit Admonishes District Court Judge

By Craig Smyser on August 28, 2014

Rarely does the U.S. Court of Appeals for the Fifth Circuit admonish a federal judge for particular practices, at least in a published opinion, but then it is rare that a federal judge ignores explicit Fifth Circuit instructions regarding the appropriate standard to apply in a particular kind of a case.    Both those rare events occurred in McCorkle v. Metropolitan Life Insurance Co., No. 13-30745, an opinion issued on July 3, 2014. 

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Daily Round-Up (Aug. 27, 2014)

By Razvan Ungureanu on August 28, 2014

Published Opinions:

1) In re Heritage Consolidated, LLC, No. 13-10969 - Mineral Liens - The opinion explores contractors' and subcontractors' mineral liens under Texas statutory law.  The court explains that it is possible for a single laborer to be both a contractor and a subcontractor for work performed on a well, and thus to secure mineral liens against both contracting and non-contracting mineral interest owners: "For example, the owners may collectively enter into an agreement that makes one owner the well operator, and gives that owner-operator the power to contract with laborers.  The laborers would then be contractors with respect to the contracting owner-operator, but subcontractors with respect to the other owners."  At one point, the opinion cites Scalia and Garner's recent book, Reading Law: The Interpretation of Legal Texts.

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Daily Round-Up (Aug. 26, 2014)

By Razvan Ungureanu on August 27, 2014

Published opinions:

1) McClendon v. Springfield, No. 13-41030 - Bankruptcy - After a state trial court entered judgment in favor of Springfield for $341,000 on his defamation claim, McClendon filed for bankruptcy.  In the bankruptcy court, Springfield successfully sought to have the debt arising from the defamation judgment declared nondischargeable under 11 U.S.C. § 526(a)(6), which provides that debts for "willful and malicious injury by the debtor to another" are nondischargeable.  Affirming, the Fifth Circuit rejected McClendon's argument that he made the defamatory statements under an honest but mistaken belief that they were true and held that the bankruptcy court was free to disregard his testimony.

2) U.S. v. Pringler, No. 12-10029 - Criminal Law - After Pringler met a sixteen-years-old girl who had ran away from foster care, he introduced her to his girlfriend, who had been prostituting herself and advertising her services on Backpage.  Soon thereafter, the girlfriend introduced the minor to her trade.  After undercover agents responded to online ads and arranged to have sex with the two in a motel room paid for by Pringler, Pringler was arrested and eventually convicted of aiding and abetting sex trafficking of a minor.  On appeal, Pringler challenged the sufficiency of the evidence, his trial counsel's effectiveness, and the application of two Guidelines enhancements.  The interesting part of the opinion discusses the application of the Guidelines' computer use enhancement.  Under the Guideline language, Pringler qualified for the enhancement.  Under the Guideline commentary, Pringler did not.  Finding that the commentary was inconsistent with the plain language of the Guideline, the Fifth Circuit held that the district court correctly followed the plain language of the Guideline alone. 

3) Davis v. Fort Bend Cnty., No 13-20610 - Religious Discrimination/Title VII - A very interesting opinion exploring the evidence required to survive summary judgment on the bone fide religious belief element of a plaintiff's prima facie religious discrimination case.  The majority opinion holds that, under Supreme Court precedent, the inquiry focuses on the plaintiff's motivation and asks whether the plaintiff's belief is, "in his own scheme of things," religious.  The majority concludes that Davis presented enough evidence to survive summary judgment through her deposition testimony that she "needed" to attend a particular church event as a religious matter.  The dissent argues that the proper inquiry focuses not only on sincerity, but also on whether a particular belief is in fact religious in nature.  The dissent concludes Davis presented insufficient evidence to establish that she "needed" to attend the church event as a religious matter as opposed to a personal preference.

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Daily Round-Up (Aug. 8, 2014)

By Razvan Ungureanu on August 08, 2014

Published Opinions:

1) Brown v. Stephens, No. 13-70030 - Death Penalty/Clemency - Addressing an issue of first impression, the Fifth Circuit held that a petitioner who requests funding for investigative services in the clemency context must show that the requested services are reasonably necessary to provide the Governor and the Board of Pardones and Paroles the information they need to determine whether to exercise their discretion to extend grace so as to prevent a miscarriage of justice.

2) Reece v. U.S. Bank Nat'l Ass'n, No. 14-10176 - Mortgage Foreclosure - Reece is one of the numerous lawsuits currently in federal court arising out of a mortgage-foreclosure sale and forcible eviction.  Affirming the district court's Rule 12(b)(6) dismissal, the Fifth Circuit held that the Plaintiff failed to state plausible claims for fraud, placing a fraudulent lien on real property under the Texas Civil Practice and Remedies Code, and wrongful foreclosure based on MERS's alleged inability to assign a deed of trust.

3) Garcia v. Holder, No. 13-60381 - Immigration - The court reversed a BIA decision denying CAT protection and remanded to the BIA for further consideration.  To succeed on his CAT claim, the petition had to show that it is more likely than not that he would be tortured upon return to his homeland and sufficient state action involved in that torture.  The BIA denied relief because it was not clear that the men who threatened petitioner were actual police officers.  The court explained that the BIA adopted an unnecessarily narrow view of state action becuase it did not consider the alternative view, supported by record evidence, that those men "may have received their information about [petitioner] from othe government officials acting in their official capacities," which would qualify as sufficient state action.

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Daily Round-Up (Aug. 7, 2014)

By Razvan Ungureanu on August 07, 2014

Published Opinions:

1) Thompson v. Mercer, No. 13-10773 - Section 1983/Constitutional Law/Excessive Force - Thompson is an excessive-force Section 1983 action involving a two-hour high speed car chase that ended when a sheriff, who "laid in wait with a semi-automatic 'AR-15' assault rifle on . . . a rural road," fired 12 shots at the moving vehicle and killed the driver.  The parents of the driver sued the sheriff and the county, alleging that the sheriff used excessive force in seizing the driver.  Most of the car chase, including its conclusion, was filmed.  Holding that the sheriff was entitled to qualified immunity, the district court granted summary judgment to the defendants.  The Fifth Circuit affirmed.  Applying Scott v. Harris --- the seminal Supreme Court case analyzing excessive force claims in the context of videotaped, high-speed car chases --- the Fifth Circuit held that the extreme danger to human life posed by the driver's reckless vehicular flight justified the use of deadly force.  The Fifth Circuit chose to resolve the appeal by focusing on the first prong of the qualified immunity analysis (the absence of a constitutional violation) rather than on the second and more commonly used prong (whether the sheriff violated a clearly established constitutional right).

2) Nobach v. Woodland Vill. Nursing Ctr., No. 13-60378 - Title VII/Religious Discrimination - The Fifth Circuit reverses a jury verdict in favor of the plaintiff on her religious discrimination claim.  The plaintiff refused to read the Rosary to a nursing center resident and told the nurse who was with her at the time that reading the Rosary was against her religion.  After the resident complained, the plaintiff's supervisor terminated her.  After the supervisor told the plaintiff that she was fired for refusing to read the Rosary, the plaintiff told the supervisor that reading the Rosary was against her religion.  The supervisor replied she did not care, and that refusing to read the Rosary was an act of insubordination.  The jury found that the defendant violated Title VII by discharging the plaintiff because of her religious beliefs.  Reversing, the Fifth Circuit held that the district court should have entered judgment as a matter of law for the defendant because there was no evidence that the defendant knew of the plaintiff's religious beliefs before the plaintiff was fired.  The fact that the plaintiff's supervisor said she did not care about the plaintiff's religious beliefs when the plaintiff was discharged was of no consequence --- the supervisor made this statement after she told the plaintiff she was fired and there was no evidence that the supervisor knew about the plaintiff's religious beliefs before she decided to fire her.

3) Nationwide Mutual Ins. Co. v. Baptist, No. 13-60726 - Insurance Law - Under Mississippi law, an insurer may rescind a homeowners insurance policy and recover claim payments when the former owners of the home renewed the policy after losing title in a foreclosure sale and the renewals misrepresented that they still owned the property.

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Daily Round-Up (Aug. 1, 2014)

By Razvan Ungureanu on August 01, 2014

Published Opinions:

1) In a death penalty appeal, Williams v. Stephens, the Fifth Circuit affirmed the district court's denial of habeas relief.  The Fifth Circuit rejected petitioner's arguments that trial counsel was ineffective and that he was intellectually disabled under Atkins.  

2) U.S. v. Massi explores the relationship between the fruits-of-the-poisonous-tree doctrine and the Leon exception to the exclusionary rule.  The defendant, whom federal agents suspected was trafficking narcotics, was detained at an airport inside his airplane while the agents conducted a Terry stop and then spent approximately 5 hours preparing an affidavit and obtaining a search warrant from a magistrate to search the plane.  Both the majority and the dissent agree that the inial Terry stop became an arrest, and that the agents lacked probable cause for the arrest.  Nevertheless, the majority held that the evidence uncovered as a result of the search warrant that followed the unconstitutional arrest should not be suppressed.  The majority explained that the prolonged detention was "close enough to the line of validity" that an objectively reasonable officer preparing the affidavit for the search warrant would belive in the validity of the prior conduct.

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Daily Round-Up (July 31, 2014)

By Razvan Ungureanu on August 01, 2014

Published Opinions:

1) July ends with a good day for tax enthusiasts.  Salty Brine I, Ltd. v. U.S. addresses whether the transfer of certain overriding royalty interests by a partnership was an invalid attempt to assign income that should have been taxed to the partnership.  The particular scheme at issue involved the partnership carving out royalty interests from its working interests in a number of oil and gas properties and then transferring those royalty interests, through a series of intermediaries controlled by the partnership's owners, into segregated accounts associated with the owners' life insurance policies.  The Fiftch Circuit held that, under the assignment of income doctrine, the assignment of royalty interests by the partnership was taxable to the partnership.  (Under the assignment of income doctrine, a person who earns income cannot avoid income tax by assigning that income to another person.) The court also held that the royalty interest assignment scheme violated the economic substance doctrine, and that the royalty interests were properly taxed to the partnership for that additional reason.  (Under the economic substance doctrine, taxpayers cannot reap tax benefits from transactions lacking in economic reality.)

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Fifth Circuit Panel Splits on Whether It Has Jurisdiction to Review a Remand Order to an Arbitration Panel for Clarification of the Arbitral Award

By Razvan Ungureanu on July 25, 2014

Section 16 of the Federal Arbitration Act allows an appeal from, among other things, “a final decision with respect to an arbitration that is the subject of [the FAA].” Does this provision allow an appeal from an order and accompanying final judgment that do not vacate an arbitration award, but remand the case to the arbitration panel for clarification or further consideration of the award? In other words, are such remand orders and final judgments “final decisions” within the meaning of Section 16 of the FAA?

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