The plaintiff in Lozano v. Bosdet did not serve a British defendant within the 120 days of Fed. R. Civ. P. 4, or a later extension by the district court.  No. 11-60737 (Aug. 31, 2012).  The Fifth Circuit, noting “that statutory interpretation is a ‘holistic endeavor,'” applied a “flexible due-diligence” standard to find that dismissal was not warranted, especially since a refiled suit would likely be time-barred.  Id. at 7, 9.  The Court aligned itself with the Seventh Circuit and rejected different readings of Rule 4(f) in the international context by the Ninth Circuit (unlimited time) and Second Circuit (120-day limit excused only if service is attempted in the foreign country), noting that it did not wish to require “immediate resort to the Hague Convention or other international methods.”  Id. at 5-6.

In National Union v. American Eurocopter, a contribution suit arising from settlement of claims about a helicopter crash, a Hawaii district court found no personal jurisdiction and transferred venue to Texas.  No. 11-10798 (Aug. 27, 2012).  The appellant challenged that ruling, and the Fifth Circuit held that it lacked jurisdiction over that issue.  Id at 4 (quoting 28 U.S.C. § 1294, defining appellate jurisdiction as reaching “appeals . . . [f]rom a district court of the United States to the court of appeals for the circuit embracing the district”).  On the merits, the Court affirmed a dispositive choice-of-law ruling for Texas law, noting a Texas choice-of-law provision in a relevant contract, a rough balance between the place of the accident (Hawaii) and the defendants’ headquarters (Texas), and the relatively weak interest of an out-of-state insurer.  Id. at 5-7 (noting Beech Aircraft v. Jinkins,  739 S.W.2d 19 (Tex. 1987)).

Vanderbilt Mortgage v. Flores, arising from a collection suit about the financing for a mobile home, involved a substantial recovery on counterclaims for wrongful debt collection and filing of a fraudulent lien.  692 F.3d 357 (5th Cir. 2012).  The Fifth Circuit affirmed in part and reversed in part, finding: (1) the release of the debtors unambiguously reached only the lien and not the underlying debt (thereby mooting some counterclaims); (2) property owners in the position of these debtors did not have an ongoing duty, for limitations purposes, to check deed records; (3) Tex. Civ. Prac. & Rem Code chapter 12, about fraudulent liens, does not require actual damages before penalties may be awarded; (4) Chapter 12 does not violate the Excessive Fines Clause; and (5) personal jurisdiction over one defendant was appropriate, particularly given the confusion in its own records about its activities.

In the unpublished case of Blake Box v. Dallas Mexican Consulate General, the Fifth Circuit reversed a dismissal for lack of jurisdiction under the Foreign  Sovereign Immunities Act  because discovery was not allowed on whether a Mexican government representative had actual authority.  No. 11-10126 (Aug. 21, 2012).  Acknowledging that the FSIA seeks to reduce litigation involving sovereigns, the Court found that authority “is a discrete issue conducive to limited discovery [and] the relevant documents reside exclusively with the defendant . . . ”  Id. at 7-8.  The analysis and cited cases are of general interest in other jurisdictional discovery situations.  Disclosure: LTPC colleagues Jason Dennis and Sam Hardy represented the successful appellant.

Appellate jurisdiction over bankruptcy matters can become murky (as discussed in this 2009 CLE paper) because finality is not always obvious.  In an appeal from an individual’s  bankruptcy case, the Court reminded that the test is whether a district court order is a “final determination of the rights of the parties to secure the relief they seek” or a “final disposition ‘of a discrete dispute within the larger bankruptcy case.'”  Sikes v. Crager, No. 11-30982 at 3 (Aug. 16, 2012) (quoting Bartee v. Tara Colony Homeowners Ass’n, 212 F.3d 277 (5th Cir. 2000).   The district court’s finding that the debtor’s Chapter 13 plan was not made in good faith “involve[d] a discrete dispute within her case” and created jurisdiction.

The plaintiff in Choice Inc. of Texas v. Greenstein challenged a Louisiana regulation about the licensing of abortion facilities.  No. 11-30296 (Aug. 17, 2012).  The majority found the suit was not ripe because the plaintiff did not show “that hardship will result if court consideration is withheld at this time.”  Id. at 7.  A forceful dissent faulted the majority for a “procrustean ripeness analysis.”  Id. at 32.   While much of the back-and-forth involves matters unique to abortion litigation, the case presents a thorough review of general  principles about ripeness in the Fifth Circuit at present.

Roman v. Western Manufacturing examined a $1mm-plus verdict about severe injuries from a pump malfunction.  No. 10-31271 (Aug. 17, 2012).  After review of the standards, id. at 5 (“It is not our charge to decide which side has the more persuasive case.”), the Court found that two qualified mechanical engineers met Daubert even though they lacked extensive experience with “stucco pumps,” declining to “make expert certification decisions a battle of labels.”  Id. at 7.  The Court also rejected technical challenges to the type of pump reviewed by the experts and the plausibility of their factual assumptions about its operation, id. at 13 (“There was certainly contrary evidence, but that was for jurors to weigh.”), as well as sufficiency challenges about the inferences made by the jury.  Id. at 16-17.  Additional challenges were found waived under Fed. R. Civ. P. 50.  This opinion is the latest in a series of thoughtful cases about Daubert after the 2009 decision in Huss v. Gayden.

Globeranger Corp. v. Software AG involved Texas state law claims about the development of a radio frequency identification system.   No. 11-10939 (Aug. 17, 2012).  The defendants removed and obtained dismissal on the grounds of Copyright Act preemption.  The Fifth Circuit agreed that section 301(a) of the Act creates complete preemption, and on the applicable test: “whether [the claim] falls ‘within the subject matter of copyright'” and whether it “protects rights that are ‘equivalent'” to those of a copyright.  Id. at 6 (citing Carson v. Dynegy, 344 F.3d 446, 456 (5th Cir. 2003)).  After through review of prior cases, the Court held that the conversion claim was likely preempted (thereby maintaining federal jurisdiction), but that the general basis for the claims included business practices excluded from copyright protection, making dismissal at the Rule 12 stage inappropriate.  Id. at 10-12.

Finding that the EPA’s action was “[s]ixteen years tardy” and “without basis in the Clean Air Act or its implementing regulations,” the Court vacated an EPA rule that would have voided roughly 140 permits for various pollution-emitting businesses in Texas.  State of Texas v. EPA, No. 10-60614 (Aug. 13, 2012).

In Ahmad v. Old Republic National Title Insurance, the Court reversed a grant of class certification in a case about title insurance premiums.  No. 11-10695 (Aug. 13, 2012).  The Court relied on Benavides v. Chicago Title, 636 F.3d 699 (5th Cir. 2011), which declined to certify a similar class of title insurance buyers because “[t]he resulting trial would require the factfinder to determine whether each individual qualified for the discount based on the evidence in his or her file.”  Op. at 9.   The Court declined to distinguish Benavides even though a particular discount was mandatory once “the requirements of R-8 [a Texas Insurance Code provision]” were satisfied, because each plaintiff would present unique facts about those requirements.  Id. at 10-11.  Therefore, the class did not meet the commonality requirement of Fed. R. Civ. P. 23(a)(2).

The bankruptcy court in CRG Partners v. Neary awarded a $1 million fee enhancement for  a “rare and exceptional” result in the Pilgrim’s Pride bankruptcy.  No. 11-10774 (Aug. 10, 2012).  The Trustee objected, arguing that Perdue v. Kenny A. ex rel Winn, 130 S. Ct. 1662 (2010) — a case rejecting a comparable enhancement under 42 U.S.C. § 1988 — impliedly overruled older Fifth Circuit authority that allowed them in bankruptcy.  The Court carefully reviewed Perdue under the “rule of orderliness,” a set of principles that guide a panel’s fidelity to older panel opinions, and found Perdue distinguishable factually and for policy reasons.  Op. at 22-25.  The Court reminded that it had recently reached a similar conclusion as to the effect of Stern v. Marshall, 131 S. Ct. 2594 (2011), on magistrate jurisdiction.

An unpublished opinion affirmed a ruling that an SEC suit about backdating was barred by limitations and the discovery rule did not apply.  SEC v. Microtune, No. 11-10594 (Aug. 7, 2012).  An interesting analysis of the opinion and its potential broader significance appears in the August 11, 2012 Texas LawBook.

Echoing its recent action in Sawyer v. du Pont, the Fifth Circuit withdrew its previous opinion in Ewing Construction v. Amerisure Insurance and certified two questions to the Texas Supreme Court about the scope of the “contractual liability” exclusion in a construction contractor’s CGL policy.  No. 11-40512 (Aug. 8, 2012).

Lowry Development LLC v. Groves & Assocs. Insurance involved a real estate developer who sued its insurer about coverage for wind damage, and alternatively, its insurance agent for negligence.  No. 11-60670 (Aug. 3, 2012).  The district court granted summary judgment for the developer against the insurer (thereby mooting the claim against the agent), which the Fifth Circuit reversed.  Id. at 3.   The developer then sought to reinstate its claim against the agent.  The Court found that the agent’s dismissal was “based on an earlier judgment that has been reversed or vacated” and thus came within Fed. R. Civ. P. 60(b)(5).  The agent argued that the insurer should have taken a protective appeal at the time of the original dismissal, but the Court, “[a]cknowledging that [plaintiff’s Rule 60(b) motion looks like the protective appeal it failed to file,” found no abuse of discretion in the district court’s decision to grant the motion.  Id. at 10.

“Does the failure to give notice to an excess carrier until after an adverse jury verdict constitute evidence of prejudice that forfeits coverage?”  Berkley Regional Ins. Co. v. Philadelphia Indemnity Ins. Co., 690 F.3d 342 (5th Cir. 2012).  The Court thoroughly reviewed Texas law about untimely claim notice, observing that it can void coverage if the insurer is prejudiced, but “[d]efining the contours of prejudice from the breach of a notice requirement . . . is not easy.”  It applied that general principle to excess carriers, and found that this carrier had raised fact issues about prejudice from untimely notice (here, after an adverse jury verdict), as it was unable to investigate the matter or participate in mediation: “The cows had long since left the barn when [the carrier] was invited to close the barn door.”

The case of Little v. Shell Exploration presented an issue of first impression — whether a federal employee, even one whose job is to investigate fraud, may bring a qui tam action under the False Claims Act.  690 F.3d 282 (5th Cir. 2012).  After review of the statutory text, the Court sided with a majority of other Circuits that have addressed the issue and concluded that one may.  The Court acknowledged the practical issue of “how to ensure employee fidelity to agency enforcement priorities in the face of personal monetary incentives,” but concluded that the government could address that issue with personnel guidelines and with its power to intervene and dismiss actions.  The Court remanded for consideration of whether the “public disclosure” and “original source” aspects of the Act barred the specific claims raised by these relators — matters that could limit the scope of the first holding.

City of New Orleans v. BellSouth Telecommunications presented a long-simmering dispute, stretching back to an 1879 ordinance, about BellSouth’s use of public rights-of-way in New Orleans.  Nos. 11-30607 and 11-31058 (July 31, 2012).  The district court awarded $1.5 million in unjust enrichment related to BellSouth’s use after 2006.  The Fifth Circuit reversed, finding that the parties’ complicated relationship gave BellSouth a “‘justification in . . . contract’ for any enrichment it may be enjoying . . . ,” which defeated an unjust enrichment claim under Louisiana law.   Id. at 21, 25 (citing SMP Sales Management v. Fleet Credit Corp., 960 F.2d 557, 560 (5th Cir. 1992)).

Chevron sued Aker Maritime and Oceaneering International in connection with bolt failures on an offshore drilling rig.  Chevron USA v. Aker Maritime Inc., No. 11-30369 (July 31, 2012).  Chevron recovered a significant damage award against both defendants, and Aker sought indemnity from Oceaneering.  Id. at 4.  To recover under the indemnity provision, Aker had to establish that it was an agent of Chevron with respect to Oceaneering’s work.  The Court concluded that Aker was an agent with respect to the specific activity of procurement, which it found “extends beyond Aker’s mere ordering and includes the receipt of the bolts.”  Id. at 8.