An insured disputed whether he had claimed ownership of a particular piece of property in a conversation with an insurance agent, Specifically, while testifying in his deposition that he did not remember the specific questions asked, the conversation did not last very long – implying that the agent simply assumed his ownership of the propertuy. “[H]owever,  n both his answer to State Farm’s complaint and his response to State Farm’s request for admission, [the insured] admitted to telling the agent who took his insurance application that he was the owner of the property and to stating as much in his application. The district court concluded that these facts were judicially admitted, and therefore rejected Appellants’ argument as an impermissible ‘attempt to create a dispute around a material fact already admitted.’” State Farm v. Flowers, No. 16-60310 (April 26, 2017).

In a break from the usual topics about federal procedure, today’s post about the case of Foster v. Woods provides some practical advice for private investigators. Foster, a licensed private investigator, tailed a car into a school parking lot and observed it for a short period before realizing that the driver was his target’s teenaged son. Unfortunately for Foster, the son observed him and told a friend, whose father was the local sheriff. After Foster left the school grounds the sheriff arrested him and unsuccessfully attempted to prosecute him for having brought a firearm onto school grounds (although Foster held a concealed-carry permit, and neither he nor the firearm left the car while in the school parking lot. Foster sued for wrongful arrest; the Fifth Circuit affirmed summary judgment for the sheriff: “Relevant here, Woods knew that Foster was not a student, that he followed a student’s vehicle into a student parking lot posted with a ‘no trespassing” sign, and that Foster remained in the lot for some time as students were arriving for school. . . . Given the facts known to Woods, he had knowledge that would warrant a reasonable officer to believe that Foster violated the trespass statute.” Advice – use caution when entering private property.

In DeLeon v. Abbott, the Fifth Circuit affirmed an award of $585,470.30 in attorneys’ fees and $20,202.90 in costs arising from the Texas counterpart to Obergefell v. Hodges, 135 S. Ct. 2584 (2015). The panel majority observed that “the essential goal in shifting fees (to either party) is to do rough justice,” and that as a result, “[w]e can hardly think of a sphere of judicial decisionmaking in which appellate micromanagement has less to recommend it.” A dissent, observing that “deference is a blank check,” approved of the bulk of the award but took issue with it as to time spent on (a) an unsuccessful third-party motion to intervene; (b) interacting with the media; and (c) coordinating with supportin amici. No. 15-51241 (April 18, 2017, unpublished).

The case of Decatur Hospital Authority v. Aetna Health Inc. involved a remand order, granted on the basis of timelieness (a ruling not ordinarily appealable because of 28 USC § 1447(c)), but where the notice of removal referred to the federal officer removal statute (made reviewable by the less-well-known § 1447(d)). The Fifth Circuit concluded that its review involved “[n]ot particular reasons for an order, but the order itself,” and went to affirm the remand and a related fee award, finding that the defendant did not learn new facts from an interrogatory answer that were not also contained in the original petition. No. 16-10313 (April 18, 2017).

Oubre, struck by an errant forklift, sued Schlumberger for his injuries. To avoid a limitations problem, he cited a choice-of-law provision in the Master Service Agreement between his employer and Schlumberger. The provision ultimately did not help him, and the Fifth Circuit observed that it “does not pose a renvoi issue.” Oubre v. Schlumberger, Ltd., No. 16-41446 (April 5, 2017, unpublished). That term, accurate although infrequently-used, is defined by Black’s as “[t]he doctrine under which a court, in resorting to foreign law, also adopts the foreign law’s conflict-of-laws principles, which may in turn refer the court back to the law of the forum.”

At oral argument, the appellant in a technical dispute about the appointment of arbitrators “argued for the first time that ‘if maritime jurisdiction applies, then . . . there is appellate jurisdiction over the appeal.'” The Fifth Circuit observed: “We do not usually allow parties to raise a new argument for the first time at oral argument. . . . Of course, an argument that this court lacks jurisdiction cannot be waived, but here the argument is that the court has jurisdiction, a matter the appellant is required to prove.” Bordelon Marine, LLC v. Bibby Subsea ROV, LLC, No. 16-30847 (April 14, 2017, unpublished).

Streamline Production Systems v. Streamline Manufacturing involved trademark litigation between businesses with similar names. The Fifth Circuit affirmed theury’s findings about the distinctiveness of the plaintiff’s mark and the likelihood of confusion, observing that the various factors did not all point the same way but “there is not a complete absence of evidence” to support what the jury found. The court reversed on remedy, however, finding that the “reasonable royalty” damages went beyond the scope of the infringement, and that the award of unjust enrichment was not supported by evidence of lost profits or willful action by the defendant. No. 16-20046 (revised April 14, 2017).

Sun-Tzu famously counseled, “[a]ll armies prefer high ground to low and sunny places to dark.” The defendant airline in Conservation Force v. Delta Air Lines artfully changed the ground for conflict in a case about its policies toward shipments involving big game hunts. The plaintiff complained that the airlines’ policy of not accepting the shipment of lion, leopard, elephant, rhino and buffalo hunting trophies violated the airlines’ legal duty to treat all shippers equally. The Fifth Circuit agreed with the district court’s conclusion “that, despite a duty to treat all shippers equally, a common carrier does not have to treat all cargo equally.” No. 16-11062 (March 20, 2017, unpublished).

In Smitherman v. Bayview Loan Servicing LLC, the Fifth Circuit order a limited remand to the district court, so that court could supplement the record about the defendant’s citizenship and then make findings. The district court, however, went on to vacate the judgment it had entered previously and remand the case to state court. The Fifth Circuit observed: “Because the district court lacked the authority to do so, we construe it[]s order to be an indicative ruling made pursuant to Federal Rule of Civil Procedure 62.1(a)(2). Accordingly, we REMAND this case to the district court and DISMISS the appeal as moot and relinquish jurisdiction pursuant to Federal Rule of Appellate Procedure 12.1(b).” No. 16-20328 (March 29, 2017, unpublished).

“[W]here a plaintiff seeks to rely on epidemiological evidence, Texas law requires that the stifues show a statistically significant doubling of the risk of developing their alleged inuiries. . . . The studies relied on by the Plaintiffs and their experts do not . . . One of these studies did not quantify the risk of developing Plaintiffs’ chromuim-related-acute-irritation injuries at all and the other study did not find a doubling of the risk.” McManaway v. KBR, Inc., No. 15-20641 (March 27, 2017) (applying Merck & Co. v. Garza, 347 S.W.3d 256 (Tex. 2011)).

In Ocwen Loan Servicing LLC v. Berry, a dispute about a home equity loan, the Fifth Circuit confirmed that “we now must follow the Texas Supreme Court’s holding in [Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542 (Tex. 2016)] that no statute of limitations applies to a borrower’s allegations of violations of section 50(a)(6) of the Texas Constitution in a quiet title action, rather than our prior holding in [Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667 (5th Cir. 2013)].” In so doing, the Court reminded that “the issues-not-briefed-are-waived rule is a prudential construct that requires the exercise of discretion,” and addressed the applicability of Wood notwithstanding the appellant not discussing the case in its opening brief, noting that the underlying issues had been briefed, and that the Court had received supplemental briefing on the pure question of law presented about the application of Wood. No. 16-10604 (March 29, 2017).

Moore sued the Governor of Mississippi, alleging that the presence of the Confederate battle flag in the Mississippi state flag (right) violated Moore’s rights under the Equal Protection Clause. The Fifth Circuit affirmed dismissal on standing grounds, distinguishing cases involving the First Amendment’s Establishment Clause because of the distinct injuries addressed by the two Constitutional provisions. The Court concluded: “The assumption that if [Plainitff] had no standing to sue, no one would have standing, is not a reason to find standing.” (citations omitted). Moore v. Bryant, No. 16-60616 (March 31, 2017).

Plaintiffs alleged that a terrible crime would have been averted with a faster response to a 9-1-1 call. The Fifth Circuit, applying City of Dallas v. Sanchez, 494 S.W.3d 722 (Tex. 2016), found a lack of proximate cause (and thus, immunity applied) because “plaintiffs have not plausibly alleged that any of the intervening parties would have acted differently,” including the call center operator and emergency personnel on the scene. The allegations on the general subject of response time were too speculative to satisfy Twombly (footnote 4). And “‘even if the brief delay in relaying Cook’s location ‘contributed to circumstances that delayed potentially life-saving assistance, the [delay] was too attenuated from the cause of [Cook’s] death . . . to be a proximate cause.” Cook v. City of Dallas, No. 16-10105 (March 29, 2017).