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The Fifth Circuit granted TKM's, the intervenor plaintiff, motion for panel rehearing and denied the motion for rehearing en banc. The court withdrew the prior opinion and substituted the following opinion. Daewoo filed suit against AMT, seeking an order compelling AMT to arbitrate and an attachment of pig iron owned by AMT. TKM attached the same pig iron in Louisiana state court and then intervened in the federal suit. The court held that it had subject matter jurisdiction under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, because Daewoo's suit related to a covered arbitration agreement. In this case, the parties dispute whether Louisiana's non-resident attachment statute allowed for attachment in aid of arbitration. The court declined to adopt a categorical approach to this issue and held that, because Louisiana law allowed for attachment in aid of yet-to-be-brought actions, non-resident attachment may be available in aid of arbitration when an eventual confirmation suit was contemplated. The court affirmed the district court's judgment, nonetheless, because Daewoo did not strictly comply with the attachment statute's procedural requirements. View "Stemcor USA Inc. v. Cia Siderurgica do Para Cosipar" on Justia Law

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The Fifth Circuit vacated the district court's grant of Texas's motion for summary judgment on the basis that petitioner's habeas corpus petition was time-barred. Petitioner argued, and the state conceded, that his 28 U.S.C. 2254 petition was timely because his state conviction became final on July 16, 2014—90 days after the TCCA refused his petition for discretionary review on April 16, 2014 and his time to file a petition for a writ of certiorari in the United States Supreme Court expired. The court held that, because petitioner filed the application on November 12, 2015 -- before the November 25, 2015 deadline -- his section 2254 application was timely. View "Erickson v. Davis" on Justia Law

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The Fifth Circuit reversed the district court's denial of qualified immunity to defendants in an action brought by plaintiff, an African-American man, who claimed violation of his constitutional right to equal protection of the law. Specifically, plaintiff alleged that defendants, each mayors of the City of Naples at times when plaintiff was employed by the city, paid two specific white employees at a higher rate than he was paid. The court held that plaintiff failed to show a violation of his constitutional rights where there was no genuine dispute that plaintiff's job was not nearly identical to that of his proffered comparators. Therefore, the court remanded with instructions to enter judgment for defendants. View "Mitchell v. Mills" on Justia Law

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The Fifth Circuit denied In-N-Out's petition for review of the Board's order finding that the company's rule prohibiting employees from wearing any type of pin or stickers on their uniforms was unlawful under the National Labor Relations Act. In this case, employees of the In-N-Out Burger in Austin wore buttons demonstrating solidarity with the "Fight for $15" campaign and managers responded by invoking the company rule. The court held that, by prohibiting employees from wearing any type of pin or stickers, In-N-Out's rule restricted its employees' section 7 rights and was therefore presumptively unlawful. The court upheld the Board's reasonable conclusion that In-N-Out failed to establish a special circumstances defense based on its public image interest. Finally, the court held that the company violated section 8(a)(1) by maintaining and enforcing the rule and by instructing an employee to remove his button, and when it responded to an employee's question about wearing the button by stating that the button was not part of the uniform. Accordingly, the court granted the Board's cross-application for enforcement. View "In-N-Out Burger, Inc. v. NLRB" on Justia Law

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The Corps and Bayou Bridge appealed the district court's grant of a preliminary injunction preventing Bayou Bridge from constructing a pipeline in part through the Atchafalaya Basin of southern Louisiana. The Fifth Circuit vacated the preliminary injunction, holding that the district court misperceived the applicable regulations, and the Corps' analysis, properly understood, vindicated its decision that an environmental assessment sufficed under these circumstances. In this case, the environmental assessments concerning the permit did not exhibit the Supreme Court's criteria for an arbitrary and capricious decision. Furthermore, the district court abused its discretion by misapplying applicable legal principles and by inadvertently but critically overlooking the Louisiana Wetland Rapid Assessment Method. Accordingly, the court remanded for further proceedings. View "Atchafalaya Basinkeeper v. U.S. Army Corps" on Justia Law

Posted in: Environmental Law

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The Fifth Circuit affirmed the district court's dismissal of plaintiff's accounting malpractice claims against GT as premature. The court held that plaintiffs' claims against GT were premature because they did not submit them before an accountant review panel prior to filing this lawsuit. The court also held that plaintiffs' claims against GT were time-barred under the relevant preemptive period. Therefore, all of plaintiffs' accounting malpractice claims must be dismissed with prejudice because they were filed outside the relevant preemptive period and thus were extinguished. View "Firefighters' Retirement System v. Grant Thornton, LLP" on Justia Law

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The Fifth Circuit reversed the district court's order dismissing an indictment with prejudice. The indictment charged defendant, the owner and operator of an adoption agency, for fraud. The court held that there was no Brady violation where the evidence clearly was not suppressed; discovery violations did not warrant imposed sanctions where the district court failed to impose the least sever sanction and the government's violations of the discovery deadlines did not warrant dismissing the indictment with prejudice; and defendant failed to demonstrate prejudice sufficient to support the district court's severe sanction and thus the district court abused its discretion when it dismissed defendant's indictment with prejudice. The court remanded for reassignment of the case to a different district judge. View "United States v. Swenson" on Justia Law

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The Fifth Circuit affirmed Defendants Ledezma and Cepeda's convictions of interstate stalking and conspiracy to commit murder for hire. The court held that the district court did not abuse its discretion in denying Cepeda's motions to sever where both defendants were charged together, for the very same crime, committed at the same time. The court also held that Ledezma's evidentiary challenges were both meritless and insufficiently developed. View "United States v. Ledezma-Cepeda" on Justia Law

Posted in: Criminal Law

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Plaintiff, a nursing assistant, filed suit under Title VII against her employer after she was terminated in part for refusing to care for an aggressive patient in a nursing home. At issue on appeal were plaintiff's claims of hostile work environment and retaliation. The Fifth Circuit reversed the district court's grant of summary judgment for the employer and held that the hostile work environment claim could proceed to trial where a jury could conclude that an objectively reasonable caregiver would not expect a patient to grope her daily, injure her so badly she could not work for three months, and have her complaints met with laughter and dismissal by the administration. Furthermore, the employer knew or should have known of the hostile work environment and should have taken reasonable measures to try to abate it. The court also held that the retaliation claim could proceed to trial where there was a triable issue on the "but for" causation element. Therefore, the court remanded for further proceedings. View "Gardner v. CLC of Pascagoula, LLC" on Justia Law

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The Fifth Circuit reversed the district court's grant of summary judgment in favor of a general contractor in an action by the subcontractor, alleging that the general contractor fraudulently induced it into entering a settlement agreement that released the general contractor from any claims for liability under the Miller Act. In this case, Fisk was the subcontractor and DQSI was the general contractor on a post-Hurricane Katrina federal construction project. The court held that there was a genuine issue of material fact as to whether Fisk justifiably relied on DQSI's representations about Fisk's Request for Equitable Adjustment at settlement, which was an element of Fisk's fraudulent-inducement. Therefore, the court remanded for further proceedings. View "Fisk Electric Co. v. DQSI, LLC" on Justia Law

Posted in: Construction Law