Take the Fifth: Oct. 2, 2020 opinions

  • Basic Capital Management, Inc. v. Dynex Capital, Inc., et al., 19-11272, appeal from N.D. Tex., designated for publication
    • King, J. (King, Stewart, Southwick), commercial, fraudulent transfer, alter ego, limitations, res judicata
    • Affirming 12(b)(6) dismissal on time-bar and res judicata grounds of plaintiffs’ complaint asserting claims fraudulent transfer and alter ego. Plaintiffs had gained a $55 million judgment against Dynex Commercial, Inc., in Texas state court, and after failing to collect on that judgment brought this suit on fraudulent transfer and alter ego grounds.
    • Court upheld taking judicial notice of state court proceedings and of Form 10-K filings.
    • Court upheld holding that fraudulent transfer claims were time-barred because more than one year prior to suit had passed since plaintiffs knew or should have known of the transfer and its fraudulent basis, based on the defendant’s 2002 10-K filings.
    • Court upheld holding that the alter ego claim was barred by res judicata under Texas law because the state court proceedings showed that the claim could have been raised in those underlying proceedings.
  • Robertson v. Intratek Computer, Inc., 19-50792, appeal from W.D. Tex., designated for publication
    • Oldham, J. (Wiener, Engelhardt, Oldham), whistleblower, arbitration
    • Affirming in part, reversing in part, and remanding; holding that District Court was correct in enforcing arbitration agreement despite the basis of the plaintiff’s claim in the federal whistleblower statute, but that District Court was in error in compelling arbitration of claims not covered by the arbitration agreement.
    • Court held as a matter of first impression in the Fifth Circuit that the federal whistleblower statute at 41 U.S.C. § 4712 is not a Congressional command contrary to the Federal Arbitration Act.
    • Court held that plaintiff’s claims against the employer company and its CEO were subject to the arbitration agreement in his employment contract, but that plaintiff’s claims against a VA official arising out of the same conduct were not.
  • Sayers Construction, LLC v. Timberline Construction, Inc., 19-51099, appeal from W.D. Tex., designated for publication
    • Oldham, J. (Smith, Clement, Oldham), arbitration, jurisdiction
    • Affirming Rule 12 dismissal of plaintiff’s claim to enforce in federal district court in Texas of an arbitration award entered in Florida. Court held that Texas courts (state nor federal) would not have personal jurisdiction over out-of-state defendants, so the Due Process Clause would prevent a court in Texas from enforcing the arbitration award against those out-of-state defendants.
  • Junco v. Barr, 19-60473, petition for review of decision of BIA, unpublished
    • per curiam (Clement, Higginson, Engelhardt), immigration
    • Denying petition for review of denial of asylum, withholding of removal, and protection under the Convention Against Torture. Finding that petitioner had failed to establish that his past persecution and well-founded fear of future persecution for his political opinions were founded on substantial evidence.
  • Nascimento v. Barr, 19-60506, petition for review of decision of BIA, unpublished
    • per curiam (Jolly, Elrod, Graves), immigration
    • Denying petition in part and dismissing in part, finding that BIA correctly found that petitioner’s motion for reconsideration of IJ ruling was untimely, and that further argument that petitioner should be relieved of burden to inform the agency of a change in address was a new argument on appeal.
  • Arizmendi-Burgos v. Cole, 20-30427, appeal from W.D. La., unpublished
    • per curiam (Higginbotham, Jones, Costa), TRO
    • Dismissing appeal from denial of temporary restraining order sought by plaintiff, an immigrant held in the custody of Bureau of Immigration and Customs Enforcement, as TRO decisions are not appealable.