August 12, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Schweizer v. Canon, Inc., 20-20071, appeal from S.D. Tex.
    • Higginson, J. (Wiener, Elrod, Higginson), False Claims Act, qui tam
    • Affirming summary judgment dismissal of plaintiff’s qui tam action under the False Claims Act alleging that Canon overcharged the U.S. for office equipment and provided non-compliant office products, holding that the claims were barred under the FCA’s public disclosure bar as being essentially the same as the plaintiff’s prior FCA suit that had been settled by the government years earlier.
    • The Court noted that the FCA’s government action bar and public disclosure bar “prevent rewarding parasitic suits which add nothing to the exposure of fraud.” (Internal quotation marks and citations omitted).
    • The Court first held that the government’s opposition to dismissal of the claims on the government action bar did not operate as an opposition to dismissal under the public disclosure bar. The Court then held that the public disclosure bar applied to plaintiff’s claims against Canon, which alleged the same breach of the same procurement contracts that had been at issue in a prior suit against a company that Canon subsequently acquired.
  • Di Angelo Publications, Inc. v. Kelley, 20-20523, appeal from S.D. Tex.
    • Higginbotham, J. (Higginbotham, Southwick, Engelhardt), jurisdiction
    • Vacating district court’s dismissal of plaintiff’s claim for lack of jurisdiction on finding that claims were governed only by Texas contract law, holding instead that claims arose under copyright law and federal question jurisdiction attached; and remanding for further proceedings.
    • Plaintiff brought declaratory judgment action against defendant, seeking a declaration that it owns copyrights in a book it collaborated on with the defendant. This DJ action was the flip-side of a suit brought by defendant against plaintiff in Texas state court alleging a breach of contract, which was based on the defendant’s claims that she had sole ownership of the book’s copyright.
    • The Court held, “Although Di Angelo muddles its complaint with contract allegations aplenty, it also alleges that it ‘acquired copyrights in the [B]ook’ by ‘writing, editing, planning and taking all photographs and making all illustrations, and planning, designing, and arranging the layout of the [B]ook.’ Di Angelo alleges that it made these same contributions both to the original Book and its update. Although the complaint uses neither the term ‘joint work’ nor ‘co-author,’ it is nigh impossible to read Di Angelo’s allegations that it ‘wrote the [B]ook . . . and illustrated the [B]ook’ while ‘communicating and/or collaborating with Kelley’ without concluding that Di Angelo is alleging, at minimum, co-authorship of the Book. Consequently, Di Angelo’s complaint appears to state a cognizable copyright claim.”
  • Randel v. Travelers Lloyds of Texas Insurance Co., 20-20567, appeal from S.D. Tex.
    • Costa, J. (Jones, Southwick, Costa), insurance
    • Affirming in part and reversing in part summary judgment dismissal of plaintiff’s claims against its homeowner’s insurer for failure to pay under the policy and for violation of the Texas Prompt Payment of Claims Act.
    • After a fire in plaintiffs’ home, its insurer promptly made payment on some of the amount claimed by plaintiffs, but not as to all. They agreed to an appraisal, and the appraised amount came out closer to the homeowners’ claimed amount than the insurer’s, and the insurer then paid the appraisal amount.
    • The Court held that the payment of the appraisal amount left the homeowner with no claim for breach of the policy or for bad faith, but that the homeowner still had a prompt-payment claim for the insurer’s failure to promptly pay the full amount that was ultimately deemed owed and that later was paid. “Payment and acceptance of an appraisal award means there is nothing left for a breach of contract claim seeking those same damages. But a plaintiff may still have a claim under the prompt payment law after it accepts an appraisal award. The Supreme Court of Texas recently held that even a preappraisal payment that seemed reasonable at the time does not bar a prompt-payment claim if it does not ‘roughly correspond’ to the amount ultimately owed. See Hinojos v. State Farm Lloyds, 619 S.W.3d 651, 658 (Tex. 2021).”

Unpublished

  • Fulton v. United Airlines, Inc., 19-20140, appeal from S.D. Tex.
    • per curiam (King, Elrod, Willett), personal injury
    • Affirming judgment on jury verdict in favor of plaintiff who was injured during a flight on defendant airlines. (Granting petition for panel rehearing, but issuing same disposition as earlier opinion).
  • U.S. v. Lewis, 19-20736, appeal from S.D. Tex.
    • per curiam (Jones, Duncan, Engelhardt), habeas corpus
    • Denying petitioner’s application for a COA from the district court’s denial of his § 2255 petition.
  • Thangavelrajah v. Garland, 19-60644, petition for review of BIA order
    • per curiam (Davis, Stewart, Dennis), immigration
    • Denying in part and dismissing in part Sri Lankan citizen’s petition for review of BIA order dismissing his appeal from the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Singh v. Garland, 19-60937, petition for review of BIA order
    • per curiam (Higginbotham, Southwick, Willett), immigration
    • Clarifying that stay pending decision by merits panel remains in place but has no bearing on the underlying merits determination pending before a different panel.
  • U.S. v. Baccus, 20-10748, appeal from N.D. Tex.
    • per curiam (Barksdale, Engelhardt, Oldham), criminal, sentencing
    • Affirming 235-month sentence on conviction of conspiracy to possess with intent to distribute methamphetamine.
  • U.S. v. Lindsay, 20-11052, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Ortiz v. Collier, 20-20635, appeal from S.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), prisoner suit
    • Affirming district court’s denial of prisoner’s suit regarding Covid-19 protocols.
  • Cumberland v. Vannoy, 20-30434, appeal from E.D. La.
    • per curiam (Higginbotham, Smith, Oldham), habeas corpus
    • Denying application for COA from district court’s dismissal of § 2254 petition.
  • Kerr v. Davis, 20-40255, appeal from E.D. Tex.
    • per curiam (Smith, Stewart, Graves), prisoner suit
    • Affirming dismissal of prisoner’s suit arising from decision to not let prisoners convicted of certain sexual offenses from taking computer-related classes.
  • U.S. v. Taylor, 20-40639, appeal from E.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, compassionate release
    • Affirming district court’s denial of motion for compassionate release.
  • U.S. v. Fajardo-Nava, 20-40843, appeal from S.D. Tex.
    • per curiam (Jones, Duncan, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Karcher v. Harker, 20-60764, appeal from S.D. Miss.
    • per curiam (Clement, Haynes, Wilson), employment discrimination, Americans with Disabilities Act
    • Affirming summary judgment dismissal of plaintiff’s disability discrimination claims.
  • U.S. v. Wilson, 20-61081 c/w 20-61079, appeal from S.D. Miss.
    • per curiam (Barksdale, Engelhardt, Oldham), criminal, supervised release
    • Affirming conviction for revocation of supervised release.
  • U.S. v. Roman, 21-10059, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Arvizu-Loredo, 21-10073, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
    • Granting summary affirmance of 20-month sentence and conviction of illegal reentry.
  • U.S. v. Guzman, 21-10232, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Antonio-Calleja, 21-40096, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Affirming 135-month sentence for conviction of conspiring to possess with the intent to distribute five kilograms or more of cocaine.
  • U.S. v. Burciaga-Alcantar, 21-50114, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Granting summary affirmance of 37-month sentence on conviction of illegal reentry.
  • U.S. v. Melendez-Rivera, 21-50134, appeal from W.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
    • Granting summary affirmance of 46-month sentence for illegal reentry.