January 31, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Dotson v. Atlantic Specialty Insurance Co., 21-30314, appeal from E.D. La.
    • Ho, J. (King, Graves, Ho), insurance, res judicata
    • Affirming summary judgment dismissing plaintiff’s bad faith claims against insurer arising from insurer’s representations about policy limits in prior litigation arising from an auto accident, on grounds of the res judicata effect of a judgment in the prior litigation entered to effectuate the parties’ settlement agreement in that prior litigation.
    • The Court held that the Eastern District of Louisiana would apply federal common law to the diversity action before it, but that, as a matter of federal common law, the preclusion law of the forum state would be applied.
    • Applying Louisiana’s res judicata law at La. R.S. § 13:4231, the Court held that the claim in this second litigation–that the insurer had represented its policy limits as $100,000 instead of as $1 million in the prior litigation in bad faith, which had caused the plaintiff to not fully develop his claims in that prior litigation–arose from the same transaction or occurrence as the claims against the insurers in the first litigation. “We agree with the district court that the two actions brought by Dotson are ‘intertwined and center around the same set of operative facts,’ namely, Dotson’s damages from the accident, the coverage he was entitled to under Atlantic’s policy, and Atlantic’s response to Dotson’s claim for coverage.”

Unpublished

  • U.S. v. Combs, 16-11402, appeal from N.D. Tex.
    • per curiam (Davis, Higginson, Willett), criminal, sentencing, Armed Career Criminal Act
    • On remand from the U.S. Supreme Court, vacating the defendant’s sentence on holding that, under Borden v. United States, 141 S. Ct. 1817, 1834 (2021), his prior conviction for Texas aggravated assault with a deadly weapon was not a “violent felony” under the ACCA; remanding for resentencing.
  • McKinney v. Painter, 19-50010, appeal from W.D. Tex.
    • per curiam (Owen, Clement, Engelhardt), prisoner suit
    • Affirming summary judgment and denial of motion for reconsideration, dismissing excessive force claims for failure to exhaust administrative remedies.
  • U.S. v. Tucker, 20-10906, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, First Step Act
    • Vacating denial of motion for compassionate release under the First Step Act, and remanding for consideration in light of United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021).
  • U.S. v. Zimmerman, 20-11051, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, compassionate release
    • Affirming denial of motion for sentence reduction and home confinement.
  • U.S. v. Billups, 20-11263, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, sentencing
    • Affirming life prison sentence imposed following his guilty plea conviction for interstate transportation of a minor with intent to engage in criminal sexual activity.
  • U.S. v. Lee, 20-20629, appeal from S.D. Tex.
    • per curiam (King, Graves, Ho), criminal, sentencing
    • Affirming conviction and 480-month sentence for sex trafficking of a minor victim (MV1) and of sex trafficking of a minor victim (MV2) by force.
  • Buckenberger v. Louisiana State Penitentiary, 20-30742, appeal from M.D. La.
    • per curiam (Elrod, Oldham, Wilson), prisoner suit
    • Dismissing as untimely in part, and as frivolous, appeal from dismissal of prisoners’ § 1983 suit.
  • Watkins v. Martinez, 20-40781, appeal from E.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), Bivens claim
    • Affirming dismissal of plaintiffs’ Bivens claim as barred by the statute of limitations.
  • U.S. v. Espinoza, 20-50273, appeal from W.D. Tex.
    • per curiam (Owen, Smith, Elrod), criminal, sentencing
    • Affirming 162-month sentence on conviction of conspiracy to possess with intent to distribute five grams or more of actual methamphetamine.
  • U.S. v. Dominguez, 21-10281, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Portillo-Saravia, 21-20104, appeal from S.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Affirming conviction of one count of being an alien illegally and unlawfully present in the United States in possession of a firearm and ammunition.
  • U.S. v. Labbe, 21-30403, appeal from W.D. La.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Cabello v. Garland, 21-60690, petition for review of BIA order
    • per curiam (Elrod, Oldham, Wilson), immigration
    • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of application for asylum, withholding of removal, and protection under the CAT.