February 23, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Pace v. Cirrus Design Corp., 22-60603, appeal from S.D. Miss.
    • Southwick, J. (Smith, Southwick, Higginson), removal, jurisdiction, personal jurisdiction
    • Affirming dismissal of two non-diverse defendants as improperly joined and denial of remand, and affirming dismissal of out-of-state defendants for lack of personal jurisdiction, in action arising from injuries suffered during crash of single-engine airplane piloted by the plaintiff. The crash occurred in Texas as the plaintiff was flying between two Texas stops on a multi-stop flight that originated in and was to end in Hattiesburg, Mississippi.
    • The Court held that there was no viable claim sufficiently alleged against the two non-diverse, Mississippi defendants, who were the prior owner of the airplane. The Court noted that the complaint was silent as to representations the Mississippi defendant may have made in the sale to the plane’s current owner. “At the pleading stage, uncertainties arising outside the complaint about what representations Walters could possibly have made will be ignored.” Because the only allegations regarding misrepresentations of the plane’s air-worthiness were allegations as to all of the defendants generally, the Court held that the complaint failed to meet Fed. R. Civ. P. 9(b)’s particularity requirement for fraud and misrepresentation claims. “Pace failed to (1) allege a connection between either Mississippi defendant to the airworthiness certifications, and (2) identify a specific misstatement made by Walters or Performance Aviation.” The Court also held that negligence liability does not extend beyond the current owner, and thus there was no cognizable duty alleged as to the prior owners.
    • As to personal jurisdiction over the diverse corporate defendants, the Court held that there was no contractual contact between the plaintiff and those defendants, and that no tort occurred in Mississippi because “the plane crash, any equipment failure, and the injuries all occurred in Texas.” The Court also held that the defendants cannot be deemed as doing business in Mississippi for jurisdictional purposes merely on the basis that their website and advertising in aviation magazines is available worldwide and that “Mississippi is one part of the entire world reached by these companies’ advertisements and products.” The Court also held that specific jurisdiction was not established because the plaintiff failed to show “a strong relationship among the defendant, the forum, and the litigation.”
  • U.S. v. Rider, 23-40144, appeal from E.D. Tex.
    • Higginbotham, J. (Higginbotham, Smith, Higginson), criminal, sentencing
    • Affirming conviction and 720-month sentence for producing and attempting to produce child pornography.

Unpublished

  • Miguel v. McLane, 22-10517, appeal from N.D. Tex.
    • per curiam (Richman, Stewart, Hanks, by designation), § 1983
    • Reversing dismissal of civil detainee’s claims arising from denial of recommended dental treatment, affirming dismissal of civil detainee’s deliberate indifference claims arising from denial of extra-calorie shakes, and remanding for further proceedings.
  • U.S. v. Mohamed, 22-10893, appeal from N.D. Tex.
    • per curiam (Richman, Graves, Wilson), criminal, guilty plea
    • Affirming guilty plea conviction of possession of ammunition by a prohibited person and conspiracy to possess with intent to distribute marijuana.
  • U.S. v. Thompson, 22-20663, c/w 22-20664, appeal from S.D. Tex.
    • per curiam (Barksdale, Graves, Oldham), criminal
    • Affirming convictions of conspiracy to unlawfully distribute and dispense controlled substances and aiding and abetting the unlawful distribution and dispensing of controlled substances.
  • U.S. v. MacPherson, 22-50687, appeal from W.D. Tex.
    • per curiam (Barksdale, Graves, Oldham), criminal, sentencing
    • Affirming 170-month sentence on conviction of conspiracy to possess with intent to distribute at least 500 grams of a mixture or substance containing methamphetamine.
  • Rodriguez-Velasquez v. Garland, 22-60522, petition for review of BIA order
    • per curiam (Barksdale, Graves, Oldham), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order upholding the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • U.S. v. Day, 23-10539, appeal from N.D. Tex.
    • per curiam (Barksdale, Graves, Oldham), criminal
    • Affirming conviction of possession of a firearm by a felon.
  • U.S. v. Ramirez, 23-10605, appeal from N.D. Tex.
    • per curiam (Barksdale, Graves, Oldham), criminal, sentencing
    • Affirming 24-month sentence on revocation of supervised release.
  • U.S. v. Berrios-Osorto, 23-20249, appeal from S.D. Tex.
    • per curiam (Jolly, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Conrad Shipyard, L.L.C. v. Harley Marine Services, Inc., 23-30286, appeal from E.D. La.
    • per curiam (Higginbotham, Smith, Higginson), breach of contract
    • Affirming judgment on jury verdict that defendant must indemnify plaintiff for $2 million down payment and must indemnify principal of plaintiff for legal fees.
  • Smith-Hubbard v. AMICA Mutual Insurance Co., 23-40331, appeal from S.D. Tex.
    • per curiam (Elrod, Willett, Duncan), insurance, Rule 60(b), remand
    • Affirming denial of Rule 60(b) motion to vacate summary judgment dismissal of claims for insurance benefits and to remand to state court, after plaintiff’s counsel had neglected to respond to discovery requests or to oppose summary judgment motion.
  • U.S. v. Arthur, 23-50262, appeal from W.D. Tex.
    • per curiam (Barksdale, Graves, Oldham), criminal, sentencing
    • Affirming 480-month sentence on child pornography conviction.