Tricked or treated, we got some things good and heated

Criminal law -- Habeas corpus -- Murder -- Death penalty -- Counsel -- Ineffectiveness -- Sentencing phase of capital trial -- Failure to investigate and present mitigating evidence concerning petitioner's mental health at time of crime -- State court's determination that petitioner's trial counsel was not constitutionally ineffective in preparing for sentencing phase of trial was neither contrary to nor an unreasonable application of clearly established federal law -- Court cannot say that state court unreasonably rejected claim in face of unanimous death-penalty recommendation from jury; finding of four statutory aggravators, including that murder was especially heinous, atrocious and cruel; finding that petitioner was triggerman; petitioner's boasting and detailed statement to a friend; weaknesses highlighted in petitioner's “new” mitigating evidence; and further aggravating evidence that this “new” mitigating evidence may have revealed
GREGORY ALAN KOKAL, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, FLORIDA ATTORNEY GENERAL, Respondents-Appellees. 11th Circuit.

Criminal law -- Medicare fraud -- Conspiracy to defraud United States, to cause submission of false claims, and to pay health care kickbacks -- Conspiracy to commit health care fraud -- Evidence -- Trial court improperly excluded, as hearsay, videotape which arguably showed coconspirators assuring defendant that there was no fraudulent scheme at clinic which employed defendant and which was established as front for massive Medicare scam -- Error was harmless because videotape was duplicative of witness testimony discussing the exculpatory content of videotape, which testimony was stressed by defendant's counsel in closing argument -- District court did not abuse discretion by refusing to exclude evidence that individual who provided funding and personnel necessary to start clinic was once defendant's ex-husband -- Evidence was sufficient to support convictions of both defendants on all counts -- Sentencing -- Reasons given by district court justified sentencing physician-defendant above the guidelines and imposing sentence which was far greater than that imposed on coconspirators who were more deeply involved in fraudulent scheme -- District court did not err in assigning little weight to post-verdict polygraph examinations after finding that evidence that defendant gave perjured testimony was so overwhelming that no polygraph could sway district court's decision to apply obstruction of justice enhancement -- Mandatory Victim Restitution Act -- Term “victim” as used in MVRA includes government -- Amount of loss -- No error in attributing entire loss to defendant-nurse, notwithstanding her argument that she knew clinic was providing medically unnecessary treatment, but there was no evidence that she knew clinic was billing Medicare for infusions that were not provided at all -- Risk of death or serious injury -- No error in applying two-level enhancement based on finding that nurse-defendant's offense involved “conscious or reckless risk of death or serious bodily injury”
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SANDRA MATEOS, ANA ALVAREZ, Defendants-Appellants. 11th Circuit.

Medicaid Cuts: LA. CLASS ACTION CHALLENGES REDUCTION OF MEDICAID HOME-CARE SERVICES, Pitts v. Greenstein, 13 No. 9 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home October 22, 2010
A class of disabled Medicaid recipients in Louisiana has alleged the state health department's plan to reduce benefits for home-based care violates federal disability law and might unnecessarily force thousands into nursing homes. Lead plaintiffs Helen Pitts and Kenneth Roman asked the U.S. District Court for the Middle District of Louisiana to grant preliminary and permanent injunctions enjoining the state's Department of Health and Hospitals from denying long-term personal-care services.

Health Care Reform: STATES GET $49 MILLION TO BUILD INSURANCE EXCHANGES, 13 No. 9 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home October 22, 2010
The federal government has awarded $49 million in grants to 48 states and the District of Columbia to help them research and develop health insurance exchanges aimed at helping consumers shop for coverage. The state-based exchanges will make buying health insurance easier by providing eligible consumers and small businesses "one-stop shopping" where they can compare and purchase health insurance coverage, according a Sept. 30 statement released by the U.S. Department of Health and Human Services.

Health Care Reform: DOCTOR-OWNED HOSPITALS URGE COURT TO STRIKE BAN ON NEW FACILITIES, Physician Hosps. of Am. v. Sebelius, 13 No. 9 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home October 22, 2010
An industry group representing physician-owned hospitals has asked a federal judge to allow it to proceed with a lawsuit seeking to block part of the new health care reform law that limits the growth and construction of new doctor- owned facilities. Physician Hospitals of America, along with the Texas Spine and Joint Hospital, a 20-bed private facility in Tyler, Texas, are challenging the constitutionality of Section 6001 of the Patient Protection and Affordable Health Care Act.

Civil rights -- Municipal corporations -- Employment discrimination -- Retaliation -- Title VII -- Error to dismiss Title VII retaliation claim based on determination that factual findings of county personnel board, an independent state agency, were entitled to preclusive effect over the federal action -- District court improperly failed to draw distinction between Title VII and section 1983 with regard to preclusive effects of state administrative proceedings on actions brought thereunder
PATRICK L. BISHOP, SR., Plaintiff-Appellant, v. BIRMINGHAM POLICE DEPARTMENT, CITY OF, Defendant, BIRMINGHAM, CITY OF, THE, Defendant-Appellee. 11th Circuit.

Federal jurisdiction -- Torts -- Removal of state court action to federal court -- Timeliness -- Appellate court need not decide whether defendant's notice of removal was timely in instant case because any error in failing to remand case to state court on ground that notice of removal was untimely would be procedural error and would be insufficient to warrant vacating judgment and remanding for new trial in state court where it was undisputed that requirements for diversity jurisdiction were met by time district court entered judgment
BRIAN MOORE, as Personal Representative on behalf of the Estate of Bernard P. Rice, Deceased, Plaintiff-Appellant, v. NORTH AMERICA SPORTS, INC., a foreign corporation, d.b.a. World Triathlon Corporation, d.b.a. Ironman Triathlon, d.b.a. Ford Ironman Florida, f.k.a. Ironman North America, USA TRIATHLON, a foreign company, Defendants-Appellees. 11th Circuit.

Insurance -- Appraisal -- Error to grant insured's motion to compel appraisal before court resolved underlying coverage dispute -- Conflict certified -- Insurer did not waive right to deny coverage by failing to deny coverage before suit was filed
CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. MICHIGAN CONDOMINIUM ASSOCIATION, Appellee. 4th District.

Insurance -- Homeowners -- Attorney's fees -- Appraisal -- No fees were awardable for portion of case where parties were unable to agree on an umpire, and insurer filed petition for selection of neutral umpire -- Insureds were entitled to award of attorney's fees for successfully defeating insurer's request that trial court direct umpire to provide an itemized appraisal
JOSE ALEJANDRO PINEDA AND MARTHA PINEDA, Appellants/Cross-Appellees, vs. STATE FARM FLORIDA INSURANCE COMPANY, Appellee/Cross-Appellant. 3rd District.

Insurance -- Homeowners -- Hurricane damage to home -- Attorney's fees -- Insurer's post-suit payment of additional policy proceeds entitles insured to section 627.428 attorney's fees where the insurer wrongfully caused its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company's power to resolve it -- Error to enter summary judgment for insurer in insured's action against insurer where there were factual issues as to whether insured was forced to file suit to resolve claim under policy
LLOYD BEVERLY and EDITH BEVERLY, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee. 2nd District.

Mortgage foreclosure -- Error to enter final summary judgment of foreclosure where plaintiff failed to file with court the original note, evidence of assignment of mortgage and note, or affidavit of ownership and filed no other admissible evidence establishing plaintiff's status as holder and owner of note and mortgage -- Appellate court unable to determine whether trial court considered copy of original note and affidavit of ownership presented by plaintiff at summary judgment hearing, as these documents were not part of record at time the motion for summary judgment was granted -- Moreover, the documents were not authenticated, filed, and served more than twenty days before hearing, as required by procedural rules
GUISEPPE SERVEDIO a/k/a Joseph Servedio, Appellant, v. US BANK NATIONAL ASSOCIATION, as Indenture Trustee, on behalf of the holders of Terwin Mortgage Trust 2007-AHL1, Asset-Backed Securities Series 2007-AHL1, Appellee. 4th District.

Mortgage foreclosure -- Error to enter summary judgment of foreclosure of commercial mortgage loan where lender accepted a substantial paydown after an initial default and acceleration, and the parties entered into an agreement to reinstate the mortgage after the entry of an earlier judgment -- Summary judgment was improper where there exists a triable issue regarding the reinstatement agreement and the parties' performance under it
ONE 79TH STREET ESTATES, INC. and DARRELL WILSON a/k/a Keith D. Wilson, a single man; PO BOY REALTY INVESTMENT, INC., Appellants, vs. AMERICAN INVESTMENT SERVICES, Appellee. 3rd District.

Mortgage foreclosure -- Receivership -- Trial court erred in allowing receiver to sell mortgaged property, over objection of record owner, before final judgment foreclosing owner's interest in the property -- Contracts -- In absence of statute authorizing court-appointed receiver in foreclosure case to sell mortgaged property before mortgage is foreclosed by final judgment, such authority must be provided in loan agreement between lender and borrower represented by promissory note and mortgage -- Receivership provision in instant case did not purport to give receiver any power of sale of mortgaged property before entry of final foreclosure judgment, but instead explicitly limited receiver's powers to a caretaker role, which included the authority only to operate the property and collect rents -- Under common law, mere appointment of receiver does not itself confer any of the owner's power or authority to sell property -- Finally, recognizing general interim power of a receiver to sell mortgaged property in a foreclosure case would contravene mortgagor's statutory right of redemption
SHUBH HOTELS BOCA, LLC, and ATUL BISARIA, Appellants, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for Mutual Bank (Illinois); and NEIL MERIN, as Court Appointed Receiver for Mortgaged Property, Appellees. 4th District.

Unfair labor practices -- School boards -- Public Employees Relations Commission properly affirmed General Counsel's summary dismissal of teacher's unfair labor practices complaints, where General Counsel found that teacher failed to prove by preponderance of evidence that his protected conduct was a substantial and motivating factor in school principal's retaliatory actions -- There was not sufficient evidence of animus, or relation of adverse events to employee's participation in protected activity, to sustain allegations of unfair labor practices
JUSTIN KOREN, Appellant, vs. SCHOOL DISTRICT OF MIAMI-DADE COUNTY, FLORIDA AND PUBLIC EMPLOYEES RELATIONS COMMISSION, Appellees. 3rd District.

Torts -- Action against corporate defendant and county by plaintiff who claimed that she was injured when escalator at airport stopped short, causing her to fall -- Error to enter directed verdicts in favor of defendants on ground that there was insufficient evidence of negligence on their part where plaintiff presented evidence showing that defendants were notified that subject escalator stopped running earlier on the day of plaintiff's fall and there was no evidence that any work was performed on the escalator, allowing jury to reasonably infer that defendants negligently failed to determine what was causing it to stop running and correct the problem -- Jury instructions -- Error to refuse to give jury instruction on negligence per se as to county -- Error to overrule plaintiff's objection to defense closing argument that there was no evidence of prior problems with subject escalator where trial court had excluded such evidence -- Plaintiff's treating physician was not required to be an expert back surgeon in order to testify to his belief that plaintiff would need surgery in the future, and it was error to exclude this testimony -- Accordingly, it was error to deny plaintiff's motion for new trial
BONNIE GREENBERG, Appellant, vs. SCHINDLER ELEVATOR CORPORATION, ETC., ET AL., Appellees. 3rd District.

Torts -- Civil theft -- Complaint which alleged that plaintiffs made a loan to defendant pursuant to an oral agreement, and that at the time of the loan, defendant had no intention to repay it and/or intended not to repay the funds, stated cause of action for civil theft -- Error to grant defendant's motion for judgment on pleadings -- Allegation that defendant had no intention to repay the funds and/or intended not to repay the funds is sufficient to state claim for common law fraud, and common law fraud is explicitly included in the theft statute -- Economic loss doctrine does not bar statutory claim for civil theft -- There is no merit to defendant's contention that it is impossible to have an action for civil theft where there has been a failure to repay money unless there has been a conversion of a specific fund
WILLIAM P. WALKER, III AND GEMMA M. WALKER, HIS WIFE, Appellants, vs. JAIME A. FIGAROLA, Appellee. 3rd District.

Torts -- Res judicata -- Action by insurance company against attorney who had litigated personal injury protection lawsuits against company on behalf of insureds, alleging claim for restitution and fraud based on monies company paid out in connection with the PIP suits -- Trial court erred in dismissing complaint on ground that it stemmed from PIP lawsuits, and had been previously adjudicated by courts of competent jurisdiction or resolved by settlement agreements -- Application of res judicata was not appropriate because neither the parties nor the cause of action were the same -- Application of collateral estoppel was not appropriate where issues were not the same as those adjudicated in PIP suits
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. LAW OFFICES OF MICHAEL I. LIBMAN, AND MICHAEL I. LIBMAN, ESQUIRE, Appellees 3rd District.

Wrongful death -- Negligent entrustment -- Negligent undertaking -- A defendant cannot be held liable for negligent entrustment or negligent undertaking based on his having taken his alcohol-impaired brother's car keys and then put the keys in a place where his brother easily found them, resulting in his brother causing a fatal collision
GERALD CANTALUPO, as Personal Representative of the Estate of Suzanne Marie Cantalupo, Appellant, v. PAUL J. LEWIS, Appellee. 4th District.

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Civil law decisions with a healthy mix and classy class actions

Complete Angler, LLC v. City of Clearwater, Fla. ,(M.D.Fla.)
Real Property - Marine themed mural on outside wall of bait shop was protected non-commercial speech.
A marine themed mural on the outside wall of a bait shop and a banner placed over the mural reciting the First Amendment were protected non-commercial speech. Therefore, a city's ordinance defining paintings displayed in conjunction with a commercial enterprise as commercial speech rather than art work was an impermissible restriction on non-commercial speech as applied to the mural and banner. Although the mural could occasionally inspire the purchase of bait, it reflected a local artist's impression of the natural habitat and waterways surrounding the bait shop. It also alerted viewers to the threats posed to certain fish species it depicted.

Josendis v. Wall to Wall Residence Repairs, Inc. ,(S.D.Fla.)
Labor and Employment - Laborer employed by Florida company did not fall under FLSA's wage and hour protections under theory of enterprise coverage.
A laborer employed by a family-owned Florida residential remodeling company did not fall under the wage and hour protections of the Fair Labor Standards Act (FLSA) under a theory of enterprise coverage. The company asserted in its statement of undisputed facts on its motion for summary judgment that it never grossed $500,000 annually during the limitations period, and the employee's opposition statement of facts did not properly controvert that assertion. The laborer also failed to establish that his employer was "engaged in the operation of a hospital or an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises of such institution" through the assertion that a "Jewish Home and Hospital" itself would be covered by that language and that the maintenance and repair work he performed there during the relevant period was "closely or intimately related" to enterprise engaged in interstate commerce.

AXA Equitable Life Ins. Co. v. Infinity Financial Group, LLC ,(S.D.Fla.)
Insurance - Nonresident trustees and trusts holding life policies were subject to personal jurisdiction based on civil conspiracy claim.
Trustees, as residents of Delaware, holding life insurance policies in trusts organized in Delaware, purposely directed their activities at Florida residents, in an alleged civil conspiracy to fraudulently recruit elderly Florida applicants for policies that were paid for and held by outside investors in trusts to disguise true ownership of the policies. Thus, the Delaware trustees and trusts had sufficient contacts with Florida to have fair warning that they could be subject to the insurer's suit in Florida, as required to satisfy due process requirements for exercise of jurisdiction consistent with fair play and substantial justice.

Dissolution of marriage -- Equitable distribution -- Disproportionate distribution -- Factors relied upon by trial court did not weigh in favor of unequal distribution of property in favor of wife -- Desirability of retaining marital home as residence for parties' dependent children did not justify permanent transfer of marital home to former wife -- To extent trial court relied upon this factor to award marital residence to former wife, it should have granted her an exclusive interest only until parties' youngest child reached majority -- Fact that parties had used funds principally originating in former wife's trust account to purchase property in foreign state and marital home was found in prior appeal to be irrelevant to distribution of marital property in this case -- Unequal distribution cannot be based on spouse's disproportionate financial contributions to marriage unless there is showing of “extraordinary services over and above the normal marital duties,” and evidence does not demonstrate the former wife provided such extraordinary services on former husband's behalf -- Remand with instructions that marital assets be equally divided between the parties -- Alimony -- Error to impute income to husband from “sedentary employment” where trial court made finding following first trial that former husband's physical disability left him “unemployable,” appellate court concurred with this finding on appeal, no evidence was offered regarding amount or source of imputed income, and trial court made no findings concerning either factor -- Remand for reevaluation of alimony award without any consideration of imputed income
Reported at 34 Fla. L. Weekly D845b

Contracts -- Civil procedure -- Vacation of judgment -- Order vacating judgment for defendant in action for breach of contract to build and sell residence to plaintiff, and setting case for new trial, on ground that court committed judicial error by depriving plaintiff of opportunity to seek return of earnest money deposit -- Any error in trial court's failure to order return of earnest money deposit is not type of error cognizable under rule 1.540 -- Judicial errors must be corrected within ten days pursuant to rule 1.530 -- Even if trial court acted on its own initiative pursuant to rule 1.530(d), court was without jurisdiction to order new trial on its own motion because court did not initiate action within time limit set out in rule -- Order vacating final judgment reversed
Reported at 34 Fla. L. Weekly D795a

Attorney's fees -- Claim or defense not supported by material facts or applicable law -- Administrative law judge erred in awarding attorney's fees under section 57.105, Florida Statutes, to party who did not comply with mandatory notice provisions of statute -- Counsel's letter to opposing counsel threatening to seek attorney's fees under section 57.105 was not the same as the statutorily required motion, which is required to be served on opposing counsel and later filed with court
Reported at 34 Fla. L. Weekly D826a

Contracts -- Stock purchase agreement -- Arbitration -- Action against guarantors of promissory notes given in connection with stock purchase agreement was not subject to arbitration provision in stock purchase agreement -- Arbitration provision in agreement applies only to indemnification claims, and suit to enforce unconditional guarantee was not a claim for indemnity -- Arbitration clause applies to claims for indemnification caused by purchaser's failure to fulfill an obligation of an agreement related to stock purchase agreement, but plaintiffs are not seeking indemnification from purchaser, but instead are seeking payment on unconditional guarantees executed by defendants
Reported at 34 Fla. L. Weekly D814c

Prohibition -- Judges -- Disqualification -- Real property -- Action challenging amendments to development's declaration of covenants and restrictions which imposed mandatory country club membership on all new owners taking title to certain property in defendant's subdivisions -- Where defendant discovered that judge was involved in similar dispute with his own homeowners association and had expressed critical opinions on the matter, a circumstance which aligned judge with plaintiff's position on the primary issue to be determined in suit, defendant had well-founded fear of bias, and disqualification was required
Reported at 34 Fla. L. Weekly D807b

Hoving v. Lawyers Title Ins. Co.,(E.D.Mich.)
Class Actions - Named plaintiff was not appropriate class representative in action against title insurer to recover overcharges on mortgage rates.
A federal district court in Michigan has denied certification of a refinancing homeowner's putative class action against a title insurer which allegedly overcharged on premiums on policies issued to mortgage lenders. The named plaintiff had not established that he could fairly and adequately protect the interests of the class. His effort at setting up a do-it-yourself trust established some doubt about whether he had the authority to grant the refinancing mortgage on the property and close the loan at the time. Furthermore, his testimony that in attempting to set up the trust he filled out the papers himself, was unfamiliar with the process, sought no legal advice despite the fact his sister was an attorney who served in the Judge Advocate General Corps, conveyed his property to complete strangers with whom he had never spoken and whom he had never met, paid a fee but kept no copies of documents or a record of payment, and was defrauded cast grave doubt over his ability to perform the functions of a lead plaintiff in major class action litigation.

Rodriguez v. West Publishing Corp.,(C.A.9 (Cal.))
Class Actions - Incentive agreements signed by some class representatives did not require rejection of antitrust settlement.
Although incentive agreements between the named plaintiffs and class counsel created conflicts among the named plaintiffs, their counsel, and the rest of the class in an antitrust action against two bar review course providers, a district court was not required to reject a $49 million settlement of the action on that account, since there were two other class representatives who had no incentive agreements and whose separate counsel were not conflicted. The agreements required class counsel to apply to a court for an incentive award for the named plaintiffs, and tied the named plaintiffs' compensation to a sliding scale based on the amount recovered.

State, Dept. of Transp. v. Douglas Asphalt Co.,(Ga.App.)
Appeals - Dismissal of defendant's cross-appeal was required following dismissal of plaintiff's direct appeal.
The Court of Appeals of Georgia has held that a defendant's cross-appeal from the trial court's partial grant of a plaintiff's motions in limine to exclude certain evidence and partial denial of the defendant's initial motion for summary judgment had to be dismissed, upon the dismissal of the plaintiff's direct appeal from the court's partial grant of defendant's second motion for summary judgment. This was the case because the grant of the plaintiff's motions in limine and the trial court's partial denial of the defendant's motion for summary judgment were not final appealable judgments, but were subject to the certification requirement and application procedures for interlocutory appeal. Since the plaintiff's appeal had been dismissed, and the defendant filed no application for interlocutory review of the grant of the plaintiff's motions in limine or the court's partial denial of the defendant's motion for summary judgment, the Court of Appeals had no independent jurisdiction over the cross-appeal. In so holding, the Court overruled a prior decision.

U.S. v. Nicholas,(C.D.Cal.)
Privileges - Attorney-client privilege applied to client's interview with his attorneys.
The attorney-client privilege applied to a client's interview with his attorneys regarding his employer's stock option granting practices. The substance of interview was disclosed by his attorneys to the employer's outside auditors, to the Securities and Exchange Commission (SEC), to the United States Attorney's Office, and was summarized in a FBI form memoranda. The client reasonably believed an attorney-client relationship existed with his attorneys in both the direct and derivative actions brought against him and his employer. He also reasonably believed that he was communicating with his attorneys in the context of the attorney-client relationship for the purpose of obtaining legal advice. Finally, he reasonably believed that any information he provided to his attorneys would remain confidential.

Payne v. Wyeth Pharmaceuticals, Inc.,(E.D.Va.)
Estoppel - Discharged debtor was judicially estopped from seeking damages exceeding $1 million in personal injury action.
A discharged Chapter 7 debtor, who sought $25 million in damages in personal injury action, was judicially estopped from seeking damages exceeding $1 million from defendant where the debtor declared the value of his claim as $1 million in the bankruptcy court and never amended his schedules to reflect his belief that his claim was worth more. The debtor advanced a position in which was inconsistent with the position he took in bankruptcy court, the value of debtor's claim was a question of fact, bankruptcy court relied upon debtor's representations made on the bankruptcy schedules, including his representation of his $1 million valuation, before agreeing to discharge his debt, and the debtor had a motive for concealment when valuing his claim and/or failing to amend after he had filed the lawsuit since the secured creditors would have been able to collect on any award or settlement recovered by the debtor.

Fort Brown Villas III Condominium Ass'n, Inc. v. Gillenwater,(Tex.)
Judgment - Striking of affidavit of plaintiff's expert witness submitted in response to defendants' summary judgment motion was justified.
The Supreme Court of Texas has held that the rule providing for the exclusion of evidence due to an untimely response to a discovery request applies in a no-evidence summary judgment proceeding. In so holding, the Court abrogated Court of Appeals' decisions holding to the contrary. In the case at bar, the Court concluded that the trial court's striking of an affidavit of the plaintiff's expert witness submitted in response to the defendants' no-evidence summary judgment motion was justified, because the plaintiff failed to timely disclose his expert pursuant to the deadline provided in the agreed scheduling order and the subsequent extension agreements. Also, the plaintiff failed to satisfy his burden of establishing good cause or lack of unfair surprise or prejudice against the defendants.

This decision may not yet be released for publication.

Budisukma Permai SDN BHD v. N.M.K. Products & Agencies Lanka (Private) Ltd.,(S.D.N.Y.)
Attachment and Garnishment - Plaintiff need only make prima facie showing of alter ego liability to avoid vacatur of maritime attachment.
A plaintiff need only make a prima facie showing of alter ego liability to avoid the vacatur of a maritime attachment, a New York district court has ruled, noting a split of authority on the issue within its district and following the majority view. A vessel owner satisfied this prima facie burden in pleading that related entities were the alter egos of a charterer in support of a maritime attachment against the related entities. The owner alleged that a website identified the charterer and the related entities as a "group of companies," and that the related entities sold the same products. The owner also alleged that the charterer and the related entities had common office addresses and telephone numbers and a common, three-person core of directors and shareholders, that the related entities were closely owned and directed by what appeared to be the same group of people, and that the related entities were the successors in interest of the charterer.

Wickline v. Dutch Run-Mays Draft, LLC,(S.D.W.Va.)
Removal - Court could not consider evidence of $100,000 settlement offer made after removal in determining motion to remand.
The District Court could not consider evidence of a $100,000 offer of settlement made by the defendant after the case was removed on the basis of diversity jurisdiction, or expert testimony that the amount-in-controversy for diversity jurisdiction was satisfied, in determining the plaintiff's motion to remand, based on a failure to establish the jurisdictional amount-in- controversy for diversity jurisdiction. The Court noted that neither the settlement offer nor the expert testimony was on the record at the time the notice of removal was filed.

Shumaker, Loop & Kendrick, LLP v. Zaremba,(N.D.Ohio)
Privileges - Burden-shifting approach was to be used for purposes of determining validity of written waiver of attorney-client privilege.
As a matter of first impression, the district court held that a burden- shifting approach should be used for purposes of determining the validity of a written waiver of the attorney client privilege. The proponent of the privilege had the burden of demonstrating, by a preponderance of the evidence, that the elements of the privilege were established. The opponent of the privilege was required to present sufficient evidence upon which a reasonable person could find that the privilege had been waived, and, if the opponent met its burden, the proponent of the privilege was required to disprove each demonstrated claim of waiver by a preponderance of the evidence.

Vargas v. Shepherd,(Ind.App.)
Privileges - Former patient waived the physician-patient privilege as to surgeon's treatment of former patient's prior back injury.
A former patient waived the physician-patient privilege as to a surgeon's treatment of the former patient's prior back injury. The former patient reinjured his back while working at an apartment complex and filed a lawsuit against the apartment complex to recover damages. By filing the lawsuit, the former patient placed at issue the condition of his back and any injury or treatment relating to it.

Ford Motor Co. v. Castillo,(Tex.)
Discovery - Manufacturer was entitled to discovery in breach of settlement action to determine juror misconduct in underlying tort action.
A plaintiff motorist in a products liability action, by seeking enforcement of a settlement agreement, necessarily asserted a separate claim for breach of contract against the defendant automobile manufacturer. Therefore, the manufacturer was entitled to conduct discovery to determine whether a juror's pre-settlement note to the trial court concerning the maximum allowable award in the products liability action, which note prompted the settlement, was attributable to any outside jury influence. The juror's note, which was submitted following a recess, raised a legitimate question about the integrity of the trial process.

This decision may not yet be released for publication.

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