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Atlas Shrugged.” Ayn Rand, 1957. “Jesus wept.” John 11:35. “Mandamus lied.” Synopsis, State v. Walker, 679 S.W.2d 484 (Tex. 1984). (H/T to Ben Taylor for showing this one to me!) The post “West joked.” appeared first on 600 Camp.…
Forby v. One Technologies presented the unusual situation of an arbitration waiver by the defendant, followed by an arbitration waiver the plaintiff as to a newly asserted claim: “We again address a class action claiming that One Technologies, L.P. (“One Tech”), duped consumers into signing up for ‘free’ credit reports that were not really free. The last time around, we ruled One Tech waived its right to arbitrate the plaintiffs’ state-law claims. Forby v. One Technologies., 909 F.3d 780 (5th Cir. 2018) [hereinafter Forby I]. Now, we consider whether One Tech also waived its right to arbitrate federal claims…
Despite the defeat of the Moorish armies in 732 by Charles Martel at the Battle of Tours (right), the appellants in Luminant Mining Co. v. PakeyBey asserted rights as cotenants to certain real property in East Texas as “’Moorish Americans’ who are ‘sovereign freemen under the Republic . . . .’” The Fifth Circuit affirmed judgment for the appellees, concluding: “[T]the PakeyBey parties contend that Luminant failed to demonstrate hostile possession vis-à-vis its cotenants. They assert that the record is devoid of evidence of actual notice of repudiation of the common title. They further contend that Luminant cannot show constructive…
The Fifth Circuit recently released its opinion on the emergency-stay motions of early September in the high-profile challenge to Texas’s “heartbeat law,” Whole Womens Health v. Jackson, No. 21-50792 (Sept. 10, 2021). In addition to identifying problems with the application of Ex parte Young, the Court observed: “We do not even take into account the many other justiciability defenses Defendants have raised beyond Young. Defendants have argued powerfully that, not only do they enjoy Eleventh Amendment immunity, but federal jurisdiction is also lacking under Article III. Related doctrines of standing, ripeness, and justiciability are also likely to prevail because…
In reviewing a claim of improper joinder, a court may “conduct a Rule 12(b)(6)-type analysis” to determine if the claim against the in-state defendant “is plausible on its face.” Alternatively, if “discrete and undisputed facts . . . would preclude plaintiff’s recovery against the in-state defendant,” then “the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry.” But, “unlike summary judgment, which can be granted when there is ‘lack of substantive evidence’ to support a plaintiff’s claim, improper joinder requires the defendant to ‘put forward evidence that would negate a possibility of liability on the…
The en banc court divided along atypical lines in Hewitt v. Helix Energy, a dispute about overtime-pay obligations for highly compensated employees in the oil-and-gas industry. The Texas Lawbook and Houston Chronicle have covered the opinion thoroughly; below is a chart showing which judges joined the majority opinion and which judges dissented in some way.  Note that Senior Judge Wiener participated in this en banc case because he was part of the original panel. Longtime observers of the Court may see echoes of the divided en banc court in Mississippi Poultry Ass’n v. Madigan, 31 F.3d 293 (5th Cir. 1994)…
A chapter of the United Daughters of the Confederacy complained about the recent removal of a statue of a Confederate soldier from a San Antonio park. The Fifth Circuit affirmed the dismissal of its claim, observing (1) an 1899 document relating to the construction of the statue did not create a conveyance or use privilege for the relevant land; and (2) if it had done so, any such conveyance expired when an earlier chapter that actually received the document ceased operations in 1972, without conveying any such interest to its successor. Albert Sidney Johnston Chapter, Chapter No. 2060, UDC v.
There’s always “that” customer, who brings rude remarks and behavior along with repeat business. In Sansone v. Jazz Casino Co., No. 20-30640 (Sept. 1, 2021), “that” customer led to a prima facie case about a hostile work environment: “The unidentified Harrah’s customer frequently asked Sansone about her sex life and expressed his desire to sleep with her. He commented on her breasts and physical appearance and directed sexual gestures towards her. His comments were made in the presence of others and occurred at least two times a week for a significant period of time. This contrasts with instances where…
“When reviewing for abuse of discretion, we will reverse a district court’s refusal to give a requested jury instruction ‘only if the instruction (1) was a substantially correct statement of law, (2) was not substantially covered in the charge as a whole, and (3) concerned an important point in the trial such that the failure to instruct the jury on the issue seriously impaired the [party’s] ability to present a given [claim].’” (citations omitted). In HTC Corp. v. Telefonaktiebolaget LM Ericsson, while the panel divided 2-1 about whether a requested instruction was accurate, all three judges agreed that the…