TYLER, Texas - A unanimous 12th District Texas Court of Appeals panel on Oct. 17 overturned a plaintiff judgment against a natural gas pipeline company for bulldozing an easement for construction of a pipeline because the trial court failed to determine if the property damage was permanent or temporary (Enbridge Pipelines (East Texas) v. Gilbert Wheeler Inc., No. 11-303, Texas App., 12th Dist.).
DALLAS - Class action claims and the lead named plaintiff's individual claims in a gender discrimination suit that was filed against Wal-Mart Stores Inc. after the U.S. Supreme Court issued its ruling in Wal-Mart Stores, Inc. v. Dukes, (131 S. Ct. 2541 ; 2011 U.S. LEXIS 4567) are time-barred, a Texas federal judge ruled Oct. 15 (Stephanie Odle, et al. v. Wal-Mart Stores, Inc., No. 11-2954, N.D. Texas). A complimentary copy of the order is available in the attachment below.
HOUSTON - A Texas Court of Appeals panel on Oct. 16 affirmed a trial court's decision to confirm an arbitration award to homeowners who experienced significant construction defects in their newly built home, agreeing that there is no chance the plaintiffs will benefit from double recovery if they come to future settlements with subcontractors (Byer Custom Builders v. Steven Franks, et al., No. 14-11-00906-CV, Texas App., 14th Dist.; 2012 Tex. App. LEXIS 8617).
DALLAS - Disability discrimination claims by a former employee of a company that administers the Medicare program fail because the employee did not file an administrative charge on time and did not prove that she was denied a reasonable accommodation, a Texas federal judge held Oct. 15 (Karla Fallon v. TrailBlazer Health Enterprises, LLC. No. 3:11-cv-1449, N.D. Texas; 2012 U.S. Dist. LEXIS 148015).
HOUSTON - An insurer has no duty to defend or reimburse an insured city or its public officials because the underlying claims that are based on the city's refusal to approve a permit for development are precluded by the policy's inverse condemnation or eminent domain exclusion, a Texas federal judge said Oct. 12 (The City of College Station, Texas, v. Star Insurance Co., No. 11-2023, S.D. Texas; 2012 U.S. Dist. LEXIS 147295).
GALVESTON, Texas - A Texas federal judge on Oct. 11 conditionally certified a class of salespersons of new homes for their unpaid overtime claim against a national homebuilding company but declined to certify a class for their minimum wage claim (Margery McCarragher, et al., v. The Ryland Group, Inc., et al., No. 11-55, S.D. Texas; 2012 U.S. Dist. LEXIS 146464).
HOUSTON - A safety company's claim that a purchaser's alert containing misrepresentations damaged its reputation and sales sufficiently pleads a California unfair competition law (UCL) Cal. Bus. & Prof. Code § 17200, claim at the pleading stage, a Texas federal judge held Oct. 10 (Diamond Offshore Co. v. Survival Systems International Inc., No. 11-1701, S.D. Texas; 2012 U.S. Dist. LEXIS 145962).
WILMINGTON, Del. - A California court's ruling that Texas provided a better forum for an asbestos case based on docket congestion and the plaintiff's contacts with the state does not bar the man from filing elsewhere, a Delaware judge held Oct. 8 (Charles Williams v. PACCAR, Inc. No. 11C-09-129 ASB, Del. Super., New Castle Co.).
HOUSTON - An offshore well operator's failure to procure the correct amount of operator's extra expense (OEE) insurance coverage did not substantially impair the other owners' interests to justify no payment from the other owners for damages sustained to the well as a result of Hurricane Ike, a Texas federal judge said Oct.5 (SM Energy Co. v. Smacko Ltd. et al., No. 11-3028, S.D. Texas; 2012 U.S. Dist. LEXIS 144533).
NEW ORLEANS - The Employee Retirement Income Security Act (ERISA), 29 U.S.C.S. § 1001 et seq., does not preempt a third-party medical device provider's state law claims for negligent misrepresentation, promissory estoppel and violations of the Texas Insurance Code that alleged that the ERISA plan administrator misled it regarding plan beneficiaries' coverage, the en banc Fifth Circuit U.S. Court of Appeals ruled Oct. 5 (Access Mediquip v. UnitedHealthcare Insurance Co., No. 10-20868, 5th Cir.; 2012 U.S. App. LEXIS 20809).
WASHINGTON, D.C. - The question of the best forum - state or federal court - for legal malpractice claims stemming from underlying patent litigation will be addressed by the U.S. Supreme Court, which granted certiorari on Friday (Jerry W. Gunn v. Vernon F. Minton, No. 11-1118, U.S. Sup.)
Attorney and petitioner Jerry W. Gunn persuaded the court to address whether federal courts have exclusive "arising under" jurisdiction where the sole substantive issue is the application of a patent law doctrine.
Gunn represented respondent Vernon F. Minton in an unsuccessful patent infringement action against the National Association of Securities Dealers Inc. (NASD) and the NASDAQ Stock Market Inc. in the U.S. District Court for the Eastern District of Texas. The Federal Circuit U.S. Court of Appeals later affirmed, leading Minton to file legal malpractice claims against Gunn's firm and two others in Texas state court. Specifically, Minton argued that the attorneys failed to plead or brief the experimental use defense, an exception to the on-sale bar cited by the District Court.
The state court granted the attorneys summary judgment and rendered a take-nothing judgment on all of Minton's legal malpractice claims, leading him to appeal to the Texas Second District Court of Appeals. After the Federal Circuit decided Air Measurement Tech., Inc. v. Akin Gump Strauss Hauer & Feld, L.L.P. (504 F.3d 1262 [Fed. Cir. 2007]; 2007 U.S. App. LEXIS 24098) and Immunocept, L.L.C. v. Fulbright & Jaworski, L.L.P. (504 F.3d 1281 [Fed. Cir. 2007]; 2007 U.S. App. LEXIS 24095) finding that federal courts have exclusive jurisdiction over all legal malpractice suits involving underlying patent matters, Minton moved to dismiss his appeal for lack of jurisdiction. A split appellate panel denied Minton's motion and affirmed the trial court's judgment.
Minton appealed to the Texas Supreme Court, which in another split ruling reversed the Court of Appeals and found that Minton's claim was subject to exclusive federal jurisdiction. The Texas Supreme Court majority found that the federal patent issue involved in the case is "necessary, disputed, and substantial within the context of the overlying state legal malpractice lawsuit" and that the case could be decided in a federal court without upsetting the jurisdictional balance between state and federal courts. Without reaching the merits of the legal malpractice claim, the court reversed and dismissed the case, and Minton filed a legal malpractice action in the Eastern District of Texas.
The attorneys and law firms filed a petition for writ of certiorari with the U.S. Supreme Court, presenting the following questions: "Did the Federal Circuit depart from the standard this Court articulated in Grable & Sons Metal Products, Inc. v. Darue Eng'g & Mfg., 545 U.S. 308 (2005), for 'arising under' jurisdiction of the federal courts under 28 U.S.C. § 1338, when it held that state law legal malpractice claims against trial lawyers for their handling of underlying patent matters come within the exclusive jurisdiction of the federal courts? Because the Federal Circuit has exclusive jurisdiction over appeals involving patents, are state courts and federal courts strictly following the Federal Circuit's mistaken standard, thereby magnifying its jurisdictional error and sweeping broad swaths of state law claims - which involve no actual patents and have no impact on actual patent rights - into the federal courts?"
In a respondent's brief, Minton posed a question of whether federal courts "have exclusive 'arising under' jurisdiction where the sole substantive issue is the application of a patent law doctrine which is an essential element of Minton's malpractice claim?"
The dispute was distributed for conference three times prior to the grant of certiorari.
Gunn is represented by Jane M.N. Webre and Cynthia S. Connolly of Scott, Douglas & McConnico in Austin, Texas. Thomas M. Michel and Robert E. Sicard of Griffith, Jay & Michel in Fort Worth, Texas, represent Minton.
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FORT WORTH, Texas - The Second District Texas Court of Appeals on Oct. 4 affirmed summary judgment for the defendant in a construction defect case, agreeing that the plaintiffs should have discovered issues with their home that later caused water damage before the statute of limitations lapsed (Jim Brown, et al. v. Caldwell & Family Custom Homes Inc., No. 02-11-00490-CV, Texas App., 2nd Dist.; 2012 Tex. App. LEXIS 8370).
LOS ANGELES - After "careful consideration," a California federal judge on Oct. 1 found that two defendants were improperly joined to a patent infringement action under the heightened standard established by the Leahy-Smith America Invents Act (Mednovus Inc. and First Texas Holdings Corp. v. QuinetiQ Group PLC et al., No. 12-3487, C.D. Calif.). Subscribers may view the decision available within the full article.
WASHINGTON, D.C. - Finding no error in a Texas federal judge's determination that three patents related to a method for treating migraine headaches are not invalid as obvious, a divided Federal Circuit U.S. Court of Appeals on Sept. 28 left in place a preliminary injunction entered in the case (Pozen Inc. v. Par Pharmaceutical Inc. et al., Nos. 11-1584, 1585, 1586, Fed. Cir.).
ABILENE, Texas - A group of companies that distribute gas and oil on Sept. 28 moved in the U.S. District Court for the Northern District of Texas to remove a state court lawsuit brought by two companies that seek recovery of as much as $600 million for oil they provided to now-bankrupt SemGroup LP. The oil distributing companies contend that the producer's attempt to collect its money should be heard in Texas federal court (Star Production Inc., et al. v. J. Aron & Company, et al., No. 12-00175, N.D. Texas).
WASHINGTON, D.C. - The U.S. Supreme Court today denied a couple's petition for a writ of certiorari seeking review of a Fifth Circuit U.S. Court of Appeals ruling that affirmed the dismissal of their suit accusing a loan servicer of violating the Real Estate Settlement Procedures Act (RESPA) (Jenara Steele, et al. v. Green Tree Servicing LLC, et al., No. 11-1288, U.S. Sup.)
Plaintiffs Jenara and Shannon Steele said in their April 24 petition that the appeals court erred in upholding a ruling that Green Tree Servicing LLC did not receive a copy of the plaintiffs' qualified written request (QWR) for information about their loan because it was sent to the wrong address. The plaintiffs asserted that the loan servicer's failure to respond to the QWR violated RESPA.
The Steeles obtained a loan from CTX Mortgage Co. in 1996 to purchase their home. CTX assigned the plaintiffs' note and deed of trust to GE Mortgage Services LLC, which then assigned the deed of trust to defendant REO Properties Corp. REO first used Ocwen Loan Servicing LLC to service the loan, but Green Tree was assigned as the loan servicer in April 2008.
2 Different Addresses
The Steeles contend that they received a letter from Green Tree explaining that it was the new loan servicer but that the letter gave two addresses for correspondence: a payment address that was specifically set out and an address for QWRs that was buried in a paragraph of text. In October 2008, Green Tree and REO claimed that the plaintiffs were $200,000 in arrears on their loan, and counsel for the plaintiffs sent a QWR to the address provided by Green Tree's collection group. Green Tree did not respond to the QWR.
On Jan. 16, 2009, counsel for Green Tree sent the couple a notice of intent to accelerate, and the Steeles responded by sending a second QWR on Jan. 22. Green Tree stated in a facsimile dated March 16 that it could not respond to the QWR because it was not sent to the proper address and was not accompanied by authorization from the plaintiffs. The Steeles originally sued Green Tree and REO in April 2009. On Sept. 7, 2010, U.S. Judge Sidney A. Fitzwater of the Northern District of Texas awarded summary judgment to the defendants on the couple's RESPA claim after finding that Green Tree never received a QWR from the plaintiffs because it was sent to the wrong address. The plaintiffs' subsequent motion to alter or amend judgment was denied, so they appealed to the Fifth Circuit.
On Dec. 12, 2011, the Fifth Circuit affirmed the decision "for essentially the same reasons stated by the district court." The Steeles' request for a panel hearing was denied.
The plaintiffs are represented by David M. Vereeke of Gagnon Peacock Shanklin & Vereeke in Dallas. Richard A. McKinney of Higier Allen & Lautin in Addison, Texas, is counsel for Green Tree.
HOUSTON - A federal judge in Texas on Sept. 25 held that a couple can pursue a breach of contract claim against CitiMortgage Inc. for freezing an account held by the plaintiffs when they attempted to refinance their mortgage in 2011, but dismissed the remainder of their claims (Seth A. Nichamoff, et al. v. CitiMortgage Inc., No. H-12-1039, S.D. Texas; 2012 U.S. Dist. LEXIS 137270).
CORPUS CHRISTI, Texas - Residents of Corpus Christi's Hillcrest neighborhood have 40 days to submit a victim impact statement for consideration at the sentencing of CITGO Petroleum Corp. on charges that it polluted the area by illegally leaving two oil/water separators uncovered, a Texas federal judge held Sept. 25 (United States v. CITGO Petroleum Corp., et al., No. CR-06-563, S.D. Texas, Corpus Christi Div.). View related prior history, 2012 U.S. Dist. LEXIS 133103.
PHILADELPHIA - The Pennsylvania federal judge overseeing the budeprion XL multidistrict litigation on Sept. 20 denied a motion by the Texas attorney general to intervene in an approved class settlement of litigation involving the generic version of Wellbutrin XL antidepressant (In Re: Budeprion XL Marketing & Sales Litigation, MDL Docket No. 2107, No. 09-md-2107, E.D. Pa.; 2012 U.S. Dist. LEXIS 135313).
SAN ANTONIO - A federal judge in Texas on Sept. 24 refused to remand a man's suit seeking to prevent him from being evicted from his home following foreclosure after finding that the court retained subject matter jurisdiction over the action despite the entry of an order in state court allowing Deutsche Bank National Trust Co. to initiate foreclosure proceedings (Javier Reyna v. Deutsche Bank National Trust Company, No. 11-CV-1053-FB, W.D. Texas; 2012 U.S. Dist. LEXIS 135882).
HOUSTON - A divided Texas appeals court on Sept. 20 declined en banc rehearing of a panel ruling, finding that federal law preempts medical reporting requirements in asbestos cases (The Kansas City Southern Railway Co. v. Ronald K. Oney, et al., No. 14-11-815-CV, Texas App., 14th Dist.). Subscribers may view the opinion available within the full article.
VICTORIA, Texas - A Texas federal judge on Sept. 18 granted a South Korean company's motion to remand its suit against a Texas corporation to state court, finding that the dispute was in no way related to an arbitration clause in an agreement between separate parties to the case and, therefore, the case lacked federal jurisdiction (HSC Holdings, fka GE&F Co. Ltd., v. Cary Hughes, et al., No. 6-12-18, S.D. Texas, Vic.; 2012 U.S. Dist. LEXIS 133114).
HOUSTON - There is no evidence that the conduct of insurance brokers caused the damages awarded to insureds, the 14th District Texas Court of Appeals held Sept. 13, reversing and rendering a judgment that the insureds take nothing (George E. Guidry and Dwight W. Andrus Insurance Inc. v. Environmental Procedures Inc. and Advanced Wirecloth Inc., No. 14-11-00090-CV, Texas App., 14th Dist.; 2012 Tex. App. LEXIS 7834).
HOUSTON - A Texas federal judge on Sept. 13 denied a motion to dismiss a class suit brought under the Telephone Consumer Protection Act (TCPA), 47 U.S.C.S. § 227, opining that when a district court has federal question jurisdiction over the claims, it does not need to conduct a choice-of-law analysis and must apply federal law to the federal cause of action (Todd C. Bank, et al. v., Spark Energy Holdings, LLC, et al., No. 11-4082, S.D. Texas; 2012 U.S. Dist. LEXIS 130531).
NEW ORLEANS - The State of Texas is not immune from a lawsuit filed by the federal government on behalf of private individuals seeking unpaid wages, the Fifth Circuit U.S. Court of Appeals ruled Sept. 12 (Hilda L. Solis, Secretary of Labor, United States Department of Labor v. State of Texas, Texas Department of Family and Protective Services, Child Protective Services Division, No. 12-50049, 5th Cir.; 2012 U.S. App. LEXIS 19138).