Research Associates
	Volume 13, Number 12       Our 24th Year   December  2005

***** Happy and Healthy Holidays. *****

"They have no lawyers, … for they consider them as a sort of people whose profession it is to disguise matters." [about the kingdom of Utopia] --- Sir Thomas More, 1516

“It’s the trade of lawyers to question everything, yield nothing, and to talk by the hour.”

-- Thomas Jefferson

DECISIONS OF INTEREST

SUPREME COURT

Kane v. Espitia, No. 04-1538 (U.S.S.C. October 31, 2005)
A violation of a law library access right is not a basis for federal habeas relief. http://laws.findlaw.com/us/000/04-1538.html

Eberhart v. US, No. 04-9949 (U.S.S.C. October 31, 2005)
Federal Rule of Criminal Procedure 33, which allows a district court to vacate any judgment and grant a new trial if the interest of justice so requires, is an inflexible claim-processing rule, and the Seventh Circuit incorrectly construed its time limitations as jurisdictional. http://laws.findlaw.com/us/000/04-9949.html
 

US v. Olson, No. 04–759 (U.S.S.C. November 08, 2005)
In a private tort action against the government under the Federal Tort Claims Act, 28 U.S.C. section 1346(b)(1), the United States waives sovereign immunity only where local law would make a “private person” liable in tort, not where local law would make “a state or municipal entity” liable. http://laws.findlaw.com/us/000/04-759.html

IBP, Inc. v. Alvarez, No. 03–1238, 04-66 (U.S.S.C. November 08, 2005)
During a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity, such as the donning of protective gear, and before the end of the employee’s last principal activity is compensable under the Fair Labor Standards Act (FLSA); however, the time employees spend waiting to don the first piece of protective gear that marks the beginning of the continuous workday is excluded from FLSA coverage. http://laws.findlaw.com/us/000/03-1238.html

Schaffer v. Weast, No. 04–698 (U.S.S.C. November 14, 2005)
In an action brought under the Individuals with Disabilities Education Act (IDEA), the burden of persuasion in an administrative hearing challenging an “individualized education program” (IEP) is properly placed upon the party seeking relief. http://laws.findlaw.com/us/000/04-698.html

2ND CIRCUIT

Turner Constr. Co. v. Ace Prop. & Cas. Ins. Co., No. 04-6641 (2d Cir. October 28, 2005)
Damage attributable to the action of rain should not be subject to different insurance policy deductibles depending on how the rain entered the insured property. http://caselaw.lp.findlaw.com/data2/circs/2nd/046641p.pdf

3RD CIRCUIT

Files v. Exxon Mobile Pension Plan, No. 04-2390 (3d Cir. November 02, 2005)
In an action for pension plan benefits by the ex-wife of a now-deceased participant, a property settlement agreement constitutes a Qualified Domestic Relations Order and provides the ex-wife with a separate interest in the pension benefit prior to her ex-husband's death. http://caselaw.lp.findlaw.com/data2/circs/3rd/042390p.pdf
 

NEW YORK COURT OF APPEALS

Maroney v. N.Y. Cent. Mut., 140 (N.Y. October 27, 2005)
In determining uninsured premises liability, the phrase "arising out of" requires only that there be some causal relationship between the injury and the risk for which coverage is provided. http://caselaw.lp.findlaw.com/data/ny/cases/app/140opn05.pdf

Gilson v. Metro. Opera, No. 160 (N.Y. November 22, 2005)
In a case stemming from injuries sustained by a plaintiff when an infirm patron fell into her during a performance, summary judgment for defendant, owner of the theater premises, is affirmed since defendant owed no duty beyond reasonable care with regard to an obviously infirm patron.
http://caselaw.lp.findlaw.com/data/ny/cases/app/160opn05.pdf
 

MATTERS OF INTEREST

Martinz, et al. v. Kulongski and Defense of Marriage Coalition PAC - November 4, 2005

An Oregon judge upholds the state's legislative ban on gay marriage passed in the November 2004 election.

http://news.findlaw.com/hdocs/docs/glrts/martinezdmcpac110405.pdf

Same-Sex Marriage Litigation

http://news.lp.findlaw.com/legalnews/lit/samesexmarriage/

SPYWARE MAY CONSTITUTE ILLEGAL TRESPASS

A federal trial court in Chicago has ruled that the ancient legal doctrine of trespass to chattels (meaning trespass to personal property) applies to the interference caused to home computers by spyware. In Sotelo v. Direct Revenue, the plaintiff filed a complaint against various defendants alleging that, without his consent, the defendants caused spyware to be downloaded onto his computer. The plaintiff alleged that the spyware tracked his Internet use, invaded his privacy, and caused damage to his computer. The defendants filed a motion to dismiss the trespass to chattels cause of action, arguing that the traditional legal elements pertaining to this type of claim were not met in this new setting. While the court acknowledged that this historical legal doctrine over time has applied to personal property (such as damaging or stealing a person's bicycle), the court nevertheless denied the motion, allowing the cause of action to proceed to later trial.

For copy of opinion contact RESEARCH ASSOCIATES jmf@researchassociates.net

BRIEF RELIEF - MATTERS IN PROGRESS

1. Copyright law and liability for indirect use
2. Michigan and the 7th Circuit - voluntary dismissal and effect
3. Michigan requirements for legal malpractice expert
4. Georgia Foreclosure Law and right of sale
5. Homeowners insurance and effect of “additional living expense” provision
6. New York appeal of grant of summary judgment
7. Draft of complex malpractice complaint