Research Associates
	Volume 13, Number 11       Our 24th Year   November  2005

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"Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law." -- Clarence Thomas

"The lawyer's truth is not Truth, but consistency or a consistent expediency."

-- Henry David Thoreau (1817-62)

"No man is above the law and no man below it."

-- Theodore Roosevelt (1858-1919) 26th US President

DECISIONS OF INTEREST

SUPREME COURT

Dye v. Hofbauer, No. 04-8384 (U.S.S.C. October 11, 2005)
Denial of plaintiff's habeas corpus petition is reversed where the Michigan Court of Appeals incorrectly ruled that his prosecutorial misconduct claim was presented improperly. http://laws.findlaw.com/us/000/04-8384.html

Schriro v. Smith, No. 04-1475 (U.S.S.C. October 17, 2005)
The Ninth Circuit Court of Appeals exceeded its limited authority on habeas review when it commanded the Arizona courts to conduct a jury trial to resolve defendant-death row inmate's mental retardation claim. Death row inmates do not automatically have a right to a jury trial to determine whether they are mentally retarded and therefore ineligible for execution. Three years ago, the Court's Atkins decision left it up to states to determine whether inmates are retarded. http://laws.findlaw.com/us/000/04-1475.html

SECOND CIRCUIT

Arculeo v. On-Site Sales, No. 04-3807 (2d Cir. October 03, 2005)
Dismissal of plaintiff's suit, alleging prohibited sex-based discrimination in employment, is affirmed where defendant does not meet the fifteen-employee minimum requirement to be subject to suit under Title VII. http://caselaw.lp.findlaw.com/data2/circs/2nd/043807p.pdf

Jeffreys v. City of New York, No. 03-257 (2d Cir. October 18, 2005)
At the summary judgment stage, when a plaintiff relies almost exclusively on his own testimony, a district court may, for the purposes of determining whether there are any genuine issues of material fact, make assessments about whether a reasonable jury could credit the plaintiff's testimony. http://caselaw.lp.findlaw.com/data2/circs/2nd/03257p.pdf

FOURTH CIRCUIT

Willis v. Town of Marshall (10/07/05 - No. 03-2252)
Dismissal of plaintiff's section 1983 suit, which alleges that defendant-town unconstitutionally banned her from public dancing, is reversed where her allegations that defendant-Town arbitrarily singled her out are sufficient to support a class-of-one Equal Protection claim. http://caselaw.lp.findlaw.com/data2/circs/4th/032252p.pdf

FIFTH CIRCUIT

Ross v. Marshall and Allstate Ins.
Court OKs Insurer's Intervention in Cross-Burning Suit Texas Lawyer

In a first-of-its-kind ruling, the Court held recently that an insurer can intervene post-judgment in a suit against its insured, because the insured abandoned his appeal. The decision reverses a $10 million judgment awarded to an African-American family victimized by a cross-burning incident in 2000. The judgment was awarded against the father of one of the perpetrators.

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

NEW YORK COURT OF APPEALS

In the Matter of the Estate of Murphy, 137 (N.Y. October 27, 2005)
Under DRL section 117(2)(a), adopted children and their issue are ordinarily "strangers" to their birth relatives, and thus are excluded from class gifts; however, they are not "strangers" when the bequest is to a named adopted-out child. http://caselaw.lp.findlaw.com/data/ny/cases/app/137opn05.pdf

PENNSYLVANIA SUPREME COURT

Holland v. Marcy
Children of uninsured motorists have rights to full tort coverage when involved in an accident where their parent was not at fault, a fractured Pennsylvania Supreme Court has ruled, even though the parent is deemed to have limited tort coverage.

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

MATTERS OF INTEREST

FAST FOOD JUSTICE: INFAMOUS CASES INVOLVING FRENCH FRIES, OBESITY, TOO-HOT COFFEE, AND FINGERTIPS

By Howard Wasserman

With fast food now a longstanding cultural institution in America, FIU law professor Howard Wasserman considers some recent, high-profile cases in which issues relating to fast food have been litigated. From Judge Roberts' famous french fry decision, to the suit blaming McDonald's for minors' obesity, to the infamous Wendy's "finger in the chili" fraud, to a British suit over Greenpeace's claims, Wasserman covers, with a sharp sense of humor, the cases that concern fast food.

http://writ.news.findlaw.com/commentary/20051006_wasserman.html

BRIEF RELIEF - MATTERS IN PROGRESS

1. New York – estate and “claim bar” date.
2. New York – preparation of complaint for malpractice against hospital and physicians.
3. New York – estate request for asset inventory, forms and rules.
4. Florida – rules on when divorced parent needs to seek permission to relocate.
5. Illinois - right to obtain funds from carrier prior to payment.
6. Shepardize two Supreme Court cases.
7. Preparation of interrogatories and notice to produce documents in breach of contract matter.