Articles Posted in US Court of Appeals for the Fifth Circuit

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28 U.S.C. 1446(b)(3)'s removal clock begins ticking upon receipt of the deposition transcript. The Fifth Circuit dismissed Murphy Oil's appeal of an order of remand under section 1446(b)(3), based on lack of jurisdiction. In this case, Murphy Oil itself had no right to be in federal court in the first place, and only Avondale, its codefendant, could invoke the federal officer removal statute. Had Avondale not chosen to remove, Murphy Oil could not have asserted officer jurisdiction on Avondale's behalf. The court held that Murphy Oil experienced no concrete and particularized injury sufficient to satisfy the injury-in-fact prong of Article III standing. View "Morgan v. Huntington Ingalls, Inc." on Justia Law

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After a longshoreman stepped through a hole in a decommissioned oil platform and fell 50 feet to his death, his spouse filed a negligence action against Manson. The platform sat atop a barge chartered by Manson, who ordered the hole's creation but did not cover the hole or warn of its existence. The district court granted summary judgment for Manson, finding no liability under any of the three Scindia duties: a turnover duty, a duty to exercise reasonable care in the areas of the ship under the active control of the vessel, and a duty to intervene. The Fifth Circuit reversed the district court's grant of summary judgment with respect to the duty to warn of hidden dangers. In this case, there was conflicting evidence regarding whether the hole was a hidden hazard, one a stevedore would not anticipate. Finally, the court held that this case fell outside the narrow caveat in West v. United States, 361 U.S. 118, 119 (1959). Accordingly, the court remanded for further proceedings. View "Manson Gulf, LLC v. Modern American Recycling Service, Inc." on Justia Law

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The district court held that when a minor's parents bring a lawsuit on his behalf as next friends, the statute of limitations for those claims is not tolled during his period of minority if they were aggressively litigated through the prior lawsuit. The Fifth Circuit held that the district court improperly created this exception to Texas's tolling provision to its statute of limitations, and thus reversed the dismissal of plaintiff's claims related to serious and sustained injuries he suffered while he was detained at a juvenile detention center. The court held that the district court erred by fashioning a rule of its own making to find that plaintiff forfeited the protection of Texas's tolling provision when his parents had brought suit as next friends. The court remanded for further proceedings, including consideration of res judicata and other issues presented. View "Clyce v. Butler" on Justia Law

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Plaintiff filed suit against MSD in Louisiana state court under the Louisiana Products Liability Act for both the Atlantis Plate and an Infuse Bone Graft Device that was surgically implanted in his body. The Eighth Circuit affirmed the district court's grant of summary judgment on claims dealing with the Atlantis Plate, holding that the district court did not create manifest error by considering the malpractice complaint and that plaintiff did not meet his burden under the res ipsa loquitur doctrine. The court also affirmed the district court's denial of plaintiff's motion under Federal Rule of Civil Procedure 60, holding that the district court did not abuse its discretion in concluding that plaintiff and his attorney did not exercise due diligence in pursuing the discovery of documents dealing with the Verte-Stack or Progenix, and that MSD's actions in answering plaintiff's interrogatory and production request were in good faith. View "Lyles v. Medtronic, Inc." on Justia Law

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After he drove his car into a stationary train that was blocking a traffic crossing, plaintiff filed suit against KCSR, alleging common law negligence claims based on his allegations that the train blocked the crossing for an impermissible amount of time and the train's crew failed to adequately warn approaching drivers of the obstructed crossing. The Fifth Circuit affirmed the district court's grant of summary judgment, holding that plaintiff's Federal Railroad Safety Act argument was unavailing, and that both blocking claims were preempted by the ICC Termination Act. Furthermore, plaintiff's claim that KCSR failed to adequately warn motorists of the obstructed crossing was barred by Mississippi’s Occupied Crossing Rule. View "Ezell v. Kansas City Southern Railway Co." on Justia Law

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Plaintiffs, Pamela and Nick McCarty, filed suit against Hillstone, alleging a premises liability claim after Pamela slipped and fell at one of defendant's restaurants. The Fifth Circuit affirmed the district court's grant of summary judgment dismissal and held that plaintiffs failed to identify evidence from which a jury could, under any of the three methods of proof outlined in Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 12, 814–15 (Tex. 2002), conclude that Hillstone had actual or constructive knowledge of the restaurant floor's allegedly dangerous condition. View "McCarty v. Hillstone Restaurant Group, Inc." on Justia Law

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The Fifth Circuit affirmed the district court's grant of summary judgment to Wal-Mart on plaintiffs' negligence claims under Louisiana's merchant liability statute. Plaintiff Duncan slipped on a mat in front of a Reddy Ice freezer and fell forward onto the ground. The next day she had a still birth. Duncan and the child's father filed suit for wrongful death of their unborn child. The court held that plaintiffs failed to present any "positive evidence" that Wal-Mart created or had actual or constructive notice of the condition which caused the damage, as La. Stat. 9:2800.6(B)(2) requires, and therefore they cannot maintain their merchant liability claim. View "Duncan v. Wal-Mart Louisiana, LLC" on Justia Law

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Plaintiff filed suit against Offshore under the Jones Act, alleging maritime claims for negligence and unseaworthiness arising out of an alleged injury he suffered. The Fifth Circuit vacated the district court's grant of summary judgment in favor Offshore and remanded for reconsideration in light of the current Federal Rule of Civil Procedure 56, including whether the particular material to which objection was lodged can or cannot be presented in a form that would be admissible at trial. In this case, the district court relied on a prior version of Rule 56 and cases thereunder to discount the signed but unsworn report of Captain James P. Jamison. View "Lee v. Offshore Logistical & Transport" on Justia Law