Opinion Digests

Criminal - Post-Conviction Motion - Ineffective Assistance

By Deborah Elkins
November 24, 2008

A Big Stone Gap U.S. District Court denies defendant’s motion for post-conviction relief under 28 U.S.C. § 2255 based on her claim that her lawyer provided ineffective assistance of counsel when he “forced” her to be sentenced on 2004 drug charges, rather than “trying to work out a new deal” after she later faced additional […]

Civil Procedure - Jurisdictional Amount - Partnerships

By Deborah Elkins
November 24, 2008

A Richmond U.S. District Court has personal and subject matter jurisdiction over this suit for specific performance filed by an LLC that requests that defendants convey their partnership interests in the Lee School Lofts Partnership to Lee School at the price dictated by the Limited Partnership Agreement.
Lee School Lofts is a condominium complex located in […]

Employment Discrimination - Mail Handler - Reassignment

By Deborah Elkins
November 24, 2008

A Richmond U.S. District Court grants summary judgment to defendant Postmaster General in this suit by a 43-year-old Caucasian female mail handler who suffers from a hearing impairment, alleging discrimination on the basis of race, color, sex age and disability.
Plaintiff has not provided sufficient evidence to show that her removal from the outside detail assignment […]

Bankruptcy - Security Interest - Furniture Store Inventory

By Deborah Elkins
November 24, 2008

Affirming a bankruptcy court, a Richmond U.S. District Court says appellant has a security interest in debtor furniture store’s inventory appellant provided in a September 2007 consignment and security agreement.
The controversy arises from a September 2007 agreement for appellant D.M. Reid to conduct a 90-day sales promotional event for debtor. As part of this arrangement, […]

Criminal - Severance - Discovery - CI

By Deborah Elkins
November 24, 2008

In this drug prosecution arising from an Immigration and Customs Enforcement sting operation, an Alexandria U.S. District Court denies defendant’s motion to sever defendant’s trial from that of his alleged coconspirator, and denies defendant’s motion for discovery of additional information about the confidential informant in the case.
In a conspiracy case, there is a presumption that […]

Employment - ERISA - Plan Trustee Overpayments

By Deborah Elkins
November 24, 2008

A company that alleges an assignee trustee of its company retirement plan did not follow instructions for social security bridge payments under the plan and has refused to make up the $1.1 million in overpayments can sue the trustee under ERISA, an Alexandria U.S. District Court says.
Plaintiffs instructed the trustee regarding specific dates to cease […]

Civil Procedure - Settlement Enforcement - Jurisdiction

By Deborah Elkins
November 24, 2008

A Richmond U.S. District Court dismisses plaintiff airline’s motion to enforce a settlement agreement with defendant aviation service; the Richmond court lacks subject matter jurisdiction because the court’s order dismissing the suit did not incorporate the parties’ settlement agreement.
On July 21, 2008, the parties agreed to settle their dispute for $350,000, and on July 23, […]

Intellectual Property - Corporate Identity Theft - Consent Order - Attorney’s Fees

By Deborah Elkins
November 24, 2008

After entry of a consent order in this suit by a nonprofit corporation claiming “identity theft” by its former executive director, an Alexandria U.S. District Court still has before it the questions of attorney’s fees and statutory damages to plaintiff for defendant’s violations of the Lanham Act, 15 U.S.C. § 1125 and the Anticybersquatting Consumer […]

Civil Procedure - Class Certification - Condo Purchase Rescission - Interstate Land Disclosure Act

By Deborah Elkins
November 24, 2008

An Alexandria U.S. District Court denies class certification under Fed. R. Civ. P. 23 of a class to include all individuals who contracted to buy a condominium from defendant Merrifield Town Center Ltd. Partnership, which has been subjected to multiple lawsuits after a decline in value of the property between the date buyers agreed to […]

Civil Procedure - Real Party In Interest - Auto Accident - Plaintiff’s Funding

By Deborah Elkins
November 24, 2008

In plaintiff’s p.i. action against a driver’s employer, a Norfolk U.S. District Court denies the employer’s motion to join as the real party in interest American Legal Funding LLC, which has helped fund plaintiff’s lawsuit under a consensual equity lien and security agreement.
Virginia law expressly provides that a party may not assign a personal injury […]

Civil Procedure - Personal Jurisdiction - Drug Manufacture - Conspiracy Claim

By Deborah Elkins
November 24, 2008

In a Virginia drug company’s suit against a non-Virginia company being sued on an agreement to manufacture and distribute two generic drugs, a Richmond U.S. District Court does not have personal jurisdiction over two defendants under Virginia’s long-arm statute based on plaintiff’s claim that defendants came to Richmond to attempt to pressure plaintiff to modify […]

Employment - ERISA - Disability Benefits - Appeal Notice

By Deborah Elkins
November 24, 2008

The 4th Circuit upholds summary judgment finding that an employee disability plan violated ERISA when it failed to provide an appeal notice in its second termination letter, which for the first time cited the plan’s pre-existing condition limitation as the basis for denial; but the district court erred in awarding claimant benefits for her psychological […]

Employment Discrimination - Title VII - Air Traffic Controller - Hostile Environment

By Deborah Elkins
November 24, 2008

A female air traffic controller gets another shot at proving her “hostile environment” case because the district court erred in refusing to consider affidavits from her coworkers about conduct plaintiff did not personally witness; the 4th Circuit reverses summary judgment for the defendant Secretary of Transportation.
The district court held that plaintiff did not show that […]

Criminal - Indictment - Legislative Immunity

By Deborah Elkins
November 24, 2008

A sitting U.S. Congressman must face trial on criminal charges as the 4th Circuit rejects his claim that the grand jury was improperly presented with evidence of his legislative acts, causing his indictment to contravene the legislative immunity provided to him by the Speech or Debate Clause of Article I, Section 5, Clause 1 of […]

Real Estate - Contract - Deposit With Auctioneer

By Deborah Elkins
November 21, 2008

A real estate buyer proved fraud by showing defendant auctioneer put the buyer’s deposits in a trust account and promptly wrote checks covering his own expenses for much of those funds; a Norfolk Circuit Court awards the buyer $10,000 in nominal damages, $3,500 in punitive damages and $12,962 in attorney’s fees and costs. Doddy v. […]

Domestic Relations - Spousal Support - Husband’s Retirement - Wife’s Disability

By Deborah Elkins
November 20, 2008

Although husband recently retired from his position as a physician earning $91,000 annually, he makes more money now and a Roanoke County Circuit Court says he must continue paying wife $554 in monthly spousal support.
Makoui v. Makoui (Roanoke County Cir.Ct.) (VLW 008-8-237) (4 pp.)

Municipal - Insurance - Bus Transport - Special Needs Student - Immunity

By Deborah Elkins
November 19, 2008

A special needs student’s injuries from his wheelchair rolling off the curb did not occur in the “use” of the school bus, and a Brunswick County Circuit Court says the school board has immunity from the student’s p.i. suit, and the boy has no UM coverage under mom’s policy.
Griffin v. Brunswick County Public School Board […]

Civil Procedure - Real Party In Interest - Auto Accident - Plaintiff’s Funding

By Sarah Rodriguez
November 18, 2008

In plaintiff’s p.i. action against a driver’s employer, a Norfolk U.S. District Court denies the employer’s motion to join as the real party in interest American Legal Funding LLC, which has helped fund plaintiff’s lawsuit under a consensual equity lien and security agreement.
Payne v. Wyeth Pharmaceuticals Inc. (USDC-ED) (VLW 008-3-518) (5 pp.)

Employment Discrimination - Title VII - Air Traffic Controller - Hostile Environment

By Deborah Elkins
November 17, 2008

A female air traffic controller gets another shot at proving her “hostile environment” case because an Alexandria U.S. District Court erred in refusing to consider affidavits from coworkers about conduct plaintiff did not personally witness.
Ziskie v. Mineta (USCA) (VLW 008-2-149) (16 pp.)

Employment - Public Employee - Grievance - Sick Leave Bank

By Deborah Elkins
November 17, 2008

A former recreation employee for the City of Norfolk can grieve her termination with a complaint about use of the Sick Leave Bank and denial of benefits, even though her complaint asked for damages and did not clearly seek reinstatement, a Norfolk Circuit Court says.
The employee’s grievance was denied for failure to state a dispute […]

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