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Improving and facilitating the administration of justice in the federal courts within the Fifth Circuit.

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News Flash

On September 26 and 27, 2016, the Bar Association of the Fifth Federal Circuit with Baylor University School of Law will host the 2016 Annual Appellate Advocacy Seminar in New Orleans.  Cost is $150 for 10.25 hours of Continuing Legal Education, including both an hour of Professionalism and an hour of Ethics.  Circuit Judges Jennifer W. Elrod, Catharina Haynes and James E. Graves, Jr. will give practical advice on effective oral argument and brief writing.   Professors Scott Fraley and Greg White from Baylor University School of Law will be conducting a two hour writing workshop with “Three Tips to Make Each Part of Your Brief Memorable and Effective”.  Marianne M. Auld, Chair of the Appellate Section at Kelly Hart in Fort Worth, TX will be our Ethics Speaker. Mike H. Rubin, McGlinchey Stafford, Baton Rouge, LA will speak on Professionalism.  We are honored to have David C. Frederick from Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, DC and Adjunct Professor of the University of Texas. He is one of the nation's leading appellate advocates, and will present important issues before the Supreme Court.  Observe oral arguments and get practical advice from the Court and seasoned attorneys.  This seminar is an ideal introduction into federal appellate practice, with specifics about Fifth Circuit procedures.

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Fair Labor Lawyer by Marlene Trestman

The Clerk of Court for the Fifth Circuit has offered guidance for citation to the record on appeal.  

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The Daily Commentary (sample)

Sample case reviewed on July 20, 2016.
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Crutchfield v. Dinkins No. 15-30709

Before SMITH, BARKSDALE, and COSTA, Circuit Judges.

AFFIRMED. (July 13, 2016).

Because it is below sea level, and bordered by Lake Pontchartrain to the north and the Mississippi River to the south, the City of New Orleans is particularly susceptible to flooding. The underlying case arose from recent efforts to address this intractable problem. Created twenty years ago, the Southeast Louisiana Urban Flood Control Project aimed to reduce flooding by improving draining canals, increasing capacity for pump stations, and constructing new pump stations. But efforts to construct a new canal in New Orleans’s Ninth Ward were met with complaints of property damage to surrounding homes. In consequence, nearby property owners filed suit asserting claims of damaged property resulting from a variety of construction activities, and sought to certify a class. Holding that Rule 23’s requirements of commonality, predominance, and superiority were lacking – primarily because of the difficulty of establishing which defendants and which conduct caused the alleged damages – the District Court denied class certification. In its denial, the District Court concluded that plaintiffs failed to satisfy the requirements of commonality under Rule 23(a) and predominance and superiority under Rule 23(b)(3). The Fifth Circuit granted plaintiffs’ request for an interlocutory appeal pursuant to Rule 23(f) to consider whether the District Court acted in abuse of its discretion.

The Fifth Circuit affirmed the judgment of the District Court. The Court first considered sua sponte whether the District Court had jurisdiction over the case that would authorize a certification ruling. The Court agreed with the District Court that jurisdiction existed under the Federal officer removal statute, which creates Federal jurisdiction even over cases brought against private parties if they are sued for conduct they committed under the direction of Federal authorities and for which they have a colorable defense under Federal law. See Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 460–61 (5th Cir. 2016). Turning to the merits, the Court recalled that for all Rule 23 class actions, a party seeking certification must show that: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a). Although the District Court gave three separate grounds for denying the motion for class certification (commonality under Rule 23(a); and both predominance and superiority under Rule 23(b)(3)), it found that the “fatal defect” was the lack of predominance, the Fifth Circuit agreed that predominance was the “most glaring obstacle to certifying this case,” and affirmed on that basis. Despite plaintiffs’ characterization of this case as a similar one involving a “single episode,” the Court’s review of the allegations and evidence demonstrated otherwise. Explaining, the Court recounted that “[t]his lawsuit seeks to recover different damages caused by different acts committed by different defendants at different times over a five year period.” Accordingly, the Court decided that the District Court did not abuse its discretion in concluding that individualized issues of causation and damages would predominate.

On Appeals from the United States District Court for the Eastern District of Louisiana (Martin L.C. Feldman).
Attorney for Appellant – Michael Gregory Bagneris, New Orleans, LA; John Karl Etter, New Orleans, LA
Attorney for Appellee – Jeffrey Edward Richardson, New Orleans, LA

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