Feed Me, Seymour

Did you know there was a Texas Business Opportunities Act?  I did not know that.  But here it is, one of the pleaded causes of action in a case brought by unhappy franchisees of a non-surgical weight loss business.  Which brings up another thing I’d never heard of before – a Sculpt Pod.  Oh sure, I saw it in Little Shop of Horrors but as a legit weight loss device? 

All of which, of course, cannot help but generate a motion to remand this very interesting set of facts and causes of action to back to state court, with some interesting observations by the Court on when a claim arises under federal law.

Weblog update

I had a chance over the weekend to do some maintenance on the “back office” side of the weblog, and subscribers should see a few changes. I’ve gotten some bugs worked out of the renewal dates for individual and law firm/practice section subscribers, which in some cases weren’t being handled correctly.  In the course of doing that I discovered that some of the daily email subscribers had an expiration date, which wasn’t intended, so I’m correcting that as well.

The signup page here is where you can add and correct your subscription information.  If you’re renewing, the system will recognize you if you use the same email and password – which will save you from having to create a new account, which I know a few people have done.  Just email me if you need your information or have any other problems.

And as always, if you’re interested in hearing about particular types of cases, let me know.

Motion to Dismiss False Claims Act Complaint Granted in Part

This Monday’s False Claims Act case is a report & recommendation by a magistrate judge, adopted by the district judge, which addressed a motion to dismiss relator’s claims under the FCA’s first to file rule, and motions to dismiss under FRCP 12(b)(6) and FRCP 9, which implicated both normal and heightened standards of pleadings.  No objections to the report were filed, thus the district court’s review was limited to plain error / manifest injustice, and it did not find any.

Proportionality Finally Gets Used in a Discovery Order

Let’s say you defeat an adversary in litigation, and you’re looking for assets from which a judgment can be satisfied.  Can you get discovery into your former opponent’s disposition of assets?  The answer is yes, but not prior to when you made your claim.  Why? Because it would not be proportional to the needs of the case. This order makes that finding, but then defines what discovery would be “proportional” under the circumstances.

Breach of Settlement Agreement

I’ve seen a couple of cases recently out of the EDTX dealing with breaches of settlement agreements.  In some cases the complaining plaintiff (who in this case was the original plaintiff) seeks injunctive relief, but in this copyright case it is just seeking an order in a default situation that it is entitled to the unpaid payments due under the original agreement, as well as fees, costs, and since the infringing activity has resumed, a finding of liability and award of statutory damages.  In essence, the hole for the copyright defendant just got twice as deep.  (Pro tip: don’t default).

Admittedly this is a default situation, but it’s a nice template for what to seek when you have to go once more unto the breach.


Motion to Limit Pre-Suit Damages For Failure to Mark

Defendants in patent cases sometimes allege that a plaintiff has failed to comply with the marking requirement of 35 U.S.C. § 287, and thus that pre-suit damages are limited.  As here, that motion often takes the form of a motion for partial summary judgment.  The Court’s order in this case provides a useful exposition on the applicable standards for patent marking, and applies those standards to the facts of this rather interesting case to determine whether the pleadings were sufficient for the plaintiff to seek presuit damages in the first place, and if so, whether the defendant met its burden to allege a limitation, and if so (also) whether the plaintiff had satisfied its burden of compliance.

Wait – I went into the ditch here.  On a motion for summary judgment, the final question is not whether the plaintiff had shown compliance, but actually just whether there is a factual dispute as to whether unmarked patented products were sold.  There, I feel better.

Naturalization Ceremony in Marshall

This morning saw the first naturalization ceremony in the Marshall courthouse in quite some time.  Judge Gilstrap conducted one in Tyler a couple of months back, but it’s not often they make it all the way to Marshall.  It was standing room only, with a monitor and chairs in the hallway for the visiting schoolchildren and overflow guests, with the Daughters of the American Revolution (DAR) chapter that helps put the event on at counsel table.  The Marshall High School Junior ROTC provided the color guard, and ETBU provided a choral group for the national anthem and “America the Beautiful”.  As my old trombone choir professor used to say, there wasn’t a dry seat in the house.  Or maybe that was just me.  Anyway, for an outfit without trombones they were pretty good.

Judge Gilstrap spoke on the obligations and privileges of citizenship, and shook hands with the new citizens (from thirteen countries) after they received their certificates from the DHS representatives, and an American flag from the DAR. The local bar association provided lunch for the new citizens and their families at Miguel’s across the square, and the Harrison County Elections Office had a table for new citizens to register to vote.

Naturalizations locally are decidedly celebratory events with a great deal of participation by the community.  It was a good day to be an American and welcome our fellow citizens.