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BANKRUPTCY Day after Thanksgiving is judicial holiday A bankruptcy court erred in dismissing as untimely an objection to a bankruptcy filing because-although the day after Thanksgiving was not a legal holiday under the Federal Rules of Bankruptcy Procedure-the bankruptcy court should have extended the filing deadline because the day was a judicial holiday in the state of the filing, the 9th U.S. Circuit Court of Appeals held on Oct. 13. In re Dwyer, No. 04-55044. Patricia Dwyer filed for Chapter 7 bankruptcy. The last day for filing complaints to her bankruptcy fell on the day after Thanksgiving 2002. Dwyer’s former husband, Vincent Duffy, filed an objection to her bankruptcy on Dec. 2, 2002, the first business day after Thanksgiving. A bankruptcy court granted Dwyer’s motion to dismiss the complaint as untimely, ruling that the day after Thanksgiving was not a legal holiday. The Bankruptcy Appellate Panel of the 9th Circuit reversed, holding the filing was timely. Affirming, the 9th Circuit held that, although the day after Thanksgiving was not a legal holiday under Rule 9006 of the Federal Rules of Bankruptcy Procedure, the rule provided that deadlines were also extended by days considered holidays by the state in which the bankruptcy court was located, including state and court holidays. The court said, “Our inquiry focuses on those days that the California courts recognize as ‘holidays’ because the purpose of Bankruptcy Rule 9006(a) is to provide procedural uniformity among all the courts within a particular state . . . .Rule 9006 allows lawyers and litigants within a state to rely on one legal calendar in calculating deadlines, regardless of the court in which the case is filed.”   Full text of the decision CIVIL PRACTICE No removal under CAFA despite class expansion A post-enactment expansion of the class in a class action filed before the enactment of the Class Action Fairness Act of 2005 (CAFA) did not trigger the provisions of the act, which would have allowed the defendants to remove the action to federal court, the 7th U.S. Circuit Court of Appeals held on Oct. 5. Schillinger v. Union Pacific R.R. Co., No. 05-8018. Union Pacific Railroad Co. and Union Pacific Corp. and had a right-of-way over land owned by George and Ruth Schillinger. Union Pacific leased land on the right-of-way to telecommunications companies for a profit, and the Schillingers sued in state court in June 2002, alleging trespass and unjust enrichment. The Schillingers proposed a class of similarly situated Illinois landowners. CAFA, providing for the removal of class actions to federal court, became law in February. In May 2005, the Schillingers’ amended complaint, in which they expanded their proposed class to landowners nationwide, was filed by the court clerk. Union Pacific removed the case to federal court, arguing that the post-CAFA change in the composition of the proposed class triggered CAFA’s provisions, and permitted removal. The district court remanded after determining that the case had begun before CAFA’s effective date of Feb. 18, 2005, and thus was not subject to the act. Affirming, the 7th Circuit held that the change did not trigger the provisions of CAFA. Citing its opinion in Schorsch v. Hewlett-Packard Co., the court said, “After the amendments to the complaint, however, this suit is still between the Schillingers and others similarly situated . . . and [Union Pacific], and it concerns the same claim alleged in the original complaint. As Schorsch explains, the expansion of a proposed class does not change the parties to the litigation nor does it add new claims.” CIVIL RIGHTS Judicial district immune from ADA lawsuit A Pennsylvania judicial district has 11th Amendment immunity that absolutely bars an individual’s claim against it under the Americans With Disabilities Act (ADA), the 3d U.S. Circuit Court of Appeals ruled on Oct. 12. Benn v. First Judicial District of Pennsylvania, nos. 01-3769 and 01-4012. Donald Benn was a probation and parole officer for the First Judicial District in Pennsylvania who began experiencing job-related anxiety and stress when his new duties required him to carry a gun, wear a bulletproof vest and use handcuffs in apprehending dangerous criminals. After being hit by a car on the job, he took time off, but then refused to come back because he said he was suffering from depression. The district fired him. Benn sued under the ADA, saying that the district did not offer any him an accommodation for his stress. The district court granted the district’s motion for summary judgment, which was based on 11th Amendment immunity from suit. The 3d Circuit affirmed, holding that “From a holistic analysis of the Judicial District’s relationship with the state,” it is undeniable that the state is the real party in interest and would be subjected to both “indignity and an impermissible risk of legal liability” if Benn’s suit were to be allowed. CONSTITUTIONAL LAW Firing complainer was no breach of speech rights A nurse employed by the state of Idaho who was terminated after writing a complaint letter to the governor had no First Amendment protection against being terminated for sending the letter because the letter did not address issues of public concern, the Idaho Supreme Court held on Oct. 14. Karr v. Bermeosolo, No. 30507. Maureen Karr, a nurse manager at the Idaho Division of Veterans Services, wrote a letter to Idaho Governor Dirk Kempthorne criticizing the management of the division and its personnel decisions. The division terminated Karr shortly thereafter. Karr sued the state and various division administrators, arguing that her constitutional free speech and due process rights had been violated, and that her termination was unlawful under the Idaho Protection of Public Employees Act. A trial court granted motions for summary judgment by the state and the administrators, holding that Karr’s letter was not constitutionally protected speech, and that there was no evidence that the letter was the reason for Karr’s termination. Karr appealed. Affirming, the Idaho Supreme Court held that Karr’s letter was not protected speech because it did not address an issue of public concern. The court said, “[t]he content, context, timing and subject matter of the June letter all indicate that Karr was complaining about personnel decisions . . . [which] did not involve First Amendment considerations.” EMPLOYMENT Sending dismissal note is not public dissemination A school superintendent’s sending of a teacher termination letter, which included allegedly false allegations surrounding her termination, did not constitute “public dissemination” for purposes of determining whether the teacher was entitled to due process hearing protections, the 1st U.S. Circuit Court of Appeals held on Oct. 14. Burton v. Town of Littleton, No. 05-1015. Shortly after it hired her as an elementary school art teacher, the town of Littleton, Mass., fired Fran Burton after a student alleged that Burton hit him. The school superintendent sent her termination letter containing the allegations to the Massachusetts commissioner of education, and Burton alleged that, when informing her of her termination, the school’s principal called her “an old Jew bitch.” Burton sued the town of Littleton, the superintendent and the principal, alleging discrimination on the basis of age and religion in violation of commonwealth and federal law, and violations of due process based on the superintendent’s dissemination of the allegedly false allegations to the commissioner of education without giving her a hearing to refute the charges. At the conclusion of Burton’s case-in-chief at trial, a federal district court granted judgment as a matter of law to the defendants. Affirming, the 1st Circuit rejected Burton’s discrimination claims, noting that the principal’s alleged remark came after Burton had been fired. The court also rejected the due process claim, holding that the superintendent’s forwarding of the termination letter to the commissioner of education was not “public dissemination” triggering a requirement of a hearing for Burton. The court said, “The letter to the Commissioner, like other personnel documents, is not a public record under state law and not subject to public disclosure.” INTELLECTUAL PROPERTY State of market governs likely confusion analysis When assessing the likelihood of consumer confusion in trademark infringement cases, marks must be evaluated for their similar and dissimilar features with a focus on real-world market conditions, the 2d U.S. Circuit Court of Appeals held on Oct. 12. Louis Vuitton Malletier v. Burlington Coat Factory Warehouse Corp., No. 04-2907. Louis Vuitton Malletier sued Burlington Coat Factory Warehouse Corp. over handbags the latter sold under the “Pengyuan” name that closely resembled Louis Vuitton’s “Multicolore” bags. Louis Vuitton sued for trademark infringement. At a hearing for a preliminary injunction, Burlington said that, according to its survey of consumers, there is only a 10% likelihood of point-of-sale confusion among women. Louis Vuitton argued that if the survey results were adjusted to address the way in which the products are actually displayed, the actual rate of confusion would be at least 18%. The trial court ruled for Burlington. The 2d Circuit vacated and remanded. Though two products may be readily differentiated when carefully viewed simultaneously, those same products may still be confusingly similar to ordinary customers encountering the products separately under typical purchasing conditions. Consequently, district courts must examine the likelihood of confusion within the context of real-world market conditions, by inquiring into the rate of confusion when the products are viewed sequentially rather than side-by-side. LEGAL PROFESSION Suspending lawyer for 401(k) offense is correct A six-month suspension was an appropriate sanction for a lawyer’s failure to fund his employees’ 401(k) retirement accounts despite deducting the funds from the employees’ pay and filing tax documents indicating the retirement accounts had been funded, the Wisconsin Supreme Court held on Oct. 14. In re Kalal, No. 2003AP2131-D. After former employees of attorney Ralph Kalal discovered that they had no 401(k) retirement accounts, Kalal admitted that his law firm had failed to fund the accounts, despite deducting the funds from the employees’ pay and filing tax documents indicating the retirement accounts had been funded. Wisconsin’s Office of Lawyer Regulation filed a complaint against Kalal, and a referee recommended discipline of a six-month suspension. Kalal requested a delay in his suspension to finish seven criminal matters, but the office opposed the delay in discipline. The Wisconsin Supreme Court reviewed the referee’s recommendations. Approving the referee’s recommendations, the Wisconsin Supreme Court suspended Kalal for six months, finding that Kalal’s eventual funding of the 401(k) accounts to be a mitigating factor, while Kalal’s previous disciplinary hearing was an aggravating factor. Also citing Kalal’s funding of the accounts, the court rejected the Office of Lawyer Regulation’s recommendation and delayed the suspension to allow Kalal to complete his seven criminal matters before the suspension began. TORTS Med-mal statute governs nursing home assault suit A family’s suit alleging that a nursing home’s failure to provide adequate supervision led to the sexual assault of one patient by another is a cause of action governed by the state’s medical malpractice liability statute, the Texas Supreme Court ruled Oct. 14 in a matter of first impression. Diversicare General Partner Inc. v. Rubio, No. 02-0849. In September 2000, Mary Holcomb sued the nursing home where her mother was an Alzheimer’s patient, alleging that she had been subjected to a number of sexual assaults by another patient over a six-month period. Holcomb alleged that the nursing home failed to supervise and monitor her mother adequately to prevent the assaults. The trial court granted the nursing home’s summary judgment motion, which argued the case was barred by the medical malpractice statute’s two-year limitations period. An intermediate appellate court reversed, holding that the claims were governed by common law negligence principles and that the mother’s incapacity tolled the statute of limitations. The Texas Supreme Court reversed. The claims made in this case are causes of action for departures from accepted standards of professional health-care and safety and so are covered by the broad definition of health-care liability in the med-mal statute.

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