July 15, 2018

Archives for October 18, 2011

Colorado Civil Access Pilot Project: Changes to Included/Excluded Actions

The Colorado Supreme Court has amended the Chief Justice Directive that outlines the implementation of the Civil Access Pilot Project. As of October 2011, an amended Appendix A has been included in CJD 11-02. The Appendix describes the types of cases that will be included in the program, and those that will be excluded.

The revised Chief Justice Directive with the updated list of included and excluded actions can be found here.

The Civil Access Pilot Project is an attempt by State Judicial to revamp the discovery process and reduce the expense of civil litigation in certain business actions. The Colorado Rules of Civil Procedure concerning pleading, discovery, and trial management have been modified for the cases falling within the realm of the project.

The pilot project is scheduled to last two years, unless extended by the Court.

CJD 11-02 – “Adopting Pilot Rules for Certain District Court Civil Cases”

Colorado Supreme Court: An Ineffective Assistance of Counsel Claim Premised on Failure to File Motion for Disqualification Must Have Allegation of Judicial Bias

The Colorado Supreme Court issued its opinion in People in the Interest of A.G., and Concerning C.M. on October 17, 2011.

Ineffective Assistance of Counsel—Judicial Disqualification—Appearance of Impropriety.

The Supreme Court reversed the court of appeals’ order requiring the trial court to determine on remand whether respondent received ineffective assistance of counsel because her attorney did not timely file a motion to disqualify the trial judge, whose clerk was related to a material witness in the case. The court also vacated the court of appeals’ directions to the chief judge to transfer the case to another judge.

Without deciding what is required to prevail on an ineffective assistance claim, the Court acknowledged that, at the least, an allegation of prejudice is necessary. Moreover, the Court held that when an ineffective assistance of counsel claim is premised on an attorney’s failure to file a motion for disqualification, the prejudice element cannot be satisfied without an allegation that the judge actually was biased. Because respondent’s motion for disqualification was based entirely on an appearance of impropriety, rather than a claim of actual bias, it failed to satisfy the prejudice element. Accordingly, the Court found it unnecessary to remand for additional findings on ineffective assistance.

Summary and full case available here.

Tenth Circuit: Patent Infringement May Constitute Misappropriation of Advertising Ideas Within Meaning of Commercial Insurance Policies

The Tenth Circuit Court of Appeals issued its opinion in DISH Network Corp. v. Arch Specialty Ins. Co. on Monday, October 17, 2011.

The Tenth Circuit reversed and remanded the district court’s decision. Petitioner Corporation filed a diversity action in the District of Colorado, seeking a judgment declaring that its insurers had a duty under Colorado law to defend it in a patent infringement suit. The company claiming the infringement “asserted that Dish did so by ‘making, using, offering to sell, and/or selling . . . automated telephone systems, including without limitation the DISH Network customer service telephone system, that allow [Dish’s] customers to perform pay-per-view ordering and customer service functions over the telephone.'” The district court held that the underlying complaint against Petitioner’s insurers did not allege an “advertising injury” under the policies issued to Petitioner and granted the insurers’ motion for summary judgment.

However, the Court found that “the complaint potentially alleges advertising injury arising from the misappropriation of advertising ideas.” While the Court agreed with the district court’s conclusion that “patent infringement may, under certain circumstances, constitute ‘misappropriation of advertising ideas,’ the Court disagreed with its ruling that the patented means of conveying advertising content at issue here could not be ‘advertising ideas’ within the meaning of Dish’s commercial general liability policies.” Regarding the duty to defend, the Court held that the patent infringement complaint “may arguably fall within the polic[ies]” at issue because “it potentially alleged advertising injury arising from Dish’s misappropriation of its advertising ideas, which Dish committed in the course of advertising its goods, products, or services.” The Court therefore reversed the district court’s grant of summary judgment to the Insurers and remanded for further proceedings.

Tenth Circuit: Reentry into the Country Was Illegal Without the Authorization of the Attorney General

The Tenth Circuit Court of Appeals issued its opinion in Cordova-Soto v. Holder, Jr. on Monday, October 17, 2011.

The Tenth Circuit denied the petition for review. Petitioner is a native and citizen of Mexico, “who entered the United States as a child without inspection at an unknown place and time.” She became a lawful permanent resident in 1991, but in October 2005, DHS initiated removal proceedings against her and charged her as removable due to drug convictions. Petitioner stipulated to the charges and was deported. She was found in Kansas, however, in 2010. She claimed that the removal order against her was not lawful and it was therefore not illegal to reenter the country.

The Court disagreed. Petitioner admittedly reentered the country, without the Attorney General’s authorization, shortly after being removed. Because the removal order was lawful, she required authorization to reenter the country at any time, a fact she stipulated to. Because she could not have entered the United States legally when she did, her reentry was illegal and she was therefore subject to reinstatement of her previous removal order.

Tenth Circuit: Unpublished Opinions, 10/17/11

On Monday, October 17, 2011, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

Unpublished

United States v. Leyva

Flores v. United States Attorney General

United States v. Pickard

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.