Articles Posted in U.S. Court of Appeals for the Fifth Circuit

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TGS, a Houston company requested seismic data from Geophysical, a Canadian company, under Canada's law that requires companies who gather seismic data about the Earth's substructure to submit their findings to the Canadian government. After a period of confidentiality, the Canadian agency that compiled this data was then apparently permitted to release it to members of the public upon specific request. Geophysicial then filed suit against TGS, alleging copyright infringement. The court held that the act of state doctrine does not forbid a United States court from considering the applicability of copyright's first sale doctrine to foreign-made copies when the foreign copier was a government agency. The court also held that the inapplicability of the Copyright Act, 17 U.S.C. 101 et seq., to extraterritorial conduct barred a contributory infringement claim based on the domestic authorization of entirely extraterritorial conduct. Accordingly, the court affirmed in part, reversed in part, and remanded. View "Geophysical Service v. TGS-Nopec Geophysical" on Justia Law

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Father initiated proceedings for the return of his two young daughters under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. The children resided in Mexico City until Mother took them on vacation and wrongfully detained them in the United States. The district court ordered the children returned to Mexico. The court affirmed the district court's denial of Father's post-judgment motions, concluding that the courts in Mexico, the state of the children's habitual residence, are the appropriate forum to grant relief to address his concerns. The court explained that, subject only to the confines of Mexican law, Mexican courts are free to grant Father full custody over the children and to prohibit or restrict their international travel, and there is no international legal void that requires the Convention’s intervention. In regard to Mother's challenge of the district court's denial of her motion to vacate the Original Return Order, the arrest warrant for Mother's arrest does not establish clear and convincing evidence of a grave risk of harm to the children. Therefore, the court affirmed the district court's denial of Mother's motion to vacate. View "Vergara Madrigal v. Tellez" on Justia Law

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After an Iraqi insurgent group kidnapped and murdered twelve Nepali men as they traveled through Iraq to a United States military base to work for Daoud, a Jordanian corporation that had a subcontract with KBR, the victims' families and one Daoud employee filed suit against Daoud and KBR under the Alien Tort Statute (ATS), 28 U.S.C. 1350; the Trafficking Victims Protection Reauthorization Act (TVPRA), 18 U.S.C. 1596; and state common law. Plaintiffs settled with Daoud and the district court eventually dismissed plaintiffs' claims against KBR. The court held that the district court’s grant of summary judgment on the ATS claims in favor of KBR was proper in light of the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co.; the district court correctly dismissed the TVPRA claims because (1) the TVPRA did not apply extraterritorially at the time of the alleged conduct in 2004 and (2) applying a 2008 amendment to the TVPRA that had the effect of permitting plaintiffs’ extraterritorial claims would have an improper retroactive effect on KBR; and the district court did not abuse its discretion in dismissing the common law claims by refusing to equitably toll plaintiffs’ state law tort claims. Accordingly, the court affirmed the judgment. View "Adhikari v. Kellogg Brown & Root" on Justia Law

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These consolidated cases involve Antigua and its alleged involvement with the Stanford Ponzi scheme. Antigua, as a foreign nation, challenged the district court’s jurisdiction in each suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1604. The district court determined that it had jurisdiction over the suits under both the commercial activity and waiver exceptions of the FSIA. This appeal involves the third clause of the commercial activity exception. Because the court found that Antigua’s actions did not cause a “direct effect” in the United States, the court need not consider the other elements of the commercial activity exception’s third clause. Accordingly, the court reversed the district court's holding that the commercial activity exception applies. Although Antigua contests the merits of the district court’s waiver ruling, Antigua does not contest the application of the commercial activity exception to OSIC’s breach of contract claims. As such, OSIC’s breach of contract claims will proceed under the commercial activity exception regardless of whether the court overturns the district court’s holding on the waiver exception. The court also concluded that the district court has already provided Antigua with the relief it seeks on appeal, and thus declined to further address the scope of the district court’s waiver ruling. Accordingly, the court reversed in part and remanded in part. View "Frank v. Commonwealth of Antigua and Barbuda" on Justia Law

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The court-appointed receiver for a Ponzi scheme (the Stanford scheme) filed suit against LIA and LFICO, seeking to recover proceeds of certificates of deposits (CDs) previously transferred to LFICO by SIB. The district court ruled that LIA was immune from the district court's jurisdiction pursuant to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1291, but that LFICO was not. Both the receiver and LFICO timely appealed. The court held that the FSIA provides no basis for jurisdiction over LIA and affirmed the district court’s holding that it had no jurisdiction over the claims against LIA under the FSIA. However, the court vacated the district court's ruling that it had jurisdiction over the claims against LFICO under the FSIA and remanded for development of the factual record on this issue and for a determination whether LFICO is an organ, and thus an agent or instrumentality, of Libya under the FSIA. View "Janvey v. Libyan Investment Authority" on Justia Law

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Petitioner challenges the district court's denial of his petition for return of his children to Venezuela pursuant to the Hague Convention. The court concluded that the district court applied the correct legal standard in determining the children’s habitual residence, and its shared intent determination was not clearly erroneous. In this case, the record demonstrates that respondent, the children's mother, and petitioner's last shared intent was to abandon Venezuela permanently as the children’s habitual residence. There was a meeting of their minds to abandon Venezuela as the children’s habitual residence. The court also concluded that petitioner cannot meet his burden to show that the children were wrongfully removed from Venezuela or retained in the United States because Venezuela was abandoned as the children’s habitual residence. Accordingly, the court affirmed the judgment. View "Delgado v. Osuna" on Justia Law

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Petitioner, an American citizen and national, was convicted of homicide and injuries in Mexico. Pursuant to the Treaty on Execution of Penal Sentences, petitioner was transferred from Mexico to the United States. At issue is the USPC's contest of the court's jurisdiction and petitioner's assertion that the USPC’s determination of his release date was substantively unreasonable, in light of his claim that it failed to account for the abuse he suffered while imprisoned in Mexico. Because petitioner challenges the substantive reasonableness of his sentence based on the USPC’s refusal to vary downward, the court concluded that it has jurisdiction to review his claim. On the merits, the court concluded that petitioner failed to overcome the presumption of reasonableness for his within-Guidelines sentence of 204 months in prison. Accordingly, the court denied the petition for review. View "Gomez v. USPC" on Justia Law

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Six-year-old D.A.P.G. was abducted from his home in Honduras and brought illegally into the United States by defendant, his mother. Plaintiff filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, seeking the return of his only child. Plaintiff filed his return petition two months outside of the one-year period of the child's wrongful removal, allowing the district court to consider the Convention’s defense that the child is well-settled in his new environment and therefore should not be returned. The district court denied plaintiff's petition, concluding that D.A.P.G. was well-settled in his current community even though defendant’s removal of D.A.P.G. from Honduras was wrongful. The court concluded that the district court erred in its legal analysis and application of the Convention’s well-settled defense. The court joined its sister circuits and held that the following factors should be considered: (1) the child’s age; (2) the stability and duration of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child’s participation in community or extracurricular activities; (6) the respondent’s employment and financial stability; and (7) the immigration status of the respondent and child. The court joined the Second and Ninth Circuits in concluding that immigration status is neither dispositive nor subject to categorical rules, but instead is one relevant factor in a multifactor test. Here, the district court did not clearly err in its factual findings but erred in its legal interpretation and application of the well-settled defense. Giving due consideration to immigration status and the other relevant factors listed above, the thin evidence in the record does not demonstrate that D.A.P.G. has formed significant connections to his new environment. Accordingly, the court vacated and rendered judgment in plaintiff's favor. View "Hernandez v. Pena" on Justia Law

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Pedro Antonio Flores Rodriguez petitioned for the return of his child, A.S.F.S., from the girl's mother, Yolanda Ivonne Salgado Yanez, under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act, 22 U.S.C. 9001-11. The district court denied the petition. The court concluded that the district court erred in concluding that Flores was not exercising his custody rights at the time of removal. Furthermore, the court agreed with Flores that the Convention requires an objection, not a mere preference, to being returned. In this case, the district court may have framed its questions during the private colloquy in terms of whether A.S.F.S. preferred to live in the United States, but its written findings are more ambiguous. Although the district court's findings adequately explain why A.S.F.S. is mature enough to object, they only hint at whether she did object and, if so, for what reasons. Accordingly, the court vacated this portion of the district court's order and remanded to allow the district court to engage in a new colloquy with A.S.F.S. and enter more detailed findings regarding its eventual conclusion. View "Flores Rodriguez v. Salgado Yanez" on Justia Law