Month: May 2010

Fifth Circuit's dip stick decision not to decide Comer v Murphy Oil

I would be remiss if I didn’t yield this space to someone who said all that needs to be said better than any post I could compose – and with that I yield to TBA and A miscarriage of justice:

Carefully timed for late Friday release on Memorial Day Weekend is the Fifth Circuit’s unbelievable decision in Comer v. Murphy Oil, the “global warming caused Katrina” case that, rather surprisingly, obtained a panel decision reversing the district court’s motion to dismiss. We had previously noted the case’s going en banc, with only 9 judges hearing the case and 7 recused.

Well, since that time, another judge has found it necessary to recuse, depriving the en banc court of a quorum to hear the case. What’s the result? The appeal is dismissed!

In sum, a court without a quorum cannot conduct judicial business. This court has no quorum. This court declares that because it has no quorum it cannot conduct judicial business with respect to this appeal. This court, lacking a quorum, certainly has no authority to disregard or to rewrite the established rules of this court. There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated. Consequently, there is no opinion or judgment in this case upon which any mandate may issue. 5TH CIR. R. 41.3.

Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.

The rules provided for vacating the panel decision merely pursuant to the forthcoming en banc decision. The result, of course, is to dismiss an appeal that’s been decided on the merits for appellants, through no fault of their own, not on the merits, but on a strained and suspicious hyperliteralistic application of the court’s own rules.

If the SCOTUS doesn’t grant cert here and reinstate the panel’s decision — which, remember, merely allows the case to proceed to discovery — then it’s going to be very difficult to avoid the conclusion that Americans can’t sue Big Oil and win. And that the Fifth Circuit has some judges who are unclear on the concept of “justice.” (emphasis added) Continue reading “Fifth Circuit's dip stick decision not to decide Comer v Murphy Oil”

If there is one news story that sums up the post Katrina experience……

The 5 years since Katrina have at times seemed very surreal and certainly Kafkaesque. And again we find style over substance is the corporate MO. I heard about this listening to Spuds last week but the H/T goes to Editilla, who hung the CNN story on the Ladder late last week. To set it up, we have a corrupt local politician taking advantage of the gift de fluff given him by the masters of disaster at BP:

Early Friday morning, “a number of buses brought in approximately 300 to 400 workers that had been recruited all week,” Jefferson Parish Councilman Chris Roberts told CNN’s “Situation Room.”

Roberts said the workers were offered $12 an hour to come out to the scene at Grand Isle and work in what he called a “dog and pony show.”

But, when Obama departed, so did the workers, he said, adding that he’s never seen more than 20 workers at the Grand Isle cleanup site since the effort started. Continue reading “If there is one news story that sums up the post Katrina experience……”

And while Phil waxes nonsensical let's not forget to record the musings of Mississippi's Teletubby in charge

Haley Barbour and staff just before commenting on the oil spill

 

Folks, you are not misreading the quote dutifully chronicled by the Sun Herald’s Karen Nelson, Haley said he trusts the Army Corps of Engineers! 

Gov. Haley Barbour and DMR Director Bill Walker said Thursday they trust the U.S. Army Corps of Engineers not to allow Louisiana to build any berm or sand barriers east of the mouth of Mississippi River that would cause oil to flow into Mississippi waters. 

Good thing you trust them Haley because no one down here does. 

Its gets better though because Haley and Phil evidently have their talking points and they are sticking with them by God. 

Gov. Haley Barbour, in a news conference Thursday, said the brown-orange mousse that has been washing ashore in Louisiana is not dangerous. Continue reading “And while Phil waxes nonsensical let's not forget to record the musings of Mississippi's Teletubby in charge”

I just received Phil Bryant's eNewsletter and eVideo update. He is a bigger idiot than I thought….

I don’t know how I ended up getting spam from Phil because I never signed up to receive any email from the ol’ boy. That said folks Phil was in rare form so I think we should quote him. It is amazing how ignorant of the man sounds when he is not ripping on mexicans or otherwise scapegoating a minority. Is it any wonder nothing has been done during his term as Lite Gov to solve the coastal insurance crisis?

Phil Bryant Thinks BP is “doing a good job…a remarkable job.”

“We know BP is hard at work. We know they’ve spent over I think $300 million; there are ten thousand people involved in it; nearly 300 thousand vessels. I think they’re doing a good job…. We’ve done a marvelous job; BP has done a remarkable job at dispersing it.”

– Phil Bryant – WLOX Four O’Clock Show: 05-11-2010

Phil Bryant says don’t “over react…its not toxic”

“So I don’t think you over react…The material that you see now, the rust colored material that is somewhere between 50 and 60 miles out, but if you take a sample of that I am told there are no hydrocarbons in that product so its not toxic.” – WLOX Four O’Clock Show: 05-11-2010

Phil Bryant says its only Louisiana sweet crude – not a disaster Continue reading “I just received Phil Bryant's eNewsletter and eVideo update. He is a bigger idiot than I thought….”

Kuehns put State Farm's foot in the other shoe with Motion to Enforce Settlement

At this point in Katrina litigation, it takes a long memory or short search to come up with enough background  to give context to recent developments in a case such as Kuehn v State Farm.

Henry and June Kuehn were among the hundreds of policyholders who attempted to resolve their claim right up to the day the August 29, 2008 SOL would have prevented filing suit.  SLABBED published Double Trouble – Kuehn v State Farm, the first of 20 mentioning the case, the following February.  Sop’s   Henry and June and the Topic of State Farm’s Cancerous Claims Handling: A Kuehn v State Farm Update (Updated) and Well here is another nice mess you’ve gotten me into Part Deux: Judge Senter lowers the boom on the topic of State Farm’s cancerous Katrina claims handling. Slabbed Congratulates Henry and June Kuehn were the last summarizing the issues.

From August 2009 forward, Kuehn v State Farm has been headed to trial on the remaining issues with State Farm attempting to settle.  The Company made two Offers of Judgment, the second this past April, and the case settled – or so it seemed until the Kuehn’s filed a Motion to Enforce Settlement .  Ironically, the sticking point is State Farm’s insistence the terms of the  settlement are confidential – and what we learn is that all along it has been State Farm, not plaintiffs, requiring confidential agreements to settle Katrina claims litigation! Continue reading “Kuehns put State Farm's foot in the other shoe with Motion to Enforce Settlement”

The end of the mystery……..and Alex the answer is: Who is Elizabeth Birnbaum

I frankly never got why MMS was a daily visitor as our oil spill blogging has been far exceeded by our blogging about corrupt local politicians. Once again did Mr CLS solve the mystery? Nowdy I just can’t place that last name.  😉

Speaking of mysteries I really am loath to link right wingnut Glenn Beck but even a broke clock is right twice a day so let’s welcome Barack and Chicago based Shore Bank which will gladly pay you Tuesday for a bailout today.

Hopefully you MMS people stick around with us. I’m actually MMS positive because I’ll be able to use you folks for compare and contrast.

I’ll have something soon on the oil spill. Meantime check out our good friend Editilla over at the New Orleans Ladder who has all the spill links coupled with the insight and perspective of local.

sop

Commissioner of Public Safety goes mute!

While the Lt. Governor speaks with a silver boot in his mouth, Mississippi’s Commissioner of Public Safety has gone mute – or, as the Sun Herald speculated in yesterday’s editorial “Where, oh, where is Stephen Simpson, Commissioner Simpson’s “gone missing”.

Has anyone seen Stephen Simpson lately? He’s commissioner of public safety for the state of Mississippi.

He was going to come by the Sun Herald on Tuesday. He said he wanted to meet with us and view the video of Sun Herald photographer John Fitzhugh taken last week at Mary Mahoney’s restaurant.

Fitzhugh was forced out of Mahoney’s courtyard and then ordered off a public sidewalk by some of Simpson’s employees at the direction of the governor’s press secretary. Part of that activity was caught on camera.

Maybe the state police should form a posse to go out looking for their boss.

So if you spot the commissioner, tell him we’re still here, the more than half-dozen of us who waited around for him for more than an hour, wondering what misfortune might have delayed or incapacitated him. Continue reading “Commissioner of Public Safety goes mute!”

Poor Phil – Lt. Governor has silver boot in his mouth

Mississippi’s lawn mower sniffing Lt. Governor, Phil Bryant, continues to make news with a silver boot in his mouth:

Phil Bryant Thinks BP is “doing a good job…a remarkable job.”

“We know BP is hard at work. We know they’ve spent over I think $300 million; there are ten thousand people involved in it; nearly 300 thousand vessels. I think they’re doing a good job…. We’ve done a marvelous job; BP has done a remarkable job at dispersing it.”

Phil Bryant says don’t “over react…its not toxic”!

“So I don’t think you over react…The material that you see now, the rust colored material that is somewhere between 50 and 60 miles out, but if you take a sample of that I am told there are no hydrocarbons in that product so its not toxic.”

Obviously, that silver boot is cutting off oxygen getting to the lite governor’s brain.  Ironically, he made this dumb statement at a Smart Growth conference:

“This is Louisiana sweet crude. And oh, by the way, it’s still 60 miles off our shore. Thus far, we’ve seen nothing….as the product is skimmed off the surface, the closest to shore there is no hydro carbons in it. So, it’s not toxic….There’s no need for panic. It is not the natural disaster, the national disaster that many in the media have led you to believe.”

It’s not just oil that Bryant talks with a silver boot in his mouth.  He recently made room for a few words about the Mississippi’s need for an Arizona-like law on immigration!  Continue reading “Poor Phil – Lt. Governor has silver boot in his mouth”

Slicked and SLABBED – and just flat overwhelmed

Nowadays, the process of selecting a post topic is akin to a game of disaster roulette.  As a result, I was “slicked and slabbed” by “writer’s block” – the chief symptom of same, a growing file of drafts but no post.  Fortunately,  “writer’s block” is not contagious nor does it limit reading.  Thus, I begin my recovery with an update on issues I’ve been following:

Ivor van Heerden lost the second round of his fight to regain his position with LSU:

A federal judge scolded LSU late Thursday for not being “much more professional’’ in parting ways with Ivor van Heerden, but said the respected coastal researcher failed to show that LSU retaliated against him for openly blaming the U.S. government for the levee failures in New Orleans after Hurricane Katrina.

U.S. District Judge James Brady’s refusal to issue a preliminary injunction in van Heerden’s lawsuit against LSU means van Heerden, who has worked at the school for more than 15 years, must clean out his office.

Van Heerden’s attorney, Jill Craft, had asked Brady to “require LSU to keep his position on the books.’’

Craft said she now will move for an expedited jury trial of van Heerden’s suit. Brady said he would entertain such a request. h/t New Orleans News Ladder

Chip Merlin’s Back on the Texas Ranch-Hurricane Litigation and Settlement Discussions are Raging brings us up to date on litigation following Hurricanes Dolly and Ike with news that “TWIA is in trouble”: Continue reading “Slicked and SLABBED – and just flat overwhelmed”