Sample Daily Update
A daily report of all published (and selected unpublished) non-habeas civil decisions of the U.S. Court of Appeals for the Fifth Circuit.
The U.S. Court of Appeals for the Fifth Circuit published the following on Monday, October, 13:
(1) Hopkins v. Cornerstone America, No. 07-20953 (5th Cir. Oct. 13, 2008) (Garza, Elrod and Hicks (W.D. La.)): Fourteen individuals treated as independent contractors by Cornerstone America (for which they sold health insurance) sued under the Fair Labor Standards Act for unpaid overtime. The district court held on partial summary judgement that 13 were employees, and the fourteenth was estopped from claiming that he was an employee because of a contrary assertion in an unrelated lawsuit. The district court certified the plaintiffs' employment status for interlocutory appeal and the Fifth Circuit agreed to review it. Holding: Affirmed on the holding that the plaintiffs "were employees of Cornerstone as a matter of economic reality." But the summary judgment on estoppel was vacated and remanded. The judgement was based on one employee's claim, in response to being sued for sexual harassment, "that he was an independent contractor and thus outside the scope of the [Texas Commission on Human Rights Act]." But "it is legally possible to be an employee for purposes of the FLSA and an independent contractor under most other statutes." (Appeal from N>D> Texas; http://www/ca5.uscourts.gov/opinions/pub/07/07-10952-CV0.wpd.pdf.)
(2) Campbell v. Countrywide Home Loans, Inc., No. 07-20499 (5th Cir. Oct. 13, 2008) (Higginbotham, Stewart and Southwick): When the Campbell's filed for Chapter 13 bankruptcy in April 2006, Countrywide filed a proof of claim. Its claim did not include the unpaid amounts on the Campbell's monthly house notes from January to April 2006 for insurance and taxes. Instead, Countrywide's proof of the claim indicated that it intended to increase the Campbells' post petition monthly escrow to make up for the pre-petition messed payments. The bankruptcy court held that in so doing, Countrywide made a claim against the Campbells for a pre-petition debt in violation of the automatic stay. In August 2008, the Fifth Circuit agreed that Countrywide's escrow payment increase was for a pre-petition debt, but found no violation of the automatic stay, so it reversed and rendered. "Countrywide did not collect this new amount or take any action outside the bankruptcy proceeding to collect it... We find no precedent in which a court has held that asserting a right to payment in a Proof of Claim constitutes a violation of the automatic stay" (footnote omitted). Countrywide petitioned for panel and en banc rehearing. Holding: The Court withdrew its August 2008 opinion but, in its substituted opinion, reached the same result: reversed and rendered. Minor editing occurred throughout, but the only significant difference appears to be in the first paragraph of page 10, which now emphasizes that Countrywide's escrow increase to cover amounts that Campbells failed to pay pre-petition was improper: it "was... a debt that Countrywide needed to file as a claim." (Appeal from S.D. Texas; August 2008 opinion: http://www.ca5.uscourts.gov/opinions/pub/07/07-20499-CV0.wpd.pdf; October 2008 opinion: http://www/ca5/uscourts.gov/opinions/pub/07/07-20499-CV1.wpd.pdf.)