April 29, 2014 4th Circuit Published opinions

United States v Ocasio

Ocasio, a police officer, was convicted of conspiracy and extortion by a public official. As part of his sentence, he was ordered to pay restitution to an insurance company which was not a victim of the conspiracy. The panel affirmed in part, vacated in part and remanded. It held that under circuit precedent, extortion victims who go beyond mere acquiescence in the extortion can be coconspirators. The panel noted this is still sound law as the relevant statute, 18 UAC 371, merely requires that property be taken by someone other than the public official charged. The panel vacated the restitution order because restitution is limited to victims of the crime of conviction and here insurance fraud was charged as part of the conspiracy.

Freeman v Dal-Tile Corporation

Freeman sued Dal-Tile alleging sex and race discrimination and state law claims based on comments made by a third party vendor representative. The district court granted summary judgment to Del-Tile, the panel, with one judge dissenting in part, affirmed in part, reversed in part and remanded. The majority reversed as to race and sex discrimination claims because the representative made sex and race based insulting comments for three years plus showed inappropriate photos to Freeman, Freeman complained about the comments, Freemen subjectively found the comments offensive and the length of the behavior and content of the comments could support a finding of objective severity or pervasiveness and, adopting the knew or should have known standard, Del-tile at the least should have known about the conduct and by failing to do anything for three years did not act promptly to resolve the situation. The panel afifiemd as to Freeman’s contract and state law claims because she was not induced to quit and the emails destroyed by Del-Tile were destroyed pursuant to policy not to obstruct her claims. The dissent argued that employers cannot be liable for customer behavior and eve if they could, here, once the representative’s behavior reached the level of hostility, Del-tile intervened and thus no liability should result.

Home Buyers Warranty Corporation v Hanna

Hanna sued Corporation and other entities alleging various state law claims for defective construction of her house. Corporation filed an action in federal court seeing an order compelling arbitration of the claims against it. The district court abstained and dismissed the petition. The panel remanded with direction to dismiss. It held that under rule of Civil Procedure 19, the other entities were both necessary and indispensable as the question of whether the arbitration clause its enforceable creates a high probability of different outcomes between the state and federal forum, allowing the case to proceed in federal court would prejudice the other entities, would also create inefficiency and duplication of cases and the state forum is adequate to litigate the issues. Because the other entities should have been joined and were not diverse form Hanna, the case was remanded for dismissal for lack of jurisdiction.

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