Docket – November 29, 2018

4th U.S. Circuit Court of Appeals

McCormick v. Am. Online Inc. (P), 4th Cir. (Niemeyer) from EDVA at Alexandria (Lee).

The Federal Arbitration Act does not itself provide an independent jurisdictional basis for disputes arising under it. While jurisdiction over a petition to compel arbitration under the Act’ § 4 is determined by the nature of the underlying dispute, the statutory language supporting that conclusion is absent from § 10 and § 11, and circuit courts are split as to how such jurisdiction over § 10 and § 11 motions is to be determined. This court concludes that the best approach is to look to the nature of the underlying claim in dispute, just as is done with respect to § 4 petitions.

In this case, the plaintiff, who arbitrated a claim that arose under a federal statute, sought to vacate or modify the arbitration award under the district court’s federal-question and diversity jurisdiction. Under the approach explained here, the district court had federal-question jurisdiction because the plaintiff’s underlying claim arose under federal law.

Vacated and remanded.

Pulte Home Corp. v. Montgomery County, Md. (P), 4th Cir. (Jones) from DMD at Greenbelt (Hazel).

In this land-use case, the appellants ask the court to revive their dismissed federal and state constitutional claims and wade into the waters of local government decisions and zoning regulations. But federal courts are not the appropriate forum to challenge local land use determinations, so here the landowner has failed to state viable constitutional claims against local entities based on zoning actions.

The plaintiff could have challenged the local authorities’ actions through the applicable state administrative appeals process or crafted its state court complaint in a way that would have avoided the entirely predictable result here. Instead, like many landowners and developers before it, the plaintiff attempts to use a bevy of federal constitutional claims to displace state law and local decision-making.

Local zoning authorities must have the ability to respond to constantly changing environmental, economic, and social conditions, and the court is unwilling to tie their hands by finding a constitutional property interest under the circumstances presented here, or require them to treat every property in a vulnerable watershed identically, or force them to pay compensation to every disappointed developer whose land has been downzoned. To hold otherwise would be to invade the province of state law and render local officials unable to make the important decisions they were elected to make.


United States v. Brown (P), 4th Cir. (Diaz) from EDVA at Newport News (Jackson).

After the defendant pleaded guilty to possession of a firearm by a convicted felon, the district court did not err in adding two points to his criminal history score based on a prior Virginia state conviction for which he received a suspended sentence conditioned upon good behavior. A suspended sentence in Virginia conditioned on a period of good behavior is a criminal justice sentence for purposes of U.S. Sentencing Guidelines § 4A1.1(d).


Supreme Court of Virginia

Meade v. Bank of Am. N.A. (U), SCV (per curiam) from Chesterfield.

The circuit court erred in sustaining a plea in bar as to the statute of limitations for the plaintiff’s claim for breach of deed of trust.

In 2008, the plaintiff conveyed real property by deed of trust. Bank of America later became the holder of the note evidencing the indebtedness secured by the deed of trust. The plaintiff alleged that Bank of America breached the deed of trust by accelerating and foreclosing before a right to do so accrued under federal regulations. The accrual date for the breach alleged in the complaint, therefore, is the date on which the acceleration occurred. That date is not in the record, but Bank of America conceded at oral argument that if acceleration was the event giving rise to the alleged breach, the limitations period has not elapsed.

Reversed and remanded.

U.S. District Court – Virginia Eastern

BHR Recovery Cmtys. Inc. v. Top Seek LLC, EDVA at Richmond (Gibney).

The plaintiff, an addiction-recovery business, alleges that the defendants tried to steal its customers, in part by changing the phone number on the plaintiff’s Google listing. Virginia’s unauthorized use of a name statute protects only natural persons, not entities like the plaintiff, so that claim fails. However, the plaintiff has sufficiently pleaded a Lanham Act claim, as well as state-law claims for trademark interference and false advertising.

Motion to dismiss granted in part and dismissed in part.

Kirgan v. M&T Trust Co., EDVA at Alexandria (Hilton).

The evidence fails to show that a corporate trustee violated the terms of the governing will or is otherwise incapable of properly performing the duties of its office. None of the evidence demonstrated that the corporation’s actions were not in the trust’s interests, and the corporation had no legal duty to keep minutes of trustee meetings.

However, all trustees must promptly meet and schedule regular meetings, which must be regularly attended by all trustees. The trustees must also arrange for a study of the proper amount of trustee compensation.

No trustees will be removed at this time.

Mobilization Funding LLC v. W.M. Jordan Co., EDVA at Newport News (Jackson).

In this construction suit, the economic loss rules bars the plaintiff’s claims for conversion and unjust enrichment, but not for fraud. The defendant’s subcontractor is a necessary party, but not an indispensable one; thus, failure to join does not require dismissal.

Motion to dismiss granted in part and denied in part.

Virginia Circuit Courts

In re McGregor, Fairfax Cir. (Bernhard).

Under § 18.2-308.2(C), “good cause shown” in the context of restoration of gun rights simply means that the risk that caused the offender to lose his or her right to bear firearms, as informed by a factored analysis of the available evidence, no longer appears present.

Here, the petitioner has demonstrated good cause for the court to restore his right to bear firearms. His offenses, the last of which was 29 years ago, were non-violent and didn’t involve the use of a firearm. He was punished for his crimes and has led a law-abiding life since then. He seeks restoration of his gun rights for the lawful purpose of participating in family hunting trips.

Petition granted.


Categories: Daily Dockets

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