Firth Circuit Notes Split Re Whether Gant Applies Solely in the Vehicular-Search Context

Per U.S. v. Curtis, --- F.3d ----, 2011 WL 846703 (5th Cir. Mar. 11, 2011):

Curtis argued that Edwards's search of Curtis's cell phone was unlawful under the new rule announced by the Supreme Court in Arizona v. Gant. In Gant, the Court held that police may “search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Our sister circuits have divided over whether Gant applies solely in the vehicular-search context or whether it generally limits the scope of the search-incident-to-arrest exception.FN22 We need not reach this question.

FN22. Compare United States v. Brewer, 624 F.3d 900, 905-06 (8th Cir.2010) (declining to apply Gant to a search of an arrestee's person), petition for cert. filed, No. 10-9224 (Feb. 24, 2011), and United States v. Perdoma, 621 F.3d 745, 751-52 (8th Cir.2010) (declining to apply Gant to a search of a bag recovered from an area within the arrestee's immediate control), petition for cert. filed, No. 10-8844 (Feb. 2, 2011), with United States v. Shakir, 616 F.3d 315, 318 (3d Cir.) (“Because Gant involved an automobile search, and because it interpreted Belton, another automobile case, the Government contends that the rule of Gant applies only to vehicle searches. We do not read Gant so narrowly. The Gant Court itself expressly stated its desire to keep the rule of Belton tethered to the justifications underlying the Chimel exception, and Chimel did not involve a car search.” (internal citation and quotation marks omitted)), cert. denied, 131 S.Ct. 841 (2010).


Eleventh Circuit Weighs in on Split Re Proper Vehicle for Enforcing Forum-Selection Clauses

Per Slater v. Energy Services Group Intern. Inc., --- F.3d ----, 2011 WL 782023 (11th Cir. Mar. 8, 2011):

Slater contends that the district court abused its discretion by dismissing her claims for improper venue pursuant to Rule 12(b)(3) rather than applying the transfer analysis under 28 U.S.C. 1404(a). Slater claims that because § 1404(a) is the only proper procedural mechanism for enforcing a forum-selection clause which designates venue in another United States District Court, the district court erred by applying Rule 12(b)(3) instead of § 1404(a).

Our sister circuits disagree regarding the appropriate vehicle for enforcing forum-selection clauses. Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1289 (11th Cir.1998) (recognizing circuit split); see e.g., Kerobo v. Sw. Clean Fuels, Corp., 285 F.3d 531, 539 (6th Cir.2002) (holding that the proper analysis is under 28 U.S.C. § 1404(a)); Richards v. Lloyd's of London, 135 F.3d 1289, 1292 (9th Cir.1998) (applying Rule 12(b)(3) to an international forum-selection clause); Lambert v. Kysar, 983 F.2d 1110, 1112 n.1 (1st Cir.1993) (applying Rule 12(b)(6)); AVC Nederland B.V. v. Atrium Inv. P'ship, 740 F.2d 148, 153 & n.8 (2d Cir.1984) (applying Rule 12(b)(1) to an international forum-selection clause).

. . .

[W]e conclude that § 1404(a) is the proper avenue of relief where a party seeks the transfer of a case to enforce a forum-selection clause, while Rule 12(b)(3) is the proper avenue for a party's request for dismissal based on a forum-selection clause.


SCOTUS Resolves Split Re Interpretation of FOIA Exemption

The Supreme Court has resolved a split regarding the interpretation of Exemption 2 of the Freedom of Information Act. The case is Milner v. Navy, 09-1163 (Mar. 7, 2011). Here is an excerpt from the Syllabus of the case:

Petitioner Milner submitted FOIA requests for explosives data and maps used by respondent Department of the Navy (Navy or Government) in storing munitions at a naval base in Washington State. Stating that disclosure would threaten the security of the base and surrounding community, the Navy invoked Exemption 2 and refused to release the data. The District Court granted the Navy summary judgment, and the Court of Appeals affirmed, relying on the High 2 interpretation.

Held: Because Exemption 2 encompasses only records relating to employee relations and human resources issues, the explosives maps and data requested here do not qualify for withholding under that exemption.

(a) Exemption 2 shields only those records relating to “personnel rules and practices.” When used as an adjective in this manner, the key statutory word “personnel” refers to human resources matters.

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