Ressie Moore v. Ford Motor Company

meets an offense that guilty to pleaded com- a defendant by which methods generic burglary. Penal Code the elements under Texas burglary amit of the meth- treated this convic- 30.02, properly at least one court § district Ann. satisfy requirements Accordingly, not a crime of violence. ods does tion as notes that Anderson burglary. not generic that the district court did conclude we which that indicates document there is no was a career finding that Anderson err There- § he violated. 30.02 subsection of criminal. burglary his

fore, claims that Anderson crime of as a qualify cannot conviction III. CONCLUSION § 4B1.1. We dis- U.S.S.G. violence under reasons, affirm foregoing we For the court that the district and conclude and sentence. Anderson’s convictions finding that Anderson’s did not err as a qualifies conviction burglary prior

crime of violence. depends largely

This determination correctly the district

upon whether

found, docu permissible reference to

ments, pleaded guilty that Anderson generic burglary

committing by entering dwelling sense—that Moore; MOORE; Alfred Ressie the intent to com permission without Lucas, Jett; Bridgette Almaria judi In mit crime therein. Anderson’s Plaintiffs-Appellants prior burgla cial related confession v. committing the offense ry, he admitted COMPANY, indict alleged in the indictment. His FORD MOTOR Texas language included from both Defendant-Appellee ment 30.02(a)(1) § Penal Ann. Code Corporation, Intervenor- Volvo Car 30.02(a)(3). have held that a convic We Appellee. (a)(1) qualifies as tion under subsection equivalent it is crime of violence because Moore; Bridgette Moore; Alfred Ressie bur generic the enumerated offense of Jett; Lucas, Plaintiffs- Almaria Garcia-Mendez, v. glary. United States Appellants (5th Cir.2005). 456-57 (a)(3) However, equiva subsection burglary

lent to the enumerated offense Company, Defendant- Ford Motor (a)(3) because a violation subsection Appellee of the defendant’s require proof does not dwelling. a crime intent to commit Corporation, Intervenor- Volvo Car docu Having permissible reviewed the Appellee. adjudica accompanied

mentation that 13-40761, 13-40774. Nos. conviction, burglary prior tion of the as a crime of qualifies conclude that Appeals, United States Court judi Anderson admitted his violence. Fifth Circuit. entered his victim’s cial confession he 20, 2014. consent with the intent

home without Therefore, judicial a theft. commit that Anderson makes clear

confession

Clyde Turner, Talbot Esq., Jerry Man- White, ning Associates, P.A., Turner & Rock, AR, North Little for Plaintiffs-Ap- pellants. Chames,

Adam Howard Esq., Richard Dietz, Donald Haaf, Chris William Esq., Kilpatrick Stockton, L.L.P., & Townsend Salem, NC, Winston Michael W. Eady, Coe, Thompson, Irons, L.L.P., Cousins & Austin, TX, Cyril Knapp, McDonald, David P.A., Orlando, Toole & Wiggins, FL, for Defendant-Appellee. Bullion,

Deborah J. Gascoyne Bullion, & P.C., Land, Sugar TX, for Intervenor-Ap- pellee. STEWART,

Before Judge, Chief ELROD, HIGGINBOTHAM Circuit Judges. HIGGINBOTHAM,

PATRICK E. Judge: Circuit This is a proceeding agreed enforce years orders entered ten ago. orders, Pursuant to these Ford Motor Company produced a number of Volvo Car Corporation that it designated objecting confidential. After to the con- fidential status of these plain- tiffs and used them in litigation distributed against competitors. moved protect these documents under the agreed Rejecting orders. a claim of waiver, judge found the protected by documents to agreed orders. district court upheld The magistrate judge. We AFFIRM. I Approximately ago, a decade the district virtually agreed identical entered Orders”) jurisdiction over the (“Protective in tains and shall protective orders the Protected recipients Company and Bonil Ford Motor Moore v. underly provi- enforcement of Company. Documents for Motor la v. Ford settled, parties were but the termination of this Order ing cases sions documents. required to return litigation.” state, perti- Orders The Protective issued, Ford After the Protective part, that: nent a half three and approximately produced delivery of docu- materials,1 after it anyAt time which of Volvo banker-boxes “confidential,” counsel designated According ments to confidential. designated as may challenge receiving party for the Ford, produced materials were any of docu- the confidential time, produced instead at one but were thereof) (or transcript portion ment or discovery. intermittently over the course notice thereof to by providing 11, 2004, plaintiffs’ counsel May On If the party. opposing counsel for Ford, challenging the confidential emailed to as to wheth- are unable relating to a documents status Volvo designation of discov- confidential er the given to the Nation- allegedly presentation produc- appropriate, ery material Administration, Safety Traffic Highway al (15) days fifteen to shall have ing party University and European to a as well as regard order with protective move responded on groups. local civic discovery dispute, materials any asking that establishing the burden shall have disput- for the the Bates Numbers provide dispute materials in any that directly that Ford could documents so ed from unre- protection are entitled concerns. Ad- plaintiffs’ counsel’s address producing disclosure. If stricted drop its claim of ditionally, agreed not seek of such party does confidentiality as to 12 which an by filing disputed by Bates Numbers. identified this Court with- appropriate motion with (15) days, disputed then the on June responded in fifteen Plaintiffs’ counsel subject to longer material shall no that “the information explaining All provided in this order. protection as to remain confidential had Ford wanted any party things wide-variety which documents to a of indi- presented been ac- media, “confidential” shall be designates viduals, including the the Universi- pursuant confidential status corded ty, groups and civic Vovlo.” until terms of this “taking explained then parties formally agree and unless produced all of the materials position that contrary or writing to the determina- longer 90 are no relating to the Volvo XC by the to confiden- tions made Court as them begin passing will tial status. that is interest- everyone out later, one month Approximately ed.” provide Orders also The Protective Ford, asking emailed plaintiffs’ counsel shall continue provisions “the of this Order “[wjhat’s confidentiality ... the word respect to those binding, except with to be following day, replied the issue[?]” and information become explaining; re- public record. This Court matter of Ford. production, Volvo 1. At the time of document owned, subsidiary wholly indirect was a issues same documents respect similar

With e-mail, Ford your granted raised in earlier does tective order. The Adams court presentations not contend that the which Ford’s motion on March in the NHTSA docket are confi- appear August On dential, agrees you and Ford need judge hearing held a on Ford’s motion to referenced at presentation not treat the enforce the Protective par- Orders. The ... page Broberg’s deposition 157 of presented ties submitted briefs and oral your evaluating confidential. Ford is argument. magistrate judge then is- claim that the Autoliv and Volvo materi- First, sued ruling. explained his he longer als as whole should no be classi- the “purpose orders such as expects you as confidential. Ford fied by Judge one entered inWard to abide the terms of the Protective Moore and Bonilla cases is to facilitate in the meantime. Orders discovery during litigation to allow parties responded, gave Plaintiffs’ counsel “I Ford to exchange potentially confidential mate- adequate sending time. I am the materi- rial with confidence without the Court hav- trying.” als out. Thanks for Plaintiffs’ litigate whether not the material identify counsel did not to which “materi- actually is confidential pro- and entitled to referring. als” he was explained tection.” He that he try would February plaintiffs’ On “give meaning life to the literal on the Ford, asking for update emailed another orders,” keeping while in pur- mind their “confidentiality on the issue.” Ford re- pose. magistrate judge The then found by “Al- plied letter on March 2005: that put “the Plaintiff did the Defendant though disagrees your with argu- by way on notice of a of challenge the e- in support de-designating ments of several May mails that been of cited and of the items Bates [identified Numbers] But June 28.” he found that “Plaintiff above, in agrees, spirit coopera- the of negotiate, continued thereafter to and the (remove tion, officially de-designate appeared matter to have been resolved. Order) from the Protective the above Vol- There’s no of a clear evidence ... vo documents.”2 challenging notice thereafter to Ford the designation confidential of these docu- 1, 2012, February an

On Ford received magistrate judge explained The ments[J” a in plaintiffs expert affidavit from an that later “discussion about are not waiver provided Idaho state court action that a really challenges to the confidentiality of listing document Volvo documents documents;” instead, the these later dis- duced the Moore and Bonilla actions. arguments cussions “are about whether or explained affidavit activity prior some waived that counsel believed that Ford had waived the magistrate judge tion.” The then held status these documents. no thereafter, “there is waiver this case of the sought Soon to enforce orders,” the two the Protective Orders the Moore and and that issue as to whether a docu- proceedings orig- Bonilla where entered, inally ment should be afforded confidential as well as Adams v. status Ford, Virgin a District a Court for the Is- should be addressed court where produced lands case wherein there claim. live Although plaintiffs May judge, findings also offer a whose factual we review for email, appeal, 72(a). we will not consider clear error. See Fed.R.Civ.P. magistrate it was not in record before the order within for a objection magis- an filed Plaintiffs failure to do so its court, the district judge’s order trate Second, ar- plaintiffs constitutes waiver. corporate depose for leave to moved finding magistrate judge’s gue The district representative Ford. re- negotiated had and denied objection, overruled confidentiality in dispute over solved timely appeal. motion. clearly erroneous. 2005 was plain language with the Analysis begins II Orders,8 and the “textual Protective “[sjubject to certain axiomatic It is is ultimate- court order jurisdiction this court has exceptions, outset, At the ly legal question[.]”9 court.”3 the district ‘final decisions’ of over ambig- note that Protective “generally do not And orders to one of two and lend themselves uous merits and leave litigation on the end judge readings. As the —and the court to do but execute nothing for them, the Protective Orders Ford —read judgment final has judgment.”4 system chal- contemplate the cases,5 and the original in the entered been of documents lenging court’s order overrul- of the district appeal confidential: taken. objection properly ing plaintiffs’ (i) party may receiving for the “counsel judge’s non-dispositive or- magistrate A challenge the clearly if it “is may only be set aside der (or transcript or any document contrary to law.”6 Ac- or is erroneous thereof) by providing portion findings “factual un- cordingly, we review op- to counsel for notice thereof standard,” while clearly erroneous der party[;]” posing de novo.”7 are “legal conclusions reviewed (ii) agree are unable to parties “If the designa- to whether the confidential magistrate argue appro- material is tion of concluding that Ford did judge erred in priate[;]” status of the waive the confidential First, (iii) fif- they argue shall producing party documents. “the have disputed (15) days of the Protective to move for plain langúage teen regard any dis- to move for tive order with required Ford dispute, challenge covery within of a materials tective order 15 of establish- have the burden of a document. shall to the confidential status Thus, had to move argue, Ford plaintiffs Galleries, only been "where it has Nu be reconsidered Inc. v. Amer.

3. A-Mark Auction (5th judge’s Ass’n, magistrate that the order Cir. shown 233 F.3d 897 mismatic law”). 1291). contrary 2000) clearly § erroneous (citing U.S.C. 28 Grenada, States, City 988 F.2d U.S. 7. Alldread (quoting Catlin v. United 324 4. Id. 1993). (5th (1945)) Cir. 1434 S.Ct. 89 L.Ed. 911 omitted). (internal quotation marks Associates, See, & e.g., Merrill Scott 8. S.E.C. v. (10th Cir.2010) Ltd., preju- (dismissing case 5. See R. 970-72 (“The interpretation of a starting point for pursuant stipulation of dismissal be- dice plain language.”). protective order in its lies parties). tween the Fed.Appx. 636(b)(1)(A) Corp., 51 72(a); Equalnet In re Comms. U.S.C. 6. Fed.R.Civ.P. Cir.2002) (5th (unpublished). judge's nondispositive (magistrate orders short, dispute plaintiffs’ are entitled actions in 2004 and 2005 are at present unrestricted disclosure.” odds with their interpreta- from tion of the According- Protective Orders. magistrate way, judge Put another ly, with the magistrate judge’s the Protective Orders to create a read holding that the Protective Orders did not whereby party produces first a system require Ford to seek a them confi- designates documents and until the parties’ negotiations own failed to receiving party dential. The must then dispute. resolve the producing party inform the dis- agrees designation. with the confidential Turning magistrate judge’s parties negotiate must then between factual findings, we cannot conclude that Finally, themselves to resolve the dispute. judge’s finding that Ford if the unable to resolve the did not waive the Protective Orders is own, dispute only their then is the clearly erroneous. produced producing party required to move for a number of documents that it designated as days. order within 15 Such a that, undisputed confidential. It is at the one, system provides is a sound as it for production, time of protected the efficient handling of confidential mate- by the Protective Orders until plaintiffs rials, involves courts where challenged the confidential designation. disputes failed resolve receiving After plaintiffs on their own. notified, without specificity, albeit they objected to the confidential sta Plaintiffs and the dissent argue tus some of the documents. The parties day period that the 15 seeking pro engaged protracted negotiation, then in a begins tective order with the notification sought specificity wherein Ford first as to receiving party, not the failure to objected to, which documents negotiate a resolution. This de-designated and then a number of docu reading well be the better without ments. point, At this there does ap more, the parties understanding but pear to further discussion between interp agreed these upon orders bears about whether the documents retation,10 and the actions of both properly designated were as confidential. strongly suggest that neither understood objections Since there were no additional days the 15 to run from the date of notifi to the designation remaining docu cation: Ford responded days over after confidential, ments as Ford was not re plaintiffs’ objection initial request to addi quired to seek orders. information, tional plaintiffs’ and counsel sure, days reply. took another 20 And al plaintiffs To be and the dissent though plaintiffs’ suggested point counsel to affidavits filed in 2006 and 2009 in cases, he sending plaintiffs’ was “the materials out” several other wherein counsel objection, months after his initial he con claims that Ford has waived confidentiali- negotiate ty. tinued to say into the But we cannot that these affida- year, asking update for an on the vits constitute “written notice” to “chal- status of lenge designation” the confidential materials. In the confidential of these ambiguous parties' performance may 10. Since the Protective Orders are course of be used — regard, given in this and that rules of contract parties...." to ascertain the intent of the orders, applied agreed Services, LP, GGP-Bridgeland, Inc. v. Addicks Chase, see 942 F.2d 134-35 (5th Cir.2010). Hartford 1991), (2d "[p]arol Cir. evidence—such as the party’s time in a for the first best, presented put At documents. recom- magistrate judge’s objection considered on notice confidentiality, not waived mendation.” Ford to desig- improperly that the documents Freeman is mis- Plaintiffs’ reliance on confidential. nated as and report At there was placed. issue concern expresses Finally, the dissent recommendation, subject to de novo review coun- judge’s decision magistrate that the 72(b). At here is issue under Fed.R.Civ.P. Yet, the by Ford. gamesmanship tenances to Rule non-dispositive order games- case demonstrates record 72(a) the dis- clear error review. Because sought parties: plaintiffs manship both magistrate review of the trict court’s designations by vague, to void confidential findings was limited judge’s factual objections to all the docu- generalized review, no appears there to be clear error over-designated ments, likely court to have received for the district basis on de Although as confidential. Accordingly, additional evidence.15 may ob- a different outcome novo review not abuse its discretion district court did tain, judge’s finding corporate depose Ford’s denying leave protection of the not waive the Ford did representative. support- plausible Protective Orders reasons, we AFFIRM. For these clearly erro- record and is not able neous.11 ELROD, WALKER JENNIFER dissenting: Judge, Circuit

Ill plain respectfully I dissent. Under “discovery decisions of review the We Orders, Ford language of the Protective discre- judge ... for abuse of the trial confidentiality for the any claim to waived court’s Accordingly, “district tion.” by failing seek Volvo only if be reversed decision will learning tive order within 15 unreasonable,’ ‘arbitrary clearly their disputed Plaintiffs prejudice demonstrates appellant and the materials. intended to release Volvo resulting from the decision.”13 discovery in federal governing The rules argue that the district court “accomplish full dis designed court are leave to denying request their erred facts, surprise, and closure of the eliminate representatives. depose corporate Ford’s Ry. Co. v. Lan promote settlement.” S. they rely on Freeman v. arguing, In so (dis (5th Cir.1968) ham, 119, F.2d 127 that 403 County proposition Bexar for the of Procedure cussing Federal Rule of Civil ... evidence may “a consider district Cir.1998). 848, (5th Quarterman, See, F.3d 850-53 e.g., 470 F.3d 14. 142 11. St. Aubin v. 1096, Cir.2006) (“A (5th finding is clear 1101 only implausible the ly if it is in Inc., erroneous See, Grp., Liggett 975 e.g., Haines v. 15. whole.”). light the record considered as of (Under 72(a), (3d Cir.1992) Rule F.2d 91 permitted to receive court is not "the district Media, Fielding v. Burda 415 F.3d Hubert evidence; clearly by it is bound further (5th Cir.2005) (citing Wichita Falls 428 reviewing questions of erroneous rule in Corp., F.2d v. Banc One 978 Assocs. Office 915, fact.”). (5th 1992)). Cir. Indus., Inc., Mayo (quoting v. Tri-Bell 13. Id. (5th 1986)) (internal Cir. 787 F.2d omitted). citation

34). result, “deposition-discovery question As a is to be found within [the corners, are be accorded a broad and lib- protective rules four by order’s] and not Taylor, Hickman v. eral treatment.” reference to what might satisfy pur- (1947). 385, 91 L.Ed. 451 U.S. 67 S.Ct. poses parties of one of the to it.” Id. excep- narrow Protective orders serve as provide Protective Orders disclosure, and general tions to this rule of that: parties keep specific categories allow of If the are unable to as to by agreement. confidential See whether the of Miller, Wright A. & Arthur R. 8A Charles (3d appropriate, material is Federal Practice & Procedure (15) ed.) (“It producing party shall have fifteen well settled that there is no is days protective to move for order with privilege absolute for trade secrets and information.”). regard any discovery similar confidential Unless materials dis- pute, materials are covered and shall burden of estab- order, they to the liberal dis- lishing any discovery materials in provisions closure the Federal Rules of dispute protection are entitled to from party Civil Procedure. “It is for the re- unrestricted produc- disclosure. If the establish, sisting the first ing party protection does not seek instance, sought the information disputed discovery such fil- within this of the rule.” Id. provision ing an appropriate motion with this (15) days, Court within fifteen then the parties’ agreement in a protective disputed material no longer shall be sub- governs order what materials are ject provided protected, but also the of contest method order. confidentiality ing determination. “The starting point pro of a Thus, plain language under the of the Pro- plain language.” tective order lies its Orders, tective Ford had 15 from the Associates, Ltd., S.E.C. v. Merrill Scott & time that it received notice that dis- (10th Cir.2010) (ci 1262, 1271-72 600 F.3d covery dispute materials were in to seek a omitted). tations When a order protective order from the court. “part court-approved agreement, of a repeatedly on no- placed according general must be construed they ma- tice intended release the principles City of contract See law.” here, at repeatedly terials issue and Ford Chase, 134-35

Hartford acknowledged (2d Cir.1991) (citations omitted). “Thus, May in dispute. these materials was On paid plain deference is to be mean 11, 2004, Plaintiffs submitted language ... and the normal challenge regarding to Ford the confiden- (altera usage of the terms selected.” Id. Again tial status of the materials. Volvo in original). agreed protective tion “An parties corresponded on June contract, order be viewed as expressed disagreement about agreed protective once enter an confidentiality of Volvo Plain- materials. are bound to its terms.” Or ThermoTek, Inc., tiffs also indicated in the same e-mail that thoflex, Inc. v. 3:11-CV- (N.D.Tex. not 0870-D, 3095106, they would distribute the Volvo mate- at 2013 WL *3 2013) (internal 1, 2004, 20, July give until to Ford addi- rials quotation marks omitted). tional time to file a motion for and citations “As with all con tracts, voluntarily question the ultimate is what with the court or remove the was parties’ the mutual intent. The to of the answer those protected the status of had waived that, information would the that after but in the failed to file again, set forth Ford public as as materials. Once be treated waited until Plaintiffs Protective Orders. of either of these motion within 15 a 2004, clear to Ford then made July and Instead, finally filed its Ford submissions. of con- the discussion they considered had the Volvo materials long motion after over, to release and intended fidentiality pro- in and used other been distributed stated Plaintiffs’ counsel the materials. As ceedings.1 Ford, gave “I e-mail July in a that the 15- panel opinion suggests the sending I am adequate time. Ford seeking protective day period for mo- failed to file a Ford materials out.” parties are only begins to run once the days. Plaintiffs then tion within own, dispute on their to resolve the unable the Volvo materials. ceeded disseminate period a limitless and seems to allow warnings were sufficient repeated These But this negotiations to occur. party these that the confiden- clear to Ford to make plain language reading strains materials was dis- tiality of the Volvo Orders, only require which Protective warnings put if did not Even these pute. “in documents to confidentiality of the motion, Plaintiffs to file its Ford on notice trigger 15-day dispute” in order that the confiden- noticed Ford again once assuming arguendo Even period. dispute” “in documents was tiality of the to whether any ambiguity there was February year. In and protection from the Ford needed to seek again once cor- March court, ambiguity would construe such confidentiality of responded about Ford drafted in favor of Plaintiffs because response its to Plain- these documents. In tiffs, it “dis- Richland explicitly noted the Protective Orders. See arguments agree[d] with Co. v. Justiss-Mears Oil Co. [Plaintiffs’] Plantation (5th Cir.1982) de-designat[ing]” some of the support Inc., (explain- Still, file a Ford did not Volvo materials. ambiguous, ing that when contract days. motion within 15 agreement courts will construe the Texas draft- strictly against party more who 2006 and Finally, both it). Moreover, by their own terms ed litiga- affidavits in for Plaintiffs submitted placed the burden Protective explaining tion certain against Ford,2 that the party asserting as the Vol- not Volvo materials were protection, tion, why vo materials were entitled explaining how order, affords broad discre- which assert that "disseminated court, freely lawyers, expert wit- support information nesses, tion to the district does person- Indeed, representatives, court media Philips argument. if U.S. counsel submitted and others.” Plaintiffs’ nel paragraph Royal Philips had wished to limit Matey v. the first affidavit discussed above in fashion, sophisti- 11 disclosure in such Ford, a case filed in Idaho. Plaintiffs' counsel certainly have drafted the cated could subsequently filed a similar affidavit Jones not.”); They did protected order to so state. Ford, a case filed in Texas. ("The Orthoflex, par- at *4 2013 WL intent, reflected within the ties' mutual sophisticated party, capable of 2. Ford ais Order, does not corners of the Protective four drafting had more order that exception that be- for information include an requirements or that included formal notice They presumably public knew came in error. language regarding negotiation of clearer had this been include such a clause how to confidentiality. Philips Corp. v. Iwa See U.S. intention.”). their Ltd., Co., Fed.Appx. saki Elec. (2d Cir.2005) ("[T]he language plain establish that such was war- America, UNITED

ranted. STATES Plaintiff-Appellee, orders, par- Protective like the ones the here, ties entered into are meant to pre- gamesmanship provide

vent for effi- Tyrice GLOVER, Defendant-Appellant. See, cient resolution of issues. No. 13-2475. Collins, e.g., 3 Paul J. Bschorr and John F.

Business & Litigation Commercial in Fed- United States of Appeals, Court (3d ed.) § eral Courts (noting 22:18 Seventh Circuit. one role of the help order is to Argued March 2014. prevent discovery process); abuse Jay Grenig Jeffrey Kinsler, E. S. Decided June Handbook of Discovery Federal Civil & (3d ed.) (“The Disclosure purpose 1:61

of the protective order is not to prevent disclosure,

full but to disrup- minimize the

tion and inconvenience inherent discov-

ery.”). parties designated a 15-

day period so that such disputes timely

could be resolved in a fashion as panel arose. Yet under the opinion’s provision, Ford was purpose

able to undermine this through

vague, non-responsive answers to Plain- notices,

tiffs’ refusing to answer Indeed, at all. giv- avoided straight Plaintiffs a regarding answer of the Volvo materials eight years

for more than after receiving

notice that Plaintiffs contested their confi-

dentiality. Allowing Ford to claim that protected

these same materials are years only encourages

too late gamesmanship in discovery process, and leaves

like Plaintiffs here without recourse if the

opposing party position refuses to take a

regarding confidentiality. Respectfully, I

dissent.

Case Details

Case Name: Ressie Moore v. Ford Motor Company

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 20, 2014

Citation: 755 F.3d 802

Docket Number: 13-40761, 13-40774

Court Abbreviation: 5th Cir.