New opinions — a child-sex suit against the voice of Elmo, and two cases a lot less likely to go viral

Well, it’s August, and that means clerkships are ending so chambers are cranking out a lot of opinions. After whole weeks without a published opinion back in the spring, this week has seen 1 Monday, 3 yesterday, and 3 more today. Happy days for CA3 fans.

Stephens v. Clash — civil — affirmance — Smith

Kevin Clash is “‘an internationally-known puppeteer and voice actor for children’s programming,’ best known for his role as the voice of Sesame Street‘s Elmo.” Sheldon Stephens alleged that Clash started a multi-year sexual relationship with him in 2004 when Clash was 44 and Stephens was 16. Stephens alleged that he did not become aware of the psychological harm he suffered until 2011, and he filed suit in 2013, 9 years after the sex began and 7 years after Stephens turned 18, but the district court dismissed the suit as untimely.

Today, the Third Circuit affirmed. The court held that the discovery rule applies,* but held the plaintiff’s claims were untimely anyway because, even if he did not recognize the extent of his injuries until later, he should have discovered that he was injured from the outset of the sexual “relationship.”

* The majority opinion says, “we hold that the discovery rule is applicable,” and refers to “this holding,” but in his concurrence Jordan asserts that this discussion is dicta because it is not necessary to the outcome.

Joining Smith were Jordan and Sloviter, with Jordan concurring separate to express doubt about the discovery holding. Arguing counsel were Stuart Mermelstein for the plaintiff and Michael Berger for the voice of Elmo.

In re: Semcrude — bankruptcy — Fisher — reversal

The Third Circuit’s introductory summary defies improvement by me:

Thomas L. Kivisto, co-founder and former President and CEO of SemCrude L.P., an Oklahoma-based oil and gas company, allegedly drove SemCrude into bankruptcy through his self-dealing and speculative trading strategies. SemCrude’s Litigation Trust sued Kivisto, and the parties reached a settlement agreement and granted a mutual release of all claims. One month later, a group of SemCrude’s former limited partners (collectively, “Oklahoma Plaintiffs”) sued Kivisto in state court, alleging breach of fiduciary duty, negligent misrepresentation, and fraud. Kivisto filed an emergency motion to enjoin the state action on the theory that the Oklahoma Plaintiffs’ claims derived from the Litigation Trust’s claims, which the U.S. Bankruptcy Court for the District of Delaware granted. On appeal, the U.S. District Court for the District of Delaware reversed, concluding that the claims were possibly direct and remanded. The Bankruptcy Court thereafter adopted the District Court’s order in its entirety and denied injunctive relief. Because we conclude that the claims are derivative, we will reverse.

Joining Fisher were Fuentes and Krause. Arguing counsel were Paul Bessette for Kivisto and Adam Schiffer for the Oklahoma plaintiffs. The case was argued back in December.

Devon Robotics v. DeViedma — civil — dismissal of interlocutory appeal — Krause

The Third Circuit dismissed this interlocutory appeal from denial of summary judgment, holding that it lacked jurisdiction. Civ pro nerds, rejoice! Remembering last month’s impressive equitable-mootness opinon, I’d say Judge Krause is already coming into her own as a procedure-law powerhouse.

Joining Krause were McKee and Greenaway. Arguing counsel were Gary Samms for the appellees and James Golden for the appellant.