Summaries of Selected Opinions, 0719 COBJ, Vol. 48, No. 7 Pg. 88

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48 Colo.Law. 88

Summaries of Selected Opinions

Vol. 48, No. 7 [Page 88]

The Colorado Lawyer

July, 2019

U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 17-5079. Grice v. CVR Energy, Inc. 4/23/2019. N.D.Okla. Chief Judge Tymkovich. Diversity Jurisdiction—Dispensable Party—Unfair Prejudice—Summary Judgment.

Benjamin Grice was severely burned in an explosion at the refinery where he worked. He and his wife (the Grices) filed tort claims against the employer's two parent corporations, CVR Energy, Inc. and CVR Refining, LP, alleging they assumed responsibility for workplace safety by entering into a services agreement for the benefit of Benjamin's employer. The district court granted summary judgment to defendants, holding that agreement did not make them responsible for Benjamin's safety.

The Tenth Circuit first determined jurisdiction. After the appeal was filed, it was discovered that CVR Refining had unitholders in Kansas, which was the Grices' state of residence. This rendered the district court without jurisdiction, but the Tenth Circuit was able to cure the jurisdictional defect by dismissing CVR Refining under Fed. R. Civ. P. 19 because no party would be unfairly prejudiced by its dismissal, given that the Grices could refile their claims against it in state court.

On the merits, the Grices challenged the summary judgment determination that CVR Energy owed no duty to Benjamin. Here, the services agreement was one of oversight and administrative services. While CVR Energy gave advice and monitored the progress of safety issues, it did not assume a duty to provide workplace safety for its subsidiaries' employees.

The judgment was affirmed.

Nos. 18-3070 & 18-3071. United States v. Cookson. 4/26/2019. D.Kan. Judge McHugh. Sentencing—Evidence of Rehabilitation—Substantive Reasonableness of Sentence.

The FBI seized Playpen, a website that facilitated the distribution of child pornography, and proceeded to use the site to find Playpen's users. However, finding users was a challenge because Playpen was accessible only through a program that allowed users to browse the Internet anonymously. To bypass the steps Playpen took to keep its users anonymous, the FBI loaded Playpen's contents onto a government server in Virginia. The FBI then obtained a warrant from a magistrate judge in Virginia to authorize law enforcement officers to deploy a network investigative technique (NIT) that would cause a user's computer to transmit identifying information, including the user's IP address, to the FBI.

The FBI operated Playpen with the NIT for about two weeks. During this operation, agents obtained defendant's IP address, and through a subpoena to a telephone company in Kansas, they obtained his physical address. Agents searched defendant's premises and found child pornography on defendant's various devices.

The government charged defendant with two counts of possessing child pornography. Defendant moved to suppress all evidence derived from the operation of the NIT on his computer. The district court denied the suppression motion. Defendant pleaded...

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