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04-56721 - Pesnell v. Arsenault, et al


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04-56721 - Pesnell v. Arsenault, et al
July 1, 2008
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FILED ORDER AND OPINION (PROCTER R. HUG, HARRY PREGERSON and RICHARD R. CLIFTON) AFFIRMED IN PART, REVERSED IN PART AND REMANDED; Vacating Terminating Event JS34 Appellees??? petition for rehearing and rehearing en banc is DENIED. The opinion and concurrence filed on June 21, 2007, and appearing at 490 F.3d 1158 (9th Cir. 2007) is withdrawn. The superseding opinion and concurrence will be filed concurrently with this order. The parties may file new petitions for rehearing or rehearing en banc as provided by Federal Rule of Appellate Procedure 40. [Affirmed in Part and Reversed/Vacated in Part;Terminated on the merits after oral hearing;Written, reasoned, signed, published; Judge: PRH Authoring, Judge: HP On Panel But Did Not Write, Judge: RRC Concurring]. Each party shall bear its own costs on appeal. FILED AND ENTERED JUDGMENT.
September 15, 2008
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Filed order and amended opinion (PROCTER R. HUG, HARRY PREGERSON and RICHARD R. CLIFTON).The Opinion filed on July 1, 2008, and appearing at 531 F.3d 993 (9th Cir. 2008), is amended as follows: At 531 F.3d at 996, after the first sentence of the last paragraph, insert the following as a footnote: ???As noted below and in the concurring opinion, Pesnell???s claims, including his constitutional claims, are barred to the extent that they rest upon the same misrepresentations alleged in the dismissed Arizona action.??? With this amendment, the panel has voted to deny the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions shall be entertained.