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EMPLOYMENT
Michael v. Caterpillar Financial Services, July 31
J. Gilman finds that the lower court properly
found for the employer in this racial discrimination case because
plaintiff failed to show that the disciplinary actions taken against
her were a pretext to mask either unlawful discrimination or
retaliation. Affirmed.
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TORT
Harnden v. Jayco, July 31
Plaintiff bought a recreational vehicle from
defendant, the manufacturer, and returned it several times for repair
of various defects. J. Martin finds that the lower court properly
found for the manufacturer because admission of its expert witness'
report without an affidavit or sworn statement was harmless error.
Affirmed.
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EMPLOYMENT
Denhof v. City of Grand Rapids, July 31
Plaintiff was a police officer who was involved
in a lawsuit claiming gender discrimination and retaliation. J.
Merritt finds that the lower court improperly found for the city
because the police chief should not have relied on the psychologist's
opinion that plaintiff was unfit for duty, as the psychologist's
letter used language that suggested he had already formed his opinion
about the officer. Reversed in part.
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INSURANCE
National Surety Corporation v. Hartford Casualty Insurance Company,
July 30
Plaintiff and defendant issued insurance policies
to a manufacturer, defendant as primary insurer and plaintiff as
excess insurer. The manufacturer was sued for an injury caused by one
of its products and defendant rejected the injured man's offer to
settle for the limits of defendant's policy. J. Rogers finds that the
district court improperly found for defendant because plaintiff should
have been able to recover what the insured would have been able to
recover against a tortfeasor according to equitable subrogation.
Reversed.
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CIVIL PROCEDURE
Tiseo Architects v. B and B Pools Service, July 27
Plaintiff alleged that another architect copied a
design and site plan drawing that plaintiff had prepared for defendant
company. J. Rogers finds that the trial court properly ruled that
plaintiff failed to prove that the drawings were substantially similar
because the lower court analyzed the similarity of the works after it
filtered out the unprotectable elements of plaintiff's drawings. It
explained that both drawings were based on the president of the
company's original sketches, that both incorporated the president's
suggestions, and that options for how to design an addition were
"extremely limited" by zoning requirements and a load-bearing wall.
Affirmed.
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CIVIL RIGHTS, JURY
Radvansky v. Olmsted Falls, July 27
After defendant had settled to pay restitution to
the owner of the home that he had burgled, he filed a false arrest
action, which included other charges, against the involved police
officers and the city of Olmsted. J. Cook finds that the trial court
properly ruled for the police officers because the jury heard
testimony that was sufficient to find that the officers had reasonable
cause to arrest defendant. Jury instructions that asked if the
officers had committed an act, with varying states of mind, that
violated defendant's constitutional acts were not prejudicial.
Affirmed.
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EVIDENCE
USA v. Heriot, July 26
Although the government was aware that their
primary witness had dealt drugs in the past, they came to discover
that the witness sold drugs to a confidential informant at a time that
post-dated the controlled drug purchases that he made with defendant,
and which were at issue in this case. J. Norris finds that the trial
court properly denied defendant's motion for a new trial because while
the government should have disclosed all of their enlightened
information about the witness, the lower court still weighed that
witness's credibility and allowed defense counsel to impeach the
witness's drug dealing and using. Affirmed.
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FRAUD, EVIDENCE
USA v. Rayborn, July 26
Defendant was convicted of arson and mail fraud
after he set fire to the church where he was pastor and then attempted
to collect from the church's insurance company. J. Martin finds that
the trial court properly denied defendant's claim that his church was
not sufficiently involved in interstate commerce to trigger the
federal arson statute because the church's regular use of radio
broadcasts brought in church membership from three states that could
tune in, and a gospel choir concert was hosted at the church where
admission was charged. Evidence of defendant's guilt was substantial
because ATF investigators' concluded that the fire was intentionally
set, and, in defendant's own words, he was the only person with the
ability to start a fire from inside the church. Affirmed.
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SENTENCING
USA v. Poynter, July 26
Defendant pleaded guilty to traveling in
interstate commerce to engage in sexual intercourse with 14-year-old
boys. J. Sutton finds that the trial court improperly imposed a
720-month sentence due to defendant's repeat child sex offender status
because a 206% upward variance from the top of the sentencing
guidelines range cannot be sustained. The primary ground for the
variance, that the court wanted to prevent defendant from future
criminal infractions of this sort, do not distinguish him from other
repeat sex offenders. Reversed.
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FRAUD, BANKRUPTCY
In re Forbes, July 25
J. Aug finds that the trial court properly ruled
that a debtor committed fraud when her ex-husband loaned over $150,000
to the debtor's sister, which the sister used as a down payment toward
the purchase of a house for the debtor in California. The down payment
was property of the debtor, as the amount loaned was linked to the
fact that the debtor was entitled to half of $300,000 that was entered
into an escrow deposit based around a flight materials business that
the debtor had a half interest in along with her ex-husband, and was
thus a fraudulent conveyance under the Bankruptcy Code. Affirmed.
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BANKING/LENDING
In re Morgeson, July 25
J. Whipple finds that the trial court properly
ruled that Accredited Home Lenders' mortgage interest in the debtor's
real estate properly extended only to a husband's one-half interest in
the property, despite a memorial on the certificate of title that
noted its mortgage against the present owner. The signature and the
notary page of the mortgage document stated that the wife signed only
to release her dower interest, which is an unalienable interest that
may be conveyed as security for a loan. Thus, that the wife was named
as a mortgagor/borrower was not inconsistent with language that
limited her conveyance to her dower interest only. Affirmed.
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SENTENCING, HABEAS
Getsy v. Mitchell, July 25
Defendant was convicted in a murder-for-hire
killing. J. Gilman finds that the trial court properly denied
defendant's habeas corpus petition that contended that his death
sentence was unconstitutionally disproportionate to the life sentence
that the hired murderer received because defendant had no
constitutional guarantee that his jury would reach the same results as
prior or future juries that dealt with the similar facts. Only when a
court declares that the evidence is legally insufficient to support
the conspiracy conviction of one defendant must the conviction of the
sole coconspirator also be voided. Affirmed.
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CONFRONTATION, HABEAS
Vasquez v. Jones, July 24
A dispute at a block party turned into a shootout
in which an innocent bystander was killed. J. Cook finds that
preliminary examination testimony of a witness who claimed to have
seen defendant fire a handgun during the shootout was improperly
admitted into defendant's trial when that witness was not available to
appear in person. Defendant's rights to confront the witness were
violated. In light of the voluminous discovery, it would have been
unrealistic to expect defense counsel to be prepared to question that
witness about his criminal record at the preliminary stage. Also, the
prosecution's case was not terribly strong without this testimony, as
no physical evidence linked defendant to the murder. Reversed.
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CONTRACT
Warren v. Detroit, July 23
The city of Warren alleged that Detroit's water
and sewage department breached contract when it included costs to
Warren associated with that department's sewer system, which Warren
does not use. J. Gibbons finds that the trial court improperly refused
to remand the case to state court after Detroit removed the action to
federal court because the claims that Detroit included unreasonable
costs of water rates not included under Michigan statutes of
rate-making had nothing to do with federal law. The consent judgments
entered in an Environmental Protection Agency case against Detroit
lacked the power to supersede Warrens' contractual rights or Michigan
statute. Reversed.
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CIVIL PROCEDURE
Schultz v. Davis, July 23
Plaintiff, who is from Massachusetts, was injured
while she shopped for a home in Tennessee when 120 pounds of sheetrock
fell from where it leaned against a wall and onto plaintiff's leg and
ankle. J. Aldrich finds that the trial court properly ruled for
defendants because the one-year statute of limitations barred
plaintiffs' personal injury claims. That limitation was not barred by
the discovery rule since plaintiff's injury was immediate and apparent
upon the sheetrock mishap. Affirmed.
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SENTENCING
USA v. Wilms, July 23
J. Moore finds that the trial court improperly
sentenced defendant to 63 months in prison after his guilty plea to
bank robbery and other charges because it failed to apply a
presumption of reasonableness to the applicable sentencing guidelines
range when it instead applied a rebuttable presumption. Sentence
vacated.
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COMPETENCE
USA v. Jones, July 23
J. Ryan finds that the trial court improperly
declared that defendant was incompetent to stand trial because a
competency hearing as requested by the government was not held, as
defendant, who is deaf, could not understand or answer all of the
questions that were asked to ensure that he understood his guilty plea
to the charge of possession of firearms.
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INSURANCE, CIVIL PROCEDURE
Travelers Indemnity v. Bowling Green Professional Associates, July 20
J. Griffin finds that the federal district court
improperly found that the insurers had no duty to defend or indemnify
the drug-treatment facility in the underlying wrongful death action
regarding a man who was killed in a car accident after he was allowed
to leave the facility and drive his car following methadone treatment.
The federal district court did not have jurisdiction because the issue
raised involves purely questions of Kentucky law. Issues of insurance
contract interpretation are questions of state law. Vacated.
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EVIDENCE, CIVIL PROCEDURE
USA v. Craft, July 20
Defendant claimed that his statements to police
should have been suppressed in his trial for conspiring to distribute
and possess with intent to distribute more than 50 grams of crack
cocaine on the ground that the detective told defendant he was a
suspect in the victim's death, assured him he would not be charged
with drug offenses, did not advise him of his rights, and did not
obtain a signed waiver. J. Mills finds that the lower court properly
ruled that the detective's implicit promise was a "gratuitous offer
that did not induce" defendant's statements. Given the amount of crack
at issue, a rational jury could find beyond a reasonable doubt that
the victim was distributing the drugs and that defendant knew this and
assisted the victim's efforts by cooking the crack. Thus, there was
sufficient evidence regarding the conspiracy conviction. Affirmed.
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SENTENCING, CIVIL PROCEDURE
USA v. Liou, July 20
J. Moore finds that the lower court properly
sentenced defendant to 12 months for his attempt to bribe a IRS agent
assigned to audit defendant and his electronics business. The district
court acknowledged defendant's family and business circumstances at
the sentencing hearing when, on this basis, the court gave defendant
60 days to self-report. That defendant was sentenced to incarceration,
as opposed to community confinement, was reasonable in light of all
the material presented to the district court. Affirmed.
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CONSTITUTION
Helms v. Zubaty, July 19
Plaintiff went to a county employee's office to
voice her opposition to a proposed county income tax, but the employee
was out of the office when she got there. Plaintiff stayed in the
office, loudly voiced her complaints, and refused to leave when asked
by police. J. Batchelder finds that the lower court properly found
that the county employee's office was not a public forum because his
open-door policy did not create a forum for expressive activity.
Affirmed.
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SENTENCING
USA v. Hamad, July 19
J. Sutton finds that the district court
improperly increased defendant's sentence based on its own fact
findings and on evidence never fully disclosed to defendant because
defendant did not have a reasonable opportunity to respond or to
refrain from relying on the evidence.
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EMPLOYMENT
Renfro v. Indiana Michigan Power Company, July 18
J. Cook finds that the lower court improperly
found that plaintiffs' technical writing positions in defendant's
nuclear power plant were exempt from the Fair Labor Standards Act
because plaintiffs exercised discretion and independent judgment in
their work. Reversed.
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CIVIL PROCEDURE, ENVIRONMENT
RSR Corporation v. Commercial Metal, July 18
Plaintiff was the greatest contributor to the
contamination of an industrial site, and defendant was the 62nd
largest contributor to the contamination. J. Sutton finds that the
lower court properly found for defendant in this suit in which
plaintiff sought contribution from defendant for the clean-up costs of
the industrial site because plaintiff filed the action after the
three-year limitation period. Affirmed.
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IMMIGRATION, CIVIL PROCEDURE
Badwan v. Gonzales, July 18
J. Sutton finds that the immigration judge
improperly denied defendant a continuance to allow him to obtain the
requested translation of his divorce document because defendant
exhausted the issue when he challenged the immigration judge's
decision before the Board of Immigration Appeals. Reversed.
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SEX OFFENDER
Doe v. Michigan Department of State Police, July 18
J. Gilman finds that the district court properly
found that procedural due process did not entitle defendant to a
hearing to determine whether or not defendant should be included in
the state's sex-offender registry, as the statute required the
registry of all sex-offenders. Affirmed.
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TORT, TAX
Alston v. Advanced Brands and Importing, July 17
J. Batchelder finds that plaintiffs lack standing
to bring a claim that defendant's advertising is responsible for the
purchase of alcoholic beverages by plaintiffs' minor children because
plaintiffs could not demonstrate causation or articulate a viable
remedy.
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CIVIL PROCEDURE
American Family Prepaid Legal Corporation v. Columbus Bar Association,
July 16
J. Siler finds that the district court properly
dismissed plaintiff's due process challenge to the Ohio Supreme Court
Rules for the Government of the Bar on abstention grounds because
plaintiff could not show that the challenge would not be resolved in
the course of the current proceedings under Ohio law. Affirmed.
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INEFFECTIVE ASSISTANCE
Haliym v. Mitchell, July 16
J. Clay finds that the district court properly
denied defendant's ineffective assistance claim because the lower
court's decision was based on the merits of defendant's claim that his
counsel failed to challenge the court's failure to file a time-stamped
jury waiver form. Affirmed in part.
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HABEAS, CRIMINAL PROCEDURE
In re Abdur'Rahman v. Bell, July 16
J. Siler finds that the district court properly
denied defendant habeas corpus relief. Although the lower court found
that defendant's petition should be treated as a motion pursuant to a
civil procedure rule rather than a second habeas petition, the
petition was filed more than a year after his judgment and was thus
untimely.
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SENTENCING
USA v. Collier, July 12
J. Cook finds that the lower court improperly
imposed upon defendant a 15-year minimum sentence for being a felon in
possession of a firearm because defendant's conviction of escaping
from prison did not qualify as a violent felony under the Armed Career
Criminals Act.
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TORT
Meals v. Memphis, July 11
Plaintiff's husband was struck by a man being
pursued by a police officer in a high-speed pursuit. J. Adams finds
that the lower court improperly denied the police officer qualified
immunity because the officer did not act with malice toward the man
she pursued and did not intend to worsen his legal plight. Reversed.
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SENTENCING
USA v. Lanesky, July 11
Lanesky, an employee of a mortgage company,
participated in a property flipping scheme by obtaining fraudulent
mortgages. J. Batchelder finds that the sentencing court did not
calculate an applicable guideline range at all when the court
sentenced defendant and thus the circuit cannot be certain that the
error did not cause the defendant to receive a more severe sentence.
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SENTENCING, FIREARMS
USA v. McGee, July 11
J. McKeague finds that the lower court properly
calculated defendant's criminal history category because defendant
acquired a shotgun within ten years of his felony drug conviction,
which constituted the felon in possession of a firearm charge.
Affirmed.
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EMPLOYMENT
Dixon v. Clem, July 10
J. Gilman finds that the lower court properly
found for defendants, who terminated plaintiff after plaintiff took
pictures of a topless high school student, because his claim that
defendants conspired to conceal the allegedly fraudulent photographs
from plaintiff had no support in the record. Affirmed.
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WORKERS COMPENSATION
Brown v. Cassens Transport Co., July 10
J. Gibbons finds that the lower court properly
dismissed plaintiffs' claim of intentional infliction of emotional
distress because the wrongful denial of worker's compensation benefits
does not go beyond all possible bounds of decency to constitute an
intentional infliction of emotional distress. Affirmed.
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INEFFECTIVE ASSISTANCE
Hartman v. Bagley, July 10
J. Gilman finds that the district court properly
convicted defendant of aggravated murder because his counsel's failure
to address mitigating factors from a forensic psychologist's report to
the extent desired by defendant was a strategic choice counsel made
after a thorough investigation of the facts. Affirmed.
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SENTENCING
USA v. Moncivais, July 10
J. Clay finds that the lower court properly
sentenced defendant to 336 months of imprisonment due to an upward
enhancement of his sentencing guideline range because defendant was an
organizer or leader of the conspiracy to distribute cocaine. Affirmed.
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CONSTITUTION
Logsdon v. Hains, July 6
J. Clay finds that the lower court improperly
found for defendants, who arrested a pro-life protester outside an
abortion clinic for trespassing, because defendants did not listen to
witnesses at the scene of the arrest, and thus did not act as prudent
officers. Reversed.
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TERRORISM
American Civil Liberties Union v. National Security Agency, July 6
After the terrorist attacks of September 11,
2001, President Bush authorized the Terrorist Surveillance Program
which included the interception of telephone and email communications
where one party was outside the United States and one party was an al
Qaeda affiliate. J. Batchelder finds that the lower court improperly
found that the National Security Agency violated plaintiffs' privacy
rights because plaintiffs could not demonstrate that they had actually
had been or will be subjected to surveillance personally. Reversed.
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BANKRUPTCY
In re Bucci, July 3
J. Graham finds that the bankruptcy court
properly discharged a debt owed for the debtor's failure to contribute
to employee benefit funds because the debtor did not act as fiduciary
of the monies owed to the funds as required for a defalcation.
Affirmed.
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FRAUD
USA v. Rayborn, July 2
J. Martin finds that the lower court properly
convicted defendant of money laundering because the loan defendant
received through fraudulent documents he sent to the mortgage broker
constituted proceeds obtained from a criminal offense. Affirmed. |
