U.S. First Circuit: November 2009 Archives
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November 2009 Archives

Shaner v. Chase Bank USA, No. 09-1157

Dismissal of a class action relating to interest rate charges on late bank credit card payments is affirmed where: 1) plaintiff's transactions took place prior to August 2009 when the statutory changes and the revised regulations took effect; and 2) the increased APR is not an illegal penalty   

Read Shaner v. Chase Bank USA, No. 09-1157

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 25, 2009

Judges

Before:  Torruella, Boudin and Dyk, Circuit Judges

Opinion by Boudin, Circuit Judge

Counsel

For Appellant:   Barry L. Kramer, Law Offices of Barry L. Kramer, David Pastor and Gilman and Pastor LLP

For Appellee:   Robert S. Stern, Nancy R. Thomas and Morrison & Foerster LLP

Cunningham v. Nat'l City Bank, No. 09-1255

In plaintiffs' putative class action against defendant for breach of contract, violation of the Truth in Lending Act (TILA), and violation of the Massachusetts deceptive business practices law, district court's dismissal of the complaint is affirmed where: 1) defendant did not commit a breach as the unambiguous terms of the agreement permitted defendant to terminate the home equity line of credit; 2) plaintiffs' TILA claims as a matter of law as the unambiguous terms of the agreement did not create a grace period rendering otherwise later payments timely; and 3) plaintiffs have failed to state a 93A claim on which relief can be granted as they have alleged no unfair or deceptive conduct by the defendant. 

Read Cunningham v. Nat'l City Bank, No. 09-1255

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 25, 2009

Judges

Before:  Boudin, Stahl and Lipez, Circuit Judges

Opinion by Stahl, Circuit Judge

Counsel

For Appellant:    Gregory B. Linkh, Jacqueline Sailer, David Pastor, and Gilman and Pastor, LLP

For Appellee:      James W. McGarry, Brook L. Ames and Goodwin Procter LLP

US v. Gonzalez-Velez, No. 07-2277

Defendant's sentence of 135-months' imprisonment after being convicted of participating in a conspiracy to distribute narcotics is affirmed where: 1) trial court's reliance on witness' testimony was not unreasonable; 2) district court did not err in attributing the full five kilograms of cocaine to defendant in calculating the base offense level of 32; 3) district court did not err in denying defendant's request for a two-level reduction in his offense level for acceptance of responsibility.  

Read US v. Gonzalez-Velez, No. 07-2277

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided November 25, 2009

Judges

Before:  Lynch, Chief Judge, Torruella, and Seyla, Circuit Judges

Opinion by Torruella, Circuit Judge

Counsel

For Appellant:  María H. Sandoval

For Appellee:   Thomas F. Klumper, Assistant United States Attorney, with whom Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney

Decky v. Holder, No. 08-2118

Petitioners-Indonesian citizens' request for review, BIA's denial of their application for asylum and related relief is denied as it was supported by substantial evidence in the record.  

Read Decky v. Holder, No. 08-2118

Appellate Information

On Petition for Review of an Order of the Board of Immigration Appeals

Decided November 25, 2009

Judges

Before:  Torruella, Boudin, and Saris, Circuit Judges

Opinion by Torruella, Circuit Judge

Counsel

For Appellant:   William A. Hahn and Hahn & Matkov

For Appellee:  Channah F. Farber, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Michael F. Hertz, Acting Assistant Attorney General, and Jennifer L. Lightbody, Senior Litigation Counsel

Medina v. Metro. Life Ins. Co., No. 08-2564

In plaintiff's ERISA suit against the defendant alleging that it used an arbitrary and capricious procedure in terminating his short-term disability benefits and refusing to grant him long-term disability benefits, entry of summary judgment in favor of defendant is affirmed where: 1) defendant did not abuse its discretion in denying plaintiff's claim for short-term disability benefits; 2) district court did not err in dismissing plaintiff's claim for long-term disability benefits as he had not exhausted his administrative remedies; 3) plaintiff's claim that defendant is liable for sanctions is rejected; and 4) district court did not err in not awarding plaintiff attorney's fees as he does not prevail on any of his substantive claims.   

Read Medina v. Metro. Life Ins. Co., No. 08-2564

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided November 23, 2009

Judges

Before:  Lipez, Torruella, and Howard, Circuit Judges

Opinion by Howard, Circuit Judge

Counsel

For Appellant:   Sonia B. Alfaro de la Vega with whom Alfaro Alfaro & Acevedo-Carlson

For Appellee:   Frank Gotay-Barquet with whom Gotay & Pérez, P.S.C.

Boston & Maine Corp. v. Massachusetts Bay Transp. Auth., No. 09-1185

In a suit filed by a railroad operator (B&M) seeking to enjoin the Massachusetts Bay Transportation Authority (MBTA) from making its Chapter 21E contribution claims against B&M for 95 percent of $15,340,810 for past costs and 95 percent of all future costs, as contribution for certain cleanup activities MBTA undertook at the railroad terminal operated by B&M some twenty-one years ago, district court's judgment is reversed and the appeals court directs entry of judgment for B&M as the MBTA's contribution claims under Chapter 21E for contamination prior to a 1983 discharge from bankruptcy were barred as a matter of law by a Consummation Oder.     

Read Boston & Maine Corp. v. Massachusetts Bay Transp. Auth., No. 09-1185

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided November 23, 2009

Judges

Before:  Lynch, Chief Judge, Torruella, and Howard, Circuit Judges

Opinion by Lynch, Chief Judge

Counsel

For Appellant:  Gene C. Schaerr, Eric L. Hirschhorn, Andrew C. Nichols, Winston & Strawn LLP, and Robert B. Culliford

For Appellee:  John M. Stevens, Douglas M. McGarrah, Cicely O. Parseghian, Foley Hoag LLP, and Thomas F. Scott Darling III

Vaqueria Tres Monjitas, Inc. v. Irizarry, No. 07-2240

In plaintiffs' suit against Puerto Rico's Milk Industry Regulation Administration, claiming that the Administration's regulatory scheme governing milk prices violates the Due Process, Equal Protection, Takings, and dormant Commerce Clauses, grant of a preliminary injunction enjoining the regulatory scheme is affirmed where: 1) the district court properly declined defendants' invitation to abstain from entertaining the action; 2) the Eleventh Amendment does not bar the form of relief granted by the district court in its preliminary injunction; 3) the district court did not abuse its discretion in rejecting defendants' unclean hands defense; 4) the district court did not abuse its discretion in failing to dismiss the action on the basis of laches; 5) the district court did not abuse its discretion in rejecting defendants' estoppel defense; and 6) district court did not abuse its discretion in granting plaintiffs' motion for a preliminary injunction.     

Read Vaqueria Tres Monjitas, Inc. v. Irizarry, No. 07-2240

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided November 23, 2009

Judges

Before:  Torruella, Lipez and Howard, Circuit Judges

Opinion by Torruella, Circuit Judge

Counsel

For Appellant:  Edward W. Hill-Tollinche, Quiñones & Sánchez, P.S.C., Yassmin González-Vélez, and Juan Carlos Ramírez-Ramos

For Appellee:  Rafael Escalera-Rodríguez, Reichard & Escalera, Carmen Alfonso-Rodríguez, and Amelia Caicedo-Santiago, José R. Lázaro-Paoli, José R. Lázaro-Paoli Law Offices, Enrique Nassar-Rizek, Maxine M. Brown-Vázquez, and ENR & Associates

US v. McElroy, No. 08-2088

Defendants' sentence and conviction for conspiring to defraud the US of employment and income taxes and to commit insurance fraud by use of the mails and for procuring false tax returns is affirmed where: 1) a denial of motion to suppress evidence found at a certain address was correct as the evidence was sufficient to support a finding of probable cause; 2) prosecutor's remarks regarding a trial exhibit did not constitute reversible error; 3) district court did not commit reversible error by admitting into evidence summary testimony and charts; 4) district court did not commit reversible error by allowing the prosecutors to elicit out-of-court testimony identifying one of the defendants; and 5) district court did not err in including unpaid state taxes in the total tax loss amount used to calculate the base offense level for sentencing the defendants. 

Read US v. McElroy, No. 08-2088

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 20, 2009

Judges

Before:  Torruella, Ripple, and Boudin, Circuit Judges

Opinion by Ripple, Circuit Judge

Counsel

For Appellant: James L. Sultan, Charles W. Rankin, Kerry A. Haberlin, and Rankin & Sultan

For Appellee: John-Alex Romano, Attorney, Criminal Division, U.S. Department of Justice, Michael K. Loucks, Acting United States Attorney, and Jonathan F. Mitchell, Assistant United States Attorney

Perez v. Holder, No. 09-1022

Guatemalan national's petition for review of the BIA's order denying petitioner's request for withholding of removal is denied as the BIA adequately articulated a reasoned basis for its decision.     

Read Perez v. Holder, No. 09-1022

Appellate Information

Petition for Review of an Order of the Board of Immigration Appeals

Decided November 20, 2009

Judges

Before:  Howard, Ripple, and Seyla, Circuit Judges

Opinion by Seyla, Circuit Judge

Counsel

For Appellant:  Lidia M. Sanchez

For Appellee: Tony West, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, Office of Immigration Litigation, and Susan Bennett Green, Trial Attorney, Office of Immigration Litigation

In re Pharm. Indus. Average Wholesale Price Litig., No. 09-1196

Approval of a settlement in a class action lawsuit involving claims that AstraZeneca Pharmaceuticals published artificially inflated prescription drug prices is affirmed where: 1) district court did not abuse its discretion by finding the settlement provision creating a cy pres fund was fair, adequate, and reasonable; 2) plaintiff's objection to class counsel allegedly negotiating attorneys' fees with the settlement is waived; 3) district court satisfied the requirements of Rule 23(c)(1)(B); and 4) plaintiff's argument that the district court did not properly certify class counsel under Rule 23(g) is waived.     

Read In re Pharm. Indus. Average Wholesale Price Litig., No. 09-1196

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 20, 2009

Judges

Before:  Lynch, Chief Judge, and Torruella and Howard, Circuit Judges

Opinion by Lynch, Chief Judge

Counsel

For Appellant:      Donald E. Haviland, Michael J. Lorusso and The Haviland Law Firm, LLC

For Appellee:    Steve Berman, Sean R. Matt, Thomas M. Sobol, Edward Notargiacomo, Hagens Berman Sobol Shapiro LLP;   Kenneth R. Wexler, Jennifer Fountain Connolly, Wexler Wallace LLP, Jeffrey Kodroff, John A. Marcoretta, Spector, Roseman, Kodroff & Willis P.C.,    Marc H. Edelson, and Hoffman & Edelson

Jennings v. Jones, No. 08-2117

In plaintiff's civil rights case against the state of Rhode Island and a State Police representative and other police officers who had executed a search warrant of his workplace at the Narrangansett Indian Tribe "smoke shop", jury's verdict in favor of the defendant in the second trial is affirmed as: 1) there was no abuse of discretion in the district court's grant of a new trial based on the second ground, that even if the jury verdict had unambiguously rested on the increased force theory, that theory would have been contrary to the weight of the evidence; and 2) plaintiff's argument that the district court erred in granting a new trial because defendant failed to press the district court for a ruling on this motion after it initially and erroneously ruled the motion was moot is rejected.   

Read Jennings v. Jones, No. 08-2117

Appellate Information

Appeal from the United States District Court for the District of Rhode Island

Decided November 19, 2009

Judges

Before:  Lynch, Chief Judge, and Gajarsa and Lipez, Circuit Judges

Opinion by Lynch, Chief Judge

Counsel

For Appellant:     Charles M. Bradley

For Appellee:   Rebecca Tedford Partington, Deputy Chief, Civil Division, John Moreira, Special Assistant Attorney General

Diffenderfer v. Gomez-Colon, No. 08-2139

In plaintiffs' civil rights case against the members of the State Electoral Commission of Puerto Rico challenging the Commission's decision to print ballots in the November 2008 elections solely in Spanish, district court's judgment in favor of the plaintiffs and a permanent injunction compelling the Commission to print bi-lingual ballots is vacated and remanded where: 1) district court's judgment should be vacated because it was rendered moot by an independent, intervening act of legislation mandating the Commission to use bilingual ballots under Puerto Rican law; 2) plaintiffs were prevailing parties entitled to attorney's fees for the costs of the district court litigation notwithstanding the subsequent mootness; 3) district court did not abuse its discretion in reducing plaintiffs' award of attorney's fees; and 4) motion for substitution of parties by the defendant, former President of the Commission, is granted.   

Read Diffenderfer v. Gomez-Colon, No. 08-2139

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided November 19, 2009

Judges

Before:  Lynch, Chief Judge, and Torruella and Ripple, Circuit Judges

Opinion by Lynch, Chief Judge

Counsel

For Appellant:    Noel S. González-Miranda, González Miranda & González Abella PSC

For Appellee:   Eliezer Aldarondo Ortiz, Eliezer A. Aldarondo and Aldarondo & López Bras

DeBurgo v. Amand, No. 09-1145

District court's denial of defendant's request for habeas relief arising from his conviction for armed assault with intent to murder and assault and batter by means of a dangerous weapon is affirmed where: 1) appeals court's analysis of the sufficiency of the evidence was not an unreasonable application of the Supreme Court's standard announced in Jackson given the sufficiently suggestive circumstantial evidence presented; and 2) defendant was not deprived of his Sixth Amendment right to an impartial jury.  

Read DeBurgo v. Amand, No. 09-1145

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 19, 2009

Judges

Before: Lipez, Howard, and Stahl, Circuit Judges

Opinion by Stahl, Circuit Judge

Counsel

For Appellant:    Elizabeth Doherty

For Appellee:   Argie K. Shapiro, Assistant Attorney General, Martha Coakley, Attorney General

Perkins v. Russo, No. 08-1150

District court's denial of defendant's request for habeas relief is affirmed as, even with plenary review, defendant's subordination of perjury claim fails as the victim had identified him multiple time before he was ever even arguably pressed to testify by one of the police officers.   

Read Perkins v. Russo, No. 08-1150

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 18, 2009

Judges

Before:  Lynch, Chief Judge, and Boudin and Stahl, Circuit Judges

Opinion by Boudin, Circuit Judge

Counsel

For Appellant:    Robert Perkins

For Appellee:   Argie K. Shapiro, Assistant Attorney General, Criminal Bureau, James J. Arguin, Assistant Attorney General, Criminal Bureau, and Martha Coakley, Attorney General

US ex rel Ondis v. City of Woonsocket, No. 08-2389

In plaintiff's qui tam action against a city under the False Claims Act claiming that the city had defrauded the federal government by making false statements to the Department of Housing and Urban Development  when applying for federal grants, dismissal of the case is affirmed where there was no error in a conclusion that the FCA's public disclosure bar applied to divest the district court of subject matter jurisdiction over the action as: 1) the city's alleged misrepresentation and what the plaintiff alleges was the city's true plan were sufficiently in the public domain to ground an inference of fraud; 2) the public disclosure occurred in the manner specified in the statute; 3) plaintiff's suit is based upon those publicly disclosed allegations or transactions; 4) plaintiff does not qualify for the original source exception; and 5) district court did not err in precluding certain testimony during an evidentiary hearing.  

Read US ex rel Ondis v. City of Woonsocket, No. 08-2389

Appellate Information

Appeal from the United States District Court for the District of Rhode Island

Decided November 18, 2009

Judges

Before:  Torruella, Selya, and Howard, Circuit Judges

Opinion by Selya, Circuit Judge

Counsel

For Appellant: Leon A. Blais,  Blais & Parent

For Appellee: Michael B. Galvin, Justin P. O'Brien and Dwyer & Collora LLP

US v. Pena, No. 08-1407

District court's conviction and sentence of defendant for possession of cocaine base with intent to distribute and carrying a firearm is affirmed where: 1) district court did not err in admitting the testimony of the Massachusetts State Troopers regarding the fingerprint evidence and numerous courts have found expert testimony on fingerprint identification based on the ACE-V method to be sufficiently reliable under Daubert; and 2) the totality of the evidence was sufficient to support the verdict. 

Read US v. Pena, No. 08-1407

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 17, 2009

Judges

Before:  Boudin, Lipez and Stahl, Circuit Judges

Opinion by Stahl, Circuit Judge

Counsel

For Appellant:   Mary A. Davis, and Tisdale & Davis, PA

For Appellee:   Mark T. Quinlivan, Assistant US Attorney, Michael K. Loucks, Acting US Attorney

Windross v. Barton Protective Serv., Inc., No. 08-2254

In plaintiff's employment discrimination, retaliatory harrasment, and hostile work environment action against his former employer, district court's entry of summary judgment for the defendant is affirmed where: 1) district court did not err in holding that the continuing violation doctrine is not available to plaintiff to overcome his time-barred claims; 2) district court did not err in its concluding that there was no evidence of pretext in plaintiff's disciplining, suspension, or termination; and 3) district court acted within its discretion in denying plaintiff's motion to amend and motion for reconsideration as his hostile work environment claim was time-barred. 

Read Windross v. Barton Protective Serv., Inc., No. 08-2254

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 17, 2009

Judges

Before:   Boudin, Gibson, and Howard, Circuit Judges

Opinion by Gibson,  Circuit Judge

Counsel

For Appellant:   Brailey E. Newton

For Appellee:   David C. Hamilton

Montalvo v. Gonzalez-Amparo, No. 08-1405

District court's dismissal of plaintiff's suit as time-barred, alleging malpractice by her deceased mother's medical care providers, is vacated and remanded where: 1) the date of accrual for plaintiff's personal claim was within the one-year statute of limitations; and 2) under 32 L.P.R.A. section 255, plaintiff is entitled to bring her mother's medical malpractice claim because it was brought within one year of her mother's death.   

Read Montalvo v. Gonzalez-Amparo, No. 08-1405

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided November 16, 2009

Judges

Before:  Lynch, Chief Judge, and Lipez and Leval, Circuit Judges

Opinion by Leval, Circuit Judge

Counsel

For Appellant:  Tania M. Pagan, The Pagan Law Firm, P.C.

For Appellee:  Hector E. Ramírez-Carbo, Ramonita Dieppa Gonzalez and Vivas & Vivas Law Office

Cabral v. US Dep't of Justice, No. 07-1633

In an appeal arising from an underlying action brought by a nurse practitioner claiming that defendant-sheriff barred plaintiff from a County House of Correction (HOC) for informing the FBI of alleged prisoner abuse at the HOC, denial of defendants' motions for a new trial and for remittur is affirmed where: 1) there is nothing in the record indicating that the district court abused its discretion in making its pre-trial evidentiary and disclosure rulings; 2) district court's dismissal of defendants' action under the Administrative Procedure Act (APA) was proper as there was nothing in the record indicating that agency's denial of the defendants' Touhy requests was arbitrary and capricious; 3) the evidence was sufficient to establish that the sheriff engaged in the callous and reckless conduct necessary to support an award of punitive damages; and 4) the award of punitive damages of $250,000 against sheriff was not excessive. 

Read Cabral v. US Dep't of Justice, No. 07-1633

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 12, 2009

Judges

Before:  Torruella, Seyla and Dyk, Circuit Judges

Opinion by Torruella, Circuit Judge

Counsel

For Appellant:  Ellen M. Caulo, Deputy General Counsel

For Appellee:  Lowell V. Sturgill, Jr., Attorney, Appellate Staff, Civil Division, Tony West, Assistant Attorney General, Michael K. Loucks, Acting United States Attorney, and Michael S. Raab, Attorney. 

Thornton v. United Parcel Serv., Inc., No. 08-2162

In plaintiff's disability discrimination action against his former employer under the ADA, summary judgment for defendant is affirmed where: 1) the district court correctly determined that the allegations of discrimination encompassed by his 2001 Massachusetts Commission Against Discrimination (MCAD) charge placed a limitation on the claims plaintiff can present now, and as such, plaintiff could only pursue his action with respect to alleged acts of discrimination that occurred in the 300-day window preceding his 2001 MCAD charge; and 2) the district court correctly determined that, assuming the 2001 MCAD complaint was properly limited, plaintiff's remaining allegations did not support his claims of violations of the ADA.  

Read Thornton v. United Parcel Serv., Inc., No. 08-2162

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 12, 2009

Judges

Before:  Boudin, Lipez, and Gajarsa, Circuit Judges

Opinion by Gajarsa, Circuit Judge

Counsel

For Appellant:  Michael Tumposky, Stephen B. Hrones

For Appellee:  Elizabeth A. Kowal, and Susan J. Baronoff

South Bay Boston Mgmt., Inc. v. Unite Here, Local 26, No. 09-1081

District court's grant of defendant-union's motion to compel arbitration and denial of plaintiff's petition for declaratory judgment is affirmed where: 1) the Union neutrality agreement at issue was not void ab initio; and 2) the arbitration clause of the agreement remained in effect.     

Read South Bay Boston Mgmt., Inc. v. Unite Here, Local 26, No. 09-1081

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 12, 2009

Judges

Before: Boudin, Lipez, and Gajarsa, Circuit Judges

Opinion by Gajarsa, Circuit Judge

Counsel

For Appellant:  Gregory C. Keating, John D. Doran and Ronald S. Allen

For Appellee:  Paul L. More, Michael T. Anderson

US v. Villar, No. 08-1154

In proceedings arising after defense counsel in a criminal matter received an e-mail from a juror containing ethnically-biased statements, an order denying defendant's motion to make an inquiry into the validity of the verdict is reversed and the matter remanded where: 1) although the trial court correctly found that Rule of Evidence 606(b) precludes inquiry into juror prejudice; 2) a court has the discretion to conduct such an inquiry under the Sixth Amendment and the Due Process Clause of the United States Constitution. 

Read US v. Villar, No. 08-1154

Appellate Information

Appeal from the United States District Court for the District of New Hampshire

Decided November 10, 2009

Judges

Before:  Torruella and Boudin, Circuit Judges, and Saris, District Judge

Opinion by Saris, District Judge

Counsel

For Appellant:  Mark L. Stevens

For Appellee:  Aixa Maldonado-Quiñones, Assistant United States Attorney, Michael J. Gunnison, Acting United States Attorney

Sugiarto v. Holder, No. 08-2502

Indonesian national's petition for review of BIA's denial of her application for asylum is denied where: 1) BIA's finding that petitioner failed to establish the requisite nexus between the obviously traumatic incidents of armed robbery and bomb threats and her status as a Christian was supported by substantial evidence on the record; and 2) BIA's decision denying petitioner's claim for asylum on the basis of well-founded fear of future persecution was supported by substantial evidence.    

Read Sugiarto v. Holder, No. 08-2502

Appellate Information

On Petition for Review of an Order of the Board of Immigration Appeals

Decided November 10, 2009

Judges

Before:  Torruella, Seyla, and Dyk, Circuit Judges

Opinion by Torruella, Circuit Judge

Counsel

For Appellant:  Armin A. Skalmowski

For Appellee:  Julia J. Tyler, Trial Attorney, Office of Immigration Litigation, Civil Division, Tony West, Assistant Attorney General, Civil Division, and Barry J. Pettinato, Assistant Director

Kunelius v. Town of Stow, No. 08-2393

In plaintiff's breach of contract action against defendants involving a town's exercise of its statutory right of first refusal (ROFR) to purchase plaintiff's forest land and subsequent assignment of its right to a nonprofit conservation organization, summary judgment for defendants is affirmed where: 1) the liquidated damages provision applies to defendants, as the holder of an ROFR must meet all of the terms and conditions of the offer, including subsidiary terms such as the liquidated damages clause at issue; 2) the liquidated damages provision is enforceable; 3) district court's summary judgment with respect to a Chapter 93A claim, the business-to-business provisions of the consumer protection statute, was properly granted to defendants as Chapter 93A is not applicable where a nonprofit defendant is acting in furtherance of its core mission; 4) plaintiff's challenge to the district court's conclusion that she did not plead a violation of the covenant of good faith and fair dealing in her complaint is rejected; and 5) plaintiff's remaining claims are rejected as meritless.   

Read Kunelius v. Town of Stow, No. 08-2393

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 9, 2009

Judges

Before:  Torruella, Howard, and Lipez, Circuit Judges

Opinion by Howard, Circuit Judge

Counsel

For Appellant:  Michael C. McLaughlin

For Appellee:  Richard A. Oetheimer Dahlia S. Fetouh and Goodwin Procter LLP

Dong v. Holder, No. 08-2083

Chinese citizen's petition for review of BIA's denial of his application for asylum is denied where: 1) petitioner never presented his "other resistance" argument to the BIA; 2) petitioner never argued before the BIA that his flight from China constituted other resistance to a coercive population control program; and 3) BIA did not abuse its discretion in refusing to remand for further factfinding.       

Read Dong v. Holder, No. 08-2083

Appellate Information

On Petition for Review of an Order of the Board of Immigration Appeals

Decided November 6, 2009

Judges

Before: Boudin, Hansen, and Lipez, Circuit Judges

Opinion by Lipez, Circuit Judge

Counsel

For Appellant:  Theodore N. Cox

For Appellee:  Manual A. Palau, Office of Immigration, Michael F. Hertz, Acting Attorney General

In re: Smith, No. 09-9005

Order of the Bankruptcy Appellate Panel reversing an order of the Bankruptcy Court is affirmed as a late alimony payment penalty was not a domestic support obligation, and as such, the ex-wife's claim was a general unsecured claim not entitled to priority status and consequently dischargeable.     

Read In re: Smith, No. 09-9005

Appellate Information

Appeal from the Bankruptcy Appellate Panel

Decided November 6, 2009

Judges

Before:  Boudin, Torruella, and Saris, Circuit Judges

Opinion by Torruella, Circuit Judge

Counsel

For Appellant:  Clifford P. Gallant, Jr., Beliveau Fradetter Doyle & Gallant, PA.

For Appellee:  Mark P. Cornell, Kelly Ovitt Puc, Cornell and Ovitt Puc, PLLC.

US v. Eisom, No. 08-1893

District court's imposition of a sentence based on calculation of the guideline range to include, as relevant conduct, amounts of drugs and cash independently seized from defendant in connection with an unrelated criminal investigation is affirmed as the defendant waived any objection to the sentencing determination, and the determination was not clearly erroneous. 

Read US v. Eisom, No. 08-1893

Appellate Information

Appeal from the United States District Court for the District of Maine

Decided November 5, 2009

Judges

Before:  Boudin, Seyla and Lipez, Circuit Judges

Opinion by Seyla, Circuit Judge

Counsel

For Appellant:  Christine M. Charles

For Appellee:  Paula D. Silsby, United States Attorney

US v. Oquendo-Rivera, No. 08-2481

District court's decision revoking supervised release and sentencing defendant to a further term in prison following his arrest for allegedly shooting at an officer, is set aside and remanded where, given the relatively weak evidence, district court's decision is undermined by reliance on guesswork regarding the event.     

Read US v. Oquendo-Rivera, No. 08-2481

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided November 5, 2009

Judges

Before:  Lynch, Chief Judge, and Torruella and Boudin, Circuit Judges

Opinion by Boudin, Circuit Judge

Counsel

For Appellant:  Hector L. Ramos-Vega, Assistant Federal Public Defender

For Appellee:  Julia M. Meconiates, Assistant United States Attorney

Gourdet v. Holder, No. 08-2422

A Haitian citizen's petition for review of BIA's denial of his application for relief from removal under the CAT is denied where: 1) the general detention conditions in Haiti are not sufficiently severe to rise to the level of torture; 2) the acts of mistreatment that petitioner will likely be subjected to in detention do not amount to torture; and 3) Court lacks jurisdiction to address petitioner's remaining contentions that he has met his burden of proving that torture of criminal deportees in Haiti is widespread and that he is more likely to be singled out for mistreatment by Haitian authorities because of his personal characteristics.   

Read Gourdet v. Holder, No. 08-2422

Appellate Information

On Petition for Review of an Order of the Board of Immigration Appeals

Decided November 4, 2009

Judges

Before:  Lynch, Chief Judge, and Ebel and Lipez, Circuit Judges

Opinion by Lipez, Circuit Judge

Counsel

For Appellant:  Jeffrey B. Rubin

For Appellee:  Stefanie Notarino Hennes, Trial Attorney, Office of Immigration Litigation, Michael F. Hertz, Acting Assistant Attorney General, Civil Division, and John W. Blakeley, Assistant Director, Office of Immigration Litigation

Miller v. Nichols, No. 09-1174

In plaintiffs' constitutional challenge to the state's removal of their child after termination proceedings and motion for injunctive relief to prevent a foster family's adoption of the child, district court's dismissal of their case is affirmed where: 1) the district court correctly determined that it lacked subject matter jurisdiction to review plaintiffs' motion for injunctive relief to prevent the child's adoption pursuant to the Rooker-Feldman doctrine; and 2) the factual issues underlying plaintiffs' claims were addressed by the state court and are barred by issue preclusion.  

Read Miller v. Nichols, No. 09-1174

Appellate Information

Appeal from the United States District Court for the District of Maine

Decided November 4, 2009

Judges

Before:  Lynch, Chief Judge, Torruella and Boudin, Circuit Judges

Opinion by Lynch, Chief Judge

Counsel

For Appellant:  Eric H. Mehnert, Hawkes & Mehnert, LLP

For Appellee:  Melissa Reynolds O'Dea, Assistant Attorney General, Janet T. Mills, Attorney General of Maine, and Paul Stern, Deputy Attorney General

Omnipoint Holdings, Inc. v. City of Cranston, No. 08-2491

In plaintiff-wireless carrier's case against a city, the city's zoning board, and some of its members for denying a variance and special use permit to build a wireless communications tower in the city, district court's judgment in favor of the plaintiff is affirmed as the zoning board's decision was a final action for purposes of section 332(c)(7)(B) of the Telecommunications Act, and as such, the court did not err in finding that the zoning board's decision had the effect of prohibiting the provision of personal wireless services.   

Read Omnipoint Holdings, Inc. v. City of Cranston, No. 08-2491

Appellate Information

Appeal from the United States District Court for the District of Rhode Island

Decided November 3, 2009

Judges

Before:  Lynch, Chief Judge, and Gajarsa and Lipez, Circuit Judges

Opinion by Lynch, Chief Judge

Counsel

For Appellant:  Jeffrey S. Michaelson, Michaelson & Michaelson

For Appellee:   William A. Worth, Thomas M. Elcock and Prince, Lobel, Glovsky & Tye LLP

Glacken v. Dickhaut, No. 09-1491

District court's denial of a petition for habeas relief of a defendant convicted of first degree murder is affirmed where: 1) defendant's jury instruction claim was procedurally defaulted; and 2) defendant's claim of ineffective assistance of counsel rejected as futile.   

Read Glacken v. Dickhaut, No. 09-1491

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 3, 2009

Judges

Before:  Lipez, Stahl, and Howard, Circuit Judges

Opinion by Howard, Circuit Judge

Counsel

For Appellant:  Joseph J. Balliro, Jr. , and Balliro & Mondano

For Appellee:  Martha Coakley, Attorney General and Anne M. Thomas, Assistant Attorney General