U.S. First Circuit: February 2010 Archives
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February 2010 Archives

Rulings in an Immigration Case, Court's Sanction, and Default Judgment

The First Circuit dealt with a contract matter, an immigration case and a case involving a district court's dismissal as a sanction upon a party for discovery related matters.

In Indigo Am., Inc. v. Big Impressions, LLC, the court vacated and remanded district court's entry of default against the defendant in a breach of contract case. 

Under the factors set forth in KPS & Assocs., the court found that defendant 's default was not willful, setting it aside would not prejudice plaintiff and that defendant met its burden of showing a meritorious defense.  Having analyzed under the factors, the court concluded that the default must be set aside as district court's ruling contained no explanation as to why it denied the motion.

In Castro-Soto v. Holder, the court faced a petitioner's challenge to the BIA's denial of his request for adjustment of status based on his illegal entry into the US in 2005.

In affirming the decision of BIA, the court rejected petitioner's claim that his I-130 petition filed in 1992 provided grandfathered status, as his first marriage ended in divorce, he fully exercied his right to have his condition removed and obtained all of the benefit based on the 1992 petition.

Lastly, in Garcia-Perez v. Hosp. Metropolitano, the court faced plaintiff's challenge to the dismissal of the case for non-compliance with discovery deadlines.

In vacating the dismissal, the court concluded that the district court never clearly communicated a deadline for providing expert reports or notice to plaintiff that failing to do so could result in dismissal.  Thus, although the court did not condone plaintiff's lengthy and unjustified delay in producing the expert reports, it found that the court's participation in the delay rendered the sanction of dismissal an abuse of discretion.

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In Walden v. City of Providence, No. 08-1534, the First Circuit dealt with an action by public safety employees against a city and various city officials claiming that the automatic recording system at a new city building complex violated their rights.

As stated in the decision: "The state Attorney General's Office concluded that there was no evidence that any of the calls recorded were listened to 'without consent of a call participant or for a criminal, malicious, or non-business-related reason.'" 

In reversing the district court's decision for the plaintiffs, the court held that the defendants are entitled to qualified immunity as there is no clearly established law that public safety employees, such as police officers and firefighters, had a clearly established right under the Fourth Amendment not to have calls made at work recorded. 

Related Resource:

 

Ruling in Workplace Disability Discrimination and Retaliation Case

In Carreras v. Sajo Garcia & Partners, No. 08-2068, the First Circuit faced a challenge to the district court's summary judgment for the defendant in plaintiff's action for workplace disability discrimination and retaliation.

As stated in the decision: "The record shows that in many instances Carreras' response manifestly ignores the express requirements of the anti-ferret rule.  Most blatantly, in at least two instances, Carreras' opposition fails to "accept, qualify or deny" the fact listed by his opponent."  Furthermore, the facts of the record fail to show that plaintiff's vision or eating is substantially limited by his diabetes, and facts dispute plaintiff's claim of retaliation as evidenced by defendant's email stating dissatisfaction with plaintiff's work.

Thus, it was within the district court's discretion to invoke the anti-ferret rule and reject plaintiff's claims as there was no genuine issue of material fact as to whether he experienced disability discrimination or was retaliated against within the meaning of the ADA.

Related Resource:

In Gintis v. Bouchard Transp. Co., Inc., No. 09-1717, the First Circuit faced a challenge to the district court's denial of class certification in an action by plaintiffs against a fuel barge owner and operator for substantial amount of oil discharged into a Massachusetts bay.

In its decision, the district court relied heavily on the denial of class certification in Church v. General Electric Co., 138 F.Supp. 2d 169 (D. Mass. 2001).  However, the court stated: "To begin with, Church does not support a general rule that pollution torts charged against a single defendant escpate class treatment on the ground that the requirements to show injury, cause and compensatory amount must be sustainable as to specific plaintiffs.  If that were the law, the point of the Rule 23(b)(3) provisions for class treatment would be blunted beyond utility..." 

Other than its reliance on Church, the court concluded that district court's fact finding was too sparse to determine whether class should have been certified, and as such, the decision of the district court is vacated and remanded. 

Related Resource:

Challenge to Puerto Rico Excise Tax on "Little Cigars" Extinguished

In Pleasures of San Patricio, Inc. v. Mendez-Torres, No. 08-2388, the First Circuit faced plaintiff's constitutional challenge to the Puerto Rico's cigarette excise tax recently imposed on "little cigars" imported from North Carolina.

Under the Butler Act: "No suit for the purpose of restraining the assessment or collection of any tax imposed by the laws of Puerto Rico shall be maintained in the United States District Court for the District of Puerto Rico."

Thus, in affirming the district court's dismissal, the court held that it lacked subject matter jurisdiction pursuant to the Butler Act because the Commonwealth of Puerto Rico courts have provided a plain, speedy, and efficient remedy.

Related Resource:

Conviction For Conspiring to Distribute Cocaine Upheld

In US v. Mitchell, No. 09-1260, the First Circuit faced a challenge to a conviction for conspiring to distribute cocaine. Defendant, Marcus Mitchell, claimed (1) that the district court improperly admitted out-of-court co-conspirator statements despite insufficient evidence to corroborate Mitchell's participation in the conspiracy, and (2) that the district court erred by failing to give a "buyer-seller" instruction sua sponte, which would have asked the jury to consider whether Mitchell's relationship with the conspiracy was that of an active member or merely a purchaser of narcotics for personal use.

As stated in the decision: "Phone records showed calls from Mitchell's listed phone number to Clas and Rodriguez, and, as discussed, call patterns and conversations among co-conspirators provided strong circumstantial proof that Mitchell was indeed 'Prieto'."

In upholding the conviction, the court found that as to the first issue: "[t]he government introduced more than sufficient extrinsic evidence to establish that Mitchell was, more likely than not, a member of the charged conspiracy to distribute cocaine, and that the challenged statements were in furtherance of the conspiracy's objectives." 

Further, as to the buyer-seller instruction, "the district court did not plainly err in failing to give a buyer-seller instruction because the record does not support the theory that Mitchell was a mere buyer for personal use" particularly considering that "the evidence at trial showed that Mitchell was involved in multiple transactions, for large, kilogram-quantities of cocaine, for large sums of money" and also that he "made pre-arranged purchases from other conspiracy members" and was "familiar with the conspiracy's drug code."

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In Rem Maritime Lien Ruling in Cianbro v. George H. Dean, Inc.

In Cianbro v. George H. Dean, Inc., No. 09-1574, the First Circuit dealt with the issue of whether an in rem maritime lien should be allowed against plaintiff's vessels, arising from a Vessel Conversion Contract to convert the vessels from sulfur tankers into multi-purpose supply vessels.

Under 46 U.S.C. section 31342(a), to establish a maritime lien on a vessel, the lien claimant must prove, inter alia, that it provided necessaries to the vessel on the order of the owner or a person authorized by the owner.

As stated in the decision: "Dean Steel has provided no evidence that it had dealings with the vessels or their owners.  Dean Steel dealt only with Hub and provided the steel to Hub.  Whatever happened to the steel after Hub took possession of it from Dean Steel broke the chain of events leading to the establishment of the martime lien as far as the vessels are concerned."

Thus, in upholding the district court's decision, the court concluded that the claimant failed to make factual showing that it provided for necessaries to the vessels, or that it acted on the order of the vessels' owner or a person authorized by the owner.

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Criminal Defendant's Challenge to Two Sentencing Enhancements Rejected

In US v. Damon, No. 09-1705, the First Circuit addressed a criminal defendant's challenge to the application of two sentencing enhancements applicable to firearm offenses. 

The court rejected defendant's arguments in holding that the enhancement was properly applied.  First, the court rejected defendant's first argument in holding that the Sentencing Commisison did not intend to use ACA's definition  (which excludes state convictions that the state classifies as misdemeanors if they are pubishable by less than two years' imprisonment)  and that defendant's second conviction was clearly a "felony conviction" for a "controlled substance offense" based on the definition of those terms the Commission adopted. 

The court rejected defendant's second contention that his offense did not "involve" three or more firearms, and held that defendant's offense "involved" the other two guns as well as the one he sought to obtain for himself. 

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Does the National Union Carve-Out Exception Apply to UIM Coverage?

In Baker v. St. Paul Travelers Ins. Co., No. 09-1239, the court rejected the defendant-insurance company's contention that an employee cannot recover for work-related injuries under both workers' compensation and her employer's Underinsured Motorist (UIM) provision of the automobile insurance policy.

The court quoted the decision by the Massachusetts Supreme Court Judge in National Union: "We would not extend the bar imposed by the exclusivity provision of the Workers' Compensation Act to make ineffective [UIM] coverage (or any other coverage) that an employer explicitly purchased for the purpose of providing [UIM] coverage to employees injured in the course of their employment."

Thus, the court reversed the district court's judgment in favor of the defendant in concluding that the summary judgment was granted to St. paul without addressing the carve-out language in National Union, and therefore it did not reach the factual question of whether the underinsurance coverage purchased by the [employer] was indeed a bargained-for provision intended to provide [its] employees with addtional protection from damages caused by underinsured motorists.

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Habeas Petition Claiming Involuntary Plea Rejected

In Forsyth v. Spencer, No. 09-1011, the U.S. Court of Appeals for the First Circuit faced a challenge to a denial of defendant's request for habeas relief arguing, among other things, that his plea was based upon inaccurate and incomplete information and therefore involuntary.

As stated in the decision:  "From these affidavits and the later proceedings, it is clear the parties at the conference could not agree upon a recommended sentence; but they agreed that defendant would aim to plead guilty to the three less serious charges in exchange for the dismissal of the assault with intent to murder charge.  None of the three affiants claims that a specific sentence recommendation was promised by the prosecutor."

In affirming the denial of defendant's petition, the Court ruled that his due process claim fails insofar as it rests on the premise that plea counsel provided false information about the prosecutor's commitments or intentions.  In affirming the denial, the Court further rejected defendant's ineffective assistance of counsel claim. 

Related Resources:

US v. Dowdell, No. 08-1855

Conviction of defendant for distributing cocaine base and sentence of 198 months' imprisonment as a career offender is affirmed where: 1) defendant's speedy trial right attached on the date of his federal indictment; 2) defendant forfeited any Interstate Agreement on Detainers (IAD) claim by failing to raise it in the district court; 3) district court's amendment of one indictment from distribution of "cocaine" to "cocaine base" did not affect the substance of the charges and therefore did not offend the Presentment Clause; and 4) the district court did not abuse its discretion in its evidentiary rulings; and 5) there is no flaw in defendant's sentence. 

Read US v. Dowdell, No. 08-1855

Appellate Information

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

Decided February 12, 2010

Judges

Before: Torruella, Seyla, and  Howard, Circuit Judges

Opinion by  Circuit Judge Howard

Counsel

For Appellant:     Charles W. Rankin, Michelle Menken and Rankin & Sultan

For Appellee:   Randall E. Kromm, Assistant United States Attorney, Michael K. Loucks, Acting United States Attorney

Ansys, Inc. v. Computational Dynamics N. Am., Ltd., No. 09-2634

In plaintiff's suit against its former employee and his new employer (a competitor) claiming breach of noncompetition and confidentiality clauses in the employee's employment contract, interference with contractual relations, misappropriation of trade secrets, and unfair trade practices, denial of plaintiff's request for preliminary injunction to enforce the provisions of a one-year noncompetition clause in the employment agreement is affirmed as the district court did not abuse its discretion by finding that plaintiff has failed to make a showing of likelihood of success on the breach of contract claim, or a likelihood of irreparable injury.     

Read Ansys, Inc. v. Computational Dynamics N. Am., Ltd., No. 09-2634

Appellate Information

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

Decided February 12, 2010

Judges

Before: Lynch, Chief Judge,  Howard, Circuit Judge, and Woodlock, District Judge

Opinion by  Circuit Judge Lynch

Counsel

For Appellant:    Wilbur A. Glahn, III, Cameron G. Shilling, Cathryn E. Vaughn, and McLane, Graf, Raulerson & Middleton, Professional Association

For Appellee:   Geoffrey J. Vitt, Elizabeth K. Rattigan, Vitt & Ratigan, PLC, Michael A. Schlanger, Shelli L. Calland, and Covington & Burling LLP

US v. Davila-Gonzalez, No. 08-2575

District court's imposition of a sentence of 78-months imprisonment upon a defendant convicted of money laundering and related crimes is affirmed where the district court's sentencing was free from error, plain or otherwise. 

Read US v. Davila-Gonzalez, No. 08-2575

Appellate Information

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

Decided February 10, 2010

Judges

Before: Seyla, Boudin and Howard, Circuit Judges

Opinion by  Circuit Judge Seyla

Counsel

For Appellant:  Joseph C. Laws, Jr., Federal Public Defender, Vivianne M. Marrero, Assistant Federal Public Defender

For Appellee:     Rosa Emilia Rodriguez-Velez, US Attorney, Nelson Perez-Sosa, Chief, Thomas F. Klumper, Assistant US Attorney

Chiang v. Verizon New England, Inc., No. 09-1214

In plaintiff's suit against Verizon seeking more than $1 million for claimed violations of his rights under the Fair Credit Reporting Act (FCRA) and under the Fair Debt Collection Practices Act (FDCPA) based on Verizon's handling of the parties' prior disputes resolved in state court, summary judgment in favor of defendant is affirmed where: 1) under section 1681s-2(b) of the FCRA, there is a private cause of action, the investigation must be reasonable, this test is objective, and plaintiff bears the burden of proof; 2) a section 1681s-2(b) claim requires plaintiff to show actual inaccuracies that a furnisher's objectively reasonable investigation would have been able to discover; 3) on the FCRA claims, plaintiff failed to raise a genuine issue of material fact on two issues on which he bore the burden; and 4) on plaintiff's FDCPA claim, there is no material dispute of fact that Verizon is not a debt collector. 

Read Chiang v. Verizon New England, Inc., No. 09-1214

Appellate Information

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

Decided February 9, 2010

Judges

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

Opinion by  Circuit Judge Lynch

Counsel

For Appellant:  Dean Carnahan, Law Offices of Dean Carnahan

For Appellee:     Joshua A. Lewin, William A. Worth and Prince, Lobel, Glovsky & Tye LLP

Klaucke v. Daly, No. 09-1222

In an action against a police officer claiming violation of plaintiff's Fourth Amendment rights and violation of state civil rights law, district court's grant of summary judgment in favor of the defendant is affirmed as officer had ample reasonable suspicion to believe that defendant was a minor in possession of alcohol in violation of state law when he detained the defendant, demanded identification, and briefly retained his driver's license in order to confirm its validity and check for outstanding warrants.     

Read Klaucke v. Daly, No. 09-1222

Appellate Information

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

Decided February 9, 2010

Judges

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

Opinion by  Circuit Judge Torruella

Counsel

For Appellant:  Bruce D. Colegrove

For Appellee:     Richard W. Jensen and Morrison, Mahoney, LLP

US v. Santiago-Rivera, No. 08-1499

District court's imposition of a sentence upon a defendant in connection with the revocation of a term of supervised release is vacated and remanded as the district court committed a procedural error by selecting a sentence for the sole purpose of controlling the running of an unrelated local sentence. 

Read US v. Santiago-Rivera, No. 08-1499

Appellate Information

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

Decided February 5, 2010

Judges

Before: Torruella, Seyla and Hoawrd, Circuit Judges

Opinion by  Circuit Judge Seyla

Counsel

For Appellant:  Irma R. Valldejuli

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

Richardson v. Friendly Ice Cream Corp., No. 08-2423

In plaintiff's action against her former employer claiming discrimination in violation of the Americans with Disabilities Act (ADA) and the Maine Human Rights Act by failing to accommodate her disability and by terminating her employment because of the disability, judgment in favor of defendant-employer is affirmed where: 1) plaintiff failed to present sufficient evidence for a reasonable jury to find that she is a "qualified individual" within the meaning of the ADA; and 2) plaintiff's interactive process claim fails as the two accommodations she identified are, on the record, inadequate to enable her to perform a sufficiently broad range of manual tasks and unreasonable as a matter of law.  

Read Richardson v. Friendly Ice Cream Corp., No. 08-2423

Appellate Information

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

Decided February 5, 2010

Judges

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

Opinion by  Circuit Judge Lipez

Counsel

For Appellant:  Julie D. Farr

For Appellee:    Christopher T. Vrountas

US v. Bater, No. 08-2253

Conviction of defendant for being a felon in possession of a firearm is affirmed where: 1) defendant's indictment occurred within the statute of limitations, which is five years for the offense charged; 2) defendant's argument that a delay caused him prejudice fails; and 3) district court's denial of defendant's motion to suppress a firearm on grounds of Fourth Amendment violation is upheld. 

Read US v. Bater, No. 08-2253

Appellate Information

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

Decided February 4, 2010

Judges

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

Opinion by  Circuit Judge Boudin

Counsel

For Appellant:      Joseph Wrobleski

For Appellee:   Renée M. Bunker, Assistant United States Attorney, Paula D. Silsby, United States Attorney

Estrada v. State of Rhode Island, No. 09-1149

In plaintiffs' action challenging the constitutionality of the actions of a police officer during a traffic stop, summary judgment in favor of defendant is affirmed where: 1) the officer is entitled to federal and state qualified immunity for any possible constitutional violations that he may have committed in asking the van's passengers questions about their immigration status and in contacting ICE; 2) the officer is entitled to qualified immunity for alleged violations of state or federal laws surrounding the seizure of plaintiffs and their subsequent escort to ICE office; 3) officer is entitled to qualified immunity for both pat down searches under federal and state law; and 4) the officer is entitled to qualified immunity for all of the challenged actions with respect to the Rhode Island Racial Profiling Prevention Act. 

Read Estrada v. State of Rhode Island, No. 09-1149

Appellate Information

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

Decided February 4, 2010

Judges

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

Opinion by  Circuit Judge Torruella

Counsel

For Appellant:    V. Edward Formisano, American Civil Liberties Union, Rhode Island Affiliate, Sinapi, Formisano, & Co., Ltd.,

For Appellee:    John M. Moreira, Special Assistant Attorney General, Patrick C. Lynch, Attorney General, James R. Lee and Brenda D. Baum, Assistants Attorney General

Evans Cabinet Corp. v. Kitchen Int'l, Inc., No. 08-2579

In plaintiff's action for breach of contract and quantum meruit, district court's entry of judgment in favor of the defendant based on an earlier judgment entered by the Superior Court of Quebec is reversed and remanded where: 1) it is clear that genuine issues of fact remain to be resolved  before the authority of Quebec to exercise personal jurisdiction over defendant can be established; and 2) district court's analysis of jurisdiction is deficient as absent from the district court's analysis is any discussion of the "Gestalt factors," which a court must consider to determine the fairness of subjecting the defendant to a foreign jurisdiction.   

Read Evans Cabinet Corp. v. Kitchen Int'l, Inc., No. 08-2579

Appellate Information

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

Decided February 3, 2010

Judges

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

Opinion by  Circuit Judge Ripple

Counsel

For Appellant:  Charles K. Reed, Michael Freed, McKenna Long & Aldridge LLP

For Appellee:    Edward J. Fallman

Janosky v. St. Amand , No. 09-1012

District court's denial of defendant's petition for habeas relief is affirmed where: 1) defendant is barred from litigating his procedurally defaulted jury instruction claim; 2) defendant's claim of ineffective assistance of counsel is rejected; and 3) defendant did not present his Sixth Amendment claim, the scrap of paper, fairly and recognizably to the state trial court.  

Read Janosky v. St. Amand , No. 09-1012

Appellate Information

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

Decided February 3, 2010

Judges

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

Opinion by  Circuit Judge Seyla

Counsel

For Appellant:  Francis J. Hurley, Gannon & Hurley, P.C.

For Appellee:    Anne M. Thomas, Assistant Attorney General, Commonwealth of Massachusetts, Martha Coakley, Attorney General,

Abrante v. St. Amand, No. 09-1020

District court's denial of defendant's petition for habeas relief, convicted of armed robbery and related crimes, is affirmed where: 1) defendant has not offered clear and convincing evidence  that the state established agency relationships with inmate informants who then elicited admissions from him without the presence of counsel in violation of his Sixth and Fourteenth Amendment rights' 2) defendant's due process violation claim fails; 3) defendant's ineffective assistance of counsel claim is rejected; and 4) the issues defendant raises do not present the court with opportunity to consider his constitutional challenge to the AEDPA.   

Read Abrante v. St. Amand, No. 09-1020

Appellate Information

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

Decided February 3, 2010

Judges

Before:  Lynch, Chief Judge, Stahl, Circuit Judge, and DiClerico, District Judge

Opinion by  Circuit Judge Stahl

Counsel

For Appellant:  Victoria L. Nadel

For Appellee:    Anne Marie Thomas, Assistant Attorney General, with whom Martha Coakley, Attorney General, and Lincoln S. Jalelian, Assistant Attorney General