U.S. First Circuit

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

2009-11-24T00:03:41Z

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

2009-11-23T15:59:26Z

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

2009-11-23T15:53:14Z

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

2009-11-23T15:47:08Z

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

2009-11-19T23:05:00Z

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

2009-11-19T22:59:01Z

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

2009-11-19T22:54:04Z

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

2009-11-18T23:34:58Z

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

2009-11-18T23:30:36Z

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

2009-11-17T22:36:01Z

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

2009-11-17T22:29:57Z

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

2009-11-16T22:20:34Z

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

2009-11-12T23:52:59Z

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

2009-11-12T23:45:58Z

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

2009-11-12T23:40:24Z

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