In plaintiff's suit against the defendant for violations of the National Environmental Policy Act of 1969 (NEPA) in land development near a reservoir and the environmental impact of increased boating on, and community use of, reservoir water, dismissal of the case without prejudice is affirmed as plaintiff failed to demonstrate standing to bring its claim alleging ongoing harm to its members' aesthetic and recreational enjoyment of the reservoir. 

Read Friends of Tims Ford v. Tennessee Valley Auth., No. 08-5706

Appellate Information

Argued: June 17, 2009

Decided and Filed: November 6, 2009

Judges

Opinion by Circuit Judge Keith

Counsel

For Appellant:  Gregory D, Buppert, Dodson Parker Behem & Capparella, PC., Nashville, Tennessee.

For Appellee:  Elizabeth P. McCarter, Office of the Tennessee Attorney General, Nashville, Tennessee. 

In plaintiff's suit against defendant for breach of its duty to defend and indemnify arising from antitrust lawsuits brought against plaintiff, summary judgment for defendants and dismissal of all of plaintiff's claims is affirmed as there are no allegations made against plaintiff in the antitrust complaints or amended complaints based on principles of successor liability, and the antitrust cases do not state claims that potentially or arguably fall within the purview of the asset purchase agreement duty to defend.      

Read Ferro Corp. v. Cookson Group, PLC, No. 08-3624

Appellate Information

Argued: June 19, 2009

Decided and Filed: November 6, 2009

Judges

Opinion by Circuit Judge Marbley

Counsel

For Appellant:  James B. Niehaus, Frantz Ward, LLP., Cleveland, Ohio

For Appellee:  Roxann E. Henry, Howrey LLP., Washington, DC

In a capital habeas case involving a petitioner convicted of aggravated murder of his son and sentenced to death, denial of the petition is affirmed where: 1) defendant's Brady claim is rejected as there is no reasonable probability that, had a certain police report been disclosed, the outcome would have been different; 2) defendant's ex post facto and due process violation claims are rejected; 3) defendant's ineffective assistance of counsel during the penalty phase claim is rejected; 4) defendant's Fifth Amendment violation claim based on prosecution's comment on his failure to testify is rejected; and 5) district court did not err in concluding that defendant procedurally defaulted two of his ineffective assistance of counsel claims. 

Read Webb v. Mitchell, No. 06-4606

Appellate Information

Argued: June 10, 2009

Decided and Filed: November 5, 2009

Judges

Opinion by Circuit Judge Sutton

Counsel

For Appellant:  Keith A. Yeazel, Law Office, Columbus, Ohio

For Appellee:  Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio

In plaintiff's case against the defendants for repudiating an agreement whereby defendant was to deliver diesel fuel and soybean oil to plaintiff's refinery facility, dismissal of the suit for lack of subject matter jurisdiction is affirmed as the defendant, a federally chartered tribal corporation, enjoys tribal-sovereign immunity.   

Read Memphis Biofuels, LLC. v. Chicksaw Nation Indus., Inc., No. 08-6145

Appellate Information

Argued: October 6, 2009

Decided and Filed: November 4, 2009

Judges

Opinion by Circuit Judge Cole

Counsel

For Appellant:  John R. Branson, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC., Memphis, Tennessee.

For Appellee:  Donna Brown Jacobs, Butler, Snow, O'Mara, Stevens & Cannada, PLLC., Jackson, Mississippi.

In plaintiff-administratrix's case against the officers for the deadly shooting of a fifteen year-old in his bedroom while executing a search warrant of his home, district court's denial of officers' motion for summary judgment based on qualified immunity is reversed and remanded as the record supports the conclusion that the material facts are not genuinely disputed and, as a matter of law, officers' split-second decision to use deadly force in self-defense was not shown to have been objectively unreasonable. 

Read Chappell v. City of Cleveland, No. 08-4456

Appellate Information

Argued: October 6, 2009

Decided and Filed: November 4, 2009

Judges

Opinion by Circuit Judge McKeague

Counsel

For Appellant:  Stephen W. Funk, Roetzel & Andress, Akron, Ohio

For Appellee:  Terry H. Gilbert, Friedman & Gilbert, Cleveland, Ohio

In plaintiff's copyright-infringement case against defendant for infringement of its copyright on George Clinton's song, based on the use of the phrase "Bow wow wow, yippie yo, yippie yea", district court's finding that defendant willfully infringed plaintiff's rights in the song and an award of statutory damages of $88,980 are affirmed where: 1) the jury instructions were not erroneous as a matter of law; and 2) the district court did not abuse its discretion in declining to give the instructions requested by the defendant.   

Read Bridgeport Music, Inc. v. UMG Recordings, Inc., No. 07-5596

Appellate Information

Argued: April 23, 2009

Decided and Filed: November 4, 2009

Judges

Opinion by Circuit Judge Daughtrey

Counsel

For Appellant:  Jeffrey D. Goldman, Mitchell, Silberberg & Knupp, LLP, Los Angeles, California.

For Appellee:  Richard S. Busch, King & Ballow, Nashville, Tennessee.

District court's conviction of defendant for aggravated robbery and aggravated murder and sentence of death is affirmed in part as to the conviction, but reversed in part as to the sentence where petitioner's trial attorney did not provide his client with effective assistance of counsel during the penalty phase of a second trial, specifically, by failing to meaningfully investigate and to present any mitigation evidence. 

Read Johnson v. Mitchell, No. 00-3350

Appellate Information

Argued: December 6, 2007

Decided and Filed: November 4, 2009

Judges

Opinion by Circuit Judge Daughtrey

Counsel

For Appellant:  Timothy F. Sweeney, Law Office of Timothy Farrell Sweeney, Cleveland, Ohio

For Appellee:  Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio

District court's imposition of a statutory maximum of 120 months' imprisonment on a defendant convicted of conspiracy to defraud the U.S. and to harbor illegal aliens, and of harboring more than one hundred illegal aliens, is affirmed where: 1) there was no error in district court's denial of government's 5K1.1 motion to reduce defendant's sentence, as the court found it significant that defendant had not begun cooperating until after one of his co-defendants had agreed to cooperate and found that bulk of his cooperation to be incomplete at the time of sentencing; and 2) defendant's sentence is presumed reasonable as it was within the advisory Guidelines range. 

Read US v. Rosenbaum, No. 08-1339

Appellate Information

Argued: October 8, 2009

Decided and Filed: November 3, 2009

Judges

Opinion by Circuit Judge Martin

Counsel

For Appellant:  Kenneth P. Tableman, Kenneth P. Tableman, PC., Grand Rapids, Michigan

For Appellee:  Hagen W. Frank, Assistant U.S. Attorney, Grand Rapids, Michigan

In United States Air Force's (USAF) suit against Commemorative Air Force (CAF) for breach of contract, replevin, and a declaratory judgment that it violated the terms of a 1996 donation certificate concerning an F-82 aircraft, district court's order granting summary judgment in favor of plaintiff and denying CAF's motion for summary judgment is affirmed, as there is no genuine issue of material fact that CAF's attempt to trade the F-82 violated the terms of the 1996 donation certificate, which called for title to revest in the USAF if CAF no longer desired to return the aircraft. 

Read Sec'y of U.S. Air Force v. Commemorative Air Force, No. 08-4084

Appellate Information

Argued: October 14, 2009

Decided and Filed: November 2, 2009

Judges

Opinion by Circuit Judge Rogers

Counsel

For Appellant:  Garry L. Montanari, Michealis, Montanari & Johnson, PC., Westlake Village, California.

For Appellee:  Patrick D. Quinn, Assistant United States Attorney, Dayton, Ohio.

District court's order denying death-row inmate's claim for relief under Federal Rule of Civil Procedure 60(b)(6) is affirmed as a movant that seeks relief under Rule 60(b) must show extraordinary circumstances justifying the reopening of a final judgment and, in this case, the motion fails because the defendant cannot prove by clear and convincing evidence that the warden committed fraud on the court.  

Read Carter v. Anderson, No. 08-3372

Appellate Information

Argued: August 5, 2009

Decided and Filed: October 30, 2009

Judges

Opinion by Circuit Judge Suhrheinrich

Counsel

For Appellant:  Joseph E. Wilhelm, Federal Public Defender's Office, Cleveland, Ohio

For Appellee:  Thomas E. Madden, Office of the Ohio Attorney General, Columbus, Ohio