U.S. Sixth Circuit: August 2009 Archives
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August 2009 Archives

Pedreira v. Ky. Baptist Homes for Children, No. 08-5538

In an action under the First Amendment and various employment statutes challenging defendant-Baptist Homes for Children's policy of firing and not hiring gay and lesbian employees, dismissal of the complaint is affirmed in part where the termination of plaintiff based on her sexual orientation did not constitute discrimination on account of religion. However, the ruling is reversed in part where plaintiffs sufficiently demonstrated standing as state taxpayers for their Establishment Clause challenge.

Read Pedreira v. Ky. Baptist Homes for Children, No. 08-5538

Appellate Information

Argued: March 11, 2009

Decided and Filed: August 31, 2009

Judges

Opinion by Judge Gibbons

Counsel

For Appellants:

Alexander Joseph Luchenitser, Americans United for Separation of Church and State, Washington, DC

For Appellees:

Jonathan David Goldberg, Goldberg Simpson, LLC, Louisville, KY

John O. Sheller, Stoll Keenon Ogden PLLC, Louisville, KY

Beaudry v. TeleCheck Servs., Inc., No. 08-6428

In a Fair Credit Reporting Act (FCRA) action claiming that Defendant credit agency wrongly classified Plaintiff as a first-time check writer, the dismissal of the action is reversed where FCRA's private right of action does not require proof of actual damages, as a prerequisite to the recovery of statutory damages for a willful violation of the FCRA.

Read Beaudry v. TeleCheck Servs., Inc., No. 08-6428

Appellate Information

Argued: August 6, 2009

Decided and Filed: August 28, 2009

Judges

Opinion by Judge Sutton

Counsel

For Appellant:

Martin D. Holmes, Dickinson Wright PLLC, Nashville, TN

For Appellee:

David R. Esquivel, Bass Berry & Sims, PLC, Nashville, TN

Montgomery v. Wyeth, No. 08-5701

In an action claiming that Plaintiff suffered injuries by using Defendant's weight loss drug, the dismissal of the action is affirmed where: 1) the claim was barred by Tennessee's statute of repose, which requires that an action be brought within one year after the expiration of the anticipated life of the product; and 2) a class-action settlement concerning the drug did not preclude her from bringing her claim.

Read Montgomery v. Wyeth, No. 08-5701

Appellate Information

Argued: January 14, 2009

Decided and Filed: August 28, 2009

Judges

Opinion by Judge Surhheinrich

Counsel

For Appellant:

Gregory J. Bubalo, Bubalo, Hiestand & Rotman, PLC, Louisville, KY

For Appellees:

Michael T. Scott, Reed Smith LLP, Philadephia, PA

Karimijanaki v. Holder, No. 08-4622

In a petition for review of the BIA's order removing Petitioner from the U.S., the petition is denied where sufficient evidence supported the BIA's rulings that: 1) Petitioner abandoned her lawful permanent resident status; 2) her seven-year absence from the U.S. was not a temporary visit abroad; 3) her conduct was imputable to her son (an unemancipated minor during the relevant period); and 4) the son did not automatically acquire citizenship based upon his father's naturalization prior to the removal proceedings.

Read Karimijanaki v. Holder, No. 08-4622

Appellate Information

Argued: August 5, 2009

Decided and Filed: August 28, 2009

Judges

Opinion by Judge Griffin

Counsel

For Petitioners:

Marshal E. Hyman, Marshal E. Hyman & Associates, P.C., Troy, MI

For Respondent:

M. Jocelyn Lopez Wright, U.S. Department of Justice, Washington, DC

US v. Acierno, No. 07-4473

Defendant's conviction for using a facility of interstate commerce with the intent that a murder be committed in consideration for payment of money under 18 U.S.C. section 1958(b)(1) is affirmed where the evidence was sufficient to support a finding that defendant agreed to pay an undercover agent, not just to cover expenses, but also as consideration for the murder of her estranged husband.

Read US v. Acierno, No. 07-4473

Appellate Information

Argued: April 24, 2008

Decided and Filed: August 27, 2009

Judges

Opinion by District Judge Cleland

Counsel

For Appellant:

Jonathan P. Witmer-Rich, Federal Public Defender's Office, Cleveland, OH

For Appellee:

Gary D. Arbeznik, Assistant United States Attorney, Cleveland, OH

Hunter v. Valley View Local Schools, No. 08-4109

In an action claiming that defendant-employer impermissibly considered plaintiff's use of Family and Medical Leave Act (FMLA) leave in deciding to place her on involuntary leave, summary judgment for defendant is reversed where there was an issue of material fact as to whether the FMLA leave was a motivating factor in defendant's decision.

Read Hunter v. Valley View Local Schs., No. 08-4109

Appellate Information

Argued: June 18, 2009

Decided and Filed: August 26, 2009

Judges

Opinion by Judge Gibbons

Counsel

For Appellant:

Karen T. Dunlevey, Bieser, Greer & Landis, Dayton, OH

For Appellee:

Lynnette Ballato Dinkler, Dinkler Pregon, Dayton, OH

US v. Brown, No. 07-4197

Defendant's child pornography sentence is affirmed where, applying a "limited context" test that permits consideration of the context in which the pornographic photographs were taken but limits the consideration of contextual evidence to the circumstances directly related to the taking of the images, the court determines that certain photos at issue were "lascivious" under the Sentencing Guidelines.

Read US v. Brown, No. 07-4197

Appellate Information

Submitted: April 22, 2009

Decided and Filed: August 26, 2009

Judges

Opinion by Judge Clay

Counsel

For Appellant:

Charles E. Fleming, Federal Public Defender's Office, Cleveland, OH

For Appellee:

Daniel R. Ranke, Assistant United States Attorney, Cleveland, OH

In re Professionals Direct Ins. Co., No. 08-4440

In a petition for a writ of mandamus seeking to vacate a discovery order issued by the district court on the ground that the order required the production of attorney work product documents, the petition is denied where the disputed documents were not prepared in anticipation of litigation.

Read In re Professionals Direct Ins. Co., No. 08-4440

Appellate Information

Argued: April 30, 2009

Decided and Filed: August 24, 2009

Judges

Opinion by Judge Martin

Counsel

For Petitioner:

Kevin Robert McDermott, Schottenstein, Zox & Dunn, Columbus, OH

For Respondent:

James E. Arnold, James E. Arnold & Associates, Columbus, OH

Bryant v. Comm'r. of Soc. Sec., No. 08-6375

In an appeal from a district court's order awarding attorney's fees directly to plaintiffs rather than to their attorneys under the Equal Access to Justice Act (EAJA), the order is affirmed where the prevailing party, and not her attorney, is the proper recipient of attorney's fees under the EAJA.

Read Bryant v. Comm'r. of Soc. Sec., No. 08-6375

Appellate Information

Argued: July 28, 2009

Decided and Filed: August 24, 2009

Judges

Opinion by Judge Cole

Counsel

For Appellants:

Wolodymyr Iwan Cybriwsky, Law Office, Prestonsburg, KY

For Appellee:

Jeffrica Jenkins Lee, United States Department of Justice, Washington, DC

Rice v. Jefferson Pilot Fin. Ins. Co., No. 08-4180

In an ERISA action challenging a denial of plaintiff's application for long-term disability benefits, dismissal of the complaint is affirmed where, because the parties did not provide any reason to ignore the plain language of the policy, the clear repudiation rule did not apply and the language of the policy governed.

Read Rice v. Jefferson Pilot Fin. Ins. Co., No. 08-4180

Appellate Information

Argued: August 4, 2009

Decided and Filed: August 24, 2009

Judges

Opinion by Judge Gibbons

Counsel

Tony C. Merry, Law Offices of Tony C. Merry, LLC, Columbus, OH

Adam Jay Hubble, Law Office, Dublin, OH

Parlak v. Holder, No. 05-4488

In a petition for review of the BIA's order removing petitioner from the U.S., the petition is denied where: 1) in determining that petitioner was removable pursuant to 8 U.S.C. section 1182(a)(6)(C)(i) for willfully misrepresenting a material fact, the BIA was not required to find that petitioner had an intent to deceive; and 2) the BIA's determination that petitioner assisted in the persecution of others was supported by substantial evidence.

Read Parlak v. Holder, No. 05-4488

Appellate Information

Argued: October 22, 2007

Decided and Filed: August 24, 2009

Judges

Opinion by Judge Gibbons

Dissent by Judge Martin

Counsel

For Petitioner:

David S. Foster, Latham & Watkins, Chicago, IL

For Respondent:

Christopher C. Fuller, United States Department of Justice, Washington, DC

US v. Studabaker, No. 08-1614

Defendant's conviction and sentence for causing the foreign travel of a minor with the intent to engage in criminal sexual activity are affirmed where: 1) his prosecution did not violate the Double Jeopardy Clause; 2) defendant did not reserve the right to appeal the sufficiency of the evidence, and thus waived his argument that the government did not provide a sufficient factual basis to support his plea; and 3) the district court did not abuse its discretion when it rejected defendant's argument that his sentence should be reduced to account for his prior incarceration.

Read US v. Studabaker, No. 08-1614

Appellate Information

Argued: August 5, 2009

Decided and Filed: August 24, 2009

Judges

Opinion by Judge Moore

Counsel

For Appellant:

Kerry M. Donahue, Bellinger & Donahue, Dublin, OH

For Appellee:

Daniel Y. Mekaru, Assistant United States Attorney, Grand Rapids, MI

Lindsay v. Yates, No. 08-3633

In an action alleging racial discrimination in the sale of real property, summary judgment for defendants is reversed where a prima facie case of housing discrimination is established whenever the actions taken by the property owner lead one to reasonably infer, if such actions remain unexplained, that it is more likely than not that such actions were based on discriminatory criterion such as race.

Read Lindsay v. Yates, No. 08-3633

Appellate Information

Argued: June 18, 2009

Decided and Filed: August 21, 2009

Judges

Opinion by Judge Keith

Counsel

For Appellants:

Edward L. Gilbert, Law Offices, Akron, OH

For Appellees:

Maura L. Hughes, Calfee, Halter & Griswold LLP, Cleveland, OH

US v. Elson, No. 07-3778

In an obstruction of justice prosecution, the restitution portion of Defendant's sentence is affirmed, where 1) the district court's application of the Mandatory Victims Restitution Act to determine defendant's restitution obligation did not violate the Ex Post Facto Clause; and 2) the plea colloquy indicated that the parties intended to include a broader range of acts in the offense of conviction than those related solely to the conspiracy to obstruct the grand jury investigation.

Read US v. Elson, No. 07-3778

Appellate Information

Argued: June 18, 2009

Decided and Filed: August 21, 2009

Judges

Opinion by Judge Clay

Counsel

For Appellant:

Roger L. Kleinman, McDonald Hopkins LLC, Cleveland, OH

For Appellee:

Brenda S. Shoemaker, Assistant United States Attorney, Columbus, OH

Brooks v. Rothe, No. 08-1099

In a 42 U.S.C. section 1983 action alleging a wrongful arrest, dismissal of plaintiff's claims on qualified immunity grounds is affirmed where the exigent circumstances exception to the warrant requirement applied because there was a danger that evidence would be imminently destroyed.

Read Brooks v. Rothe, No. 08-1099

Appellate Information

Argued: June 17, 2009

Decided and Filed: August 21, 2009

Judges

Opinion by Judge Gilman

Dissent by Judge Moore

Counsel

For Appellant:

Jason J. Liss, Fabian, Sklar & King, P.C., Farmington Hills, MI

For Appellees:

Megan K. Cavanagh, Garan Lucow Miller, P.C., Detroit, MI

US v. Davis, No. 08-1349

Defendant's firearm possession conviction is affirmed where: 1) a prosecution witness's allegedly hearsay statement was not offered for its truth; and 2) the government produced ample evidence for the jury to find that defendant knowingly possessed a firearm.

Read US v. Davis, No. 08-1349

Appellate Information

Argued: April 24, 2009

Decided and Filed: August 20, 2009

Judges

Opinion by Judge Cleland

Counsel

For Appellant:

Jeffrey J. O'Hara, Law Office, Grand Rapids, MI

For Appellee:

Phillip J. Green, Assistant United States Attorney, Grand Rapids, MI

US v. Deitz, No. 05-3410

Defendant's drug conviction and sentence are affirmed, where 1) there was sufficient evidence to support defendant's conviction for the narcotics conspiracy; 2) a confidential informant's statements were not hearsay because they were not offered to establish the truth of the matter asserted; and 3) defendant's sentence properly calculated his criminal history score.

Read US v. Deitz, No. 05-3410

Appellate Information

Argued: April 23, 2009

Decided and Filed: August 20, 2009

Judges

Opinion by Judge Cole

Counsel

For Appellant:

Dennis C. Belli, Columbus, OH

For Appellee:

Joseph R. Wilson, Assistant United States Attorney, Toledo, OH

Courie v. Alcoa Wheel & Forged Prods., No. 07-4440

In an action claiming that plaintiff's employer and a union discriminated against him by settling his union grievance via an agreement that branded him a racist, dismissal of the complaint is affirmed where there was nothing improper about the union negotiating an agreement whereby plaintiff admitted that he should not have used inappropriate language in exchange for a warning to be stricken from his record.

Read Courie v. Alcoa Wheel & Forged Prods., No. 07-4440

Appellate Information

Argued: April 28, 2009

Decided and Filed: August 18, 2009

Judges

Opinion by Judge Martin

Counsel

For Appellant:

Scot Allen Lewis Hinshaw, Hunton & Williams LLP, Washington, D.C.

For Appellee:

Joyce Goldstein, Goldstein Gragel LLC, Cleveland, OH

Ottawa Tribe of Okla. v. Logan, No. 08-3621

In an action by an Indian tribe seeking a declaration that the tribe retained the right to fish in a lake without government regulation, summary judgment for defendant is affirmed where any fishing rights the tribe may have reserved were abandoned when the tribe removed west of the Mississippi.

Read Ottawa Tribe of Okla. v. Logan, No. 08-3621

Appellate Information

Argued: March 5, 2009

Decided and Filed: August 18, 2009

Judges

Opinion by Judge Norris

Concurrence by Judge Cole

Counsel

For Appellant:

Matthew C. Blickensderfer, Frost Brown Todd LLC, Cincinnati, OH

For Appellee:

Sharon A. Jennings, Office of the Ohio Attorney General, Columbus, OH

US v. Warman, No. 05-4416

Defendant's drug conviction and sentence are affirmed where: 1) sufficient evidence independent of hearsay statements showed that defendant was a member of the drug conspiracy at issue; and 2) any potential error caused by trying multiple conspiracies under a single indictment did not influence the fairness of the trial.

Read US v. Warman, No. 05-4416

Appellate Information

Argued: April 23, 2009

Decided and Filed: August 18, 2009

Judges

Opinion by Judge Cole

Counsel

For Appellant:

Paul L. Nelson, Federal Public Defender's Office, Western District of Michigan, Grand Rapids, MI

For Appellee:

Ava M.R. Dustin, Assistant United States Attorney, Toledo, OH

Scott v. Ambani, No. 08-1671

In an action alleging medical negligence by physicians who treated a prisoner, the dismissal of the complaint is affirmed in part where plaintiff's claims against certain doctors were untimely; but reversed in part, where the complaint stated a claim that certain doctors exposed plaintiff to undue suffering or the threat of tangible residual injury.

Read Scott v. Ambani, No. 08-1671

Appellate Information

Submitted: March 5, 2009

Decided and Filed: August 18, 2009

Judges

Opinion by Judge Siler

Partial Concurrence and Partial Dissent by Judge McKeague

Counsel

For Appellant:

James Charles Scott, St. Louis, MI

For Appellees:

Loretta B. Subhi, Hackney Grover Hoover & Bean, PLC, East Lansing, MI

Ronald W. Chapman, Chapman & Associates, P.C., Bloomfield Hill, MI

Stolaj v. Holder, No. 08-3858

In a petition for review of the BIA's order removing petitioners from the U.S., the petition is denied where: 1) the five-year statute of limitations on rescission proceedings did not bar the government from initiating removal proceedings based on petitioners' fraud in their asylum applications; 2) the Immigration Judge did not err in allowing the government to initiate removal proceedings without first seeking to revoke petitioners' asylee status; and 3) the IJ properly denied their motion to subpoena material witnesses.

Read Stolaj v. Holder, No. 08-3858

Appellate Information

Argued: August 4, 2009

Decided and Filed: August 19, 2009

Judges

Opinion by Judge Rogers

Concurrence by Judge Moore

Counsel

For Petitioners:

Andrea J. Ferrara, Law Offices of Andrea J. Ferrara, Eastpointe, MI

For Respondent:

James E. Grimes, United States Department of Justice, Washington, DC

Saginaw Hous. Comm'n v. Bannum, Inc., No. 08-2068

In two actions by, respectively, a city housing commission and a school district seeking to enjoin plaintiff's construction of a halfway house, plaintiff's appeal with respect to the school district's action is dismissed where the district court's determination regarding its own jurisdiction was non-reviewable. Dismissal of the housing commission action on abstention grounds is reversed where a federal court need not abstain from deciding a case involving the interpretation of a local land use ordinance.

Read Saginaw Hous. Comm'n v. Bannum, Inc., No. 08-2068

Appellate Information

Argued: April 23, 2009

Decided and Filed: August 17, 2009

Judges

Opinion by Judge McKeague

Counsel

For Appellant:

Russell C. Babcock, The Mastromarco Firm, Saginaw, MI

For Appellees:

Robert A. Jarema, Smith Bovill, P.C., Saginaw, MI

R. Drummond Black, Currie Kendall, PLC, Midland, MI

Alexander v. CareSource, No. 08-3880

In an employment discrimination action, summary judgment for Defendant is affirmed, where Plaintiff failed to submit adequate evidence in the form required by Fed. R. Civ. P. 56(e), and the other evidence in the record did not rebut Defendant's contention that it was entitled to judgment.

Read Alexander v. CareSource, No. 08-3880

Appellate Information

Argued: June 16, 2009

Decided and Filed: August 14, 2009

Judges

Opinion by Judge Gilman

Counsel

For Appellants:

William H. Horton, Giarmarco, Mullins & Horton, P.C., Troy, MI

For Appellee:

Patrick J. Perotti, Dworken Bernstein Co., LPA, Painesville, OH

US v. Bogart, No. 07-3779

Defendant's wire fraud sentence is affirmed, where: 1) the District Court's failure to comply with 18 U.S.C. section 3664(d)(5) did not deprive it of jurisdiction to enter its restitution order; and 2) a District Court may rely on a defendant's education and future earning potential in setting a restitution payment schedule.

Read US v. Bogart, No. 07-3779

Appellate Information

Argued: June 18, 2009

Decided and Filed: August 14, 2009

Judges

Opinion by Judge Clay

Counsel

For Appellant:

Frederick D. Benton, Jr., Law Office, Columbus, OH

For Appellee:

Brenda S. Shoemaker, Assistant United States Attorney, Columbus, OH

Upshaw v. Ford Motor Co., No. 08-3246

In a Title VII action claiming that Defendant failed to promote Plaintiff on the basis of her race and sex, summary judgment for Defendant is affirmed in part, where Plaintiff failed to raise a genuine issue of material fact as to whether Defendant's claim of mistake was a pretext for race discrimination; but reversed in part, where the combination of close temporal proximity between an employer's heightened scrutiny and plaintiff's filing of an EEOC charge is sufficient to establish the causal nexus needed to establish a prima facie case of retaliation.

Read Upshaw v. Ford Motor Co., No. 08-3246

Appellate Information

Argued: April 22, 2009

Decided and Filed: August 14, 2009

Judges

Opinion by Judge Cole

Counsel

For Appellant:

Matthew Colangelo, NAACP Legal Defense & Educational Fund, Inc., New York, NY

For Appellee:

David A. Whitcomb, Baker & Hostetler, LLP, Columbus, OH

Pudelski v. Wilson, No. 07-3856

In a murder prosecution, the denial of Petitioner's habeas petition is affirmed, where: 1) even if an excluded photograph of the victim had been presented at trial, reasonable jurors could still have found Defendant guilty; and 2) an excluded police report would not have been exculpatory.

Read Pudelski v. Wilson, No. 07-3856

Appellate Information

Argued: April 22, 2009

Decided and Filed: August 14, 2009

Judges

Opinion by Judge Holschuh

Counsel

For Appellant:

Edwin J. Vargas, The Vargas Law Firm, Cleveland, OH

For Appellee:

Thelma Thomas Price, Office of the Ohio Attorney General, Columbus, OH

Alhaj v. Holder, No. 08-3322

In a petition for review of the BIA's order removing petitioner-Yemeni native from the U.S., the petition is denied where: 1) the Court of Appeals lacked jurisdiction to review the factual aspects of petitioner's challenge to the denial of his request for voluntary departure; and 2) petitioner was not entitled to relief under the Convention Against Torture, because the persecution he would allegedly suffer upon return to Yemen would not originate from pain or suffering either initiated by a public official or inflicted with the consent or acquiescence of such an official.

Read Alhaj v. Holder, No. 08-3322

Appellate Information

Submitted: March 9, 2009

Decided and Filed: July 10, 2009

Judges

Opinion by Judge Daughtrey

Counsel

For Petitioner:

David K. Wenger, Wenger & Associates, PC, Detroit, MI

For Respondent:

Nehal H. Kamani, United States Department of Justice, Washington, DC

Wilson v. Big Sandy Health Care, Inc., No. 08-5746

In a medical malpractice action against doctors at a federally funded health care center, dismissal of the complaint is affirmed where the Federal Tort Claims Act required plaintiffs to seek administrative relief as a prerequisite to federal court proceedings.

Read Wilson v. Big Sandy Health Care, Inc., No. 08-5746

Appellate Information

Argued: March 10, 2009

Decided and Filed: August 11, 2009

Judges

Opinion by Judge Daughtrey

Counsel

For Appellant:

H. Michael Lucas, Miller Kent Carter & Michael Lucas, PLLC, Pikeville, KY

For Appellee:

Jeffrey A. Clair, U.S. Department of Justice, Washington, DC

US v. Michael, No. 07-2187

Defendant's drug and firearm convictions and sentence are affirmed where: 1) a rational jury could have found beyond a reasonable doubt that defendant exercised dominion and control over the drugs and firearm found in his apartment; and 2) 18 U.S.C. section 994(h) does not require a district court to remain within the Guidelines range in crack cocaine matters.

Read US v. Michael, No. 07-2187

Appellate Information

Argued: March 9, 2009

Decided and Filed: August 11, 2009

Judges

Opinion by Judge Kethledge

Counsel

For Appellant:

Kevin M. Schad, Schad & Schad, Lebanon, OH

For Appellee:

Sean C. Maltbie, Assistant United States Attorney, Grand Rapids, MI

US v. Angel, No. 08-5158

Defendant's drug and firearm sentence is affirmed where the district court properly enhanced defendant's sentence pursuant to U.S.S.G. section 2K2.1(b)(6) because the presence of multiple loaded firearms and ammunition in defendant's bedroom, in close proximity to the processed marijuana and marijuana plants on the perimeters of his property, was not the result of accident or coincidence, but rather was conveniently made available to facilitate the manufacture of marijuana.

Read US v. Angel, No. 08-5158

Appellate Information

Submitted: August 3, 2009

Decided and Filed: August 11, 2009

Judges

Opinion by Judge Griffin

Counsel

For Appellant:

Martin L. Hatfield, Law Office of Martin L. Hatfield, PLLC, Somerset, KY

For Appellee:

Charles P. Wisdom, Jr., Assistant United States Attorney, Lexington, KY

US v. Penney, No. 05-6821

Defendant's drug and firearm convictions are affirmed, where: 1) proof of a defendant's prior felony convictions is admissible for purposes of proving an 18 U.S.C. section 922(g)(1) violation, even if the prior convictions are constitutionally deficient; and 2) defendant's state-law right to possess a firearm was never restored, and thus the Section 921(a)(20) exemption did not apply.

Read US v. Penney, No. 05-6821

Appellate Information

Argued: October 24, 2008

Decided and Filed: August 7, 2009

Judges

Opinion by Judge Boggs

Dissent by Judge Merritt

Counsel

For Appellant:

Bryan H. Hoss, Davis & Hoss, Chattanooga, TN

For Appellee:

Steven S. Neff, Assistant United States Attorney, Chattanooga, TN

US v. Quinn, No. 08-6217

Defendant's drug and firearm sentence is affirmed where Amendment 706 to the Sentencing Guidelines affected only U.S.S.G. section 2D1.1(c), the portion of the Guidelines that sets forth the base offense level for crack cocaine offenses, and all other Guidelines provisions that affect the final offense level remain unchanged.

Read US v. Quinn, No. 08-6217

Appellate Information

Submitted: July 29, 2009

Decided and Filed: August 6, 2009

Judges

Opinion by Judge Gilman

Counsel

For Appellant:

Frank W. Heft, Jr., Office of the Federal Defender, Louisville, KY

Patrick J. Bouldin, Office of the Federal Defender, Louisville, KY 

For Appellee:

Terry M. Cushing, Assistant United States Attorney, Louisville, KY

Monica Wheatley, Assistant United States Attorney, Louisville, KY

Bigelow v. Haviland, No. 07-3340

In a kidnapping and assault prosecution, grant of petitioner's habeas petition is affirmed where defense counsel did not reasonably investigate petitioner's alibi defense, and the evidence against petitioner was based solely on the testimony of two eyewitnesses with obscured views and was far from overwhelming.

Read Bigelow v. Haviland, No. 07-3340

Appellate Information

Submitted: February 4, 2008

Decided and Filed: August 6, 2009

Judges

Opinion by Judge Sutton

Counsel

For Appellant:

Diane Mallory, Office of the Ohio Attorney General, Columbus, OH

For Appellee:

Jill E. Stone, Blacklick, OH

O'Brien v. Ed Donnelly Enters., Inc., No. 07-4553

In an action seeking unpaid wages under the Fair Labor Standards Act, judgment pursuant to defendants' Fed. R. Civ. P. 68 offer of judgment is affirmed where an offer of judgment that satisfies a plaintiff's entire demand moots the case.  Moreover, an order decertifying the proposed plaintiff class is affirmed where the alleged unlawful practices -- making employees work off the clock and altering the time-sheets -- were not alleged by all of the plaintiffs.  However, the denial of plaintiffs' motion for sanctions based on spoliation of evidence is reversed where the district court needed to determine whether it was reasonably foreseeable that certain missing reports would be needed in future litigation.

Read O'Brien v. Ed Donnelly Enters., Inc., No. 07-4553

Appellate Information

Argued: December 2, 2008

Decided and Filed: August 5, 2009

Judges

Opinion by Judge Tarnow

Counsel

For Appellants:

Lisa A. Wafer, Ferron & Associates, Columbus, OH

John W. Ferron, Ferron & Associates, Columbus, OH

For Appellees:

Loriann E. Fuhrer, Kegler, Brown, Hill & Ritter, Columbus, OH

Evans v. Hudson, No. 08-3717

In a murder prosecution, grant of petitioner's habeas petition is reversed where petitioner could not argue that his counsel provided ineffective assistance because it would have been legally incorrect for counsel to argue that his sentence to consecutive terms based on judge-found facts was improper.

Read Evans v. Hudson, No. 08-3717

Appellate Information

Argued: April 23, 2009

Decided and Filed: August 3, 2009

Judges

Opinion by Judge Moore

Counsel

For Appellant:

Jerri L. Fosnaught, Office of the Ohio Attorney General, Columbus, OH

For Appellee:

Craig M. Jaquith, Ohio Public Defender's Office, Columbus, OH