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

Hamblen v. US, No. 09-5025

District court's denial of a 28 U.S.C. section 2255 motion to vacate a sentence for possession of machine guns and unregistered firearms by defendant, a volunteer with the Tennessee State Guard who had built nine machine guns in response to the events of September 11, is affirmed as the Second Amendment does not confer an unrestricted individual right to keep and bear machine guns.     

Read Hamblen v. US, No. 09-5025

Appellate Information

Argued: December 4, 2009

Decided and Filed: December 30, 2009

Judges

Opinion by Circuit Judge  Siler

Counsel

For Appellant:  Jeffrey S. Frensley, Ray & Frensley

For Appellee:   Blanche Bong Cook, Assistant US Attorney

Davis v. US, No. 09-5187

In an Army veteran's claim that he was eligible for early retirement and extra pay in accordance with the Temporary Early Retirement Authority, district court's dismissal of the claim is affirmed as the claimant failed to bring suit within the six-year statute of limitations required by 28 U.S.C. section 2401(a) because: 1) a late-filed request for reconsideration does not toll the accrual date for the statute of limitations; 2) the claimant did not raise his petition for rehearing to the Board until after the time allotted by the regulations; and 3) thus, claimant was not legitimately still pursuing military administrative remedies.     

Read Davis v. US, No. 09-5187

Appellate Information

Argued: November 17, 2009

Decided and Filed: December 29, 2009

Judges

Opinion by Circuit Judge  Merritt

Counsel

For Appellant:  Phillip Leon Davidson

For Appellee:   Monica M. Graffenreaid, Assistant US Attorney

US v. Aaron, No. 08-2185

Defendant's conviction for making and subscribing a false document when he provided a false Social Security number on at least 965 W-2Gs that were provided to him each time he won at least $1,200 at various Detroit-area casinos is affirmed where: 1) because defendant never claimed a good-faith belief that his true Social Security number was not legally required of him, Cheek v. US did not require that the district court give an instruction on good-faith belief; 2) defendant's contention that district court erred by not instructing the jury on the definition of willfulness is without merit; and 3) the record is not sufficiently developed to warrant resolution of defendant's ineffective-assistance claim on direct appeal.     

Read US v. Aaron, No. 08-2185

Appellate Information

Argued: October 13, 2009

Decided and Filed: December 28, 2009

Judges

Opinion by Circuit Judge Gibbons

Counsel

For Appellant:  Richard M. Lustig, Richard M. Lustig Law Office

For Appellee:   Jeffrey Bryan Wall, US Department of Justice

Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, No. 08-4383

In an action brought by a class member who had participated in tobacco litigation in Florida as part of nationwide tobacco litigation in the late 1990s brought by several states against several tobacco companies, district court's decision to enjoin the parties to the state-court litigation from proceeding with an action in Florida state court raising matters relating to the Settlement Agreement is affirmed where: 1) the claims in the state court litigation fall squarely within the subject matter of the Settlement Agreement and the terms of the district court's permanent injunction; 2) given the broad grant of power by Congress under the interpleader statute, there can be no doubt that the district court was acting within its authority when it enjoined the state court litigation; and 3) the district court did not err in enjoining the litigation of the state action as necessary in aid of its jurisdiction as the state court complaint does not set forth claims in a manner sufficiently detached from the district court's administration of the settlement fund to avoid the permanent injunction in the federal interpleader action's final judgment.     

Read Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, No. 08-4383

Appellate Information

Argued: December 1, 2009

Decided and Filed: December 23, 2009

Judges

Opinion by Circuit Judge Gilman

Counsel

For Appellant:  John A. DeVault, III, Bedell Dittmar DeVault Pillans & Coxe, PA

For Appellee:    Thomas W. Hill, Kegler Brown Hill & Ritter

In a labor labor dispute involving reduction of healthcare benefits to union members, decision of the district is reversed as a defendant who successfully obtains dissolution of a temporary restraining order or preliminary injunction in a labor dispute case may recover its damages, fees and costs under section seven of the Norris-LaGuardia Act, 29 U.S.C. section 107, even if no bond was ordered prior to dissolution of the injunction.     

Read Michigan American Fed'n of State County & Mun. Employees v. Matrix Human Serv., No. 09-1032

Appellate Information

Argued: November 17, 2009

Decided and Filed: December 23, 2009

Judges

Opinion by Circuit Judge  Martin

Counsel

For Appellant:  Michael R. Blum, Foster Swift Collins & Smith PC

For Appellee:    Robert D. Fetter, Miller Cohen PLC

Konkol v. Diebold, Inc. , No. 08-4572

In a class action securities-fraud lawsuit against Diebold, Inc., brought by investors alleging that between 2003 and 2005 Diebold engaged in a series of schemes to prematurely recognize revenue in order to inflate the price of its stock, dismissal of the lawsuit for failure to state a claim is affirmed where: 1) plaintiffs' request for remand is unnecessary as the record reflects that the district court ultimately applied the correct pleading standard; 2) neither the complaint nor the proposed second amended complaint states with particularity facts giving rise to a strong inference that the defendants acted with the required state of mind; and 3) any inference of scienter is not cogent as required by Tellabs, but speculative and supported only by general and conclusory allegations that fail to connect the defendants to the alleged scheme.     

Read Konkol v. Diebold, Inc. , No. 08-4572

Appellate Information

Argued: October 14, 2009

Decided and Filed: December 22, 2009

Judges

Opinion by Circuit Judge Gilman

Counsel

For Appellant:  Geoffrey M. Johnson, Scott & Scott LLP

For Appellee:    John M. Newman, Jr., Jones Day

Louisville/Jefferson County Metro Gov't v. Hotels.com, LP, No. 08-6302

In an action against Hotels.com and various other online travel companies claiming that they are violating local tax ordinances by failing to pay a transient room tax, grant of defendants' motion to dismiss is affirmed where: 1) the district court properly applied the principle of ejusdem generis to the ordinances in question in determining that the online travel companies were not "like or similar accommodations businesses" as those listed in the ordinance as they have neither ownership, nor physical control, of the rooms they offer for rent; 2) district court properly concluded that it had committed a clear error of law when it failed to exempt the online travel companies from the transient room tax the first time around; and 3) plaintiffs' argument that the district court erred by making a factual finding that the online travel companies do not exercise physical control over the rooms they rent is rejected as there is no factual dispute to be resolved in the counties' favor.     

Read Louisville/Jefferson County Metro Gov't v. Hotels.com, LP, No. 08-6302

Appellate Information

Argued: October 14, 2009

Decided and Filed: December 22, 2009

Judges

Opinion by Circuit Judge Gilman

Counsel

For Appellant:  Anthony G. Raluy, Foley Bryant Holloway & Raluy

For Appellee:    Darrel J. Hieber, Skadden Arps Slate Meagher & Flom LLP

White v. Steele, No. 08-5498

District court's grant of defendant's writ of habeas corpus from her conviction of first degree murder is reversed as, in its sufficiency-of-the-evidence review, the district court failed to accord the deference due to the judgment of the Tennessee Court of Criminal Appeals.     

Read White v. Steele, No. 08-5498

Appellate Information

Argued: October 16, 2009

Decided and Filed: December 21, 2009

Judges

Opinion by Circuit Judge Cook

Counsel

For Appellant:  Francis R. Borger-Gilligan, Office of the Attorney General

For Appellee:    Sunter L. Camp, Federal Public Defender's Office

Wong v. PartyGaming Ltd., No. 08-4295

In plaintiffs' suit against a Gibraltar-based company which hosts online poker games alleging breach of contract, misrepresentations, and violation of Ohio consumer protection laws, sua sponte dismissal of the suit on forum non conveniens grounds is affirmed where: 1) in this diversity suit, the enforceability of the forum selection clause is governed by federal law; 2) plaintiffs have not met the burden of showing that the clause is unenforceable; 3) the district court did not abuse its discretion by sua sponte raising the forum non conveniens issue as it could not have enforced the forum selection clause through defendant's motion to dismiss under FRCP 12(b)(3); and 4) the district court did not abuse its discretion in determining that Gibraltar was an appropriate alternative forum, in finding that public and private factors weigh in favor of a Gibraltar forum, and by not giving deference to plaintiffs' choice of home forum.     

Read Wong v. PartyGaming Ltd., No. 08-4295

Appellate Information

Argued: November 17, 2009

Decided and Filed: December 21, 2009

Judges

Opinion by Circuit Judge McKeague

Counsel

For Appellant:   Aparesh Paul, Levin & Associates Co., LPA

For Appellee:    Behnam Dayanim, Paul Hastings Janofsky & Walker LLP

Earhart v. Konteh, No. 07-4127

Denial of defendant's petition for habeas relief from a conviction of rape of a child under thirteen years of age and related crimes is reversed and a conditional writ as to the indictment charging defendant with gross sexual imposition against a minor victim is granted as the admission of a videotape deposition without a proper finding that the witness was constitutionally unavailable violated defendant's clearly established right to confrontation under the Sixth Amendment. However, district court's judgment as to the remainder of the petition is affirmed as defendant is not entitled to relief on the remainder of his claims.   

Read Earhart v. Konteh, No. 07-4127

Appellate Information

Argued: June 16, 2009

Decided and Filed: December 18, 2009

Judges

Opinion by Circuit Judge Gibbons

Counsel

For Appellant:   Molly S. Crabtree, Porter Wright Morris & Arthur LLP

For Appellee:    Gene D. Park, Office of the Ohio Attorney General

Acquaah v. Holder, No. 08-3836

Petition for review of the BIA's denial of two separate motions to reopen removal proceedings by a petitioner, a native and citizen of Ghana, is denied as, even if petitioner's motions were found to be timely, he would still not be entitled to relief because he has not shown that he missed his hearing due to exceptional circumstances.   

Read Acquaah v. Holder, No. 08-3836

Appellate Information

Argued: December 3, 2009

Decided and Filed: December 18, 2009

Judges

Opinion by Circuit Judge Gilman

Counsel

For Appellant:   Kwasi Acquaah, pro se

For Appellee:    Ilissa M. Gould, U.S. Department of Justice

Gooch v. Life Investors Ins. Co. of Am., No. 09-5598

In an appeal arising from an action brought by an insured alleging breach of the insurance contract involving how defendant-insurer administers supplemental "cancer only" insurance policies that it has sold to individuals, insurer's petition for various forms of mandamus relief from district court's orders is denied and the decision of the district court is affirmed in part, reversed in part and vacated where: 1) the first three mandamus factors all cut strongly against issuing mandamus relief on the issue of policy interpretation; 2) the district court did nothing improper with respect to deferring ruling on defendant's motion to dissolve the preliminary injunction requiring defendant to continue reimbursing plaintiff under its old method; 3) generalized mandamus orders directing district courts to go forth and manage discovery correctly will not be issued; and 4) district court's decision to issue plaintiff's motion for injunction enjoining defendant from proceeding with final settlement in a class action case in Arkansas is reversed and vacated as the district court has not certified a class, and it necessarily follows that the court has no cause to take extraordinary injunctive measures to protect the interests of a class. 

Gooch v. Life Investors Ins. Co. of Am., No. 09-5598

Appellate Information

Argued: November 19, 2009

Decided and Filed: December 17, 2009

Judges

Opinion by Circuit Judge Martin

Counsel

For Appellant:   Markham R. Leventhal, Jordan Burt LLP

For Appellee:    Thomas O. Sinclair, Leitman Siegal Payne & Campbell PC

US v. Novales, No. 07-3663

District court's imposition of 100 months' imprisonment on a defendant convicted, after a guilty plea, of conspiracy to possess with intent to distribute cocaine is reversed and remanded as the district court committed a clear procedural error in failing to calculate defendant's appropriate Guidelines range, and as such the sentencing hearing was procedurally unreasonable under Gall.   

Read US v. Novales, No. 07-3663

Appellate Information

Argued: December 3, 2009

Decided and Filed: December 16, 2009

Judges

Opinion by Circuit Judge Gilman

Counsel

For Appellant:   Erik Jameson Clark, Douglas R. Cole, Allison E. Haedt, Jones Day

For Appellee:    Lawrence J. Whitney, Burdon & Merlitti

Arias v. Hudson, No. 08-4513

An order conditionally granting habeas relief to a defendant convicted of rape and related crimes and sentenced to an indeterminate sentence with a minimum term of thirty years and a maximum term of life is reversed as the sentence does not violate Blakely because the judicial fact-finding at issue merely increased his minimum sentence without affecting his maximum term of imprisonment, and thus, defendant's sentence does not violate the Sixth Amendment.   

Read Arias v. Hudson, No. 08-4513

Appellate Information

Argued: October 6, 2009

Decided and Filed: December 16, 2009

Judges

Opinion by Circuit Judge Sutton

Counsel

For Appellant:   Thelma T. Price, Office of the Ohio Attorney General

For Appellee:    Kristopher A. Haines, Ohio's Public Defender's Office

US v. Archibald, No. 08-5703

District court's order denying defendant's motion to suppress the firearm evidence obtained during a search of his residence conducted pursuant to a state search warrant for probation violations is reversed and remanded where: 1) the district court erred in holding that the protective sweep of defendant's apartment comported with the Fourth Amendment; 2) the government failed to present its protective sweep argument under the first and less stringent Buie test; and 3) even had it been preserved, a theory that the protective sweep occurred incident to an in-house arrest and involved an area immediately adjoining the place of defendant's arrest fails on its merits. 

Read US v. Archibald, No. 08-5703

Appellate Information

Argued: October 14, 2009

Decided and Filed: December 15, 2009

Judges

Opinion by Circuit Judge Griffin

Counsel

For Appellant:   Anne-Marie Moyes, Federal Public Defender's Office

For Appellee:    Heather G. Childs, Assistant U.S. Attorney

Davis v. Booker, No. 09-1140

District court's issuance of the writ of habeas corpus for a defendant claiming that the key witness in his murder trial was the shooter who killed the victim is reversed where: 1) the only significant evidence in the record showing what an uncalled witness would have testified, if produced, is a letter that actually implicates defendant for the shooting, not the key witness who testified against him; 2) it is clear from the record that defendant was not prejudiced by his lawyer's failure to locate and call the uncalled witness; and 3) the prosecutor's statements did not constitute improper vouching because the key witness's charge was in the record and his personal interest in the case was obvious to the jury. 

Read Davis v. Booker, No. 09-1140

Appellate Information

Argued: November 19, 2009

Decided and Filed: December 15, 2009

Judges

Opinion by Circuit Judge Merritt

Counsel

For Appellant:   Brian O'Neill, Office of the Michigan Attorney General

For Appellee:    Joan Ellerbusch Morgan

Monroe Retail, Inc. v. RBS Citizens, N.A., No. 07-4263

In plaintiff-garnishors' suit against defendant-banks for conversion, alleging that the defendants unlawfully used garnished funds to satisfy service fees to the banks, district court's dismissal of the plaintiffs' claims is affirmed where: 1) the National Bank Act (NBA) does not preempt general state debt collection laws, including those regulating both banks' and others' rights to collect debts; 2) the plaintiffs' have failed to state a claim upon which relief can be granted as any interpretation is preempted by the NBA's grant of authority to the banks to collect fees without interference; and 3) although the issue of setoffs is not necessary to the holding, the district court's invocation of the doctrine of setoff is vacated because the doctrine is applicable only to debts.   

Read Monroe Retail, Inc. v. RBS Citizens, N.A., No. 07-4263

Appellate Information

Argued: September 19, 2008

Decided and Filed: December 14, 2009

Judges

Opinion by Circuit Judge Gibbons

Counsel

For Appellant:   William H. Bode, Bode & Grenier, LLP

For Appellee:    Kerin Lyn Kaminski, Giffen & Kaminski

In an action against NASCAR and an affiliated company that owns multiple racetracks, alleging violation of federal antitrust laws by not sanctioning a Sprint Cup race at plaintiff's racetrack and preventing them from purchasing other racetracks that already host such a race, summary judgment in favor of defendants is affirmed where: 1) the district court did not abuse its discretion in excluding two experts' reports and deposition testimonies as being unreliable under Daubert; 2) without expert testimony, plaintiff lacks the ability to define the relevant markets necessary to succeed on its claims; and 3) plaintiff cannot demonstrate that NASCAR and the affiliate are legally capable of conspiring with each other or that its failure to obtain a Sprint Cup race constitutes an antitrust injury.     

Read Kentucky Speedway, LLC v. Nat'l Ass'n of Stock Car Auto Racing, Inc., No. 08-5041

Appellate Information

Argued: July 30, 2009

Decided and Filed: December 11, 2009

Judges

Opinion by Circuit Judge Gilman

Counsel

For Appellant:   Charles Frederick Rule, Cadwalader Wickersham & Taft LLP

For Appellee:    David Boies, Boies Schiller & Flexner LLP

Nolan v. Memphis City Sch., No. 07-6037

In a high school student's civil rights action against his school, high school basketball coaches, and others alleging that defendants violated his substantive due process rights and Tennessee state law by using excessive corporal punishment against him while he played for the High School basketball team, denial of plaintiffs' motion for a new trial after a jury verdict in favor of defendants is affirmed where: 1) reasonable juror could conclude that the paddlings administered by the coaches were for disciplinary purposes, and were not excessive in severity, frequency, motivation, or means; 2) district court properly denied motion for a new trial based on section 1983 claims against the coaches as a reasonable juror could have concluded that the paddlings that plaintiff endured by the coaches did not result in a severe injury and did not amount to a brutal and inhumane abuse of official power that shocks the conscience; 3) district court properly denied motion for a new trial based on the outrageous conduct and negligence claims as supported by sufficient evidence; 4) jury was properly instructed on the substantive due process claim; 5) district court acted within its discretion by excluding testimony of the superintendent under F.R.C.P. 403 as more prejudicial than probative; and 6) district court did not err in excluding testimony regarding the reasons that the principal and a coach were no longer assigned to teach at the high school as evidence of subsequent remedial measures under F.R.C.P. 407.     

Read Nolan v. Memphis City Sch., No. 07-6037

Appellate Information

Argued: June 18, 2009

Decided and Filed: December 11, 2009

Judges

Opinion by District Judge Marbley

Counsel

For Appellant:  Michael R. Marshall, Evans & Petree, PC

For Appellee:   Cheryl Rumage Estes, Thomason Hendrix Harvey Johnson & Mitchell, PLLC

Spears v. Ruth, No. 09-5408

In a suit brought by the family of an individual who died eleven months after being in police custody for public intoxication, denial of a summary judgment motion by an officer and the City of Cleveland is reversed and remanded where: 1) plaintiffs have not established the obvious existence of a sufficiently serious medical need; 2) there is no evidence that the officer was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and that he drew that inference and chose to disregard the risk; 3) as such, because no constitutional violation occurred, the officer is entitled to qualified immunity; and 4) the city is entitled to summary judgment because the record as a whole does not support an inference that a reasonable trier of fact could find a causal connection between either officer's actions or the police chief's no-transport policy and the decedent's injuries.     

Read Spears v. Ruth, No. 09-5408

Appellate Information

Argued: November 18, 2009

Decided and Filed: December 10, 2009

Judges

Opinion by Circuit Judge Martin

Counsel

For Appellant:  Reid A. Spaulding, Watson Roach Batson Rowell & Lauderback, PLC

For Appellee:  Zachary H. Greene, Miller & Martin PLLC

CMACO Auto. Sys., Inc. v. Wanxiang America Corp., No. 08-1435

In a California corporation's diversity contract and tort suit against a Kentucky corporation with its principal place of business in Illinois for breaching an exclusive partnership agreement to manufacture automotive parts for plaintiff, dismissal of the complaint is affirmed as, because the economic injury suffered by plaintiff as a result of defendant's alleged direct dealings with third parties was clearly felt at its corporate headquarters, the district court did not err in holding that plaintiff's contract claim accrued "without the state" (in California) thereby triggering Michigan's borrowing statute and requiring application of California's four-year statute of limitations for written contract cases. 

Read CMACO Auto. Sys., Inc. v. Wanxiang America Corp., No. 08-1435

Appellate Information

Argued: June 10, 2009

Decided and Filed: December 10, 2009

Judges

Opinion by Circuit Judge Griffin

Counsel

For Appellant:  Timothy D. Wittlinger, Clark Hill PLC.

For Appellee:  Philip J. Kessler, Butzel Long

Jensen v. Romanowski, No. 08-1758

Grant of habeas relief from a conviction for criminal sexual conduct with an 11 year old girl is affirmed as: 1) there was no serious dispute that a violation of the Confrontation Clause occurred via an officer's testimony regarding a prior complainant; and 2) the officer's testimony had a substantial and injurious effect or influence on the jury's verdict under the Brecht v. Abrahamson test for harmless error.     

Read Jensen v. Romanowski, No. 08-1758

Appellate Information

Argued: October 7, 2009

Decided and Filed: December 9, 2009

Judges

Opinion by Circuit Judge Martin

Counsel

For Appellant:  Janet A. Van Cleve, Office of the Michigan Attorney General

For Appellee:  Todd Shanker, Federal Defender Office

Holder v. Palmer, No. 07-1440

District court's denial of defendant's petition for a writ of habeas corpus following his conviction for sexual penetration with an uninformed partner by a person infected with AIDS is affirmed as defendant failed to demonstrate either that his trial counsel's failure to challenge five jurors permeated the entire trial with obvious unfairness, or that the trial court committed plain error by allowing the five jurors to serve on the jury. 

Read Holder v. Palmer, No. 07-1440

Appellate Information

Argued: June 17, 2009

Decided and Filed: December 9, 2009

Judges

Opinion by District Judge Phillips

Counsel

For Appellant:  Ariel B. Waldman, Wilmer Cutler Pickering Hale and Dorr LLP

For Appellee:   Mark G. Sands, Office of the Michigan Attorney General

Cooey v. Strickland, No. 09-4474

District court's denial of defendant's request for a stay of execution by lethal injection challenging Ohio's new protocol where the state eliminated the use of a three-drug protocol and implemented a one-drug protocol is affirmed as the defendant is unable to demonstrate a likelihood of success on the merits on his Eighth Amendment claim by demonstrating that, facially or as applied to him, Ohio's new protocol demonstrates risk of severe pain that is substantial when compared to the known and available alternatives. 

Read Cooey v. Strickland, No. 09-4474

Appellate Information

Argued: December 7, 2009

Decided and Filed: December 7, 2009

Judges

Opinion by Circuit Judge  Gibbons

Counsel

For Appellant:  N/A

For Appellee: N/A

US v. Martinez, No. 06-3882

Conviction and sentence of an anesthesiologist, who had operated a pain-management clinic, for health care fraud and related crimes is affirmed where: 1) any error in admitting a video of a doctor performing certain medical procedures was harmless given the overwhelming evidence that defendant was not performing medically necessary procedures and that the procedures were not those for which he was billing, and also considering the weak evidence to the contrary; 2) defendant's claim that admission of the video violated the Confrontation Clause is rejected; 3) there is sufficient evidence to support defendant's conviction for health care fraud under 18 U.S.C. section 1347; 4) there was sufficient evidence for a jury to conclude that defendant committed mail and wire fraud; 5) there is sufficient evidence to to conclude that defendant proximately caused the deaths of two patients; 6) any error in admitting testimony of an addiction specialist was harmless; and 7) defendant's sentence is procedurally and substantively reasonable.     

Read US v. Martinez, No. 06-3882

Appellate Information

Argued: June 16, 2009

Decided and Filed: December 1, 2009

Judges

Opinion by Circuit Judge  Cole

Counsel

For Appellant:  Jonathan P. Witmer-Rich, Federal Public Defender's Office

For Appellee: Nina Goodman, US Department of Justice

Cohen v. Corr. Corp. of America, No. 06-3168

Appellate court's opinion affirming the district court's dismissal of plaintiff's 42 U.S.C. sections 1983, 2000bb, and 2000cc-1 complaint on the ground that plaintiff failed to allege exhaustion of his available administrative remedies prior to filing his complaint is reversed in light of the United States Supreme Court holding in Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910 (2007), that under the Prison Litigation Reform Act, a prisoner is not required to specifically plead or demonstrate exhaustion in his complaint and that exhaustion is not per se inadequate simply because an individual later sued was not named in the grievance. 

Read Cohen v. Corr. Corp. of America, No. 06-3168

Appellate Information

Filed: October 6, 2008

Judges

Opinion by Circuit Judge:  N/A

Counsel

For Appellant:  N/A

For Appellee:  N/A