U.S. Sixth Circuit: February 2010 Archives
U.S. Sixth Circuit - The FindLaw 6th Circuit Court of Appeals Opinion Summaries Blog

February 2010 Archives

Ruling in Admiralty Case

In Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., No. 08-4676, the Sixth Circuit decided the issue of liability and damages in an admiralty case.

As stated in the decision: "While it may be the case that a moving vessel must rebut the presumption to absolve itself of all liability, we know of no case law to the effect that the vessel must rebut the presumption to relieve itself of some liability - that is, to raise a comparative fault defense against the stationary object."

Thus, in reversing the judgment of the district court's grant of summary judgment as to liability, the court concluded that a genuine dispute of fact over plaintiff's comparative negligence existed.  Also, district court's rejection of plaintiff's claim for lost-profits claim is affirmed as plaintiff did not adequately disclose the basis of the claim.

Related Resource:

In Miles Farm Supply, LLC v. Helena Chem. Co., No. 08-6093, the Sixth Circuit dealt with the issue of whether defendant aided and abetted plaintiff's employees to breach their fiduciary duties, and was thus liable for tortious interference with plaintiff's prospective contractual relations.

Unlike the reasoning the district court used in reaching its decision to grant summary judgment in favor of the defendants, the court clarified that the more appropriate ground was whether defendant knew about the employees' alleged breach, not whether the employees breached a fiduciary duty.

Thus, based on the evidence, the court held that plaintiff failed as a matter of law to show that defendant had actual knowledge that the three employees were breaching a fiduciary duty.

Related Resource:

In V&M Star, LP. v. Centimark Corp., No. 09-3249, the Sixth Circuit dealt with the issue of whether diversity jurisdiction existed between a defendant corporation who is a citizen of Pennsylvania and plaintiff, a limited partnership that includes two limited liability companies and one French S.A.R.L.

After plaintiff's second amended complaint, in response to defendant's motion to dismiss as insufficient to establish diveristy jurisdiction, the district court denied defendant's motion to dismiss as moot because defendant no longer contested diversity jurisdiction.

Concluding that, despite defendant having waived the issue, district court had an obligation to go further, the case is remanded to resolve the jurisdictional issue by determining plaintiff's due to: 1) the complexity of the jurisdictional facts because of the members and submembers that comprise plaintiff-company; and 2) the fact that there are no controlling precedent regarding how to determine citizenship of a French S.A.R.L. for diversity jurisdiction purposes.

Related Resource:

Social Security Benefits Decision

In Wright-Hines v. Comm'r of Soc. Sec., No. 08-5830, the Sixth Circuit faced a challenge to the ALJ's denial of claimant's supplemental security income and disability benefits.

The ALJ used the five-step disability analysis provided by the social security regulations to determine that: 1) claimant had not engaged in substantial gainful activity since December 31, 2002; 2) claimant suffered from several severe impairments; 3) claimant did not have an impairment or combination of impairments that met listed regulatory criteria; and 4) claimant's residual functional capacity allowed her to perform past relevant work as a cashier.  In concluding that claimant was capable of working as a cashier, the ALJ did not conduct step five of the analysis.

In upholding the ALJ's decision, the court found that the ALJ did not utilize an incorrect legal standard and that substantial evidence supported the conclusions.

Related Resource:

Ruling Against a State Telephone-Utility Commission

In Michigan Bell Tel. Co. v. Covad Communications Co., No. 07-2469, the Sixth Circuit was asked to overturn district court's decision vacating the commission's order requiring that incumbent local exchange carrier provide certain entrance facilities at wholesale prices.

In its fourth order, the Triennial Review Remand Order, the FCC stated that unbundled access was not necessary because the competitors were not impaired by paying competitive rates for the use of entrance facilities.

In upholding the district court's decision to vacate the commission's order, the court held that the incumbent carrier offers its competitors an interconnection facility at TELRIC rates and entrance facilities at competitive rates which are in accordance with the plain language of the order issued by the FCC.

Related Resource:

Rulings in Two Criminal Cases

In Gagne v. Booker, No. 07-1970, the Sixth Circuit addressed a criminal defendant's challenge to the trial court's exclusion of certain evidence in violation of his due process rights.

In affirming district court's grant of habeas relief, the court held that a state appellate court's affirmance of the trial court's exclusion of evidence was an unreasonable application of clearly established federal law that deprived the defendant of a constitutional right to a meaningful opportunity to present a complete defense.

In US v. Thornton, No. 08-3349, the court faced a challenge to the conviction for drug related offenses.

In affirming district court's conviction and sentence, the court rejected defendant's various claims, including a claim that the district court erred by excluding him from the jury instruction conference, that the court erred in allowing co-defendant's testimony about the plea agreement, and a challenge to the constitutionality of defendant's sentence.

Related Resources:

In Tolliver v. Sheets, No. 08-3177, the Sixth Circuit faced a criminal defendant's challenge to his conviction for murder claiming that his statements to the police were unconstitutionally obtained and thus improperly admitted at trial, and that his ineffective assistance claim was not procedurally defaulted.

In rejecting the defendant's claims the court stated: "if all of the statements the prosecution used at trial to argue that defendant had lied when speaking to the police had been improperly admitted, this would be a closer case.  In fact, however, many of the statements were properly admitted.  The prosecution's infrequent references to defendant's improperly-admitted statements thus 'were, in effect, cumulative.'"

Thus, the court found that, given the weighty evidence pointing to defendant's guilt, the trial court's error in admitting his unconstitutionally-obtained statements was harmless.  Furthermore, the court rejected defendant's ineffective assistance claim as he did not demonstrate good cause for procedural default of the claim.

Related Resources:

Defendant's Drug and Firearm Conviction and Sentence Upheld

In US v. Russell, No. 07-2354, the Sixth Circuit addressed defendant's contention that district court committed several errors in his conviction and sentence for drug and firearm related offenses.

Ultimately, the court rejected all of defendant's claims as meritless.  In particular, the court rejected defendant's claim of implied juror bias as he failed to demonstrate the bias under any standard of review.  Moreover, although one of the jurors was a paralegal at a tribal prosecutor's office, there are no facts in the record to suggest that the juror's positions created the sort of exceptional circumstance which would raise concerns. 

In affirming the conviction, the court further held that district court properly conveyed a reasonable interpretation of section 856 and included a definition of "purpose" that has been adopted by a majority of circuits to have reached the issue of maintaining a premise for a drug-related purpose.

Defendant's challenges to his 684-month sentence also fell short as there was no clear error with regard to the district court's determination of the amount of crack cocaine for which defendant was responsible.

Related Resource:

Grant of Habeas Relief from Second-Degree Murder Conviction Overturned

In Stewart v. Wolfenbarger, No. 08-2154, the court was faced with a habeas petition challenging a conviction for second-degree murder under the aiding and abetting theory.

The court "...acknowledge[d] that Stewart's is an unusual case in two respects. First, Stewart was convicted of second-degree murder for aiding and abetting the murder by providing one of the weapons the principals used to carry out the crime. There was no evidence that Stewart was present when the principals robbed and murdered Robert Pippins. Indeed there was no evidence that Stewart knew that the principals intended to rob Pippins specifically or that a murder would be committed with Stewart's weapon. Additionally, we note the fact that the jury actually acquitted Stewart of first-degree felony murder and convicted him of second-degree murder. However, under Michigan law, both crimes required proof of largely the same elements including the same mens rea, malice, the difference being that the prosecution had to prove an underlying felony in order to convict of felony murder. It would appear then that the jury found the elements of second-degree murder as well as an underlying felony and still acquitted Stewart of first-degree felony murder."

Court Rejects Inmates' Ex Post Facto Claim Regarding New Parole Laws

In Foster v. Booker No. 08-1371, the US Court of Appeals for the Sixth Circuit faced a challenge to the Michigan Parole Board's application of post-1992 changes to the state's parole laws to plaintiffs' parole review as being in violation of the Ex Post Facto and Due Process Clauses.

However, as stated in the decision: "To the extent that plaintiffs face a risk of increased punishment under the post-1992 parole laws as compared to the laws in effect when they committed their offenses, we cannot conclude that changes to the parole laws caused such an increase."

Thus, in reversing grant of summary judgment in favor of the plaintiffs and vacating the permanent injunction, the court held that plaintiffs have not shown that they face a risk of increased punishment as a result of the challenged statutory changes to the state's parole process, rather than as a result of the new Board's legitimate exercise of discretion in a way that results in fewer paroles.  Furthermore, plaintiff's due process claim was properly dismissed as prisoners have no constitutionally protected liberty interest in parole.

Related Resource:

In Krantz v. Lindamood, the Sixth Circuit rejected defendant's argument that his conviction was not supported by sufficient evidence because the state did not prove that he had the intent to kill any specific person.

As stated in the decision: "The evidence produced at trial revealed that Krantz, after threatening to get a gun and return to kill either Williams, Speakman, or everyone, went to his house, retrieved his shotgun, and upon returning to the tavern, fired the shotgun into the tavern."

Thus, the court held in affirming the denial of defendant's request for habeas relief, that the state needed to prove only that defendant intentionally attempted to kill someone, and not necessarily anyone specifically. 

Related Resources:

Knowledge-of-the-Transaction Test Applies to Erroneous-Deductions Cases

In Greer v. Comm'r of Internal Revenue, No. 09-1420, the U.S. Court of Appeals for the Sixth Circuit rejected petitioner's challenge to the district court's denial of her request for relief under the innocent-spouse and equitable-relief provisions of the tax code. 

The Court took the opportunity to decide that the appropriate test to be used in determining whether a taxpayer had a reason to know of an understatement, or to suspect a possible understatement resulting from disallowed deductions or credits is the "knowledge-of-the-transaction" test, as derived from Price v. Commissioner. 

On review of the record, the Court held that it cannot be said that the Tax Court clearly erred in finding that petitioner should have inquired into the favorable tax benefits thrown off by the couple's investment in denying innocent-spouse relief, nor did the court abuse its discretion in denying equitable relief.

Related Resources:

Property Interest in Plaintiff's $10 City Pool Token?

In Kennedy v. City of Cincinnati, No. 09-3089, the U.S. Court of Appeals for the Sixth Circuit faced a challenge to plaintiff's contention that his rights were violated under the Due Process Clause when he was denied access to a public pool and other public recreational areas within the city.

As the Court stated: "Any competent government official, particularly a police officer, should have realized that he cannot deprive a person, who has not committed a crime or violated some regulation, nor was likely to do so, of access to public grounds without due process of law."

Although, the Court held that plaintiff did not have a protectable property interest in his $10 city pool token, the judgment of the district court is reversed as, he clearly established constitutionally-protected liberty interest not to be banned from all city recreational property without procedural due process. 

Related Resources:

Ruling Against Government in Forfeiture Action

In US v. $22,050.00 US Currency, No. 08-6335, the U.S. Court of Appeals for the Sixth Circuit dealt with a challenge to a judgment against a claimant regarding $22,050, which was seized at claimant's office during a criminal investigation. 

As the court stated: "In civil forfeiture cases such as this one, where the question is whether to excuse a known claimant's failure to file a verified claim and answer in the allotted time, district courts should analyze the case using the generally applicable Federal Rules rather than under the requirement of 'strict compliance' with the forfeiture rules."

The court reversed the judgment in finding that the district court incorrectly focused on case law discussing compliance with the Supplemental Rules, instead of the Rule 55(c) test for setting aside default in general. 

Related Resources:

US v. Morrison, No. 08-6203

Conviction of defendant for being a felon in possession of a firearm is affirmed where: 1) the evidence was sufficient to support defendant's conviction; and 2) taken as a whole, the instructions sufficiently conveyed the elements of the charge.  

Read   US v. Morrison, No. 08-6203

Appellate Information

Argued: January 21, 2010

Decided and Filed: February 12, 2010

Judges

Opinion by Circuit Judge Kethledge

Counsel

For Appellant:   Karimbumkara Jayaraman

For Appellee:   G. Kirby May, Assistant US Attorney

Conley v. Nat'l Mines Corp., No. 09-3039

Order of the Benefits Review Board reversing an Administrative Law Judge's award of black lung benefits on a widow's claim filed by petitioner under the Black Lung Benefits Act after her husband died of metastatic lung cancer is affirmed as the Board did not err in concluding that the decedent's treating physician's opinion was insufficient to carry the widow's burden of proof, based on the standard previously articulated in Eastover Mining Co. v. Williams, 338 F.3d 501 (6th Cir. 2003). 

Read   Conley v. Nat'l Mines Corp., No. 09-3039

Appellate Information

Argued: January 12, 2010

Decided and Filed: February 12, 2010

Judges

Opinion by District Judge  Wiseman

Counsel

For Appellant:  James D. Holliday

For Appellee:   Laura Metcoff Klaus, Greenberg Taurig

US v. Frazier, No. 08-5211

In a prosecution of defendant for conducting an illegal gambling business and sponsoring and exhibiting animals in cockfights, district court's denial of his motion for acquittal is affirmed as there was significant evidence in the record that defendant derived economic benefits from the fact that he knowingly allowed and encouraged gambling to take place at his establishment. 

Read  US v. Frazier, No. 08-5211

Appellate Information

Argued: January 20, 2010

Decided and Filed: February 12, 2010

Judges

Opinion by Circuit Judge  Clay

Counsel

For Appellant:  Jonathan M. Holcomb, Holcomb Law Office

For Appellee:    M. Neil Smith Jr., Assistant US Attorney

Fortney & Weygandt, Inc. v. Am. Mfrs. Mut. Ins. Co., No. 05-4031

In a general contractor's suit against its insurers claiming that they had a duty to defend it in third-party litigation arising out of a construction dispute, judgment in favor of defendants is reversed as the exclusion provision at issue applies only to the cost of repairing or replacing distinct component parts on which the insured performed defective work.   

Read  Fortney & Weygandt, Inc. v. Am. Mfrs. Mut. Ins. Co., No. 05-4031

Appellate Information

Argued: January 22, 2010

Decided and Filed: February 12, 2010

Judges

Opinion by Circuit Judge  Kethledge

Counsel

For Appellant:   Michael L. Fortney, Fortney & Klingshirn

For Appellee:    Kathleen A. Sweitzer, Tressler Soderstrom Maloney & Priess, LLP

Devlin v. Kalm, No. 09-1376

In plaintiff's 42 U.S.C. section 1983 suit against various state officials claiming that his termination from the Michigan Gaming Control Board (MGCB) was the result of a newspaper article quoting the plaintiff about his two citizen state court suits seeking to compel enforcement of the state's liquor licensing laws and the MGCB's employee qualification rules, dismissal of the suit under Younger v. Harris is vacated and remanded as Younger does not apply when the federal plaintiff is also the plaintiff in the state court action, and the plaintiff is not attempting to use the federal courts to shield him from state court enforcement efforts. 

Read  Devlin v. Kalm, No. 09-1376

Appellate Information

Argued: December 1, 2009

Decided and Filed: February 12, 2010

Judges

Opinion by Circuit Judge  Rogers

Counsel

For Appellant:  Patrick J. Devlin, Patrick J. Devlin, PC

For Appellee:    Ann M. Sherman, Jason D. Hawkins, Office of the Michigan Attorney General

McElrath v. Simpson, No. 07-5505

In habeas proceedings claiming ineffective assistance of counsel, district court's denial is reversed and remanded with instructions to conditionally grant the writ where counsel's joint or dual representation of defendant and co-defendant resulted in an actual conflict that affected defendant's representation in violation of his Sixth Amendment rights.  

Read  McElrath v. Simpson, No. 07-5505

Appellate Information

Argued: January 21, 2010

Decided and Filed: February 12, 2010

Judges

Opinion by Circuit Judge  Guy

Counsel

For Appellant:  Christopher Nelson Lasch, Suffolk University Law School

For Appellee:    Matthew Robert Krygiel, Office of the Kentucky Attorney General

Havensure, LLC v. Prudential Ins. Co. of Am., No 09-3367

In an action for tortious interference by an insurance broker against an insurer (Prudential), district court's grant of summary judgment in favor of Prudential is affirmed as Prudential's interference was privileged as a matter of Ohio law.     

Read Havensure, LLC v. Prudential Ins. Co. of Am., No 09-3367

Appellate Information

Argued: January 12, 2010

Decided and Filed: February 12, 2010

Judges

Opinion by Circuit Judge  Boggs

Counsel

For Appellant:  Robert R. Sparks, Parry Deering Futscher & Sparks, PSC.

For Appellee:    Michael Nathan Ungar, Ulmer & Berne, LLP

US v. Johnston, No. 06-6397

District court's resentencing of a defendant to 51 months' imprisonment and an order to pay restitution for the full amount of loss in excess of $6,600,000 for failing to pay $1 million in restitution by the deadline provided in a plea agreement for committing mail fraud is affirmed as the district court's willfulness finding was not clearly erroneous based on its findings evidencing defendant's deception and manipulation regarding his finances. 

Read US v. Johnston, No. 06-6397

Appellate Information

Argued: January 13, 2010

Decided and Filed: February 11, 2010

Judges

Opinion by Circuit Judge  Gilman

Counsel

For Appellant:  Gerald L. Gulley, Jr., Gulley Oldham PLLC

For Appellee:  Charles P. Wisdom, Jr., Kenneth R. Taylor, Assistant US Attorney

Haider v. Holder, No. 08-4010

Algerian national's petition for review of a decision by the BIA denying his application for withholding of removal under the Immigration and Nationality Act (INA) and the Convention Against Torture (CAT) is granted in part and denied in part where: 1) the petition as to withholding of removal under the INA is granted and remanded as, assuming petitioner's testimony to be credible, the evidence compels a finding that police abused him based on an imputed political opinion; and 2) the petition with respect to withholding of removal under the CAT is denied as neither the actions of the Algerian police nor those of the GIA (Armed Islamic Group) amounted to torture.     

Read Haider v. Holder, No. 08-4010

Appellate Information

Argued: October 15, 2009

Decided and Filed: February 10, 2010

Judges

Opinion by Circuit Judge  Moore

Counsel

For Appellant:  Scott Bratton, Margaret Wong & Associates Co., LPA

For Appellee:  Nehal H. Kamani, US Department of Justice

US v. Smith, No. 08-4378

In a prosecution of defendant for being a felon in possession of a firearm, denial of defendant's motion to suppress evidence of the firearm is affirmed as officers' actions did not violate the Fourth Amendment where: 1) officers' initial contact with defendant, as they entered the building in an attempt to respond to an emergency 911 call, did not result in a seizure in violation of the Fourth Amendment; and 2) when an officer told defendant to stop, there was a proper basis for an investigatory Terry stop and the degree of intrusion at issue was reasonably related in scope to the situation at hand.  

Read US v. Smith, No. 08-4378

Appellate Information

Argued: January 21, 2010

Decided and Filed: February 10, 2010

Judges

Opinion by Circuit Judge  McKeague

Counsel

For Appellant:  Bryan Robert Faller, Porter Wright Morris & Arthur LLP

For Appellee:  Karl P. Kadon, III, Assistant US Attorney

US v. Jenkins, No. 08-5203

Convictions of defendant for drug and gun related crimes are vacated and remanded where the evidence of his prior conviction for an unrelated drug offense eight years earlier was substantially more prejudicial than probative. 

Read US v. Jenkins, No. 08-5203

Appellate Information

Argued: December 4, 2009

Decided and Filed: February 9, 2010

Judges

Opinion by Circuit Judge  Kethledge

Counsel

For Appellant:  Kevin Michael Schad, Federal Public Defender's Office

For Appellee:  Kevin G. Ritz, Assistant US Attorney

US v. Rogers, No. 08-6181

District court's imposition of a sentence of 86 months' imprisonment on a defendant convicted of being a felon in possession of a firearm is affirmed where: 1) although defendant's reckless-endangerment conviction was not a crime of violence, defendant's evading-arrest offense was a crime of violence; and 2) the district court did not err in applying a four-level enhancement under the Guidelines in finding that, by preponderance of the evidence, the defendant used or possessed a firearm in connection with a felony chop-shop offense.     

Read US v. Rogers, No. 08-6181

Appellate Information

Argued: December 3, 2009

Decided and Filed: February 8, 2010

Judges

Opinion by Circuit Judge  Kethledge

Counsel

For Appellant:  Mary Catherine Jermann-Robinson, Office of the Federal Public Defender

For Appellee:  G. Kirby May, Assistant US Attorney

Hall v. Liberty Life Ins. Co. of Boston, No. 08-4738

In plaintiff's suit seeking reinstatement of her long-term disability benefits, judgment of the district court is affirmed in part, vacated in part and remanded where: 1) district court's judgment with respect to benefit plan's termination of plaintiff's benefits and its claim for partial reimbursement is affirmed; and 2) district court's imposition of an equitable lien on plaintiff's Social Security benefits and its denial of attorney fees to the benefits plan are vacated and remanded. 

Read Hall v. Liberty Life Ins. Co. of Boston, No. 08-4738

Appellate Information

Argued: December 4, 2009

Decided and Filed: February 8, 2010

Judges

Opinion by Circuit Judge Gilman

Counsel

For Appellant:  Robert Armand Perez, Sr., The Perez Law Firm Co., LPA

For Appellee:   Michael E. Smith, Frantz Ward LLP

US v. Bowers, No. 08-2412

Conviction of defendant for sexual exploitation of a child in the manufacture of child pornography and possession of child pornography is affirmed where: 1) district court properly denied defendant's motion to suppress as the private-citizen search that uncovered incriminating evidence did not violate the Fourth Amendment; 2) defendant's as-applied challenge under the Commerce Clause is meritless; and 3) after the Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1 (2005), U.S. v. Corp, 236 F.3d 325 (6th Cir. 2001) is no longer the law of the Circuit.     

Read US v. Bowers, No. 08-2412

Appellate Information

Argued: January 21, 2010

Decided and Filed: February 8, 2010

Judges

Opinion by Circuit Judge Moore

Counsel

For Appellant:  Matthew C. Brown, Law Office

For Appellee:   Leonid Feller, Assistant US Attorney

Balmert v. Reliance Standard Life Ins., Co., No. 08-4433

In plaintiff's ERISA action, a decision upholding the benefits determination of defendant-insurance company denying plaintiff's claim for long-term disability benefits is affirmed as plaintiff received a full and fair review of her claim and defendant's benefits determination was not arbitrary and capricious as it was supported by substantial evidence. 

Read Balmert v. Reliance Standard Life Ins., Co., No. 08-4433

Appellate Information

Argued: December 1, 2009

Decided and Filed: February 5, 2010

Judges

Opinion by Circuit Judge Siler

Counsel

For Appellant:  Stanley L. Myers

For Appellee:  Joshua Bachrach, Wilson Elser Moskowitz Edelman & Dicker LLP

US v. Brooks, No. 08-4280

In a prosecution for a drug-related offense, grant of defendant's motion to suppress evidence is reversed and remanded where, although the district court was correct in finding that much of the information set forth in the affidavit was stale, the non-stale information was, on its own, sufficient to give rise to probable cause to believe that contraband or evidence of a crime would be present in defendant's residence.     

Read US v. Brooks, No. 08-4280

Appellate Information

Argued: January 12, 2010

Decided and Filed: February 5, 2010

Judges

Opinion by Circuit Judge Martin

Counsel

For Appellant: Daniel Steven Goodman, US Department of Justice

For Appellee:  Edward G. Bryan, Federal Public Defender's Office

Harris v. Metro. Gov't of Nashville & Davidson County, No. 08-6329

In plaintiff's action under the Family and Medical Leave Act (FMLA) claiming that the reduction to his coaching supplement as head boys' varsity basketball coach upon his return from leave violated the Act, judgment in the amount of $9,258.82 in favor of the plaintiff is reversed where: 1)the district court erred in failing to consider a proffered defense; 2) plaintiff was not prejudiced by the adjustment to the basketball coaching supplement; and 3) grant of summary judgment in favor of the Metropolitan government and four individual defendants with respect to plaintiff's claims of age discrimination and retaliation are affirmed as no reasonable juror could conclude that defendants' proffered reasons were pretext either for age discrimination or for retaliation.  

Read Harris v. Metro. Gov't of Nashville & Davidson County, No. 08-6329

Appellate Information

Argued: December 1, 2009

Decided and Filed: February 5, 2010

Judges

Opinion by Circuit Judge Guy

Counsel

For Appellant:  Allison L. Bussell, Metropolitan Department of Law

For Appellee:  Douglas B. Janney, III, Law Office

Ealy v. Comm'r of Soc. Sec., No. 09-5451

District court's decision upholding a denial of petitioner's claim for disability insurance benefits under 42 U.S.C. sections 416(i) and 423(d) is reversed and remanded as the ALJ's determination that petitioner was able to perform a substantial number of other jobs was not supported by substantial evidence.  

Read Ealy v. Comm'r of Soc. Sec., No. 09-5451

Appellate Information

Argued: January 12, 2010

Decided and Filed: February 5, 2010

Judges

Opinion by Circuit Judge White

Counsel

For Appellant:  Julie Atkins, Atkins Law Office

For Appellee:  Robert E. Hodum, Jr., Holly A. Grimes, Brian C. Huberty, Mary Ann Sloan, Dennis R. Williams, Social Security Administration; John S. Osborn III, Assistant US Attorney

Elam v. Menzies, No. 09-5360

In plaintiff's suit claiming negligence in a heart operation that defendant-doctor performed, summary judgment for doctor on the ground that Kentucky's one year statute of limitations for medical malpractice suits had run is reversed and remanded as there is a factual dispute as to whether plaintiff knew or should have known he had a claim after the conversation with a second doctor, and thus, this issue should be referred to the jury.   

Read Elam v. Menzies, No. 09-5360

Appellate Information

Argued: November 18, 2009

Decided and Filed: February 4, 2010

Judges

Opinion by Circuit Judge  Merritt

Counsel

For Appellant: Sara B. Gregory, Carroll & Turner PSC

For Appellee:   Bradley A. Case, Dinsmore & Shohl LLP

Jefferson v. Lewis, No. 08-2116

In plaintiff's action against a police officer under 42 U.S.C. section 1983 and state tort law for being shot by the officer on New Year's Eve while responding to reports of gunfire shots in the area, denial of defendant's motion for summary judgment on the basis of qualified immunity is affirmed where: 1) because plaintiff has produced adequate evidentiary support for her version of events and because plaintiff's version of events must be accepted as true for purposes of interlocutory appeal, the jury must decide whether plaintiff's Fourth Amendment rights were violated; and 2) in light of the competing inferences one might draw from the facts and their effect on the question of whether the officer's actions were objectively reasonable, a jury should find the facts that determine whether the officer is entitled to qualified immunity.  

Read Jefferson v. Lewis, No. 08-2116

Appellate Information

Argued: October 9, 2009

Decided and Filed: February 4, 2010

Judges

Opinion by Circuit Judge  Martin

Counsel

For Appellant:  Michael S. Bogren, Plunkett Cooney

For Appellee:   Wolfgang Mueller, Olsman Mueller PC

Cincinnati Ins. Co. v. Beazer Homes Inv., LLC, No. 08-5967

In plaintiff-insurance company's declaratory-judgment action to establish that it was not obligated to cover the costs that defendant incurred in repairing water damage to several houses that defendant had built as a general contractor, grant of 's judgment on the pleadings is affirmed where: 1) collateral estoppel is not applicable to the case and plaintiff is free to contest whether the policies cover the costs that defendant incurred; 2) a general contractor cannot claim CGL insurance coverage for the costs it incurs in repairing houses that are subsequently damaged due to the faulty workmanship of its own subcontractors; and 3) the district court's consideration of an alleged fungus exclusion was harmless.     

Read Cincinnati Ins. Co. v. Beazer Homes Inv., LLC, No. 08-5967

Appellate Information

Argued: November 30, 2009

Decided and Filed: February 4, 2010

Judges

Opinion by Circuit Judge  Gilman

Counsel

For Appellant:  Martin M. McNerney, King & Spalding LLP

For Appellee:  Kimberly A. Kyle, Kohnen & Patton LLP

Dowling v. Cleveland Clinic Found., No. 09-3159

In plaintiffs' action against defendants for injuries sustained when she slipped and fell in a puddle of water while walking down a hallway adjacent to the cafeteria at a clinic, summary judgment in favor the defendants is affirmed where: 1) plaintiffs did not proffer any evidence of how long the water hazard had existed before the fall such that an employee would have constructive notice, as required by Ohio slip-and-fall law; 2) the district court did not abuse its discretion in denying plaintiffs' motion for additional discovery because plaintiffs made no discovery requests until after the defendant had completed its discovery and filed its motion for summary judgment, fifteen months after plaintiffs filed their suit in federal court, and also did not complete their discovery during the sixty days offered by the court.     

Read Dowling v. Cleveland Clinic Found., No. 09-3159

Appellate Information

Argued: November 20, 2010

Decided and Filed: February 3, 2010

Judges

Opinion by Circuit Judge  Martin

Counsel

For Appellant:  Harry D. Rankin, Sutton Rankin Law, PLC

For Appellee:  Keith Hansbrough, Bonezzi Switzer Murphy Polito & Hupp Co., LPA

Koubriti v. Convertino, No. 09-1016

In plaintiff's civil action against defendant, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, for constitutional violations that defendant allegedly committed while serving as the Assistant United States Attorney who prosecuted plaintiff for conspiracy to provide material support or resources to terrorists and conspiracy to engage in fraud or misuse of visas, permits or other immigration documents, partial denial of defendant's motion to dismiss is reversed where: 1) plaintiff has pointed to no harm to himself from the investigation defendant conducted except the non-disclosure of certain exculpatory evidence at trial; and 2) defendant is shielded by prosecutorial immunity for such non-disclosures of exculpatory evidence.     

Read Koubriti v. Convertino, No. 09-1016

Appellate Information

Argued: October 14, 2010

Decided and Filed: February 3, 2010

Judges

Opinion by Circuit Judge Kennedy

Counsel

For Appellant:  Robert S. Mullen, Robert S. Mullen & Associates, PLLC

For Appellee:  Ben M. Gonek, Law Office

Schoonmaker v. Spartan Graphics Leasing, LLC, No. 09-1732

District court's grant of summary judgment in favor of the defendant in plaintiff's action under the Age Discrimination Employment Act is affirmed where: 1) district court did not err in holding that plaintiff failed to establish her prima facie case; and 2) plaintiff has not created a triable issue as to pretext since none of plaintiff's evidence gives rise to an inference that defendant's decision to terminate plaintiff was so unreasonable as to create an inference of pretext. 

Read Schoonmaker v. Spartan Graphics Leasing, LLC, No. 09-1732

Appellate Information

Argued: January 11, 2010

Decided and Filed: February 3, 2010

Judges

Opinion by Circuit Judge Suhrheinrich

Counsel

For Appellant:  H. Rhett Pinsky, Smith Fayette & Kennedy, LLP.

For Appellee:  Thomas R. Wurst, Miller Johnson

Demings v. Nationwide Life Ins. Co., No. 08-4476

In plaintiff's class-action lawsuit, individually and in his official capacity as a sheriff, on behalf of all public employers who sponsor deferred compensation plans, claiming breach of fiduciary duty and unjust enrichment by defendant-insurance company, district court's dismissal of the action is affirmed as the proposed class action does not fit within the narrow state-actions exception to the Securities Litigation Uniform Standards Act of 1998 because it is not brought on behalf of named plaintiffs who have authorized participation in the action. 

Read Demings v. Nationwide Life Ins. Co., No. 08-4476

Appellate Information

Argued: October 13, 2009

Decided and Filed: February 3, 2010

Judges

Opinion by Associate Judge (Retired), O'Connor

Counsel

For Appellant:  Roger L. Mandel, Beckham & Mandel

For Appellee:   Charles C. Platt, Wilmer Hale