In a 42 U.S.C. section 1983 action alleging that defendant-officers unlawfully detained plaintiffs and searched their home, summary judgment for defendants on qualified immunity grounds is affirmed where defendants' discovery of marijuana ultimately gave them reason to detain plaintiffs, to seize the marijuana, and to perform two more searches of plaintiffs' apartment.

Read Harman v. Pollock, No. 08-4068

Appellate Information

Filed November 18, 2009

Judges

Opinion by Judge Henry

Counsel

For Appellants:

Robert B. Sykes, Alyson E. Carter, Scott R. Edgar, Robert B. Sykes & Associates, P.C., Salt Lake City, UT

For Appellees:

J. Clifford Petersen and Mark L. Shurtleff, Utah Attorney General's Office, Salt Lake City, UT

Defendant's firearm possession conviction is affirmed where, according to the Sentencing Guidelines, if a defendant possesses a firearm in connection with the commission of another offense, the district court must apply the offense level for the other offense if the resulting offense level is higher than the offense level as calculated under the provision governing the unlawful possession of firearms.

Read US v. Varela, No. 08-2275

Appellate Information

Filed November 18, 2009

Judges

Opinion by Judge Briscoe

Counsel

For Appellant:

Leon Schydlower, El Paso, TX

For Appellee:

Teresa L. Raymond, Gregory J. Fouratt and Laura Fashing, Assistant United States Attorneys, Albuquerque, NM

In a 42 U.S.C. section 1983 action alleging that defendant-hospital board deprived plaintiff-physician of his First Amendment right of free speech through a campaign of retaliation against him for speaking out about substance abuse at the hospital, summary judgment for defendants is affirmed where neither the hospital's investigation of plaintiff nor its warning letter to him constituted an adverse employment action for First Amendment purposes.

Read Couch v. Bd. of Trustees of Mem. Hosp. of Carbon County, No. 08-8001

Appellate Information

Filed November 17, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellant:

Elizabeth A. Phelan, Gregory R. Piché and Mark B. Wiletsky, Holland & Hart LLP, Boulder, CO

For Appellees:

Janet Schroer, Monty Barnett, John Lebsack and James M. Meseck, White and Steele, P.C., Denver, CO

Defendant's counterfeiting and firearm possession conviction is remanded to the district court for an evidentiary hearing to determine whether, by stipulating to the facts that supported his convictions, defendant voluntarily entered into the stipulation knowing of the likely consequences his stipulation would have upon his appeal.

Read US v. Livingston, No. 09-6077

Appellate Information

Filed November 16, 2009

Judges

Opinion by Judge Briscoe

Counsel

For Appellant:

James T. Rowan, Oklahoma City, OK

For Appellee:

Timothy W. Ogilvie, Assistant United States Attorney, Oklahoma City, OK

In a tort action arising out of a motorcycle crash, denial of defendant's post-trial motion for judgment as a matter of law is reversed where: 1) a plaintiff may not establish wanton conduct by satisfying the notice or knowledge element of the tort as to one risk -- e.g., a broad generalized risk -- and the second element of indifference of that risk to a differently defined risk -- e.g., the specific risk that caused the accident at issue; and 2) even if plaintiff had put on evidence that defendant knew that a certain part of the motorcycle race at issue was dangerous, plaintiff did not show that defendant was "completely indifferent" to that danger.

Read Wagner v. Live Nation Motor Sports, Inc., 07-3365

Appellate Information

Filed November 13, 2009

Judges

For Appellant:

Paul M. Croker and Richard M. Enochs, Overland Park, KS

For Appellee:

David R. Cooper, Larry G. Pepperdine and Steve R. Fabert, Fisher, Patterson, Sayler & Smith, L.L.P., Topeka, KS

In an action for insurance coverage for a malpractice lawsuit, summary judgment for defendant is affirmed where: 1) the alleged acts of malpractice in a letter sent to the malpractice defendant and the lawsuit were "connected by an inevitable or predictable interrelation or sequence of events" for purposes of the policy; 2) the insurance policy treated as one claim all "related wrongful acts"; and 3) because defendant had no legally cognizable duty to defend or indemnify a claim, plaintiffs' bad faith claim could not survive.

Read Berry & Murphy, P.C. v. Carolina Cas. Ins. Co., No. 09-1004

Appellate Information

Filed November 12, 2009

Judges

Opinion by Judge Briscoe

Counsel

For Appellants:

Steven J. Dawes and Sophia H. Tsai, Light, Harrington & Dawes, P.C.

For Appellee:

Jeffrey A. Goldwater and Perry M. Shorris, Bollinger, Ruberry & Garvey, Chicago, IL

In an interlocutory appeal of the district court's denial of defendants' motion to dismiss premised on the existence of an arbitration agreement, the appeal is dismissed for lack of jurisdiction where, to properly invoke appellate jurisdiction under the Federal Arbitration Act (FAA), the movant must either explicitly move to stay litigation and/or compel arbitration pursuant to the FAA, or it must be unmistakably clear from the four corners of the motion that the movant seeks relief provided for in the FAA.

Read Conrad v. Phone Directories Co., No. 07-6276

Appellate Information

Filed November 10, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellants:

Ronald W. Taylor, David E. Strecker and Jessica C. Ridenour, Venable, LLP, Baltimore, MD

For Appellee:

Scott F. Brockman, Stanley M. Ward, Woodrow K. Glass, Norman, OK

In an appeal from the district court's denial of appellant's motion to intervene in an action brought by the U.S. under the Comprehensive Environmental Response, Compensation, and Liability Act, the order is reversed where the proposed consent decree would eliminate appellant's contribution right as to the settling defendants, and thus appellant had an interest in the outcome of the action.

Read US v. Albert Inv. Co., No. 08-6267

Appellate Information

Filed November 10, 2009

Judges

Opinion by Judge Kelly

Counsel

For Appellant:

William George, Debra Tsuchiyama Baker and Michael Connelly, Baker & Wotring, L.L.P., Houston, TX

For Appellees:

Gerald Hilsher, Stephen L. Jantzen, McAfee & Taft, P.C., Tulsa, OK

In an action against an insurer for coverage of a settlement in a wage and hour lawsuit, summary judgment for defendant is affirmed where, by operation of the plain terms of the agreement, plaintiff had no claim for coverage against defendant.

Read Payless ShoeSource, Inc. v. Travelers Cos., Inc., No. 08-3246

Appellate Information

Filed November 10, 2009

Judges

Opinion by Judge Gorsuch

Counsel

For Appellant:

Mark F. Rosenberg, Sullivan & Cromwell LLP, New York, NY

For Appellee:

Stephen M. Kerwick, Foulston Siefkin LLP, Wichita, KS

Defendant's crack cocaine distribution sentence is affirmed in part where: 1) the district court appropriately relied on an informant's testimony to find that defendant had produced crack; and 2) production of three ounces of crack qualified as relevant conduct under the Sentencing Guidelines. However, the sentence is reversed in part where the district court erred in attributing two points to defendant for committing one of the offenses of conviction while serving under a criminal justice sentence.

Read US v. Caldwell, No. 08-3011

Appellate Information

Filed November 9, 2009

Judges

Before LUCERO, EBEL, and TYMKOVICH, Circuit Judges.

Opinion by Judge Ebel

Counsel

For Appellant:

G. Gordon Atcheson of The Atcheson Law Office, Westwood, KS

For Appellee:

Leon Patton, Assistant United States Attorney, Kansas City, KS