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

Springer v. Comm'r. of Int'l. Rev., No. 08-9004

In a challenge to collection due process determinations issued by the IRS's Office of Appeals regarding plaintiff's tax obligations, summary judgment for defendant is affirmed where, because plaintiff failed to articulate any cognizable violation of the Paperwork Reduction Act (PRA) in connection with the imposition of the failure-to-pay penalties, section 3512(a) of the PRA provided him with no protection from those penalties.

Read Springer v. Comm'r. of Int'l. Rev., No. 08-9004

Appellate Information

Filed August 31, 2009

Judges

Opinion by Judge McKay

Counsel

For Appellant:

Jerold Barringer, Nokomis, IL

For Appellee:

Nathan J. Hochman, Attorney, Tax Division, Department of Justice, Washington, DC

Michael J. Haungs, Attorney, Tax Division, Department of Justice, Washington, DC

In an action against two insurance companies claiming that they wrongfully caused plaintiff to settle a bad faith lawsuit brought against it by two insureds, judgment for plaintiff is affirmed where: 1) the parties' agreement required defendant to notify plaintiff of any demand made by the insureds, not just "new" ones; and 2) the district court did not abuse its discretion by excluding an expert's proposed testimony on insurance industry practice, because it would not assist the jury.

Read N. Am. Specialty Ins. Co. v. Britt Paulk Ins. Agency, Inc., No. 07-7115

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

Eric Mareshie, Secrest, Hill & Butler, Tulsa, OK

James K. Secrest, II, Secrest, Hill & Butler, Tulsa, OK

For Appellee:

Joseph R. Farris, Feldman Franden Woodard & Farris, Tulsa, OK

Paula J. Quillin, Feldman Franden Woodard & Farris, Tulsa, OK

US v. Parada, No. 07-3272

Defendant's drug distribution conviction is affirmed where: 1) defendant lacked standing to challenge the search of a cooler containing PCP found in defendant's vehicle because he did not assert ownership of it; and 2) a dog's alert to the presence of contraband is sufficient to provide probable cause to search a vehicle.

Read US v. Parada, No. 07-3272

Appellate Information

Filed August 25, 2009

Judges

Opinion by Judge Seymour

Counsel

For Appellant:

Michael M. Jackson, Topeka, KS

For Appellee:

James A. Brown, Assistant United States Attorney, Topeka, KS

June v. Union Carbide Corp., No. 07-1532

In an action based on alleged radiation injuries to residents of a former uranium and vanadium milling town owned and operated by defendants, summary judgment for defendants is affirmed where: 1) plaintiffs' personal-injury claims failed for lack of evidence of factual causation; and 2) plaintiffs' medical-monitoring claims failed for lack of evidence of a "bodily injury" as required by the Price-Anderson Act.

Read June v. Union Carbide Corp., No. 07-1532

Appellate Information

Filed August 21, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellants:

J. Mark Englehart, Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.,
Montgomery, AL

For Appellees:

Christopher Landau, Kirkland & Ellis, LLP, Washington, DC, Chicago, IL

US v. Pursley, No. 06-1107

Defendant's conviction for retaliating against a witness is affirmed where: 1) the district court did not abuse its discretion in declining to sever the trial of defendant and his codefendants because granting severance would have thwarted principles of judicial economy; and 2) certain statements by the victim satisfied the excited-utterance exception to the general prohibition against hearsay evidence.

Read US v. Pursley, No. 06-1107

Appellate Information

Filed August 21, 2009

Judges

Opinion by Judge Holmes

Counsel

For Appellant:

J. Michael Dowling, J. Michael Dowling & Associates, Denver, CO

For Appellee:

James C. Murphy, Assistant United States Attorney, Denver, CO

Matthew Kirsch, Assistant United States Attorney, Denver, CO

In an action seeking a declaration that plaintiffs possessed certain water rights, dismissal of the action for lack of jurisdiction is affirmed where defendants did not waive immunity from suit and were thus entitled to sovereign immunity under the Eleventh Amendment.

Read Wagoner Cty. Rural Water Dist. No. 2 v. Grand River Dam Auth., No. 08-5120

Appellate Information

Filed August 24, 2009

Judges

Opinion by Judge Tacha

Counsel

For Appellants:

C. Matthew Bickell, Doyle Harris Davis & Haughey, Tulsa, OK

For Appellees:

James M. Reed, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, OK

Kathryn E. Kovacs, Attorney, United States Department of Justice, Environmental
& Natural Resources Division, Appellate Section, Washington, DC

SCO Group, Inc. v. Novell, Inc., No. 08-4217

In an action for slander of title regarding statements made by defendant about its alleged ownership of certain software copyrights, summary judgment for defendant is reversed where: 1) the parties' agreement satisfied the Copyright Act's writing requirement; and 2) the admissible evidence concerning the ambiguous contract language regarding copyright ownership was not so one-sided as to warrant summary judgment.

Read SCO Group, Inc. v. Novell, Inc., No. 08-4217

Appellate Information

Filed August 24, 2009

Judges

Opinion by Judge McConnell

Counsel

For Appellant:

Stuart Singer, Boies, Schiller & Flexner LLP, Fort Lauderdale, FL

Devan V. Padmanabhan, Dorsey & Whitney LLP, Minneapolis, MN

For Appellee:

Michael Jacobs, Morrison & Foerster LLP, San Francisco, CA

George C. Harris, Morrison & Foerster LLP, San Francisco, CA

US v. Commanche, No. 08-2257

Defendant's conviction for assault resulting in serious bodily injury is reversed where, because defendant's two prior aggravated battery convictions bore on his intent only if a jury first infers that he is prone to violence, the district court abused its discretion by allowing testimony as to the facts underlying these convictions.

Read US v. Commanche, No. 08-2257

Appellate Information

Filed August 24, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

P. Jeffery Jones, Santa Fe, NM

For Appellee:

Laura Fashing, Assistant United States Attorney Albuquerque, NM

Swanson v. Mountain View, No. 08-1105

In a 42 U.S.C. section 1983 action alleging that traffic police for a town issued tickets for infractions committed outside the town's boundaries, denial of qualified immunity for defendants is reversed where the traffic stops outside municipal boundaries did not violate clearly established Fourth Amendment law at the time of the violations.

Read Swanson v. Mountain View, No. 08-1105

Appellate Information

Filed August 19, 2009

Judges

Opinion by Judge Tymkovich

Counsel

For Appellants:

Eric M. Ziporin, Senter Goldfarb & Rice, L.L.C., Denver, CO

For Appellees:

Althea S. Licht, Killmer, Lane & Newman, LLP, Denver, CO

Law Co. v. Mohawk Constr. & Supply Co., Inc., No. 08-3076

In an action seeking a declaration that defendant was barred from collecting delay damages under the parties' construction subcontract, summary judgment for plaintiff is reversed where the district court erred by: 1) refusing to consider discovery documents produced by plaintiff in its initial disclosures; and 2) discounting two affidavits submitted by defendant without first analyzing their admissibility under the sham affidavit rule.

Read Law Co. v. Mohawk Constr. & Supply Co., Inc., No. 08-3076

Appellate Information

Filed August 17, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

David E. White, Spencer Fane Britt & Browne LLP

Joshua C. Dickinson, Spencer Fane Britt & Browne LLP

For Appellee:

Ron Campbell, Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, KS

R.W. Beck, Inc. v. E3 Consulting, LLC, No. 08-1344

In a copyright infringement action based on Defendant's alleged copying of Plaintiff's independent-engineer reports, summary judgment for Defendant is affirmed in part, where Plaintiff's state-law claims were preempted by the Copyright Act; but reversed in part, where Plaintiff created genuine disputes of material fact by presenting evidence that: 1) Plaintiff did not take the language in its copyrighted reports from a third-party report; and 2) the copyrighted reports derived their language from earlier, nonpublic reports prepared by Plaintiff.

Read R.W. Beck, Inc. v. E3 Consulting, LLC, No. 08-1344

Appellate Information

Filed August 14, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Natalie Hanlon-Leh, Faegre & Benson LLP, Denver, CO

Mary V. Sooter, Faegre & Benson LLP, Denver, CO

For Appellee:

Benjamin B. Lieb, Sheridan Ross P.C., Denver, CO

Ian R. Walsworth, Sheridan Ross P.C., Denver, CO

DeFreitas v. Horizon Inv. Mgmt. Corp., No. 08-1344

In a Title VII action alleging that Defendant improperly terminated Plaintiff while she was on medical leave, summary judgment for Defendant is affirmed in part, where Plaintiff failed to present sufficient evidence of the intent necessary for religious discrimination; but reversed in part, where there were many reasons to question Defendants' evidence regarding the alleged grounds for Plaintiff's termination.

Read DeFreitas v. Horizon Inv. Mgmt. Corp., No. 08-1344

Appellate Information

Filed August 14, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Bruce M. Franson, Robert H. Wilde, Attorney at Law, P.C., Midvale, UT

For Appellees:

Lisa Marcy McGarry, Hobbs & Olson, L.C., Salt Lake City, UT

Lincoln W. Hobbs, Hobbs & Olson, L.C., Salt Lake City, UT

Holcomb v. UNUM Life Ins. Co., No. 08-6183

In an ERISA action challenging defendant's decision to deny plaintiff long-term disability benefits, summary judgment for Defendant is affirmed where defendant: 1) did not rely solely on the evaluations and medical opinions of its own on-site physicians and nurses, and 2) diligently endeavored to discover the nature of plaintiff's ailments.

Read Holcomb v. UNUM Life Ins. Co., No. 08-6183

Appellate Information

Filed August 11, 2009

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

Robert J. Rosati, Fresno, CA

For Appellee:

Phillip G. Whaley, Ryan Whaley Coldiron Shandy PC, Oklahoma City, OK

Patrick M. Ryan, Ryan Whaley Coldiron Shandy PC, Oklahoma City, OK

Hertz v. Luzenac Group, No. 06-1324

In a trade secret misappropriation action, partial judgment for plaintiffs and defendants is affirmed in part where plaintiff failed to present adequate claims of tortious interference with contract and prospective business advantage. The ruling is reversed in part, however, where the question of whether defendant's manufacturing process was a trade secret was a question of fact that could not be resolved on the current record.

Read Hertz v. Luzenac Group, No. 06-1324

Appellate Information

Filed August 11, 2009

Judges

Opinion by Judge Holmes

Counsel

For Appellant:

Andrew M. Low, Davis Graham & Stubbs LLP, Denver, CO

Janet A. Savage, Davis Graham & Stubbs LLP, Denver, CO

For Appellee:

Theresa L. Corrada, Issacson Rosenbaum P.C., Denver, CO

Byeongsook Seo, Issacson Rosenbaum P.C., Denver, CO

US v. Charles, No. 08-3212

Defendant's firearm possession sentence is vacated where the district court did not have the benefit of the Supreme Court's decision in Chambers v. United States, 129 S. Ct. 687 (2009), which cast doubt as to whether defendant's conviction under 28 U.S.C. section 751(a) was a crime of violence.

Read US v. Charles, No. 08-3212

Appellate Information

Filed August 11, 2009

Judges

Opinion by Judge Henry

Counsel

For Appellant:

Cyd K. Gilman, Federal Public Defender, State of Kansas, Topeka, KS

For Appellee:

Marietta Parker, Acting United States Attorney, State of Kansas, Topeka, KS

James A. Brown, Assistant United States Attorney, Topeka, KS

RMA Ventures Cal. v. SunAmerica Life Ins. Co., No. 08-4035

In a breach of contract action alleging that defendant failed to implement a required interest rate reduction pursuant to the parties' mortgage agreement, plaintiff's appeal is dismissed where defendant purchased the right to pursue plaintiff's cause of action at a public execution sale.

Read RMA Ventures Cal. v. SunAmerica Life Ins. Co., No. 08-4035

Appellate Information

Filed August 11, 2009

Judges

Opinion by Judge Baldock

Counsel

For Appellant:

Ronald W. Ady, Salt Lake City, UT

For Appellees:

George W. Pratt, Jones, Waldo, Holbrook & McDonough, Salt Lake City, UT

US v. Burgess, No. 08-8053

In a child pornography prosecution, the denial of defendant's motion to suppress is affirmed where the warrant authorizing the search of defendant's home possessed sufficient particularity, and the search did not exceed the scope of the warrant.

Read US v. Burgess, No. 08-8053

Appellate Information

Filed August 11, 2009

Judges

Opinion by Judge O'Brien

Counsel

For Appellant:

Norman R. Mueller, Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C., Denver, CO

For Appellee:

James C. Anderson, Assistant United States Attorney, Cheyenne, WY

AE, Inc. v. Goodyear Tire & Rubber Co., No. 07-1526

In a product liability action, a denial of prejudgment interest to plaintiff is affirmed where the district court employed an improper presumption that plaintiff was not entitled to prejudgment interest simply because its damages estimates were inconsistent, but plaintiff's damages were not sufficiently calculable to serve as a basis for prejudgment interest under Utah law.

Read AE, Inc. v. Goodyear Tire & Rubber Co., No. 07-1526

Appellate Information

Filed August 11, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

Stephen G. Masciocchi, Holland & Hart LLP, Denver, CO

David L. Black, Holland & Hart LLP, Denver, CO

For Appellee:

Roger P. Thomasch, Ballard, Spahr, Andrews & Ingersoll, LLP, Denver, CO

Mary A. Wells, Ballard, Spahr, Andrews & Ingersoll, LLP, Denver, CO

Strawberry Water Users Ass'n. v. US, No. 07-4172

In an action by a water users' association seeking a declaration that it had the right to develop power in a certain area, judgment for defendants is affirmed where the district court: 1) properly confined its holding to the federal questions raised by the change applications at issue; and 2) did not err by declining to further declare plaintiff's rights.

Read Strawberry Water Users Ass'n. v. US, No. 07-4172

Appellate Information

Filed August 12, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

Shawn E. Draney, Snow, Christensen & Martineau, Salt Lake City, UT

Keith A. Call, Snow, Christensen & Martineau, Salt Lake City, UT

For Appellee:

David C. Shilton, Assistant Attorney General, Environment & Natural Resources Division, Department of Justice, Washington, D.C.

Ronald J. Tenpas, Assistant Attorney General, Environment & Natural Resources Division, Department of Justice, Washington, D.C.

US v. Cesareo-Ayala, No. 08-3201

Defendant's drug conviction is affirmed where: 1) the evidence was sufficient for a reasonable jury to conclude that defendant provided cocaine for drug transactions; and 2) certain challenged statements by a prosecution witness were not hearsay because they did not depend on the witness's truthfulness, memory, or perception.

Read US v. Cesareo-Ayala, No. 08-3201

Appellate Information

Filed August 12, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Rick E. Bailey, Conlee, Schmidt & Emerson, L.L.P., Wichita, KS

For Appellee:

James A. Brown, Assistant United States Attorney, Topeka, KS

US v. Wittig, No. 08-3220

In a money laundering prosecution, denial of defendants' motions for acquittal on Double Jeopardy grounds is affirmed where the Double Jeopardy Clause did not categorically foreclose a new trial because the conspiracy charges in the indictment were considerably broader in scope than the wire fraud charges on which defendants were acquitted.

Read US v. Wittig, No. 08-3220

Appellate Information

Filed August 10, 2009

Judges

Opinion by Judge Gorsuch

Counsel

For Appellants:

Maxwell Carr-Howard, Husch Blackwell Sanders LLP, Kansas City, MO

Patrick A. McInerney, Husch Blackwell Sanders LLP, Kansas City, MO

For Appellee:

Richard L. Hathaway, Senior Litigation Counsel, United States Attorney's Office,
Topeka, KS

Marietta Parker, Acting United States Attorney, United States Attorney's Office,
Topeka, KS

Milne v. USA Cycling Inc., No. 07-4247

In a personal injury action based on an accident during a bicycle race, summary judgment for defendant is affirmed where none of the race supervisors was assigned to the area right near the accident, but that choice was not grossly negligent in light of the fact that the stretch of road where the accident occurred was relatively straight and wide.

Read Milne v. USA Cycling Inc., No. 07-4247

Appellate Information

Filed August 10, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellants:

Steve Russell, Eisenberg & Gilchrist, Salt Lake City, UT

For Appellees:

Allan L. Larson, Snow, Christensen, & Martineau, Salt Lake City, UT

Richard A. Vazquez, Snow, Christensen, & Martineau, Salt Lake City, UT

Manzanares v. Higdon, No. 07-2156

In a 42 U.S.C. section 1983 action alleging an unlawful search, judgment for defendants is reversed where: 1) officers may not remain in a home absent probable cause when consent to enter is granted but later revoked; and 2) the Fourth Amendment does not permit detention of an individual for the duration of an investigation based on a police hunch that the individual may provide aid to a suspect if allowed to leave police custody.

Read Manzanares v. Higdon, No. 07-2156

Appellate Information

Filed August 10, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

Dennis W. Montoya, Montoya Law, Inc., Rio Rancho, NM

For Appellee:

Kathryn Levy, Deputy City Attorney, City of Albuquerque Legal Department, Albuquerque, NM

Johnson v. Smith, No. 08-8052

In a bankruptcy adversary proceeding for violating the automatic stay, an order of sanctions against defendant is affirmed where the dismissal of the Chapter 13 case did not divest the Bankruptcy Court of jurisdiction over the 11 U.S.C. section 362(k)(1) adversary proceeding.

Read Johnson v. Smith, No. 08-8052

Appellate Information

Filed August 5, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellants:

Stephen R. Winship, Winship & Winship, P.C., Casper, WY

US v. Williams, No. 08-1284

Defendant's drug sentence is affirmed where the district court lacked authority to sentence him to less than the minimum of the amended guideline range because the Sentencing Commission's policy statements neither take away from its ability to define and limit its own policy statements under 18 U.S.C. section 994, nor undercut the binding effect of U.S.S.G. section 1B1.10.

Read US v. Williams, No. 08-1284

Appellate Information

Filed August 4, 2009

Judges

Opinion by Judge McKay

Counsel

For Appellant:

David E. Johnson, Denver, CO

For Appellee:

Andrew A. Vogt, Assistant United States Attorney, Denver, CO

US v. Collins, No. 08-3119

Defendant's conviction for maliciously damaging a building by means of an explosive is affirmed where the introduction of recorded statements by officers who interrogated defendant constituted hearsay, but did not prejudice him because the evidence against him was overwhelming.

Read US v. Collins, No. 08-3119

Appellate Information

Filed August 4, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

John K. Henderson, Assistant Federal Public Defender, Wichita, KS

For Appellee:

Donald Oakley, Assistant United States Attorney, Wichita, KS

Matthew T. Treaster, Assistant United States Attorney, Wichita, KS

US v. Toombs, No. 08-3278

In a drug and firearm prosecution, a denial of defendant's motion to dismiss the indictment under the Speedy Trial Act is affirmed in part where defendant's defense was not hindered by the delays that occurred. However, the ruling is reversed in part where the district court failed to make a record upon which adequate findings could be based with respect to defendant's Speedy Trial Act claim.

Read US v. Toombs, No. 08-3278

Appellate Information

Filed August 3, 2009

Judges

Opinion by Judge Murphy

Counsel

For Appellant:

Melanie Morgan, Morgan Pilate LLC, Olathe, KS

For Appellee:

Terra D. Morehead, Assistant United States Attorney, Kansas City, KS

Marietta Parker, Acting United States Attorney, Kansas City, KS