U.S. Tenth Circuit: September 2009 Archives
U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

September 2009 Archives

In an antitrust action claiming that defendant-hospital's refusal to deal with nephrologists other than those in its in-house practice, including plaintiff, amounted to the monopolization, summary judgment for defendant is affirmed where 1) the hospital had no antitrust duty to share its facilities with plaintiff at the expense of its own nephrology practice; and 2) in demanding access to defendant's facilities, plaintiff sought to share the hospital's putative monopoly.

Read Four Corners Nephrology Assocs., P.C. v. Mercy Med. Ctr. of Durango, No. 08-1231

Appellate Information

Filed September 30, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Jack Shelton, Wichita, KS

For Appellee:

Patrick J. Kenney, Armstrong Teasdale LLP, St. Louis, MO, and Karrie J. Clinkinbeard, Armstrong Teasdale LLP, Kansas City, MO

Straley v. Utah Bd. of Pardons, No. 08-4170

Denial of petitioner's habeas petition seeking to overturn his Utah conviction for sexual abuse of a child is affirmed where petitioner brought a constitutional challenge to Utah's statutory sentencing framework whereby a parole board determined the actual time an offender served in prison, but: 1) there is no constitutional right to an individualized sentence; 2) petitioner provided no evidence that he was treated differently from other defendants; and 3) the sentencing framework did not violate the separation of powers principles.

Read Straley v. Utah Bd. of Pardons, No. 08-4170

Appellate Information

Filed September 28, 2009

Judges

Opinion by Judge Tymkovich

Counsel

For Appellant:

Wade J. Skalsky, Liberty Bell Law Group, Burbank, CA

For Appellees:

Brent A. Burnett, Utah Attorney General's Office, Salt Lake City, UT

US v. Roach, No. 08-3029

Defendant's drug and firearm possession convictions are affirmed where: 1) although a warrant to search defendant's girlfriend's residence lacked probable cause, the officers relied on and executed the warrant in good faith; and 2) the district court failed in its duty to make factual findings regarding the reliability of a detective's expert testimony, but the error was harmless.

Read US v. Roach, No. 08-3029

Appellate Information

Filed September 21, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

Peter John Orsi, II, Wichita, KS

For Appellee:

Donald Christopher Oakley, Special Assistant United States Attorney, Office of the
United States Attorney, Wichita, KS

Southwest Stainless, LP v. Sappington, No. 08-5127

In an action for breach of a noncompetition agreement restricting defendants' ability to work with competitors, judgment for plaintiff is affirmed in part where the district court properly distinguished in its findings of fact between plaintiff's general lost profits and profits lost on specific orders.  However, judgment for plaintiff is reversed in part where certain information used by defendants did not qualify as a trade secret because plaintiff disclosed this information to its customers without reservation.

Read Southwest Stainless, LP v. Sappington, No. 08-5127

Appellate Information

Filed September 21, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellants:

Justin D. Flamm, Conner & Winters, LLP, Tulsa, OK

Timothy P. Reilly, Conner & Winters, LLP, Tulsa, OK

For Appellees:

Dinita L. James, Ford & Harrison, LLP, Phoenix, AZ

William E. Grob, Ford & Harrison, LLP, Phoenix, AZ

In re: Lindsey, No. 09-3184

In a drug and firearm prosecution, the denial of plaintiff's Fed. R. Civ. P. 60(b) motion claiming that the district court erred in deciding his 28 U.S.C. section 2255 motion for sentence modification without granting him an evidentiary hearing is affirmed where plaintiff's claims required authorization under section 2255(h) as a second or successive motion.

Read In re: Lindsey, No. 09-3184

Appellate Information

Filed September 16, 2009

Judges

Per Curiam

Wackerly v. Workman, No. 07-7034

In a capital habeas matter, denial of the petition is affirmed where petitioner claimed that defense counsel rendered ineffective assistance by failing to investigate and then present evidence of petitioner's drug addiction and alleged mental impairment to the jury during the penalty phase of his trial, but there was no reasonable probability that the evidence he pointed to would have altered his sentence.

Read Wackerly v. Workman, No. 07-7034

Appellate Information

Filed September 15, 2009

Judges

Opinion by Judge Gorsuch

Counsel

For Petitioner:

James T. Rowan, Oklahoma City, OK

For Respondent:

Seth S. Branham, Assistant Attorney General, Oklahoma City, OK

Rosillo-Puga v. Holder, No. 07-9564

In a petition for review of the denial of petitioner's motion to reconsider or reopen his deportation proceedings, the petition is denied where 8 C.F.R. section 1003.23(b)(1) was a valid exercise of the Attorney General's Congressionally-delegated rule-making authority, and did not contravene 8 U.S.C. sections 1229a(c)(6)(A) or (7)(A), and thus the Immigration Judge lacked jurisdiction over petitioner's motion because petitioner had previously been removed from the U.S.

Read Rosillo-Puga v. Holder, No. 07-9564

Appellate Information

Filed September 15, 2009

Judges

Opinion by Judge Anderson

Counsel

For Petitioner:

Cynthia G. Burnside, Holland & Knight LLP, Atlanta, GA

For Respondent:

James A. Hurley, Attorney, United States Department of Justice, Civil Division, Washington, DC

Anh-Thu P. Mai, Senior Litigation Counsel, United States Department of Justice, Civil Division, Washington, DC

Powell v. Comm'r. of Int'l. Rev., No. 08-9005

In an appeal from a tax court's post-trial decision to adopt the Commissioner of Internal Revenue's computation of the taxpayer's estate tax deficiency rather than the taxpayer's own computation, the order is affirmed where: 1) the tax court did not abuse its discretion in computing the amount of the deficiency; and 2) the tax court did not abuse its discretion by adopting the Commissioner's Rule 155 computation.

Read Powell v. Comm'r. of Int'l. Rev., No. 08-9005

Appellate Information

Filed September 11, 2009

Judges

Opinion by Judge Holloway

Counsel

For Petitioner:

Edith Moates, Norman, OK

For Respondent:

Patrick J. Urda, Attorney, Tax Division, United States Department of Justice, Washington, DC

Nathan J. Hochman, Assistant Attorney General, Washington, DC

Hennagir v. Utah Dep't of Corr., No. 08-4087

In an Americans with Disabilities Act action based on plaintiff's inability to complete a physical safety training program adopted by her employer, summary judgment for defendants is affirmed where a job function that is rarely required in the normal course of an employee's duties may nonetheless be an essential job function under the ADA when the potential consequences of employing an individual who is unable to perform the function are sufficiently severe.

Read Hennagir v. Utah Dep't of Corr., No. 08-4087

Appellate Information

Filed September 10, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

Russell T. Monahan, Cook & Associates, P.C., Salt Lake City, UT

For Appellees:

J. Clifford Peterson, Assistant Utah Attorney General, Salt Lake City, UT

US v. Lovern, No. 08-3141

In a prosecution against pharmacy employees for dispensing unlawful controlled substances, one defendant's conviction is affirmed where: 1) Gonzales v. Oregon did not apply because there was no interpretive rule seeking to define a practice as lacking any legitimate medical purpose; and 2) the government adduced sufficient proof at trial that defendant's practices were not within the usual course of professional pharmaceutical practice.  However, another defendant's conviction is reversed where there was no evidence that he knew the pharmacy's managers and pharmacists filled prescriptions issued without a legitimate medical purpose or in defiance of professional standards.

Read US v. Lovern, No. 08-3141

Appellate Information

Filed September 9, 2009

Judges

Opinion by Judge Gorsuch

Counsel

For Appellants:

Lee Thompson, Thompson Law Firm, LLC, Wichita, KS

For Appellee:

Mona Lee M. Furst, Assistant United States Attorney, Wichita, KS

Marietta Parker, Acting United States Attorney, Wichita, KS

Cory v. Allstate Ins., No. 08-2168

In an action for breach of implied contract and defamation based on false statements allegedly made by plaintiff's former employer on an NASD Form U5 regarding plaintiff's termination, summary judgment for defendant is affirmed where: 1) defendant's statements on the form were substantially true; and 2) plaintiff could not have reasonably expected that, after defendant began investigating plaintiff for forgery, defendant limited its right to terminate his employment through the nonspecific statements of two employees that "nothing bad would happen."

Read Cory v. Allstate Ins., No. 08-2168

Appellate Information

Filed September 9, 2009

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

Timothy L. White, Valdez and White Law Firm, Albuquerque, NM

For Appellees:

M. Scott Barnard, Akin Gump Strauss Hauer & Feld LLP, Dallas, TX

John V. Jansonius, Akin Gump Strauss Hauer & Feld LLP, Dallas, TX

Moses v. Halstead, No. 08-3088

In an action seeking a garnishment order in Kansas against an insurance company for its alleged negligent or bad faith refusal to settle plaintiff's claim against defendant's insured, judgment for defendant is reversed where the issue was governed by the law of the place where the contract was made, in this case Kansas, and thus the district court erred in applying Missouri law.

Read Moses v. Halstead, No. 08-3088

Appellate Information

Filed September 8, 2009

Judges

Opinion by Judge Seymour

Counsel

For Appellant:

William J. Pauzauskie, Topeka, KS

For Appellee:

Barrett J. Vahle, Sonnenschein Nath & Rosenthal LLP, Kansas City, KS

Coffey v. Freeport McMoran Copper & Gold, No. 09-6106

In a class action based on defendants' alleged contamination of plaintiffs' property through operation of a zinc smelter, the district court's order granting plaintiffs' motion to remand the case to state court is affirmed where plaintiffs' claims fell within the "local controversy exception" to the Class Action Fairness Act.

Read Coffey v. Freeport McMoran Copper & Gold, No. 09-6106

Appellate Information

Filed September 4, 2009

Judges

Per Curiam

Counsel

For Appellants:

Marie R. Yeates, Vinson & Elkins, LLP, Austin, TX

Morgan L. Copeland, Jr., Vinson & Elkins, LLP, Austin, TX

For Appellees:

Nelson J. Roach, Nix, Patterson & Roach, LLP, Dangerfield, TX

Keith L. Langston, Nix, Patterson & Roach, LLP, Dangerfield, TX

Carolina Cas. Ins. Co. v. Yeates, No. 07-4019

In an action by an insurer seeking a declaration that it had no liability to plaintiffs under a general liability policy, judgment for defendants is reversed where the MCS-90 endorsement in the policy was intended to impose a surety obligation on the insurance company, and thus when an injured party obtains a negligence judgment against a motor carrier, an insurer's obligation under the MCS-90 endorsement is not triggered unless: 1) the underlying insurance policy (to which the endorsement is attached) does not provide liability coverage for the accident; and 2) the carrier's other insurance coverage is either insufficient to meet the federally-mandated minimums or non-existent.

Read Carolina Cas. Ins. Co. v. Yeates, No. 07-4019

Appellate Information

Filed September 3, 2009

Judges

Opinion by Judge Tymkovich

Counsel

For Appellant:

R. Clay Porter, Dennis, Corry, Porter & Smith, L.L.P., Atlanta, GA

Beth R. Holck, Dennis, Corry, Porter & Smith, L.L.P., Atlanta, GA

For Appellees:

Jesse C. Trentadue, Suitter Axland, PLLC, Salt Lake City, UT

US v. Bullcoming, No. 09-6010

Defendant's embezzlement sentence is affirmed where: 1) defendant failed to show that the government had breached its plea agreement with him based on a witness's comments that defendant had not accepted responsibility; and 2) the district court did not abuse its discretion in varying upward from defendant's Guidelines sentence.

Read US v. Bullcoming, No. 09-6010

Appellate Information

Filed September 3, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Fred L. Staggs, Oklahoma City, OK

For Appellee:

Arvo Q. Mikkanen, Assistant United States Attorney, Oklahoma City, OK

US v. Albert, No. 07-4193

Defendant's firearm possession conviction is affirmed where the district court properly denied defendant's motion to suppress evidence because: 1) the use of handcuffs by the police was reasonable under the circumstances, coming as it did after the discovery of a controlled substance; 2) the search of defendant's person was reasonable under the circumstances; and 3) the officers had good reason to detain defendant pending further investigation.

Read US v. Albert, No. 07-4193

Appellate Information

Filed September 1, 2009

Judges

Opinion by Judge O'Brien

Counsel

For Appellant:

Scott Keith Wilson, Assistant Federal Public Defender, Salt Lake City, UT

For Appellee:

Stephen J. Sorenson, Assistant United States Attorney, Salt Lake City, UT

Hobbs v. Zenderman, No. 08-2099

In a 42 U.S.C. section 1983 action claiming that defendants violated plaintiff's rights under the Medicaid Act and denied him due process by rejecting his application on the basis of unwritten, unascertainable standards, summary judgment for defendants is affirmed where: 1) the statutory provisions upon which plaintiff relied did not confer private rights enforceable under section 1983; and 2) defendants did not violate plaintiff's right to due process, but simply applied a "sole benefit" standard to the particular facts of his case.

Read Hobbs v. Zenderman, No. 08-2099

Appellate Information

Argued: June 2, 2009

Decided: September 1, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

Duff Westbrook, Sanders & Westbrook, P.C., Albuquerque, NM

Maureen A. Sanders, Sanders & Westbrook, P.C., Albuquerque, NM

For Appellees:

Paul R. Ritzma, General Counsel/Special Assistant Attorney General, Santa Fe, NM

Mark Dawson Jarmie, Mark D. Jarmie LLC, Santa Fe, NM