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

Colorado Springs v. N. Colo. Water Conservancy Dist., No. 08-1154

In an appeal from the district court's denial of a prospective intervenor's motion to intervene in a water rights dispute, the order is vacated with instructions to dismiss the motion where a proposed intervenor could not establish standing, and thus federal court jurisdiction over its motion to intervene, by "piggybacking" on the standing of an existing party to a lawsuit over which the district court had retained jurisdiction but within which there was no current, active dispute among the parties.

Read Colorado Springs v. N. Colo. Water Conservancy Dist., No. 08-1154

Appellate Information

Filed November 25, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellant:

Brian Nazarenus and Olivia D. Lucas, Ryley Carlock & Applewhite, Denver, CO

For Appellees:

Bennett Raley, Mary M. Hammond and William A. Paddock, Carlson, Hammond
& Paddock, LLC, Denver, CO

N-A-M v. Holder, No. 07-9580

In a petition for review of the BIA's order removing petitioner to El Salvador, the petition is denied where: 1) petitioner's prior state offense of felony menacing was a "particularly serious crime" under 8 U.S.C. section 1231; and 2) the Immigration Judge's reliance on a Statement in Support of Warrantless Arrest detailing petitioner's prior offense was not fundamentally unfair.

Read N-A-M v. Holder, No. 07-9580

Appellate Information

Filed November 20, 2009

Judges

Per Curiam

Counsel

For Appellant:

Laura L. Lichter, Lichter & Associates, P.C., Denver, CO

For Appellee:

Margaret J. Perry, Joanne E. Johnson, Office of Immigration Litigation Civil Division, United States Department of Justice, Washington DC

Harman v. Pollock, No. 08-4068

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

US v. Varela, No. 08-2275

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

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

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

US v. Livingston, No. 09-6077

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

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

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

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

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

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

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

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

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

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

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

US v. Caldwell, No. 08-3011

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

Scruggs v. ExxonMobil Pension Plan, No. 08-6145

In an ERISA action seeking retroactive pension and savings benefits allegedly owed to plaintiff under two of defendants' employee benefits plans, summary judgment for defendants is affirmed where the plan administrator's denial of plaintiff's claim for benefits was not arbitrary or capricious because, inter alia, plaintiff was ineligible for benefits under the Plans as an independent contractor.

Read Scruggs v. ExxonMobil Pension Plan, No. 08-6145

Appellate Information

Filed November 9, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellant:

Babette Patton, Breathwit & Patton, P.C., Oklahoma City, OK

For Appellees:

Michael S. Beaver and Catherine C. Crane, Holland & Hart LLP, Greenwood Village, CO

DMA Int'l., Inc. v. Qwest Comms. Int'l., Inc., No. 08-1392

In an appeal from the district court's denial of petitioner's motion to vacate an arbitral award, the order is affirmed where the arbitrator's factual findings regarding the meaning of the contract at issue could not be overturned simply because the evidence was conflicting.  In addition, attorney's fees are awarded to respondent because petitioner's appeal vexatiously multiplied the proceedings.

Read DMA Int'l., Inc. v. Qwest Comms. Int'l., Inc., No. 08-1392

Appellate Information

Filed November 4, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

John A. Yaklevich, Moore & Yaklevich, Columbus, OH

For Appellees:

Christopher J. Koenigs, Michael B. Carroll, Sherman & Howard, L.L.C., Denver, CO

Rasenack v. AIG Life Ins. Co., No. 07-1521

In an ERISA action against an insurer seeking disability benefits, summary judgment for defendant is reversed where: 1) the administrator failed to render a final decision within the time limits prescribed by the benefit plan and ERISA; and 2) the insurer's references to hemiparesis and the conclusions of the reviewing physicians did not provide a sufficient grounds for the denial of plaintiff's claim.

Read Rasenack v. AIG Life Ins. Co., No. 07-1521

Appellate Information

Filed November 2, 2009

Judges

Opinion by Judge Seymour

Counsel

For Appellants:

John Case of Benson & Case, LLP, Denver, CO

For Appellees:

James D. Kilroy, Katrin Miller Rothgery and Jessica E. Yates, Snell & Wilmer L.L.P., Denver, CO

US v. Garcia-Caraveo, No. 08-2140

Defendant's sentence for illegal reentry into the U.S. following removal is affirmed where California's robbery statute, as interpreted by the California Supreme Court, was in line with the uniform generic definition of robbery and, therefore, the sixteen-offense-level increase imposed by the district court based on defendant's California robbery conviction was appropriate.

Read US v. Garcia-Caraveo, No. 08-2140

Appellate Information

Filed November 3, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellant:

Scott M. Davidson, Albuquerque, NM

For Appellee:

John Anderson and Paige Messec, Assistant United States Attorneys, Albuquerque, NM

In re: Paige, No. 08-4104

In an appeal from the bankruptcy court's decision confirming appellees' joint bankruptcy reorganization plan and denying appellants' competing plan, dismissal of the appeal as moot is reversed where: 1) the competing plan could theoretically be confirmed without requiring disgorgement of payments made to third-party creditors; and 2) reversal of the existing plan would not require the undoing of complex transactions.

Read In re: Paige, No. 08-4104

Appellate Information

Filed November 3, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellants:

Adam S. Affleck, Michael N. Zundel, James A. Boevers, Andrew B. Clawson, and Erin M. Stone, Prince, Yeates & Geldzahler, P.C., Salt Lake City, UT

For Appellees:

Peter W. Billings and Garry E. Jubber, of Fabian & Clendenin, P.C., Salt Lake City, UT