U.S. Third Circuit: October 2009 Archives
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October 2009 Archives

Brown v. City of Pittsburgh, No. 08-1819

In a First Amendment case against the city of Pittsburgh challenging the constitutionality of an ordinance establishing two types of zones limiting speech around health care facilities, district court's judgment is affirmed in part, reversed in part, vacated in part, dismissed in part, and remanded where: 1) district court's denial of preliminary injunctive relief with respect to plaintiff's facial challenge is reversed; 2) the combination of the ordinance's "buffer" and "bubble" zones is invalid but either zone, individually, is valid on its face; 3) district court's denial of preliminary injunctive relief with respect to plaintiff's claim of selective enforcement is affirmed but vacated with respect to her claim that the ordinance is unconstitutional as applied to particular clinic locations; and 4) plaintiff's appeal from the district court's order partially dismissing her complaint is dismissed. 

Read Brown v. City of Pittsburgh, No. 08-1819

Appellate Information

On Appeal from the United States District Court for the Western District of Pennsylvania

(D.C. Civil No. 06-cv-0393)  

District Judge: Honorable Nora B. Fischer

Opinion Filed October 30, 2009

Judges

Before:  Scirica, Chief Judge, Ambro and Smith, Circuit Judges

Opinion by Scirica, Chief Judge 

Counsel

Counsel for Appellant: David A. Cortman, Joshua B. Bollinger, Benjamin W. Bull, Jeremy D. Tedesco, Lawrence G. Palladin, Jr.

Counsel for Appellee:  Yvonne S. Hilton, Michael E. Kennedy, George R. Specter

US v. Root, No. 08-2888

District court's conviction of defendant for tax evasion and conspiracy to defraud the United States is affirmed where: 1) upholding the government's inclusion of multiple years of evasion in a single count was proper; and 2) the government's charge was not impermissibly duplicitous because the statutory language does not prohibit the government's decision to charge defendant for multiple years in one count and because analysis of the concerns traditionally associated with duplicitous charges demonstrates that defendant was not prejudiced by that decision. 

Read US v. Root, No. 08-2888

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civil No. 07-cv-00149)  

District Judge: Honorable Berle M. Schiller

Opinion Filed October 29, 2009

Judges

Before:  McKee, Hardiman, and Greenberg, Circuit Judges

Opinion by Hardiman, Circuit Judge 

Counsel

Counsel for Appellant:  Michael J. Fischer, Robert A. Zauzmer, Office of the United States Attorney

 Counsel for Appellee:  Bradley D. Barbin

In Re: Constar Int'l Inc. Sec. Litig., No. 08-2461

In plaintiffs' securities class action arising from their purchase of defendant's registered shares , district court's grant of the class certification is affirmed where the Rule 23 class certification standard applied by the district court was proper.     

Read In Re: Constar Int'l Inc. Sec. Litig., No. 08-2461

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civil No. 03-cv-05020)  

District Judge: Honorable Edmund V. Ludwig

Opinion Filed October 29, 2009

Judges

Before:  Rendell, Fuentes, and Roth, Circuit Judges

Opinion by Rendell, Circuit Judge 

Counsel

Counsel for Appellant:  Steven B. Feirson, David W. Brown, Michael L. Kichline, Stuart T. Steinberg, Dechert; Jill M. Basinger, Marc J. Sonnenfeld, Morgan Lewis & Bockius

 Counsel for Appellee:  Eric A. Issacson, Joseph D. Daley, Coughlin, Stoia, Geller, Rudman & Robbins, Laura S. Stein

Alston v. Countrywide Fin. Corp., No. 08-4334

In plaintiffs-homebuyers' putative class action to recover statutory treble damages pursuant to section 8(d)(2) of the Real Estate Settlement Procedures Act (RESPA) of 1974, district court's dismissal of the complaint for lack of jurisdiction is reversed as the plain language of RESPA section 8 indicates that Congress created a private right of action without requiring an overarching allegation.  Finally, plaintiffs are not barred by the filed rate doctrine as it simply does not apply in this case.   

Read Alston v. Countrywide Fin. Corp., No. 08-4334

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civil No. 07-cv-03508)  

District Judge: Honorable James T. Giles

Opinion Filed October 28, 2009

Judges

Before:  Barry, Fisher, and Jordan, Circuit Judges

Opinion by Barry, Circuit Judge 

Counsel

Counsel for Appellant:  Edward W. Ciolko, Joseph H. Meltzer, Donna S. Moffa, Terrence S. Ziegler, Barroway, Topaz, Kessler, Meltzer & Check; Eric G. Calhoun, Travis & Calhoun

 Counsel for Appellee:  Christine N. Kohl, Michael J. Singer, United States Department of Justice, Civil Division. 

G-I Holdings v. Reliance Ins. Co., No. 07-2510

In plaintiff's claim for insurance policy coverage of its directors and officers for fraudulent conveyance in Reliance-defendant's liquidation and against Hartford, who had taken over claims administration for defendant and assumed some of its liabilities, district court's grant of summary judgment in favor of Hartford is affirmed where: 1) the Hartford policy period does not include the amended Reliance policy period, and there is no basis to conclude that plaintiff could have reasonably expected its policy with Hartford to cover the Reliance policy; 2) the interrelated wrongful acts provision applies to bar coverage for the CCR and Claimants Committee actions under the Hartford policy; 3) other agreements do not make Hartford directly liable for the fraudulent conveyance actions; and 4) judicial estoppel does not apply to Hartford's invoking of the interrelated wrongful acts provision 

Read G-I Holdings v. Reliance Ins. Co., No. 07-2510

Appellate Information

On Appeal from the United States District Court for the Middle District of New Jersey

(D.C. Civil Action No. 00-cv-06189)  

District Judge: Honorable Dennis M. Cavanaugh.

Opinion Filed October 26, 2009

Judges

Before:  Scirica, Chief Judge, Ambro and Smith, Circuit Judges

Opinion by Ambro, Circuit Judge 

Counsel

Counsel for Appellant:  Anthony Bartell, McCarter & English; Stephen G. Weil, Jerold Oshinsky.

Counsel for Appellee:  Arnold R. Gerst, Brad M. Weintraub, Weiner Lesniak, Lawrence J. Bistany, Celestine M. Montague, White & Williams

US v. Grier, No. 07-3507

District court's decision to exercise its discretion to grant defendant a downward departure under USSG section 4A1.3 as to his criminal history category, but not with respect to his offense level, is affirmed as the district court properly applied the Guidelines when it held that it could not depart downward in offense level under section 4A1.3 on the basis of defendant's overstated criminal history.  Furthermore, the district court adequately considered defendant's argument for a downward variance and the 37-month term of incarceration was substantively reasonable.   

Read US v. Grier, No. 07-3507

Appellate Information

On Appeal from the United States District Court for the Middle District of Pennsylvania

(D.C. No. 06-cr-00173)  

District Judge: Honorable Yvette Kane.

Opinion Filed October 26, 2009

Judges

Before:  Sloviter and Hardiman, Circuit Judges, and Pollak, District Judge

Opinion by Hardiman, Circuit Judge 

Counsel

Counsel for Appellant:  William A. Behe

Counsel for Appellee:  Edward J. Rymsza

Bouriez v. Carnegie Mellon Univ., No. 07-3876

In plaintiff's suit against defendant for fraudulent misrepresentation and negligence arising from his investment in their microwave technology, district court's grant of summary judgment in favor of defendant is vacated and remanded as the district court's proximate cause analysis was in error as plaintiff produced enough evidence to raise a genuine issue of material fact as to whether defendant's misrepresentations were a substantial factor in causing his failed investment.   

Read Bouriez v. Carnegie Mellon Univ., No. 07-3876

Appellate Information

On Appeal from the United States District Court for the Middle District of Pennsylvania (Civil No. 02-cv-02104)

District Judge: Honorable Arthur J. Schwab.

Opinion Filed October 26, 2009

Judges

Before:  Fisher, Chagares, and Hardiman, Circuit Judges

Opinion by Chagares, Circuit Judge 

Counsel

Counsel for Appellant:  John R. Gall, Philomena M. Dane, Christopher F.W. Haas, Kristen M. Blankley, Squire Sanders & Dempsey, LLP; John M. Mehren.

Counsel for Appellee:  George E. Yokitis, Walter P. DeForest, Mindy J. Shreve, Deforest, Koscelnik Yokitis Kaplan & Berardinelli

Gardner v. Grandolsky, No. 09-1742

District court's denial of defendant's petition for habeas relief is affirmed as the Bureau of Prisons (BOP)articulated sufficient rationale for 28 C.F.R. section 550.58(a)(1)(vi)(B) to satisfy the arbitrary and capricious standard set forth in APA section 706(2)(A).  Furthermore, although the BOP's public safety rationale was not explicit in the Federal Register notices for the 1997 or 2000 regulations, the rationale may reasonably be discerned from the regulatory history and attendant litigation.   

Read Gardner v. Grandolsky, No. 09-1742

Appellate Information

On Appeal from the United States District Court for the Middle District of New Jersey

(D.C. Civil No. 08-cv-06127District Judge: Renee Marie Bumb.

Opinion Filed October 26, 2009

Judges

Before: Fisher, Jordan, and Van Antwerpen, Circuit Judges

Per Curium Opinion 

Counsel

Counsel for Appellant: Albert Gardner 

Counsel for Appellee:  Paul A. Blaine, Office of the United States Attorney

US v. McGeehan, No. 05-1954

District court's conviction of a publicly-funded non-profit organization's president and vice-president for honest services mail and wire fraud, arising from personal use of funds that were to be used for a Navy project, is affirmed in part and reversed in part where:  1) the district court did not err in denying plaintiffs' motion to dismiss the Ben Franklin Technology Center (BFTC) counts because a superseding indictment made out the necessary elements of honest services fraud; and 2) district court erred in denying the motion to dismiss the Navy counts as there are no allegations in the indictment suggesting the presence of legally cognizable fiduciary duties owed by BFTC to the Navy.     

Read US v. McGeehan, No. 05-1954

Appellate Information

On Appeal from the United States District Court for the Western District of Pennsylvania

(D.C. Criminal Nos. 03-cr-0125-1 & 03-cr-0125-2)  

District Judge: Honorable David Stewart Cercone

Opinion Filed October 22, 2009

Judges

Before:  Scirica, Chief Judge, and Rendell, and Smith, Circuit Judges

Opinion by Scirica, Chief Judge 

Counsel

Counsel for Appellant: John A. Knorr, Stephen H. Begler

 Counsel for Appellee:  Michael L. Ivory, Laura S. Irwin

US v. Rigas, No. 08-3218

In a case involving the founder of Adelphia and his son, denial of defendants' motion to dismiss conspiracy charges in a Pennsylvania indictment, claiming that their conviction for conspiracy and substantive fraud counts in the Southern District of New York violated their right to be free from double jeopardy, is remanded as 18 U.S.C section 371 creates a single statutory offense and defendants established a prima facie case that there was only one conspiratorial agreement.  However, denial of defendants' motion to dismiss tax evasion charges in the Pennsylvania Indictment is affirmed.  

Read US v. Rigas, No. 08-3218

Appellate Information

On Appeal from the United States District Court for the Middle District of Pennsylvania

(No. 05-cr-00402)  

District Judge: Honorable John E. Jones III.

Opinion Filed October 21, 2009

Judges

Before:  Rendell, Fuentes, and Roth, Circuit Judges

Opinion by Fuentes, Circuit Judge 

Counsel

Counsel for Appellant:  Lawrence G. McMichael, Matthew P. Faranda-Diedrich, Patrick M. Northern, Joseph U. Metz, Dilworth Paxson

Counsel for Appellee:  George J. Rocktashel, Martin C. Carlson, Office of the United States Attorney, Lorna N. Graham, Office of the United States Attorney

District court's orders granting defendant-Lloyd's motion to compel arbitration of a disputed claim based on a set of reinsurance-of-reinsurance agreements and denying plaintiff-Century's motion to vacate an arbitration panel's subsequent award in favor of Lloyd's is affirmed where: 1) district court properly compelled arbitration of the dispute arising from the retrocessional agreements over Lloyd's failure to pay declaratory judgment expenses that Century had paid to its reinsured under reinsurance treaties; and 2) the district court properly denied Century's motion to vacate the arbitration award under 9. U.S.C. section 10(a)(3) as the arbitrators' decision to exclude evidence plaintiff proffered based on the evidence's irrelevance was well within their authority in conducting the arbitration.    

Read Century Indem. Co. v. Certain Underwriters at Lloyd's, London, No. 08-2924

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civ. No. 05-cv-6004)  

District Judge: Honorable Legrome D. Davis

Opinion Filed October 15, 2009

Judges

Before:  McKee, Hardiman, and Greenberg, Circuit Judges

Opinion by Greenberg, Circuit Judge 

Counsel

Counsel for Appellant:  Carter G. Phillips, William M. Sneed, Melanie Jo Triebel, Sidley Austin LLP; Lawrence Nathanson

Counsel for Appellee:  Mark J. Hill, Mark J. Hill & Associates, John M. Wulfers, Hugh S. Balsam, Susan P. Jordan, Locke Lord Bissell & Liddell LLP.

US v. Fullmer, No. 06-4211

District court's conviction of defendants for conspiracy to violate the Animal Enterprise Protection Act (AEPA), 18 U.S.C. section 43 (2002) and other crimes, arising from animal rights activists' claims of animal abuse committed by a research corporation located in the United Kingdom, is affirmed where: 1) defendants' convictions for conspiracy to violate the AEPA is affirmed as the AEPA is neither unconstitutional on its face nor unconstitutional as applied; 2) there was sufficient evidence to convict defendants on all charges involving interstate stalking, and 3) the judgment of the district court is affirmed in all other respects as there were no flaws in the jury instructions.  Finally, the case is remanded as the district court erred when it failed to devise a payment schedule for the $1,000,001 in restitution. 

Read US v. Fullmer, No. 06-4211

Appellate Information

On Appeal from the United States District Court for the District of New Jersey

(D.C. Civ. No. 04-cr-00373)  

District Judge: Honorable Anne E. Thompson

Opinion Filed October 14, 2009

Judges

Before:  Fuentes and Fisher, Circuit Judges, and Ditter, District Judge

Opinion by Fuentes, Circuit Judge 

Counsel

Counsel for Appellant: H. Louis Sirkin, Sirkin Pinales & Schwartz LLP; Robert G. Stahl, Laura K. Gasiorowski, Stahl Farella & Sarokin; Peter Goldberger, Robert A. Obler, Paul J. Hetznecker, Andrew F. Erba, Williams Cuker & Berezofsky; Hal K. Haveson, Haveson & Otis.

Counsel for Appellee: Glenn J. Moramarco, George S. Leone,  Assistant United States Attorney

In re: Diet Drugs Prod. Liability Litig., No. 08-2363

In multidistrict mass tort litigation concerning appetite suppressant drugs commonly known as fen-phen, district court's final award of attorneys' fees entered on behalf of class counsel is affirmed where: 1) the fee proceedings were amply transparent under the jurisdiction's precedent; 2) given the duration of the litigation and the extraordinary efforts of class counsel, the amount of award, although extraordinarily large, is not excessive in this extraordinary case; and 3) while there are some reservations regarding the allocation of the assessments between the downstream opt-out claimants and the initial opt-out and the primary pulmonary hypertension (PPH) claimants, the district court did not abuse its discretion in apportioning the award as it did.    

Read In re: Diet Drugs Prod. Liability Litig., No. 08-2363

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. No. 99-cv-20593)  

District Judge: Honorable Harvey Bartle, III

Opinion Filed October 8, 2009

Judges

Before:  Sloviter, Ambro, and Jordan, Circuit Judges

Opinion by Jordan, Circuit Judge 

Counsel

Counsel for Appellant:  Howard J Bashman, Brian S. Riepen, Raymond W. Valori

Counsel for Appellee:  Sol H. Weiss, Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley; Charles R. Parker, Locke Lord Bissell & Liddell; Arnold Levin, Michael D. Fishbein, Laurence S. Berman, Levin, Fishbein, Sedran & Berman 

Elkadrawy v. Vanguard Group Inc., No. 09-1105

In plaintiff's race, national-origin, employment discrimination and retaliation action against defendant-former employer, district court's dismissal of plaintiff's federal claims in his second complaint is affirmed as plaintiff's federal claims are barred by res judicata because his section 1981 claims arise from the same set of facts as his Title VII claims which were dismissed in his first complaint.  Also, the district court did not abuse its discretion when it declined to exercise supplemental jurisdiction over plaintiff's state claim and dismissed without prejudice instead of dismissing that claim with prejudice.     

Read Elkadrawy v. Vanguard Group Inc., No. 09-1105

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civ. No. 08-cv-04313)  

District Judge: Honorable Petrese B. Tucher

Opinion Filed October 6, 2009

Judges

Before:  Barry, Fisher and Jordan, Circuit Judges

Opinion by Barry, Circuit Judge 

Counsel

Counsel for Appellant:  Olugbenga O. Abiona

Counsel for Appellee:  Joseph J. Costello, Sean W. Sloan, Morgan, Lewis & Bockius 

Jean-Louis v. Att'y Gen., No. 07-3311

Haitian citizen's petition for withholding of removal is granted and the order of the BIA denying the application is reversed where: 1) the circuit court rejects the Attorney General's novel approach to adjudicating crimes involving moral turpitude (CIMT); and 2) following the established methodology for adjudicating CIMT as set forth in Partyka v. Att'y Gen., 417 F.3d 408 (3d Cir. 2005), petitioner's prior conviction for simple assault against a child under twelve years of age does not constitute CIMT for purposes of cancellation of removal.     

Read Jean-Louis v. Att'y Gen., No. 07-3311

Appellate Information

Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals

District Judge: Honorable Rosalind K. Malloy

Opinion Filed October 6, 2009

Judges

Before:  Rendell and Roth, Circuit Judges and Hayden, District Judge

Opinion by Rendell, Circuit Judge 

Counsel

Counsel for Appellant:  Craig R. Shagin, The Shagin Law Group

Counsel for Appellee:  Kevin J. Conway, Richard M. Evans, Brooke M. Maurer, United States Department of Justice Office of Immigration Litigation. 

Gelman v. State Farm Mut. Auto. Ins. Co., No. 07-3665

District court's dismissal of plaintiff's putative class action against State Farm under the Fair Credit Reporting Act (FRCA) is affirmed as plaintiff failed to state a claim for his false pretenses and permissible purpose claims because State Farm's mailer constituted an offer of insurance under the FCRA, and that was a permissible purpose for disclosing plaintiff's credit report.   

Read Gelman v. State Farm Mut. Auto. Ins. Co., No. 07-3665

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(Civ. No. 06-cv-05118)  

District Judge: Honorable William H. Yohn

Opinion Filed October 5, 2009

Judges

Before:  Scirica, Chief Judge, McKee and Smith, Circuit Judges

Opinion by McKee, Circuit Judge 

Counsel

Counsel for Appellant:  Patrick J. Loughren, Loughren, Loughren & Loughren, PC; Daniel C. Levin, Levin, Fishbein, Sedran & Berman; Christopher G. Hayes, Law Office of Christopher G. Hayes

Counsel for Appellee: James T. Moughan, Britt, Hankins & Moughan; Michael P. Kenny, Cari K. Dawson, Derin B. Dickerson, Alston & Bird LLP.  

McKenna v. City of Philadelphia, No. 08-4109

In plaintiffs' section 1983 lawsuit against the city of Philadelphia and various police officers arising from an impromptu street celebration after the Eagles' National Football Conference championship win, the judgment of the district court is affirmed where: 1) district court's deductions and adjustments in calculating the attorneys' fees were well reasoned and amply supported by the record; 2) district court properly rejected plaintiff's argument that it should have instructed the jury that any amount of force used to effect an arrest without probable cause is per se excessive; 3) district court did not err in granting defendants' motion for judgment as a matter of law on the supervisory liability claim and on the Fourth Amendment malicious prosecution claim as there is insufficient evidence on the record to support these claims; and 4) it was not an abuse of discretion to deny plaintiffs' request to admit rebuttal evidence with respect to their First Amendment claims. 

Read McKenna v. City of Philadelphia, No. 08-4109

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civ. No. 07-110)  

District Judge: Honorable William Ditter, Jr.

Opinion Filed October 2, 2009

Judges

Before:  McKee, Hardiman, and Greenberg, Circuit Judges 
Opinion by Greenberg, Circuit Judge 

Counsel

Counsel for Appellant:  Brian M. Puricelli, Brian K. Wiley

Counsel for Appellee: Shelley R. Smith, City Solicitor; Jane L. Istvan, Senior Attorney

US v. Vazquez-Lebron, No. 08-3222

District court's sentence of defendant to 48 months' imprisonment for conspiracy to possess with intent to distribute drugs is vacated and remanded as the court committed plain error by failing to give defendant the benefit of the downward departure that it granted in exchange for his substantial assistance in the prosecution of other offenders. 

Read US v. Vazquez-Lebron, No. 08-3222

Appellate Information

On Appeal from the United States District Court for the Middle District of Pennsylvania

(D.C. No. 07-cr-00400)  

District Judge: Honorable John E. Jones, III

Opinion Filed October 2, 2009

Judges

Before:  Fuentes, Chagares, Tashima, Circuit Judges 
Opinion by Tashima, Circuit Judge 

Counsel

Counsel for Appellant:  James V. Wade, Federal Public Defender, Frederick W. Ulrich, Assistant Federal Public Defender

Counsel for Appellee: Martin C. Carlson, United States Attorney, Christy H. Fawcett, Assistant U.S. Attorney