U.S. Third Circuit: January 2010 Archives
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January 2010 Archives

US v. Johnson, No. 09-2245

In a prosecution of defendant for possession of a firearm by a person with three prior felony convictions and drug related offense, denial of a motion to suppress and the resultant conviction are affirmed as, because police officers had specific, reliable facts indicating that at least one of a taxicab's occupants had been involved in a shooting just minutes before, the Fourth Amendment's requirement that a Terry stop be conducted in a reasonable manner was clearly met.     

Read US v. Johnson, No. 09-2245

Appellate Information

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

Opinion Filed January 27, 2010

Judges

Before:   Fisher, Hardiman and Stapleton, Circuit Judges

Opinion by Circuit Judge Hardiman

Counsel:

For Appellant:  Frederick W. Ulrich, Office of the Public Defender

For Appellee:    Michael A. Consiglio, Office of the US Attorney

White-Squire v. U.S. Postal Serv., No. 09-1577

In plaintiff's suit against the USPS arising from an automobile collision with a USPS employee, dismissal of the claim is affirmed as a claimant under the Federal Tort Claims Act, whose damages continue to accrue, must nevertheless submit a claim to the appropriate agency containing a "sum certain" for damages prior to filing suit because the sum certain requirement is jurisdictional.     

Read White-Squire v. U.S. Postal Serv., No. 09-1577

Appellate Information

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

Opinion Filed January 27, 2010

Judges

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

Opinion by Circuit Judge Smith

Counsel:

For Appellant:  John G. Mennie, Richard Schibell, Schibell Mennie & Kentos

For Appellee:   Mark C. Orlowski, Office of the US Attorney

Pignataro v. Port Auth. of New York & New Jersey, No. 08-3605

In plaintiffs' suit against defendant-Port Authority under the FLSA, alleging they were denied proper overtime pay as helicopter pilots, summary judgment in favor of plaintiffs is affirmed where: 1) Port Authority helicopter pilots are not "learned professionals" and are not exempt from the provisions of the FLSA; 2) district court correctly concluded that Port Authority's violation of the FLSA was not willful, and that plaintiffs were thus entitled to only two years of back pay, not three; and 3) district court did not abuse its discretion in awarding prejudgment interest to plaintiffs.   

Read Pignataro v. Port Auth. of New York & New Jersey, No. 08-3605

Appellate Information

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

Opinion Filed January 27, 2010

Judges

Before:  Rendell, Barry and Chagares, Circuit Judges

Opinion by Circuit Judge Rendell

Counsel:

For Appellant:  Christine C. Lilore

For Appellee:   Sharon K. McGahee

US v. Boria, No. 08-2550

District court's judgment of acquittal for defendant convicted of drug related crimes is reversed and remanded as, the district court was required to review the record in the light most favorable to the government and should not have overturned the verdict where the evidence presented at trial could lead a rational trier of fact to find defendant knew a controlled substance was involved in the transaction, particularly his co-conspirator's statement regarding his role.     

Read US v. Boria, No. 08-2550

Appellate Information

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

Opinion Filed January 26, 2010

Judges

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

Opinion by Circuit Judge Van Antwerpen

Counsel:

For Appellant: Robert A. Zauzmer, Office of the US Attorney

For Appellee:   Anthony J. Petrone, Cogan Petrone & Associates

Palmer v. Hendricks, No. 06-2991

District court's denial of petition for habeas relief by a defendant convicted of multiple crimes related to a 1998 shooting death is affirmed where: 1) defendant failed to make a prima facie showing of the prejudice element of his ineffective assistance of counsel claims; and 2) the district court did not abuse its discretion in declining to convene an evidentiary hearing to resolve defendant's claims.     

Read Palmer v. Hendricks, No. 06-2991

Appellate Information

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

Opinion Filed January 26, 2010

Judges

Before: Sloviter, Fuentes, and Aldisert, Circuit Judges

Opinion by Circuit Judge Fuentes

Counsel:

For Appellant: Stephen M. Latimer, Loughlin & Latimer

For Appellee:   Jack J. Lipari, Assistant Prosecutor

UPMC-Braddock Hosp. v. Sebelius, No. 08-4247

District court's grant of summary judgment in favor of the Secretary of the United States Department of Health and Human Services, denying a reimbursement claim for loss on depreciable assets resulting from a merger between two non-profit medical corporations is vacated and remanded where: 1) the Secretary's interpretation of the related party regulations, requiring examination of whether the parties were related pre- and post-merger, is contrary to the plain language of the regulations, and under the proper, pre-merger test, the parties were not related at the time of the transaction; and 2) the district court's determination that the merger was not a bona fide sale was not based on substantial evidence, in light of errors made in determining the value of certain assets.     

Read UPMC-Braddock Hosp. v. Sebelius, No. 08-4247

Appellate Information

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

Opinion Filed January 20, 2010

Judges

Before: Rendell and Garth, Circuit Judges, and Padova, District Judge

Opinion by Circuit Judge Rendell

Counsel:

For Appellant:  Samuel W. Braver, Buchanan Ingersoll & Rooney

For Appellee:   Joel L. McElvain, US Departmet of Justice, Civil Division

In re: Reliant Energy Channelview LP, No. 09-2074

In Chapter 11 proceedings involving a bid for the debtors' largest asset, a power plant, bankruptcy court's denial of a bidder's request for disbursement of administrative expenses in the form of a break-up fee from the estate is affirmed as the court did not abuse its discretion when it concluded that an award of a break-up fee was not necessary to preserve the value of the estate. 

Read In re: Reliant Energy Channelview LP, No. 09-2074

Appellate Information

On Appeal from the United States District Court for the District of Delaware

Opinion Filed January 15, 2010

Judges

Before: Scirica, Chief Judge, Greenberg and Jordan, Circuit Judges

Opinion by Circuit Judge Greenberg

Counsel:

For Appellant:  Andrew K. Glenn, Kasowitz Benson Torres & Friedman

For Appellee:   Robert J. Stearn, Jr., Richards Layton & Finger

Zambelli Fireworks Mfg. Co., Inc. v. Wood, No. 09-1526

In plaintiff's action against its former employee and his new employer to enforce the terms of the restrictive covenant not to compete, district court's grant of plaintiff's motion for a preliminary injunction is affirmed in part and reversed in part where: 1) defendant's new employer is a dispensable party to the action, and as such, will be dismissed under Rule 21 authority to restore complete diversity; 2) plaintiff, as the same corporate entity that entered into the 2005 Agreement with defendant, may now seek to enforce that agreement against him as its 2007 corporate restructuring was a stock sale rather than an asset purchase and there was no need for an assignment of the non-compete provision; 3) district court did not err in holding that plaintiff had a legitimate business interest in its customer goodwill and defendant's specialized training and skills as a  pyrotechnician; and 4) a grant of preliminary injunction is vacated for failure to comply with the bond requirements of Rule 65(c).     

Read Zambelli Fireworks Mfg. Co., Inc. v. Wood, No. 09-1526

Appellate Information

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

Opinion Filed January 15, 2010

Judges

Before: Smith, Fisher, and Stapleton, Circuit Judges

Opinion by Circuit Judge Fisher

Counsel:

For Appellant:  Patrick Sorek, Leech Tishman Fuscaldo & Lampl

For Appellee:   Mark A. Willard, Eckert Seamans Cherin & Mellott

US v. Diaz, No. 08-4088

District court's conviction and sentencing of defendant for possessing a firearm in furtherance of drug trafficking, 18 U.S.C. section 924(c), and drug other related crimes is affirmed in part, vacated in part and remanded where: 1) one of defendant's two section 924(c) convictions is vacated and remanded for resentencing as application of the rule of lenity is particularly appropriate in the context of section 924(c) because of its mandatory consecutive sentences and extremely harsh penalties for subsequent convictions; and 2) district court's denial of defendant's motion for a mistrial is affirmed as the danger of unfair prejudice from a witness's testimony did not substantially outweigh its probative value.     

Read US v. Diaz, No. 08-4088

Appellate Information

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

Opinion Filed January 15, 2010

Judges

Before: Sloviter, Fuentes and Smith, Circuit Judges

Opinion by Circuit Judge Sloviter

Counsel:

For Appellant:  Ronald A. Krauss, Office of Federal Public Defender

For Appellee:   Michael A. Consiglio, Office of the US Attorney

US v. Stinson, No. 08-1717

District court's imposition of an enhanced offense level on a defendant in holding that he is a career offender, convicted of drug trafficking and related crimes, is affirmed but on alternate ground that defendant's prior conviction for resisting arrest, a categorical crime of violence, provided the second predicate offense to his designation as a career offender.   

Read US v. Stinson, No. 08-1717

Appellate Information

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

Opinion Filed January 14, 2010

Judges

Before: Sloviter, Ambro, and Jordan, Circuit Judges

Opinion by Circuit Judge Sloviter

Counsel:

For Appellant:  Thomas F. Burke

For Appellee:   Laurie Magid, Acting US Attorney, Robert A. Zauzmer and Maria M. Carrillo, Assistant US Attorneys

Grier v. Klem, No. 06-3551

In a prisoner-plaintiff's 42 U.S.C. section 1983 claim against a county district attorney and a superintendent alleging that he was denied procedural due process rights by being refused access to rape kits for DNA testing, grant of defendants' motion to dismiss and denial of plaintiff's request for summary judgment is vacated and remanded as, in the narrow circumstances where a prisoner files a section 1983 claim to request access to evidence for DNA testing, that claim is not barred by the principles outlined in Heck.   

Read Grier v. Klem, No. 06-3551

Appellate Information

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

Opinion Filed January 12, 2010

Judges

Before: Hardiman, Van Antwerpen and Fisher, Circuit Judges

Opinion by Circuit Judge Van Antwerpen

Counsel:

For Appellant:  Charles T. Kotuby, Jones Day, Anderson T. Bailey, John D. Goetz

For Appellee:   Matthew J. McLaughlin, Assistant Solicitor for Erie County

El-Ganayni v. US Dep't of Energy, No. 08-4745

In plaintiff's suit against the Department of Energy (DOE) and its Acting Deputy Secretary claiming that the revocation of his security clearance and his subsequent termination was based on his political speech and because he is a Muslim, in violation of the U.S. Constitution and the Administrative Procedure Act (APA), dismissal of his claims is affirmed where: 1) the district court erred in dismissing plaintiff's First Amendment claim for lack of jurisdiction but it nevertheless is affirmed for failure to state a claim upon which relief can be granted because the legal framework applicable to that claim would demand from the DOE an explanation of its decision to revoke his clearance, plus allow a factfinder to weigh the DOE's arguments in support of that decision, and prior case law forbids both; 2) plaintiff's equal protection claim under the Fifth Amendment fails for a similar reason; and 3) plaintiff's claims of due process violations and violations of the APA were properly dismissed for failure to state a claim as plaintiff's security clearance was revoked in accordance with Executive Order 12968 and DOE regulations.     

Read El-Ganayni v. US Dep't of Energy, No. 08-4745

Appellate Information

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

Opinion Filed January 11, 2010

Judges

Before: Smith, Stapleton and Fisher, Circuit Judges

Opinion by Circuit Judge Smith

Counsel:

For Appellant:  Keith E. Whitson, Schnader Harrison Segal & Lewis

For Appellee:   Beth S. Brinkman, US Department of Justice, Civil Division

US v. Heckman, No. 08-3844

District court's conviction of defendant for transporting child pornography and sentence to 180 months' imprisonment followed by a lifetime term of supervised release is affirmed in part and reversed in part where: 1) district court's imposition of an unconditional lifetime ban on Internet access is vacated as the ban involved a greater deprivation of liberty than is reasonably necessary; 2) district court did not commit plain error in imposing defendant's mental health condition of supervised release; and 3) defendant's "no minors" condition is vacated as it is an impermissible delegation of authority to the Probation Office and thus constitutes plain error.    

Read US v. Heckman, No. 08-3844

Appellate Information

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

Opinion Filed January 11, 2010

Judges

Before: Rendell, Ambro, and Weis, Circuit Judges

Opinion by Circuit Judge Ambro

Counsel:

For Appellant:   Christy Unger, Assistant Federal Defender

For Appellee:  Robert A. Zauzmer, Assistant US Attorney

Feesers, Inc. v. Michael Foods, Inc., No. 09-2548

In a suit for unlawful price discrimination under the Robinson-Patman Act (RPA) against a food manufacturer and a food service management company, judgment in favor of plaintiff-food distributor is vacated with instruction for the district court to enter judgment as a matter of law for defendants as plaintiff cannot satisfy the competitive injury requirement of a prima facie case of price discrimination under section 2(a) of the RPA because the plaintiff and defendant were not competitors, and therefore, plaintiff cannot show it suffered competitive injury under RPA. 

Read Feesers, Inc. v. Michael Foods, Inc., No. 09-2548

Appellate Information

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

Opinion Filed January 7, 2010

Judges

Before: Smith, Nygaard, and Fisher, Circuit Judges

Opinion by Circuit Judge Smith

Counsel:

For Appellant:  Jeffrey L. Kessler, Dewey & LeBoeuf

For Appellee:   Robert T. Englert, Glen D. Nager

Lazaridis v. Wehmer, No. 09-1342

In plaintiff's action raising various constitutional and statutory claims relating to child custody proceedings and the registration of foreign custody orders against his ex-wife and others, dismissal of plaintiff's complaint and denial of his motion for reconsideration is affirmed where: 1) the Younger abstention doctrine requires dismissal of plaintiff's challenge to the registration of the 2004 French custody orders in its entirety; 2) plaintiff's claim, which he sought to reopen in the name of his daughter, that the registration of the French orders violated his daughter's rights because the Delaware courts did not apply Greek law, the United Nations Convention on the Rights of the Child, or the "best interest of the child" standard, is dismissed as plaintiff may not represent his child in federal court as a non-lawyer parent; 3) district court properly dismissed plaintiff's claim that his ex-wife and her attorneys conspired to violate his civil rights as they are without merit; and 4) the district court properly denied plaintiff's motion for reconsideration.  

Read Lazaridis v. Wehmer, No. 09-1342

Appellate Information

On Appeal from the United States District Court for the District of Delaware

Opinion Filed January 7, 2010

Judges

Before: Rendell,  Hardiman and Aldisert, Circuit Judges

Per Curium Opinion

Counsel:

For Appellant:  Emmanuel Lazaridis, pro se.

For Appellee:   N/A

US v. Lopez-Reyes, No. 09-1243

District court's imposition of 46-months' imprisonment and three years of supervised release on a defendant convicted of illegally reentering the United States subsequent to a conviction for the commission of an aggravated felony is affirmed where: 1) it is apparent that the district court was aware of the discretionary nature of the Guidelines and its authority to impose a sentence outside of the prescribed range, but it had no obligation to exercise that discretion in favor of the defendant; and 2) defendant's sentence is substantively reasonable.     

Read US v. Lopez-Reyes, No.  09-1243

Appellate Information

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

Opinion Filed January 5, 2010

Judges

Before: Rendell, Barry and Chagares, Circuit Judges

Opinion by Circuit Judge Barry

Counsel:

For Appellant:  Christopher H. O'Malley, Office of the Federal Public Defender

For Appellee:   George S. Leone, John F. Romano, Office of the US Attorney

Marion v. TDI, Inc., No. 06-5173

In an action brought by a receiver for a corporation through which a Ponzi scheme was run against various third-parties, denial of defendants' post-trial motion for judgment of law is vacated and remanded where, although the receiver sufficiently alleged an injury distinct to the corporation to get past the standing threshold, on the facts presented to the jury, neither key individual defendants can be liable to the plaintiff acting as the corporation's receiver. 

Read Marion v. TDI, Inc., No. 06-5173

Appellate Information

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

Opinion Filed January 4, 2010

Judges

Before: Ambro, Weis, and Van Antwerpen, Circuit Judges

Opinion by Circuit Judge Ambro

Counsel:

For Appellant:  Eugen E. Stearns, Stearns Weaver Miller Weissler Alhadeff & Sitterson; Alan K. Cotler, Reed Smith; Laurence A. Mester, Grossman Law Firm

For Appellee:   David D. Langfitt, John H. Lewis, Montgomery McCracken Walker & Rhoads