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Action Against FEMA Regarding Levee, and Civil Procedure, Civil Rights, Criminal, Employment, Environmental, and Tort Matters

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By FindLaw Staff on August 15, 2010 6:09 PM

In Beckon, Inc. v. AMCO Ins. Co., No. 09-2460, an insurance coverage dispute over the validity of an insurance policy defendant issued to plaintiff, summary judgment for defendant is reversed where 1) defendant was not entitled to have the entire policy voided even assuming plaintiff lacked an insurable interest in the building; and 2) the highest court of Missouri cabined Edmister as a material misrepresentation case, rather than one which turns upon the lack of an insurable interest.

Avritt v. ReliaStar Life Ins. Co., No. 09-2843, concerned plaintiffs' appeal from the district court's order denying class certification for a group of California residents who purchased fixed deferred retirement annuities from Northern Life Insurance Company.  The court affirmed on the ground that the district court properly determined that class certification was not appropriate because the plaintiffs' claims involved a number of individual issues that could not be resolved on a class-wide basis, including whether defendant misled the plaintiffs about its interest-crediting practices and whether the plaintiffs relied upon any such misrepresentations.

Cross v. Prairie Meadows Racetrack & Casino, Inc., No. 09-3427, involved a hostile work environment action pursuant to Title VII of the Civil Rights Act and the Iowa Civil Rights Act of 1965.  The court affirmed summary judgment for defendant, on the grounds that 1) the reported harassment was not so severe or pervasive that it met the high threshold for a hostile work environment; and 2) defendant could not be held liable for unreported harassment unless there was some basis for establishing that it knew or should have known about the misconduct. 

Great Rivers Habitat Alliance v. FEMA, No. 09-3183, concerned an action against FEMA claiming that a levee did not meet FEMA's requirements and FEMA erred by granting approval for it.  The court affirmed the dismissal of the complaint on the grounds that 1) plaintiffs failed to exhaust their administrative remedies before the Federal Emergency Management Agency (FEMA) pursuant to the National Flood Insurance Act; and 2) the judicial review provisions of the Administrative Procedure Act did not apply.

Howard v. Missouri Bone & Joint Center, Inc., No. 09-2914, involved a negligence action against Missouri Bone and Joint Center, Inc. alleging that defendant's negligence caused the back injury plaintiff sustained in 2001.  The court affirmed judgment for plaintiffs on the grounds that 1) because there was no miscarriage of justice in the verdict, the district court did not abuse its discretion in denying defendant's motion for a new trial on the causation issue; and 2) the evidence was sufficient to allow a reasonable jury to find that defendant's employee breached the standard of care of certified athletic trainers.

Howard v. Norris, No. 09-2914, involved the state's appeal from the district court's order staying petitioner's federal habeas proceeding.  The court dismissed the appeal on the ground that the collateral order doctrine did not apply because the disputed issue - whether petitioner's unexhausted claims were procedurally defaulted - could be addressed in an appeal from a final order.

Lee v. Andersen, No. 09-2771, concerned an action alleging excessive force against a police officer.  The court affirmed judgment for defendant on the grounds that 1) an expert's opinion that plaintiff's decedent did not have a gun in his hand was properly excluded under Rule 702; 2) the gang affiliation evidence had slight probative value on whether the decedent was carrying a gun as he fled the officers; and 3) the jury instructions and special verdict form were not prejudicial and, taken as a whole, adequately submitted the issues to the jury.

Lindsey v. US, No. 09-2907, involved a motion for post-conviction relief under 28 U.S.C. section 2255, arguing that defendant was improperly sentenced as a career offender in light of the Supreme Court's decision in Begay v. United States, 553 U.S. 137 (2008).  The court affirmed the denial of the motion on the ground that defendant failed to show cause necessary to overcome his procedural default.

Sierra Club v. Otter Tail Power Co., No. 09-2862, involved a Clean Air Act (CAA) citizen suit alleging that defendants violated the CAA by failing to obtain permits for a series of modifications to a power plant and by exceeding applicable emission limits.  The court affirmed the dismissal of the action on the grounds that 1) the CAA and related regulations prohibited only construction or modification of a facility without a Prevention of Significant Deterioration (PSD) permit and best available control technology, and thus plaintiff's PSD civil penalty claims were time barred; and 2) because plaintiff's PSD civil penalty claims were barred by the statute of limitations, the equitable remedies it sought under those causes of action were barred as well.

In US v. Asalati, No. 09-2894, the court affirmed the district court's order revoking defendant's supervised release on the ground that he violated the conditions of his release by, among other things, committing an assault, holding that 1) defendant's arguments were insufficient to overcome the high barrier to reversal of a district court's credibility finding; and 2) any difference in treatment was due to defendant's immigration status and his continued inability to operate within the confines of the law.

In US v. Pickar, No. 09-2361, the court affirmed defendant's bank robbery conviction, holding that 1) the government presented sufficient evidence for a reasonable jury to find intimidation; 2) the district court did not become an advocate when questioning a witness; and 3) show-up evidence was reliable under the totality of the circumstances.  However, the court vacated defendant's sentence on the ground that the district court improperly calculated defendant's advisory Guidelines range.

In US v. Buesing, No. 09-2361, the court affirmed defendant's child pornography sentence, on the grounds that 1) the district court never said it presumed the Guidelines to be reasonable, and its decision to vary downward belied defendant's suggestion to the contrary; and 2) the district court was not required to vary downward further because some of defendant's images of child pornography depicted decade-old conduct or because at least one of his victims is now an adult.

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