Sixth Circuit Cases

6th Cir. Published Decisions for Week of Mar. 26-30, 2007 (No Ky. Decisions)

Opinion	Pub Date	Short Title/District
07a0113p.06	2007/03/28	Maday v. Pub Lib Saginaw     Eastern District of Michigan at Bay City Age discrimination claim and alleged violation of FMLA; attorney misconduct and new trial; hearsay and admission of third-party statements; attorney-client privilege and social-worker privilege.
07a0114p.06	2007/03/29	USA v. Davist     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. Defendant Davist appeals from his sentence for false claims against the United States, conspiracy to defraud the United States, and false statements. He argues that the district court erred in  issuing a two-point enhancement under U.S.S.G. § 3C1.1. Finding no error, we affirm.
07a0115p.06	2007/03/30	USA v. Kosinski     Eastern District of Michigan at Detroit CLAY, Circuit Judge. Defendant, Timothy Kosinski, was convicted of one count of conspiring to defraud the Internal Revenue Service ("IRS") and to structure currency transactions to evade IRS reporting requirements, in violation of 18 U.S.C. § 371; five counts of submitting false federal income tax returns, in violation of 26 U.S.C. § 7206(1); and one count of structuring a currency transaction to evade IRS reporting requirements, in violation of 31 U.S.C. §§ 5324(a)(3) and 5324(d)(1). Defendant was sentenced to a term of three years under probation supervision, with the condition that the first six months be served in a halfway house and that the second six months be served under home confinement. The  government appeals the district court’s sentence. For the following reasons, we VACATE the district court’s sentence and REMAND this case to the district court for resentencing.
07a0116p.06	2007/03/30	Thomas v. Unknown Eby     Western District of Michigan at Marquette KAREN NELSON MOORE, Circuit Judge. Inmate Jerald Thomas filed this 42 U.S.C. § 1983 action alleging that a prison guard retaliated against him for exercising his First Amendment rights. The district court concluded that if Thomas won his case, the victory would shorten his period of custodial detention. Accordingly, the district court concluded that the habeas exception to § 1983 barred Thomas’s complaint, which the district court dismissed sua sponte. Because a victory for Thomas would have at most the potential to decrease his period of detention and because Thomas has alleged adequately the elements of a First Amendment retaliation claim, we REVERSE the district court’s judgment and REMAND this case for further proceedings.
07a0117p.06	2007/03/30	Leffman v. Sprint Corporation     Northern District of Ohio at Toledo KAREN NELSON MOORE, Circuit Judge. In this employment discrimination suit, Plaintiff- Appellant Linda Leffman (“Leffman”) alleges that Defendant-Appellee Sprint Corporation (“Sprint”) violated Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., by denying her, in calculating her years of service at the time of her termination in 2000, credit for time that she spent on maternity leave in 1976. The district court granted summary judgment in favor of Sprint, and Leffman now appeals. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0118p.06	2007/03/30	Bridgeport Music Inc v. Universal-MCA Music     Middle District of Tennessee at Nashville RONALD LEE GILMAN, Circuit Judge. Bridgeport Music, Inc. and Southfield Music, Inc. (collectively, Bridgeport) filed suit against approximately 800 defendants involved in the record and music-publishing business, alleging various claims of copyright infringement. After conceding the weakness of its claims against the 20 defendants named in this appeal (collectively, the appellants), but not before the parties had expended significant time and money in discovery and other forms of trial preparation, Bridgeport moved to voluntarily dismiss without prejudice its actions against them. The appellants agreed to the dismissals, but asked the district court to impose reasonable “terms and conditions” in entering the judgment, specifically in the form of attorney fees. In nearly identical, three-sentence orders granting the voluntary dismissals without prejudice, the district court failed to provide any reason for its decision to deny the appellants’ request. It instead ordered “each party to bear its own attorneys’ fees and costs.” For the reasons set forth below, we VACATE the judgment of the district court and REMAND the case for a more detailed order specifically addressing the appellants’ request for reasonable terms and conditions relating to the dismissal of Bridgeport’s complaints.
07b0005p.06	2007/03/30	In re: Mark Taranto v.     Northern District of Ohio at Akron JAMES D. GREGG, Bankruptcy Appellate Panel Judge. DaimlerChrysler Services North America LLC (“Appellant”) appeals the bankruptcy court’s order overruling its objection to confirmation of Mark and Kimberly Taranto’s (“Debtors”) proposed second amended chapter 13 plan. The plan provides for payment of the full principal amount of the Appellant’s secured claim approximately 45 months sooner than provided for in the contract and for payment of interest at the contract rate of zero percent. The Appellant asserts it is entitled to prime-plus interest in accordance with Till v. SCS Credit Corp., infra. The Appellant’s claim is secured by a vehicle purchased for the Debtors’ personal use within 910 days prior to the bankruptcy filing. The bankruptcy court overruled the Appellant’s objection to the Debtors’ plan determining that the application of Till, infra, would result in an unfair diminution in the distribution to the Debtors’ unsecured creditors thereby giving an unjustified windfall to the Appellant. For the reasons that follow, the bankruptcy court’s order is REVERSED and REMANDED.
07b0006p.06	2007/03/30	In re: Lebovitz v.     Western District of Tennessee at Memphis JAMES D. GREGG, Bankruptcy Appellate Panel Judge. In this chapter 7 case, the Debtor appeals the bankruptcy court’s order granting the Trustee’s motion for turnover and sustaining the Trustee’s objection to the exemption claimed by the Debtor in five pieces of jewelry. The Debtor claims the jewelry is exempt as “necessary and proper wearing apparel” pursuant to Tennessee Code Annotated § 26-2-104. For the reasons that follow, the bankruptcy court’s order is AFFIRMED.

Argument Calendar Sessions for 2007

The United States Court of Appeals for the Sixth Circuit has posted the 2007 Court Session Calendar for the arguments to be held in Cincinnati, Ohio.  Sorry, I missed it, but here it is now.

And click HERE for the current argument calendar (usually reposted the first few days of each month).

6th Cir. Published Decisions Week of Mar. 19 - 23, 2007 (4 Ky Decisions)

Opinion	Pub Date	Short Title/District
07a0105p.06	2007/03/20	USA v. Hardin     Western District of Kentucky at Louisville BOYCE F. MARTIN, JR., Circuit Judge. Petitioner Corey Hardin was indicted in district court for several drug trafficking offenses. He pled guilty to each of the nine counts brought against him, and was sentenced to 168 months imprisonment in September of 1999. His attorney neglected to bring a direct appeal, although Hardin now claims that it was his desire to do so.
07a0106p.06	2007/03/21	Cook v. Comm Social Security     Eastern District of Kentucky at Covington RONALD LEE GILMAN, Circuit Judge. Elbridge Cook, Jr. appeals from the district court’s dismissal of his complaint for Social Security benefits as untimely filed. The sole issue before us is whether Cook’s complaint was filed on the last day of his 60-day window to appeal or one day beyond the close of that period. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0107p.06	2007/03/21	Baptist Physician v. Humana Military     Eastern District of Tennessee at Knoxville Contract dispute re: Tricare provider fees
07a0108p.06	2007/03/22	Oakwood v. State Bank and Trust     Northern District of Ohio at Toledo COOK, Circuit Judge. This case requires us to decide whether intervention by the Federal Deposit Insurance Corporation (FDIC) in a suit between nondiverse parties raising state law claims can create federal jurisdiction, even though it had not been a party in state court prior to removal. Holding that it cannot, we reverse.
07a0109p.06	2007/03/22	Welshans v. Aetna Life Ins Co     Western District of Tennessee at Memphis Indemnity provisions of health care plan for treatment to child claimed to be no longer dependent
07a0110p.06	2007/03/22	Foley v. Parker     Eastern District of Kentucky at London COOK, Circuit Judge. Petitioner Robert Carl Foley was convicted of murder in Kentucky and sentenced to death. After a lengthy appellate process in the Kentucky courts, Foley filed a habeas petition raising thirty-six separate grounds for relief. The district court reviewed and denied each one, but granted a Certificate of Appealability (COA) as to four of Foley’s claims. Upon Foley’s request, we expanded the COA to include a fifth claim. For the reasons set forth below, we affirm the district court’s judgment.
07a0111p.06	2007/03/23	Alpert v. USA     Northern District of Ohio at Cleveland JULIA SMITH GIBBONS, Circuit Judge. Appellants Martin and Carolyn Alpert appeal the district court’s grant of summary judgment to appellee United States because the Alperts failed to present evidence of an essential element of their claim for refund of overpaid taxes. The Alperts argue that they have presented sufficient evidence to create a disputed issue of material fact as to when the debts of their wholly-owned subchapter S corporation were discharged in bankruptcy. For the reasons stated below, we affirm the decision of the district court.
07a0112p.06	2007/03/23	USA v. Trejo-Martinez     Western District of Kentucky at Louisville JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Ramiro Trejo-Martinez (“Trejo”) appeals the sentence imposed by the district court for his illegal reentry into the United States following deportation in violation of 8 U.S.C. § 1326(a), (b)(2). The government argues that we are without jurisdiction to hear Trejo’s appeal because the district court imposed a sentence within the now advisory guidelines and Trejo does not challenge the district court’s underlying guidelines calculations. As the government notes, we have not, as yet, identified explicitly the jurisdictional basis for our review of sentences imposed within a correctly calculated guidelines range. We hold today that in light of United States v. Booker, 543 U.S. 220 (2005), 18 U.S.C. § 3742(a) provides the necessary jurisdiction for our review of Trejo’s sentence. Accordingly, we reject the government’s argument that we are without jurisdiction to hear the instant appeal. However, because we further conclude that the sentence imposed by the district court was reasonable, we affirm the decision of the district court.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION OPINIONS
KENTUCKY CASES ONLY
 

Opinion	Pub Date	Short Title/District
07a0203n.06	2007/03/20	Abercrombie v. US Dept Agri     Eastern District of Kentucky at Covington
07a0207n.06	2007/03/21	Lichtefeld v. Mactec Engr     Western District of Kentucky at Louisville
07a0216n.06	2007/03/23	Cunningham v. Osram Sylvania     Eastern District of Kentucky at Lexington

6th Cir. Published Decisions Week of Mar. 12 - 16, 2007 (3 Ky Decisions)

Opinion	Pub Date	Short Title/District
07a0097p.06	2007/03/13	Caremark Inc v. Goetz     Middle District of Tennessee at Nashville Third party reimbursement Medicaid reimbursement and insurance plans
07a0098p.06	2007/03/14	Boykin v. Van Buren Township     Eastern District of Michigan at Detroit 1983 action and false arrest over $5.00 shoplifting
07a0099p.06	2007/03/14	Dixon v. Gonzales, et al     Eastern District of Michigan at Detroit Administrartive law: exhaustion of remedies and denied reinstatement as FBI agent
07a0100p.06	2007/03/15	USA v. Bolden     Western District of Tennessee at Memphis Criminal sentencing and Booker enhancement
07a0101p.06	2007/03/16	Stockman v. Oakcrest Dent, et al     Eastern District of Michigan at Detroit FRE 408 and admissibility of settlement offer
07a0102p.06	2007/03/16	Brown v. Earthboard Sports     Eastern District of Kentucky at Covington Preemption, National Security Markets Improvement Act and Kentucky Blue Sky Laws BOGGS, Chief Judge. Plaintiff-Appellant Clinton Brown, a wealthy businessman, made a risky investment in the securities of a small privately-held California company called Earthboard Sports USA (“Earthboard”). He was induced to embark on such a course of action by the “tip” he had received from Defendant-Appellee Jeffrey Vaughn, an acquaintance and financial advisor who considered Brown to be a prospective client, that a large public company was about to acquire Earthboard on extremely, even ridiculously, favorable terms. However, the promised acquisition turned out to be an entirely fictitious creation of Earthboard’s president, one Hugh Jeffreys, a felon. When the truth was finally revealed, Brown and many others lost their investments. Brown then sued Earthboard, Jeffreys, Vaughn, and Vaughn’s employer Lincoln Financial Advisors Corp. (“Lincoln”) in federal court, claiming a variety of federal and state securities violations. The district court entered default judgment against Earthboard and Jeffreys. Subsequently, the district court granted summary judgment in favor of Vaughn and Lincoln. Relevant to the appeal before us now, the district court held that (1) Brown’s complaint that the parties had sold him unlawfully unregistered shares under Kentucky’s Blue Sky law was preempted by the National Securities Markets Improvement Act of 1996, Pub. L. No. 104-290, 110 Stat. 3416 (“NSMIA”), because the securities had been sold “pursuant to” a valid federal registration exemption; and (2) Brown did not adduce sufficient evidence to create a genuine issue of material fact with respect to two vital elements of a securities fraud suit: scienter and loss causation. Brown filed a timely notice of appeal. For the reasons stated below, we reverse the district court with respect to the claims against Vaughn, but affirm summary judgment in favor of Lincoln.
07a0103p.06	2007/03/16	In Re: Renato Acosta v.     Eastern District of Kentucky at Covington Pro se appeal regarding multiple motions to vacate sentence
07a0104p.06	2007/03/16	Crosby v. Rohm & Haas Co     Western District of Kentucky at Louisville ERISA disclosure requirements SUTTON, Circuit Judge. Amanda Crosby filed this lawsuit against Rohm and Haas under the Employee Retirement and Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., seeking to recover benefits allegedly owed to her as a beneficiary of her father’s life insurance policy with the company. She also sought monetary penalties from the company because it allegedly violated ERISA’s disclosure requirements. The district court granted summary judgment for Rohm and Haas, reasoning that Crosby received all of the life insurance benefits she was due and that the company’s conduct did not warrant monetary penalties. We affirm.

6th Cir. Published Decisions for Week of Mar. 5 - 9, 2007

Opinion	Pub Date	Short Title/District
07a0090p.06	2007/03/05	Corrigan v. US Steel Corp     Northern District of Ohio at Cleveland AGE DISCRIMINATION; OHIO LAW: retired employees failed to make claim; SJ affirmed
07a0091a.06	2007/03/06	Petty v. Franklin Cnty Oh     Southern District of Ohio at Columbus 1983 claim  failed for denial of medical treatment
07a0092p.06	2007/03/06	USA v. Howse     Middle District of Tennessee at Nashville CRIMINAL:  Sentencing guidelines under Booker
07a0093p.06	2007/03/07	Ben Hamida v. Gonzales     Board of Immigration Appeals ASSYLUM:  Affirmed denial of assylum
07a0094p.06	2007/03/08	USA v. Dixon     Middle District of Tennessee at Cookeville Guilty plea; claim that lawyer misinformed defendant on punishment rejected
07a0095p.06	2007/03/09	USA v. Bridgewater     Western District of Tennessee at Memphis CRIMINAL:  Sentencing guidelines under Booker
07a0096p.06	2007/03/09	Bowen v. Comm Social Security     Eastern District of Kentucky at Pikeville SOCIAL SECURITY DISABILITY:  Remanded regarding denial of SSD on retained functional capacity issues

6th Cir. Published Decisions for Week of Feb. 26 - Mar. 2, 2007

 

Opinion	Pub Date	Short Title/District
07a0078p.06	2007/02/26	Koulta v. Center Line     Eastern District of Michigan at Flint TORTS: 1983 Action against police rejected claiming they let inebriated driver go who caused mva
07a0079p.06	2007/02/26	Alizoti v. Gonzales     Northern District of Ohio at Youngstown IMMIGRATION:  Reopening
07a0080p.06	2007/02/26	Adrian Energy, et al v. MI Pub Serv, et al     Western District of Michigan at Lansing JURISDICTION:  Contractual and public utility dispute in Mich.
07a0081p.06	2007/02/27	USA v. Barnwell     Eastern District of Michigan at Detroit CRIMINAL:  Claimed ex parte communications between prosecutor and judge
07a0082p.06	2007/02/27	Smith Whsle Co v. R.J. Reynolds     Eastern District of Tennessee at Greeneville CLAYTON ACT: Price discrimination
07a0083p.06	2007/02/27	Union Planters Bank v. Cont Cslty Co     Western District of Tennessee at Memphis INSURANCE:  Bank's loss from fraud and question of insurance coverages (TN)
07a0084p.06	2007/02/28	Keweenaw Bay Indian v. Rising, et al     Western District of Michigan at Marquette TAXATION:  Incidence of MICH. excise tax and India territory
07a0085p.06	2007/03/02	Cooey v. Taft     Southern District of Ohio at Columbus DEATH PENALTY CASE
07a0086p.06	2007/03/02	Natl Parks v. TVA     Eastern District of Tennessee at Knoxville CLEAN AIR ACT:  Statute of limitations
07a0087p.06	2007/03/02	Bd Ed Fayette v. L. M.     Eastern District of Kentucky at Lexington AMERICANS WITH DISABILITIES ACT: RONALD LEE GILMAN, Circuit Judge. This appeal is brought by a child with a disability within the meaning of the Individuals with Disabilities Education Act (IDEA). For the reasons set forth below, we AFFIRM the judgment of the district court insofar as it upheld the hearing officer’s determination regarding the extent of the School District’s violation of the DEA, but REVERSE the court’s affirmation of the compensatory-education award and REMAND the case with instructions to have the appropriate administrative body craft a remedy that complies with the IDEA.
07a0088p.06	2007/03/02	USA v. Rice     Western District of Kentucky at Louisville SEARCH AND SEIZURE:  Wiretap KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant United States of America (“the government”) brings this interlocutory appeal challenging an order to suppress the fruits of a wiretap used in the government’s case against the Defendants-Appellees, and an order denying the government’s motion for reconsideration. Because the district court did not err in suppressing the fruits of the wiretap, and because there is no good-faith exception for warrants obtained pursuant to Title III of the Omnibus Crime Control and Safe Streets Act, codified as 18 U.S.C. §§ 2510 et seq. (“Title III”), we AFFIRM the district court’s orders.
07a0089p.06	2007/03/02	USA v. Husein     Eastern District of Michigan at Detroit CRIMINAL:  Probation, downward departure and extraordinary family circumstances