6th Cir. Published Decisions for Week of 4/31/2007 through 5/3/2007 (1 Ky. decision)

Opinion	Pub Date	Short Title/District
07a0150p.06	2007/05/01	Toledo v. Secretary US Dept     Western District of Kentucky at Louisville LABOR LAW:  Jurisdiction SUTTON, Circuit Judge. Teodoro Toledo and Joseph Tucker claim that the United States Department of Housing and Urban Development (HUD) breached their rights under a collective bargaining agreement. Because Toledo and Tucker failed to establish the district court’s jurisdiction over their suit, we affirm.
07a0151p.06	2007/05/01	USA v. McIntosh     Western District of Michigan at Grand Rapids CRIMINAL:  Sentencing and plea agreement BOYCE F. MARTIN, JR., Circuit Judge. Defendant Joe Louis McIntosh pled guilty to being a felon in possession of a firearm and possession with intent to distribute five grams or more of cocaine base. The latter count carried a statutory minimum of sixty months’ imprisonment. The district court sentenced McIntosh to thirty months. The government now appeals, claiming that the plea agreement did not authorize the district court to depart below the statutory minimum. For the reasons below, we hold that the plea agreement authorized this sentence. Therefore, the judgment of the district court is AFFIRMED.
07a0152p.06	2007/05/01	Lindsey v. Detroit Entertain     Eastern District of Michigan at Detroit CIVIL RIGHTS: 1983 ACTION; CLASS ACTION CLAY, Circuit Judge. Plaintiffs are seven unrelated individuals who were each detained by employees of Defendant Detroit Entertainment, L.L.C., which owns and operates MotorCity Casino, for picking up allegedly abandoned tokens or credits found in Defendant’s slot machines. Plaintiffs  brought this action under 42 U.S.C. § 1983, claiming that Defendant violated their constitutional rights under color of state law when Defendant’s security personnel detained Plaintiffs. Plaintiffs also sought to represent a class of similarly situated individuals. The district court denied class certification, and granted summary judgment in favor of Defendant, holding that Plaintiffs could not demonstrate that Defendant’s actions constituted “state action” for the purpose of § 1983. For the reasons that follow, we AFFIRM the judgment of the district court.
07a0153p.06	2007/05/02	Clemens Trust v. Morgan Stanley DW     Western District of Tennessee at Memphis SECURITIES LAW R. GUY COLE, JR., Circuit Judge. The Robert N. Clemens Trust, Automobile Consumer Service Corporation, John D. Brandon, Jr., Pat F. Wakefield, and Marty D. Jackson (collectively the “Plaintiffs”) brought this class-action suit against Morgan Stanley DW, Inc. (“Morgan Stanley”). Plaintiffs allege that Morgan Stanley’s brokers recommended to Plaintiffs the purchase of unsuitable securities in violation of Section 10(b) of the Securities and Exchange Act of 1934, codified at 15 U.S.C. § 78j, and Rule 10b-5, codified at 17 C.F.R. § 240.10b-5. The Plaintiffs also brought state law claims against Morgan Stanley under Tenn. Code Ann. § 48-2-121(a), which parallels the language in Rule 10b-5, and Ala. Code § 8-6-19. The district court granted Morgan Stanley’s motion, under Rule 12(b)(6), to dismiss Plaintiffs’ complaint. For the following reasons, we AFFIRM the district court’s dismissal of Plaintiffs’ suit.
07a0154p.06	2007/05/02	Mutchler v. Dunlap Memorial Hosp     Northern District of Ohio at Akron FMLA CLAY, Circuit Judge. Plaintiff, Carla Mutchler, appeals the district court’s grant of summary judgment to Defendants, Dunlap Memorial Hospital and Kathy Loede, on her claim that Defendants violated the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq. Plaintiff’s appeal rests on two claims: first, that she met the “hours of service” requirement for purposes of FMLA eligibility; and second, that Defendants should be equitably estopped from denying her eligibility. For the reasons that follow, we AFFIRM.
07a0155p.06	2007/05/03	Kleiber v. Honda of America     Southern District of Ohio at Columbus ADA KAREN NELSON MOORE, Circuit Judge. This case stems from a tragic off-the-job accident that has diminished Michael E. Kleiber’s capacity to work. Admirably, Kleiber attempted to return to work despite his injuries. Unfortunately, he was unsuccessful. He sued his former employer, Honda of America Manufacturing, Inc. (“Honda”), alleging that it violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and related state statutes by failing to accommodate his disabilities. Finding no evidence that Kleiber could now perform any job at Honda, the district court granted Honda’s motion for summary judgment. We similarly find no evidence showing that Kleiber was capable of working at Honda, and accordingly must AFFIRM the district court’s judgment.
07a0156p.06	2007/05/04	Matthews v. Ishee     Northern District of Ohio at Cleveland CRIMINAL:  HABEAS CORPUS McKEAGUE, Circuit Judge. An Ohio jury convicted Rasheem Matthews of the murder of Wayne Price. An eyewitness and a jailhouse informant testified for the prosecution. Approximately two weeks after Matthews’s conviction and sentence, both witnesses received favorable plea bargains. According to Matthews, the witnesses had agreed to testify in exchange for these favorable pleas, and, herefore, the prosecution should have notified the defense of the preexisting deals. Because it failed to do so, Matthews argues that the prosecution violated his right to due process under Brady v. Maryland, 373 U.S. 83 (1963). The district court agreed and granted Matthews a conditional writ of habeas corpus.  As explained infra, Matthews procedurally defaulted his claim involving the jailhouse informant, and has failed to show cause for the default. On his claim involving the eyewitness, the state court concluded that there was no preexisting deal, and Matthews has not rebutted this factual finding with clear and convincing evidence. Accordingly, we reverse.
07a0157p.06	2007/05/04	Townsend v. Social Sec Admin     Eastern District of Kentucky at Lexington SOCIAL SECURITY: ATTORNEY FEES; EAJA KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Stella Townsend (“Townsend”) appeals from the district court’s order denying her application for attorney fees and expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. On remand after a previous appeal, the district court denied as untimely Townsend’s application for fees and expenses related to litigation in the district court, concluding that equitable tolling was not warranted. The district court also denied Townsend’s request for fees and expenses related to the initial appeal, concluding that Townsend was not a prevailing party for purposes of the EAJA. Because Townsend cannot collect any attorney fees or expenses if her initial fee application was not timely filed, and because the district court did not abuse its discretion by concluding that equitable tolling was not warranted, we AFFIRM the judgment of the district court.
07a0158p.06	2007/05/04	Barnes v. USA     Eastern District of Tennessee at Knoxville FEDERAL TORT CLAIMS ACT ROGERS, Circuit Judge. Karen Barnes fell when taking off her shoes before going through airport security, allegedly because of the negligence of the Transportation Security Administration (TSA) in not providing her a chair. She sued under the Federal Tort Claims Act (FTCA). The district court granted the Government summary judgment, and we affirm because Barnes has not provided sufficient evidence of negligence.
07a0159p.06	2007/05/04	Micrel, Inc. v. TRW Inc     Northern District of Ohio at Cleveland DAMAGE; INSTRUCTION RALPH B. GUY, JR., Circuit Judge. Micrel, Inc., and TRW, Inc., d/b/a Automotive Electronics Group, entered into agreements for Micrel to design and supply electronic circuits to be used in airbag passive restraint systems. After trial on their competing claims and counterclaims for breach of contract, the jury returned its verdict in favor of TRW and awarded damages in the amount of $9,282,188. Judgment was entered accordingly, and Micrel’s motion for new trial was denied. Micrel appeals from the verdict, arguing that the district court erred by (1) allowing TRW’s claim for “cover” or “expectancy” damages; (2) failing to properly instruct the jury concerning the contract claims or the proper measure of damages; and (3) refusing to give the jury interrogatories it requested. Micrel also appeals from the district court’s pretrial order granting summary judgment to TRW on Micrel’s claim of fraudulent inducement. After review of the record and the arguments presented on appeal, we affirm.
07a0160p.06	2007/05/04	Workman v. Bell     Western District of Tennessee at Memphis CRIMINAL:  STAY SILER, Circuit Judge. Philip Ray Workman seeks a stay of execution in connection with his appeal from the denial of a motion under FED. R. CIV. P. 60(b), a motion contending that the Attorney General for the State of Tennessee ("State Attorney General") perpetrated a fraud upon the district court during Workman’s habeas corpus proceedings. Because Workman has been given considerable process during the 25 years since a state court jury found that he murdered Lieutenant Ronald Oliver, because Workman cannot seriously contend that his allegations have any bearing on a claim of actual innocence given that he testified at the state court trial that he killed Lieutenant  Oliver and that he shot and injured Officer Aubrey Stoddard during the incident, see Workman v. Bell, 178 F.3d 759, 768 (6th Cir. 1998); State v. Workman, 667 S.W.2d 44, 46–47 (Tenn. 1984); State v. Workman, 111 S.W.3d 10, 12 (Tenn. Ct. Crim. App. 2002), because the claims of fraud on the court are exceedingly attenuated and vague, and because the Tennessee Court  of Criminal  Appeals has rejected the premises of two of the claims, see Workman, 111 S.W.3d at 18–20, Workman has little to no likelihood of success in showing that the district court abused its discretion in rejecting his Rule 60(b) motion. We therefore deny his motion for a stay.