Sixth Circuit Cases

May 21-25, 2007 6th Cir. Published Decisions (No Ky. Decisions)

Opinion	Pub Date	Short Title/District
07a0184p.06	2007/05/21	Chicago Title v. Magnuson     Southern District of Ohio at Columbus DAMAGES: COMPENSATORY AND PUNITIVE EDMUNDS, District Judge. The numerous questions presented in this appeal concern a covenant not to compete and the resulting jury verdict awarding compensatory and punitive damages to Plaintiff-Appellee Chicago Title Insurance Corporation (“Chicago Title”) for Defendant- Appellant James Magnuson’s breach of the agreement and Defendant-Appellant First American Title Insurance Company’s (“First American’s”) tortious interference with this agreement. On January 25, 2005, a jury found Magnuson and First american liable for breaching the covenant and for tortious interference and awarded compensatory and punitive damages totaling over $43 million. The district court denied several post-trial motions and upheld the verdict in its entirety. * * * we AFFIRM in part, REVERSE in part, and REMAND this case to the district court for a new trial on compensatory damages consistent with this opinion.
07a0185p.06	2007/05/22	Jaber v. Gonzales     Board of Immigration Appeals IMMIGRATION ROGERS, Circuit Judge. This appeal concerns two final Board of Immigration Appeals determinations that impact Ali Jaber’s right to remain in the United States. The first determination involves the BIA’s initial decision on Jaber’s removal from the United States, while the second final determination concerns the BIA’s subsequent decision not to reopen its initial decision on removal. In his habeas petition, Jaber petitioned the district court to review the BIA’s final determination to remove him and, arguably, the IJ’s decision not to reopen. The district court, pursuant to the REAL ID Act, converted Jaber’s habeas petition into a petition for review only of the original BIA final determination on removal. On appeal, however, Jaber challenges only the BIA’s final determination not to reopen, a final decision for which he never filed a petition for review and a decision that remains outside of the scope of the district court’s limited transfer of the case to this court. Because Jaber has not filed a petition for review of the BIA’s final determination on whether to reopen and because the district court did not transfer Jaber’s challenge to the BIA’s final determination on whether to reopen, we cannot review Jaber’s arguments as to the merits of the BIA’s most recent decision, and we deny Jaber’s petition for review.
07a0186p.06	2007/05/22	Peete v. Metro Gvt Nashville     Middle District of Tennessee at Nashville CIVIL RIGHTS CLAIM 1983; GOV'T IMMUNITY MERRITT, Circuit Judge. In this wrongful death action, five individual defendants were sued in their individual capacities — all of whom were firefighters, paramedics and emergency medical technicians employed by the Metropolitan Government of Nashville, Tennessee — and they now appeal the district court’s order denying their motion to dismiss the plaintiff’s § 1983 complaint on the basis of “qualified immunity.” We review the order on the pleadings de novo. The plaintiff, who is decedent’s next of kin, alleges that the defendants violated decedent Frederico Becerra, Jr.’s Fourth Amendment rights in the course of administering requested medical aid during an ongoing epileptic seizure. Specifically, the plaintiff claims that defendants, who were answering a 911 call, used excessive force in restraining Becerra and refused him appropriate medical attention when he was in an unconscious epileptic state. Becerra had, according to the complaint, “fallen next to the home’s refrigerator” where his “grandmother was unable to lift her grandson to his feet.” We find no case authority holding that paramedics answering a 911 emergency request for help engage in a Fourth Amendment “seizure” of the person when restraining the person while trying to render aid. Hence there is no “clearly established law” creating federal liability for a constitutional tort under these circumstances. The district court, therefore, erred in failing to grant qualified immunity to the paramedics.
07a0187p.06	2007/05/22	USA v. Tackett     Western District of Tennessee at Jackson SEARCH AND SEIZURE COOK, Circuit Judge. Thomas Russell Tackett appeals his sentence of two years’ probation for possession of an unregistered silencer, possession of a silencer not identified by a serial number, and possession of an unregistered short-barreled rifle in violation of 26 U.S.C. §§ 5841, 5861(d), 5861(i), and 5871. Tackett claims that the district court erred in denying his Motion to Suppress because the warrantless search of his bags revealing the firearm and paraphernalia did not constitute a proper inventory search. We disagree, finding that the search was reasonable for substantially the same reasons that the district court articulated.
07a0188p.06	2007/05/23	USA v. Brika     Southern District of Ohio at Columbus SENTENCING:  BOOKER In a prior appeal, we affirmed Brika’s conviction on the § 875(a) violation but remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). See United States v. Brika, 416 F.3d 514 (6th Cir. 2005). On remand, the district court sentenced Brika to a lesser term, 156 months of imprisonment. Brika now appeals his lower sentence. We affirm.
07a0189p.06	2007/05/23	In re: DSC, Ltd. v.     Eastern District of Michigan at Detroit INVOLUNTARY BANKRUPTCY FORESTER, Senior District Judge. This litigation arose from an amended petition for involuntary bankruptcy filed by the Plaintiffs-Appellants, Riverview Trenton Railroad Company (“RTRR”) and Crown Enterprises, Inc. (“Crown”), and two other entities against DSC, Ltd. (“DSC”). The bankruptcy court ultimately dismissed the amended involuntary petition due to the lack of a sufficient number of qualified creditors under 11 U.S.C. § 303(b)(1). Relying on 11 U.S.C. § 303(c) which allows joinder at any time “before the case is dismissed,” RTRR and Crown argue that the bankruptcy court erred by establishing and enforcing a joinder deadline which resulted in the exclusion of an additional petitioning creditor. RTRR and Crown also argue that the bankruptcy court erred in determining that they did not qualify as petitioning creditors under § 303(b)(1). For the reasons set forth below, the decision of the bankruptcy court, subsequently affirmed by the district court, will be AFFIRMED.
07a0190p.06	2007/05/24	Rogers v. Comm Social Security     Northern District of Ohio at Cleveland SOCIAL SECURITY DAVID L. BUNNING, District Judge. In this appeal, we are asked once again to consider the substantive and procedural requirements of the Social Security Act and the regulations of the Social Security Administration. Specifically, we must evaluate the Commissioner’s decision denying disability benefits to a claimant who alleges she suffers from pain and other symptoms associated with fibromyalgia and rheumatoid arthritis. In doing so, we examine whether the Commissioner adequately reviewed the case record and did so using the correct legal standards, thereby resulting in substantial evidence to support the denial of benefits. For the following reasons, we hold that the Commissioner did not, and therefore reverse the judgment of the district court and remand this matter for further findings.
07a0191p.06	2007/05/24	USA v. Campbell     Northern District of Ohio at Youngstown SEARCH AND SEIZURE; INVESTIGATORY STOP; AUTOMOBILE SEARCH; PC TO ARREST RONALD LEE GILMAN, Circuit Judge. Steven G. Campbell was indicted on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was found in possession of both a handgun and quarter-ounce-size bags of marijuana after a police officer arrested him and searched his car incident to the arrest. The key issues on appeal are (1) whether the initial interaction between the police officer and Campbell was a consensual encounter or an involuntary detention, and (2) did the officer have probable cause to arrest Campbell at the point that Campbell was “seized” for Fourth Amendment purposes. Campbell moved to suppress the evidence obtained during his arrest, contending that the evidence was inadmissible because it resulted from an unreasonable seizure. The district court granted the motion, which prompted the government to file this interlocutory appeal. For the reasons set forth below, we REVERSE the district court’s grant of Campbell’s motion to suppress and REMAND the case for further proceedings consistent with this opinion.
07a0192p.06	2007/05/24	Van Hook v. Anderson     Southern District of Ohio at Columbus RIGHT TO COUNSEL:  EDWARDS RULE McKEAGUE, Circuit Judge. Following the arrest of a suspect, the police advise him of his rights outlined in Miranda v. Arizona, 384 U.S. 436 (1966). The suspect asks for a lawyer. Under Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), all questioning must then stop (a) until a lawyer has been provided, or (b) unless the suspect “himself” initiates a discussion. Later, police talk to the suspect’s mother (or a close friend, sibling, etc.), and, based on that conversation, they believe that the suspect now wants to talk with them without a lawyer. Are they permitted to approach the suspect and inquire whether he now wants to talk, based solely on the discussion with the mother? Or, rather, are they precluded from acting on that information because it was not communicated to them directly by the suspect? Today we join several of our sister circuits in holding that the police can make the limited inquiry without running afoul of Edwards. * * * The Constitution protects a suspect from official coercion—it does not protect a suspect from himself or his mother. Van Hook asked for a lawyer but later changed his mind and wanted to talk with the police, as he had the right to do. Whether he then directly told the police himself that he changed his mind or instead indirectly communicated it through his mother and subsequently confirmed it himself is of no constitutional moment. We AFFIRM the district court’s denial of habeas relief to Van Hook on the claim that his statement should have been suppressed.
07a0193p.06	2007/05/24	Ford Mtr Co v. Mustangs Unlimited     Eastern District of Michigan at Detroit CIVIL PROCEDURE: MOTION TO SET ASIDE CONSENT JUDGMENT KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Mustangs Unlimited, Inc. (“Mustangs”) appeals the district court’s order granting Plaintiff-Appellee Ford Motor Company’s (“Ford”) motion to set aside a consent judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). For the reasons set forth below, we VACATE the order of the district court and REMAND this case for further proceedings consistent with this opinion.
07a0194p.06	2007/05/25	USA v. Johnson     Southern District of Ohio at Cincinnati SEARCH AND SEIZURE; KNOCK AND ANNOUNCE DAVID M. LAWSON, District Judge. Defendant Michael D. Johnson appeals his convictions and sentences for distributing cocaine and possession of ammunition by a convicted felon on the following grounds: the fruits of a warrantless search should have been suppressed because the officers violated the knock-and-announce rule; the district court erred in admitting opinion testimony by a police officer that the defendant was engaged in drug trafficking; and the district court failed to provide any explanation for the defendant’s sentence. We conclude that the search of Johnson’s home and seizure of evidence were not illegal; the admission of the police officer’s expert opinion testimony does not amount to plain error; and the district court failed to provide an explanation on the record for its sentence. Therefore, we will affirm the defendant’s convictions, vacate the sentences, and remand for resentencing.
07a0195p.06	2007/05/25	USA v. Gardner     Middle District of Tennessee at Cookeville CRIMINAL SENTENCING ROSE, District Judge. On May 19, 2005, Travon Gardner was convicted in the United States District Court for the Middle District of Tennessee on four counts: (1) conspiracy to possess, with intent to distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. § 846; (2) aiding and abetting the attempt to possess, with intent to distribute, five or more kilograms of cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2; (3) aiding and abetting the possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2; and (4) aiding and abetting a felon in the possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 2. Gardner received concurrent sentences of 240 months of imprisonment for the first two offenses and a 60-month consecutive sentence on the third offense. On the fourth offense, Gardner received a sentence of 120 months of imprisonment, which was to run concurrently with his 240-month sentences on the first two convictions. Gardner’s total sentence was 300 months of imprisonment. Gardner filed a motion for a new trial, which was denied by the district court. He then appealed his conviction to this court. For the following reasons, we AFFIRM Gardner’s convictions on the first three counts and REVERSE on the final count. Because Gardner’s sentence of 300 months will remain the same despite the reversal of one of his convictions, we AFFIRM Gardner’s sentence and decline to remand the case to the district court for resentencing.

6th Cir. Published Decisions for Week of May 14-18, 2007 (2 Ky Cases)

 

Opinion	Pub Date	Short Title/District
07a0171p.06	2007/05/14	Valentine v. USA     Western District of Michigan at Grand Rapids CRIMINAL: SENTENCING COOK, Circuit Judge. Jimmy Ray and Kenneth Valentine were convicted of conspiring to possess and distribute cocaine powder and crack cocaine. They now raise numerous challenges to their convictions pursuant to 28 U.S.C. § 2255. The Valentines, jointly and severally, make a number of arguments based on United States v. Booker, 543 U.S. 220 (2005). Largely for reasons this court articulated in Humphress v. United States, 398 F.3d 855 (6th Cir. 2005), these claims fail. Petitioners also make a number of ineffective-assistance claims, all but one of which lack merit. On that ground, we reverse and hold that Jimmy Ray Valentine is entitled to an evidentiary hearing to determine whether his trial counsel thwarted his efforts to accept a plea bargain. We affirm the district court on all other grounds.
07a0172p.06	2007/05/15	Mitchell v. McNeil     Western District of Tennessee at Memphis SUBSTANTIVE DUE PROCESS SUTTON, Circuit Judge. At the heart of this dispute is the claim that the City of Memphis, several of its agencies and several of its police officers violated the substantive due process rights of Daniel Mitchell when they permitted a police officer to loan a personal vehicle to an informant who subsequently collided with—and killed—Mitchell while driving the vehicle. The district court concluded that the allegations did not state a cognizable substantive due process claim, and we agree.
07a0173p.06	2007/05/15	NetJets Aviation v. Intl Brotherhood     Southern District of Ohio at Columbus LABOR LAW:  Discharge pilot ROGERS, Circuit Judge. This case arises from NetJets’ discharge of a pilot employed by the company. The pilot’s employment was terminated after NetJets learned that he had made a video depicting a pilot shooting a rifle at a DVD produced by NetJets that promoted a tentative agreement between NetJets and its pilots’ union. The union grieved the termination, and the System Board of Adjustment (“the Board”) ordered NetJets to reinstate the pilot. NetJets sought an order from the district court vacating the award, arguing that the award violated public policy. The district court held that public policy review is not permitted under the Railway Labor Act (“RLA”) and enforced the award. We affirm on the alternative ground that, assuming without deciding that public policy review is permitted under the RLA, the award at issue does not violate any public policy that conceivably could warrant vacating an RLA arbitration award. For the foregoing reasons, the judgment of the district court denying NetJets’ motion for summary judgment and granting summary judgment to the union is AFFIRMED.
07a0174p.06	2007/05/15	Henley v. Bell     Middle District of Tennessee at Nashville CRIMINAL: COOK, Circuit Judge. Petitioner Steve Henley was convicted of two counts of murder and aggravated arson in violation of Tennessee law and was sentenced to death. He filed a petition for habeas corpus that alleged twenty-one errors in the state-court proceedings. The district court denied the petition, but granted a Certificate of Appealability (COA) as to one issue, and we permitted Henley to expand the COA to include five additional claims. For the reasons set forth below, we affirm the judgment of the district court.
07a0175p.06	2007/05/15	USA v. Borho     Western District of Kentucky at Louisville CRIMINAL: SENTENCING RONALD LEE GILMAN, Circuit Judge. Norman Borho pled guilty to three counts of distributing child pornography in interstate commerce, in violation of 18 U.S.C. § 2252(a)(1), and to one count of receiving child pornography that had traveled in interstate commerce, in violation of 18 U.S.C. § 2252(a)(2). The applicable United States Sentencing Guidelines called for a sentence of between 210 and 262 months of imprisonment, but the district court imposed a sentence of only 72 months. On appeal, the government argues that the sentence should be vacated and remanded for resentencing because such a large downward variance from the Guidelines range in this case is substantively unreasonable. We agree. The judgment of the district court is therefore VACATED and REMANDED for resentencing for the reasons set forth below.
07a0176p.06	2007/05/15	Bach v. First Union Natl Bk     Southern District of Ohio at Dayton FAIR  CREDIT REPORTING ACT REMITTITUR JULIA SMITH GIBBONS, Circuit Judge. Following trial, a jury determined that defendant-appellant First Union National Bank (FUNB) breached certain provisions of the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681-1681x, and awarded $400,000 in compensatory damages and $2,628,600 in punitive damages to plaintiff-appellee, Dorothy Bach. FUNB appealed, claiming, among other things, that the punitive damages award was excessive and in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We agreed and accordingly remanded to the district court for either remittitur or a new trial on punitive damages. The district court offered Bach the choice between a $400,000 reduction in the punitive damages award or a new trial, and Bach chose the former. FUNB appealed. For the reasons below, we reverse the judgment of the district court and direct it to enter an order of remittitur not to exceed $400,000 in punitive damages.
07a0177p.06	2007/05/16	Cooper v. Life Ins Co     Eastern District of Tennessee at Chattanooga ERISA:  DISABILITY BENEFITS RONALD LEE GILMAN, Circuit Judge. Becky Cooper appeals from an adverse judgment in her suit for long-term disability insurance benefits. Her employer’s plan is subject to the provisions of the Employee Retirement and Income Security Act (ERISA). Because we conclude that the decision of Life Insurance Company of North America (LINA), the plan administrator, to deny long-term disability benefits to Cooper was arbitrary and capricious, we REVERSE the judgment of the district court and REMAND the case for entry of an order requiring LINA to award benefits retroactive to the date on which Cooper’s short-term disability benefits ceased, and for such incidental relief as the district court may find appropriate in light of our decision.
07a0178a.06	2007/05/17	Foley v. Parker     Eastern District of Kentucky at London HABEAS CORPUS: DEATH PENALTY 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.
07a0179p.06	2007/05/17	Garcia v. Andrews     Northern District of Ohio at Cleveland NEW TRIAL: JUROR MISCONDUCT RONALD LEE GILMAN, Circuit Judge. Angela Garcia was convicted in an Ohio state court of aggravated murder, aggravated arson, and insurance fraud in connection with the deaths of her two young daughters as a result of a fire that she set in her home in order to collect insurance proceeds. She was sentenced to life imprisonment with the possibility of parole after 20 years.  After exhausting her direct appeals in state court, Garcia petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising seven assignments of error. The district court denied the petition, but granted a Certificate of Appealability on the issue of whether the trial court’s failure to investigate Garcia’s allegations of juror misconduct warranted a new trial. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0180p.06	2007/05/18	Mapouya v. Gonzales     Board of Immigration Appeals IMMIGRATION DAN AARON POLSTER, District Judge. Blaise Mapouya petitions for judicial review of an order rendered by the Board of Immigration Appeals (“BIA”) denying his application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment (“The Convention” or “Convention”). For the reasons set forth below, we VACATE and REMAND this case to the BIA for further proceedings.
07a0181p.06	2007/05/18	USA v. Arnold     Western District of Tennessee at Memphis CRIMINAL:  CONFRONTRATION CLAUSE SUTTON, Circuit Judge. Joseph Arnold challenges his felon-in-possession-of-a-firearm conviction, contending that the evidence does not support the verdict, that the district court violated his Confrontation Clause rights by admitting testimonial hearsay and that the district court made several erroneous evidentiary rulings during the course of the trial. We affirm.
07a0182p.06	2007/05/18	Bachman v. Bagley     Northern District of Ohio at Akron HABEAS CORPUS: UNTIMELY McKEAGUE, Circuit Judge. Ronald Dale Bachman appeals the district court’s decision that his petition for a writ of habeas corpus was untimely, arguing that his adjudication as a sexual predator under Ohio law effectively reopened the judgment against him and restarted the statute of limitations period. For the reasons that follow, we affirm.
07a0183p.06	2007/05/18	Durr v. Mitchell     Northern District of Ohio at Cleveland HABEAS CORPUS SUHRHEINRICH, Circuit Judge. Petitioner-Appellant Darryl Durr, an Ohio death row inmate, appeals from the order of the United States District Court for the Northern District of Ohio, Eastern Division, denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. On appeal, Durr challenges the district court’s: (1) procedural default rulings; (2) denial of his Sixth Amendment claim that the trial court failed to appoint an independent psychologist; (3) denial of his ineffective assistance of counsel claim; and (4) denial of the sufficiency of evidence claim. For the reasons that follow, we AFFIRM the opinion of the district court denying Durr’s petition for a writ of habeas corpus.

6th Cir. Published Decisions for Week of May 7-11, 2007 (2 Ky Decisions)

Opinion	Pub Date	Short Title/District
07a0161p.06	2007/05/07	USA v. Buckmaster     Northern District of Ohio at Cleveland CRIMINAL:  FIREARMS; SEARCH & SEIZURE BOYCE F. MARTIN, JR., Circuit Judge. James Buckmaster pled guilty to unlawful possession of explosives—here, commercial fireworks—in violation of 18 U.S.C. § 842(a)(3)(A), after unsuccessfully moving to suppress the explosives on grounds that they were found in his basement pursuant to an illegal search. He now appeals a single issue: the district court’s denial of his motion to suppress. For the reasons outlined below, we AFFIRM.
07a0162p.06	2007/05/07	Workman v. Bredesen     Middle District of Tennessee at Nashville CRIMINAL:  EXECUTIONS SUTTON, Circuit Judge. Philip Ray Workman is scheduled to be executed by the State of Tennessee on May 9, 2007, at 1:00 a.m., for the murder of Lieutenant Ronald Oliver. On May 4, 2007, Workman filed a motion for a temporary restraining order in federal district court, claiming that the State’s three-drug protocol for implementing the death penalty violates the Eighth (and Fourteenth) Amendment, and later that day the court granted the motion. Still later that same day, the Governor of Tennessee and the other defendants filed an appeal from that order. Early today, May 7, 2007, the Governor and others filed a 19-page motion in this court to vacate the district court’s order. A little later this morning, Workman filed a 45-page brief in response. This dispute arises from a 25-year-old capital sentence, and the district court’s order, if upheld, would be Workman’s sixth stay of an execution date set by the State over the last seven years. At no point until last Friday, May 4, 2007, did Workman challenge the State’s method of execution, even though the components of the procedure that Workman challenges today have been in existence in the main since 1998. He thus cannot escape the Supreme Court’s and this court’s limitations on dilatory challenges to an execution procedure. Workman’s prospects for success on the merits also are dim. The Supreme Court has never invalidated a State’s chosen method of execution. No court has invalidated the three-drug protocol used by Tennessee (and 29 other jurisdictions). Several state and federal courts have upheld this same three-drug protocol (including the Tennessee Supreme Court in 2005). Our court vacated a similar stay decision in 2006 with respect to a similar challenge and permitted the State to execute the inmate under the protocol. Notwithstanding the decision of the Tennessee Supreme Court in 2005 and the decision of this court in 2006, the State undertook an effort in 2007 to review and improve the procedure. Workman acknowledges that the new procedure is only slightly different from the old procedure, and he offers no explanation how Tennessee has done anything more than make the new procedure less prone to implementation errors. Everything, indeed, the State has done in reviewing and revising the procedure shows that it is trying to prevent Workman from suffering any pain during his execution, not that it is trying or willing to allow a procedure that imposes unnecessary and wanton pain. For these reasons and those elaborated below, we vacate the district court’s temporary restraining order.
07a0163p.06	2007/05/08	Dunham v. USA     Western District of Michigan at Grand Rapids CRIMINAL:  INEFFECTIVE COUNSEL CLAIM MERRITT, Circuit Judge. Todd Dunham is serving a 299-month prison sentence for conspiracy to distribute marijuana, cocaine and heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846 and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In this appeal, he challenges the District Court’s denial of his motion under 28 U.S.C. § 2255 for ineffective assistance of counsel and its subsequent refusal to rule on the merits of his Rule 60(b) motion to vacate the earlier § 2255 denial. For the reasons discussed below, we affirm the decisions of the District Court.
07a0164a.06	2007/05/08	Prime Media Inc. v. Cty of Brentwood     Middle District of Tennessee at Nashville LOCAL GOVERNMENT SIGN ORDINANCE BOYCE F. MARTIN, JR., Circuit Judge. This matter is before the Court on Prime Media, Inc.’s petition for rehearing en banc. Upon consideration of the relevant briefs and the record, we vacate our prior opinion, Prime Media, Inc. v. City of Brentwood, 474 F.3d 332 (6th Cir. 2007), and replace it with this amended opinion. Prime Media filed this lawsuit to challenge a sign ordinance of the City of Brentwood, Tennessee. In a prior appeal, this Court reversed the district court’s entry of summary judgment on behalf of Prime Media, ordering the dismissal of Prime Media’s constitutional challenge as applied. On remand, the district court dismissed Prime Media’s remaining challenges to the sign ordinance on the basis of standing. Prime Media appeals that decision by the district court. For the following reasons, we affirm the district court’s decision.
07a0165p.06	2007/05/08	Thurman v. Pfizer Inc     Eastern District of Michigan at Detroit ERISA:  PREEMPTION; RETIREMENT BOYCE F. MARTIN, JR., Circuit Judge. Dr. Dale Thurman filed suit against Pfizer, alleging that Pfizer misrepresented the monthly pension to which he would be entitled after five years of employment with the company. Thurman claims that these misrepresentations induced him to leave his prior job in order to work for Pfizer. Thurman initially sued in Michigan state court for rescission and to recover either expectation damages or reliance damages. After Pfizer removed the case to federal court, the district court dismissed the case, holding that Thurman’s suit was preempted by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., which does not provide the type of relief Thurman requested. We hold that the district court correctly ruled that Thurman’s state-law claims were preempted to the extent that he requested expectation damages, which would require a calculation of plan benefits. However, we hold that the district court erred in its ruling with respect to Thurman’s request for rescission of his participation in the plan and reliance damages in the form of benefits he relinquished by leaving his prior job. These aspects of his state-law claims were not related to the plan, and were thus not preempted. Therefore, we REVERSE the district court’s dismissal of Thurman’s state-law claims to the extent that they are not related to the plan, and REMAND for further proceedings not inconsistent with this opinion.
07a0166p.06	2007/05/08	Vasquez v. Jones     Eastern District of Michigan at Detroit HABEAS CORPUS COOK, Circuit Judge. Emilio Salomon Vasquez appeals the district court’s denial of his habeas corpus petition. We reverse and remand with instructions to grant the petition.
07a0167p.06	2007/05/09	USA v. Safa     Eastern District of Michigan at Detroit CRIMINAL:  SENTENCING EVIDENCE: FOUNDATION OPINION TESTIMONY MARTHA CRAIG DAUGHTREY, Circuit Judge. The defendant, Steve Safa, was found guilty by a jury on one count of making a false declaration before a grand jury and was sentenced to serve 15 months in prison and pay a fine of $10,000. On appeal, the defendant contends that the district court admitted into evidence improper lay opinion testimony and failed to consider the necessary factors in imposing sentence. For the reasons set out below, we find no reversible error and affirm the judgment of the district court in its entirety.
07a0168p.06	2007/05/10	JBDL Corp. v. Wyeth-Ayerst Lab     Southern District of Ohio at Cincinnati SHERMAN ANTITRUST ACT JULIA SMITH GIBBONS, Circuit Judge. This litigation arose out of efforts by appellee, Wyeth-Ayerst Laboratories, Inc., to protect its market share in the oral estrogen replacement therapy market through the use of contractual agreements with third-party payer entities. Appellants, wholesale and retail purchasers, brought suit against Wyeth under § 2 of the Sherman Act, alleging that, as a result of Wyeth’s allegedly anticompetitive conduct, they were subject to increased prices on one of Wyeth’s drugs. On Wyeth’s motion, the district court granted summary judgment on appellants’ § 2 claim, and this consolidated appeal followed. For the reasons below, we affirm.
07a0169p.06	2007/05/10	Poundstone v. Patriot Coal Co     Western District of Kentucky at Owensboro DAMAGES; PREJUDGMENT INTEREST BOYCE F. MARTIN, JR., Circuit Judge. In this action for breach of contract, Defendant Patriot Coal Co. appeals certain orders entered by the district court related to the calculation of damages, and asks us to modify the law of the case by finding that a decision by a prior panel of this Court was clearly erroneous. Plaintiffs D.C. Hall, Jr., Ed Phelps, Dennis Hall, and William Poundstone cross-appeal, challenging the interest rate selected by the district court to govern the award of prejudgment interest. For the following reasons, we affirm the district court’s decisions, decline the invitation to modify the law of the case, and reverse only with regard to Plaintiffs’ crossappeal as to the prejudgment interest rate required by Kentucky law.
07a0170p.06	2007/05/11	USA v. Cherry     Western District of Kentucky at Louisville CRIMINAL:  SENTENCING ROGERS, Circuit Judge. The Government appeals the below-Guidelines sentence that the district court imposed on defendant Andy Cherry as a result of Cherry’s guilty plea to four counts of distributing child pornography, nine counts of receiving child pornography, and one count of possessing child pornography. The applicable Guidelines range called for a sentence of 210 to 262 months’ imprisonment. The district court, after considering the factors in 18 U.S.C. § 3553(a), sentenced Cherry to 120 months’ imprisonment. Because the sentence is substantively reasonable, we affirm the judgment of district court.

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.