Jul. 16-20, 2007 6th Circuit Published Decisions (2 Ky Cases)

Opinion	Pub Date	Short Title/District
07a0266p.06	2007/07/17	Alston v. Advanced, et al Eisenberg v. Anheuser-Busch Inc     Eastern District of Michigan at Detroit CIVIL PROCEDURE: 12(b)(6) STANDING CALICE M. BATCHELDER, Circuit Judge. In this consolidated appeal, the plaintiffs appeal the dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) of their complaints alleging that the defendants’ advertising is responsible for the underage, and therefore illegal, purchase of alcoholic beverages by the plaintiffs’ minor children. See Alston v. Advanced Brands & Importing Co., No. Civ. 05-72629, 2006 U.S. Dist. Lexis 31324, 2006 WL 1374514 (E.D. Mich. May 19, 2006); Eisenberg v. Anheuser-Busch, Inc., No. 1:04 CV 1081, 2006 U.S. Dist. Lexis 4058, 2006 WL 290308 (N.D. Ohio Feb. 2, 2006). Because we find that the plaintiffs lack standing, we vacate the district courts’ orders and remand with instructions that the complaints be dismissed for lack of jurisdiction.
07a0267p.06	2007/07/18	Renfro v. IN MI Power Co     Western District of Michigan at Grand Rapids LABOR LAW: FAIR LABOR STANDARDS ACT EXEMPTIONS COOK, Circuit Judge. This case requires us to consider for the second time whether certain American Electric Power (AEP) employees are exempt from the Fair Labor Standards Act’s (FLSA) overtime regulations. In Renfro v. Ind. Mich. Power Co. (Renfro I), 370 F.3d 512 (6th Cir. 2004), we held that the regulations did not apply to AEP planners. Applying the same analysis to AEP’s technical writers, we conclude that they too are exempt from overtime regulations. We reverse and remand with instructions to enter summary judgment in favor of AEP.
07a0268p.06	2007/07/18	RSR Corp v. Coml Metals Co     Southern District of Ohio at Dayton ENVIRONMENTAL REMEDIATION SUTTON, Circuit Judge. More than three years after signing a consent decree with the United States to pay for the environmental remediation of a contaminated industrial site in Arcanum, Ohio, RSR Corporation filed this lawsuit seeking contribution for the clean-up costs from Commercial Metals Company. Because the district court properly determined that RSR filed this contribution action after the three-year limitations period, see 42 U.S.C. § 9613(g)(3), we affirm.
07a0269p.06	2007/07/18	Doe v. MI Dept State, et al     Eastern District of Michigan at Detroit MICHIGAN CLASS ACTION SUIT RE SEX OFFENDER STATUTE RONALD LEE GILMAN, Circuit Judge. This is an appeal from the district court’s award of summary judgment to the state of Michigan in a putative class action case that challenges the constitutionality of certain provisions of the State’s Sex Offender Registration Act (SORA). The plaintiff represents one of two proposed classes of individuals who were assigned to “youthful trainee status” under the State’s Holmes Youthful Trainee Act (HYTA) for sex offenses and, under Michigan law, were then required to register as sex offenders. On appeal, the plaintiffs contend that the district court erred when it found that they had suffered no due process or equal protection violations from the requirement that they register and appear on Michigan’s Public Sex Offender Registry (PSOR). For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0270p.06	2007/07/18	Badwan v. Gonzales     Board of Immigration Appeals CONTINUANCE SUTTON, Circuit Judge. Abdulbaset Mohamad Badwan contends that the Immigration Judge, seconded by the Board of Immigration Appeals, abused his discretion in denying Badwan’s unopposed motion for a continuance to present evidence in support of his application for adjustment of status. We agree, reverse and remand for further proceedings.
07a0271p.06	2007/07/19	Helms v. Zubaty     Eastern District of Kentucky at Covington CIVIL RIGHTS 42 USC 1983 ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant, Marie Helms (“Helms”), appeals the district court’s grant of summary judgment in favor of Defendants-Appellees George Zubaty and Winslow Baker (Gallatin County, Kentucky, employees) and Brent Caldwell, Donnie Gould, and Travis Simpson (City of Warsaw, Kentucky, employees) (collectively “Defendants”), on Helms’s claims arising under 42 U.S.C. § 1983 that Defendants violated her First Amendment right of free speech. Because Helms presents no genuine issue of material fact and Defendants are entitled to judgment as a matter of law, we AFFIRM the district court’s decision.
07a0272p.06	2007/07/19	USA v. Hamad     Northern District of Ohio at Youngstown SENTENCING GUIDELINES; UNDISCLOSED EVIDENCE SUTTON, Circuit Judge. What happens when a district court, applying the advisory sentencing guidelines, not only increases a sentence based on its own fact findings but also does so on the basis of evidence never fully disclosed to the criminal defendant? One reading of Rule 32 of the Federal Rules of Criminal Procedure would authorize this procedure; another would not. Because the escalation of a sentence based on undisclosed evidence raises serious due process concerns, we construe the rule to require a sentencing court either to disclose sufficient details about the evidence to give the defendant a reasonable opportunity to respond or, failing that, to refrain from relying on the evidence. We vacate Hatem Hamad’s sentence and remand for resentencing.
07a0273p.06	2007/07/20	Travelers Indemnity v. Bowling Green Prof     Western District of Kentucky at Bowling Green JURISDICTION: INSURANCE COVERAGE DISPUTE DECLARATORY JUDGMENT ACTION GRIFFIN, Circuit Judge. In this insurance coverage dispute, Bowling Green Professional Associates (“Bowling Green”), an out-patient drug treatment facility in Kentucky, appeals a declaratory judgment and summary judgment opinion and order of the district court. The crux of 1 this declaratory judgment action is whether either of two liability policies issued to Bowling Green by two different insurers, Travelers Indemnity Company of Connecticut (“Travelers”), and Evanston Insurance Company (“Evanston”), provide coverage to Bowling Green for a wrongful-death lawsuit brought in Kentucky state court. Following Bowling Green’s demand to its insurers for litigation defense and liability indemnity, Travelers filed this action in federal district court in the Western District of Kentucky seeking a declaratory judgment of whether it owed a duty to defend or indemnify Bowling Green in the underlying state court action. Evanston cross-claimed seeking a similar declaration regarding the Caudill estate claims only. The district court exercised jurisdiction and granted the insurers’ motions for declaratory judgment. Bowling Green timely appealed. For the reasons set forth below, we hold that the district court abused its discretion in exercising declaratory judgment jurisdiction. Accordingly, we vacate the order and judgment of the district court and remand with instructions to dismiss for lack of jurisdiction.
07a0274p.06	2007/07/20	USA v. Craft     Northern District of Ohio at Youngstown SENTENCING RICHARD MILLS, District Judge. On August 26, 2004, the district court sentenced Craft. The court never engaged Craft in a 21 U.S.C. § 851(b) colloquy to determine whether he contested the prior conviction stated in the government’s April 8 tender. However, upon consideration of the applicable statutory mandatory minimum, the district court sentenced Craft to 240 months in prison and imposed a term of 10 years supervised release. Craft timely appealed, raising four issues for this Court’s consideration. AFFIRMED.
07a0275p.06	2007/07/20	USA v. Liou     Southern District of Ohio at Columbus SENTENCING KAREN NELSON MOORE, Circuit Judge. Ming Liou appeals the twelve-month sentence imposed after he pleaded guilty to a single count of bribing a public official, in violation of 18 U.S.C. § 201(b)(1)(A). In light of the United States Supreme Court’s recent decision in Rita v. United States, --- U.S. ----, 127 S. Ct. 2456 (2007), we AFFIRM the district court’s sentence.