Jun 25-29, 2007 6th Circuit Published Decisions (No Ky Cases)

Opinion	Pub Date	Short Title/District
07a0240p.06	2007/06/25	Harlamert v. World Finer Foods     Southern District of Ohio at Dayton SECURITIES; RESTRICTIONS POLSTER, District Judge. Steven Harlamert, Administrator of the Estate of his deceased father John Harlamert (the “Estate”), initiated this declaratory judgment action against World Finer Foods, Inc. (“WFF”), a closely held corporation. The Estate contends that it is permitted to freely transfer the ten shares of WFF stock owned by John Harlamert prior to his demise. WFF contends that the shares are subject to a shareholder agreement that restricts the transfer of that stock to the company. After a bench trial, the district court granted judgment in favor of the Estate. WFF appeals the district court’s factual and legal findings and conclusions. For the following reasons, we AFFIRM.
07a0241p.06	2007/06/25	Clark v. Waller     Western District of Tennessee at Memphis HABEAS CORPUS BOGGS, Chief Judge. Johnny O. Clark appeals the district court’s summary dismissal of his petition for a writ of habeas corpus. Clark was convicted of first-degree murder and, after exhausting his state post-conviction and appellate remedies, petitioned the district court under 28 U.S.C. § 2254, contending that his conviction was based on insufficient evidence, that his trial counsel was constitutionally ineffective, and that his post-conviction counsel was constitutionally ineffective. On appeal, he maintains the latter two claims, and contends that the district court erred in summarily dismissing his petition without ordering a response and reviewing the state court transcripts. We affirm.
07a0242p.06	2007/06/26	Zomba Enter v. Panorama Records     Middle District of Tennessee at Nashville COPYRIGHTS; KARAOKE KAREN NELSON MOORE, Circuit Judge. From Japan to the United States and beyond, karaoke is wildly popular. Countless people have lined up at various venues to perform their favorite songs with, and in front of, their friends. But few participants (with the possible exception of IP lawyers) ever stop to consider the intellectual property regime governing karaoke. Panorama Records, Inc. (“Panorama”), a purveyor of karaoke discs, resembles the majority of these participants. It entered the business of recording and selling karaoke discs without considering whether doing so infringed the intellectual property rights of others. Before long, this lack of foresight caught up with Panorama. This case requires us to review a district court’s entry of summary judgment in favor of, and monetary award to, a plaintiff copyright holder whose musical compositions Panorama copied on its karaoke discs. Ultimately, we conclude that the district court (1) correctly concluded that Panorama willfully infringed the plaintiffs’ copyrights, and did not abuse its discretion by (2) awarding the plaintiffs $806,000 in statutory damages, (3) denying Panorama’s motion to transfer venue, and (4) awarding the plaintiffs attorney fees. Accordingly, we AFFIRM the district court’s judgment in all respects.
07a0243p.06	2007/06/26	USA v. Hudson     Eastern District of Michigan at Detroit CRIMINAL:  INDEPENDENT CONTRACTOR SUTTON, Circuit Judge. Joseph Hudson challenges his conviction and sentence for fraudulently obtaining more than $200,000 from the River Rouge School District. We affirm. Ample evidence allowed the jury to conclude just that The two contracts gave Hudson broad authority to set up a television station in the high school. They authorized Hudson “to perform all duties, responsibilities and necessary actions required to market, develop and consult in the development of RSP-TV/35,” to “assist[] with the training of students and/or District employees” in using the television studio and to “perform[] all other such duties and responsibilities as fall[] within the purview of the positions specified” in the contract. JA 201.
07a0244p.06	2007/06/26	Parker v. General Extrusions     Northern District of Ohio at Youngstown DISCRIMINATION; GENDER; PUNITIVES MARTHA CRAIG DAUGHTREY, Circuit Judge. The plaintiff, Nancy Parker, appeals the district court’s order granting judgment as a matter of law under Rule 50(b) to the defendant, General Extrusions, Inc., on the plaintiff’s claim for punitive damages in relation to her Title VII gender discrimination suit, which she brought pursuant to 42 U.S.C. §§ 2000e-2000e-17. The jury found for the plaintiff on her hostile working environment claim and, along with compensatory damages, awarded Parker punitive damages. On motion of the defendant, however, the district court struck down the punitive damages award, holding that punitive damages were not available pursuant to 42 U.S.C. § 1981a(b)(1) because (1) only one of the employees who discriminated against Parker was a “managerial agent” of the defendant, (2) this single employee did not act with the requisite malice or reckless indifference to justify punitive damages, and (3) in any event, the defendant had made a good faith effort to comply with Title VII, thereby insulating itself from punitive damages liability. The plaintiff appeals this ruling on all three grounds. For the reasons stated below, we reverse.
07a0245p.06	2007/06/26	USA v. Crowell     Middle District of Tennessee at Nashville CRIMINAL:  SENTENCING JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Antonio D. Crowell was convicted of being a felon in possession of a firearm. At sentencing, the district court found that Crowell had three prior convictions for violent felonies and therefore qualified for an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). The court calculated Crowell’s range under the advisory Sentencing Guidelines to be 235 to 293 months and sentenced Crowell to 235 months imprisonment. Crowell appeals, asserting that: (1) the evidence presented at trial was insufficient to support his conviction; (2) the district court erred in confirming the existence of his juvenile adjudication for aggravated robbery; (3) the court’s use of his alleged juvenile adjudication as a predicate offense for purposes of the ACCA violated his due process rights; and (4) his sentence is not reasonable under 18 U.S.C. § 3553(a). For the following reasons, we affirm the conviction and the sentence of the district court.
07a0246p.06	2007/06/27	Rodriguez v. Fedex Freight East     Eastern District of Michigan at Detroit DISCRIMINATION; BANKRUPTCY KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Jose Antonio Rodriguez (“Rodriguez”) sued his former employer, Defendant-Appellee FedEx Freight East, Inc. (“FedEx”), in a Michigan state court, alleging that FedEx discriminated and retaliated against him on the basis of his race, in violation of Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), MICH. COMP. LAWS §§ 37.2101 et seq. Citing the parties’ diversity of citizenship, FedEx removed the suit to the United States District Court for the Eastern District of Michigan. Rodriguez subsequently filed for bankruptcy in the United States Bankruptcy Court for the Eastern District of Michigan (the “bankruptcy court”), and his claims became assets of the bankruptcy estate. Accordingly, when FedEx moved for summary judgment on both of Rodriguez’s claims, the district court referred the motion to the bankruptcy court for resolution. The bankruptcy court granted the motion, dismissing Rodriguez’s claims with prejudice, and the district court affirmed that judgment. Rodriguez now appeals. For the reasons set forth below, we AFFIRM IN PART and VACATE IN PART the district court’s judgment and REMAND this case for further proceedings.
07a0247p.06	2007/06/27	Thomas v. Miller, et al     Eastern District of Michigan at Detroit COBRA; EQUITABLE ESTOPPEL BOGGS, Chief Judge. Silvia Thomas sued Elmwood Cemetery and Chancey Miller, her former employer and supervisor, respectively, for health benefits under the Consolidated Omnibus Reconciliation Act (“COBRA”). Both parties agreed that Elmwood falls below the statute’s application threshold of twenty or more employees, which is codified at 29 U.S.C. § 1161(b). Thomas argued, however, that the doctrine of equitable estoppel should bar the defendants from claiming that they fall below the statutory threshold. The district court granted summary judgment to Elmwood and Miller, holding as a matter of law that estoppel could not be applied to excuse the failure to meet the numerical threshold. This case presents two questions in the context of an action under COBRA. First, can the doctrine of equitable estoppel bar an employer, who employs fewer than the statute’s threshold of twenty employees, from defending an action on that basis? Second, if equitable estoppel can so apply, can Thomas satisfy the doctrine’s requirements in this case? As we explain more fully below, the Supreme Court’s decision last term in Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006), which held that such an application threshold is an element of a claim rather than a jurisdictional bar, renders this an open question in our circuit. There is no principled reason we can see, in Arbaugh’s wake, to set such a threshold apart from other elements of claims, which parties generally may concede, be ordered by a court to admit (as in a discovery sanction), or be equitably estopped from contesting. Thus, we hold that equitable estoppel may, in appropriate cases, bar an employer from arguing that it does not satisfy a statute’s numerical application threshold. Nevertheless, Thomas cannot satisfy the estoppel doctrine’s requirements in this case. Her claim cannot withstand summary judgment. We affirm the judgment of the district court.
07a0248p.06	2007/06/29	Pagan v. Fruchey     Southern District of Ohio at Cincinnati COMMERCIAL SPEECH RESTRICTIONS JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Christopher J. Pagan filed the instant suit against the Village of Glendale, Ohio (“Glendale” or “the Village”) and Glendale Police Chief Matt Fruchey, alleging that section 76.06 of the Glendale Traffic Code constitutes an unconstitutional restriction on commercial speech in violation of the First Amendment. Following the parties’ cross-motions for summary judgment, the district court determined that Glendale’s ordinance complied with the requirements of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980), and granted summary judgment in favor of the defendants. Because we conclude that the defendants have failed to produce evidence that justifies the restrictions on commercial speech imposed by the ordinance, we reverse the decision of the district court and remand for further proceedings consistent with this opinion.
07a0249p.06	2007/06/29	USA v. Villareal     Eastern District of Tennessee at Greeneville CRIMINAL: SENTENCES; DOWNWARD DEPARTURE GRIFFIN, Circuit Judge. Defendant Aldrich Salvador Vellejo-Villareal was indicted on a one-count indictment charging him, and eight co-defendants, with the distribution and possession with the intent to distribute five kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). Later, Villareal pleaded guilty to the charge pursuant to a plea agreement that states, in pertinent part: “If, in the sole discretion of the United States, the defendant provides substantial assistance, the United States will make a motion for downward departure pursuant to 5K1.1 of the Sentencing Guidelines or 18 U.S.C. § 3553(e), or both . . .” (emphasis added). At the sentencing hearing, the government did not move for a downward departure. Subsequently, Villareal was sentenced to 120 months’ imprisonment and a five-year term of supervised release. Defendant timely appealed his sentence and the order of the district court denying his motion to compel the government to file a motion for a downward departure. On appeal, Villareal argues that the government breached its obligation pursuant to the plea agreement to move for a downward departure in return for the substantial assistance he provided. For the reasons set forth below, we remand for a new hearing during which the government shall advise the district court of its factual determination, made in its sole discretion, whether defendant’s assistance was “substantial assistance.” In the event the government determines and advises the court that defendant’s assistance was substantial assistance, the district court is instructed to grant defendant’s motion to compel, vacate defendant’s sentence, and resentence defendant. In the event the government determines and advises the court that defendant’s assistance was not substantial assistance, the district court is instructed to deny defendant’s motion to compel.