6th Cir. Published Decisions for Week of Oct. 15, 2007 (1 Ky. Decision)

 

Opinion	Short Title/District
07a0419p.06	Blair v. Henry Filters Inc     Eastern District of Michigan at Detroit KAREN NELSON MOORE, Circuit Judge. When a fifty-seven-year-old’s direct supervisor taunts him as “the old man on the sales force,” removes him from a profitable account because he is “too old,” and tells another employee he “needs to set up a younger sales force” before terminating the employee, can the employee’s age-discrimination claim survive summary judgment? We believe it can. Accordingly, we REVERSE the district court’s judgment for the employer and REMAND this case for further proceedings.
07a0420p.06	Tepper v. Potter     Northern District of Ohio at Cleveland R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant Martin Tepper filed this employment-related action arising from work assignments that began in January 2003. At that time, the Chagrin Falls branch of the United States Postal Service (“USPS”) ended an approximately tenyear- long practice of allowing Tepper to avoid Saturday work assignments so that he could observe his Sabbath. Tepper’s complaint alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Ohio Rev. Code § 4112.02(A). The district court granted summary judgment to Defendant-Appellee John E. Potter, Postmaster General of USPS, on all counts. Tepper seeks review of the district court’s grant of summary judgment as to the claims arising under Title VII. We conclude that the district court’s grant of summary judgment was not erroneous. Accordingly, we AFFIRM the judgment below.
07a0421p.06	Kouljinski v. Gonzales     Immigration & Naturalization Service KAREN NELSON MOORE, Circuit Judge. After finding that an alien is eligible for asylum, may an immigration judge consider the alien’s three convictions for driving under the influence of alcohol in denying the application for asylum as a matter of discretion? That is the principal question in this appeal, and because we conclude that an immigration judge may properly consider such convictions, we DENY Nikolai Kouljinski’s petition for review of the decision of the Board of Immigration Appeals denying his application for asylum and withholding of removal.
07a0422p.06	Parker v. Renico     Eastern District of Michigan at Detroit COOK, Circuit Judge. A Michigan jury convicted Saejar Deonte Parker of the twin crimes of being a felon in possession of a firearm and felony-firearm. Mich. Comp. Laws §§ 750.224f, 750.227b. After exhausting his state-court remedies, Parker sought a writ of habeas corpus in federal district court, claiming that insufficient evidence supported the jury’s conclusion that he constructively possessed a firearm. Because Parker has shown that the state courts unreasonably applied Jackson v. Virginia, 443 U.S. 307 (1979), we affirm the district court’s grant of the petition.
07a0423p.06	USA v. Grubbs     Eastern District of Kentucky at London R. GUY COLE, JR., Circuit Judge. A jury convicted Ernest Wayne Grubbs on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The United States District Court for the Eastern District of Kentucky sentenced Grubbs to a total of 195 months of imprisonment on this conviction as well as related charges to which he pleaded guilty. He now argues on appeal that (1) the district court erred in denying his motion for a judgment of acquittal because the evidence was insufficient to support his felon-in-possession conviction, and (2) his case should be remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). For the reasons set forth below, we REVERSE and REMAND for an entry of a judgment of acquittal on the felon-in-possession charge as well as for resentencing under the now-advisory Sentencing Guidelines.
07a0424p.06	NicSand, Inc. v. 3M Company     Northern District of Ohio at Cleveland SUTTON, Circuit Judge. Between 1987 and 2001, NicSand and 3M were the only nationwide suppliers in the market for do-it-yourself automotive sandpaper, and they competed for the business of six large retailers, which controlled 80% of the market and which (with one exception) offered their shelf space on an exclusive basis for a year at a time. NicSand developed this niche market and eventually gained a 67% share of it. Between 1997 and 2001, however, it lost most of the market when 3M offered the large retailers greater up-front discounts and longer exclusive agreements than NicSand had offered in the past or apparently was willing to offer in the future. When NicSand filed an antitrust lawsuit to complain about 3M’s conduct, the district court dismissed the complaint for lack of antitrust standing and, more particularly, for lack of a cognizable antitrust injury. Because 3M did not engage in below-cost—or predatory—pricing, because five of the six large retailers demanded exclusivity as a precondition for doing business, because the allegations show no more than that 3M competed with its rival on the same essential terms that NicSand and the large retailers had already established for this market and because the antitrust laws in the end protect competition, not competitors, we affirm.
07a0425p.06	Bridgeport Music Inc v. Justin Combs Publ     Middle District of Tennessee at Nashville ROGERS, Circuit Judge. Plaintiffs, Bridgeport Music, Inc., and Westbound Records, Inc., owned the copyright to the Ohio Players’ song, “Singing in the Morning.” Defendant music publishers1 released the Notorious B.I.G. album Ready to Die, the title song of which contained an unlicensed sample of “Singing in the Morning.” After plaintiffs brought suit against defendants for copyright infringement, a jury found in favor of plaintiffs and awarded compensatory and punitive damages. Bridgeport elected statutory damages under the federal Copyright Act, 17 U.S.C. § 101 et seq., and received the maximum award of $150,000. Westbound received its one-half share of compensatory damages, $366,939, and punitive damages in the amount of $3.5 million. Defendants make ten arguments on appeal: (1) the jury verdict was the result of passion and prejudice; (2) the district court erroneously excluded evidence that defendants argue demonstrates that they did not infringe willfully; (3) the district court erroneously bifurcated the trial into liability and punitive damages phases after the trial had commenced; (4) UMG was released from liability; (5) the district court erred by failing to apportion compensatory damages between the infringing and non-infringing portions of the song and album; (6) the jury’s award of compensatory damages improperly included compounded interest; (7) the jury’s award of compensatory damages improperly included prejudgment interest; (8) the jury’s selection of May 4, 1998, as the date from which prejudgment interest should be calculated was in conflict with state law; (9) the jury’s $3.5 million punitive damage award was unconstitutionally excessive; and (10) the district court erred by entering an injunction and impoundment order. Defendants are correct only with respect to issues six, seven, eight, and nine. The jury’s compensatory damage award appears to have been the result of a mistake, which resulted in the award’s including compounded, prejudgment interest. The date that the jury selected for the time from which prejudgment interest should be awarded was the beginning of the statute of limitations period, and thus conflicts with New York law (which governed Westbound’s claims). The punitive damages award violates due process when measured against defendants’ conduct, the harm that plaintiffs suffered, and the statutory damages that federal law permits. The other issues raised by defendants are without merit. We remand with instructions for the district court to offer plaintiffs a remittitur with respect to the compensatory and punitive damages award and to select a reasonable adate from which to calculate prejudgment interest.
07a0426p.06	USA v. Hamilton Cnty     Southern District of Ohio at Cincinnati MARTHA CRAIG DAUGHTREY, Circuit Judge. The Hamilton County Board of County Commissioners and the City of Cincinnati (collectively, the County) appeal the district court’s award of attorneys’ fees to the Sierra Club and individual plaintiff Marilyn Wall (collectively, the Sierra Club) in this Clean Water Act case. The district court determined that the Sierra Club was entitled to recover litigation costs both on the basis of the “catalyst theory” and because the plaintiff was a “prevailing or substantially prevailing party” under section 1365 of the Act, 33 U.S.C. § 1365(d). The County argues that the catalyst theory of recovery was debunked by the Supreme Court in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), that the Sierra Club cannot be considered a prevailing party under existing case precedent, and that – even if the Sierra Club is entitled to attorneys’ fees in this case – the amount awarded by the district court cannot be sustained on the record. We conclude that the district court did not err in determining that the Sierra Club was entitled to recover attorneys’ fees as a “prevailing or substantially prevailing party” in this case, but we also find it necessary to remand the case for a particularized determination of the amount of that award.
07a0427p.06	ITT Indus v. BorgWarner Inc     Western District of Michigan at Grand Rapids CLAY, Circuit Judge. Plaintiff, ITT Industries, Inc., appeals an order by the district court dismissing Plaintiff’s claims against Defendants arising under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., for failure to state a claim and declining to exercise supplemental jurisdiction over related state law claims. Specifically, Plaintiff appeals the district court’s dismissal of its complaint seeking: 1) cost recovery under CERCLA § 107(a) and 2) contribution pursuant to CERCLA § 113(f)(3)(B). For the reasons that follow, we REVERSE the district court’s dismissal of Plaintiff’s cost recovery claim, AFFIRM the dismissal of Plaintiff’s contribution claim, and REMAND for further proceedings consistent with this opinion.