| Opinion | Short Title/District |
|---|---|
| 07a0471p.06 | Van Gorder v. Grand Trunk Western Eastern District of Michigan at Detroit ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Elmer Van Gorder (“Van Gorder”) appeals the district court’s order granting summary judgment in favor of Defendant- Appellee Grand Trunk Western Railroad (“Grand Trunk”) in this negligence action filed pursuant to the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51, et seq. Van Gorder claims that the district court erred in finding that there were no genuine issues of material fact regarding the reasonableness of Grand Trunk’s railcar inspections and that he had not established a prima facie negligence case. Finding no merit in Van Gorder’s contentions, we AFFIRM. |
| 07a0472p.06 | Arledge v. Franklin Cnty Southern District of Ohio at Columbus BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs Frances Arledge and Jay Mitchell brought suit alleging due process violations under the state custody theory, the state-created-danger theory, and the unconstitutional policy or custom theory, stemming from defendants’ placement of their son in a non-foster home where he was subsequently shot and killed. The district court granted summary judgment in favor of defendants, finding that plaintiffs failed to show the requisite culpability to maintain a claim under any of the alleged theories of liability. We hold that plaintiffs have not shown the requisite culpability, and AFFIRM the district court’s ruling. |
| 07a0473p.06 | Richardson, et al v. CIR Commissioner of Internal Revenue SUTTON, Circuit Judge. This appeal arises from income tax deficiencies and fraud-penalty assessments levied by the IRS and upheld by the Tax Court. Because the Tax Court did not clearly err (1) in finding that Homer Richardson fraudulently created sham trusts and underreported the couple’s income and (2) in finding that Gloria Richardson failed to show that she was entitled to innocent-spouse relief, we affirm. |
| 07a0474p.06 | In re: Curry v. Southern District of Ohio at Dayton RALPH B. GUY, JR., Circuit Judge. Tidewater Finance Company (Tidewater) appeals from the judgment of the Sixth Circuit Bankruptcy Appellate Panel affirming the bankruptcy court’s order denying Tidewater’s motion for relief from the automatic stay to allow for the sale of the debtor’s repossessed automobile and overruling Tidewater’s objection to confirmation of the debtor’s Chapter 13 plan based on its “cram down” treatment of the claim secured by that automobile. Whether a bankruptcy appeal comes before this court by way of the Bankruptcy Appellate Panel (BAP) or the district court, our review is of the bankruptcy court’s decision. Koenig Sporting Goods, Inc. v. Morse Rd. Co. (In re Koenig Sporting Goods, Inc.), 203 F.3d 986, 988 (6th Cir. 2000). Because the bankruptcy court’s decision was made on stipulated facts, this appeal presents only legal issues that we review de novo. Id. Tidewater argues that its prepetition repossession of the automobile, a 2000 Saturn SL, limited the debtor’s rights to those available under Ohio law and precluded the debtor from modifying Tidewater’s claim under 11 U.S.C. § 1322(b)(2). Tidewater relies on the same authority and reiterates the same legal arguments as it did both before the bankruptcy court and on appeal to the BAP. After careful review of the record, the applicable law, and the arguments presented on appeal, we find that the bankruptcy court did not err in confirming the plan and denying relief from the automatic stay. Further, because the reasons supporting this conclusion are so ably articulated by the BAP, we find that issuance of a full written opinion by this court would be duplicative and would serve no useful purpose. Accordingly, we AFFIRM the bankruptcy court’s order for the reasons set forth in Tidewater Finance Co. v. Curry (In re Curry), 347 B.R. 596 (6th Cir. BAP 2006). |
| 07a0475p.06 | USA v. Koubriti Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. Karim Koubriti was the first defendant brought to trial as a terrorism suspect after September 11, 2001. His trial was a highly charged affair, and resulted in his conviction on two of four counts. Afterwards, it was discovered that the United States Attorney’s office in Detroit had committed numerous acts of misconduct in the prosecution of his case. The district court accordingly dismissed one count of his conviction without prejudice, and ordered a retrial on the second count for which he was convicted. Prior to the second trial, the government filed a superseding indictment replacing the count that had been ordered to be retried by the district court, albeit the new count involved some of the same conduct alleged in the first trial. Koubriti moved to dismiss, claiming that double jeopardy barred the new superseding indictment. The district court denied his motion, and this appeal followed. Because we find no double jeopardy is implicated by Koubriti’s retrial, we AFFIRM the district court’s decision. |
| 07a0476p.06 | USA v. Lalonde Southern District of Ohio at Cincinnati CLAY, Circuit Judge. Defendant Paul M. Lalonde (“Lalonde”) appeals the conviction and 78-month sentence imposed by the district court following his plea of guilty to wire fraud, 18 U.S.C. § 1343, and income tax evasion, 26 U.S.C. § 7201. Lalonde challenges his conviction on the grounds of alleged violations of Federal Rules of Criminal Procedure 10 and 11. Lalonde appeals his sentence on the basis of the district court’s alleged misapplication of the United States Sentencing Guidelines (the “Guidelines”) and for unreasonableness. For the reasons that follow, we AFFIRM both the conviction and sentence imposed by the district court. |
| 07a0477p.06 | Peninsula Asset Mgmt v. Hankook Tire Co., Northern District of Ohio at Akron ROGERS, Circuit Judge. Plaintiffs, including a Grand Cayman Islands corporation, sued a South Korean corporation and a natural citizen of South Korea on breach of contract and fraud claims. Plaintiffs brought their suit in the United States District Court for the Northern District of Ohio on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a)(2). The district court granted summary judgment in favor of the defendants on all claims, and the plaintiffs appealed to this court. Because there are alien corporations on both sides of the controversy, this case lacks the complete diversity required for a federal court to exercise diversity jurisdiction under § 1332(a)(2). See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 580 n.2 (1999); Creaciones Con Idea, S.A. de C.V. v. Mashreqbank PSC, 232 F.3d 79, 82 (2d Cir. 2000); Impuls I.D. Internacional, S.L. v. Psion- Teklogix, Inc., 234 F. Supp. 2d 1267, 1272-74 (S.D. Fla. 2002). Contrary to the defendants’ argument, it makes no difference whether the plaintiff Grand Cayman Islands corporation has its principal place of business in the United States. It is well established that, under § 1332(a)(2), “even if a corporation organized under the laws of a foreign nation maintains its principal place of business in a State, and is considered a citizen of that State, diversity is nonetheless defeated if another alien party is present on the other side of the litigation.” Creaciones Con Idea, 232 F.3d at 82 (quoting Int’l Shipping Co., S.A. v. Hydra Offshore, Inc., 875 F.2d 388, 391 (2d Cir. 1989)). The jurisdiction in this case cannot, moreover, be predicated on § 1332(a)(3) even though that section has been interpreted as not requiring complete diversity. See, e.g., Dresser Indus., Inc. v. Underwriters at Lloyd’s of London, 106 F.3d 494, 498-99 (3d Cir. 1997). That section is inapplicable here because there is not a United States citizen on each side of the dispute. Therefore, the only applicable section is § 1332(a)(2), which requires complete diversity. Because complete diversity is lacking in this case, we reverse the judgment of the district court and remand the case for consideration of the need to dismiss for lack of subject matter jurisdiction. |
| 07a0478p.06 | Morgan v. ATF Eastern District of Michigan at Detroit ROGERS, Circuit Judge. Plaintiff Kerry Morgan appeals the district court’s grant of summary judgment in favor of the defendant, the Bureau of Alcohol, Tobacco and Firearms. Mr. Morgan, who deals in firearms from his residential premises in Redford Township, Michigan, applied in 2003 for a renewal of his federal firearms license. Based on an opinion of the Township’s legal counsel that Morgan’s firearms business violated Redford zoning regulations, ATF denied his renewal application. Morgan filed a petition for judicial review of ATF’s final denial pursuant to 18 U.S.C. § 923(f)(3), and the district court granted ATF’s motion for summary judgment. Because ATF properly relied on Redford Township’s interpretation of its own zoning laws in denying Morgan’s federal firearms license, and because Morgan has presented no genuine issue of material fact, we affirm the district court’s grant of summary judgment. |
| 07a0479p.06 | Triad Intl v. So Air Transp Southern District of Ohio at Columbus ALAN E. NORRIS, Circuit Judge. The bankruptcy trustee of Southern Air Transport, Inc. (“SAT”), a debtor in a Chapter 11 proceeding, seeks to recover a $100,000 payment made to defendant Triad International Maintenance Corporation (“TIMCO”) as an avoidable preference under the Bankruptcy Code. 11 U.S.C. § 547(b). TIMCO advances two theories in response: that it was a fully secured creditor at the time of the payment; alternatively, that the payment represented a contemporaneous exchange for new value, an exception to the usual rule prohibiting transfers of interest in the debtor’s property made within 90 days of the filing of the bankruptcy petition. 11 U.S.C. § 547(c). The bankruptcy court ruled in favor of the trustee in bankruptcy, and the district court affirmed. Because we hold that the trustee in bankruptcy failed to meet his burden of proving the elements necessary to establish that the payment to TIMCO was preferential, and thus avoidable under 11 U.S.C. § 547(b), we REVERSE the judgment of the district court and REMAND the case to the bankruptcy court for further proceedings consistent with this opinion. |
| 07a0480p.06 | USA v. Vanhook Western District of Tennessee at Memphis RONALD LEE GILMAN, Circuit Judge. Charles Vanhook pled guilty to one count of being a felon in possession of a firearm. The district court sentenced him to 180 months of imprisonment and three years of supervised release after concluding that this offense, together with Vanhook’s prior criminal history, caused him to be classified as an armed career criminal within the meaning of the Armed Career Criminal Act (ACCA). Vanhook argues on appeal that the district court erred in determining that he met the ACCA classification. Specifically, he contends that his prior state conviction for the facilitation of a burglary of a building does not qualify as a “violent felony” under the ACCA. He postulates that the facilitation of a burglary of a business does not present a serious potential risk of physical injury to another. Vanhook therefore asserts that his sentence is per se unreasonable under United States v. Booker, 543 U.S. 220 (2005), and should be vacated. For the reasons set forth below, we AFFIRM the judgment of the district court. |
| 07a0481p.06 | USA v. Watkins Southern District of Ohio at Columbus RONALD LEE GILMAN, Circuit Judge. This case arises from Gary Watkins’s conviction on multiple counts of armed robbery, conspiracy, and firearms violations. On six different occasions, Watkins and/or his accomplices brandished firearms in the abduction of employees of different banks and cash-lending institutions from their homes in the Columbus, Ohio area. The men took the employees—and in some cases their families—to the employees’ respective places of employment and forced them to open safes and vaults. Watkins and his accomplices then fled with the cash they removed. After a jury found Watkins guilty on all counts, the district court sentenced him to 1,772 months in prison. Watkins raises three issues on appeal. First, he challenges his convictions for the robberies of the three cash-lending institutions on the ground that the government failed to prove that those robberies had a de minimis effect on interstate commerce as required by the Hobbs Act. He next challenges his sentence, arguing both that imprisonment for 1,772 months violates the Eighth Amendment and that the district court misinterpreted the Sentencing Guidelines. Finally, he argues that he received the ineffective assistance of counsel during sentencing. For the reasons set forth below, we AFFIRM the judgment of the district court and DENY Watkins’s ineffective-assistance of-counsel claim. |
| 07a0482p.06 | JPMorgan Chase Bank v. Winget Eastern District of Michigan at Detroit RONALD LEE GILMAN, Circuit Judge. Through a series of transactions between 1999 and 2002, JPMorgan Chase Bank and its predecessor served as agent for a number of lenders that had advanced credit to Venture Holding Company LLC, a company owned by Larry J. Winget and the Larry J. Winget Living Trust (hereafter collectively referred to as Winget). JPMorgan, on the basis of the various agreements between the parties, sought to inspect the financial records of two other companies owned by Winget after Venture filed for bankruptcy. The district court granted JPMorgan’s request for specific performance of the bank’s inspection rights, a decision that Winget has appealed. For the reasons set forth below, we AFFIRM the judgment of the district court. |
| 07a0483p.06 | Fox v. Eagle Dist Co Eastern District of Tennessee at Knoxville GRIFFIN, Circuit Judge. Plaintiff James Fox filed a civil complaint against defendant Eagle Distributing Company (“Eagle”), alleging that his former employer Eagle violated his rights under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., the Tennessee Human Rights Act (“THRA”), TENN. CODE ANN. § 4-21-407, and the Tennessee Whistleblower Act (“TWA”), TENN. CODE ANN. § 4-21-407. Fox additionally raised a common law claim of retaliatory discharge. Fox now appeals from an order of the district court denying his Motion for Summary Judgment and granting Eagle’s Motion to Dismiss or for Summary Judgment. Specifically, Fox argues that the district court erred in granting summary judgment to Eagle on his retaliation claim under the ADEA. Finding Fox’s appeal to be without merit, we affirm the order of the district court. In so doing, we hold that Fox’s complaints to an Eagle customer about his relationship with Eagle were not protected activity under the ADEA. |
| 07a0484p.06 | Campbell v. PMI Food Equip Southern District of Ohio at Dayton RONALD LEE GILMAN, Circuit Judge. PMI Food Equipment Group, Inc. closed its plant in Dayton, Ohio in 1995 and moved the operation to Piqua, Ohio after signing a tax-abatement agreement with the City of Piqua, Miami County, and the state of Ohio that resulted in favorable tax treatment for 10 years. In the process of closing its Dayton plant, PMI terminated all of the 66 hourly employees who worked there. The hourly workers and their spouses (collectively referred to as the “Workers”) sued PMI, Piqua, Miami County, the state of Ohio, and various other parties, asserting 33 causes of action arising under various state and federal laws in connection with the tax abatement, the closing of the Dayton plant, and PMI’s termination of its hourly workers. All but two of the Workers’ claims were dismissed by the district court, and the remaining two claims were resolved by the parties. The Workers timely filed this appeal. For the reasons set forth below, we AFFIRM the judgment of the district court. |
| 07a0485p.06 | Pfahler v. Natl Latex Products Northern District of Ohio at Cleveland ROGERS, Circuit Judge. Plaintiffs are former employees of the National Latex Products Company (“NLP”) and former participants in and beneficiaries of the National Latex Products Company Employee Welfare Benefit Plan (“Plan”). They brought suit under § 502(a)(2) and § 502(a)(3) of the Employee Retirement Income Security Act (“ERISA”) against several parties after those parties allegedly breached fiduciary duties that they owed to the Plan. Among the parties named as defendants to the suit were NLP; Ross Gill, the president and Chief Executive Officer (“CEO”) of NLP; Glass & Associates, a business consultant to NLP; and Jay AuWerter, an agent for Glass & Associates. The district court in this case concluded that genuine issues of material fact existed as to whether all of the above defendants breached fiduciary duties to the Plan. The district court later concluded, however, that plaintiffs could not recover under either ERISA § 502(a)(2), which provides for derivative suits to remedy breaches of fiduciary duties, or ERISA § 502(a)(3), which allows for suits for “other appropriate equitable relief.” Accordingly, the court dismissed the claims under both provisions with prejudice. The parties raise numerous issues on appeal, but the primary issues before this court are whether the district court erred in determining that although (1) there are genuine issues of material fact with respect to whether NLP, Ross Gill, Glass & Associates, and AuWerter breached any fiduciary duties to the Plan and could consequently be held liable under §§ 502(a)(2) or (a)(3); (2) plaintiffs were barred from bringing suit under § 502(a)(2) because they sought to recover individually, rather than on behalf of the Plan; (3) plaintiffs could not bring an action under § 502(a)(3) because they sought money damages, as opposed to equitable relief; and (4) plaintiffs also could not bring suit under § 502(a)(3) because of their failure to comply with Federal Rule of Civil Procedure 23, which governs class action certification. We reverse because plaintiffs are permitted to seek relief from NLP, Ross Gill, Glass & Associates and AuWerter pursuant to § 502(a)(2). In light of this conclusion with respect to § 502(a)(2), plaintiffs are precluded from also obtaining relief under § 502(a)(3). Because of this resolution of the second issue, we need not address the third and fourth issues decided by the district court. |
NONPUBLISHED INSURANCE LAW DECISION RE KY LAW
Baymon v. State Farm Ins Co
Western District of Kentucky at Owensboro 07a0843n.06
MERRITT, Circuit Judge. Plaintiffs James and Lorrene Early Baymon obtained a homeowner’s insurance policy issued by defendant State Farm Insurance Company. After the Baymons lost their home in a fire, they filed a claim with State Farm. Due to material misrepresentations made to State Farm by the Baymons about their financial condition at the time of the fire and the suspicious origin of the fire, State Farm denied the claim and voided the policy. The Baymons filed suit against State Farm in Union Circuit Court in Morganfield, Kentucky, claiming breach of contract for failure to pay the loss claim, bad faith in denying the claim and violations of the Kentucky Unfair Claims Settlement Practices Act, KRS 304.12-230, and the Kentucky Consumer Protection Act, KRS 367.170. The case was removed by State Farm to federal by the district court. (J.A. at 35) The Baymons now appeal, alleging that genuine issues of material fact preclude summary judgment and that the district court erred as a matter of law on a variety of issues. For the reasons stated below, we do not regard the arguments presented by the Baymons as substantial or plausible, and we affirm the district court’s grant of summary judgment in favor of State Farm based on the Baymons’ false statements made to State Farm during the claims process which voided their policy.
But AARP and other advocates for older Americans attacked the rule. “ This rule gives employers free rein to use age as a basis for reducing or eliminating health care benefits for retirees 65 and older,” said Christopher G. Mackaronis, a lawyer for AARP, which represents millions of people age 50 or above and which had sought in court to forestall the regulation’ s adoption in final form. “ Ten million people could be affected— adversely affected— by the rule.”
Posted by: employment discrimination against women | March 20, 2008 at 05:37 AM