6th Cir. Decisions for Week of Aug. 18-22, 2008

    PUBLISHED OPINIONS

Opinion	Short Title/District
08a0297p.06 2008/08/18	USA v. Simpson     Eastern District of Kentucky at Lexington
08a0298p.06 2008/08/18	USA v. Alexander     Northern District of Ohio at Cleveland
08a0299p.06 2008/08/18	Jerman v. Carlisle, McNellie     Northern District of Ohio at Cleveland COLE, Circuit Judge. Plaintiff Karen L. Jerman filed an action challenging the debtcollection practices of the law firm Carlisle, McNellie, Rini, Kramer & Ulrich (“Carlisle”), and Adrienne S. Foster, an attorney employed by Carlisle, (collectively, “Defendants”). Jerman claims that Defendants violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692-92p, when they used allegedly deceptive forms to notify her of a foreclosure on her home. More specifically, Jerman claims that Defendants violated the FDCPA by representing to Jerman that her debt would be assumed valid unless she disputed the debt “in writing” even though the FDCPA does concluding that, although Defendants violated the FDCPA by instructing Jerman that she must dispute the debt in writing, Defendants qualified for the FDCPA bona fide error defense, 15 U.S.C. § 1692k(c). On appeal, Jerman asserts that the defense is not available. For the following reasons, we affirm.
08a0300p.06 2008/08/18	Jells v. Mitchell     Northern District of Ohio at Cleveland
08a0301p.06 2008/08/18	Info-Hold Incorporated v. Sound Merchandising Incorporat     Southern District of Ohio at Cincinnati CLAY, Circuit Judge. Plaintiff, Info-Hold, Inc. (“Info-Hold”), appeals the district court’s denial of its Federal Rule of Civil Procedure 60(b) motion for relief from an order, entered pursuant to a Settlement, Release, and License Agreement (the “Settlement Agreement”), dismissing Info-Hold’s patent infringement action, brought under 28 U.S.C. § 1338 (2000), against Defendant, Sound Merchandising, Inc. (“SMI”), doing business as Intellitouch Communications. Info-Hold contends that relief is warranted because (1) SMI fraudulently induced Info-Hold to enter the Settlement Agreement, and (2) SMI committed a material breach of the Settlement Agreement. For the reasons that follow, we AFFIRM the district court’s denial of Info-Hold’s Rule 60(b) motion.
08a0302p.06 2008/08/18	Petty v. Metro Govt Nashville     Middle District of Tennessee at Nashville ALICE M. BATCHELDER, Circuit Judge. Plaintiff–Appellant Brian Petty appeals the district court’s summary judgment and judgment on partial findings in favor of Metropolitan Government of Nashville-Davidson County (“Metro”) on claims that Metro violated his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301 - 4334. Because the district court erred in its application of §§ 4312 and 4313, we reverse the district court’s grant of summary judgment for Metro on two claims asserted under these provisions, and order that summary judgment be entered in favor of Petty on those claims. Further, because the district court made errors of both fact and law in its judgment on partial findings under § 4311, we vacate that judgment.
08a0303p.06 2008/08/19	Gaeth v. Hartford Life Ins Co     Eastern District of Kentucky at Lexington RONALD LEE GILMAN, Circuit Judge. Carl Gaeth was employed as a sales manager at Oracle Corp. from 1986 until 1989. As a result of serious medical conditions, he began receiving long-term disability payments in 1989. Oracle subsequently discovered that Gaeth was operating an antique-lamp restoration business, and surveillance video showed him moving about without apparent difficulty. The plan administrator, Hartford Life Insurance Co., determined that Gaeth was no longer totally disabled and terminated his benefits in 1997. Gaeth challenged that decision in court. The federal district court found that Hartford’s determination was arbitrary and capricious because it was not supported by any medical evidence of Gaeth’s physical condition. It therefore remanded the case to Hartford for further consideration.
08a0304p.06 2008/08/19	USA v. Mastromatteo     Eastern District of Michigan at Detroit
08a0305p.06 2008/08/20	Barr v. Lafon     Eastern District of Tennessee at Knoxville KAREN NELSON MOORE, Circuit Judge. Derek Barr, Roger Craig White, and Chris Nicole White (“Plaintiffs-Appellants”), students at William Blount High School (“the school”) in Blount County, Tennessee, would like to express their southern heritage by wearing clothing depicting the Confederate flag at school. They appeal the district court’s grant of summary judgment to the principal of their school, Steven Lafon (“Lafon”), the director of the Blount County schools, Alvin Hord (“Hord”), and the Blount County School Board1 on their First Amendment, Equal Protection Clause, and Due Process Clause claims.
08a0306p.06 2008/08/20	USA v. Djoumessi     Eastern District of Michigan at Detroit
08a0307p.06 2008/08/21	USA v. Poole     Northern District of Ohio at Toledo
08a0308p.06 2008/08/21	USA v. Mayberry     Western District of Michigan at Grand Rapids
08a0308p.06 2008/08/21	USA v. Peoples     Western District of Michigan at Grand Rapids
08a0309p.06 2008/08/22	Clemmer v. Key Bank Natl Assoc     Northern District of Ohio at Cleveland McKEAGUE, Circuit Judge. As the district court succinctly summarized, this case turns on whether the Electronic Funds Transfer Act (the “EFTA”) permits an automated teller machine’s on-screen notice to read that a fee “may” be charged when a fee “will” be charged. Clemmer v. Key Bank, N.A., No. 06-2654, 2007 WL 5303533, at *2 (N.D. Ohio June 20, 2007). Michael Clemmer, a consumer of ATM services, argues that the notice must explicitly state that a consumer “is” or “will be” (or some variant thereof) charged a fee. The district court, however, concluded that use of the less definite “may” coupled with the more definite requirement that a user press “yes” to * accept the fee to continue the transaction put the user on sufficient notice that a fee would be
08a0310p.06 2008/08/22	JPD, Inc. v. Chronimed Holdings, Inc.     Southern District of Ohio at Columbus COOK, Circuit Judge. In late 2005, Defendant Chronimed Holdings bought Northland Pharmacy from Plaintiff James P. DiCello. Chronimed paid DiCello twelve million dollars up front and promised additional cash if Northland’s earnings over the next year hit a benchmark. The parties agreed to arbitrate any dispute over the “calculation” of Northland’s earnings and “all issues having a bearing on such dispute.” When Chronimed later informed DiCello that it would not pay the added cash because Northland’s earnings failed to reach the benchmark, DiCello sued, claiming that Chronimed owed the additional payment because the earnings target would have been met had Chronimed operated the business as the contract promised. Chronimed promptly moved the district court to compel arbitration, but the district court held that Chronimed waived that contractual right through its prelitigation conduct. Because we disagree, and because we find that DiCello’s claims fall within the scope of the contract’s arbitration clause, we vacate and remand with instructions to compel arbitration
08a0311p.06 2008/08/22	Josephine Bowie v. Commissioner of Social Security     Eastern District of Michigan at Bay City
08a0312p.06 2008/08/22	Phelps-Roper v. Strickland     Northern District of Ohio at Cleveland SUHRHEINRICH, Circuit Judge. This case involves a facial challenge to a provision of Ohio Rev. Code § 3767.30 (“Funeral Protest Provision”), which prohibits “picketing” or “other protest activities,” within 300 feet of the funeral or burial service, from one hour before until one hour after the funeral or burial service. We hold that the Funeral Protest Provision is a reasonable, content-neutral regulation of the time, place, and manner of speech.
08a0313p.06 2008/08/22	Village of Oakwood v. State Bank and Trust Company     Northern District of Ohio at Toledo RONALD LEE GILMAN, Circuit Judge. On February 1, 2002, the Oakwood Deposit Bank Company (Oakwood) failed. The Federal Deposit Insurance Corporation (FDIC) was immediately appointed as receiver. On the following day, the FDIC signed a Purchase and Assumption Agreement (P&A Agreement) with State Bank and Trust Company (State Bank) that caused the insured deposits of Oakwood to be transferred to State Bank. A group of partially uninsured depositors (collectively referred to as the Uninsured Depositors) filed a complaint in state court against State Bank in an attempt to recover the value of their uninsured deposits. The FDIC removed the case to federal district court. Despite a ruling on the merits by the district court, this court on appeal subsequently ordered that the judgment be vacated and the case remanded to the state court because the FDIC was not yet a party when it had sought removal. After remand, State Bank filed a third-party complaint against the FDIC, seeking indemnification under the terms of the P&A Agreement. The state court allowed the third-party complaint, following which the FDIC again removed the case to federal district court. State Bank and the FDIC then renewed their motions to dismiss the Uninsured Depositors’ claims or for summary judgment, and the Uninsured Depositors once more filed a motion to remand. The district court granted State Bank’s and the FDIC’s motions for summary judgment, finding that the Uninsured Depositors had failed to comply with the relevant statutory scheme for bringing their claims. It also denied the Uninsured Depositors’ motion to remand, finding that federal jurisdiction was proper over the entire dispute. Those two decisions have been appealed by the Uninsured Depositors. For the reasons set forth below, we AFFIRM the judgment of the district court.
08a0314p.06 2008/08/22	Barany-Snyder v. Weiner     Northern District of Ohio at Cleveland JULIA SMITH GIBBONS, Circuit Judge. This case arises out of a state court debt collection action brought by defendants-appellants Keith D. Weiner, Keith D. Weiner & Associates Co., L.P.A., and Scott W. Paris (collectively, “defendants”) against plaintiff-appellant Michelle K. Barany-Snyder. Barany-Snyder alleges that defendants engaged in improper debt collection in violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and seeks to represent a class of similarly situated individuals. Pursuant to Federal Rule of Civil Procedure 12(c), the district court granted judgment on the pleadings in favor of defendants, and Barany- Snyder now appeals. Defendants, in turn, assert that they are entitled to immunity from suit, and they further argue that the statute of limitations bars at least part of Barany-Snyder’s FDCPA claims. For the following reasons, we affirm the judgment of the district court.
08a0315p.06 2008/08/22	State Farm Bank FSB v. J. Reardon     Southern District of Ohio at Columbus McKEAGUE, Circuit Judge. State Farm Bank, a federal savings association and a wholly owned subsidiary of State Farm Mutual Automobile Insurance Co., offers mortgage products and banking services to individuals throughout the United States. State Farm Bank does not maintain any “brick and mortar” branch offices that are open to the public; rather, it solicits and markets its mortgage products and banking services through its existing network of independent and exclusive insurance agents who have been specially trained to serve as mortgage lending and banking agents. The State of Ohio believes that State Farm Bank’s exclusive agents must comply with the licensing and registration requirements set forth in the Ohio Mortgage Broker Act (“the Ohio Act”), Ohio Revised Code § 1322.01 et seq. State Farm Bank argues that federal law governing the operations of federal savings associations preempts the application of the Ohio Act to its exclusive agents. The Office of Thrift Supervision (“the OTS”), the federal agency charged with regulating federal savings associations, issued an opinion letter (“the OTS Opinion”) agreeing with State Farm Bank. Notwithstanding the OTS Opinion, the defendant-appellee, John B. Reardon, Superintendent of the Ohio Division of Financial Institutions (“the Superintendent”), declined to exempt State Farm Bank’s exclusive agents from compliance with the Ohio Act. State Farm Bank and one of its Ohio-based agents filed this action in the United States District Court for the Southern District of Ohio, seeking declaratory and injunctive relief. The district court held that federal law does not preempt the application of the Ohio Act to State Farm Bank’s exclusive agents. We disagree and REVERSE.
08b0013p.06 2008/08/22	In re: Scarlet Hotels, LLC v.     U.S. Bankruptcy Court - Nashville The issues presented on appeal are (A) whether the bankruptcy court improperly placed the burden upon the Debtor to prove that the oversecured creditor’s requested fees were unreasonable; and (B) whether the bankruptcy court abused its discretion in reducing the creditor’s $507,046.43 in requested fees and expenses by only $37,200.00.

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Opinion	Short Title/District
08a0501n.06	Sunseri v. Proctor     Eastern District of Michigan at Detroit
08a0502n.06	Coffee Beanery, Ltd v. WW LLC     Eastern District of Michigan at Detroit
08a0503n.06	USA v. Hembree     Middle District of Tennessee at Cookeville
08a0504n.06	Barak v. Zeff     Eastern District of Michigan at Detroit
08a0505n.06	USA v. Lee     Western District of Tennessee at Memphis
08a0506n.06	Edward Porter v. George Brown, Jr.     Western District of Tennessee at Memphis
08a0507n.06	Gibson v. Shelby Co     Southern District of Ohio at Columbus
08a0508n.06	Jordan v. Tyson Foods Inc     Middle District of Tennessee at Nashville
08a0509n.06	USA v. Collins     Eastern District of Tennessee at Greeneville
08a0510n.06	USA v. Hohn     Northern District of Ohio at Toledo
08a0511n.06	NLRB v. Inter-Disciplinary Advantage,     National Labor Relations Board
08a0511n.06	NLRB v. Inter-Disciplinary Advantage,     National Labor Relations Board
08a0512n.06	Papa Amadou Ba v. Mukasey     Board of Immigration Appeals
08b0014n.06	In re: Ronald King v.     U.S. Bankruptcy Court - Covington
08a0513n.06	Gonzales v. Wolfe     Southern District of Ohio at Cincinnati
08a0514n.06	Rittner v. Kinder     Northern District of Ohio at Toledo
08a0515n.06	Daimler Chrysler v. Summit Natl, Inc     Eastern District of Michigan at Detroit
08a0516n.06	M & C Corp v. Erwin Behr GMBH & Co     Eastern District of Michigan at Detroit

Comments

[NewssyLee]

Thanks to you