Sept. 8-12, 2008 Decisions: US 6th Circuit Court of Appeals

    PUBLISHED OPINIONS - Kentucky Decisions highlighted.

Opinion	Short Title/District
08a0340p.06 2008/09/08	Mohnkern v. The Prof Ins Co     Northern District of Ohio at Toledo BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff Janet Mohnkern brought suit claiming she was owed attorneys’ fees under Florida law by defendant The Professional Insurance Company. The district court granted the defendant’s motion for summary judgment, and Mohnkern now appeals that decision. We now AFFIRM.
08a0341p.06 2008/09/08	Hughes v. Region VII Area Agcy     Eastern District of Michigan at Bay City KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant/Cross-Appellee Denise Hughes (“Hughes”) appeals the dismissal of her lawsuit against Defendants-Appellees/Cross-Appellants Region VII Area Agency on Aging (“Region VII”), Region VII Executive Director Bruce King (“King”), and Region VII Assistant Director Drew Orvosh (“Orvosh”). Hughes claims that Region VII, King, and Orvosh (collectively, “Defendants”) retaliated against her exercise of First Amendment rights when she received a two-day suspension in July 2004 after a conversation with a co-worker and when she was terminated on August 6, 2004, from her position as a Program Coordinator at Region VII allegedly due to her discussions with a local newspaper reporter. Hughes later amended her complaint to include allegations that Defendants violated the Fair Labor Standards Act (“FLSA”).
08a0342p.06 2008/09/09	University of Pittsburgh v. David Townsend     Eastern District of Tennessee at Knoxville COLE, Circuit Judge. Plaintiff-Appellant University of Pittsburgh (“University”) brought suit against Defendants-Appellees David W. Townsend, Ronald Nutt, CTI Molecular Imaging, Inc. (“CTI”), and CTI PET Systems, Inc. (“CPS”) (collectively, “Defendants”), claiming that Defendants misappropriated the University’s rights and interests in a type of medical-scanning technology that the University alleges was collaboratively invented at its campus over a period of several years. The University’s complaint, as amended, asserts that Defendants, either individually or collectively, breached certain contracts, tortiously interfered with contractual relations, breached fiduciary duties, misappropriated or converted proprietary interests and rights, engaged in an unlawful conspiracy, committed fraud and misrepresentations, and were unjustly enriched by their actions. Defendants moved for summary judgment on the ground that the University’s claims were time-barred by the applicable statutes of limitations. In response, the University filed a motion for partial summary judgment. The district court granted summary judgment to Defendants and dismissed the complaint. On appeal, the University calls upon us to reverse the district court and hold that its claims were timely filed under the pertinent statutes of limitations. For the following reasons, we AFFIRM.
08a0343p.06 2008/09/09	BellSouth Tele Inc v. Farris et al AT&T v. Rudolph     Eastern District of Kentucky at Frankfort SUTTON, Circuit Judge. In 2005, Kentucky imposed a 1.3% tax on the gross revenues of telecommunications providers. Ky. Rev. Stat. Ann. § 136.616(1), (2)(b). In connection with the new tax, the legislature banned providers from “collect[ing] the tax directly” from consumers and from “separately stat[ing] the tax on the bill.” Id. § 136.616(3). The providers filed this lawsuit because they want to identify the new tax as a line item on all customer invoices to explain why they have raised prices, while the Commonwealth says that the new law prevents them from doing so. No one disputes Kentucky’s authority to impose this tax, the providers’ responsibility to pay it or Kentucky’s authority to prevent providers from switching the legal incidence of taxation to their customers. And no one disputes the providers’ right to raise prices to account for this additional cost of doing business. The question is whether the Commonwealth may permit providers to raise prices but prohibit them from using their invoices to say why without running afoul of the “freedom of speech” protections of the First (and Fourteenth) Amendment. Whether the no-stating-the-tax provision is more akin to a price-advertising ban (governed by the commercial-speech doctrine) or to a ban on protesting a new tax in the forum most likely to get consumers’ attention (governed by the political-speech doctrine) need not detain us. For it fails to satisfy even the intermediate scrutiny that applies to restrictions on commercial speech. The district court having come to a similar conclusion, we affirm. To the extent the district court also meant to invalidate the provision that bars providers from collecting the tax directly from the consumer, a point not entirely clear from the decision, we reverse that portion of its decision, as this provision regulates conduct, not speech.
08a0344p.06 2008/09/11	Talley v. Family Dollar Stores     Northern District of Ohio at Akron MERRITT, Circuit Judge. The plaintiff, Pearlie Talley, appeals the district court’s grant of summary judgment in favor of the defendants, Family Dollar Stores of Ohio (Family Dollar), John Parker, Vincent Cowles, and Ric Spring, on her claims of discrimination in violation of the Americans with Disabilities Act (ADA) and Ohio’s anti-discrimination statute and her claim for intentional infliction of emotional distress. For the reasons set forth below, and because we conclude that there is a material dispute of fact about whether Talley abandoned her job or was discharged, we AFFIRM in part, REVERSE in part, and remand for further proceedings consistent with this opinion.
08a0345p.06 2008/09/11	Rosella Hunt v. Sycamore Community School Distr Bd of Educ     Southern District of Ohio at Cincinnati JOHN R. GIBSON, Circuit Judge. Rosella Hunt appeals from the district court’s entry of summary judgment against her on her 42 U.S.C. § 1983 claim against the Board of Education of the school district that employed her and the superintendent of that school district, Dr. Karen Mantia, alleging that the defendants violated her right to substantive due process by subjecting her to dangerous working conditions in her job as a teacher’s aide for special education students. On an extra-curricular field trip to a bowling alley, an autistic girl, A--, assaulted Hunt, rupturing disks in her neck. The district court granted summary judgment to the defendants, concluding that there was no affirmative action by the school district that endangered Hunt. We affirm the judgment of the district court.

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Opinion	Short Title/District
08a0547n.06	Whitaker v. Elec Data Sys Corp     Western District of Kentucky at Louisville SARGUS, District Judge. The Appellant, Nolan Whitaker (“Whitaker”), appeals the summary judgment rendered by the district court in favor of the Appellee, Electronic Data Systems Corporation (“Electronic Data”). Whitaker contends that his former employer, Electronic Data, retaliated against him for asserting his rights under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et. seq., interfered with his rights under the FMLA, and discriminated against him in violation of the Kentucky Civil Rights Act, Ky. Rev. Stat. After carefully reviewing the record, the applicable law, and the parties’ briefs, we are convinced that the district court did not err. The opinion issued by the district court correctly sets forth the law governing the issues raised in this case. Therefore, we AFFIRM the district court’s summary judgment for the reasons set forth in the thorough opinion of the district court.
08a0548n.06	Joe Oakley v. City of Memphis     Western District of Tennessee at Memphis
08a0549n.06	Peters v. Chandler     Western District of Kentucky at Louisville COOK, Circuit Judge. Petitioner James Allen Peters appeals from the district court’s dismissal of his petition for a writ of habeas corpus. Peters is serving a thirty-five year sentence after pleading guilty to first-degree rape and first-degree assault and then unsuccessfully attempting to withdraw his plea. Peters argues: (1) that he was denied effective assistance of counsel at his motion to withdraw his guilty plea; (2) that the trial court should have given him a Faretta warning before he argued his motion to withdraw; and (3) that he was denied effective assistance of counsel when his appointed counsel failed to obtain an expert opinion about whether his victim’s injuries sufficed to support a first-degree rape charge. Finding no merit in Peters’s claims, we affirm.
08a0550n.06	USA v. Metcalf     Eastern District of Michigan at Detroit
08a0552n.06	Hussein Dia v. Mukasey     Board of Immigration Appeals
08a0553n.06	USA v. Martin     Eastern District of Kentucky at London KENNEDY, Circuit Judge. Defendant Donald R. Martin challenges the procedural reasonableness of his sentence of 360 months of imprisonment for production of child pornography and 120 months of imprisonment for possession of child pornography, to be served concurrently. Martin argues that the district court erred in calculating his advisory United States Sentencing Guidelines (“USSG”) range by (1) applying the two-level enhancement under USSG § 2G2.1(b)(5) because the child victims were in his care, custody, or supervisory control; (2) applying the two-level adjustment under USSG § 3B1.4 because he used a minor to commit the crime; and (3) improperly “grouping” the counts under USSG § 3D1.2. Though we find that the enhancement and adjustment were properly applied, because we find that the district court erred by failing to properly group closely related counts under USSG § 3D1.2 before calculating Martin’s combined adjusted offense level, resulting in a significantly higher recommended Guidelines range, we REVERSE the judgment of the district court and REMAND the case for resentencing consistent with this opinion.
08a0554n.06	Kopyonkina, et al. v. Mukasey     Board of Immigration Appeals
08a0555n.06	USA v. Sims     Eastern District of Tennessee of Chattanooga
08a0556n.06	Roumeliote v. Long Term Disability     Southern District of Ohio at Columbus
08a0557n.06	Peltz v. Moretti     Northern District of Ohio at Cleveland
08a0558n.06	Ramirez-Felipe v. Mukasey     Board of Immigration Appeals
08a0559n.06	Przybylinski v. CSX Trans     Western District of Michigan at Grand Rapids ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Jami Przybylinski (“Przybylinski”) appeals the district court’s order granting in part and denying in part Defendant-Appellee CSX Transportation, Inc.’s (“CSX”) motion for summary judgment and granting judgment for CSX in this case filed pursuant to the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51, et seq. Because we find that CSX did not breach its duty to Przybylinski, we REVERSE the district court’s determination to the contrary, but we AFFIRM the judgment in favor of CSX.