Sixth Circuit Cases

update: Links "fixed" in weekly digest of Oct. 20-25, 2008 decisions

Correction!  The links to the full text decisions for the week of Oct. 20-24, 2008 have been updated to work. 

Oct. 20-25, 2008: US 6th Circuit Court of Appeals Decisions

update: Links "fixed" in weekly digest of Oct. 20-25, 2008 decisions

Correction!  The links to the full text decisions for the week of Oct. 20-24, 2008 have been updated to work. 

Oct. 20-25, 2008: US 6th Circuit Court of Appeals Decisions

Oct. 20-25, 2008: US 6th Circuit Court of Appeals Decisions

updated!  links fixed and should be working now!

PUBLISHED OPINIONS

   

Opinion	Short Title/District
08a0381p.06	Jo Ann Allen v. Highlands Hospital Corporation     Eastern District of Kentucky at Pikeville RONALD LEE GILMAN, Circuit Judge. Jo Ann Allen and Debra Slone (collectively the plaintiffs) sued their employer, Highlands Hospital Corporation (HHC or the Hospital), for age discrimination under the Age Discrimination in Employment Act (ADEA) and the Kentucky Civil Rights Act (KCRA). In November 2003, both women were terminated after they allegedly violated HHC’s confidentiality policy. HHC determined that Allen and Slone had breached the 1 No. 07-6414 Allen et al. v. Highlands Hospital Corp. Page 2 confidentiality of one of its patients, Allen’s minor granddaughter, by permitting the removal of the girl’s x-rays from the Hospital without written authorization from the girl’s mother. Allen and Slone each filed a state-court action against HHC. They claimed that the Hospital’s stated reason for discharging them was a pretext designed to hide age discrimination. Both cases were removed to federal district court and consolidated for trial. HHC subsequently filed a motion for summary judgment, which the court granted. For the reasons set forth below, we AFFIRM the judgment of the district court.
08a0382p.06	Chaz Concrete Co LLC v. Codell     Eastern District of Kentucky at Frankfort DUGGAN, District Judge. In this action, brought pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68, plaintiffs-appellants Chaz Concrete Co., LLC, Grant Trucking, Inc., Green River Seed and Sod, Inc., and Sweeney Enterprises, Inc. 1 No. 07-5870 Chaz Concrete Co., et al. v. Codell, et al. Page 2 alleged that defendants-appellees James C. Codell and J.M. Yowell employed mail fraud, 18 U.S.C. § 1341, in a scheme to defraud the United States Department of Transportation’s Federal Highway Administration of money and property by certifying non-qualifying entities for participation in Kentucky’s Disadvantaged Business Enterprise (“DBE”) program. The district court granted summary judgment in favor of the defendants on the plaintiffs’ RICO claims. For the reasons set forth below, we REVERSE the judgment.
08a0383p.06	Franklin v. Bradshaw     Southern District of Ohio at Cincinnati
08a0384p.06	USA v. Pruitt     Eastern District of Tennessee at Greeneville
08b0016p.06	In re: Bettye Zwosta v.     U.S. Bankruptcy Court - Lexington
08b0016p.06	In re: James Setters v.     U.S. Bankruptcy Court - Covington
08a0385p.06	Brown, et al v. Cassens, et al     Eastern District of Michigan at Detroit KAREN NELSON MOORE, Circuit Judge. This case involves the dismissal of the claims of Plaintiffs-Appellants Paul Brown, William Fanaly, Charles Thomas, Gary Riggs, Robert Orlikowski, and Scott Way (collectively referred to as “plaintiffs”) against Defendants-Appellees 1 No. 05-2089 Brown et al. v. Cassens Transport Co. et al. Page 2 Cassens Transport Company (“Cassens”), Crawford & Company (“Crawford”), and Dr. Saul Margules (collectively referred to as “defendants”) under Federal Rule of Civil Procedure 12(b)(6). The plaintiffs alleged that the defendants employed mail and wire fraud in a scheme to deny them worker’s compensation benefits under the Michigan Worker’s Disability Compensation Act (“WDCA”), MICH. COMP. LAWS § 418.301, in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961(1)(B), 1962(c), 1964(c), and that the defendants’ conduct constituted intentional infliction of emotional distress (“IIED”) under Michigan law. The plaintiffs appealed the district court’s dismissal of their RICO claims based on the reverse preemption of the RICO claims under the McCarran-Ferguson Act, 15 U.S.C. § 1012, and for failure to plead certain claims with particularity, for failure to allege a pattern of racketeering activity, and for failure to plead reliance on the defendants’ fraud. A divided panel of this court affirmed the district court’s dismissal of plaintiffs’ RICO claims because plaintiffs had failed to plead detrimental reliance on alleged misrepresentations of defendants. The Supreme Court vacated our judgment and remanded for further consideration in light of Bridge v. Phoenix Bond & Indemnity Co., — U.S. —, 128 S. Ct. 2131 (2008), which held unanimously that a civil-RICO plaintiff does not need to show that it detrimentally relied on the defendant’s alleged misrepresentations. On remand, we REVERSE the district court’s dismissal of plaintiffs’ RICO claims because the WDCA does not preempt their RICO claims and because plaintiffs have sufficiently pleaded a pattern of racketeering activity given that reliance is not an element of a civil RICO fraud claim. We REMAND to the district court for further proceedings consistent with this opinion. The plaintiffs also appeal the district court’s dismissal of their IIED claims for failure to plead outrageous conduct. We AFFIRM the dismissal of the IIED claims because the alleged conduct of these defendants could not be deemed outrageous under Michigan law.
08a0386p.06	Jelovsek v. Bredesen     Eastern District of Tennessee at Greeneville ALAN E. NORRIS, Circuit Judge. These consolidated cases ask the question whether Tennessee laws governing the wine industry violate the dormant commerce clause of the Constitution. This is one of several lawsuits filed across the country after the Supreme Court invalidated wine-related laws in Michigan and New York which allowed only in-state wineries to sell and ship wine directly to consumers. Granholm v. Heald, 544 U.S. 460 (2005). The plaintiffs-appellants include Tennessee residents Frederick Jelovsek and Martin Reddish, individual oenophiles who would like better access to wine produced outside of Tennessee, and a winery based in the state of Indiana, S.L. Thomas Family Winery, Inc., which would like to sell directly to Tennessee residents. Plaintiffs sued the Governor, Attorney General, and Executive Director of the Tennessee Alcoholic Beverage Commission, in their official capacities. In addition, the Wine and Spirits Wholesalers of Tennessee (“WSWT”) successfully intervened as a defendant. For convenience sake, as the Court did in Granholm, the appellants will collectively be referred to as “the wineries,” unless distinguishing them is appropriate, and the appellees will be referred to as “the state.” The district court granted defendants’ Fed. R. Civ. P. 12(c) motion for judgment on the pleadings. Jelovsek v. Bresden, 482 F. Supp. 2d 1013, 1023 (E.D. Tenn. 2007).1 The district court concluded that since both in- and out-of-state wineries are prohibited from selling and shipping wine directly to Tennessee consumers, this case is distinguishable from Granholm. The invalidated laws in Granholm denied only out-of-state wineries the ability to ship to consumers, a disparate treatment that the Supreme Court ruled unconstitutional. We agree with the district court that the Tennessee shipping restrictions are distinguishable from those struck down in Granholm and affirm the district court’s judgment as to the Tennessee ban on the direct shipment of alcohol to consumers, including wine. However, the wineries make a broader challenge to the Tennessee regulatory scheme for alcohol, specifically wine. As discussed below, we conclude that certain other challenged laws are discriminatory on their face, and thus vacate the district court judgment as to those laws, and remand for further proceeding
08a0387p.06	USA v. Kuehne     Southern District of Ohio at Dayton

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Opinion	Short Title/District
08a0631n.06	Shollenbarger v. Planes Moving & Stor     Southern District of Ohio at Cincinnati
08a0632n.06	DTR Industries, Inc. v. NLRB     National Labor Relations Board
08a0632n.06	DTR Industries, Inc. v. NLRB     National Labor Relations Board
08a0634n.06	Groeneveld Transport Efficienc v. Jan Eisses     Northern District of Ohio at Cleveland
08a0635n.06	USA v. Brownlee     Western District of Tennessee at Memphis
08a0636n.06	Christina Howington v. Quality Restaurant Concepts, L     Eastern District of Tennessee at Greeneville
08a0637n.06	USA v. Keith Pratt     Middle District of Tennessee at Nashville
08a0638n.06	USA v. Matthews     Northern District of Ohio at Cleveland
08a0639n.06	USA v. Weisburg     Northern District of Ohio at Toledo
08a0640n.06	Ridgley v. Dept of Labor     Department of Labor (except OSHA)
08a0641n.06	USA v. Conway     Western District of Tennessee at Jackson
08a0642n.06	USA v. Milburn     Eastern District of Tennessee at Greeneville
08a0643n.06	USA v. Franklin     Eastern District of Kentucky at Lexington
08a0644n.06	Thomas v. City of Detroit     Eastern District of Michigan at Detroit
08a0645n.06	Michael Graham v. Best Buy Stores, L.P.     Northern District of Ohio at Cleveland
08a0646n.06	USA v. Smith     Western District of Tennessee at Memphis
08a0647n.06	USA v. Shrout     Eastern District of Kentucky at Lexington
08a0648n.06	USA v. McCree     Northern District of Ohio at Cleveland
08a0649n.06	USA v. Cheney     Eastern District of Michigan at Detroit
08a0650n.06	Thomas Sparks v. HSBC Auto Finance     Southern District of Ohio at Cincinnati
08a0651n.06	Dennis Verhoff v. Time Warner Cable Inc.     Northern District of Ohio at Toledo
08a0652n.06	USA v. Henry     Middle District of Tennessee at Nashville

Oct. 13-17, 2008: US 6th Circuit Court of Appeals Decisions

PUBLISHED OPINIONS

Opinion	Short Title/District
08a0373p.06	Armalite, Inc. v. Marcia Lambert     Northern District of Ohio at Toledo SUTTON, Circuit Judge. Armalite is an Illinois corporation licensed to sell guns in Ohio. In this appeal, it asks us to reverse the Bureau of Alcohol, Tobacco, Firearms & Explosives’s (ATF) revocation of its license for “willfully” violating the Gun Control Act of 1968 (GCA), 18 U.S.C. §§ 921–928. We affirm.
08a0374p.06	Ohio Republican Party v. Jennifer Brunner     Southern District of Ohio at Columbus
08a0375p.06	Thap v. Mukasey     Board of Immigration Appeals
08a0376p.06	USA v. Jordan     Middle District of Tennessee at Nashville
08a0377p.06	Mendoza v. Berghuis     Eastern District of Michigan at Detroit
08a0374p.06	Ohio Republican Party v. Jennifer Brunner     Southern District of Ohio at Columbus
08a0378p.06	USA v. Williams     Eastern District of Michigan at Detroit
08a0379p.06	Daugherty v. Sajar Plastics, Inc.     Northern District of Ohio at Cleveland GRIFFIN, Circuit Judge. Plaintiff James Daugherty appeals from the district court’s order granting summary judgment in favor of his former employer, defendant Sajar Plastics, Inc., on his claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213 (2000), the Ohio Civil Rights Act (“OCRA”), OHIO REV. CODE § 4112.02, and the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. For the reasons stated below, we affirm in part and reverse in part.
08a0380p.06	USA v. Henry     Eastern District of Michigan at Detroit
08b0015p.06	In re: Shawn Eugene Petro v.     U.S. Bankruptcy Court - Nashville

    NOT RECOMMENDED FOR
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Opinion	Short Title/District
08a0613n.06	USA v. Alepin     Eastern District of Tennessee at Knoxville
08a0614n.06	Seider v. Hutchison     Eastern District of Tennessee at Knoxville
08a0615n.06	Stamtec Inc. v. Pam Anson     Western District of Kentucky at Louisville
08a0616n.06	Mullins v. US Bank     Southern District of Ohio at Columbus
08a0617n.06	USA v. Stapleton     Eastern District of Kentucky at Pikeville
08a0618n.06	NEFT, LLC v. Border States Energy, LLC     Eastern District of Tennessee at Knoxville
08a0619n.06	William Baynes v. USA     Eastern District of Kentucky at Ashland
08a0620n.06	Herrera Flores v. Mukasey     Board of Immigration Appeals
08a0621n.06	Steven Landis v. Dave Phalen     Southern District of Ohio at Columbus
08a0622n.06	Amanda Landis v. Greg Galarneau     Eastern District of Michigan at Detroit
08a0622n.06	Amanda Landis v. Jason Baker     Eastern District of Michigan at Detroit
08a0623n.06	Rene Davey v. St. John Health     Eastern District of Michigan at Detroit
08a0624n.06	Transpro, Inc. v. Leggett & Platt, Inc.     Northern District of Ohio at Cleveland
08a0625n.06	USA v. Niece     Eastern District of Kentucky at Lexington
08a0626n.06	Ramona Hillman v. Shelby County     Western District of Tennessee at Memphis
08a0627n.06	Walbridge Aldinger v. Detroit Cty     Eastern District of Michigan at Detroit
08a0628n.06	Okros v. Angelo Iafrate     Eastern District of Michigan at Ann Arbor
08a0629n.06	Hui Wang v. Michael Mukasey     Board of Immigration Appeals
08a0630n.06	USA v. Joe Lobbins     Western District of Tennessee at Memphis

Oct. 6-10, 2008: US 6th Circuit Court of Appeals Decisions

  PUBLISHED DECISIONS

Opinion	Short Title/District
08a0359p.06 2008/10/06	Newman v. Metrish     Eastern District of Michigan at Detroit
08a0360a.06 2008/10/06	Ley v. Visteon Corp     Eastern District of Michigan at Detroit McKEAGUE, Circuit Judge. Plaintiffs Glynn Ley and Public Employees’ Retirement System of Mississippi (collectively, “Plaintiffs”) appeal a district court’s grant of Defendants’ Visteon Corporation, Peter Pestillo, Michael Johnston, Daniel R. Coulson, James Palmer, and Pricewaterhousecooper, L.L.P., (“PwC”) (collectively, “Defendants”) motions to dismiss Plaintiffs’ class action securities violation claims. Upon review of the record and the applicable law, we AFFIRM the judgment of the district court.
08a0361p.06 2008/10/07	USA v. Castano     Eastern District of Michigan at Detroit
08a0362p.06 2008/10/07	M.A.L. v. Kinsland     Eastern District of Michigan at Detroit McKEAGUE, Circuit Judge. Plaintiffs Glynn Ley and Public Employees’ Retirement System of Mississippi (collectively, “Plaintiffs”) appeal a district court’s grant of Defendants’ Visteon Corporation, Peter Pestillo, Michael Johnston, Daniel R. Coulson, James Palmer, and Pricewaterhousecooper, L.L.P., (“PwC”) (collectively, “Defendants”) motions to dismiss Plaintiffs’ class action securities violation claims. Upon review of the record and the applicable law, we AFFIRM the judgment of the district court. requirements of appropriate discipline in the operation of the school, citing the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). The district court permanently enjoined enforcement of Jefferson Middle School’s distribution policy and its prohibition on the student’s hallway distribution. The court also awarded the student one dollar in nominal damages. For the reasons that follow, we reverse the district court’s entry of a permanent injunction and its award of nominal damages.
08a0363p.06 2008/10/07	USA v. Alexander     Western District of Michigan at Grand Rapids
08a0364p.06 2008/10/08	Zhang v. Mukasey     Board of Immigration Appeals
08a0365p.06 2008/10/08	Rose Bogaert v. Terri Land     Western District of Michigan at Grand Rapids The plaintiff is the sponsor of a petition to recall a Michigan state legislator from office. In June 2008, Michigan Secretary of State Terri Lynn Land, invoking the provisions of M.C.L. § 168.957, declared that the plaintiff had not obtained the required number of votes to put the recall issue on the ballot. The plaintiff then filed this civil rights action asserting that M.C.L. § 168.957 violated the First Amendment. She also filed a motion for a preliminary injunction ordering Secretary Land to re-examine the recall petitions without applying the challenged state statute. Representative Andrew Dillon, the subject of the recall petition, was permitted to intervene, as were Wayne County Clerk Cathy M. Garrett and the Wayne County Election Commission – the latter two being responsible for the final preparation of the ballot in the state legislative district represented by Dillon.
08b0014p.06 2008/10/08	In re: Gerald A. Wingerter v.     U.S. Bankruptcy Court - Akron
08a0366a.06 2008/10/09	USA v. Lawson     Northern District of Ohio at Toledo
08a0367p.06 2008/10/09	Thomson, et al. v. Toyota Motor, et al.     Northern District of Ohio at Cleveland AVERN COHN, District Judge. This is a tort case. Plaintiffs-Appellants, the Estate of Dorothy Thomson (“the Estate”) and Colleen Miller sued Defendants-Appellees, Toyota Motor Corporation Worldwide (“TMC”) and Thrifty Rent-A-Car Systems, Inc. (“Thrifty”) in the Northern District of Ohio following a car accident in South Africa in which Colleen Miller and Dorothy Thomson were injured. Thomson subsequently died from her injuries. The district court granted TMC’s motion to dismiss for lack of personal jurisdiction and sua sponte dismissed plaintiffs’ claims agaaffirm.
08a0368p.06 2008/10/09	Richard Cooey, II v. Ted Strickland     Southern District of Ohio at Columbus
08a0369p.06 2008/10/10	Johnson v. Bagley     Southern District of Ohio at Cincinnati
08a0370p.06 2008/10/10	Grace Community Church v. Lenox Tonwship     Eastern District of Michigan at Detroit McKEAGUE, Circuit Judge. Grace Community Church applied for and was granted a special land use permit by the Lenox Township Planning Commission to operate a residential facility for religious instruction and spiritual counseling. The special use permit included certain restrictions. A month later, the Planning Commission, faced with evidence that the restrictions had been violated, revoked the permit. Instead of attempting to rebut or explain the evidence or appealing the revocation to the Zoning Board of Appeals, Grace Community Church filed suit. The complaint challenges the revocation as a violation of the Church’s rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq., and as a denial of equal protection. The district court awarded summary judgment to the Township, concluding the action was not ripe, as the Church had failed to exhaust administrative remedies and obtain a final decision before filing suit. On appeal, Grace Church contends exhaustion is not prerequisite to enforcement of rights under the RLUIPA, relying primarily on DiLaura v. Ann Arbor Twp., 30 F. App’x 501 (6th Cir. 1 2002). For the reasons that follow, we find no error and therefore affirm the district court’s judgment.
08a0371p.06 2008/10/10	Andrews v. Columbia Gas     Southern District of Ohio at Columbus McKEAGUE, Circuit Judge. This diversity case involves what some consider to be a David” standing up to an “out-of-state corporate Goliath.”1 Plaintiffs Donald S. Andrews and Jill Beeler Andrews appeal the district court’s determination that defendant Columbia Gas Transmission Corporation (“Columbia Gas”) is entitled to clear a fifty-foot right of way around each of its natural gas pipelines running through plaintiffs’ property. For the reasons stated below, we AFFIRM.
08a0372p.06 2008/10/10	S.E. v. Grant County Board of Education     Eastern District of Kentucky at Covington McKEAGUE, Circuit Judge. This diversity case involves what some consider to be a David” standing up to an “out-of-state corporate Goliath.”1 Plaintiffs Donald S. Andrews and Jill Beeler Andrews appeal the district court’s determination that defendant Columbia Gas Transmission Corporation (“Columbia Gas”) is entitled to clear a fifty-foot right of way around each of its natural gas pipelines running through plaintiffs’ property. For the reasons stated below, we AFFIRM.

    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION OPINIONS
       

Opinion	Short Title/District
08a0600n.06	Hughes v. Zurz     Southern District of Ohio at Columbus
08a0600n.06	Hughes v. Zurz     Southern District of Ohio at Columbus
08a0601n.06	Barber v. Louisville Jefferson     Western District of Kentucky at Louisville McKEAGUE, Circuit Judge. Ronald Barber ("Barber") and the Louisville and Jefferson County Metropolitan Sewer District ("MSD") both appeal summary judgment orders entered by the district court during the course of the trial on Barber’s First Amendment and state whistleblower claims. For the reasons stated below, we affirm the district court’s orders.
08a0602n.06	USA v. Boyett     Western District of Tennessee at Memphis
08a0603n.06	USA v. Earl McBee     Eastern District of Tennessee at Knoxville
08a0604n.06	USA v. Brock     Western District of Michigan at Grand Rapids
08a0605n.06	USA v. Mitchell     Western District of Michigan at Grand Rapids
08a0605n.06	USA v. Lofton     Western District of Michigan at Grand Rapids
08a0606n.06	Chandler v. Village of Chagrin Falls     Northern District of Ohio at Cleveland
08a0607n.06	Rusishvili v. Mukasey     Board of Immigration Appeals

Oct. 6-10, 2008: US 6th Circuit Court of Appeals Decisions

  PUBLISHED DECISIONS

                                                                                                                                                                        

Opinion	Short Title/District
08a0359p.06           2008/10/06	Newman           v. Metrish               Eastern District of Michigan at Detroit
08a0360a.06           2008/10/06	Ley           v. Visteon Corp               Eastern District of Michigan at Detroit                     McKEAGUE, Circuit Judge.  Plaintiffs Glynn Ley and Public Employees’ Retirement System of Mississippi (collectively, “Plaintiffs”) appeal a district court’s grant of Defendants’ Visteon Corporation, Peter Pestillo, Michael Johnston, Daniel R. Coulson, James Palmer, and Pricewaterhousecooper, L.L.P., (“PwC”) (collectively, “Defendants”) motions to dismiss Plaintiffs’ class action securities violation claims.  Upon review of the record and the applicable law, we AFFIRM the judgment of the district court.
08a0361p.06           2008/10/07	USA           v. Castano               Eastern District of Michigan at Detroit
08a0362p.06           2008/10/07	M.A.L.           v. Kinsland               Eastern District of Michigan at Detroit                     McKEAGUE, Circuit Judge.  Plaintiffs Glynn Ley and Public Employees’ Retirement System of Mississippi (collectively, “Plaintiffs”) appeal a district court’s grant of Defendants’ Visteon Corporation, Peter Pestillo, Michael Johnston, Daniel R. Coulson, James Palmer, and Pricewaterhousecooper, L.L.P., (“PwC”) (collectively, “Defendants”) motions to dismiss Plaintiffs’ class action securities violation claims.  Upon review of the record and the applicable law, we AFFIRM the judgment of the district court. requirements of appropriate discipline in the operation of the school, citing the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). The district court permanently enjoined enforcement of Jefferson Middle School’s distribution policy and its prohibition on the student’s hallway distribution.  The court also awarded the student one dollar in nominal damages.  For the reasons that follow, we reverse the district court’s entry of a permanent injunction and its award of nominal damages.
08a0363p.06           2008/10/07	USA           v. Alexander               Western District of Michigan at Grand Rapids
08a0364p.06           2008/10/08	Zhang           v. Mukasey               Board of Immigration Appeals
08a0365p.06           2008/10/08	Rose           Bogaert v. Terri Land               Western District of Michigan at Grand Rapids                     The plaintiff is the sponsor of a petition to recall a Michigan state legislator from office. In June 2008, Michigan Secretary of State Terri Lynn Land, invoking the provisions of M.C.L. § 168.957, declared that the plaintiff had not obtained the required number of votes to put the recall issue on the ballot. The plaintiff then filed this civil rights action asserting that M.C.L. § 168.957 violated the First Amendment.  She also filed a motion for a preliminary injunction ordering Secretary Land to re-examine the recall petitions without applying the challenged state statute. Representative Andrew Dillon, the subject of the recall petition, was permitted to intervene, as were Wayne County Clerk Cathy M. Garrett and the Wayne County Election Commission – the latter two being responsible for the final preparation of the ballot in the state legislative district represented by Dillon.
08b0014p.06           2008/10/08	In           re: Gerald A. Wingerter v.               U.S. Bankruptcy Court - Akron
08a0366a.06           2008/10/09	USA           v. Lawson               Northern District of Ohio at Toledo
08a0367p.06           2008/10/09	Thomson,           et al. v. Toyota Motor, et al.               Northern District of Ohio at Cleveland                     AVERN COHN, District Judge.  This is a tort case.  Plaintiffs-Appellants, the Estate of Dorothy Thomson (“the Estate”) and Colleen Miller sued Defendants-Appellees, Toyota Motor Corporation Worldwide (“TMC”) and Thrifty Rent-A-Car Systems, Inc. (“Thrifty”) in the Northern District of Ohio following a car accident in South Africa in which Colleen Miller and Dorothy Thomson were injured.  Thomson subsequently died from her injuries.  The district court granted TMC’s motion to dismiss for lack of personal jurisdiction and sua sponte dismissed plaintiffs’ claims agaaffirm.
08a0368p.06           2008/10/09	Richard           Cooey, II v. Ted Strickland               Southern District of Ohio at Columbus
08a0369p.06           2008/10/10	Johnson           v. Bagley               Southern District of Ohio at Cincinnati
08a0370p.06           2008/10/10	Grace           Community Church v. Lenox Tonwship               Eastern District of Michigan at Detroit                     McKEAGUE, Circuit Judge.  Grace Community Church applied for and was granted a special land use permit by the Lenox Township Planning Commission to operate a residential facility for religious instruction and spiritual counseling.  The special use permit included certain restrictions.  A month later, the Planning Commission, faced with evidence that the restrictions had been violated, revoked the permit.  Instead of attempting to rebut or explain the evidence or appealing the revocation to the Zoning Board of Appeals, Grace Community Church filed suit.  The complaint challenges the revocation as a violation of the Church’s rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq., and as a denial of equal protection.  The district court awarded summary judgment to the Township, concluding the action was not ripe, as the Church had failed to exhaust administrative remedies and obtain a final decision before filing suit. On appeal, Grace Church contends exhaustion is not prerequisite to enforcement of rights under the RLUIPA, relying primarily on DiLaura v. Ann Arbor Twp., 30 F. App’x 501 (6th Cir. 1 2002).  For the reasons that follow, we find no error and therefore affirm the district court’s judgment.
08a0371p.06           2008/10/10	Andrews           v. Columbia Gas               Southern District of Ohio at Columbus                     McKEAGUE, Circuit Judge.  This diversity case involves what some consider to be a David” standing up to an “out-of-state corporate Goliath.”1  Plaintiffs Donald S. Andrews and Jill Beeler Andrews appeal the district court’s determination that defendant Columbia Gas Transmission Corporation (“Columbia Gas”) is entitled to clear a fifty-foot right of way around each of its natural gas pipelines running through plaintiffs’ property.   For the reasons stated below, we AFFIRM.
08a0372p.06           2008/10/10	S.E.           v. Grant County Board of Education               Eastern District of Kentucky at Covington                     McKEAGUE, Circuit Judge.  This diversity case involves what some consider to be a David” standing up to an “out-of-state corporate Goliath.”1  Plaintiffs Donald S. Andrews and Jill Beeler Andrews appeal the district court’s determination that defendant Columbia Gas Transmission Corporation (“Columbia Gas”) is entitled to clear a fifty-foot right of way around each of its natural gas pipelines running through plaintiffs’ property.   For the reasons stated below, we AFFIRM.

    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION OPINIONS
       

                                                                                                                                

Opinion	Short Title/District
08a0600n.06	Hughes           v. Zurz               Southern District of Ohio at Columbus
08a0600n.06	Hughes           v. Zurz               Southern District of Ohio at Columbus
08a0601n.06	Barber           v. Louisville Jefferson               Western District of Kentucky at Louisville  McKEAGUE, Circuit Judge.           Ronald Barber ("Barber") and the Louisville and Jefferson           County Metropolitan Sewer District ("MSD") both appeal           summary judgment orders entered by the district court during the           course of the trial on Barber’s First Amendment and state whistleblower           claims. For the reasons stated below, we affirm the district court’s           orders.
08a0602n.06	USA           v. Boyett               Western District of Tennessee at Memphis
08a0603n.06	USA           v. Earl McBee               Eastern District of Tennessee at Knoxville
08a0604n.06	USA           v. Brock               Western District of Michigan at Grand Rapids
08a0605n.06	USA           v. Mitchell               Western District of Michigan at Grand Rapids
08a0605n.06	USA           v. Lofton               Western District of Michigan at Grand Rapids
08a0606n.06	Chandler           v. Village of Chagrin Falls               Northern District of Ohio at Cleveland
08a0607n.06	Rusishvili           v. Mukasey               Board of Immigration Appeals

Sep. 29 - Oct. 3, 2008: US 6th Circuit Court of Appeals Decisions

    PUBLISHED OPINIONS

Opinion	Short Title/District
08a0353p.06 2008/09/29	Davis v. MI Bell Tele Co     Eastern District of Michigan at Detroit ROGERS, Circuit Judge. Plaintiff Candice Davis appeals the district court’s grant of summary judgment in favor of the defendant, Michigan Bell Telephone Company, in this FMLA action. The defendant terminated Davis from her job as a customer service representative in February of 2005 because of excessive unexcused absences. Davis had sought FMLA leave with respect to those absences, but her request was denied on the ground that she had not worked enough hours in the preceding twelve months to be eligible for FMLA benefits. After being fired, Davis brought this action against the defendant, alleging that the defendant had interfered with her rights under the FMLA, retaliated against her for exercising those rights, and failed to give proper notice of ineligibility as required by the FMLA. Finding that Davis was ineligible for FMLA benefits in 2005, and that Davis could not maintain a cause of action based on improper notice of ineligibility, the district court granted summary judgment in favor of the defendant. On appeal, Davis argues that the district court erred in finding her ineligible for FMLA benefits because her eligibility from 2004 should have carried over into 2005. In the alternative, she argues that the defendant should be estopped from challenging her FMLA eligibility, and that she is entitled to recover because of the defendant’s failure to provide proper notice of ineligibility. Because these arguments are unavailing, * the district court judgment is affirmed.
08a0354p.06 2008/09/29	Marjorie Nixon v. Wilmington Trust Company     Northern District of Ohio at Toledo BOYCE F. MARTIN, JR., Circuit Judge. Marjorie Nixon appeals the district court’s dismissal pursuant to Rule 12(b)(6) of her claims for breach of fiduciary duty, breach of contract, and respondeat superior liability against Wilmington Trust. We AFFIRM.
08a0355p.06 2008/09/30	Ohio Republican Party v. Secretary of State Jennifer Brunner     Southern District of Ohio at Columbus KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Jennifer Brunner, Secretary of State of Ohio (“the Secretary”), brings this emergency motion to stay or vacate the district court’s grant of a Temporary Restraining Order (“TRO”) restraining enforcement of Advisory 2008-24, which advised county boards of elections that they are not required to allow election observers during the 35-day in-person absentee voting period immediately preceding Election Day. The Secretary argues before this court that (1) the district court lacked jurisdiction to issue injunctive relief against state officials on the basis of state law, and (2) the district court abused its discretion in granting the TRO. Plaintiffs-Appellees, the Ohio Republican Party and Larry Wolpert, bring an emergency motion seeking an injunction restraining the Secretary from allowing simultaneous registration and absentee voting to the extent that ballots cast by newly registered voters are not physically segregated from other ballots. For the reasons stated below, we GRANT the Secretary’s emergency motion to stay the district court’s TRO and DENY the plaintiffs’ emergency motion for an injunction.
08a0356p.06 2008/10/03	Mason v. Mitchell     Northern District of Ohio at Cleveland
08a0357p.06 2008/10/03	Parker v. Bagley     Northern District of Ohio at Cleveland
08a0358p.06 2008/10/03	USA v. Parker     Southern District of Ohio at Dayton

    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION OPINIONS
      

Opinion	Short Title/District
08a0580n.06	Roger Estill v. Georgianna Cool     Southern District of Ohio at Columbus
08a0581n.06	USA v. Manzo-Reyes     Northern District of Ohio at Akron
08a0582n.06	Bird v. Brigano     Southern District of Ohio at Cincinnati
08a0583n.06	Farah v. Wellington     Northern District of Ohio at Youngstown
08a0583n.06	Farah v. Wellington     Northern District of Ohio at Youngstown
08a0584n.06	Elam & Miller, P.S.C. v. National City Bank of Kentucky     Eastern District of Kentucky at Lexington ROGERS, Circuit Judge. Defendant Consolidated Mortgage, Inc. appeals the district court’s order substituting Elam & Miller, P.S.C. as the plaintiff in this case and the district court’s order granting Elam & Miller’s motion for summary judgment. After reviewing the record, the parties’ briefs, and the applicable law, this court affirms the district court’s decision for the reasons stated in Judge Coffman’s summary judgment opinion and order. Elam & Miller, P.S.C. v. National City Bank of Ky., No. 04-239-JBC, 2007 WL 2702332 (E.D. Ky. Sept. 12, 2007).
08a0585n.06	Kathy Hill v. Bradley County Board of Educat     Eastern District of Tennessee of Chattanooga
08a0586n.06	David Cox v. Commissioner of Social Securit     Eastern District of Kentucky at Lexington CLAY, Circuit Judge. Plaintiff-Appellant, David Cox, appeals from the district court’s grant of summary judgment in favor of Defendant-Appellee, Commissioner of Social Security. Cox filed the instant action, pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner denying Cox’s application for Social Security disability insurance benefits. Because we conclude that there is substantial evidence to support the Commissioner’s decision, we 1 affirm the district court’s grant of summary judgment in favor of the Commissioner.
08a0587n.06	USA v. Fletcher     Middle District of Tennessee at Nashville
08a0588n.06	Virga Carter v. City of Wyoming     Western District of Michigan at Grand Rapids
08a0589n.06	Berger v. Medina Cnty Ohio Bd     Northern District of Ohio at Cleveland
08a0590n.06	Rodriguez v. Mukasey     Board of Immigration Appeals
08a0591n.06	Larry Kellum v. Commissioner Social Security     Western District of Tennessee at Memphis
08a0592n.06	Sonjia Lindsey v. Whirlpool Corporation     Northern District of Ohio at Toledo
08a0593n.06	Winkelman v. Parma School     Northern District of Ohio at Cleveland
08a0594n.06	One Beacon Ins Co v. Chiusolo     Eastern District of Kentucky at Lexington RONALD LEE GILMAN, Circuit Judge. Gerard John Chiusolo owns a horse farm in Paris, Kentucky. He filed a claim with One Beacon Insurance Company, the provider of coverage for property loss on the farm, after a fire destroyed one of the horse barns. Suspecting arson, One Beacon launched an investigation. It concluded that the fire had been started by Chiusolo himself. After refusing to cover the loss, One Beacon filed a declaratory-judgment action in federal court that sought a ruling regarding its coverage responsibilities. The district court granted summary judgment to One Beacon, holding that Chiusolo had (a) failed to return a proof-of-loss form within the time period required by the policy, and (b) made material misrepresentations on the policy application, thus barring coverage as a matter of law. For the reasons set forth below, we AFFIRM the judgment of the district court.
08a0595n.06	Michael Johnson v. Metropolitan Government of Nas     Middle District of Tennessee at Nashville
08a0596n.06	Paducah & Louisville Railway, v. Quixx Corporation     Western District of Kentucky at Owensboro PER CURIAM. Following an eleven-car derailment, plaintiff railway sued the repair facility that serviced its railcar seven years prior to the accident. The district court granted summary judgment in favor of defendants because it concluded, inter alia, that plaintiffs could not establish that defendants’ alleged negligence proximately caused the derailment. After reviewing the record, the parties’ briefs, and the applicable law, we conclude that issuance of a panel opinion would not serve any jurisprudential purpose. Thus, we affirm the district court . . . .
08a0597n.06	Peno Trucking Inc. v. Commissioner Internal Revenue     Commissioner of Internal Revenue

Sep. 22-26, 2008: US 6th Circuit Court of Appeals Decisions

PUBLISHED OPINIONS

Opinion	Short Title/District
08a0351p.06 2008/09/24	USA v. Zachariah Polihonki     Western District of Michigan at Grand Rapids
08a0352p.06 2008/09/24	Smith v. Berghuis     Western District of Michigan at Grand Rapids

    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION OPINIONS
      

Opinion	Short Title/District
08a0570n.06	Brown v. City of Cleveland     Northern District of Ohio at Cleveland
08a0571n.06	Gordon v. Dadante     Northern District of Ohio at Cleveland
08b0016n.06	In re: Arthur Boyd, Jr. v.     U.S. Bankruptcy Court - Cleveland
08a0572n.06	Shaw v. Pfeiffer     Southern District of Ohio at Columbus
08a0573n.06	Abdulelah Alshareqi v. Michael Mukasey     Board of Immigration Appeals
08a0574n.06	USA v. Tarpley     Western District of Michigan at Grand Rapids
08a0575n.06	Lam v. Mukasey     Board of Immigration Appeals
08a0576n.06	Ahmed Ould Habib Ramdane v. Mukasey     Board of Immigration Appeals
08a0577n.06	James Kimberlin v. Renasant Bank     Western District of Tennessee at Memphis
08a0578n.06	USA v. Shults     Eastern District of Tennessee at Greeneville
08a0579n.06	McGuire v. Warner     Eastern District of Michigan at Detroit