6th Cir. Published Decisions for Week of Sept. 24-28, 2007 (2 Ky. Pub. Dec. 3 Ky. NPO)

Opinion	Pub Date	Short Title/District
07a0386p.06	2007/09/24	Cruse v. Comm Social Security     Western District of Tennessee at Jackson SILER, Circuit Judge. In this appeal, Plaintiff Kimberly L. Cruse (“Cruse”) challenges the district court’s decision affirming the determination of the Defendant Commissioner of Social Security (“Commissioner”) that Cruse was not disabled and therefore not entitled to disability insurance and supplemental security income (“SSI”) benefits under the Social Security Act (the “Act”). Specifically, she advances four contentions on appeal: 1) the Commissioner afforded less than the proper amount of weight to the opinions of her treating physician and nurse practitioner; 2) the Commissioner erred in finding Cruse’s testimony about disabling pain, other symptoms, and functional limitations less than credible; 3) the Commissioner’s decision finding Cruse not disabled was not supported by substantial evidence; and 4) the Commissioner erred by failing to present vocational expert testimony. Finding no reversible error, we affirm.
07a0387p.06	2007/09/25	Assoc of Cleveland v. City of Cleveland     Northern District of Ohio at Cleveland McKEAGUE, Circuit Judge. Association of Cleveland Fire Fighters, Local 93 of the International Association of Fire Fighters and all individual members of Local 93, and individual fire fighters Samuel DeVito, Don Posante, and James Sliter (collectively, “Appellants”) appeal from the district court’s order dismissing their challenges to the residency requirement of the City of Cleveland (the “City”). Appellants allege that the residency requirement set forth in section 74(a) of the City Charter violates the Equal Protection Clause, the constitutional right to travel, and the right to travel set forth in the International Covenant on Civil and Political Rights, and that it is also void for vagueness. The district court granted the defendants-appellees’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). We AFFIRM.
07a0388p.06	2007/09/25	Peet v. Detroit Spencer v. Detroit     Eastern District of Michigan at Detroit ROGERS, Circuit Judge. This appeal is composed of two related cases. Both cases are actions under 42 U.S.C. § 1983 seeking damages from individual Detroit police officers for their alleged unconstitutional seizure and malicious prosecution of the plaintiffs. The plaintiffs, Dennis Peet and Jeemell Spencer, further seek to hold the City of Detroit liable for the officers’ alleged constitutional violations. On appeal, the plaintiffs seek to overturn the district court’s grant of summary judgment in favor of Dwight Pearson and the City of Detroit. For the reasons given below, we affirm.
07a0389p.06	2007/09/25	Bey v. Bagley     Northern District of Ohio at Toledo ALICE M. BATCHELDER, Circuit Judge. Petitioner Gregory L. Bey appeals the district court’s dismissal of his petition for a writ of habeas corpus. Bey argues that the state trial court violated the United States Constitution by admitting certain “other acts” evidence at trial, over his objection. We find Bey’s claim meritless and AFFIRM the judgment of the district court.
07a0390p.06	2007/09/25	Fed Home Loan Mtg v. Lamar     Northern District of Ohio at Cleveland ALICE M. BATCHELDER, Circuit Judge. Cynthia G. Lamar appeals the district court’s grant of summary judgment in favor of Lerner, Sampson, & Rothfuss, L.P.A. (“LS&R”) on Lamar’s claim that LS&R violated the notice provisions of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et. seq., when LS&R included the statutorily-required notice with the summons and complaint it served Lamar. Because LS&R effectively conveyed notice of Lamar’s right to dispute the validity of her debt, we AFFIRM the district court.
07a0391p.06	2007/09/25	Experimental Holding v. Farris     Eastern District of Kentucky at Frankfort ROGERS, Circuit Judge. Plaintiff Experimental Holdings, Inc. (“EHI”) appeals the district court’s dismissal of its “disappointed bidder” § 1983 claim and its state law claim alleging violations of Kentucky law covering the award of public contracts. Because the procedural requirements of Kentucky lease procurement law do not afford EHI a property interest in getting the state to lease EHI’s real property, the district court properly dismissed EHI’s § 1983 claim. It was also proper for the district court to dismiss EHI’s state law claims, but on grounds different from those given by the district court.
07a0392p.06	2007/09/26	USA v. Robinson     Eastern District of Tennessee at Knoxville DANNY C. REEVES, District Judge. Defendant- Appellant Michael A. Robinson was convicted by a jury of various drug and firearms offenses and sentenced in absentia to 352 months’ imprisonment. He appealed his conviction and sentence. This Court affirmed the conviction but vacated the sentence and remanded the matter for resentencing. Robinson now appeals his most recent 292-month sentence. For the reasons that follow, we affirm this sentence.
07a0393p.06	2007/09/27	Harbison v. Bell     Eastern District of Tennessee of Chattanooga SILER, Circuit Judge. Petitioner Edward Jerome Harbison was convicted of first-degree murder, second-degree burglary, and grand larceny, and was sentenced to death. After unsuccessfully appealing through the Tennessee state courts, he petitioned in federal court for a writ of habeas corpus under 28 U.S.C. § 2254. After the district court denied relief in 2001, we affirmed the district court in Harbison v. Bell, 408 F.3d 823 (6th Cir. 2005). We will not repeat the facts as related in that opinion, except where they may be relevant to the current cases. While his habeas corpus claim was proceeding in the federal courts, in 2001, Harbison filed a motion in state court to reopen his post-conviction petition, which he subsequently moved to treat as a petition for a writ of error coram nobis. In 2004, the trial court denied his motion as untimely, and the Tennessee Court of Criminal Appeals affirmed that decision. Harbison v. State  (Tenn. Crim. App. June 27, 2005) (unpublished). Harbison thereafter filed these three matters in federal district court, and they came before us, either as appeals or on transfer from the district court. He also asks for a stay of execution. For the reasons stated thereafter, we affirm the district court’s rulings and deny all other relief requested.
07a0394p.06	2007/09/27	Amer Maritime v. Marine Engineers     Northern District of Ohio at Toledo RONALD LEE GILMAN, Circuit Judge. American Maritime Officers (AMO) filed a complaint in Ohio state court against Marine Engineers Beneficial Association and several of its officers (collectively MEBA), alleging tortious interference with a contractual relationship and unjust enrichment. MEBA removed the case to federal court on the ground that AMO’s claims were completely preempted by the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. AMO then filed a motion to remand on the basis that the federal courts lack subject matter jurisdiction over AMO’s claims. The district court granted AMO’s motion and ordered that the case be remanded to the state court. MEBA filed a timely appeal. AMO responded by filing a motion to dismiss MEBA’s appeal on the ground that 28 U.S.C. § 1447(d) prohibits appellate review of a remand order. For the reasons set forth below, we GRANT AMO’s motion and DISMISS MEBA’s appeal.
07a0395p.06	2007/09/27	Al Perry Enterprises v. Appalachian Fuels     Eastern District of Kentucky at Ashland GREER, District Judge. This case arises from a bankruptcy court approved sale of the assets and assumption of the executory contracts of Bowie Resources Limited (“Bowie”) pursuant to 11 U.S.C. §§ 363 and 365. The sale was made pursuant to an Asset Purchase Agreement (the “purchase agreement”) between Bowie and Appalachian Fuels, LLC (“Appalachian Fuels”). The plaintiff, Al Perry Enterprises, Inc. (“Perry”), originally filed this diversity breach of contract action in the United States District Court for the Southern District of Indiana alleging breach of an agreement by Bowie to pay certain commissions to Perry, an obligation which Perry alleged had been assumed by Appalachian Fuels as a result of the purchase agreement. The case was transferred to the United States District Court for the Eastern District of Kentucky and the district court granted Appalachian Fuels’ motion for summary judgment. Perry appeals the district court’s grant of summary judgment and argues that the district court erred by finding that Appalachian Fuels did not assume the obligation to pay commissions to Perry pursuant to the purchase agreement. For the reasons set forth below, we AFFIRM.
07a0396p.06	2007/09/27	USA v. Brogdon     Western District of Tennessee at Jackson DANNY C. REEVES, District Judge. Defendant- Appellant Jonathan Gregory Brogdon appeals the sentence and sex-offense-related conditions of supervised release imposed by the district court. Because the sentence is procedurally and substantively reasonable and because the conditions of supervised release are reasonably related to the rehabilitation of the defendant and the protection of the public, we affirm.
07a0397p.06	2007/09/27	Air Products v. Safetech, et al     Eastern District of Michigan at Detroit O’MALLEY, District Judge. This is an appeal from two orders of the district court: (1) an order granting a motion to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) filed by Defendants-Appellees Safetech International, Inc. (“Safetech”) and R. Gaylen Davenport (“Davenport”) (collectively, “Defendants”); and (2) an order denying a motion for reconsideration filed by Plaintiff-Appellant Air Products and Controls, Inc. (“Air Products”). In this lawsuit, Air Products alleges, inter alia, that Defendants engaged in a fraudulent transfer of assets to avoid a debt owed to Air Products. The debt accrued from several years of purchases on credit by Safetech, and was reduced to a judgment award following litigation between the parties. The primary issue in this appeal is whether Safetech, a Kansas corporation, and Davenport, an individual residing in Kansas, are subject to personal jurisdiction in Michigan, where Air Products has its principal place of business. The district court found that it lacked personal jurisdiction over Safetech and Davenport because the causes of action did not “arise out of” Defendants’ contacts with Michigan, and, accordingly, the district court dismissed the case. For the reasons stated herein, we REVERSE the district court’s decision to dismiss for lack of personal jurisdiction and REMAND this action for further proceedings. We do not address the order denying Air Products’ motion for reconsideration, as our decision as to the first order renders that issue moot.
07a0398p.06	2007/09/28	Novak v. MetroHealth Medical     Northern District of Ohio at Cleveland ALICE M. BATCHELDER, Circuit Judge. Plaintiff Donna Novak (“Novak”) appeals the district court’s grant of summary judgment in favor of Defendant MetroHealth Medical Center (“MetroHealth”) on her employment claims brought under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Novak argues that MetroHealth illegally denied her request for FMLA leave, claiming that she was entitled to FMLA leave because her back injury amounted to a serious health condition under the Act, and alternatively, that she was entitled to FMLA leave to care for her adult child who was suffering from postpartum depression. Because we conclude that these claims are not meritorious, we AFFIRM the district court’s grant of summary judgment on Novak’s claim of FMLA interference. But because we conclude that the district court should have remanded, rather than dismissed, Novak’s state law claims, we VACATE and REMAND those claims to the district court with instructions to remand them to the state court from which they were removed.

Unpublished Decisions from Kentucky

USA v. Braden
Eastern District of Kentucky at Ashland
07a0694n.06
2007/09/25

USA v. Bland
Western District of Kentucky at Bowling Green
07a0696n.06
2007/09/25

Bentley v. Motley
Eastern District of Kentucky at Pikeville
07a0700n.06
2007/09/26