Sixth Circuit Cases

6th Cir. Decisions for Week of Mar. 17-21, 2008 (2 Pub. Ky decisions; 3 NPO)

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    PUBLISHED OPINIONS

Opinion	Short Title/District
08a0112p.06 2008/03/17	USA v. Goodman     Eastern District of Tennessee of Chattanooga
08a0113p.06 2008/03/17	Heavrin v. Schilling     Western District of Kentucky at Louisville BOYCE F. MARTIN, JR., Circuit Judge. Donald Heavrin appeals the district court’s decision affirming the bankruptcy court’s dismissal of his claim for intentional infliction of emotional distress, and imposition of sanctions. We AFFIRM.
08a0114p.06 2008/03/18	Carter v. Burns     Middle District of Tennessee at Nashville
08a0115p.06 2008/03/19	Noe v. PolyOne Corp     Western District of Kentucky at Louisville McKEAGUE, Circuit Judge. This is a retiree health benefits case, in which the court is asked to determine whether the parties to various labor agreements intended for retiree health benefits to vest such that any termination of those benefits constitutes a violation of § 301 of the Labor Management Relations Act (“LMRA”). The district court granted summary judgment for defendant-employer PolyOne Corp. after concluding that the labor agreements in question were unambiguous and established no intent to vest retiree health benefits. Having conducted a thorough review of the record and the applicable law, we arrive at a different conclusion and VACATE the district court’s judgment.
08b0006p.06 2008/03/19	In re: Ralph Swegan v.     U.S. Bankruptcy Court - Youngstown
08a0116p.06 2008/03/20	Arendale v. Memphis Cty     Western District of Tennessee at Memphis CLAY, Circuit Judge. Plaintiff Michael Arendale is a white police officer employed by the Memphis Police Department. He appeals the district court’s grant of summary judgment in favor of Defendant City of Memphis (“The City”) in this civil rights suit brought under 42 U.S.C. §§ 1981 and 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101 et seq. For the reasons that follow, the district court’s decision granting summary judgment in favor of the City is AFFIRMED.
08a0117p.06 2008/03/20	USA v. Urrieta     Middle District of Tennessee at Nashville
08a0118p.06 2008/03/20	Ahmed v. Mukasey     Immigration & Naturalization Service
08a0119p.06 2008/03/20	Graham v. Mukasey     Immigration & Naturalization Service
08a0120p.06 2008/03/21	Adkins v. Wolever     Western District of Michigan at Grand Rapids
08a0121p.06 2008/03/21	Dunlap v. TVA     Middle District of Tennessee at Nashville BOYCE F. MARTIN, JR., Circuit Judge. David Dunlap brought suit under Title VII of the Civil Rights Act of 1964, alleging racial discrimination by the Tennessee Valley Authority. The district court found that Dunlap had been subjected to discrimination under both disparate treatment and disparate impact analyses, concluding that the TVA’s subjective hiring processes permitted racial bias against both Dunlap and other black job applicants. The TVA now appeals, arguing that the district court erred in each of these analyses. We find that although the district court was correct in finding disparate treatment, the proof was insufficient for a finding of disparate impact. We therefore AFFIRM on the disparate treatment claim, REVERSE on the disparate impact claim, and AFFIRM the court’s award of damages and fees.
08a0122p.06 2008/03/21	King v. Ambs     Eastern District of Michigan at Detroit ROGERS, Circuit Judge. This is an appeal from summary judgment entered in favor of a police officer in a § 1983 action. Officer Kevin Ambs was questioning a third party, Nicholas Klein, when plaintiff Sean King told Klein not to speak to the officer. After King had twice told Klein not to talk to the officer, Officer Ambs threatened to arrest King if he said “one more word.” King told Klein a third time not to speak to the officer, at which point Officer Ambs arrested King. Relying on Houston v. Hill, 482 U.S. 451 (1987), King argues that the arrest violated his First and Fourth Amendment rights. Officer Ambs argues that the arrest did not violate the Constitution and that he is entitled to qualified immunity. The district court granted Officer Ambs’ motion for summary judgment and held that King’s interference with Officer Amb’s investigation provided probable cause for the arrest. We affirm the district court’s judgment.

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Opinion	Short Title/District
08a0149n.06 2008/03/17	USA v. Dunn     Eastern District of Tennessee of Chattanooga
08a0150n.06 2008/03/17	Hyzoti v. Mukasey     Immigration & Naturalization Service
08a0151n.06 2008/03/17	Poteet v. Polk Cnty     Eastern District of Tennessee of Chattanooga
08a0152n.06 2008/03/17	Grange Mutual Cslty v. Mack     Eastern District of Kentucky at Frankfort PER CURIUM: Defendant Greg Mack appeals a default judgment and subsequent default award of damages entered in favor of a group of insurance companies (the “Grange plaintiffs”). Mack bilked the companies by setting up medical clinics to treat auto accident victims and then using those clinics to diagnose phony injuries and overcharge the companies for the needless medical services performed. The Grange plaintiffs discovered the scheme and sued for fraud and RICO violations in December 2002. In November 2004, District Judge Joseph M. Hood warned Mack that if he continued obstructing discovery, the case would be tried on damages alone. Mack continued his obstruction, and the judge issued a default judgment as to liability in October 2005. Mack then continued obstructing the Grange plaintiffs’ damages investigations, so the district court issued a default judgment as to damages in December 2006. Mack appeals, arguing that the judge abused his discretion in issuing the default judgment. We affirm without hesitation, and hold that Judge Hood acted well within the discretion given to him by Federal Rule of Civil Procedure 37(b)(2)(C).
08a0153n.06 2008/03/18	Mynatt v. Lockheed Martin   Eastern District of Tennessee at Knoxville
08a0154n.06 2008/03/18	USA v. Brooks     Southern District of Ohio at Dayton
08a0155n.06 2008/03/18	Prechtel v. Kellogg's     Western District of Kentucky at Louisville PER CURIAM. The plaintiff, Deborah Prechtel, appeals the district court’s grant of summary judgment to the defendant, Kellogg’s, doing business as Kellogg’s Snacks, on Prechtel’s state-law claims of sex-based discrimination, retaliation, and unequal pay. The district court held that the plaintiff failed to adduce any evidence to establish a genuine issue of material fact regarding the claims raised in her complaint. We agree, and we therefore affirm the district court’s judgment.
08a0156n.06 2008/03/19	USA v. McGovney     Eastern District of Kentucky at Covington PER CURIAM. The defendant, Paul Thomas McGovney, was convicted on the basis of his guilty pleas to two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and one count of receiving and disposing of a stolen firearm. He was sentenced to the mandatory minimum term of 15 years under the provisions of the Armed Career Criminal Act (ACCA or the Act), 18 U.S.C. § 924(e), and now appeals the district court’s sentencing order, contending: (1) that the government’s failure to provide written notice of its intent to request a sentence under the Act violated the Fifth and Sixth Amendments as well as the ACCA itself; (2) that the sentencing judge's determination that McGovney’s prior sentences qualified as "violent felonies" within the meaning of the Armed Career Criminal Act violated his Sixth Amendment right to a jury trial; and (3) that one of his burglary convictions did not qualify as a predicate offense under the Act. We find no basis on which to overturn the sentence and affirm.
08a0157n.06 2008/03/20	Eubanks v. Grand Rapids     Western District of Michigan at Grand Rapids

6th Cir. Decisions for Week of March 10-14, 2008

    PUBLISHED OPINIONS

Opinion	Short Title/District
08a0109p.06	R/T 182, LLC v. FAA     Federal Aviation Administration
08b0005p.06	In re: World Savings v.     U.S. Bankruptcy Court - Cincinnati
08a0110p.06	Braun v. Ann Arbor Charter     Eastern District of Michigan at Detroit MERRITT, Circuit Judge. In this Takings Clause and Due Process case, landowners who sought to rezone their farmland for a trailer park and other residential development challenge the district court’s order granting the defendant Township’s motion for summary judgment. The district court held that the plaintiffs’ Takings Clause claim was not ripe for review in the federal courts due to the rule of Williamson County v. Hamilton Bank, 473 U.S. 172 (1985), which requires that a plaintiff first give the state court an opportunity to adjudicate the issue of just compensation before seeking a declaration from a federal court that the state has failed to provide just compensation. According to Williamson County, a plaintiff bringing a takings claim must first pursue – and be denied – available remedies in state court. The district court in the present case concluded that the plaintiffs’ failure to do so precludes a federal court from exercising subject matter jurisdiction over the takings claim. The district court also held that the plaintiffs’ contention that the defendant’s zoning ordinance and appeals process violated various constitutional rights – including procedural due process, substantive due process and equal protection – was “ancillary” to the takings claim and thus similarly unripe for review. The plaintiffs argue in their appeal that these injuries are unrelated to the Takings Clause claim and must be reviewed as completed injuries. Conflicting case law exists as to whether such claims are, in fact, independent. However, even assuming that the claims are not ancillary to the Takings Clause issue, summary judgment is nevertheless appropriate for the defendant. Consequently, we affirm the grant of summary judgment for the defendants.
08a0111p.06	USA v. Gabrion     Western District of Michigan at Grand Rapids

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Opinion	Short Title/District
08a0142n.06	Saxe v. Dlusky     Southern District of Ohio at Columbus
08b0002n.06	In re: Azbill v.     U.S. Bankruptcy Court - Covington
08a0143n.06	Tkachik v. Comerica Inc.     Eastern District of Michigan at Detroit
08a0144n.06	Rose v. Hartford Financial     Eastern District of Kentucky at Lexington
08b0003n.06	In re: Dilworth v.     U.S. Bankruptcy Court - Toledo
08a0145n.06	USA v. O'Non     Western District of Michigan at Grand Rapids

6th. Cir. Decisions for Week of March 3, 2008

    PUBLISHED OPINIONS

Opinion	Short Title/District
08a0098p.06	Trafalgar Corporation v. Miami Cnty     Southern District of Ohio at Dayton BOYCE F. MARTIN, JR., Circuit Judge. Trafalgar Corporation sought a federal court determination of its constitutional takings and equal protection claims against the Miami County Board of Commissioners and Concord Township. The district court dismissed the case on a motion for summary judgment finding that Trafalgar’s claims were barred by principles of preclusion. For the following reasons we AFFIRM the decision of the district court.
08a0099p.06	USA v. Mabry     Eastern District of Michigan at Detroit
08a0100p.06	Huffman v. CIR     Commissioner of Internal Revenue
08a0101p.06	AmeriCredit Fin Serv v. Long     Eastern District of Tennessee at Knoxville MERRITT, Circuit Judge. This consumer bankruptcy, Chapter 13 case arises because the debtor bought a car under a typical financing arrangement in which the lender retained a lien or mortgage on the car as security for payment of the outstanding loan that enabled the debtor to buy the car. The debtor proposed to surrender the car to the finance company as part of the Chapter 13 plan. The value of the car was less than the outstanding debt. Due to a glitch or gap in a recent revision of the Bankruptcy Code intended to benefit creditors, the law is now silent on what happens to the remaining indebtedness in the surrender-of-the-car situation. The bankruptcy court below held that the congressional mistake in drafting the revision means that the remaining indebtedness is completely wiped out. We believe the gap should be filled and the Congressional mistake corrected. The law previously governing this situation should be restored until Congress can correct its mistake and fill in the gap.
08a0102p.06	USA v. Tatum     Western District of Tennessee at Jackson
08a0103p.06	J & R Marketing v. General Motors     Eastern District of Michigan at Detroit KENNEDY, Circuit Judge. Plaintiffs, purchasers of bonds registered by GMAC in September 2003, brought suit under Sections 11 and 12(a)(2) of the Securities Act of 1933 against GMAC and its control persons, including General Motors, which at the time wholly-owned GMAC. Plaintiffs alleged that GMAC had breached its disclosure obligations as well as made material misstatements in its registration statements and prospectuses for multiple offerings of bonds registered in 2003 and 2004. The defendants moved to dismiss the plaintiffs’ complaint for failure to state a claim. The district court granted the defendants’ motion. It found that plaintiffs lacked statutory standing to bring claims regarding offerings other than the one in which they had purchased. The district court also found that the plaintiffs had no claim regarding a duty to disclose because Item 303, the regulatory authority relied on by plaintiffs, did not give rise to a duty to disclose the information the plaintiffs sought because the information was not “firm specific” to GMAC. Additionally, the district court found that there was no material omission because the affirmative statements made by GMAC were not rendered misleading by the absence of the information cited by plaintiffs. Lastly, the district court held that most of GMAC’s statements were not false, and the ones that were arguably false were not material to bond investors. We find that the named plaintiffs’ own claims are without merit because the offering materials did not have material omissions because (1) Item 303 only imposes a duty to make forward-looking projections regarding known information, and plaintiffs pleaded only that the information was “knowable”; and (2) GMAC’s affirmative statements were not rendered misleading by the absence of the information described by plaintiffs. We also find that the offering materials for the offering in which plaintiffs’ purchased did not include material misstatements, because the affirmative statements made by GMAC were in fact true. Since the named plaintiffs’ individual claims cannot succeed on the merits, we AFFIRM the judgment of the district court dismissing plaintiffs’ complaint.
08a0104p.06	Citizens for Tax v. Deters     Southern District of Ohio at Cincinnati McKEAGUE, Circuit Judge. As with the law in general,1 the First Amendment is a jealous mistress. It enables the people to exchange ideas (popular and unpopular alike), to assemble with the hope of changing minds, and to alter or preserve how we govern ourselves. But in return, it demands that sometimes seemingly reasonable measures enacted by our governments give way. The State of Ohio enacted a provision making it a felony to pay anyone for gathering signatures on election-related petitions on any basis other than the time worked. It did so for the sensible purpose of reducing fraudulent signatures. The provision, however, runs afoul of the First Amendment because it creates a significant burden on a core political speech right that is not narrowly tailored. Accordingly, we affirm the district court’s grant of summary judgment against the State.
08a0105p.06	Floyd v. City of Detroit     Eastern District of Michigan at Detroit RONALD LEE GILMAN, Circuit Judge. This case arises from an incident in which Detroit police officers Emmett Quaine and Juan Reynoso, Jr. opened fire on Ronald Floyd in his own backyard, wounding him in the chest. Floyd, who was unarmed, claims that the officers fired on him without warning and without cause. He filed this lawsuit, pursuant to 42 U.S.C. § 1983, against the City of Detroit and the two officers. According to Floyd, the officers violated his constitutional rights by using excessive force, and the City is liable for failing to properly train them. All three defendants filed a joint motion for summary judgment.
08a0106p.06	Jackson v. Fed Express Corp     Western District of Tennessee at Memphis DENISE PAGE HOOD, District Judge. Appellant Willie J. Jackson (“Jackson”) filed a complaint against FedEx Corporate Services, Inc. and Federal Express Corporation (collectively “FedEx”) alleging he was discriminated against based on his race in violation of The Civil Rights Act of 1991, 42 U.S.C. § 1981 as amended (“Section 1981”), Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et. seq. (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. 621 et. seq. The district court dismissed Jackson’s ADEA claim and Jackson does not appeal that decision. The district court denied FedEx’s Motion for Summary Judgment with respect to Jackson’s claims under Section 1981 and Title VII. Following the close of Jackson’s evidence, the district court granted FedEx’s motion, pursuant to Fed. R. Civ. P. 50, to dismiss Jackson’s case. For the reasons set forth below, the district court’s order is reversed and the matter remanded for further proceedings consistent with this Opinion.
08a0107p.06	USA v. Gibney     Western District of Kentucky at Louisville
08a0108p.06	Day v. James Marine Inc     Benefits Review Board SUTTON, Circuit Judge. There is a little more to this dispute than the topic (attorney’s fees) and the amount at stake (less than $15,000) would suggest. Larry Day says that the Benefits Review Board erred in determining that a portion of the fees he incurred in seeking workers’ compensation did not shift to his employer, James Marine, under the Longshore and Harbor Workers’ Compensation Act. Because the Board correctly determined that the Act does not allow an employee to collect attorney’s fees incurred before the employer has rejected the employee’s claim, we affirm this aspect of the Board’s decision. But because the Act does allow—and indeed requires—fee shifting from the time the employer rejects the employee’s claim through the employee’s successful prosecution of that claim, we reverse the Board’s contrary ruling on this point.

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Opinion	Short Title/District
08a0128n.06	Moore v. State of Tenn.     Eastern District of Tennessee at Knoxville
08a0129n.06	USA v. Mullikin     Eastern District of Kentucky at Lexington
08a0130n.06	Turner v. Comm Social Security     Eastern District of Kentucky at Covington
08a0131n.06	King v. Gowdy     Eastern District of Michigan at Detroit
08a0132n.06	Lawler v. Cty of Taylor     Eastern District of Michigan at Detroit
08a0133n.06	Bergmoser v. Smart Document     Northern District of Ohio at Cleveland
08a0134n.06	Koehler v. PepsiAmericas, Inc.     Southern District of Ohio at Cincinnati
08a0135n.06	USA v. Horton     Western District of Michigan at Grand Rapids
08a0136n.06	Koehler v. PepsiAmericas, Inc.     Southern District of Ohio at Cincinnati
08a0137n.06	USA v. Pomales     Northern District of Ohio at Cleveland
08a0138n.06	Washington v. Comcast Corp     Eastern District of Michigan at Detroit
08a0139n.06	USA v. Thomson     Western District of Michigan at Marquette
08a0140n.06	Dinkins v. Hunt Constr Grp     Eastern District of Michigan at Detroit

6th. Cir. Decisions for Week of Feb. 25, 2008

    Published:

Opinion	Short Title/District
08a0089p.06	Lambert v. Hartman     Southern District of Ohio at Cincinnati RONALD LEE GILMAN, Circuit Judge. Cynthia Lambert appeals the district court’s dismissal of her complaint against Greg Hartmann in his official capacity as the Hamilton County Clerk of Courts (the “Clerk”) and against the Hamilton County Board of County Commissioners (the “County”) (collectively the “Defendants”). In September of 2003, Lambert received a traffic citation for speeding. She later discovered that this citation, which contained personal identifying information (including her Social Security number), had been published on the Clerk’s public website. Lambert sued the Defendants pursuant to 42 U.S.C. § 1983, claiming that the publication of the citation violated her constitutional right to privacy under the Fourteenth Amendment to the U.S. Constitution. She further asserted that her identity had been stolen by a third party as a direct result of the Clerk’s publication of the citation, and that she had consequently suffered economic damages, damage to her personal credit rating, and damage to her reputation. Lambert also raised state-law claims and sought to certify her complaint as a class action. The Defendants moved to dismiss Lambert’s complaint on the basis that she had failed to state a claim under § 1983. Concluding that Lambert’s § 1983 claim must fail because her alleged privacy interest was not of a constitutional dimension, the district court granted the Defendants’ motion. The court then dismissed her pendent state-law claims without prejudice. Lambert argues that the court erred in dismissing her complaint and renews her claim that the Defendants violated her constitutional right to privacy. For the reasons set forth below, we AFFIRM the judgment of the district court.
08a0090p.06	USA v. Baylor     Northern District of Ohio at Cleveland
08a0091p.06	Kistner v. Law Offices     Northern District of Ohio at Toledo RONALD LEE GILMAN, Circuit Judge. In January of 2005, Amanda Kistner received a collection letter from The Law Offices of Michael P. Margelefsky, LLC related to her Cincinnati Bell account. The letter, printed on The Law Offices of Michael P. Margelefsky letterhead, contains a block signature declaring that the letter was sent by an “Account Representative.” Kistner subsequently filed the present lawsuit as a putative class action against The Law Offices of Michael P. Margelefsky (the Law Offices) and Michael Margelefsky individually, alleging numerous violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, and the Ohio Consumer Sales Practices Act (OCSPA), Ohio Rev. Code Ann. § 1345.01. The district court granted summary judgment both to the Law Offices and to Margelefsky after concluding that the collection letter did not make any misrepresentations and was not deceptive. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion. Specifically, we conclude that Margelefsky can be held individually liable as a “debt collector” under the FDCPA and that a genuine issue of material fact exists as to whether the collection letter was deceptive.
08a0092p.06	USA v. Caldwell     Eastern District of Kentucky at Covington
08a0093p.06	Eungard v. Open Solutions Inc     Eastern District of Michigan at Ann Arbor SUTTON, Circuit Judge. Scott Eungard, a salesman, seeks commissions on products and services ordered by a client on the same day he was fired. Because ambiguity in Eungard’s compensation agreement precludes summary judgment for Open Solutions, we reverse and remand.
08a0094p.06	USA v. Alexander     Western District of Michigan at Marquette
08a0095p.06	Bies v. Bagley     Southern District of Ohio at Cincinnati
08a0096p.06	Ramirez-Canales v. Mukasey Garcia Correa v. Mukasey     Immigration & Naturalization Service
08a0097p.06	Stalley v. Methodist Healthcare     Western District of Tennessee at Memphis ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Douglas B. Stalley (“Stalley”) filed seven separate lawsuits in the district courts in Tennessee — in addition to numerous cases in other jurisdictions against different defendants — claiming that Defendants-Appellees Methodist Healthcare (“Methodist”), Sumner Regional Health Systems, Inc. (“Sumner”), Erlanger Health System (“Erlanger”), Wellmont Health System (“Wellmont”), Mountain States Health Alliance (“Mountain States”), Covenant Health (“Covenant”), and The Baptist Health System of East Tennessee (“Baptist”)1 (collectively referred to as “Appellees”) all violated the Medicare Secondary Payer Act (“MSP”), 42 U.S.C. § 1395y(b). In none of the virtually identical complaints does Stalley allege any direct injury. Instead, the complaints are premised on his belief that the MSP is a qui tam statute granting him standing to sue as a private attorney general. The several district courts, following the clear language of the MSP and a plethora of case law, separately ruled that the MSP is not a qui tam statute and, therefore, Stalley does not have Article III standing to raise these claims. Stalley appeals those decisions. Because we find no basis upon which to hold that the MSP is a qui tam statute, and no basis upon which to find that Stalley can otherwise demonstrate standing, we AFFIRM the judgments of the district courts.
08b0004p.06	In re: Michael Sterba v.     U.S. Bankruptcy Court - Cleveland

    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION OPINIONS
    

Opinion	Short Title/District
08a0116n.06	Diallo v. Mukasey     Immigration & Naturalization Service
08a0117n.06	USA v. Commodore     Eastern District of Kentucky at Lexington
08a0118n.06	Barry v. Mukasey     Immigration & Naturalization Service
08a0119n.06	USA v. Hintz     Northern District of Ohio at Cleveland
08a0120n.06	USA v. Carballo-Arguelles     Eastern District of Michigan at Detroit
08a0121n.06	USA v. Johnson     Eastern District of Kentucky at Lexington
08a0122n.06	Haynes v. Haviland     Southern District of Ohio at Columbus
08a0123n.06	Cramer v. Detroit     Eastern District of Michigan at Detroit
08a0124n.06	USA v. Dunn     Western District of Michigan at Grand Rapids
08a0125n.06	Matic v. Mukasey     Immigration & Naturalization Service
08a0126n.06	Stefanovski v. Mukasey     Immigration & Naturalization Service
08b0001n.06	In re: Robert Long v.     U.S. Bankruptcy Court - Columbus
08a0127n.06	Addo v. Mukasey     Immigration & Naturalization Service