Federal Judiciary

2008/08/11

2008/08/11

SILER, Circuit Judge. Dr. Timothy Landis, O.D., brought suit against Pinnacle Eye Care, LLC, dba VisionFirst, John Schmitt, Louisville Optometric Centers III, Inc., successor to Louisville Optometric Centers II, Inc., and Rod Rallo (collectively ?Defendants?), alleging employment discrimination based on his military service and his age. The district court granted the Defendants? motion to stay the suit and ordered the matter to arbitration. Landis now appeals. We AFFIRM.

2008/08/11

SUTTON, Circuit Judge. In 2003, while a Democrat occupied the Kentucky governor?s mansion, Linda Back, a registered Democrat, received a civil-service position in the Kentucky Office of Homeland Security. In 2005, one year after a Republican administration took the reins of State government, Keith Hall and Joel Schrader, Back?s supervisors, fired her. Back sued them under 42 U.S.C. § 1983, alleging that they fired her based on protected speech and political affiliation in violation of the First (and Fourteenth) Amendment. Before discovery commenced, the defendants asserted qualified immunity, which the district court granted as to Back?s freedom-ofspeech claims but denied as to Back?s political-affiliation claims. Hall and Schrader seek interlocutory review of the district court?s political-affiliation decision, and we affirm.

2008/08/11

2008/08/12

2008/08/12

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2008/08/13

2008/08/13

PER CURIAM. Zurich American Insurance Co. (?Zurich?) provided insurance coverage to Horizon Natural Resources Co., et al., (?the Debtors?) during the pendency of the Debtors? Chapter 11 bankruptcy proceedings. The policies issued to the Debtors were ?deductible policies,? meaning that Zurich would pay the entirety of any claims made and would later seek reimbursement from the Debtors for the deductible portion. After confirmation of the Debtors? plans, but before the expiration of the date set for the filing of administrative expense claims, Zurich filed an administrative expense claim. Zurich?s administrative expense claim seeks payment of $14,593,567.79, which is an actuarial estimate of the deductible portion of the claims that Zurich believes it will pay in the future for injuries that occurred during the coverage period but were not the subject of insurance claims until after confirmation of the Debtors? plans. Both the bankruptcy court and the district court denied Zurich?s administrative expense claim, holding that it does not constitute an ?actual, necessary cost[] and expense[] of preserving the estate? as is required by 11 U.S.C. § 503(b)(1)(A). On appeal to this court, Zurich argues that the bankruptcy court and the district court misinterpreted 11 U.S.C. § 503(b)(1)(A). Furthermore, Zurich argues that the lower courts should have permitted the estimation of Zurich?s administrative expense claim under 11 U.S.C. § 502(c).

We find no merit in Zurich?s arguments. Because it would be difficult for us to add anything of substance to the district court?s comprehensive and well-reasoned opinion, we AFFIRM for the reasons stated by Judge David L. Bunning in Zurich Am. Ins. Co. v. Lexington Coal Co., LLC (In re HNRC Dissolution Co.), 371 B.R. 210 (E.D. Ky. 2007).

2008/08/14

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2008/08/15

2008/08/15

KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellee Martha Bryant (?Bryant?) prevailed in a jury trial on her claim that Defendant-Appellant Dollar General Corporation (?Dollar General?) fired her in retaliation for her exercise of leave guaranteed by the Family and Medical Leave Act (?FMLA?). Dollar General now appeals, contending that the FMLA does not prohibit retaliation against an employee who takes FMLA leave. Bryant has filed a motion to dismiss Dollar General?s appeal, arguing that we lack jurisdiction because Dollar General failed to file a postverdict motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b). Prior to oral argument, the AARP requested leave to file a brief amicus curiae in support of Bryant, arguing that federal courts have widely accepted that the FMLA and related federal regulations prohibit retaliation against an employee who takes FMLA leave. We DENY Bryant?s motion to dismiss Dollar General?s appeal, GRANT the AARP?s motion for leave to file a brief amicus curiae, and, because we hold that both the FMLA and its implementing regulations prohibit employers from retaliating against employees who have exercised FMLA leave, we AFFIRM the judgment of the district court.

2008/08/15

KAREN NELSON MOORE, Circuit Judge. The Detroit International Bridge Company (?DIBC?) and its Michigan-based parent CenTra, Inc. (collectively ?CenTra?), believed that more divided them from Windsor, Ontario than united them. For one thing, the Detroit River separates Windsor from Michigan. For another, Windsor and CenTra disagreed as to the future of the Ambassador Bridge, the CenTra-owned bridge that spans the Detroit River; while CenTra sought to add a second span to the bridge, Windsor wanted to stop that expansion. Yet CenTra was wrong in concluding that more divided than united. It turns out that Windsor and CenTra were both employing the same law firm, Gowling Lafleur Henderson, LLP (?Gowlings?): while Windsor hired Gowlings to help the city oppose the second span, CenTra hired Gowlings to help the company raise money to fund the construction of that same span. Although CenTra wanted to expand its connection to Windsor, it was hoping to do so with an additional bridge, not by sharing legal counsel; thus, CenTra sued Gowlings for damages, alleging breach of contract, breach of fiduciary duties, and legal malpractice. The district court granted summary judgment for Gowlings, holding that CenTra impliedly consented to any conflict of interest in Gowlings?s simultaneous representation of adverse clients regarding the construction of the second span of the Ambassador Bridge. The district court found implied consent because it concluded that CenTra was aware that Gowlings had previously represented parties (including Windsor) directly adverse to CenTra in cases where Gowlings was not representing CenTra. We believe that the district court erred in its granting of summary judgment. CenTra established genuine issues of material fact regarding not only whether it impliedly consented to the conflict of interest, but also whether it could even consent to the conflict in the first instance. Furthermore, the district court abused its discretion in granting summary judgment prior to discovery. We, therefore, REVERSE the district court?s judgment and REMAND the case to the district court for further proceedings consistent with this opinion.

2008/08/15

This appeal originates in an adversary proceeding in bankruptcy court brought by appellee Brian A. Bash, the Chapter 7 Trustee for debtor Ohio Business Machines, Inc. (?OBM?), against appellant Sun Trust Banks, Inc. The Trustee?s complaint seeks avoidance of fraudulent and preferential transfers and alleges breach of fiduciary duty under the Ohio Uniform Fraudulent Transfer Act (?OUFTA?), OHIO REV. CODE §§ 1336.01-1336.11.

COOK, Circuit Judge. Pro se § 1983 plaintiff Mark Allen Harper sued the defendant police officers, alleging that in 2003 they detained him and searched his residence in violation of the Fourth Amendment. After the officers discovered drug paraphernalia and marijuana, Harper pleaded guilty to possession charges. In Heck v Humphrey, 512 U.S. 477 (1994), the Supreme Court barred § 1983 actions for damages where a favorable judgment would necessarily impugn the validity of an outstanding criminal conviction. Id. at 487. This case asks whether the district court correctly invoked Heck to bar Harper?s Fourth Amendment claims where he avoided trial by pleading guilty. Because we cannot say that Harper?s convictions for drug possession would be impugned by concluding that the officers obtained the evidence illegally, we hold that Heck does not bar his Fourth Amendment claims. We therefore reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

DAMON J. KEITH, Circuit Judge. Robert Howe appeals his conviction for assaulting an inmate, resisting arrest and assaulting an officer, and possessing prison-made weapons. Howe claims that the district court erred by excluding evidence relating to the affirmative defense of duress, denying his motion for acquittal or a new trial, and refusing to issue Howe?s supplemental jury instructions on Counts III and IV. For the following reasons, we AFFIRM the decision of the district court.

Per Curiam. Defendant-Appellant Erasmo Castillo appeals the sentence imposed upon him after his guilty plea to charges of conspiracy to possess with intent to distribute and possession with intent to distribute 1,700 pounds of marijuana. Castillo claims that the district court mechanically imposed a guideline sentence that was unreasonable in light of Castillo?s request for either a variance or downward departure based upon diminished mental capacity and substantial assistance to the Government. Because the sentence was reasonable in light of Castillo?s mental capacity and criminal history, we will affirm the sentence imposed by the district court.

Algenon L. Marbley, District Judge. On May 5, 2005, plaintiff-appellant Thomas Blume filed a complaint against defendant-appellee John E. Potter, Postmaster General of the United States (the ?Postmaster General?), alleging employment discrimination on the basis of race, sex, disability, age, and retaliation. At the summary judgment stage, however, Blume withdrew his race- and sexdiscrimination claims after conceding that he failed to meet the administrative prerequisites for filing those claims in federal court. The district court granted summary judgment in favor of the Postmaster General on the remaining claims and dismissed the case with prejudice. For the following reasons, this Court AFFIRMS the district court?s decision.