2015 YLD
Bridge the Gap Seminar
Federal Case Law Update
1:00 p.m.-2:00 p.m.
Presented by:
Hon. Ross Walters
United States Magistrate Judge
United States District Court
Southern District of Iowa
123 E. Walnut, Rm. 425
Des Moines, Iowa
Phone: 515-284-6217
Thursday, May 14, 2015
FEDERAL CASE UPDATE
SELECTED 2014-15
EIGHTH CIRCUIT AND
SUPREME COURT CASES
Ross A. Walters
United States Magistrate Judge
United States District Court
Southern District of Iowa
123 E. Walnut, Rm. 425
Des Moines, Iowa
(515) 284-6217
Fax: (515) 284-6442
I.
II.
CIVIL LITIGATION AND PROCEDURE
A.
B.
C.
D.
CRIMINAL LAW ............................................................................................................. 12
A.
B.
C.
D.
E.
F.
G.
H.
III.
Jurisdiction .............................................................................................................. 1
Procedure ................................................................................................................ 4
Causes of Action ..................................................................................................... 9
Evidence ................................................................................................................ 10
Criminal Acts ........................................................................................................ 12
Procedure .............................................................................................................. 15
Fourth Amendment ............................................................................................... 17
Fifth Amendment .................................................................................................. 22
Due Process/Evidence ........................................................................................... 23
Sixth Amendment ................................................................................................. 26
Sentencing ............................................................................................................. 28
Habeas ................................................................................................................... 39
EMPLOYMENT LAW ..................................................................................................... 44
A.
B.
C.
D.
E.
Disability ............................................................................................................... 44
Race/Gender/Retaliation ....................................................................................... 45
Age ........................................................................................................................ 48
FMLA ................................................................................................................... 48
Miscellaneous Employment Cases ....................................................................... 49
IV.
CONSTITUTIONAL LAW .............................................................................................. 53
A.
B.
C.
D.
First Amendment .................................................................................................. 53
Fourth Amendment ............................................................................................... 55
Due Process/Equal Protection ............................................................................... 58
Miscellaneous Constitutional Claims ................................................................... 60
V.
ERISA ............................................................................................................................... 61
VI.
PRISONERS' RIGHTS ..................................................................................................... 63
A.
B.
C.
VII.
First Amendment .................................................................................................. 63
Eighth Amendment ............................................................................................... 64
Miscellaneous ....................................................................................................... 64
MISCELLANEOUS ......................................................................................................... 65
I.
CIVIL LITIGATION AND PROCEDURE
A.
Jurisdiction
1.
Michigan v. Bay Mills Indian Community,
U.S.
, 134 S. Ct. 2024
(2014). State lawsuit seeking to prohibit an Indian tribe from operating a casino on land the tribe
had acquired from a congressionally established land trust was barred by tribal sovereign
immunity.
2.
Executive Benefits Insurance Agency v. Arkison,
U.S.
, 134 S. Ct.
2165 (2014). The Supreme Court in this non-core Stern claim case (a claim against a party who
is not a creditor of the debtor) holds that bankruptcy judges may enter proposed findings of fact
and conclusions of law concerning these types of cases and submit them to the district court for
de novo review without violating constitutional principles of jurisdiction.
3.
Susan B. Anthony List v. Driehaus,
U.S.
, 134 S. Ct. 2334
(2014). In a case mounting First Amendment challenges to Ohio law concerning the making of
false statements during a political campaign, the Supreme Court holds that groups challenging
the law had sufficient “imminent injury” to establish Article III standing, given their expressed
intention to make statements in future elections and the existence of a past history of
enforcement of the statute against the petitioners.
4.
Dart Cherokee Basin Operating Co., LLC v. Owens,
U.S.
, 135
S. Ct. 547 (2014). The Supreme Court holds defendant’s notice of removal only needs to include
a plausible allegation concerning the amount in controversy exceeding the jurisdictional
threshold and does not need to contain evidence in support of that allegation.
5.
B&B Hardware, Inc. v. Hargis Indust., Inc.,
U.S.
,
S. Ct.
___, 2015 WL 1291915 (3/24/2015). Supreme Court holds that if the other "ordinary elements"
of issue preclusion are met, where the Trademark Trial and Appeal Board has adjudicated a
usage issue, issue preclusion would apply in subsequent infringement lawsuit.
6.
Grawitch v. Charter Communications, Inc., 750 F.3d 956 (8th Cir. 2014).
Broadband communications company which removed a state court class action to federal court
under CAFA met its burden of showing the amount in controversy exceeded the $5 million
jurisdictional threshold of CAFA: The class consisted of at least 50,000 members nationwide,
each of whom sought up to $50,000 in damages.
7.
Zerger & Mauer, LLP v. City of Greenwood, 751 F.3d 928 (8th Cir. 2014).
While the court did not have subject-matter jurisdiction over the merits of plaintiffs’ private
nuisance claims against a quarry operator, the circuit holds the court did have authority to
disqualify counsel – finding on appeal that court lacked subject-matter jurisdiction did not “wipe
out all proceedings” which had occurred prior to appeal. The needs of the court “to manage its
bar and uphold the rules of professional conduct” were significant and separable from the merits
of the case.
Hon. Ross Walters - 1
8.
Arnold Crossroads, LLC v. Gander Mountain Co., 751 F.3d 935 (8th Cir.
2014). Defendant’s third attempt to remove state court dispute arising from breach of a
commercial lease failed as the removal attempt was untimely under § 1446’s one-year
requirement, coming as it did some three years after the suit was originally brought in state court.
9.
Wivell v. Wells Fargo Bank, N.A., 756 F.3d 609, reh’g granted, 759 F.3d
609, aff’d in pertinent part, 773 F.3d 887 (8th Cir. 2014). Plaintiffs’ negligence and breach of
fiduciary duty claims against non-diverse defendant did not have reasonable basis in fact and law
under Missouri law; therefore, district court correctly denied plaintiffs’ motion to remand as
individual defendant was fraudulently joined to defeat diversity jurisdiction.
10.
Fastpath, Inc. v. Arbela Technologies Corp., 760 F.3d 816 (8th Cir. 2014).
District court correctly determined it did not have personal jurisdiction over California services
and software corporation in action arising from covenant not to compete which it entered into
with Iowa software company – although there was an Iowa choice-of-law provision in the
agreement between the parties, the agreement was not for the development or sale of any product
in Iowa, did not say where information sharing was to take place, was not limited in geographic
scope to Iowa, defendant was never in the state of Iowa in any respect and its conduct allegedly
breaching the contract took place outside of Iowa.
11.
Thompson v. R.J. Reynolds Tobacco Co., 760 F.3d 913 (8th Cir. 2014).
Plaintiffs’ joinder of non-diverse parties in state court products liability/wrongful death lawsuit
brought after plaintiffs had previously won state law personal injury judgment against those
defendants (before plaintiffs’ decedent died) was properly deemed fraudulent by district court
after other defendants removed the new case to federal court – Missouri (the governing law)
followed the “one recovery” rule which precluded plaintiffs’ subsequent wrongful death action
against the non-diverse defendants.
12.
Downing v. Goldman Phipps, PLCC, 764 F.3d 906 (8th Cir. 2014). In a
case related to Phipps Group below involving claims for unjust enrichment and quantum meruit
against lawyers in state court actions who used litigation materials and work product generated
by the Lead Counsel in MDL litigation, district court in Missouri had personal jurisdiction over
the non-Missouri attorneys as they made “a purposeful choice to negotiate settlement of their
state court cases in Missouri” -- even though they were not ordered to attend settlement
negotiations -- the circuit deemed that conduct qualified as “transacting business” within the
state.
13.
Degnan v. Burwell, 765 F.3d 805 (8th Cir. 2014). In a case concerning the
DHS’s continuing failure to correctly calculate Medicare Part B premiums (plaintiff was
involved in prior cases on this issue and prevailed), the court did not have jurisdiction of the
claim as plaintiff did not exhaust his administrative remedies.
Hon. Ross Walters - 2
14.
Plymouth County v. MERSCORP, 774 F.3d 1155 (8th Cir. 2014). County
had standing to bring class action lawsuit for unjust enrichment and civil conspiracy against
lenders who used the mortgage electronic registration system to track mortgages and subsequent
assignments as the conduct bypassing recording with the county recorder deprived the county of
fees and interfered with the statutory duties of the county recorder. However, because Iowa law
did not mandate that assignees record assignments of real estate mortgages the claims failed as
they were dependent on the recording requirement being mandatory. See also County of Ramsey
v. MERSCORP Holdings, 776 F.3d 947 (8th Cir. 2014) involving same claims by counties in
Minnesota, which also failed for lack of a mandatory recording requirement.
15.
Magee v. Hamline University, 775 F.3d 1057 (8th Cir. 2015). Second
lawsuit by law school professor against law school from which she was terminated, after she was
convicted of failing to file state tax returns, was barred by re judicata. The claims in her second
lawsuit under § 1981were based on the same events addressed in the first lawsuit brought under
§ 1983.
16.
Hutterville Hutterian Brethren, Inc. v. Sveen, 776 F.3d 547 (8th Cir.
2015). This case involves the intersection of religious dogma with secular business issues which
the South Dakota state courts have walled off from resolution because of the First Amendment
issues involved which those courts found prohibited them from resolving religious controversies.
The present lawsuit was brought by one of multiple factions within a communal religious colony,
which had been organized as a nonprofit corporation, against lawyers for the corporation and a
court-appointed receiver, asserting RICO and state law claims. Although finding that for
purposes of Art. III standing the issue which faction controlled the corporation was not part of
the injury-in-fact query, the present plaintiff was judicially estopped from making new
arguments about the control issue (which had been found to be inextricably intertwined with
forbidden ecclesiastical issues) which contradicted their arguments to the state courts and thus
judicial resolution of the dispute was not available.
17.
Germain Real Estate Co. v. HCH Toyota, LLC, 778 F.3d 692 (8th Cir.
2015). Breach of contract and related tort claims by commercial lessee were precluded by prior
state court litigation between the parties, even though the judgment in state court was a dismissal
without prejudice. The circuit found the dismissal was final for purposes of issue preclusion.
18.
Midwestern Indemnity Co. v. Brooks, 779 F.3d 540 (8th Cir. 2015). In
declaratory judgment action regarding "stacking" of underinsured motorist coverage following
an automobile accident, estate of defendant driver did not have a real interest in the dispute as
plaintiffs had waived their claims against the estate through a separate settlement; therefore, the
estate was only a nominal or unnecessary party whose lack of diversity could be ignored.
Hon. Ross Walters - 3
B.
Procedure
1.
Republic of Argentina v. NML Capital, Ltd.,
U.S.
, 134 S. Ct.
2250 (2014). The Supreme Court holds the Foreign Sovereign Immunities Act of 1976 did not
immunize the Republic of Argentina from a creditor’s post-judgment discovery of information
about its extraterritorial assets. In the present case, jurisdictional immunity was waived and the
Act did not forbid or limit discovery.
2.
Warger v. Shauers,
U.S.
, 135 S. Ct. 521 (2014). The Supreme
Court holds the federal rule concerning use of juror testimony in support of a motion for new
trial, Fed. R. Evid. 606(b), remains the approach to be used in federal court when challenging a
jury verdict on the basis of voir dire dishonesty – the affidavit at issue in this case was not
admissible under Rule 606(b)(2)(A)’s exception for extraneous information as the rule
contemplates information which comes from a source outside the jury instead of internally, as
occurred in this case.
3.
Gelboim v. Bank of America Corp.,
U.S.
, 135 S. Ct. 897 (2015).
Plaintiffs whose federal antitrust claim against several banks was consolidated with others for
MDL proceedings, then dismissed by the MDL court, could appeal that ruling under 28 U.S.C. §
1291 as an appealable final decision and were not required to wait until the end of the
consolidated action.
4.
United States v. Real Properties Located at 7215 Longboat Drive, 750
F.3d 968 (8th Cir. 2014). In civil forfeiture proceedings relating to real estate allegedly used to
manufacture illegal drugs or purchased with drug money, the circuit holds that once the
government became aware an estate was a potential claimant to the properties, direct notice
pursuant to Supplemental Rule G should have been sent to the estate with details regarding the
forfeiture proceedings, including deadlines for filing claims; actual notice should not have been
imputed to the estate on the basis of a communication from an attorney (who at the time did not
represent the estate) to the government. Therefore, claims to the properties were not untimely as
notice had never been served, in fact the time for filing a claim had not begun to run.
5.
United States v. Mark of Ka-Nefer-Nefer, 752 F.3d 737 (8th Cir. 2014).
District court did not abuse its discretion in denying government’s post-dismissal motion for
leave to file amended forfeiture complaint with respect to 3,200-year-old Egyptian mummy
funerary mask which appeared in the United States in approximately 1998 after disappearing
from Egypt sometime in the 1960’s or 1970’s. The complaint insufficiently alleged proof that the
mask had been stolen or illegally brought into the United States and a parallel declaratory
judgment action by the museum/owner could provide an opportunity to test forfeiture.
Hon. Ross Walters - 4
6.
FutureFuel Chemical Co. v. Lonza, Inc., 756 F.3d 641 (8th Cir. 2014).
After trial court granted defendant’s summary judgment motion on plaintiff’s breach of contract
and promissory estoppel claims arising in a dispute between suppliers of pharmaceutical
ingredients, the court’s proposal to unseal records which had been sealed, which had not been
resolved because plaintiff had filed a notice of appeal resulting in the records being transmitted
to the court of appeals, was not subject to appeal as no final appealable order had been entered.
7.
Wagner v. Jones, 758 F.3d 1030 (8th Cir. 2014), cert. denied, 2015 WL
998608 (2015). In lawsuit by prospective law school professor against deans of law school after
she was not hired, asserting § 1983 claims for political discrimination and violation of equal
protection rights, circuit holds that trial court committed error in verdict process necessitating
new trial. Also, jury instructions did not adequately address the shifting burden of persuasion and
on re-trial should be revised.
8.
Young v. Allstate Ins. Co., 759 F.3d 836 (8th Cir. 2014). In lawsuit arising
from insurer’s denial of plaintiffs’ fire loss claims based on alleged misrepresentation of the
losses incurred, trial court’s jury instruction on insurer’s affirmative defense of fraudulent
misrepresentation included both elements of the defense under Missouri law, which did not
require proof of intent to deceive, only that the representation was made with the intent the other
party rely on it.
9.
Gorog v. Best Buy Co., 760 F.3d 787 (8th Cir. 2014). In ruling on
defendant’s motion to dismiss plaintiff’s breach of contract claim, the court did not err in
considering an Award Agreement without converting the motion to one for summary judgment –
the agreement was necessarily “embraced” by plaintiff’s amended complaint as plaintiff quoted
from it.
10.
George K. Baum & Co. v. Twin City Fire Ins. Co., 760 F.3d 795 (8th Cir.
2014). Although trial court erred in applying Missouri law to insurance policy issued to Missouri
plaintiff (the NY addresses for both insured and insurer were listed on policy, and the policy
contained NY-specific provisions), the circuit found the policy to be ambiguous regarding a
timely notice requirement. Thus, the policy provided coverage for municipal derivatives lawsuits
filed after plaintiff settled an IRS claim involving municipal bond issues.
11.
Parrish v. Dayton, 761 F.3d 873 (8th Cir. 2014). First Amendment
challenge to exclusive representation and fair share fees imposed by state law making child care
providers (who were paid with government subsidies) executive branch state employees for
purposes of collective bargaining; however, since no petition for election of a representative had
been filed, claims were not ripe for review.
Hon. Ross Walters - 5
12.
Stevenson v. Blytheville School Dist. No. 5, 762 F.3d 765 (8th Cir. 2014).
Appeal of district court’s order denying preliminary injunctive relief against school district’s
opting-out of state school choice transfer statute (because school district was under a federal
segregation mandate) was moot as plaintiffs’ action only asked for injunctive relief with respect
to a date-specific resolution by the school board for the applicable school year and not for
injunctive relief from passing further opt-out resolutions – as such the controversy was not
“capable of repetition.”
13.
Sentis Group, Inc. v. Shell Oil Co, 763 F.3d 919 (8th Cir. 2014). Sanction
of dismissal after court found plaintiffs were responsible for loss of their financial information,
as well as a computer on which their late-disclosed accountant had maintained raw data and
financial reports, was not an abuse of the court’s discretion – plaintiffs had engaged in “a pattern
of evasive and objectionable conduct” and the disappearance of the accountant and his computer
were the proverbial camel-back breaking straws.
14.
Freeman v. Wyeth, 764 F.3d 806 (8th Cir. 2014). Court did not abuse its
discretion in dismissing plaintiff’s individual case in MDL proceedings (involving claims that
hormone therapy medication caused breast cancer in the plaintiffs) for failure to prosecute.
Counsel failed to register for the district’s MDL CM-ECF system, in spite of the court’s orders to
do so, and therefore did not receive a copy of an electronic order requiring plaintiff to provide
medical authorizations to defendants. Denial of plaintiff’s Rule 60(b)(1) motion to set aside
(filed nine months later) was not an abuse of discretion and counsel’s dereliction did not
constitute excusable neglect.
15.
Miller v. Dugan, 764 F.3d 826 (8th Cir. 2014). After plaintiff accepted
defendants’ offer of judgment under Fed. R. Civ. P. 68, district court correctly denied his request
for prejudgment interest – state law on prejudgment interest did not control a judgment entered
under the federal rule, nor was prejudgment interest a cost under the narrow terms of Rule 68.
Additionally, plaintiff was not entitled to an evidentiary hearing on his motion for attorney’s fees
as Rule 54 did not require one.
16.
Phipps Group v. Downing, 764 F.3d 864 (8th Cir. 2014), cert. denied,
2015 WL 731942 (2015). In complex multidistrict litigation involving genetically modified rice
tainting the U.S. rice supply, counsel who represented some plaintiffs but who was not a member
of the attorney leadership group appointed by the court was not entitled to funds from a
court-created common benefit trust fund (containing money from all awards or settlements in
MDL cases set aside to finance the fund for expenses of lead counsel and those attorneys who
performed work which benefited all rice plaintiffs). Counsel submitted claims pursuant to the
Settlement Agreement without reserving objections to establishment of the Fund and
contribution requirement, counsel’s work was “separate and apart” from the leadership group,
and counsel did not share benefits of its clients’ experts and did not attempt to coordinate with
lead counsel.
Hon. Ross Walters - 6
17.
U.S. Bank, N.A. v. State Farm Fire & Cas. Co., 765 F.3d 867 (8th Cir.
2014). In dispute between homeowner and insurer concerning amount of loss and to whom
insurance proceeds should be paid (after fire loss), bank as trustee of pooled loans trust (to which
plaintiff’s mortgage had been sold) was untimely in its attempt to intervene to make a claim to
the funds at issue – case had gone to jury trial and settled; bank had relied on other entities to
serve as its “representatives” and did not move to intervene after they were dismissed and/or
denied leave to intervene themselves, and bank could proceed against plaintiff in a separate
lawsuit.
18.
U.S. ex rel Thayer v. Planned Parenthood of the Heartland, 765 F.3d 914
(8th Cir. 2014). Plaintiff’s false claims allegations under federal and state law were sufficiently
particular under Fed. R. Civ. P. 9(b) in the circumstances of this case as plaintiff was in a
position to have personal knowledge of the billing practices alleged to have transpired because
she oversaw the billing and claims system – in this case representative examples of false claims
were not necessary.
19.
Reed v. Malone’s Mechanical, Inc., 765 F.3d 900 (8th Cir. 2014). In
personal injury case, trial court did not err in failing to give plaintiff’s requested instruction that
owner of premises (who had been dismissed from first lawsuit and was not a party at trial) on
which plaintiff was injured was not negligent as a matter of law – there was no evidence or
argument concerning the owner and the fact the jury found a subcontractor on premises was not
negligent did not establish the jury must have found the owner at fault. In instructing on OSHA
regulations, trial court did not err in concluding the general falling object protection requirements
were more applicable under the circumstances of this case instead of the scaffold requirements –
here plaintiff was injured from an object falling from outside a scissor lift, not inside the scissor
lift.
20.
Bank of America, N.A. v. JB Hanna, LLC, 766 F.3d 841 (8th Cir. 2014). In
complex multi-million dollar case involving floating-interest-rate loans and interest rate swaps,
district court did not err in refusing to strike defendant’s jury demand – even though all other
agreements at issue in the case contained jury-trial waivers, the key loan document at issue did
not contain the waiver and though signed by the same person as the others, was signed in a
different capacity than the other agreements.
21.
Hiser v. XTO Energy, Inc., 768 F.3d 773 (8th Cir. 2014). In a lawsuit
involving claims for damages caused by vibrations from the drilling operations of defendant
oil-and-natural-gas producer, any prejudice arising from jury’s discussion of “fracking” during
deliberations and question about it to the court was remedied by the court’s instruction to
consider only the evidence submitted and instructions provided. There was no evidence any juror
was biased, evidence jurors disregarded the court’s instruction was inconclusive and nothing tied
the jurors’ post-instruction discussion of earthquakes to the case at hand.
Hon. Ross Walters - 7
22.
Trip Mate, Inc. v. Stonebridge Cas. Ins. Co., 768 F.3d 779 (8th Cir. 2014).
The circuit holds the trial court’s comments at the end of the first day of a bench trial on
cross-claims arising out of a managing general agent agreement between travel agent and travel
insurer, suggesting course of dealing modified the terms of the agreement, were too vague to
provide the parties actual notice the court was going to imply amendment of the pleadings
pursuant to Fed. R. Civ. P. 15(b)(2) and the parties did not consent to trying the issue; therefore
the district court improperly added course of dealing to the pleadings as an implied amendment
by consent. Judgment reversed with directions to dismiss case.
23.
Steen v. Murray, 770 F.3d 698 (8th Cir. 2014), petition for cert. filed (83
U.S.L.W. 3638 (1/19/2015)(No. 14-908). In order to determine whether Nebraska federal district
court applied the proper state’s statute of limitations in this legal malpractice suit originally
brought in the Iowa federal district court, the circuit reviewed de novo the Iowa court’s venue
decision, transferring the case to Nebraska under 28 U.S.C. § 1406(a). District court correctly
focused on the “relevant activities of the defendant in the forum state, not on the effect of those
activities of plaintiff in the forum state.” Here the law firm was located in Nebraska, was not
licensed to practice in Iowa, made contacts and drafted documents within the state of Nebraska
concerning the subject matter of the litigation. That the alleged malpractice affected plaintiffs’
claims to farmland in Iowa was not relevant to the dispute as the malpractice itself was the
“subject of” the litigation, not a property dispute. Nebraska district court correctly applied
Nebraska choice-of-law rules and Nebraska law in determining plaintiffs’ claims were time
barred.
24.
Mullen v. Heinkel Filtering Sys., Inc., 770 F.3d 724 (8th Cir. 2014).
District court did not abuse its discretion in granting plaintiffs’ motion to dismiss without
prejudice a products liability lawsuit which had been removed from state court. Although the
magistrate judge had denied plaintiffs’ motion to extend the expert disclosure deadline,
discovery had not progressed very far and plaintiffs had been alerted to the need to add an
additional (and legitimate) party defendant who would destroy diversity jurisdiction.
25.
Townsend v. Bayer Corp., 774 F.3d 446 (8th Cir. 2014). In case involving
claim of wrongful termination of employment after plaintiff reported one of his employer’s
customers to the government for making false Medicaid claims, court abused its discretion in
declining to grant a remittitur of emotional distress damages award of $568,000. The circuit
found plaintiff had experienced financial problems before his employment was terminated and
that his emotional distress (two and a half years of untreated depression and sleeplessness) to be
"garden variety," meriting an award no greater than $300,000.
26.
Comstock v. UPS Ground Freight, Inc., 775 F.3d 990 (8th Cir. 2014).
Dismissal of personal injury lawsuit for plaintiff's failure to timely produce medical information
and expert's test results to defendant was not an abuse of the court's discretion. Non-production
of the information prejudiced defendant's ability to take depositions, including a re-deposition of
plaintiff who died during the course of the litigation.
Hon. Ross Walters - 8
27.
Oetting v. Green Jacobson, 775 F.3d 1060 (8th Cir. 2015). In this case the
circuit clarifies the rules under which a cy pres distribution of unused or unclaimed class action
settlement funds may be made, holding that district court's distribution of the funds to unrelated
third party charities was an error of law because further distribution to the class was feasible,
whether the claims of the class members had been fully compensated was speculative, a
provision in the settlement agreement giving the court sole discretion to make a distribution had
previously been held void by the circuit, notice of the cy pres proposal should be provided to the
class members, and it was not clear that the charity chosen was the "next best" recipient as being
for a purpose related to the objectives of the lawsuit, the interests of the class members and of
those similarly situated.
28.
Powers v. Credit Management Services, Inc., 776 F.3d 567 (8th Cir.
2015). Interlocutory appeal of order certifying four classes of consumers in a Fair Debt
Collection Practices Act case. District court abused discretion by failing to conduct the required
"rigorous analysis" of plaintiffs' claims – the circuit's review resulting in a finding that the
standard-form complaint classes did not meet commonality, predominance and superiority
requirements of Rule 23 and the standard-form discovery request claims failed in the
commonality and predominance query.
C.
Causes of Action
1.
United States v. $48,100, 756 F.3d 650 (8th Cir. 2014). Where
government conceded currency found in RV in which claimant was traveling from Colorado
back to Nebraska had all come from legitimate sources, government was not entitled to forfeiture
of the seized currency as the evidence did not support the government’s theory that claimant had
the large amount of currency to facilitate purchase of a distribution quantity of marijuana.
2.
Varga v. U.S. Bank NA, 764 F.3d 833 (8th Cir. 2014). Order dismissing
plaintiff’s claims against bank for aiding and abetting breach of fiduciary duty, willful/wanton
and gross negligence after investors lost over $700 million investing in a Ponzi scheme affirmed.
Plaintiff’s allegations that bank knew direct payment system was not being followed as required
failed as the account agreement did not mandate acceptance of deposits only from retailers,
expressly referenced other payments, and for several years before the active fraud payments were
made that way. The bank’s conduct in re-coding account statements for the account was not
shown to have been done with knowledge any wrongdoing was taking place. Allegations that
bank employees made false statements the direct payment system was being followed did not
include assertions that the employees knew their statements were false.
3.
United States v. Aleff, 772 F.3d 508 (8th Cir. 2014). After defendants
entered guilty pleas to charges of conspiracy to defraud the United States by submitting false
applications for loan-deficiency payments, summary judgment in favor of government in
subsequent civil lawsuit for damages under the False Claims Act was proper as guilty pleas were
preclusive on the essential elements of the FCA claim. Damages as a civil sanction (here $1.3
million judgment) did not violate the Double Jeopardy Clause.
Hon. Ross Walters - 9
4.
Brinkley v. Pfizer, Inc., 772 F.3d 1133 (8th Cir. 2014). Plaintiff’s state law
warning label claims against manufacturer of generic drug which her pharmacist substituted for
the brand-name drug prescribed by her physician failed after defendant filed a motion for
judgment on the pleadings – Missouri law applying the “learned intermediary doctrine” broke
any causal link between defendant’s failure to include a change in its label (based on a change
made by the brand-name manufacturer) and injuries to plaintiff. Additionally, plaintiff’s state
law design-defect and breach of implied warranty claims were preempted by the FDCA.
5.
Schriener v. Quicken Loans, Inc., 774 F.3d 442 (8th Cir. 2014). Where
plaintiff conceded defendant Quicken Loans did not charge him for a deed of trust QL obtained
from a law firm to secure a residential mortgage issued by QL, his state law claims that QL
improperly engaged in law business or was unjustly enriched failed to state plausible claims for
relief.
6.
United States v. $63,530 in United States Currency,
F.3d
, 2015
WL 1283939 (8th Cir. 3/23/2015). In this forfeiture case, during a legitimate traffic stop after
deputy observed claimant crossing three lanes of traffic without signaling, consent dog sniff of
claimant's vehicle occurred during which dog alerted to two areas of the vehicle, leading the
deputy to search the vehicle. Deputy found two backpacks, one of which emitted a strong smell
of marijuana and contained 64 bundles of currency wrapped in multiple grocery bags. Claimant's
motion to dismiss forfeiture based on deficient notice of the complaint was denied – the
government sent twelve written notices to claimant at two different addresses and two different
names it believed to be associated with claimant and published notice in the Wall Street Journal.
Furthermore, claimant was obviously aware of the seizure and the minimal delay which occurred
while the government attempted to make service did not keep him from filing a timely claim.
D.
Evidence
1.
Mack v. Stryker Corp., 748 F.3d 845 (8th Cir. 2014). Trial court correctly
determined that articles on which plaintiff’s expert relied did not support his opinion that the
manufacturer should have been on notice that pain pump which infused anesthesia into articular
joints could be dangerous, nor did they “capture the full context of the relevant medical
knowledge” at the time plaintiff’s surgery was performed concerning the effects of using pain
pumps. Therefore, defendant manufacturer could not have foreseen the potential for damage and
had no duty to protect plaintiff.
2.
Lawrey v. Good Samaritan Hospital, 751 F.3d 947 (8th Cir. 2014). Trial
court’s limine ruling which precluded plaintiff’s experts from testifying the only possible cause
of a birth injury was excessive physician-applied traction was not an abuse of discretion as the
opinions offered did not fit the facts of the case. Before getting to this issue, the circuit noted that
plaintiff was not required to make an offer of proof at trial regarding her experts’ testimony
following the pre-trial limine ruling in order to preserve her objection, in accordance with the
2000 amendment to Fed. R. Evid. 103.
Hon. Ross Walters - 10
3.
Johnson v. Mead Johnson & Co., 754 F.3d 557 (8th Cir.), cert. denied,
135 S. Ct. 489 (2014). Finding the district court abused its discretion in excluding the testimony
of plaintiffs’ experts, this products liability case was reversed and remanded. Trial court erred in
its determination that the experts’ methodology of ruling in “scientifically plausible causes” of
an infant’s exposure to the C. sak bacterium (allegedly through defendant’s infant formula) and
then ruling out least plausible causes was unreliable – experts are not required to rule out all
possible causes when performing differential etiology analysis.
4.
Loomis v. Wing Enterprises, Inc., 756 F.3d 632 (8th Cir. 2014). Trial
court’s exclusion of compression tests plaintiffs’ expert performed on ladder involved in
products liability case was within the court’s discretion based on its finding there was a lack of
connection between the testing method and how the accident occurred.
5.
Valadez v. Watkins Motor Lines, Inc., 758 F.3d 975 (8th Cir. 2014).
Plaintiff’s questioning of an officer witness about an information box on an accident report,
which report had previously been ruled inadmissible by the court in a limine ruling, did not
“open the door” to defense counsel’s follow-up questions about other boxes on the inadmissible
form as well as his emphasis on the “official highway report” in closing arguments. The circuit
finds the subsequent questioning and remarks in closing arguments were improper and a
substantial influence on the jury verdict, requiring remand for new trial.
6.
McDowell v. Blankenship, 759 F.3d 847 (8th Cir. 2014). In wrongful death
case resulting from alleged excessive force, trial court did not abuse its discretion in admitting
deposition testimony of deputy who could not be present for trial – the circumstances of deputy’s
employment in Afghanistan as a civilian employee qualified as “exceptional circumstances”
under Rule 32(a)(4)(E) and plaintiffs were not prejudiced as their attorney was present during the
deposition and extensively questioned the deputy.
7.
Union Pacific Railroad Co. v. Progress Rail Services Corp., 778 F.3d 704
(8th Cir. 2015). In case alleging defendant had negligently reconditioned railcar axles, causing
the derailment of two trains, trial court's exclusion of the testimony of plaintiff's metallurgist was
not in error in view of the expert's inability to testify with a reasonable degree of professional
certainty that pits or cracks which were present in the failed axles were present at the time
defendant refurbished the axles or that any pre-refurbishing pits or cracks were the cause of the
axles fracturing. There was evidence from which the court could have found a gap between the
data and the expert's ultimate opinion.
Hon. Ross Walters - 11
II.
CRIMINAL LAW
A.
Criminal Acts
1.
Robers v. United States,
U.S.
, 134 S. Ct. 1854 (2014). District
court did not err in calculating defendant's restitution obligation after he was convicted of
submitting fraudulent mortgage loan applications -- "property" under the Mandatory Victims
Restitution Act of 1996 in this context refers to the money the banks lost when they lent it to
defendant, not the houses which served as collateral for the loans which the banks eventually
sold.
2.
Bond v. United States,
U.S.
, 134 S. Ct. 2077 (2014).
Defendant’s conduct in spreading toxic chemicals on items the intended victim (the girlfriend of
defendant’s husband) might touch did not fall within the scope of the international Chemical
Weapons Convention, 18 U.S.C. § 229, thus federal conviction for what was a simple assault
under state laws is reversed.
3.
Abramski v. United States,
U.S.
, 134 S. Ct. 2259 (2014). Even
though defendant’s uncle, for whom he purchased a gun, could legally purchase a gun
defendant’s misrepresentation on the required Form 4473 that he was the actual buyer of the gun
was material to a charge under the false statements component of the federal gun laws, 18 U.S.C.
§ 922(a)(6).
4.
Loughrin v. United States,
U.S.
, 134 S. Ct. 2384 (2014). The
Supreme Court holds that in prosecuting a defendant under the federal bank fraud statute, 18
U.S.C. § 1344(2), the government is not required to prove intent to defraud a financial
institution, only intent to obtain institutional property by means of a false statement.
5.
Whitfield v. United States,
U.S.
, 135 S. Ct. 785 (2015). For
purposes of applying enhanced sentencing penalties (from 10 years to life in prison) to defendant
who forces another to accompany him (without consent) during a bank robbery, the Supreme
Court holds that movement within a single building or only a short distance meets the requisite
conduct. Here, defendant fled a bank robbery, entered a home and forced its occupant to move
from a hallway to a room a few feet away where the occupant died from a heart attack.
6.
Yates v. United States,
U.S.
, 135 S. Ct. 1074 (2015). The
Supreme Court holds that a provision under the Sarbanes-Oxley Act of 2002 prohibiting the
destruction of "tangible object" (record) evidence did not apply to conduct of captain of
commercial fishing vessel in throwing an undersized fish overboard after federal agent found the
fish in the ship's catch violated federal conservation regulations and directed the captain to keep
it segregated until the ship returned to port. Case remanded for reversal of conviction.
Hon. Ross Walters - 12
7.
United States v. Conklin, 750 F.3d 773 (8th Cir. 2014). Defendant's
challenge to the sufficiency of the evidence to sustain the jury's guilty verdict on charge of
assault causing serious bodily injury failed as the witness inconsistencies concerning defendant's
identification as the perpetrator could have been resolved by the jury and the direct and
circumstantial evidence was sufficient.
8.
United States v. Kalb, 750 F.3d 1001 (8th Cir. 2014). Testimony and wire
recordings of defendant’s conversations with informant (who was working with FBI as part of
police corruption investigation) in which she told the informant she would help him get his
drug-laden car through town without police interference were sufficient to support her conviction
for extortion, particularly because defendant was not entitled to the money the informant paid her
and she drove her police car while in uniform to assist transit.
9.
United States v. Smith, 756 F.3d 1070 (8th Cir. 2014), cert. denied, 135 S.
Ct. 948 (2015). In a case of first impression in this circuit, charge of knowingly aiming a laser
pointer at a police helicopter as a violation of 18 U.S.C. § 39A did not require a showing that
defendant intended to strike the aircraft.
10.
United States v. Anderson, 759 F.3d 891 (8th Cir. 2014), petition for cert.
filed, (11/14/2014)(No. 14-7176, 14A367). Constitutional challenge to application of child
pornography distribution laws as applied to “morphed” sexual image containing minor’s face
which defendant sent to victim’s Facebook account. Although the government’s categorical
speech argument failed because the picture in question involved morphing a minor’s face on the
body of an adult engaged in sex and not onto the image of a child engaged in sexual conduct
(which would imply that a minor was sexually abused to obtain the underlying image), the
government’s compelling interest in protecting children from harm which could be associated
with morphed images supported application of the child pornography statute in this situation
under a strict scrutiny standard.
11.
United States v. Woolsey, 759 F.3d 905 (8th Cir. 2014). Based on
undisputed evidence that defendant acquired and possessed firearm and ammunition at separate
times and in separate places, the government could prosecute him on two offenses instead of just
one. Defendant’s Second Amendment facial challenge to 18 U.S.C. § 922(g)(1) failed as having
been previously rejected by the circuit.
12.
United States v. Mathews, 761 F.3d 891 (8th Cir. 2014). Evidence was
sufficient to support jury’s guilty verdict on charges of subscribing to false tax returns and
endeavoring to obstruct administration of internal revenue laws – evidence showed that over a
four-year period of time defendant’s reported gross receipts were only a fraction of the receipts
he deposited into his bank account and defendant lied to IRS agents during an audit which led to
the charges.
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13.
United States v. Bennett, 765 F.3d 887 (8th Cir. 2014), cert. denied, 2015
WL 143870 (2015). Statute of limitations did not bar mail fraud or mail-fraud-conspiracy
charges against defendant – the limitations period begins to run from occurrence of last overt act,
which in this case was the date defendant received a proceeds check as part of the mail fraud
scheme, and not the date the check was put in the mail.
14.
United States v. Coppock, 765 F.3d 921 (8th Cir. 2014), cert. denied, 135
S. Ct. 1003 (2015). Defendant’s constitutional challenge to SORNA requirements as beyond
Congressional authority under Art. I of the Constitution failed – retroactive application of
SORNA registration requirements to federal sex offender who was on parole at the time of the
statute’s enactment fell within the Necessary and Proper Clause holdings as defendant was still
in a “special relationship with the federal government” because of his parole supervision status.
15.
United States v. Brewer, 766 F.3d 884 (8th Cir. 2014). The circuit rejects
the Attorney General’s stated reasons for bypassing the advance publication-notice-comment
requirements in promulgating and making effective an Interim Rule concerning application of
SORNA requirements to pre-SORNA offenders, finding SORNA did not apply to defendant in
2007 when he returned to the United States and did not register as a sex offender as a result of a
1997 conviction offense in Hawaii. Conviction for failing to register vacated.
16.
United States v. Henley, 766 F.3d 893 (8th Cir. 2014), cert. denied, 2015
WL 436184 (2015). Circuit affirms convictions of multiple defendants after a 35-day jury trial
concerning charges motorcycle gang members were involved in racketeering conspiracy and
violent crime to murder members of rival gangs. Among the many issues raised on appeal, the
circuit found there was sufficient evidence to establish the Wheels of Soul was not just a
temporary criminal alliance but one with a continuous and sustained purpose to qualify as a
RICO enterprise. Evidence of acts over a three-year period was sufficient to find a pattern of
racketeering activity: acts of violence directed at those who were not authorized to wear
“colors,” violence in defense of club members or friends; and local disputes which would spread
to other cities resulting in “war” with rival organizations on a multi-state basis.
17.
United States v. Koss, 769 F.3d 558 (8th Cir. 2014), cert. denied, 2015
WL 732185 (2015). In the face of defendant’s admission he was afraid of losing Medicare
benefits if he no longer qualified for social security benefits and that he knew he was to be
truthful in his reports to the SSA, a jury could and did reasonably infer intent to obtain benefits
to which defendant was not entitled.
18.
United States v. Anderson, 771 F.3d 1064 (8th Cir. 2014), cert. denied,
2015 WL 731004 (2015). Constitutional challenges to conviction for failing to register as a sex
offender failed as the registration requirements fell within the scope of the Necessary and Proper
Clause and criminalization of the act of failure to register did not violate the Commerce Clause.
Hon. Ross Walters - 14
19.
United States v. Luedtke, 771 F.3d 453 (8th Cir. 2014). State correctional
officers housing federal detainees under a contract with the U.S. Marshals qualified as persons
assisting federal officers, allowing the charges of assaulting persons assisting federal officers
under 18 U.S.C. § 111 to withstand an attack on federal jurisdiction over the crimes.
20.
United States v. Rodriguez-Ayala, 773 F.3d 65 (8th Cir. 2014). In case
charging defendant with making a false claim of U.S. citizenship and aggravated identity theft,
evidence that defendant not only checked a box on his passport application claiming to be a U.S.
citizen or national but he also used a falsified U.S. birth certificate to obtain his passport
supported the false claim conviction. Additionally, the government was not required to show the
identity theft victim’s lack of consent in order to prove aggravated identity theft.
21.
United States v. Brown, 777 F.3d 1025 8th Cir. 2015. Dismissal of
indictments against tribe members for violations of the Lacey Act provisions for fish netted for
commercial purposes on Indian waterways was affirmed – 1837 treaty reservations of
usufructuary rights remained in effect and was not abrogated by the Lacey Act. The Chippewa
Indians had the right to fish and to sell fish obtained on tribal lands and waters.
22.
United States v. Peeler, 779 F.3d 773 (8th Cir. 2015). Drug conspiracy
conviction was supported by evidence that defendant had more than a buyer-seller relationship
with co-conspirator even though defendant was stopped by law enforcement after only one
81-gram transaction with that co-defendant – another co-conspirator testified he had been
distributing powder cocaine to defendant for a number of years, who cooked it to crack cocaine
and resold it to multiple customers, which was sufficient evidence to submit conspiracy to the
jury.
23.
United States v. Fire Cloud,
F.3d
, 2015 WL 1087256 (8th Cir.
3/13/2015). After defendant was found guilty of lesser-included offense of abusive sexual
contact and attempted aggravated sexual abuse, his claim on appeal that there was insufficient
evidence of "force" to support the convictions failed as the evidence showed defendant grabbed
his victim from behind while she was in the shower of a bathroom she had locked, attempted to
place his hands on her and would not go away when she yelled at him, all adequate evidence of
an attempt to restrain the victim.
24.
United States v. Petruk,
F.3d
, 2015 WL 1283970 (8th Cir.
3/23/2015). Carjacking conviction reversed as the evidence did not support elements of crime –
defendant took the subject truck while no one was around, the owner learned it had been taken
and followed in another vehicle. A second "taking" did not occur when defendant stopped,
charged at the owner who was in another vehicle, assaulted him and returned to the stolen truck.
B.
Procedure
1.
United States v. Maldonado Aguilar, 752 F.3d 1148 (8th Cir. 2014).
Alternate juror’s participation in deliberations was plain error which prejudiced defendant,
requiring new trial.
Hon. Ross Walters - 15
2.
United States v. Conway, 754 F.3d 580 (8th Cir. 2014), cert. denied, 135
S. Ct. 770 (2015). Rejection of defendant’s proposed “buyer-seller” instruction in drug
conspiracy case was appropriate where the evidence showed more than a one-time buy-sell of
personal use crack cocaine, indeed it showed a loose-knit network which spanned about three
years with significant quantities distributed numerous times.
3.
United States v. Galimah, 758 F.3d 928 (8th Cir. 2014). In case involving
charge of smuggling firearms out of the United States, trial court did not err in allowing the
government’s proposed deliberate ignorance of the law instruction – defendant’s knowledge of
the law (against exporting the weapons) was at issue and the instruction did not lessen the
government’s burden on that element.
4.
United States v. Hayden, 759 F.3d 842 (8th Cir.), cert. denied, 135 S. Ct.
691 (2014). Magistrate judge did not err in holding a supplemental suppression hearing on
government’s motion to reconsider after issuing recommendation defendant’s motion to suppress
be granted but before the report and recommendation had been adopted by district court, the
circuit reasoning that since district court had the discretion to receive additional evidence in
conducting de novo review of magistrate judge’s report and recommendation, “a fortiori” the
magistrate judge had similar discretion to receive new evidence before a final report and
recommendation was presented to the district court.
5.
United States v. Mathison, 760 F.3d 828 (8th Cir. 2014). Where plaintiff
requested a coercion or duress instruction in a case charging her with robbery, conspiracy to
commit robbery, possession of a firearm in furtherance of crime of violence and possession of
short barreled shotgun, she could not challenge the giving of the instruction as a basis for appeal.
6.
United States v. Caruthers, 765 F.3d 843 (8th Cir. 2014), cert. denied,
2015 WL 641461 (2015). In forfeiture ancillary to a criminal case, claimant (who was not a
defendant in the underlying case) failed to establish he had a legal interest in $412,900 which
was seized from the trunk of a car he was driving. His bare assertion of possession at the time of
seizure did not explain the “nature and extent” or “circumstances” of his alleged possession;
therefore, claimant did not meet the statutory requirements to sustain a forfeiture petition.
7.
United States v. Kramer, 768 F.3d 766 (8th Cir. 2014), cert. denied, 2015
WL 641669 (2015). In case involving multiple counts of bank fraud and wire fraud, denial of
defendant’s motion to sever trial from that of co-defendant was not an abuse of discretion –
during the 13-day trial co-defendant only tried to pass blame to defendant on a few instances,
nothing was prejudicial in co-defendant’s testimony and counsel’s disagreements with each other
(out of the presence of the jury) did not establish prejudice. Admission of evidence of a civil
lawsuit against defendant but exclusion of the underlying facts was not an abuse of discretion as
defendant’s continued negotiations with bank had limited probative value with respect to the
fraud alleged and a large portion of the evidence he wanted to present came in through bank
witnesses.
Hon. Ross Walters - 16
8.
United States v. Kelley, 774 F.3d 434 (8th Cir. 2014). Defendant who did
not appeal magistrate judge’s pretrial ruling denying substitute counsel to the district court
pursuant to Fed. R. Crim. P. 59(a) waived his right to raise the issue on appeal from his
conviction.
9.
United States v. Booker, 774 F.3d 928 (8th Cir. 2014). Court did not abuse
its discretion in answering jury's question about constructive possession of a gun issue by
directing it to refer to the instructions which already accurately stated the legal definition.
10.
United States v. Martin, 777 F.3d 984 (8th Cir. 2015). In murder robbery
case committed on Indian land, trial court's pre-impanelment comments to the jury venire out of
the presence of counsel and the parties (with the consent of counsel as long as the court's
comments were recorded), while outside the scope of the comments the court notified counsel he
was going to make (to thank the jury for their service and to explain the difference between state
and federal judges) because of his reference to high profile criminal cases, jury nullification and
lawyer stereotypes, did not violate the defendants' constitutional rights because the court did not
discuss defendants' guilt or innocence or any of the facts of the case.
C.
Fourth Amendment
1.
Riley v. California,
U.S.
, 134 S. Ct. 2473 (2014). In two cases
officers viewed information on suspects’ cell phones when they arrested the suspects without
obtaining a warrant. The Supreme Court holds that law enforcement generally may not search
digital information on a cell phone obtained at the time of arrest without a warrant.
2.
Heien v. North Carolina,
U.S.
, 135 S. Ct. 530 (2014). Officer’s
mistake of law concerning the need for two working brake lights (only one was functioning at
the time of the stop and was the reason the officer pulled defendant over) was reasonable,
justifying the stop under the Fourth Amendment.
3.
United States v. Ovando-Garzo, 752 F.3d 1161 (8th Cir. 2014). Even
though officer had arrested driver during traffic stop, extension of the stop to determine what to
do with the truck and its passengers, neither of whom had a valid drivers license or identification
(and who subsequently admitted they were unlawfully present in the country), was lawful as a
community caretaking function.
4.
United States v. Humphrey, 753 F.3d 813 (8th Cir.), cert. denied, 135 S.
Ct. 385 (2014). Stop of defendant in strip mall parking lot after officers had decided to
discontinue surveillance of defendant (which they had originally undertaken when defendant was
involved in other recent incidents of criminal conduct) was based on reasonable suspicion of
criminal activity. Defendant rented an apartment where there had been a burglary and report of
gunfire, he had been arrested and released as a suspect in a related homicide, and after officers
broke off surveillance defendant pursued them, later claiming he did not know they were police
officers.
Hon. Ross Walters - 17
5.
United States v. Farlee, 757 F.3d 810 (8th Cir.), cert. denied, 135 S. Ct.
504 (2014). Defendant charged with assault with a dangerous weapon (he kicked an individual in
the head with his boots) was not entitled to defense of property jury instruction – the incident
occurred in another individual’s trailer and defendant was not in the same family or household as
that individual.
6.
United States v. Dukes, 758 F.3d 932 (8th Cir. 2014). Affidavit detailing
three controlled buys between CI and a co-defendant, during two of which agents were able to
maintain visual surveillance of the buys at the same residence, provided sufficient probable cause
for a warrant to search defendant’s residence, even though defendant did not deal directly with
the CI.
7.
United States v. Davis, 760 F.3d 901 (8th Cir. 2014), cert. denied, 135 S.
Ct. 996 (2015). Officers acted in reasonable reliance on existing circuit precedent in conducting a
warrantless dog sniff outside defendant’s apartment door (after viewing what law enforcement
believed to be numerous drug purchasers go in and out of the apartment); therefore good faith
exception applied to dog sniff. The fact the Supreme Court had heard argument in Jardines
(which held use of dog sniffs outside a home was a search for Fourth Amendment purposes) did
not change the reasonableness of the officers’ reliance.
8.
United States v. Salgado, 761 F.3d 861 (8th Cir. 2014). After officer
pulled in behind defendant’s broken down car in the early morning hours and offered assistance,
his attempts to identify the driver fell within the community-care-taking function of officers and
did not qualify as a seizure. Once defendant admitted not having a driver’s license, officer had
probable cause to arrest for traffic violation and to further detain him for basic information. A
non-match on the name and birthdate defendant provided and defendant’s inability to identify his
fellow travelers gave reasonable suspicion for investigatory stop including a dog sniff (which
was productive), leading to drug trafficking charges against defendant.
9.
United States v. Givens, 763 F.3d 987 (8th Cir. 2014), cert. denied, 2015
WL 852531 (2015). Officer had reasonable suspicion to make traffic stop of defendant’s vehicle
to confirm the validity of a temporary paper tag in the window which the officer could not see
clearly because of darkness and the angle of the window; therefore subsequent search after
officer smelled marijuana during the stop did not violate the Fourth Amendment.
10.
United States v. Meidel, 764 F.3d 844 (8th Cir. 2014). Warrantless entry
into defendant’s fenced yard was permitted as officers had probable cause to arrest defendant for
felon in possession. Defendant confirmed his identity; based on an on-going investigation officer
knew defendant was a convicted felon, and both officers saw what looked like a gun tucked into
the waistband of defendant’s pants as he walked away from them. Defendant’s statement that it
was a pellet gun did not “undermine . . . probable cause.”
Hon. Ross Walters - 18
11.
United States v. Milliner, 765 F.3d 836 (8th Cir. 2014). Fourth
Amendment challenge to necessity of wiretaps used to obtain evidence linking defendant to drug
distribution conspiracy failed. While there was enough evidence to prosecute some members of
the conspiracy, there was not enough to prosecute everyone and agents had attempted many
techniques (surveillance, CIs, controlled purchases, trash seizures, etc.) but still did not know
where the leader of the enterprise obtained cocaine, how proceeds were laundered or where
drugs or proceeds were stored. Some danger was involved in other investigative techniques as
the leader and some associates were reported to be armed and were paying local police to help.
12.
United States v. Whisenton, 765 F.3d 938 (8th Cir. 2014). Although
agents’ warrantless entry into defendant’s home was likely not justified under the Fourth
Amendment as an exigent circumstances exception, the passing of at least 15 minutes from the
time of the illegal entry to defendant’s giving consent to search was sufficient intervening
circumstances to support a finding defendant’s consent was voluntary and not tainted by the
illegal entry.
13.
United States v. O’Dell, 766 F.3d 870 (8th Cir. 2014). Affidavits
submitted in support of request for search warrant to search defendant’s room at a YMCA camp
where he had been a supervisor provided sufficient probable cause. One of the alleged victims
provided a detailed statement concerning how defendant approached him through a fake online
persona and then attempted to commit sexual abuse on him. Three other victims provided similar
information, including information that defendant had multiple computers and cell phones.
Officer verified some of the information provided and verified defendant had been living at the
camp, leaving his computer and personal belongings in the room to be searched.
14.
United States v. Reid, 769 F.3d 990 (8th Cir. 2014). Discovery and seizure
of an assault rifle when officers accompanied defendant’s girlfriend (who was arrested on
supervised release violation/warrant) back into residence so she could change from pajamas into
clothes was permissible under the Fourth Amendment. Even though officers did not have search
warrant, they could permissibly accompany the arrested girlfriend back into the home and
monitor her movements. Rifle was in plain view and girlfriend identified it as defendant’s. Case
remanded for resentencing, however, as one of the prior attempted burglary convictions relied on
by the court to enhance defendant’s sentence for felon in possession did not constitute a violent
felony.
15.
United States v. Hunter, 770 F.3d 740 (8th Cir. 2014). Because circuit
precedent on dog sniffs did not at the time of the subject case consider dog sniffs in a common
hallway to constitute a Fourth Amendment search, officers could reasonably rely on that
precedent to use the information to obtain a search warrant to search defendant’s apartment for
drugs; Jardines was not decided until after the search.
Hon. Ross Walters - 19
16.
United States v. Demilia, 771 F.3d 1051 (8th Cir. 2014). Officer’s
affirmative reliance on incorrect traffic statute in support of probable cause to make stop of
defendant’s vehicle (during which 1600 pounds of marijuana were found in consent search of
vehicle) did not eliminate probable cause to stop the vehicle, which in the officer’s presence
drove over a fog line and onto the shoulder multiple times. Government’s failure to assert the
correct statutory basis did not operate as a waiver of its argument concerning the correct basis for
the stop, which it sought to include in a motion to supplement the record after suppression
hearing was held, as it did assert the statute in its initial resistance to defendant’s motion to
suppress, although not at the time of hearing.
17.
United States v. Wheelock, 772 F.3d 825 (8th Cir. 2014). Use of
administrative subpoena to obtain subscriber information from Comcast did not violate
defendant’s Fourth Amendment privacy interests. Defendant’s subscriber data was in possession
of third party to which under existing precedent defendant could not have a reasonable
expectation of privacy.
18.
United States v. Chartier, 772 F.3d 539 (8th Cir. 2014). Officer’s traffic
stop of vehicle in which defendant was a passenger did not violate the Fourth Amendment as
officer did so only after he ran the license plate and learned the owner of the vehicle did not have
a valid drivers license; officer could not tell from the back who was driving the vehicle and could
not safely pull alongside the vehicle to verify who was driving. Extension of stop was reasonable
as officer observed what in his experience were items used in manufacturing methamphetamine;
officer had information that defendant had been mentioned in connection with methamphetamine
manufacture, and vehicle occupants denied shopping at Walmart even though a bag was plainly
seen tucked under defendant’s leg. Officer’s pat-down search of defendant was supported by
reasonable suspicion because officer had information defendant had previously been involved in
incident involving assault with a weapon and had reasonable suspicion defendant was involved
with manufacturing drugs; and officer observed bulge in defendant’s coat pockets which could
have been a weapon.
19.
United States v. Gunnell, 775 F.3d 1079 (8th Cir. 2015). Even assuming
the arresting officer's primary intent was to stop defendant for a drug investigation, evidence that
defendant was speeding provided probable cause to make a traffic stop. In this case law
enforcement was already investigating defendant and asked officer assisting in surveillance area
to "develop probable cause" to stop defendant. Officer in turn contacted K-9 officer and asked
him to be available in the surveillance area. Extension of stop for dog sniff was not unnecessarily
long as K-9 officer was there in five minutes while stop was still under way. Drug dog's alert
provided probable cause to search a compartment in defendant's motorcycle and defendant did
not contest the reliability of the dog's performance in a controlled testing environment.
Hon. Ross Walters - 20
20.
United States v. Patrick, 776 F.3d 951 (8th Cir. 2015). Although officers
who stopped defendant's vehicle and the informant who set up the drug buy meeting were
mistaken as to his identity, the accuracy of the informant's prediction of events (the color of the
car and a dent in the door, the driver's appearance in the scheduled location at the scheduled
time, that the driver would have drugs) gave officers a justifiable belief defendant had committed
a crime, justifying the stop. Search of defendant's vehicle during the stop was justified by what
appeared to be drugs in a clear bottle in the car's center console, just as the informant had
predicted, and the discovery defendant was lying about his name and prison record during the
stop.
21.
United States v. Williams, 777 F.3d 1013 (8th Cir. 2015). After stopping
defendant (after receiving report of a theft at an electronics retail store) because his car had been
identified by witnesses, and subsequently arresting him for theft, police officer had discretion to
determine whether the vehicle should be towed and subject to a warrantless impound inventory
(during which a stolen AK-47 rifle was discovered). Officer's explanation he did not want to
leave a Cadillac sitting on the street in a high crime neighborhood when he knew the owner
would be in jail for some time was a legitimate explanation not tied to the desire to discover
evidence of criminal activity.
22.
United States v. Maxwell, 778 F.3d 719 (8th Cir. 2015). In prosecution of
twelve defendants for conspiracy to commit bank fraud, trial court did not err in denying
suppression motion contesting search of apartment under a warrant with a faulty affidavit.
Although the affidavit averred that defendant lived at the subject apartment, defendant never
introduced affirmative evidence that he indeed lived there or otherwise had a sufficient privacy
interest in those premises; instead relying entirely on the faulty statement of residency which
defendant had discredited.
23.
United States v. Corrales-Portillo, 779 F.3d 823 (8th Cir. 2015). Stop of
truck defendant was driving based on confidential informant's tip that defendant was carrying
drugs to be delivered in Iowa was based on reasonable suspicion even though the informant did
not have an established track record. The information was received as part of an ongoing
investigation during which drugs were found in the informant's home, the informant described
defendant supplier and his truck, updated the police with details of an arranged meeting and all
the information provided was corroborated.
24.
United States v. Bearden,
F.3d
, 2015 WL 1188729 (8th Cir.
3/17/2015). Defendant did not have a privacy interest in the curtilage of his neighbor (and
co-defendant's) property and therefore did not have standing to mount a Fourth Amendment
challenge to search of a shop building on the co-defendant's property which resulted in the
discovery of hundreds of growing marijuana plants.
25.
United States v. Turner,
F.3d
, 2015 WL 1222274 (8th Cir.
3/18/2015). Another standing to challenge search issue: defendant in this case did not have
standing to challenge warrants which authorized the government to obtain precise location
information from co-conspirators' cell phones.
Hon. Ross Walters - 21
26.
United States v. Gonzalez,
F.3d
, 2015 WL 1283832 (8th Cir.
3/23/2015). UPS was not acting as agent of government when employees informed law
enforcement of a package which they had received under suspicious circumstances and opened
based on safety concerns. A private search did not implicate defendant's Fourth Amendment
rights. Seizure of second package by law enforcement for dog sniff a month later based on
information it was addressed to same person involved with the first package was based on
reasonable suspicion of criminal activity and three-hour duration of seizure to conduct sniff did
not violate the Fourth Amendment.
27.
United States v. Evans,
F.3d
, 2015 WL1283874 (8th Cir.
3/23/2015). Officers' decision to impound defendant's vehicle in accordance with written policy
was proper as it was parked on private property, defendant had been arrested for driving without
a license after officers observed him driving in the area where they were investigating a
complaint of rape, the owner/manager of the property where defendant's car was parked asked
police to remove it. Subsequent inventory search of vehicle (during which a gun was found in the
center console) was not for an investigatory motive as it was done pursuant to department policy
and there was no evidence the vehicle was searched to attempt to connect defendant to the rape.
28.
United States v. Robinson,
F.3d
, 2015 WL 1314493 (8th Cir.
3/25/2015). Defendant was convicted of wire fraud and federal program theft in connection with
his employment inspecting parking meters for the City of St. Louis after law enforcement
discovered he was recording hours worked without actually working. Evidence obtained after
agents installed a GPS tracker on defendant's car without a warrant was admissible as "appellate
precedent" at the time made it objectively reasonable for agents to believe they could
constitutionally install a GPS tracker on the car without a warrant – defendant's car was always
in public view during the months of monitoring.
D.
Fifth Amendment
1.
Martinez v. Illinois,
U.S.
, 134 S. Ct. 2070 (2014). In a per
curiam decision, the Supreme Court holds that defendant was subjected to jeopardy when his
criminal case was called for trial and judgment of acquittal granted when the state was not ready
to proceed and its motion for continuance was denied. Therefore, the state’s appeal was barred
by the Double Jeopardy Clause.
2.
United States v. Williams, 760 F.3d 811 (8th Cir. 2014). Even though an
armed seven-man law enforcement team had forced entry into defendant’s home with a battering
ram (defendant was not home when they knocked to execute a search warrant), the circuit found
defendant was not “in custody” for purposes of Miranda when lead agent advised defendant he
was not under arrest and that his participation in questioning was voluntary. Defendant was
questioned in his own living room 10-15 feet from his front door; defendant was not restrained
and was permitted to move around his home; and the period of questioning lasted only 30-45
minutes. Therefore, his statements to the agent and consent to search were deemed voluntary.
Hon. Ross Walters - 22
3.
United States v. Mohr, 772 F.3d 1143 (8th Cir. 2014), cert. denied, 2015
WL 917324 (2015). The circuit holds that defendant’s statement “I think I should get a lawyer”
when he was being questioned by agents investing his contacts with a minor in Iowa (leading to
sexual exploitation and attempt to entice a minor charges) was not an “unequivocal" invocation
of his right to counsel necessitating suppression of defendant’s subsequent statements to the
officers. Nor was his second statement that if officers wanted to record the interview he wanted
his lawyer present considered unequivocal, the circuit holding it was a conditional, ambiguous
request.
4.
United States v. Daniels, 775 F.3d 1001 (8th Cir. 2014). In felon in
possession case, trial court did not err in admitting defendant's statements to officers (after
receiving his Miranda rights) that he had fired a gun during an altercation – the interview was
brief, defendant answered officers' questions "coherently and intelligibly" and did not tell
officers he was intoxicated nor did his appearance alert officers to that possibility. "New
evidence," video of defendant's possible intoxicated status in the backseat of squad car, which
was disclosed after the suppression hearing did not change that finding as the interview occurred
eight hours later and defendant was oriented and answered with specific details at that time.
E.
Due Process/Evidence
1.
United States v. Ortega, 750 F.3d 1020 (8th Cir. 2014). In drug conspiracy
case, no Confrontation Clause violation occurred as a result of admission of composite samples
which a government chemist produced from substances which had been seized from a
co-defendant’s car as defendant was able to cross examine the chemist at trial and the original
testing conducted by another chemist (who at the time of trial had been called into active duty in
Afghanistan) was not offered at trial.
2.
United States v. Holmes, 751 F.3d 846 (8th Cir. 2014). Admission of
expert testimony on “narco-saints” in the drug trafficking world was not an abuse of discretion.
The expert was qualified, having studied iconography of the drug world in Mexico, his testimony
was non-scientific and based on the expert’s personal knowledge and experience and was
relevant in a drug trafficking conspiracy case.
3.
United States v. Spencer, 753 F.3d 746 (8th Cir. 2014). In felon in
possession case, defendant failed to establish a Brady violation arising out “semantic”
differences between officer’s police report and his trial testimony or evidence that officers
mishandled a sock in which defendant was carrying a gun. Mishandling evidence did not negate
testimony that officers observed defendant carrying the sock.
4.
United States v. Graves, 756 F.3d 602 (8th Cir. 2014). Trial court did not
abuse its discretion in admitting statements alleged victim made to police officer on night
defendant had a fight with her, during which defendant held a loaded shotgun. Admitted as
excited utterances under Fed. R. Evid. 803(2) the victim’s statements qualified because she was
not the individual who called in a “shots fired” report to the police and did not know that an
officer would show up 30 minutes after the incident to question her, the victim appeared to be
under stress, and she offered her statements in response to a broad “what happened” question
from the officer.
Hon. Ross Walters - 23
5.
United States v. Meeks, 756 F.3d 1115 (8th Cir. 2014). Trial court did not
abuse its discretion in admitting five out-of-court statements of what a co-conspirator said about
defendant. There was ample evidence defendant was a member of a conspiracy with the
co-conspirator to manufacture marijuana and the statements were made in furtherance of the
conspiracy in that they identified defendant as a co-conspirator or discussed defendant’s role.
6.
United States v. Simms, 757 F.3d 728 (8th Cir. 2014). In revocation
proceedings, it was harmless error to admit police report of defendant’s 2010 battery conviction
without evidence of its reliability because the conviction itself was admitted into evidence and
the court announced its revocation sentence was based on a 2012 incident, not the 2010 incident.
Court was not required to sua sponte apply Bell balancing to victim’s hand-written narrative of
violent incident in the absence of a hearsay or confrontation objection.
7.
United States v. Rodriguez Gutierrez, 757 F.3d 785 (8th Cir. 2014). The
court did not abuse its discretion in permitting government’s expert to testify concerning his
interpretation and preparation of a transcript of Spanish language audio recordings of controlled
drug transactions which involved defendants. Fed. R. Evid. 702 does not require certification by
a translator, as opposed to an “oral language interpreter.”
8.
United States v. Thomas 760 F.3d 879 (8th Cir. 2014), cert. denied, 135 S.
Ct. 1013 (2015). In heroin distribution conspiracy case, trial judge did not err in admitting crack
cocaine distribution evidence under Fed. R. Evid. 404(b) as intrinsic evidence. The evidence was
connected to the heroin conspiracy as several witnesses testified to receiving both crack and
heroin from defendant, there was evidence defendant transported both drugs, and in an
intercepted phone call defendant arranged for both a heroin and a crack transaction.
9.
United States v. Axsom, 761 F.3d 895 (8th Cir. 2014), cert. denied, 2015
WL 732228 (2015). Constitutional challenge to Fed. R. Evid. 414 which permits evidence of
prior crimes involving child molestation in cases charging defendant with that crime failed as
cases on which defendant relied involved statutory interpretation, not constitutional issues. Rule
414 was not misapplied in admitting evidence of defendant’s prior child pornography conviction
– both cases involved acquiring images over the internet. That in the prior case defendant saved
the images and entered guilty plea, compared to the present case in which defendant attempted to
delete the images and went to trial, were not sufficiently distinguishing factors.
10.
United States v. Bell, 761 F.3d 900 (8th Cir.), cert. denied, 135 S. Ct.
(2014). In sex trafficking case resulting in 360-month prison sentence for defendant, evidence of
prostitution victims’ family circumstances was admissible under Fed. R. Evid. 403 as relevant to
victim vulnerability and susceptibility to coercion by defendant.
11.
United States v. Bassett, 762 F.3d 681 (8th Cir.), cert. denied, 135 S. Ct.
882 (2014). After his cousin, a federal inmate seeking to obtain a sentence reduction, solicited
defendant to commit a bank robbery, evidence of defendant’s prior conviction for armed bank
robbery was similar in kind to the crime charged in the present case and thus was admissible
under Fed. R. Evid. 404(b) as probative of defendant’s intent to commit a bank robbery, which
came into issue because defendant’s defense at trial was that the attempted bank robbery was a
fake.
Hon. Ross Walters - 24
12.
United States v. Campbell, 764 F.3d 880 (8th Cir. 2014), cert. denied,
2015 WL 404255 (2015). In sex trafficking and prostitution case, evidence defendant physically
assaulted one of his victims on a number of occasions over a seven-month period of time was
admissible as res gestae without specifically being directly connected to prostitution as it
demonstrated a pattern of coercion. Admission of other acts of assault under Fed. R. Evid. 404(b)
with respect to a victim who was not the subject of charges against defendant went to
defendant’s intent and knowledge as his actions with this victim were similar to those with the
victim who was the subject of the present charges.
13.
United States v. Hickman, 764 F.3d 918 (8th Cir. 2014). In case charging
defendant with conspiracy to possess cocaine with intent to distribute and obstruction of justice
(which count was dismissed after jury could not reach a verdict), witness’s identification of
defendant from one picture during her first police interview was not tainted by police conduct.
The witness saw defendant for the first time the night they found her boyfriend dead outside their
house and evidence that she spent time in kitchen with defendant getting rid of drugs could be
considered even though defendant was not convicted on obstruction of justice count based on
that conduct.
14.
United States v. Thompson, 770 F.3d 689 (8th Cir. 2014). Even with plain
error arising from court’s Rule 11 failure to advise defendant of the maximum penalty (life) on a
count charging use of a firearm in drug trafficking and assuming court’s comments comparing
the potential sentences should defendant go to trial constituted improper participation in plea
negotiations, defendant failed to show it was reasonably probable he would not have entered a
guilty plea but for those errors. He was informed of the maximum penalties in the plea
agreement which he signed in open court and which were discussed during the plea hearing; he
did not file objections to a PSR that referenced the statutory maximum of life and never sought
to withdraw his guilty plea.
15.
United States v. Smith, 771 F.3d 1060 (8th Cir. 2014). Even if error
occurred in replaying video evidence for jury without defendant being present, any error was
harmless beyond a reasonable doubt as the evidence defendant committed the bank robbery
charged was overwhelming. Two bank tellers independently identified him from photo lineup;
defendant owned a unique car identical to the one used in the robbery; drive times on an ignition
interlock device coincided with timeline of robbery; and defendant made large cash purchases
within 24 hours of the robbery in spite of lack of employment.
16.
United States v. Battle, 774 F.3d 504 (8th Cir. 2014), petition for cert.
filed (3/19/2015)(No. 14-8985). Evidence that a handgun used in shooting in Des Moines two
years before the present charge was the same gun found under defendant's seat during a vehicle
stop in Waterloo was probative of defendant's ownership or control of the gun in support a
finding of constructive possession and therefore was not subject to preclusion on the basis of
Rule 404(b) as "other acts" evidence.
17.
United States v. Lorenzo-Lucas, 775 F.3d 1008 (8th Cir. 2014). Admission
of previous warrant of deportation over defendant's objection that admission violated his Sixth
Amendment confrontation rights was not in error as the circuit has previously held warrants of
deportation are not testimonial evidence implicating the Confrontation Clause.
Hon. Ross Walters - 25
18.
United States v. Sims, 776 F.3d 583 (8th Cir. 2015). Exclusion of DNA
evidence associated with a gun defendant was charged with possessing was within the court's
discretion – government had sent the gun for DNA testing in the summer of 2013 and did not
check on the results until after the April 2014 expert deadline when defendant informed the
government he wanted to go to trial. Defendant was prejudiced as the DNA evidence would be a
key part of the prosecution. While a continuance would have alleviated some of the prejudice,
the court could reasonably conclude the sanction was necessary to enforce court orders.
19.
United States v. Chappell, 779 F.3d 872 (8th Cir. 2015). After circuit
remanded defendant's sex trafficking conviction for new trial, prosecutor's action in superseding
the previous indictment to add additional acts and charges was not shown to be vindictive
prosecution based on defendant's prevailing on appeal following the first trial. A different
prosecutor was involved in the remand case, the new charges were based on different criminal
acts against different victims and timing alone did not give rise to a presumption of
vindictiveness.
20.
United States v. Roy,
F.3d
, 2015 WL 1283827 (8th Cir.
3/23/2015). In case charging defendant with sex trafficking by coercion, force or fraud, exclusion
of videotape of victim performing oral sex on defendant and evidence the victim was a prostitute
before meeting defendant was within the trial court's discretion. The court allowed defendant to
cross-examine the victim about the contents of the video and evidence of the victim's prior
history was not relevant to the issue whether defendant beat her, threatened her or took the
money she made to force her to work in commercial sex.
21.
United States v. Grandison,
F.3d
, 2015 WL 1345248 (8th Cir.
3/26/2015). In drug conspiracy case, officer's testimony on direct examination concerning
cooperating witnesses assistance in past drug prosecutions and the accuracy of the information
provided in the past did not improperly vouch for the cooperating witness in violation of Fed. R.
Evid. 608(1) because defense counsel started attacking the witness' credibility in opening
statement and also questioned the officer on cross-examination about the witness's reliability.
F.
Sixth Amendment
1.
Coleman v. United States, 750 F.3d 734 (8th Cir. 2014). Defendant's
ineffective assistance claim, that counsel misstated a trial stipulation and admitted in opening
statement that defendant possessed the firearms charged in the indictment, failed as he could not
show prejudice in the face of "[o]verwhelming" evidence of possession.
Hon. Ross Walters - 26
2.
United States v. Harris-Thompson, 751 F.3d 590 (8th Cir.), cert. denied,
135 S. Ct. 415 (2014). In a case charging defendant with murder-for-hire, court's procedural
handling of report by jurors that when they left the courthouse after their first day of
deliberations they had verbal exchange with members of defendant's family did not violate the
Sixth Amendment. The court took the issue up with counsel and defendant present, then
interviewed the jurors with only a marshal present and immediately reported back to counsel.
Defendant was not entitled to be personally present during the interview with jurors as his
presence was not required to preserve fundamental fairness; the court made a sufficient record
concerning its meeting; and it was within the court's discretion to deny defendant's motion for
mistrial based on the court's investigation in which it accepted jurors' assurances they could
remain impartial.
3.
Ramirez v. United States, 751 F.3d 604 (8th Cir. 2014). Defendant was not
prejudiced as a result of counsel's failure to let him know the government had asked if defendant
would cooperate against others. The government never extended a formal plea offer nor did
defendant demonstrate he was willing to cooperate or that he had helpful information.
4.
United States v. Mallett, 751 F.3d 907 (8th Cir. 2014). Seven-day period
between a co-defendant’s informal motion to set a change of plea hearing and the time the
hearing was actually held was excludable time under the Speedy Trial Act and even if not, only
66 days accrued by the time defendant filed a motion to dismiss based on STA grounds.
Additionally, although the nearly 17-month delay between defendant’s original indictment and
trial was “presumptively prejudicial,” defendant’s actions in changing his plea, canceling a plea
hearing and moving for multiple continuances, as well as the time required to determine his
motion to dismiss, were the cause of the majority of pretrial delay and no prejudice was shown.
5.
United States v. Rodriguez-Valencia 753 F.3d 801 (8th Cir.), cert. denied,
135 S. Ct. 390 (2014). Six-and-a-half-year delay between indictment and defendant’s arrest did
not violate defendant’s Speedy Trial rights in drug conspiracy case as government’s negligence
was not a cause of the delay. The government searched for defendant extensively over the six
years in multiple jurisdictions and countries. Failure to submit an INTERPOL Red Notice once
the government became aware defendant was in Nicaragua was not negligent and prejudice
arising from the delay was not shown.
6.
United States v. Frausto, 754 F.3d 640 (8th Cir. 2014). Defendant’s
allegation that he would not have entered guilty plea to drug trafficking charge had counsel
informed him his nephew could testify against him at trial was not supported by the record.
Although nephew said he received methamphetamine from a different uncle, he identified
defendant’s voice on recorded phone calls and the evidence of defendant’s participation in the
conspiracy was overwhelming – nephew’s testimony was not likely to change the outcome.
Hon. Ross Walters - 27
7.
Ragland v. United States, 756 F.3d 597 (8th Cir. 2014). Petitioner’s
ineffective assistance claim with respect to the timeliness of filing an indictment failed as there
was a split of authority on the topic at the time petitioner was charged and counsel could not be
faulted for failing to anticipate a change in the rule of law.
8.
United States v. Roberts, 763 F.3d 947 (8th Cir. 2014), cert. denied, 135 S.
Ct. 981 (2015). After defendant received a life imprisonment sentence following his bank
robbery conviction, neither the Supreme Court’s Alleyne holding nor the Sixth Amendment
required that a jury, instead of a judge, find the fact of defendant’s prior bank robbery
convictions as a sentencing factor because recidivism is not an element of an offense to be
submitted to a jury.
9.
Sweeney v. United States, 766 F.3d 857 (8th Cir. 2014), petition for cert.
filed, 83 U.S.L.W. (12/3/2014)(No. 14-668). Although petitioner’s Sixth Amendment right to
counsel was violated when his counsel left the courtroom to go to the bathroom during the direct
examination of a co-conspirator in this case involving charges of unauthorized interception of
cable service, harmless error analysis applied because the absence was brief and did not amount
to a complete denial of counsel (counsel was gone for about 3 minutes of a 13-day trial, or 6
pages of a 2500-page transcript).
10.
Ghost Bear v. United States, 777 F.3d 1008 (8th Cir. 2015). Retained
counsel's failure to inform defendant he had been subject to disciplinary sanctions in another
state while he was representing defendant on appeal was not per se ineffective assistance of
counsel nor did defendant show there was anything about the suspension in the other state which
showed the attorney was unable to effectively represent defendant in the present court.
G.
Sentencing
1.
Hall v. Florida,
U.S.
, 134 S. Ct. 1986 (2014). Florida’s
threshold IQ score requirement which prevented a defendant from presenting evidence of
intellectual disability in defense of a sentence of execution if his IQ score was not below 70 was
held to violate the Eighth Amendment.
2.
United States v. Lawrence, 749 F.3d 1092 (8th Cir. 2014). Sentencing
court's 48-month downward departure from Guidelines sentence after defendant entered guilty
plea to charge of using interstate commerce facility in commission of murder-for-hire did not
support defendant's argument that his mental illness was insufficiently weighted in the
sentencing decision. The court examined defendant's well-documented history of dangerous
altercations with law enforcement on previous occasions, including the instant offense, and
considered his capacity to cause harm in ordering 120 month prison sentence.
Hon. Ross Walters - 28
3.
United States v. Irlmeier, 750 F.3d 759 (8th Cir. 2014). Sentencing court's
application of aggravating role/organizer-leader enhancement to defendant's offense level,
resulting in a 60-month sentence (the mandatory minimum) for charge of conspiracy to
manufacture marijuana plants was based on "a permissible view of the evidence"-- here there
was evidence one defendant directed his ex-wife in tending to the marijuana plants, purchasing
packaging and "farming" products and others in watering, harvesting and processing the crop.
The co-defendant (uncle) instructed his nephew about tending to the crop in his absence and
directed another individual in activities in support of the crop.
4.
United States v. Stokes, 750 F.3d 767 (8th Cir. 2014). Defendant's
fourteen-year sentence based in part on court's "conjecture" defendant had been involved in
selling drugs for ten years because he lacked employment over that period of time and had a drug
usage history was procedural error which required resentencing, the circuit noting that drug
abuse was not sufficient evidence from which to make an inference of drug selling.
5.
United States v. Melbie, 751 F.3d 586 (8th Cir.), cert. denied, 135 S. Ct.
384 (2014). In sentencing defendant charged with felon in possession of a firearm to fifteen-year
mandatory minimum sentence under ACCA, court did not err in treating a
possession-with-intent-to deliver conviction, which occurred during the period of and was related
to a separately charged drug conspiracy conviction, as a separate predicate qualifying offense.
The circuit held the possession offense was a "punctuated" one of "limited duration" falling
within the circuit's holding in United States v. Johnston, 220 F.3d 857 (8th Cir. 2000), where
conduct underlying a possession conviction and occurring during a charged conspiracy was held
to be a “separate unit within the whole.”
6.
United States v. Shaw, 751 F.3d 918 (8th Cir. 2014). Imposition of
seven-year mandatory minimum sentence, based on court’s sentencing finding that defendant
brandished a firearm in connection with a drug trafficking crime, violated defendant’s Sixth
Amendment jury trial right as the jury did not make a “brandishing” finding and the court could
not make such a finding based on recent Supreme Court precedent in Alleyne v. United States.
7.
United States v. Davis, 753 F.3d 1361 (8th Cir.), cert. denied, 135 S. Ct.
393 (2014). In felon in possession case, 120-month prison sentence after court applied a
first-degree murder cross-reference from the Guidelines (there was evidence defendant had acted
with an unknown person in connection with a fatal shooting) was not in error – application of the
Guideline cross-reference did not increase the penalty beyond the statutory maximum nor
increase the mandatory minimum and court could conduct its own fact-finding on the issue.
8.
United States v. Pate, 754 F.3d 550 (8th Cir.), cert. denied, 135 S. Ct. 386
(2014). The circuit affirms its prior holding that a state law conviction for fleeing a police officer
in a motor vehicle qualifies as a violent felony under the ACCA.
Hon. Ross Walters - 29
9.
United States v. Sayles, 754 F.3d 564 (8th Cir. 2014). Twin sentences for
twin (literally) perpetrators of wire fraud conspiracy were not substantively unreasonable –
upwards variances based on the nature of the crime, defendants’ criminal histories and the
interest in deterrence articulated by the court were defendant-specific and not in plain error.
10.
United States v. Goodrich, 754 F.3d 569 (8th Cir. 2014). No procedural
error was found in defendant’s concurrent 210-month sentences for charges of drug conspiracy
and managing a home for drug distribution purposes. The district court, in a bench trial, made
sufficiently explicit findings concerning the quantity of drugs involved in the conspiracy as
falling with Fair Sentencing Act range, even though originally pre-FSA quantities were charged.
11.
United States v. Howard, 754 F.3d 608 (8th Cir. 2014), petition for cert.
filed (11/24/2014)(No. 14-7280). Defendant’s prior state sexual-abuse convictions qualified as
violent felonies for purposes of applying 15-year mandatory minimum sentence under ACCA.
12.
United States v. Collins, 754 F.3d 626 (8th Cir 2014). Defendant’s
100-month prison sentence after he pled guilty to being a felon in possession was vacated and
remanded for resentencing. Although district court did not err in applying an enhancement for
obstruction of justice after defendant attempted to destroy a written confession, a six-level
enhancement for assault on a law enforcement officer during the course of the offense was not
applicable as defendant’s attempts to stab an officer with a pen when defendant was attempting
to destroy his confession was not conduct which occurred in the course of the felon in possession
conduct charged, but in the course of post-arrest interrogation.
13.
United States v. Smith, 755 F.3d 645 (8th Cir. 2014). After pleading guilty
to charge of using interstate facilities in commission of murder-for-hire, 96-month prison
sentence was not based on error – use of cross-reference to guideline concerning soliciting an
informant to commit murder and causing that person to travel was not superfluous to charge.
14.
United States v. Renteria-Saldana, 755 F.3d 856 (8th Cir.), cert. denied,
135 S. Ct. 423 (2014). Imposition of sentencing enhancement for defendant’s possession of a
firearm during a drug trafficking offense was not procedural error on the part of the sentencing
court – court’s constructive possession finding with respect to a firearm found under a sink in a
stash house which defendant was using, had keys for, and was paying the utilities for, was not
clearly erroneous.
15.
United States v. Muckle, 755 F.3d 1024 (8th Cir. 2014). In case involving
witness retaliation sentencing court did not err in applying a cross reference for obstruction of
prosecution of a criminal offense. Even though witness’s testimony was complete, circuit
precedent supported application of the cross reference, which in this case resulted in a
121-month sentence to be served consecutive to defendant’s sentence for an underlying drug
offense.
Hon. Ross Walters - 30
16.
United States v. Edison, 756 F.3d 638 (8th Cir.), cert. denied, 135 S. Ct.
422 (2014). Sentence of 176 months, which was below guidelines for defendant’s offense of
conspiracy to distribute cocaine and Ecstasy, was within the court’s discretion. Denial of
defendant’s request for downward variance to the 10-year mandatory minimum was supported
by the fact defendant qualified as a career offender, stipulated to applicability of the mandatory
minimum in his plea agreement and the court granted other reductions which resulted in the
present below-guidelines sentence.
17.
United States v. Martinez, 756 F.3d 1092 (8th Cir. 2014). In using a
modified categorical analysis to determine whether a prior state conviction allows a sentencing
enhancement, the circuit holds the sentencing court may not rely on allegations in a superseding
indictment to which defendant did not plead guilty; therefore, 16-level enhancement for a prior
felony conviction involving firearms offense should not have been applied.
18.
United States v. Jones, 756 F.3d 1121 (8th Cir. 2014). In sentencing police
officer to 104-month prison sentence after he pled guilty to aiding and abetting transportation of
marijuana (he agreed to provide police escort services for a shipment), court did not commit
procedural error. Although officer had a good record with the police department and lacked a
criminal history, the court’s reliance on officer’s use of his position of trust for financial gain and
the need for deterrence was an adequate explanation for the within-range sentence.
19.
United States v. Mohamed, 757 F.3d 757 (8th Cir. 2014). After defendant
pled guilty to conspiracy to provide material support to terrorists, 144-month sentence resulting
from application of a terrorism enhancement was not an abuse of discretion. Stipulated facts in
plea agreement showed requisite specific intent that defendant planned his offense to influence
or affect government conduct.
20.
United States v. Martin, 757 F.3d 776 (8th Cir. 2014). Court’s warning at
prior hearing on revocation of supervised release that if defendant re-offended he would be
subject to 36 months in prison did not require the court to recuse himself at the time of a second
revocation hearing. Statement was given as a warning and the court recognized it was subject to
change, even though ultimately that was the revocation sentence entered on the second occasion
to visit revocation.
21.
United States v. Thomas, 757 F.3d 806 (8th Cir. 2014). Where the court’s
oral pronouncement of the applicable sentencing range was ambiguous and the written record did
not clarify the range, case remanded for clarification of the range the court found to be
applicable, given the arguments concerning application of safety valve relief, as the circuit could
not determine whether procedural error had occurred.
Hon. Ross Walters - 31
22.
United States v. Zayas, 758 F.3d 986 (8th Cir. 2014). Defendant’s
twenty-year sentence after he pled guilty to receipt of child pornography, resulting from
application of a cross reference in USSG § 2G2.2 concerning causing a minor to engage in
prohibited conduct based on defendant’s pre-offense conduct in taking pictures of himself having
sex with his minor nephew some eight years before in Mexico, was not in error. The guideline
did not contain a geographic limitation, defendant voluntarily admitted his nephew’s age (which
qualified for application of the guideline enhancement) and the court did not consider any
impermissible factors under § 3553(a).
23.
United States v. Richey, 758 F.3d 999 (8th Cir. 2014). Although the circuit
holds a revocation sentence could not be based on disputed allegations in a probation officer’s
reports which the government has not proved, in this revocation case the district court “expressly
dismissed” the allegations in dispute in the probation officer’s report before imposing a
revocation sentence in excess of the 6-12 month guidelines range.
24.
United States v. Frosch, 758 F.3d 1012 (8th Cir. 2014). Physical evidence
supported court’s finding that defendant had violated the conditions of his supervised release by
committing state law crimes of false imprisonment, domestic abuse assault and first-degree
harassment, resulting in revocation of defendant’s supervised release even though state charges
were not filed.
25.
United States v. Doering, 759 F.3d 862 (8th Cir. 2014). After pleading to a
charge of tampering with evidence, defendant’s challenge to 90-month sentence was waived in
his plea agreement. In pronouncing the sentence the district court specifically discussed the four
guidelines provisions as a basis for upward departure or variance which defendant had agreed
would be subject to waiver. Award of restitution in the amount of $45,382 to victims who got
shot when defendant (who was a felon) fired what turned out to be live ammunition during the
reenactment of a shoot-out, however, was not authorized under the Mandatory Victims
Restitution Act as the tampering offense was not covered by the act. Additionally, the court
failed to consider defendant’s ability to pay in order for restitution to be ordered under the
Victim and Witness Protection Act, requiring remand for further proceedings on the restitution
component of defendant’s sentence.
26.
United States v. Howard, 759 F.3d 886 (8th Cir. 2014). After defendant
entered guilty plea to charge of extortion, 21-month prison sentence which was based in part on
conduct which took place prior to the time period charged in the indictment was not clear error
by the court as the conduct could be considered as taken “in preparation for” the extortion
offense. Defendant obtained contact information for people the victim worked with and others,
would contact people the victim knew if the victim did not respond to defendant and on the date
of conduct alleged in the indictment, acknowledged the earlier actions.
27.
United States v. Humphrey, 759 F.3d 909 (8th Cir. 2014). Sentencing
court did not err in concluding that defendant’s convictions for first-degree assault and
first-degree robbery, which occurred on the same day within 15 minutes of each other, were
separate predicate offenses for purposes of applying ACCA enhancement in present sentence for
being a felon in possession of a firearm. The first offense was in one location against one victim
and the other three blocks away against a different victim.
Hon. Ross Walters - 32
28.
United States v. Robison, 759 F.3d 947 (8th Cir. 2014). In felon in
possession case, district court did not err in finding defendant used more than reasonable force
by shooting a gun in the house in order to break up an altercation between his mother and her
boyfriend. The altercation did not involve use of a dangerous weapon, defendant could have
physically separated the combatants, other people were present who could have helped and
defendant could have called the police. Therefore defendant was not entitled to a state law
justification defense to a potential state felony charge of intimidation with a dangerous weapon
and reckless use of a firearm. Four-level enhancement for possession of firearm in connection
with another felony was not an abuse of discretion.
29.
United States v. Fernandez Noriega, 760 F.3d 908 (8th Cir. 2014).
Government did not breach plea agreement in presenting evidence in support of a four-level role
enhancement recommended by probation office, resulting in a prison sentence of 210 months
after defendant pled guilty to charge of conspiracy to distribute methamphetamine. The
government only stipulated to a drug-quantity/base offense level in the agreement, not to any
relevant conduct issues involved in the sentencing decision.
30.
United States v. Killen, 761 F.3d 945 (8th Cir. 2014). Use of defendant’s
intended loss in calculating her offense level for making a false statement to the government in
connection with her receipt of SSI benefits, resulting in an 18-month prison sentence, was not
clear error. The court could reasonably conclude defendant intended to continue receiving illegal
benefits without mens rea evidence.
31.
United States v. Omoware, 761 F.3d 951 (8th Cir. 2014). Defendant was
not entitled to notice court might impose upward variance from advisory Guidelines.
32.
United States v. Callaway, 762 F.3d 754 (8th Cir. 2014). Defendant was
convicted on ten counts of wire fraud and one of mail fraud after obtaining $300,000 from a
disabled cousin. His 71-month sentence (71-months on each count, to be served concurrently)
based on a 12-level enhancement for total loss amount was not plain error even though over a
third of the total taken was repaid to the victim because the evidence showed defendant intended
to defraud his cousin of the full $300,000.
33.
United States v. Deering, 762 F.3d 783 (8th Cir. 2014). After pleading
guilty (without an agreement) to gun and drug charges but later entering into a cooperation
agreement, defendant’s 261-month sentence was not unreasonable. The court did not err in
making a 20% departure from the top of the guidelines range instead of the bottom – the
departure granted was actually from bottom of range and the 20% departure was based on
relevant substantial assistance factors.
34.
United States v. Parker, 762 F.3d 801 (8th Cir. 2014). In resentencing
defendant after the Supreme Court extended the Fair Sentencing Act’s lowered penalties to those
defendants sentenced after the effective date of the Act, resulting 84-month sentence (after a
100-month sentence originally) was substantively reasonable. Government’s assertion of
procedural error on resentencing based on “law of the case” principles as applied to a career
offender enhancement failed as once original sentence was vacated, law of the case wiped the
sentencing record clean and the court was not bound to apply the decision it applied previously.
Hon. Ross Walters - 33
35.
United States v. Stanko, 762 F.3d 826 (8th Cir. 2014). After defendant’s
supervised release was revoked when he refused to fill out a Post-Conviction Risk Assessment
form and he was ordered to serve seven days in prison with no further supervised release, his
appeal on the grounds his Fifth Amendment privilege had been violated was moot as he had
served his revocation term and could not demonstrate continuing collateral consequences. That
the revocation might be considered in enhancing a sentence for a future crime was speculative.
36.
United States v. Dautovic, 763 F.3d 927 (8th Cir. 2014), cert. denied, 2015
WL 732131 (2015). The circuit held that a 20-month prison sentence after a police officer was
convicted of unconstitutional use of force on a detainee and falsification of a police report was
substantively unreasonable. The circuit found the district court’s downward variance from
Guidelines range of 135-168 months was “unreasonably lenient.”
37.
United States v. Campbell, 764 F.3d 874 (8th Cir. 2014). After defendants
entered guilty pleas to charges of conspiracy to possess anabolic steroids with intent to distribute
and conspiracy to commit money laundering, their resulting 92- and 120-month prison sentences
resulting from application of USSG § 2Sl.l(a)(2) instead of (a)(1) were not in error – the plea
agreements recommended application of (a)(2), which started at an offense level of 8 plus the
number of offense levels which would correspond to the value of the laundered funds.
38.
United States v. Poe, 764 F.3d 914 (8th Cir. 2014). Twenty-year sentence
on re-sentencing (after it was determined counsel rendered ineffective assistance by failing to file
appeal) in child pornography case was not in error. Imposition of sentence to run consecutive to
state court sentence was properly considered under the § 3553(a) factors and defendant did not
object at the time of sentencing to application of five-level increase in offense level for conduct
involving sexual abuse or exploitation of a minor.
39.
United States v. Malagon-Soto, 764 F.3d 925 (8th Cir. 2014), cert. denied,
135 S. Ct. 994 (2015). In illegal reentry case, application of 16-level enhancement based on a
prior manslaughter conviction was not in error as prior charge was classified as a crime of
violence regardless of whether force was used.
40.
United States v. Johnson, 764 F.3d 937 (8th Cir. 2014). On re-sentencing
in death penalty case, the circuit required the district court to conduct a full sentencing rehearing,
instead of a partial rehearing on the penalty section as the court had ordered.
41.
United States v. Schmitt, 765 F.3d 841 (8th Cir. 2014). Where defendant’s
prior drug conviction was for buying an illegal amount of a precursor and the charged offense
was for manufacturing methamphetamine during a different period of time, the district court
correctly found the prior conviction was not conduct relevant to the present offense and correctly
relied on the criminal history point incurred in denying safety valve relief at the time of
sentencing.
Hon. Ross Walters - 34
42.
United States v. Cole, 765 F.3d 884 (8th Cir. 2014). After defendant was
convicted of conspiracy to commit mail and wire fraud, tax evasion and conspiracy to commit
tax fraud, sentence of three years’ probation in the face of an advisory Guidelines range of
135-168 months in prison (after circuit remanded for a more adequate explanation from the
district court for the sentence) was not substantively unreasonable. Comparing to Dautovic
(which involved same range but different conduct), the circuit noted the sentencing court had
made “defendant-specific determinations” on the sentencing factors, including defendant’s role
as a “passive participant” in the scheme in which she and co-conspirators stole approximately
$33 million from Best Buy over a four-year period.
43.
United States v. Thornton, 766 F.3d 875 (8th Cir. 2014). Government
failed to prove that defendant pled guilty to a qualifying state court generic burglary offense in
seeking ACCA mandatory minimum for felon in possession. At time of sentencing the
government only offered the complaint for the offense and various journal entries and did not
offer evidence of the charging document to which defendant entered guilty plea. Case remanded
for resentencing.
44.
United States v. Marks, 768 F.3d 1215 (8th Cir. 2014), cert. denied, 2015
WL 171509 (2015). Denial of evidentiary hearing on defendant’s claim that the government in
bad faith refused to file a motion to reduce his sentence under Rule 35(b) was not an abuse of
discretion. “New” information in the form of an affidavit from a former deputy warden that
defendant should have gotten credit was not “substantially different” from the record the court
had previously reviewed in determining the AUSA did not believe the information defendant
provided was substantial enough to warrant a Rule 35(b) motion.
45.
United States v. Jones, 770 F.3d 710 (8th Cir. 2014). Revocation sentence
ordered after defendant appeared for fourth time on supervised release violation issues was not
substantively unreasonable. While defendant did not waive his right to written notice of
additional violations the court referenced during the revocation hearing, he did forfeit his right to
testify or cross-examine the witnesses and did not explain what he would have done differently
had he received written notice. Eighteen-month revocation sentence was not based on curfew
violation alone but also on additional violations and was not an abuse of discretion given the
record of defendant’s frequent violations while on release.
46.
United States v. Shelabarger, 770 F.3d 714 (8th Cir. 2014). Prison
sentence of 210 months after defendant was convicted of receipt of child pornography did not
violate the Eighth Amendment nor was there error in calculation of offense level under the
Guidelines. The evidence showed defendant possessed 171 videos and 852 images of child
pornography, including files of a violent nature. Defendant did not qualify for a 2-level reduction
from his base offense level as the court applied a distribution enhancement, which meant
defendant’s conduct was not limited to receipt. Additional enhancement for perjury was not in
error as defendant’s testimony about downloading, his laptop and the circumstances of his arrest
was inconsistent with the forensic evidence and the testimony of other witnesses.
Hon. Ross Walters - 35
47.
United States v. Ray, 774 F.3d 824 (8th Cir. 2014). After defendant failed
to stay at residential treatment facility as ordered while on pretrial release and failed to appear
for plea hearing scheduled at his request, application of two-level obstruction of justice
enhancement at the time of sentencing was not error by the sentencing court.
48.
United States v. Langston, 772 F.3d 560 (8th Cir. 2014), petition for cert.
filed (2/17/2015)(No. 14-8530). Defendant’s prior state law convictions for terrorism and going
armed with intent both qualified as violent felonies for purposes of applying ACCA
enhancement at time of sentencing on felon in possession charge.
49.
United States v. Iyarpeya, 772 F.3d 832 (8th Cir. 2014). Twenty-four
month prison sentence for violation of supervised release was substantively reasonable based on
court’s findings that defendant had absconded while on release, was not a good candidate for
further supervision, had failed to pay restitution ordered and had received an lenient sentence
originally.
50.
United States v. Maid, 772 F.3d 1118 (8th Cir. 2014). Defendant’s prior
Iowa convictions for assault while displaying a dangerous weapon and for domestic-abuse
assault with intent to injury or with a weapon were qualifying crimes of violence for purposes of
determining his base offense level at time of sentencing on felon in possession charge.
Within-guidelines sentence was substantively reasonable and court had discretion to place
greater weight on some § 3553(a) factors in evidence and not on others.
51.
United States v. Allison, 772 F.3d 554 (8th Cir. 2014). After defendant
pled guilty to mail fraud arising from his conduct defrauding his employer by submitting false
expense reimbursement requests, cancellation of his stock options did not have to be credited
against the $560,000 restitution ordered as part of defendant’s sentence because defendant’s
employer did not owe defendant anything for the options, which under the equity incentive plan
were forfeited upon defendant’s termination for cause.
52.
United States v. Coppage, 772 F.3d 557 (8th Cir. 2014). Inclusion of
defendant’s five previous municipal court convictions, which arose from five separate arrests
over a two-year period which were consolidated and resolved on the same day, in calculating
defendant’s criminal history did not violate defendant’s Sixth Amendment right to counsel.
Although the court records from the 2010 convictions did not show whether he was represented
by or waived counsel, and records from 2012 convictions did show names of defense counsel,
the court was not required to infer from any discrepancy that defendant did not have counsel and
defendant did not carry his burden of proving he did not have counsel, in fact he never claimed
he was not provided counsel.
Hon. Ross Walters - 36
53.
United States v. Johnson, 773 F.3d 905 (8th Cir. 2014). Revocation
sentence imposing a GPS-monitoring condition on term of supervised release for child
pornography offender was not an abuse of discretion – this was second revocation proceeding
following multiple violations of defendant’s conditions of supervised release, court was not
limited to recommended conditions and the court was concerned about the safety of the
community, given defendant violated release conditions prohibiting possession of child
pornography on both occasions on which he was revoked.
54.
United States v. Brown, 772 F.3d 1141 (8th Cir. 2014). In giving
defendant a below-guidelines sentence of 120 months imprisonment after he pled guilty to one
count of distributing crack cocaine, sentencing court specifically referenced defendant’s mental
health history and childhood problems, demonstrating the court had reviewed those issues and
adequately explained the sentence incorporating those issues.
55.
United States v. Scharber, 772 F.3d 1147 (8th Cir. 2014). In entering
guilty plea to charge of maliciously attempting to commit arson of a building at a lake resort,
factual basis for plea was adequately established by defendant’s admissions that he placed a gas
tank behind a storage garage, intended to set fire to the garage and the stipulated facts in the plea
agreement tracked the statutory language of “maliciously attempt[ing] to damage and destroy” a
building; thus, defendant was subject to the five year mandatory minimum sentence.
56.
United States v. Stong, 773 F.3d 920 (8th Cir. 2014), petition for cert. filed
(3/9/2015)(No. 14-8836). Within-Guidelines sentence of 110 years for 76-year-old man
convicted of sexual exploitation and child pornography charges was not substantively
unreasonable.
57.
United States v. Garcia, 774 F.3d 472 (8th Cir. 2014). In
methamphetamine conspiracy case, 292 month within-Guidelines sentence for defendant was not
in error. District court extrapolated a quantity determination based on witness testimony; the
finding defendant maintained a stash house was supported by evidence he used a garage to store
vehicles used in the drug conspiracy (as well as drugs in the vehicles), the individual in whose
name the rent and utilities were listed was rarely there and defendant had free access, and court
could rely on hearsay evidence at sentencing concerning defendant’s use of the house.
58.
United States v. Norwood, 774 F.3d 476 (8th Cir. 2014). In bank fraud
conspiracy case, defendant’s conduct in accompanying a co-defendant to recruit homeless men,
and obtain their government-issued ID cards so fraudulent checks could be printed and given to
the homeless men to cash was sufficiently complex to qualify for application of two-level
sophisticated means sentencing enhancement.
59.
United States v. Yellow Horse, 774 F.3d 493 (8th Cir. 2014). Although
defendant was convicted of conspiracy to distribute less than 50 kilograms of marijuana, the
sentencing court did not clearly err in finding defendant could have reasonably foreseen the
conspiracy involved 100 kilograms or more. A co-conspirator testified the conspiracy involved
in excess of 100 kilograms of marijuana, defendant had knowledge of the drug business and the
co-conspirator's operations and witnessed the co-conspirator handling large quantities.
Hon. Ross Walters - 37
60.
United States v. McKay, 775 F.3d 1016 (8th Cir. 2015). After defendant
entered guilty plea to two counts of abusive sexual contact, court's upward sentencing departure
from joint recommendation of 240 months to 360 months in prison was not substantively
unreasonable. Defendant's criminal history included the murder of his infant son ten years before
the instant offense which was not adequately covered by the Guidelines. The court had given the
parties prior notice of intent to depart and sufficiently articulated the rationale behind the upward
departure.
61.
United States v. Ravensborg, 776 F.3d 587 (8th Cir. 2015). Forty-one
month sentence for defendant's crime of assault resulting in serious bodily injury was reasonable.
Granted release prior to sentencing, defendant used marijuana and was arrested for assault and
stalking while on release, which the district court could consider in sentencing.
62.
United States v. Archambault, 777 F.3d 982 (8th Cir. 2015).
Eighteen-month prison sentence after defendant pled guilty to distribution of a controlled
substance (she sold Ritalin which had been prescribed for her son) was not substantively
unreasonable. Defendant's extensive tribal court criminal history, the risk she posed to her child
and poor behavior while on supervised release were not reflected in her criminal history
category, justifying the court's upward departure from the original guideline range of 4-10
months imprisonment.
63.
United States v. Adejumo, 777 F.3d 1017 (8th Cir. 2015). After entry of a
$1.1 million restitution judgment, in view of the circumstances where new counsel was
appointed on appeal with withdrawal of trial court counsel's motion to withdraw based on his
understanding substitute counsel would be responsible for future actions and the government's
one-year delay in seeking restitution, notice provided to defendant (which went unanswered) was
not reasonable. Furthermore, the government did not meet the requirements of § 3664 as the
probation did not provide information about restitution in its PSR or in a separate report and the
government provided only a single page listing victim banks and the amounts owed to each. Case
reversed and remanded for notice and hearing.
64.
United States v. Jones, 778 F.3d 1056 (8th Cir. 2015). In tax evasion case,
application of two-level enhancement for use of sophisticated means, resulting in a 24-month
prison sentence, was not in error based on evidence defendant submitted partially blacked-out
bank statements, used bank accounts he had not disclosed, commingled personal and business
accounts, stonewalled the IRS about the accounts receivable of the target business then secretly
operated another business on the same accounts, all of which, while perhaps not "overly
sophisticated" demonstrated a "repetitive and coordinated scheme" to hide assets.
65.
United States v. Soto, 779 F.3d 525 (8th Cir. 2015). After defendant pled
guilty to conspiracy to distribute methamphetamine, court was not required to give notice of
upward departure when it decided to forego a minor participant reduction recommended by the
probation officer and uncontested by the government. The decision to deny the minor participant
reduction did not equate to an upward departure which would require notice under Fed. R. Crim.
P. 32(h).
Hon. Ross Walters - 38
66.
United States v. Riehl, 779 F.3d 776 (8th Cir. 2015). After defendant was
convicted of drug trafficking, sentencing court's refusal to vary downward based on proposed
amendment to the Sentencing Guidelines was not in error as circuit law provided courts should
apply the Guidelines in effect at the time of sentencing. See also United States v. Lawin, 779
F.3d 780 (8th Cir. 2015) in which the court again declined to apply proposed amendment and to
continue sentencing hearing until the proposed amendment became effective, and United States
v. Munz,
F.3d
, 2015 WL 1222276 (8th Cir. 3/18/2015) where court again declined to
consider proposed amendment to Guidelines
67.
United States v. Hentges, 779 F.3d 820 (8th Cir. 2015). After defendant
was convicted of attempting to manufacture methamphetamine near a school, 132-month prison
sentence which was an upward variance from Guidelines range of 92 to 115 months was not an
abuse of the court's discretion because even if defendant was not a career offender, the court's
upward variance was adequately based on the court's review of defendant's extensive criminal
history, prior sentences had not deterred defendant, he had not complied with correctional
supervision and had escaped numerous times and had committed the present crime while under
another sentence.
68.
United States v. Lara-Ruiz,
F.3d
, 2015 WL 755696 (8th Cir.
2/24/2015). Resentencing to 300 months imprisonment (the same sentence previously imposed)
which included a five-year statutory minimum for use of a firearm in relation to a drug
trafficking offense affirmed. The court's reliance on the firearm enhancement was not based on a
conclusion of "brandishing" which was not found by the jury but on jury's finding that defendant
used a firearm in connection with a drug trafficking offense (he struck a customer in the head
with a gun and shot her unoccupied car). The 300-month sentence was not substantively
unreasonable as it fell within the Guidelines range of five years to life and the court articulated
what it considered to be the relevant § 3553 factors, the nature and circumstances of the crime,
defendant's history and characteristics, the need for deterrence and protection of the public.
69.
United States v. Clark,
F.3d
, 2015 WL 1203177 (8th Cir.
3/17/2015). After defendant entered guilty plea to charge of production of child pornography,
application of two-level enhancement for offense involving sexual contact and a four-level
enhancement because the material portrayed sadistic or masochistic content was not
impermissible double counting. While the sentencing enhancements encompassed similar
conduct they were not plainly duplicative and in the case at hand applied to wholly separate
behaviors.
H.
Habeas
1.
Jennings v. Stephens,
U.S.
, 135 S. Ct. 793 (2015). In federal
habeas case, petitioner was not required to take a cross-appeal or obtain a certificate of
appealability on his Spisak ineffective assistance theory as it was a defense of his judgment on
alternative grounds.
2.
Roundtree v. United States, 751 F.3d 923 (8th Cir. 2014). District court
should have held an evidentiary hearing on petitioner’s ineffective assistance claim that counsel
failed to notify him of the mandatory nature of his life sentence as the record was inconclusive
concerning counsel’s discussion of life sentence with petitioner and concerning prejudice.
Hon. Ross Walters - 39
3.
Masten v. United States, 752 F.3d 1142 (8th Cir. 2014). Where
government produced the DVD copy of an original surveillance video showing the scene of a
fire (which defendant had been charged with starting) a week before trial, and trial counsel and
defendant were aware the disc was a copy from the original yet did not attempt to view the
original, no Brady violation occurred. Furthermore, the VHS video was received as an exhibit
and the agent who prepared it was available at trial to testify concerning the process by which it
was produced.
4.
Bilauski v. Steele, 754 F.3d 519 (8th Cir.), cert. denied, 135 S. Ct. 294
(2014). Missouri Court of Appeals did not unreasonably determine petitioner failed to clearly
invoke his right to self-representation based on record of his motions for new counsel in which
he did not ask to proceed pro se; therefore, he failed to show a substantial likelihood of success
that a Faretta claim would have succeeded.
5.
Hyles v. United States, 754 F.3d 530 (8th Cir.), cert. denied, 135 S. Ct.
392 (2014). Petitioner could not meet the Strickland prejudice prong in her ineffective assistance
of counsel claim concerning recommendation she testify before grand jury and proceed to trial
rather than accept plea offer. Petitioner alleged she testified before the grand jury because
counsel told her she had entered into a non-prosecution agreement with the government after her
proffer letter but before her testimony. Her grand jury testimony was cumulative of other trial
evidence and the evidence of her guilt in interstate murder for hire scheme was sufficient without
the testimony of other witnesses whose credibility she claimed she was unable to undercut.
6.
Koenig v. North Dakota, 755 F.3d 636 (8th Cir. 2014). State trial court did
not violate clearly established law when it denied defendant appellate counsel for appeal on
misdemeanor conviction. Defendant had abused the judicial process at the trial court level and
refused to cooperate with two court-appointed attorneys, leading the trial court to find and the
appellate court to agree he had waived his right to counsel.
7.
White v. Dingle, 757 F.3d 750 (8th Cir. 2014). Ineffective assistance did
not arise when counsel did not investigate a potential employment connection between a juror
and a roommate of the murder victim. The juror said many times on voir dire she could be fair
and impartial and petitioner presented no evidence in the habeas proceedings that the juror knew
the victim’s roommate.
8.
Dixon v. Wachtendorf, 758 F.3d 992 (8th Cir. 2014), cert. denied, 2015
WL 998638 (2015). Defendant was convicted under Iowa’s felony-murder rule prior to the state
court’s ruling in Heemstra; Her federal habeas petition was untimely under § 2244 statute of
limitations because she should have/could have “discovered” Heemstra as a new factual
predicate as of the date the Iowa decision was handed down. Her argument that the statute of
limitations clock did not start until the Heemstra procedendo issued failed as she actually filed
her relevant state PCR motion between the date of the Heemstra decision and the date
procedendo issue.
Hon. Ross Walters - 40
9.
Boss v. Ludwick, 760 F.3d 805 (8th Cir. 2014), cert. denied, 135 S. Ct. 961
(2015). Defense counsel was not ineffective in disclosing the location of victim’s body to law
enforcement and in advising petitioner about the merits of making that disclosure. It was not
unreasonable trial strategy to attempt to show petitioner was cooperating with law enforcement
in an attempt to avoid co-defendant making that revelation and making statements contrary to
petitioner’s interests. Iowa courts did not unreasonably apply Strickland standards.
10.
Escobedo v. Lund, 760 F.3d 863 (8th Cir. 2014), cert. denied, 2015 WL
732077 (2015). State court did not apply Strickland standards unreasonably in determining trial
counsel was not ineffective by virtue of his failure to move for a mistrial after a juror was
excused after deliberations had started and an alternate seated. Counsel considered moving for
mistrial and made strategic trial choice to let the jury proceed to verdict and state law was not
clear on the propriety of replacing jurors after deliberations had begun.
11.
Williams v. Ludwick, 761 F.3d 841 (8th Cir. 2014), cert. denied, 135 S. Ct.
1184 (2015). Petitioner’s ineffective assistance claim against his trial counsel based on alleged
impermissible conflicts of interest (his lead counsel from the public defender’s office was
engaged to an assistant county attorney in the same office as the prosecutor and one of
petitioner’s defense team represented a potential alibi witness against a marijuana charge in
another case) failed: the proposed alibi testimony conflicted with petitioner’s testimony so the
decision not to call the alibi witness was reasonable and did not demonstrate a conflict. Any
conflicts arising from romantic relationships between the public defender’s office and the county
attorney’s office were addressed in the state court appeal.
12.
Franco v. United States, 762 F.3d 761 (8th Cir. 2014). Petitioner was
entitled to evidentiary hearing on the issue whether his counsel was asked to file an appeal. The
court erred in making determination only on record of affidavits where neither was more credible
on its face than the other.
13.
Anderson v. United States, 762 F.3d 787 (8th Cir. 2014), cert. denied, 135
S. Ct. 1017 (2015). Counsel did not err in failing to seek a Franks hearing with respect to trash
pulls officers conducted from defendant’s trash cans. Petitioner did not show he provided factual
information from which counsel could have determined a Franks motion/hearing was warranted;
allegation officer lied in warrant affidavit about location of trash cans was not supported by offer
of proof; and the statements petitioner challenged were not essential to a probable cause finding
for search of petitioner’s residence.
14.
Plunk v. Hobbs, 766 F.3d 760 (8th Cir. 2014), cert. denied, 135 S. Ct. 981
(2015). No prejudice was shown in joint representation of petitioner and his co-defendant by
counsel as the conflict of interest did not have an effect on acceptance of a package plea
agreement since the state was unwilling to forego an attempted murder charge that petitioner
refused to plead to, petitioner failed to show he would have been willing to cooperate with law
enforcement as part of any plea deal and petitioner rejected counsel’s plea recommendation.
Hon. Ross Walters - 41
15.
Forrest v. Steele, 764 F.3d 848 (8th Cir. 2014). After petitioner was
charged with committing murder of three individuals (including a deputy), state court did not err
in finding with respect to petitioner’s ineffective assistance claims that counsel’s performance
was “constitutionally adequate and nonprejudicial” during the death penalty phase of trial.
Decision to forego a PET scan was strategic as counsel contacted a doctor to arrange one, state
law forbid obtaining one ex parte and the government would have access to results which might
be negative or inconclusive; failure to introduce medical records from the early 1990’s was also
not unreasonable as facts defendant was involved in drug-related violence were contained in
those records; failure to call a clinical and forensic psychologist was also reasonably based on
fear his testimony could open up evidence of past homicide involvement; and failure to call
additional lay witnesses was not ineffective as the evidence would have been cumulative.
16.
Barnes v. Hammer, 765 F.3d 810 (8th Cir. 2014). Minnesota state courts’
determination of petitioner’s ineffective assistance of counsel claim was not contrary to
Strickland. They correctly found the record supported a finding petitioner turned down a plea
offer based on personal reasons such as trying to get a better deal for a friend involved in the
same crime and not because of incompetent advice from counsel.
17.
Donnell v. United States, 765 F.3d 817 (8th Cir. 2014), cert. denied, 2015
WL 461554 (2015). Claim of ineffective assistance of appellate counsel failed as the circuit
declined to impose on counsel an obligation to “read advance sheets and consider newly-decided
cases in the weeks or months after a direct appeal is fully briefed, argued, and submitted for
decision.”
18.
Dansby v. Hobbs, 766 F.3d 809 (8th Cir. 2014), petition for cert. filed
(3/5/2015)(No. 14-8782, 14A786). Petitioner’s actual innocence argument failed as the claimed
new evidence offered (documents the state allegedly withheld and a statement in which a key
witness purportedly recanted his trial testimony) did not meet the “extraordinarily high”
threshold which might support relief. As “latter-day impeachment evidence” it was unlikely to
make a clear and convincing case and there was substantial evidence petitioner killed his victims
with premeditation and deliberation. Testimony by officer that petitioner at one point declined to
talk to the officers, if considered a reference to his post-Miranda silence, was reasonably viewed
by the state court as an explanation for why there was no recorded statement which was not an
unreasonable application of Supreme Court precedent. However, the district court erred in
concluding petitioner failed to present a Sixth Amendment claim regarding restrictions the trial
court placed on cross-examination of a key witness and the parties were not given adequate
notice and opportunity to be heard on asserted procedural default of petitioner’s Brady-Napue
claim.
19.
Paulson v. Newton Correctional Facility, 773 F.3d 901 (8th Cir. 2014).
Petitioner’s ineffective assistance of counsel habeas claim that counsel failed to object to
testimony of petitioner’s ex-wife in second degree sexual assault case failed as petitioner did not
show prejudice under the Strickland analysis. Other testimony at trial supported the
government’s theory that petitioner engaged in sexually perverse behavior and the testimony of
the ex-wife concerning petitioner’s sexual appetites and conduct did not undermine confidence in
the jury’s guilty verdict.
Hon. Ross Walters - 42
20.
United States v. Sellner, 773 F.3d 927 (8th Cir. 2014). Dismissal of
petitioner’s claim of ineffective assistance of counsel based on failure to file a notice of appeal
was an abuse of discretion in the absence of an evidentiary hearing in the face of opposing
affidavits from petitioner and counsel on the subject. Circuit holds that filing of second § 2255
pro se motion before first § 2255 motion is ruled upon is not barred as a second or successive
motion and should be treated as a motion to amend the first § 2255 motion.
21.
Spencer v. Haynes, 774 F.3d 467 (8th Cir. 2014). Although petitioner’s
conditions of confinement claim (arising from an incident during which petitioner bit a
correctional officer and was subsequently placed in “four-point” restraints for nearly a day) was
improperly brought in a pro se habeas petition, instead of dismissing the claim, the circuit
indicates the court should have liberally construed the petition and given petitioner the option to
pursue it as a Bivens claim.
22.
Camacho v. Hobbs, 774 F.3d 931 (8th Cir. 2015). Circuit holds that
petitioner's federal habeas petition was timely filed. Even though he entered an unconditional
guilty plea in Arkansas state court (from which Arkansas has held there is no right to appeal), the
circuit holds that the standard 30-day period for appeal should apply to be consistent with Clay,
Jimenez and Gonzalez. Therefore, the trigger for AEDPA limitations period was expiration of the
30-day period for direct appeal, even though petitioner was not able to under Arkansas law.
23.
Johnson v. Young, 779 F.3d 495 (8th Cir. 2015). Defendant was convicted
of first-degree attempted murder and aggravated assault after he shot his ex-girlfriend in the head
and was sentenced to consecutive sentences for the two offenses under South Dakota law. His
Double Jeopardy claim in his habeas petition failed as the state could impose multiple
punishments for same conduct if the legislature's intent to do so was clearly expressed, which the
state supreme court found had occurred because the statutes under which defendant had been
charged each required proof of at least one element which the other did not.
24.
Bucklew v. Lombardi,
F.3d
, 2015 WL 968159 (8th Cir.
3/6/2015). Dismissal of plaintiff death row inmate's § 1983 challenge to Missouri's lethal
injection method of execution was premature as plaintiff's challenge was on an as-applied basis
and it was not "patently obvious" that plaintiff could not prevail given his serious medical
condition and the state's concession it would change its procedure to eliminate use of a blue dye.
Compare Zink v. Lombardi,
F.3d
, 2015 WL 968176 (8th Cir. 3/6/2015), in which the
circuit upheld dismissal of facial challenge to the lethal injection method as violative of the cruel
and unusual punishment clause of the Eighth Amendment.
25.
Clark v. Bertsch,
F.3d
, 2015 WL 1087160 (8th Cir. 3/13/2015).
State court's plain-error review of unpreserved and procedurally defaulted claims of prosecutorial
vindictiveness and bias by the trial judge did not excuse petitioner's procedural default and
habeas petition properly dismissed for failure to exhaust state remedies.
Hon. Ross Walters - 43
III.
EMPLOYMENT LAW
A.
Disability
1.
EEOC v. Product Fabricators, 763 F.3d 963 (8th Cir. 2014). Plaintiff
failed to show that reason given for his employment termination – poor performance – was a
pretext for disability discrimination. He did not establish how other employees who received
written or oral performance warnings were similarly situated to him or that there was an
established employee discipline policy. His failure to accommodate claim failed as the record did
not support that plaintiff made a specific request for leave for surgery on his shoulder, in fact did
not meet with his doctor about scheduling surgery until after he was terminated.
2.
Cody v. Prairie Ethanol, LLC, 763 F.3d 992 (8th Cir. 2014). Employer’s
legitimate nondiscriminatory reason for terminating plaintiff’s employment at an ethanol plant –
his “overly aggressive” style of plant operation which nearly “lost” the plant on three occasions –
was not shown to be a pretext for disability discrimination. The timing of information plaintiff
would need additional months of light weight duty in conjunction with his discharge was
insufficient on its own and employer had spoken to plaintiff about his manner of operating the
plant on several occasions prior to his termination.
3.
Withers v. Johnson, 763 F.3d 998 (8th Cir. 2014). On summary judgment,
assistant probation officer under supervision of circuit judge failed to show termination of his
employment was on the basis of a disability (plaintiff’ back injury). The record evidence showed
plaintiff was terminated because he failed to provide his supervisor with his medical release, as
required by county policy, and instead called his supervisor but did not mention his ability to
return to work.
4.
Noel v. AT&T Corp, 774 F.3d 920 (8th Cir. 2014). In the face of evidence
plaintiff resigned from his employment after several medical incidents arising from his diabetes,
constructive discharge claim failed as there was no evidence the employer rendered his work
conditions intolerable; in fact, the evidence showed the employer gave him break from traveling
as part of his work.
5.
Minnihan v. Mediacom Communications Corp, 779 F.3d 803 (8th Cir.
2015). Where plaintiff's seizure disorder prevented him from performing an essential function of
his job, driving, and employer made a good faith effort to help find a reasonable accommodation,
plaintiff's ADA claim failed on summary judgment.
6.
Walz v. Ameriprise Financial, Inc., 779 F.3d 842 (8th Cir. 2015). Plaintiff
who suffered from bipolar affective disorder, which caused her "to interrupt meetings, disturb
her coworkers and disrespect her supervisor," and was terminated because of her repeated
misconduct on the job failed to show she could perform the essential functions of her job with or
without accommodation as ability to work well with others was essential to her job as process
analyst. Additionally, she did not inform her employer of her disability or request any
accommodation. For these reasons, summary judgment in favor of employer was correctly
granted with respect to her ADA claims.
Hon. Ross Walters - 44
B.
Race/Gender/Retaliation
1.
Clay v. Credit Bureau Enterprises, 754 F.3d 535 (8th Cir. 2014). The
circuit affirms the district court’s conclusion that the twelve acts of harassing conduct alleged by
plaintiff in a hostile work environment/race/retaliation case were not sufficiently severe or
pervasive to be objectively offensive as they were infrequent, involved “low levels of severity,”
were not physically threatening nor shown to be humiliating or to interfere with her work.
2.
Young v. Builders Steel Co., 754 F.3d 573 (8th Cir. 2014). In case alleging
racial discrimination when plaintiff was laid off and not called back to work, he failed to show he
was similarly situated “in all relevant respects” to any employees in his wage group as he could
not show he could perform their jobs; failed to show his employer deviated from its lay-off
policies and failed to show the employer’s explanations for not calling him back were false.
3.
EEOC v. Audrain Health Care, Inc., 756 F.3d 1083 (8th Cir. 2014). EEOC
failed to establish that plaintiff male nurse suffered an adverse employment action when he was
not transferred to an OR (operating room) nurse position – he did not complete a request for
transfer form, the first step in the transfer process, only had a conversation with the relevant
supervisor about his interest in the position.
4.
Ames v. Nationwide Mut. Ins. Co., 760 F.3d 763 (8th Cir. 2014), cert.
denied, 135 S. Ct. 947 (2015). On panel rehearing, plaintiff’s sex and pregnancy
discrimination/constructive discharge claims failed as the record evidence showed the employer
tried to accommodate plaintiff’s nursing needs and plaintiff failed to give the employer a
reasonable opportunity to address the situation.
5.
Fiero v. CSG Systems, Inc., 759 F.3d 874 (8th Cir. 2014). Plaintiff’s
performance-related problems, primarily her lack of technical expertise for the position, were
legitimate non-discriminatory reasons for termination of her employment which she could not
show to be pretextual, particularly where she did not dispute her lack of technical expertise and
failure to complete an assigned project, and the male co-worker she complained was treated
differently was not shown to be similarly situated – he improved his performance after his
review and met expectations.
6.
Doucette v. Morrison County, MN, 763 F.3d 978 (8th Cir. 2014). Where
plaintiff did not dispute making errors or misrepresenting the status of work she was to complete,
employer’s reason for terminating her employment – billing errors made after she had been
warned improvement was needed – was legitimate and nondiscriminatory; plaintiff failed to
show male co-workers who were similarly situated and who had engaged in similar conduct.
“Sex-plus-age” claim under state law failed as comment by supervisor that older people in
general should not be in law enforcement was gender-neutral and plaintiff did not show the
comment was made by a decision maker or was connected to the decisional process.
Hon. Ross Walters - 45
7.
Davis v. Ricketts, 765 F.3d 823 (8th Cir. 2014). In case making claims of
sexual harassment, hostile work environment and retaliation against employer, Title VII (and
state law parallel claim) did not apply to employer as it did not employ 15 or more employees
and could not be integrated with another company (owned by the same person) which provided
administrative services to be considered a qualifying entity. The companies did not share the
same personnel and/or managers, had independent operating decisions/budgets, were not run as a
single unit, had separate offices in separate states and were incorporated under different state
laws.
8.
Kuduk v. BNSF Railway Co., 768 F.3d 786 (8th Cir. 2014). Plaintiff’s
claim of unlawful retaliatory termination of employment under the Federal Rail Safety Act failed
on summary judgment. Even though there was a fact question whether plaintiff’s report about an
overweight derail handle was a protected safety report, there was no evidence that anyone in
higher management making the dismissal decision knew of the activity claimed to be protected.
Temporal proximity of the report to an incident in which plaintiff was accused of committing a
serious safety violation was insufficient to create a factual issue on retaliation, particularly where
plaintiff was already on disciplinary probation for a violation which predated the report.
9.
Moody v. Vozel, 771 F.3d 1093 (8th Cir. 2014), petition for cert. filed
(3/19/2015)(No. 14A983). In reverse discrimination case, plaintiff (a Caucasian male) failed to
show that defendant employer’s reason for termination of his employment -- that plaintiff
sexually harassed some co-workers – was a pretext. He failed to offer evidence from which it
could be inferred defendant knew or should have known the claims were false and employer
offered evidence it conducted a thorough investigation.
10.
Musolf v. J. C. Penney Co., 773 F.3d 916 (8th Cir. 2014). On summary
judgment, plaintiff failed to establish a causal link between her complaint about sexual
harassment and the termination of her employment nine months later. The length of time
weakened an inference of causation, in the meantime plaintiff received praise for her job
performance and a raise, and it was not until her supervisor heard plaintiff had accessed
confidential documents and tried to enlist the assistance of another employee to break into the
supervisor’s office that the supervisor recommended plaintiff be fired.
11.
Pedersen v. Bio-Medical Applications of MN, 775 F.3d 1049 (8th Cir.
2015). Even if plaintiff's complaints about incorrect packaging of blood samples were protected
activity under state whistleblower statute (although her supervisors were already aware of the
incident), she failed to provide sufficient evidence to overcome the employer's legitimate reasons
for her suspension, demotion and ultimate termination of employment – plaintiff had engaged in
misconduct, plaintiff would need retraining to return to her previous position and she failed to
return to work after being absent for four months.
Hon. Ross Walters - 46
12.
Fatemi v. White, 775 F.3d 1022 (8th Cir. 2015). Plaintiff, the sole female
neurosurgery resident in a medical school residency program, failed to show the reasons given
for terminating her from the program were a pretext for gender discrimination. The asserted
reasons based on her behavior, inability to work well with others, failing to appear for or walking
out on surgeries were not shown to be a pretext for discrimination. The fact no women had
finished the neurosurgery program was insufficient evidence by itself, the asserted comparators
did not have the same supervisor.
13.
Austin v. Long, 779 F.3d 522 (8th Cir. 2015). Lawsuit under § 1983
alleging plaintiff was fired by the head prosecutor because of his race – summary judgment on
qualified immunity denied because of factual dispute whether reasons for firing plaintiff were a
pretext for racial discrimination. Plaintiff's reliance on certain white co-workers as being
"similarly situated" but differently treated was not error even though the misconduct the
co-workers committed was not the same as plaintiff's (who defendant asserted was fired because
plaintiff did not contribute operating expenses for a number of months, deviated from office
policy on certain orders, and incurred extraordinary expenses without prior approval). They were
also prosecutors whose misconduct was comparable to or even worse than plaintiff's (one was
convicted of drunk driving and the other was formally sanctioned for ethics violations) yet they
were not fired.
14.
Jain v. CVS Pharmacy, 779 F.3d 753 (8th Cir. 2015). After plaintiff, a
female of East Asian descent, was terminated from her employment as head pharmacist,
summary judgment was granted in favor of her employer on her retaliation and discrimination
claims. Court did not err in striking the declaration of plaintiff's husband offered in resistance to
summary judgment (in which he recalculated the various scores the employer had relied upon in
deciding to terminate plaintiff) to show improvement at the pharmacy while his wife was
employed there – plaintiff's husband did not work at CVS, did not have firsthand knowledge or
experience to analyze the performance data at issue nor did the declaration establish his expertise
in the industry. Court also did not err in disregarding over 500 pages of documents attached to
the declaration.
15.
Washington v. American Airlines, Inc.,
F.3d
, 2015 WL 1345221
(8th Cir. 3/25/2015). African-American employee alleged he was discriminated against on the
basis of race after his employer failed to promote him because he did not pass the required
examination. Plaintiff failed to show the reason was a pretext for discrimination – the allegation
the company did not follow its scheduling policy failed as the policy only required prompt
scheduling which occurred, plaintiff did not show the company's choice of a witness at the exam
was based on race, and no differential treatment occurred by scheduling plaintiff second-to-last
even though he submitted his bid first as no applicants were scheduled in order of their bid
submission.
Hon. Ross Walters - 47
C.
Age
1.
Tramp v. Associated Underwriters, Inc., 768 F.3d 793 (8th Cir. 2014). In
addition to another lesson in the importance of complying with local rules on summary judgment
motions, the circuit finds there were genuine issues of fact in the summary judgment record
whether plaintiff’s employer’s concern about health care costs as impacted by the age of its
employees could been seen as “a manifestation of discriminatory intent” in the RIF process the
employer used to get rid of older employees. Plaintiff also demonstrated a factual issue on
pretext as there was evidence use of a reprimand and probationary status with respect to
plaintiff’s job performance was contrary to the employer’s practices before it tried to talk
plaintiff and other older employees into using Medicare instead of the company’s health care
plan.
2.
Johnson v. Securitas Security Services USA, Inc., 769 F.3d 605 (8th Cir.
2014), cert. denied, 2015 WL 504942 (2015). After rehearing en banc, summary judgment in
favor of employer in this age discrimination case was affirmed. The reason given for termination
of 76-year-old security guard’s employment -- his “early unauthorized departure” from a security
job site and delay in reporting an accident he was involved with at the site in a company vehicle
-- was not shown to be a pretext for age discrimination. Employer could rely on internal
documents concerning when the shift ended to form a good faith belief plaintiff left his shift
early; supervisor’s comments it was time for plaintiff to give up his “Superman cape” were not
sufficient to show the supervisor prevailed on the other two decision makers in deciding to
terminate plaintiff’s employment; human resource manager’s awareness of plaintiff’s age was
not sufficient and plaintiff did not come up with a similarly situated comparator.
3.
Hilde v. City of Eveleth, 777 F.3d 998 (8th Cir. 2015). Police lieutenant
who was passed over for promotion to chief of the city's police department showed his retirement
eligibility was an impermissible factor considered by commissioners in their decision to hire an
individual eight years younger, requiring reversal of the district court's grant of summary
judgment in favor of the City and remand for further proceedings.
D.
FMLA
1.
Jackson v. City of Hot Springs, 751 F.3d 855 (8th Cir. 2014). Plaintiff
presented sufficient evidence of ability to perform the essential functions of his former job and of
retaliatory motive on the part of the employer in support of his FMLA retaliation claim. Key
decision maker was on record as saying he believed plaintiff’s request for additional leave before
he was originally terminated was a “ploy” to prolong insurance before obtaining disability;
required plaintiff to reapply for his former position and did not rehire plaintiff even though he
was most qualified.
Hon. Ross Walters - 48
2.
Malloy v. USPS, 756 F.3d 1088 (8th Cir. 2014). Although plaintiff was
terminated eleven days after she exercised her FMLA rights, the evidence showed plaintiff had
chronic attendance problems and was discharged because of multiple unexcused absences;
therefore, her FMLA retaliation claim failed.
3.
Ebersole v. Novo Nordisk, Inc., 758 F.3d 917 (8th Cir. 2014). In the face
of evidence that employer’s reason for terminating plaintiff’s employment -- that she had
falsified calls on doctors as defined in company policy -- was not pretextual, plaintiff’s FMLA
retaliation claim failed as discriminatory animus was not established by supervisors’ discussions
of plaintiff’s health status; there was no evidence of threats against plaintiff for using FMLA
leave; and there was a seven-month gap between the time plaintiff exercised her FMLA rights
and her termination.
4.
Johnson v. Wheeling Machine Products, 779 F.3d 514 (8th Cir. 2015).
Plaintiff's FMLA entitlement claim failed on summary judgment as his medical treatment visit
for high blood pressure did not require a second visit within 30 days as required by the FMLA
regulations and the treatment prescribed, a course of prescription medication, did not qualify as
"supervision" by a physician.
E.
Miscellaneous Employment Cases
1.
Lane v. Franks,
U.S.
, 134 S. Ct. 2369 (2014). The Supreme
Court holds that a state employee’s sworn testimony under subpoena about information he
gained in the course of his employment concerning government fraud is protected speech under
the First Amendment for which he could not be terminated in retaliation; however, the supervisor
who fired him was entitled to qualified immunity as the law in the Eleventh Circuit concerning
retaliation based on First Amendment speech was unsettled at the time.
2.
Integrity Staffing Solutions, Inc. v. Busk,
U.S.
, 135 S. Ct. 513
(2014). The Supreme Court holds the time employees spent waiting for post-work hours exit
screening (to prevent employee theft) was not compensable time under the FLSA as the
screening were not the principal activities which the employees were employed to perform.
3.
Dept. of Homeland Security v. MacLean,
U.S.
, 135 S. Ct. 913
(2015). Federal air marshal who was fired after telling a reporter the TSA had decided to cancel
all overnight missions from Las Vegas while a hijacking alert was in effect was protected by the
federal whistleblower statutes, 5 U.S.C. § 2302(b)(8)(A) – his disclosure was not "specifically
prohibited by law" (an exception to the statute), the Supreme Court holds, because TSA
regulations on sensitive security information do not qualify as "law" under the statute.
4.
Petroski v. H & R Block Enterprises, LLC, 750 F.3d 976 (8th Cir. 2014).
Tax professionals' FLSA claim for compensation for the twenty-four hours they spent
completing H & R Block's required rehire training every year failed as the court considered
plaintiffs to be trainees who were not covered by the FLSA.
Hon. Ross Walters - 49
5.
Associated Electric Cooperative, Inc. v. IBEW, 751 F.3d 898 (8th Cir.
2014). Where a last chance agreement (LCA) involved the employee and employer and not the
union, the arbitrator was not bound to apply a mandatory termination clause of the LCA in
determining whether there was just cause for employee’s termination. Arbitrator had authority to
interpret the undefined “just cause” term of the CBA in reaching his conclusion that employee
should not have been kept on LCA after his random drug test turned out to be negative.
6.
Spencer v. Annett Holdings, Inc., 757 F.3d 790 (8th Cir. 2014). Plaintiff’s
bad faith claim that his employer denied him medical care for a work-related injury failed as
Iowa law did not recognize such a claim and plaintiff was required to exhaust his work-injury
claims with the Iowa Workers Compensation Commissioner.
7.
Twin City Pipe Trades Service Ass’n v. Frank O’Laughlin Plumbing &
Heating Co., 759 F.3d 881 (8th Cir. 2014). Plumbing company’s notice of intent to terminate its
work agreement with union was not an unequivocal expression of intent to terminate
participation in CBA as company continued to make fringe benefit contributions as defined in
the CBA. The letters sent to terminate were ineffective as they did not reference the correct date
the work agreement could be terminated nor refer to the 90-day notice requirement.
8.
Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791 (8th Cir. 2014), petition
for cert. filed (3/19/2015)(No. 14-1146, 14A816). In FLSA class action cases against Tyson,
verdict in favor of plaintiffs was affirmed by circuit which held the district court did not abuse its
discretion in certifying the collective action under FLSA. The K-code payment policy in question
applied to all class members who worked at the same plant and used similar equipment. That
some inference was required to be made to determine individual overtime claims was
permissible as individual issues on donning and doffing did not dominate.
9.
Karlen v. Jones Lang Lasalle Americas, Inc., 766 F.3d 863 (8th Cir.
2014). Trial court erred in granting summary judgment in favor of plaintiff with respect to his
claim of commissions due after termination of his employment. Two conditions precedent to
payment had not yet been fulfilled and any commissions due would not have been owed until
after his termination; therefore Minnesota Payment of Wages Act provisions for liquidated
damages did not apply.
10.
Guyton v. Tyson Foods, Inc., 767 F.3d 754 (8th Cir. 2014). In this FLSA
class action case arising at a different Tyson plant, grant of summary judgment in favor of
defendant affirmed. Pre- and post-production activities during a 35-minute meal period were not
compensable. It was undisputed that the entire meal period was uninterrupted and employees
were not required to doff protective clothing in the cafeteria.
11.
Chavez-Lavagnino v. Motivation Education Training, Inc., 767 F.3d 744
(8th Cir. 2014). Employees’ claims of retaliation under state law whistleblower statute were
supported by evidence their supervisor directed them to forge signatures, shred documents, and
falsify other documentation and that they were fired within six weeks after they refused to
undertake those activities, telling the supervisor they would not break the law.
Hon. Ross Walters - 50
12.
Alexander v. Avera St. Luke’s Hospital, 768 F.3d 756 (8th Cir. 2014).
Doctor’s ADA, ADEA and FMLA claims brought against hospital which terminated its services
agreement with him pursuant to a with/without cause provision (after doctor had a heart attack,
then heart transplant, then was hospitalized with bipolar disorder) failed on summary judgment
as the undisputed material facts showed he was an independent contractor instead of a covered
employee. Circuit adopts “hybrid test” which combines common-law and economic realities tests
to construe “employee” under FMLA.
13.
Crews v. Monarch Fire Protection District, 771 F.3d 1085 (8th Cir. 2014).
Because under Missouri law fire chiefs were considered at-will employees whose employment
was terminable at will, the existence of internal rules within the fire department did not change
that status and chiefs did not have a property interest in continued employment under the
Fourteenth Amendment.
14.
Holaway v. Stratasys, Inc., 771 F.3d 1057 (8th Cir. 2014). Even if plaintiff
was improperly classified as an exempt employee for FLSA purposes, plaintiff failed to provide
sufficient evidence he worked in excess of 40 hours per week. Even with relaxed standard of
proof which did not require plaintiff to keep precise time records, plaintiff’s vague and
inconsistent testimony concerning overtime worked did not support his claim.
15.
Skalsky v. Ind. School Distr. No. 743, 772 F.3d 1126 (8th Cir. 2014). In
case alleging plaintiff, a school custodian, was constructively discharged after his wife spoke at a
public meeting about school budgetary issues, First Amendment retaliation claim failed as
plaintiff could not show a connection between comments the school superintendent made about
the wife’s speech and plaintiff’s reassignment to another shift; the school district had budget
problems which required reallocating custodial duties after another part-time position was
eliminated; and temporal proximity of the reassignment (six days after wife’s speech) was
insufficient evidence of retaliatory motive.
16.
EEOC v. CRST Van Expedited, 774 F.3d 1169 (8th Cir. 2014). In this long
drawn-out employment case, while finding that the EEOC's complaint alleged multiple sexual
harassment claims on behalf of individuals and not a pattern-or-practice claim, the district court's
dismissal of a number of claims based on the EEOC's failure to satisfy its presuit obligations
under Title VII did not constitute a ruling on the merits; therefore CRST was not a prevailing
party on those claims nor was it entitled to an award of attorneys' fees with respect to those
claims. Case remanded for particularized findings as to which claims were dismissed because
frivolous, unreasonable or groundless and then the amount of attorneys' fees expended because
of those allegations.
17.
Nanomech, Inc. v. Suresh, 777 F.3d 1020 (8th Cir. 2015). Applying
Arkansas law, the circuit holds a covenant not to compete in employment agreement between
manufacturer of nanotechnology products and former employee was unreasonable as it contained
no geographic limitations nor restrictions on the activities the employee was prohibited from
performing for competitors in nanotechnology, therefore dismissal of employer's complaint by
district court was affirmed.
Hon. Ross Walters - 51
18.
Nassar v. Jackson, 779 F.3d 547 (8th Cir. 2015). In lawsuit by Caucasian
school employees against public school district and the school board alleging race discrimination
and due process violations in the termination of their employment, damages award on due
process claim which exceeded the value of salary and benefits remaining on plaintiff's contract
should not have been sustained by the trial court. Even assuming front pay was part of the award,
since front pay could only be awarded by the court it was error to allow the jury to award it.
19.
Wagner v. Campbell, 779 F.3d 761 (8th Cir. 2015). After plaintiff was
reprimanded for not following the sheriff's directives regarding training another employee and
changing payroll and bond documentation procedures, she refused to sign the reprimand and left
employment. Her lawsuit alleging retaliation for engaging in protected activity was dismissed on
summary judgment as plaintiff failed to show a "materially adverse" action by the employer – a
single reprimand did not qualify.
20.
Conners v. Gusano's Chicago Style Pizzeria, 779 F.3d 835 (8th Cir. 2015).
After plaintiff filed FLSA collective action challenging tip pooling policies of her former
employer, employer's implementation of an arbitration policy requiring all employment-related
disputes to be resolved through individual arbitration could not be challenged by plaintiff as she
lacked Article III standing because as a former employee she could not show a "non-conjectural
threat of harm" nor did she have a current personal interest. Therefore, district court did not have
jurisdiction to enter injunction against enforcement of the arbitration policy.
21.
St. Jude Medical S.C. v. Tormey, 779 F.3d 894 (8th Cir. 2015). In a
lawsuit involved claims and counterclaims arising from the end of defendant's employment as an
independent sales representative of plaintiff's medical devices, after jury could not reach a
unanimous verdict on the claims, trial court's grant of judgment as a matter of law on plaintiff's
claim for repayment of a loan to defendant was not in error. Even if plaintiff breached a term of
the agreement, there was no excuse for defendant's failure to repay the note, defendant waived
his first-breach defense as an excuse and an asserted "walk-away agreement" was not in writing
as required by state statute.
22.
Beauford v. ActionLink, LLC,
F.3d
, 2015 WL 1260453 (8th Cir.
3/20/2015). In FLSA case involving the exempt/non-exempt status of employees of defendant
marketing company, district court correctly found employees were non-exempt: "brand
advocates" were not outside salesmen but engaged in non-exempt promotional work; did not
exercise discretion or independent judgment in fulfilling their duties and had little autonomy.
Employees who accepted settlement checks were not barred from pursuing additional claims
against their employer because the checks did not give proper notice of the consequences of
cashing the checks.
Hon. Ross Walters - 52
23.
Lyons v. Vaught,
F.3d
, 2015 WL 1296045 (8th Cir. 3/24/2015).
After plaintiff, a part-time lecturer at a college, was not offered a return position after serving
seven semesters and his course dropped from the course catalog, he brought a § 1983 action
against the college administrators claiming he was terminated as unlawful retaliation for his First
Amendment free speech. The alleged free speech involved plaintiff's conference with the
chancellor of the university expressing concerns about preferential treatment for student athletes.
Addressing the trial court's ruling denying a motion to dismiss, the circuit held defendants were
entitled to qualified immunity from the claim because plaintiff did not allege they knew of his
speech to the chancellor when they did not recommend him for reappointment.
IV.
CONSTITUTIONAL LAW
A.
First Amendment
1.
Town of Greece, NY v. Galloway,
U.S.
, 134 S. Ct. 4334 (2014).
The Supreme Court concludes a town's practice of opening a monthly board meeting with a
prayer provided by clergy selected from congregations in a local directory does not violate the
Establishment Clause.
2.
Wood v. Moss,
U.S.
, 134 S. Ct. 2056 (2014). Secret Service
agents were entitled to qualified immunity from § 1983 First Amendment claims that requiring
protesters to move from area where they were in weapons range of the President, who made a
last-minute decision to eat a restaurant en route to his lodging, but not requiring supporters (who
were not in weapons range) to also move resulted in viewpoint discrimination. Nothing in First
Amendment case law would have alerted the agents to the need to make sure “groups with
conflicting views were at all times in equivalent positions” with respect to the President’s
physical presence.
3.
McCullen v. Coakley,
U.S.
, 134 S. Ct. 2518 (2014). The
Supreme Court holds in this case that Massachusetts’ statutory 35-foot buffer zones around
clinics where abortions are performed violate the First Amendment.
4.
Harris v. Quinn,
U.S.
, 134 S. Ct. 2618 (2014). In the context of
public sector collective bargaining, the Supreme Court holds the First Amendment prohibited
collection of agency fee from program physicians assistants who do not want to join or support
the state union.
5.
Snider v. City of Cape Girardeau, 752 F.3d 1149 (8th Cir. 2014). Because
the unconstitutionality of flag desecration laws had been clearly established since 1989, officer
who arrested plaintiff for burning American Flag was not entitled to qualified immunity from
civil rights claims, nor were the officer’s action insulated by issuance of an arrest warrant.
Hon. Ross Walters - 53
6.
Nord v. Walsh County, 757 F.3d 734 (8th Cir. 2014). Sheriff who fired
plaintiff deputy who ran against him in election was entitled to qualified immunity on deputy’s
subsequent § 1983 claim that he was fired in retaliation for making statements protected by the
First Amendment. Under existing law sheriff could believe deputies were his at-will employees;
during the campaign the deputy made untrue statements regarding sheriff’s health; and under the
Pickering/Connick balancing some statements were not protected and others the sheriff could
believe would be disruptive of the work environment.
7.
Red River Freethinkers v. City of Fargo, 764 F.3d 948 (8th Cir. 2014).
After circuit remanded case for decision on merits of plaintiffs’ Establishment Clause claim
concerning a Ten Commandments monument (which also contained other symbols) erected on
the city’s public plaza, district court did not err in granting summary judgment in favor of city as
the monument had not been physically altered, had been sitting in the plaza for many years, and
was permissible under Van Orden v. Perry and ACLU Nebraska Foundation v. City of
Plattsmouth as a passive display.
8.
281 Care Committee v. Arneson, 766 F.3d 774 (8th Cir. 2014), cert.
denied, 2015 WL 1280248 (2015). First Amendment challenge to state’s statute regulating false
speech about ballot initiatives. Allegations that plaintiffs intended to engage in electoral speech
opposing school-funding ballot initiatives and the possibility of prosecution were sufficient to
confer standing; strict scrutiny applied to political statements. County attorneys failed to meet
their burden of demonstrating the statute was narrowly tailored to meet the asserted
governmental interest of preserving “fair and honest” elections – anyone could file a complaint
alleging a violation of the statute, even imprudently, in itself a potential fraud on the election
process.
9.
Rose v. Flairty, 772 F.3d 552 (8th Cir. 2014). State probation officer was
entitled to quasi-judicial absolute immunity from plaintiff’s damages claim that plaintiff’s First
Amendment rights were violated by the officer’s requirement plaintiff, a Jehovah’s Witness,
participate in a privately run substance abuse program. The order modifying his sentence
required him to participate in a substance abuse program and plaintiff consented to placement in
the program; therefore, the officer was only enforcing the court’s order.
10.
Williams v. City of Alexander, 772 F.3d 1307 (8th Cir. 2014). In this §
1983 action claiming chief of police arrested plaintiff without probable cause and made false
statements in affidavit for arrest warrant, when statements were removed from the affidavit, there
was no probable cause to arrest plaintiff and a jury could find the police chief violated plaintiff’s
constitutional rights – summary judgment was correctly denied and police chief was not entitled
to qualified immunity as it was clearly established that including false statements in an arrest
warrant to punish another for supporting a political opponent would violate the constitution.
Hon. Ross Walters - 54
11.
Traditionalist American Knights of the Ku Klux Klan v. City of Desloge,
MO, 775 F.3d 969 (8th Cir. 2014). District court abused its discretion in granting preliminary
injunction against enforcement of a city ordinance prohibiting persons from standing or entering
the roadway to solicit from or distribute to persons in vehicles, which KKK group challenged as
a First Amendment violation. City had significant safety concerns and the group had alternative
means to distribute materials, such as on sidewalks, in parking lots and parks and to persons
pulling over next to sidewalks, for instance.
12.
Survivors Network of Those Abused by Priests, Inc. v. Joyce, 779 F.3d 785
(8th Cir. 2015). State statute prohibiting profane language to disrupt a house of worship did not
survive First Amendment challenge by members of non-profit organizations who gathered
outside Catholic churches to protest sexual abuse by priests. "Profane" and "rude or indecent
behavior" in the statute were not defined nor was "unreasonably " disrupting a house of worship,
giving local authorities leeway to decide whether conduct fit the statute and the statute was not
sufficiently narrow.
B.
Fourth Amendment
1.
Plumhoff v. Rickard,
U.S.
, 134 S. Ct. 2012 (2014). The
Supreme Court holds that officers who fired multiple shots into the vehicle plaintiff’s decedent
had been driving in a high speed car chase which had lasted over five minutes during which at
least two dozen motorists were passed did not violate the Fourth Amendment and their use of
deadly force was reasonable, even though there was a passenger in the vehicle who was also
killed as a result of the shots.
2.
Smith v. City of Minneapolis, 754 F.3d 541 (8th Cir. 2014). Officers’ use
of force on plaintiff’s 5’2”/315-pound decedent, in the course of attempting to effect his arrest in
response to a domestic situation, which included kicking and hitting the decedent and using a
taser on him in order to try to get him to the ground, did not violate clearly established law,
entitling the officers to qualified immunity on the excessive force claims against them.
3.
Peterson v. Kopp, 754 F.3d 594 (8th Cir. 2014). Although officer was
entitled to qualified immunity from plaintiff’s Fourth Amendment unlawful arrest claim because
he had arguable probable cause to arrest plaintiff for refusing to leave a bus stop, he was not
entitled to qualified immunity on the Fourth Amendment excessive force claim as the facts were
such that a jury could conclude defendant used pepper spray on plaintiff in the course of
arresting him in retaliation for plaintiff asking the officer for his badge number.
4.
Smith v. City of Brooklyn Park, 757 F.3d 765 (8th Cir. 2014). In excessive
force case following the death of an individual involved in a domestic situation, court did not err
in finding there was no evidence in the summary judgment record that the decedent was unarmed
when he was shot – inconsistencies in the record did not change the analysis of reasonableness,
there was undisputed radio traffic reporting the decedent was armed and threatening another, and
the number of gunshot wounds did not negate the evidence decedent was armed.
Hon. Ross Walters - 55
5.
Blazek v. City of Iowa City, 761 F.3d 920 (8th Cir. 2014). Where it
appeared from the evidence on summary judgment that at the time officers jerked plaintiff from
the floor to his bed in the course of detaining him that plaintiff was handcuffed and under
control, not resisting and did not pose a threat, district court correctly denied qualified immunity
as it was clearly established at the time that unnecessary violence in such circumstances would
violate the Fourth Amendment.
6.
Jacobson v. McCormick, 763 F.3d 914 (8th Cir. 2014). Officers had
qualified immunity against plaintiff’s claim that strip search which included visual inspection
body-cavity search of plaintiff after he was arrested and booked at jail for driving under the
influence violated the Fourth Amendment under existing law in 2009. County jail policy gave
officers discretion to conduct strip search based on reasonable suspicion; officers had reasonable
suspicion plaintiff might possess contraband based on his statement he had just smoked
marijuana; and circuit precedent did not establish the unconstitutionality of the procedure at that
time.
7.
Meehan v. Thompson, 763 F.3d 936 (8th Cir. 2014). Officer who decided
to transport plaintiff (who had been a passenger in a car whose driver was arrested for DWI) to a
detox facility even though he did not suspect her of any crime was entitled to qualified immunity
against her § 1983 Fourth Amendment claim. It was reasonable for the officer, acting as
community caretaker, to seize an individual who was apparently intoxicated and to not leave
them alone on a public roadway at night.
8.
Gibson v. Cook, 764 F.3d 810 (8th Cir. 2014). Officers had probable cause
to arrest plaintiff for violation of protection order on multiple occasions. Officer had copy of
unexpired order and had arrested plaintiff a few days earlier for another violation, which
provided probable cause. He was not required to investigate further to resolve any conflict
between the protection order and a separation decree.
9.
Williams v. Holley, 764 F.3d 976 (8th Cir. 2014). Officer attempted to
arrest plaintiff’s decedent on numerous outstanding arrest warrants, eventually trying to use a
taser on decedent. The two struggled, the decedent at one point acquiring the taser and using it
on the officer. Officer ended up drawing his pistol and decedent was shot but the two continued
to struggle. Eventually officer freed himself and shot decedent multiple times, resulting in his
death. In subsequent excessive force claim, there were material issues of fact concerning how the
incident occurred and inconsistencies in the circumstantial evidence which required denial of
defendant’s summary judgment motion on qualified immunity. The court was not required to
accept the surviving deputy officer’s account of events as true in light of those inconsistencies.
Hon. Ross Walters - 56
10.
Aipperspach v. McInerney, 766 F.3d 803 (8th Cir. 2014), cert. denied,
2015 WL 731901 (2015). Use of deadly force against plaintiff’s decedent was not unreasonable
under circumstances. Suspect was holding what looked like a handgun (it turned out to be a BB
gun), refused to drop gun after repeated commands, pointed it once at an officer and then waved
it generally in direction of officers on a ridge above him, which gave officers probable cause to
believe he was a threat of serious physical harm to them. In granting summary judgment in favor
of officers, district court did not ignore video from news helicopter and in fact concluded it only
provided the perspective of the person who recorded it, not the perspective of the officers on the
ground.
11.
Williams v. Decker, 767 F.3d 734 (8th Cir. 2014), cert. denied, 2015 WL
732038 (2015). Plaintiff’s “errant parking” diagonally across two spaces combined with officers’
observation of vehicle occupant taking a drink from a container wrapped in a paper bag
(consistent with violation of open container law) gave officers reasonable suspicion to
investigate for illegal activity in a Terry stop. That officer might have been mistaken whether
plaintiff was drinking from paper bag did not render the officer’s suspicion objectively
unreasonable. Officers’ conduct in drawing their weapons as they approached the vehicle,
handcuffing plaintiff and his passenger and conducting a protective sweep of the vehicle did not
exceed the scope of the Terry stop. The vehicle occupants did not raise their hands as directed by
the officers (they were playing music at 70% capacity) and kept their hands concealed when they
saw the officers, again providing a reasonable basis for concern for officer safety.
12.
Partlow v. Stadler, 774 F.3d 497 (8th Cir. 2014). Responding to a late
report that plaintiff was suicidal and possessed a shotgun, the circuit found the conduct of
officers arriving at the scene with this information, upon viewing plaintiff as he forcefully exited
an apartment building with shotgun in hand and moved it in a way that the officers believed was
taking aim at them, in firing at plaintiff causing serious injury to him was objectively reasonable
and they were entitled to qualified immunity, irrespective of what plaintiff's intent had been.
What mattered was what the reasonable officer on the scene would have perceived.
13.
Colbert v. Monticello, Ark., 775 F.3d 1006 (8th Cir. 2014). Arrestee's
convictions on charges of disorderly conduct and refusal to submit to arrest did not bar his §
1983 claims for unreasonable seizure and excessive force allegedly occurring during the course
of his arrest on those charges as a finding of excessive force would not imply the invalidity of the
convictions.
14.
Parker v. Chard, 777 F.3d 977 (8th Cir. 2015). Anonymous tipster's
information that he/she had seen a group of African American females running out of a Victoria's
Secret store in the area (after police received a report of stolen merchandise by African American
females at another store in the area) was partially corroborated by VS staff agreeing a group of
African American Females had recently run out of the store. Based on White and J.L., it was not
clearly established at that time that officers could not reasonably suspect plaintiff of shoplifting,
therefore, they were entitled to qualified immunity on her Fourth Amendment claims against
them after they stopped her to investigate but did not make an arrest.
Hon. Ross Walters - 57
15.
Patterson v. City of Omaha, 779 F.3d 795 (8th Cir. 2015). Plaintiff
sustained torn intestine and broken ribs when officers had to use force to remove him from
premises at the request of the property owner. Jury found excessive force had been used but only
awarded nominal damages. The circuit upheld the nominal damages award as plaintiff failed to
show officer's use of force caused plaintiff's injury: there was no finding on which use of force –
a punch, a knee or a kick – was necessary and which was excessive and plaintiff did not show
which application of force caused his injury.
16.
Rodgers v. Knight,
F.3d
, 2015 WL 1283851 (8th Cir. 3/23/2015).
After state firearms charges against plaintiff were dropped and his firearms returned to him,
police officers were entitled to qualified immunity from plaintiff's Fourth Amendment unlawful
arrest and prosecution claim because plaintiff did not have a Missouri concealed weapon permit,
and officers were not required to accept his statement that he had a Florida permit, especially
when he attempted to flee and was not carrying the permit.
C.
Due Process/Equal Protection
1.
Walton v. Dawson, 752 F.3d 1109 (8th Cir. 2014). Judged by subjective
deliberate indifference standard which requires personal knowledge by prison officials of a
constitutional risk arising from inadequate training or supervision, failure to train claim against
jail officials after pretrial detainee plaintiff was raped by a fellow inmate survived jail
administrator’s summary judgment motion as there was evidence the jail had a nighttime cell
door locking policy which was not enforced, in spite of a recent attack by the inmate who
attacked plaintiff on another inmate and jail administrator was aware of this failure.
2.
Jackson v. Buckman, 756 F.3d 1060 (8th Cir. 2014). Jail nurse’s act of
hitting pretrial detainee plaintiff’s nose when she attempted to administer ammonia inhalant after
plaintiff passed out was not excessive force. At most it was de minimis force which was not
actionable under the Due Process Clause as plaintiff did not see medical staff for treatment, his
nose did not bleed nor was it cut, bruised or scratched.
3.
Smith v. Conway County, AR, 759 F.3d 853 (8th Cir. 2014). Jailers were
not entitled to qualified immunity from plaintiff/pretrial detainee’s excessive force claims after a
taser was used on plaintiff by officers in an attempt to get him to comply with officer’s orders to
move him to a medical observation cell. A jury could find plaintiff was not violent when the
taser was applied a second time and it was clearly established that nonviolent inmates should not
be tased for non-compliance.
4.
Hawkins v. Gage County, NE, 759 F.3d 951 (8th Cir. 2014). After plaintiff
was falsely accused of rape and spent 17 days in jail, his subsequent § 1983 lawsuit against
sheriff’s office alleging due process violations in the investigation and search warrant affidavit
did not establish a constitutional violation on summary judgment. Officers’ failure to interview
witnesses at a local bar did not shock the conscience or indicate recklessness as the victim had
said she feared retribution if she sought help; photos victim provided of injuries were not so
apparently false; and officers followed up with forensic nurse.
Hon. Ross Walters - 58
5.
Booker v. City of St. Paul, 762 F.3d 730 (8th Cir. 2014). Due process
challenge to state’s automobile forfeiture statute (effective after plaintiff committed four DWI
offenses in a ten-year period) – requirement that claimant file a complaint in county court within
30 days of the seizure was not an unconstitutional delay. Plaintiff never filed a complaint
therefore, the length of time it would take him to get his car back after filing complaint was
speculative; risk of erroneous seizure was unlikely as preliminary hearing on drunk driving
offense would determine whether there was probable cause to prosecute; and seizure of vehicles
from repeat offenders was a legitimate way to keep dangerous drivers off the road.
6.
K.B. v. Waddle, 764 F.3d 821 (8th Cir. 2014). State officials did not have a
duty to protect plaintiff against private violence under the Due Process Clause. Neither she nor
her assailant were in state custody at the time of the assault and even though the officials had
been advised of the assailant’s intent sometime in advance, did not take affirmative action that
increased the danger to plaintiff. Additionally, officials were entitled to official immunity under
state law as their acts were committed while they were acting in a ministerial capacity.
7.
Lee v. Borders, 764 F.3d 966 (8th Cir. 2014). Color of state law element
of plaintiff’s substantive due process claim brought after a mental health facility staff member
raped her was established by evidence the staff member was in his place of work (the kitchen) of
which he was in charge controlling who could enter it and stay there, and the rape occurred in a
restricted area of the kitchen to which he would not have had access in the absence of his
position.
8.
Hopkins v. City of Bloomington, 774 F.3d 490 (8th Cir. 2014). Plaintiff's §
1983 action challenging the state's vehicle forfeiture statute as a procedural due process violation
failed as her case fell within the exception to the general rule that exhaustion of state remedies is
not required in § 1983 cases – specifically the circuit has held that state remedies must be
exhausted before a procedural due process claim may be brought.
9.
Sparkman Learning Center v. Ark. Dept. of Human Services, 775 F.3d 993
(8th Cir. 2014). Day care facility's due process and equal protection claims arising from state
agency's termination of state funding were barred based on claim preclusion under Arkansas law
as the claims could have been brought during state administrative proceedings and judicial
review.
10.
Villaneuva v. City of Scottsbluff, 779 F.3d 507 (8th Cir. 2015). Plaintiffs §
1983 claim against City complaining that police officers violated her Equal Protection rights
when they did not formally report some of her reports of domestic abuse nor always arrest her
husband in response to her complaints did not state a claim under the law as she did not produce
evidence showing the failure to respond was based on intent to discriminate against women.
Hon. Ross Walters - 59
D.
Miscellaneous Constitutional Claims
1.
NLRB v. Canning,
U.S.
, 134 S. Ct. 2550 (2014). The Supreme
Court holds that Presidential appointments during a three-day adjournment between sessions of
the U.S. Senate violated the Recess Appointments Clause as three-days was “too short a time to
bring a recess within the scope of the Clause.”
2.
Burwell v. Hobby Lobby Stores,
U.S.
, 134 S. Ct. 2751 (2014).
The Supreme Court holds that HHS regulations imposing a contraceptive coverage mandate on
insurance policies provided to employees by closely held corporations violate the Religious
Freedom Restoration Act
3.
Vadnais v. Federal Nat’l Mortgage Association, 754 F.3d 524 (8th Cir.
2014). In action by county against federal housing agencies to require the agencies to pay taxes
on transfers of deeds to real property, federal agencies were exempted from all state taxation by
virtue of the Exemption Statutes, 12 U.S.C. §§1723a(c)(2) and 1452(e).
4.
De Boise v. Taser International, Inc., 760 F.3d 892 (8th Cir. 2014),
petition for cert. filed, 83 U.S.L.W. (1/8/2015)(No. 14-812). Officers who administered multiple
taser cycles upon plaintiff’s decedent when he did not comply with directives to submit, walked
toward officers, kicked and flailed his arms when they attempted to arrest him, were entitled to
qualified immunity from excessive force and ADA violation claims. Plaintiff’s decedent was
acting aggressively and irrationally and continued to be non-compliant with officer’s demands in
spite of application of the taser.
5.
Hawkins v. Community Bank of Raymore, 761 F.3d 937 (8th Cir. 2014),
cert. granted, 2015 WL 852422 (2015) . Plaintiffs claimed that bank’s requirement that they
execute guaranties securing loans made to their spouses’ limited liability company constituted
discrimination based on marital status in violation of the Equal Credit Opportunity Act. As
guarantors only, plaintiffs did not qualify as applicants under the Act, thus were not entitled to
protection from marital status discrimination.
6.
Dowell v. Lincoln County, MO, 762 F.3d 770 (8th Cir. 2014). Officer’s
comment to plaintiff (during investigation of murder case) that Missouri was a death penalty
state did not constitute coercion, nor did ride in police van (during which officers took plaintiff
to crime scene) as officers did not make promises or threats to plaintiff and there was no
evidence they physically coerced him. Therefore, the evidence on summary judgment was
insufficient to raise a question whether officers violated plaintiff’s Fifth Amendment right
against self-incrimination in this § 1983 lawsuit.
7.
DeVries v. Driesen, 766 F.3d 922 (8th Cir. 2014). Plaintiff’s § 1983 suit
against state patrol officers concerning an incident during a traffic stop was untimely as it was
filed two years and four months after the claim arose. Iowa had a two-year statute of limitations
for personal injury claims which was not tolled during pendency of plaintiff’s administrative
claims under the Iowa Tort Claims Act because § 1983 suit was a “uniquely federal remedy”
supplemental to any state remedy and plaintiff could have filed his § 1983 case while the state
administrative proceedings were pending.
Hon. Ross Walters - 60
8.
Smith v. Board of Ed. Of Palestine-Wheatley Sch. Dist., 769 F.3d 566 (8th
Cir. 2014). In case involving school district’s attempt to modify or terminate a consent decree
entered during an earlier Voting Rights Act and Fourteenth Amendment case, modification
permitting school district to relocate middle school grade from the Wheatley campus to the
Palestine campus was based on a significant change in circumstances, namely the population
shift of the districts putting the majority of students (including minority students) closer to the
Palestine district.
V.
ERISA
1.
Fifth Third Bancorp v. Dudenhoeffer,
U.S.
, 134 S. Ct. 2459
(2014). The Supreme Court holds the fiduciaries of an ESOP have the same “duty of prudence”
applicable to ERISA fiduciaries with the exception they are not required to diversify the assets of
the ESOP fund. Case remanded for determination whether the complaint states a claim under
Iqbal/Twombly standards.
2.
Hall v. Metropolitan Life Ins. Co., 750 F.3d 995 (8th Cir. 2014). Where
plan administrator had discretion to interpret plan terms and make eligibility determinations, it
did not abuse its discretion in refusing to recognize decedent’s will as sufficient to make a
beneficiary change in accordance with the terms of the policy.
3.
Waldoch v. Medtronic, Inc., 757 F.3d 822 (8th Cir. 2014). Employer/plan
administrator did not abuse its discretion in denying plaintiff’s claim for long-term disability
benefits under the “any occupation” provisions of the plan. District court did not abuse its
discretion in admitting employer’s affidavit which illustrated the interaction between the plan
administrator and employer during the claims handling as the affidavit was not offered to support
any new reason for denying the claim but aided the court in considering plaintiff’s
procedural-irregularity challenge to use of the abuse-of-discretion standard.
4.
Windstream Corp. v. Da Gragnano, 757 F.3d 798 (8th Cir. 2014), cert.
denied, 2015 WL 731877 (2015). District court correctly found that retiree health benefits were
not permanently vested by virtue of a Memorandum of Understanding and employer was entitled
to unilaterally modify contribution amounts as it had consistently reserved the right to do so in
the summary plan descriptions for its benefit plans.
5.
Kutten v. Sun Life Assur. Co. of Canada, 759 F.3d 942 (8th Cir. 2014).
Where plan administrator had discretionary authority to construe the terms of long term
disability plan, its conclusion that plaintiff’s physician-supervised course of treatment with
vitamin A supplements constituted a “medical treatment” under the pre-existing condition clause
of the plan was reasonable; summary judgment in favor of plaintiff reversed and case remanded
for entry of summary judgment in favor of plan administrator.
Hon. Ross Walters - 61
6.
Silva v. Metropolitan Life Ins. Co., 762 F.3d 711 (8th Cir. 2014). Because
MetLife served the dual role of determining eligibility for benefits and paying benefits, its
determination that plaintiff was not entitled to benefits was entitled to less deferential review.
Resolution of the language “evidence of insurability” in the plan required facts not present in the
summary judgment record, such as what information plaintiff’s decedent had regarding the
statement of health form requirement via online prompt; what information would be disclosed in
the statement of health and whether the daily presence of plaintiff’s decedent at work was
sufficient to establish insurability. Case remanded for determination whether MetLife abused its
discretion.
7.
Kern v. Goebel Fixture Co., 765 F.3d 871 (8th Cir. 2014). Suit by trustees
of pension plan against employer for unpaid benefit contributions failed as the trust agreement
“unambiguously” required contributions be made only for union employees and contributions
being sought were for non-union employees.
8.
Hampton v. Reliance Standard Life Ins. Co., 769 F.3d 597 (8th Cir. 2014).
Plan administrator’s interpretation of disability benefits plan to require evidence plaintiff was
“physically or mentally incapable of performing the material duties of his occupation”
independent of loss of his truckers license was reasonable. An interpretation that loss of a license
due to sickness or injury qualified the claimant for benefits would render the loss-of-license
provision meaningless. In this case, while diagnoses of diabetes mellitus prevented plaintiff from
working as an over-the-road trucker because of DOT regulations, no doctor identified physical
limitations on plaintiff’s ability as a result of his diabetes.
9.
Cole v. Trinity Health Corp., 774 F.3d 423 (8th Cir. 2014). District court’s
denial of statutory damages for plan administrator’s failure to notify plaintiff of right to
continuing health coverage when plaintiff stopped working for employer was not an abuse of
discretion. Court found plan administrator did not willfully fail to make statutory notification,
extended free health care coverage to plaintiffs for nearly eleven months, and the amount of
uncovered benefits at issue was less than the amount of what plaintiffs’ COBRA premiums
would have been.
10.
Ibson v. United Healthcare Services, Inc., 776 F.3d 941 (8th Cir. 2014),
petition for cert. filed (3/12/2015)(No. 13-3153). Although agreeing plaintiff’s state law breach
of contract, negligence and bad faith claims against her health insurer were preempted under
ERISA, the circuit remanded the case for reconsideration of whether her complaint was filed
outside the contractual limitations period as the record on application of a second limitations
paragraph in the policy was not developed at the trial court level and the trial court based its
limitations decision on another paragraph in the policy which defendant insurer agreed was
improper.
Hon. Ross Walters - 62
11.
Brake v. Hutchinson Technology Inc., 774 F.3d 1193 (8th Cir. 2014). Plan
administrator did not abuse its discretion in denying plaintiff enhanced pay-out benefits under
her long-term disability insurance plan, even though she had purchased optional "buy-up"
coverage. Plaintiff fell within the 12-month window of the pre-existing condition limitation in
the "buy-up" coverage, which was not considered a new plan or "prior policy" since it was from
the same insurer and the same plan. Plaintiff was not denied benefits altogether, just a higher
monthly payment.
12.
Johnson v. United of Omaha Life Ins. Co., 775 F.3d 983 (8th Cir. 2014).
Finding the plan language granted administrator discretion to determine eligibility for benefits,
the alleged procedural irregularities in processing plaintiff's long-term disability claim (lost or
misplaced records, failure to timely process claims or to submit additional evidence for physician
review) would not have changed the outcome of the administrator's determination and the denial
was based on substantial evidence given two physicians agreed on the physical limitations
arising from plaintiff's medical condition.
VI.
PRISONERS' RIGHTS
A.
First Amendment
1.
Holt v. Hobbs,
U.S.
, 135 S. Ct. 853 (2015). The Supreme Court
holds that state department of corrections policy prohibiting plaintiff from growing a ½-inch
beard based on his religious beliefs violated RLUIPA. While the department's interest in
regulating contraband was compelling, in practical terms a ½-inch beard did not compromise that
interest as it would be difficult to hide contraband in a short bear.
2.
Native American Council of Tribes v. Weber, 750 F.3d 742 (8th Cir.
2014). Inmates established that use of tobacco during Lakota religious ceremonies was "religious
exercise" under RLUIPA and that a total ban on tobacco in prisons was a substantial burden on
their exercise of religious beliefs. Against that defendants failed to show the ban was the least
restrictive means of furthering the compelling governmental interest in abuse of tobacco
affecting prison security. The evidence showed several alternatives to which defendants did not
give meaningful consideration or even test: they did not consider a further decrease in the
amount of tobacco in the mixture used in ceremonies.
3.
Sanders v. Hobbs, 773 F.3d 186 (8th Cir. 2014). Summary judgment
should have been granted in favor of correctional officer against whom inmate brought § 1983
claim alleging retaliatory discipline because the inmate had filed grievances against the officer.
As there was “some evidence” to support the charged rule violation, the disciplinary charge
could not be the basis for retaliatory discipline claim. Case remanded for dismissal of complaint.
4.
Brooks v. Roy, 776 F.3d 957 (8th Cir. 2015). Prison inmate's complaint
that mandatory placement in a chemical-dependency program deprived him of his right to free
exercise of his Native American religious faith failed on motion to dismiss as he did not specify
what religious belief or practice was burdened by the requirement.
Hon. Ross Walters - 63
B.
Eighth Amendment
1.
Edwards v. Byrd, 750 F.3d 728 (8th Cir. 2014). Correctional officers were
not entitled to qualified immunity on summary judgment in case involving excessive use of force
against pretrial detainees. During jail altercation, plaintiffs (who were not involved in the events)
were not resisting or acting aggressively in their pod, yet guards used a "flash-bang grenade in
close quarters, kicked the compliant detainees, and shot them with bean-bag guns," all of which
could show the guards did not use the force for lawful purposes. Video from security cameras
did not support the guards' version of the facts as the pod in which detainees were lodged could
not be seen on the video.
2.
Walls v. Tadman, 762 F.3d 778 (8th Cir. 2014). Plaintiff inmate’s Eighth
Amendment claims that prison officials failed to protect him from attack by other inmates failed.
The evidence showed after first attack plaintiff declined protective custody and declined to report
an enemy situation with the other inmate.
3.
Laganiere v. County of Olmstead, 772 F.3d 1114 (8th Cir. 2014). In the
absence of evidence that deputy jailer knew plaintiff’s decedent suffered serious side effects
from methadone treatment, deliberate indifference to medical needs claim failed. Evidence
showed jailer observed decedent sleeping in his cell which was not an event which might call for
medical attention and checked him on schedule until he was found dead on the last check.
4.
Reeves v. King, 774 F.3d 430 (8th Cir. 2014). In Eighth Amendment case
arising after correctional officer called plaintiff a snitch in the presence of other inmates, officer
was not entitled to qualified immunity as it was clearly established his actions violated plaintiff’s
constitutional rights to protection from harm.
5.
Allard v. Baldwin, 779 F.3d 768 (8th Cir. 2015). Plaintiff's lawsuit
alleging deliberate indifference in violation of the Eighth Amendment failed although he
demonstrated he suffered an objectively serious medical need as the result of a bowel
obstruction/perforation; however, a misdiagnosis of constipation while perhaps negligent did not
raise to a constitutional claim and the care given plaintiff was not constitutionally inadequate as
prison staff tried numerous treatments and responded to plaintiff's complaints.
C.
Miscellaneous
1.
Newmy v. Johnson, 758 F.3d 1008 (8th Cir. 2014). Plaintiff’s Due Process
claim against his parole officer that false reports by the officer resulted in revocation of
plaintiff’s parole was barred by Heck, even though plaintiff was no longer in custody on the
underlying parole revocation at the time he brought suit.
Hon. Ross Walters - 64
2.
Smith v. Johnson, 779 F.3d 867 (8th Cir. 2015). Inmate's s 1983 claim
against correctional officer alleging violation of plaintiff's Eighth Amendment rights by placing
him where another inmate could attack him and then punishing plaintiff for the fight was not
barred by claim or issue preclusion even though he had submitted a claim regarding the incident
with the state claims commission. The state commission did not have jurisdiction to address a
constitutional claim against the officer as an individual and the constitutional claim was not the
same issue decided by the commission, which held only that plaintiff failed to prove negligence.
3.
Porter v. Sturm,
F.3d
, 2015 WL 1297080 (8th Cir. 3/23/2015).
While delays in responding to plaintiff inmate's grievances were "apparently unjustifiable," they
did not prevent him from using the mandated grievance procedures; therefore plaintiff failed to
exhaust his administrative remedies before bringing his § 1983 action claiming discipline was
unlawful retaliation for filing an unrelated § 1983 case.
VII.
MISCELLANEOUS
1.
Environmental Protection Agency v. EME Homer City Generation, L.P.,
U.S.
, 134 S. Ct. 1584 (2014). EPA's promulgation of the Cross-State Air Pollution Rule
(Transport Rule) aimed at curbing certain emissions from "upwind" states, which was
promulgated in response to decisions from the D.C. Circuit concerning the adequacy of the
agency's attempt to regulate those emissions, was authorized by the Clean Air Act and the
Transport Rule was an "equitable interpretation" of the Good Neighbor Provision of the Act. The
EPA did not need to give states a second chance to file implementation plans when their
interstate pollution obligations have been determined by the Agency.
2.
Octane Fitness, LLC v. Icon Health & Fitness, Inc.,
U.S.
, 134
S. Ct. 1749 (2014) and Highmark, Inc. v. Allcare Health Mgt. Sys., Inc.,
U.S.
, 134 S.
Ct. 1744 (2014). Addressing the "exceptional cases" language in the fee-shifting provision of the
Patent Act, the Supreme Court holds the analytical framework of Brooks Furniture Mfg. (a
Federal Circuit case) "encumber[ed]" the discretion of the district courts granted by the statute
and was too inflexible, holding that district courts could determine the "exceptional" nature of a
case on a case-by-case basis under a "totality of the circumstances" standard.
3.
Petrella v. Metro-Goldwyn-Mayer, Inc.,
U.S.
, 134 S. Ct. 1962
(2014). The Supreme Court holds that in Copyright Act case arising from rights to Raging Bull
story laches could not be invoked as a bar to the surviving owner’s damages claim which was
brought within the three-year window permitted by 17 U.S.C. § 507(b).
4.
Nautilus, Inc. v. Biosig Instruments, Inc.,
U.S.
, 134 S. Ct. 2120
(2014). In the context of a dispute whether the patent for a heart rate monitor had been infringed,
the Supreme Court fleshed out the standard to be used in determining the “definiteness”
requirement of ¶ 2 of 35 U.S.C. § 112, holding the standard should “take into account the
inherent limitations of language [but] . . . be precise enough to afford clear notice of what is
claimed.”
Hon. Ross Walters - 65
5.
Limelight Networks, Inc. v. Akamai Technologies, Inc.,
U.S.
,
134 S. Ct. 2111 (2014). Where operator of a content delivery network (CDN) which delivered
electronic data carried out some of the steps claims in plaintiff’s patent for its CDN but left some
steps to its customers, defendant could not be held liable for inducing infringement of the patent.
6.
Scialabba v. Cuellar de Osorio,
U.S.
, 134 S. Ct. 2191 (2014).
The Supreme Court defers to the Board of Immigration’s interpretation of the Child Status
Protection Act as requiring immigration petitioners who “age out” or reach age 21 while their
visa petition is pending to “go to the back of the line” unless the existing petition can be
“seamlessly converted from one family preference category to another without the need for a
new sponsor.”
7.
CTS Corp. v. Waldburger,
U.S.
, 134 S. Ct. 2175 (2014). In this
CERCLA case, the Supreme Court holds a federal statute which pre-empts state law statutes of
limitations, 42 U.S.C. § 9658, does not pre-empt state statutes of repose, which are measured
differently than a statute of limitations and have a different purpose.
8.
POM Wonderful LLC v. Coca-Cola Co.,
U.S.
, 134 S. Ct. 2228
(2014). The Supreme Court holds that competitors may bring Lanham Act claims which
challenge food and beverage labels regulated by the FDCA. Here POM filed a Lanham Act
lawsuit against Coca-Cola, alleging Coca-Cola was falsely labeling a fruit juice product in a way
which suggested it contained more pomegranate and blueberry juice than it actually contained,
causing POM to lose sales on its pomegranate-blueberry juice blend. Coca-Cola argued the
FDCA precluded the private Lanham Act claims.
9.
Clark v. Rameker,
U.S.
, 134 S. Ct. 2242 (2014). In this case the
Supreme Court held that funds held in inherited IRAs were not exempt “retirement funds” for
purposes of Chapter 7 bankruptcy.
10.
United States v. Clarke,
U.S.
, 134 S. Ct. 2361 (2014). The
Supreme Court holds that a taxpayer who is summoned by the IRS has the right to conduct
examination of the officials to probe the reasons for issuing summons upon a showing of
“specific facts or circumstances” from which an inference of bad faith could be drawn.
11.
Alice Corp. v. CLS Bank Intl.,
U.S.
, 134 S. Ct. 2347 (2014). In
this patent case, the Supreme Court holds that the addition of a generic computer to a process
using an abstract idea does not convert the claims offered for patent into a concept which is
patent-eligible, particularly where the computer itself is not improved nor any technology or
technical field.
12.
Utility Air Regulatory Group v. EPA,
U.S.
, 134 S. Ct. 2427
(2014). This is the “greenhouse gases” case – the Supreme Court holds the EPA could not
interpret the Clean Air Act as requiring a pollutant-producing source to obtain a “Prevention of
Significant Deterioration” (PSD) or Title V permit solely on the basis of potential
greenhouse-gas emissions, but the EPA could require sources needing permits based on emission
of conventional pollutants to comply with BACT (“best available control technology”), which
covers greenhouse gases.
Hon. Ross Walters - 66
13.
Halliburton Co. v. Erica P. John Fund, Inc.,
U.S.
, 134 S. Ct.
2398 (2014). In this continuing battle between the parties in a private securities fraud action, the
Supreme Court holds that Halliburton’s price impact evidence could only be used at trial to rebut
the presumption of reliance of Basic Inc. v. Levinson and not at the class certification stage,
affirming the trial court’s class certification.
14.
American Broadcasting Co. v. Aereo, Inc.,
U.S.
, 134 S. Ct.
2498 (2014). The Supreme Court holds that the conduct of Aereo, an internet service which live
streams television content from other broadcasters to its subscribers, is public performance of the
broadcaster’s copyrighted works which is covered by the Transmit Clause of the Copyright Act.
15.
Jesinoski v. Countrywide Home Loans,
U.S.
, 135 S. Ct. 790
(2015). A case out of the Eighth Circuit: The Supreme Court holds that to exercise a right to
rescind a home mortgage under the Truth in Lending Act, a borrower does not have to file suit
within the 3-year period after borrowing the money, instead need only provide written notice of
exercise of rescission rights.
16.
T-Mobile South, LLC v. City of Roswell, GA,
U.S.
, 135 S. Ct.
808 (2015). City violated the Telecommunications Act of 1996 when it issued a written denial of
petitioner's cell phone tower application without contemporaneous written reasons for the denial.
In this case, the City issued detailed minutes of the hearing which resulted in the denial 26 days
after the denial letter had been sent to petitioner, which the Supreme Court failed to comply with
the City's statutory obligations.
17.
Hana Financial, Inc. v. Hana Bank,
U.S.
, 135 S. Ct. 907
(2015). In trademark litigation concerning application of the "tacking doctrine" (under which a
trademark user may make modifications to its mark over time without losing its priority
position), the Supreme Court holds the question whether two trademarks may be tacked for
purposes of determining priority is a jury question and not to be determined by the court as a
matter of law.
18.
Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc.,
U.S.
, 135 S.
Ct. 831 (2015). The Supreme Court holds that review of a district court's determination of
subsidiary factual matters made in the course of constructing a patent claim should be on a "clear
error" basis and not de novo review by the Federal Circuit.
19.
Kansas v. Nebraska,
U.S.
, 135 S. Ct. 1042 (2015). In dispute
under water allocation agreement (over which the Supreme Court has original jurisdiction), the
Supreme Court adopts the findings of a Special Master determining Nebraska had failed to
comply with its settlement obligations and requiring Nebraska to pay $1.8 million to Kansas in
disgorgement.
20.
Direct Marketing Ass'n v. Brohl,
U.S.
, 135 S. Ct. 1124 (2015).
Federal lawsuit by trade association against Colorado Department of Revenue alleging law
requiring retailers who did not collect sales or use taxes to notify customers of the state sales and
use tax requirements and report tax-related information to those customers and to the state
Department of Revenue was not barred by the Tax Injunction Act.
Hon. Ross Walters - 67
21.
Alabama Dep't of Revenue v. CSX Transportation,
U.S.
, 135 S.
Ct. 1136 (2015). Alabama's imposition of sales and use taxes on railroads purchasing diesel fuel
but exempting motor carriers and water carriers from those taxes could be challenged as
discrimination against a rail carrier in violation of the Railroad Revitalization and Regulation
Reform Act of 1976 – the motor carriers and water carriers were appropriate comparison class
for purposes of the railroad carrier's claim but the Eleventh Circuit erred in not allowing the state
to justify its decision to use this asymmetric statute because it imposed fuel excise taxes on
motor carriers.
22.
Dep't of Transportation v. Ass'n of American Railroads,
U.S.
,
135 S. Ct. 1225 (2015). With respect to Association's challenge to metrics and standards which
govern the performance and scheduling of passenger railroad services, Amtrak was rightfully
considered a governmental entity as it had joint authority with the Federal Railroad
Administration to issue those standards, the government controlled most of Amtrak's stock, its
board of directors was mostly appointed by the President and subject to confirmation by the
Senate.
23.
Perez v. Mortgage Bankers Ass'n,
U.S.
, 135 S. Ct. 1199 (2015).
Challenge to Department of Labor's change in its interpretation of administrative exemption to
overtime pay requirements for mortgage-loan officers, which DOL issued without notice or
comment period. The Supreme Court held the Paralyzed Veterans doctrine (holding an agency
must use notice-and-comment procedures before issuing a new interpretation of a regulation)
was contrary to the APA's exception for interpretive rules from notice-and-comment process and
the DOL was not required to give notice or request comment in this case.
24.
Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund,
U.S.
,
S. Ct.
, 2015 WL 1291916 (3/24/2015). In lawsuit challenging the adequacy
of petitioner's disclosures made in connection with its public offering of stock, case remanded for
consideration whether complaint adequately alleged omission of "some specific fact that would
have been material to a reasonable investor," and if so, whether that omission made petitioner's
statements misleading in violation of 15 U.S.C. § 11 of the Security Act.
25.
BLB Aviation South Carolina, LLC v. Jet Linx Aviation, LLC, 748 F.3d
829 (8th Cir. 2014). In contract dispute over leases of aircraft between the parties, trial court did
not err in finding no accord and satisfaction occurred as a result of plaintiff’s depositing a check
which did not match the total amount due because defendant did not condition receipt of the
check as full payment on the account, nor did the court err in finding an oral modification of the
contracts had not occurred.
26.
Farm Credit Services of America v. Cargill, Inc., 750 F.3d 965 (8th Cir.
2014). Cargill's sale of corn in which Farm Credit Services had a perfected security interest did
not convert Farm Credit's subsequent replevin suit under the Food Security Act from one seeking
the corn to one seeking payment on an account under the UCC (which would entitle Cargill to
offset its claims against Farm Credit's claim).
Hon. Ross Walters - 68
27.
In re Interstate Bakeries Corp., 751 F.3d 955 (8th Cir. 2014). In
concluding that an agreement between debtor baking company and company to which it sold a
portion of its operations and assets was an executory contract under 11 U.S.C. § 365(a),
bankruptcy court should have considered both the licensing agreement at issue and the asset
purchase agreement as part of an integrated contract. The circuit concludes the contract was not
executory as the debtor’s subsidiary substantially performed its obligations under the integrated
agreement.
28.
Armstrong v. Berco Resouces, LLC, 752 F.3d 716 (8th Cir. 2014).
Purchase agreement concerning interests in oil wells conveyed only an interest in wellbores, not
a leasehold interest in the property on which the subject wells were located, therefore plaintiff’s
quiet title claim failed, as did his trespass and royalty claims.
29.
In re Wholesale Grocery Products Antitrust Litigation, 752 F.3d 728 (8th
Cir. 2014), petition for cert. filed, 83 U.S.L.W. (1/16/2015)(No. 14-891, 14A490). Where
non-compete agreement between grocery wholesalers was “not a pure, horizontal division of
customers or geographic territories,” district court erred in assuming a per se violation of
antitrust laws was not established, nor were wholesalers entitled to summary judgment on a rule
of reason basis. Genuine issues of material fact concerning the terms of the non-compete
prevented summary judgment.
30.
First Tennessee Bank N.A. v. Pathfinder Exploration, LLC, 754 F.3d 489
(8th Cir. 2014). In another oil lease case, a “nonabrogable bonus” provision in an oil lease was
separate from a drilling requirement in a separate letter agreement; therefore, when lessee
surrendered the entirety of the lease before end of the primary term after making the up front
payment at the beginning of the lease, it was not required to pay a “failure to drill” liquidated
damages charge found in the separate agreement.
31.
Kmak v. American Century Companies, Inc., 754 F.3d 513 (8th Cir. 2014).
Plaintiff’s claim of breach of implied covenant of good faith and fair dealing against former
employer, based on its action in calling shares of stock plaintiff had purchased during his
employment after plaintiff testified against the former employer in an arbitration proceeding
against JPMorgan, sufficiently alleged the circumstances of his claim under Missouri law to
withstand defendant’s motion to dismiss for failure to state a claim.
32.
Hammer v. Sam’s East, Inc., 754 F.3d 492 (8th Cir. 2014), cert. denied,
135 S. Ct. 1175 (2015). While Sams’s Club violated FACTA by printing more than five numbers
of its customers membership card numbers on shopping receipts, trial court did not err in finding
the act was not a willful violation. Sam’s could reasonably have interpreted the statute as not
applying to membership designations.
Hon. Ross Walters - 69
33.
Choice Escrow and Land Title, LLC v. BancorpSouth Bank, 754 F.3d 611
(8th Cir. 2014). After plaintiff’s employee’s computer contracted a computer virus which gave
an unknown third party access to the employee’s username, password, and computer
characteristics, the risk of loss which plaintiff incurred after the third party accessed plaintiff’s
account and directed payment of $440,000 to an overseas account remained plaintiff’s.
Defendant bank’s security measures were commercially reasonable, plaintiff declined additional
security measures which were offered by the bank and the bank was not required to perform a
transactional analysis on plaintiff’s account.
34.
Chew v. American Greetings Corp., 754 F.3d 632 (8th Cir. 2014). Local
business did not have a duty under state law to label its electrical system or to warn workers from
electrical company about the unique nature of the transformers on business premises. Plaintiffs
had been trained to measure voltage, knew the transformer was energized and yet approached it
anyway based on an incorrect belief of the total voltage the transformer carried.
35.
Graham Construction Services, Inc. v. Hammer & Steel, Inc., 755 F.3d
611 (8th Cir. 2014). In dispute over lease of drilling equipment, Missouri’s economic loss
doctrine barred recovery on plaintiff’s negligent misrepresentation claim which was phrased as
relying on defendant’s assurance the equipment leased was suitable for the project.
36.
Allstate Indemnity Co. v. Rice, 755 F.3d 621 (8th Cir. 2014). Umbrella
policy provided coverage only for the legal obligations of insured persons. As a permissive
driver, plaintiff’s son-in-law was not an insured person under the policy; therefore, the insurer
did not have to pay under the policy.
37.
White v. NFL, 756 F.3d 585 (8th Cir. 2014). In a continuing punting battle,
the players and NFL collided yet again after settling claims arising at the expiration of a previous
settlement agreement regarding salaries. Players brought new litigation alleging the owners had
colluded to cap salaries during the period of time under which no agreement cap was to exist.
The circuit upheld the effectiveness of the most recent dismissal/settlement as precluding those
claims, even in the face of post-settlement information that might have supported the collusion
aspect of the claim, finding that Rule 23 approval procedures were not required as a “true class
settlement” was not involved.
38.
United States ex rel. Kraxberger v. Kansas City Power and Light Co., 756
F.3d 1075 (8th Cir. 2014). False Claims Act claims concerning installation of electric boilers and
chillers in federal building were partially barred by public disclosure as a result of GSA’s
response to a FOIA request for information pertaining to some of the same claims.
39.
enXco Dev. Corp. v. Northern States Power Co., 758 F.3d 940 (8th Cir.
2014). In a renewable energy project deal structured through two contracts, one of which did not
take effect until the first was closed, district court did not err in granting summary judgment to
defendant company who terminated contract after plaintiff company failed to fulfill a condition
precedent in the first contract. Doctrine of temporary impracticability did not apply and plaintiff
did not suffer disproportionate forfeiture as it retained title to real estate and assets involved in
the project.
Hon. Ross Walters - 70
40.
Pinson v. 45 Development, LLC, 758 F.3d 948 (8th Cir. 2014). In the face
of evidence that canopy design for storefront was an open and obvious hazard that plaintiff was
not forced to use in order to accomplish his job installing a new light sign, plaintiff failed to
show that the business had a duty of care towards him; nor under Arkansas law did the store owe
him a duty as the employee of an independent contractor because the danger he encountered in
accessing the sign was part of his job.
41.
Amana Society, Inc. v. GHD, Inc., 758 F.3d 954 (8th Cir. 2014). Plaintiff’s
negligent misrepresentation claim against engineering firm which evaluated plaintiff’s design for
an anaerobic digester failed as plaintiff could not show justifiable reliance on the certification.
Plaintiff did not build the digester by the design the engineering firm certified; therefore, the firm
made no representations.
42.
United Fire & Cas. Ins. Co. v. Thompson, 758 F.3d 959 (8th Cir. 2014). In
case involving insurance coverage for a supervisory level employee involved in an accident
injuring a co-employee, supervisory employee did not qualify as a “director” under the policy as
he was not a member of the company’s board of directors but only “directed” some of the
company’s activities; therefore, employee was not an insured under the commercial general
liability policy.
43.
McCarty v. Southern Farm Bureau Cas. Ins. Co., 758 F.3d 969 (8th Cir.
2014). In the absence of a sworn proof of loss statement or an adjuster’s report of loss signed by
plaintiff, insurer correctly denied plaintiff’s flood claim under his standard flood insurance
policy which he applied for five days after his hunting property flooded. The fact plaintiff signed
a non-waiver agreement did not waive the proof of loss requirement.
44.
Fellowship of Christian Athletes v. AXIS Ins. Co., 758 F.3d 982 (8th Cir.
2014). Accident in which two boys drowned was held to be one occurrence under the applicable
commercial general liability policy providing coverage for FCA, which had been sued by the
boys’ families. While the boys may have been under the care of two different camp counselors,
the court held a single act occurred in allowing the boys to attend a swim party when permission
forms signed by the parents indicated the boys were non-swimmers.
45.
BVS, Inc. v. CDW Direct, LLC, 759 F.3d 869 (8th Cir. 2014). In dispute
over alleged contract for computer storage area network which defendant attempted,
unsuccessfully, to provide to plaintiff, material issues of fact whether this transaction differed
qualitatively from the parties’ prior course of dealing, whether a post-agreement invoice
integrated the agreement, and whether oral promises provided warranties required reversal of
summary judgment which had been granted in favor of defendant and remand for trial.
46.
Packard v. Darveau, 759 F.3d 897 (8th Cir. 2014). Owners of property on
which an event sponsored by the Jaycees (a demolition derby and tractor pull) was being held did
not owe a duty of care to travelers on roads leading to the event, therefore, plaintiff’s negligence
and wrongful death claims arising from death of her husband after defendant entered husband’s
lane of travel to turn left into the event failed to state a claim under Nebraska law.
Hon. Ross Walters - 71
47.
Harris v. FedEx National LTL, Inc., 760 F.3d 780 (8th Cir. 2014).
Employee of subhaul (or “power only”) transportation subcontractor was correctly determined to
be an independent contractor under Nebraska law, not an employee of FedEx at the time of
accident. Plaintiffs’ motion for leave to amend to add a negligent hiring claim against FedEx was
properly denied as the motion was untimely under the scheduling order deadlines and plaintiffs
failed to show good cause for their untimely filing.
48.
Duban v. Waverly Sales Co., 760 F.3d 832 (8th Cir. 2014). District court
correctly held defendant, a sales barn corporation, was not entitled to immunity under the Iowa
statutory general immunity granted to domesticated animal activity sponsors because the place
where an accident happened (a horse stepped on plaintiff in an alley area of the sales barn) was
an area where defendant intended spectators and participants to be present, a specific exception
to the statutory immunity provision.
49.
Topchian v. JPMorgan Chase Bank, 760 F.3d 843 (8th Cir. 2014). In
lawsuit arising from loan modification process, pro se litigant had alleged sufficient facts to
support a claim for breach of contract under Missouri law, but not for fraudulent or negligent
misrepresentation or unjust enrichment.
50.
Syfco v. Encompass Indemnity Co., 761 F.3d 867 (8th Cir. 2014). In
insurance coverage dispute arising after broken shower pipe caused water damage under a false
basement floor, district court erred in granting summary judgment in favor of insurer. The policy
used terms “seepage” and “leakage” to refer to two different processes, the latter of which would
result in a covered event, and court erroneously determined damage resulted from the former.
51.
Grandoe Corp. v. Gander Mountain Co., 761 F.3d 876 (8th Cir. 2014).
Manufacturer which prevailed on its breach of oral contract claim against company which orally
committed to purchasing $3.05 million of winter gloves was entitled to prejudgment interest on
its $1.5+million verdict. Damages were ascertainable as of date defendant notified plaintiff it
would not purchase all the gloves previously agreed upon.
52.
J-McDaniel Construction Co. v. Mid-Continent Cas. Co., 761 F.3d 916
(8th Cir. 2014). Applying Arkansas law existing at the time of construction, commercial general
liability policy issued to residential construction general contractor did not provide coverage for
faulty workmanship by subcontractors, which did not qualify as an “occurrence” under the terms
of the policy.
53.
ASARCO, LLC v. Union Pacific RR Co., 762 F.3d 744 (8th Cir. 2014). In
CERCLA action involving a former lead refinery and smelter in Omaha, NE, owner of the site
(UP) which leased it to the smelting and refining company (Asarco) was protected from Asarco’s
contribution claims under a consent decree UP entered into with the EPA. Asarco could have
commented on the consent decree proceedings during public notice and comment period but did
not.
Hon. Ross Walters - 72
54.
Brown v. Brown-Thill, 762 F.3d 814 (8th Cir. 2014). After family trusts
and partnerships had problems resolving management conflicts, trusts signed a broad arbitration
agreement. This lawsuit involved challenge to multiple awards made under the agreement. The
circuit holds ex parte contacts with individual family members prior to an arbitration hearing did
not establish partiality on the part of the arbitrator; nothing arbitrator did was improper; the
arbitrator was not required to hold a hearing; and the arbitrator was authorized by the agreement
to engage in informal procedures.
55.
United States ex rel. Paulos v. Stryker Corporation, 762 F.3d 688 (8th Cir.
2014). Relator’s claim that manufacturers marketed pain pumps for placement in joint spaces
while failing to disclose material information about the dangers of such placement failed to make
out a qui tam claim as the information had already been publicly disclosed.
56.
Nebraska Machinery Co. v. Cargotec Solutions, LLC, 762 F.3d 737 (8th
Cir. 2014). Defendant was entitled to jury trial on issues whether parties had agreed to arbitration
and indemnification provisions after exchanging purchase orders for sale of heavy machinery
equipment.
57.
El Dorado Chemical Co. v. U.S. EPA, 763 F.3d 950 (8th Cir. 2014). In
evaluating manufacturer’s proposed change to state water quality standard, EPA had authority to
consider downstream effects of proposed limits on dissolved minerals and the manufacturer
failed to show downstream waters would be protected by a state permit program.
58.
PSC Custom, LP v. United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers Intern. Union, Loc. No. 11-770,
763 F.3d 1005 (8th Cir. 2014). Arbitrator did not err in proceeding to a just cause (for discharge
of union’s employee) analysis after concluding the employee had been insubordinate. Arbitrator
had authority to interpret the CBA, which included not only the clause describing
insubordination but also a clause requiring no employee be discharged without just cause, and to
harmonize the provisions.
59.
National Union Fire Ins. Co. of Pittsburgh v. Raczkowski, 764 F.3d 800
(8th Cir. 2014). An individual opened a d/b/a account using his employer’s business name, then
deposited checks from his employer’s customers and used the money personally. After the
business and its insurer settled with the customers, the insurer sued the bank for negligently
failing to inquire into the employee’s authority to open a d/b/a account. Although there was no
Missouri precedent on the topic of the fiduciary duty a bank owed a non-customer third party,
the circuit declined to find such a duty.
60.
NE Colorado Cellular, Inc. v. City of North Platte, NE, 764 F.3d 929 (8th
Cir. 2014). City council decision denying cellular company’s application to build
telecommunications tower in city, on ground the tower would not be harmonious with the
neighborhood, was both “in writing” as the council passed a formal resolution and “supported by
substantial evidence” based on testimony of residents at a public hearing.
Hon. Ross Walters - 73
61.
Key Medical Supply, Inc. v. Burwell, 764 F.3d 955 (8th Cir. 2014).
Judicial review of agency action (which implemented a competitive bidding system for products
which plaintiff medical equipment vendor had offered in state of Minnesota under the prior
government-defined price schedule) was statutorily barred. The statutory bar was broad and
agency’s action in response to statutory requirements was not ultra vires nor a violation of the
agency’s statutory authority.
62.
Doe v. Hagar, 765 F.3d 855 (8th Cir. 2014). Plaintiff was entitled to jury
trial on her claim of libel per se arising from a rock musician’s depiction of her as a schemer and
extortionist in his autobiography published over twenty years after they were romantically
involved. Fact issues on the publication element (whether individuals read statements in the book
on their own or after plaintiff pointed them out), the “of and concerning plaintiff” element (the
need for extrinsic knowledge to identify plaintiff as the subject of the statements did not
invalidate the claim under Iowa law) and the defense of substantial truth, as well as on plaintiff’s
false light invasion of privacy and breach of contract claims, required reversal of summary
judgment in defendant’s favor.
63.
Occidental Fire & Cas. Co. v. Soczynski, 765 F.3d 931 (8th Cir. 2014). In
determining bobtail policy provided coverage for damages arising from a tractor-trailer accident,
that defendant took position in state court proceedings he was operating the tractor-trailer under
the authority of one employer at the time of the accident but in the federal proceedings contended
he was acting on his own behalf did not require application of judicial estoppel principles as the
state court claim settled and plaintiff did not “prevail” on the merits of the claim.
64.
G & K Services Co. v. Bill’s Super Foods, Inc., 766 F.3d 797 (8th Cir.
2014). In case involving plaintiff’s claim for breach of contract and defendant’s cross-claim for
violation of state statute governing deceptive trade practices, although plaintiff prevailed on
breach of contract claim which entitled it to award of attorney’s fees, defendant prevailed on its
statutory cross-claim which also permitted an award of attorney fees in the court’s discretion.
The trial court held the prevailing party rule was not “trumped” by the statutory fee award and
awarded fees only to plaintiff. On appeal the circuit holds that because the statutory cause of
action provided an independent basis for a fee award and did not restrict awards to the prevailing
party, trial court should re-consider on remand whether defendant should also be awarded
attorney fees.
65.
Hudson Specialty Ins. Co. v. Brash Tygr, LLC, 769 F.3d 586 (8th Cir.
2014). In dispute concerning coverage for an accident involving a non-owned vehicle under the
terms of a commercial general liability policy, dual purpose doctrine under Missouri law was
improperly applied by the state court in underlying proceedings because the court failed to make
a finding the driver’s acceptance of corporate deposit bags while he was at the bank on personal
errands was a business necessity for the insured corporation. There was no evidence the
corporation had to make a special trip to the bank for them if the driver had not accepted them.
Therefore, driver was not acting in the course of the insured’s business and insurer was entitled
to summary judgment on the coverage issue. Insurer was not collaterally estopped from litigating
the coverage issue as it was not a party in the state court action and could not intervene after the
insured rejected the insurer’s offer to defend under a reservation of rights.
Hon. Ross Walters - 74
66.
Hot Stuff Foods, LLC v. Houston Cas. Co., 771 F.3d 1071 (8th Cir. 2014).
In this coverage dispute, the circuit finds that coverage for costs of voluntary recall, which
plaintiff food products manufacturer undertook after it discovered some of its MSG-containing
sausage was used in a breakfast sandwich product which did not disclose the presence of MSG
on label, was a factual question which required submission to a jury, reversing grant of partial
summary judgment on plaintiff’s motion asserting the incident fell within Accidental Product
Contamination provisions.
67.
Brinkley v. Pfizer, Inc., 772 F.3d 1133 (8th Cir. 2014). Plaintiff’s state law
strict liability, design defect, strict liability failure to warn, negligence, breach of express and
implied warranties against manufacturer of a generic drug equivalent to Reglan failed as most of
her claims were preempted by the FDCA. Under Missouri’s “learned intermediary doctrine” the
fact plaintiff’s physician did not know of a warning about the long-term effects of use of the
generic equivalent did not matter as the physician did prescribe the generic equivalent and relied
on the warnings from the manufacturer of Reglan in prescribing that medication.
68.
McIvor v. Credit Control Services, Inc., 773 F.3d 909 (8th Cir. 2014).
Credit card company’s report to TransUnion to investigate plaintiff’s disputed debt claim,
without mention that plaintiff had disputed the debt, was not false or misleading for purposes of
the FDCPA as TransUnion was not a consumer (for whom the statute was intended), TransUnion
knew the debt was disputed because it was TransUnion which contacted the credit card
company, court could not take judicial notice of how TransUnion calculated credit scores, and
credit card company was not attempting to get plaintiff to pay a debt; therefore, plaintiff’s
complaint failed on motions for summary judgment/judgment on the pleadings.
69.
Syngenta Seeds, Inc. v. Bunge North America, Inc., 773 F.3d 58 (8th Cir.
2014). Circuit holds that the United States Warehouse Act, 7 U.S.C. § 245(a), (d), does not
expressly or impliedly permit a private cause of action for breach of the fair treatment obligation
a federally licensed warehouse operator owes to depositors of agricultural products. Case
remanded for consideration of Syngenta’s false advertising claim under the Lanham Act.
70.
Paulino v. Chartis Claims, Inc., 774 F.3d 1161 (8th Cir. 2014). In case
involving claim of bad-faith denial of insurance benefits to workers' compensation claimant,
insurer could reasonably believe it was not required to cover plaintiff's claims for nonmedical
living expenses as prior case law had found living expenses were not the responsibility of the
employer and thus the claim was fairly debatable.
71.
Smith v. Parker, 774 F.3d 1166 (8th Cir. 2014). District court carefully
and correctly found Village of Pender, Nebraska fell within the boundaries of the Omaha Indian
Reservation pursuant to the 1882 Act and thus bar owners in or near Pender were subject to the
Omaha Indian Tribe's liquor-license and tax scheme.
72.
DRB #24 v. City of Minneapolis, 774 F.3d 1185 (8th Cir. 2014). Challenge
to city's vacant building registration fee and whether proper notice under the ordinance had been
given did not survive summary judgment. The basis for the fees was sufficiently given in the
phrase "vacant building registration" as it described what the costs were for; the language of the
notice informed plaintiff about deferment options and by failing to appeal within 30 days after
the assessment was levied, plaintiff waived substantive attacks on the fees.
Hon. Ross Walters - 75
73.
United States v. Bailey, 775 F.3d 980 (8th Cir. 2014). Government did not
breach settlement agreement which resolved plaintiff's lost property claim when it offset
outstanding child support obligations plaintiff owed against the amount he was to receive in
settlement – application of the settlement amount to his child support obligation was a financial
benefit to plaintiff and plaintiff had been given notice that any federal payments were subject to
offset before he entered into the settlement agreement.
74.
Lincoln Provision, Inc. v. Puretz, 775 F.3d 1011 (8th Cir. 2015). District's
determination of fair value of interest of disassociating member of limited liability company
(which the parties attempted to set up to acquire cattle-processing plants being sold at bankruptcy
auction) was incorrect as the evidence established the parties contemplated a proportional return
on capital contributions and the disassociating member did not make its agreed-upon capital
contribution beyond a $100,000 deposit into an escrow account for earnest-money deposit.
75.
Meecorp Capital Markets, LLC v. Oliver, 776 F.3d 557 (8th Cir. 2015).
Trial court did not err in finding a list of property values defendant provided contained
actionable misrepresentations as the values were provided in response to financier's request for
additional collateral to secure a loan defendant wanted, thus amounting to a representation of
ownership which was significant to plaintiff's decision to lend the funds requested.
76.
Northwest Airlines, Inc. v. Professional Aircraft Line Service, 776 F.3d
575 (8th Cir. 2015). In garnishment action against insurer following entry of default judgment
against maintenance company responsible for the crash of a commercial aircraft at the Las Vegas
airport, the circuit explored application of the "compulsory insurance doctrine" under Minnesota
law. Under that doctrine, the defense of the insured's failure to give notice of a claim or to
cooperate did not apply where the liability policy was issued in compliance with a compulsory
insurance statute – here the maintenance company's failure to defend the claims against it or to
cooperate with the insurance company did not stand as a bar to plaintiff's claims against the
insurer, particularly where plaintiff airline gave insurer notice of the claim a year before suit was
filed and the insurance company discontinued communications in spite of knowing about the
litigation.
77.
Acuity v. Johnson, 776 F.3d 588 (8th Cir. 2015). In a lawsuit to determine
which company was primary and which excess after a fatal accident involving a truck-trailer unit
and another car, insurer of the trailer had standing as potential excess insurer to challenge the
interpretation and application of contract terms in the policy the truck driver carried with another
insurance carrier.
78.
Yazdianpour v. Safeblood Technologies, 779 F.3d 530 (8th Cir. 2015).
Summary judgment on plaintiffs' fraud claims arising out of a licensing agreement to market
defendant's patented technology in other countries should not have been granted. Even though
status of patent was publicly available on USPTO website, the licensees "were not required to
investigate it unless it was apparent they were being deceived." Rumors that defendant had
previous dealings with another company relating to the patent did not make deception apparent
and there was evidence owner told the licensees he owned the rights outside the United States
when he knew it was too late to register the patent overseas.
Hon. Ross Walters - 76
79.
Zayed v. Associated Bank, N.A., 779 F.3d 727 (8th Cir. 2015). Complaint
that made allegations that bank, through an assistant vice president who helped Ponzi schemers
open accounts without proper documentation, allowed a non-signatory to those accounts transfer
large amounts of money to other accounts (including a personal account) included sufficient
factual allegations regarding the conduct to survive a motion to dismiss, requiring reversal of the
district court's order dismissing the case.
80.
North Central Rental & Leasing, LLC v. United States, 779 F.3d 738 (8th
Cir. 2015). District court correctly determined that IRS had properly declared certain transactions
involving the sale of equipment to a third party and the acquisition of replacement equipment
(like kind exchange transactions) required capital gains treatment and were not entitled to
nonrecognition treatment as advocated by plaintiff.
81.
Draper v. Colvin, 779 F.3d 556 (8th Cir. 2015). Because plaintiff was the
beneficiary of a settlement proceeds trust funded after the litigation about the car accident in
which she sustained serious personal injuries was settled, her assets placed her above the
eligibility limit for SSI benefits.
82.
Bancinsure, Inc. v. Highland Bank, 779 F.3d 565 (8th Cir. 2015). Bank's
claimed loss under a financial institution bond was not covered by the bond as it did not result
"directly" from a forged personal guaranty – while existence of the personal guaranty was a
"but-for" cause of the bank entering into the collateral assignment agreements which led to its
losses, the bank would have sustained the same loss even if the document had been genuine
because the guaranty itself was worthless—the signer had substantial negative net worth and
significant contingent liabilities at the time of the loan.
83.
IPSCO Tubulars, Inc. v. Ajax TOCCO Magnathermic Corp., 779 F.3d 744
(8th Cir. 2015). Trial court correctly found the parties' contract for equipment to heat-treat pipe
to certain specifications included a guarantee by defendant that its equipment would produce
tubing at the specified rate without distortion, cracking or inconsistency; but the damages
awarded by the trial court did not contain a rationale or factual findings to support the damages
awarded, requiring remand for appropriate findings so the circuit could review its decision.
84.
Ritchie Capital Mgmt., LLC v. Stoebner, 779 F.3d 857 (8th Cir. 2015). In
another dispute arising from Tom Petters' multi-billion Ponzi scheme, Chapter 7 debtor's
prepetition transfer of security interests in its trademark rights was surrounded by "badges of
fraud" (Polaroid received no value in exchange for a TSA, the TSA was executed solely for the
benefit of Petters who was an insider, Polaroid was in severe financial difficulties before
granting the TSA, and the company's CEO objected to the TSA) sufficient to create presumption
of fraud and bankruptcy court did not abuse its discretion in avoiding those security interests.
85.
Estate of Pepper v. Whitehead,
F.3d
, 2015 WL 1003396 (8th
Cir. 3/92015). Question whether owner of Elvis memorabilia conditionally gifted his collection
to his nurse was a jury question which was supported by evidence of the relationship between the
owner and nurse, the owner's statement to defendant to "keep it," without any statement about
returning it. Jury's verdict in favor of defendant affirmed.
Hon. Ross Walters - 77
86.
PHL Variable Ins. Co. v. Bank of Utah,
F.3d
, 2015 WL 1086246
(8th Cir. 3/17/2015). A declaratory judgment action brought by insurer seeking a judgment that a
life insurance policy was "void ab initio" for lack of insurable interest in a
stranger-owned-life-insurance policy presented issues involving the "viatical settlement" industry
which permitted a dying insured to sell a life insurance policy at a discount in order to use the
proceeds for continued medical care. Minnesota common law did not support a finding that an
existing life insurance policy should be declared void ab initio for lack of insurable interest
merely because the insurer does not want to pay the death benefit.
87.
Argonaut Great Central Ins. Co. v. Audrain County Joint
Communications,
F.3d
, 2015 WL 1188743 (8th Cir. 3/17/2015). Although the circuit
found it lacked jurisdiction to determine whether county's purchase of liability insurance waived
any statutory immunity its 911 call center might be entitled to, the circuit could determine
whether the purchase of insurance waived sovereign immunity against lawsuit brought after
grocery store fire. There was insufficient evidence that the county and its insurer had a
pre-existing agreement to attach a sovereign immunity endorsement to the policy.
88.
Sletten & Brettin Orthodontics, LLC v. Continental Cas. Co.,
F.3d
___, 2015 WL 1260024 (8th Cir. 3/19/2015). General liability and personal injury liability
insurance carrier did not have a duty to defend orthodontist who was sued for posting false and
negative comments about another dental practice on line – intentional-act-exclusion applied to
defamation committed with intent to injure which the complaint clearly alleged.
89.
Tri-National, Inc. v. Yelder,
F.3d
, 2015 WL 1260491 (8th Cir.
3/20/2015). In a matter of first impression in this circuit, the circuit affirms a district court's
finding that a federally mandated insurance endorsement for motor carriers (the MCS-90)
requires a tortfeasor's insurance company to pay an injured party even though the injured party
has been compensated by its own insurance company.
90.
Harris v. Mortgage Professionals, Inc.,
F.3d
, 2015 WL
1283861 (8th Cir. 3/23/2015). District court erred in holding a three-year statute of limitations
applied to plaintiff's suit to collect on a statutorily-required bond as Missouri courts had held
action on a statutorily-required bond involved "a writing for payment of money," for which there
was a ten-year statute of limitations.
91.
Torres v. Simpatico, Inc.,
F.3d
, 2015 WL 1314863 (8th Cir.
3/25/2015). Franchisees of commercial cleaning business brought putative class-action suit
asserting RICO violations against the master franchisers and other entities related to the
franchise system. Trial court correctly granted defendants' motion to compel individual
arbitration under the terms of the franchise agreement because franchisees did not show "specific
evidence" that individual arbitration would be cost prohibitive – the average daily arbitrator fee
quoted did not show likely cost, none of the franchisees lived in the geographic areas for which
those rates were provided and the agreement gave the arbitrator the discretion to allocate the
expenses between the parties.
Hon. Ross Walters - 78
92.
E3 Biofuels, LLC v. Biothane, LLC,
F.3d
, 2015 WL 1314936
(8th Cir. 3/25/2015). Following boiler explosion at ethanol plant, negligence lawsuit against
engineering companies who installed the boilers, brought nearly four years after the explosion,
was barred by Nebraska's two-year statute of limitations for professional negligence, the court
holding that the engineering companies provided professional services.
93.
Menard, Inc. v. Dial-Columbus, LLC,
F.3d
, 2015 WL 1345256
(8th Cir. 3/26/2015). Reversal of district court's grant of summary judgment in favor of plaintiff
holding individual defendant liable for lease assignment because the LLC on whose behalf he
had signed the assignment was not yet lawfully organized. Court failed to look at whether
Nebraska's common law of promoter liability precluded the individual defendant's argument that
his liability was relieved or avoided once the LLC came into existence and started to perform on
the agreement.
94.
Selective Ins. Co. of America v. Smart Candle, LLC,
F.3d
, 2015
WL 1345231 (8th Cir. 3/26/2015). In this declaratory action regarding insurer's duty to defend
company who was sued for trademark infringement arising out the company's use of the trade
name and trademark "Smart Candle", grant of summary judgment in favor in insurer was
affirmed. "Smart Candle" was not a slogan, infringement of which would be covered under the
policy, but merely a trademarked name of the company and insurer did not have to look beyond
the face of the complaint against Smart Candle and look at its website before denying coverage.
Hon. Ross Walters - 79