Circuit Watcher

06-5324 In Re: World Trade Center Disaster Site Litigation
Before: NEWMAN, SOTOMAYOR, AND WESLEY, Circuit Judges.
Interlocutory appeal from an order of the Southern District of New York (Hellerstein, J.), entered on October 18, 2006, denying Defendants’ motions for judgment on the pleadings on immunity grounds under New York state law, and Defendants’ motions for summary judgment on immunity grounds under federal law. Plaintiffs moved to dismiss the appeal for lack of jurisdiction under the final judgment rule. Appeal of the state defenses is dismissed, as the defenses do not fall under the collateral order doctrine. We have jurisdiction over the appeal of the federal defenses, as the Stafford Act confers immunity from suit, and affirm the district court’s decision to deny Defendants’ motions. DISMISSED IN PART AND AFFIRMED IN PART. … In Re: World Trade Center Disaster Site Litigation

07-2138 Lugo-Velázquez v. Stiefel Labs., Inc.
Before Torruella and Lynch, Circuit Judges, Keenan, Senior District Judge. ((Of the Southern District of New York, sitting by
designation.))
LYNCH, Circuit Judge. Roberto Lugo-Velázquez was an employee of Stiefel Laboratories Puerto Rico, Inc. until his employment was terminated when that company substantially reduced its operations to one person in Puerto Rico in January 2003. While employed, Lugo was a participant in an employee stock bonus plan of the parent company, Stiefel Laboratories, Inc. He was not, however, a participant in the Stiefel Laboratories § 401(k) retirement plan; Puerto Rican residents, like Lugo, did not qualify to be participants because of federal tax rules.
.
After his employment was terminated, Lugo brought a number of claims in federal court in Puerto Rico against Stiefel Laboratories and Stiefel Laboratories Puerto Rico. By order dated February 8, 2005, the district court assigned all further proceedings in the case to a magistrate judge. Summary judgment was entered against Lugo on all claims in two successive rounds of summary judgment motions. The motions resulted in two opinions and orders, dated July 31, 2006, and May 30, 2007. The nature and disposition of most of the claims need not be described for purposes of this appeal.
.
The present appeal is from the dismissal of all of Lugo’s ERISA claims in the second summary judgment order. … The entry of summary judgment for defendants is affirmed. Costs are awarded to defendants. Lugo-Velázquez v. Stiefel Labs., Inc.

07-1896 Dixon v. Shamrock Fin. Corp.
Before Howard, Circuit Judge, Stahl and Siler¹, Senior Circuit Judges.
HOWARD, Circuit Judge. Plaintiff Brian Dixon, for himself and a class, claims that defendant Shamrock Financial Corporation unlawfully accessed his credit report, in violation of the Fair Credit Reporting Act (”FCRA”), 15 U.S.C. § 1681. The district court granted Shamrock’s motion to dismiss, and Dixon now appeals. Guided largely by our recent ruling in Sullivan v. Greenwood Credit Union,___ F.3d ___, 2008 WL 726135, (1st Cir. Mar. 19, 2008), we affirm. … Dixon v. Shamrock Fin. Corp..

1. Of the Sixth Circuit, sitting by designation. [↩]

07-1796 ConnectU LLC v. Zuckerberg
Before Lipez, Circuit Judge. Selya and Siler,¹ Senior Circuit Judges.
SELYA, Senior Circuit Judge. Viewed broadly, this appeal concerns a bitter dispute about the parties’ rights in and to Facebook, a spectacularly successful creature of the information age. Viewed more narrowly, however, it presents a jurisdictional enigma that requires us to decide whether an amended complaint that switches the basis of the district court’s subject matter jurisdiction from the existence of diversity of citizenship, 28 U.S.C. § 1332(a)(1), to the existence of a federal question, id. § 1331, should be given effect when filed as of right before any jurisdictional challenge has been mounted. This is a question of first impression at the federal appellate level — and one that sets two established legal principles on a collision course.
.
For the reasons that follow, we hold that the jurisdictional claim in the amended complaint warrants full consideration and constitutes a viable hook on which federal jurisdiction can be hung. Because this holding is at odds with the conclusions reached by the court below, we reverse the order of dismissal and remand for further proceedings consistent with this opinion. … ConnectU LLC v. Zuckerberg.

1. Of the Sixth Circuit, sitting by designation. [↩]

06-2632 Fernández-Vargas v. Pfizer
Before Lipez, Circuit Judge Baldock,¹ Senior Circuit Judge and Howard, Circuit Judge.
BALDOCK, Senior Circuit Judge. Vital to our resolution of this appeal is an understanding of the controversy’s extensive and convoluted procedural history. Our story begins in August 2003 when Luis Adorno-Cabán (Adorno) fatally shot Jaime Pagán-Avilés (Pagán). The unfortunate incident occurred while both men were working at Pfizer’s facility in Barceloneta, Puerto Rico. Pagán’s common law wife, Emma Fernández-Vargas (Fernández), and their minor son, C.J.P.F., survived him. Pagán also left behind E.P.S. and R.P.S., two minor daughters from his prior marriage to Anabel Sánchez-Valle (Sánchez). Pfizer is the Appellee in this appeal. Sánchez is the Appellant. Sánchez asserts the district court (1) lacked subject matter jurisdiction from the outset, (2) improperly dismissed her wrongful death cross-claim, (3) issued a judgment that was null and void, and (4) erroneously enjoined her from suing Pfizer in commonwealth court. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm. … Fernández-Vargas v. Pfizer.

1. Of the Tenth Circuit, sitting by designation. [↩]

07-1316 Five Star Transp., Inc. v. NLRB
Before Torruella, Circuit Judge, Cyr, Senior Circuit Judge, and Lynch, Circuit Judge.
TORRUELLA, Circuit Judge. Petitioner Five Star Transportation, Inc. (”Five Star”) seeks judicial review of the decision of the National Labor Relations Board (”NLRB”) finding that it engaged in an unfair labor practice in violation of § 8(a)(1) of the National Labor Relations Act (”Act”) when it refused to hire, or even consider for hire, six school bus drivers who wrote critical letters and email messages to the Belchertown School District (”District”) in an effort to dissuade it from granting Five Star a bus services contract for the 2003 through 2006 school terms. After a thorough review of the record, we reject Five Star’s claims and enforce the NLRB’s decision. … Five Star Transp., Inc. v. NLRB.

07-2257, 07-2258, 07-2259, In Re: New Motor Vehicles Canadian Export Antitrust Litig.
Before Torruella, Circuit Judge, Selya, Senior Circuit Judge, and Lynch, Circuit Judge.
LYNCH, Circuit Judge. This multi-district consumer action alleges a conspiracy by automobile manufacturers to illegally block lower-priced imports from Canada, which is alleged to have inflated the price of new cars sold in America. We granted this interlocutory appeal under Federal Rule of Civil Procedure 23(f) from the district court’s certifications of (1) a nationwide plaintiff class seeking injunctive relief under section 16 of the Clayton Act and Rule 23(b)(2), and (2) a class seeking damages under the antitrust and consumer protection laws of twenty states and Rule 23(b)(3). … We reverse the certification of the injunctive class under the Clayton Act for lack of a live controversy and order dismissal of the claim. Because there is no jurisdiction under the Clayton Act, we remand to the district court for determination of the several issues concerning the existence of federal jurisdiction. On the representation of the parties that there is diversity jurisdiction over at least some of the state damages claims, we review the certification of the damages classes. We vacate that certification; the district court is free to reconsider the class certification orders on a more complete record…. In Re: New Motor Vehicles Canadian Export Antitrust Litig.

07-1605 Alberto San, Inc. v. Consejo de Titulares del Condominio San Alberto
Before Torruella, Circuit Judge, Selya, Senior Circuit Judge, and Lynch, Circuit Judge.
LYNCH, Circuit Judge. This is an appeal from the district court’s dismissal of plaintiff’s complaint for lack of subject matter jurisdiction.
.
The complaint was brought by Alberto San, Inc., an owner of a substantial interest in an office condominium, against the board and other owners of the condominium. The complaint alleged that a Puerto Rico statute, which decreased plaintiff’s original voting power in the condominium association, violated plaintiff’s due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. … We thus remand with instructions to revise the judgment to dismiss the federal claim with prejudice, to dismiss without prejudice the Puerto Rico law claim for unjust enrichment, and to deny the defendants’ motion for award of attorneys’ fees. Costs are awarded to the defendants. So ordered. Alberto San, Inc. v. Consejo de Titulares del Condominio San Alberto.

07-1595 Rivera v. Pfizer Pharms., LLC
Before Lipez and Howard, Circuit Judges, and Smith,¹ District Judge.
SMITH, District Judge. This case presents as a so-called “regarded as” disability claim under the Americans with Disabilities Act (“ADA”). However, as the discussion below reveals, once the layers of argument are stripped away, the regarded as claim is revealed to be a chimera. Thus, the District Court’s grant of summary judgment, on reconsideration, as to the regarded as claim was appropriate, and the judgment is affirmed. … Rivera v. Pfizer Pharms., LLC.

1. Of the District of Rhode Island, sitting by designation. [↩]

07-1208 Geiger v. Foley Hoag LLP Ret. Plan
Before Lipez, Circuit Judge, Cyr, Senior Circuit Judge, and Howard, Circuit Judge.
HOWARD, Circuit Judge. The genesis of this appeal is a contentious Massachusetts divorce. As part of the distribution of marital property, a state court judge assigned a portion of David Geiger’s interest in three retirement plans to his (now ex) wife, Karen Leeds. In addition to exhausting his state court appeals of the divorce order, Geiger filed suit in federal court against the retirement plans and their administrator,¹ seeking to permanently enjoin the plans from transferring Geiger’s interests to Leeds. After Leeds successfully moved to intervene in the suit, she filed a motion to dismiss, which the district court granted pursuant to the Rooker-Feldman doctrine. On appeal, Geiger contends that the district court first erroneously allowed Leeds’s intervention, and then incorrectly granted the motion to dismiss. We affirm, albeit for reasons different than those cited by the district court. … Geiger v. Foley Hoag LLP Ret. Plan.

1. 1The original defendants were Foley Hoag LLP Retirement Plan, Foley Hoag LLP Savings and Retirement Plan, and Foley Hoag LLP Money Purchase Pension Plan (collectively, “the plans”). Foley Hoag is also named separately as the plans’ administrator. They remained as defendants after Leeds’s intervention. Geiger, appearing pro se in this action, is a litigation partner at the Foley Hoag law firm in Boston. For ease of reference we will refer to the firm as “Foley.” [↩]

07-2476 Puerto Rico Ass’n of Physical Med. and Rehab. v. U.S.
Before Boudin, Chief Judge, Lynch, Circuit Judge, and Keenan,¹ Senior District Judge.
BOUDIN, Chief Judge. The Puerto Rico Association of Physical Medicine and Rehabilitation (”PRAPMR”) is a group of medical doctors practicing in Puerto Rico. It, and several doctors and patients, sued to challenge a regulation restricting Medicare reimbursement for physical therapy services. The district court dismissed the case, relying on statutory provisions that preclude all actions “brought under section 1331 or 1346 of Title 28 to recover on any claim arising under” the Medicare Act. 42 U.S.C. §§ 405(h), 1395ii (2000). This appeal followed. … Affirmed. Puerto Rico Ass’n of Physical Med. and Rehab. v. U.S..

1. Of the Southern District of New York, sitting by designation. [↩]

07-5771 Air Transp. Ass’n of Am. v. Cuomo
Before: WESLEY, LIVINGSTON, Circuit Judges, and COGAN, District Judge.¹
The Air Transport Association of America appeals from a final judgment of the United States District Court for the Northern District of New York (Kahn, J.) granting summary judgment to defendants and dismissing plaintiff’s complaint seeking declaratory and injunctive relief against New York State’s Passenger Bill of Rights, codified at section 553(2)(b)-(d) of the New York Executive Law and sections 251-f to 251-j of the New York General Business Law. We reverse and hold that the substantive provisions of the law, N.Y. Gen. Bus. Law § 251-g(1), are preempted by the Airline Deregulation Act of 1978. Reversed and remanded. … Air Transp. Ass’n of Am. v. Cuomo.

1. The Honorable Brian M. Cogan, District Judge, United States District Court for the Eastern District of New York, sitting by designation. [↩]

06-3386, 06-3447 Nocula v. UGS Corp.
Before ROVNER and SYKES, Circuit Judges.¹
SYKES, Circuit Judge. Mitch Nocula is the sole shareholder of two corporations: Tooling Systems International Corp. (“TSI”), an Illinois company that takes orders for the manufacture of tools and dies, and P.Z. Alucon Sp. z o.o. (“Alucon”), a Polish corporation that is one of TSI’s primary subcontractors for the manufacture of the tools and dies. Nocula and TSI claim that UGS Corporation (“UGS”), a Texas-based Delaware corporation that sells computer-aided design software, and UGS Sp. z o.o. (“UGS Poland”),² a Polish sublicensee of UGS’s software, intentionally disrupted Alucon’s business by lodging a criminal complaint against it in Poland for theft of intellectual property. In connection with the ensuing prosecution, Polish police seized Alucon’s computers. Although the prosecution ended in a verdict for Alucon, the computers disappeared and Alucon’s engineering data was lost.
.
Nocula and TSI claim UGS and UGS Poland maliciously instituted the Polish criminal prosecution and used it as leverage to force the transfer of a license to use UGS’s software from a third-party licensee, Electrode Machining Services (“Electrode”), to Alucon. These actions form the basis of various tort and contract claims asserted in this lawsuit filed. UGS and UGS Poland moved to dismiss, arguing the claims were barred by the act-of-state doctrine, which generally prohibits federal courts from entertaining claims that would question the validity of the acts of a foreign sovereign under that sovereign’s laws. The district court granted this motion. Nocula, proceeding pro se, filed a timely notice of appeal on his own behalf. After the 30-day appeal clock expired, counsel was retained and filed a “corrected” notice of appeal for Nocula and TSI.
.
Jurisdictional defects prevent us from addressing most of the claims in this case. The first notice of appeal—signed and filed by “Mitch Nocula, Pro Se”—was ineffective to provide notice of TSI’s appeal; the second notice, naming both Nocula and TSI, was untimely. Accordingly, TSI’s appeal must be dismissed for lack of appellate jurisdiction. Nocula’s notice of appeal was timely, but most of the claims he asserts belong to his corporation, Alucon, which is not a party. To the extent Nocula is attempting as a shareholder to sue in tort or contract for injuries to Alucon, his claims are barred by the rule against shareholder standing.
.
One claim arguably belonging to Nocula personally pertains to the “wrongful” loss of the computers and engineering data. We say arguably because the amended complaint sometimes describes this as the property of Alucon and at other times asserts the computers and data belonged to Nocula personally. Either way, the district court properly invoked the act-of-state doctrine because the adjudication of this claim would require American courts to question the legality of the seizure and loss of this property during the course of the Polish criminal prosecution. Another claim asserted by Nocula personally is for “harassment,” which is not cognizable under Illinois law. … Nocula v. UGS Corp.

1. This appeal was initially heard by Circuit Judges Rovner, Williams, and Sykes. While the case was under advisement, Judge Ann Claire Williams withdrew from participation and took no part in the opinion. [↩]
2. “Sp. z o.o.” (Spolka Z Ograniczona Odpowiedzialnoscia) designates a Polish limited company. [↩]

06-1939 Livingston v. Wyeth, Inc.
Before NIEMEYER and MICHAEL, Circuit Judges, and Claude M. HILTON, Senior United States District Judge¹
NIEMEYER, Circuit Judge: Relying on the whistleblower protection provisions of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A, Mark Livingston commenced this action against his employer Wyeth, Inc., a pharmaceutical company, alleging that Wyeth unlawfully discharged him because of his complaints to Wyeth’s management about Wyeth’s inability to implement on schedule a training program at its Sanford, North Carolina facility, supposing therefore that local employees would likely misrepresent or cover up the deficiencies in progress to internal compliance auditors and to the Food and Drug Administration. The training program was designed to train employees in good manufacturing practices, and its implementation was required by regulations of the Food and Drug Administration. Livingston asserted that in making his complaints, he reasonably believed that Wyeth’s potential conduct in misrepresenting or covering up the deficiencies in timely implementation of the program would constitute violations of § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated under it, and therefore that his conduct was protected under the Sarbanes-Oxley Act.
.
The district court entered summary judgment against Livingston, concluding that his complaints were not protected activity under the Sarbanes-Oxley Act because Livingston could not reasonably have believed that Wyeth was violating the securities laws. The court also concluded that Wyeth had shown, by clear and convincing evidence, that it had discharged Livingston for insubordination in threatening to have the police remove Wyeth’s Director of Human Resources from a company-sponsored holiday party and that Wyeth would have discharged Livingston regardless of whether he had complained about the progress of the training program.
.
Because we conclude that no objectively reasonable basis existed for Livingston to have believed that Wyeth was violating the securities laws, we affirm. …
.
MICHAEL, Circuit Judge, dissenting: I respectfully dissent from the majority’s holding that Mark Livingston can show no set of facts to entitle him to protection under the whistleblower provision of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A. … Livingston v. Wyeth, Inc.

1. for the Eastern District of Virginia, sitting by designation. [↩]

07-1191 Pineda v. Ford Motor Co.
Before: McKEE, AMBRO, Circuit Judges, and IRENAS,¹ Senior District Judge.
IRENAS, Senior United States District Judge. Appellant Jose Pineda is an automobile technician who was injured when the rear liftgate glass of a 2002 Ford Explorer shattered. He filed a products liability action against Appellee Ford Motor Company in the United States District Court for the Eastern District of Pennsylvania and retained an expert to support his claims. After extensive discovery and a Daubert hearing,² the District Court³ ruled that Pineda’s proffered expert witness was not qualified to testify and that his methodology was not reliable. The District Court then granted Ford’s motion to exclude the testimony of Pineda’s expert and its motion for summary judgment. For the reasons set forth below, we will reverse both decisions and remand for further proceedings. … Pineda v. Ford Motor Co.

1. Honorable Joseph E. Irenas, Senior United States District Judge for the District of New Jersey, sitting by designation. [↩]
2. A Daubert hearing refers to a pretrial hearing where a court determines whether a proffered expert witness’s testimony is both relevant and reliable, and thus admissible as evidence, pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). [↩]
3. On June 16, 2006, the Honorable Bruce W. Kauffman, United States District Judge, referred this action to the Honorable Jacob P. Hart, United States Magistrate Judge, to conduct any and all proceedings and to order the entry of a final judgment. The referral was made pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73 and with the consent of all parties. Upon an appropriate referral and an entry of judgment, “an aggrieved party may appeal directly to the appropriate United States court of appeals from the judgment of the magistrate judge in the same manner as an appeal from any other judgment of a district court.” 28 U.S.C. § 636(c)(3). [↩]

06-1872, 06-5243 Auto. Club of New York, Inc. v. Dykstra
Before: MCLAUGHLIN and WESLEY, Circuit Judges, and COGAN, District Judge.¹
Appeal from final judgments of the United States District Court for the Southern District of New York (Owen, J.) permanently enjoining the City of New York from enforcing the provisions of its tow truck licensing scheme, codified at Title 20, Chapter 2, Subchapter 31 of the Administrative Code of the City of New York, against tow operators from outside New York City, invalidating § 20-495(d) of the New York City Administrative Code, and awarding Appellee $651,856 in attorneys’ fees and $6,293.98 in expenses. We affirm and hold that enforcement of the tow truck licensing scheme against operators from outside of New York City is not genuinely responsive to safety concerns, and, as a result, is preempted by 49 U.S.C. § 14501(c)(1). … Auto. Club of New York, Inc. v. Dykstra.

1. The Honorable Brian M. Cogan, United States District Court for the Eastern District of New York, sitting by designation. [↩]

07-7021 Robbins v. State of Oklahoma
Before McCONNELL, BALDOCK, and GORSUCH Circuit Judges.
McCONNELL, Circuit Judge. This case arises from the tragic death of an eight month old infant, Renee Dawn Robbins, the child of Dustin Robbins and Melissa Gillum. In 2003, Renee’s parents sought financial assistance and other social services from the Oklahoma Department of Human Services (“DHS”). Employees of DHS informed Mr. Robbins and Ms. Gillum that Carla Beth McKinney operated a licensed and privately-owned daycare center in Tahlequah, Oklahoma, where they might obtain state subsidized care for Renee. Plaintiffs further allege that employees of DHS “informed” them that “the McKinney Daycare was the only daycare to which Renee could attend due to financial considerations.” Comp. ¶¶ 19 & 20 (emphasis added). Following this consultation, Renee’s parents placed her in Ms. McKinney’s daycare where she suffered blunt force trauma to the head resulting in her death. The Chief Medical Examiner listed the manner of death as homicide; the state filed criminal charges of first degree murder against Ms. McKinney.
.
Renee’s parents originally filed suit against the State of Oklahoma Department of Human Services, five named employees of DHS in their individual capacities, ten unnamed employees of DHS in their individual capacities, Carla Beth McKinney, and the McKinney Daycare, in the United States District Court for the Eastern District of Oklahoma on June 9, 2005. That case was voluntarily dismissed by the plaintiffs on September 7, 2005. This case was filed by Mr. Robbins and Ms. Gillum on September 7, 2006, against the same parties seeking damages and other relief under 42 U.S.C. § 1983 for alleged violations of Renee’s constitutional rights and various torts in connection with Renee’s death.
.
The Oklahoma Department of Human Services, Howard H. Hendrick, Nancy VonBargen, and Casey Foreman filed a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The court granted the defendants’ motion to dismiss against DHS on the basis of sovereign immunity, but denied the motion with respect to the individual defendants. Hendrick, VonBargen, and Foreman filed a motion to reconsider. The court granted the motion with regard to the prayer for declaratory relief, but once again denied the individual defendants’ qualified immunity claim on the prayer for damages because the court found that “it ha[d] insufficient information,” and therefore that some discovery was necessary to determine whether qualified immunity shielded the defendants from suit. Robbins v. Oklahoma Dep’t of Human Serv., No. 06-CV-367, 2007 WL 756694, *1 (E.D.Okla., March 7, 2007).
.
Defendants Hendrick, VonBargen, and Foreman appeal the partial denial of their motion to dismiss, and ask us to consider whether the plaintiffs have adequately stated a claim on which relief may be granted and whether they are entitled to qualified immunity. We reverse the district court’s denial of defendants’ motion to dismiss, and instruct that the suit be dismissed for failure to state a claim upon which relief can be granted. … Robbins v. State of Oklahoma.

06-35112 Canyon County v. Syngenta Seeds, Inc.
Before: William C. Canby, Jr., A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges.
TASHIMA, Circuit Judge: This case involves an Idaho county’s attempt to recover damages under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, for additional monies it claims to have expended on public health care and law enforcement services for undocumented immigrants.
.
Plaintiff-appellant Canyon County commenced this action against four companies and one individual under RICO’s civil enforcement provision, 18 U.S.C. § 1964(c), alleging that defendants engaged in an illegal scheme of hiring and/or harboring undocumented immigrant workers within the County, and that their actions forced the County to pay “millions of dollars for health care services and criminal justice services for the illegal immigrants.”
.
The district court concluded that the County did not have statutory standing under § 1964(c) because the County did not meet the threshold requirement that a civil plaintiff be “injured in his business or property” by reason of the alleged RICO violation. Consequently, the court dismissed the County’s complaint.
.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court. We agree with the district court that the County has failed to allege that it was injured in its business or property. We also conclude that, with respect to almost all of the defendants’ alleged RICO violations, the County cannot show that its claimed injuries were proximately caused by defendants’ conduct. For both of these reasons, the County lacks statutory standing to pursue its federal RICO claims. … Canyon County v. Syngenta Seeds, Inc.

07-1840 Cornelia I. Crowell GST Trust v. Possis Medical, Inc.
U.S. District Court for the District of Minnesota - Minneapolis
[PUBLISHED] [Goldberg, Author, Court of International Trade, with Colloton and Shepherd, Circuit Judges]
Civil Case - securities. District court’s dismissal of complaint alleging
securities fraud was properly dismissed, as pleading did not meet the
heightened standards of the Private Securities Litigation Reform Act by
establishing defendant misrepresented a material fact or acted with the
required scienter. Importance attached to study did not support inference
of scienter and stock sales by employees did not establish motive or
opportunity to support the inference. District court did not err in denying
motion to amend the complaint on the basis of futility.

07-1375 Dotson v. BRP US Inc.
Before BAUER, ROVNER and WOOD, Circuit Judges.
ROVNER, Circuit Judge. Brian K. Dotson was terminated from his employment with BRP US Inc. (“BRP”) after filing a claim for compensation under the Illinois Workers’ Compensation Act (“WCA”). See 820 ILCS 305/1 et seq. Dotson’s absence from work exceeded the amount of time allowed by the company’s absenteeism policy, which tracks the time allotted by the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”). Dotson sued his employer under Illinois law, alleging that the discharge was in retaliation for filing a workers’ compensation claim. The district court granted summary judgment in favor of BRP after concluding that no reasonable jury could conclude that Dotson’s discharge was due to retaliation. We affirm. … Dotson v. BRP US Inc.

05-13820 Friedman v. Market St. Mortgage
Before TJOFLAT, FAY and SILER¹, Circuit Judges. TJOFLAT, Circuit Judge:
TJOFLAT, Circuit Judge: In this appeal, Market Street Mortgage Corporation (“Market Street”) contends that the district court erred in certifying a class of persons represented by Edward and Lori Friedman, in which the stated common question of law is whether Market Street violated subsection 8(b) of the Real Estate Settlement Procedures Act of 1974 (“RESPA”), codified at 12 U.S.C. § 2607(b), by requiring loan borrowers to pay an escrow waiver fee for which Market Street had performed no services. Because we find that this class certification order violated the law of the case and because we also hold that subsection 8(b) does not apply to settlement fees that are alleged to be excessive, we reverse the district court’s certification order and remand the case with instructions to dismiss the Friedmans’ complaint with prejudice. … Friedman v. Market St. Mortgage.

1. Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the Sixth Circuit, sitting by designation. [↩]

06-2279 Penn-Am. Ins. Co. v. Mapp
Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges.
KING, Circuit Judge: Penn-America Insurance Company seeks to appeal from the district court’s Opinion and Order granting partial summary judgment to ACH Corporation of Chesapeake, Incorporated, and April Dawn Mapp. See Penn-Am. Ins. Co. v. Mapp, 461 F. Supp. 2d 442 (E.D. Va. 2006) (the “Opinion”). Penn-America initiated the underlying declaratory judgment proceeding in the Eastern District of Virginia, seeking declarations, inter alia, that it had no duty to defend or indemnify its insured, ACH, against tort claims being pursued by Mapp in Virginia state court. By its Opinion, the district court resolved the duty to defend issue in favor of ACH, but withheld ruling on the indemnification issue. The court then dismissed the proceeding from its “active docket,” subject to reinstatement upon “motion by any party.” Id. at 459. As explained below, the Opinion does not constitute an appealable decision and this appeal must be dismissed. … Penn-Am. Ins. Co. v. Mapp.

07-1748 Carrascosa v. McGuire
Before: FUENTES, JORDAN, Circuit Judges and O’NEILL¹, District Judge.
JORDAN, Circuit Judge. Maria José Carrascosa appeals from the District Court’s denial and dismissal with prejudice of her petition for a writ of habeas corpus, which sought to end her detention in the Bergen County, New Jersey jail for violating a civil contempt order issued by the Superior Court of New Jersey. At the heart of this sad case, which raises questions of international and federal law under the Hague Convention’s Civil Aspects of International Child Abduction, T.I.A.S. No. 11670 (Nov. 7, 1988) (the “Hague Convention”), is a custody battle over a young girl who has not seen either of her parents in years. Because we agree with the skillful analysis of the District Court, we must affirm. … Carrascosa v. McGuire.

1. Honorable Thomas N. O’Neill, Jr., United States District Court Judge for the Eastern District of Pennsylvania, sitting by designation. [↩]

07-2710 REI Transp., Inc. v. C.H. Robinson Worldwide, Inc.
Before EASTERBROOK, Chief Judge, and FLAUM and EVANS, Circuit Judges.
FLAUM, Circuit Judge. C.H. Robinson Worldwide, Inc. is a freight broker (or, in its estimation, a “travel agent for freight”). REI Transport, Inc., is an Illinois trucking company that provides drayage services—in this case, the local delivery of cargo from a railroad terminal to the cargo’s final destination. The retail electronics company Circuit City hired C.H. Robinson to coordinate the shipment of several hundred DVD players from a Circuit City warehouse in California to another warehouse in southern Illinois. In so doing, C.H. Robinson contracted with REI Transport to carry the DVD players the final leg of the trip—from a train depot near St. Louis to Marion, Illinois. As it turned out, through no fault of REI Transport’s, the shipment arrived short approximately $85,000 worth of DVD players. C.H. Robinson indemnified Circuit City for the lost DVD players, and Circuit City assigned any right to recover to C.H. Robinson. Surmising that REI Transport was responsible for the loss and pursuant to its contract with REI Transport, C.H. Robinson withheld amounts from what it owed REI Transport.
.
REI Transport then filed this suit in the Southern District of Illinois, alleging conversion, unjust enrichment, and that C.H. Robinson breached the parties’ contract by withholding payment. In its defense, C.H. Robinson counterclaimed that, under the Carmack Amendment, REI Transport owed more money for the damaged cargo. The district court agreed with C.H. Robinson and dismissed REI Transport’s claims. This appeal followed and, for the reasons set out below, we affirm. … REI Transp., Inc. v. C.H. Robinson Worldwide, Inc.

06-3697 Riley v. Lance, Inc.
U.S. District Court for the Western District of Missouri - Kansas City
[PUBLISHED] [Bowman, Author, with Bye and Smith, Circuit Judges]
Civil Case - age discrimination. Grant of summary judgment to employer is affirmed. District court erred in requiring employee to show he met the employer’s legitimate expectations to make out his prima facie case, when employee needed only to show he was “otherwise qualified.” Error, however, was not reversible, as employee did not demonstrate the employer’s reasons for terminating him unsatisfactory performance was a pretext for illegal discrimination. Employee did not show a genuine issue as to whether reasons were contrived or that the production targets were a pretext.

04-35210 Marceau v. Blackfeet Hous. Auth.
Before: Harry Pregerson, Susan P. Graber, and Ronald M. Gould, Circuit Judges.
The opinion filed on July 21, 2006, slip op. 8071, and appearing at 455 F.3d 974 (9th Cir. 2006), is replaced in part and adopted in part by the amended opinion filed concurrently with this order. Further petitions for rehearing and petitions for rehearing en banc may be filed.
.
GRABER, Circuit Judge: Plaintiffs are members of the Blackfeet Indian Tribe who bought or leased houses built under the auspices of the United States Department of Housing and Urban Development (“HUD”). The houses had wooden foundations. The wood had been pressure-treated with toxic chemicals. Plaintiffs allege that the use of wooden foundations caused their houses to deteriorate and that the chemicals in the wood have caused, and continue to cause, health problems for those who live in the houses. On behalf of a class of persons similarly situated, Plaintiffs sued HUD, the Secretary of HUD, the Blackfeet Tribal Housing Authority and its board members (“the Housing Authority”) under several theories. The district court dismissed the entire complaint under Federal Rule of Civil Procedure 12(b)(6).
.
On rehearing, we hold: (1) the Housing Authority forfeited its claim to tribal exhaustion and, in any event, waived its tribal immunity; (2) the government did not undertake a trust responsibility toward Plaintiffs to construct houses or maintain or repair houses; and (3) Plaintiffs alleged sufficient facts to state claims against HUD under the Administrative Procedure Act (“APA”). We readopt our earlier opinion¹ with respect to Plaintiff’s breach of contract claims. Accordingly, we affirm the district court’s dismissal of the case except as to Plaintiffs’ claims against the Housing Authority and its board members and Plaintiffs’ claims under the APA. As to those claims, we reverse and remand for further proceedings. …
.
PREGERSON, Circuit Judge, dissenting: I concur in the majority’s rulings on tribal immunity and the Administrative Procedure Act. I dissent with regard to the majority’s analysis of federal trust responsibility, and write separately on that issue. … Marceau v. Blackfeet Hous. Auth.

1. Marceau v. Blackfeet Hous. Auth., 455 F.3d 974 (9th Cir. 2006). [↩]

07-5068 Noe v. Polyone Corp.
Before: SUTTON and McKEAGUE, Circuit Judges; FORESTER, District Judge.¹
McKEAGUE, Circuit Judge. This is a retiree health benefits case, in which the court is asked to determine whether the parties to various labor agreements intended for retiree health benefits to vest such that any termination of those benefits constitutes a violation of § 301 of the Labor Management Relations Act (“LMRA”). The district court granted summary judgment for defendant-employer PolyOne Corp. after concluding that the labor agreements in question were unambiguous and established no intent to vest retiree health benefits. Having conducted a thorough review of the record and the applicable law, we arrive at a different conclusion and VACATE the district court’s judgment. … Noe v. Polyone Corp.

1. The Honorable Karl S. Forester, Senior United States District Judge for the Eastern District of Kentucky, sitting by designation. [↩]

07-2354 Sullivan v. Greenwood Credit Union
Before Lynch, Circuit Judge, Tashima,¹ Senior Circuit Judge, and Lipez, Circuit Judge.
LYNCH, Circuit Judge. This putative class action challenges the legality, under the Fair Credit Reporting Act (”FCRA” or “the Act”), 15 U.S.C. § 1681 et seq., of an unsolicited letter to a consumer about the offering of credit for a home loan. Defendant Greenwood Credit Union sent the letter to plaintiff, Anthony Sullivan, and others based on a list of individuals meeting certain minimal credit requirements that Greenwood had purchased from a credit reporting agency, a process called pre-screening. This unsolicited letter to Sullivan and others triggered the requirements of the FCRA, which permits the unconsented-to use of credit information only for specific purposes, one of which is the extending of a “firm offer of credit” as defined by the Act. If Greenwood has willfully used credit information for an unpermitted purpose, Greenwood would have to pay actual damages or a statutory penalty between $100 and $1,000 per person. This case is about plaintiff’s efforts to collect that statutory penalty for a class of consumers; there is no claim Sullivan was wrongfully denied credit.
.
This case does not involve a claim that the letter was a sham and merely a marketing device for a consumer purchase. There is also no claim that Greenwood would have used the same criteria by which it selected Sullivan to receive the letter to deny him credit. Rather, the plaintiff’s argument is that the letter was based on such minimal criteria and the actual extension of credit was so contingent on other conditions that the letter could not be a firm offer of credit.
.
After allowing some discovery, the district court granted summary judgment to the defendant, finding that Greenwood’s letter to the proposed plaintiff class constituted a “firm offer of credit” as that term is defined by the FCRA. Construction of the FCRA’s term “firm offer of credit” is a matter of first impression for this circuit. We affirm. … Sullivan v. Greenwood Credit Union.

1. Of the Ninth Circuit, sitting by designation. [↩]

07-1061 Biodiversity Conservation Alliance v. Stem
Before O’CONNOR, Associate Justice (Ret.),¹ HENRY, Chief Circuit Judge, and TACHA, Circuit Judge.
O’CONNOR, Associate Justice (Ret.). The United States Forest Service appeals from the district court’s award of attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d) to plaintiff Biodiversity Conservation Alliance (“BCA”). Because we hold that plaintiff was not a “prevailing party” in the underlying litigation, we reverse the district court’s award of fees and remand for proceedings consistent with this opinion. … Biodiversity Conservation Alliance v. Stem.

1. The Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme Court (Ret.), sitting by designation pursuant to 28 U.S.C. § 294(a). [↩]

05-56043 Miller v. Thane Int’l Inc.
Before: Barry G. Silverman, Kim McLane Wardlaw, and Jay S. Bybee, Circuit Judges.
The opinion filed November 26, 2007 and published at 508 F.3d 910 is superceded by the amended opinion below. … The Petition for Rehearing and Suggestion of Rehearing En Banc are DENIED. No further petitions for rehearing may be filed.
.
WARDLAW, Circuit Judge: Class plaintiffs appeal the district court’s judgment, following a bench trial, in favor of Thane International, Inc. and its officers and directors (collectively, “Thane International”) on plaintiffs’ action brought under Section 12(a)(2) of the Securities Act of 1933 (the “Act”), 15 U.S.C. § 77l(a)(2) and under Section 15 of the Act, 15 U.S.C. § 77o, alleging control person liability against individual defendants. We must decide whether Thane International misrepresented to investors that it would list its shares on the NASDAQ National Market System (“NASDAQ”), and if so, whether those misrepresentations were material. The district court answered “no” to both questions. We have jurisdiction under 28 U.S.C. § 1291. We hold that the district court clearly erred when it found that Thane International did not misrepresent that it would list the merged company’s shares on the NASDAQ. We also hold that these misrepresentations were material. We therefore reverse and remand for further proceedings. … Miller v. Thane Int’l Inc.

05-41347 Rogers v. Penland
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge: The former directors of Mauriceville National Bank (Directors) sued Robert McDorman, Meshell McDorman, Deon Thornton, and various McDorman-related business entities (Defendants), alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and state-law claims. Joe Penland was also a defendant. A jury found Defendants liable under RICO and some state-law theories, but only assessed damages for the RICO violations; however, the jury also found that Directors were in pari delicto with Defendants. The district court entered a take nothing judgment against
Defendants.
.
Directors appealed, principally challenging the in pari delicto defense and the finding that Penland was not liable. Penland cross-appealed. Prior to oral argument, Penland and Directors settled, dismissing their appeals against each other.¹ Directors maintained their appeal as to Defendants. For the reasons that follow, we affirm. … Rogers v. Penland.

1. We, therefore, do not consider the issues raised by Directors that concern only Penland, nor do we consider any of the issues raised in Penland’s cross-appeal. [↩]

06-2623 CMI Capital Market Inv. v. González-Toro
Before Lipez and Howard, Circuit Judges, and Smith,¹ District Judge.
HOWARD, Circuit Judge. In this tort and breach of contract suit, Marilyn González-Toro (”González”) and the Conjugal Partnership Aguirre-González (together, “appellants”) failed to challenge plaintiffs’ statement of material facts in support of a motion for summary judgment. Because the appellants did not counter the statement of material facts, the district court deemed the facts admitted, granted summary judgment, and imposed joint and several liability on the appellants for fraudulent acts committed by Alvin Aguirre-González (”Aguirre”) and several corporations. We approve of the district court’s decision to deem the uncontested facts admitted under Local Rule 56(e), and against that backdrop we affirm. … CMI Capital Market Inv. v. González-Toro

1. Of the District of Rhode Island, sitting by designation. [↩]