November 23, 2014

Tenth Circuit: Unpublished Opinions, 11/3/2014

On Monday, November 3, 2014, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Sweets v. Wyoming Department of Employment

United States v. McDonald

McMiller v. Jones

Tennant v. Miller

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Particular Circumstances Leading to Fall from Horse Should Be Analyzed for Liability Determination

The Tenth Circuit Court of Appeals issued its opinion in Kovnat v. Xanterra Parks & Resorts on Tuesday, October 21, 2014.

Corrine Kovnat and her husband vacationed in Yellowstone National Park in Wyoming in June 2012. While there, Kovnat and her husband went on a horseback ride at the Canyon Corral, operated by Xanterra Parks & Resorts. While on the trail, Kovnat’s saddle slipped and she fell, striking her back on the ground and fracturing three vertebrae. Kovnat filed a diversity action against Xanterra, claiming Xanterra negligently operated Canyon Corrals because Kovnat’s horse was improperly saddled, and that Xanterra negligently failed to maintain the saddle in a safe condition or warn Kovnat of its unsafe condition. Xanterra filed a motion for summary judgment, asserting that under the Wyoming Recreation Safety Act (WRSA), Xanterra owed no duty of care to protect Kovnat from the injuries alleged in her complaint. The district court granted summary judgment to Xanterra, and Kovnat appealed.

The Tenth Circuit first examined the WRSA, and found that in general, claims like Kovnat’s would not be allowed. The Tenth Circuit reviewed a similar case involving a Wyoming horseback rider injured in a saddle accident, where it ruled that the particular circumstances leading to the rider’s injury needed to be examined on a case-by-case basis. Turning to Kovnat’s claims, the Tenth Circuit found no error in the district court’s summary judgment regarding Kovnat’s claim that the saddle cinch was not tight enough, because there was a great deal of evidence that employees of Xanterra checked the cinch and it was too tight to slip the saddle back around after Kovnat’s fall, therefore any slipping of the cinch was an inherent risk of horseback riding. However, the Tenth Circuit evaluated Kovnat’s claim that her stirrups were uneven and determined that the uneven stirrups may not have been a result of the inherent risks of horseback riding. It remanded for further proceedings on this issue.

As to Kovnat’s negligent training and supervision claims, the Tenth Circuit affirmed the district court’s summary judgment as to the cinch issue and reversed as to the stirrup issue. The case was remanded for further findings regarding whether the uneven stirrups were an inherent risk of horseback riding or some extenuating circumstance in which Xanterra may have been liable.

Tenth Circuit: No Ambiguity in Insurance Policy Exclusions for Environmental Pollution

The Tenth Circuit Court of Appeals issued its opinion in Headwaters Resources, Inc. v. Illinois Union Insurance Co. on Monday, October 20, 2014.

Headwaters Resources, Inc., constructed a golf course at the Fentress site in Chesapeake, Virginia. Residents of neighborhoods surrounding the Fentress site sued Headwaters in Virginia state court, alleging property damage and bodily injury sustained due to pollution generated during the golf course construction. Plaintiffs in the Virginia case alleged that between 2002 and 2007 Headwaters used 1.5 million tons of toxic fly ash and byproducts, which contaminated its groundwater, surface water, and the air; diminished the property values of the surrounding homes; and exposed community members to serious bodily injury risks from the fly ash. Headwaters sought reimbursement of its litigation expenses from its two insurers, ACE Insurance Co. and Illinois Union Insurance Co. (collectively, ACE). ACE denied coverage under its environmental pollution exclusion, and Headwaters brought suit in Utah District Court to enforce coverage. ACE moved for summary judgment, arguing that the pollution exclusions expressly precluded coverage. Headwaters filed a cross-motion for summary judgment, but the district court agreed with ACE, finding the insurance policies unambiguously barred coverage for environmental pollution. Headwaters appealed.

The Tenth Circuit analyzed Headwaters’ claims, which contended the district court failed to appreciate ambiguities in coverage under the policies. According to Headwaters, those ambiguities precluded summary judgment in favor of ACE. Upon analysis of the pollution exclusions and the claims against Headwaters, however, the Tenth Circuit found no ambiguity. Applying Utah’s “eight corners rule” and contract law, the Tenth Circuit found the insurers had no duty to defend. Headwaters argued the language of the insurance policies’ exclusions impermissibly abolished all coverage, but the Tenth Circuit disagreed, finding instead multiple possible scenarios in which coverage would have been applicable. In the instant case, the allegations of pollution fell within the policies’ exclusions. The Tenth Circuit noted that Headwaters could have purchased additional coverage that would have provided a duty to defend against environmental claims.

The Tenth Circuit affirmed the district court’s grant of summary judgment in favor of ACE.

Tenth Circuit: Unpublished Opinions, 10/31/2014

On Friday, October 31, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Gregory v. Denham

United States v. Smith

United States v. Wardell

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: No Reasonable Jurist Could Have Found Trial Counsel’s Performance Deficient

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rodriguez on Wednesday, October 15, 2014.

Samuel Rodriguez pleaded guilty to the distribution of five grams or more of methamphetamine, and the district court sentenced him. The district court applied a career offender sentence enhancement based on Rodriguez’s two prior felony convictions involving crimes of violence or controlled substances. One of Rodriguez’s prior convictions was for simple assault under the Texas Penal Code. The parties disagree on whether the assault conviction constitutes a crime of violence. In an earlier appeal, Rodriguez’s attorney argued unsuccessfully that the conviction should not be considered a crime of violence. Rodriguez then sought collateral relief on a theory that his attorney had mishandled the issue. The district court recharacterized the request as a motion to vacate the sentence and denied it. Rodriguez then sought a Certificate of Appealability (COA), along with leave to amend his motion and a request to file in forma pauperis. The Tenth Circuit denied the COA and mooted the related requests.

The Tenth Circuit first noted that its prior ruling was the law of the case, and even if the current panel disagreed with the finding of the prior panel, it could not overturn that decision. Nevertheless, analyzing Rodriguez’s claim about the requisite mental state underlying his Texas assault offense, the Tenth Circuit found that the issue had been litigated in the prior ruling. The Tenth Circuit found that Rodriguez’s prior counsel advocated well for him, raising the claim that he did not have the requisite mental state, citing case law, and otherwise appropriately advocating, and declined to characterize Rodriguez’s appeal as anything other than an attempt to relitigate an already-decided issue.

The Tenth Circuit denied Rodriguez’s request for a COA and found moot his related requests to amend his motion and file in forma pauperis.

Tenth Circuit: The Government Has the Right to Regulate Its Own Property

The Tenth Circuit Court of Appeals issued its opinion in United States v. Jones on Friday, October 3, 2014.

Stanley Jones is a cattle rancher in Wyoming. His brother owns base properties close to two BLM public lands — the Sandstone and Cannady allotments. Mr. Jones frequently allows his cattle to graze on the BLM lands, despite lacking a permit to do so lawfully. After numerous administrative trespass notices and fines, the BLM brought criminal charges against Jones through the U.S. Attorney’s Office in Wyoming for one count of unlawful use of public lands and two counts of allowing his livestock to graze on public lands without authorization. Mr. Jones pled not guilty to all charges and requested a jury trial. At trial, Mr. Jones was convicted on all counts and sentenced to two years probation on each count, to be served concurrently, a $3,000 fine, a $75 special assessment fee, all contingent on his compliance with certain terms and conditions. Pro se, Mr. Jones appealed his convictions.

Mr. Jones implored the Tenth Circuit to consider the true and honest facts, which the Tenth Circuit considered a sufficiency of the evidence challenge. The Tenth Circuit considered the evidence against Mr. Jones, including that he has never been a permittee for grazing on public lands, he was told numerous times that he was not allowed to graze his cattle on the lands, he was told to remove his property from public lands, and he was fined for failure to remove his property and cattle from the public lands. The Tenth Circuit found overwhelming evidence to support Mr. Jones’ convictions.

The Tenth Circuit next addressed Mr. Jones’ contention that the trial court should have allowed his proposed testimony that the government should comply with Wyoming’s fence-out laws. However, this testimony was not related to the issues at hand, and it would have confused the jury. The government has the right to regulate its own property. The trial court’s exclusion of the fence-out evidence was proper.

The Tenth Circuit affirmed Mr. Jones’ convictions.


Tenth Circuit: Unpublished Opinions, 10/30/2014

On Thursday, October 30, 2014, the Tenth Circuit Court of Appeals issued no published opinion and seven unpublished opinions.

Arraez Brandy v. Holder

Moffett v. Colvin

Taufu’i v. Holder

United States v. Palmer

Hutchins v. Cessna Aircraft Co.

Acosta v. Daniels

Gomez v. Lopez

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Sex Offenders Have Continuing Duty to Keep Registration Information Up-to-Date

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lewis on Tuesday, September 30, 2014.

Marcus Lewis pleaded guilty to statutory rape in Missouri in 1996 and was sentenced to five years’ probation. He later served prison time because of a probation violation. Under the Sex Offender Registration and Notification Act (SORNA), Lewis was required for life to register as a sex offender. He last registered in Kansas in May 2011, and has not voluntarily registered in any state since then. SORNA requires sex offenders to register where they live, work, or attend school, and requires offenders to report any change in status to authorities.

In August 2011, a sheriff’s deputy in Kansas tried to locate Lewis for a warrant unrelated to his previous sex offense. The deputy used Lewis’s last known address from the sex offender registry, but learned that Lewis no longer lived there. Unable to find Lewis, the deputy alerted U.S. Marshals, who found a car associated with Lewis at the residence of his relatives in Missouri. Over a year later, Lewis was arrested in Atlanta on the Kansas warrant. In an interview with a U.S. Marshal, Lewis admitted that he had not registered because of the outstanding warrants. A federal grand jury indicted Lewis on one count of failing to register, and after a bench trial, Lewis was convicted. Following the conviction, Lewis filed a motion for judgment of acquittal, claiming improper venue and that the evidence was insufficient to support a conviction. His motion was denied, and Lewis appealed.

Lewis contended that venue in Kansas was improper, because he abandoned his home in Kansas, traveled through Missouri, and eventually settled in Georgia. Lewis argued that any SORNA violation occurred outside Kansas. The Tenth Circuit disagreed, finding that under SORNA, Lewis was required to report within three days that he had abandoned his Kansas residence or register in a new location within three days, so venue was proper in the departure district. Lewis also argued that he had abandoned his Kansas residence before the date listed on the indictment, but the Tenth Circuit found this argument flawed, as Lewis had a continuing requirement to update his information. Lewis next argued that his next registration date had not occurred at the time the sheriff discovered his abandonment of the Kansas residence, but the Tenth Circuit disagreed with his reasoning, as the purpose of SORNA is to keep registrations current regardless of where the offender resides, not to maintain one registration and allow the offender to be transitory as long as that one registration is maintained. Finally, Lewis argued that the government’s theory of the case was inherently flawed because it required a sex offender to notify the departure state of any change in location. The Tenth Circuit, however, determined that this was only partially true — sex offenders have a continuing requirement to update their registration, and if the offender does not re-register within three days of departure, the offender has the duty to notify the departing location of his departure.

The Tenth Circuit affirmed the district court’s judgment.

Tenth Circuit: Class Certification Appropriate where Class-Wide Impact Prevails Over Individual Issues

The Tenth Circuit Court of Appeals issued its opinion in In re Urethane Antitrust Litigation: Dow Chemical Co. v. Seegott Holdings, Inc. on Monday, September 29, 2014.

A class of plaintiffs brought suit against Dow Chemical Company and other manufacturers of polyurethane products, alleging price fixing in violation of the Sherman Antitrust Act and the Clayton Antitrust Act. A jury returned a verdict against Dow for $400,049,039. The district court entered judgment for the plaintiffs, denying Dow’s motions for decertification of the class and judgment as a matter of law. Dow appealed, arguing (1) class certification was improper because common questions did not predominate over individualized questions; (2) the district court should have excluded the testimony of the plaintiffs’ expert witness on statistics; (3) the evidence on liability was insufficient; and (4) the damages award lacked an evidentiary basis and the resulting judgment violated the Seventh Amendment. The Tenth Circuit addressed each contention in turn.

Dow argued that it was entitled to show in individualized proceedings that certain class members could not have been injured by the price fixing. The Tenth Circuit conceded that some class members could have avoided the price fixes by negotiating lower prices or switching to substitute products, but found no error in the district court’s finding that class-wide issues predominated over individual issues, because the key elements of the price fixing claim raised common questions that were capable of class-wide proof. Dow also argued that the plaintiffs’ expert, Dr. McClave, used unacceptable regression and extrapolation models to prove class-wide impact and damages. The Tenth Circuit noted that Dr. McClave had not yet testified when the court certified the class, so it could not have relied on his opinions. Although Dr. McClave had testified by the time Dow moved to decertify, the Tenth Circuit found no error in the trial court’s denial of the decertification motion, noting it was filed late — on the day before trial — and also that liability was not proven through a sample of class members so Dr. McClave’s extrapolation methods to prove damages had no bearing on proof of liability.

Dow also contended the district court erred in allowing Dr. McClave’s testimony. The Tenth Circuit disagreed, finding that many of Dow’s complaints spoke to the weight of the evidence and not admissibility. Dow had numerous complaints about the methods Dr. McClave used to determine that price fixing had occurred and to calculate damages. Dow also contended that Dr. McClave skewed the results of his findings in favor of plaintiffs. However, the Tenth Circuit found no error in the district court’s decision to resolve that “swearing match” in favor of the plaintiffs.

Dow challenged the sufficiency of the evidence regarding liability, arguing the district court erred in denying its motion for judgment as a matter of law. The Tenth Circuit found the evidence, viewed in a light most favorable to plaintiffs, sufficed as to (1) implementation of the alleged price fixing agreement, (2) the conspiracy as to another polyurethane manufacturer, Lyondell, and (3) the jury’s consideration of Dr. McClave’s models. The Tenth Circuit first addressed the price fixing agreements, noting the plaintiffs introduced evidence of admissions by industry insiders, collusive behavior, susceptibility of the industry to collusion, and setting of prices at a supra-competitive level, in addition to showing parallel price increases. Regarding the participation of Lyondell, the plaintiffs did not need to prove its collusion because there was sufficient evidence to implicate Dow even without evidence of collusion with Lyondell. Next, Dow argued that because the jury found no injury for part of the period evaluated by Dr. McClave, his models were necessarily invalid. The Tenth Circuit disagreed, noting that Dow’s “series of inferences” did not allow it to disturb the jury’s verdict.

Finally, Dow contended that because the jury varied downward from Dr. McClave’s calculation of damages, the entire award had no evidentiary basis and violated the Seventh Amendment. The Tenth Circuit found many possible reasons for the jury’s variance, none of which required reversal. Dow claimed the district court’s decision to allocate the damages award based on Dr. McClave’s model took from the jury the question of liability and assessment of damages. However, this argument failed, because the cases on which Dow relied were inapposite.

The Tenth Circuit affirmed the judgment of the district court.

Tenth Circuit: Unpublished Opinions, 10/29/2014

On Wednesday, October 29, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Jones v. Kuprivnikar

Parker v. Martin

Heer v. Costco Wholesale Corp.

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 10/28/2014

On Tuesday, October 28, 2014, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

United States v. Edwards

Nowlin v. United States

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 10/27/2014

On Monday, October 27, 2014, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Citizens United v. Gessler

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.