U.S. Eighth Circuit

Boyle v. Am. Auto Serv., Inc., No. 08-2584

2009-07-02T20:17:45Z

District court order dismissing plaintiff's claim with prejudice for failure to prosecute his complaint is affirmed where: 1) the court properly applied Federal Rule of Civil Procedure 41(b) to the situation where plaintiff timely failed to serve the complaint before the case was removed from state to federal court; and 2) the court did not abuse its discretion in dismissing the case based on a 44-month delay in service as the delay was unexcused.

Read Boyle v. Am. Auto Serv., Inc., No. 08-2584

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: February 13, 2009
Filed: July 2, 2009

Judges
Before RILEY, SMITH, and SHEPHERD, Circuit Judges.
Opinion by SMITH, Circuit Judge.

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Howard v. Kansas City Police Dep't, No. 08-2448

2009-07-02T20:15:28Z

District court order denying defendant-police officers' motion for summary judgment on plaintiff's claim of excessive force on the basis of qualified immunity is affirmed where: 1) the defendants violated plaintiff's Fourth Amendment right to be free from excessive force when they seized him, as the defendants' actions in forcing a victim with gunshot wounds to lie without a shirt on hot asphalt and causing second-degree burns were not objectively reasonable; and 2) the defendants had fair warning that their alleged conduct was not objectively reasonable, and thus unconstitutional.

Read Howard v. Kansas City Police Dep't, No. 08-2448

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: January 16, 2009
Filed: July 2, 2009

Judges
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
Opinion by BYE, Circuit Judge.

Roubideaux v. North Dakota Dep't of Corr. and Rehabilitation, No. 07-3780

2009-07-02T20:12:53Z

In a sex discrimination action brought by female prison inmates, district court grant of summary judgment for defendant is affirmed where: 1) the female inmates had standing to challenge the constitutionality of the two challenged gender-explicit statutes; 2) the evidence in the record raises no inference of gender discrimination in the decision-making process because the statutes in question substantially relate to the important government objective of providing adequate segregated housing for female inmates, and any equal protection claim arising out the inmates' previous housing was mooted by their transfer to the Correction and Rehabilitation Center; 3) prison industry assignments were not subject to Title IX as the primary purpose of the program is employment, not education; and 4) the vocational education programs were within the scope of Title IX, and the district court did not err in finding that any differences in the programs offered men and women were a function of the location of the facilities and not gender discrimination.

Read Roubideaux v. North Dakota Dep't of Corr. and Rehabilitation, No. 07-3780

Appellate Information
Appeal from the United States District Court for the District of North Dakota.
Submitted: November 13, 2008
Filed: July 2, 2009

Judges
Before MURPHY, HANSEN, and RILEY, Circuit Judges.
Opinion by HANSEN, Circuit Judge.

Bill M. v. Nebraska Dep't of Health and Human Serv., No. 08-2586

2009-07-02T20:10:26Z

In a dispute involving attorney's fees, district court judgment is affirmed where the district court properly denied the plaintiffs' request for attorneys' fees under the applicable federal fee-shifting statutes, as the parties' settlement agreement did not require the court's approval, incorporation in a court order, or retention of jurisdiction for future oversight and enforcement and thus lacked the necessary judicial imprimatur to confer upon the plaintiffs prevailing party status.

Read Bill M. v. Nebraska Dep't of Health and Human Serv., No. 08-2586

Appellate Information
Appeal from the United States District Court for the District of Nebraska.
Submitted: March 9, 2009
Filed: July 2, 2009

Judges
Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
Opinion by COLLOTON, Circuit Judge.

US v. Lee, No. 08-2860

2009-07-02T20:08:01Z

Sentence for aiding and abetting assault with intent to rob a post office is affirmed where: 1) the district court did not err in overruling defendant's objections to the sentencing enhancements without requiring the government to present any evidence as there was sufficient evidence in the record to support each of the enhancements; and 2) the court did not err in imposing an enhancement under Guidelines sec. 2B3.1(b)(4)(B), as one of his accomplices struck a woman attempting to leave the post office during the robbery, thereby physically restraining the victim.

Read US v. Lee, No. 08-2860

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: March 13, 2009
Filed: July 2, 2009

Judges
Before SMITH, GRUENDER, and BENTON, Circuit Judges.
Opinion by SMITH, Circuit Judge.

US v. Schmidt, No. 08-3093

2009-07-02T20:06:01Z

Conviction and sentence for being a felon in possession of a firearm and ammunition is affirmed where: 1) the district court had jurisdiction over the offense as defendant's possession of a firearm manufactured out of country and ammunition manufactured out of state was sufficient to satisfy 18 U.S.C. sec. 922(g)(1)'s required nexus to interstate commerce; and 2) defendant's sentence was not unreasonable.

Read US v. Schmidt, No. 08-3093

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: May 15, 2009
Filed: July 2, 2009

Judges
Before RILEY, SMITH, and COLLOTON, Circuit Judges.
Opinion by RILEY, Circuit Judge.

Chibwe v. Holder, No. 08-3407

2009-07-02T20:03:51Z

Petition for review of an order denying asylum, withholding of removal, and protection under the Convention Against Torture is denied where: 1) the present does not have jurisdiction to review the agency's decision that plaintiff's asylum application was untimely; and 2) the agency did not err in denying their request for withholding of removal, as plaintiff's failed to cite any evidence in the record which would support a finding that they faced a threat because of their membership in a particular social group or any other relevant statutory ground if they were returned to their home country.

Read Chibwe v. Holder, No. 08-3407

Appellate Information
Petition for Review of a Decision of the United States Board of Immigration Appeals.
Submitted: June 8, 2009
Filed: July 2, 2009

Judges
Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.
Opinion by ARNOLD, Circuit Judge.

Clarendon National Ins. Co. v. United Fire & Casualty Co., No. 08-3535

2009-07-02T20:01:34Z

In an action brought to determine the priority of coverage between certain insurance policies, district court judgment is affirmed where: 1) defendant's demand for plaintiff to be involved in the defense of anticipated suits by injured parties is enough to create an actual controversy and give plaintiff the right to bring a declaratory judgment action to determine priority of coverage; and 2) the court did not err in determining that defendant's policy provided primary coverage for the accident and that its umbrella policy would also be triggered before the policy issued by plaintiff came into play.

Read Clarendon National Ins. Co. v. United Fire & Casualty Co., No. 08-3535

Appellate Information
Appeal from the United States District Court for the Eastern District of Arkansas.
Submitted: June 11, 2009
Filed: July 2, 2009

Judges
Before BYE, HANSEN, and BENTON, Circuit Judges.
Opinion by BYE, Circuit Judge.

US v. Davis, No. 08-3536

2009-07-02T19:58:42Z

Conviction for firearms possession is affirmed where: 1) the search of defendant's vehicle without a warrant was permissible under the Fourth Amendment as it was lawful search incident to arrest, and thus firearm found in vehicle was admissible; and 2) the court properly ruled that the search was permissible under the automobile exception to the warrant requirement as well.

Read US v. Davis, No. 08-3536

Appellate Information
Appeal from the United States District Court for the Western District of Missouri.
Submitted: April 14, 2009
Filed: July 2, 2009

Judges
Before RILEY, BENTON, and SHEPHERD, Circuit Judges.
Opinion by SHEPHERD, Circuit Judge.

US v. Pepper, No. 09-1191

2009-07-02T19:56:35Z

Sentence for drug crimes is affirmed where: 1) this court's prior remand did not require the district court to grant defendant a 40 percent downward departure for substantial assistance as the remand was a general remand for resentencing and did not place any limitations on the discretion of the district court judge in resentencing; 2) the court did not abuse its discretion by refusing to grant more than a 20 percent reduction based on defendant's substantial assistance; 3) the court did not abuse its discretion by denying defendant's request for a downward variance based on his post-sentencing rehabilitation and the cost of his incarceration; and 4) defendant's sentence was not unreasonable.

Read US v. Pepper, No. 09-1191

Appellate Information
Appeal from the United States District Court for the Northern District of Iowa.
Submitted: May 14, 2009
Filed: July 2, 2009

Judges
Before RILEY, SMITH, and COLLOTON, Circuit Judges.
Opinion by RILEY, Circuit Judge.

US v. Cruz-Zuniga, No. 08-3272

2009-07-01T21:03:45Z

Conviction for drug crimes is affirmed where: 1) the district court did not abuse its discretion in using Eighth Circuit Model Jury Instruction 4.05A on the credibility of cooperating witnesses as opposed to defendant's proposed non-pattern instruction on the issue; 2) the court did not abuse its discretion by giving Model Instruction 3.11 on reasonable doubt; 3) the court did not err uin applying a preponderance of the evidence standard to determine the drug quantity attributable to defendant for sentencing purposes; 4) the court's refusal to grant defendant a downward variance for acceptance of responsibility did not wrongfully punish him for exercising his constitutional right to stand trial; and 5) the court properly considered and applied the 18 U.S.C sec. 3553(a) sentencing factors and did not impose an unreasonable sentence.

Read US v. Cruz-Zuniga, No. 08-3272

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: April 5, 2009
Filed: July 1, 2009

Judges
Before RILEY, BENTON, and SHEPHERD, Circuit Judges..
Opinion by RILEY, Circuit Judge.

Michigan Millers Mutual Ins. Co. v. DG&G Co., Inc., No. 08-2699

2009-07-01T21:01:17Z

In a dispute involving insurance liability coverage, district court's grant of summary judgment for plaintiff is affirmed where: 1) the cotton was in defendant's custody, control and care at the time of the property-damaging occurrence and thus the control and care exclusion in the insurance policy issued by plaintiff applied; and 2) the damage to the cotton was not covered by defendant's agribusiness insurance policy as the defects, errors and omissions exclusion in the policy applies and precludes coverage of the loss.

Read Michigan Millers Mutual Ins. Co. v. DG&G Co., Inc., No. 08-2699

Appellate Information
Appeal from the United States District Court for the Eastern District of Missouri.
Submitted: January 16, 2009
Filed: July 1, 2009

Judges
Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
Opinion by LOKEN, Circuit Judge.

McNamara v. Yellow Transp., Inc., No. 08-2654

2009-07-01T20:57:55Z

District court's denial of defendant's motion to compel arbitration of plaintiff's retaliation, gender discrimination, and Family and Medical Leave Act claims is reversed where plaintiff was not a transportation worker exempted from the Federal Arbitration Act and defendant did not waive its right to arbitrate by failing to move for arbitration during the EEOC proceedings prior to plaintiff's filing of this suit.

Read McNamara v. Yellow Transp., Inc., No. 08-2654

Appellate Information
Appeal from the United States District Court for the District of South Dakota.
Submitted: February 13, 2009
Filed: July 1, 2009

Judges
Before LOKEN, Chief Judge, MELLOY and BENTON, Circuit Judges.
Opinion by MELLOY, Circuit Judge.

US v. Balentine, No. 08-1871

2009-07-01T20:53:41Z

District court order imposing restitution is affirmed where the requirement in 18 U.S.C. sec. 3664(d)(5) that the district court enter a restitution order within 90 days of sentencing does not divest the court of the authority to enter an order if the timing provision is breached, as such an interpretation finds no support in the text of the statute, would contravene the purposes of the Mandatory Victim Restitution Act and would reward defendants at the expense of their victims.

Read US v. Balentine, No. 08-1871

Appellate Information
Appeal from the United States District Court for the Eastern District of Arkansas.
Submitted: April 15, 2009
Filed: July 1, 2009

Judges
Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
Opinion by BYE, Circuit Judge.

US v. Hernandez, No. 08-3460

2009-06-30T19:21:54Z

Conviction and sentence for drug crimes is affirmed where: 1) the jury's verdict was supported by sufficient evidence to sustain a conviction for the offenses; and 2) defendant's sentence was substantively and procedurally reasonable, and not an abuse of the district court's discretion.

Read US v. Hernandez, No. 08-3460

Appellate Information
Appeal from the United States District Court for the District of Nebraska.
Submitted: May 11, 2009
Filed: June 30, 2009

Judges
Before RILEY, SMITH, and COLLOTON, Circuit Judges.
Opinion RILEY, Chief Judge.