U.S. Ninth Circuit tag:blogs.findlaw.com,2009-03-31:/ninth_circuit/24 2009-07-02T23:53:45Z The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog Movable Type Enterprise 4.24-en Marilyn Nutraceuticals, Inc. v. Mucos Pharma GBMH & Co., No. 08-15101 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2258 2009-07-02T19:10:58Z 2009-07-02T23:53:45Z In a trademark infringement action involving the enzyme-based dietary supplement Wobenzym, the District Court's preliminary injunction requiring Defendant to cease selling a dietary supplement is affirmed in part, where Defendant did not meet its burden to prove that Plaintiff ceased... Chris Edgar In a trademark infringement action involving the enzyme-based dietary supplement Wobenzym, the District Court's preliminary injunction requiring Defendant to cease selling a dietary supplement is affirmed in part, where Defendant did not meet its burden to prove that Plaintiff ceased production of the supplement; but vacated in part, where a District Court must find a substantial risk of danger to the public or other special circumstances in order to enter an interlocutory order recalling a product in a trademark infringement case.

Read Marilyn Nutraceuticals, Inc. v. Mucos Pharma GBMH & Co., No. 08-15101

Appellate Information

Argued and Submitted October 20, 2008

Filed July 2, 2009

Judges

Opinion by Judge Thomas

Counsel

For Appellant:

Maria Salapska, Law Offices of Maria Salapska, PLLC, Phoenix, AZ

Paul M. Levine, McCarthy Holthus Levine, Phoenix, AZ

For Appellee:

Paul F. Donahue, K&L Gates LLP, Chicago, IL

Jason M. Marks, Bell, Boyd & Lloyd LLP, Chicago, IL

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]]> Bible v. Ryan, No. 07-99017 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2214 2009-07-01T18:12:42Z 2009-07-01T20:00:22Z In a capital habeas matter, the denial of Petitioner's petition is affirmed, where Petitioner was not prejudiced by any of his counsel's alleged errors during the sentencing phase of his trial, because there was no reasonable probability that the sentencing... Chris Edgar In a capital habeas matter, the denial of Petitioner's petition is affirmed, where Petitioner was not prejudiced by any of his counsel's alleged errors during the sentencing phase of his trial, because there was no reasonable probability that the sentencing judge would have reached a different result in the absence of the alleged errors.

Read Bible v. Ryan, No. 07-99017

Appellate Information

Argued and Submitted March 26, 2009

Filed July 1, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellant:

Daniel D. Maynard, Maynard Cronin Erickson Curran & Sparks, PLC, Phoenix, AZ

For Appellee:

Terry Goddard, Office of the Attorney General for Arizona, Phoenix, AZ

Kent Cattani, Office of the Attorney General for Arizona, Phoenix, AZ

Robert J. Gorman, Office of the Attorney General for Arizona, Phoenix, AZ

J.D. Nielsen, Office of the Attorney General for Arizona, Phoenix, AZ

]]> Chapman v. Pier One Imports (U.S.) Inc., No. 07-16326 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2144 2009-06-29T23:44:19Z 2009-06-29T23:48:13Z In an Americans with Disabilities Act action alleging failure to provide restroom accommodations in Defendant's store, summary judgment for Defendant is affirmed where Plaintiff did not have standing to challenge barriers he did not personally encounter. Read Chapman v. Pier... Chris Edgar In an Americans with Disabilities Act action alleging failure to provide restroom accommodations in Defendant's store, summary judgment for Defendant is affirmed where Plaintiff did not have standing to challenge barriers he did not personally encounter.

Read Chapman v. Pier One Imports (U.S.) Inc., No. 07-16326

Appellate Information

Argued February 11, 2009

Filed June 29, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Lynn Hubbard III, Law Offices of Lynn Hubbard, Chico, CA

Scottlynn J. Hubbard IV, Law Offices of Lynn Hubbard, Chico, CA

For Appellee:

Laura M. Franze, Akin Gump Strauss Hauer & Feld, LLP, Dallas, TX

Richard Cortez, Jr., Akin Gump Strauss Hauer & Feld, LLP, Dallas, TX

]]> Soriano v. Holder, No. 05-72116 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2085 2009-06-26T19:46:04Z 2009-06-26T21:05:48Z Petitioner's petition for review of the BIA's denial of his asylum application is denied, where government informants do not constitute a "particular social group" for purposes of analyzing their eligibility for asylum, and thus Petitioner did not meet the requirements... Chris Edgar Petitioner's petition for review of the BIA's denial of his asylum application is denied, where government informants do not constitute a "particular social group" for purposes of analyzing their eligibility for asylum, and thus Petitioner did not meet the requirements of 8 U.S.C. section 1101(a)(42)(A).

Read Soriano v. Holder, No. 05-72116

Appellate Information

Submitted June 2, 2009

Filed June 26, 2009

Judges

Opinion by Judge Graber

Counsel

Tasha Lani Huber, Korenberg & Abramowitz, Sherman Oaks, CA

Robert G. Stapleton, Criminal Division, U.S. Department of Justice, Washington, DC

]]> Lonberg v. Riverside, No. 06-55781 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2084 2009-06-26T19:41:58Z 2009-06-26T21:04:51Z In an Americans with Disabilities Act (ADA) action against a city for failure to accommodate Plaintiff's disability, an injunction in favor of Plaintiff is vacated where 28 C.F.R. section 35.150(d) is not enforceable through a private right of action. Read... Chris Edgar In an Americans with Disabilities Act (ADA) action against a city for failure to accommodate Plaintiff's disability, an injunction in favor of Plaintiff is vacated where 28 C.F.R. section 35.150(d) is not enforceable through a private right of action.

Read Lonberg v. Riverside, No. 06-55781

Appellate Information

Argued and Submitted February 2, 2009

Filed June 26, 2009

Judges

Opinion by Judge Callahan

Dissent by Judge Silverman

Counsel

For Appellant:

Gregory F. Hurley, Greenberg Traurig LLP, Costa Mesa, CA 

Stacey L. Herter, Greenberg Traurig LLP, Costa Mesa, CA 

For Appellee:

Terry J. Kilpatrick, San Luis Obispo, CA

Page Wellcome, Cardiff-by-the-Sea, CA

]]> US v. Cruz-Gramajo, No. 07-50381 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2083 2009-06-26T19:33:53Z 2009-06-26T21:01:04Z Defendants' sentences for illegal reentry into the U.S. are affirmed, where the District Court in each Defendant's case properly included Defendants' intervening state law crimes, before they were discovered by immigration authorities, in their criminal history calculation. Read US v.... Chris Edgar Defendants' sentences for illegal reentry into the U.S. are affirmed, where the District Court in each Defendant's case properly included Defendants' intervening state law crimes, before they were discovered by immigration authorities, in their criminal history calculation.

Read US v. Cruz-Gramajo, No. 07-50381

Appellate Information

Argued and Submitted October 24, 2008

Filed June 26, 2009

Judges

Opinion by Judge Hall

Partial Concurrence and Partial Dissent by Judge Pregerson

Counsel

For Appellants:

Phillip I. Bronson, Sherman Oaks, California

Davina T. Chen, Deputy Federal Public Defender, Los Angeles, CA

Michael Tanaka, Deputy Federal Public Defender, Los Angeles, CA

Gia Kim, Deputy Federal Public Defender, Los Angeles, CA

For Appellees:

Jeff P. Mitchell, Assistant United States Attorney, Domestic Security and Immigration Crimes Section, Los Angeles, CA

Erik M. Silber, Assistant United States Attorney, Criminal Appeals Section, Los Angeles, CA

]]> US v. Showalter, No. 08-50109 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2081 2009-06-26T19:24:07Z 2009-06-26T21:00:00Z In a wire fraud matter, the denial of Defendant's motion to withdraw his guilty plea is affirmed, where "newly available evidence" does not constitute "newly discovered evidence" justifying withdrawal of a guilty plea. Sentence is vacated, where there was insufficient... Chris Edgar In a wire fraud matter, the denial of Defendant's motion to withdraw his guilty plea is affirmed, where "newly available evidence" does not constitute "newly discovered evidence" justifying withdrawal of a guilty plea. Sentence is vacated, where there was insufficient evidence to support the number of victims enhancement imposed by the District Court.

Read US v. Showalter, No. 08-50109

Appellate Information

Argued and Submitted April 8, 2009

Filed June 26, 2009

Judges

Opinion by Judge Thompson

Counsel

For Appellant:

Ezekiel E. Cortez, San Diego, CA

For Appellee:

Mieke Biesheuvel, Santa Ana, CA

]]> Cadkin v. Loose, No. 08-55311 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2080 2009-06-26T19:13:52Z 2009-06-26T20:42:27Z In an appeal from an order granting attorney's fees to Defendant following Plaintiffs' voluntary dismissal of their copyright lawsuit, the order is reversed where, because Plaintiffs remained free to refile their copyright claims, they were not "prevailing parties" and thus... Chris Edgar In an appeal from an order granting attorney's fees to Defendant following Plaintiffs' voluntary dismissal of their copyright lawsuit, the order is reversed where, because Plaintiffs remained free to refile their copyright claims, they were not "prevailing parties" and thus were not entitled to attorney's fees.

Read Cadkin v. Loose, No. 08-55311

Appellate Information

Argued and Submitted May 8, 2009

Filed June 26, 2009

Judges

Opinion by Judge Fisher.

Counsel

For Appellants:

Marty O'Toole, Law Offices of Marty O'Toole, Los Angeles, CA

For Appellees:

Sandra Levin, Colantuono & Levin, P.C., Los Angeles, CA

Michael A. Morguess, Colantuono & Levin, P.C., Los Angeles, CA

]]> Cunning v. Rucker, No. 08-55652 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2079 2009-06-26T19:09:02Z 2009-06-26T20:40:24Z In an appeal from the Bankruptcy Court's order denying an exemption for Debtor's assets in pension and 401(k) plans, the order is affirmed, where the retirement plans were not designed and used primarily for retirement purposes. Read Cunning v. Rucker,... Chris Edgar In an appeal from the Bankruptcy Court's order denying an exemption for Debtor's assets in pension and 401(k) plans, the order is affirmed, where the retirement plans were not designed and used primarily for retirement purposes.

Read Cunning v. Rucker, No. 08-55652

Appellate Information

Argued and Submitted May 8, 2009

Filed June 26, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellants:

Kyra E. Andrassy, Weiland, Golden, Smiley, Wang Ekvall & Strok, LLP, Costa Mesa, CA

For Appellees:

Mark Bradshaw, Shulman Hodges & Bastian LLP, Foothill Ranch, CA

Evan D. Smiley, Shulman Hodges & Bastian LLP, Foothill Ranch, CA

]]> NLRB v. C&C Roofing Supply, Inc., No. 08-70335 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2039 2009-06-25T20:53:08Z 2009-06-25T22:42:42Z The NLRB's petition to enforce a consent judgment providing that Respondent would reinstate unlawfully terminated employees is granted, where the burden was on Respondent to provide proper proof, satisfactory to the NLRB, of the unauthorized status of those individuals it... Chris Edgar The NLRB's petition to enforce a consent judgment providing that Respondent would reinstate unlawfully terminated employees is granted, where the burden was on Respondent to provide proper proof, satisfactory to the NLRB, of the unauthorized status of those individuals it claims were unauthorized aliens it was not permitted to rehire.

Read NLRB v. C&C Roofing Supply, Inc., No. 08-70335

Appellate Information

Argued and Submitted June 10, 2009

Filed June 25, 2009

Judges

Opinion by Judge B. Fletcher

Counsel

Robert Englehart, Assistant General Counsel, National Labor Relations Board, Washington, DC

Michael E. Avakian, Smetana & Avakian, Springfield, VA

]]> US v. Garcia-Hernandez, No. 08-50190 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2038 2009-06-25T20:48:29Z 2009-06-25T21:21:15Z Defendant's conviction and sentence for illegal reentry into the U.S. are affirmed where: 1) the indictment was legally sufficient to support Defendant's enhanced sentence; and 2) the District Court properly denied Defendant's motion to suppress his post-arrest confession of alienage.... Chris Edgar Defendant's conviction and sentence for illegal reentry into the U.S. are affirmed where: 1) the indictment was legally sufficient to support Defendant's enhanced sentence; and 2) the District Court properly denied Defendant's motion to suppress his post-arrest confession of alienage.

Read US v. Garcia-Hernandez, No. 08-50190

Appellate Information

Submitted February 10, 2009

Decided June 25, 2009

Judges

Opinion by Judge Ikuta

Counsel

For Appellant:

Devin J. Burstein, San Diego, CA

For Appellee:

Aaron B. Clark, San Diego, CA

]]> Zango, Inc. v. Kaspersky Lab, Inc., No. 07-35800 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2037 2009-06-25T20:41:09Z 2009-06-25T21:18:08Z In an action claiming that Defendant's anti-virus software interfered with the use of downloadable programs by customers of Plaintiff online media company, summary judgment for Defendant is affirmed, where a distributor of Internet security software is entitled to immunity under... Chris Edgar In an action claiming that Defendant's anti-virus software interfered with the use of downloadable programs by customers of Plaintiff online media company, summary judgment for Defendant is affirmed, where a distributor of Internet security software is entitled to immunity under the safe harbor provision of the Communications Decency Act.

Read Zango, Inc. v. Kaspersky Lab, Inc., No. 07-35800

Appellate Information

Argued February 2, 2009

Filed June 25, 2009

Judges

Opinion by Judge Rymer

Concurrence by Judge Fisher

Counsel

Michael Rosenberger, Gordon Tilden Thomas & Cordell LLP, Seattle, WA

Erik Paul Belt, Bromberg & Sunstein LLP, Boston, MA

]]> Batlan v. Bledsoe, No. 07-35567 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2036 2009-06-25T20:36:15Z 2009-06-25T21:16:14Z In a bankruptcy trustee's motion to avoid a transfer made pursuant to a state court judgment dissolving the Debtor's marriage, the order denying the trustee's motion is affirmed where, under Oregon law, a party who challenges a dissolution judgment must... Chris Edgar In a bankruptcy trustee's motion to avoid a transfer made pursuant to a state court judgment dissolving the Debtor's marriage, the order denying the trustee's motion is affirmed where, under Oregon law, a party who challenges a dissolution judgment must allege and prove "extrinsic fraud," and the trustee failed to do so.

Read Batlan v. Bledsoe, No. 07-35567

Appellate Information

Argued December 9, 2008

Decided June 25, 2009

Judges

Opinion by Judge Graber

Partial Concurrence and Partial Dissent by Judge O'Scannlain

Counsel

For Appellant:

Peter C. McKittrick, Farleigh Witt, Portland, OR

Christopher L. Parnell, Farleigh Witt, Portland, OR

For Appellee:

David B. Mills, Hammons & Mills, Eugene, OR

]]> Phelps v. Alameda, No. 07-15167 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2035 2009-06-25T20:30:27Z 2009-06-25T20:48:56Z In a murder prosecution, the dismissal of Petitioner's habeas petition is reversed, where 1) Fed. R. Crim. P. 60(b)(6) motions may be predicated on intervening changes in the law; and 2) under Rule 24 of the California Rules of Court,... Chris Edgar In a murder prosecution, the dismissal of Petitioner's habeas petition is reversed, where 1) Fed. R. Crim. P. 60(b)(6) motions may be predicated on intervening changes in the law; and 2) under Rule 24 of the California Rules of Court, a denial of a habeas petition is not final for 30 days after filing.

Read Phelps v. Alameda, No. 07-15167

Appellate Information

Argued and Submitted January 13, 2009

Filed June 25, 2009

Judges

Opinion by Judge Reinhardt

Counsel

For Petitioner:

Albert Joel Kutchins, Berkeley, CA

For Respondent:

Juliet B. Haley, Deputy Attorney General, San Francisco, CA

]]> Mission Bay Jet Sports, LLC v. Colombo, No. 08-56142 tag:blogs.findlaw.com,2009:/ninth_circuit//24.2005 2009-06-24T19:41:45Z 2009-06-24T20:21:25Z In an action for negligent operation of a boat, the dismissal of the action for lack of admiralty jurisdiction is reversed, where the location of the accident and its connection to traditional maritime activity sustained admiralty jurisdiction. Read Mission Bay... Chris Edgar In an action for negligent operation of a boat, the dismissal of the action for lack of admiralty jurisdiction is reversed, where the location of the accident and its connection to traditional maritime activity sustained admiralty jurisdiction.

Read Mission Bay Jet Sports, LLC v. Colombo, No. 08-56142

Appellate Information

Argued and Submitted June 3, 2009

Filed June 24, 2009

Judges

Opinion by Judge Rymer

Counsel

For Appellants:

Sterling J. Stires, Law Offices of Charles S. LiMandri, Rancho Santa Fe, CA

For Appellees:

Thomas L. Tosdal, Tosdal, Smith, Steiner & Wax, San Diego, CA

Ann M. Smith, Tosdal, Smith, Steiner & Wax, San Diego, CA

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