• 05 Aug 2021 1:05 PM | Kathi McKeown

    Southard v. Newcomb Oil Co., LLC

    Docket: 20-5318 

    Opinion Date: August 4, 2021

    Judge: R[ansey] Guy Cole, Jr. 

    Areas of Law: Arbitration & Mediation, Labor & Employment Law

    Southard worked for Newcomb, then filed a putative class action, alleging violations of the Fair Labor Standards Act, 29 U.S.C. 201, plus state-law claims. Newcomb removed the case to federal court. Southard amended his complaint to delete the FLSA claim. Newcomb moved to dismiss Southard’s complaint or to stay the action pending arbitration. The district court concluded that the parties did not form an agreement to arbitrate under the Federal Arbitration Act, 9 U.S.C. 3-4 and denied Newcomb’s motion, then remanded Southard’s remaining state-law claims to state court. The Sixth Circuit affirmed. To invoke FAA remedies, the parties must have entered into a “written agreement for arbitration.” Courts evaluate whether an agreement qualifies as FAA arbitration based on the common features of classic arbitration: a final, binding remedy by a third party, an independent adjudicator, substantive standards, and an opportunity for each side to present its case. Southard’s application for employment states: I accept that any complaint or conflict that cannot be resolved internally may be referred to Alternative Dispute Resolution unless prohibited by law, before any other legal action is taken. The employee handbook states the employee agrees "to Alternative Dispute Resolution a forum or means for resolving disputes, as arbitration or mediation, that exists outside the state or federal judicial system, unless prohibited by law," and If there is a conflict that cannot be resolved, "both agree that the matter will be referred to mediation.”. The parties agreed to alternative dispute resolution generally, not arbitration specifically.

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  • 23 Jul 2021 2:25 PM | Kathi McKeown

    KDC is pleased to welcome its two newest members:

    Cameron David Allen of Porter, Banks, Baldwin & Shaw, PLLC, Paintsville, is a graduate of the Appalachian School of Law.  Mr. Allen practices in the are of Insurance.  He is sponsored by KDC Director, Jonathan Shaw.

    Zachary Holdon Damron of Ward, Hocker & Thornton, PLLC, Lexington, is a graduate of the University of Kentucky Law School.  Mr. Damron practices in the areas of Insurance & Tort.  He is sponsored by KDC member,  John O. Hollon.

  • 23 Jul 2021 2:23 PM | Kathi McKeown

    Himmelreich v. Federal Bureau of Prisons

    Docket: 19-4146 

    Opinion Date: July 22, 2021

    Judge: Karen Nelson Moore 

    Areas of Law: Civil Rights, Constitutional Law, Criminal Law

    In 2008, another inmate, Macari, assaulted Himmelreich, who had pleaded guilty to producing child pornography, Himmelreich alleges that Macari was placed in the general population despite making comments about targeting “pedophiles.” Himmelreich filed a Tort Claim Notice with the Federal Bureau of Prisons. Himmelreich alleges that Captain Fitzgerald warned him not to complain and threatened to have him transferred. Prison officials subsequently placed Himmelreich in the special housing unit (SHU). Himmelreich claims that Fitzgerald told him it was because of the Tort Claim. Prison officials claim they placed Himmelreich in the SHU for his own protection after he complained of threats from other inmates. Himmelreich’s subsequent lawsuits alleged numerous claims against prison officials, including a “Bivens” claim for retaliation in violation of the First Amendment based on Fitzgerald’s alleged threats and statements. Fitzgerald unsuccessfully moved for summary judgment only on the ground that there is no Bivens remedy for a First Amendment retaliation claim. The Sixth Circuit dismissed Fitzgerald’s appeal for lack of jurisdiction because her appeal concerns neither a final order nor a non-final order entitled to review under the collateral order doctrine.

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  • 22 Jul 2021 3:19 PM | Kathi McKeown

    US Court of Appeals for the Sixth Circuit Opinions

    Rowland v. Southern Health Partners, Inc

    Docket: 20-5944 

    Opinion Date: July 21, 2021

    Judge: John M. Rogers 

    Areas of Law: Civil Procedure

    Rowland brought claims arising from injuries she sustained while incarcerated. The district court entered partial summary judgment in favor of the defendants on Rowland’s 42 U.S.C. 1983 and punitive damages claims. After that judgment, by agreement of the parties, the court entered an order dismissing Rowland’s remaining state-law negligence claims without prejudice, so that Rowland could pursue an appeal on her federal claims. Civil Rule 54(b) permits a district court to enter final judgment “as to one or more, but fewer than all, claims or parties” when it determines, using a multi-factor analysis, that “there is no just reason for delay.” The Seventh Circuit concluded that it lacked jurisdiction over the appeal because the voluntary dismissal of Rowland’s remaining state-law claims did not create an appealable final order under 28 U.S.C. 1291, A litigant cannot circumvent the requirements of Rule 54(b) by the expedient of voluntarily dismissing her surviving claims in order to seek immediate appellate review of an adverse judgment on her resolved claims, with the intention of reinstating the dismissed claims should she obtain a favorable outcome on appeal. Such a dismissal does not create a final order under 28 U.S.C. 1291.

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  • 20 Jul 2021 2:23 PM | Kathi McKeown

    United States v. Pioch

    Docket: 19-3919 

    Opinion Date: July 19, 2021

    Judge: Karen Nelson Moore 

    Areas of Law: Criminal Law, Government & Administrative Law

    Pioch and co-defendants were convicted based on their scheme to defraud the multimillion-dollar estate of an elderly widower. Pioch was sentenced to 111 months’ imprisonment with a special assessment of $3,700 and restitution of $2,037,783.30. Pioch shares joint-and-several liability with her co-defendants for $1,990,342.76 of the restitution to McLaughlin (victim’s son), under the Mandatory Victims Restitution Act of 1996, 18 U.S.C. 3664(i)). Pioch personally owes the remaining $47,440.54 to the IRS, so she is liable for a total of $2,041,483.30 for the assessment and restitution. The government sought garnishment and, invoking the Federal Debt Collection Procedures Act (FDCPA), 28 U.S.C. 3011(a)), requested a 10% surcharge, $204,148.33. The district court granted the garnishment and surcharge requests. The Sixth Circuit remanded, rejecting Pioch's argument that the surcharge should be calculated based on the “debt” that the government “actually recover[s] through enforcement of a collection remedy” (10% of the $367,681.48 subject to garnishment) and not the total debt resulting from her crimes (10% of the $2,041,483.30 judgment). When the government initiates an FDCPA action to recover debt owed to the United States, the government is entitled to recover a 10% surcharge on the entire outstanding debt; the debt must be paid off before the United States may collect the surcharge, which is added to, not subtracted from, the judgment.

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  • 19 Jul 2021 3:58 PM | Kathi McKeown

    KDC is pleased to welcome its newest Member, Roxanne Edling of Baptist Healthcare Systems, Inc., Louisville.

  • 19 Jul 2021 10:53 AM | Kathi McKeown

    Alliance WOR Properties, LLC v. Illinois Methane, LLC

    Docket: 20-5396 

    Opinion Date: July 12, 2021

    Judge: Larsen 

    Areas of Law: Bankruptcy, Civil Procedure, Real Estate & Property Law

    In 1998, Old Ben Coal Company conveyed its rights to the methane gas in various coal reserves to Illinois Methane. A “Delay Rental Obligation” required the owner of the coal estate to pay Methane rent while it mined coal in areas that Methane had not yet exploited. A deed, including the Delay Rental Obligation was recorded. A few years later, Old Ben filed for bankruptcy and purported to sell its coal interests “free and clear of any and all Encumbrances” to Alliance. Old Ben did not notify Methane before the bankruptcy sale but merely circulated notice by publication in several newspapers. Alliance later sought a permit to mine coal. Methane eventually sought to collect rent in Illinois state court. Alliance argued that Old Ben’s “free and clear” sale had extinguished Methane’s interest. The bankruptcy court held that Alliance was not entitled to an injunction. The district court and Sixth Circuit affirmed. The deed indicates that the Delay Rental Obligation runs with the land and binds successors; it “is not simply a personal financial obligation between” Old Ben and Methane. The covenant directly affects the value of the coal and methane estates. Methane was a known party with a known, present, and vested interest in real property, entitled to more than publication notice.

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  • 19 Jul 2021 10:47 AM | Kathi McKeown

    Taylor v. Buchanan

    Docket: 20-2002 

    Opinion Date: July 15, 2021

    Judge: Karen Nelson Moore 

    Areas of Law: Civil Rights, Constitutional Law, Legal Ethics

    Michigan attorneys, like those in most other states, must join an integrated bar association in order to practice law. Taylor, a Michigan attorney, argued that requiring her to join the State Bar of Michigan violates her freedom of association and that the State Bar’s use of part of her mandatory membership dues for advocacy activities violates her freedom of speech. The Seventh Circuit affirmed the rejection of Taylor’s First Amendment claims as foreclosed by two Supreme Court decisions that have not been overruled: Lathrop v. Donohue (1961) Keller v. State Bar of California (1990). The court rejected Taylor's argument that Lathrop and Keller no longer control because of the 2018 decision in Janus v. American Federation of State, County, and Municipal Employees where the Court held that First Amendment challenges to similar union laws are to be analyzed under at least the heightened “exacting scrutiny” standard Even where intervening Supreme Court decisions have undermined the reasoning of an earlier decision, courts must continue to follow the earlier case if it “directly controls” until the Court has overruled it.

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  • 19 Jul 2021 10:40 AM | Kathi McKeown

    KDC is pleased to welcome its newest member.

    Meredith Cave of Kinkead & Stilz, PLLC, Lexington is a graduate of the University of Kentucky College of Law.  Ms. Cave practices in the areas of Business Litigation, Civil Rights, Commercial, Construction, Contract, Insurance, Medical Malpractice, Professional Liability, Property, Real Estate Transaction Liability and Professional Liability.  She is sponsored by KDC member, Melanie Sublett Marrs.

  • 08 Jul 2021 9:13 AM | Kathi McKeown

    In re: Hall

    Docket: 21-2655 

    Opinion Date: July 6, 2021

    Judge: Per Curiam 

    Areas of Law: Civil Procedure, Class Action

    Objectors to a class action settlement in the Flint Water Cases sought to compel the district court to cease holding off-the-record substantive ex parte meetings that exclude objectors’ counsel; to order the participants at certain conferences to recount for the record their recollection of what transpired at those conferences; to order settling parties to identify any other substantive unrecorded conferences since February 26, 2021; and to refrain from continuing to prescribe or dictate the litigation strategy of the parties in advocating for the settlement. The Sixth Circuit denied the petition. Despite the seriousness of their allegations, petitioners must show that mandamus is the appropriate remedy. The district court has not approved the settlement; their objections remain pending. If the court overrules their objections, and if the petitioners believe this decision was because of some impropriety, they can bring a direct appeal. Petitioners have not shown a clear and indisputable right to the relief they seek. Requiring district courts to invite unnamed class members and individual attorneys to every proceeding risks the efficiency interests that class actions are meant to promote. District courts appoint interim lead and liaison counsel to represent the class’s interests in pre-judgment proceedings. The court’s order indicates that it is aware of its ethical obligations and plans to hear from objectors during the fairness hearing.

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    Copen v. United States

    Docket: 20-3136 

    Opinion Date: July 6, 2021

    Judge: Jane Branstetter Stranch 

    Areas of Law: Civil Procedure, Government & Administrative Law, Personal Injury

    Paul was driving his daughter Kelly’s vehicle when it was struck by a United States Postal Service (USPS) vehicle. Kelly was a passenger. Days later, Kelly filed her SF 95, for a claim under Federal Tort Claims Act (FTCA), 28 U.S.C. 2671–80. Use of the form is not required to present an FTCA claim. Kelly listed herself as the claimant, noted Paul’s involvement, and indicated that the extent of their injuries was unknown. Kelly alone signed the form and provided only her contact information. The form requests a total amount of damages and states: “[f]ailure to specify may cause forfeiture of your rights.” Kelly wrote: “I do not have ... a total on medical.” Kelly sent USPS the final car repair bill, which USPS paid. Later, USPS received a representation letter from counsel for Kelly that did not mention Paul. USPS responded, stating: “A claim must be for a specific dollar amount.” USPS states that it did not receive any further information concerning the amount of personal injury damages. Paul and Kelly filed suit, seeking $25,000 in personal injury damages. The district court dismissed for lack of jurisdiction. The Sixth Circuit remanded. While the sum certain requirement in the FTCA is not jurisdictional, Kelly never provided a sum certain so, her personal injury claim is not cognizable. The agency had adequate notice of Paul’s claim but he also failed to satisfy the statutory “sum certain” requirement.

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