Civil Practice

Pro Se Complaint

Lack of Subject Matter Jurisdiction

Failure to State a Claim

Plaintiff appealed the dismissal of her separate pro se complaints.

The court affirmed the dismissal of plaintiff’s lawsuit without comment and denied plaintiff’s pending motions as moot.

Judgment is affirmed.

Marshall v. Educational Credit Management Group (MLW No. 79348/Case No. 22-2460 & 22-2470 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas, Marshall, J.

https://ecf.ca8.uscourts.gov/opndir/23/01/222460U.pdf

Civil Rights

§1983

Constitutional Violations

Declaration of Unlawful Assembly

Plaintiffs appealed the dismissal of their §1983 complaint against defendant. Plaintiffs filed a Monell claim, alleging that defendant’s police officers, acting pursuant to an unlawful custom or policy, violated plaintiffs’ First and Fourteenth Amendment rights by declaring an unlawful assembly and ordering dispersal of protestors who had not committed the crimes of unlawful assembly or refusal to disperse. The district court held that a city’s police power to declare an unlawful assembly was not tethered to the state criminal statutes.

Where the government had the authority to place reasonable limits on citizens’ right to peacefully protest, defendant’s police power to declare an unlawful assembly was broader than the scope of conduct that would violate Missouri’s criminal offenses of unlawful assembly and failure to disperse.

Kelly, J., dissenting: “It is plausible that the police in this case had a ‘lawful reason’ to disperse the protesters. It is also plausible that, as Plaintiffs plead in their FAC, the officers were acting arbitrarily in declaring unlawful assemblies and issuing orders of dispersal. At the Rule 12(b)(6) stage, however, a court should not—indeed, it cannot—seek to ascertain which explanation or inference is more plausible.”

Judgment is affirmed.

Edwards v. City of Florissant (MLW No. 79329/Case No. 21-3137 – 11 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, Eastern District of Missouri, Schlep, J. (Theodore Van Beek, of St. Louis, MO for appellant; Anthony E. Rothert, of St. Louis, MO; Lisa S. Hoppenjans, of St. Louis, MO; Gillian R. Wilcox, of Kansas City, MO; Jessie M. Steffan, of St. Louis, MO; Molly E. Carney, of St. Louis, MO; Tobin Raju, of St. Louis, MO; Samantha M. Adams, of St. Louis, MO; Camryn Dreyer, of St. Louis, MO; and James Isacks, of St. Louis, MO on the brief) (John M. Hessel, of St. Louis, MO for appellee; Ronald Alan Norwood, of St. Louis, MO and Lindsey Muse Bruno, of St. Louis, MO on the brief)

https://ecf.ca8.uscourts.gov/opndir/23/01/213137P.pdf

§1983

First Amendment Violation

Termination from Public Employment

Plaintiff appealed the dismissal of his complaint. Plaintiff, a former police officer employed by defendant, was part of a text messaging group among officers to provide updates regarding local Black Lives Matter protests. Plaintiff sent the group a video from an animated sitcom that was a satire/parody of BLM protests, as plaintiff was critical of the protests. When another officer complained, plaintiff was ordered to resign. Plaintiff filed suit, alleging that he was retaliated against for exercising his free speech rights. The district court granted defendants’ motion to dismiss.

Where plaintiff sufficiently alleged that he was acting as a private citizen by expressing his personal objections to the BLM movement, which was a matter of public concern, he made a sufficient First Amendment claim to survive dismissal of his lawsuit.

Loken, J., concurring: “Because the court “hold[s] merely that Bresnahan’s complaint states a claim for First Amendment retaliation,” I concur in the judgment.”

Judgment is reversed and remanded.

Bresnahan v. City of St. Peters (MLW No. 79331/Case No. 21-3910 – 6 pages) (U.S. Court of Appeals, 8th Circuit, Kobes, J.) Appealed from U.S. District Court, Eastern District of Missouri, Hamilton, J. (Peter O. Bruntrager, of St. Louis, MO for appellant) (John H. Kilper, of St. Charles, MO for appellees; Jillian M. Mueller, of St. Louis, MO and Victor Scott Williams, of St. Louis, MO on the brief)

https://ecf.ca8.uscourts.gov/opndir/23/01/213910P.pdf

§1983

Fourth Amendment Violation

Perjury

Plaintiff appealed the dismissal of his §1983 action against defendant. Plaintiff ran into defendant, an off-duty Arkansas state trooper, while plaintiff was openly carrying a firearm in a holster. At the time, only law enforcement officers could openly carry firearms in Arkansas. Defendant asked for plaintiff’s identification; plaintiff refused and allegedly moved his hand toward his holster. Plaintiff was charged with obstruction based on his refusal to provide ID but was eventually acquitted. Plaintiff filed the present suit, alleging that defendant violated his Fourth Amendment rights and perjured himself during plaintiff’s prosecution by testifying that plaintiff had moved his hand toward his holster.

Where plaintiff had already litigated his Fourth Amendment claims in his petition for the return of his concealed-carry permit, the district court correctly dismissed the claim under the collateral estoppel doctrine, and plaintiff’s perjury claim also failed where defendant’s testimony was irrelevant to the outcome of plaintiff’s criminal prosecution.

Judgment is affirmed.

Tanner v. Ziegenhorn (MLW No. 79334/Case No. 21-3462 – 5 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas, Marshall, J.

https://ecf.ca8.uscourts.gov/opndir/23/01/213462U.pdf

§1983

Prison Inmate

Exhaustion of Administrative Remedies

Plaintiff, an inmate, appealed the grant of summary judgment to defendants in plaintiff’s §1983 action.

Where plaintiff failed to comply with his facility’s grievance procedures, the failure to exhaust administrative remedies barred his lawsuit where plaintiff had not shown futility.

Judgment is affirmed.

Hayes v. Watson (MLW No. 79335/Case No. 22-2273 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas, Wilson, J.

https://ecf.ca8.uscourts.gov/opndir/23/01/222273U.pdf

§1983

Summary Judgment

Supplemental Jurisdiction

Plaintiff appealed the adverse grant of summary judgment in his §1983 action.

Where the record supported the grant of summary judgment to defendants on plaintiff’s claims under §1983, the district court did not err in declining to exercise supplemental jurisdiction over plaintiff’s state law claims.

Judgment is affirmed.

Spottswood v. Washington County (MLW No. 79346/Case No. 22-1818 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of Minnesota, Davis, J.

https://ecf.ca8.uscourts.gov/opndir/23/01/221818U.pdf

Consumer Law

Auto Defects

Missouri Merchandising Practice Act

Puffery

Plaintiffs appealed the district court’s dismissal of their MMPA claim against defendant, arguing that the district court improperly applied the concept of puffery to their deceptive/fraudulent omissions claim under the statute. Plaintiffs alleged that defendant had omitted a defect with its vehicles’ oil consumption from advertising. The district court found that defendant’s advertising constituted “mere puffery.”

Where the omission of a material fact from advertising or marketing was sufficient to support a claim for fraudulent omission under the MMPA, the district court erred in dismissing plaintiffs’ case where they had specifically alleged defendant’s knowledge of oil consumption problems with its vehicles.

Judgment is reversed.

Tucker v. General Motors LLC (MLW No. 79328/Case No. 21-2698 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, Eastern District of Missouri, Limbaugh, J. (Justin J. Hawal, of Mentor, OH for appellants; Adam J. Levitt, of Chicago, IL; John E. Tangren, of Chicago, IL; Wilson Daniel Miles, III, of Montgomery, AL; Daniel R. Ferri, of Chicago, IL; H. Clay Barnett, III, of Montgomery, AL; and James Mitch Williams, of Montgomery, AL on the brief) (Amanda Shafer Berman, of Washington, D.C. for appellee; Lizabeth M. Conran, of St. Louis, MO; April N. Ross, of Washington, D.C.; and Kathleen Taylor Sooy, of Washington, D.C. on the brief)

https://ecf.ca8.uscourts.gov/opndir/23/01/212698P.pdf

Trademark Infringement

Likelihood of Consumer Confusion

Preliminary Injunction

Defendant appealed the district court’s grant of a preliminary injunction in favor of plaintiffs. Plaintiffs alleged that defendant’s logo used in connection with its tax services was likely to cause consumer confusion because plaintiffs also provided tax and financial services under a similar-looking logo and brand name. The district court granted plaintiffs a preliminary injunction, finding that they were likely to prevail on their trademark infringement claims.

Where plaintiffs had failed to present substantial evidence of a likelihood of confusion among consumers, plaintiffs could not benefit from a rebuttable presumption of irrebuttable harm and plaintiffs had also failed to present sufficient evidence that they would suffer such harm absent an injunction.

Melloy, J., dissenting: “Because I find no clear error in the analysis of individual likelihood-of-confusion factors or in the overall synthesis of those factors, and because I find no abuse of discretion in the balancing of preliminary injunction factors, I would affirm the well-reasoned judgment of the district court.”

Judgment is reversed.

H&R Block, Inc. v. Block, Inc. (MLW No. 79347/Case No. 22-2075 – 19 pages) (U.S. Court of Appeals, 8th Circuit, Erickson, J.) Appealed from U.S. District Court, Western District of Missouri, Laughrey, J. (Kathleen M. Sullivan, of Los Angeles, CA for appellant; Margret M. Caruso, of Redwood Shores, CA; Rachel Kassabian, of Redwood Shores, CA; Thomas B. Weaver, of St. Louis, MO; David A. Jermann, of Kansas City, MO; Robert M. Schwartz, of Los Angeles, CA; and William B. Adams, of New York, NY on the brief) (David G. Bernstein, of New York, NY for appellee; Megan K. Bannigan, of New York, NY; Jared L. Kagan, of New York, NY; Marissa P. MacAneney, of New York, NY; Anthony J. Durone, of Kansas City, MO; and Stacey R. Gilman, of Kansas City, MO on the brief)

https://ecf.ca8.uscourts.gov/opndir/23/01/222075P.pdf

Criminal Law

Child Pornography

Double Jeopardy

Apprendi Violation

Defendant appealed his conviction and sentence for 15 child pornography-related offenses. Defendant argued that his separate convictions for possession and receipt of child pornography violated the Double Jeopardy Clause. Defendant further argued that his sentence violated Apprendi v. New Jersey, 530 U.S. 466. Finally, defendant challenged the sufficiency of the evidence supporting his conviction.

Although defendant could be convicted for both possession and receipt of child pornography as defendant’s electronic devices contained different material than those found in his online accounts, the district court erred in imposing a sentence above the statutory maximum where the jury made no finding of a qualifying victim.

Judgment is affirmed in part, vacated in part.

U.S. v. Soto (MLW No. 79342/Case No. 21-3091 – 7 pages) (U.S. Court of Appeals, 8th Circuit, Erickson, J.) Appealed from U.S. District Court, District of South Dakota, Schreier, J. (Paul J. Andrews, of Rapid City, SD for appellant) (Eric D. Kelderman, AUSA, of Rapid City, SD for appellee)

https://ecf.ca8.uscourts.gov/opndir/23/01/213091P.pdf

Child Pornography

Motion to Suppress Evidence

Reasonableness of Sentence

Defendant appealed the denial of his motion to suppress evidence and the sentence imposed following his conviction for child pornography offenses. The district court had denied defendant’s suppression motion, ruling that defendant was not in custody during his interview with federal agents, although the agents had briefly put defendant under arrest after locating him. The district court imposed the statutory maximum term for defendant’s conviction.

Where a reasonable person in defendant’s position would believe they were free to terminate the interview as the agents advised defendant at the beginning of the interview that he was not under arrest, the district court properly denied the suppression motion and did not abuse its sentencing discretion after properly evaluating the statutory factors.

Stras, J., concurring: “I am at a loss why the court says a single word more. It questions why it “should be so” that “an arrest at the end of questioning is an indicium of custody,” ante, at 4–5, leaving district courts in limbo about whether this factor still counts. For those reading this opinion, the answer is yes. Nothing has changed.”

Judgment is affirmed.

U.S. v. Treanton (MLW No. 79327/Case No. 22-1476 – 7 pages) (U.S. Court of Appeals, 8th Circuit, Colloton, J.) Appealed from U.S. District Court, Southern District of Iowa, Rose, J. (Jack Edward Dusthimer, of Davenport, IA for appellant) (Andrea Glasgow, AUSA, of Davenport, IA for appellee)

https://ecf.ca8.uscourts.gov/opndir/23/01/221476P.pdf

Conspiracy to Distribute

Waiver of Statutory Minimum Sentence

Reduced Guidelines Range

Defendant appealed his judgment of sentence. After pleading guilty to conspiracy to distribute drugs, defendant argued that he was eligible to be sentenced without regard to the statutory minimum. Although the district court denied defendant’s motion, it reduced his Guidelines range.

Where a defendant only needed to meet one of the factors to be ineligible to be sentenced without regard to the statutory minimum, defendant’s prior three-point offense rendered him ineligible.

Judgment is affirmed.

U.S. v. Bailey (MLW No. 79343/Case No. 21-3395 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Northern District of Iowa, Williams, J.

https://ecf.ca8.uscourts.gov/opndir/23/01/213395U.pdf

Revocation of Supervised Release

Hearsay Testimony

Due Process Violation

Defendant appealed from the revocation of his supervised release. While on supervised release, defendant allegedly assaulted his girlfriend in violation of the conditions of his release. At the revocation hearing, the government did not call defendant’s girlfriend to testify but instead related her testimony through another witness. On appeal, defendant argued that this hearsay testimony violated his Confrontation Clause rights.

Where other evidence presented at the revocation hearing, including defendant’s own admissions, provided sufficient evidence to support a reasonable inference that defendant intentionally or knowingly assaulted his girlfriend, the district court’s admission of the hearsay testimony was harmless.

Judgment is affirmed.

U.S. v. Starr (MLW No. 79332/Case No. 22-233 – 5 pages) (U.S. Court of Appeals, 8th Circuit, Arnold, J.) Appealed from U.S. District Court, Eastern District of Missouri, White, J. (Kevin Blain Gau, AFPD, of St. Louis, MO for appellant) (William Owen Scharf, AUSA, for appellee)

https://ecf.ca8.uscourts.gov/opndir/23/01/222331P.pdf

Revocation of Supervised Release

Legality of Sentence

Reentry Center Requirement

Defendant appealed the sentence imposed following the revocation of his supervised release, challenging the legality of the sentence and the imposition of a special condition that defendant reside in a residential reentry sentence for up to 120 days.

Where the sentence and additional term of supervised release were within the statutory maximum, the district court did not abuse its sentencing discretion after considering the statutory factors and where the district court could impose both a prison sentence and a term of supervised release.

Judgment is affirmed.

U.S. v. Williams (MLW No. 79333/Case No. 22-2991 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Southern District of Iowa, Rose, J.

https://ecf.ca8.uscourts.gov/opndir/23/01/222991U.pdf

Sex Trafficking

Plea Agreement

“No Further Prosecution”

Defendant appealed his conviction for sex-trafficking offenses, arguing that his prosecution was prohibited by a “no further prosecution” clause in a plea agreement that resolved drug-related charges against defendant. Defendant contended that his prior plea agreement encompassed the sex trafficking charges.

Where defendant’s drug conviction arose from an investigation that arose from allegations that defendant was trafficking and providing drugs to minors, defendant’s prosecution for trafficking those victims was barred by the “no further prosecution” clause that prevented prosecution for any federal offenses arising from or directly related to the drug investigation.

Judgment is reversed.

U.S. v. Thomas (MLW No. 79344/Case No. 21-3690 – 19 pages) (U.S. Court of Appeals, 8th Circuit, Gruender, J.) Appealed from U.S. District Court, Southern District of Iowa, Jarvey, J. (Heather Quick, AFPD, of Cedar Rapids, IA for appellant) (Kyle J. Essley, AUSA, of Des Moines, IA for appellee)

https://ecf.ca8.uscourts.gov/opndir/23/01/213690P.pdf

Immigration

Asylum

Withholding of Removal

Particularized Social Group

Petitioner sought review of the BIA’s judgment affirming an IJ’s decision that found petitioner and her daughter removable after denying her application for asylum and withholding of removal. Petitioner fled to the U.S. after witnessing the murder of her partner’s brother at the hands of suspected drug traffickers, who allegedly followed up with threats against petitioner and her daughter. The IJ accepted petitioner’s proposed particularized social group of nuclear family members of the murder victim but ruled that petitioner’s alleged harm did not arise from her membership in that group but rather because the murderers wished to prevent petitioner from cooperating with law enforcement. On appeal, petitioner challenged the rejection of her PSG of witnesses who cooperate with law enforcement.

Where there was insufficient evidence that petitioner’s home country viewed witnesses who cooperated with law enforcement as a socially distinct group, the IJ did not err in rejecting petitioner’s application for asylum.

Petition is denied.

Lemus-Coronado v. Garland (MLW No. 79336/Case No. 22-1015 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Shepherd, J.) Petition for Review of an Order of the Board of Immigration Appeals. (Matthew Lorn Hoppock, of Shawnee, KS for petitioner) (Kristen H. Blosser, US DOJ, OIL, of Washington, D.C. for respondent)

https://ecf.ca8.uscourts.gov/opndir/23/01/221015P.pdf

Insurance

Corporate Liability Insurance

Declaration of Coverage

Unnamed Insured

Defendant appealed the district court’s grant of summary judgment to plaintiff. Defendant waited five months to notify plaintiff, defendant’s liability insurer, of a trademark infringement lawsuit filed against defendant. Plaintiff refused to reimburse defendant for legal fees during the period plaintiff was unaware of the lawsuit. The trademark infringement case was ultimately dismissed. Defendant’s parent then filed a preemptive trademark action. Plaintiff denied coverage to the parent as it was not named in defendant’s policy. The district court granted plaintiff summary judgment, ruling that plaintiff had no obligation to cover the legal fees incurred by defendant’s parent.

Although plaintiff did not need to reimburse defendant for its parent company’s fees as the parent was not named in defendant’s policy, the district court erred in failing to treat prejudice to plaintiff from defendant’s late notice as an affirmative defense.

Judgment is affirmed in part, reversed and remanded in part.

Cincinnati Insurance Company v. Jacob Rieger & Co., LLC (MLW No. 79330/Case No. 21-3192 & 21-3298 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Kobes, J.) Appealed from U.S. District Court, Western District of Missouri, Wimes, J. (Bradley Wilders, of Kansas City, MO for appellant; Tanner J. Edwards, of Kansas City, MO on the brief) (David Patrick Bub, of St. Louis, MO for appellee)

https://ecf.ca8.uscourts.gov/opndir/23/01/213192P.pdf

Torts

Sexual Assault

Federal Employee

FTCA

Plaintiff appealed the district court’s grant of the government’s motion to dismiss her civil sexual assault lawsuit for lack of subject matter jurisdiction. Plaintiff underwent acupuncture treatment at the VA when she was allegedly sexually assaulted by the nurse practitioner, who had offered to perform a massage on plaintiff. The district court dismissed plaintiff’s suit under the Federal Tort Claims Act, ruling that the provider was not acting within the scope of his employment nor furnishing medical care when he began to massage and sexually assault plaintiff.

Where the evidence demonstrated that the provider who assaulted plaintiff was pursuing his purely personal desires, the district court correctly concluded that the provider was not acting within the scope of his employment and thus the district court lacked subject matter jurisdiction under the FTCA.

Judgment is affirmed.

Doe v. U.S. (MLW No. 79345/Case No. 22-1703 – 15 pages) (U.S. Court of Appeals, 8th Circuit, Smith, J.) Appealed from U.S. District Court, Eastern District of Missouri, Fleissig, J. (David Damick, of St. Louis, MO for appellant) (Roger Alan Keller, Jr., AUSA, of St. Louis, MO for appellee)

https://ecf.ca8.uscourts.gov/opndir/23/01/221703P.pdf