Articles

All Content


4,049 Posts found
Previous • Page 262 of 405 • Next
Posted by: Karen Belcher on Oct 6, 2020

MURPHY, Circuit Judge. This case illustrates well the standard of review that applies at a lawsuit’s pleading stage. The City of Norton Shores, a town of around 24,000, sits on the shores of Lake Michigan. Daniel Rudd has lived in or near the city for most of his life. During a child-custody dispute, Rudd alleges that his ex-wife abducted their sons with assistance from her attorney. Rudd called the police but alleges that they refused to help him find his sons because his ex-wife’s attorney is married to the city manager. Rudd later filed an official complaint with the police department criticizing the city manager and officers involved in this incident. This complaint allegedly ignited a conspiracy to retaliate against him because of his criticisms—one that included an effort to get him jailed for his speech. The evidence may confirm the allegations in his pro se complaint. Or it may resoundingly disprove them. But because we must accept his allegations as true, we partially reverse the dismissal of Rudd’s First Amendment claim. Rudd effectively alleges that the defendants sought to punish him for a modern-day “seditious libel.”

Posted by: Karen Belcher on Oct 6, 2020

JANE B. STRANCH, Circuit Judge. The district court sentenced Petitioner Kevin McCormick under a provision of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), that does not apply to him. Under the misapplied enhancement, McCormick is serving a sentence that exceeds the maximum sentence prescribed by Congress for his offense. The district court incorrectly concluded that McCormick could not bring a habeas petition under 28 U.S.C. § 2241 to challenge his illegal sentence. We REVERSE the district court’s denial of habeas relief, VACATE McCormick’s sentence, and REMAND so that the district court may impose a sentence that does not exceed the statutory maximum.

Posted by: Karen Belcher on Oct 6, 2020

MARTHA CRAIG DAUGHTREY, Circuit Judge. At issue in this case is whether a public employee’s use of a racial slur when discussing politics on Facebook is sufficiently protected by the First Amendment to outweigh a government agency’s interest in having an efficient workplace and effectively serving the public. Plaintiff Danyelle Bennett was terminated from her position at the Emergency Communications Center (ECC) of the Metropolitan Government of Nashville (Metro) for a Facebook comment she made on November 9, 2016. On the night of the Presidential election, Bennett posted from her public-facing Facebook profile concerning Trump’s victory. In response to someone else’s comment, Bennett replied using some of the commenter’s words: “Thank god we have more America loving rednecks. Red spread across all America. Even niggaz and latinos voted for trump too!” As a result of Bennett—a white woman—using what Metro deemed racially-charged language, several employees and a member of the public complained to ECC leadership and the Mayor’s office. ECC officials determined that Bennett violated three Civil Service Rules and, after paid administrative leave and a due process hearing, they terminated her from her position. Bennett sued Metro for retaliation under the First Amendment and, following a jury trial that determined certain issues of fact, the district court found in favor of Bennett.

Metro appeals, arguing that the district court gave greater protection to Bennett’s speech than the law warrants and improperly minimized the disruption Bennett’s speech caused in the agency. A review of the record reveals the district court erred in its analysis, and we therefore reverse the district court’s decision and remand for further proceedings.

Posted by: Karen Belcher on Oct 6, 2020

Defendant, Edward Parnell Porter, was convicted of aggravated assault, domestic assault, and misdemeanor reckless endangerment. The trial court merged the domestic assault conviction and its sentence of eleven months, twenty-nine days into the aggravated assault conviction. The court imposed a sentence of eight years and six months as a Range II offender for aggravated assault and eleven months, twenty-nine days for reckless endangerment to be served concurrently with each other and consecutively to a “federal sentence and any unexpired sentence.” On appeal, Defendant argues that the evidence was insufficient to support his convictions and that his sentence is excessive. Having reviewed the record, we affirm the judgments of the trial court.

Posted by: Karen Belcher on Oct 6, 2020

The trial court terminated a father’s parental rights on the grounds of abandonment by failure to visit and abandonment by failure to support his child. The father stipulated to certain grounds for termination but appeals the trial court’s conclusion that terminating his parental rights is in the best interests of the child. Because the trial court’s findings as to the grounds for termination do not relate to the father’s conduct during the relevant time period prescribed by statute and the trial court’s final order fails to show that the trial court considered the best interests factors set forth in Tennessee Code Annotated section 36-1- 113, we vacate the trial court’s judgment and remand.

Posted by: Karen Belcher on Oct 6, 2020

This is an appeal from a company’s claim of a violation of the Tennessee Consumer Protection Act against the individual owners of a limited liability company serving as its contractor. In 2017, Cored, LLC entered into a construction contract with Astercor Group, LLC for the construction of two homes in Nashville. A dispute arose as to the specifics of the contract, and a complaint was filed against Cored, LLC, for breach of contract. In response to the complaint against it, Cored, LLC filed its own complaint against the individual owners of Astercor Group, LLC for violating the Contractor’s Licensing Act of 1994 and thus violating the Tennessee Consumer Protection Act. Although the respective lawsuits were eventually consolidated, this appeal concerns only Cored, LLC’s lawsuit against the individual owners of Astercor Group, LLC. The trial court ultimately dismissed the lawsuit on the basis that the statute of limitations had run due to the company’s failure to properly serve the individual owner defendants. Additionally, the trial court denied the individual owners’ request for attorney’s fees pursuant to Tennessee Code Annotated section 20-12-119(c). For the reasons stated herein, we affirm the trial court in both respects.

Posted by: Karen Belcher on Oct 6, 2020

In this interlocutory appeal, the employee challenges the trial court’s denial of her request for additional medical and temporary disability benefits. The employee sustained an injury to her right shoulder when a stack of boxes fell on her at work. The injury was initially accepted as compensable, and workers’ compensation benefits were provided. After the employee was released from care with no restrictions or permanent medical impairment rating, she filed a petition seeking additional medical treatment and temporary disability benefits. Following an expedited hearing, the trial court concluded the employee failed to show that her time off work and need for additional medical treatment were causally related to the work injury. The employee has appealed. Having carefully reviewed the record, we affirm the trial court’s decision and remand the case.

Posted by: Karen Belcher on Oct 6, 2020

The issue in this appeal is whether a Tennessee court may exercise specific personal jurisdiction over a Texas corporate defendant involved in a contractual dispute with a Tennessee company it chose to perform specialized professional services. A Texas oil- drilling company elected to contract with a Tennessee civil engineering company for custom design and consulting services related to the potential construction of a railcar repair facility in Texas. The Tennessee company performed the services primarily out of its principal place of business in Tennessee. When the Texas company failed to pay in full, the Tennessee company filed a civil action in Tennessee for breach of contract and unjust enrichment. The Texas company moved to dismiss the complaint for lack of personal jurisdiction. See Tenn. R. Civ. P. 12.02(2). The Williamson County Chancery Court granted the motion, finding (1) that the Texas company lacked the “minimum contacts” necessary for the exercise of specific personal jurisdiction, and (2) that requiring the Texas company to litigate in Tennessee would be unreasonable and unfair. The Court of Appeals reversed, relying primarily on Nicholstone Book Bindery, Inc. v. Chelsea House Publishers, 621 S.W.2d 560 (Tenn. 1981), cert. denied, 455 U.S. 994 (1982). Although we find Nicholstone to be consistent with our opinion today, we base our review on contemporary jurisprudence in this area of the law. We hold that, consistent with the Due Process Clause of the Fourteenth Amendment, the Tennessee company established a prima facie case for the valid exercise of personal jurisdiction over the Texas company. Additionally, the exercise of jurisdiction would not be unfair or unreasonable. Therefore, we affirm the decision of the Court of Appeals and remand this case to the trial court for further proceedings.

Posted by: Karen Belcher on Oct 5, 2020

PER CURIAM. Vapor Stockroom challenges the Food and Drug Administration’s (FDA) current enforcement guidance timetable for when e-cigarette manufacturers must file premarket tobacco applications to remain on the market. The challenged timetable was set by the District Court for the District of Maryland in an injunction issued by that court in separate litigation regarding the FDA’s 2017 enforcement guidance. Vapor Stockroom contends that the FDA’s remedial brief and an attached declaration submitted by an FDA official to the Maryland district court motivated that court to impose the challenged deadline for application submissions, which significantly accelerated the original FDA deadline. The company alleges that the FDA’s brief and declaration constituted a final agency action that violated the Administrative Procedure Act (APA). However, the Maryland court’s injunction was independent from the FDA’s brief and declaration. Vapor Stockroom therefore lacks Article III standing to obtain judicial review of the remedial brief and attached declaration, because the alleged injury is the result of the Maryland court’s independent action, not the challenged FDA filings. For similar reasons, the company’s request for injunctive relief against enforcement proceedings is without merit because the allegedly unauthorized court submissions do not form a plausible legal basis for an injunction against subsequent, independently caused FDA enforcement proceedings.

For the foregoing reasons, we affirm the judgment of the district court.

Posted by: Karen Belcher on Oct 5, 2020

Stephen R. Mayes, Defendant, appeals from the trial court’s denial of his motion to correct an illegal sentence filed pursuant to Tennessee Rule of Criminal Procedure 36.1. After a review of the record and the briefs of the parties, we affirm the judgment of the trial court.


Previous • Page 262 of 405 • Next