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Posted by: Karen Belcher on Mar 11, 2020

A plaintiff who developed tendonitis after taking medication prescribed by a nurse practitioner filed a malpractice action against the nurse practitioner and the pharmacy that filled the prescription. Two years later, the plaintiff amended her complaint to add the nurse practitioner’s employer and supervising physician as defendants. The new defendants moved to dismiss, arguing that the claims against them were barred by the applicable statutes of limitations and repose and that the plaintiff failed to provide them with pre-suit notice of a potential medical malpractice claim. The plaintiff responded that fraudulent concealment tolled the statutes and constituted extraordinary cause to waive pre-suit notice. The trial court agreed and denied the motions. The defendants then moved for summary judgment on other grounds, which the court granted. It is undisputed that the plaintiff’s claims against these defendants were filed beyond the time allowed by the statute of repose for medical malpractice actions. Because we conclude that the plaintiff cannot establish an essential element of the fraudulent concealment exception, the defendants are entitled to judgment as a matter of law based on the statute of repose. So we affirm the dismissal of the claims against these defendants on summary judgment but on different grounds.

Posted by: Karen Belcher on Mar 11, 2020

KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Dennis J. Willard appeals the district court’s grant of Defendant-Appellee Huntington Ford, Inc.’s motion for summary judgment on his age-discrimination claims brought under the Age Discrimination in Employment Act of 1967 and Michigan’s Elliott-Larsen Civil Rights Act of 1976. Willard claims that Huntington Ford terminated him because of his age after it fabricated a superficially legitimate reason to terminate him based on an incident between him and another coworker. The district court failed to view the record in the light most favorable to Willard, leading it to conclude erroneously that he did not offer indirect evidence of age discrimination. Therefore, we REVERSE the district court’s judgment and REMAND for proceedings consistent with this opinion.

Posted by: Karen Belcher on Mar 11, 2020

GRIFFIN, Circuit Judge. Defendant Tyrone Gilbert seeks to suppress the fruits of a search—namely four kilograms of narcotics, more than $100,000 in cash, a firearm, and other indicia of drug trafficking—because the search warrant that authorized the search of his home purportedly lacked probable cause in violation of the Fourth Amendment. Because a reasonably well-trained officer in the circumstances presented here would not know to disregard a judicial determination that probable cause existed, the good-faith exception applies. We therefore affirm the district court’s judgment.

Posted by: Karen Belcher on Mar 11, 2020

KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Rebecca Foster appeals the district court’s grant of summary judgment in favor of Defendants-Appellees Board of Regents of the University of Michigan, the University of Michigan, and Alison Davis-Blake (collectively, the “University”) on her deliberate-indifference claim under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681–1688. Foster was the victim of sexual harassment during a University of Michigan Ross School of Business executive MBA program located off-site in Los Angeles, California. After Foster reported that the respondent, a fellow classmate in the program, had sexually harassed her, the University instituted a no-contact and no-retaliation order against him while it investigated her complaint.1 Foster argues that the University’s response to the respondent’s unwillingness to comply with these measures was clearly unreasonable and caused her to undergo further harassment.

Because we believe that Foster has established a genuine issue of material fact as to whether the University was deliberately indifferent to the sexual harassment she suffered at the hands of a fellow student, we REVERSE the grant of summary judgment and REMAND for further proceedings consistent with this opinion.

Posted by: Karen Belcher on Mar 11, 2020

In this termination of parental rights action, the father has appealed the trial court’s final order terminating his parental rights based on several statutory grounds. The maternal grandparents of the minor child, Bentley Q. (“the Child”), filed a petition to terminate the mother’s and father’s parental rights and to allow the maternal grandparents to adopt the Child. As pertinent to this appeal, the trial court found by clear and convincing evidence that the father had (1) abandoned the Child by willfully failing to visit the Child and (2) failed to manifest an ability and willingness to assume custody of or financial responsibility for the Child. The trial court also found by clear and convincing evidence that it was in the Child’s best interest that the father’s parental rights be terminated.1 The father has appealed. Discerning no reversible error, we affirm.

Posted by: Karen Belcher on Mar 10, 2020

MURPHY, Circuit Judge. The Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(a)(1), requires employers to pay overtime to employees who work more than 40 hours per week. In this case, we consider the kind of evidence employees must present to create a jury question over whether they worked overtime. Quoc Viet bought used copiers for Victor Le and Le’s corporation, Copier Victor, and shipped these copiers to Vietnam for resale. After the parties’ relationship soured, Viet sued Le and Copier Victor alleging that they wrongly failed to pay him overtime. Viet testified that he typically worked 60 hours per week but offered few details to support his estimate. The district court found Viet’s testimony about his average workweek too vague and conclusory to withstand summary judgment. We agree and affirm.

Posted by: Karen Belcher on Mar 10, 2020

KETHLEDGE, Circuit Judge. For decades the government has tried, on a rolling basis and with varying success, to collect millions of dollars of unpaid taxes from Edward Holland, Jr. Here, the government seeks to seize about $20 million of assets previously held by a partnership created by Holland, on the theory that the partnership’s assets were really Holland’s own. The district court rejected those arguments, and so do we.

Posted by: Karen Belcher on Mar 10, 2020

The Petitioner, William Boatwright, appeals from the Knox County Criminal Court’s denial of his petition for post-conviction relief from his especially aggravated robbery, aggravated robbery, aggravated burglary, and two aggravated assault convictions, for which he is serving a forty-seven-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We conclude that the Petitioner received the ineffective assistance of counsel, reverse the judgment of the post-conviction court, and remand this case for a limited motion for a new trial regarding the sufficiency of the evidence issues addressed in the appeal.

Posted by: Karen Belcher on Mar 10, 2020

In this post-divorce dispute, Appellant Mother and Appellee Father filed cross-petitions seeking modification of the permanent parenting plan for their minor child. Father sought a change in primary residential parent, and Mother sought modification of the parenting schedule and decision-making authority. On its finding that the parties stipulated to a material change in circumstance, the trial court granted Father’s petition and denied Mother’s petition. Because the trial court failed to delineate between the burden of proof for modification of custody and the burden of proof for modification of parenting schedule, Tenn. Code Ann. §§ 36-6-101(a)(2)(B), (C), we vacate the trial court’s order and remand.

Posted by: Karen Belcher on Mar 10, 2020

The is an appeal from an order terminating a father’s parental rights. Because the father did not file his notice of appeal within thirty days after entry of the order as required by Tenn. R. App. P. 4(a), we dismiss the appeal.


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