OPINION SUTTON, Circuit Judge. Philip Charvat has not been shy in taking on the role of a private attorney general under the Telephone Consumer Protection Act. Since 1998, he has filed claims against at least twelve defendants in at least thirteen lawsuits under the Act. See Charvat v. GVN Mich., Inc., 561 F.3d 623 (6th Cir.2009); Charvat v. NMP, LLC, 703 F.Supp.2d 735 (S.D.Ohio 2010); State ex rel. Charvat v. Frye, 114 Ohio St.3d 76 , 868 N.E.2d 270 (2007); Charvat v. Ryan, 111...
OPINION SUTTON, Circuit Judge. This diversity action arises from a dispute over the trust funds for several cemeteries located in the Midwest. The district court dismissed the case on Burford abstention grounds. Because Burford does not provide a basis for surrendering, as opposed to potentially suspending, the jurisdiction Congress has given the federal courts in this instance, we reverse. I. For many years, the Meyer family of Indiana owned several cemeteries and funeral homes....
OPINION COLE, Circuit Judge. Defendant-Appellant Joshua T. McCarty appeals his conviction and within-Guidelines sentence of forty-six months' imprisonment for knowingly stealing two cultural heritage objects, in violation of 18 U.S.C. 668(b). Specifically, McCarty alleges six general errors: (1) the district court improperly calculated the value of the stolen cultural heritage objects under U.S. Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines") 2B1.1(b)(1) (2008); (2) the district...
OPINION SUTTON, Circuit Judge. Robert Fabian, a representative of a yet-to-be-certified class, seeks recovery from a helmet manufacturer for misrepresenting the safety of its helmets. The district court granted the defendant's motion to dismiss the suit, holding that Fabian's complaint fails to state a cognizable claim. Because Fabian's factual allegations, when construed in his favor, state a plausible claim for relief, we reverse. I. Tucked within the Department of Transportation is the...
ORDER In these consolidated actions under the Real Estate Settlement Procedures Act of 1974, the plaintiffs appeal the summary judgment for the defendants. The United States moves to intervene in the appeal to address two issues: (1) whether a policy statement issued by the United States Department of Housing and Urban Development is unconstitutionally vague; and (2) whether that policy statement is entitled to deference. The plaintiffs support the intervention of the government, and the...
OPINION BOYCE F. MARTIN, JR., Circuit Judge. Jaime Ruvalcaba appeals the district court's reliance on his prior state convictions to apply the career offender enhancement in calculating his advisory Guidelines sentencing range. However, the district court properly applied the career offender enhancement and we therefore AFFIRM Ruvalcaba's sentence at the lower end of the properly calculated Guidelines range. I. Ruvalcaba pled guilty to conspiracy to possess with intent to distribute...
OPINION BOGGS, Circuit Judge. Warden Phil Parker ("Parker") of the Kentucky State Penitentiary appeals the judgment of the district court granting in part the application for a writ of habeas corpus of Parramore Sanborn ("Sanborn"). That judgment was entered on the grounds that the admission of certain testimony at the penalty phase of Sanborn's capital-murder trial constituted unconstitutional governmental interference with the right to counsel in violation of the Sixth Amendment. Sanborn...
OPINION RONALD LEE GILMAN, Circuit Judge. Larry Turnley was convicted and sentenced on charges of possessing crack cocaine with the intent to distribute and of conspiring to possess powder cocaine with the intent to distribute. The United States Sentencing Commission (Commission) subsequently lowered the United States Sentencing Guidelines (U.S.S.G.) range associated with Turnley's crimes and applied these changes retroactively to prisoners currently serving sentences. This caused Turnley to...
OPINION SUTTON, Circuit Judge. This is round two in a ballot-counting dispute arising from the 2008 elections in Franklin County, Ohio. In the first round, we held that the defendants could not remove the case from state court to federal court because each of the claims turned on state law and the parties all hailed from Ohio. Ohio ex rel. Skaggs v. Brunner, 549 F.3d 468 (6th Cir.2008). Today, we consider whether the defendants should pay attorney's fees for improperly trying to remove...
Pursuant to Sixth Circuit Rule 206 AMENDED OPINION PER CURIAM. 1 This appeal arises from the district court's denial of defendants' motion to vacate a consent decree entered in a 1998 class-action challenge to Tennessee's managed care program, TennCare, under the Medicaid Act. Plaintiffs alleged that defendants, Tennessee officials charged with implementing TennCare, failed to provide early and periodic screening, diagnosis and treatment (EPSDT) services in violation of the Medicaid Act,...
OPINION JULIA SMITH GIBBONS, Circuit Judge. This case involves the termination of plaintiff Julie Pucci from her administrative position in the Nineteenth District Court, a court within Michigan's state judicial system. Pucci has brought suit against both the court and Mark Somers, the court's chief judge at the time of Pucci's termination. Pucci claims that she was terminated in retaliation for her complaints to state court officials about Somers's use of religious language from the bench,...
OPINION SARGUS, District Judge. From December 10, 2007, through December 14, 2007, Moto Diesel Mexicana, S.A. de C.V. ("MDM") issued eight checks totaling $2 million to Casa de Cambio Majapara S.A. de C.V. ("Majapara"). The checks were drawn on MDM's account at Comerica Bank in Detroit, Michigan. On December 14 and 18, 2007, Majapara attempted to deposit all the funds from the eight checks into its account at Zions First National Bank in Salt Lake City, Utah ("Zions"). In turn, Majapara...
OPINION ALICE M. BATCHELDER, Chief Judge. Plaintiff-Appellant Billy Ray Irick, a Tennessee death-row prisoner represented by counsel, appeals the district court's judgment denying his 42 U.S.C. 1983 claim alleging that the state of Tennessee's lethal injection execution protocol violates the Eighth Amendment's prohibition against cruel and unusual punishment. 1 The district court dismissed Plaintiff's claim, finding that it is time-barred by the applicable statute of limitations. For the...
OPINION BOGGS, Circuit Judge. Berkeley Premium Nutraceuticals, Inc., was an incredibly profitable company that served as the distributor of Enzyte, an herbal supplement purported to enhance male sexual performance. In this appeal, defendants Steven Warshak ("Warshak"), Harriet Warshak ("Harriet"), and TCI Media, Inc. ("TCI"), challenge their convictions stemming from a massive scheme to defraud Berkeley's customers. Warshak and Harriet also challenge their sentences, as well as two forfeiture...
OPINION ROGERS, Circuit Judge. Plaintiff-appellant Michigan Surgery Investment, LLC and its affiliates appeal the dismissal of this civil action with prejudice after the plaintiffs had moved for voluntary dismissal without prejudice under Rule 41(a)(2) of the Federal Rules of Civil Procedure. Because the district court did not give the plaintiffs notice of its intention to dismiss with prejudice, along with an opportunity to withdraw the request for voluntary dismissal, the court should not...
Pursuant to Sixth Circuit Rule 206 OPINION VAN TATENHOVE, District Judge. Brandon Taylor pleaded guilty, without the benefit of a plea agreement, to multiple counts of carjacking, brandishing a firearm during a crime of violence, and robbery of United States property. On appeal, Taylor contends that because he lacked the requisite intent to commit carjacking, the district court violated Fed. R. Crim. P. 11(b)(3) by failing to ensure that a sufficient factual basis for the offenses existed....
OPINION ROSE, District Judge. On September 10, 2008, Antonius Coleman ("Coleman") pled guilty to two counts of being a felon in possession of ammunition. As a condition for the plea, the United States agreed, subject to certain conditions, to recommend full acceptance of responsibility and to dismiss a possession-of-marijuana count. At sentencing, Coleman was given a four-level enhancement for possessing 23 live rounds of ammunition that facilitated or had the potential to facilitate a...
OPINION MERRITT, Circuit Judge. This is a coerced confession, death penalty case. On November 4, 1993, at the police station house in Toledo, Ohio, petitioner Dixon, after receiving Miranda warnings, advised detectives that he would not voluntarily answer their questions without a lawyer present to advise him. Notwithstanding his refusal to answer questions voluntarily, the detectives five days later devised a strategy to put pressure on Dixon to confess by questioning him, without Miranda...
OPINION MARTHA CRAIG DAUGHTREY, Circuit Judge. The Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1001-1461, provides, in pertinent part, that "a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries. . . ." 29 U.S.C. 1104(a)(1). In this putative class action appeal, plaintiff Anthony DeLuca and defendant Blue Cross Blue Shield of Michigan (BCBSM) agree that, at least for certain purposes, BCBSM served...
OPINION BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff-appellant Martin Jakubowski suffers from Asperger's Disorder 1 and was formerly employed as a family practice medical resident at The Christ Hospital, Inc. in Cincinnati, Ohio. He filed suit against Christ Hospital and the director of his program there, Dr. Philip Diller, after he was terminated from his position. Jakubowski claims that Christ Hospital and Diller terminated him because of his Asperger's and failed to reasonably...
