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as a courtesy to the reader. They are not part of the opinion of the court.
152507P.pdf 08/11/2017 Jassmine D. Adams v. Toyota Motor Corporation U.S. Court of Appeals Case No: 15-2507 and No: 15-2511 and No: 15-2516 and No: 15-2635 and No: 15-2636 and No: 15-2637 and No: 15-2638 U.S. District Court for the District of Minnesota - Minneapolis
[PUBLISHED] [Kelly, Author, with Loken and Murphy, Circuit Judges] Civil case - Products liability. In products liability claiming plaintiffs were injured through unintended acceleration of plaintiff Lee's Toyota Camry, the jury found Lee was 40% responsible for the collision and assessed Toyota's fault at 60%. The district court did not abuse its discretion in admitting evidence of "other similar incidents" of unintended acceleration as the circumstances surrounding each incident and this incident were similar in several important respects, and the district court, which expressed a keen awareness of the problems associated with such evidence, was in the best position to determine whether this evidence would be unduly distracting to the jurors; the district court did not abuse its discretion in admitting testimony by plaintiff's expert, a mechanical engineer and experienced product designer for other auto manufacturers; plaintiffs presented sufficient evidence from which a jury could find that the 1996 Camry contained a design defect in its throttle mechanism and that his defect was a substantial factor in creating the harm; the jury heard evidence from both sides' experts regarding the cause of the accident, and while Toyota disagrees with plaintiff's version of the cause, questions of conflicting evidence must be left to the jury's determination, and this court will not reweigh the evidence; the district court erred in granting prejudgment pursuant to Minn. Stat. Ann. Section 549.09 on plaintiff Bridgette Trice's damage award; on Trice's cross-appeal, the district court erred in offsetting her damage award to account for a prior settlement she entered into with plaintiff Lee and his insurer as she received those damages as guardian on behalf of her minor daughter who was injured in the accident and was still living at the time of the settlement; her damage award here was received as the wrongful death trustee and personal representative of a decedent's next of kin; allowing the deceased child's next of kin to recover the full amount of the jury award is not inequitable because the child recovered for her own injuries while she was living. 161902P.pdf 08/11/2017 Shirley Phelps-Roper v. Pete Ricketts U.S. Court of Appeals Case No: 16-1902 U.S. District Court for the District of Nebraska - Lincoln
[PUBLISHED] [Shepherd, Author, with Wollman and Gruender, Circuit Judges] Civil case - Civil rights. For the court's earlier decision in the matter, See Phelps-Roper v. Troutman, 662 F.3d 485 (8th Cir. 2011), vacated on reh'g, 705 F.3d 845 (8th Cir. 2012). In action by the members of the Westboro Baptist Church challenging the Nebraska Funeral Picketing Law which imposed time, place and manner restrictions on protests at cemeteries, funeral homes and churches, the district court did not err in upholding the law; the statute is content neutral, narrowly tailored to serve a significant government interest and allows ample alternative channels for communication; as a result, plaintiffs' facial challenge to the statute is rejected; plaintiffs' as-applied challenge was also properly rejected as there was no evidence of unlawful favoritism in application of the law, plaintiffs were permitted to speak at the October 2011 picket in question, and the law did not favor other viewpoints over plaintiffs'; there was no evidence police officers unconstitutionally restricted plaintiffs picketing to areas well beyond the statute's 500-foot buffer zone; nor did the police unconstitutionally disfavor plaintiffs' viewpoint or allow others to unlawfully block plaintiffs' picket by preferentially allowing the other protestors to break the law. 161949P.pdf 08/11/2017 City of Benkelman, NE v. Baseline Engineering Corp. U.S. Court of Appeals Case No: 16-1949 U.S. District Court for the District of Nebraska - North Platte
[PUBLISHED] [Shepherd, Author, with Riley and Beam, Circuit Judges] Civil case - Arbitration. In action by the City claiming defendant breached the parties' contract calling for defendant to design and construct a water treatment plant, the district court did not err in rejecting defendant's contention that its motion to dismiss should be treated as a Rule 12(b)(3) venue challenge; the Supreme Court has held that parties may not enforce forum-selection clauses through Rule 12(b)(3) motions to dismiss; an arbitration agreement alone - independent of statutory or other binding jurisdictional limitations - does not divest the federal courts of subject matter jurisdiction; contrary to defendant's contention, the arbitration clause in the parties' July, 2009 contract does not strip the federal courts of jurisdiction and the district court erred in construing the motion the motion to dismiss as a Rule 12(b)(1) challenge to subject matter jurisdiction; the motion should be analyzed as either a Rule 12(b)(6) motion or a Rule 56 motion; regardless of which rule is chosen, the same summary judgment standards apply; the district court did not have an opportunity to apply this analysis and the best course of action is to remand the matter to permit the court to consider the motion under summary judgment standards. 162632P.pdf 08/11/2017 McShane Construction Company v. Gotham Insurance Company U.S. Court of Appeals Case No: 16-2632 U.S. District Court for the District of Nebraska - Omaha
[PUBLISHED] [Shepherd, Author, with Riley and Beam, Circuit Judges] Civil case - Insurance. In action seeking insurance coverage related to the improper installation of a fire detection and suppression system by one of plaintiff's subcontractors, the district court did not err in dismissing the action under Rule 12(b)(6) for failure to state a claim upon which relief can be granted; two of the claims were based on Nebraska statutes which do not provide a private right of action; with respect to claims concerning breach of contract, plaintiff failed to allege a legal obligation to pay any judgment covered under the terms of the policy; similarly there could no be claim for breach of the duties of good faith and fair dealing in the absence of a reasonable basis for denying benefits; plaintiff, a third party beneficiary under the subcontractor's policy failed to plausibly alleged the terms of the policy demonstrate a reasonable intendment to include plaintiff in the subcontractor's Errors and Omissions coverage; mitigation claim was properly rejected as was plaintiff's claim that defendant waived denial of coverage or was estopped from denying coverage because plaintiff detrimentally relied on the existence of coverage when it hired the subcontractor. Judge Beam, concurring in the judgment. 163301U.pdf 08/11/2017 United States v. Bartolo Zavala-Reyes U.S. Court of Appeals Case No: 16-3301 U.S. District Court for the District of Minnesota - St. Paul
[UNPUBLISHED] [Per Curiam - Before Gruender, Murphy and Kelly, Circuit Judges] Criminal case - Sentencing. Defendant waived his argument that the district court committed procedural error by failing to provide an adequate explanation for not applying a proposed version of Guidelines Sec. 2L1.2 when he failed to make a contemporaneous objection to the denial, even when the court provided an opportunity for further comment from counsel; a district court is not required to consider a pending Guidelines amendment when it calculates a defendant's advisory guidelines range; defendant's within-guidelines range sentence was substantively reasonable. 163510P.pdf 08/11/2017 United States v. Roxanne Spotted Horse U.S. Court of Appeals Case No: 16-3510 U.S. District Court for the District of South Dakota - Aberdeen
[PUBLISHED] [Per Curiam - Before Smith, Chief Judge, and Colloton and Kelly, Circuit Judges] Criminal case - Sentencing. The sentence imposed upon the revocation of defendant's supervised release exceeded the court's statutory authority under 18 U.S.C. Sec. 3583 as the total sentence imposed since defendant's first revocation exceeded the 36-month statutory maximum; remanded for resentencing to permit the court to determine the appropriate combination of months of imprisonment and supervised release from the possibilities permitted under 18 U.S.C. Sections 3583(e)(3) and 3583(h). 164199U.pdf 08/11/2017 United States v. Daniel Drews U.S. Court of Appeals Case No: 16-4199 U.S. District Court for the District of Nebraska - Omaha
[UNPUBLISHED] [Per Curiam - Before Smith, Chief Judge, and Arnold and Shepherd, Circuit Judges] Criminal case - Sentencing. Defendant has completed the revocation sentence at issue in this appeal, and the matter is dismissed as moot. 164552U.pdf 08/11/2017 United States v. Andres Sanchez U.S. Court of Appeals Case No: 16-4552 U.S. District Court for the Southern District of Iowa - Council Bluffs
[UNPUBLISHED] [Per Curiam - Before Loken, Gruender, and Shepherd, Circuit Judges] Criminal case - Sentencing. Anders case. The district court properly considered the 3553(a) factors and did not impose a substantively unreasonable sentence. 164553U.pdf 08/11/2017 United States v. Carvell England U.S. Court of Appeals Case No: 16-4553 U.S. District Court for the Northern District of Iowa - Sioux City
[UNPUBLISHED] [Per Curiam - Before Colloton, Bowman and Benton, Circuit Judges] Criminal case - Sentencing. The sentence imposed upon the revocation of defendant's supervised release, while greater than his recommended guidelines range, was well within statutory limits and was not substantively unreasonable. 171307U.pdf 08/11/2017 United States v. Tara Childress U.S. Court of Appeals Case No: 17-1307 U.S. District Court for the Western District of Missouri - Kansas City
[UNPUBLISHED] [Per Curiam - Before Colloton, Murphy and Kelly, Circuit Judges] Criminal case - Sentencing. Anders case. Defendant knowingly and voluntarily waived his right of appeal and this challenge to his sentence is within the scope of his waiver; the appeal is dismissed.
