Planned Parenthood of Utah v Herbert

Parenthood sued Hebert under 42 USC 1983 alleging Herbert’s order to stop payments to Parenthood under several contracts with Utah violated the several provisions of the United States Constitution. The district court ultimately denied Parenthood’s motion for a preliminary injunction. The panel, with one judge dissenting in part, reversed and remanded for reentry of the injunction. The panel held that Parenthood did not establish a likelihood of prevailing on its class of one equal protection claim because there was no evidence about similarly situated contractors in the record and thus no evidence of favorable treatment towards those contractors. The majority  held that Parenthood was likely to prevail on its unconstitutional conditions claims as it has the right to promote abortion and women have the right to seek abortions services, Hebert stated that he ordered the stoppage of payments because of the fetal tissue videos involving national Planned Parenthood, Hebert conceded the fetal tissue actions occurred outside Utah and Herbert called on the legislature to defund Parenthood all of which support the conclusion Herbert acted with the intent of violating Parenthood’s rights. It held this likely to be proven violation constitutes an irreparable injury as free speech violations are irreparable injuries, the violation is likely to damage Parenthood’s reputation by linking it to allegedly illegal activity as well as the limits placed on parenthood’s ability to serve needy populations. It held Utah’s right to administer contracts would be impacted by the injunction while Parenthood would be impacted financially and reputationally and thus this factor favored issuing the injunction. It finally held that Utah citizens have an interest in their elected officials not violating constitutional rights and those who receive services from Parenthood have an interest in preventing unwanted pregnancy and STD transmission and no other providers would be able to step into Parenthood’s shoes to provide services to these groups. Thus, the factors favored Parenthood and the majority remanded the case for entry of the injunction. The dissent argued that movants for preliminary injunction do not face a lesser burden of proving likelihood of success if the other factors favor the injunction and that here Parenthood failed to prove a likelihood of success because there was no evidence that Herbert issued the order because of Parenthood’s advocacy instead of Hebert’s outrage at national Planned Parenthood’s involvement in possibly illegal fetal tissue sales.

Helmer v Goodyear Tire & Rubber Co.

Helmer appealed the jury verdict for Goodyear in his design defect case arguing his Rule of Civil Procedure 50 motions were improperly denied. The panel affirmed. It held any error in a nonparty fault jury instruction was harmless as the jury found Goodyear did not defectively design the hose in question and thus nonparty fault was no implicated in this case. It held theRule50 motion arguing the statutory presumption that product is not defective once it has been in service 10 years after sale did not apply here was properly rejected as the statute does not contain a trigger of useful life and Colorado courts will not read provisions into a statute that eth legislature declined to include, more than 10 years had passed from first sale of the type of hose used here and thus the presumption applied.

Kilcrease v Domenico Transportation Co.

Kilcrease appealed summary judgment on his Americans with Disabilities and retaliation claims. The panel affirmed. It held that district courts are required to consider whether the plaintiff is a qualified applicant for the job in question, Kilcrease was not as he lacked the required three years of mountain driving experience, the requirement was essential to the job because Domenico presented evidence the requirement was included in the job advertisement and the requiems was essential due to the presence of mountain roads on most of the routes Domenico runs and Kilcrease did not identify any genuine disputes of material fact to foreclose summary judgment. As to the retaliation claim, the panel held that Kilcrease only raised ADA concerns after he was informed Domenico was not going to hire him, the decision was unequivocal and not changing the decision was not a new adverse employment action. Thus, there was retaliation claim.

United States v Merida

Merida appealed the denial of his motion for mistrial. The panel affirmed. It held that the sworn statement used to impeach Merida was not protected by attorney client privilege as Merida’s employer, the Choctaw Nation, hired the attorney who took the sworn statement, order Merida to give the statement, the attorney did not agree to communicate with Merida in his individual capacity and the statement was about maters of general importance to the Nation and Nation waived its privilege by giving the transcript of the statement to the federal government as part of a fraud investigation. Additionally, the panel held any error in the use of the transcript harmless given the overwhelming evidence of guilt including admissions of guilt by Merida to federal investigators and testimony form coconspirators and the fact the jury which indicated it was hung on one count was able to return a unanimous verdict within five minutes of being allowed one final vote before being sequestered for the night. One judge added a concurrence arguing no reasonable person in Merida’s position would believe the sworn statement was privileged and Merida subjectively did not believe it was privileged as he lied in his statement.

United States v Basurto

Basuto appealed the fine imposed as part of her sentence. The panel affirmed. It held that there was no clear error in the district court’s determination that Basurto could pay the fine by either selling her house or obtaining a loan secured by the house as New Mexico has a method to approve sales when a spouse’s whereabouts are unknown to the other spouse, Basurto’s children have been in contact with her husband and she failed to provide evidence that he would not approve sale of their house and Basurto did not present any evidence that she could not obtain  loan secured by the house. It held hardship does not factor into ability to pay under the plain language of the sentencing statute and thus there was no error in not considering hardship in the ability to pay analysis. It held there was no clear error in the district court’s finding that family members knew about Basurto’s drug dealing as her daughter knew the combination of a safe where methamphetamine was found, drugs were found in Basurto’s son-in law’s car and Basurto kept drug sale tools in plain view in her bedroom and the items found in the house connected the house to the drug activity. It finally held that the district court did not omit consideration of recidivism in the analysis of imposing the fine but in fact stated it did so consider the risk in setting the amount.

Levorson v Octapharma Plasma, Inc.

Levorson appealed the dismissal of his ADA claim arguing Plasma was a “service establishment” and thus a  public accommodation under 42 USC 12181(7)(F). The panel, 2-1, reversed. The majority held that the plain meaning of “service establishment” is an establishment that [provides service or a business or institution that by its conduct or performance benefits someone  or something or provide useful labor without producing a tangible good for a customer or client, this meaning is unambiguous and thus there is no need to confine the phrases meaning to match those of the other entities listed in (7)(F) and this meaning is consistent with the need to liberally construe the statute and the legislative history. It held that Plasma meet the definition as it provides a place to give plasma and personnel to remove the plasma for those like Levorson who desire to give plasma. The dissent argued that “service establishment” must be construed in the context of the other terms in (7)(F) and the cannons of noscitur a sociis and ejusdem generis can be used to give meaning to the term. The dissent argued that the service establishments must go beyond providing conduct or performance and apply specialized knowledge or use specialized equipment, do the service for the public’s use in achieving a desired end and charge the customer or client a fee. It argued Plasma is not covered by (7)(F) as it did not charge Levorson or any client a fee but instead paid the clients for their plasma and Plasma utilizes its specialized knowledge and equipment to meet its own end of obtaining plasma to sell not any end of the public. It finally argued that plasma centers are more like a manufacturer than a service establishment and are recognized as manufacturers in other federal statutes and in FDA regulations and thus should not be subject to (7)(F).

Maiteki v Marten Transport Ltd.

Maiteki appealed summary judgment for Marten in his fair Credit reporting Act claim. The panel affirmed. It held that Marten’s investigation was reasonable as it focused on whether the safety violation code was correct, there was no dispute that Maiteki was warned for speeding, it was reasonable to rely on statements form the supervisor who reviewed currently unavailable records about the contents of those records, Marten’s company records state Maiteki was served with warnings about speeding and Maiteki failed to rebut this and there was no reason to contact Illinois authorizes about the speeding warning as there was no dispute Maiteki did in fact speed and was in fact warned.