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8th U.S. Circuit Court of Appeals Digest: Oct. 19, 2017

Minnesota Lawyer//October 19, 2017

8th U.S. Circuit Court of Appeals Digest: Oct. 19, 2017

Minnesota Lawyer//October 19, 2017



Civil Practice

Class Action; MMPA; Amount in Controversy


Where a plaintiff brought a class action against a candy manufacturer alleging that the defendant sold under-filled boxes resulting in unjust enrichment and violations of the Missouri Merchandising Practices Act, the district court properly remanded the case to the state court from which it was removed because the defendant did not meet its burden under either the plaintiffs’ viewpoint rule or the either viewpoint rule to establish by a preponderance of the evidence that the amount of controversy exceeded $5 million. Judgment is affirmed.

17-2812 Waters v. Ferrara Candy Co., appealed from the Eastern District of Missouri, per curiam.


Civil Rights

Excessive Force; Qualified Immunity


Where the estate of a woman who was killed by police while holding a knife and acting erratically at a convenience store challenged the dismissal of excessive force claims, the judgment is affirmed because the District Court properly found that the officers were objectively reasonable in tasing and then shooting the woman, and the officers were entitled to qualified immunity. Judgment is affirmed.

16-3523 Frederick v. Motsinger, appealed from the Western District of Missouri, Loken, J.


Constitutional Law

Validity of Arrest; Highway Protest; Arkansas Law


Where a man who was arrested in a highway overpass protest sued officers alleged that his arrest violated the First and Fourth amendments, the District Court’s grant of summary judgment to the defendants is affirmed because qualified immunity protected the arresting officer from First Amendment damages since the officer had no reason to know that his order to disperse was unlawful and qualified immunity also protected the officer from Fourth Amendment damages, and the statute authorizing arrest was not unconstitutional as applied. Judgment is affirmed.

16-3629 Weed v. Jenkins, appealed from the Eastern District of Missouri, Benton, J.)



Pension Plan Management; Attorney’s Fees


Where plaintiffs brought a putative class action against a bank and its directors challenging its management of a defined benefit pension plan, the dismissal of the case is affirmed because the plaintiffs did not fall within the class of plaintiffs authorized to bring suit since the plan was overfunded, and the record supported the District Court’s conclusion that the plaintiffs failed to produce evidence that their lawsuit was a material contributing factor in the defendants’ making the 2014 contribution resulting in the overfunded status, so the denial of attorney’s fees and costs is also affirmed.


Opinion concurring in part; dissenting in part by Kelly, J.: “I agree with the court’s conclusion that—under Harley and McCullough—the plaintiffs lack authorization to sue under 29 U.S.C. § 1132(a)(2). However, I respectfully dissent from the court’s holding that the plaintiffs lack authority to bring their claims for injunctive relief under 29 U.S.C. § 1132(a)(3). As relevant, § 1132(a)(3) authorizes civil actions ‘by a participant, beneficiary, or fiduciary (A) -21- to enjoin any act or practice which violates any provision of [29 U.S.C. §§ 1104–1106], or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce [§§ 1104–1106].’ In light of this unambiguous statutory text and in the absence of any dispute that the plaintiffs are participants in and beneficiaries of the Plan, I believe that the plaintiffs’ complaint—which seeks to enjoin the defendants from breaching their fiduciary duties under §§ 1104–1106 in relation to their management of the Plan—falls within ‘the zone of interests to be protected or regulated’ by ERISA.” Judgment is affirmed.

16-1928 Thole v. U.S. Bank, appealed from District of Minnesota, Smith, J.



Removability; Adjustment of Status; Fraudulent Marriage


Where an immigrant from Kenya challenged a finding that he married a U.S. citizen to evade immigration laws, the petition for review is denied because testamentary and documentary evidence, which showed that the couple never lived together, was never refuted and was sufficient to show that the marriage was fraudulent. Petition for review denied.

16-3407 Abuya v. Sessions (MLW No. 71120/Case No. 16-3407 – 7 pages) Petition for review of an order of the Board of Immigration Appeals, Loken, J.




Habeas Relief

Brady Claim


Where a defendant challenged the denial of his claim for habeas relief arguing that the prosecution did not disclose material exculpatory evidence in violation of Brady v. Maryland, the judgment is affirmed because the District Court did not clearly err in finding that there was no agreement that the government could have failed to disclose, the defendant procedurally defaulted any claims he may have had regarding alleged fabricated evidence and the defendant had the opportunity to raise his claims regarding the disposition of a gun but failed to do so, so the defendant’s Brady claims failed. Judgment is affirmed.

16-2887 Kennell v. Dormire, appealed from Eastern District of Missouri, Arnold, J.



Motion to Suppress

Warrantless Entry; Consent


Where a defendant argued that agents violated his Fourth Amendment rights by entering his apartment without permission, the District Court did not err in finding that the defendant’s roommate had voluntarily consented to the entry even though he was under arrest, had not received Miranda warnings and lacked prior experience with law enforcement since he was of average intelligence, he was not intoxicated and agents did not restrain him or promise anything to him. Judgment is affirmed.

16-4097 U.S. v. Cobo-Cobo, appealed from the Northern District of Iowa, Arnold, J.



Upward Variance


Where a defendant in a felon-in-possession case challenged the imposition of an upward variance at sentencing, the judgment is affirmed because the defendant did not show that the District Court considered improper factors or that the court erred in weighing the factors.

Judgment is affirmed.

16-3987 U.S. v. Stone, appealed from the Western District of Missouri, per curiam.


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