Decisions
This section of the Web Site contains opinions selected by individual Judges for posting and is not intended to constitute a complete set of opinions for the district or any Judge. The decisions are organized by categories listed on the lower left portion of this page. If you would like to do a word search of the entire database or individual categories you may do so by clicking on the search button below.


CategoryCase NameDate Filed
Berg v. Barnhart, Comm. of Social Security (Commissioner’s objections to report and recommendation recommending judgment enter in favor of claimant: the ALJ did not err in discounting claimant’s allegations as to the level and severity claimed regarding his asthma and allergies, as his description of his daily activities, lack of documented attacks requiring medical or emergency intervention and medical regime were inconsistent with the allegations; ALJ properly evaluated the medical evidence in the case; hypothetical question posted to the vocational expert included limitations the ALJ found credible; and medical record was sufficient for ALJ to make a determination.) 08/02/2004Mark W. Bennett
Muckey v. Barnhart (Report and recommendation on appeal from denial of Title II disability insurance benefits. Court found substantial evidence existed to support Commissioner's decision that claimant, who was working at temporary full-time job at time of ALJ hearing, was not disabled.)08/02/2004Paul A. Zoss
Raven v. Barnhart (Report and recommendation on appeal from denial of Title XVI supplemental security income and Title II disability insurance benefits. Court found ALJ failed to give proper weight to opinions of plaintiff's treating physician, and two other consulting physicians who actually examined plaintiff, and gave improper weight to opinions of non-examining, non-treating consultants whose opinions were based solely on records review. Court found ALJ erred in finding alcoholism to be contributing factor to a finding of disability during the relevant time period, and recommended Commissioner's decision be reversed.)07/26/2004Paul A. Zoss
Durham v. Barnhart (Memorandum Opinion & Order on appeal from denial of retirement insurance benefits. Plaintiff was found to be disabled in 1983, although she did not qualify for disability insurance benefits because she lacked the requisite number of quarters of coverage. The issue here is whether the years from and after she was found to be disabled are excludable as a "period of disability" for purposes of determining her eligibility for retirement insurance benefits. Held: Although the statute is not a model of clarity, the court defers to the Commissioner's interpretation of the statute. Thus, Plaintiff is not entitled to benefits because she lacks the requisite number of quarters of coverage.)07/15/2004Paul A. Zoss
Quist v. Barnhart (Report and Recommendation on appeal from denial of Title XVI supplemental security income and Title II disability insurance benefits. Plaintiff claimed disability due to back pain, seizures, and headaches. ALJ found the evidence of record did not support the plaintiff's testimony that he was unable to perform any type of work. Court found substantial evidence existed in the record to support the ALJ's credibility determination, and recommended the Commissioner's decision to deny benefits be affirmed.)06/16/2004Paul A. Zoss
Saenz v. Barnhart (Social Security; adoption of report and recommendation finding ALJ failed to properly conduct Polaski analysis; discussion of “acceptable medical source” opinion, “other medical source” opinion and “treating source” opinion; finding ALJ failed to properly consider “other medical source” opinion and requiring on remand consideration of the factors enumerated and defined by the regulations)06/02/2004Mark W. Bennett
Engling v. Barnhart (Report and Recommendation on appeal from denial of Title XVI supplemental security income and Title II disability insurance benefits. Plaintiff alleged disability due to Bipolar Disorder and depression. Court found ALJ improperly discounted opinions of plaintiff's therapist, a licensed clinical social worker, at step three of the sequential evaluation process. Regulations provide therapist's opinions are appropriate source of evidence regarding severity of a claimant's impairment and its effect on his ability to work. Court also found ALJ erred in discounting plaintiff's credibility. Court recommended reversal and remand for calculation nd award of benefits.)05/28/2004Paul A. Zoss
Miller v. Barnhart (Memorandum Opinion and Order on appeal from denial of disability insurance benefits. Court found record contained substantial evidence to support Commissioner's decision, and recommended the decision be affirmed.)05/19/2004Paul A. Zoss
McInnis v. Barnhart (Report and Recommendation on appeal from Commissioner's ruling that plaintiff was "not without fault" in causing overpayment of disability insurance benefits. Court found ALJ failed to develop the record fully and fairly; erred in failing to make a credibility determination; and placed improper weight on what the ALJ believed the plaintiff's wife knew or should have known. Court recommended remand for further development of the record and consideration of further evidence.)05/13/2004Paul A. Zoss
Berg v. Barnhart (Report and Recommendation on appeal from denial of Title II disability insurance benefits. Court discusses difficulty in evaluating disability claim based on asthma, where claimant is able to control symptoms through self medication and controlling his environment. Court found record did not support ALJ's conclusion that claimant's subjective complaints were less than credible, and ALJ erred in relying on absence of certain medical documentation that could have been obtained upon request. Court found ALJ did not err in posing hypothetical question to vocational expert. Court recommended Commissioner's decision be reversed, and case be remanded for calculation and award of benefits.)05/04/2004Paul A. Zoss
Wallace v. Comm. of Social Security (Social Security; plaintiff’s attorney’s request for attorney fees pursuant to 42 U.S.C. § 406(b): lodestar methodology is no longer used to calculate fees requested pursuant to contingency fee agreement; continency fee agreement is starting point for court’s determination of reasonable fees; court can only award fees for time before the court; the court will not award twenty-five percent of past due benefits, even with contingency fee agreement, if such an award is unreasonable).04/22/2004Mark W. Bennett
Stewart v. Barnhart (Report and Recommendation on appeal from denial of Title XVI supplemental security income benefits. Court found ALJ erred in finding claimant's subjective complaints not to be credible, and in failing to develop the record fully. Court also found ALJ improperly extrapolated wages for part-time work into a hypothetical full-time job for purposes of deeming part-time job to be past relevant work.)04/06/2004Paul A. Zoss
Saenz v. Barnhart (Report and Recommendation on appeal from denial of application for SSI benefits. In recommending reversal and remand, Court found ALJ erred in (1) failing to give great weight to opinion of physician's assistant who had treated claimant frequently over fourteen-month period, and had been claimant's exclusive treating medical sourse during that time; (2) assessing claimant's RFC and finding he could return to past work, with result that ALJ should have proceeded to step five of sequential evaluation process; and (3) failing to make a thorough analysis regarding claimant's credibility.)03/30/2004Paul A. Zoss
Dunkerson v. Commissioner of Social Security (Social Security; claimant’s objections to report and recommendation recommending judgment enter in favor of Commissioner: judicial review of ALJ’s consideration of medications as required by Polaski; whether ALJ’s RFC contained limitations documented by the medical evidence; whether hypothetical question reflected claimants abilities) 03/24/2004Mark W. Bennett
Thomas v. Barnhart (Memorandum Opinion and Order on appeal from denial of disability benefits. Court found ALJ erred in failing to develop the record fully and fairly; finding plaintiff could return to past work; relying on ambiguous testimony by vocational expert; and placing unwarranted weight on testimony of non-examining physician. Reversed and remanded for further proceedings.)03/19/2004Paul A. Zoss
Demaris v. Barnhart, Commisioner of Social Security (DeMaris v. Jo Anne B. Barnhart, Commissioner of Social Security (Social Security; claimant’s objections to report and recommendation recommending judgment enter in favor of Commissioner: judicial review of ALJ’s reliance on non-examining sources; whether substantial evidence existed that claimant could perform light work; review of other claimed limitations including medical evidence, daily activities, financial inability to obtain additional treatment, whether pain is controlled, work history, and claimant’s own subjective complaints)03/04/2004Mark W. Bennett
Henrichs v. Barnhart (Memorandum Opinion and Order on appeal from denial of Social Security disability benefits. Plaintiff claimed disability due to arthritis in thrumbs; pain in back, neck, hips and hands; and migraines. Court found ALJ's residual functional capacity assessment, as presented in hypothetical questions to Vocational Expert, did not encompass all of plaintiff's limitations. Court discusses duty of Appeals Council to provide explanation when it considers, and rejects, post-hearing evidence. Commissioner's decision reversed and case remanded for further proceedings.02/03/2004Paul A. Zoss
Dunkerson v. Barnhart (R&R recommending Commissioner's decision be affirmed denying applications for SSI and DI benefits. Court discusses recent case law regarding burdens of proof in five-step evaluation process (Sec. III.A.); standard of review for ALJ's credibility determination (Sec. IV.A.; see Sec. III.B.); standards for ALJ's residual functional capacity assessment (Sec. IV.B.); and requirements for proper hypothetical question to Vocational Expert (Sec. IV.C.).01/20/2004Paul A. Zoss
Centra v. Barnhart (Amended Report and Recommendation on appeal from denial of SSI and DI benefits. Court found that although none of plaintiff's medical or psychological impairments, standing alone, was sufficient to warrant a finding of disability, all of his impairments in combination rendered him disabled. Opinion discusses Social Security Ruling relating to consideration of residual functional capacity when mental illness is involved.)01/08/2004Paul A. Zoss
Knudsen v. Barnhart (R&R on appeal from denial of Social Security disability insurance benefits, recommending reversal and judgment for plaintiff. Plaintiff alleged disability due to Bipolar Disorder, fibromyalgia, Raynaud's phenomenon, and irritable bowel syndrome. Court found ALJ did not give proper weight to opinions of plaintiff's treating psychiatrist and counselor. Court discusses weight to be given to counselor as an "other" medical source.)12/16/2003Paul A. Zoss
McGee v. Barnhart (appeal from denial of Title II disability insurance benefits. Court found ALJ erred in rejecting opinions of plaintiff's treating physicians, and in discounting plaintiff's subjective complaints without performing proper Polaski analysis. Reversed and remanded for calculation and award of benefits.)12/08/2003Paul A. Zoss
Johnson v. Barnhart (R&R in appeal from denial of Social Security disability benefits, recommending Commissioner's decision be reversed. Plaintiff alleged disability due to fibromyalgia, chronic fatigue syndrome and other causes. Court found ALJ erred in failing to consider Plaintiff's work history and opinion of treating physician in assessing Plaintiff's credibility, and in failing to credit presence of pain and trigger points as objective medical evidence of fibromyalgia.)12/05/2003Paul A. Zoss
Grant v. Barnhart (R&R in Social Security appeal where plaintiff claimed disability due to seizures and back pain since 11/02/98. Appeals Council overruled ALJ and found plaintiff to be disabled from and after 01/01/00. Court found substantial evidence existed in the Record to support a finding of disability from and after 09/01/99, and therefore recommended reversal of Commissioner's decision.)12/01/2003Paul A. Zoss
DeMaris v. Barnhart (R&R recommending Commissioner's decision be affirmed in appeal from denial of Title II disability benefits. Plaintiff claimed disability on the basis of, inter alia, fibromyalgia, diabetes mellitus, and high blood pressure. Court found evidence in the Record supported inconsistent positions, and because one of them represented the Commissioner's decision, the case should be affirmed.)11/13/2003Paul A. Zoss
Burks v. Barnhart (R&R in appeal from denial of SSI and DI benefits. Alleged impairments: borderline intellectual functioning, anxiety, post-traumatic stress disorder. Primary issue was lack of evidence to support any conclusion, either favorable or unfavorable. Court found the ALJ had not fulfilled his duty to develop the record fully, and recommended remand to obtain further evidence and reconsider the decision.)11/03/2003Paul A. Zoss
Harrington v. Barnhart (R&R recommending reversal and award of benefits in case involving Commissioner's denial of Widow's Insurance Benefits under Title II of Social Security Act. Plaintiff alleged common-law marriage and sought widow's insurance benefits based on decedent's wages. ALJ found no common-law marriage existed. Court recommended reversal and award of benefits. Court discussed Iowa law relating to factors for proof of common-law marriage.)10/30/2003Paul A. Zoss
Carroll v. Barnhart (R&R in Social Security appeal, recommending remand with instructions for the ALJ to further develop the record. Pivotal issue was whether Record contained sufficient evidence to support ALJ's residual functional capacity, and therefore the hypothetical posed to the Vocational Expert, where the claimant had received almost no treatment at all for the allegedly disabling condition.)09/25/2003Paul A. Zoss
Anderson v. Barnhart (R&R in appeal from denial of SSI benefits. Issues: claimant's credibility; impact of failure to seek treatment due to financial hardship. Court recommended case be remanded for reconsideration with directions to view claimant's subjective complaints as credible.)09/02/2003Paul A. Zoss
Deakins v. Barnhart (Social Security; objections to report and recommendation recommending judgment enter in favor of Commissioner: judicial review of ALJ’s assessment of the medical opinions of doctors; whether ALJ conducted a proper credibility analysis when she considered personal observations of claimant during hearing, claimant’s daily activities, and alleged short attention span)08/06/2003Mark W. Bennett
Jessen v. Barnhart (R&R in Social Security appeal, recommending the Commissioner's decision be affirmed. Plaintiff claimed disability based on borderline intellectual functioning and depression. Court found plaintiff could return to past relevant work, and therefore was not disabled.)07/22/2003Paul A. Zoss
Henrich v. Barnhart (Social Security; objections to report and recommendation recommending reversal and award of disability benefits: judicial review of ALJ’s assessment of claimant's subjective complaints; rejection of the opinions of medical and vocational experts relying on those complaints; whether ALJ conducted proper Polaski analysis)07/10/2003Mark W. Bennett
Kirkpatrick v. Barnhart (Memorandum opinion reversing Commissioner's decision denying Social Security benefits for a closed period. Court held the ALJ incorrectly relied on the opinions of non-examining, non-treating physicians, and improperly discounted or ignored opinions of the plaintiff's treating physicians.)06/18/2003Paul A. Zoss
Deakins v. Barnhart (R&R in Social Security appeal recommending that the Commissioner's decision be affirmed. Issues: ALJ's credibility determination; what constitutes a "treating physician," and proper weight to be given to physicians' opinions, appropriateness of hypothetical question posed to Vocational Expert)05/29/2003Paul A. Zoss
Henrich v. Jo Anne B. Barnhart, Commissioner of Social Security (R&R in Social Security appeal recommending reversal and award of disability benefits. Court found the ALJ improperly discredited the claimant's subjective complaints, and the opinions of medical and vocational experts relying on those complaints, without conducting a proper Polaski analysis.)05/01/2003Paul A. Zoss
Marnell v. Barnhart (Appeal of denial of several applications for Social Security benefits, including applications for SSI benefits under Title XVI as both a child and an adult, appliction for DI benefits under Title II, and application for Child's Disability Insurance Benefits under Title II. Discussion of disability requirements for child and adult claimants; regulations governing personality disorders in Listing 12.08; and case-specific requirements for entitlement to child's disability insurance benefits. Court found claimant to be disabled on the basis of personality disorder manifesting itself primarily in behavior problems, including persistent hostility and anger, inability to function socially, and inability to engage in appropriate relationships, including in the work place.)03/31/2003Paul A. Zoss
Hide details for OtherOther
Catherine Bohn v Cedar Rapids Community School District11/18/2016Edward J McManus
USA v $33,621.0008/17/2016Edward J McManus
Na-Churs Plant Food v IRS08/16/2016Edward J McManus
USA v $33,621, et al07/29/2016Edward J McManus
Security National Bank v. Abbott Laboratories (Order sanctioning lawyer for obstructive disposition practices; Court discusses the impropriety of “form” objections, witness coaching, and excessive interruptions during depositions.)07/28/2014Mark W. Bennett
Attorney's Process & Investigative Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa; Order holding that tribal court lacks jurisdiction over tribe's conversion claim against non-Indian08/18/2011Linda R. Reade
Luken v. Edwards (Case brought under Title III of the Omnibus Crime and Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2520 (“Title III” or “the Act”) for intercepted telephone calls between plaintiff and other individuals, including his attorney, with pendent claims for invasion of attorney-client privilege, invasion of privacy, and under Iowa’s wiretapping act, Iowa Code § 808B.8; motion to dismiss for failure to state a claim; concluding that Amended Complaint’s factual allegations that plausibly stated claims under Title III, Iowa Code § 808B.8, and invasion of privacy, but dismissing invasion of attorney-client privilege claim because it is not recognized under Iowa law.05/03/2011Mark W. Bennett
United States v. Two Hundred Fifty-Six Thousand Two Hundred Thirty-Five Dollars and Ninety-Seven Cents ($256,235.97), et al.; order denying claimant's motion for summary judgment in forfeiture03/08/2010Linda R. Reade
Great Lakes Comm. Corp. v. Iowa Utilities Board -- Report and Recommendation on plaintiffs' motion for preliminary injunction to prevent enforcement of one clause of IUB Order requiring reclamation of all telephone numbers assigned to Great Lakes. In considering the Dataphase factors, and in particular the plaintiff's likelihood of prevailing on the merits, the court analyzed the IUB Order and applicable regulations and recommended that a preliminary injunction be issued.11/17/2009Paul A. Zoss
Handke ex rel. Estate of Davis v. Astrue - Order on motion for attorney's fees and costs under Equal Access to Justice Act and 42 USC 406(b)05/16/2008Paul A. Zoss
Lewis v. J&M P'ship, F&F Inv, Air Mak & E. James Freyberger-Ruling on Motion to Extend Time (failure to obtain extension of time the result of excusable neglect, showing of good cause to extend pleadings deadline)04/04/2008Jon Stuart Scoles
Flynn v. Farmer Masonry, Inc. and Dwayne Farmer, Individually (motion to quash lien on real estate; homestead exemption, Iowa law)02/06/2008Jon Stuart Scoles
Russell A. Folkers vs. City of Waterloo, Iowa, Darrel Johnson, in his individual capacity and as Animal Control Officer for City of Waterloo, Iowa, and Maria Tiller, in her individual capacity and as Animal Control Officer for the City of Waterloo, Iowa (Report and Recommendation re preliminary injunction--dangerous dog)10/12/2007Jon Stuart Scoles
USA vs. Leland Richard Vinton (motion to quash subpoena for billing statement)08/16/2007Jon Stuart Scoles
USA vs. Tony Eugene Goodson (conflict of interest for attorneys)08/07/2007Jon Stuart Scoles
USA vs. Greg Alan Johnson (Report and Recommendation on involuntary treatment of psychotropic medication to restore competency for trial)05/17/2007Jon Stuart Scoles
USA vs. Abdel-Ilah Elmardoudi (allow deposition of witness)04/30/2007Jon Stuart Scoles
Attorney's Process and Investigation Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa; Plaintiff filed a motion for preliminary injunction to enjoin an action pending in the Court of the Sac and Fox Tribe of the Mississippi in Iowa; defendant previously brought a suit in that court against plaintiff alleging various torts; plaintiff alleged the tribal court did not have jurisdiction over it because it is a non-Indian; plaintiff further alleged it would be irreparably harmed if the tribal court action were to proceed because the tribal court is biased, it would not be allowed to assert a counterclaim against the Tribe, and the 2003 contract it entered into with the Tribe contains an arbitration clause; Court found it did not have jurisdiction over the lawsuit; court denied plaintiff's claim that exhaustion of tribal court remedies would be futile and stayed the federal action pending the exhaustion of tribal remedies; court determined the tribal court must, in the first instance, determine the extent of its own jurisdiction 11/15/2005Linda R. Reade
United Fire & Casualty Company v. Applied Financial, Inc.; Order re defendant Applied Financial, Inc.’s motion to dismiss for lack of personal jurisdiction or, in the alternative, transfer to Utah 10/28/2005Linda R. Reade
United States v. B.H.; After the defendant was committed under Iowa law to outpatient care and subsequently released, he sought to repossess firearms seized prior to his commitment. The state argued he was not entitled to the return of his firearms under state and federal law; the state court judge ruled against the state and ordered the firearms to be returned to the defendant. The US Attorney's Office subsequently filed a declaratory judgment action asking this court to declare the firearms contraband as to the defendant due to his prior commitment. The court held the US Attorney's Office was virtually represented by the state in the prior proceeding and thus was precluded from pursuing the civil action in this court.07/07/2005Linda R. Reade
Sac & Fox Tribe of the Mississippi in Iowa Election Board v. Bureau of Indian Affairs, Midwest Regional Director and Office of the Assistant Secretary-Indian Affairs, Aurene M. Martin, First Assistant and Principal Advisor; motion to dismiss filed by current election board; case dismissed because the motion to dismiss raises intra-tribal disputes regarding (1) any election board's authority under the Tribe's Constitution to file a lawsuit in federal court and, if so, (2) which election board is the proper plaintiff in this suit 03/02/2005Linda R. Reade
American Express Financial Advisors, Inc. v. Richard Yantis; This preliminary injunction motion arises in the context of a restrictive covenant in a franchise agreement. After applying the Dataphase factors, the court found the plaintiff/franchisor demonstrated the likelihood of success on the merits, the threat of irreparable harm, the balance of harm and the public interest all weighed in favor of granting a preliminary injunction against the defendant/former franchisee. 02/28/2005Linda R. Reade
Ranger Insurance Company v. Farmers National Company, et al (Memorandum Opinion and Order on motion for summary judgment filed by one defendant. In denying summary judgment in this premises liability case, court briefly discusses standard, under Iowa law, for a property owner to be held liable to a lessee's invitee; and effect of a party withdrawing or amending a pleading in which the party initially made an admission.)12/17/2004Paul A. Zoss
Iowa Protection and Advocacy Services, Inc. v. Tanager Place and Tanager, Inc.; Order on permanent injunction09/30/2004Linda R. Reade
In the Matter of American Commercial Lines LLC as the Owner and American Commercial Barge Line LLC as Operator, of the Barge “PV548B”, in a case for exoneration from and/or limitation of liability; motion for entry of injunction and notice to claimants; shipowner’s liability limited pursuant to the Limitation of Liability Act, 46 U.S.C. App. § 181.) 05/26/2004Linda R. Reade
Trustees of the Five River Carpenters District Council Health and Welfare Fund and Trustees of the Five River Carpenters Joint Apprenticeship and Training Committee Fund v. Steiner Construction, Inc.; Order on motion for default judgment; defendant failed to make contributions to ERISA funds; award of delinquent contributions, liquidated damages, interest, attorney’s fees and costs03/16/2004Linda R. Reade
Stephen C. Leonard v. John F. Ault, William H. Soupene, Harry Brown, Steve Hebron, Russell Behrends, Mike Bickford, Marvin Kurt, Kathy Lint, Phil Kauder, Nancy Kucera, John Spence, Gary Maynard, Dennis Labarge, Sue Vanamcrongen; Order on plaintiff's motion to alter or amend judgment regarding denial of in forma pauperis status pursuant to three strikes provision 28 U.S.C. Section 1915(g)12/02/2003Linda R. Reade
Transamerica Financial Life Insurance Co., et al. v. Merrill Lynch & Co., Inc.; Order on motion for remand and abstention; analysis of whether the action is "related to" the pending Enron bankruptcy in SDNY; application of mandatory abstention, permissive abstention and equitable remand11/17/2003Linda R. Reade
Morgan v. Morgan (Petition for Return of Child pursuant to The Convention on the Civil Aspects of International Child Abduction (CCAICA), and the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq.; Temporary Restraining Order and Order for Expedited Hearing; Order to Appear at Show Cause Hearing)08/28/2003Mark W. Bennett
Sac & Fox Tribe of the Mississippi in Iowa, a federally recognized Indian tribe; Homer Bear, Jr., individually and as Chairman of the appointed Tribal Council of the Sac & Fox Tribe of the Mississippi in Iowa; and Renetta Plander, individually and as the Acting General Manager and Casino Manager of Meskwaki Bingo•Casino•Hotel, a subordinate enterprise of the Sac & Fox Tribe of the Mississippi in Iowa, Plaintiffs, vs. United States of America and Philip N. Hogen, individually and as Chairperson of the National Indian Gaming Commission, Defendants; Sac & Fox Tribe of the Mississippi in Iowa, and Alexander Walker, Jr., as Chairman of the Federally Recognized Tribal Council of the Sac & Fox Tribe of the Mississippi in Iowa, Intervenors, vs. Homer Bear, Jr.; Wayne Pushetonequa; Harvey Davenport, Jr., Ray A. Young Bear, Frank Black Cloud, Keith Davenport and Deron Ward, Cross-claim Defendants; United States of America, for the National Indian Gaming Commission, Plaintiff, vs. Alexander Walker, Jr.; Homer Bear, Jr.; Sac & Fox Tribe of the Mississippi in Iowa; and Renetta Plander, Defendants,Sac & Fox Tribe of the Mississippi in Iowa, a federally recognized Indian tribe; Homer Bear, Jr., individually and as Chairman of the appointed Tribal Council of the Sac & Fox Tribe of the Mississippi in Iowa; and Renetta Plander, individually and as the Acting General Manager and Casino Manager of Meskwaki Bingo•Casino•Hotel, a subordinate enterprise of the Sac & Fox Tribe of the Mississippi in Iowa, Plaintiffs, vs. United States of America and Philip N. Hogen, individually and as Chairperson of the National Indian Gaming Commission, Defendants; Sac & Fox Tribe of the Mississippi in Iowa, and Alexander Walker, Jr., as Chairman of the Federally Recognized Tribal Council of the Sac & Fox Tribe of the Mississippi in Iowa, Intervenors, vs. Homer Bear, Jr.; Wayne Pushetonequa; Harvey Davenport, Jr., Ray A. Young Bear, Frank Black Cloud, Keith Davenport and Deron Ward, Cross-claim Defendants; United States of America, for the National Indian Gaming Commission, Plaintiff, vs. Alexander Walker, Jr.; Homer Bear, Jr.; Sac & Fox Tribe of the Mississippi in Iowa; and Renetta Plander, Defendants,Sac & Fox Tribe of the Mississippi in Iowa, a federally recognized Indian tribe; Homer Bear, Jr., individually and as Chairman of the appointed Tribal Council of the Sac & Fox Tribe of the Mississippi in Iowa; and Renetta Plander, individually and as the Acting General Manager and Casino Manager of Meskwaki Bingo•Casino•Hotel, a subordinate enterprise of the Sac & Fox Tribe of the Mississippi in Iowa, Plaintiffs, vs. United States of America and Philip N. Hogen, individually and as Chairperson of the National Indian Gaming Commission, Defendants; Sac & Fox Tribe of the Mississippi in Iowa, and Alexander Walker, Jr., as Chairman of the Federally Recognized Tribal Council of the Sac & Fox Tribe of the Mississippi in Iowa, Intervenors, vs. Homer Bear, Jr.; Wayne Pushetonequa; Harvey Davenport, Jr., Ray A. Young Bear, Frank Black Cloud, Keith Davenport and Deron Ward, Cross-claim Defendants; United States of America, for the National Indian Gaming Commission, Plaintiff, vs. Alexander Walker, Jr.; Homer Bear, Jr.; Sac & Fox Tribe of the Mississippi in Iowa; and Renetta Plander, Defendants,Sac & Fox Tribe of the Mississippi in Iowa, a federally recognized Indian tribe; Homer Bear, Jr., individually and as Chairman of the appointed Tribal Council of the Sac & Fox Tribe of the Mississippi in Iowa; and Renetta Plander, individually and as the Acting General Manager and Casino Manager of Meskwaki Bingo•Casino•Hotel, a subordinate enterprise of the Sac & Fox Tribe of the Mississippi in Iowa, Plaintiffs, vs. United States of America and Philip N. Hogen, individually and as Chairperson of the National Indian Gaming Commission, Defendants; Sac & Fox Tribe of the Mississippi in Iowa, and Alexander Walker, Jr., as Chairman of the Federally Recognized Tribal Council of the Sac & Fox Tribe of the Mississippi in Iowa, Intervenors, vs. Homer Bear, Jr.; Wayne Pushetonequa; Harvey Davenport, Jr., Ray A. Young Bear, Frank Black Cloud, Keith Davenport and Deron Ward, Cross-claim Defendants; United States of America, for the National Indian Gaming Commission, Plaintiff, vs. Alexander Walker, Jr.; Homer Bear, Jr.; Sac & Fox Tribe of the Mississippi in Iowa; and Renetta Plander, Defendants05/22/2003Linda R. Reade
Cedarrapids, Inc. vs. Chicago Central & Pacific Railroad Company d/b/a Canadian National/Illlinois Central Railroad; Order on plaintiff's motion to remand and defendant's motion to dismiss05/21/2003Linda R. Reade
Antunez-Fernandes v. Connors-Fernandes; Order on petition for return of children; father petitioned court under the Hague Convention to return his children to France; analysis of whether father established prima facie case of wrongful removal and retention of children by their mother in the United States; whether any of the following exceptions under the Hague Convention permit children to remain in the United States; (1) whether father acquiesced in children's removal and retention; (2) whether action was commenced more than one year after removal, (3) whether children are well settled in their environment, (4) whether return to France would expose children to a grave risk of harm, and (5) whether the court should consider the wishes of children; even if one exception applies, court may in its discretion nevertheless order the return of children to further the aims of the Hague Convention04/25/2003Linda R. Reade
AUSA Life Insurance Co., et al. v. Citigroup, Inc., et al.; Order on motion for remand and abstention; analysis of whether the action is "related to" the pending Enron bankruptcy in SDNY; application of mandatory abstention, permissive abstention and equitable remand04/24/2003Linda R. Reade
Sac and Fox Tribe of the Mississippi in Iowa; Alex Walker, Jr.; Frank Wanatee; Jr.; Lyle Walker; Aaron Walker; Calvin Johnson, Sr.; Vern Jefferson; and Talbert Davenport, Sr. vs Homer Bear, Jr.; Wayne Pushetonequa; Harvey Davenport, Jr.; Ray A. Young Bear; Frank Black Cloud; Keith Davenport; Deron Ward; Wells Fargo Bank Iowa, N.A.; State Bank of Toledo; Home Federal Savings Bank; Order on motion for temporary restraining order; assessment of federal question subject matter jurisdiction under general U.S. trust responsibilities toward Indian affairs, Indian Gaming Rights Act, or Racketeering Influenced and Corrupt Organizations Act04/15/2003Linda R. Reade
Hide details for POSTPRO - Post-trial ProcedurePOSTPRO - Post-trial Procedure
Gosch v. Sergeant Bluff-Luton Cmty. Sch. Dist. (action by parents of disabled child against teacher, principal, and school district asserting civil rights, disability discrimination, and tort claims: Plaintiff’s motion for new trial on unconstitutional seizure and negligence claims against teacher: challenge to sufficiency of the evidence denied, because, although the evidence was very close such that a verdict for either side would have been reasonable for a jury to reach, viewed in the light most favorable to the verdict, the verdict was not against the greater weight of the evidence; challenged remarks by defense counsel were either not improper or, if improper, were no more than minor aberrations made in passing that did not distort the weight of the evidence enough to deprive the plaintiffs of a fair trial; defense claims or contentions that were allegedly first raised at trial were not surprises amounting to a major variance in the defendants’ defense warranting a new trial)11/29/2017Mark W. Bennett
Henderson v. Crimmins, et al. (Motion for attorneys fees under 42 U.S.C. § 1983 pursuant to § 1988 fee-shifting statute: Attorney seeks recovery for over 60 hours before alerting defense counsel or defendants of the incoming lawsuit, where a resolution was achieved two days after the attorney contacted defense counsel; a high hourly rate is reasonable for someone with extensive experience, partially because it is expected that experienced attorneys will be more efficient with the use of their time, so, a percentage reduction is warranted where a request for an amount of hours is disproportionate to level of expertise, represented by the attorney’s hourly rate; a percentage reduction is warranted where an attorney repeatedly requests awards for unreasonably excessive and unnecessary work performed)12/01/2015Mark W. Bennett
U.S. v. Randy Feauto (Opinion on resentencing of defendant pursuant to Amendment 782, the “All Drugs Minus Two” amendment to the Sentencing Guidelines: whether policy statement U.S.S.G. § 1B1.10(c), which implements Amendment 782, exceeds the Sentencing Commission’s authority and/or violates the non-delegation doctrine under the separation-of-powers principle by nullifying mandatory minimum sentences on resentencing, producing pernicious consequences, including different sentences on original sentencing and resentencing of a defendant who faced a mandatory minimum, but received a substantial assistance motion pursuant to § 3553(e))11/23/2015Mark W. Bennett
U.S. v. Bruce Jeffers (Sentencing opinion concerning defendant who pleaded guilty to separate counts of being a felon in possession of a firearm and being a felon in possession of ammunition; upward variance based on insufficiency of the advisory guidelines sentence, where the defendant had five different prison terms for crimes—including voluntary manslaughter, assault with a deadly weapon, arson of an inhabited structure, evading a police officer and disregarding safety, being a felon and addict in possession of a firearm, and burglary of a home—in three different states and nine jail terms for other crimes, but could not be sentenced as an Armed Career Criminal after Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015), and most of his prior convictions were too old to count in the computation of his criminal history category)09/30/2015Mark W. Bennett
United States v. Thirty-Two Thousand Eight Hundred Twenty Dollars and Fifty-Six Cents ($32,820.56) in United States Currency -- Order on claimants' motion for attorney fees, costs and interest. Court found claimants were not entitled to attorney fees because claimants did not substantially prevail under CAFRA. Court concluded a voluntary dismissal without prejudice did not entitle claimants to prevailing party status, as there was no material alteration of the parties' legal relationship. Nor were the claimants entitled to reconsideration of the order to dismiss. Court found that the claimants were entitlted to certain court costs pursuant to the court's inherent authority to assess such costs under Section 1920. Claimants' motion was denied in part and granted in part. 05/22/2015Leonard T. Strand
U.S. v. Mark Weller (Sentencing opinion concerning defendant who pleaded guilty to conspiracy to distribute methamphetamine and distribution of methamphetamine; defendant’s objection to counting a prior conviction for contributing to the delinquency of a minor (contributing to a curfew violation) in the determination of his criminal history pursuant to U.S.S.G. § 4A1.2(c): application of the “multi-factor test” in Amendment 709 and Application Note 12)05/05/2015Mark W. Bennett
Starbuck v. R.J. Reynolds Tobacco Co., et al (Smoker brought product liability and fraud claims against tobacco companies for damages from lung cancer, as an individual claim in the wake of decertification of a class in Engle v. Liggett Group, Inc., 945 So.2d (Fla. 2006), cert. denied, 552 U.S. 941 (2007); smoker’s motion for new trial: whether jury foreperson’s consultation of dictionary definitions of “addiction” tainted the verdict; whether the jury’s threshold determination that he was not addicted to cigarettes containing nicotine was against the great weight of the evidence; and whether a jury instruction imposing a temporal limitation on when the smoker was addicted was confusing and prejudicial)05/04/2015Mark W. Bennett
U.S. v. Quality Egg, LLC, et al (Memorandum opinion and order on defendants’ pre-sentencing motions; defendants pleaded guilty to violating 21 U.S.C. § 331(a) by shipping and selling shell eggs that contained Salmonella Enteritidis across state lines as responsible corporate officers; defendants subsequently filed motions alleging that a term of imprisonment for their offenses would be unconstitutional under the Eighth and Fifth Amendments and that a finding by the Court that defendants had relevant knowledge of the conduct underlying their strict liability offenses would be unconstitutional under the Sixth Amendment; the Court rejected defendants’ motions, finding defendants had relevant knowledge and imposed a three-month term of imprisonment.)04/14/2015Mark W. Bennett
Scott v. City of Sioux City, Iowa & Paul Eckert (Action by a long-time city employee asserting claims, pursuant to Title VII and ICRA that, over a period of almost nine years, she was retaliated against by the city and the former city manager for her 2004 complaint that the city manager sexually harassed her from 2000 to 2004; ruling on unsealing the ruling on the parties’ motions in limine.)04/06/2015Mark W. Bennett
U.S. v. Anthony Bartleson (Bartlesonpleaded guilty to embezzling from an employee benefit plan in violation of 18 U.S.C. § 664. This memorandum opinion and order confronts two of the key fighting issues at his sentencing hearing on February 6, 2015: (1) whether Bartleson abused a position of private trust under U.S.S.G. § 3B1.3; and (2) whether his criminal restitution order, pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, was to include the thirteen employees’ lost investment earnings and tax liabilities incurred in 2007, in addition to the $41,878.22 already paid to the government by Bartleson. In applying the three-factor test for determining whether Bartleson abused a position of private trust, the Court held that Bartleson occupied a position of private trust; his position facilitated the commission and concealment of his embezzlement; and the sentencing enhancement is not included in the base offense level or specific offense characteristic. Bolstering its finding that the abuse-of-trust enhancement applied, the Court analyzed the applicability of Note 5 of the Commentary under U.S.S.G. § 3B1.3. In addition, in considering the full amount of the victims’ losses for restitution purposes, the Court made a conservative estimate by using the S&P 500 to calculate lost investment earnings and the lowest tax rate for 2007 to calculate tax liabilities for that year. In doing so, the Court ordered Bartleson to pay an additional $20,838.99 (i.e., $19,640.57 for lost investments and $1,198.42 for tax liabilities) in restitution to the victims. Finally, Bartleson’s candor and genuine and sincere remorse during his sentencing allocution in part influenced the Court’s decision that a sentence of probation for two years was appropriate).02/10/2015Mark W. Bennett
Garcia De Alvarez v. U.S. (Motion for relief from sentence pursuant to 28 U.S.C. § 2255 by a federal prisoner asserting ineffective assistance of counsel; petitioner’s claims denied without hearing as to trial counsel’s failure to seek a bill or particulars, explain alternatives to trial in “laymen’s” terms, and failure to challenge drug quantity and purity; evidentiary hearing granted on petitioner’s claim that trial counsel failed to interview and present potential witnesses that the petitioner had identified)02/06/2015Mark W. Bennett
Catipovic v. Turley (A former Iowa resident sued to recover damages for breach of contract and unjust enrichment from an Irish citizen arising from the failure of an alleged partnership to develop ethanol production facilities in Eastern Europe, and the jury found no contract, but awarded $2 million for unjust enrichment; parties’ motions post-trial motions: defendant’s renewed motion for judgment as a matter of law and alternative motion for remittitur of damages or new trial; plaintiff’s motion to amend complaint post-trial to add a fraud claim purportedly tried by implied consent)01/29/2015Mark W. Bennett
U.S. v. Jamal & Levon Dean (Post-trial motions for judgment of acquittal and new trial, concluding: taken in the light most favorable to the prosecution, the evidence at trial was sufficient to support the finding of a single conspiracy; the prosecution presented sufficient evidence to support the conclusion that defendants knew that the object of the conspiracy was to rob drug dealers; the prosecution also established a jurisdictional nexus between interstate commerce and defendants’ robberies of both victims; the evidence at trial was sufficient to establish that defendant possessed a 22 rifle in furtherance of the robberies, either personally or under an aiding and abetting theory; and there was sufficient evidence to establish that defendant intended to cause death or serious bodily injury during the carjacking of victim’s car.)12/23/2014Mark W. Bennett
U.S. v. Shirley Weimer (Shirley Weimer pleaded guilty to Count 1 of her Indictment, Conspiracy to Use Fire to Commit Wire Fraud, 18 U.S.C. § 1343, pursuant to a binding Rule 11(c)(1)(C) plea agreement. In this memorandum opinion and order that followed Weimer’s sentencing on November 25, 2014, the Court explains that it had the statutory authority to order restitution based on the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A. The Court sets forth the two-step standard to apply to determine whether to award restitution. In doing so, the Court finds that State Farm is a “victim” as defined under 18 U.S.C. § 3663A(a)(2), and the “full amount” of State Farm’s loss was not represented by $78,593.25, or the lost insurance company’s premiums, as that figure did not include pre- and postjudgment interest. The Court’s summary of the relevant case law bolsters the Court’s decision to apply pre- and postjudgment interest. Lastly, the Court articulates how it calculated the interest Weimer owes based on the dates State Farm paid four separate checks to Weimer and the Treasury Bill rate pursuant to 28 U.S.C. § 1961.)11/25/2014Mark W. Bennett
Halstead v. McKinney -- Report and Recommendation on respondent James McKinney's motion to dismiss petition for writ of habeas corpus pursuant to 28 U.S.C. section 2254. Court concluded petitioner did not exhaust the grounds in his petition in the Iowa state courts prior to filing his petition for writ of habeas corpus. Court further concluded petitioner's grounds are now procedurally defaulted. Therefore, petitioner lacks a cognizable legal theory in his petition for writ of habeas corpous. Court recommended respondent's motion to dismiss be granted. 11/12/2014Leonard T. Strand
Smith v. McKinney -- Report and Recommendation on petition for Writ of Habeas Corpus pursuant to 28 U.S.C. section 2254. Court found the Iowa Courts identified Strickland as the correct governing law and reasonably applied Strickland to petitioner's ineffective assistance of counsel claim for failure to advise petitioner if he pled guilty, he would be sentenced to a mandatory lifetime term of parole. Court concluded the Iowa Courts' finding that counsel's failure was deficient, however, petitioner, failed to show prejudice was reasonable. Court recommended the petition be denied. 11/12/2014Leonard T. Strand
Stults v. International Flavors & Fragrances, Inc. & Bush Boake Allen, Inc. (products liability action, seeking damages for a lung injury to a consumer of microwave popcorn allegedly caused by diacetyl in the popcorn’s butter flavoring; post-trial motions after defense verdict: motion for new trial based on allowing jurors to hear two defense experts’ testimony before their testimony was excluded in whole or in part, and admission of another expert’s testimony over Daubert objections; motion for judgment as a matter of law based on the defendants’ specific defenses and on certain elements or parts of elements of the plaintiffs’ “breach of implied warranty” claim)10/23/2014Mark W. Bennett
Security National Bank v. Abbott Laboratories (Order sanctioning lawyer for obstructive disposition practices; Court discusses the impropriety of “form” objections, witness coaching, and excessive interruptions during depositions.)07/28/2014Mark W. Bennett
U.S. v. Michael Clayton (Post-trial motions for judgment of acquittal and new trial, concluding: that defendant’s due process rights were not violated by the police’s interview technique with two witnesses because the police’s conduct was not an attempt to “spoon feed” the witnesses facts but an effort by the police to convince the witnesses to abandon their efforts at minimization and deception, and to be truthful, and defendant was not unfairly prejudiced by the police’s interview technique since the jury was fully aware of witnesses prior inconsistent statements and was free to take them into account in assessing the witnesses’ credibility; and that the evidence supporting the jury’s verdict did not lead to the conclusion that a serious miscarriage of justice may have occurred.)07/22/2014Mark W. Bennett
U.S. v. Darran Lohse (Motion to dismiss, order granting in part and denying in part motion. Finding that the four possession counts are not multiplicitous because each count of possession required the jury to determine that the defendant possessed a video containing child pornography on a separate device. Therefore, this portion of the motion was denied. Additionally, finding that, as to possession count 3, the defendant was convicted of receiving the same images that he was also found to have possessed, and a double jeopardy violation would occur if he was sentenced for both convictions. Therefore, the defendant’s motion was granted as to Count 3. However, possession counts 4, 5, and 6 were supported by separate conduct from the defendant’s receipt of child pornography underlying Count 2, and the defendant’s motion was denied as to possession counts 4, 5, and 6.)06/30/2014Mark W. Bennett
Hagen v. Siouxland Obstetrics & Gynecology, PC, et al. (Post-trial order denying defendants’ motion for judgment as a matter of law and for a new trial, and denying plaintiff’s motion for an additur, but granting plaintiff’s motion for pre- and post-judgment interest; issues include what activities are “protected activities” supporting the tort of wrongful discharge in violation of public policy, sufficiency of evidence, evidentiary rulings, additur, and judgment interest) 05/30/2014Mark W. Bennett
Hanzl v. Collier -- Report and Recommendation on plaintiff's motion for entry of a preliminary deficiency judgment against defendants. Court found plaintiff was entitled to deduct attorney's fees from the sale price of the West Street property, but that the total amount of attorney's fees should be reduced based on the scope of services and hourly rate. Court recommended a preliminary deficiency judgment be entered pursuant to the order enforcing the parties' settlement agreement, but that entry of final judgment be deferred until it was determined whether the amount should be adjusted to reflect any income tax liability from the sale of the property.01/31/2014Leonard T. Strand
Koons v. United States of America (Motion for relief from sentence pursuant to 28 U.S.C. § 2255 by a federal prisoner asserting ineffective assistance of counsel; respondent’s motion to dismiss as untimely converted to petitioner’s motion for summary judgment on equitable tolling of the statute of limitations: whether counsel hired to file § 2255 Motion engaged in misconduct sufficient to constitute “extraordinary circumstances” that prevented the petitioner from timely filing her § 2255 Motion, and whether the petitioner acted “diligently” before and after the deadline for filing her § 2255 Motion before filing the Motion pro se three months after the deadline)01/31/2014Mark W. Bennett
U.S. v. Darran Lohse (Motion by defendant for a judgment of acquittal and a new trial; issue involves whether nine photographs produced by defendant depicted “lascivious exhibition of genitals”; ruling denying defendant’s motions)01/21/2014Mark W. Bennett
Hagen v. Siouxland Obstetrics, et al. (Post-trial order certifying questions to the Iowa Supreme Court in a wrongful discharge in violation of Iowa public policy case; three questions certified: (1) whether Iowa’s public policy protects a doctor from being fired for (a) reporting nurses’ malpractice to a hospital, (b) disclosing malpractice to a patient’s family, or (c) consulting with an attorney about whether to report another doctor’s malpractice to the board of medicine; (2) whether contractual employees can sue for wrongful discharge in violation of Iowa public policy; and (3) whether an employer’s lack of an “overriding business justification” for firing an employee an independent element of a wrongful discharge claim)08/29/2013Mark W. Bennett
U.S. v. Douglas Young (Sentencing memorandum for defendant who pled guilty to drug charges pursuant to 21 U.S.C. §§ 841 and 851: Although the defendant was safety-valve eligible, so that he had no mandatory minimum sentence to double, he remained subject to the doubling of his maximum; examination of data from the US Sentencing Commission’s 2011 Report To Congress, the only assembly of data concerning § 851 application, demonstrating shocking intra-state, intra-Circuit, regional, and national disparities in the application of § 851 enhancements, at least prior to the Holder 2013 Memo; discussion of continuing concerns with tracking and transparency in § 851 applications after Holder 2013 Memo)08/16/2013Mark W. Bennett
U.S. v. Angel Amaya (Criminal law, sentencing opinion and statement of reasons pursuant to 18 U.S.C. § 3553(c) on sentencing of defendant convicted of conspiring to possess with intent to distribute 50 grams or more of pure methamphetamine or a mixture or substance containing 500 grams of methamphetamine, 5 kilograms or more of cocaine, and marijuana, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), and 846, and conspiring to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), 1956(a)(1)(B)(ii), and 1956(h). Facing a possible life sentence, defendant moved for a downward variance from his advisory guideline sentence based on what he characterized as the prosecution’s “double jeopardy violation” as well as the need to avoid unwarranted sentencing disparity among defendants. Applying the § 3553(a) factors, the court granted a downward variance because a sentence within the advisory guideline sentence range was “greater than necessary” to accomplish the goals of sentencing, in light of all of the pertinent factors, and imposed a sentence of 180 months imprisonment followed by 120 months of supervised release.)06/11/2013Mark W. Bennett
Rogers v. U.S. : (federal prisoner’s pro se motion to set aside sentence, pursuant to 28 U.S.C. § 2255, on guilty plea to bank fraud via a check cashing scheme: ruling without evidentiary hearing: granting a new sentencing on the basis of ineffective assistance of trial counsel by failing to object to a two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(10), for use of an “access device” because the bad checks used to perpetrate the bank fraud scheme in this case did not constitute an “access device,” and ineffective assistance of trial counsel by failing to investigate adequately the petitioner’s mental health as an explanation of his prior violent conduct for which his sentence had been enhanced) 06/11/2013Mark W. Bennett
U.S. v. Willie Hayes (Criminal law, sentencing opinion and statement of reasons pursuant to 18 U.S.C. § 3553(c) on sentencing of defendant convicted of conspiracy to possess with the intent to distribute 35 grams or more of methamphetamine actual, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). The court granted defendant’s objection to the career offender enhancement, in part. Based on a policy disagreement with the methamphetamine Guidelines, the court found that the methamphetamine Guidelines are not based on empirical data and national experience and they yield an excessive sentence, when individualized consideration is given to the 18 U.S.C. §3553(a) factors. After considering these factors, the court varied downward by one third to the sentencing range of 100 to 124 months. The court further granted the prosecution’s motion for substantial assistance, reduced defendant’s sentence by 25%, and imposed a sentence of 75 months.)06/07/2013Mark W. Bennett
Plymouth County v. MERSCORP, Inc. (Putative class action by one Iowa county on behalf of all Iowa counties against corporations that operate a national registry that tracks ownership interests and servicing rights associated with residential mortgage loans, and against various member mortgage companies that use those services; ruling granting plaintiff’s contested motion for certification pursuant to Rule 54(b) that there is no just reason for delay of the entry of judgment, on orders dismissing all claims and denying leave to amend as futile, as to all but one bankrupt defendant, and directing entry of final judgment as to the dismissed defendants)06/05/2013Mark W. Bennett
Guillermo Escobedo v. Mark Lund (Action for federal habeas relief pursuant to 28 U.S.C. § 2254 by a state prisoner challenging his conviction for first-degree murder on the ground that his trial counsel failed to seek an “automatic” mistrial when the trial judge excused a juror for bias after deliberations had started and replaced the excused juror with an alternate contrary to Iowa law, which required a mistrial or the defendant’s agreement to continue deliberations with the eleven remaining jurors)06/03/2013Mark W. Bennett
Boss v. Ludwick (Action for federal habeas relief pursuant to 28 U.S.C. § 2254 by a state prisoner challenging his conviction for the first-degree murder of his foster son on the ground that his trial counsel provided ineffective assistance (1) by revealing the location of the child’s body and (2) by failing to advise and consult with the petitioner adequately before convincing the petitioner to reveal the location of the child’s body; parties’ objections to report and recommendation by magistrate judge finding “prejudice” from trial counsel’s performance, but denying federal habeas relief; stating standards for review by the district court of a magistrate judge’s report and recommendation; construing the nature of the petitioner’s underlying constitutional claims of ineffective assistance of counsel and his claims for federal habeas relief pursuant to § 2254(d); considering whether the federal court is required to review de novo both prongs under Strickland, if the state court stated the wrong standard of review for one prong; considering whether denial of relief by the state courts on the basis of failure to find “deficient performance” under Strickland were “contrary to” or “unreasonable applications of” federal law or “unreasonable determinations” of the facts in light of the evidence before the state courts pursuant to § 2254(d)(1) and (2); and declining to consider the “prejudice” prong under Strickland, where the lack of deficiency in the state court decisions concerning “deficient performance” was fully dispositive of the petitioner’s claims)05/03/2013Mark W. Bennett
Boss v. Ludwick -- Report and Recommendation on petition for writ of habeas corpus under 28 U.S.C. 2254. Petitioner claimed ineffective assistance of counsel based on his attorney's advice to disclose the location of the deceased's body and allegedly-inadequate consultation by his attorney prior to Boss giving consent. In recommending the petition be denied, the court found the petitioner failed to show that the Iowa Court of Appeals unreasonably applied Strickland v. Washington in concluding counsel's representation did not amount to deficient performance.02/19/2013Leonard T. Strand
U.S. v. Lori Newhouse (Criminal law, sentencing opinion and statement of reasons pursuant to 18 U.S.C. § 3553(c) on sentencing of defendant convicted of manufacturing or attempting to manufacture 5 grams or more of pure methamphetamine, or a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 841(b)(1)(C). Based on quasi-categorical policy disagreements with the Career Offender guideline, the court rejected because the defendant was a low-level, non-violent drug addict engaged in the drug trade to obtain drugs to feed her addiction. Alternatively, the court found that application of the Career Offender guideline yielded an excessive sentence, when individualized consideration is given to the 18 U.S.C. § 3553(a) factors. After considering these factors, the court varied downward from the advisory Career Offender guideline sentencing range of 262 to 327 months to the mandatory minimum of 120 months. The court further granted the prosecution’s motions for substantial assistance, reduced defendant’s sentence by 20%, and imposed a sentence of 96 months imprisonment followed by 96 months of supervised release.)01/30/2013Mark W. Bennett
U.S. v. Jaime Almazan (Criminal law, sentencing memorandum opinion and order regarding sentencing of defendant convicted of producing child pornography. After considering the totality of the circumstances in light of the 18 U.S.C. § 3553(a) factors, the court found that no downward variance was warranted and imposed a sentence at the statutory maximum of 360 months imprisonment, followed supervised release for life.) 12/03/2012Mark W. Bennett
U.S. v. Britt Lander (considering whether motion for substantial assistance pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 may be based in part on substantial assistance of a third party; granting prosecution’s motion for substantial assistance based in part on the substantial assistance rendered by defendant’s spouse) 10/23/2012Mark W. Bennett
Plymouth County, Iowa v. Merscorp, et al. (Putative class action by one Iowa county on behalf of all Iowa counties against corporations that operate a national registry that tracks ownership interests and servicing rights associated with residential mortgage loans, and against various member mortgage companies that use those services; county’s post-dismissal motion: request, pursuant to Rule 59(e), to consider the conditional request to amend overlooked in the court’s ruling on the defendants’ motion to dismiss; post-dismissal request to amend to assert a new legal theory for an “unjust enrichment” claim; clarification of standards applicable to conditional and post-dismissal motions to amend)10/16/2012Mark W. Bennett
Gilster v. Primebank & Joseph Strub (Considering parties’ post-trial motions following jury verdict in favor of plaintiff on sexual harassment and retaliation claims under Title VII and Iowa Civil Rights Act: defendants’ motion for judgment as a matter of law, new trial, or remittitur; plaintiff’s motion for front pay and equitable relief; plaintiff’s motion for attorney fees and costs)08/14/2012Mark W. Bennett
The Prudential Insurance Company of America, et al. v. Inlay (Action by insurance company against former agent seeking FINRA arbitration action to address claims of breach of confidentiality and non-solicitation agreements, misappropriate of trade secrets, breach of fiduciary duty, breach of duty of loyalty, intentional and negligent interference with prospective economic advantages, and conversion; insurance company’s motion to confirm arbitration award: standards for confirmation of an arbitration award pursuant to 9 U.S.C. § 9)04/11/2012Mark W. Bennett
McFarland v. McFarland, et al. (Diversity action for slander, libel, and defamation; Joint Bill of Costs; analysis of whether defendants entitled to reimbursement for certain litigation expenses pursuant to Rule 54(d) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1920, specifically the costs of: depositions, a transcript in a divorce proceeding, transferring depositions from a floppy disc to a CD, copies of medical records, the cost of photocopies for summary judgment documents, and the rental of a conference room center used for taking depositions.)11/15/2011Mark W. Bennett
In Re: Iowa Ready-Mix Concrete Antitrust Litigation (Motion for attorneys’ fees, reimbursement of costs, and class representative incentive awards following settlement of consolidated antitrust class action case; awarding $6,666,666.67 in attorneys’ fees, $911,445.92 in costs, and $10,000.00 to each named plaintiff, to be paid from the common settlement fund.)11/09/2011Mark W. Bennett
The State of Arizona & Angela Aguilar v. ASARCO, LLC (Action by Arizona state civil rights agency and an individual plaintiff, a laborer at a mine operated by the defendant, alleged claims of hostile work environment sexual harassment and retaliation for complaining about sexual harassment in violation of state and federal law; individual plaintiff’s post-trial motion for attorney fees; analysis of whether plaintiff’s fee request should be reduced by twenty percent to take into account the fact that the individual plaintiff was only partially successful on her claims; examination of the reasonableness of the individual plaintiff’s counsel’s hourly rate as well as the reasonableness of numerous time entries.)09/29/2011Mark W. Bennett
State of Arizona Dep't of Law, Civil Rights Division & Angela Aguilar v. ASARCO, LLC (action by Arizona state civil rights agency and an individual plaintiff, a laborer at a mine operated by the defendant, alleged claims of hostile work environment sexual harassment and retaliation for complaining about sexual harassment in violation of state and federal law; defendant’s post-trial motion for judgment as a matter of law, challenging submissibility of the sexual harassment claim and punitive damages and the amount of the punitive damages award as unconstitutionally excessive; defendant’s alternative motion for new trial, challenging the court’s answer to a question from the jury as misleading and the court’s admission of “me too” evidence; the plaintiffs’ post-trial motion for equitable and injunctive relief to compel the defendant to create or modify and implement an adequate policy against sexual harassment and to require certain training of managers, supervisors, and other employees, concerning sexual harassment)07/13/2011Mark W. Bennett
Mathison v. U.S. (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255, asserting as grounds that his trial counsel provided ineffective assistance in failing to withdraw when a per se conflict of interest between counsel and petitioner was created, in failing to raise a sentencing challenge pursuant to Gall, and for failing to request a change of venue. Petitioner also argues respondent committed prosecutorial misconduct by using the unreliable testimony of witness during his trial. In addition, petitioner contends newly discovered evidence, the unreliability of a witness’s testimony, entitles him to a new trial. Motion denied in its entirety: first, petitioner could not demonstrate his counsel’s conduct fell below the wide range of reasonable professional assistance in failing to withdraw, in failing to raise a sentencing challenge pursuant to Gall, and for failing to request a change of venue. Petitioner also not entitled to relief on his claim of prosecutorial misconduct because he did not establish that witness’s statement was perjurious and, further, did not establish that the prosecution knew or should have known that the statements constituted perjury. In addition, petitioner did not establish that witness’s alleged perjurious statement regarding a defendant in a separate case constituted newly discovered evidence entitling him to a new trial.)07/05/2011Mark W. Bennett
Kitterman v. Coventry Health Care of Iowa, Inc. (action for judicial review of denial of health insurance benefits pursuant to ERISA: determination of whether any issues remain to be resolved after remand from the Eighth Circuit Court of Appeals: whether the court must now decide questions that it did not address in its original decision on the merits, which are whether the Schedule of Benefits is a summary plan description (SPD) or “faulty” SPD, which turn on the question of whether the terms of the purported SPD or “faulty” SPD conflict with the terms of the plan, as construed by the Eighth Circuit Court of Appeals)06/06/2011Mark W. Bennett
Powell v. Fayram : (state prisoner’s petition for habeas relief pursuant to 28 U.S.C. § 2254: prisoner’s objections to report and recommendation of magistrate judge to deny the petition in its entirety: whether state courts made unreasonable factual determinations or unreasonably applied United States Supreme Court law to the prisoner’s claim that his trial counsel was ineffective in not giving him correct advice during plea negotiations about the time that he would have to serve in prison on a mandatory minimum sentence if he were convicted on a state charge of attempted murder)04/21/2011Mark W. Bennett
U.S. v. Billy Williams, Sr. (sentencing of a defendant on four crack cocaine offenses after the 2010 Fair Sentencing Act and amendments to the Sentencing Guidelines reduced the crack-to-powder ratio from 100:1 to 18:1: consideration of whether to reject the “new” ratio in the Guidelines, on categorical, policy grounds, as the court had previously rejected the 100:1 crack-to-powder ratio; adoption of a methodology for imposing sentence using an initial guidelines calculation with an 18:1 ratio and an alternative guidelines calculation using a 1:1 ratio, both recognizing new guidelines enhancements for aggravating circumstances, and ultimate determination of the appropriate sentence in light of the sentencing factors in 18 U.S.C. § 3553(a))04/07/2011Mark W. Bennett
Rattray v. Woodbury County, Iowa (In this civil rights “strip search” case, the court was asked to decide what to make of an initial verdict that was clearly at odds with the jury instructions, and the jurors attempt to cure this inconsistency in a second verdict after the court ordered further deliberations. The court concluded that because there was no legally plausible explanation for the dramatic increase in emotional distress damages awarded by the jury between the two verdicts, a new trial was imperative to prevent a miscarriage of justice.)03/07/2011Mark W. Bennett
U.S. v. Kent Robert Stewart (Criminal law, sentencing memorandum opinion and order regarding joint sentencing of two defendants convicted of anitrust violations of the Sherman Act. For one defendant, after considering the totality of the circumstances in light of the 18 U.S.C. § 3553(a) factors, the court found that a upward variance from the advisory guidelines sentencing range was warranted and imposed a sentence of 48 months imprisonment, followed by 3 years of supervised release during which defendant will be required to complete 500 hours of community service, at a rate of not less than 25 hours per month. The court further found that an upward variance from the advisory guidelines fine range was warranted for the defendant and imposed a fine of $829,715.85, and a special assessment of $100. The court, alternatively, imposed sentences of 27 months imprisonment on each Count; with all 27 months of the sentence on Count 3, 15 months of the sentence on Count 1, and 6 months of the sentence on Count 2 running consecutively; for a total sentence of 48 months imprisonment, followed by 3 years of supervised release. With respect to the second defendant, the court found that the prosecution did not breach its plea agreement with the defendant and, as a result, the court could proceed with his sentencing. The court denied his requests for downward departure under U.S.S.G. §§ 5K1.1, 5K2.0, 5K2.11, and 5K2.12. The court further found that a variance from the advisory guidelines sentencing range was unwarranted for the defendant and imposed a sentence of 12 months and a day of imprisonment, followed by 3 years of supervised release during which the defendant will be required to complete 100 hours of community service, at a rate of not less than 20 hours per month. The court also imposed a fine on the defendant in the amount of $83,427.09. In addition, the defendant was ordered to pay restitution to Tri-Zack Contractor in the sum of $25,981.80.)02/08/2011Mark W. Bennett
U.S. v. Villagomez: (criminal prosecution for conspiracy to defraud the United States, wire fraud, theft from a program receiving federal funds, and bribery; ruling after evidentiary hearing settling the record, pursuant to Rule 10(e) of the Federal Rules of Appellate Procedure, concerning closure of the courtroom to members of the public during jury selection) 11/24/2010Mark W. Bennett
U.S. v. Miell (sentencing of landlord convicted of 18 counts of mail fraud, 2 counts of perjury, and 2 counts of filing of false tax returns arising from insurance fraud and damage deposit fraud schemes: restitution for fraud schemes pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, and “restitution” for tax offenses in the conditions for supervised release pursuant to 18 U.S.C. § 3583(d))10/04/2010Mark W. Bennett
Dorr v. Weber, et al. (Plaintiff Paul Dorr is a prevailing party within the meaning of 42 U.S.C. § 1988 and, therefore, is entitled to an award of some reasonable amount in attorneys’ fees. After a line-by-line review of the fee application, the court decided that the fees claimed should be reduced for time not reasonably expended, further reduced by ten percent for “block billing,” and an additional ten percent “penalty” reduction for a wildly over-inflated fee request. Therefore, the court awarded attorneys’ fees pursuant to 42 U.S.C. § 1988 to Paul Dorr in the amount of $51,744.26, and additional costs and expenses to Paul in the amount of $2,430.60.)09/30/2010Mark W. Bennett
U.S. v. Miell : (sentencing of landlord convicted of 18 counts of mail fraud, 2 counts of perjury, and 2 counts of filing of false tax returns arising from insurance fraud and damage deposit fraud schemes: applicability of upward adjustments for amount of loss, number of victims, sophisticated means, substantial interference with administration of justice, abuse of a position of trust, and obstruction of justice; applicability of downward adjustment for acceptance of responsibility; determination of whether and to what extent to vary upward from the advisory sentencing guidelines range in light of the damage deposit fraud scheme, which preyed on people too economically vulnerable or unsophisticated to contest the landlord’s claims for relatively little gain in individual cases, but amounting to over a million dollars in losses in aggregate)09/27/2010Mark W. Bennett
U.S. v. Villagomez, et al.(criminal prosecution for conspiracy to defraud the United States, wire fraud, theft from a program receiving federal funds, and bribery; reconsideration of denial of defendants’ motion pursuant to Rule 10(e) of the Federal Rules of Appellate Procedure to settle the record concerning whether members of the public were entirely excluded from jury selection) 09/07/2010Mark W. Bennett
U.S. v. Villagomez, et al (criminal prosecution for conspiracy to defraud the United States, wire fraud, theft from a program receiving federal funds, and bribery; defendants’ motion pursuant to Rule 10(e) of the Federal Rules of Appellate Procedure to settle the record concerning whether members of the public were entirely excluded from jury selection) 08/06/2010Mark W. Bennett
U.S. v. Miell (Motion to withdraw guilty pleas pursuant to Federal Rule of Criminal Procedure 11; after pleading guilty to the charged mail fraud and perjury offenses, defendant sought to withdraw guilty pleas on the ground that his guilty pleas were invalid because the court failed to advise him of the maximum possible sentence he faced and the court’s authority to order restitution; defendant also asserted that his counsel’s ineffective assistance constituted a fair and just reason to permit him to withdraw his guilty pleas; examination of whether the court informed defendant of the maximum penalties he was facing for each of the mail fraud and perjury counts; analysis of whether Rule 11 requires a court to specifically advise the defendant of the possibility of consecutive sentencing; assessment of whether the court’s error in failing to inform defendant of the possibility of restitution affected his substantial rights; analysis of whether defendant should be permitted to withdraw his guilty pleas because he was provided with ineffective assistance of counsel; assessment of other Rule 11 factors of defendant’s innocence, the timing of his motion, and whether the prosecution will be prejudiced by defendant’s withdrawal of guilty pleas)05/10/2010Mark W. Bennett
U.S. v. Villagomez, et al (08cr20) : (criminal prosecution for conspiracy to defraud the United States, wire fraud, theft from a program receiving federal funds, and bribery; defendants’ joint renewed motion pursuant to 18 U.S.C. § 3143(b) for release from custody while their convictions are on appeal, heard as a visiting judge to the District of the Northern Mariana Islands (Saipan): whether the defendants asserted a “fairly debatable” claim of violation of their Sixth Amendment right to a public trial, arising from the trial judge’s refusal to release unoccupied reserved seats to members of the general public) 04/22/2010Mark W. Bennett
Transamerica Life Insurance Company, et al v. Lincoln National Life Insurance Company : (Action by one insurance company seeking declaration of non-infringement of another insurance company’s business method patent for a “method and apparatus for providing retirement income benefits” and the other insurance company’s counterclaims for infringement: motions, after jury verdict finding infringement and court’s entry of permanent injunction, concerning infringer’s compliance with permanent injunction: infringer’s motion to modify permanent injunction, pursuant to Rule 60(b)(5) (last clause), based on three purported “design arounds” and for refund of royalties paid based on the first “design around”; patent holder’s motion, pursuant to paragraph 4 of the permanent injunction, for a further accounting and payment of a further royalty at a further enhanced rate based on assertion that “design arounds” still infringe the patent-in-suit)03/08/2010Mark W. Bennett
U.S. v. Tony Golden (Sentencing on charges of conspiracy to distribute crack cocaine, possession with intent to distribute crack, and distributing crack within 1,000 feet of a public playground or school in violation of 21 U.S.C. §§ 846, 841, and 860; reiteration of categorical rejection in Gully of 100:1 crack-to-powder ratio in Sentencing Guidelines and selection of 1:1 ratio as the reasoned alternative in this and all crack cases, demonstrating appropriateness of applying 1:1 ratio in all cases, then varying (upward, in this case), if necessary, based on case-specific factors, including this defendant’s prior conviction for attempted murder, pursuant to 18 U.S.C. § 3553(a))01/12/2010Mark W. Bennett
Vanbogart v. Astrue -- Order denying motion for EAJA fees as untimely.11/17/2009Paul A. Zoss
Wensel v. Astrue -- Order on motion of plaintiff's counsel for attorney's fees pursuant to 42 USC 406(b). Court found fee equal to 25% of past-due benefits was excessive under the Gisbrecht factors, and reduced the fee award to approximately 18.6% of the past-due benefits.09/11/2009Paul A. Zoss
U.S. v. Earl Foy, Jr. (criminal prosecution on charges of sending threatening communications in violation of 18 U.S.C. § 876(b) and (c): upward variance from 262 to 480 months of imprisonment, achieved by running the two longest statutory maximum sentences consecutively, with other sentences to run concurrently, based primarily on the § 3553(a)(1) and (a)(2) factors, including the defendant’s substantial history of violence and violence toward women) 08/24/2009Mark W. Bennett
In re Robert K. Miell (appeal by Chapter 11 debtor, facing sentencing on federal criminal charges and tax litigation, from the bankruptcy court’s denial of his motion to hire attorneys and to pay them from the estate: whether 11 U.S.C. § 105(a) can be used to provide a mechanism for payment of a debtor’s attorneys from the bankruptcy estate in a Chapter 11 case in the same way that 11 U.S.C. § 330(a)(4)(B) might provide for payment of attorneys from the bankruptcy estate in Chapter 12 and Chapter 13 cases.) 08/19/2009Mark W. Bennett
Transamerica Life Insurance Co. et al v. Lincoln Natinal Life Insurance Co. (Bill of Costs, pursuant to Federal Rule of Civil Procedure 54 and 28 U.S.C. § 1920; the court decides whether the prevailing party should have deposition and document discovery costs apportioned, due to the risk of impermissible double recovery resulting from the anticipated use of the same depositions and document discovery in the other trial; the court also determines whether third party technology vendor consultant’s fees, travel, lodging, and food expenses are properly considered “exemplification” costs under § 1920; the court holds that (1) deposition and document discovery costs should not be apportioned due to a second pending trial but that such costs incurred before the commencement of the suit are not compensable, and (2) third party technology vendor consulting fees are properly considered “exemplification” costs under § 1920 and were necessarily incurred due to the complexity of the case but that the consultant’s travel, lodging, and food expenses are not compensable)08/17/2009Mark W. Bennett
U.S. v. Jacob : (criminal prosecution on charges of using the Internet to entice a minor to engage in sexual activity prohibited by state law, in violation of 18 U.S.C. § 2242(b), and interstate transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1); sentencing memorandum: the merits of the advisory United States Sentencing Guidelines for defendants convicted of child pornography offenses, U.S.S.G. § 2G2.2, and child exploitation offenses, 18 U.S.C. § 2G2.1, including the impact of congressional mandates rather than the United States Sentencing Commission’s exercise of its institutional expertise and empirical analysis; rejection of both guidelines on categorical policy grounds and on individualized application of 18 U.S.C. § 3553(a) factors) 06/26/2009Mark W. Bennett
U.S. v. Gully: (Sentencing on charges of distributing crack cocaine and distributing crack within 1,000 of a public playground or school, after a prior felony drug conviction in violation of 21 U.S.C. §§ 846, 851, and 860; rejection on categorical policy grounds of 100:1 crack-to-powder ratio is Sentencing Guidelines and selection of 1:1 ratio as the reasoned alternative in this and all crack cases; methodology for imposing sentence using 1:1 crack-to-powder ratio and to enhance sentences, where appropriate, pursuant to 18 U.S.C. § 3553(a) for violence, chronic offenders, weapon possession, and other aggravating factors) 05/18/2009Mark W. Bennett
Heimlicher v. Steele, et al -- Memorandum Opinion and Order on defendants' post-trial motions in action for damages arising from stillbirth of plaintiffs' child. Jury awarded $1.7 million in damages against doctor and hospital for common law negligence and violation of federal Emergency Medical Treatment and Active Labor Act (EMTALA), 42 USC section 1395dd. Defendants moved, on numerous grounds, for judgment as a matter of law, for new trial, and to amend the judgment. Court found remittitur was appropriate because the amounts the jury deducted for past and future expense of raising the child were unreasonably low. Court therefore conditionally granted motions for new trial, and denied all other motions. 05/14/2009Paul A. Zoss
U.S. v. Ingram : (Sentencing for on charge of conspiring to distribute crack cocaine after a prior felony drug conviction in violation of 21 U.S.C. §§ 846 and 851; appropriateness sua sponte review of remand from appellate court for second chance for prosecution to prove prior conviction; sufficiency of proof of defendant’s prior conviction on second chance, including applicability of Federal Rules of Evidence to proof “beyond a reasonable doubt” of a prior conviction pursuant to § 851)05/11/2009Mark W. Bennett
U.S. v. Gary Visser (Sentencing on “felon in possession of a firearm” charge: applicability of the reduction to the defendant’s base offense level under the “sporting and collecting” exception in U.S.S.G. § 2K2.1(b)(2), where he had pawned several of the firearms in his collection) 04/15/2009Mark W. Bennett
U.S. v. Beiermann : (criminal prosecution on charges of possessing, receiving, transporting, and shipping child pornography in violation of 18 U.S.C. § 2252A; sentencing memorandum: the merits of the advisory United States Sentencing Guideline for defendants convicted of child pornography offenses, U.S.S.G. § 2G2.2, including the impact of congressional mandates rather than the United States Sentencing Commission’s exercise of its institutional expertise and empirical analysis; rejection of the guideline on both an individualized application of 18 U.S.C. § 3553(a) factors and categorically on policy grounds) 02/24/2009Mark W. Bennett
USA v. Gregg -- Report and Recommendation on petition to revoke the defendant's term of supervised release.02/04/2009Paul A. Zoss
U.S. v. Kenneth Siepker : (federal prisoner’s pro se motion to set aside sentence pursuant to 28 U.S.C. § 2255: ruling without evidentiary hearing: alleged ineffective assistance of counsel on the following grounds: failure to move for severance of drug and gun counts, failure to request an “Old Chief instruction,” failure to file a motion in limine to preclude non-coconspirator hearsay evidence, failure to object to count charging commission of offense while on pre-trial release as an illegal Bill of Attainder, failure to request a buyer-seller instruction, failure to object to hearsay, stipulation that firearms were possessed “in or affecting commerce,” failure to object to a constructive amendment of the indictment on the gun charges, and failure to assert an “Apprendi claim” based on court determination of drug quantity; constitutional claims based on admission of hearsay evidence in violation of the Sixth Amendment confrontation clause, and insufficient evidence on the drug conspiracy count of an illegal agreement; denial of a certificate of appealability)12/18/2008Mark W. Bennett
U.S. v. Kelly Jacob (Cases of three defendants charged with child pornography and sexual offenses involving minors; sentencing; prosecution’s request for access to court’s expert, appointed pursuant to 18 U.S.C. § 3552(c), beyond the report of the expert’s psychosexual analysis of each defendant) 10/31/2008Mark W. Bennett
U.S. v. Beiermann (Cases of three defendants charged with child pornography and sexual offenses involving minors; sentencing; prosecution’s request for access to court’s expert, appointed pursuant to 18 U.S.C. § 3552(c), beyond the report of the expert’s psychosexual analysis of each defendant) 10/31/2008Mark W. Bennett
U.S. v. Matthew Kashas (Cases of three defendants charged with child pornography and sexual offenses involving minors; sentencing; prosecution’s request for access to court’s expert, appointed pursuant to 18 U.S.C. § 3552(c), beyond the report of the expert’s psychosexual analysis of each defendant) 10/21/2008Mark W. Bennett
U.S. v. David Dicus: (sentencing of criminal defendant: sentence reduction as a sanction for prosecution’s serious misconduct consisting of breach of a plea agreement) 09/24/2008Mark W. Bennett
U.S. v. Brett & Cory Kamerud: (Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; petitioners claim that guilty verdict for conspiracy to (1) “distribute methamphetamine,” (2) “possess with intent to distribute methamphetamine,” and (3) “possess with intent to distribute methamphetamine to one or more persons under twenty-one years of age should be set aside; the court decided whether the petitioners were provided with ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution by analyzing an extensive list of possible grounds for petitioners’ claim.)09/16/2008Mark W. Bennett
Jones v. Wilder-Tomlinson (Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254; petitioner claims that her Sixth Amendment rights were violated when neither of her two attorneys filed a timely motion to suppress evidence obtained due to her warrantless arrest; the court decided: whether there had been an adjudication on the merits of the probable cause to arrest claim, whether the petitioner had properly exhausted available state remedies, and whether one or both of petitioner’s attorneys had been ineffective in violation of the Sixth Amendment.)09/04/2008Mark W. Bennett
In Re Knudsen (Cross-appeals by family farmer debtors and the IRS of the bankruptcy court’s denial of family farmer debtors’ amended plan of reorganization in a Chapter 12 case: whether family farmers, who liquidated their slaughter hogs to convert their farming operation from a farrow-to-finish hog operation to a custom hog-raising operation, can obtain the benefits of 11 U.S.C. § 1222(a)(2)(A), as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), that would allow the taxes generated by the sale of their slaughter hogs to be treated as an unsecured claim against their bankruptcy estate subject to discharge; whether the determination of taxes receiving the beneficial treatment of § 1222(a)(2)(A) should be allocated according to the IRS’s “proration method” or the debtors’ “marginal method”; whether § 1222(a)(2)(A) is applicable to post-petition transactions; and whether post-petition taxes may be treated as administrative expenses of the estate in a Chapter 12 case)06/12/2008Mark W. Bennett
The O.N. Equity Sales Company v. Pals, et al. (Action by securities broker-dealer to enjoin NASD arbitration action by investor; broker-dealer’s motion to set aside judgment compelling arbitration and denying preliminary injunction pursuant to Rule 60(b) of the Federal Rules of Civil Procedure based on “newly discovered evidence” and “fraud”) 05/05/2008Mark W. Bennett
Closson v. Astrue (Claimant sought judicial review of Commissioner's denial of Title II and Title XVI benefits; Commissioner objected to Magistrate Judge's recommendation that testimony of vocational expert conflicted with the information in the dictionary of occupational titles; analyzes Social Security Ruling SSR 00-4p) 02/21/2008Mark W. Bennett
McGowan v. Soy Basics (order for judgment--attorney fees)02/06/2008Jon Stuart Scoles
U.S. v. $138,186.28 (civil forfeiture action; companion case to No. 07cr3001-MWB; ruling on government’s motion for summary judgment; standards for civil forfeiture; whether defendant property is traceable to the interstate transportation of stolen property) 10/24/2007Mark W. Bennett
Tomlinson v. Burt (State prisoner’s petition for habeas corpus relief pursuant to 28 U.S.C. § 2254: ruling on motion to dismiss: “substantive” and “procedural” claims of “actual innocence,” procedural default of “due process” and “ineffective assistance of counsel” claims) 09/21/2007Mark W. Bennett
U.S. v. Hernandez (federal prisoner’s pro se motion to set aside sentence pursuant to 28 U.S.C. § 2255: ruling after evidentiary hearing: alleged ineffective assistance of counsel for failure to file notice of appeal after prisoner’s request that counsel do so) 08/29/2007Mark W. Bennett
Tomlinson v. Burt -- Report and Recommendation on respondent's motion to dismiss petition for writ of habeas corpus pursuant to 28 USC 2254. Court found all issues raised by petitioner to be unexhausted and procedurally defaulted. Court further found petitioner failed to meet his burden to identify new evidence sufficient to satisfy "actual innocence" standard. 08/23/2007Paul A. Zoss
Northeast Iowa Citizens for Clean Water v. AgriProcessors, Inc.; United States of America and Northeast Iowa Citizens for Clean Water v. AgriProcessors; order re application for attorneys fees and costs 06/06/2007Linda R. Reade
Doctor John's, Inc. v. City of Sioux C ity, et al. : (Merchant’s action challenging city ordinances regulating sex shops; court’s sua sponte consideration of sanctions against the city for destruction of records relevant to the litigation after settlement of the case)05/17/2007Mark W. Bennett
Pamela R. Reed vs. Cedar County and Cedar County Scheriff, Daniel Hannes M. Leanne Tyler, Claimant (attorney lien)05/07/2007Jon Stuart Scoles
United States v. Honken : (appeal by defendant convicted of capital offenses and sentenced to death; defendant’s request for discovery of government’s records and recollections of four unrecorded conferences to prepare the defendant’s statement pursuant to Rule 10(c) of the Federal Rules of Appellate Procedure concerning unrecorded portions of the record for appeal)02/28/2007Mark W. Bennett
Torgeson v. Unum Life Insurance Company of America (Motion for Attorney's Fees and Expenses)02/05/2007Mark W. Bennett
Richmond v. Burt (Federal prisoner’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254; case initially referred to Magistrate Judge Paul A. Zoss, who recommended the petition be dismissed on procedural grounds; petitioner filed objections to Judge Zoss’s Report and Recommendation, essentially contending his constitutional claims were not procedurally barred; upon conducting de novo review of petitioner’s claims, court overrules petitioner’s objections and accepts Judge Zoss’s Report and Recommendation; petitioner did not fairly present his constitutional claims to the Iowa courts and even if he had, petitioner’s claims are without merit; petition is dismissed and no certificate of appealability shall be issued.) 01/04/2007Mark W. Bennett
U.S. v. Arturo Ruiz-Ahumada (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting relief on two grounds; specifically, the defendant asserted (1) an error based on United States v. Booker, 125 S. Ct. 738 (2005), on the grounds that he was sentenced under the mandatory Guidelines regime, which impermissibly allowed a judge, as opposed to the jury, to adjust the sentencing range based on a preponderance of the evidence, and (2) that his plea was the product of coercion and therefore, not entered into voluntarily; motion denied in its entirety; first, defendant’s case was not pending when Booker was decided, and thus Booker’s holdings are an inapplicable basis to attack his sentence; second, the defendant’s own statements during the plea hearing demonstrate he pled guilty knowingly and voluntarily; defendant also filed separately a pro se Motion to Amend and a pro se Motion to Supplement; both motions are denied as untimely, as they do not relate back to his original § 2255 petition.)10/24/2006Mark W. Bennett
U.S. v. Perez-Sanchez (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting relief on the following grounds: (1) a “Booker error,” based on the defendant’s contention that a jury, not the sentencing judge, should have determined the amount of drug quantity attributed to him for sentencing purposes; (2) ineffective assistance of trial counsel in failing to challenge the constitutionality of 21 U.S.C. § 841 to the extent that those provisions permitted the court to make drug quantity and role determinations in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); and (3) failure of appellate counsel to argue that the defendant’s rights under the Vienna Convention were violated during his plea hearing on appeal; motion denied in its entirety; first, defendant’s case was not pending when Booker was decided, and thus Booker’s holdings are an inapplicable basis to attack his sentence; second, neither trial counsel’s nor appellate counsel’s performance was not deficient on the grounds alleged by the defendant. )10/17/2006Mark W. Bennett
U.S. v. Alfredo Luna (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255, asserting as grounds the ineffective assistance of trial and appellate counsel for the following reasons: (1) that his trial counsel was ineffective because he failed to fully impeach government witnesses; (2) that his trial counsel was ineffective in failing to object to the edition of the federal guidelines used at the time of sentencing; (3) that his trial counsel was ineffective in failing to object to the criminal history for defendant that was set out in his presentence investigation report; (4) that his trial counsel was ineffective in failing to object to the standard utilized by the court in determining the applicability of a two-level weapons enhancement pursuant to U.S.S.G. § 2D1.1(b); (5) that his appellate counsel was ineffective in failing to raise the issue of trial counsel’s ineffectiveness in failing to fully impeach government witnesses; (6) that appellate counsel was ineffective in failing to raise the issue of the edition of the federal guidelines used at the time of sentencing; and, (7) that his appellate counsel was ineffective in failing to raise on appeal the issue of the court’s calculation of defendant’s criminal history. Defendant also challenged his sentence in light of the United States Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005), arguing that the Booker decision must be given retroactive effect; motion denied in its entirety, first, the Booker decision does not apply retroactively to cases on collateral review, second, defendant had not established that his trial or appellate counsel were ineffective in representing defendant, specifically, defendant did not demonstrated that he was prejudiced by his counsel’s cross-examination of government witnesses at trial; defendant did not demonstrate that he was prejudiced by the use of the 2000 edition of the Federal Sentencing Guidelines because the punishment under the 2000 and 1998 Sentencing Guidelines remained the same, because defendant’s criminal history was not manifestly less serious than that of defendants typically labeled category II, defendant did not demonstrated that he was prejudiced by his counsel’s failure to seek a downward departure on the grounds that his assessed criminal history category overstated the seriousness of his criminal history; defendant’s counsel could not be faulted for not challenging the court’s application of § 2D1.1(b)’s two-level weapons enhancement to defendant where trial testimony showed that during the course of the drug conspiracy defendant possessed several firearms, including several pistols and an AR-15 semi-automatic assault rifle and threatened to use his AR-15 rifle on a possible informant and pointed a pistol at an individual during several drug transactions)10/03/2006Mark W. Bennett
U.S. v. Juan Carlos Vazquez-Munoz (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting three allegations of ineffective assistance of counsel; specifically, the defendant asserted his counsel was ineffective in (1) failing to file an appeal after being expressly directed to do so by the defendant; (2) failing to file an appeal without obtaining the defendant’s consent; and (3) failing to object to the PSIR regarding the defendant’s role in the offense; motion denied in its entirety; defendant did not expressly direct his attorney to file an appeal and he could neither prove breach of duty nor prejudice on either of his remaining claims.)09/28/2006Mark W. Bennett
U.S. v. Hernandez (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting relief on two grounds; specifically, the defendant asserted (1) an error based on United States v. Booker, 125 S. Ct. 738 (2005), on the grounds that he was sentenced under the mandatory Guidelines regime, which impermissibly allowed a judge, as opposed to the jury, to adjust the sentencing range based on a preponderance of the evidence, and (2) a somewhat related claim of ineffective assistance of counsel due to counsel’s failure to anticipate Booker, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), which had been decided at the time of the defendant’s sentencing; motion denied in its entirety; first, defendant’s case was not pending when Booker was decided, and thus Booker’s holdings are an inapplicable basis to attack his sentence; second, counsel’s performance was not deficient on the grounds alleged by the defendant. )09/25/2006Mark W. Bennett
U.S. v. Renee Carlson (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255; specifically, the defendant asserted that (1) her plea was the product of coercion, (2) she was forced to incriminate herself, presumably by admitting to her involvement in the conspiracy during her plea hearing, (3) the government failed to disclose the evidence against her because she never personally viewed the evidence; additionally, the defendant contends her counsel was ineffective in (1) preparing her for her guilty plea, (2) failing to ensure she was read her Miranda rights, and (3) failing to inform her of her right to appeal; motion denied in its entirety; defendant was not entitled to relief on any of the alleged grounds.)09/11/2006Mark W. Bennett
U.S. v. Hernandez : (federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255: alleged “Booker error,” and allegations of ineffective assistance of counsel before, during, and after trial, including (1) failure to assert “Apprendi claim”; (2) failure to investigate the facts of the case, including facts that would have provided the basis to challenge the credibility of the government’s witnesses and the falsehoods in their trial testimony; (3) failure to challenge, at trial and on appeal, sentencing enhancements for obstruction of justice, possession of a firearm, and drug quantity, and (4) failure to assert that the evidence showed multiple conspiracies instead of the single conspiracy with which Hernandez was charged, supplemented at evidentiary hearing to include (5) failure of trial counsel to advise him adequately of the law applicable to his consideration of whether to go to trial, plead guilty; determination of whether resentencing was appropriate relief on the last claim)08/30/2006Mark W. Bennett
U.S. v. Jeffrey Determan (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting relief on one ground: that he received an illegal sentence based on United States v. Booker, 125 S. Ct. 738 (2005); motion denied in its entirety; first, defendant’s case was not pending when Booker was decided, and thus Booker’s holdings are an inapplicable basis to attack his sentence.) 08/18/2006Mark W. Bennett
U.S. v. Roberto Alvarez-Delgadillo (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting relief on two grounds; specifically, the defendant asserted (1) an error based on United States v. Booker, 125 S. Ct. 738 (2005), on the grounds that a jury, not the sentencing judge, should have determined the amount of drug quantity attributed to him for sentencing purposes, and (2) a somewhat related claim of ineffective assistance of counsel due to counsel’s failure to challenge the constitutionality of 21 U.S.C. § 841(a)(1)(A) and (B) to the extent that those provisions permitted the court to make drug quantity determinations in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); motion denied in its entirety; first, defendant’s case was not pending when Booker was decided, and thus Booker’s holdings are an inapplicable basis to attack his sentence; second, counsel’s performance was not deficient on the grounds alleged by the defendant.)08/14/2006Mark W. Bennett
U.S. v. Pinkerton (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting two allegations of ineffective assistance of counsel; specifically, the defendant asserted her counsel was ineffective in (1) preparing her for her guilty plea and (2) in representing to the prosecutor that the defendant was dishonest in her debriefings; motion denied in its entirety; defendant could neither prove breach of duty or prejudice on either claim.)08/11/2006Mark W. Bennett
U.S. v. Robert Lee Kriens (federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255: allegations of ineffective assistance of counsel before and during sentencing pursuant to a plea agreement, including challenge to voluntariness of guilty plea and allegation of ineffective assistance of counsel on appeal, including failure to investigate and present evidence that would purportedly prove that the defendant’s prior conviction for attempted burglary under Iowa law was not a “violent felony” for purposes of the armed career criminal enhanced mandatory minimum sentence under 18 U.S.C. § 924(e)).07/25/2006Mark W. Bennett
U.S. v. Lori Clare Kavitz : (federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255: ten allegations of ineffective assistance of counsel before and during sentencing pursuant to a plea agreement, including challenge to voluntariness of guilty plea and request to reopen Apprendi claim, which had been dismissed on initial review, in light of Blakely).07/17/2006Mark W. Bennett
Goss International Corporation v. Tokyo Kikai Seisakusho, Ltd. and TKS, Inc.; Order denying TKS's motion to stay judgment06/15/2006Linda R. Reade
U.S. v. Homero Bustos Flores (federal defendant’s post-conviction motion to vacate sentence on a drug-trafficking charge pursuant 28 U.S.C. § 2255 based on (1) ineffective assistance of trial counsel, consisting of (a) denial of his right to testify; (b) failure to challenge the drug quantity calculation; (c) failure to raise a challenge pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), at sentencing; and (d) failure to make a timely objection to omission of safety-valve eligibility in the PSIR; (2) ineffective assistance of appellate counsel, who was the same as his trial counsel, consisting of failure to raise issues (1)(b), (1)(c), and (1)(d); and (3) imposition by the trial court of a sentence in violation of the defendant’s Sixth Amendment rights as established by Apprendi, consisting of judicial fact-finding regarding drug quantity and enhancement of his sentence based upon such improper fact-finding)06/13/2006Mark W. Bennett
U.S. v. Angela Johnson (297 page opinion denying defendant's request for post-trial relief)12/16/2005Mark W. Bennett
Edward Branstad & Monroe Branstad v. Veneman ((Action for judicial review of USDA action under the “Swampbuster” Act, 16 U.S.C. §§ 3821-24; renewed motion for attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, after favorable result on remand to agency: plaintiff’s “prevailing party” status, “substantial justification” for the USDA’s position or lack thereof, presence or absence of “special circumstances” warranting denial of fees, and appropriateness of amount of fees based on enhanced hourly rate)09/21/2004Mark W. Bennett
Edward Branstad & Monroe Branstad v. Veneman (Action for judicial review of USDA action under the “Swampbuster” Act, 16 U.S.C. §§ 3821-24; renewed motion for attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, after favorable result on remand to agency: plaintiff’s “prevailing party” status, “substantial justification” for the USDA’s position or lack thereof, presence or absence of “special circumstances” warranting denial of fees, and appropriateness of amount of fees based on enhanced hourly rate)09/21/2004Mark W. Bennett
Engineered Products Co. v. Donaldson Co. Inc. ((Patent infringement action based on patent for air filter restriction indicator; ruling on defendant’s motion to alter or amend judgment: double recovery and improper enhancement; plaintiff’s motion for attorney fees and expenses pursuant to 35 U.S.C. § 285 and expert witness fees pursuant to the court’s inherent power: “willfulness” of infringement as basis for finding an “exceptional case,” appropriateness of awarding fees, reasonableness of hours and application of Minneapolis-St. Paul rates instead of local rates, and standards for awarding expert witness fees as a sanction)09/21/2004Mark W. Bennett
Engineered Products, Inc. v. Donaldson, Co. (Patent infringement action based on patent for air filter restriction indicator; ruling on equitable defenses tried to court and post-trial motions following jury verdict for plaintiff: (1) defense of obviousness-type double patenting; (2) defenses of laches and estoppel; (3) post-trial motions: (a) erroneous claim construction; (b) infringement; (c) “lost profits” damages; (d) “willfulness” of infringement; (e) errors in instructions and verdict form; (f) juror confusion over ability to find both “literal” infringement and “doctrine of equivalents” infringement; (g) court’s comments to defendant’s damages expert; (h) use during jury selection of a videotape providing an introduction to patent law; (i) enhanced damages; and (j) pre- and post-judgment interest)08/12/2004Mark W. Bennett
Sherman, et al. v. Kasotakis d/b/a The Horizsons Family Restaurant (Race discrimination in a public accommodation case under § 1981, § 2000a, and Iowa Code § 217.6; jury verdict for each of the four individual plaintiffs in the amount of $1.00 in nominal damages and $12,500.00 in punitive damages; defendant’s motion for partial judgment as a matter of law, partial new trial or remittitur as to punitive damages award; plaintiffs’ motion to amend the judgment to include injunctive relief and application for attorney’s fees; failure to renew motion for judgment as a matter of law at the close of all the evidence or object in any way to jury instructions constituted waiver; under plain error analysis evidence supported holding employer liable for offending actions of employee where offending employee’s actions were ratified or approved of by supervising night manager; under plain error analysis jury instructions on punitive damages conformed to the law and adequately conveyed the rights and burdens of the respective parties; partial motion for judgment as a matter of law denied; partial motion for new trial on the issue of the constitutionality of the punitive damages award; application of the factors enumerated in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 908 (1996) and State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003); conduct in the upper echelon of reprehensibility; ratio not as important in civil rights cases where only nominal and punitive damages are awarded—reducing ratio to single digit multiplier in this instance would eviscerate the intent behind punitive damages; predictably, no similar civil penalties—which is precisely the reason for the creation of federal civil rights law; punitive damages award under the particular facts and circumstances was reasonable; motion for partial new trial denied; remittitur not warranted as the differential between nominal and punitive damages was neither monstrous nor shocking to the conscience; plaintiffs’ motion to amend judgment granted; equitable relief ordered included two-year injunction, posting of notice, dissemination of anti-discrimination in a public accommodation policy, and maintenance of records; application for attorney’s fees granted with some modification to the claimed rates and reasonable hours; attorney’s fees and costs in the amount of $19,692.46.04/19/2004Mark W. Bennett
Butler v. Smithway Motor Express, Inc. (Employment discrimination case dismissed as sanction for failure to respond to order compelling discovery; Rule 60(b) motion for relief from judgment: “excusable neglect”)03/22/2004Mark W. Bennett
Knutson v. AG Processing (Judgment of this court on ordered reinstatement, back pay, attorney’s fees and damages to plaintiff; on appeal to Eighth Circuit Court of Appeals; plaintiff moved to compel reinstatement or in the alternative front pay; defendant subsequently moved to stay execution of judgment; monetary judgment stayed pending posting of supersedeas bond in amount agreed to by the parties; reinstatement of plaintiff to former position did not result in irreparable harm to defendant; balancing of equities favored denying motion to stay execution of the order of reinstatement; even when matter is on appeal the court retains authority to enforce its original judgment; plaintiff’s motion for reinstatement granted; interim pay from the time of original judgment until the earlier of the plaintiff’s reinstatement or decision by the Eighth Circuit Court of Appeals ordered, but stayed pending posting of an additional supersedeas bond by defendant; as front pay was a key issue on appeal, court likely without jurisdiction to alter its original ruling denying front pay; defendant subject to civil contempt proceedings if it fails to obtain a stay from Eighth Circuit Court of Appeals of this court’s order of reinstatement and does not reinstate plaintiff.) 02/13/2004Mark W. Bennett
Dethmers Manufacturing Co., Inc. v. Automatic Equipment Mfg. Co. : (patent infringement action; defendant’s motion to reconsider summary judgment of invalidity of plaintiff’s “reissue patent,” after district court’s ruling and appellate review: “reconsideration” based on purported “new authority,” the Supreme Court’s decision in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722 (2002), including the impact of the “law of the case” doctrine and “mandate rule” in the circumstances presented, and the extent to which the Festo decision, concerning prosecution history estoppel for infringement under the doctrine of equivalents, was “new” and applicable to the “recapture rule” for the validity of a reissue patent)01/14/2004Mark W. Bennett
Zeigler v. Fisher-Price (Order on defendant's post-trial motion for judgment as a matter of law and motion for new trial. Rulings include the following: (1) because defendant did not raise, in its Rule 50(a) motion at the close of plaintiff's evidence, any grounds for judgment as a matter of law on plaintiff's design defect claim, defendant could not raise the issue in its post-trial Rule 50(b) motion; (2) court has authority to grant judgment as a matter of law sua sponte, even when no proper Rule 50(a) motion has been made; (3) Iowa law limits design defect cases involving only economic loss to warranty theories, but permits personal injury plaintiffs to assert both tort and warranty theories; (4) court denied motion for judgment as a matter of law on grounds raised by defendant, but entered judgment as a matter of law sua sponte on design defect claim; (5) under Iowa law, punitive damages are not warranted absent showing of willful or wanton conduct, and in absence of same, court granted motion for judgment as matter of law on punitive damages claim; (6) parties have a duty to comply with Final Pretrial Order, which is not a Local Rule or simply a matter of form and carries the same weight as any other court order; (7) Consumer Product Safety Commission press release announcing recall of toy was properly admitted into evidence as an admission under Fed. R. Evid. 801(d)(2)(A), (B), & (C); (8) court conditionally denied motion for new trial in accordance with Fed. R. Civ. P. 50(c).01/08/2004Paul A. Zoss
United States v. Yahnke (Prosecution for “maintaining a drug establishment” in violation of 21 U.S.C. § 856; sentencing upon plea of guilty: upward departure pursuant to U.S.S.G. § 4A1.3 on the ground that the defendant’s criminal history category did not adequately reflect either “the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes,” in light of the defendant’s prior conviction for second-degree murder, parole violations not resulting in criminal charges or convictions, and other uncharged criminal conduct to which the defendant admitted)12/24/2003Mark W. Bennett
Bartleson v. Winnebago Industries (Class action under the Fair Labor Standards Act (FLSA) and the Iowa Wage Payment Collection Act (IWPCA) for overtime pay pursuant to the FLSA; plaintiff’s motion for certification of class on IWPCA claim and defendant’s objections to magistrate judge’s order granting leave to amend to add the IWPCA claim; the court considered, first, the defendant’s objections regarding “futility” of the proffered amendment and limitations on supplemental jurisdiction over the IWPCA class claim; second, the court considered the impact of its ruling with regard to supplemental jurisdiction on the plaintiff’s motion for certification pursuant to Rule 23 of a class on the IWPCA claim)12/24/2003Mark W. Bennett
Iowa Protection and Advocacy Services, Inc. v. Gerard Treatment Programs, L.L.C. (Action by advocacy agency for the developmentally disabled and mentally ill against treatment institution regarding access by the advocacy agency to patients, facilities, and records of the treatment institution; advocacy agency’s motion for contempt of court’s "final order" for failure of treatment facility to disclose of the names of residents and the names and addresses of legal guardians: standards for civil contempt; determination of whether either terms of the "final order" or governing statutes and regulations incorporated into the "final order" required the disclosures demanded by the advocacy agency) 08/04/2003Mark W. Bennett
Sanft, et al. v. Winnebago Industries, Inc. et al. (Declaratory judgment action for determination of benefits due under an employee welfare benefit plan governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.; Motion for Amendment of Order Denying Class Certification in which plaintiffs request that the court reconsider its decision to deny class certification in this case and grant class certification to the proposed class, and Motion To Strike Affidavit; analysis of whether statements in affidavit from putative class members constitute "mental impressions" that are an exception to the hearsay rule pursuant to Federal Rule of Evidence 803(3); analysis of whether the fact that some potential class members remain employed by defendant supports a finding that the numerosity requirement has been satisfied and is sufficient to require the court to reverse its previous decision that plaintiffs have failed to demonstrate that the proposed class meets the numerosity requirement of Federal Rule of Evidence 23(a)(1).07/28/2003Mark W. Bennett
Baker v. John Morrell & Co. (After jury in Title VII sexual harassment and retaliation case returned 1.52 million dollar verdict in favor of plaintiff, plaintiff moved to amend her complaint to add parallel state-law claims. Court denied amendment on March 17, 2003, and plaintiff moved to reconsider. Motion to reconsider granted, pursuant to Federal Rules of Civil Procedure 8, 15(b), and 54(c). Accordingly, Title VII’s statutory damages cap did not limit plaintiff’s recovery to $300,000. Court then considered defendant’s motion to amend judgment because, post-trial, defendant sought remittal of the emotional distress damages and punitive damages --- arguments the court did not address in its previous ruling because of the damages cap. Evidence was sufficient to support jury’s awards of compensatory and punitive damages and awards were not grossly excessive. Punitive damages reduced in accordance with statutory damages cap.) 06/11/2003Mark W. Bennett
Baker v. John Morrell & Co. (Post-trial motion to amend judgment and motion for attorney’s fees in employment discrimination case; plaintiff prevailed at trial in sexual discrimination Title VII suit; plaintiff seeks front pay; consideration of mitigation of damages for quitting job for personal reasons and whether plaintiff’s decision to change career fields would make an award of front pay equivalent to a subsidy of her decision to change careers; determination of "reasonable fee"; considering reductions for duplicative efforts and time not reasonably compensable, partial success) 05/21/2003Mark W. Bennett
McGuire v. Davidson Manufacturing (Order on post-trial motions in products liability case. Plaintiff fell and was injured when a ladder on which he was standing broke. Jury found no design defect; found manufacturing defect, but also found ladder was manufactured in accordance with state of the art; and found for plaintiff on general negligence/res ipsa loquitur theory. In post-trial motion for judgment as a matter of law, defendants argued general negligence was inapplicable on these facts. Among other things, defendants argued that because jury found the ladder met state of the art, the defendants could not have failed to use ordinary care, and therefore the jury's verdict was inconsistent. In denying the motion on all grounds, court found general negligence theory to be particularly applicable on the facts of this case, and found no inconsistency in the jury's verdict.)04/18/2003Paul A. Zoss
United States v. Nguyen (§ 2255 motion, ineffective assistance of counsel; claims his counsel failed to investigate and raise the fact that there can be no indictable conspiracy involving only the defendant and government agents and informers; claims his counsel failed to raise an entrapment defense at trial.)04/03/2003Mark W. Bennett
Baker v. John Morrell & Co. (After jury in Title VII sex discrimination case returned 1.52 million dollar verdict in favor of plaintiff, defendant moved for judgment as a matter of law or, in alternative, new trial. Defendant also moved to amend judgment, seeking remittal of the emotional damages and punitive damages. Defendant argued there was insufficient evidence to support jury’s verdict and argued that several evidentiary rulings warranted a new trial. The court overruled these arguments and denied the defendant’s motion. Plaintiff moved under Fed. R. Civ. P. 15(b) to amend complaint to add parallel state-law claims under the Iowa Civil Rights Act. Court found plaintiff did not intend to try state law claims and, therefore, that amendment was not permitted under Rule 15(b). Because court denied motion to amend, plaintiff could not allocate portion of damages to state-law claim and was, therefore, bound by Title VII $300,000 statutory damages cap. Court found that evidence supported award of $300,000 in emotional distress damages. Because of damages cap, court did not reach issue of whether punitive damages were excessive, although noting that they were supported by the evidence. Court remitted emotional damages award to $300,000, exclusive of backpay and post-judgment interest, as provided by federal law.)03/17/2003Mark W. Bennett
United States v. Mansker (Renewed motion for sanctions and post-trial motion for judgment of acquittal and post-trial motion for new trial. Defendant convicted of conspiracy to distribute methamphetamine; government failed to turn over exculpatory materials and court excluded three witnesses at trial as a sanction; on renewed motion, court affirmed its ruling that government committed a Brady and discovery rule violation, but declined defendant’s request for dismissal with prejudice as sanction, finding that exclusion of witnesses was adequate sanction; denial of motion for judgment of acquittal because testimony of government’s cooperating witnesses sufficient to convict, especially in conjunction with defendant’s own testimony, in which he testified to sharing methamphetamine with friends; and denial of motion for new trial, finding that case presented close call because sole evidence against defendant government presented was testimony of government’s 6 cooperating witnesses.)01/20/2003Mark W. Bennett
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MERIDIAN MANUFACTURING, INC., vs. C&B MANUFACTURING, INC., d/b/a HITCHDOC Memorandum opinion and order on cross motions for summary judgment in patent case involving trailers for transporting bulk seed boxes. The court found that the plaintiff established infringement of multiple patent claims as a matter of law. 10/27/2017Leonard T. Strand
Church v. Anderson, et al. (Action by arrestee pursuant to 42 U.S.C. § 1983 asserting an “excessive force” claim against a city police officer; the city, and the city police chief; defendants’ motions for summary judgment: analysis of whether plaintiff’s claims are barred under the United States Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994); determination of whether defendants are entitled to qualified immunity on § 1983 claim of “excessive force” and state law claims.) 04/17/2017Mark W. Bennett
K.G., a minor, by and through his parents and next friends, Suzanne Gosch and Kevin Gosch v. Sergeant Bluff-Luton Community School District, et al. (action by parents of disabled child against teacher, principal, and school district for excessive use of force; summary judgment: IDEA exhaustion requirements for non-IDEA claims after Fry v. Napoleon Community Schools, No. 15-497, 2017 WL 685533 (S. Ct. Feb. 22, 2017); sufficiency of claims of “excessive force” under the Fourth Amendment and “substantive due process” under the Fourteenth Amendment, including qualified immunity, disability discrimination claims, and state common-law claims of negligence, battery, and intentional infliction of emotional distress)03/23/2017Mark W. Bennett
Liguria Foods, Inc. v. Griffith Laboratories, Inc. (Action for breach of warranties by maker of pepperoni against provider of spice blend arising from problems with rancidity of finished pepperoni before the expiration of expected shelf life; ruling on court’s Order To Show Cause Why Counsel For Both Parties Should Not Be Sanctioned For Discovery Abuses: the identified discovery responses were improper “boilerplate” responses under the applicable rules of discovery and the court had the inherent authority to sanction such conduct; no sanctions were warranted in the circumstances of this case, but counsel in all future cases before this court are warned that “boilerplate” discovery responses will not be tolerated and may be subject to sanctions.)03/13/2017Mark W. Bennett
Baldwin v. City of Esherville, et al (A resident brought claims against a city and city police officers pursuant to the Iowa and United States Constitutions and a state law claim for false arrest following his arrest for driving his ATV in violation of a state statute that was not, in fact, incorporated into the City Code; cross-motions for summary judgment: Iowa constitutional claims stayed pending determination by the Iowa Supreme Court of whether such a claim will lie; summary judgment granted for the defendants on the federal constitutional claims and state false arrest claim, because, while there was no probable cause or qualified immunity based on a “mistake of law” for an arrest pursuant to an ordinance that the arresting officers should reasonably have known was not part of the City Code, there was probable cause under another ordinance that the officers could reasonably, if mistakenly, believed was applicable, prior to the Iowa district court’s interpretation of it in the underlying criminal case)11/18/2016Mark W. Bennett
Willis, et al v. Palmer, et al (The court denies the defendants' objection to court appointed experts under Federal Rule of Evidence 706. Pursuant to the court's prior order, the parties are given 45 days to nominate four witnesses. Of those four witnesses, Magistrate Judge C.J. Williams will select up to two experts to appoint in this case. Judge Williams will then over see the cultivation of the expert testimony and direct how compensation for the experts will be provided)(06/20/2016Mark W. Bennett
Willis, et al v. Palmer, et al (Following the court's order denying the defendants' motion for summary judgment, the court directs the parties to show cause why the court should not appoint its own expert under Federal Rule of Evidence 706 to answer three primary questions: 1) how Iowa’s civil commitment program compares to other civil commitment programs throughout the country; 2) what practices are medically accepted to treat sexual offenders; and 3) what is the likelihood that the treatment employed by the defendants will result in the plaintiffs progressing through treatment at CCUSO and achieving eventual release.)05/25/2016Mark W. Bennett
Spanier v. American Pop Corn Company, et al. (Diversity products liability action, motion to dismiss for lack of personal jurisdiction, finding that because two of the defendant maintained registered agents for service of process in Iowa, they had consented to jurisdiction in Iowa and all reside in Iowa for the purposes of 28 U.S.C. § 1391(c), also applying five factor test, the court concludes that it has specific personal jurisdiction over defendants who were bulk suppliers of butter flavoring to Iowa popcorn plants and, consequently, defendants’ actions in Iowa allegedly resulted in dangerous popcorn products being manufactured in Iowa which harmed plaintiffs, and defendants had not established that another manufacturer of butter flavoring was an indispensable party to this lawsuit.)04/14/2016Mark W. Bennett
Willis, et al. v. Palmer, et al.(Patients at the Civil Commitment Unit for Sexual Offenders (CCUSO) sued arguing their constitutional rights have been violated in a number of ways.)03/30/2016Mark W. Bennett
Grim v. Centrum Valley Farms, LLP (Action by laborer for egg producer alleging, inter alia, constructive discharge in violation of Iowa public policy, in retaliation for his claim for workers compensation benefits, by his employer’s failure to accommodate his work restrictions, and by his employer’s failure to pay overtime wages as required by the federal Fair Labor Standards Act (FLSA); defendant’s motion to dismiss the constructive discharge claims: whether failure to accommodate will support a claim of constructive discharge in retaliation for filing a workers compensation claim; whether a retaliation/constructive discharge claim can be based on nothing more a statutory violation of failure to pay overtime wages)03/18/2016Mark W. Bennett
Zhou v. IBM -- Memorandum opinion and order on plaintiff's motion for preliminary injunction and restraining order. The court summarily denied the motion on grounds that it was based on claims and allegations that are not currently encompassed in plaintiff's complaint. The court noted that preliminary injunctive relief is not appropriate if there is no relationship between the proposed injunction and the claims that are pending in the case.03/11/2016Leonard T. Strand
Langenbau v. Med-Trans Corp. -- Memorandum opinion and order regarding the parties' evidentiary motions. The court addressed various motions to exclude expert witness opinions at trial and found with some limited exceptions, that the challenged opinions were not subject to exclusion. The court also denied plaintiffs' request for jury view of wreckage and denied a motion to strike a declaration filed in support of defendant's motion for partial summary judgment. . 03/09/2016Leonard T. Strand
Foster v. Anderson, et al. -- Memorandum opinion and order on defendants' motion for summary judgment. Court found there were no genuine issues of material fact regarding the care Foster received while committed to the care and custody of the Iowa Department of Corrections. As such, Court dismissed all claims and entered judgment in favor of the defendants and against Foster. 02/29/2016Leonard T. Strand
Stinton v. Old Republic Insurance Company -- Order on defendant's motion for summary judgment. Court found there were no genuine issues of material fact concerning the payment of uninsured motorist benefits. Court found that Archer Daniels Midland Alliance Nutrition, Inc., the company employing Mr. Stinton at the time of his death, had declined uninsured motorist coverage and as such, Mr. Stinton's estate was not entitled to any payments from the policy. Court granted defendant's motion for summary judgment. Judgment entered in favor of defendant Old Republic Insurance Company and against plaintiff Diane Stinton02/10/2016Leonard T. Strand
Margaret Foster v. Cerro Gordo County, an Iowa Municipal Corporation, et al. -- Order on the County Defendants' motion for summary judgment. Court found there were no genuine issues of material fact and that defendants had not been deliberately indifferent to Foster's serious medical need. Additionally, Court found defendants were entitled to qualified immunity. Court delcines to continue to exercise supplemental jurisdiction over Foster's State law claims against County Defendants due to the failure of Foster to argue the claims should be retained even if the federal claims against County Defendants are dismissed as well as the fact that these claims do not arise from the same facts and circumstances of the federal claims remaining in this case. Court orders all claims pursuant to 42 U.S.C. secton 1983 against the County Defendants (Cerro Gordo County, Kevin Pals, Shad Stoeffler, Terry Allen-Burns, Justin Faught, Chad Harkema, Rusty Pals, Brenda Crom, Marc Kappmeyer and "Additional Unidentified Cerro Gordo County Jail Staff") dismissed with prejudice. Court orders remaining state law claims alleged against County Defendants dismissed without prejudice. Court orders County Defendants dismissed from this action. 01/28/2016Leonard T. Strand
Jason Bringus v. Steve Elifrits -- Report and Recommendation on defendant's motion for summary judgment. Court found Bringus failed to exhaust the jail's grievance procedures. Court found Bringus failed to submit any admissible evidence illustrating a material dispute of fact, as such, Court recommends defendant's motion for summary judgment be granted.01/20/2016Leonard T. Strand
United States of America v. Arlyn Johnson -- Report and Recommendation on defendant's motion to dismiss. Court found defendant was not entitled to have the evidence weighed at this point in the criminal proceeding. Additionally Court found that due to Iowa's process for removing firearms disabilities, defendant was unable to show that 18 U.S.C. 922(g)(4) was unconstitutional as applied to him. Court recommends defendant's motion to dismiss be denied. 01/19/2016Leonard T. Strand
Adefris v. Wilson Trailer Company, et al. -- Report and Recommendation on defendants' motion to dismiss. Court found Adefris failed to exhaust administrative remedies under the Iowa Civil Rights Act and any claims of retaliatory discharge under Title VII or the ADA. Court found all claims of individual liability under Title VII and the ADA should be dismissed as the acts do not allow inidividual liability. Additionally Court found that Adefris failed to present a plausible claim for relief under race or national origin discrimination under Title VII and Section 1981. Court found Adefris did not state a claim for disability discrimination. Court found the complaint did not state a plausible claim for a hostile work environment. Court recommends all claims be dismissed except for (1) the ADA failure to accommodate claim, as against Wilson and (2) The Section 1981 retaliatory discharge claim, as against Wilson and Kreber. 01/12/2016Leonard T. Strand
Raveling v. Tyson Foods, Inc., et al -- Memorandum opinion and order on defendants' motion for summary judgment. Court found Raveling failed to discredit defendants' reasons for discharging him. Additionally Court found that Raveling failed to show age motivated defendants' decision to discharge him. Court orders defendants' motion be granted with regard to all claims. 12/21/2015Leonard T. Strand
U.S. v. Dennis Neil Yorgensen (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress and granting defendant’s motion to suppress in which he seeks to suppress evidence seized during a search of his residence conducted pursuant to a search warrant, finding: that defendant established a Franks violation regarding the search warrant for his residence. Accordingly, the search warrant was invalid and all evidence seized during the execution of the warrant was suppressed. In addition, concluding that the taint of the illegal search and arrest had not dissipated by the time defendant was interviewed by the police and, therefore, defendant’s statements to the police were required to be suppressed as the fruits of an unlawful search and seizure. Alternatively, addressing, and rejecting, defendant’s claim that his post-arrest statements must be suppressed because they occurred after he invoked his right to counsel.) 12/07/2015Mark W. Bennett
Mary E. Roth and Michael A. Roth, Individually and as Co-Executors of the Estate of Cletus Roth, et al. v. The Evangelical Lutheran Good Samaritan Society (Motion by nursing home to compel arbitration of claims of decedent’s estate and decedent’s adult children for loss of consortium: effect of arbitration provision submitting “arbitrability” and other “threshhold” questions to the arbitrator; certification to the Iowa Supreme Court of questions concerning the effect of Iowa Code § 613.15 on whether the loss of consortium claims must be brought by the estate and arbitrated or whether the circumstances made it impossible, impracticable, or not in the best interest of the adult children for the estate to bring the consortium claims, such that the consortium claims should not be arbitrated)12/04/2015Mark W. Bennett
Lorenz v. Tyson Foods, Inc. -- Memorandum opinion and order on defendants' motion for summary judgment. Court found Lorenz established facts sufficient to raise a genuine issue as to whether the dismissal was motivated by age animus. Court denied defendants' motion for summary judgment. 12/03/2015Leonard T. Strand
Stokes v. Hacker and Anderson -- Report and Recommendation on defendants' unresisted motion for summary judgment. Court found, even when the evidence is considered in a light most favorable to plaintiff, he failed to exhaust his administrative remedies, as a matter of law. As such, court found no genuine issues of material fact existed as to plaintiff's complaint. Court recommends the defendants' motion for summary judgment be granted. 11/18/2015Leonard T. Strand
Hanson v. Hagerty Insurance Agency, LLC and Essentia Insurance Co. -- Order on plaintiff's motion for leave to amend responses to defendants' requests for admissions. Court found that granting plaintiff's motion would allow the case to be heard and decided on its merits. Court found the defendants were unable to demonstrate prejudice following Hanson's failure to respond to requests. Court granted plaintiff's motion for leave to amend responses to defendants' request for admissions. 11/06/2015Leonard T. Strand
Lynch v. Custom Welding & Repair, et al. -- Order on Cross-Motions for Summary Judgment. Court found plaintiff failed to demonstrate defendants had violated the FDCPA as a matter of law and as such entered judgment in favor of defendants. Court declined to exercise supplemental jurisdiction on the remaining state law claims and dismissed them without prejudice. Court ordered plaintiff's motion for summary judgment denied in whole. Court granted defendants' motion for summary judgment as to FDCPA claims and dismissed the remaining state law claims with prejudice. 11/06/2015Leonard T. Strand
Doss v. McKinney, et al. -- Report and Recommendation on defendants' motion for summary judgment. Court found that plaintiff failed to establish deliberate indifference to a serious medical need and as such defendants were entitled to judgment as a matter of law on that claim. Court additionally found plaintiff failed to show retaliation and defendants were entitled to judgment as a matter of law on that claim as well. Court recommended defendants' motion be granted as to both claims and the case be dismissed with prejudice. 11/04/2015Leonard T. Strand
Levi Wilson, et al v. Scott Lamp, et al. (Police officers, in search of a black suspect accused of stealing gasoline, initiated a traffic stop of a black driver and his six year old son with firearms drawn on them; plaintiffs complied with all of defendant officers’ orders, however, officers searched the plaintiff’s truck after they determined he was not the suspect they sought, officers kept a gun pointed at the child through the duration of the stop; claims for Fourth Amendment excessive force, made pursuant to 42 U.S.C. § 1983, state-law invasion of privacy, and intentional infliction of emotional distress claims, made pursuant to Iowa Tort Claims Act, survive Motions to Dismiss; negligence claim dismissed for failure to comply with the administrative requirements of the Iowa Tort Claims Act; determination of state constitutional claims analogous to federal Bivens claims reserved until the Iowa Supreme Court rules on Conklin v. State.) 11/03/2015Mark W. Bennett
Peterson v. Martin Marietta Materials, Inc., et al. -- Order on defendants' motion to compel discovery. Court found that plaintiff was unable to establish the sought after information was protected by the work product doctrine. As such, Court ordered plaintiff to comply with defendants' discovery request. 10/13/2015Leonard T. Strand
Behr, et al v. AADG, Inc. -- Memorandum Opinion and Order on plaintiffs' motion for conditional class certification and court authorized notice. Court granted plaintiffs' request for conditional class certification. Additionally court found the notice unfairly prejudiced AADG as to one part and ordered it be replaced in order to avoid prejudice. Court granted conditional class certification and ordered the notice to be modified. 10/06/2015Leonard T. Strand
USA v. Yorgensen -- Report and Recommendation on defendant's motion for Franks hearing and motion to suppress. Court found the defendant made the required showing to be entitled to a Franks hearing. Court determined in the Franks hearing that the defendant was able to show by a preponderance of the evidence that the affidavit in support of the warrant contained material omissions and a reckless disregard for the truth. As such, court found the evidence obtained as a direct and indirect result of the warrant needed to be suppressed. Additionally court found that if the district court finds the Franks hearing was unwarranted or the defendant failed to meet his burden during the Franks hearing that the defendant did not make an unequivocal request for counsel and as such, the statements made after he mentioned counsel do not warrant suppression. Court recommends the evidence obtained as a direct and indirect result of the warrant be suppressed. 10/02/2015Leonard T. Strand
Afshar v. WMG, L.C., et al -- Order denying plaintiff's motion for leave to amend pleadings. Court found that plaintiff's motion was untimely. Court found plaintiff was unable to show good cause for leave to amend the pleadings after the deadline to amend had lapsed. Court alternatively found defendants would be prejudiced by this late stage amendment. Court denied plaintiff's motion for leave to amend pleadings. 09/14/2015Leonard T. Strand
Liguria Foods, Inc. v. Griffith Laboratories, Inc. -- Order on plaintiff's motion to compel the production of documents and information from defendant. Court found that plaintiff had made a showing that it was likely the defendant possessed the requested documents. Court ordered production of any responsive documents in defendant's possession. 08/24/2015Leonard T. Strand
Great Lakes Communication Corp. v. AT&T Corp. (Billing dispute between the plaintiff “competitive local exchange carrier” or CLEC, and an “interexchange carrier” or IXC over charges to the IXC by the CLEC for routing telephone calls to the CLEC’s purported “end users,” who are “Free Calling Parties” or FCPs, resulting from what the IXC contends is “access stimulation”: CLEC’s motion to enforce purported settlement agreement: the effect of the court’s intervening order referring issues to the FCC on ability to accept a settlement offer; requirement of a signed writing; sufficiency of the offer; and whether a party made a counteroffer of inquiry before accepting an offer)08/21/2015Mark W. Bennett
Xcentric Ventures v. Smith -- Report and Recommendation on plaintiffs' motion for preliminary injunction. The court found that plaintiffs demonstrated a likelihood of success on the merits of their claim that the defendant, a county prosecutor, has used his authority to retaliate against them for the exercise of their First Amendment rights. The court also found that the other factors relevant to the consideration of a motion for preliminary injunction weigh in favor of relief. As such, the court recommended the issuance of a preliminary injunction to preserve the status quo pending trial on the merits. 08/19/2015Leonard T. Strand
Hawkeye Land Company v. ITC Midwest LLC and ITC Holdings, Corp. (Motion to Dismiss; Unreasonable Interference with Private Property; Tortious Interference with Prospective Economic Benefit; Malicious Prosecution; and Abuse of Process)08/11/2015Mark W. Bennett
U.S. v. Teresa Ann Simeon (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding probable cause existed to search defendant’s car before deputy and his drug detection dog conducted a free air dog sniff. Alternatively, find that the prosecution established that drug detection dog was a properly trained, certified, and reliable at the time of the free air dog sniff, that the deputy conducted the free air dog sniff properly, that the drug detection dog alerted and then indicated at the driver’s side of defendant’ car, and thus, the combination of the free air dog sniff results and other information known established probable cause to search defendant’s car. Finally, finding that because the evidence the prosecution relied upon to obtain the search warrant for defendant’s cell phones was gathered lawfully, there was no legal basis to suppress the evidence gathered from the execution of that search warrant.) 07/20/2015Mark W. Bennett
Duane & Julie Davids v. North Iowa Community School District, et al. (Residents of an Iowa school district brought constitutional and state-law claims arising from an Iowa school district’s refusal to pay for the plaintiffs’ children to attend school in Minnesota; defendants’ motion for summary judgment: lack of a state-law right upon which to base equal protection, substantive due process, or procedural due process claims; lack of any genuine issues of material fact of “unjust enrichment”)07/16/2015Mark W. Bennett
Susan R. Parks, wife and next kin of Timothy Glen Parks v. Ariens Company (Diversity products liability case, motion for summary judgment; analyzing whether Iowa recognizes strict liability as a theory of recovery in products liability; determination of whether, under Iowa law, a manufacturer has a duty to retrofit a product; and analyzing whether decedent was aware of the availability and safety benefits of a Roll-Over Protection System for lawn mower at the time of or immediately after his purchase of the lawn mower. ) 06/30/2015Mark W. Bennett
Great Lakes Communication Corporation v. AT&T Corporation (Billing dispute between the plaintiff “competitive local exchange carrier” or CLEC, and an “interexchange carrier” or IXC over charges to the IXC by the CLEC for routing telephone calls to the CLEC’s purported “end users,” who are “Free Calling Parties” or FCPs, resulting from what the IXC contends is “access stimulation”: IXC’s request for referral of this action to the Federal Communications Commission (FCC), on the basis of that agency’s “primary jurisdiction” over pertinent issues. Three issues, one identified by the IXC and two “supplemental” issues identified by the CLEC were referred, the case was stayed, and the jury trial was stricken)06/29/2015Mark W. Bennett
JTV Manufacturing, Inc. v. Braketown USA, Inc., et al -- Memorandum Opinion and Order denying third-party defendant's motion to dismiss on grounds of forum non conveniens. Court found the forum-selection clause was not reasonably communicated and freely negotiated and therefore, did not become a part of the parties' agreement. Court found the private interest and public interest factors weighed against dismissal and Antil S.p.A. did not demonstrate that the case presented an exceptional circumstance necessary to justify dismissal due to forum non conveniens. Court denied third-party defendant's motion to dismiss. 06/23/2015Leonard T. Strand
Platts v. Kelly Services, Inc. (Action by employee of temporary employment service and “client” for whom the employee worked alleging disability discrimination under ICRA: defendants’ motions for summary judgment and to strike errata from plaintiff’s deposition: whether the plaintiff’s “errata” were unauthorized or permissible substantive changes to deposition testimony under Rule 30(e); whether the plaintiff’s “public policy” claim was preempted by the ICRA; whether the “client” of the temporary employment service could be held liable for alleged disability discrimination; and whether the plaintiff had generated genuine issues of material fact on his ICRA disability discrimination claim) 05/26/2015Mark W. Bennett
Bruhn Farms Joint Venture v. Fireman's Fund Insurance Company -- Memorandum opinion and order on defendant's motion for summary judgment. Court found there were no genuine issues of material facts relating to plaintiff's breach of contract claim or bad faith claim. Court found plaintiff failed to demonstrate the existence of any genuine issues of material fact as to whether defendant violated Section 3(c) of the insurance policy's general provisions. Court also found that plaintiff's other alleged breaches of the insurance policy were little more than customer-service related complaints. Court found plaintiff did not demonstrate that defendant lacked a reasonable basis for refusing to pay the higher amount plaintiff demanded. Defendant's motion for summary judgment was granted. 05/08/2015Leonard T. Strand
Whitney v. Franklin General Hospital, et a (Action by medical records clerk arising from sexual harassment by the medical director of a hospital, including sexual harassment, retaliation, disability, and FMLA claims: defendants’ motion for summary judgment: timeliness of the sexual harassment claims, sufficiency of the evidence of violations of the ICRA, Title VII, the ADA, and the FMLA, whether two entities providing management services to the hospital could be held liable where they were not the plaintiff’s employer, and individual liability of the chief executive officer of the hospital; plaintiff’s motion to amend her complaint to add “whistleblower” and “discharge in violation of public policy” claims: timeliness and diligence of the plaintiff in seeking leave to amend)l 04/21/2015Mark W. Bennett
Younie v. City of Hartley, Iowa -- Memorandum Opinion and Order on defendant's motion to dismiss. Court found there is federal question subject matter jurisdiction over Count I. Court found plaintiff sufficiently plead a claim for retaliation under the Fair Labor Standards Act. Court also found that there is supplemental jurisdiction over Counts II, III and IV. Defendant's motion to dismiss for lack of subject matter jurisdiction is denied. 04/09/2015Leonard T. Strand
JTV Manufacturing, Inc. v. Braketown USA, Inc., et al -- Memorandum Opinion and Order denying third-party defendant's motion to dismiss for lack of personal jurisdiction. Court found Braketown and Ermak have made a prima facie showing of specific jurisdiction. Antil S.p.A. has sufficient minimal contacts with Iowa that requiring Antil S.p.A. to litigate in Iowa will not offend traditional notions of fair play and substantial justice. Court denied third-party defendant's motion to dismiss. 04/08/2015Leonard T. Strand
Severe v. O'Reilly Automotive Stores, Inc. -- Memorandum Opinion and Order granting in part and denying in part defendant's motion for summary judgment. Court found plaintiff pointed to sufficient evidence to raise genuine issue of material fact on the issue of pretext regarding both plaintiff's age discrimination and FMLA discrimination claims. Court denied defendant's motion for summary judgment on Counts I and II. Court found Severe conceded that the evidence revealed in discovery does not support a FMLA interference of rights claim. Court granted defendant's motion for summary judgment on Count III.03/23/2015Leonard T. Strand
Scott v. City of Sioux City, Iowa & Paul Eckert (Action by a long-time city employee asserting claims, pursuant to Title VII and ICRA that, over a period of almost nine years, she was retaliated against by the city and the former city manager for her 2004 complaint that the city manager sexually harassed her from 2000 to 2004; parties’ motions in limine, redacted public version.)03/17/2015Mark W. Bennett
FDIC v. Dosland, et al. (action by FDIC, as receiver for a failed bank, seeking damages from the former officers and directors of the failed bank for gross negligence, negligence, and breach of fiduciary duty, and third-party complaint by officers and directors against the United States, acting as the Office of Thrift Supervision (OTS), alleging violation of duties to the bank, officers, directors, shareholders, and accountholders by failing to analyze accurately the bank’s investments and to take more timely action to remedy the bank’s alleged investment violations; OTS’s motion to dismiss third-party complaint pursuant to Rule 12(b)(1) under the “discretionary function exception” to Federal Tort Claims Act jurisdiction) 03/06/2015Mark W. Bennett
US v. Martinez-Hernandez -- Report and Recommendation on defendant's motion to dismiss Count One which charges Martinez-Hernandez with being an aggravated felon found after illegal re-entry in violation of 18 U.S.C. Sections 1326(a) and 1326(b)(2). Court found that the two-day delay between the defendant's arrest and his initial appearance in front of a United States Magistrate Judge was not a violation of his rights under Federal Rule of Criminal Procedure 5(a). Court also found that had the two-day delay been a violation of Rule 5(a), dismissal of the charges would not be the proper remedy under United States v. Chavez. Court recommended the motion to dismiss be denied. 02/25/2015Leonard T. Strand
Parks v. Ariens Company -- Order on defendant's motion for protective order. Court found defendant failed to meet the heavy burden of showing the deposition of Daniel Ariens would cause undue burden. Court found plaintiff provided a sufficient explanation as to why the deposition might result in the discovery of relevant information. Court denied motion for protective order in part and granted in part. 02/25/2015Leonard T. Strand
FDIC-R v. Dosland, et al. (action by FDIC, as receiver for a failed bank, seeking damages from the former officers and directors of the failed bank for gross negligence, negligence, and breach of fiduciary duty, and third-party complaint by officers and directors against the United States, acting as the Office of Thrift Supervision (OTS), alleging violation of duties to the bank, officers, directors, shareholders, and accountholders by failing to analyze accurately the bank’s investments and to take more timely action to remedy the bank’s alleged investment violations; third-party plaintiff’s motion for additional jurisdictional discovery to overcome the “discretionary function exception” to jurisdiction under the Federal Tort Claims Act (FTCA)) 02/11/2015Mark W. Bennett
Shawn Kampfe v. PetSmart, Inc. and Matthew Boos -- Order on plaintiff Shawn Kampfe's motion to quash subpoena and for protective order. Court found Kampfe's employee personnel records, including performance evaluations and disciplinary records from a prior employer were relevant to issues in the case and defendants were entitled to discovery of the employment files. Court further found Kampfe did not meet her burden for a protective order and found the interests of litigants in discovering relevant information outweighed the general privacy interest an employee has in the contents of his or her employment file. Court ordered defendants may serve a subpoena duces tecum for Kampfe's employment files. 01/29/2015Leonard T. Strand
Progressive Casualty Ins. Co. v. Federal Deposit Insurance Corp., as Receiver, et al. (Action by an insurer of former bank officers and directors against the FDIC, as receiver for a failed bank, seeking declaratory judgment concerning coverage of the FDIC-R’s claims against the officers and directors for gross negligence, negligence, and breach of fiduciary duty; plaintiff’s motion to strike affidavit of one director in support of opposing party’s motion for summary judgment; cross-motions for summary judgment on interpretation and construction of policy exclusions and plaintiff’s motion for summary judgment on directors’ and officers’ counterclaims for breach of contract and breach of implied warranty)01/23/2015Mark W. Bennett
USA v. Ingmar Hernandez - Report and Recommendation on defendant's motion to dismiss Count One, which alleges a conspiracy to defraud the United States in violation of 18 U.S.C. Section 371. Court found that the allegations of the indictment, when accepted as true and read as a whole, describes a conspiracy that targeted the United States. Court also found that, when accepted as true and read as a whole, the indictment describes actions by defendant sufficient to charge him with conspiracy to defraud the United States.01/21/2015Leonard T. Strand
United States of America v. Thirty-Two Thousand Eight Hundred Twenty Dollars and Fifty-Six Cents ($32,820.56) in United States Currency -- Order on United States of America's motion to dismiss without prejudice. Court found that USA had a valid reason for seeking dismissal pursuant to Rule 41(a)(2) and that there was no indication that USA is engaged in forum shopping. Court further found that granting USA's motion would not waste judicial resources and would not cause prejudice to claimants. Court ordered the action be dismissed without prejudice.01/09/2015Leonard T. Strand
Richard Trevino v. Woodbury County Jail, et al. -- Report and Recommendation on United States Marshals Service's Motion to Dismiss. Court concluded Trevino's action alleging the United States Marshals Service violated his constitutional rights and Title II of the Americans with Disabilities Act was not frivolous under 28 U.S.C. Section 1915. Court further concluded Trevino's claims against the United States Marshals Service were barred by sovereign immunity. Court recommended the motion to dismiss be granted and all claims asserted against the United States Marshals Service in this action be dismissed with prejudice. 01/07/2015Leonard T. Strand
USA v. Baker -- Report and Recommendation on defendant's motion to dismiss count 1, which alleges a conspiracy to defaud the United States in violation of 18 U.S.C. Section 371. Court found that the allegations of the indictment, when accepted as true and read as a whole, describe a conspiracy that targeted the United States. Court recommended that the motion be denied.12/29/2014Leonard T. Strand
Scott v. City of Sioux City, Iowa & Paul Eckert (Action by a long-time city employee asserting claims, pursuant to Title VII and ICRA that, over a period of almost nine years, she was retaliated against by the city and the former city manager for her 2004 complaint that the city manager sexually harassed her from 2000 to 2004; defendant city’s motion for summary judgment: application of Morgan to an alleged “continuing violation” retaliation claim, availability of a “retaliatory hostile work environment” claim, and existence of a jury question on timely incidents of alleged retaliation; defendant city’s motion to exclude testimony from two experts: damages expert’s calculations of damages based on untimely incidents of alleged retaliation and non-treating psychologist’s opinions that the plaintiff’s behavior was consistent with that of sexual harassment victims and that it was “reasonable” “[f]rom a psychological perspective,” and that the city’s anti-harassment policy, procedures, and investigations were deficient for various reasons, where no “sexual harassment” claim was asserted) 12/22/2014Mark W. Bennett
Wells, et al. v. Lamplight Farms, Inc., et al. -- Order on defendant's motion to quash a Rule 30(b)(6) deposition notice. Court found plaintiffs were not entitled to depose witnesses or seek additional information to support new expert opinions after the expert witness disclosure deadline passed. Court also found plaintiffs could not seek the additional information for other, non-expert reasons because plaintiffs failed to discuss those other, non-expert reasons in meet-and-confer discussions with opposing counsel. Court granted defendant's motion to quash the deposition notice.12/18/2014Leonard T. Strand
Life Insurance Company of North America v. Erasmo Eufracio, Charlene Baas and Ronald Baas -- Report and Recommendation on defendants Charlene and Ronald Baas' motion for sanctions. Court recommended the motion be granted due to defendant Eufracio's inaction in the case and violations of procedural rules. Defendant Eufracio failed to appear at the final pretrial conference, did not serve any witness or exhibit lists, and failed to participate in the preparation of the proposed final pretrial order. 11/04/2014Leonard T. Strand
John Denton Myers v. Hog Slat, Inc. -- Order on defendant's motion for partial summary judgment. Court granted in part defendant Hog Slat, Inc.'s motion for summary judgment on Count III (violation of the Iowa Wage Payment Collection Act) and Count V (breach of contract). Court denied in part defendant's motion on Count I (associational discrmination in violation of the ADA) and Count II (interference with employee benefits in violation of ERISA). Court found genuine issues of material fact existed as to the issues of casual connection and pretext. Court entered judgment accordingly for each count. 10/24/2014Leonard T. Strand
Daniels v. City of Sioux City (Action by arrestee pursuant to 42 U.S.C. § 1983 asserting an “excessive force” claim against a city police officer; police officer’s motion for summary judgment: qualified immunity to § 1983 claim of “excessive force” and state law claim of “assault”) 10/23/2014Mark W. Bennett
Nunley v. Erdmann, et al. -- Report and Recommendation on defendants' motion to dismiss plaintiff's claims under Section 1983. Court recommended the motion be granted with regard to any and all claims asserted on behalf of plaintiff's minor child without prejudice. Court also recommended the motion be granted with regard to all claims asserted against the Iowa State Patrol, all plaintiff's state law tort claims and Counts IV, VI and VII with prejudice. Court recommended the motion be granted with regard to Counts I, II and V unless plaintiff is able, by amendment, to cure the pleading deficiencies. 10/08/2014Leonard T. Strand
FDIC-R v. Dosland, et al. (action by FDIC, as receiver for a failed bank, seeking damages from the former officers and directors of the failed bank for gross negligence, negligence, and breach of fiduciary duty, and third-party complaint by officers and directors against the United States, acting as the Office of Thrift Supervision (OTS), alleging violation of duties to the bank, officers, directors, shareholders, and accountholders by failing to analyze accurately the bank’s investments and to take more timely action to remedy the bank’s alleged investment violations, third-party plaintiff’s motion for jurisdictional discovery to overcome the “discretionary function exception” to jurisdiction under the Federal Tort Claims Act (FTCA)) 10/07/2014Mark W. Bennett
Aguilera v. Wright County (Action by state prisoner granted post-conviction relief from a second-degree murder conviction in 1996 for a Brady violation who subsequently pleaded guilty to involuntary manslaughter before a new trial in 2012: State defendants’ motion to dismiss: federal claims: sufficiency of allegations of “bad faith” by investigator defendants and their responsibility for nondisclosures to support Brady claim, qualified immunity, and “favorable termination” requirement under Heck v. Humphrey; state tort claims: whether certain state tort claims were functional equivalents of intentional torts excepted from the waiver of sovereign immunity under the Iowa Tort Claims Act, Iowa Code § 669.14(4); availability of a state tort claim for obstruction of justice analogous to a criminal offense defined by Iowa Code § 719.3) 10/06/2014Mark W. Bennett
USA v. Rojas -- Report and Recommendation on defendant's motion to suppress evidence. Court found that the defendant was lawfully stopped and arreted and that two search warrants were properly issued based on probable cause arising from legally-obtained evidence. Court recommended that the motion to suppress be denied.10/03/2014Leonard T. Strand
Progressive Casualty Insurance Co. v. Federal Deposit Insurance Corporation, et al. (action by an insurer of former bank officers and directors against the FDIC, as receiver for a failed bank, seeking declaratory judgment concerning coverage of the FDIC-R’s claims against the officers and directors for gross negligence, negligence, and breach of fiduciary duty; plaintiff’s motion to strike certain affirmative defenses: appeals by the insurer and one of its reinsurers of magistrate judge’s order denying attorney-client privilege and work-product protection for documents consisting of communications between the insurer and its reinsurers, sought by the FDIC-R)10/03/2014Mark W. Bennett
Katrina West v. Abendroth & Russell Law Firm -- Order on defendant's motion for summary judgment. Court granted defendant Abendroth & Russell's motion for summary judgment with regard to all counts. Court found no genuine issue of material fact existed as to the alleged FDCPA violation. Court also found no genuine issue of material fact existed on plaintiff Katrina West's state law claims. Court entered judgment for defendant and against plaintiff. 09/16/2014Leonard T. Strand
Pick v. City of Remsen (former long-time operations director of the utilities department of a city brought numerous claims against the city and various city officials arising from or related to his termination when his position was ostensibly “eliminated” by the city’s utilities board; former employee’s motion in limine: exclusion of evidence of IPERS benefits on the condition that the former employee excluded from any claim for back pay any unpaid contributions to IPERS that the city had not paid since his discharge; the city’s motion in limine: evidence of settlement discussions, evidence of liability insurance, evidence of a “tire-slashing” incident, testimony from law enforcement officers, evidence supporting “due process” claims no longer at issue, and evidence that there was no “going away” party for the former employee)09/02/2014Mark W. Bennett
Nathan A. Martin v. Champion Ford, Inc. -- Order on cross motions for summary judgment. Court granted defendant Champion Ford, Inc.'s motion for summary judgment and denied plaintiff Nathan A. Martin's motion for summary judgment. Court found no genuine issue of material fact existed as to hostile work environment or race discrimination by defendant Champion Ford, Inc. Court entered judgment in favor of defendant and against plaintiff.08/28/2014Leonard T. Strand
Pick v. City of Remsen, et al. (Employment discrimination case, motion for summary judgment; analyzing whether defendants’ alleged statements constituted defamation; analyzing whether defendants violated plaintiff’s Fourth and Fourteenth Amendment rights against unreasonable search and seizure, pursuant to 42 U.S.C. § 1983, by searching plaintiff’s public office for a trail camera and then seizing that trail camera without a search warrant; review of whether plaintiff’s intentional infliction of emotional distress claims were preempted by the Iowa Civil Rights Act to the extent plaintiff relies on the same discriminatory acts alleged in support of his claims of unlawful discrimination under that act; determination of whether plaintiff had generated a genuine issue of material fact as to whether defendants’ stated reason for eliminating his position was pretextual so as to preclude summary judgment on plaintiff’s Pick’s disability discrimination claim; analysis of whether plaintiff had established a prima facie case of age discrimination; granting summary judgment on plaintiff’s withdrawn claim of gender discrimination; and determining whether plaintiff could establish the causation element of his disability retaliation and First Amendment retaliation claims.) 08/27/2014Mark W. Bennett
Progressive Casualty Insurance Company v. FDIC -- Order on defendant Federal Deposit Insurance Corp.'s motion to compel plaintiff to comply with court order and motion to compel Everest Reinsurance Company to comply with subpoena. Court granted in part motion to compel plaintiff's compliance and directed plaintiff to provide unredacted reinsurance documents. Court denied in part motion to compel plaintiff to produce certain electronically stored information. Court granted in part motion to compel Everest's compliance and directed Everest to produce documents responsive to the subpoena.08/22/2014Leonard T. Strand
Wells v. Lamplight Farms, Inc, et al. -- Order on defendant Lamplight's motion to compel answers to interrogatories and discovery of health records. Court granted in part motion to compel and directed plaintiff to supplement their answers to interrogatories. Court denied in part motion to compel discovery of health records.08/15/2014Leonard T. Strand
USA v. Tome Rojas -- Order denying defendant's motion to compel discovery. Court found defendant had not established a need to learn the identity of a confidential informant in Texas who did not witness the alleged offenses in Iowa and did not provide information that led to the return of a federal indictment against defendant based on those alleged offenses. Nor did defendant demonstrate that information contained in a Texas investigative file might be helpful and material to his defense in Iowa. 08/12/2014Leonard T. Strand
USA v. Jose Orellana -- Report and Recommendation on defendant's motion to suppress evidence from a post-Miranda interview. Court found that the defendant expressly waived his Miranda rights before making a statement and that the waiver was made voluntarily, knowingly and intelligently. Court recommended that the motion to suppress be denied. 07/31/2014Leonard T. Strand
Foster v. Cerro Gordo County, et al. -- Order granting plaintiff's motion for leave to file amended complaint. Court found that existing defendants had not demonstrated that amendment naming previously unidentified defendants was futile based on a statute of limitations defense and alleged failure to relate back to the original complaint under Fed. R. Civ. P. 15(c)(1)(C).07/25/2014Leonard T. Strand
Hearing v. Minnesota Life v. Holloway -- Order granting defendant's motion to deposit interpleader funds and plaintiff's motion to dismiss/motion for summary judgment on third-party defendant's counterclaim. Court found Minnesota Life was entitled to deposit funds with the court, recover attorney fees and costs and be dismissed with prejudice as the facts demonstrated it had a real and reasonable fear of exposure to double liability. However, third-party defendant's counterclaim ultimately could not survive summary judgment because the insured had not done all he could to comply with the policy requirements for changing a beneficiary and there were no facts suggesting unconscionable conduct to justify imposing a constructive trust. As such, plaintiff was entitled to policy proceeds. 07/21/2014Leonard T. Strand
Killer Joe Nevada, LLC v. Leigh Leaverton, Brittany Bolan, & Jason Fills (Action for infringement of a copyright for a motion picture by transferring copies of that motion picture among peer-to-peer network users; plaintiff’s voluntary dismissal of claim against an alleged infringer identified from her IP address: whether the voluntary dismissal, with prejudice, of the copyright infringement claim mooted the defendant’s counterclaim of non-infringement and whether the defendant is entitled to damages as a “prevailing party” as a condition of dismissal) 07/17/2014Mark W. Bennett
David & Barbara Stults v. International Flavors & Fragrances, Inc. and Bush Boake Allen, Inc. (Diversity products liability action, motions for summary judgment; analyzing plaintiffs’ failure to warn, implied warranty, and design defect negligence claims; rejecting defendants’ argument that plaintiffs could not establish proximate cause for their failure to warn claim, concluding that, given the circumstances of the case, questions of proximate cause were for the jury to determine; concluding that plaintiffs’ breach of implied warranty claims did not merge with their design defect negligence claims; and denying summary judgment on plaintiffs’ design defect negligence claim because the materials submitted by plaintiffs was sufficient for a jury to conclude that a reasonable alternative design was available to defendants’ butter flavorings with diacetyl.) 07/11/2014Mark W. Bennett
Goettsch et al v. Goettsch et al -- Order on plaintiffs' motion to strike defendants' jury demand pursuant to Rule 39(a)(2). Court found defendants were not entitled to a jury trial on Count One in which plaintiffs alleged oppressive conduct and sought judicial dissolution of the corporation or a mandatory buyout of their stock. Court found defendants were entitled to a jury trial on Count Two in which plaintiffs alleged breach of fiduciary duty and sought compensatory damages. Court rejected defendants' arguments that affirmative defense of breach of contract and "common issues" entitled them to a jury trial on all claims. 07/08/2014Leonard T. Strand
Community Voice Line LLC v. Great Lakes Communication Corp., et al (Action by provider of conference call services, recorded content, audio streams, and other business services, against an Iowa competitive local exchange carrier (CLEC), which “hosted” the telephone numbers that the service provider’s customers would call to obtain the provider’s services, and against various audio content providers; one “new” defendant’s motions to dismiss for forum non conveniens pursuant to Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas, ___ U.S. ___, 134 S. Ct. 568 (2013): pertinent factors weigh against dismissal for forum non conveniens, notwithstanding applicability of forum-selection clause to at least some of the claims)07/07/2014Mark W. Bennett
GLCC v. AT&T Corp. -- Report and Recommendation on GLCC's motion to dismiss and motion for summary judgment. Court recommended the motion to dismiss be denied based on GLCC's standing argument and with regard to Count I of AT&T's counterclaim. Court recommended the motion be granted as to Counts II and III of AT&T's counterclaim pursuant to the primary jurisdiction doctrine. As for GLCC's motion for summary judgment on the issue of AT&T's liability, the court recommended the motion be denied as GLCC had not demonstrated it was entitled to judgment as a matter of law.06/24/2014Leonard T. Strand
DIRECTV v. Klingenberg, et al. -- Report and Recommendation on plaintiff's motion for entry of judgment by default against defendant Last Call Saloon, LLC. Court found it had subject matter and personal jurisdiction and plaintiff had demonstrated that Last Call Saloon was liable under 47 U.S.C. 605(a). Court recommended the motion be granted and judgment be entered against Last Call for basic statutory damages, enhanced damages and costs and attorney fees.06/20/2014Leonard T. Strand
Life Insurance Company of North America v. Baas, et al. -- Order granting in part and denying in part plaintiff's application to recover costs and attorney fees in interpleader action. Court concluded plaintiff was only entitled to recover $1000 for attorney fees and expenses related to locating and serving defendant in Mexico. Plaintiff was also entitled to recover full amount of attorney fees related to legal research and drafting pleadings, motions and briefs. Court found plaintiff was not entitled to recover local counsel expenses or filing and mailing fees as plaintiff had not provided the appropriate documentation.06/17/2014Leonard T. Strand
Scott v. City of Sioux City, et al. -- Order denying defendant's motion to amend answer to add affirmative defense of "after-acquired evidence." Court found proposed defense was purely anticipatory because the City had not yet decided to discharge Scott, and in any event, the defense would not apply because the evidence of misconduct was discovered prior to any termination. Court concluded the proposed defense was "legally insufficient" pursuant to Rule 12(f) and futile for purposes of Rule 15(a).06/04/2014Leonard T. Strand
Rasmussen v. Hacker, et al -- Report and Recommendation on defendants' motion for summary judgment on plaintiff's Section 1983 claim of deliberate indifference to a serious medical need. Court found plaintiff failed to demonstrate genuine issue of material fact as to whether defendants actually knew of a substantial risk of serious harm to plaintiff's health and disregarded it. Defendant McKinney also could not be held liable under the doctrine of respondeat superior and both defendants were entitled to qualified immunity. Court recommended that defendants' motion for summary judgment be granted. 05/07/2014Leonard T. Strand
Community Voice Line, LLC v. Great Lakes Communication Corp, et al. (Action by provider of conference call services, recorded content, audio streams, and other business services, against an Iowa competitive local exchange carrier (CLEC), which “hosted” the telephone numbers that the service provider’s customers would call to obtain the provider’s services, and against various audio content providers; “new” and “old” defendants’ motions to dismiss “new” claims in second amended complaint: Virginia defendant’s motion to dismiss for improper venue, based on a forum-selection clause, denied in light of Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas, ___ U.S. ___, 134 S. Ct. 568 (2013), and for lack of personal jurisdiction denied, because placement of 16 servers in Iowa to conduct the defendant’s business provided sufficient contacts with the forum; Iowa and Nevada defendants’ motion to dismiss denied as to fraud claims, because facts plausibly suggesting intent to defraud were adequately pleaded, and as to a conversion claim, because a possessory interest in telephone numbers could be “converted” under Iowa law, but granted as to a claim of a violation of the “anti-slamming” statute, 47 U.S.C. § 258, because, although a private right of action by a subscriber existed, the plaintiff had not alleged an unauthorized change in carrier) 05/06/2014Mark W. Bennett
Urban v. Sells, et al. -- Report and Recommendation for entry of order dismissing action with prejudice and imposing monetary sanctions on plaintiff. Court found dismissal was appropriate because allegations were totally implausible, attenuated, unsubstantial, frivolous, devoid of merit or no longer open to discussion. Judgment had been entered against plaintiff four times on claims arising out of some or all of the same events alleged in current complaint and new claims were barred by doctrines of res judicata, prosecutorial immunity, Rooker-Feldman, the Eleventh Amendment, statute of limitations and Rule 12(b)(6). After giving plaintff the opportunity to show cause, the court also recommended imposing monetary sanctions under Rule 11. Plaintiff filed sixth federal lawsuit despite the court having explained the law, advised him of his right to appeal, cautioned him that filing frivolous repetitive lawsuits would result in sanctions and told him what the likely amount of those sanctions would be.04/25/2014Leonard T. Strand
Pick v. City of Remsen, et all. -- Order granting defendants' motion for order directing destruction of an inadvertently-produced privileged document. Court found that no waiver occurred as a result of the inadvertent disclosure because defendants' attorney took reasonable precautions to prevent disclosure and acted quickly to seek relief upon discovering the error. Plaintiff also would not be unfairly prejudiced by the requested relief. Plaintiff was directed to destroy all copies of the privileged communication.04/25/2014Leonard T. Strand
Catipovic v. Turley (A former Iowa resident seeks to recover damages for breach of contract and unjust enrichment from an Irish citizen, and damages for unjust enrichment from a Minnesota citizen and a Minnesota company, arising from the failure of an alleged partnership to develop ethanol production facilities in Eastern Europe; parties’ motions in limine to exclude numerous categories of evidence, including expert testimony and alleged witness intimidation.)04/18/2014Mark W. Bennett
FDIC v. Dosland, et al -- Order granting defendants' motion to compel discovery. Court found that FDIC-R had not met its burden of demonstrating internal OTS documents at issue were so plainly irrelevant that they were not discoverable. Court also found that under 12.U.S.C. Section 1821(o), FDIC-R had the legal right to obtain the documents meaning they were within it's "possession, custody, or control" under Federal Rule of Civil Procedure 34(a).04/04/2014Leonard T. Strand
Streeter v. Premier Services, Inc. -- Memorandum Opinion and Order granting defendant's motion for summary judgment. Court found plaintiff could not point to evidence that defendant knew of plaintiff's alleged disability for his disability discrimination claim. With regard to his race discrimination claim, the undisputed evidence showed plaintiff failed to meet his employer's legitimate expectations and employees who committed similar violations as plaintiff were treated the same, regardless of race. Plaintiff was also not entitled to relief under FMLA because he was not employed by the defendant for at least 12 months.04/01/2014Leonard T. Strand
Nick Harvey, et al. v. AB Electrolux, et al. (Employment law, motions for partial summary judgment; suit by employees against employer alleging that defendant’s failure to compensate them for the time to don personal protective equipment (“PPE”), walking to their work stations after donning PPE and the time spent washing PPE violates the Fair Labor Standards Act (“FSLA”), 29 U.S.C. § 203(o) and the Iowa Wage Payment and Collections Law (“IWPCL”), Iowa Code § 91A.1 et seq.; analysis of whether donning of workers’ PPE is “changing clothes” under the FLSA; analysis of whether plaintiffs’ claims for time spent walking to their work stations after donning their PPE is compensable under the Portal-to-Portal Act, 29 U.S.C. § 254; analysis of whether plaintiffs’ claims for the time they spent washing their gloves and arm guards at home is compensable under the FSLA; analysis of whether plaintiffs’ claims were viable under the IWPCL.) 03/28/2014Mark W. Bennett
Cornell v. Jim Hawk Truck Trailer, Inc., et al -- Order denying plaintiff's motion for leave to file second amended complaint. Court found that plaintiff had not met the "good cause" requirement under Rule 16(b) to add a party several months after the deadline. Plaintiff had sufficient information about the proposed party to be put on inquiry notice several months before the deadline. Plaintiff did not follow up on this information before the deadline and did not act promptly when she received an unambiguous answer concerning the proposed party's role in the corporate organization. Court found plaintiff had failed to show that despite diligence, her proposed amendment could not reasonably have been offered sooner.03/26/2014Leonard T. Strand
Metropolitan Property and Casualty Insurance Company v. Agency One Insurance, Inc., et al -- Memorandum Opinion and Order denying plaintiff's motion for partial summary judgment against defendant Agency One. Court found there were genuine issues of material fact on plaintiff's claim of negligence, negligent supervision, breach of fiduciary duty and breach of contract. 03/25/2014Leonard T. Strand
Meighan v. TransGuard Insurance Company of America, Inc. -- Order on plaintiff's motion to compel responses to discovery. Court found that defendant must produce some documents where work product privilege did not apply because the documents were not prepared in anticipation of litigation. Court found work product privilege and attorney client privilege applied to all other documents.03/24/2014Leonard T. Strand
Wells, et al. v. Lamplight Farms, Inc., et al. - Order on defendant Lamplight's motion to quash or modify a subpoena and motion for protective order. Court granted motion to quash or modify subpoena and directed recipient to comply to the extent that the requested information related to the product at issue. Court also granted motion for protective order and directed defendants to submit a proposed protective order consistent with the terms described by the court.03/12/2014Leonard T. Strand
Progressive Casualty Insurance Company v. FDIC, et al -- Order on defendant's motion to compel production of documents from privilege logs and motion to compel discovery. Court directed plaintiff to serve a supplemental privilege log providing more information concerning 14 disputed documents. Court also found defendant was entitled to production of documents concerning other similar claims, reinsurance information and document retention policies. Court denied defendant's request for production of reserve information and regulatory filings in states other than Iowa. 03/10/2014Leonard T. Strand
Target Training International, LTD v. Michelle K. Lee (patent holder’s action for judicial review of a determination by the United States Patent and Trademark Office (PTO) that an alleged infringer’s inter partes reexamination request was filed on the last day before the statute authorizing such proceedings expired; PTO Director’s motion to dismiss: whether the motion raised a bar to subject matter jurisdiction or failure to state a claim based on the exception to judicial review for a decision “committed to agency discretion by law” in 5 U.S.C. § 701(a)(2) of the Administrative Procedures Act (APA); whether § 701(a)(2) excepted from review a decision by the PTO under Patent Rule 183; whether the patent holder’s “due process” claim was “colorable,” so as to avoid the § 701(a)(2) exception) 03/05/2014Mark W. Bennett
Daniels v. The City of Sioux City, et al -- Order on defendants' motion to strike plaintiffs' expert witness disclosures and plaintiffs' motion to extend the deadline for their expert witness disclosures. Court found that plaintiffs barely demonstrated good cause to extend their expert witness disclosure deadline and because the scheduling order could be amended without causing unfair prejudice, the court granted plaintiffs' motion to extend the deadline and denied defendants' motion to strike plaintiffs' disclosure of expert witnesses without prejudice.03/04/2014Leonard T. Strand
Stults v. American Popcorn, et al (Diversity products liability action, motion to reconsider, in part, motion for summary judgment; analyzing whether under Michigan law, a statutory discovery rule found in Michigan Compiled Laws § 600.5833 applies to plaintiffs’ implied warranty claims, and whether plaintiffs implied warranty claims were timely filed under that statute.)02/25/2014Mark W. Bennett
Pick v. City of Remsen, et al. -- Order granting in part and denying in part plaintiff's motion to file fourth amended complaint. Court allowed plaintiff to add new allegation of defamation against a particular defendant, but denied amendments to add new factual allegations in support of plaintiff's wrongful termination claim and a new claim of intentional interference with employment contract as plaintiff did not demonstrate good cause for these untimely amendments.02/25/2014Leonard T. Strand
John and Dave LLC v. Society Insurance -- Order on defendant's motion for summary judgment and plaintiff's motion to strike defendant's reply in support of its motion for summary judgment. Court granted summary judgment to defendant on plaintif's claim of unjust enrichment, reasonable expectations, bad faith and punitive damages, but denied summary judgment on plaintif's breach of contract claim as there was a genuine issue of material fact as to whether the plaintiff was entitled to additional payments under the Policy. Court denied plaintiff's motion to strike defendant's reply, but disregarded the improper new arguments made therein.02/21/2014Leonard T. Strand
Cornell v. Jim Hawk Truck Trailer, Inc. et al. -- Order on plaintiff's motion to quash subpoenas duces tecum and for protective order. Court found that defendants were entitled to discover disciplinary reports from subsequent employers but not former employers. Court also found defendants were entitled to obtain performance evaluations from plaintiff's employers dating back to January 1, 2007. As for plaintiff's current employer, court found plaintiff could either obtain her entire personnel file herself and produce it in its entirety to defendants or defendants could enforce the subpoena.02/20/2014Leonard T. Strand
Scott v. City of Sioux City, et al. -- Order on plaintiff's motion to take more than ten depositions. Court found that plaintiff made a "particularized showing" why additional depositions were necessary and that none of the factors listed in Federal Rule of Civil Procedure 26(b)(2)(C) were present to justify limiting discovery. Court granted leave, pursuant to Rule 30(a)(2), for plaintiff to conduct the additional proposed depositions.02/11/2014Leonard T. Strand
Whitney v. Franklin General Hospital, et al. (Action by medical records clerk arising from sexual harassment by the medical director; defendants’ motion to dismiss state and federal discrimination claims for lack of administrative exhaustion against unnamed, but purportedly related entities; sufficiency of the pleading of FMLA claims of “interference/entitlement,” “retaliation,” and “discrimination”)02/03/2014Mark W. Bennett
General Electric Capital Corporation v. FPL Service (Motion by plaintiff commercial leasing corporation for summary judgment against defendant commercial lessee on liability and damages under commercial equipment lease; issues include: whether plaintiff is entitled to deficiency damages under the parties’ contract and, if so, how much; ruling grants summary judgment on the issue of damages, holding that plaintiff is entitled to, and correctly calculated, damages under the parties’ contract) 02/03/2014Mark W. Bennett
Jay & Deanna Clasing v. Hormel Foods Corporation (Action by hog finishers against a meat packing company for alleged breach of a 2008 oral contract between the parties for continued purchases of the hog finishers’ Canadian-born hogs after legislation implementing mandatory “country of origin labeling” (COOL) for pork became effective; meat packing company’s motion for summary judgment: notice required for changes to “pricing” and “delivery” terms and breach of those terms; nature of a claim for breach of the implied covenant of good faith and fair dealing; viability of implied contract claims where the parties do not dispute the existence of an enforceable express contract)01/21/2014Mark W. Bennett
Virgil & CArol Van Stelton v. Jerry Van Stelton, et al. (Federal civil rights litigation, motions to dismiss concerning defendants’ counterclaim for abuse of process, reviewing requirements for abuse of process claims under Iowa law and analysis under Federal Rule of Civil Procedure 12(b)(6) concerning whether defendants’ sufficiently pled their counterclaim for abuse of process.)01/15/2014Mark W. Bennett
Aguilera v. Wright County, et al. (Action by state prisoner granted post-conviction relief from a second-degree murder conviction in 1996 for a Brady violation who subsequently pleaded guilty to involuntary manslaughter before a new trial in 2012: State defendants’ motion to dismiss: federal claims: sufficiency of allegations of “bad faith” by investigator defendants and their responsibility for nondisclosures to support Brady claim, qualified immunity, and “favorable termination” requirement under Heck v. Humphrey; state tort claims: whether certain state tort claims were functional equivalents of intentional torts excepted from the waiver of sovereign immunity under the Iowa Tort Claims Act, Iowa Code § 669.14(4); availability of a state tort claim for obstruction of justice analogous to a criminal offense defined by Iowa Code § 719.3) 01/06/2014Mark W. Bennett
Serverside Group, Ltd. v. Tactical 8 Technologies (Patent infringement action involving patents for an invention that allows customers to use a secure process on the internet to select personalized images, which are printed on their bank credit or debit cards, even if the customer, the images, the image manipulation software, the customer’s account information, and the card printer are all in different locations; plaintiff’s motion for partial reconsideration of summary judgment ruling finding non-infringement by defendants of the “secure unique identifier” limitation of one patent and the “encrypted customer information” limitation of the other patent) 01/06/2014Mark W. Bennett
Driesen v. Smith, et al. (Federal civil rights litigation, motions to dismiss concerning claims brought civil rights violations under 42 U.S.C. § 1983; violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and pendent state law claims for unjust enrichment and conspiracy to defraud; analysis under Federal Rule of Civil Procedure 12(b)(6) concerning whether the Rooker–Feldman doctrine bars the court's subject matter jurisdiction over plaintiffs’ claims. 01/02/2014Mark W. Bennett
Stults v. American Pop Corn, et al (Diversity products liability action, motions for summary judgment; analyzing which state's substantive law should apply—the law of Michigan, where plaintiffs reside and where plaintiffs purchased, and consumed product giving rise to this case, or the law of Iowa, the state where some of the product was produced and packaged; dismissing plaintiffs’ strict liability claims because Michigan does not recognize strict liability as a theory of recovery in products liability cases; analyzing which state's statute of limitations should apply—the law of Iowa, the forum state, or the law of Michigan, the state found to have the most significant relationship to the parties and the occurrence; dismissing plaintiffs’ negligence and breach of implied warranty claims as time barred under Michigan law, and dismissing loss of consortium claim as a matter of law because it is entirely derivative.) 12/24/2013Mark W. Bennett
FDIC v. Michael Dosland, et al (Action by the FDIC, as receiver for failed bank, pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1811 et seq., against the former officers and directors of the bank, asserting claims of gross negligence, negligence, and breach of fiduciary duty; plaintiff’s motion to strike certain affirmative defenses: Rule 12(f) standards for striking an affirmative defense; applicability of the Twom-bal pleading standard to affirmative defenses; legal sufficiency of affirmative defenses based on equitable doctrines, including estoppel, laches, unclean hands, and/or waiver; the FDIC-R’s failure to mitigate damages; damages resulting from the acts or omissions of someone other than the defendants; and an exculpation provision in the bank’s articles of incorporation, which bars the defendants’ liability)12/23/2013Mark W. Bennett
Cornell v. Jim Hawk Truck Trailer, Inc., et al -- Order denying plaintiff's motion regarding sequencing of discovery. Court found that plaintiff had failed to demonstrate good cause for withholding audio recordings from defendants until certain witnesses had been deposed. Plaintiff was ordered to produce the requested audio recordings without further delay. 12/16/2013Leonard T. Strand
Omaha Steaks International v. Frontier Choice Steaks, LLC, et al. (Trademark infringement action; plaintiff’s for preliminary injunction) 12/10/2013Mark W. Bennett
Serverside Group Limited & Serverside Graphics, Inc. v. Tactical 8 Technologies, LLC & Bank Iowa Corporation (Patent infringement action involving patents for an invention that allows customers to use a secure process on the internet to select personalized images, which are printed on their bank credit or debit cards, even if the customer, the images, the image manipulation software, the customer’s account information, and the card printer are all in different locations; post-Markman motion for summary judgment of non-infringement by defendants and defendants’ motion to strike the plaintiff’s expert) 12/09/2013Mark W. Bennett
Community Voice Line LLC v. Great Lakes Communication Corp. -- Order granting plaintiff's motion for leave to file second amended complaint. Count found that plaintiff's motion was timely and defendant had not demonstrated undue delay, undue prejudice, harassment, bad faith or futility of claims that would justify denial of the motion under Federal Rule of Civil Procedure 15(a). Court also rejected defendant's argument that the motion should be denied because some of the proposed claims were being pursued in Maryland state court. 12/04/2013Leonard T. Strand
General Electric Capital Corporation v. FPL Service Corp. (Motion by plaintiff commercial leasing corporation for summary judgment against defendant commercial lessee on liability and damages under commercial equipment lease; issues include: (1) whether an act of God discharges commercial lessee, (2) whether lease contract was a lease or a secured transaction, (3) whether commercial lessor complied with Article 9 disposition requirements, and (4) the amount of damages, if any; ruling grants summary judgment on the issue of liability, holds that the lease was really a secured transaction; and grants the parties additional time to submit evidence affecting the issue of damages)12/03/2013Mark W. Bennett
Catipovic v. Turley, et al -- Order denying plaintiff's renewed motion for leave to amend his complaint. Court found that plaintiff had failed to show good cause for his untimely amendment under FRCP 16(b). Alternatively, his amendment would not be allowed under Rule 15(a) because the proposed new fraud claim was futile and adding the claim at such a late stage in the case would be unduly prejudicial to all defendants.11/20/2013Leonard T. Strand
DaCosta Daniels, et al v. The City of Sioux City, et al (Action by arrestee pursuant to 42 U.S.C. § 1983 asserting an “excessive force” claim against a city police officer and the city, and “infliction of emotional distress” claims on behalf of the plaintiff’s daughter against the city and a community school district based on the showing of a video of the plaintiff’s arrest, months later, to her daughter’s middle school class by a different city employee and a school district employee; the school district’s motion to dismiss for lack of supplemental subject matter jurisdiction pursuant to 28 U.S.C. § 1367(a) over the state law claims against it) 11/08/2013Mark W. Bennett
Clay v. Woodbury County, Iowa, et al. (Action by pretrial detainee pursuant to 42 U.S.C. § 1983 asserting “strip search” and “free speech retaliation” claims in violation of the United States and Iowa Constitutions: plaintiff’s motion to exclude defendants’ expert’s testimony for applying the wrong legal standard and offering legal conclusions; defendants’ motions (2) for summary judgment: whether the “strip search” claim alleged both a “violation of privacy” claim and an “excessive force” claim; whether the defendant officers had qualified immunity to the claims; and whether the alleged “strip search” was in retaliation for complaining about the plaintiff’s detention and a search of her purpose) 11/06/2013Mark W. Bennett
International Bortherhood of Electrical Workers, et al v. Pottebams Service Electric, LLC, et al (Action involving claims for unpaid ERISA contributions and damages and unpaid union wages pursuant to the LMRA, based on successor or alter ego liability; plaintiffs’ motion for summary judgment: genuine issues of material fact on successor or alter ego liability) 11/06/2013Mark W. Bennett
Huerta-Orosco v. Cosgrove -- Order granting plaintiff's motion for leave to file a first amended complaint. Court found plaintiff had filed his motion to amend within the time allowed by the court's scheduling order and defendant would not suffer undue prejudice by allowing plaintiff to amend his complaint at this time. While defendant raised valid statute of limitations arguments, the outcome was not so apparent based on the limited information in the record that plaintiff's claims in the new complaint could be considered futile. 10/30/2013Leonard T. Strand
Redd v. Lutgen -- Report and Recommendation on defendants' motion for summary judgment where plaintiff alleged a violation of his First Amendment right to the free exercise of religion. Court found defendants were entitled to summary judgment because plaintiff had not raised a genuine issue of material fact as to whether the defendants' conduct imposed a substantial burden on his religious beliefs. Alternatively, defendants would be entitled to qualified immunity because plaintiff failed to show that a reasonable officer would have had notice that the alleged conduct was unconstitutional.10/28/2013Leonard T. Strand
Peters v. Woodbury County (Action by pretrial detainee pursuant to 42 U.S.C. § 1983 asserting a “strip search,” use of “excessive force,” and “free speech retaliation”: defendants’ motions (2) for summary judgment: whether alleged “strip search” was a “search” at all or a “clothing exchange” and whether the defendant officers had qualified immunity; whether “excessive force” was used to compel compliance with an order to change into a jail uniform in front of officers; and whether the alleged “strip search” was in retaliation for complaining about the order to change into a jail uniform in front of officers) 10/25/2013Mark W. Bennett
Redd v. Lutgen -- Report and Recommendation on plaintiff's application for preliminary injunction and temporary restraining order. Court found plaintiff had not demonstrated a relationship between the injury described in the application and the events alleged in the complaint. Therefore, the court recommended plaintiff's application be denied.10/23/2013Leonard T. Strand
Graney v. Mercy Health Services - Iowa Corp. (Action for wrongful death, loss of parental consortium, and failure to provide an appropriate medical screening examination of the plaintiff’s sixteen-year-old son, resulting in his death from probable cardiac arrhythmia; report and recommendation of magistrate judge recommending dismiss as sanction for failure to comply with discovery and other orders pursuant to Fed. R. Civ. P. 37 and 41(b))10/23/2013Mark W. Bennett
U.S. v. Jose Sandoval (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding: that the information in search warrant application was not stale; that the issuing judge could reasonably consider and rely upon the information from all of the informants mentioned in the search warrant application to conclude that probable cause existed; that, based on the totality of circumstances, probable cause supported the state judge’s issuance of the search warrant, and alternatively finding, that, if the search warrant application was not supported by probable cause, the Leon good-faith exception to the exclusionary rule applies because the law enforcement officer obtaining the search warrant acted in reasonable reliance on the state magistrate's determination of probable cause for issuance of the warrant.)10/23/2013Mark W. Bennett
USA v. Boykin -- Order granting in part and denying in part defendant's motion to sever. Court granted part of motion requesting severance of defendant's trial from his codefendant's, but denied part of motion requesting severance of the four counts against defendant into two separate trials.10/15/2013Leonard T. Strand
Community Voice Line LLC v. Great Lakes Communications Corp. (Action by provider of conference call services, recorded content, audio streams, and other business services, against an Iowa competitive local exchange carrier (CLEC), which “hosting” of the telephone numbers that the service provider’s customers would call to obtain the provider’s services; provider’s motion for summary judgment on CLEC’s counterclaims for indemnity)10/11/2013Mark W. Bennett
Meighan v. Transguard Ins. Co. (Action by insured asserting claims of breach of contract and bad faith denial of claims; defendant insurance agency’s motion to dismiss, inter alia, pursuant to Rule 12(b)(6), on the ground that insured’s attempt to remedy failure to plead any factual basis for liability of agency, as opposed to insurer, by the simple expedient of alleging that the defendant insurer and defendant insurance agency individually and jointly engaged in the wrongful conduct at issue and are “jointly and severally liable” for it, then changing all of the former references to a single defendant to mean both defendants “collectively”; standards for post-dismissal leave to amend)10/11/2013Mark W. Bennett
Van Stelton, et al v. Van Stelton, et al -- Order on plaintiffs' motions for discovery sanctions and contempt sanctions. Court found witness and attorneys had violated rules of civil procedure and court's previous order outlining appropriate deposition procedures by refusing to answer questions or instructing the witness not to answer questions on certain topics based on relevance. Court imposed sanctions on witness and attorneys and denied motions for contempt sanctions.10/09/2013Leonard T. Strand
Graney, et al v. Mercy Health Services-Iowa Corp. -- Report and Recommendation on defendant's motion to dismiss or, alternatively, for other sanctions. Court found dismissal was warranted based on plaintiffs' failure to comply with multiple court orders including discovery orders, which repeatedly advised plaintiffs of their obligations and that failure to comply could result in dismissal of their case. Court found that plaintiffs' total lack of action was willful and had prejudiced defendant. Court recommended the case be dismissed with prejudice.09/18/2013Leonard T. Strand
Daniels v. The City of Sioux City, et al. -- Order denying the City of Sioux City's motion to bifurcate claims and stay discovery and trial. Court found that it was too early in the case to determine if bifurcation was apporpriate and plaintiff was entitled to conduct discovery with regard to all claims at this point.09/13/2013Leonard T. Strand
Van Stelton, et al v. Van Stelton, et al -- Order denying plaintiffs' motion for leave to file fourth amended complaint. Court found that plaintiffs had failed to show good cause for seeking leave to file a fourth amended complaint six months after the deadline. Court also found defendants would be unfairly prejudiced by a fourth amended complaint that sought to add new claims, reinstate a dismissed claim and add new parties at this stage of the case. 09/09/2013Leonard T. Strand
Streeter v. Premier Services, Inc,. et al. -- Memorandum Opinion and Order granting summary judgment in favor of defendant Tur-Pak Foods, Inc. Court found that Tur-Pak was entitled to summary judgment because plaintiff was not an employee of Tur-Pak. Even if he could be considered an employee, the court found his claims would still fail as a matter of law because he had not established a prima facie case for his discrimination claims or that he was "eligible employee" for his FMLA claim.09/06/2013Leonard T. Strand
Dumont Telephone Company v. Power & Telephone Supply Company, et al (Motion by defendant telecommunications supply company seeking to compel arbitration in contract dispute against plaintiff telecommunications provider; issue involves whether arbitration clause in one party’s forms became part of UCC contract between two merchants; ruling granting defendant’s motion to compel, and issuing a discretionary stay over plaintiff’s claims against co-defendants)08/26/2013Mark W. Bennett
Jason Martin and Amber Martin v. Apex Tool Group, LLC -- Order denying defendant's motion to exclude plaintiffs' expert's opinions and motion for summary judgment. Court found that plaintiffs' expert's opinions should not be excluded because his findings were based on recognized methods and were relevant and likely to aid the jury. Court also concluded that defendant was not entitled to summary judgment regardless of whether the plaintiffs' expert's opinions were excluded because viewing the facts in the light most favorable to the plaintiffs there was sufficient circumstantial evidence to support their claim.08/16/2013Leonard T. Strand
Community Voice Line LLC v. Great Lakes Communication Corp. -- Order granting in part and denying in part defendant's motions to compel discovery concerning five interrogatories and ten document requests. 08/01/2013Leonard T. Strand
U.S. v. Ryan Gene Hansen (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding that Deputy’s noncompliance with Iowa law in applying for warrants to install Global-Positioning-System (“GPS”) tracking devices on automobile was not deliberate and intentional where deputy assumed, incorrectly, that a warrant application to install GPS devices was governed under the same rules and requirements as other search warrant applications and that he was authorized to apply for and execute GPS warrants. Thus, suppression of the evidence was not required.)07/31/2013Mark W. Bennett
Branimir Catipovic v. Mark Turley, Ronald Fagen, & Fagen, Inc. (A former Iowa resident seeks to recover damages for breach of contract and unjust enrichment from an Irish citizen, and damages for unjust enrichment from a Minnesota citizen and a Minnesota company, arising from the failure of an alleged partnership to develop ethanol production facilities in Eastern Europe; plaintiff’s objections to magistrate judge’s denial of leave to amend to add a fraud claim: standard of review for magistrate judge’s order on a non-dispositive matter; relationship between Rule 15 standards for leave to amend and Rule 9 pleading standards for fraud; whether magistrate judge’s order was clearly erroneous or contrary to law in denying leave to amend, based on magistrate judge’s determination that the plaintiff failed to allege facts sufficient to give rise to an inference of intention not to perform a promise at the time the promise was made)07/31/2013Mark W. Bennett
Dennis & Melissa Eggerling v. Advanced Bionics, LLC) (Diversity action by parents of minor child who received a cochlear implant alleging negligence and product defect claims against manufacturer; manufacturer’s motion for summary judgment on the ground that the Medical Device Amendments (MDA) to the Food, Drug, and Cosmetics Act (FDCA) preempted the plaintiffs’ claims: rejection of plaintiffs’ assertions of issue preclusion and a requirement of “approval” of the device as a prerequisite to preemption; determination of which and to what extent negligence and product liability claims concerning design, manufacturing, and testing, based on non-compliance with the pre-market approval (PMA) for the device and Current Good Manufacturing Practices (CGMPs) were preempted or were viable “parallel” claims) 07/24/2013Mark W. Bennett
U.S. v. James Edward Poole (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding: that state trooper’s expansion of the traffic stop was justified and the length of the traffic stop reasonable, and that there was sufficient reason to trust the drug-detection dog’s alert and indication based on his training and history, and thus probable cause to search defendant’s vehicle.)07/22/2013Mark W. Bennett
Virgil Van Stelton, et al v. Jerry Van Stelton, et al. (Federal civil rights litigation, motions to dismiss concerning claims brought civil rights violations under 42 U.S.C. § 1983; violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq.; and pendent state law claims for false arrest, fraud, malicious prosecution, slander and libel, and tortious interference with prospective economic advantage; analysis under Federal Rule of Civil Procedure 12(b)(6) concerning whether plaintiffs’ sufficiently pled claims for civil rights violations under § 1983; RICO, First Amendment right to petition, slander and libel, tortious interference with prospective business relations claim, Ongoing Criminal Conduct violation, false arrest, malicious prosecution, fraud, breach of fiduciary duty.)07/17/2013Mark W. Bennett
Clay v. Woodbury County, et al - Order denying plaintiff's motion to quash subpoena and discovery deposition of her treating psychiatrist. Court found that the patient-litigant exception applied because the plaintiff asserted a claim based on emotional injry and she could not undo the exception by withdrawing only part of that claim. In the alternative, the court found plaintiff had waived the physician-patient privilege by voluntarily providing copies of her records, signing a waiver that allowed defendants to obtain her records and testifying about her treatment with the psychiatrist.07/17/2013Leonard T. Strand
Mapleton Processing, Inc. v. Society Insurance Company -- Memorandum Opinion and Order granting in part and denying in part defendant's motion for summary judgment and denying plaintiff's motion to compel appraisal. Court found there was a genuine issue of material fact as to whether plaintiff's violation of a condition precedent caused prejudice to defendant, allowing its breach of contract claim to proceed to trial. Plaintiff's other claims of bad faith and punitive damages failed as a matter of law. Court denied plaintiff's moton to compel appraisal, finding that although plaintiff had a contractual right to appraisal, it had waived that right through various decision and actions. 07/10/2013Leonard T. Strand
Community Voice Line LLC v. Great Lakes Communication Corp. -- Order granting plaintiff's motion for sanctions against defendant for failure to comply with court's discovery order. Court found that defendant failed to produce requried documents by the deadline set forth in the discovery order and qualified its supplemental responses against the court's instructions. Court ordered a monetary sanction and prohibited defendant from offering certain documents into evidence. 07/09/2013Leonard T. Strand
Peters v. Woodbury County, et al and Clay v. Woodbury County, et al -- Order denying plaintiffs' joint motion to consolidate cases. Court found that although cases demonstrate common questions of law, there are no common issues of fact which could create a serious risk of prejudice to defendants. Additionally, the burden on parties, witnesses and resources outweighed any benefits of consolidation.06/24/2013Leonard T. Strand
The Foreign Candy Company, Inc. v. Tropical Paradise, Inc., d/b/a Cool Tropics; (action by a candy importer against a fruit juice seller, involving federal and state law claims of trademark, trade dress, and copyright infringement and unfair competition; fruit juice seller’s motion to dismiss for lack of personal jurisdiction and improper venue: sufficiency of internet “contacts” to satisfy due process, based on a link from fruit juice seller’s otherwise passive website to a third-party retailer’s website from which the fruit juice seller’s products can be and were purchased by the candy importer’s CEO for delivery in the forum)06/24/2013Mark W. Bennett
U.S. v. Nathan Melton (1 Appeal of Magistrate Judge’s order granting prosecution’s motion to disqualify defense counsel because his representation of defendant at trial would make defense counsel an unsworn witness, and because of the possibility that defense counsel might be called as either a prosecution or defense rebuttal witness; concluding magistrate’s decision was contrary to law because the prosecution had not met its heavy burden of demonstrating that defense counsel’s continued representation would cause him to be an unsworn witness that would impair the fact finding process or prejudice the prosecution and because defense counsel was not a necessary witness likely to be called under Iowa Rule of Professional Conduct 32:3.7, which requires disqualification of an attorney as a necessary witness only if that attorney has relevant and material information that no one else can provide.)06/06/2013Mark W. Bennett
Van Stelton v. Van Stelton -- Order on defendants' motions to strike plaintiffs' disclosures of expert witnesses. Court granted motions based on plaintiffs' failure to comply with Federal Rules of Civil Procedure 26(a)(2)(B) and 26(a)(2)(C) after the court warned plaintiffs they may not have been in compliance, directed them to the rule, and gave them extra time to comply. Because plaintiffs still failed to comply with the rule and did not demonstrate that noncompliance was harmless or substantially justifiable, the court ruled that exclusion of expert opinion testimony was the appropriate sanction under Federal Rule of Civil Procedure 37(c)(1).06/03/2013Leonard T. Strand
The Secuirty National Bank of Sioux City, Iowa, as Conservator for JMK, a Minor v. Abbott Laboratories (Diversity action by conservator of infant who suffered brain damage from bacterial meningitis asserting product defect, warranty, and fraud claims against the manufacturer of powdered infant formula (PIF) that allegedly caused the infant’s injuries; the manufacturer’s motion to exclude “sham” affidavit by the infant’s mother concerning onset and progression of the infant’s symptoms as contrary to the mother’s and the grandmother’s depositions and medical records; the manufacturer’s Daubert motion to exclude testimony of the conservator’s “causation” experts based on flawed “ruling in” and “ruling out” methodologies to establish that the PIF was the most likely cause of the infant’s bacterial infection; and the manufacturer’s motion for summary judgment on all claims for inability to establish causation of the infant’s injuries by the manufacturer’s PIF, for summary judgment on warranty claims for inability to show a “sale” of the PIF to the hospital, which provided the PIF in a “gift bag” to the infant’s mother, for summary judgment on the fraud claim for inability to show “actual reliance” by the mother on alleged misrepresentations on the PIF label, and for summary judgment on the warning defect claim for inability to show “factual causation” where warnings on the label allegedly played no part in the mother’s decision to use the PIF, but the mother asserts that she would not have used the PIF if adequate warnings had been given) 06/03/2013Mark W. Bennett
Buckeye State Mutual Insurance Co. v. Moens, et al. (Interpleader action, pursuant to 28 U.S.C. §§ 1335, 1397, and 2361, initiated by an insurance company, because it asserts that claims for “bodily injury” coverage, arising from a multi-vehicle accident, exceed policy limits: plaintiff’s insureds’ motion to stay related state court action: whether the stay on the state court action would exceed the authority for an injunction under § 2361, as interpreted by the United States Supreme Court in State Farm Fire & Casualty Company v. Tashire, 386 U.S. 523 (1967))05/13/2013Mark W. Bennett
Harrington v. Holder -- Report and Recommendation granting defendant's motion for summary judgment. Plaintiff filed this action under 42 U.S.C. section 1983 alleging defendant had violated his constitutional rights by disclosing a complaint he had written about two other inmates which led to an assault by a third inmate. Court found that plaintiff had not produced evidence showing that defendant knew of a risk to plaintiff and failed to take action to protect him. Court also found that the defendant was entitled to qualified immunity. 04/12/2013Leonard T. Strand
Robertson v. Siouxland Community Health Center & Michelle Stephan (Action by female former human resources director for a medical practice alleging that the medical practice and its female chief executive officer discriminated and harassed her because of her sex and/or her sexual orientation, retaliated against her for complaining about a sexually hostile work environment, and discriminated against her because of her age in violation of federal and state law: defendants’ motion to dismiss: lack of Title VII protection for sexual orientation; failure to exhaust administrative remedies for claims based on sex; failure to state a claim of harassment based on sex, rather than based exclusively on sexual orientation; and failure to state a retaliation claim where the plaintiff failed to state a claim of sex harassment)04/10/2013Mark W. Bennett
Perzynski v. Cerro Gordo County, Iowa, et al -- Order denying defendants' motion to strike portions of plaintiff's summary judgment appendix. Court concluded that transcripts of unsworn recorded interviews were properly authenticated by plaintiff and included in the summary judgment record. 04/02/2013Leonard T. Strand
Buckeye State Mutual Insurance Co. v. Moens, et al. (Declaratory judgment action, motion for summary judgment; analyzing whether an automotive passenger, who is a covered person under the terms of an automobile insurance policy covering the host automobile, and who is injured in an automobile accident, may recover underinsurance benefits under the insurance policy covering the host automobile, when that passenger is entitled to receive liability coverage benefits under that same policy.)03/25/2013Mark W. Bennett
The Estate of Scott W. Thompson, et al. v. Kawasaki Heavy Industries, LTD, et al. (Diversity action under Iowa products liability law, arising from a motorcycle accident, involving a “design defect” claim against the motorcycle manufacturer; manufacturer’s motion to reconsider or clarify the scope of evidence and argument that the manufacturer may offer to show that an alleged “design defect” in the motorcycle was not a cause of the plaintiff’s death almost three years after the accident) 03/11/2013Mark W. Bennett
The Estate of Scott W. Thompson, et al. v. Kawasaki Heavy Industries, LTD, et al.(Diversity action under Iowa products liability law, arising from a motorcycle accident, involving a “design defect” claim against the motorcycle manufacturer; manufacturer’s challenges to plaintiffs’ use in their case-in-chief of deposition testimony of manufacturer’s Rule 30(b)(6) representative and deposition testimony of a former defendant’s Rule 30(b)(6) representative; plaintiffs’ motion to exclude litigation testing evidence, described by the manufacturer as “demonstrative” exhibits) 03/11/2013Mark W. Bennett
Deborah & Steven Daughetee v. CHR. Hansen, et al. (Diversity products liability action, motions for summary judgment; analyzing whether: defendants had a duty to warn plaintiff about the harms allegedly associated with exposure to their products; General Mills and ConAgra were “sophisticated” intermediary users of defendants’ products and thus defendants were entitled to rely on General Mills and ConAgra to provide appropriate warnings to consumers; defendants were entitled to summary judgment on plaintiff’s failure to warn claims on the ground that defendants were bulk suppliers of butter flavorings to General Mills and ConAgra; plaintiff could establish that defendants’ failure to warn plaintiff was the proximate cause of her lung condition; plaintiff’s breach of implied warranty claims are redundant to her negligent claims; plaintiff has offered no proof of a product defect sufficient to sustain a breach of implied warranty claim; a breach of warranty claim based on a breach that occurred after February 2000 would have a causal relationship to plaintiff’s her alleged diagnosis; any claim based on plaintiff’s exposure to one of the defendants’ products was barred under Iowa’s statute of repose, Iowa Code § 614.1; and plaintiff’s claims for punitive damages fail as a matter of law because no evidence exists that defendant willfully and wantonly disregarded plaintiff’s safety.)03/06/2013Mark W. Bennett
U.S. v. Angela Johnson (“Penalty retrial” of capital defendant after death and life sentences for five murders in furtherance of a continuing criminal enterprise (CCE murder), in violation of 21 U.S.C. § 848(e), a provision of the Anti-Drug Abuse Act (ADAA), were set aside on her § 2255 Motion: prosecution’s motion to reconsider parts of the ruling on scope of the scope of the “penalty retrial” challenging rulings: (1) that the new jury will not redetermine the defendant’s eligibility for the death sentence; (2) that the court will instruct the new jury that the defendant’s only possible sentences are death or life without parole; and (3) that evidence of the defendant’s future dangerousness outside of prison will be excluded; defendant’s motion to reconsider ruling that non-statutory aggravating factors, like mitigating factors, may assert separate incidents as separate factors)03/05/2013Mark W. Bennett
Serverside Group Limited & Serverside Graphics, Inc. v. Tactical 8 Technologies, LLC & Bank of Iowa Corp. (Patent infringement action involving patents for an invention that allows customers to use a secure process on the internet to select personalized images, which are printed on their bank credit or debit cards, even if the customer, the images, the image manipulation software, the customer’s account information, and the card printer are all in different locations; Markman patent claim construction decision after briefing, submission to the parties of a tentative ruling, and a Markman hearing involving additional evidence and argument, construing 3 disputed claim terms.) 03/04/2013Mark W. Bennett
The Estate of Scott W. Thompson, et al. v. Kawasaki Heavy Industries, Ltd, et al. (Diversity action under Iowa products liability law, arising from a motorcycle accident, involving a “design defect” claim against the motorcycle manufacturer; manufacturer’s pretrial motions: motion to exclude hearsay testimony of a person traveling with the victim at the time of the accident, but who did not see the accident, motion to exclude hearsay statements of the victim’s father, motion to bifurcate liability and punitive damages phases of the trial, motion to exclude evidence of “similar incidents,” and motion to exclude causation opinions of the plaintiffs’ expert; plaintiffs’ pretrial motion to exclude the following evidence: evidence of an alleged lack of “similar incidents”; evidence that the victim caused his own death or that he failed to mitigate his damages; evidence of alleged alcohol use by the victim; evidence of opinions of emergency responders; evidence of the posted 55 mph speed limit and that the victim violated Iowa law by allegedly traveling in excess of speed limit at the time of the motorcycle accident; evidence regarding compliance with or the absence of minimum Federal Motor Vehicle Safety Standards; evidence supporting a “state of the art” defense; evidence of the defendants’ “good acts”; evidence of collateral source benefits; evidence of any previous pleadings; and evidence of any previous adverse Daubert rulings concerning the plaintiffs’ expert witnesses) 02/25/2013Mark W. Bennett
Thompson v. Kawasaki Heavy Industries, Ltd., et al. (Diversity action under Iowa products liability law, arising from a motorcycle accident, involving, inter alia, “design defect” and “manufacturing defect” claims against the motorcycle manufacturer and the manufacturer of an adjustable steering damper incorporated into the motorcycle’s steering mechanism: motorcycle manufacturer’s motion for partial summary judgment on all claims but the plaintiffs’ “design defect” claim, and steering damper manufacturer’s motion for summary judgment on all of the plaintiffs’ claims: elements of a “manufacturing defect” claim under Iowa law, focusing on proof of an intended design and departure from that design; liability of a component manufacturer for a “design defect” based on “substantial participation” in the design; and requirements for proof of “punitive damages” on an underlying cause of action under Iowa law.) 02/11/2013Mark W. Bennett
Wells Enterprises, Inc. v. Olympic Ice Cream -- Order granting defendant's motion for stay of proceedings pending appeal. Court found defendant's appeal to the Eighth Circuit divested the court of jurisdiction while the appeal was pending, and even if it did not, the case should be stayed in the interests of justice and judicial economy.01/31/2013Leonard T. Strand
Rattray, et al. v. Woodbury County, Iowa (Action pursuant to 42 U.S.C. § 1983 challenging county jail’s strip-searches of three misdemeanor arrestees: one plaintiff’s motion to reconsider summary judgment in favor of the county on her “manner” strip-search claim pursuant to Rule 52(b) and Rule 59(e) concerning, inter alia, whether the plaintiff must show that a non-participant was actually present who could have observed the strip search, whether or not any non-participant actually did observe the strip search) 01/30/2013Mark W. Bennett
Gro Master, Inc. v. Farmweld, Inc. (Action by an out-of-state patent holder for infringement of its patent for an “animal feeder with adjustment of a feed discharge opening” against another out-of-state corporation that allegedly manufactures and sells an infringing animal feeder; defendant’s motion to dismiss for lack of personal jurisdiction and improper venue: whether Federal Circuit or regional circuit law governs each challenge; sufficiency of contacts with Iowa involving appearance at a single tradeshow, publication in a national journal, and a single sale of the accused product in Iowa; propriety of venue based on contacts with the district, where district must be treated as a separate state; appropriateness of transfer pursuant to either § 1404 or § 1406, if venue is improper) 01/24/2013Mark W. Bennett
Rattray, Lambert, & Mathes v. Woodbury County, IA (Action pursuant to 42 U.S.C. § 1983 challenging county jail’s strip-searches of three misdemeanor arrestees: defendant county’s motions for reconsideration of a prior order granting summary judgment in one plaintiff’s favor on her claim and seeking summary judgment in the county’s favor on all of the plaintiffs’ claims in light of the Supreme Court’s decision in Florence v. Board of Chosen Freeholders of the County of Burlington, ___ U.S. ___, 132 S. Ct. 1510 (2012): whether Florence states a general rule that reasonable suspicion is not required to strip search detainees, subject to as-yet not fully defined exceptions, or only a very narrow exception to the requirement of reasonable suspicion in the case of detainees who will be admitted to “general population”; whether Florence is a change in the law warranting reconsideration and withdrawal of prior summary judgment in favor of one plaintiff on her “no reasonable suspicion” strip-search claim; whether Florence warrants summary judgment in favor of the county on all plaintiffs’ “no reasonable suspicion” and “manner” strip-search clalims) 12/10/2012Mark W. Bennett
Hagen v. Siouxland Obstetrics, et al -- Order granting St. Luke's Regional Medical Center's motion to quash a subpoena issued by defendants based on the peer review privilege because Hagen's professional competence is not at issue and the privilege extends to credentialing documents as held by the Iowa Court of Appeals in Day v. The Finley Hospital.12/07/2012Leonard T. Strand
Vails v. United Community Health Center, Inc., et al -- Order on defendants' and plaintiff's motions for partial summary judgment. Court granted defendants' motion in part dismissing the claims of wrongful termination in violation of public policy and promissory estoppel against UCHC and the claims of tortious interference with employment contract and fraud against the individualdefendants. Defendants' motion was denied as to their argument that plaintiff's alleged damages relating to the sale and maintenance of her home should be stricken. Plaintiff's motion for summary judgment on her breach of contract claim was denied.12/05/2012Leonard T. Strand
Syngenta Seeds, Inc. v. Bunge North America, Inc. (Action by seed producer based on defendant grain elevator company’s refusal to accept transgenic corn grown from the seed producer’s seeds, because it had not been approved for import in China, and placement of signs at the grain elevator company’s facilities stating its reasons for refusing to accept such corn; grain elevator’s motion to dismiss the seed producer’s claims for violation of the United States Warehouse Act (USWA), violation of Iowa warehousing laws, declaratory and injunctive relief, and breach of contract as a third-party beneficiary; grain elevator’s motion for partial summary on the seed producer’s Lanham Act false advertising claim)11/21/2012Mark W. Bennett
Van Stelton, et al v. Van Stelton, et al -- Order granting plaintiffs' motion for leave to file a second amended complaint and granting in part and denying in part plaintiffs' motion for extension of scheduling order as to Rule 26(f) meeting and plaintiffs' initial disclosure under FRCP 26(a) and renewed request for scheduling conference under FRCP 16(b). Court found that the motion to amend was timely and defendants did not demonstrate futility or other available grounds to deny the motion. The parties were directed to prepare a new proposed scheduling order and discovery plan and necessity of 16(b) conference would be determined at a later date.11/09/2012Leonard T. Strand
USA v. Barber -- Order denying Dominic Barber's motion for severance of trial. Defendant failed to show his Sixth Amendment right to confront witnesses would be violated by anticipated statements from a co-defendant. Defendant also did not demonstrate such unique circumstances that the jury would not be able to compartmentalize the evidence against him or that appropriate jury instructions would not be able to prevent any prejudicial "spillover."11/02/2012Leonard T. Strand
U.S. v. Angela Johnson (“Penalty retrial” of capital defendant after death and life sentences for five murders in furtherance of a continuing criminal enterprise (CCE murder), in violation of 21 U.S.C. § 848(e), a provision of the Anti-Drug Abuse Act (ADAA), were set aside on her § 2255 Motion: defendant’s first set of motions: (1) “omnibus motion” to dismiss the “special findings” from the second superseding indictment and to strike notice of intent to seek the death penalty; (2) motion to dismiss particular aggravating factors from the second superseding indictment, and to strike particular aggravating factors from the second notice of intent to seek the death penalty, and for other relief; (3) motion to compel discovery of evidence in support of United States Attorney’s reasons not to seek the death penalty, or, in the alternative, for in-camera review of the death penalty evaluation form; (4) motion to preclude capital sentencing hearing; and (5) motion for discovery to support a motion to strike the death penalty based upon the influence of arbitrary factors of race and gender of victims)10/25/2012Mark W. Bennett
Wells Enterprises, Inc. v. Olympic Ice Cream -- Order denying defendant's motion to stay case in favor of arbitration and denying plaintiff's motion to stay arbitration proceedings. Olympic, as a nonsignatory, was unable to bind Wells to arbitration based on its agreements with another company, Marina, through alternative estoppel. Wells was not entitled to stay the arbitration proceeding brought by Olympic and Marina because it had agreed to let the arbitrator determine arbitrability and Marina and its breach of contract claim were not a part of Wells' civil action.10/22/2012Leonard T. Strand
Hagen v. Siouxland Obstetrics, et al. -- Order denying motion to extend discovery deadline. Defendants failed to show good cause as required by Federal Rule of Civil Procedure 16(b) to modify the scheduling order due to lead counsel leaving law firm when three other attorneys from the same firm had entered appearances and did not specify what additional discovery was necessary.10/12/2012Leonard T. Strand
Fraserside IP LLC v. Gamma Entertainment, et al -- Order granting defendants' motion to quash subpoena and granting in part and denying in part plaintiff's motion to compel discovery and defendants' motion for protective order relating to the scope of permissible jurisdictional discovery concerning the defendants' websites and their contacts in Iowa. Defendants must generate Google Analytics reports formatted as HTML pages or as otherwise agreed that reveal the number of visits to defendants' websites from Iowa-based IP addresses. The websites are limited to only those owned by defendants nd not by their subsidiaries and the time period is limited to visits since January 1, 2009.09/28/2012Leonard T. Strand
Precision Press, Inc. v. MLP U.S.A., Inc. (Contract law; motion for partial summary judgment; in dispute over sale of commercial printer, determination of whether findings in an arbitration award should be given collateral estoppel effect, under Illinois law, on issues relating to the seller’s claim for monetary damages from the buyer.)08/24/2012Mark W. Bennett
Plymouth County v. Merscorp, Inc. (Putative class action by one Iowa county on behalf of all Iowa counties against corporations that operate a national registry that tracks ownership interests and servicing rights associated with residential mortgage loans, and against various member mortgage companies that use those services; defendants’ motion to dismiss: whether the county’s claims allege and depend upon a legal requirement to record mortgage assignments; whether Iowa law requires the recording of mortgage assignments; whether the county’s claim for “unjust enrichment” depends upon a legal requirement to record mortgage assignments)08/21/2012Mark W. Bennett
Vails v. United Community Health Center, Inc., et al. -- Order denying motion to extend discovery deadline. Plaintiff failed to show good cause as required by Federal Rule of Civil Procedure 16(b) to modify the scheduling order. In particular, she failed to demonstrate diligence in attempting to schedule the deposition she now seeks to take after the close of discovery.08/20/2012Leonard T. Strand
Fraserside LLC v. Sergej Letyagin d/b/a SunPorno.com, et al. (Copyright and trademark infringement, defendants’ motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2); analysis of whether plaintiff had made a prima facie showing that defendants, an individual residing in Gibraltar and a corporation headquartered in the Republic of Seychelles, had sufficient minimum contacts with Iowa to satisfy due process and permit the exercise of personal jurisdiction over them, and determination of whether plaintiff should be permitted limited jurisdictional discovery)08/07/2012Mark W. Bennett
Dorrah v. United States of America -- Order granting in part and denying in part the defendant's motion to conduct limited discovery while its motion to dismiss for lack of subject matter jursidiction and for failure to state a claim upon which relief may be granted is pending. The court had previously granted plaintiff leave to conduct limited discovery to gather facts that may be relevant to defendant's argument concerning subject matter jurisdiction. The court now determines that defendant, too, may conduct limited written discovery but may not depose plaintiff at this stage of the case.07/31/2012Leonard T. Strand
Todd Johnson v. Dollar General, et al (Action by former employee of retail store chain asserting state-law claims of retaliation for processing workers compensation claims and intentional infliction of emotional distress and a federal claim of violations of the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2612–2615, arising from the termination of his employment, and a claim pursuant to the Iowa Wage Payment Collection Law (IWPCL), Iowa Code Ch. 91A, to recover a quarterly bonus allegedly due him at the time his employment ended; defendants’ for summary judgment: FMLA “interference” and “retaliation” claims; individual liability for workers compensation retaliation and viability of the claim; and legality of eligibility requirements for quarterly bonuses under the IWPCL)07/30/2012Mark W. Bennett
French v. Cummins Filtration, Inc. -- Order denying plaintiff's motion to amend his complaint to add a new claim. The motion was filed long after the deadline for amendments to pleadings and after the defendant filed a motion for summary judgment on the only existing claim. The court found that the plaintiff failed to establish good cause for the untimely amendment as required by Federal Rule of Civil Procedure 16(b).07/19/2012Leonard T. Strand
Progressive Casualty Insurance Company v. FDIC, et al. -- Order denying defendant FDIC's motion for early discovery, finding that a request for discovery materials needed to defend an anticipated (but not yet filed) motion for summary judgment was not good cause for early discovery and defendant's concerns could adequately be addressed by Fed. R. Civ. P. 56(d).07/11/2012Leonard T. Strand
EAD Control Systems, LLC v. Besser Company, USA (Considering whether claim for unjust enrichment survives under Iowa law where express contract exists between the parties)06/19/2012Mark W. Bennett
Catipovic v. Mark Turley, Ronald Fagen, & Fagen, Inc. (A former Iowa resident seeks to recover damages for breach of contract and unjust enrichment from an Irish citizen, and damages for unjust enrichment from a Minnesota citizen and a Minnesota company, arising from the failure of an alleged partnership to develop ethanol production facilities in Eastern Europe; Irish defendant’s Rule 12(b)(2) motion to dismissfor lack of personal jurisdiction; Minnesota defendants’ motion to dismiss pursuant to Rule 12(b)(3) motion, for improper venue, and Rule 12(b)(6), for failure to state a claim on which relief can be granted.) 06/08/2012Mark W. Bennett
Barkley, et al v. Woodbury County (Persons arrested on serious misdemeanor charges assert individual and class claims that they were unconstitutionally strip-searched pursuant to an across-the-board jail policy without individualized determinations of probable cause or reasonable suspicion; defendants’ motion to dismiss: timeliness (or tolling) of individual and class claims, pursuant to the “American Pipe rule,” after denial of class certification in a predecessor case involving nearly identical claims of a nearly identical putative class; whether tolling ends with the district court’s decision denying certification or with the appellate court’s decision affirming the denial; whether the reasons for denial of class certification, which determine whether or not class claims are tolled, are those of the district court or the appellate court)05/23/2012Mark W. Bennett
Garvin & Murphy v. Siouxland Mental Health Services, Inc., et al. (Employment discrimination, suit by former employees against former employer alleging they were subjected to a sexually hostile work environment and retaliation under both the Title VII of the Civil Rights Act of 1964 and under Iowa Code 216; defendants’ motions for summary judgment; among the issues in dispute in this litigation was whether claims that arose four years before the filing of an administrative charge are timely; whether the "harassment" employees suffered was sufficiently severe and pervasive to be actionable; the applicability of Ellerth/Faragher affirmative defense; and, whether plaintiffs’ suffered material adverse employment actions after their complaint of harassment sufficient to sustain their retaliation claims.) 05/18/2012Mark W. Bennett
DeWalle v. Clarion- Goldfield Community School (Employment; former teacher’s aide’s action for race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Iowa Civil Rights Act, Iowa Code Ch. 216, and 42 U.S.C. § 1981; defendant’s motion for partial summary judgment, analysis of whether plaintiff’s claims under both Title VII and the ICRA are time barred; analysis of whether defendant’s decision not to renew her contract was motivated by racial discriminationDistrict)04/25/2012Mark W. Bennett
Arnzen v. Palmer, et al -- Report and Recommendation recommending granting of plaintiffs' motion for preliminary injunction, in light of Dataphase/Winter factors, where plaintiffs showed likelihood of success on the merits and likely irreparable harm absent an injunction. Furthermore, the court's consideration of the balance of equities and the public interest favored the issuance of a preliminary injunction.04/12/2012Paul A. Zoss
U.S. v. Angel & Javier Amaya (considering defendant’s motion to suppress GPS evidence based on United States v. Jones, 132 S. Ct. 945 (2012); analyzing whether good faith exception applies under Davis v. United States, 131 S. Ct. 2419 (2011); evaluating whether GPS evidence should be suppressed as a sanction for prosecution’s discovery violation). 04/10/2012Mark W. Bennett
Frasierside IP, LLC v. Gamma Entertainment, et al. (Copyright and trademark infringement, defendant’s motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) and to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3) and/or forum non conveniens; analysis of whether plaintiff had made a prima facie showing that defendants, a Canadian corporation and its Barbadian subsidiary, had sufficient minimum contacts with Iowa to satisfy due process and permit the exercise of personal jurisdiction over them; assessment of whether the Complaint must be dismissed for improper venue or under the doctrine of forum non conveniens; determination of whether plaintiff should be permitted limited jurisdictional discovery.)04/05/2012Mark W. Bennett
Farm-To-Consumer Legal Defense Fund v. Sebelius (Challenge by individuals and an advocacy group to the validity of Food and Drug Administration (FDA) regulations requiring “milk” in final package form for beverage use to be pasteurized or ultrapasteurized, see 21 C.F.R. § 131.110, and prohibiting the delivery into interstate commerce of any milk in final package form for direct human consumption unless the product has been pasteurized. See 21 C.F.R. § 1250.61: defendants’ renewed motion to dismiss and alternative motion for summary judgment: standing of plaintiffs to assert their challenges to the regulations in the absence of any enforcement actions against them by the FDA.)03/30/2012Mark W. Bennett
Aerostar, Inc. v. Haes Grain & Livestock, Inc., et al. : (Diversity action by manufacturer of wind systems against purchasers who paid an unauthorized dealer for, but never received, the manufacturer’s wind systems seeking declaratory judgment establishing the absence of any basis for liability of the manufacturer to the purchasers for payments that the purchasers made to the unauthorized dealer or for any damages or attorney’s fees; purchasers’ Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction based on insufficient amount in controversy: identification and application of standards for determining amount in controversy in declaratory judgment cases, effect of refusal of defendants to stipulate to an amount in controversy below the jurisdictional amount) 03/27/2012Mark W. Bennett
Scott v. Benson, et al, -- Report and Recommendation recommending denial of plaintiff's motion for preliminary injunction, in light of Dataphase/Winter factors, where plaintiff showed neither likelihood of succes on the merits nor likely irreparable harm absent an injunction. Furthermore, the court's consideration of the balance of equities and the public interest did not favor the issuance of a preliminary injunction.03/21/2012Paul A. Zoss
Harvey, et al v. AB Electrolux, et al. (putative collective action pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and a putative class action under Rule 23 of the Federal Rules of Civil Procedure pursuant to the Iowa Wage Payment Collection Law (IWPCL), Iowa Code Ch. 91A, alleging failure to pay hourly, non-exempt “production employees” or employees in “other similarly titled positions” at the defendants’ now-closed plant for time or overtime for donning protective equipment and preparing for work before their shifts began and for time spent and expenses for cleaning and maintaining some of their safety equipment outside of the work place; plaintiffs’ motion for conditional certification of collective action pursuant to 29 U.S.C. § 216(b), requiring defendant to provide contact information for putative collective action members, and approving notice to the putative collective action plaintiffs: standards for conditional certification of a collective action pursuant to § 216(b); appropriateness of ordering the defendant employer to produce telephone numbers of putative collective action members) 03/09/2012Mark W. Bennett
Fraserside LLC v. Igor Kovalchuk, et al. (Copyright and trademark infringement, defendant’s motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2); analysis of whether plaintiff had made a prima facie showing that defendant, a Russian citizen who resides in Russia, had sufficient minimum contacts with Iowa to satisfy due process and permit the exercise of personal jurisdiction over him. )03/05/2012Mark W. Bennett
Fraserside LLC v. Waterweg, et al. (Copyright and trademark infringement, defendant’s motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2); analysis of whether plaintiff had made a prima facie showing that defendant, a Dutch citizen who resides in the Phillippines, had sufficient minimum contacts with Iowa to satisfy due process and permit the exercise of personal jurisdiction over him.)02/24/2012Mark W. Bennett
Fraserside IP LLC v. Mark Faragalla, et al. (Copyright and trademark infringement, plaintiff’s motion for default judgment, analysis of whether plaintiff had properly pled claims for copyright infringement, and violations of the Lanham Act; assessment of plaintiff’s request for statutory damages under 17 U.S.C. § 504, actual damages for Lanham Act violations, injunctive relief, prejudgment interest, post judgment interest, and attorney’s fees.)02/14/2012Mark W. Bennett
Lampman, et al. v. Ternus, et al. (Motion for Summary Judgment, § 1983 case involving Fourteenth Amendment due process claim, plaintiffs, court reporters for Iowa District Associate Judges, alleged that they were entitled to due process, including notice and an opportunity to be heard, prior to employment termination or reduction in hours; cross motions for summary judgment; analysis of whether, assuming arguendo that Iowa law creates a property interest in plaintiffs’ employment, plaintiffs were not entitled to pre-termination notice and an opportunity to be heard under the “reorganization exception” to the general rule that requires due process prior to a public employee’s termination.)02/06/2012Mark W. Bennett
Middleton, Inc. v. Minnesota Mining and Manufacturing Co. (Summary judgment motion in the Southern District of Iowa; considering whether plaintiff in patent infringement case had constitutional standing as an exclusive licensee)01/31/2012Mark W. Bennett
Minten v. Weber (Action by former deputy sheriff against county sheriff for First Amendment retaliation, arising from discharge for offering to testify in a citizen’s First Amendment retaliation lawsuit; after summary judgment for the plaintiff, the matter was set for a jury trial on damages only; motions in limine: admissibility of the outcome of administrative proceedings on the former deputy sheriff’s claim for unemployment compensation and the outcome of the underlying citizen’s lawsuit; admissibility of evidence of other purported reasons for the former deputy sheriff’s termination)01/26/2012Mark W. Bennett
Farm-To-Consumer Legal Defense Fund, et al. v. Kathleen Sebelius, et al.: (Advocacy group’s action challenging Food and Drug Administration (FDA) regulations requiring “milk” in final package form for beverage use to be pasteurized or ultrapasteurized and prohibiting the delivery into interstate commerce of any milk in final package form for direct human consumption unless the product has been pasteurized; plaintiffs’ motion for preliminary injunction under the All Writs Act, 28 U.S.C. § 1651, to enjoin the FDA from continuing or commencing enforcement actions pursuant to the regulations against non-parties while this court considers the plaintiffs’ claims: scope of the court’s authority to enjoin other actions “in aid of” its jurisdiction; requirements for a preliminary injunction under the All Writs Act; balancing of pertinent factors)01/23/2012Mark W. Bennett
Jackson v. Green, et al -- Report and Recommendation recommending denying as moot pro se plaintiff's motion to change venue. Because case had been removed to federal court, plaintiff's request to change venue to different state court was moot.01/17/2012Paul A. Zoss
Fraserside v. Letyagin -- Order granting the plaintiff's motion for leave to serve the summons and complaint on the defendants by electronic mail pursuant to Fed. R. Civ. P. 4(f)(3) and 4(h)(2). The court found that this method of service in this case fulfilled the requirements of due process and that reasonable efforts by the plaintiff to serve the defendants had already been made.01/12/2012Paul A. Zoss
Sak & Leifer v. The City of Aurelia, Iowa: (Action by disabled individual pursuant to Title II of the ADA against city for failure to modify an ordinance barring pit bull dogs to accommodate his pit bull mix service animal; plaintiff’s motion for preliminary injunction: whether an ordinance barring pit bull dogs or enforcement of that ordinance is a service, program, or activity of the city or otherwise discriminatory on the basis of disability within the scope of Title II of the ADA; whether a breed restriction in an ordinance is impermissible under Title II of the ADA, when it bars a service dog of that breed; whether permitting a service animal of a different breed is a reasonable accommodation; whether deprivation of a particular service animal threatened irreparable harm to a disabled individual; whether the balance of harms favored an injunction; whether the public interest in accommodation of disabled persons under Title II of the ADA trumped the public interest in public health and safety embodied in the ordinance; and whether a bond should be required, and in what amount, in this case before issuance of a preliminary injunction) 12/28/2011Mark W. Bennett
Minten v. Weber (Plaintiff, a longtime county deputy sheriff, alleged that his firing resulted from his offering to testify in support of the plaintiff in a lawsuit against the sheriff; cross motions for summary judgment; analysis of whether plaintiff engaged in protected speech, i.e. speaking as a citizen on a matter of public concern; whether the sheriff took an adverse employment action against him; whether plaintiff’s speech was a motivating factor in the adverse action taken against him; and whether sheriff would have fired plaintiff regardless of whether he offered to testify )12/22/2011Mark W. Bennett
Blazek v. United States Cellular Corporation, et al. (Action by female retail wireless consultant for a cellular telephone company asserting claims of sexual harassment and retaliation in violation of Title VII and the ICRA; defendants’ Rule 12(b)(6) motion to dismiss: “pleadings” within the meaning of Rule 10(c) and Rule 12(b)(6); plausibility of the plaintiffs’ sexual harassment and retaliation claims and allegations of individual liability) 11/28/2011Mark W. Bennett
Campbell v. State of Iowa Third Judicial District Department of Corrections, et al. (Employment; former state agency employee’s action for sex and age discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Iowa Civil Rights Act, Iowa Code Ch. 216, as well as claims of retaliation in violation of the First and Fourteenth Amendments, and Iowa’s whistleblower statute, Iowa Code § 70A.28(2), and Iowa public policy; defendants’ motion for summary judgment, analysis of whether the summary judgment record generated genuine issues of material fact as to circumstantial evidence of age and sex discrimination under the McDonnell Douglas burden-shifting analysis; discussion of whether plaintiff was speaking as a citizen when she voiced her concerns about victim safety, so her speech was protected by the First Amendment; and, examination of whether state employee was entitled to qualified immunity from liability for damages on plaintiff’s First Amendment retaliation claim.)11/22/2011Mark W. Bennett
Lee v. Small & Toft, et al.11/22/2011Mark W. Bennett
Shannon v. Koehler (Motion in Lmine ruling in excessive force § 1983 case)10/19/2011Mark W. Bennett
Seaman v. Hacker Hauling -- Order granting defendants' motion for spoliation sanctions, finding that plaintiff's attorney had destroyed evidence with intent to suppress the truth, which prejudiced defendants. Court struck testimony and report of plaintiff's expert from evidence at trial, plaintiff could designate another expert to testify on plaintiff's behalf.10/18/2011Paul A. Zoss
United States v. Russell T. Hawley & Hawley Insurance, Inc. (Motion in Limine Ruling - False Claims Act)10/13/2011Mark W. Bennett
Truckenmiller v. Burgess Health Center & Francis Tramp (action by a human resources director purportedly terminated for poor performance after voicing concerns about differences in titles and pay between male and female members of the senior leadership team at the defendant hospital; motion for summary judgment by the defendant hospital and the defendant CEO: whether the plaintiff’s comments satisfied the “complaint” requirements for protection from retaliation under the Equal Pay Act provisions of the FLSA, 29 U.S.C. § 215(a)(3), as recently clarified in Kasten v. Saint-Gobain Performance Plastics Corp., ___ U.S. ___, 131 S. Ct. 1325 (2011), whether there was sufficient evidence to generate a genuine issues of material fact on a “causal connection” between the comments and the plaintiff’s discharge two days later and on whether the defendants’ proffered legitimate reason for the discharge, poor performance, was a pretext for retaliation; whether the plaintiff’s claim of wrongful discharge in violation of the Iowa public policy against unequal pay on the basis of sex articulated in Iowa Code § 216.6 was preempted by the Iowa Civil Rights Act (ICRA))09/30/2011Mark W. Bennett
Syngenta Seeds, Inc. v. Bunge North America, Inc. (Action by plaintiff seed producer based on defendant grain elevator company’s refusal to accept transgenic corn grown from the seed producer’s seeds, because it had not been approved for import in China, and placement of signs at the grain elevator company’s facilities stating its reasons for refusing to accept such corn; seed producer’s motion for preliminary injunction: clarification of standards for a preliminary injunction in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008); balancing of the seed producer’s likelihood of success on its claims of violations of the United States Warehouse Act (USWA), 7 U.S.C. § 241 et seq., including whether there is a private right of action for violations of that Act, comparable provisions of Iowa statutory and common-law warehousing obligations, and false advertising pursuant to § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B); the seed producer’s showing of irreparable harm based on damage to reputation and goodwill; the balance of equities in light of the determination on the seed producer’s likelihood of success and the costs to the grain elevator company of accepting the transgenic corn at issue; and the public interest)09/26/2011Mark W. Bennett
Baldwin v. U.S. (Civil tax refund case in the District for the Northern Mariana Islands; plaintiff’s motion to reconsider an order striking his jury demands; considering appropriate standard of review for reconsideration of the interlocutory order of another district judge; analyzing whether plaintiff’s first jury demand was proper under Federal Rule of Civil Procedure 38(b) and, in the alternative, whether plaintiff’s second jury demand was permissible under Federal Rule of Civil Procedure 6(b) as a late demand due to excusable neglect)09/26/2011Mark W. Bennett
McFarland v. McFarland, et al. (Diversity action for slander, libel, and defamation; motion to strike and motions for summary judgment; analysis under Iowa law of whether defendants could establish the required elements for invoking issue preclusion based on Iowa divorce case, and whether defendants’ statements about plaintiff were absolutely privileged under Iowa law. 09/20/2011Mark W. Bennett
Sizemoore v. Producers Cooperative Company, et al. (diversity action arising from an automobile accident, in which the plaintiff alleges that she is now a citizen of Florida; defendant’s motion to dismiss or stay the federal action under Colorado River, because the plaintiff filed an identical action in state court two days later that differs only in that the plaintiff alleged that she was a citizen of Iowa at he time of the accident: whether dismissal or stay of this action “at law” is permissible under Colorado River; application of the pertinent factors for Colorado River)09/19/2011Mark W. Bennett
Shannon v. Koehler (Motion in Limine ruling for excessive force § 1983 case with proposed limiting instruction)09/16/2011Mark W. Bennett
Timmerman, et al v. Eich, et al : (action by debtors and case trustee against former bankruptcy attorneys for malpractice and breach of warranty; bankruptcy attorneys’ motion for summary judgment: standing of the trustee to assert malpractice claims, involving the effect of 11 U.S.C. § 1207 on definition of property of the estate; subject matter jurisdiction over bankruptcy malpractice claims pursuant to 28 U.S.C. § 1334; applicability of issue preclusion and judicial estoppel when prior judgment is by consent; applicability of doctrine of in pari delicto; availability of emotional distress damages for bankruptcy malpractice; availability of a breach of warranty claim with a malpractice claim; availability of punitive damages) 09/12/2011Mark W. Bennett
Estate of McFarlin, et al v. City of Storm Lake, et al (action arising from the death of a minor child brought by the child’s mother on behalf of the child’s estate and on behalf of herself and her surviving child for bystander emotional distress and loss of consortium; estranged father’s motion to join as necessary or “required” party pursuant to Rule 19, construed as a motion to intervene pursuant to Rule 24, and defendants’ joinder in Rule 19 motion seeking dismissal: feasibility of joinder of a party who would destroy diversity jurisdiction; whether missing party was “necessary”)09/06/2011Mark W. Bennett
U.S. v. Amaya (Motion to suppres, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress and denying defendant’s motion to suppress in which he seeks to suppress evidence seized during a search of his residence conducted pursuant to a search warrant, during a consent search of his parents’ trailer home, and during a search of his vehicle, finding: the search warrant affidavit, when considered in a commonsense, practical way, would lead a prudent person to believe that there was a fair probability that drugs or evidence of drug sales would be found in defendant’s residence. Accordingly, probable cause existed to issue the search warrant. In addition, concluding that even if there was no probable cause to issue the search warrant, the Leon good-faith exception applies because a reasonably well-trained officer would not have known that the search was illegal despite the issuing magistrate’s authorization. Finally, considering the totality of the information provided to the state magistrate, the search warrant for defendant’s residence was not based on stale information. 09/06/2011Mark W. Bennett
Nam v. Quichocho & Atalig (Saipan real estate contract dispute between a Saipan lawyer lessor (and another co-owner) and a Korean businessman lessee arising from the lessors’ attempt to terminate the lessee’s 55-year lease, on which the lessee had made full payment up front, after only two years; cross-motions for summary judgment on the lessee’s claim for breach of fiduciary duty against the attorney lessor, premised on the lessee’s belief that he had an attorney-client relationship with the attorney lessor regarding the lease transaction, and on the lessee’s claims against both lessors for breach of contract and restitution; lessee’s motion for summary judgment on the lessors’ counterclaims for slander of title, breach of contract, express contractual indemnity, waste, and quiet title; and lessors’ motion to strike one declaration in support of the lessee’s motion for summary judgment)09/01/2011Mark W. Bennett
Nationwide Agribusiness Ins. Co. v. SMA Elevator Construction, Inc., et al.08/29/2011Mark W. Bennett
EEOC v. Asia Pacific Hotels, Inc. (action by EEOC against hotel owner and operator and hotel holding company on behalf of a singer in a Filipino rock band for sexual harassment: defendants’ motion for summary judgment on applicability of the Ellerth/Faragher affirmative defense)08/26/2011Mark W. Bennett
United States v. Russell Hawley & Hawley Insurance, Inc. (This civil action involves a Motion For Partial Summary Judgment filed on the part of defendants Russell T. Hawley and Hawley Insurance, Inc. (collectively the “defendants” or “Hawley”). Hawley alleges that amendments to the False Claims Act (“FCA”), 31 U.S.C. § 3729, as set forth in the Fraud Enforcement and Recovery Act of 2009 (“FERA”), Pub. L. No. 111-21, § 4(f)(1), 123 Stat. 1617, 1625 (2009), do not apply to the present matter and, thus, he is entitled to judgment as a matter of law. Hawley further argues that even if the amendments do apply, such retroactive application would violate the Ex Post Facto clause and Hawley’s right to Due Process under the United States Constitution. The court granted Hawley’s Motion as to his claim that the FERA amendments to the FCA do not apply, because Hawley did not have a “claim,” or a demand for money to the NCCI pending on or after June 7, 2008. The court also granted Hawley’s Motion as to his claim that retroactive application of the FERA amendments to the FCA would result in violation of the Ex Post Facto clause of the United States Constitution, because the FCA’s statutory scheme is punitive in nature, and, thus, retroactive application of the amendments to the FCA would impose punishment for acts that were not punishable prior to enactment of the amendments.)08/01/2011Mark W. Bennett
Guinan, et al v. Boehringer Ingelheim Vetmedica, Inc. (Employment law, motion for summary judgment and motion to strike; suit by employees against employer alleging that defendant’s failure to compensate donning and doffing time violates the Iowa Wage Payment and Collections Law, Iowa Code § 91A.1 et seq.; analysis of whether donning and doffing workers’ personal protective equipment is “changing clothes” under the Fair Labor Standards Act, 29 U.S.C. § 203(o), the statute plaintiffs rely upon to establish a violation of the Iowa Wage Payment and Collections Law. )07/25/2011Mark W. Bennett
In re Meta Financial Group, Inc., Securities Litigation(Putative class action by investors against a bank holding company and bank officers for securities fraud arising from failure to disclose an investigation by the Office of Thrift Supervision (OTS) of a short-term credit program using prepaid debit cards: defendants’ motion to dismiss: whether plaintiffs adequately pleaded a § 10(b)/Rule 10b-5 claim and, in particular, the alleged misstatements and scienter, with the particularity required by the Private Securities Litigation Reform Act (PSLRA), 15 U.S.C. § 78u-4(b); whether the plaintiffs adequately pleaded a § 20 “control person” liability claim)07/18/2011Mark W. Bennett
Fraserside IP LLC v. Youngtek Solutions Limited (Copyright and trademark infringement, defendant’s motion to set aside default, analysis of whether service or process in Cyprus was satisfied under the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters where plaintiff used private process server and the summons and complaint, with no Greek translation, were served on defendant’s agent for process in Cyprus, analysis of whether the default should be set aside for good cause.)07/12/2011Mark W. Bennett
Jones, et al v. Dolgencorp, Inc. & Dollar General Partners (In a collective action by fourteen plaintiffs, the defendants, Dolgencorp, Inc. and Dollar General Partners, filed a Motion to Strike and a Motion for Summary Judgment, solely against plaintiff Pamm Joyner-Azbill. Plaintiff claims defendants have a uniform policy and practice of consistently requiring managerial staff to work overtime without compensation, in violation of the Fair Labor Standards Act. Plaintiff also claims the vast majority of work hours are spent performing non-managerial job duties. The court denied the defendants’ Motion to Strike, because the motion was improper under Rule 12(f) of the Federal Rules of Civil Procedure. Furthermore, the court denied the defendants’ Motion for Summary Judgment, because a reasonable jury could find that the plaintiff’s primary duty was manual labor. )06/08/2011Mark W. Bennett
Strom v. Holiday Companies, et al. (Employment discrimination, suit by former employee against former employer alleging sex discrimination under both the Title VII of the Civil Rights Act of 1964 and under Iowa Code 216; defendant’s motion for summary judgment; among the issues in dispute in this litigation was whether the "harassment" employee suffered was because of employee’s sex; whether the "harassment" in question was sufficiently severe and pervasive to be actionable, and whether a reasonable person would find the working conditions at issue so intolerable that she was compelled to remain away from work while awaiting the results of the investigation)06/06/2011Mark W. Bennett
Magnussen v. Casey's Marketing Company & Van Seggern (convenience store manager’s claims of disparate treatment disability discrimination, failure to accommodate, and retaliation pursuant to the ADA (pre-ADAAA) and ICRA; defendants’ motion for summary judgment: whether the plaintiff was “actually disabled,” “regarded as disabled,” or “had a record of disability,” rather than a temporary limitation, because of a “flare up” of a back condition; whether, if “disabled,” she was “qualified” for her position based on standing restrictions; whether the plaintiff was terminated from her position for discriminatory or retaliatory reasons rather than for leaving shift vacancies uncovered; and whether, if “actually disabled,” the employer failed to accommodate that disability and whether the employer or the plaintiff is responsible for the breakdown of the “interactive process” to determine reasonable accommodation)05/26/2011Mark W. Bennett
Cornerstone Consultants, Inc. & Qualy v. Production Input Solutions,LLC (action by an independent contractor arising from a company’s access to the contractor’s private e-mails, to and from separate e-mail accounts, stored on the company’s e-mail server with e-mails to and from the independent contractor’s account on the company’s e-mail service; defendants’ motion to dismiss a claim pursuant to 18 U.S.C. § 2701, a provision of the Stored Communications Act: whether, in light of the interplay between § 2701(a), creating a cause of action, and § 2701(c), excepting access authorized by certain entities from liability, the plaintiffs adequately pleaded that the company’s access to the company’s e-mail server, where the independent contractor’s e-mails were stored, was unauthorized or in excess of any authorization by the entity that “provided” the pertinent “electronic communications service”; whether state-law claims against the moving defendants should be dismissed, pursuant to 28 U.S.C. § 1367(c)(3), upon dismissal of federal claims against them, where a federal claim remained pending against a non-moving defendant)05/19/2011Mark W. Bennett
Smith v. Quality Refrigerated Services, Inc. -- Order granting defendant's motion to dismiss plaintiff's pro se complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). Court found that, even after affording pro se plaintiff a hearing to show facts that would allow his claims to survive dismissal, plaintiff's claims lacked facial plausibility to withstand dismissal without prejudice.05/10/2011Paul A. Zoss
Luken v. Edwards (Case brought under Title III of the Omnibus Crime and Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2520 (“Title III” or “the Act”) for intercepted telephone calls between plaintiff and other individuals, including his attorney, with pendent claims for invasion of attorney-client privilege, invasion of privacy, and under Iowa’s wiretapping act, Iowa Code § 808B.8; motion to dismiss for failure to state a claim; concluding that Amended Complaint’s factual allegations that plausibly stated claims under Title III, Iowa Code § 808B.8, and invasion of privacy, but dismissing invasion of attorney-client privilege claim because it is not recognized under Iowa law.05/03/2011Mark W. Bennett
Vis v. American Family Assurance Company of Columbus (insurance agent’s action against insurance company for breach of contract for failing to pay renewal commissions after termination: insurance company’s motion to compel arbitration: validity of the arbitration agreement as part of an alleged contract of adhesion and as unconscionable, because of disparity of bargaining power and lack of mutuality, where the arbitration clause excepted certain actions by the insurance company)04/21/2011Mark W. Bennett
Woodward v. O'Brien, et al. (Motion for Summary Judgment, prisoner § 1983 case involving Eighth Amendment claim of deliberate indifference to his serious medical needs, order accepting Magistrate Judge’s report and recommendation regarding defendants’ motion for summary judgment, granting summary judgment because plaintiff is unable to show defendants ignored an acute or escalating situation, or that the defendants’ delays in providing him with treatment adversely affected the prognosis or ultimate outcome of his eye condition. )04/20/2011Mark W. Bennett
Siouxland Community Blood Bank v. Holcomb Freightliner, Inc. & Cummins Engine Company, Inc.This action was originally filed in state court. It was removed to federal court alleging diversity jurisdiction. The plaintiff has moved to remand it back to state court — asserting the Petition seeks less than $75,000 in damages — the minimum required for federal jurisdiction. The court concludes that the defendants have not established that, at the time of removal, the amount in controversy exceeded $75,000. 04/13/2011Mark W. Bennett
Daughetee v. CHR Hansen, Inc. Diversity tort case, motions to dismiss for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3), analysis of whether the court must consider dismissed defendant in accessing whether all defendants reside in Iowa turns on whether venue should be evaluated, when complaint filed or on the date the court considers motions to dismiss, court is bound to follow the controlling law in the Eighth Circuit, even if it reflects a minority view on the issue, which holds that a court should reassess venue on the basis of the circumstances as they exist at the time motion to dismiss is considered as opposed to the state of affairs when the complaint was first filed, court found that venue of case proper in the Northern District of Iowa under 28 U.S.C. § 1391(a)(1) because it is “a judicial district where any defendant resides, if all defendants reside in the same State.”) 03/25/2011Mark W. Bennett
Jason & Jennifer Tucker v. Quality Egg, LLC (See Holt)03/25/2011Mark W. Bennett
Dzinovic v. Quality Egg, LLC (See Holt)03/25/2011Mark W. Bennett
Bussey v. Quality Egg, LLC (See Holt)03/25/2011Mark W. Bennett
Daniel & Libby Sands v. Quality Egg, LLC (See Holt)03/25/2011Mark W. Bennett
Lewis v. Quality Egg, LLC (See Holt)03/25/2011Mark W. Bennett
Holt v. Quality Egg. LLC (Six actions, consolidated for discovery, arising out of an outbreak of Salmonella enteritidis in the summer of 2010 that was allegedly tied to the defendant’s eggs and egg products: defendant’s Rule 12(b)(6) motions to dismiss punitive damages claims and Rule 12(f) motions to strike certain allegations in support of punitive damages claims; whether underlying claims must have a “willfulness” element to support an award of punitive damages; whether the regulations and acts underlying a negligence per se claim must permit punitive damages; and whether certain punitive damages allegations concerning past misconduct are related to the underlying causes of action)03/25/2011Mark W. Bennett
State of Arizona & Aguilar v. ASARCO LLC (action by Arizona state civil rights agency and an individual plaintiff, a laborer at a mine operated by the defendant, alleged claims of hostile work environment sexual harassment and retaliation for complaining about sexual harassment in violation of state and federal law; the individual plaintiff’s motion in limine: whether the defendant’s psychiatric expert exceeded the scope of a permissible examination of the plaintiff, the admissibility of the expert’s testimony and report, and the admissibility of evidence of the plaintiff’s prior employment; the defendant’s motion in limine: admissibility of evidence of harassment of the alleged harasser, harassment of the plaintiff by another employee, photographs of allegedly pornographic graffiti, and the administrative agency’s “probable cause” determination)03/22/2011Mark W. Bennett
In Re Iowa Ready-Mix Concrete Antitrust Litigation (Class-action lawsuit by purchasers of ready-mix concrete against producers and sellers of ready-mix concrete and certain of their officers, directors, owners, and employees who have pleaded guilty to criminal antitrust offenses, alleging an antitrust conspiracy to suppress and eliminate competition by fixing the price of ready-mix concrete in the “Iowa region”: defendants’ motions to dismiss: failure to plead factual support for allegations of an antitrust conspiracy; whether or not to grant leave to amend post-dismissal)03/08/2011Mark W. Bennett
Baker v. Catlin Specialty Insurance Co. (In this case, the court was asked to decide whether a pickup truck used to obtain fuel for refueling equipment on a salvage yard, constituted an “auto” or “mobile equipment” for purposes of determining liability for bodily injury or property damage under a commercial general liability insurance policy. The court concluded no genuine issues of material fact existed because the pickup truck was not insured for either bodily injury or property damage caused by negligence of its driver under the terms of the commercial general liability policy.)02/15/2011Mark W. Bennett
Johnson v. Dollar General, et al. (The plaintiff, Todd Johnson, filed an Amended Complaint against defendants, Dollar General, Dolgencorp, L.L.C., and Michael Williams. Johnson alleged that the defendants terminated his employment in retaliation for him missing work because of an illness and therefore in violation of the Family Medical Leave Act of 1993. The court held that Johnson’s claims should be dismissed for failure to state a claim upon which relief can be granted.)02/15/2011Mark W. Bennett
Salton v. Polyock (Diversity Tort Action, motion to remand, review of the principles applicable to a motion to remand and analysis of whether removing party is able prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount.)02/10/2011Mark W. Bennett
Moore v. Lehigh Cement Company (longtime employee with epilepsy sued former employer for disability discrimination under the ADA and ICRA; defendant’s motion for summary judgment: whether the ADA or the ADAAA applied to the plaintiff’s claims; whether the plaintiff was actually disabled or perceived to be disabled based on limitations on the number of hours he could work per week or a combination of limitations; whether the plaintiff’s retaliation claim could proceed in light of the protracted time between protected activity and adverse action, his supervisor’s lack of knowledge of the plaintiff’s prior discrimination charge at the time of adverse action, but human resources manager’s knowledge of the prior charge, and employer’s assertion that the plaintiff was fired for a plant rules violation)02/04/2011Mark W. Bennett
Kim v. Quichocho, et al: (Action involving fraud and RICO claims based on allegations that the defendants, including the plaintiff’s attorney, defrauded the plaintiff of two of her businesses; defendants’ second motion to dismiss RICO claims and motion to dismiss common-law fraud claim: adequacy of pleading of predicate acts of wire fraud and money laundering, a patter of racketeering activity, and conduct or acquisition of control of a RICO enterprise; pleading of an agreement, for purposes of RICO conspiracy claim, including whether an intracorporate conspiracy suffices; pleading of fraud with the particularity required by Rule 9(b) and whether fraud was based on anything other than representations about future events)01/24/2011Mark W. Bennett
Aquino v. Delores San Nicolas, et al. (an alien convicted of drug offenses asserted claims pursuant to 42 U.S.C. § 1983 and CNMI law arising from her detention pending deportation, without review by a judge, for 88 days after the end of her sentence; defendants’ second round of motions to dismiss the plaintiff’s recast claims of violation of due process and intentional infliction of emotional distress, based on failure to deport the plaintiff “immediately” upon the completion of her sentence and continuing her detention without review by a judge, and new claims of breach of contract, based on alleged violation of a plea agreement requiring “immediate” deportation, and tortious breach of duty, based on breach of a duty to deport the plaintiff “immediately” upon the end of her sentence allegedly created by the judgment and commitment order; whether dismissal of claims this time should be with prejudice)01/05/2011Mark W. Bennett
McGraw, et al. v. Wachovia Securities, LLC, et al. (Action by bilked investors seeking to recover from a securities broker’s employers sums that they gave the broker (now deceased) to invest in fictitious “special investments”; cross-motions for summary judgment: timeliness of two plaintiffs’ claims; theories of liability for remaining claims; summary judgment on direct liability claims, including the necessity of expert testimony on the existence and breach of relevant standards of care, existence of a duty to non-customers, and the existence and breach of the duty to monitor and fiduciary duty; summary judgment on vicarious liability claims, including the broker’s apparent authority from the brokerage firms, and the existence and breach of the broker’s underlying duty as to representations, duty as to suitability of investments, and fiduciary duty) 12/22/2010Mark W. Bennett
McGraw, et al. v. Wachovia Securities, LLC, et al. (Action by bilked investors seeking to recover from a securities broker’s employers sums that they gave the broker (now deceased) to invest in fictitious “special investments”; sua sponte order to clarify whether the plaintiffs’ remaining claims of “negligent supervision,” “negligent misrepresentation,” “negligence—suitability” [of investments],” and “breach of fiduciary duty” were based on direct or vicarious liability theories) 12/08/2010Mark W. Bennett
Rattray, et al. v. Woodbury County, Ia, et al : (Action pursuant to 42 U.S.C. § 1983 challenging county jail’s strip-searches of three misdemeanor arrestees; plaintiffs’ motion for partial summary judgment: constitutionality of a “blanket” strip-search policy, no longer in force, and conduct pursuant to it, including whether resolution of those issues is required where claims for declaratory judgment were withdrawn and the determinations are not necessary to resolution of the claims and would involve unnecessary determination of constitutional issues; qualified immunity, including proper identification of the right that must be clearly established and breached to overcome qualified immunity; and severance of trials, where one plaintiff must only prove damages, but the other plaintiffs must prove liability and damages) 12/01/2010Mark W. Bennett
Hussaini v. Gelita USA, Inc. 9Labor/Employment discrimination, suit by former employee against former employer alleging Iowa common law claims for wrongful discharge in violation of public policy, promissory estoppel, and fraudulent misrepresentation; analysis of whether plaintiff’s state law claims were preempted by the National Labor Relations Act, 29 U.S.C. § 151 et seq.11/04/2010Mark W. Bennett
USA v. Martinez-Rodriguez. Report and Recommendation on motion to suppress evidence. Defendant, who was visibly impaired by alcohol or other drugs at time of questioning, failed to show his will was overborne, and court found his waiver of Miranda rights was knowing, voluntary, and intelligent11/01/2010Paul A. Zoss
U.S. v. Mayer (criminal prosecution on charges of sexual exploitation of children in violation of 18 U.S.C. §§ 2251(a) and 2251(e); receiving child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2); prosecution’s Rule 104 motion to admit evidence of factual stipulations in a plea agreement on which the defendant failed to follow through, pursuant to a waiver of the rights protected by Rule 410 of the Federal Rules of Evidence if the defendant breached the plea agreement)10/19/2010Mark W. Bennett
U.S. v. Kevin Mcmanaman (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress and denying defendant’s motion to suppress in which he seeks to suppress statements made after his arrest as well as a evidence recovered from his home, finding: that the rule of collateral estoppel applied in this case, and concluded that defendant was estopped by prior ruling from relitigating the issue of probable cause to search his house for drugs and drug paraphernalia; that based on the evidence the law enforcement officers had at the time of the defendant’s arrest, a search warrant could have been issued which would have allowed the police to search for guns and ammunition, drugs, and drug paraphernalia, and the ensuing search would have led inevitably to discovery of incriminating photographs which appear to depict underage females; that the defendant’s Sixth Amendment right to counsel for the current charges had not attached at the time of his questioning in 2008, and, therefore, the Sixth Amendment right to counsel did not bar the officers from questioning defendant in regard to the current offenses; that the non-testimonial evidence obtained as a result of defendant’s incriminating statements made in violation of Miranda are admissible because the defendant’s statements were made voluntarily, and were not the result of coercion; and that defendant’s wife consented to a search of a locked room and a locked closet in the house they shared and that defendant’s wife had either actual or apparent authority to consent to a search of the entire residence. )10/18/2010Mark W. Bennett
Dong & Lowery v. Royal Crown Insurance Corp. : (Action arising from the plaintiff insureds’ claims that their insurer failed to defend them against third-party claims arising from a motor vehicle accident in which insurer has also filed a counterclaim for indemnity and contribution against the insured who was driving the insured vehicle at the time of the accident, because he was intoxicated; motions for summary judgment by both the insurer and the insureds: statutory preemption of common-law claims; improper assignment of statutory claim; insurer’s duty to defend notwithstanding an DUI Exclusion Clause in the policy; and authorizations for and bars to the counterclaim to recover from the intoxicated insured; court’s summary judgment sua sponte on private action pursuant to statute barred by a decision of the Commonwealth Supreme Court after this case was filed) 10/18/2010Mark W. Bennett
Scadden v. Northwest Iowa Hospital Corp. -- Order denying plaintiffs' motion to reinstate wrongful death claim on behalf of unborn child. At the eleventh hour, after expiration of the deadline to amend pleadings and only two months before trial, plaintiffs moved to reinstate wrongful death claim for the death of their unborn child, arguing Nebraska law, rather than Iowa law, should control the issue. Court found motion was untimely, but also analyzed the choice-of-law issues raised by the plaintiffs, finding that in any event, Iowa law controlled.09/22/2010Paul A. Zoss
Scadden v. Northwest Iowa Hosp. Corp. -- Order denying hospital's motion for summary judgment on technical grounds. Hospital failed to comply with Local Rules in connection with it's "statement of undisputed facts." 09/13/2010Paul A. Zoss
Farm-To-Consumer Legal Defense Fund, et al v. Kathleen Sebelius, Secretary of Department of Health and Human Services (Advocacy group’s action challenging Food and Drug Administration (FDA) regulations requiring “milk” in final package form for beverage use to be pasteurized or ultrapasteurized and prohibiting the delivery into interstate commerce of any milk in final package form for direct human consumption unless the product has been pasteurized; defendants’ motion to dismiss: standing, ripeness, foreclosure by Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950), and administrative exhaustion requirements) 08/18/2010Mark W. Bennett
Farm-To-Consumer-Legal Defense Fund, et al v. Kathleen Sebelius, Secretary of Health and Human Services, et al (Advocacy group’s action challenging Food and Drug Administration (FDA) regulations requiring “milk” in final package form for beverage use to be pasteurized or ultrapasteurized and prohibiting the delivery into interstate commerce of any milk in final package form for direct human consumption unless the product has been pasteurized; defendants’ motion to dismiss: standing, ripeness, foreclosure by Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950), and administrative exhaustion requirements)08/18/2010Mark W. Bennett
Aventure Communications Technology LLC v. Iowa Utilities Board, et al (Action by a competitive local exchange carrier (CLEC) for a preliminary injunction enjoining action to enforce an order of the Iowa Utilities Board (IUB) concerning “high volume access service” (HVAS), including conference bridges, chat lines, help desks, and other services based upon a high volume of incoming and outgoing calls, and motions by interexchange carriers (IXCs) to intervene: application of Rule 24(a)(2) standards to motions to intervene as of right based on participation in administrative rule-making proceedings and application of the Dataphase factors to the CLEC’s motion for preliminary injunction.)08/17/2010Mark W. Bennett
The Prudential Insurance Co. of America, et al v. Inlay (Action by insurance company against former agent seeking temporary restraining order pending FINRA arbitration action to address claims of breach of confidentiality and non-solicitation agreements, misappropriate of trade secrets, breach of fiduciary duty, breach of duty of loyalty, intentional and negligent interference with prospective economic advantages, and conversion; whether FINRA Arbitration Rule 13804 permitting a party to arbitration to seek a “temporary injunctive order” in court permits the court to enter a “preliminary injunction” or only a “temporary restraining order,” whether the Dataphase factors warranted a temporary injunction on the former agent’s conduct)07/28/2010Mark W. Bennett
McFarland v. McFarland (Diversity action for slander, libel, defamation and tortuous interference with prospective business relations; motion for summary judgment; determination of whether the court should delay consideration of Motion for Summary Judgment, pursuant to Federal Rule of Civil Procedure 56(f), until plaintiff has completed discovery in the case; analysis under Iowa law of whether witness, who provided affidavit as part of a divorce proceeding, enjoys an absolute privilege for those statements made in the course of the dissolution litigation.)07/26/2010Mark W. Bennett
McFarland v. McFarland, et al. (Diversity action for slander, libel, defamation and tortuous interference with prospective business relations; motion for summary judgment; analysis under Iowa law of whether an expert, who offered her opinion regarding the need for structured, supervised child visitation as part of a divorce proceeding, enjoys an absolute privilege for those statements made in the course of the dissolution litigation.)06/04/2010Mark W. Bennett
USA v. Hulstein -- Order granting defendant's motion to take trial deposition by telephone.06/03/2010Paul A. Zoss
Dorr v. Weber (Plaintiffs, on behalf of themselves and a class of similarly-situated persons, challenge denials of their applications for nonprofessional permits to carry weapons on the ground that the denials violated their constitutional rights to bear arms, to due process, and to equal protection, in violation of the Second and Fourteenth Amendments; cross motions for summary judgment; analysis of whether defendant sheriff’s is entitled to qualified immunity on plaintiffs’ Second Amendment claims, analysis of whether plaintiffs whether plaintiffs were similarly situated to persons who allegedly received favorable treatment, analysis of whether plaintiffs could a causal connection between defendants’ retaliatory animus and the denial of their gun permits sufficient to establish their First Amendment retaliation claims, examination of whether plaintiff had a property right to gun permit when local authorities have discretion to deny such a permit)05/18/2010Mark W. Bennett
U.S. v. Kent Robinson (criminal prosecution on charges of fraudulent uttering of a private security, with making and uttering a fictitious obligation, and mail fraud; prosecution’s motions to supplement the record regarding the defendant’s detention after the court expressed serious concerns about the prosecution’s failure to seek a detention hearing or written detention order during a hearing on the pro se defendant’s motion to revoke the detention order) 05/11/2010Mark W. Bennett
Collins v. Center for Siouxland -- Order denying defendant's motion for separate trials in case where plaintiffs, who consecutively held same job, both allege wrongful discharge for violation of whistle blower statute.05/07/2010Paul A. Zoss
Bernadita Aldan & Miguel Aldan v. World Corporation (Slip-and-fall action under CNMI law on diversity jurisdiction: plaintiffs’ motion to amend complaint to add a prayer for punitive damages, pursuant to Rules 15 and 16, after the deadline for amendments in the scheduling order: diligence of the plaintiffs in attempting to discover the new information on which the proposed amendment was based and in filing the motion to amend after actually discovering that new information, prejudice to the defendant of reopening discovery, and futility of the amendment as failing to put the defendant on notice of the claim for punitive damages)04/30/2010Mark W. Bennett
SmithCo Manufacturing, Inc. v. Haldex Brake Products Corporation : (Action arising from the substitution by the defendant of a different air control valve for the one that the defendant had previously supplied, which the plaintiff uses in the air suspension system of the side-dump trailers that it manufactures; defendant’s motion for summary judgment: after voluntary dismissal of the plaintiff’s negligence claim, and denial of leave to amend to assert express warranty and promissory estoppel claims, the only question was whether the defendant was entitled to summary judgment on the plaintiff’s breach of implied warranty claim on the ground that the plaintiff never informed the defendant, and the defendant had no reason to know, of the particular purpose for which the plaintiff intended to use the valve) 04/28/2010Mark W. Bennett
U.S. v. Norita & Sablan (criminal prosecution on charges of trafficking in methamphetamine against both defendants and a gun charge against one defendant heard as a visiting judge to the District of the Northern Mariana Islands (Saipan); one defendant’s motion to reconsider denial of prosecution’s motion to dismiss indictment)04/06/2010Mark W. Bennett
Smithco Manufacturing, Inc. v. Haldex Brake Products, Corp. -- Order denying motion for leave to amend Complaint. Court found plaintiff failed to show good cause for the delay in seeking to amend its Complaint as required by Fed. R. Civ. P. 16.04/05/2010Paul A. Zoss
U.S. v. Norita & Sablan (criminal prosecution on charges of trafficking in methamphetamine against both defendants and a gun charge against one defendant heard as a visiting judge to the District of the Northern Mariana Islands (Saipan); prosecution’s motion to dismiss indictment rather than produce DEA manuals as ordered as a sanction for failure to disclose sections of the manuals: court’s determination that the motion to dismiss was moot upon reconsideration of the underlying discovery dispute) 04/02/2010Mark W. Bennett
United States v. Riesselman -- Amended Report and Recommendation on defendant's motion to suppress drugs and cell phone found on his person during a pat-down search, evidence seized during execution of a search warrant, and statements he gave to officers at the scene. Government agreed pat-down search exceeded permissible scope under the circumstances, and court recommended drugs and cell phone be suppressed. On other issues, court found defendant never invoked his right to counsel; failure to give defendant complete copy of search warrant, including attachment that described items to be searched, was not deliberate and did not require suppression of evidence where defendant failed to show prejudice; although defendant's statements regarding illegally-seized drugs and cell phone were fruit of the illegal search, statements were sufficiently attenuated to purge the taint; and defendant's other statements were voluntary and did not flow from illegal seizure of items from defendant's person.03/31/2010Paul A. Zoss
U.S. v. Sablan (Motion to suppress, order finding that defendant had made sufficient showing to be entitled to evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978), but denying motion to suppress because defendant had not proven by a preponderance of the evidence that the search warrant affiant knowingly and intentionally included false information, or did so with reckless disregard for the truth, and alternatively, even were the court to assume, arguendo, that defendant could show that the affiant included intentional falsehoods or statements made with reckless disregard for the truth and set aside those allegations, the court would nevertheless conclude that the supporting affidavit otherwise provided probable cause for the search.)03/31/2010Mark W. Bennett
U.S. v. Norita & Sablan (criminal prosecution on charges of trafficking in methamphetamine against both defendants and a gun charge against one defendant heard as a visiting judge to the District of the Northern Mariana Islands (Saipan); defendants’ pretrial motions for discovery sanctions against the prosecution for failure to disclose sections of a DEA Laboratory Operations Manual and sections of a DEA Agent’s Field Manual, one defendant’s motion to sever the gun charge against the other defendant for separate trial, and one defendant’s motion for appointment of her retained counsel pursuant to the Criminal Justice Act) 03/29/2010Mark W. Bennett
U.S. v. Sandra Hanson (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding: that while the search and seizure occurred after a warning citation had been issued, the law enforcement officer’s continued detention of defendant in order to permit a drug dog sniff was justified by that officer’s reasonable suspicion that criminal activity unrelated to the stop was afoot; that the information from the informant was not stale and could be relied upon to support a finding of reasonable suspicion; that the fact that a drug dog’s initial failure to indicate on defendant’s pickup truck did not negate the other facts and information supporting the existence of reasonable suspicion; that defendant consented to having a drug sniffing dog enter the back of her truck, which resulted in the discovery of marijuana in the vehicle.)03/19/2010Mark W. Bennett
Johnson v. U.S.(§ 2255 motion by defendant convicted of capital charges of murders while working in furtherance of a continuing criminal enterprise: respondent’s motion for psychiatric examinations of the petitioner: the applicable discovery rule for mental examinations, via Habeas Rule 6(a), is Rule 35 of the Federal Rules of Civil Procedure, not Rule 12.2 of the Federal Rules of Criminal Procedure; “in controversy” and “good cause” requirements of Rule 35, including whether the respondent was required to meet those requirements as to categories of mental conditions and categories of tests, or as to specific mental conditions and specific tests; Fifth and Sixth Amendment concerns and requirements for reports) 03/18/2010Mark W. Bennett
USA v. Riesselman -- Report and Recommendation on defendant's motion to suppress drugs found in his pocket during a pat-down search, evidence seized during execution of a search warrant, and a statement he gave to officers at the scene. Government agreed pat-down search exceeded permissible scope under the circumstances, and court recommended drugs be suppressed. On other issues, court found defendant never invoked his right to counsel; failure to give defendant complete copy of search warrant, including attachment that described items to be searched, was not deliberate and did not require suppression of evidence where defendant failed to show prejudice; and defendant's statement was voluntary and did not flow from illegal seizure of drugs from defendant's pocket. 03/16/2010Paul A. Zoss
McFarland v. McFarland, et al. Diversity action for slander, libel, and defamation; motion to dismiss; analysis under Iowa law of whether an attorney, who is representing party in a divorce proceedings, is entitled to immunity from suit based on the judicial proceeding privilege. 02/26/2010Mark W. Bennett
McFarland v. McFarland -- Order on motion to appear pro hac vice. Court held that attorney who is likely to be witness at trial could appear in the case for purposes of pretrial litigation activities, but could not act as trial counsel and could not participate as an advocate during depositions.02/09/2010Paul A. Zoss
Johnson v. Fed Ex Corporation (Motion for Summary Judgment; the plaintiff sues her employer for sex discrimination and retaliation (plaintiff did not resist the defendant’s motion as to the retaliation claims) under Title VII and the ICRA; the plaintiff claims that she was treated differently than an allegedly similarly situated co-worker when she was terminated, and later reinstated without full back pay, while the co-worker was not disciplined; both plaintiff and co-worker had used company materials for personal use without obtaining prior permission to do so; the defendant claimed, in its motion, that the plaintiff and the co-worker were not similarly situated for various reasons, including due to the co-worker’s alleged self-reporting of his use of materials and offer to reimburse the company for the materials he used; the court found that there was a genuine issue of material fact concerning whether the parties were similarly situated)01/26/2010Mark W. Bennett
Fikse v. Hall (State agency employee’s action for age discrimination in violation of the ADEA against the agency’s director in his official, defendant’s motion for summary judgment, analysis of whether the summary judgment record generated a genuine issue of material fact as to circumstantial evidence of age discrimination under the McDonnell Douglas burden-shifting analysis.)01/25/2010Mark W. Bennett
Iowa Municipal Ins. Ltd. v. Berkshire Hathaway Homestate Cas. -- Order granting defendant's motion to compel arbitration and staying action pending completion of arbitration proceedings. Court found arbitration clause was valid, and all of plaintiff's claim fell under the coverage of the arbitration agreement.12/22/2009Paul A. Zoss
USA v. Rojas - Report and Recommendation that defendant's motion to dismiss indictment for insufficiency of evidence before the grand jury be denied.12/02/2009Paul A. Zoss
Great Lakes Comm. Corp. v. Iowa Utilities Board -- Report and Recommendation on plaintiffs' motion for preliminary injunction to prevent enforcement of one clause of IUB Order requiring reclamation of all telephone numbers assigned to Great Lakes. In considering the Dataphase factors, and in particular the plaintiff's likelihood of prevailing on the merits, the court analyzed the IUB Order and applicable regulations and recommended that a preliminary injunction be issued.11/17/2009Paul A. Zoss
Great Lakes Comm. Corp. v. Iowa Utilities Board - Order on Motions to Intervene and to Add Parties. In action to enjoin enforcement of order issued by Iowa Utilities Board, court found Qwest Communications Corp. and Sprint Communications Co. to be indispensable parties, and granted their motions to intervene under Fed. R. Civ. P. 24, and the Board's motion to join them as parties under Fed. R. Civ. P. 19.11/10/2009Paul A. Zoss
McFarland v. McFarland, et al. (Diversity action for slander, libel, defamation and tortuous interference with prospective business relations; motion for summary judgment; analysis under Iowa law of whether a court-appointed individual, who was ordered to conduct a child custody evaluation as part of divorce proceedings, is entitled to absolute quasi-judicial immunity from suit)11/02/2009Mark W. Bennett
USA v. Stephens -- Order denying Government's motion to amend conditions of pretrial release to include electronic monitoring and curfew. Court found unconstitutional the Adam Walsh Act amendments to the Bail Reform Act requiring mandatory imposition of curfew and electronic monitoring without an individual determination of whether the facts of the case required those conditions of pretrial release.10/27/2009Paul A. Zoss
Schott v. Care Initiatives (Former employee’s age discrimination claim pursuant to the ADEA and Iowa Civil Rights Act (ICRA): defendant employer’s motion for summary judgment: court addressed a question ante concerning the governing law, concluding that the “but for” causation standard for ADEA claims established in Gross v. FBL, 129 S. Ct. 2343 (2009), does not apply to ICRA claims, in light of reiteration of “motivating factor” causation standard in Deboom v. Raining Rose, Inc., 772 N.W.2d 1 (Iowa 2009))10/15/2009Mark W. Bennett
USA v. Graham -- Report and Recommendation on defendant's motion to suppress evidence found during execution of a search warrant at his residence. Court found there was sufficient probable cause to issue the warrant and sufficient indicia of validity for the executing officers to rely on the warrant, and the warrant adequately described the places to be searched.09/28/2009Paul A. Zoss
USA v. Martinez-Pena -- Report and Recommendation on defendant's motion to suppress drug evidence found in his vehicle. Defendant was stopped for speeding. He was cited for driving without a license, and vehicle was seized to install a tracking device pursuant to a warrant. While installing the device, officers found drugs in the vehicle. Court found drugs were not in plain view, and warrantless seach of vehicle violated defendant's Fourth Amendment rights. However, court further found drugs inevitably would have been discovered during inventory search of vehicle and need not be suppressed. 09/23/2009Paul A. Zoss
Armstrong, et al. v. Amercan Palltt Leasing, Inc. et al. (Securities litigation, motions to dismiss concerning claims brought under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962, both the Securities Act of 1933, 15 U.S.C. § 77, and the Securities Exchange Act of 1934, 15 U.S.C. § 78, as well as state common law claims; analysis under Federal Rule of Civil Procedure 12(b)(1) as to whether plaintiffs’ remaining state law claims against defendant bank derive from a common nucleus of operative fact and are of the type which ordinarily would be brought in a single lawsuit so as to give the court supplemental jurisdiction over all of the state law claims against bank; decision under Federal Rule of Civil Procedure 12(b)(2) concerning whether RICO § 1965(b) and/or § 27 of the Securities Exchange Act of 1934, 15 U.S.C. § 78aa, creates nationwide service of process permitting the court to exercise jurisdiction over defendants; analysis under Federal Rule of Civil Procedure 12(b)(6) concerning whether plaintiffs’ RICO claims are based on securities fraud as predicate acts and thus barred by § 107 of the Private Securities Litigation Reform Act of 1965; determination of whether plaintiffs sufficiently pled claims under sections 10(b), 18 and 20 of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78r(a), 78t(a) and sections 11 and 12 of the Securities Act of 1933, 15 U.S.C. §§ 77k and 77l; review of the adequacy of plaintiffs’ pleadings concerning state law claims for conversion, professional negligence, breach of fiduciary duty, negligent misrepresentations or nondisclosures, and fraudulent misrepresentations and omissions.)08/26/2009Mark W. Bennett
McFarland v. McFarland -- Order on plaintiff's motion for voluntary dismissal without prejudice of certain defendants, who asked that their dismissals be with prejudice. Court found FRCP 41(a)(1) mandated dismissal without prejudice08/25/2009Paul A. Zoss
Ohlendorf v. Wells Fargo Bank, N.A. -- Order denying defendants' motion to dismiss. Court found plaintiff had stated a marginally plausible claim for relief, and further development of the record was necessary before case could be summarily dismissed.08/11/2009Paul A. Zoss
USA v. Yockey -- Report and Recommendation on defendant's motion to suppress evidence located on, and stemming from, the discovery of child pornography on his cell phone at the time he was booked into the jail for driving while suspended. Court found discovery of pornographic image by inentorying officer was inadvertent; arresting officer's examination of additional photographs on the phone and questioning of defendant before giving Miranda warnings was unlawful; and detective's questioning of defendant after Miranda warnings and examination of phone's contents with defendant's consent would have occurred solely on the basis of the single photo inadvertently accessed by inventorying officer and therefore need not be suppressed. 08/03/2009Paul A. Zoss
Roberts et al. v. USCC Payroll Corporation & Stephanie Hood (Employment discrimination, motion for summary judgment, analysis of whether plaintiffs could establish a prima facie case of age discrimination, examination of whether plaintiffs generated a genuine issue of material fact that the reason defendants proffered for terminating them was pretextual, specifically whether they could make out the necessary showings that they were treated differently than similarly situated younger employees where they were fired after an investigation revealed that plaintiffs had violated a company policy that prohibited employees from working on the accounts of friends and family members; and determination of whether the granting of summary judgment constituted an unconstitutional violation of the Seventh Amendment to the United States Constitution. )07/17/2009Mark W. Bennett
Dorr v. Weber, et al. (Plaintiffs, on behalf of themselves and a class of similarly-situated persons, challenge denials of their applications for nonprofessional permits to carry weapons on the ground that the denials violated their constitutional rights to bear arms, to due process, and to equal protection, in violation of the Second and Fourteenth Amendments; motion to dismiss by the county sheriff’s department and the sheriff’s “successors”: sufficiency of allegations of facts making it plausible that the county sheriff’s department had the power to make and enforce any rules and regulations, independent of the Sheriff, such that it might, itself, have the power to sue or be sued concerning the exercise of such power, and was not merely an instrumentality of the sheriff; necessity of including the sheriff’s “successors” as parties to ensure effective injunctive relief)07/07/2009Mark W. Bennett
Fikse v. State of Iowa Third Judicial District Department of Correctional Services, et al. (State agency employee’s action for age discrimination in violation of the ADEA against the agency and the agency’s director, in his official capacity: defendants’ motion to dismiss on Eleventh Amendment sovereign immunity grounds: whether the ADEA abrogates Eleventh Amendment immunity; whether the state agency waived Eleventh Amendment immunity, pursuant to 42 U.S.C. § 2000d-7(a)(1), by accepting federal funding; whether a state official, sued in his or her official capacity, has Eleventh Amendment immunity to a claim for prospective injunctive relief from violations of the ADEA; whether the plaintiff’s claim for prospective injunctive relief against the state official is adequately pleaded)07/02/2009Mark W. Bennett
Beekman v. Nestle Purina Petcare Company (Motion for Summary Judgment; plaintiff sues former employer, alleging that the employer interfered with her ability to take Family Medical Leave Act (“FMLA”) leave on several occasions, retaliated against her for exercising her rights under the FMLA when it terminated her, and wrongfully discharged her in violation of the public policy set out in Iowa’s workers’ compensation laws, Iowa Code Chapter 85; employer’s motion for summary judgment: seeks dismissal of FMLA interference claims occurring outside of two year statute of limitations typically applicable to FMLA violations; disputes whether plaintiff 1) was entitled to FMLA leave on the dates in question, 2) had provided the Company with adequate and timely notice of her need for FMLA leave, and 3) had followed the Company’s call-in procedures; concerning both the FMLA retaliation and common law wrongful discharge claims, the Company alleges that Beekman cannot demonstrate a causal connection between her protected activity and her termination; the Company also alleges, in respect to both claims, that Beekman cannot prove that its articulated reason for the discharge was pretextual; the Company claims that Beekman was not an at-will employee, because of her union membership and the collective bargaining agreement between the Union and the Company, and therefore is not entitled to the protections of the public policy exception to the at-will employment doctrine)06/25/2009Mark W. Bennett
Accurate Controls, Inc. v. Cerro Gordo County Board of Supervisors, et al.: (Action pursuant to Iowa Code Ch. 573 by sub-subcontractor for electronic security systems for a new county jail to recover payment from the general contractor, the contractor’s surety, and the county board of supervisors after the electrical subcontractor that directly employed the sub-subcontractor defaulted: parties’ cross-motions for summary judgment: diversity subject matter jurisdiction of federal courts to hear an action where a state statute lays venue in the court of a particular county; timeliness of an Iowa Code Ch. 573 action; applicability of § 573.15, which requires detailed notice to a general contractor of “claims for material furnished,” to an entity that provided both material and labor; adequacy of invoices provided to subcontractor and forwarded to general contractor with subcontractor’s pay application to provide required notice to the general contractor of a claim for material furnished by a sub-subcontractor; available damages under Chapter 573; and continued viability of a Chapter 573 action against a county board that had released the retainage on payments to the general contractor upon completion of the project)06/18/2009Mark W. Bennett
Transamerica Life Insurance, et al. v. Lincoln National Life Insurance (Action by one insurance company seeking declaration of non-infringement of another insurance company’s business method patent for a “method and apparatus for providing retirement income benefits” and the other insurance company’s counterclaims for infringement: post-trial motions after jury trial on infringement and invalidity issues: alleged infringer’s motion for JMOL pursuant to Rule 50(b); alleged infringer’s alternative motion for new trial pursuant to Rule 59(a); prevailing patent holder’s motion for prejudgment interest; prevailing patent holder’s motion for permanent injunction)06/08/2009Mark W. Bennett
Precision Press, Inc. d/b/a Anderson Brothers Printing Co. v. MLP USA, Inc. (Contract law, motion to dismiss, or alternatively, to stay pending arbitration; dispute over whether arbitration clause in sales agreement for commercial printer required dismal or stay of case; analysis of whether state or federal law governs the dispute; examination of whether Federal Arbitration Act applies to sale agreement’s arbitration clause, review of whether that arbitration agreement constituted an agreement to arbitrate the issues involved in the litigation; and determination of whether dismissal of case, as opposed to a stay pending arbitration, was permitted by the Federal Arbitration Act.)06/01/2009Mark W. Bennett
The Hamlin Group, LLC v. Third Generation Investments, et al. & Third Generation Investments v. Clocktower Development, LLC (commercial dispute over promise to transfer property for development involving, inter alia, claims of breach of contract and fraud: plaintiff’s motion for voluntary dismissal pursuant to Rule 41(a)(2): sufficiency of grounds for and factors pertinent to voluntary dismissal; meaning of portion of rule permitting voluntary dismissal, over defendant’s objections, when a counterclaim is pending, “only if the counterclaim can remain pending for independent adjudication”; relevance of third-party claim to voluntary dismissal analysis; sua sponte consideration of whether leave to assert third-party claim was improvidently granted, for failure to comply with Rule 14, and sua sponte dismissal of third-party claim for lack of subject matter jurisdiction, because third-party claim, properly construed as claim for Rule 19 required joinder of necessary party, would deprive the court of subject matter jurisdiction)05/05/2009Mark W. Bennett
Blood et al v. Givaudan Flavors Corporation, et al (Diversity products liability action, consolidation of cases for trial, addressing issue of whether to consolidate two cases for trial under Federal Rule of Civil Procedure 42(a), considering whether a common question of law or fact exists in these cases, whether the risk of prejudice to defendants, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, and the length of time required to conclude multiple suits as against a single one)04/10/2009Mark W. Bennett
Stillmunkes, et al. v. Givaudan Flavors, Corp. et al (Diversity products liability action, consolidation of cases for trial, addressing issue of whether to consolidate two cases for trial under Federal Rule of Civil Procedure 42(a), considering whether a common question of law or fact exists in these cases, whether the risk of prejudice to defendants, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, and the length of time required to conclude multiple suits as against a single one.)04/10/2009Mark W. Bennett
Tokheim v. Georgia-Pacific Gypsum. LLC (Employment discrimination action; defendant’s motion for summary judgment: issue of whether plaintiff’s claims were barred under the doctrine of judicial estoppel for her failure to disclose her claims against defendant to the bankruptcy court at any time during the pendency of her prior Chapter 13 bankruptcy proceeding in that court even though she was under an affirmative duty to do so; analysis of three factors governing whether to apply the doctrine in case: (1) whether plaintiff’s position in this court was “clearly inconsistent” with her earlier position in bankruptcy court; (2) whether plaintiff had succeeded in persuading a court to accept her earlier position, so that judicial acceptance of an inconsistent position in this court would create “the perception that either the first or the second court was misled”; and (3) whether plaintiff would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped; examination of whether plaintiff’s contention that she should not be subject to judicial estoppel in this case since her failure to inform the bankruptcy court of her claims against defendant was inadvertent because she informed her bankruptcy attorney of the claims and relied upon her bankruptcy attorney’s advice.03/31/2009Mark W. Bennett
U.S. v. Michael Alan Reed, et al (Federal income tax enforcement action, cross-motions for summary judgment, analysis of whether the United States was in default because it had not filed a response to defendant’s answer, determination of whether defendant had satisfied his outstanding tax liabilities by submitting bonds in payment to the United States, analysis of whether summary judgment should be granted against defendant for the assessments of unpaid taxes and penalties)03/23/2009Mark W. Bennett
McFarland v. McFarland, Groenendyk & Robin's School of Dance & Tumbling (Diversity action for slander, libel, defamation and tortuous interference with prospective business relations; motion to dismiss for lack of diversity; analysis of plaintiff’s citizenship for purposes of diversity jurisdiction.)03/17/2009Mark W. Bennett
Farmers Cooperative Company v. Swift Pork Company & LOL Finance Company (Action by a local farm cooperative to recover a pig producer’s unpaid feed bill from the purchaser of the producer’s pigs and the producer’s finance company for disregarding the cooperative’s agricultural supply dealer’s lien pursuant to Iowa Code Ch. 570A; cross-motions for summary judgment, inter alia, on the statute of limitations applicable to the cooperative’s claim: whether the applicable statute of limitations for the cooperative’s claims is Iowa Code § 614.1(4) (five years) or Iowa Code § 614.1(10) (two years); if the applicable statute of limitations is § 614.1(10), whether the finance company is equitably estopped to assert the statute of limitations defense by alleged representations that the cooperative would be paid for the pig producer’s unpaid feed bill)03/16/2009Mark W. Bennett
Blood, et al v. Givaudan Flavors, Corp. et al (Diversity products liability action, motions to dismiss for failure to plead fraud with particularity, addressing issue of whether plaintiff’s claims for fraudulent concealment were pleaded with requisite particularity required by Federal Rule of Civil Procedure 9(b).)03/09/2009Mark W. Bennett
Accurate Controls, Inc. v. Cerro Gordo County Board of Supervisors - Order on plaintiff's motion for protective order regarding defendants' request to discover plaintiff's internal bid worksheet and plaintiff's purchase orders for materials used in construction of county jail. Court held plaintiff is entitled to recover more than its actual cost of labor and materials under Iowa Code chapter 573, but not necessarily the full amount of its contract. Plaintiff must show its contract price was "just" and "established by law." Motion granted as to internal bid worksheets, and denied as to pruchase orders for materials, subject to concurrent protective order.02/23/2009Paul A. Zoss
Greenhaw v. City of Cedar Rapids, Iowa -- Motion to Strike (Issue: strike expert witness testimony)02/17/2009Jon Stuart Scoles
Ronald & Conley Kuiper v. Givaudan, Inc. (Motion in limine; products liability tort action alleging causes of action for negligence and a combined claim for loss of consortium and medical expenses as a result of plaintiff’s exposure to butter flavorings at his place of employment; considering whether to permit evidence of the following: plaintiff’s living conditions, evidence of claims by consumers or of the alleged risks to consumers; evidence regarding the health conditions of other company employees; evidence regarding defendant’s employees; evidence of other cases brought against or resolved by defendant; evidence of other allegedly hazardous products or substances; evidence regarding lung transplantation; cumulative evidence regarding medical condition, diagnosis, prognosis and causation; non-medical opinions of expert; argument that an unpublished a 1993 study provided notice to defendant; evidence regarding prior litigation concerning a related product; evidence or argument that there is no safe level of exposure to diacetyl; evidence or argument regarding Iowa’s law on the allocation of punitive damages; and, evidence regarding the net worth or financial condition of defendant. )02/07/2009Mark W. Bennett
Dunaway v. McCollister & Co. -- Order on defendant's motion to exclude plaintiff's expert for late disclosure. Court found plaintiff failed to show late disclosures were either substantially justified or harmless, and awarded sanctions in the form of payment of deposition costs. 02/04/2009Paul A. Zoss
Transamerica Life Insurance Company, et al. v. Lincoln National Life Insurance Company: (Action by one insurance company seeking declaration of non-infringement of another insurance company’s business method patent for a “method and apparatus for providing retirement income benefits” and the other insurance company’s counterclaims for infringement: patent holder’s motion to strike exhibits and witnesses purportedly previously excluded by the court or that were not disclosed in compliance with orders of the court)01/29/2009Mark W. Bennett
EEOC v. CRST -- Motion to Compel (Issues: Attorney-client privilege, Work-product, 30(b)(6) depos)01/20/2009Jon Stuart Scoles
Harker's Distribution, Inc. v. Reinhart Foodservice, LLC (action for declaratory judgment concerning calculation of purchase price following defendant’s acquisition of plaintiff’s customers in Illinois and Wisconsin: defendant’s motion to compel arbitration: whether a clause in the parties’ asset purchase agreement requiring submission of disputes about adjustments to the purchase price to a national accounting firm acceptable to both parties constituted an enforceable agreement to arbitrate)01/20/2009Mark W. Bennett
Transamerica Life Insurance v. Lincoln National Life Insurance (Action by one insurance company seeking declaration of non-infringement of another insurance company’s business method patent for a “method and apparatus for providing retirement income benefits” and the other insurance company’s counterclaims for infringement: parties’ motions in limine: evidence of the PTO’s ex parte reexmination of the patent-in-suit; evidence of “commentary” from the court’s claim construction ruling; deposition testimony and other evidence of the alleged infringer’s marketing materials; evidence of inadequacies of the PTO, “business method” patents, or “tax planning” patents; evidence of infringement and damages theories that are purportedly erroneous as a matter of law)01/08/2009Mark W. Bennett
Transamerica Life Insurance v. Lincoln National Life Insurance : (Action by one insurance company seeking declaration of non-infringement of another insurance company’s business method patent for a “method and apparatus for providing retirement income benefits” and the other insurance company’s counterclaims for infringement: parties’ motions in limine regarding experts on Rule 702 of the Federal Rules of Evidence, Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), relevance, and timeliness grounds)01/05/2009Mark W. Bennett
U.S. v. Miell (criminal prosecution on charges of mail fraud, arising from a fraudulent scheme to obtain insurance proceeds for hail-damage roofs and a fraudulent scheme to retain renters’ damage deposits, perjury, and failure to file tax returns: defendant’s motion in limine to exclude the following evidence: (1) evidence from the prosecution’s “expert,” a “certified fraud examiner,” concerning damage deposits received and retained by the defendant; (2) evidence relating to the so-called “Beckfield litigation,” which included one of the present defendant’s business entities, Advanced Equities, as a defendant; (3) evidence described as “miscellaneous tenant complaints”; (4) evidence from various small claims court judges; (5) depictions of the defendant as a “slum lord”; (6) evidence of the so-called “Bat Cave,” in which the defendant purportedly retained property belonging to tenants who had been evicted or moved out; (7) photographs of the defendant’s personal residence; (8) evidence of health insurance and mileage reimbursements that the defendant pays to some of his employees; and (9) evidence of alleged destruction of documents by the defendant’s “handyman”) 12/26/2008Mark W. Bennett
Transamerica Life Insurance Co. et al v. Lincoln National Life Insurance Co.: (Action by one insurance company seeking declaration of non-infringement of another insurance company’s business method patent for a “method and apparatus for providing retirement income benefits” and the other insurance company’s counterclaims for infringement: nominative defendant’s objection to magistrate judge’s order granting nominative plaintiff’s motion to supplement expert report: standard of review for magistrate judge’s order on non-dispostive matter pursuant to Rule 72(a); standards to supplement under court’s Scheduling Order; supplementation pursuant to Rule 26(e)(2) and under “substantially justified or harmless” standard under Rule 37(c))12/18/2008Mark W. Bennett
Mary Staples & Kathy Walker-Brown v. Delavan Inc. & Greg Allen (Motion for Summary Judgment and Motion to Strike; plaintiff employees sue employer and co-workers for sexual harassment, sexual discrimination, and retaliation, in violation of Title VII and the Iowa Civil Rights Act (and co-worker for assault and battery); defendant Employer’s motion for summary judgment seeks dismissal of the sexual harassment, sexual discrimination, and retaliation claims; plaintiffs’ motion to strike seeks to strike several paragraphs from Employer’s statement of facts for violating Federal Rule of Evidence 412; the court denied the motion to strike and granted in part and denied in part defendant Employer’s motion for summary judgment.)12/11/2008Mark W. Bennett
Stillmunkes v. Givaudan Flavors Corp, et al (Motion for leave to amend; [Rule 15(a) and Rule 16(a) discussed.)12/10/2008Jon Stuart Scoles
Transamerica Life Insurance Company, et al. v. Lincoln National Life Insurance Company (Action by one insurance company seeking declaration of non-infringement of another insurance company’s business method patent for a “method and apparatus for providing retirement income benefits” and the other insurance company’s counterclaims for infringement: nominative plaintiff’s motions to amend pleadings after deadline in scheduling order based on alleged change in the law for “patent-eligible subject matter” and newly discovered information concerning “inequitable conduct”: Applicability of Rule 15(a) or Rule 16(b) standards; application of Rule 16(b) standards of “untimeliness” and “diligence”; alternative Rule 15(a) analysis)12/05/2008Mark W. Bennett
Coe v. Northern Pipe Products, Inc. (Former employee’s quid pro quo sex discrimination and retaliation claims pursuant to Title VII: defendant employer’s motion for summary judgment: effect of “impeached” or “interested” witnesses’ evidence on summary judgment; actionable sexual advances and connection between such advances and job detriments; degree of biased subordinate’s participation in adverse employment decisions required for “cat’s paw” liability of the employer; which party may invoke a “mixed motives” analysis; vicarious liability for harassment by a “supervisor”; circumstances in which a “retaliation” claim may be based on refusal of a supervisor’s sexual advances; and the employer’s “good faith” efforts as a bar to punitive damages)12/02/2008Mark W. Bennett
U.S. v. Miell : (criminal prosecution on charges of mail fraud, arising from a fraudulent scheme to obtain insurance proceeds for hail-damage roofs and a fraudulent scheme to retain renters’ damage deposits, perjury, and failure to file tax returns: prosecution’s motion in limine to exclude any reference to or introduction of evidence by the defendant that he repaired the hail-damaged roofs at a point in time after he obtained insurance proceeds based on fraudulent claims that he had already repaired the roofs, and any reference to or introduction of evidence by the defendant that he had or believed that he had only one year to repair the roofs) 11/25/2008Mark W. Bennett
Schwebach v. United Dairy Workers of LeMars & Wells Dairy, Inc. (Motion for Summary Judgment; defendant Wells Dairy, Inc. claims that plaintiff Gary Schwebach did not exhaust his contractual grievance remedies under the parties’ collective bargaining agreement because he failed to request that defendant United Dairy Workers of Lemars pursue his claim in writing, on an approved form; defendant United Dairy Workers of Lemars had pursued his claim without first requiring the plaintiff to request that they do so in writing, on an approved form; the court decided that plaintiff did exhaust his remedies under the collective bargaining agreement.)11/25/2008Mark W. Bennett
Donahue v. New NGC, Inc. (Former employee’s age discrimination claims pursuant to the ADEA and the Iowa Civil Rights Act (ICRA): defendant employer’s motion for summary judgment: untimeliness of administrative charge for the ICRA claim; sufficiency of evidence to raise inferences of age discrimination on the ADEA claim under either a RIF or non-RIF analysis)11/07/2008Mark W. Bennett
U.S. v. James Callanan (sentencing of criminal defendant: determination of appropriate remedy for another incident of prosecutorial misconduct involving breach of a plea agreement, including consideration of sanctions against prosecutor personally) 10/24/2008Mark W. Bennett
USA v. Thies -- Report and Recommendation, recommending defendant's motion to suppress evidence be denied. Defendant's girlfriend, with whom he lived, called police to report that defendant was drunk and acting violently, and she was frightened because he had a gun in the house. Officer went to the house to investigate, with intent to seize the firearm for the parties' and the public's safety. He encountered defendant and some friends in the front yard of the residence. He asked defendant a few questions before arresting defendant on an outstanding warrant. He then entered the house, over defendant's objections, to secure the firearm, and while inside, noticed some live ammunition. After learning defendant had a prior felony conviction, officer secured a search warrant for the house and seized the ammunition and other evidence. Court found defendant's responses to initial questions were noncustodial and need not be suppressed; officer's initial entry into the house to retrieve the gun was lawful; and even if initial entry into the house was not lawful, gun and ammunition inevitably would have been discovered.10/23/2008Paul A. Zoss
Shannon v. Officer Koehler, et al (Motion to Dismiss Sioux City Police Department; defendant police department claims that it is not an entity suable as such; the court decided that the police department was an appendage of the city and not suable as a separate entity from the city of Sioux City)10/13/2008Mark W. Bennett
U.S. v. Charles Schrage criminal defendant’s motion in limine before trial on “felon in possession of a firearm” charge: evidence of telephone calls and correspondence from the defendant while incarcerated; evidence of the defendant’s and a witness’s prior convictions) 10/02/2008Mark W. Bennett
Vincent Johnson & Julie Johnson v. American Leather Specialties Corp. & Shopko Stores, Inc.(Products liability action; defendants’ motion for partial summary judgment: conflict-of-law question concerning application of Iowa law, the law of the plaintiffs residence and the place where the accident occurred, or Minnesota law, the law of the place where the product was marketed to plaintiffs and sold; having concluded that Iowa law governs in case, addressing plaintiffs’ contention that application of Iowa Code § 613.18(1) constitutes an unconstitutional taking in violation of the Fifth and Fourteenth Amendments of the United States Constitution on the ground that the State of Iowa’s enactment of tort reform in § 613.18(1) deprived plaintiffs of previously held causes of action under the common law; addressing whether application of Iowa Code § 613.18(1) constitutes a violation of the Iowa State Constitution’s Inalienable Rights Clause, Iowa Const. art. I, § 1.)09/29/2008Mark W. Bennett
EEOC (Plaintiff) & Boot, Grant, Koffett, Peeples, Starke, & Thomas (Plaintiffs/Interveners) v CRST Van Expedited, Inc. (Defendant) -- Motion to Intervene (Issues: Timeliness and futility of the proposed Complaint included with the motion)09/26/2008Jon Stuart Scoles
Rattray, et al v. Woodbury County, et al (Action pursuant to 42 U.S.C. § 1983 challenging county jail’s alleged blanket strip-search policy: lead plaintiff’s motion to certify class: prerequisites of Rule 23(a); requirements to certify a class pursuant to Rule 23(b)(1)(A), to avoid the risk of inconsistent or varying adjudications, or pursuant to Rule 23(b)(3), because the questions of law or fact common to the class members predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy, including extent to which questions of the existence of grounds for individualized suspicion predominate over questions common to the class, such as the existence and constitutionality of a blanket strip-search policy) 09/02/2008Mark W. Bennett
Gries, et al v. Standard Ready Mix Concrete, et al. (Declaratory judgment action for determination of benefits due under an employee welfare benefit plan governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.; motion for class certification; discussion of the prerequisites for a class action under Federal Rule of Civil Procedure 23(a); analysis of first requirement of Rule 23(a), that plaintiff show that “the class is so numerous that joinder of all members is impracticable,” including consideration of: the size of the proposed class, the geographical dispersion of the class members, whether members of a prospective class are able to be identified, the financial resources of the potential class members with regard to their ability to institute individual lawsuits, and the judicial efficiency in certifying a class versus trying individual lawsuits.)08/22/2008Mark W. Bennett
Wachovia Securities LLC v. Stanton : (Securities broker-dealer’s action for preliminary injunctive relief pending arbitration before FINRA against former registered representative now employed with competitor: broker-dealer’s motion for temporary restraining order: broker-dealer’s likelihood of success on claims of breach of non-disclosure and non-solicitation provisions of employment contract and violation of the Iowa Trade Secrets Act, and broker-dealer’s showing on the irreparable harm, balance of harms, and public interest “Dataphase factors”) 08/05/2008Mark W. Bennett
USA v. Puok -- Order on Government's motion to compel defense to produce summaries of expert testimony. Court overruled defendant's interpretation of standard Stipulated Discovery Order, holding production of expert witness summaries is required by the stipulation without any notice or request from either party.07/25/2008Paul A. Zoss
U.S. v. Yuot & Puok (defendants’ motions in limine in criminal trial: opinions about a defendant’s guilt, or, more specifically, that he “is” a drug dealer, or that he was part of a conspiracy to distribute crack cocaine, or that he is a “known” drug dealer; opinions that a sock located in a defendant’s pocket at the time of a traffic stop was the match for a sock containing crack cocaine located in the vehicle in which the defendant was a passenger; use of nicknames or aliases; evidence of a defendant’s employment history or lack thereof; evidence of and references to a defendant’s various prior arrests, charges, or convictions) 07/23/2008Mark W. Bennett
U.S. v. Jose Islas-Bravo (defendant’s motion in criminal trial to admit “reverse 404(b)” evidence of separately tried co-defendant’s prior conviction on state drug offense to support third-party guilt defense) 07/16/2008Mark W. Bennett
Johnson v. American Leather Specialties & Shopko v. Ultra Marketing Corporation (Diversity products liability action, motion to dismiss for lack of personal jurisdiction, applying five factor test the court finds that third-party plaintiffs had not made out a prima facie case which would support application of personal jurisdiction over third-party defendant where third-party defendant did not have any bank accounts, property, office, agent, representative or employee in Iowa, and third-party defendant’s contacts to Iowa were limited to its interactions with an Iowa company as a marketing representative to a Chinese distributor which had no involvement with the manufacture or the distribution of the allegedly defective product at the center of this case, the court concludes that it lacks personal jurisdiction over third-party defendant)07/16/2008Mark W. Bennett
Wells Dairy, Inc. v. Food Movers International, Inc. (motion to dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction, standards for motion to dismiss under Rule 12(b)(2), standards for personal jurisdiction analysis, )07/08/2008Mark W. Bennett
Candy Bailey v. Komatsu Forklift U.S.A., Inc. -- Deadline for Completion of Discovery07/07/2008Jon Stuart Scoles
Sharp, et al. v. Tyson Foods (Plaintiff employees seek certification of their Rule 23 class action claims under the Iowa Wage Payment and Collection Law, and certification of their section 216(b) collective action claims under the Fair Labor Standards Act; defendant employer resists certification; defendant argues plaintiffs' FLSA claims preempt their IWPCL claims; defendant argues the opt-in procedures of FLSA collective action are inherently incompatible with the opt-out procedures of Rule 23 class action; defendant argues plaintiffs' are not similarly situated under the FLSA to meet the requirements for collective action certification; defendants argue plaintiffs do not meet the requirements of Rule 23 to be certified as a class action) 07/03/2008Mark W. Bennett
McNeal v. SDG Macerich Properties, L.P., et al. (removed action by African American business owner against owner and managers of a shopping mall pursuant to Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, and the Iowa Civil Rights Act, Iowa Code § 216.7, for racial discrimination in public accommodations in the leasing of store space and harassment; defendants’ motion in limine seeking to exclude the following categories of evidence: evidence of an allegedly phony signature on one of three originals of a lease; evidence of a subsequent investigation by a city attorney and member of the civil rights commission; evidence of emotional distress of anyone other than the plaintiff; evidence of the plaintiff’s prior attempts to lease space in the mall; evidence of future profits of the plaintiff’s business; and evidence of settlement offers or negotiations; plaintiff’s motion in limine seeking to exclude the following categories of evidence: evidence of the plaintiff’s husband’s previous civil rights litigation; and evidence that the defendants filed suit first by bringing a small claim for unpaid rent)07/01/2008Mark W. Bennett
U.S. v. Hawley (Action by the United States pursuant to the False Claims Act (FCA) and common law against insurance agent and his agency concerning federal crop insurance policies written for ineligible persons; motions in limine: plaintiff’s motion in limine: admissibility of evidence of reimbursement and payment procedures under reinsurance agreement; defendants’ motion in limine: admissibility of evidence disclosed after the close of discovery; evidence of the defendants’ financial condition; references to “experts”; expert opinions on legal issues and results to reach; evidence that the defendant forged insureds’ names or accepted forged signatures; evidence of other “bad acts”; evidence of memoranda of witnesses’ statements; and evidence of plea agreements of ineligible insureds)06/23/2008Mark W. Bennett
Baber v. First Republic Group, LLC & Evan Parks (Action by investor against stock broker and account representative for charging improper mark ups and mark downs on stock transactions; defendants’ motion for summary judgment: whether the parties had a contract requiring the broker to charge only “reasonable” commissions; whether the broker breached the covenant of good faith and fair dealing by charging “unreasonable” commissions, in the form of mark ups and mark downs; whether the broker was subject to any fiduciary duty to the investor to charge only “reasonable” commissions; whether the broker’s conduct in charging mark ups and mark downs constituted “misappropriation/theft,” which the court construed as whether such conduct constituted “conversion”; and whether the broker’s conduct constituted “fraud,” in the form of fraudulent non-disclosure, under the common law or state or federal securities acts, where the investor asserted that the mark ups and markdowns were only disclosed in a misleading or confusing manner; whether the investor ratified the allegedly wrongful mark ups or mark downs or demonstrated that the were not material by continuing to make trades through the broker after discovering the allegedly unreasonable and fraudulent mark ups and mark downs)06/06/2008Mark W. Bennett
Industrial Risk Insurers v. D.C. Taylor Company -- Motion to Compel (Issues: timeliness of the motion; conference between the attorneys; waiver of objections; merits of objections)05/28/2008Jon Stuart Scoles
U.S. v. Hawley : (Action by the United States pursuant to the False Claims Act (FCA) and common law against insurance agent and his agency concerning federal crop insurance policies written for ineligible persons; cross-motions for summary judgment: elements of FCA claims pursuant to 31 U.S.C. § 3729(a)(1) (presenting false claim to government officer or employee), (a)(2) (using a false record or statement to get a claim paid or approved), and (a)(3) (conspiracy to defraud the government using false claims) and common-law claims of fraudulent concealment and “mistake of fact”)04/03/2008Mark W. Bennett
U.S. v. Hawley (Action by the United States pursuant to the False Claims Act (FCA) and common law against insurance agent and his agency concerning federal crop insurance policies written for ineligible persons; cross-motions for summary judgment: elements of FCA claims pursuant to 31 U.S.C. § 3729(a)(1) (presenting false claim to government officer or employee), (a)(2) (using a false record or statement to get a claim paid or approved), and (a)(3) (conspiracy to defraud the government using false claims) and common-law claims of fraudulent concealment and “mistake of fact”)04/03/2008Mark W. Bennett
Russell v. Howmedica Osteonics Corp. - Order denying defendant's Daubert motion to exclude expert testimony regarding design defect and failure to warn in case involving failure of spinal rods constructed of Commercially Pure Titanium.04/02/2008Paul A. Zoss
USA v. Douglas Johnson --Report and Recommendation on defendant's motions to suppress evidence seized from execution of two separate search warrants. Court found the first warrant application to be deficient, and so much so that the court held the Leon exclusionary rule should apply to the evidence seized in execution of the warrant. Court found the second warrant contained sufficient information to support the magistrate's probable cause determination, and further found that in any event, the officers' reliance on the warrant was reasoanble and in good faith.04/01/2008Paul A. Zoss
Transamerica Life Insurance, et al. v. Lincoln National LIfe Insurance Company : (Action by one insurance company seeking declaration of non-infringement of another insurance company’s business method patent for a “method and apparatus for providing retirement income benefits” and the other insurance company’s counterclaims for infringement: ruling after Markman hearing on patent claim construction)03/10/2008Mark W. Bennett
USA v. Vo -- Order denying motion to sever. Defendant charged with conspiracy to manufacture and distribute marijuana and money laundering moved for severance from co-defendants charged with continuing criminal enterprise and other crimes. Court found joinder was proper, and defendant failed to show he would suffer serious prejudice from joinder of his case for trial with his co-defendants.03/10/2008Paul A. Zoss
Myers v. Tursso Company, Inc. (Former employee’s action for FMLA discrimination and retaliation; defendant’s motion for summary judgment on all claims on the ground that the plaintiff cannot, as a matter of law, show that the defendant is equitably estoppel to assert the employee’s ineligibility for FMLA leave: sufficiency of the plaintiff’s evidence of misrepresentations by the employer based on statements in an employee handbook and FMLA rights poster; sufficiency of the plaintiff’s evidence that he reasonably relied on any misrepresentation; sufficiency of the evidence that the plaintiff detrimentally relied on any misrepresentation)02/19/2008Mark W. Bennett
B&D Land and Livestock Co. v. Chuck Conner (Judicial review of administrative action by the USDA finding a wetland “conversion” in violation of the “Swampbuster” Act, 16 U.S.C. §§ 3801, 3821-24: plaintiff’s motion for preliminary injunction on enforcement actions: whether the anti-injunction statute prohibiting injunctions on the Commodity Credit Corporation (CCC) bars a preliminary injunction in this case; whether the plaintiff can show irreparable harm, when the USDA’s counsel has made various representations about continuing the plaintiff’s farm program benefits during the pendency of the action)01/22/2008Mark W. Bennett
Industrial Risk Insurers et al v. DC Taylor Co. (contested motion for leave to amend) 01/04/2008Jon Stuart Scoles
USA vs. Cashier’s Check in the Amount of Five Hundred Nineteen Thousand Four Hundred Eighty-Six Dollars and Twelve Cents $519,486.12) and Cashier’s Check in the Amount of Twenty-One Thousand Eight Hundred Thirteen Dollars and Eighty-Eight Cents ($21,813.88) (motion to strike answer)12/24/2007Jon Stuart Scoles
Jason Paul Annis vs. City of Welwein; Chief Jeremy Logan; David Bloem; and Ronald Voshell, Individually and in their official capacities (application to depose federal inmate)11/26/2007Jon Stuart Scoles
Robert Rakes,Robert Hollander, Individually, and on behalf of all others similarly situated vs. Life Investors Insurance Company of America (motion; amended answer)11/09/2007Jon Stuart Scoles
Gonnerman v. McHan Construction, Inc., et al. (former employee’s action for age discrimination under state and federal law: defendants’ motion summary judgment: whether a statement attributed to the decisionmaker recounted by the employee’s supervisor that the employee was being laid off because he was “too old to do cement work” was admissible “direct” evidence of age discrimination; whether there were genuine issues of material fact as to whether the defendants would have made the “same decision” to lay off the plaintiff without regard to his age, where the defendants made a company-wide RIF owing to shortage of work).10/26/2007Mark W. Bennett
U.S. v. Hugo Salazar-Montrero (criminal defendant’s Rule 12(b)(2) motion to determine elements of “aggravated identity theft” offense defined by 18 U.S.C. § 1028A: court’s authority to determine pretrial the elements of an offense; determination of elements)10/25/2007Mark W. Bennett
U.S. v. Mark Donisi : (criminal defendant’s motion in limine: prior drug use and evidence from his proffer interview)09/25/2007Mark W. Bennett
Transamerica Life Insurance Company, Western Reserve Life Assurance Co. of Ohio, and Transamerica Financial Life Insurance Company, Plaintiffs/Counterclaim Defendants, vs. Lincoln National Life Insurance Company, Defendant/Counterclaimant (motion to compel--completely answer interrogatory)09/24/2007Jon Stuart Scoles
Ideal Instruments, Inc. v. Rivard Instruments, Inc. & Meril Rivard (patent infringement suit involving patents for “detectable” hypodermic needles for livestock: plaintiff’s petition for attorney fees and expenses after court’s ruling imposing Rule 11 sanctions on the corporate defendant and its attorneys for filing a preliminary injunction motion lacking sufficient evidentiary support and for an improper purpose: reductions of fees claimed for lack of direct relationship to sanctionable action and “block billing,” and a further reduction to an amount sufficient to serve the deterrent purpose of a Rule 11 fee award)09/19/2007Mark W. Bennett
The O.N. Equity Sales Company v. Pals, et al. (Securities broker-dealer’s action for declaratory and injunctive relief to halt investors’ arbitration action before the NASD; plaintiff’s motion for preliminary injunction and defendant’s responsive motion to compel arbitration: interplay of Dataphase factors for a preliminary injunction and determination of arbitrability, conditions for arbitrability pursuant to NASD Rule 10301)09/06/2007Mark W. Bennett
Pincheck, L.C. vs. Tempo Payments, Inc. (motion to strike affirmative defenses)08/30/2007Jon Stuart Scoles
Jones, et al v. Casey's General Stores, Inc. (Fair Labor Standards Act Case, motion to transfer venue pursuant to 28 U.S.C. § 1404(a), venue of case proper in either the Southern District of Iowa or the Northern District of Iowa, analysis of factors to be employed in considering a motion to transfer under § 1404(a), the court concluded that the balance of these factors supported transferring this case to the Southern District of Iowa and therefore defendant had met its burden to show that transfer of this case was appropriate and the court granted the motion to transfer)08/30/2007Mark W. Bennett
David Goings, Lewine Boucher-Goings, and Juanita Goings vs. Chickasaw County; Martin Larsen, Individually and in his official capacity; Todd Miller, Individually and in his official capacity; and City of Nashua (motion to strike designation of experts)08/27/2007Jon Stuart Scoles
Ideal Instruments, Inc. v. Rivard Instruments, Inc. & Meril Rivard (patent infringement suit involving patents for “detectable” hypodermic needles for livestock: claim constructions after Markman hearing)08/10/2007Mark W. Bennett
U.S. v. Francisco Marcos-Quiroga (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding that the police had probable cause to arrest defendant and, as a result, money found on defendant’s person was found during a lawful search incident to his arrest and not subject to suppression.)07/17/2007Mark W. Bennett
Myers v. Tursso Company, Inc. (former employee’s action for FMLA discrimination and retaliation; plaintiff’s motion for partial summary judgment that the defendant employer is equitably estopped to assert that it is not covered by the FMLA, because it does not meet the employee-numerosity requirement at the location where the plaintiff worked: standards for granting summary judgment sua sponte for a non-moving party if the record reveals no genuine issues of material fact; applicability of equitable estoppel to FMLA requirements; sufficiency of the plaintiff’s evidence of misrepresentations by the employer based on statements in an employee handbook and FMLA rights poster; and sufficiency of the plaintiff’s evidence that he relied on any misrepresentation.)07/13/2007Mark W. Bennett
Kirt v. Fashion Bug (Customer’s right-to-contract race discrimination claim under § 1981: court’s sua sponte reconsideration of order granting defendant’s motion for summary judgment in light of Green v. Dillard’s, Inc., 483 F.3d 533 (8th Cir. 2007)07/10/2007Mark W. Bennett
Ideal Instruments, Inc. v. Rivard Instruments, Inc. ((patent infringement suit; plaintiff’s motion for sanctions against defendants and their counsel pursuant to Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and/or the court’s inherent authority for filing their motion for preliminary injunction, which asserted that the plaintiff was committing false advertising and threatening public safety by selling patented “detectable” hypodermic needles for use on livestock that are not actually “detectable” within the meaning of the meat processing, veterinary, and detectable needle industries: finding violations of Rule 11(b)(3) for filing a motion lacking evidentiary support and Rule 11(b)(1) for filing a motion for an improper purpose, imposing sanctions in the form of part of plaintiff’s attorney fees for litigating the preliminary injunction motion, and imposing such sanctions against the corporate defendant, defendants’ outside counsel, and defendants’ local counsel, but declining to impose other sanctions.)07/03/2007Mark W. Bennett
U.S. v. Francisco Marcos-Quiroga (Criminal defendant’s motion in limine: prior convictions, chain of custody of drug evidence, and plea agreement from conviction set aside by the court)06/12/2007Mark W. Bennett
Rohloff v. Metz Baking Co., LLC (former employee’s Title VII and state law claims for pregnancy discrimination a baking company, its holding company, and its plant manager: defendants’ joint motion for summary judgment: plaintiff’s ability to generate genuine issues of material fact on “qualification” and “inference of discrimination” elements of her prima facie case of pregnancy discrimination, in light of absenteeism problems; sufficiency of evidence of pretext) 06/12/2007Mark W. Bennett
U.S. v. Todd Becker (motions in limine in criminal trial: government’s motion to admit evidence of the defendant’s probation status as “intrinsic” or Rule 404(b) evidence; defendant’s motion to exclude nineteen-year-old felony drug conviction pursuant to Rule 404(b)).05/31/2007Mark W. Bennett
Hofmann, et al. v. Johnson & Johnson, Inc. (Diversity Tort Action, motion to remand, review of the principles applicable to a motion to remand and analysis of whether party resisting remand is able prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount)05/18/2007Mark W. Bennett
U.S. v. Lee, et al. (Criminal defendants’ motions in limine: first defendant’s prior misdemeanor and felony convictions and “bad acts” as Rule 404(b) and/or “direct” evidence; second defendant’s prior criminal history, opinions that he is a drug dealer or convicted felon, lay identifications of his voice on a particular tape or monitored call, identification of him as the “Rock,” his lack of employment history; and co-conspirator hearsay allegedly exculpatory hearsay statement; third defendant’s “bad acts,” references to his presence at “crack houses,” residence at places where drugs or guns were found, discovery of baggies on his person, prior convictions, and identifications as a “drug dealer”)05/17/2007Mark W. Bennett
Raymond v. U.S.A. Healthcare Center-Fort Dodge LLC, et al. (former employee’s suit for discharge in violation of Iowa public policy: plaintiff’s third motion in limine seeking to exclude evidence of correspondence between the parties’ attorneys concerning discovery of records of other employees of the defendants who had filed workers’ compensation claims and their current employment statuses; defendants’ motion in limine seeking to exclude evidence of, reference to, or testimony about any polygraph examination or lie detector test that the plaintiff took in relation to events underlying this matter)05/09/2007Mark W. Bennett
Raymond v. U.S.A. Healthcare Center -Fort Dodge, LLC, et al. (former employee’s suit for discharge in violation of Iowa public policy: plaintiff’s second motion in limine seeking to exclude evidence regarding any benefits that she has received for her workers’ compensation claims)05/02/2007Mark W. Bennett
U.S. v. Justin Cole (criminal defendant’s and prosecution’s motions in limine and Rule 104 motions to determine admissibility of evidence: defendant’s prior convictions and “bad acts” as Rule 404(b), “direct,” or res gestae evidence; allegedly exculpatory hearsay statement, considered under Rules 804(b)(3), 607, and 613(b); and the meaning of “cocaine base” as “crack cocaine” under 21 U.S.C. § 841)04/30/2007Mark W. Bennett
Horizon Ethanol, LLC, et al. v. Hanson & Akers (Diversity action for breach of covenant not to compete and breach of confidentiality provisions of a non-disclosure agreement; motion to dismiss for lack of diversity; analysis of defendant’s citizenship for purposes of diversity jurisdiction)04/30/2007Mark W. Bennett
General Electric Capital Corp. v. Commercial Services Group, Inc. : (Suit for breach of contract against debt collector by client corporation; plaintiff’s motion for partial summary judgment on defendant’s counterclaim of tortious interference with existing and prospective contracts and business relationships: whether plaintiff’s conduct in notifying affected third parties of the termination of the contract between the plaintiff and the defendant was “wrongful” as required to sustain the counterclaim)04/26/2007Mark W. Bennett
Parada v. Great Plains Int'l of Sioux City, Inc. (female “service writer’s” suit against diesel truck sales and service company for sexual harassment, sexual discrimination, and retaliation, in violation of Title VII and the Iowa Civil Rights Act, and unequal pay in violation of the Equal Pay Act: defendants’ motion for summary judgment: individual liability under Title VII; challenges to the “unwelcomeness” and “severity” elements of the claim of sexual harassment by supervisors; challenges to the “qualification” and “similarly situated male” elements of the claim of sexual discrimination based on elimination of the plaintiff’s service writer duties and termination of her lead person duties; challenges to the “protected activity” and “causal connection” elements of the claim of retaliation based on elimination or termination of the plaintiff’s duties in response to the plaintiff’s complaints about a male co-worker who would not do work the plaintiff assigned him and who complained about her qualifications; and challenges to the “substantially equal jobs” element of the claim of unequal pay)04/11/2007Mark W. Bennett
Raymond v. U.S.A. Healthcare Center -- Fort Dodge, LLC, et al. : (former employee’s suit for discharge in violation of Iowa public policy: plaintiff’s first motion in limine seeking to exclude evidence of offers to settle and references to dismissed claims)04/05/2007Mark W. Bennett
JTV Mfg, Inc. v. Mazak Optonics Corp. -- Order denying plaintiff's motion to amend petition for declaratory judgment to add party. Court found that although third party might be a proper party, he was not a necessary party, and plaintiff failed to show good cause to add third party whose presence in the case would desetroy diversity jurisdiction. 04/03/2007Paul A. Zoss
Ideal Instruments v. Rivard Instruments (patent infringement suit involving a false advertising counterclaim pursuant to § 43(a) of the Lanham Act: defendant’s motion for preliminary injunction based on allegedly false advertising of plaintiff’s livestock hypodermic needles as “detectable”: consideration of “Dataphase factors” and elements of a false advertising claim to determine whether the court should issue a preliminary injunction requiring a ban on sales and a recall of plaintiff’s “detectable” needles).03/28/2007Mark W. Bennett
Kirt v. Fashion Bug, Inc. : (customer’s right-to-contract race discrimination claim under § 1981 and “public accommodations” race discrimination claim under Iowa Code § 216.7 against retail store: defendant’s motion for summary judgment: whether a store manager’s intervention and invitation to an African-American female customer to continue shopping after a store employee’s apparently racially charged diatribe demonstrated that there was no interference with the customer’s right to contract under § 1981 or her right to public accommodations under § 216.7 where the customer left the store without attempting to make a purchase)03/28/2007Mark W. Bennett
Premium Iowa Pork, L.L.C. v. Banss Schlacht Und Foerdertechnik, GMBH (suit by meat packing complaing alleging fraudulent inducement to enter into a written agreement for a scalding and dehairing system by defendant; platiniff's motion for entry of default judgment and award of damages under fradulent inducement, breach of oral contract, and promissory estoppel and whether or not the court may award punitive damages or attorney's fees in this action)03/24/2007Mark W. Bennett
U.S. v. Marcos-Quiroga (defendant’s objections to PSIR, motion to withdraw guilty plea, and motion for new counsel: defendant’s Sixth Amendment objection to use of a prior conviction as both a statutory sentence enhancement and a career offender guideline enhancement; reconsideration of motion to withdraw guilty plea based on bad advice of counsel concerning career offender status; motion for new counsel based on prejudicial conduct of current counsel)03/23/2007Mark W. Bennett
McCabe v. Macaulay -- Order granting in part and denying in part defendants' motion to exclude expert testimony. Court found one legal expert's testimony regarding whether probable cause existed for plaintiffs' arrests invaded province of court to make legal conclusions, and would not aid trier of fact in deciding issue of fact. Court denied motion as to second expert's opinion regarding injury to plaintiff's wrists from handcuffs.02/26/2007Paul A. Zoss
Baber v. First Republic Group, LLC (suit by investor alleging improper overcharges by securities broker and its account representative; defendants’ motion to compel arbitration and stay proceedings: whether, as a matter of circuit law, an “introducing broker” and its agent are entitled to enforce an arbitration clause in a contract between an investor and a “clearing broker” to which the “introducing broker” and its agent are not parties, because they are agents of the “clearing broker” or a third-party beneficiaries of the contract between the customer and the “clearing broker”; whether the “clearing broker” is an indispensable party within the meaning of Rule 19(a) of the Federal Rules of Civil Procedure to litigation involving claims of fraud based, at least in part, on notices of account activity actually sent by the “clearing broker,” such that the case is subject to arbitration)02/21/2007Mark W. Bennett
Brotherhood of Maintenance of Way Employees v. Union Pacific Railroad Co. (railway workers union’s action for injunctive and other relief pursuant to the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq., and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, to bar carrier’s introduction of iris recognition technology for attendance and timekeeping purposes: plaintiff’s motion for preliminary injunction and carrier’s motion to dismiss for subject matter jurisdiction: whether the parties’ dispute is “major” or “minor” within the meaning of the RLA, where the court lacks subject matter jurisdiction over “minor” disputes, which must instead be determined in binding arbitration)02/16/2007Mark W. Bennett
Union Pacific Company v. Cedar Rapids and Iowa City Railway Company (dispute between two railroads over purported agreement to share costs of construction of a rail interchange yard; defendant’s motion for summary judgment: failure of defendant to meet conditions precedent in written contract; failure of defendant to generate genuine issues of material fact on “implied-in-fact” contract claim, whether construed as “quantum meruit,” “promissory estoppel,” or “unjust enrichment” claim)02/09/2007Mark W. Bennett
U.S. v. Enrique Aragon-Hernandez (criminal defendant’s motion in limine: inaudibility of recordings rendering them untrustworthy as a whole and, therefore, inadmissible) 01/31/2007Mark W. Bennett
Habben v. City of Fort Dodge, et al. (former employee’s Title VII, § 1981, and state law claims for race and pregnancy discrimination against city, city housing agency, and two housing agency officials: defendants’ separate motions for summary judgment: individual liability under Title VII and § 1981; plaintiff’s ability to generate genuine issues of material fact on race and pregnancy discrimination claims; lack of independent basis for liability of the city)01/29/2007Mark W. Bennett
Dr. John's v. City of Sioux City (Challenge to city’s various amended zoning and licensing ordinances regulating “adult entertainment businesses”; store’s motion for further clarification of issues for bench trial)01/16/2007Mark W. Bennett
McLeodUSA v. Qwest (litigation between providers of telecommunications services concerning payment for each other’s services; plaintiff’s motion to dismiss defendants’ “tort” counterclaims for negligent misrepresentation, conversion, trespass, fraud, fraudulent concealment, and negligence as duplicative of “contract” counterclaims: ability to plead alternative theories of recovery; sufficiency of pleading of required element that the alleged tortfeasor is in the business or profession of supplying information to support of negligent misrepresentation claims; and requirement that statute or regulation on which a negligence claim is based explicitly or implicitly authorize a private cause of action)01/16/2007Mark W. Bennett
Dr. John's v. City of Sioux City (Challenge to city’s various amended zoning and licensing ordinances regulating “adult entertainment businesses”; city’s motion to clarify issues for bench trial)01/13/2007Mark W. Bennett
Straitt v. Straitt -- Report and Recommendation that defendant's motion to dismiss be granted. Court found plaintiff had failed to show defendant had requisite minimum contacts with the State of Iowa to support personal jurisdiction over defendant in this court.01/08/2007Paul A. Zoss
Doctor John's Inc. v. City of Sioux City, Iowa -- Order on motions in limine and objections to appearance of counsel. Court denied motions to exclude evidence and witnesses in bench trial; denied request for in camera review of documnets and interview of City Attorney; and overruled plaintiff's objections to defendant's representation by attorney who is associated with attorney who formerly represented plaintiff in very limited capacity during workers' compensation matter.01/02/2007Paul A. Zoss
Raymond v. U.S.A. Healthcare Center -- Fort Dodge, LLC, et al (Former employee asserted state and federal disability discrimination claims and two claims of discharge in violation of Iowa public policy; after voluntary dismissal of all claims except for violation of Iowa public policy by retaliating for filing a workers’ compensation claim, the defendant moved for summary judgment: the court considered sua sponte whether to retain the case pursuant to 28 U.S.C. § 1367 after dismissal of the federal claim upon which jurisdiction was premised; considered the elements of a claim of retaliation in violation of public policy under Iowa law, and especially whether proof of a “lack of other justification” for discharge was such an element; and considered the sufficiency of the plaintiff’s showing on the required elements.) 12/22/2006Mark W. Bennett
Doctor John's, Inc. v. City of Sioux City (Challenge to city’s various amended zoning and licensing ordinances regulating “adult entertainment businesses”; defendant’s motion to preserve Seventh Amendment right to jury trial: province of court and jury in determination of remaining “constitutionality,” “applicability,” and “damages” issues, applying two-prong inquiry under City of Monterey v. Del Monte Dues at Monterey, Ltd., 526 U.S. 687 (1999))12/20/2006Mark W. Bennett
Estate of Storm v. Northwest Iowa Hospital Corp. -- Report and recommendation on plaintiff's motion to certify question. Finding the issue to be ripe for state court review, the court recommended certification to the Iowa Supreme Court of the question, "Does an unborn fetus have a cause of action for wrongful death under Iowa Code section 611.20."12/04/2006Paul A. Zoss
Jones, et al. v. Winnebago Industries & Kwikee Products Company, Inc. (products liability action; defendants’ motion for partial summary judgment: conflict-of-law question concerning application of Idaho law, the law of the plaintiffs’ residence and the place where the accident occurred, or Iowa law, the law of the place where the principal defendant had its principal place of business and where it designed and manufactured an allegedly defective mechanism for a “slide out” room on a recreational vehicle; plaintiffs’ motion for leave to amend complaint: motion for leave to amend complaint to add prayer for punitive damages was intertwined with motion for partial summary judgment on choice of law, where one forum’s law would bar the amendment and the other forum’s law would not)11/02/2006Mark W. Bennett
Dr. John's, Inc. v. City of Sioux City (Challenge to city’s various amended zoning and licensing ordinances regulating “adult entertainment businesses”; plaintiff’s motion to reconsider ruling on cross-motions for summary judgment; whether plaintiff conceded that only “rational basis” scrutiny applies to non-media provisions of subject ordinances and whether ruling on “civil disability” provisions was without benefit of the plaintiff’s response and based only on dicta in a Supreme Court decision)10/17/2006Mark W. Bennett
Fuller v. Alliant Energy (Pro se former employee asserted sex and race discrimination claims under Title VII and disability discrimination under the ADA; defendant’s motion for summary judgment: sufficiency of the employee’s prima facie cases and showings of pretext and intentional discrimination in light of employee’s history of use of bereavement leave and excessive absenteeism)10/16/2006Mark W. Bennett
Orluske v. Mercy Medical Center -- North Iowa (Former employee asserted age discrimination claims under the ADEA and state law and claims of retaliation for reporting sexual harassment of third parties in violation of Title VII and state law against a medical center; defendant’s motion for summary judgment: sufficiency of the employee’s prima facie cases and showings of pretext and intentional discrimination or retaliation)10/10/2006Mark W. Bennett
Saeemodarae v. Mercy Health Services -- Iowa Corp., d/b/a Mercy Medical Center (Former employee, a practicing Wiccan, asserted race discrimination and retaliation claims under Title VII and state law against a medical center that claims to have a Roman Catholic identity; defendant’s motion for summary judgment: scope of “religious organization” exemption from claims of religious discrimination under Title VII, 42 U.S.C. § 2000e-1(a); whether the court should exercise supplemental jurisdiction to interpret, as a matter of first impression, the scope of the exemption from religious discrimination and retaliation claims for “bona fide religious institutions” under the Iowa Civil Rights Act, Iowa Code § 216.6(6)(b))10/06/2006Mark W. Bennett
Gregg v. Indian Motorcycle -- Order on Daubert motions and requests for preliminary evidentiary rulings09/13/2006Paul A. Zoss
Maytag Corporation v. Electrolux Home Products, Inc. (Patent infringement action by assignee of patents for plastic washing machine baskets and the process for making them; cross-motions for summary judgment involving validity, infringement, and willful infringement issues; court found two validity issues under 35 U.S.C. § 112, the “written description” and “enablement” requirements, to be dispositive of the case)09/08/2006Mark W. Bennett
Doctor John's, Inc. v. City of Sioux City (Challenge to city’s various amended zoning and licensing ordinances regulating “adult entertainment businesses”; cross-motions for summary judgment, motion to reconsider in part the previous summary judgment ruling, and motion to bifurcate trial: constitutionality and applicability of “media” and “non-media” portions of the first round of amendments and damages arising from enforcement of those amendments; bifurcation of trial on “constitutionality” and “damages” questions; and constitutionality of “adult bookstore or adult video store,” “sexual device shop,” and licensing “civil disability” provisions of the second round of amendments)07/21/2006Mark W. Bennett
Jensen v. Barlas, et al. (former employee’s suit for malicious prosecution, abuse of process, and civil conspiracy based on counterclaims asserted by one of the defendants in the former employee’s state lawsuit for pregnancy discrimination and sexual assault; defendants’ motion for summary judgment: “probable cause” and “special injury” elements of malicious prosecution, “improper purpose” element of abuse of process, and relationship of civil conspiracy claim to other tortious conduct.) 07/07/2006Mark W. Bennett
Remmes v. International Flavors & Fragrances, Inc., et al. (Diversity products liability action; motion to dismiss for lack of personal jurisdiction; finding that Iowa Supreme Court would recognize civil conspiracy as a basis to support the exercise of in personam jurisdiction under Iowa’s long-arm statute; that plaintiff successfully made out a prima facie case which would support application of the conspiracy theory of jurisdiction; concluding that when defendants joined the alleged conspiracy they purposefully availed themselves of the privileges of conducting activities in Iowa, the forum state; court concludes that it has personal jurisdiction over defendants)06/26/2006Mark W. Bennett
Ideal Instruments, Inc. v. Rivard Instruments, Inc. & Meril Rivard (Suit involving claims of infringement by the defendants of the plaintiff’s United States patent, non-infringement by the plaintiff of the defendants’ Canadian patent, and various commercial torts; defendants’ motion to reconsider ruling on motion to dismiss to consider alternative motion to stay and plaintiff’s motion to amend complaint: motion to amend should be addressed before motion to reconsider, because it might, and in this case did, moot portions of the motion to reconsider; standards for reconsideration of an interlocutory order and standards for a stay of proceedings: claims of amended complaint that required determination of issue of whether the plaintiff was infringing the defendants’ Canadian patent were stayed pending determination of infringement issue by Canadian court).06/21/2006Mark W. Bennett
International Motor Contest Association, Inc. v. Staley, et al. (copyright litigation between sponsors of automobile racing involving copyrights on plaintiff’s contest rules; plaintiff’s motion to dismiss defendants’ counterclaims and to strike defendants’ affirmative defenses of “copyright misuse” and “unclean hands” under the Noerr-Pennington doctrine and because they are legally insufficient)06/19/2006Mark W. Bennett
U.S. v. Javier Barajas Ramirez (federal defendant’s post-conviction motion to vacate sentence on a drug-trafficking charge pursuant 28 U.S.C. § 2255 based on ineffective assistance of trial counsel in failing to move for a safety-valve reduction in the defendant’s sentence and failure of appellate counsel to appeal the omission of a safety-valve reduction)06/13/2006Mark W. Bennett
Niver v. Travelers Indemnity Company of Illinois (action for first-party bad faith for failure to pay workers compensation benefits; plaintiff’s motion for advance ruling on evidentiary issues preceding trial on damages issues only: defendant’s motion to exclude evidence of other bad faith lawsuit against it, its incentive plans for employees, a report of an “in house” doctor, and damages other than emotional distress; plaintiff’s motion to exclude a variety of evidence, including evidence of the defendant’s handling of the plaintiff’s other workers compensation claims, his sexual activities, penalty benefits on workers compensation claims, government benefits such as unemployment compensation, settlement negotiations concerning the bad faith claim, the “good acts” of the defendant, the defendant’s reliance on advice of counsel, and information learned by the defendant after the arbitration hearing)06/01/2006Mark W. Bennett
Ubben v. Sauder Woodworking Co. -- Order denying third-party defendant's motion to dismiss. Third-party defendant, who shares Iowa citizenship with original plaintiffs, argued his addition to the case destroyed diversity jurisdiction. Court found third-party defendant was not indispensable party, and exception to supplemental jurisdiction found in 28 USC 1367(b) did not apply to defeat diversity jurisdiction.05/10/2006Paul A. Zoss
Ideal Instruments, Inc. v. Rivard Instruments, Inc. & Meril Rivard (Suit involving claims of infringement by the defendants of the plaintiff’s United States patent, non-infringement by the plaintiff of the defendants’ Canadian patent, and various commercial torts; defendants’ motion to dismiss: individual defendant’s motion to dismiss all claims against him for lack of personal jurisdiction, failure to state claims upon which relief can be granted, and forum non conveniens, and to dismiss foreign patent claim for lack of subject matter jurisdiction, international comity, and abuse of process; corporate defendant’s joinder in motion to dismiss foreign patent claim for lack of subject matter jurisdiction, international comity, and abuse of process, and to dismiss commercial tort claims for forum non conveniens and failure to state claims upon which relief can be granted; plaintiff’s motion for default judgment against corporate defendant on unchallenged claim of infringement of United States patent).05/08/2006Mark W. Bennett
Niver v. Travelers Indemnity Company of Illinois (action for first-party bad faith for failure to pay workers compensation benefits; plaintiff’s motion for advance ruling on evidentiary issues preceding trial on damages issues only: admissibility of evidence that goes to both liability and damages, particularly punitive or exemplary damages; the plaintiff's ability to use excerpts of videotaped depositions of the insurer's adjustors in his case-in-chief, when those adjustors will be present at the trial; and the extent to which the plaintiff can obtain and present to the jury financial information concerning the insurer's parent company for purposes of punitive damages; defendant’s motion to bifurcate compensatory damages and punitive damages issues for trial: pertinent factors for bifurcation, including prejudice)05/03/2006Mark W. Bennett
Dewey v. Chertoff (action involving a federal employee’s claims of sexual harassment and retaliation in violation of Title VII; defendant’s motion for summary judgment: proper defendant for such an action, whether untimeliness of a first report of harassment under 29 C.F.R. § 1014.105(a)(1) bars such a claim, whether the defendant knew or should have known of the harassment, and whether the plaintiff could generate genuine issues of material fact on a causal connection between her report of harassment and her termination where she failed to comply with her employing agency’s request for medical documentation in support of her extended absence) 02/27/2006Mark W. Bennett
United States of America v. Turner -- Report and recommendation on defendant's motion to sever two counts of Superseding Indictment for trial. Count 1 charged defendant with discrete act of attempting to manufacture methamphetamine. Count 2 charged defendant with perjury in another individual's trial that occurred more than four months prior to act alleged in Count 1. Court found the two offenses did not meet any of the requirements of Fed. R. Crim. P. 8(a), and recommended counts be severed for trial pursuant to Fed. R. Crim. P. 14(a).02/21/2006Paul A. Zoss
Niver v. Travelers Indemnity Company of Illinois (action for first-party bad faith for failure to pay workers compensation benefits; defendant’s second summary judgment motion: rejecting the defendant’s contention that Bellville v. Farm Bureau Mutual Insurance Company, 702 N.W.2d 468 (Iowa 2005), changed Iowa law for the “fairly debatable” element of a bad faith claim; granting the plaintiff’s motion for summary judgment on liability for bad faith, but leaving damages for trial)02/06/2006Mark W. Bennett
Maytag Corporation v. Electrolux Home Products, Inc., d/b/a Frigidaire : (Patent infringement action by assignee of patents for plastic washing machine baskets and the process for making them; ruling after Markman hearing on patent claim construction)01/19/2006Mark W. Bennett
Baxter v. Briar Cliff College Group Insurance Plan, et al. : (Suit by ERISA plan beneficiary against the plan, the plan administrator, and the plan insurer for judicial review of reduction of disability benefits; cross-motions for summary judgment; whether the insurer of the ERISA plan properly reduced the plaintiff’s disability benefits under the plan by the amount of estimated Social Security disability benefits to which the insurer contended that the plaintiff had a “right,” even though the plaintiff had not been awarded, or even applied for, such Social Security disability benefits; whether the plan administrator or insurer timely provided the plaintiff with copies of all plan documents upon her request as required by ERISA and pertinent regulations) 01/18/2006Mark W. Bennett
Colleen Benedict and Joseph Benedict v. Zimmer, Inc.; Order regarding Rule 72 motion12/05/2005Linda R. Reade
The Conveyor Company v. Sunsource Technology Services, Inc. (Suit by manufacturer of stinger stacker that collapsed against supplier of hydraulic lift package; defendant’s motion for partial summary judgment: distinctions between claim for breach of warranty of merchantability and claim of breach of warranty for a particular purpose, “economic loss rule” as bar to tort claims for strict liability and negligent misrepresentation, and nature of the duty required to support a claim for negligent misrepresentation)11/02/2005Mark W. Bennett
Gordon v. Gerard Treatment Programs, LLC (Former employee’s FMLA retaliation claim; employer’s motion for summary judgment: Although 29 C.F.R. § 825.311(c) expressly authorizes an employer to terminate an employee who fails to provide a fitness-for-duty certification at the time that FMLA leave is concluded, the employee generated genuine issues of material fact that her termination pursuant to that regulation was nevertheless retaliatory) 10/03/2005Mark W. Bennett
Doctor John's, Inc. v. City of Sioux City, et al. (Challenge to city’s superseded amended zoning ordinances regulating the location of “adult entertainment businesses”; cross-motions for summary judgment: mootness and plaintiff’s standing to challenge superseded ordinances; unconstitutionality of superseded ordinances under the First Amendment, to the extent that they regulated “adult media”; fact questions on extent of adult entertainment business’s stock of “sex toys,” precluding determination of constitutional protection of sale of such items under “substantive due process” right to “privacy”)09/28/2005Mark W. Bennett
Remmes v. International Flavors & Fragrances, Inc., et al. (Diversity products liability action; motions to dismiss for failure to plead fraud with particularity and for lack of personal jurisdiction; fraudulent concealment claim not plead with requisite particularity where; plaintiff granted leave to replead fraud based claims; finding that Iowa Supreme Court would recognize civil conspiracy as a basis to support the exercise of in personam jurisdiction under Iowa’s long-arm statute; that plaintiff successfully made out a prima facie case which would support application of the conspiracy theory of jurisdiction; court concludes that it has personal jurisdiction over defendants)09/16/2005Mark W. Bennett
Pierce v. Fort Dodge Animal Health (disability discrimination in employment suit under Iowa and federal law; defendant’s motion for summary judgment: sufficiency of the plaintiff’s prima facie case)08/17/2005Mark W. Bennett
Park v. Hill v: (diversity action by bank president against unsuccessful bidder in tender offer for bank alleging defamation under Iowa law; defendant’s motion for summary judgment: applicability of “protection of the publisher’s interest” and “common interest” qualified privileges, abuse of the privileges)08/08/2005Mark W. Bennett
Pro Edge L.P. et al v. Charles S. Gue, III (Motion to amend and/or reconsider preliminary injunction order filed June 1, 2005; motion challenged holding that following corporate reorganizaiton, Pro Edge, L.P. properly held the employment agreement (“1996 Agreement”) containing the non-compete clause and could enforce it against defendant; on reconsideration court held that: (1) reasonable inference arose from exhibits admitted at preliminary injunction hearing that defendant executed the Stock Purchase Agreement; (2) termination provisions in paragraphs 7.1 and 7.2(b) did not foreclose transfer or assignment of the 1996 Agreement to Pro Edge, L.P. prior to the closing date; (3) representative appointed by virtue of defendant’s execution of the Stock Purchase Agreement was vested with the authority to consent to assignment of the 1996 Agreement; and (4) reasonable inference drawn from evidence presented was that representative did consent to assignment and/or transfer of 1996 Agreement to Pro Edge, L.P.; motion to reconsider denied.)07/05/2005Mark W. Bennett
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order on defendant’s motion to exclude hearsay testimony during “penalty phase” on confrontation clause, due process clause, and statutory grounds) 06/06/2005Mark W. Bennett
Pro Edge, L.P., et al. v. Gue, et al. (Plaintiffs, shortly following removal from state court, filed motion to extend temporary restraining order issued by state court and for a preliminary injunction to enjoin defendants from engaging in competing activities in Belgrade, Montana area in violation of employment agreement, which contained a non-compete clause, signed by individual defendant while employed with plaintiffs; defendants resisted and filed a motion to dismiss; day long preliminary injunction evidentiary hearing held; court lacked personal jurisdiction over defendant corporation, which was incorporated and had principal place of business in Montana, and had no contacts with Iowa; court had specific personal jurisdiction over individual defendant where that defendant executed the employment agreement in Iowa in 1996, remained in Iowa for a year and a half following execution of employment agreement, remained an employee of Iowa plaintiffs even after relocating to Montana, defendant’s direct supervisor was always in Iowa up until his separation with plaintiffs on April 8, 2005, defendant maintained contact with Iowa main office on weekly basis, defendant received paycheck from Iowa bank account, employment agreement contained an Iowa choice of law clause, and defendant maintained ownership stake, in the form of partnership units, in Pro Edge, L.P.; examining the case under Restatement (Second) Conflict of Laws § 187(2)(b), court found that § 188 factors amounted to a “tie” and deferred to the parties expression of Iowa choice of law in the employment agreement; non-compete clause of employment agreement reasonable and enforceable under Iowa law; as corporation is entitled to use fictitious name in making contracts, fact that plaintiff’s predecessor used fictitious name in signing employment contract with individual defendant did not make contract unenforceable; after examining corporate reorganization of plaintiffs, court held that Pro Edge, L.P. properly held the employment agreement and could enforce it against individual defendant; on balancing of the Dataphase factors, the court found the factors weighed in favor of granting a preliminary injunction; preliminary injunction would issue following plaintiffs posting of a bond in the amount of $30,000.00; venue was proper under 28 U.S.C. § 1391(a); court would not dismiss for forum non conveniens; defendants’ motion to dismiss granted in part and denied in part; plaintiffs’ motion for preliminary injunction granted.)06/01/2005Mark W. Bennett
United States of America v. Wendelsdorf -- Report and Recommendation on defendant's motion to transfer trial to another division within the district. Court recommends trial court reserve ruling on the motion for transfer until voir dire, or at least until responses are received to jury questionnaire.05/27/2005Paul A. Zoss
U.S. v. Angela Johnson : (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order denying defendant’s renewed motion to strike death penalty where government is no longer asserting guilt as a “principal”)05/03/2005Mark W. Bennett
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order granting in part and denying in part defendant’s motion to exclude evidence and argument that she acted as a “principal” in the alleged killings)05/03/2005Mark W. Bennett
Bunda v. Potter, et al. (Female postal service employee asserts claims of hostile environment sexual harassment by a temporary supervisor and retaliation by the supervisor and other managers in violation of Title VII: defendants’ motion for summary judgment: The only proper defendant for the action is the Postmaster General and punitive damages are not available, but the plaintiff is otherwise entitled to proceed to trial on her hostile environment and retaliation claims)05/02/2005Mark W. Bennett
Steck v. (Female police officer’s claims of hostile environment sexual harassment by police chief and retaliation by police department in violation of Title VII and state law: defendants’ motion for summary judgment: considering the relevance of the status of the harasser as a supervisor or co-worker to the “objective” and “subjective” severity of a hostile environment and postulating a “sliding scale” test on the premise that, as the harasser moves higher in the heirarchy of the employer, incidents of harassment become proportionally more severe; rejecting several incidents of alleged retaliation on the grounds that they did not constitute “adverse employment action” or that the plaintiff failed to rebut the defendants’ legitimate, non-retaliatory explanations) 04/21/2005Mark W. Bennett
U.S. v. Angela Johnson : (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order denying defendant’s motion to dismiss for failure to charge offenses owing to omission of “substantive connection” between killings and drug conspiracy or CCE)04/11/2005Mark W. Bennett
Sioux Biochemical, Inc. v. Cargill, Inc. (Action arising from a dispute over the defendant’s use of the plaintiff’s allegedly secret process for manufacturing chondroitin sulfate; defendant’s Rule 12(b)(6) motion to dismiss the plaintiff’s claims of fraudulent misrepresentation, correction of patent inventorship, conversion of intellectual property, and common-law misappropriation, or, in the alternative, to strike the common-law misappropriation claim as redundant of a similar statutory claim)04/11/2005Mark W. Bennett
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); pretrial ruling on the proper degree of case-specific questioning, if any, that is permissible in the course of life- or death-qualifying prospective jurors)03/31/2005Mark W. Bennett
McLeodUSA Telecommunications Services, Inc. v. Qwest Corporation & Qwest Communications Corporation (Litigation between telecommunications companies over payment dispute; plaintiff’s motion for temporary restraining order or preliminary injunction: application of Dataphase factors, including explanation of “likelihood of success on the merits” factor, extension of term for temporary restraining order for “good cause,” and waiver of bond requirement) 03/23/2005Mark W. Bennett
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order regarding intention of defendant, who had given notice of intent to rely on mental condition evidence in the "penalty phase," to assert her Fifth Amendment right against self-incrimination to questions about her involvement in the charged murders during mental examinations by government mental health experts) 03/17/2005Mark W. Bennett
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling denying defendant’s motion to exclude evidence of identification of remains where defendant has stipulated to identity of remains) 03/10/2005Mark W. Bennett
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order for return to defendant of privileged documents obtained by the law enforcement officers)03/02/2005Mark W. Bennett
Galm v. Eaton Corporation (Order on motion for discovery in ERISA action. Court analyzed plaintiff's discovery requests pursuant to standard of review for decisions of ERISA plan administrators in the Eighth Circuit. Court granted plaintiff limited discovery to determine whether conflict of interest between parties affected defendant's decision to deny plaintiff's claim for benefits.)03/01/2005Paul A. Zoss
Williams, et al. v. Security National Bank : (Remainder beneficiaries’ suit against trustee for mismanagement of trust; parties’ motions in limine: trustee’s motions to exclude evidence of insurance, settlement negotiations, “expert” opinions of consultant, revision of internal policies, amendment of petition in probate action, a beneficiary’s supposed right to growth of the trust, certain familial and corporate relationships, stock indices, and testimony of certain experts; beneficiaries’ motions to exclude evidence of purported offsets against damages for trustee fees and the life beneficiary’s right to principal of the trust)02/25/2005Mark W. Bennett
U.S. v. Angela Johnson : (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on second round of pretrial motions)02/18/2005Mark W. Bennett
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on first round of pretrial motions)01/03/2005Mark W. Bennett
Lorenzen v. GKN Armstrong, Inc. (Employment discrimination and wrongful discharge; defendant’s motion for summary judgment: plaintiff’s burdens to prove sex discrimination in pay under the Equal Pay Act; “actual disability” and “perceived disability” under the ADA; constructive discharge in violation of public policy for filing a workers’ compensation claim)11/22/2004Mark W. Bennett
Oldcastle Materials, Inc. v. Rohlin, et al. (Contract dispute involving allegations of conflicting agreements for sale and purchase of majority shareholders’ shares in closely-held corporation; cross-motions for specific performance by third-party buyers and assignee of minority shareholders: determination of whether a letter from the third-party buyers constituted an offer, whether the majority shareholders accepted that offer, whether the minority shareholders properly exercised a right of first refusal to buy the shares on the same terms as the third-party buyers, and whether the assignee of the minority shareholders was entitled to specific performance of the agreement to sell the shares; court’s sua sponte determination to certify entry of judgment on some but not all of the claims in the action pursuant to Rule 54(b) of the Federal Rules of Civil Procedure) 11/18/2004Mark W. Bennett
Catholic Order of Foresters, et. al. v. U.S. Bancorp Piper Jaffray, Inc., et al (Securities fraud and related claims; defendants’ motion to dismiss pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure for improper venue: venue pursuant to the “special” venue provision for federal securities fraud claims, 15 U.S.C. § 78aa; one defendant’s motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted: circumstances under which a non-debtor falls within the scope of the automatic stay in bankruptcy, whether plaintiffs seek property of the bankruptcy estate)09/27/2004Mark W. Bennett
Storm, et al. v. Van Beek, et al. (Diversity action for breach of contract, fraud, and other business torts; defendants’ motion to dismiss pursuant to Rule 12(b)(7) for failure to name indispensable party and pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, both premised on failure to name a defunct partnership as a party before suing the partners who continued the business of the partnership)09/02/2004Mark W. Bennett
U.S. v. Dustin Honken : (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on defendant’s request for “residual doubt” instruction in “penalty phase”)09/01/2004Mark W. Bennett
Riker-Vanholand v. Transouth Financial Corporation, et al. (Motion to dismiss; pro se complainant; plaintiff alleges harassment by defendants over loan that was not her responsibility; defendants moved to dismiss amended complaint; civil RICO claim asserted in amended complaint was previously dismissed by this court by order dated May 7, 2004, therefore defendants’ motion to dismiss was granted; plaintiff failed to plead fraud with the particularity required by Rule 9(b) and, as no actual damages were asserted in any pleading, even the most liberal reading of the complaint could establish reliance; motion to dismiss fraud claim granted; remaining IDCPA claim dismissed for lack of subject matter jurisdiction as maximum damages recoverable, in light of fact that no actual damages were alleged, was $1000.00 and only basis for federal jurisdiction was diversity.08/16/2004Mark W. Bennett
United States v. Spencer (Report and Recommendation on defendant's motion to suppress evidence obtained during execution of search warrant at his residence. Court found warrant affiant's combination of police officer informant and concerned citizen informant on same page was not fatal to probable cause determination. Court further found warrant's incorporation by reference of attachment that described place to be searched with particularity, and presence of complete warrant, including attachment, at scene of search, did not violate defendant's Fourth Amendment rights pursuant to Groh v. Ramirez, ___ U.S. ___, 124 S. Ct. 1284, 157 L.Ed.2d 1068 (2004). Court found that even if defendant's rights were violated by officers' failure to serve him with complete copy of warrant at time of search. Leon good faith exception to exclusionary rule was applicable because officers relied in good faith on warrant that was supported by ample probable cause.)08/11/2004Paul A. Zoss
U.S. v. Dustin Honken : (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on the government’s motion to have the defendant wear shackles at trial)07/21/2004Mark W. Bennett
U.S. v. Dustin Honken (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on the parties’ second round of pre-trial motions regarding admissibility of evidence) 07/16/2004Mark W. Bennett
"PSA Cases" (Kinkaid v. John Morrell & Co.; Hoefling v. John Morrell & Co.; Sokolowski v. Tyson Fresh Meats, Inc.) (Separate actions by hog producers against packing companies pursuant to the Packers and Stockyards Act of 1921 (PSA), 7 U.S.C. §§ 181-231, alleging unfair and deceptive practices in relation to "transfer of risk" provisions of their contracts that were not licensed insurance; packing companies' motions to dismiss: meaning of "insurance" under Iowa law, determination of whether the producers alleged "insurance" or merely provisions for the "transfer of risk" of loss of hogs during shipment, determination of whether the producers have a cognizable PSA claim if the contracts are or are not "insurance")06/18/2004Mark W. Bennett
U.S. v. Dustin Honken : (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on government’s pre-trial motions regarding admissibility of evidence)06/07/2004Mark W. Bennett
U.S. v. Dustin Honken (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order denying motion to reconsider order for anonymous jury and determining degree of “anonymity”)05/14/2004Mark W. Bennett
Kaydon Acquisition Corp. v. Custum Manufacturing, Inc., et al. : (Action for indemnity following settlement of a third party’s claims in litigation in California; motion to “clarify” ruling on cross-motions for summary judgment as to indemnity for attorneys fees and costs: authority to “clarify” or “reconsider” prior summary judgment ruling, “clarification” of what the prior ruling meant, and “reconsideration” of the prior ruling regarding proof required of a settling indemnitee to recover indemnification, based on contractual exception rather than general rule; motion for summary judgment on counterclaim for failure to pay sales commissions)05/12/2004Mark W. Bennett
Riker-Vanholland v. Transouth Financial Corporation & Robert Hunter (Motion to dismiss; pro se complainant; plaintiff alleges harassment by defendants over loan that was not her responsibility; claim for violation of constitutional rights dismissed as no facts plead to support requirement that defendants were state actors or acted under color of law; civil RICO claim dismissed as pleadings did not evidence more than two predicate acts within the last ten years; two-year statute of limitations applied to plaintiff’s state law personal injury claims—state tort claims dismissed as action was filed more than three years after alleged injury; state law fraud claim subject to five-year statute of limitations; plaintiff’s state law fraud claim survives statute of limitations challenge and hence also survive motion to dismiss; pleadings place defendants on notice of possible claim under Fair Debt Collections Practices Act, 15 U.S.C. § 1692, et seq.—though such a claim cannot be maintained as case was filed outside the two-year limitations period; pleadings also place defendant on notice of possible claim under the “Iowa Debt Collections Practices Act,” Iowa Code § 537.7101, et seq. (“IDCPA”) which is subject to a five-year statute of limitations; plaintiff’s state law fraud claim and “IDCPA” claims survive motion to dismiss; plaintiff given additional time to file amended complaint which: (1) pleads fraud with particularity; (2) specifically pleads a claim under the IDCPA; and (3) adequately avers that the amount in controversy is sufficient for the court to maintain diversity jurisdiction.)05/07/2004Mark W. Bennett
Williams, et al. v. Security National Bank : (Remainder beneficiaries’ suit against trustee for mismanagement of trust; trustee’s motion to stay proceedings in favor of action in Iowa probate court: applicability of the “first-filed rule” and the “Colorado River abstention doctrine” to concurrent actions in state and federal courts; determination of whether the concurrent actions are “parallel”; and consideration of other applicable factors)04/26/2004Mark W. Bennett
Engineered Products Co. v. Donaldson Co., Inc. (Patent infringement action based on patent for air filter restriction indicator; pre-trial motions in the following categories: (1) motions relating to EPC’s case-in-chief (infringement under the doctrine of equivalents, willful infringement); (2) motions relating to Donaldson’s defenses (obviousness-type double patenting, patent misuse, separate patentability); (3) motions relating to experts (qualification, reliability, untimely disclosure); (4) waiver of privilege as to communications to or from EPC’s prior patent counsel; (5) admissibility of a videotape on practices and procedures of the Patent and Trademark Office (PTO); and (6) the release of summary judgment exhibits for use at trial.04/13/2004Mark W. Bennett
Webster Industries, Inc., et al. v. Northwood Doors, Inc., et al. (Removed action by creditors against insolvent corporation and related entities to recover for failure of the insolvent company to pay for goods and services that the plaintiffs provided to that defendant: plaintiffs’ unresisted motion for partial summary judgment against insolvent company on “contract” and “unjust enrichment” claims; defendants’ motion for partial summary judgment on “quantum valebant,” “fraudulent transfer,” “corporate opportunities and duties,” “fraud,” and “RICO” claims)03/25/2004Mark W. Bennett
United States of America v. Barnett (Report and recommendation on two motions to dismiss in case charging various firearms violations. Defendant challenged indictment on basis of lack of specificity and unconstitutional vagueness. In finding indictment sufficient to allege an offense warranting conviction, court discussed: requirements for an indictment; elements of offense under 18 USC section 924(c); inherently dangerous nature of sawed-off shotgun; whether indictment must allege specific characteristics of weapon that make it a "destructive device;" and scienter requirements of 924(c). Court recommended reserving ruling until close of evidence at trial on challenge based on unconstitutional vagueness of 18 USC section 922(g) (noting nature of challege is statute's failure to define "unlawful user of a controlled substance").03/11/2004Paul A. Zoss
Wegener, et al. v. Gehrke Construction, et al. (Two separate cases by injured workers after construction accident; general contractor’s motion in one case for partial summary judgment on indemnity issues and motions in both cases for partial summary judgment that it had no duty to protect subcontractors’ employees: general rule regarding general contractor’s lack of liability and exceptions; analysis of applicability of “contractual duty” exception)03/03/2004Mark W. Bennett
Cochran v. Gehrke Construction, et al. (Two separate cases by injured workers after construction accident; general contractor’s motion in one case for partial summary judgment on indemnity issues and motions in both cases for partial summary judgment that it had no duty to protect subcontractors’ employees: general rule regarding general contractor’s lack of liability and exceptions; analysis of applicability of “contractual duty” exception)03/03/2004Mark W. Bennett
Doctor John's v. City of Sioux City, et al.(Challenge to city’s newly amended zoning ordinances regulating the location of “adult entertainment businesses”; putative adult entertainment business’s motion for preliminary injunction: Dataphase standards for a preliminary injunction; plaintiff’s likelihood of showing constitutional invalidity of a municipal zoning ordinance regulating adult entertainment businesses under the test in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), threat of irreparable harm to First Amendment rights from potentially defective ordinance, balance of harms, and public interest in protection of First Amendment rights; scope of injunction necessary to address constitutional defect; bond requirement under Rule 65(c) and grounds for waiver; and preliminary injunction enjoining enforcement of city’s newly amended ordinances)02/26/2004Mark W. Bennett
Kaydon Acquisitions v. Custum Manufacturing, et al. (Action for indemnity following settlement of a third party’s claims in litigation in California; cross-motions for summary judgment: interpretation and construction of the indemnity provisions of the parties’ Asset Purchase Agreement, including determination of whether the indemnitor had a duty “to defend” the indemnitee or an “on-going” duty to pay the indemnitee’s attorneys’ fees and costs, whether the indemnitor anticipatorily repudiated the indemnity agreement, the effect of the indemnitee’s failure to obtain the indemnitor’s written consent to settlement of the third party’s claims, and whether the resulting construction was “unreasonable” or “absurd”)02/11/2004Mark W. Bennett
U.S. v. Dustin Honken : (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order for anonymous jury and determining degree of “anonymity”)01/29/2004Mark W. Bennett
Dethmers Manufacturing Co., Inc. v. Automatic Equipment Mfg. Co. : (patent infringement action; defendant’s motion to reconsider summary judgment of invalidity of plaintiff’s “reissue patent,” after district court’s ruling and appellate review: “reconsideration” based on purported “new authority,” the Supreme Court’s decision in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722 (2002), including the impact of the “law of the case” doctrine and “mandate rule” in the circumstances presented, and the extent to which the Festo decision, concerning prosecution history estoppel for infringement under the doctrine of equivalents, was “new” and applicable to the “recapture rule” for the validity of a reissue patent)01/14/2004Mark W. Bennett
U.S. v. Dustin Honken(death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order closing hearing on government’s motion for anonymous jury)01/07/2004Mark W. Bennett
In Re Application of Brant : (Application to proceed in forma pauperis; order requiring filing of application effective date that applicant attempted to file it, but denying application for failure to comply with 28 U.S.C. § 1915, because application fails to identify the “nature of the action”) 12/22/2003Mark W. Bennett
McKinney v. New Cooperative, Inc., et al. (Employment discrimination lawsuit pursuant to Title VII and the Iowa Civil Rights Act: defendant’s motion for summary judgment on the plaintiff’s claims of a sexually hostile work environment, retaliation, and constructive discharge)12/11/2003Mark W. Bennett
U.S. v. Dustin Honken (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order for hearing and briefing on government’s motion for anonymous jury, including whether the hearing should be closed and the appropriate degree of “anonymity” for the jury)11/26/2003Mark W. Bennett
Cochran v. Gehrke, Inc. and National Tank Corporation(Litigation after construction accident; general contractor’s motion for partial summary judgment on cross-claim of contractual indemnity against sub-contractor: principles of Iowa law regarding contractual indemnity, including interpretation and construction of indemnity provisions, indemnity for indemnitee’s own negligence, and roles of court and jury in determination of indemnity claim)11/24/2003Mark W. Bennett
Brown v. HyVee (Order granting summary judgment to defendant in case where plaintiff claimed employment discrimination based on age, sex, and retaliation. Court found case was untimely on State law retaliation claim; plaintiff failed to exhaust sex discrimination claim; and plaintiff failed to meet his burden to show employer's reasons for demoting plaintiff were pretext for age discrimination.)11/18/2003Paul A. Zoss
Engineered Products v. Donaldson Company (Order disqualifying trial counsel in patent case. Plaintiff's counsel was formerly defendant's trial counsel when he worked for a large firm. Although he had not worked on present case, and had not done any work for defendant corporation for several years, court found, under facts of case and current law in Iowa and Eighth Circuit, an unrebuttable presumption that attorney was presumed to have knowledge of confidential communications between defendant and other attorneys in counsel's former firm. Court discusses Iowa ethical rules and Eighth Circuit law.)11/14/2003Paul A. Zoss
Williams, et al v. Security National Bank ((Remainder beneficiaries’ suit against trustee for mismanagement of trust; remainder beneficiaries’ motion to dismiss trustees counterclaims for breach of contract, fraud, and conspiracy: whether claims as pleaded are so at odds with documents supporting those claims as to require dismissal pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted)11/06/2003Mark W. Bennett
Pioneer Hi-Bred International, Inc. v. Ottawa Plant Food, Inc. (Patent infringement action for unlicensed resale of seed corn; parties’ motions in limine: motions to exclude evidence from experts under Daubert, to exclude evidence of settlement with other defendants, to exclude evidence of equitable defenses in jury trial, to exclude statements defendant purportedly obtained from state and federal agencies regarding lawfulness of its conduct, to exclude evidence of an opinion of counsel of non-infringement purportedly obtained by defendant but as to which defendant has asserted attorney-client and work-product privileges, and to exclude plaintiff’s evidence of reasonable royalties as sanction for failure to disclose other royalty agreements; defendant’s motion for advisory jury on equitable defenses)10/24/2003Mark W. Bennett
Bartleson v. Winnebago Industries, Inc. (Order granting motion to amend complaint. Plaintiffs, who brought a class action for unpaid overtime wages under the Fair Labor Standards Act, sought to add a claim under the Iowa Wage Payment Collection Act. The federal statute only allows for an "opt-in" class action, whereas the Iowa law is not similarly restricted. Court discussed rationale for allowing FLSA and state wage payment claims to be brought in collective action; court's ability to manage two classes of plaintiffs in a single action; and factors bearing on discretionary exercise of supplemental jurisdiction over state-law claims.)10/24/2003Paul A. Zoss
Jimenez v. Duran (Employees’ action for violation of FLSA overtime and payroll deduction provisions, breach of contract, and wrongful discharge; parties’ cross-motions for partial summary judgment on overtime pay portion of FLSA claim: application of the “Holly Farms analysis” to assertion of an “agricultural employee” exemption from the overtime pay provisions of the FLSA, 29 U.S.C. § 213(b)(12)) 10/20/2003Mark W. Bennett
Dunbar v. Pepsi-Cola Bottlers of Iowa, Inc. (Race discrimination (disparate treatment) pursuant to Title VII; defendant’s motion for summary judgment: elements of the plaintiff’s prima facie case, including “qualification,” adverse employment action, and treatment of similarly situated persons; further showings required and modification of the McDonnell Douglas burden-shifting paradigm in light of Desert Palace v. Costa, 539 U.S. ___, 123 S. Ct. 2148 (2003), and 42 U.S.C. § 2000e-2(m))10/07/2003Mark W. Bennett
Kenyon v. State of Ia. & Honorable Gary Wenell (Public employee’s suit for wrongful discharge against State of Iowa and state court judge; defendants’ motion to dismiss: Eleventh Amendment immunity of the State and a state official to suit, including whether 42 U.S.C. § 1983 abrogates such immunity, whether the Iowa Tort Claims Act waives immunity to suit in federal court, the extent of immunity for a state official in his official and individual capacities, and the presumption of official capacity where no capacity is pleaded; whether other officials who voted on the public employee’s termination are indispensable parties to the suit)09/30/2003Mark W. Bennett
Pioneer Hi-Bred International, Inc. v. Ottawa Plant Food, Inc. (Patent infringement action for unlicensed resale of seed corn; parties’ cross-motions for summary judgment on liability issues: applicability of "first sale" or "patent exhaustion" doctrine, restrictions and notice of restrictions in "limited label license," enforceability of "limited label license"; defendant’s motion for summary judgment on damages issues: satisfaction of "marking" statute, 35 U.S.C. § 287, damages for infringement pursuant to 35 U.S.C. § 284, full compensation from prior sale, and increased damages for "willful" infringement)09/29/2003Mark W. Bennett
Central States, et al. v. McCullough : (Action by former employer against former employee for breach of contract, breach of fiduciary duty, and violation of Iowa Trade Secrets Act; defendant’s motion to strike affidavits in resistance to summary judgment motion: Rule 56(e) requirements, contradiction of prior testimony, Rule 37 sanctions for failure to disclose witness; defendant’s motion for summary judgment: contract claims: capacity to contract, adequacy of consideration, whether contract was superseded, breach by removal, retention, and disclosure of secret or proprietary information; Trade Secrets Act: "trade secrets" and "misappropriation"; breach of fiduciary duty: scope of duty of loyalty, disclosure of proprietary information, solicitation of employees)09/03/2003Mark W. Bennett
Morgan v. Morgan (Petition for Return of Child pursuant to The Convention on the Civil Aspects of International Child Abduction (CCAICA), and the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq.; Temporary Restraining Order and Order for Expedited Hearing; Order to Appear at Show Cause Hearing)08/28/2003Mark W. Bennett
Eischeid v. Dover Construction, Inc., et al. (Suit by injured employee of subcontractor against general contractor and third-party indemnity claims by and among general contractor and two subcontractors; employee’s motion to extend dispositive motion deadline granted; employee’s motion for summary judgment on liability portion of “direct” negligence claim against general contractor, based on “contractual” and “control of the job” liability theories, granted; employee’s motion to sever trial on indemnity claims from trial on damages issues on “direct” negligence claim granted; and employee’s motion to intervene in third-party indemnity action as of right pursuant to Rule 24(a)(2) denied, but permissive intervention pursuant to Rule 24(b) granted).08/25/2003Mark W. Bennett
United States of America v. Howard (R&R recommending denial of defendant's motion to suppress evidence. Issues: officers' right to do protective frisk for weapons, discussing Terry v. Ohio and United States v. Roggeman; officers' authority to enter motel room to execute arrest warrant, discussing Payton v. New York and United States v. Junkman; "public safety exception" to Miranda requirements)08/14/2003Paul A. Zoss
Pioneer Hi-Bred v. Ottawa Plant Food (Order granting motion to compel production of communications between defendant's experts and defendant's attorneys, following the holding in In re Pioneer Hi Bred International, Inc., 238 F.3d 1370 (Fed. Cir. 2001), which the Eighth Circuit described as "applying Eighth Circuit law on privileges and holding that documents and information disclosed to an expert in connection with testimony are discoverable whether or not the expert relies on the documents and information in preparing the expert report." Pepsico, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d 813, 817 n.2 (8th Cir. 2002).)07/25/2003Paul A. Zoss
U.S. v. Dustin Honken (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on defendant’s motion to dismiss capital counts on former jeopardy grounds)07/21/2003Mark W. Bennett
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on defendant’s motion to reconsider denial of motion to dismiss non-capital offenses on statute of limitations grounds)07/11/2003Mark W. Bennett
White v. Kautzky (Prisoner’s § 1983 "access to courts" claim; review of magistrate judge’s report and recommendation on defendants’ motion for summary judgment: whether there are genuine issues of material fact on "reasonable opportunity to present claims" and "actual injury" elements where "contract attorneys" at prison allegedly failed to provide any advice on the viability of a potential claim for post-conviction relief)07/03/2003Mark W. Bennett
Zeigler v. Fisher-Price (Order on motions to preclude expert testimony and to bifurcate punitive damages phase of trial. Court discusses choice of law rules, standards for evaluating expert testimony in general, Iowa law on use of circumstantial evidence to support expert opinion, and law relating to biburcation of claims.)07/01/2003Paul A. Zoss
Schneider v. Jergens, et al. (Habeas corpus petition pursuant to 28 U.S.C. § 2254; motion to dismiss challenge to constitutionality of the review procedure for criminal contempt convictions: procedural default, exhaustion of state remedies and alleged "ineffectiveness" of such remedies, and dismissal or amendment of a"“mixed petition" asserting exhausted and unexhausted claims)06/26/2003Mark W. Bennett
Faber v. Menard, Inc. (Employee’s claims of age discrimination and retaliation under the ADEA and state law; defendant’s motion to compel arbitration and plaintiff’s post-Circuit City challenge to enforceability of arbitration clause under state law: adequacy of consideration in mutual promises and continued employment, and procedural and substantive unconscionability of arbitration clause in adhesion contract that requires employee to bear his own costs and attorney fees in arbitration and half the costs of the arbitrator; court’s sua sponte certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b))06/17/2003Mark W. Bennett
Eischeid v. Dover Construction, et al. ("Direct" and third-party claims arising from a construction accident; motions for summary judgment on claims by and against defendant, third-party defendant, and third-party plaintiff Woods Masonry: whether plaintiff’s "direct" negligence claims against his employer/subcontractor are barred by the "exclusive remedy" provisions of the Iowa Workers’ Compensation Act (IWCA); whether the contractor’s contribution, indemnity, and breach-of-contract claims against the subcontractor/employer are also barred by the IWCA; whether the subcontractor/employer’s third-party claim against another subcontractor are barred by purported admissions of the subcontractor/employer’s president that the subcontractor and its employees "did nothing wrong")06/03/2003Mark W. Bennett
United States. v. Nieman (Criminal prosecution for bank fraud and embezzlement; defendant’s motions to dismiss a superseding indictment for pre-indictment delay and failure to state offenses: application of the "prejudice" and "intentional delay" standard to a claim of pre-indictment delay; sufficiency of the charges in terms of allegation of the essential elements of the offense, including allegation of "intent to defraud" in bank fraud count and conduct constituting "embezzlement" or "misapplication" in embezzlement counts, and the defendant’s ability to prepare a defense or to plead acquittal or conviction as a bar to subsequent prosecution) 05/30/2003Mark W. Bennett
Walker Manufacturing, Inc. v. Hoffmann, Inc, et al. (Suit for interference with intellectual property rights and business; defendant’s second motion for partial summary judgment: applicability of doctrine of de minimis non curat lex to "reverse palming off" claims under the Copyright Act and Lanham Act; cognizability of "copying" claim as "reverse palming off"; requirement of "actual consumer confusion" to obtain money damages for "reverse palming off"; availability of permanent injunctive relief; impact of possibility of "reverse engineering" on definition of a "trade secret"; and availability and measure of money damages, including a "reasonable royalty," for misappropriation of trade secrets)05/12/2003Mark W. Bennett
Millage v. City of Sioux City (ADA suit alleging "perceived disability" discrimination and "record of disability" discrimination; defendant’s motion for summary judgment: timeliness of an administrative charge filed first with the EEOC, not a state agency, in a "deferral state"; ability of plaintiff, an insulin-dependent diabetic, to perform the "essential functions" of his job as a City bus driver, including consideration of the validity of "blanket exclusions," the need for "individualized assessment" of a claimant’s ability to perform a job, and the impact of purportedly inconsistent statements by the claimant concerning his ability to perform the job and the adequacy of his explanations for such inconsistencies) 04/25/2003Mark W. Bennett
Brass v. Incorporated City of Manly, Iowa, et al (Order granting partial summary judgment to Mayor and City of Manly, Iowa, on claims by terminated police officers for deprivation of liberty interest without due process, defamation, and retaliatory discharge in violation of public policy. Discusses requirements for due process claim for loss of an employee's liberty interest; requirements for defamation claim under Iowa law; and scope of Iowa's whistle-blower statute, Iowa Code section 70A.29.)04/17/2003Paul A. Zoss
DIRECTV v. Meyer, et al. (Suit involving alleged piracy of satellite television broadcasts; plaintiff’s motion for entry of default judgment and defendant’s motion to set aside default: standards to set aside entry of default as opposed to entry of default judgment)04/04/2003Mark W. Bennett
Wordekemper v. Western Iowa Homes, et al. (Employment disability discrimination claims under the ADA and ICRA and common-law claim of retaliation for seeking workers’ compensation benefits; defendants’ motion for summary judgment: considering "actual," "perceived," and "record of" disability and legitimate reason/pretext; assuming a claim of "retaliatory failure to hire" will lie against a new employer for allegedly refusing to hire a prospective employee based on his workers’ compensation claims in prior employment, considering evidence of retaliatory intent)03/17/2003Mark W. Bennett
Zeigler v. Fisher-Price (Order requiring disclosure of certain internal memoranda in products liability case. Discusses availability of private right of action under Consumer Product Safety Act; law applicable to claims of privilege when court's jurisdiction is based on diversity; requirements to withhold production of documents prepared in anticipation of litigation. In this case, defendant's risk management and legal department routinely investigated all consumer claims of fires involving defendant's products. Court found internal evaluation forms were prepared in ordinary course of business and were discoverable.)03/13/2003Paul A. Zoss
Canady v. John Morrell & Co. (Employment case involving claims of racial and sexual harassment and retaliation in violation of Title VII; defendant’s motion for summary judgment: evidence of animus in race- and gender-neutral harassment; sufficiency of notice to employer that harassment is allegedly based on race or sex; evidence of adverse employment action in the form of constructive discharge, and causal connection between that adverse action and protected activity, in support of a retaliation claim)03/03/2003Mark W. Bennett
Windle v. John Morrell & Co. (Order granting plaintiff's motion for leave to amend Complaint to specify that the action, brought under 42 USC Section 1981, also was asserted under Title VII of the Civil Rights Act of 1964. The court discussed the difference between "race" and "national origin," and whether section 1981 allows a claim for racial discrimination. The court also noted the 8th Circuit's holding that it is an abuse of discretion not to allow this type of amendment, given that Title VII and section 1981 claims are substantially identical."02/17/2003Paul A. Zoss
Webster Industries, Inc., et al. v. Northwood Doors, Inc. (Removed action by creditors against insolvent corporation and related entities to recover for failure of the insolvent company to pay for goods and services that the plaintiffs provided to that defendant; plaintiffs’ motion for default and default judgment and defendants’ countervailing motion to set aside default entered by Clerk of Court: adequacy of personal service and service by publication under applicable federal, Iowa, and Minnesota rules of civil procedure)02/13/2003Mark W. Bennett
Navrude v. The United States of America (USPS) (Order on discovery motions. Discusses whena treating physician is subject to expert witness disclosure requirements of Fed. R. Civ. P. 26(a)(2)(B).)02/12/2003Paul A. Zoss
Joens v. John Morrell & Co. (Sexual harassment, disparate treatment based on sex, and retaliation claims pursuant to Title VII; defendant’s motion for summary judgment: sexual harassment claim: sufficiency of evidence of gender-neutral comments to generate a genuine issue of material fact on sexual harassment, whether harassment affected a term or condition of employment based on severity and prevasiveness, whether the alleged harasser was a supervisor" or "co-worker" for purposes of employer liability based on his status as "a foreman," what notice is sufficient to inform employer that alleged harassment is "based on sex"; disparate treatment and retaliation claims: whether an overtime disparity constitutes "adverse employment action," and sufficient of evidence to generate a genuine issue of material fact on discriminatory or retaliatory animus)02/07/2003Mark W. Bennett
Hide details for PRIS - Prisoners' Rights and Post-Conviction ReliefPRIS - Prisoners' Rights and Post-Conviction Relief
Ingram v. United States (Action by federal prisoner challenging geographic disparity in the application of § 851 enhancements: Eighth Amendment claim and equal protection/selective prosecution claim.)10/31/2017Mark W. Bennett
Estate of Leighton Fitz01/18/2017Edward J McManus
James Robert Ernst III v Black Hawk County Jail, et al12/22/2016Edward J McManus
Smith v. Smith, et al. -- Memorandum opinion and order accepting report and recommendation on defendants' motion for summary judgment on plaintiff's Section 1983 claims. Plaintiff alleged deliberate indifference to a serious medical need and failure to train based on his work assignment at a landfill. Court found there was no genuine issue of material fact as to whether plaintiff suffered an objectively serious medical need from his alleged exposure to bio-hazardous material and whether defendants were deliberately indifferent. Plaintiff also failed to demonstrate a fact issue on his failure to train claim. Court concluded defendants were entitled to judgment as a matter of law on the undisputed facts of each of these claims and granted defendants' motions for summary judgment.09/29/2016Leonard T. Strand
Glenn McGhee v State of Iowa08/16/2016Edward J McManus
Randy Blanchard v. William Sperfslage07/05/2016Edward J McManus
Barajas v. USA -- Post remand ruling on Barajas' 28 U.S.C. section 2255 petition. Although Judge O'Brien previously found that petitioner's trial counsel failed to advise petitioner about the collateral consequences of his plea, the Supreme Court decision in Chaidez v. United States, 133 S. Ct. 1103 (2013) controls this case. In Chaidez the Supreme Court found that Padilla v. Kentucky, 559 U.S. 356, 360 (2010) announced a new rule, and under existing precedent, new rules are not applicable to cases that arose prior to the announcement of the new rule. Thus, because petitioner's case occurred before the Supreme Court announced its decision in Padilla, the petitioner is not entitled to Padilla type relief. Additionally Barajas' argument that Teague v. Lane, 489 U.S. 288 (1989) should not aply to federal prisoners is not supported by any Eighth Circuit precedent and is denied. Finally, neither Barajas' argument that Judge O'Brien made a secondary holding, or that Barajas received material misrepresentation, are supported by the record in this case and are denied. The petitioner is entilted to a certificate of appealability on the issues of whether Teague v. Lane applies to federal prisoners. 02/29/2016Leonard T. Strand
Scott v. Benson & Smith (Civilly detained sexual offender brought a 42 U.S.C. § 1983 action for declaratory relief. In his principal claim, detainee argued that he had a due process right to refuse unwanted medical treatment, pursuant to Supreme Court precedent in Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Detainee also argued that the defendants were deliberately indifferent by providing him a medically restricted diet, making decision regarding his prosthetic leg and wheelchair, and not allowing him to travel to the University of Iowa for medical services. The court held that although citizens have a general right to refuse unwanted medical treatment, no law supported detainee's request for prospective injunctive relief because, after applying the Turner v. Safley, 482 U.S. 78 (1987) factors, the government often has a countervailing interest in the course of a detainee's medical treatment. Accordingly, the propriety of injunctive relief must be determined on a case by case basis. The court also held that the detainee had failed to establish that the defendants were deliberately indifferent regarding detainee's prosthetic leg and wheelchair; the detainee's claim related to a medically restricted diet was barred by the doctrine of res judicata; and the detainee had no constitutional right that would allow him to choose where he received medical services.)12/17/2015Mark W. Bennett
Hillman v. Wagers, et al. -- Report and Recommendation on defendants' motion for summary judgment. Court found defendants have accurately described the applicable law and have properly applied that law to the undisputed material facts. Court found that the record, even if viewed in a light most favorably to the plaintiff, fails to establish a genuine issue of material fact as to whether the defendants violated the plaintiff's constitutional rights and whether defendants are entitled to qualified immunity. Court granted the motion for summary judgment and ordered the judgment be entered against plaintiff in favor of defendants. 08/20/2015Leonard T. Strand
Stokes v. Hacker -- Order on defendant's motion to set aside default entry and motion to set aside default judgment. Court determined that good cause existed to set aside the clerk's entry of default due to the blameworthiness of both parties in allowing this default to occur. Court determined that plaintiff was not prejudiced by this delay. Court also found that the motion to set aside default judgment was moot after setting aside the clerk's entry of default. Motion was denied in part and granted in part. 08/17/2015Leonard T. Strand
Welsh v. Andrews, et al. -- Report and Recommendation on defendants' motion to dismiss. Court found there were no genuine issues of material fact regrding Welsh's excessive force claim. Court also found the use of pepper spray, under the circumstances, was not used maliciously, did not cause the type of injury required for an Eighth Amendment claim and was reasonable. Court concluded Welsh failed to exhaust all available administrative remedies prior to filing the lawsuit. Court further found prison staff and officials were entitled to qualified immunity and the Iowa Department of Corrections was entitled to Eleventh Amendment immunity. Court recommdnded the motion to dismiss be granted with respect to all claims. 06/30/2015Leonard T. Strand
Garcia De Alvarez v. U.S. (Motion for relief from sentence pursuant to 28 U.S.C. § 2255 by a federal prisoner asserting ineffective assistance of counsel; petitioner’s claims denied without hearing as to trial counsel’s failure to seek a bill or particulars, explain alternatives to trial in “laymen’s” terms, and failure to challenge drug quantity and purity; evidentiary hearing granted on petitioner’s claim that trial counsel failed to interview and present potential witnesses that the petitioner had identified)02/06/2015Mark W. Bennett
Fiore v. Drew, et al -- Report and Recommendation on defendants' motion for summary judgment. Court concluded Fiore failed to properly exhaust all available administrative remedies by not submitting grievances based on the allegations in his complaint and by not following the correct grievance procedures. Court also concluded Fiore could not create any genuine issues of material fact regardng his allegations of deliberate indifference towards his medical needs, verbal sexual harassment and failure to respond to grievances. Court recommended defendants' motion for summary judgment be granted and Fiore's complaint be dismissed with prejudice.02/05/2015Leonard T. Strand
Richard Trevino v. Woodbury County Jail, et al. -- Report and Recommendation on motion for summary judgment by defendants Woodbury County Jail, Lieutenant Phillips and Carlos LNU. Court concluded Trevino failed to exhaust all available administrative remedies by not submitting grievances to the Jail regarding all his allegations, by not following the Jail's procedures for filing grievances and by not filing any complaints with the Department of Justice. Court also concluded no genuine issues of material fact exist with regard to the elements of Trevino's ADA claim. Court recommended the motion for summary judgment be granted with respect to all Trevino's claims.01/22/2015Leonard T. Strand
Wilkins v. Ludwick -- Order on pending motions and Report and Recommendation on petition for writ of habeas corpus under 28 U.S.C. 2254. Court denied motions to add a supplemental claim and expand the record because supplemental claim was barred by statute of limitations. As to the petition, court found Iowa Supreme Court did not identify Strickland as the correct governing law for petitioner's ineffective assistance of counsel claim for failure to object to use of the nickname "O.J." at trial. In conducting de novo review, court found petitioner failed to demonstrate prejudice under Strickland. Court found that Iowa Court of Appeals decision on other ineffective assistance of counsel claim for failure to investigate a witness and call him at trial did not result in an unreasonable application of federal law. Court recommended the petition be denied. 07/21/2014Leonard T. Strand
Celia v. North Central Correctional Faciltiy, et al. -- Report and Recommendation on defendants' motion for summary judgment on plaintiff's Section 1983 claim of deliberate indifference to a serious medical need. Court found plaintiff failed to demonstrate a genuine issue of material fact as to whether defendants actually knew of and disregarded a substantial risk of serious harm to plaintiff in the treatment and timing of treatment for his ankle injury. In addition, the undisputed evidence showed plaintiff had not exhausted his administrative remedies as required by 42 U.S.C. 1997e(a) and defendants were entitled to qualified immunity. Court recommended defendants' motion for summary judgment be granted.06/13/2014Leonard T. Strand
Langdeaux v. Lund -- Order on motion to expand the record and Report and Recommendation on petition for writ of habeas corpus under 28 U.S.C. 2254. Court denied motion to expand the record under 28 U.S.C. 2254(e)(2). As to the petition, court found Iowa Court of Appeals decision did not result in any unreasonable application of federal law when it concluded the petitioner was not prejudiced by his counsels' failure to advise him about the felony-murder rule in the context of whether to accept the state's plea offer. Court also found Iowa Court of Appeals reasonably applied Strickland in concluding counsels' decision not to call the sheriff as a witness or conduct further investigation based on his statement did not amount to deficient performance. Court recommended the petition be denied. 05/20/2014Leonard T. Strand
Koons v. United States of America (Motion for relief from sentence pursuant to 28 U.S.C. § 2255 by a federal prisoner asserting ineffective assistance of counsel; respondent’s motion to dismiss as untimely converted to petitioner’s motion for summary judgment on equitable tolling of the statute of limitations: whether counsel hired to file § 2255 Motion engaged in misconduct sufficient to constitute “extraordinary circumstances” that prevented the petitioner from timely filing her § 2255 Motion, and whether the petitioner acted “diligently” before and after the deadline for filing her § 2255 Motion before filing the Motion pro se three months after the deadline)01/31/2014Mark W. Bennett
Sanders v. McKinney, et al. -- Report and Recommendation on defendants' motion for summary judgment on plaintiff's Section 1983 claim for deliberate indifference to a serious medical need. Court found that plaintiff had failed to demonstrate genuine issue of material fact as to whether defendants actually knew of a substantial risk of serious harm to Sander's health and disrgarded it. Alternatively, defendants were entitled to a qualified immunity and there was insufficient factual evidence to support Sander's claim against certain defendants. Court recommended that defendants' motion for summary judgment be granted.12/17/2013Leonard T. Strand
Velazquez-Ramirez v. Fayram -- Report and Recommendation on petition for writ of habeas corpus under 28 U.S.C. 2254. Court found Iowa Court of Appeals unreasonably applied Strickland's prejudice prong to claims of ineffective assistance of counsel for failure to file a motion for change of venue and investigate prejudice in the jury pool and failure to raise issue of compliance with the Vienna Convention. However, under de novo review the court found petitioner was unable to demonstrate prejudice. Court found Iowa Court of appeals reasonably applied Strickland in concluding counsel's alleged failure to challenge the sufficiency of the evidence to support first-degree murder did not amount to deficient performance. Finally, court found claim of ineffective assistance for failure to file a motion to suppress based on Miranda violation was procedurally barred. Court recommended petition be denied.10/23/2013Leonard T. Strand
Honken v. United States of America, Order Regarding Motion to Vacate Set Aside or Correct Convictions and Sentences10/04/2013Linda R. Reade
Rogers v. U.S. : (federal prisoner’s pro se motion to set aside sentence, pursuant to 28 U.S.C. § 2255, on guilty plea to bank fraud via a check cashing scheme: ruling without evidentiary hearing: granting a new sentencing on the basis of ineffective assistance of trial counsel by failing to object to a two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(10), for use of an “access device” because the bad checks used to perpetrate the bank fraud scheme in this case did not constitute an “access device,” and ineffective assistance of trial counsel by failing to investigate adequately the petitioner’s mental health as an explanation of his prior violent conduct for which his sentence had been enhanced) 06/11/2013Mark W. Bennett
Guillermo Escobedo v. Mark Lund (Action for federal habeas relief pursuant to 28 U.S.C. § 2254 by a state prisoner challenging his conviction for first-degree murder on the ground that his trial counsel failed to seek an “automatic” mistrial when the trial judge excused a juror for bias after deliberations had started and replaced the excused juror with an alternate contrary to Iowa law, which required a mistrial or the defendant’s agreement to continue deliberations with the eleven remaining jurors)06/03/2013Mark W. Bennett
Boss v. Ludwick (Action for federal habeas relief pursuant to 28 U.S.C. § 2254 by a state prisoner challenging his conviction for the first-degree murder of his foster son on the ground that his trial counsel provided ineffective assistance (1) by revealing the location of the child’s body and (2) by failing to advise and consult with the petitioner adequately before convincing the petitioner to reveal the location of the child’s body; parties’ objections to report and recommendation by magistrate judge finding “prejudice” from trial counsel’s performance, but denying federal habeas relief; stating standards for review by the district court of a magistrate judge’s report and recommendation; construing the nature of the petitioner’s underlying constitutional claims of ineffective assistance of counsel and his claims for federal habeas relief pursuant to § 2254(d); considering whether the federal court is required to review de novo both prongs under Strickland, if the state court stated the wrong standard of review for one prong; considering whether denial of relief by the state courts on the basis of failure to find “deficient performance” under Strickland were “contrary to” or “unreasonable applications of” federal law or “unreasonable determinations” of the facts in light of the evidence before the state courts pursuant to § 2254(d)(1) and (2); and declining to consider the “prejudice” prong under Strickland, where the lack of deficiency in the state court decisions concerning “deficient performance” was fully dispositive of the petitioner’s claims)05/03/2013Mark W. Bennett
Escobedo v. Lund -- Report and Recommendation on petition for writ of habeas corpus under 28 USC 2254. Petitioner claimed ineffective assistance of trial counsel for failure to move for a mistrial when a juror was substituted during deliberations. In recommending the petition be denied, the Court found the petitioner fialed to show that the decision of the Iowa Court of Appeals involved an unreasonable application of Supreme Court precedent.09/06/2012Leonard T. Strand
Boss v. Ludwick (state prisoner’s § 2254 petition; petitioner’s objections to report and recommendation on petitioner’s motion to stay unexhausted claims: standards of review for a report and recommendation; rules of unexhausted and procedurally defaulted claims; availability of “stay and abeyance” procedure when claims are procedurally defaulted)05/01/2012Mark W. Bennett
Angela Johnson v. U.S. : (capital defendant’s § 2255 Motion asserting 64 grounds for relief from her convictions and death sentences for murders in furtherance of a continuing criminal enterprise (CCE murder) pursuant to 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2: grounds that the petitioner chose to emphasize in her post-hearing brief included the following: her attorneys' failure to pursue a disposition for a sentence less than death before trial; her attorneys' failure to adjust her medications or otherwise address the effects of her medication on her demeanor and competence during the merits phase of her trial; her attorneys' failure to confront aggravating evidence, or to prepare and present an effective mitigation case, and prosecutorial misconduct during the penalty phase of her trial; and a claim that the Bureau of Prisons' method of carrying out her execution would violate the Fifth and Eighth Amendments to the United States Constitution, the Administrative Procedures Act, and the Controlled Substances Act. Convictions upheld, but relief from death sentences granted, and new penalty-phase trial ordered, on 4 of 48 claims of ineffective assistance of counsel.)03/22/2012Mark W. Bennett
Freie v. Fayram (Petition for habeas corpus relief from Iowa state court conviction under § 2254; respondent filed motion to dismiss claiming that all of petitioner’s claims were untimely; report and recommendation prepared by magistrate judge recommended granting respondent’s motion because petitioner’s claims were untimely; petitioner filed pro se objections to report and recommendation; the court concluded that magistrate judge correctly determined that petitioner’s claims were all barred by the one-year period of limitations in the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d). Respondent’s motion to dismiss was granted. )10/13/2011Mark W. Bennett
Freie v. Fayram - Report and Recommendation recommending granting respondent's motion to dismiss petition for writ of habeas corpus under 28 USC 2254. Court found that tollign of AEDPA's limitations period did not apply to petitioner's untimely petition06/09/2011Paul A. Zoss
Powell v. Fayram -- Report and Recommendation on petition for writ of habeas corpus under 28 USC 2254. Petitioner claimed ineffective assistance of trial counsel in four respects: (1) failure to move for judgment of acquittal; (2) failure to move for change of venue: (3) failure to give petitioner correct advice during plea negotiations concerning the time he would serve if convicted of attempted murder; and (4) failure to retain an expet witness to establish that brakes on pickup truck were defective. In recommending the petition be denied, the Court found the petitioner failed to show that the decision of the Iowa Court of Appeals involved either an unreasonable application of Supreme Court precedents to the facts, or was based on an unreasonable determination of the facts in light of the evidence.02/18/2011Paul A. Zoss
Woodard v. O'Brien -- Report and Recommendation on defendants' motion for summary judgment. Despite anecdotal evidence suggesting defendants' actions caused plaintiff to suffer needless pain, court reluctantly found plaintiff had failed to meet his burden to offer verifiable medical evidence that defendants' actions caused plaintiff harm. Plaintiff therefore failed to show defendants were deliberately indifferent to his serious medical needs, and the court recommended defendants' motionfor summary judgment be granted.01/10/2011Paul A. Zoss
Turner v. U.S. (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255, asserting as grounds that the prosecution violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose police reports that contained material which could have been used to impeach the police officers and that he was provided with ineffective assistance of trial and appellate counsel. Motion denied in its entirety: first, petitioner, by entering a plea of guilty, waived his right to collaterally attack his conviction based on claims that his counsel was ineffective in his handling of the suppression hearing, that his trial counsel was ineffective in failing to challenge the sufficiency of the Indictment’s 21 U.S.C. § 860 charge, and that the prosecution’s failure to disclose the police reports was a Brady violation; second, petitioner could not relitigate in his § 2255 motion his claim that his appellate counsel was ineffective for failing to challenge petitioner’s armed career criminal designation since that issue was raised and decided on appeal; and, finally, petitioner could not demonstrate that his counsel’s conduct fell below the wide range of reasonable professional assistance in failing to object to prosecution’s § 851 notice of enhanced penalties, or that but for counsel’s failure to object to the prosecution’s § 851 notice, the result of the proceedings would have been any different.)07/15/2010Mark W. Bennett
Johnson v. U.S.(§ 2255 motion by defendant convicted of capital charges of murders while working in furtherance of a continuing criminal enterprise: respondent’s motion for psychiatric examinations of the petitioner: the applicable discovery rule for mental examinations, via Habeas Rule 6(a), is Rule 35 of the Federal Rules of Civil Procedure, not Rule 12.2 of the Federal Rules of Criminal Procedure; “in controversy” and “good cause” requirements of Rule 35, including whether the respondent was required to meet those requirements as to categories of mental conditions and categories of tests, or as to specific mental conditions and specific tests; Fifth and Sixth Amendment concerns and requirements for reports) 03/18/2010Mark W. Bennett
Redd v. McKinney -- Report and Recommendation on petition for writ of habeas corpus under 28 USC Section 2254. Court found petitioner failed to show Iowa court's decisions were unreasonable in finding his trial and appellate counsel were not ineffective for failing to lodge proper objections to admission of certain evidence at trial. 03/16/2010Paul A. Zoss
Chisley v. Lund -- Report and Recommendation on petition for writ of habeas corpus under 28 USC 2254. Petitioner claimed state court should not have allowed hearsay testimony into evidence. Court found the claim to be unreviewable because Iowa courts decided the claim on state law grounds, and petitioner had failed to exhaust the claim on federal constitutional grounds.02/09/2010Paul A. Zoss
Williams v. Ault -- Report and Recommendation on petition for writ of habeas corpus under 28 USC 2254. Petitioner claimed trial court erred in failing to suppress identification testimony resulting from photo array; evidence was insufficient to prove he aided and abetted in murder and robbery; and trial counsel were ineffective in failing to object to jury instruction on alternative theories of prosecution, failing to enforce a plea agreement, and failing to advise him of his right to testify. Court found petitioner failed to show Iowa appellate court decisions were contrary to clearly-established federal law, or that his counsel's performance, even if deficient, prejudiced him. 01/19/2010Paul A. Zoss
Maldonado v. U.S. (2255 motion for post-conviction relief: claims of improper use of an uncounseled misdemeanor conviction, also without an interpreter, to enhance a federal sentence, ineffective assistance of counsel in failing to raise that claim at sentencing or on direct appeal to overcome procedural default of that claim and as a claim for relief, and ineffective assistance of counsel leading to forfeiture of the third level reduction for acceptance of responsibility) 01/15/2010Mark W. Bennett
Report and Recommendation on defendant's motion for summary judgment. Plaintiff alleged defendants were deliberately indifferent to his serious medical needs, causing him to suffer ongoing, severe pain and ultimately resulting in removal of his left eye. Court found material issues of disputed fact existed, precluding summary judgment as to all but one of the defendants. Court further found that either plaintiff exhausted his administrative remedies, or alternatively a material issue of material fact existed regarding whether he properly exhausted his remedies. Court further found defendants were not entitled to qualified immunity. 01/14/2010Paul A. Zoss
Hart v. Baldwin, et al. (Motion for Summary Judgment; the court grants defendants’ motion for summary judgment on the ground that plaintiff failed to “properly exhaust” his remedies pursuant to 42 U.S.C. § 1997e(a), as there was no genuine issue of material fact concerning whether his grievance was timely filed—plaintiff failed to comply with the prison system’s rule that grievances must be filed within thirty days of incident about which the prisoner is complaining.) 09/22/2009Mark W. Bennett
Hart v. Baldwin -- Report and Recommendation on defendants' motion for summary judgment in prisoner 1983 case where plaintiff claimed unconstitutional retrictions on his mail. Court found plaintiff had failed to exhaust administrative remedies with regard to claims for monetary damages, and claims for equitable relief were rendered moot when prisoner was transferred to another facility.07/23/2009Paul A. Zoss
Redd v. McKinney -- Report and Recommendation on respondent's motion for partial summary judgment. Parties conceded, and court concluded, that only one issue raised in 2254 petition had been properly exhausted and was ripe for decision.07/20/2009Paul A. Zoss
Winters v. Maples -- Report and Recommendation on petition for writ of habeas corpus under 28 USC 2254. Court recommended denial of writ on all grounds, including petitioner's argument that sentence enhancement on the basis of habitual offender status violated the double jeopardy clause.02/02/2009Paul A. Zoss
Smith v. Ault -- Report and Recommendation on petition for writ of habeas corpus pursuant to 28 USC 2254. Petitioner claimed double jeopardy when he was prosecuted for both contempt and escape after he failed to surrender himself to custody as ordered. Court found the two crimes have different elements, and double jeopardy was not implicated by dual prosecution.01/29/2009Paul A. Zoss
Weatherspoon v. Ault -- Report and Recommendation on petition for writ of habeas corpus pursuant to 28 USC 2254. Court found all of petitioner's claims were procedurally defaulted, and recommended denial of writ01/27/2009Paul A. Zoss
Roque v. Ault -- Report and Recommendation on petition for writ of habeas corpus under 28 USC 2254. Petitioner claimed he was entitled to an interpreter or other staff assistance in defending two disciplinary actions. Court found petitioner failed to meet his burden to show state court erred in denying his claims01/14/2009Paul A. Zoss
Chisley v. Lund -- Report and Recommendation on defendants' motion for partial summary judgment. Court found three of petitioner's claims in this 2254 action were unexhausted and procedurally defaulted, and ineffective assistance of PCR counsel, though clear, could not excuse procedural default.01/09/2009Paul A. Zoss
U.S. v. Kenneth Siepker : (federal prisoner’s pro se motion to set aside sentence pursuant to 28 U.S.C. § 2255: ruling without evidentiary hearing: alleged ineffective assistance of counsel on the following grounds: failure to move for severance of drug and gun counts, failure to request an “Old Chief instruction,” failure to file a motion in limine to preclude non-coconspirator hearsay evidence, failure to object to count charging commission of offense while on pre-trial release as an illegal Bill of Attainder, failure to request a buyer-seller instruction, failure to object to hearsay, stipulation that firearms were possessed “in or affecting commerce,” failure to object to a constructive amendment of the indictment on the gun charges, and failure to assert an “Apprendi claim” based on court determination of drug quantity; constitutional claims based on admission of hearsay evidence in violation of the Sixth Amendment confrontation clause, and insufficient evidence on the drug conspiracy count of an illegal agreement; denial of a certificate of appealability)12/18/2008Mark W. Bennett
Alice McCabe and Christine Nelson v. Michelle Mais; district court denies defendant's motion for judgment as a matter of law but grants defendant's motion for partial new trial on damages, on plaintiffs' claims that defendant illegally strip and visual body cavity (VBC) searched their persons. With respect to Defendant's motion for judgment as a matter of law, district court held that, although Linn County's policy of blanket strip searches was clearly unconstitutional, there was sufficient evidence to support an award of more than nominal damages. With respect to defendant's motion for new trial, district court held that jury's award of damages shocked the conscience and, if allowed to stand, would result in a miscarriage of justice. 10/02/2008Linda R. Reade
John Cyril Lapid Buenaventura v. Jerry Burt, Warden--Report and Recommendation (Right to consular notification, Sufficiency of the evidence, Ineffective assistance of counsel (exclusion of harassment and vandalism evidence and failure to investigate)08/29/2008Jon Stuart Scoles
Smith v. Rogerson -- Report and Recommendation on petition for writ of habeas corpus pursuant to 28 USC 2254. In recommending the petition be denied, court found petitioner failed to show error in plea colloquy or that his attorneys were ineffective.04/23/2008Paul A. Zoss
Jones v. Wilder-Tomlinson -- Report and Recommendation on petition for writ of habeas corpus pursuant to 28 USC 2254. In recommending the petition be granted, the Court found no probable cause existed for Jones's arrest on drug paraphernalia charge in violation of city ordinance based solely on the presence of a small scale in the vehicle in which Jones was a passenger. 04/04/2008Paul A. Zoss
Dible v. Scholl -- Memorandum Opinion and Order of Dismissal. Plaintiff filed this action under 42 USC 1983, for damages resulting from loss of good time credit. Court held disciplinary notice issued to plaintiff was constitutionally deficient, and defendants were not protected by qualified immunity. However, in light of 12-15-07 opinion in Entzi v. Redmann, 485 F.3d 998 (8th Cir. 2007). court reluctantly concluded plaintiff's action was barred by Heck v. Humphrey.03/07/2008Paul A. Zoss
Walter Junior Hoskins, III vs. Cornell Smith, Warden of Fort Dodge Correctional Facility of Iowa's Department of Corrections (Report and Recommendation on motion for evidentiary hearing & expand record, illegal search, identity of confidential informant)10/30/2007Jon Stuart Scoles
Tomlinson v. Burt (State prisoner’s petition for habeas corpus relief pursuant to 28 U.S.C. § 2254: ruling on motion to dismiss: “substantive” and “procedural” claims of “actual innocence,” procedural default of “due process” and “ineffective assistance of counsel” claims) 09/21/2007Mark W. Bennett
James R. Woelfel vs. Jerry Burt, Warden, Anamosa State Penitentiary (Report and Recommendation re 2254, exhaustion, ineffective assistance of counsel, double jeopardy)08/15/2007Jon Stuart Scoles
Cletus F. Johnson, Petitioner vs Jerry Burt, Warden, Respondent (Report and Recommendation re 2254, prosecutorial misconduct, Batson claim)07/30/2007Jon Stuart Scoles
Richmond v. Burt (Federal prisoner’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254; case initially referred to Magistrate Judge Paul A. Zoss, who recommended the petition be dismissed on procedural grounds; petitioner filed objections to Judge Zoss’s Report and Recommendation, essentially contending his constitutional claims were not procedurally barred; upon conducting de novo review of petitioner’s claims, court overrules petitioner’s objections and accepts Judge Zoss’s Report and Recommendation; petitioner did not fairly present his constitutional claims to the Iowa courts and even if he had, petitioner’s claims are without merit; petition is dismissed and no certificate of appealability shall be issued.) 01/04/2007Mark W. Bennett
Dible v. Scholl and Maynard -- Order on parties' cross- motions for summary judgment. Former Iowa inmate (who had discharged sentence and been released) brought section 1983 action against State officials for violation of due process rights in connection with disciplinary notice that resulted in loss of good time credit. Court found disciplinary notice to be constitutionally deficient, and further found defendants were not entitled to qualitified immunity. Defendants' motion for summary judgment denied plaintiff's cross-motion granted; and case ordered to proceed to trial solely on issue of damages.12/20/2006Paul A. Zoss
U.S. v. Arturo Ruiz-Ahumada (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting relief on two grounds; specifically, the defendant asserted (1) an error based on United States v. Booker, 125 S. Ct. 738 (2005), on the grounds that he was sentenced under the mandatory Guidelines regime, which impermissibly allowed a judge, as opposed to the jury, to adjust the sentencing range based on a preponderance of the evidence, and (2) that his plea was the product of coercion and therefore, not entered into voluntarily; motion denied in its entirety; first, defendant’s case was not pending when Booker was decided, and thus Booker’s holdings are an inapplicable basis to attack his sentence; second, the defendant’s own statements during the plea hearing demonstrate he pled guilty knowingly and voluntarily; defendant also filed separately a pro se Motion to Amend and a pro se Motion to Supplement; both motions are denied as untimely, as they do not relate back to his original § 2255 petition.)10/24/2006Mark W. Bennett
U.S. v. Perez-Sanchez (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting relief on the following grounds: (1) a “Booker error,” based on the defendant’s contention that a jury, not the sentencing judge, should have determined the amount of drug quantity attributed to him for sentencing purposes; (2) ineffective assistance of trial counsel in failing to challenge the constitutionality of 21 U.S.C. § 841 to the extent that those provisions permitted the court to make drug quantity and role determinations in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); and (3) failure of appellate counsel to argue that the defendant’s rights under the Vienna Convention were violated during his plea hearing on appeal; motion denied in its entirety; first, defendant’s case was not pending when Booker was decided, and thus Booker’s holdings are an inapplicable basis to attack his sentence; second, neither trial counsel’s nor appellate counsel’s performance was not deficient on the grounds alleged by the defendant. )10/17/2006Mark W. Bennett
U.S. v. Alfredo Luna (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255, asserting as grounds the ineffective assistance of trial and appellate counsel for the following reasons: (1) that his trial counsel was ineffective because he failed to fully impeach government witnesses; (2) that his trial counsel was ineffective in failing to object to the edition of the federal guidelines used at the time of sentencing; (3) that his trial counsel was ineffective in failing to object to the criminal history for defendant that was set out in his presentence investigation report; (4) that his trial counsel was ineffective in failing to object to the standard utilized by the court in determining the applicability of a two-level weapons enhancement pursuant to U.S.S.G. § 2D1.1(b); (5) that his appellate counsel was ineffective in failing to raise the issue of trial counsel’s ineffectiveness in failing to fully impeach government witnesses; (6) that appellate counsel was ineffective in failing to raise the issue of the edition of the federal guidelines used at the time of sentencing; and, (7) that his appellate counsel was ineffective in failing to raise on appeal the issue of the court’s calculation of defendant’s criminal history. Defendant also challenged his sentence in light of the United States Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005), arguing that the Booker decision must be given retroactive effect; motion denied in its entirety, first, the Booker decision does not apply retroactively to cases on collateral review, second, defendant had not established that his trial or appellate counsel were ineffective in representing defendant, specifically, defendant did not demonstrated that he was prejudiced by his counsel’s cross-examination of government witnesses at trial; defendant did not demonstrate that he was prejudiced by the use of the 2000 edition of the Federal Sentencing Guidelines because the punishment under the 2000 and 1998 Sentencing Guidelines remained the same, because defendant’s criminal history was not manifestly less serious than that of defendants typically labeled category II, defendant did not demonstrated that he was prejudiced by his counsel’s failure to seek a downward departure on the grounds that his assessed criminal history category overstated the seriousness of his criminal history; defendant’s counsel could not be faulted for not challenging the court’s application of § 2D1.1(b)’s two-level weapons enhancement to defendant where trial testimony showed that during the course of the drug conspiracy defendant possessed several firearms, including several pistols and an AR-15 semi-automatic assault rifle and threatened to use his AR-15 rifle on a possible informant and pointed a pistol at an individual during several drug transactions)10/03/2006Mark W. Bennett
U.S. v. Juan Carlos Vazquez-Munoz (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting three allegations of ineffective assistance of counsel; specifically, the defendant asserted his counsel was ineffective in (1) failing to file an appeal after being expressly directed to do so by the defendant; (2) failing to file an appeal without obtaining the defendant’s consent; and (3) failing to object to the PSIR regarding the defendant’s role in the offense; motion denied in its entirety; defendant did not expressly direct his attorney to file an appeal and he could neither prove breach of duty nor prejudice on either of his remaining claims.)09/28/2006Mark W. Bennett
U.S. v. Hernandez (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting relief on two grounds; specifically, the defendant asserted (1) an error based on United States v. Booker, 125 S. Ct. 738 (2005), on the grounds that he was sentenced under the mandatory Guidelines regime, which impermissibly allowed a judge, as opposed to the jury, to adjust the sentencing range based on a preponderance of the evidence, and (2) a somewhat related claim of ineffective assistance of counsel due to counsel’s failure to anticipate Booker, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), which had been decided at the time of the defendant’s sentencing; motion denied in its entirety; first, defendant’s case was not pending when Booker was decided, and thus Booker’s holdings are an inapplicable basis to attack his sentence; second, counsel’s performance was not deficient on the grounds alleged by the defendant. )09/25/2006Mark W. Bennett
Jordan v. Carr -- Findings of Face, Conclusions of Law, and Order on bench trial in case brought pursuant to 42 U.S.C. section 1983. Jordan, a Muslim, alleged jail official violated his First Amendment right to free exercise of religion by failing to allow him to attend both Christian and Muslim services within the jail. Court found Joran failed to establish the defendant's actions substantially burdened his sincerely held religious beliefs, or that Jordan's rights were violated. Judgment for defendant.09/22/2006Paul A. Zoss
U.S. v. Renee Carlson (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255; specifically, the defendant asserted that (1) her plea was the product of coercion, (2) she was forced to incriminate herself, presumably by admitting to her involvement in the conspiracy during her plea hearing, (3) the government failed to disclose the evidence against her because she never personally viewed the evidence; additionally, the defendant contends her counsel was ineffective in (1) preparing her for her guilty plea, (2) failing to ensure she was read her Miranda rights, and (3) failing to inform her of her right to appeal; motion denied in its entirety; defendant was not entitled to relief on any of the alleged grounds.)09/11/2006Mark W. Bennett
Mark v. Burger (state prisoner's action pursuant to 28 U.S.C. § 2254: order granting relief on "Brady" claims)08/31/2006Donald E. O'Brien
U.S. v. Hernandez : (federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255: alleged “Booker error,” and allegations of ineffective assistance of counsel before, during, and after trial, including (1) failure to assert “Apprendi claim”; (2) failure to investigate the facts of the case, including facts that would have provided the basis to challenge the credibility of the government’s witnesses and the falsehoods in their trial testimony; (3) failure to challenge, at trial and on appeal, sentencing enhancements for obstruction of justice, possession of a firearm, and drug quantity, and (4) failure to assert that the evidence showed multiple conspiracies instead of the single conspiracy with which Hernandez was charged, supplemented at evidentiary hearing to include (5) failure of trial counsel to advise him adequately of the law applicable to his consideration of whether to go to trial, plead guilty; determination of whether resentencing was appropriate relief on the last claim)08/30/2006Mark W. Bennett
U.S. v. Jeffrey Determan (Federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255 asserting relief on one ground: that he received an illegal sentence based on United States v. Booker, 125 S. Ct. 738 (2005); motion denied in its entirety; first, defendant’s case was not pending when Booker was decided, and thus Booker’s holdings are an inapplicable basis to attack his sentence.) 08/18/2006Mark W. Bennett
U.S. v. Lori Clare Kavitz : (federal prisoner’s motion to set aside sentence pursuant to 28 U.S.C. § 2255: ten allegations of ineffective assistance of counsel before and during sentencing pursuant to a plea agreement, including challenge to voluntariness of guilty plea and request to reopen Apprendi claim, which had been dismissed on initial review, in light of Blakely).07/17/2006Mark W. Bennett
Richmond v. Burt -- Report and Recommendation that petition for writ of habeas corpus pursuant to 28 USC 2254 be denied. Court found petitioner's claims were procedurally defaulted for failing to properly raise constitutional issue in Iowa courts relating to trial court's admission into evidence of conversation between petitioner and member of the clergy.06/15/2006Paul A. Zoss
U.S. v. Javier Barajas Ramirez (federal defendant’s post-conviction motion to vacate sentence on a drug-trafficking charge pursuant 28 U.S.C. § 2255 based on ineffective assistance of trial counsel in failing to move for a safety-valve reduction in the defendant’s sentence and failure of appellate counsel to appeal the omission of a safety-valve reduction)06/13/2006Mark W. Bennett
U.S. v. Homero Bustos Flores (federal defendant’s post-conviction motion to vacate sentence on a drug-trafficking charge pursuant 28 U.S.C. § 2255 based on (1) ineffective assistance of trial counsel, consisting of (a) denial of his right to testify; (b) failure to challenge the drug quantity calculation; (c) failure to raise a challenge pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), at sentencing; and (d) failure to make a timely objection to omission of safety-valve eligibility in the PSIR; (2) ineffective assistance of appellate counsel, who was the same as his trial counsel, consisting of failure to raise issues (1)(b), (1)(c), and (1)(d); and (3) imposition by the trial court of a sentence in violation of the defendant’s Sixth Amendment rights as established by Apprendi, consisting of judicial fact-finding regarding drug quantity and enhancement of his sentence based upon such improper fact-finding)06/13/2006Mark W. Bennett
Stewart v. Kautzky -- Report and Recommendation on defendants' motion for summary judgment. Court recommended defendants' motion for summary judment be granted on basis of plaintiff's failure to prosecute, as well as on the merits. 06/06/2006Paul A. Zoss
Langel v. Burt (Petition for habeas corpus relief from state court conviction under § 2254; report and recommendation prepared by magistrate judge recommended denying petitioner’s petition; petitioner filed objections to report and recommendation; upon review of magistrate judge’s findings and conclusions, the court accepted report and recommendation, concluded that magistrate judge correctly determined that petitioner’s counsel’s performance was not ineffective since petitioner’s waiver of jury trial was voluntary, knowing, and intelligent. Petitioner did not object to magistrate judge’s recommendation that petition’s counsel recommended the bench trial as a tactical matter, and his performance was not ineffective.) 05/25/2006Mark W. Bennett
Laffey v. Burt (Habeas petition by state prisoner; petitioner’s objections to report and recommendation on the merits of the petition: alleged insufficiency of the evidence of sexual abuse of children under twelve in violation of due process; alleged Eighth Amendment violation asserting disproportionality between the offenses and two consecutive twenty-five year sentences imposed for them)05/08/2006Mark W. Bennett
Laffey v. Burt -- Report and recommendation on petition for writ of habeas corpus pursuant to 28 USC 2254. Petitioner, convicted of two counts of sexual abuse of minors, argued (1) inconsistencies in victims' testimony and leading manner in which testimony was elicited rendered evidence insufficient under Due Process Clause to support guilty verdict; and (2) imposition of consecutive sentences violated Eighth Amendment prohibition of cruel and unusual punishment. Court recommended petition be denied on both claims.04/12/2006Paul A. Zoss
Langel v. Burt -- Report and Recommendation on petition for writ of habeas corpus pursuant to 28 USC 2254. Court found petitioner failed to show his trial counsel was ineffective in failing to have trial court question defendant about his waiver of jury trial, or in failing to assert justification defense, and court recommended petition be denied. 04/11/2006Paul A. Zoss
Jordan v. Linn County Jail, et al -- Report and recommendation on defendants' motion for summary judgment in this action under 42 USC 1983. Plaintiff alleged defendants denied him the right to practice his religion by not allowing him to attend both Christian and Muslim services, and by denying him literature and a prayer rug. Defendants claimed plaintiff had failed to exhaust his administrative remedies. Court found defendants had responded timely to requests for literature and prayer rug, and had provided the items to plaintiff. Court found defendants failed to show plaintiff, in fact, had right to appeal denial of grievance, and recommended motion be denied on claim that plaitniff's right were violated by denial of right to attend both types of religious services.03/10/2006Paul A. Zoss
Lang v. Ault -- Report and recommendation, recommending denial of petition for writ of habeas corpus pursuant to 28 U.S.C. section 2254. Court found state courts correctly determined petitioner had breached plea agreement, and petitioner could not show prejudice from counsel's failure to object to state's sentencing recommendation.01/26/2006Paul A. Zoss
Dible v. Steve Scholl & Gary Maynard (Suit by former prisoner under 42 U.S.C. § 1983 against two prison officials for monetary damages associated with alleged violations of the prisoner’s due process rights; motion to dismiss; motion to dismiss denied as former prisoner was unable to pursue habeas relief on mootness grounds leaving an action under § 1983 as the only available remedy to the plaintiff; in the absence of binding United States Supreme Court or Eighth Circuit precedent, plaintiff could proceed with § 1983 action without first satisfying Heck v. Humphrey’s favorable termination requirement.)01/24/2006Mark W. Bennett
Wedebrand v. Ault -- Report and Recommendation on petition for writ of habeas corpus pursuant to 28 U.S.C. Section 2254. Petitioner alleged his state and federal attorneys were ineffective in failing to advise him properly concerning plea proposal made by state and federal governments. Court found petitioner failed to show his attorneys were ineffective, and recommended petition be denied.11/17/2005Paul A. Zoss
Peterson v. Weatherly ( Report and recommendation on defendant's motion for summary judgment in this prisoner civil rights case. Plaintiff alleged defendant, who was nurse at facility, ordered his confinement in medical segregation, which led him to develop ischial ulcers. Court found defendant did not order plaintiff's confinement, and she performed no actions that led, or could have led, to plaintiff developing his ulcers, or that otherwise violated the plaintiff's constitutional rights. Court recommended summary judgment be granted in defendant's favor.)11/01/2005Paul A. Zoss
White v. Kautzky, et al. (Prisoner’s § 1983 action for denial of access to the courts; review of magistrate judge’s report and recommendation on the merits: legal assistance system at the prison, which precluded all legal research on the inmate’s improper extradition claim, even where such legal research would have been reasonably necessary, in the exercise of a legal advisor’s reasonable professional judgment, to provide reasonably competent legal advice on the merits of the inmate’s claim, violated the inmate’s right of access to the courts, and the inmate suffered “actual injury,” because the legal assistance system itself so stymied his ability to obtain adequate legal advice that he could not file any claim based on improper extradition; appropriate remedy, where the statute of limitations on any claim had expired, was nominal damages and declaratory relief)09/08/2005Mark W. Bennett
USA v. Hessman -- Report and recommendation, recommending denial of defendant's motion to dismiss indictment for speedy trial violation. Court found no speedy trial violation where neither party had notified the court, as previously ordered, of U.S. Supreme Court's denial of defendant's petition for writ of certiorari.05/20/2005Paul A. Zoss
Lang v. Ault (Petition for habeas corpus relief from Iowa state court conviction under § 2254; respondent filed motion for partial summary judgment claiming that all but two of petitioner’s claims are procedurally defaulted because petitioner failed to exhaust those claims; report and recommendation prepared by magistrate judge recommended granting respondent’s motion because it was unresisted; petitioner filed pro se objections to report and recommendation; the court concluded that magistrate judge correctly determined that only two issues that petitioner raised on direct appeal to the Iowa Court of Appeals could be considered in this federal habeas proceeding because petitioner failed to properly exhaust any of his other issues in the Iowa courts; the court concluded that the court could not reach the merits of petitioner’s procedurally defaulted claims because he cannot show cause for his default and prejudice or actual innocence. Respondent’s motion for partial summary judgment was granted.)05/17/2005Mark W. Bennett
Keene v. Ault -- Report and Recommendation on petition for writ of habeas corpus pursuant to 28 USC 2254. Petitioner asserted ineffective assistance of counsel for (1) failing to challenge Iowa Code section 709C.1 as unconstitutionally vague; (2) allowing petitioner to plead guilty in absence of adequate factual basis; and (3) failing to inform petitioner fully about collateral consequences of guilty plea. Court recommended denial of petition on all grounds.05/17/2005Paul A. Zoss
Maghee v. Ault (Report and recommendation on petition for writ of habeas corpus under 28 USC 2254. Petitioner filed petition to challege disciplinary action taken against him in connection with his attempt to mail sealed letter to attorney. Court found (1) state courts failed to address petitioner's constitutional claim at all, with result that state court legal conclusions were entitled to no deference; but (2) no First Amendment violation occurred; and (3) some evidence existed to support administrative sanction.)05/11/2005Paul A. Zoss
Bolden v. Rogerson (Report and recommendation on petition for writ of habeas corpus under 24 USC 2254. Petitioner entered guilty pleas to two burglary charges. He was represented by court-appointed counsel in one case. In the other case, he represented himself pro se, with court-appointed standby counsel. Petitioner claimed his guilty pleas were invalid because he had not made a knowing and intelligent waiver of counsel, and he did not understand all the consequences of pleading guilty. As grounds for habeas relief, he claimed his appellate counsel was ineffective in failing to raise these claims. Court found no merit in any claim and recommended denial of petition, relying on Iowa v. Tovar, 541 US 77 (2004), and Page v. Burger, 2005 WL 100500 (8th Cir. May 2, 2005).05/06/2005Paul A. Zoss
U.S. v. David L. Taylor, Jr.; Order regarding motion to vacate, set aside or correct sentence04/28/2005Linda R. Reade
U.S. v. David L. Taylor, Jr.; Order regarding motion for new trial based on newly discovered evidence04/28/2005Linda R. Reade
White v. Kautzky (Report and recommendation on merits of this action brought under 42 USC 1983. Plaintiff claimed contract attorney system in Iowa state prisons, and failure ot keep prison law library up to date, denied his right of access to the courts. Court found no violation and recommended judgment for defendants.)04/25/2005Paul A. Zoss
Mallett v. NephCare, Inc. & Nurse "Terry"04/19/2005Mark W. Bennett
Laffey v. Ault (Petitioner convicted of two counts of second-degree sexual abuse, sentenced to two consecutive 25-year terms; petitioner appealed on four grounds one of which was that consecutive sentences constituted cruel and unusual punishment under the Eighth Amendment; Iowa Supreme Court affirmed petitioner’s conviction and discussed the Eighth Amendment claim, but vacated the sentence on ground that court abused its discretion in considering an improper sentencing factor; at resentencing petitioner was sentenced to two consecutive 25-year terms; petitioner appealed new sentences, but did not again raise the Eighth Amendment claim; Iowa Court of Appeals affirmed his new sentences; petitioner later filed petition for habeas corpus under § 2254; respondent moved to dismiss petitioner’s habeas petition on grounds that it was “mixed”—specifically claiming Eighth Amendment claim was unexhausted as it was not raised on direct review following resentencing; Report and Recommendation recommended denying the motion to dismiss; on de novo review the court rejected respondent’s argument that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEPDA”) exterminated futility as a basis for excusing exhaustion of state court remedies, and noted that post-AEDPA Eighth Circuit case law recognized the continued viability of the futility exception to the exhaustion requirement; court further held futility doctrine applied in this instance where Iowa Supreme Court had adversely ruled on the petitioner’s Eighth Amendment claim as to his original sentences and where the new sentences were based on an identical factual predicate as the original sentences; objections overruled; Report and Recommendation adopted; motion to dismiss denied.)04/04/2005Mark W. Bennett
Matlock v. Vilsack, et al. (Plaintiff filed § 1983 claims against Governor of the State of Iowa, Black Hawk County and John Does based on fact that plaintiff’s civil commitment under Iowa Code Chapter 229A was later found unconstitutional by Iowa Court of Appeals; both named defendants moved to dismiss; magistrate judge’s report and recommendation recommended granting motions to dismiss; no abuse of process claim could be sustained as there were no facts alleged that any defendant had used Chapter 229A against the defendant for an improper purpose or with an impermissible motive; further, no § 1983 action could be maintained as both County and Governor, in his official capacity, were immune from such suit; report and recommendation accepted; motions to dismiss granted.)03/10/2005Mark W. Bennett
Brian R. Sillick v. John F. Ault; In the context of a 28 U.S.C. § 2254 petition, the court found the state courts' analysis of Sillick's ineffective assistance of counsel claims based on the failure to object to allegedly flawed jury instructions did not result in decisions contrary to or involving an unreasonable application of clearly established federal law. Furthermore, the state courts' analysis of such claims did not result in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Sillick's remaining ineffective assistance of counsel claims are procedurally defaulted. 02/25/2005Linda R. Reade
Laffey v. Ault (Report and recommendation on State's motion to dismiss petition for writ of habeas corpus filed under 28 U.S.C. section 2254. Petitioner filed direct appeal after sentencing, raising Eighth Amendment issue. Appellate court remanded for resentencing, discussing Eighth Amendment issue fully but deciding case on other grounds. On appeal after resentencing, petitioner failed to reassert Eighth Amendment argument, believing to do so would be moot given prior appellate court decision on the issue. Respondent argued the issue was unexhausted. Court found any failure to exhaust could be excused on basis of futility, and recommended motion to dismiss be denied.)02/09/2005Paul A. Zoss
Mallett v. Naph Care, Inc. (Report and recommendation, recommending defendants' motion for summary judgment be granted in prisoner civil rights action brought under 42 USC section 1983. Prisoner who was given wrong medication suffered allergic reaction. Court found nurse's negligence was not actionable under section 1983; plaintiff failed to show defendants were deliberately indifferent to his serious medical needs; and liability may not be grounded upon respondeat superior theory.)02/09/2005Paul A. Zoss
Matlock v. Vilsack (Report and Recommendation on motions to dismiss filed by defendants Gov. Thomas Vilsack and Black Hawk County. Plaintiff was civilly committed as a sexually violent predator. The Iowa Court of Appeals reversed the commitment order, and remanded the case for dismissal of the commitment petition. Plaintiff filed this action under 42 U.S.C. section 1983 against Gov. Vilsack and Black Hawk County for damages on grounds of emotional and mental anguish, wrongful imprisonment, and malicious prosecution. Court recommends dismissal on the basis that Plaintiff has failed to state a claim for which relief can be granted under section 1983.)10/06/2004Paul A. Zoss
U.S. v. Rudy Balmore Zavala Villalobos (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claim that the court employed the wrong standard in determining drug quantities at his sentencing; review of whether the indictment was fatally flawed because it failed to reference 21 U.S.C. § 841(b); analysis of whether the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), rendered 21 U.S.C. § 846 facially unconstitutional; relief under § 2255 denied; certificate of appealability denied as to all issues)09/30/2004Mark W. Bennett
U.S. v. Juan Carlos Mier-Godinez (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claim of ineffective assistance of counsel; examination of whether claim that defendant’s conviction was obtained in violation of his Fifth Amendment rights because his plea was not knowing and voluntarily made was procedurally defaulted; analysis of whether defendant procedurally defaulted on his claim that he was improperly sentenced based on facts that he did not admit at his plea hearing but that were later proved by a preponderance of the evidence at his sentencing hearing and used in calculating his sentence; relief under § 2255 denied; certificate of appealability denied as to all issues)09/29/2004Mark W. Bennett
U.S. v. Marcelino Garibay-Gomez (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claims of ineffective assistance of counsel; analysis of whether defendant could challenge correctness of sentence in view of the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000); examination of whether claim that defendant’s Sixth Amendment right to a speedy trial was violated by delays was procedurally defaulted; analysis of whether defendant procedurally defaulted on claim that the court departed upward in sentencing him without first providing him with notice of its intent to possibly depart upward; analysis of whether defendant’s claim that the government failed to establish the amount of methamphetamine attributed to him at sentencing was procedurally defaulted; relief under § 2255 denied; certificate of appealability denied as to all issues)09/29/2004Mark W. Bennett
U.S. v. Ira Jerome Moore (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claims of ineffective assistance of counsel; analysis of whether claim, that a prior conviction for burglary of a commercial building should not have qualified as a “crime of violence” under the Career Criminal Act because it did not qualify under section 4B1.1 of the United States Sentencing Guidelines, was procedurally defaulted; analysis of whether defendant could challenge correctness of sentence in view of the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000); relief under § 2255 denied; certificate of appealability denied as to all issues) 09/28/2004Mark W. Bennett
U.S. v. Benjamin Franklin Moore (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claims of ineffective assistance of counsel; analysis of whether defendant could challenge correctness of sentence in view of the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000); relief under § 2255 denied; certificate of appealability denied as to all issues)09/28/2004Mark W. Bennett
U.S. v. Thomas Kosek (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claims of ineffective assistance of counsel for for failing to challenge his conviction for methamphetamine as a schedule II drug, for failing to challenge Kosek being sentenced as a career offender pursuant to U.S.S.G. § 4B1.1, and for failing to seek a downward departure under Rule 35(b); relief under § 2255 denied; certificate of appealability denied as to all issues)09/28/2004Mark W. Bennett
Edwards v. Ault (Petition for habeas corpus relief from Iowa state court conviction under § 2254; respondent filed motion to dismiss claiming petition contained both exhausted and unexhausted claims; report and recommendation prepared by magistrate judge; petitioner’s objection to recommended dismissal of the fourth claim in his petition (ground D) was overruled as claim had not been properly raised before any Iowa Court and could not be raised as limitations period had passed; three remaining claims exhausted, therefore motion to dismiss mixed petition denied; three remaining claims involved ineffective assistance of counsel revolving around trial counsel’s counseling defense DNA expert to use the term “exclusion” in his testimony in front of and FBI agent; as petitioner failed to show an actual conflict of interest, prejudice was not presumed under Cuyler; petitioner could not show Strickland prejudice as a result of trial counsel’s mistake, therefore ineffective assistance of trial counsel claim failed; as trial counsel was not ineffective, appellate counsel was not ineffective for failing to raise trial counsel’s ineffectiveness on appeal; report and recommendation accepted; motion to dismiss denied; ground four (D) dismissed as unexhausted and procedurally defaulted; writ of habeas corpus denied on the merits; certificate of appealability would not issue.)09/27/2004Mark W. Bennett
U.S. v. Raul Sanchez (Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claims of ineffective assistance of counsel for failing to object to the probation report which did not indicate whether the controlled substance was l-methamphetamine or d-methamphetamine, for failing to object to the failure of the government to show the type of narcotic involved by a preponderance of the evidence as to support the base level offense, for failing to object to the testing of the Iowa Department of Public Safety since it did not determine whether the narcotic was l-methamphetamine or d-methamphetamine, for failing to object to the lack of determination of the type of methamphetamine involved, the lesser of the two types of methamphetamine should have been used to determine his base offense level; for failing to object to the firearm which was found in a closed drawer of a dresser at defendant’s residence; for failing to raise the argument that it was not unlawful for him to possess that firearm at the time of the search of his residence; for failing to argue that he was not present in the bedroom and did not have access to the firearm at the time of the search; for failing to argue that mere possession of the firearm was insufficient to sustain the firearm enhancement; for not making a request for a downward departure on the basis that defendant would be subject to deportation after the completion of his sentence; for not objecting to the probation officer’s finding that there were no other grounds for downward departure; for failing to provide a full and fair hearing on all available issues and arguments; for not appealing the dismissal of the indictment without prejudice even though the issue was preserved for appeal in his plea agreement; analysis of whether defendant could challenge correctness of sentence in view of the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000); relief under § 2255 denied; certificate of appealability denied as to all issues)09/27/2004Mark W. Bennett
Schneider v. Jergens, et al (Report and Recommendation on the merits of a petition for writ of habeas corpus. Court found two of petitioner's five claims to be procedurally defaulted, and all five of his claims to be unexhausted. Court recommended dismissal without prejudice to allow petitioner to file an application for post-conviction relief.)09/24/2004Paul A. Zoss
Jasa v. Mathes (Motion to dismiss habeas corpus petition on grounds of procedural default; report and recommendation prepared by magistrate judge; petitioner does not object to recommendation that motion to dismiss be granted as to jury misconduct claim; no plain error in magistrate’s analysis of petitioner’s jury misconduct claim, therefore recommendation that claim is accepted; petitioner asserted that his mental illnesses prevented him from appealing from denial of his postconvicion relief application which asserted ineffective assistance of counsel; petitioner failed to show that his mental disorders made him unable to comprehend his legal rights and responsibilities at the time during which he should have pursued postconviction relief; procedural default not excused; report and recommendation accepted; motion to dismiss granted.)09/13/2004Mark W. Bennett
U.S. v. Gary O'Dell (Motion under 28 U.S.C. §2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claims of ineffective assistance of counsel for failing to object to leading questions; for failing to obtain a handwriting analysis of defendant in regard to the forged cashier checks; for failing to ask for a limited instruction regarding cooperating witnesses; for being careless in the way he phrased questions to witnesses; for failing to object to coconspirator testimony; for failing to make a record regarding the advice he had given to defendant about whether to testify at trial; for not objecting to remarks made during the prosecutor’s rebuttal summation; for failing to obtain a copy of the trial transcript; for failing to understand the admissibility of polygraph examination results; for failing to seek a maximum term of imprisonment of five years on the conspiracy charge; relief under §2255 denied; certificate of appealability denied as to all issues )08/26/2004Mark W. Bennett
Charette v. Duffy (Report and Recommendation on defendants' motion for summary judgment in prisoner civil rights case under 42 U.S.C. section 1983. Plaintiff alleged defendants violated his Eighth Amendment rights by being deliberately indifferent to his serious medical needs when they failed to provide him with proper testing, treatment, and care for Hepatitis C virus. In recommending summary judgment be granted in favor of defendants, court found protocols developed by Iowa Department of Corrections, in conjunction with the University of Iowa Hospitals and Clinics, were appropriate; plaintiff's test results did not fall within the parameters of the protocols to warrant liver biopsy or referral to outside doctors; and defendants had not violated plaintiff's rights.)08/04/2004Paul A. Zoss
U.S. v. Daniel Castro (Motion under 28 U.S.C. §2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; claims of ineffective assistance of counsel for failing to conduct an adequate pretrial investigation; for failing to prepare a blame shifting defense, for failing to file a timely motion to suppress, for failing to move for severance, for failing to appeal a magistrate judge’s decision to deny defendant’s motion to continue trial and extension of time to file a motion to suppress, for failing to withdraw from the case, for failing to resubmit defendant’s motion to suppress and motion to continue trial after the superseding indictment was filed against him, for failing to move to dismiss the Superseding indictment, for failing to withdraw after trial; for not raising ineffective assistance of counsel on direct appeal, for failing to request that defendant be sentenced for a schedule III controlled substance, for failing to request a minimal or minor role adjustment in his sentence; claim that defendant’s sentence was incorrect because his criminal history category was in part based on a conviction that was subsequently vacated; relief under §2255 denied; certificate of appealability denied as to all issues)08/04/2004Mark W. Bennett
United States v. Howard Harp (28 U.S.C. §2255; claim of ineffective assistance of counsel based on counsel’s alleged refusal to file timely appeal; failure to advise defendant to plead only to drug charges; failure to advise defendant to pursue trial on only gun possession charge; §2255 denied; certificate of appealability denied as to all issues)07/22/2004Mark W. Bennett
Atwood v. Mapes (Petition for habeas corpus relief from Iowa state court conviction under § 2254;petitioner convicted of two counts of vehicular homicide and sentenced to two indeterminate terms not to exceed ten years; report and recommendation prepared by magistrate judge; petitioner contends his right to an impartial verdict was violated when trial judge, outside the presence of petitioner and his trial counsel, informed the jury of an anonymous telephone threat received prior to closing arguments; Remmer presumption is not clearly established federal law and therefore failure to apply the presumption does not amount to a constitutional violation; additional questions surround application of Remmer as communication was not related to the defendant or facts bearing on the indictment; burden of demonstrating prejudice lies with petitioner; petitioner failed to provide any evidence of prejudice or partiality, therefore objection was overruled; petitioner did not request to be present when trial judge informed jury of the threat, and therefore his right to be presence was waived; alternatively, any violation of petitioner’s right to be present was harmless error; ineffective assistance of counsel claim failed as petitioner could not establish Strickland prejudice arising from his trial counsels’ failure to request presence at the meeting or request to voir dire the jurors to ascertain if they were prejudiced; report and recommendation accepted; writ of habeas corpus denied; certificate of appealability would issue.)07/19/2004Mark W. Bennett
Williams v. Ault (Report and recommendation on respondent's motion to dismiss petition for writ of habeas corpus under 28 U.S.C. section 2254, and on the merits of the petition. Respondent claimed petition was mixed, including both exhausted and unexhausted claims. Court found the only unexhausted claim also was procedurally defaulted; recommended the claim be deemed barred, leaving only exhausted claims for review; and, therefore, recommended the motion to dismiss be denied. On the merits, court found petitioner had failed to show prejudice from trial counsel's allegedly inadequate performance, and therefore he could not prevail on ineffective assistance of counsel claim. As a result, appellate counsel could not be ineffective for failing to raise, on appeal, claim that trial counsel was ineffective.)07/12/2004Paul A. Zoss
Jasa v. Mathes (Report and recommendation on respondent's motion to dismiss habeas petition brought under 28 U.S.C. section 2254. Court recommended dismissal of petition, finding: (1) with regard to claim of juror misconduct, petitioner failed to satisfy requirements for fundamental-miscarriage-of-justice exception to ordinary "cause" and "prejudice" standard for overcoming procedural default; petitioner failed to come forward with new, reliable evidence of actual innocence; (2) with regard to claims that trial and appellate counsel were ineffective, petitioner failed to show his mental illness constituted cause for procedural default by interfering with or impeding his ability to comply with state procedural requirements.)06/28/2004Paul A. Zoss
Hepperle v. Ault (Petition for habeas corpus relief from Iowa state court conviction under § 2254; petitioner convicted of first-degree murder for the stabbing death of a neighbor and sentenced to life imprisonment; report and recommendation prepared by magistrate judge; petitioner does not object to recommended dismissal of his Miranda claim; no plain error in magistrate’s analysis of petitioner’s Miranda claim, therefore recommendation that Miranda claim be denied is accepted; petitioner’s objection to the standard used by magistrate in analysis of petitioner’s ineffective assistance of counsel claim overruled; petitioner contends trial counsel was ineffective for proffered victim’s husband as alternate perpetrator rather than the neighborhood ‘window peeper’ who admitted to attempting to window peep at the time the crime was committed; trial counsel’s decision to offer husband as alternate perpetrator was strategic in nature, and was not unreasonable; petitioner admitted knowledge of intended trial strategy in offering victim’s husband as alleged perpetrator; trial counsel’s performance was not deficient or ineffective; petitioner could not show outcome of trial was prejudiced by trial counsel’s ; report and recommendation accepted; writ of habeas corpus denied; certificate of appealability would not issue.)06/23/2004Mark W. Bennett
Bakker v. Kuhnes (Order granting defendants' motion for summary judgment in prisoner 1983 action. Court found plaintiff failed to exhaust administrative remedies with regard to his claims that defendants were deliberately indifferent to his serious medical needs.)05/14/2004Paul A. Zoss
Austin v. Ault : (Petition for habeas corpus relief pursuant to 28 U.S.C. § 2254; objections to report and recommendation recommending denial of all claims: de novo review of claims of ineffective assistance of trial counsel, based on “unpreparedness,” and ineffective assistance of appellate counsel, based on failure to assert trial counsel’s “unpreparedness”)03/22/2004Mark W. Bennett
Foell v. Mathes (Petition for habeas corpus relief from Iowa state court conviction under § 2254;petitioner convicted of first-degree murder for the stabbing death of a 69-year-old woman; report and recommendation prepared by magistrate judge; petitioner’s objections omission of certain facts from report and recommendation granted in part and denied in part; petitioner contends trial counsel was ineffective for not asserting a diminished responsibility defense; trial counsel recognized availability of mental defenses other than insanity; trial counsel’s decision not to offer a diminished responsibility defense reasonable in light of express wish of defendant that information in mental evaluations not be made public and in light of fact that information in mental evaluations would likely bolster State’s theory; trial counsel’s assertion of defense based on intoxication and petitioner’s suggestibility was reasonable; petitioner could not show outcome of trial was prejudiced by trial counsel’s assertion of this defense; report and recommendation accepted; writ of habeas corpus denied; certificate of appealability would not issue.)03/19/2004Mark W. Bennett
Robert Connor, et al. v. Ault (Prisoners’ § 1983 claims; bench trial; objections to report and recommendation recommending judgment in favor of the defendants and against plaintiffs; analysis of Muslim inmates’ claims arising under the First Amendment's Free Exercise Clause; prison policies pursuant to the factors articulated in Turner v. Safley, 482 U.S. 78, 89-90 (1987); consideration of the impact accommodation of the asserted constitutional right would have on guards and other inmates, and on the allocation of prison resources generally; review of whether plaintiffs could point to any alternatives that fully accommodated their rights at de minimis cost to valid penological interests)03/11/2004Mark W. Bennett
Atwood v. Mapes (R&R on petition for writ of habeas corpus pursuant to 28 U.S.C. section 2254. Petitioner asserted trial court erred in informing jury about threatening phone call, and doing so in ex parte meeting with jury. He also asserted ineffective assistance of counsel for failure to be present during judge's meeting with jury, and failing to voir dire jury to determine prejudice. Court recommended denying petition on basis that, under applicable Supreme Court precedent, petitioner had failed to prsent convincing evidence that state court erred in finding jury's deliberations were not biased; he and his counsel waived his right to be present in meeting with jury, and even if ex parte meeting was erroneous, error was harmless; and petitioner failed to show prejudice from counsel's alleged ineffectiveness.02/25/2004Paul A. Zoss
Hepperle v. Ault (R&R on petition for writ of habeas corpus pursuant to 28 U.S.C. section 2254. Court found petitioner was not "in custody" at the time he made statements to police during a murder investigation so no Miranda warnings were required, and trial counsel was not ineffective in failing to investigate and offer evidence that someone else committed the murder.02/13/2004Paul A. Zoss
Austin v. Ault (R&R on petition for writ of habeas corpus pursuant to 28 U.S.C. section 2254. Court found five of petitioner's six claims to be procedurally defaulted. On sixth claim, court found appellate counsel could not be ineffective in failing to preserve issue of trial counsel's effectiveness, where trial counsel was not ineffective.02/11/2004Paul A. Zoss
Montgomery v. Mapes (R&R that petition for writ of habeas corpus pursuant to 28 U.S.C. section 2254 be denied. Issue: Whether petitioner's trial counsel was ineffective in failing to seek exclusion of evidence from show-up identifications. Court found petitioner failed to show trial court made unreasonable determination of facts in light of evidence, where trial court found strong circumstantial evidence was sufficient to establish petitioner's guilt even in absence of challenged eyewitness identifications. Therefore, petitioner could not show prejudice for purposes of ineffective assistance of counsel claim, and appellate counsel was not ineffective in failing to raise issue of trial counsel's ineffectiveness. 02/09/2004Paul A. Zoss
Foell v. Mathes (R&R on petition for writ of habeas corpus pursuant to 28 U.S.C. section 2254. Issue: Whether attorney's failure to investigate and present defense of Fetal Alcohol Syndrome constituted ineffective assistance of counsel in violation of defendant's Sixth Amendment rights. Court found counsel's failure to offer futile defense was not effective. Court also found court's performance did not warrant presumption of prejudice under United States v. Cronic. 02/06/2004Paul A. Zoss
U.S. v. Elias Real-Flores; Order on review of defendant's 28 U.S.C. Section 2255 motion12/02/2003Linda R. Reade
Ronald Dean Swartz v. John Mathes, Warden; 28 U.S.C. Section 225411/12/2003Linda R. Reade
Connor v. Ault (R&R following bench trial in this civil rights action brought by prisoners at Anamosa State Penitentiary. The plaintiffs, both practicing Muslims, alleged their constitutional rights were violated by prison policies that prevented them from participating fully in Islamic religious services and activities. Court found policies were reasonably related to legitimate penological interests, and recommended judgment for the defendants.)08/06/2003Paul A. Zoss
White v. Kautzky (Prisoner’s § 1983 "access to courts" claim; review of magistrate judge’s report and recommendation on defendants’ motion for summary judgment: whether there are genuine issues of material fact on "reasonable opportunity to present claims" and "actual injury" elements where "contract attorneys" at prison allegedly failed to provide any advice on the viability of a potential claim for post-conviction relief)07/03/2003Mark W. Bennett
Schneider v. Jergens, et al. (Habeas corpus petition pursuant to 28 U.S.C. § 2254; motion to dismiss challenge to constitutionality of the review procedure for criminal contempt convictions: procedural default, exhaustion of state remedies and alleged "ineffectiveness" of such remedies, and dismissal or amendment of a"“mixed petition" asserting exhausted and unexhausted claims)06/26/2003Mark W. Bennett
Schneider v. Jergens, et al (R&R on motion to dismiss filed by Intervenor State of Iowa in a habeas proceeding under 28 U.S.C. section 2254. Petitioner challenges constitutionality of appellate procedure in contempt actions. Iowa law provides that if contempt application is denied, applicant may file direct appeal as of right, but if application is granted, defendant may only appeal by way of petition for writ of certiorari. State intervened on the constitutional issue and moved to dismiss. Issues discussed: procedural default; exhaustion of remedies, specifically whether criminal contempt is a "public offense" for purposes of postconviction relief actions, and excused failure to exhaust where available remedies are deficient or futile. Court recommends denial of motion to dismiss, and certification of constitutional question to Iowa Supreme Court.)06/11/2003Paul A. Zoss
Bowers v. Burger (R&R on motion to dismiss habeas action under 28 U.S.C. Section 2254. Issues: AEDPA statute of limitations; procedural default; and whether defendant's low IQ of 70 constitutes cause sufficient to overcome procedural default, or to toll the AEDPA statute of limitations)05/30/2003Paul A. Zoss
Hepperle v. Ault (Order denying evidentiary hearing in habeas case under 28 U.S.C. section 2254. Petitioner failed to fully develop factual basis for claim of ineffective assistance of trial counsel, because PCR counsel failed to question trial counsel about significance of two police reports. Court held ineffective assistance of PCR counsel is not sufficient basis to warrant evidentiary hearing.)04/21/2003Paul A. Zoss
Jones v. McKinney (R&R on motion to dismiss in habeas case under 28 U.S.C. s. 2254. Issues discussed: defendant's right to challenge guilty plea when no motion in arrest of judgment was filed; procedural default; exhaustion of State remedies; ineffective assistance of counsel; what constitutes "fair presentation" of federal claim in State proceedings)04/09/2003Paul A. Zoss
LeFlore v. Mathis, et al. (R&R on motion to dismiss petition for writ of habeas corpus filed pursuant to 24 U.S.C. s. 2254. Recommends dismissing petition on basis that petitioner has been released from custody, and failed to allege sufficient collateral consequences to survive mootness inquiry.)04/01/2003Paul A. Zoss
Frazier v. Rogerson (Habeas corpus; motion to dismiss; review of magistrate judge's report and recommendation and petitioner's objections to report and recommendation recommending dismissal: timeliness under 28 U.S.C. § 2244(d)(1)(A)(deadline runs from date judgment is "final" and § 2244(d)(1)(D) (date factual predicate could have been discovered by due diligence); applicability of doctrine of equitable tolling of statute of limitations based on "extraordinary circumstance.")03/04/2003Mark W. Bennett
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Smithco Manufacturing, Inc. v. Haldex Brake Products, Corp. -- Order denying motion for leave to amend Complaint. Court found plaintiff failed to show good cause for the delay in seeking to amend its Complaint as required by Fed. R. Civ. P. 16.04/05/2010Paul A. Zoss
Great Lakes Comm. Corp. v. Iowa Utilities Board - Order on Motions to Intervene and to Add Parties. In action to enjoin enforcement of order issued by Iowa Utilities Board, court found Qwest Communications Corp. and Sprint Communications Co. to be indispensable parties, and granted their motions to intervene under Fed. R. Civ. P. 24, and the Board's motion to join them as parties under Fed. R. Civ. P. 19.11/10/2009Paul A. Zoss
Equal Employment Opportunity Commission and Janet Boot, Barbara Grant, Cindy Moffett, Remcey Jeunenne Peeples, Monika Starke, Latesha Thomas and Nicole Ann Cinquemano v. CRST Van Expedited, Inc.; court dismissed certain claims of an intervenor and EEOC because intervenor and alleged aggrieved individuals failed to disclose sex discrimination claims in their bankruptcy proceedings05/13/2009Linda R. Reade
Equal Employment Opportunity Commission and Janet Boot, Barbara Grant, Cindy Moffett, Remcey Jeunenne Peeples, Monika Starke, Latesha Thomas and Nicole Ann Cinquemano v. CRST Van Expedited, Inc.; court held EEOC was not immune from the statute of limitations set forth in 42 U.S.C. Section 2000e-5, but EEOC was not barred from seeking relief on behalf of allegedly aggrieved person who timely filed her own Title VII lawsuit only to dismiss it without prejudice upon learning of EEOC's enforcement action 05/11/2009Linda R. Reade
MITEC Partners, LLC v. U.S. Bank National Association; court held defendant entitled to summary judgment as to plaintiff's fraudulent and negligent misrepresentation claims.02/26/2009Linda R. Reade