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MICHAEL CLEMMER, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. KEY BANK NATIONAL ASSOCIATION, Defendant-Appellee. |
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 06-02654—Patricia A. Gaughan, District Judge.
Argued: April 22, 2008
Decided and Filed: August 22, 2008
Before: GILMAN, ROGERS, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. As the district court succinctly summarized, this case turns on whether the Electronic Funds Transfer Act (the “EFTA”) permits an automated teller machine’s on-screen notice to read that a fee “may” be charged when a fee “will” be charged. Clemmer v. Key Bank, N.A., No. 06-2654, 2007 WL 5303533, at *2 (N.D. Ohio June 20, 2007). Michael Clemmer, a consumer of ATM services, argues that the notice must explicitly state that a consumer “is” or “will be” (or some variant thereof) charged a fee. The district court, however, concluded that use of the less definite “may” coupled with the more definite requirement that a user press “yes” to accept the fee to continue the transaction put the user on sufficient notice that a fee would be incurred. We agree, and affirm summary judgment in favor of Key Bank National Association (“Key Bank”).
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JPD, INC., d/b/a NORTHLAND MEDICAL PHARMACY; JAMES P. DICELLO, Individually and on behalf of his minor child Nicholas DiCello; ALICIA DICELLO; GINA DICELLO, Plaintiffs-Appellees, v. CHRONIMED HOLDINGS, INC., Defendant-Appellant. |
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 07-00646—Gregory L. Frost, District Judge.
Argued: April 24, 2008
Decided and Filed: August 22, 2008
Before: SUHRHEINRICH, CLAY, and COOK, Circuit Judges.
COOK, Circuit Judge. In late 2005, Defendant Chronimed Holdings bought Northland Pharmacy from Plaintiff James P. DiCello. Chronimed paid DiCello twelve million dollars up front and promised additional cash if Northland’s earnings over the next year hit a benchmark. The parties agreed to arbitrate any dispute over the “calculation” of Northland’s earnings and “all issues having a bearing on such dispute.”
When Chronimed later informed DiCello that it would not pay the added cash because Northland’s earnings failed to reach the benchmark, DiCello sued, claiming that Chronimed owed the additional payment because the earnings target would have been met had Chronimed operated the business as the contract promised. Chronimed promptly moved the district court to compel arbitration, but the district court held that Chronimed waived that contractual right through its prelitigation conduct. Because we disagree, and because we find that DiCello’s claims fall within the scope of the contract’s arbitration clause, we vacate and remand with instructions to compel arbitration.
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JOSEPHINE BOWIE, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. |
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Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 06-14448—Thomas L. Ludington, District Judge.
Submitted: June 2, 2008
Decided and Filed: August 22, 2008
Before: MERRITT, MOORE, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. This Social Security disability appeal presents a single procedural issue regarding whether the agency adequately explained its decision. At least on the particular facts of this case, it was procedurally acceptable for the ALJ not to address in his opinion that Bowie was “borderline” between age groups under 20 C.F.R. § 404.1563(b). The district court therefore properly upheld the Commissioner’s denial of benefits.
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SHIRLEY L. PHELPS-ROPER, Plaintiff-Appellant, v. TED STRICKLAND; MARC DANN; WILLIAM MASON, Defendants-Appellees. |
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 06-02038—Donald C. Nugent, District Judge.
Argued: February 5, 2008
Decided and Filed: August 22, 2008
Before: SUHRHEINRICH, COLE, and GIBBONS, Circuit Judges.
SUHRHEINRICH, Circuit Judge. This case involves a facial challenge to a provision of Ohio Rev. Code § 3767.30 (“Funeral Protest Provision”), which prohibits “picketing” or “other protest activities,” within 300 feet of the funeral or burial service, from one hour before until one hour after the funeral or burial service. We hold that the Funeral Protest Provision is a reasonable, content-neutral regulation of the time, place, and manner of speech.
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VILLAGE OF OAKWOOD, BAUGHMAN TILE COMPANY, GENE A. BAUGHMAN, MARY ANN BAUGHMAN, GARY C. GRANT, Trustee, and GARY C. GRANT INSURANCE AGENCY, INC., Plaintiffs-Appellants, v. STATE BANK AND TRUST COMPANY and FEDERAL DEPOSIT INSURANCE CORPORATION, Defendants-Appellees. |
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 07-01736—James G. Carr, Chief District Judge.
Argued: August 1, 2008
Decided and Filed: August 22, 2008
Before: KENNEDY, GILMAN, and GIBBONS, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. On February 1, 2002, the Oakwood Deposit Bank Company (Oakwood) failed. The Federal Deposit Insurance Corporation (FDIC) was immediately appointed as receiver. On the following day, the FDIC signed a Purchase and Assumption Agreement (P&A Agreement) with State Bank and Trust Company (State Bank) that caused the insured deposits of Oakwood to be transferred to State Bank. A group of partially uninsured depositors (collectively referred to as the Uninsured Depositors) filed a complaint in state court against State Bank in an attempt to recover the value of their uninsured deposits.
The FDIC removed the case to federal district court. Despite a ruling on the merits by the district court, this court on appeal subsequently ordered that the judgment be vacated and the case remanded to the state court because the FDIC was not yet a party when it had sought removal. After remand, State Bank filed a third-party complaint against the FDIC, seeking indemnification under the terms of the P&A Agreement. The state court allowed the third-party complaint, following which the FDIC again removed the case to federal district court. State Bank and the FDIC then renewed their motions to dismiss the Uninsured Depositors’ claims or for summary judgment, and the Uninsured Depositors once more filed a motion to remand.
The district court granted State Bank’s and the FDIC’s motions for summary judgment, finding that the Uninsured Depositors had failed to comply with the relevant statutory scheme for bringing their claims. It also denied the Uninsured Depositors’ motion to remand, finding that federal jurisdiction was proper over the entire dispute. Those two decisions have been appealed by the Uninsured Depositors. For the reasons set forth below, we AFFIRM the judgment of the district court.
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MICHELLE K. BARANY-SNYDER, Plaintiff-Appellant, v. KEITH D. WEINER; KEITH D. WEINER & ASSOCIATES CO., L.P.A.; and SCOTT W. PARIS, Defendants-Appellees. |
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 06-02111—Patricia A. Gaughan, District Judge.
Argued: June 10, 2008
Decided and Filed: August 22, 2008
Before: GIBBONS and SUTTON, Circuit Judges; ACKERMAN, District Judge.
JULIA SMITH GIBBONS, Circuit Judge. This case arises out of a state court debt collection action brought by defendants-appellants Keith D. Weiner, Keith D. Weiner & Associates Co., L.P.A., and Scott W. Paris (collectively, “defendants”) against plaintiff-appellant Michelle K. Barany-Snyder. Barany-Snyder alleges that defendants engaged in improper debt collection in violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and seeks to represent a class of similarly situated individuals. Pursuant to Federal Rule of Civil Procedure 12(c), the district court granted judgment on the pleadings in favor of defendants, and Barany-Snyder now appeals. Defendants, in turn, assert that they are entitled to immunity from suit, and they further argue that the statute of limitations bars at least part of Barany-Snyder’s FDCPA claims.
For the following reasons, we affirm the judgment of the district court.
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STATE FARM BANK, FSB and GEORGE MEINBERG, Plaintiffs-Appellants, v. JOHN B. REARDON, Superintendent of the Ohio Division of Financial Institutions, in his official capacity, Defendant-Appellee. |
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 05-00268—Edmund A. Sargus, Jr., District Judge.
Argued: July 30, 2008
Decided and Filed: August 22, 2008
Before: ROGERS and McKEAGUE, Circuit Judges; ADAMS, District Judge.
McKEAGUE, Circuit Judge. State Farm Bank, a federal savings association and a wholly owned subsidiary of State Farm Mutual Automobile Insurance Co., offers mortgage products and banking services to individuals throughout the United States. State Farm Bank does not maintain any “brick and mortar” branch offices that are open to the public; rather, it solicits and markets its mortgage products and banking services through its existing network of independent and exclusive insurance agents who have been specially trained to serve as mortgage lending and banking agents. The State of Ohio believes that State Farm Bank’s exclusive agents must comply with the licensing and registration requirements set forth in the Ohio Mortgage Broker Act (“the Ohio Act”), Ohio Revised Code § 1322.01 et seq.
State Farm Bank argues that federal law governing the operations of federal savings associations preempts the application of the Ohio Act to its exclusive agents. The Office of Thrift Supervision (“the OTS”), the federal agency charged with regulating federal savings associations, issued an opinion letter (“the OTS Opinion”) agreeing with State Farm Bank. Notwithstanding the OTS Opinion, the defendant-appellee, John B. Reardon, Superintendent of the Ohio Division of Financial Institutions (“the Superintendent”), declined to exempt State Farm Bank’s exclusive agents from compliance with the Ohio Act. State Farm Bank and one of its Ohio-based agents filed this action in the United States District Court for the Southern District of Ohio, seeking declaratory and injunctive relief. The district court held that federal law does not preempt the application of the Ohio Act to State Farm Bank’s exclusive agents. We disagree and REVERSE.
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In re: SCARLET HOTELS, LLC, Debtor. |
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Appeal from the United States Bankruptcy Court
for the Middle District of Tennessee.
Bankruptcy Case No. 04-09853.
Submitted Upon Briefs: August 13, 2008
Decided and Filed: August 22, 2008
Before: FULTON, McIVOR and SHEA-STONUM, Bankruptcy Appellate Panel Judges.
THOMAS H. FULTON, Bankruptcy Appellate Panel Judge. Scarlet Hotels, LLC (the “Debtor”) appeals the bankruptcy court’s order awarding attorneys’ fees and expenses to an oversecured creditor pursuant to § 506 of the Bankruptcy Code.
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For the foregoing reasons, the decision of the bankruptcy court is AFFIRMED.