Archive for August 2006

Judge Ted Stewart – Motion to Stay granted pending resolution of criminal case

August 30, 2006

2006 U.S. Dist. LEXIS 60636

M.D. DIET WEIGHT LOSS AND NUTRITION CLINIC, L.C., a Utah limited liability company, Plaintiff v. ABSOLUTE WEIGHT LOSS AND NUTRITION CENTER, LLC, a Utah limited liability company; and LESLIE CRANMER, an individual, Defendants; ABSOLUTE WEIGHT LOSS AND NUTRITION CENTER, LLC; LESLIE CRANMER, Counterclaimants and Third-Party Plaintiffs v. M.D. DIET WEIGHT LOSS AND NUTRITION CLINIC, L.C.; KELLI BEHLE, Counterdefendants and Third-Party Defendants

Case No. 2:05-CV-605

Judge Ted Stewart

August 24, 2006

Defendant Behle is charged in the state criminal case with insurance fraud, unlawful distribution of controlled substances to patients, and false representation as a medical practitioner. In the Counterclaim and Third-Party Complaint, Cranmer and Absolute allege that M.D. Diet and Behle “are engaged in the practice of medicine without a license,” and “are engaged in the unlawful practice of providing the services of a physician assistant while not under the supervision of a supervising physician.”

Defendant Behle filed a motion to stay the civil case pending the resolution of the criminal case.

The Court stated: “The decision to stay a case is clearly within the discretionary authority of the Court, if the interests of justice so require. Federal courts have deferred civil proceedings pending the completion of parallel criminal prosecutions when the interests of justice seemed to require such action . . . . Although ‘the Constitution . . . does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings . . . a court may decide in its discretion to stay civil proceedings.'”

Motion to Stay granted.

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Judge David Sam – Motion to Supress Evidence granted in part, denied in part

August 30, 2006

2006 U.S. Dist. LEXIS 60634

UNITED STATES OF AMERICA, Plaintiff v. LARRY MCKAY MAXFIELD, Defendant

Case No. 1:04CR149

August 24, 2006

Defendant Larry Maxfield moved to suppress evidence seized from his place of business, his vehicles and his person during a narcotics investigation on September 21, 2004.

In short: “Because the Court finds that the seizure and search of his person and his Camaro automobile were unlawful, evidence seized or which is the fruit of those events, specifically the bindle of methamphetamine found on his person and his confession while in custody pursuant to that seizure are suppressed.

“Although, the Court finds that the warrantless entry of his place of business was unlawful, the evidence seized from his Shop pursuant to a validly issued search warrant was lawfully obtained and need not be suppressed.”

Motion to Supress granted in part, denied in part.

Judge Ted Stewart – Motion to Alter Judgment denied

August 30, 2006

2006 U.S. Dist. LEXIS 60640

THE ESTATE OF RICHARD RICCI, and ANGELA RICCI, an individual, Plaintiffs v. CORY MACK LYMAN, an individual, Defendant

Case No. 2:05-CV-354

August 24, 2006

Judge Ted Stewart previously entered an order denying plaintiffs’ Rule 56(f) motions for discovery and for enlargement of time to file response and granting defendant’s motion for summary judgment.

In considering the Motion to Alter Judgment (of the previous, above-mentioned Order), the Court noted: “[A] Motion for reconsideration is appropriate where the court has misapprehended the facts, a party’s position, or the controlling law. . . . It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing”  (emphasis added).

Motion denied. 

Judge J. Thomas Greene – Motion for Summary Judgment denied

August 29, 2006

Miller v. Saia Motor Freight Line, Inc.

1:05-cv-052

August 28, 2006

Judge J. Thomas Greene

Plaintiff had been employed as a truck driver with SAIA for 12 years.  In short, defendant claims Miller was fired because of multiple wrecks and “agressive driving.” Plaintiff claims these are merely pretexts and asserts he was terminated because of his “whistle blowing” actions after plaintiff refused to make runs that plaintiff claims would require him to be in violation of the Hours of Service regulations as set forth by the Department of Transportation.

After reviewing the arguments of counsel, the Court ruled that there are “several genuine issues of material fact in dispute in this case” and denied the Motion for Summary Judgment.

Order

Judge Tena Campbell – Order regarding competency and involuntary medication

August 29, 2006

 U.S.A. v. Benjamin Archuleta

2:05-cr-676

August 25, 2006 

Judge Tena Campbell has ordered that a Utah man, Benjamin Archuleta, diagnosed with schizophrenia, be forcibly medicated in an effort to make him competent to stand trial on a weapons charge.

Benjamin Archuleta was originally charged with threatening the life of Judge David Sam in 1998. He was found not guilty by reason of insanity and was hospitalized. In November 2000, Mr. Archuleta was released from hospitalization, but later violated those conditions and was comitted to a “half way house” in June 2002. In February 2005, the court terminated the supervision of Mr. Archuleta and he was again released.

In late 2005, the U.S. Marshal Service learned that Mr. Archuleta attempted to purchase a firearm and lied on a required background check form.

Magistrate Judge Wells determined in March 2006 that defendant was not competent to stand trial on the new weapons charge. That same month, the Court ordered a psychiatric evluation regarding the possibility of involuntary medication to restore competency.

Judge Campbell determined that involuntary medication is appropriate since: (1) important governmental interests are at stake; (2) involuntary medication of the defendant will likely further the government’s important interests and will be unlikely to have side effects that will interfere with the defendant’s right to assist trial counsel in his defense, thereby making the trial unfair; (3) involuntary medication is necessary to further the government’s interest, meaning no other less intrusive means will achieve substantially the same results; and (4) administration of antipsychotic drugs is medically appropriate, or in the best interest of the defendant given his current medical condition.

As reported by the Salt Lake Tribune: “(Mr. Archuleta) considers himself to be a political prisoner and has asked for a clean bill of health and a grant of diplomatic immunity.”

Order

Salt Lake Tribune article

Judge Dale A. Kimball / Magistrate Judge Brooke C. Wells – Motion to Dismiss granted

August 28, 2006

IRVING K. BIGELOW, v. STATE OF UTAH et al.

Case No. 2:06CV516

2006 U.S. Dist. LEXIS 60069

August 23, 2006

Judge Dale A. Kimball / Magistrate Judge Brooke C. Wells

Plaintiff, Irving Karl Bigelow pro se, filed suit under 42 U.S.C. § 1985 against the State of Utah, State District Judge John Paul Kennedy, Newton Ghbor a detective with the South Salt Lake Police Department (SSLPD), Carla Armstrong also a detective with SSLPD, Colleen Barrette an agent with the Office of Recovery Services and Thomas Arne. Bigelow alleges violations of his rights in connection with a child abuse investigation and the “false evidence” that led to the removal of his son. Specifically, Bigelow claims violations of his right to fair and equal access, denial of counsel, and conspiracy to commit theft of a child.

Bigelow was seeking a million dollars a day for every day his son is gone.

This matter was referred to Magistrate Wells pursuant to 28 USC § 636(b)(1)(B). In short, the Magistrate recommended that Bigelow’s complaint should be dismissed for failure to state a claim upon which relief may be granted.

In reviewing the Magistrate’s recommendation, Judge Kimball noted that: “Mr. Bigelow has not objected to the Report and Recommendation, and the time for doing so has elapsed.”

Motion to dismiss granted.

Judge Paul G. Cassell – Motion for TRO denied

August 25, 2006

KLEIN-BECKER USA, LLC, a Utah Limited Liability Company; KLEIN-BECKER IP HOLDINGS, LLC, a Nevada Limited Liability Company; and BASIC RESEARCH, LLC, a Utah Limited Liability Company, Plaintiffs, vs. VITABASE.COM, LLC, an expired Georgia Limited Liability Company; COAD INC., a Georgia Corporation; OB LABS; GREG HOWLETT, an individual, and JOHN DOES 1-10, Defendants.

2006 U.S. Dist. LEXIS 59292

August 21, 2006

Judge Paul G. Cassell

On August 11, 2006, plaintiff Klein-Becker USA filed a complaint alleging trademark infringement, false advertising under the Lanham Act, copyright infringement, tortious interference with existing and prospective economic relations, unfair competition and civil conspiracy against the named defendants.

Klein-Becker alleges that the named defendants had violated numerous federal and state statutes by manufacturing, distributing and selling anti-stretch mark and anti-aging products that are the same product as that owned by Klein-Becker. Klein-Becker also claimed that defendants use bait-and-switch tactics on their website by advertising and discussing Klein-Becker’s product and then offering their own products comparable to Klein-Becker’s.

Among other claims, Klein-Becker also alleges that it was entitled to a preliminary, and thereafter permanent, injunction against the defendants because it would suffer immediate and irreparable harm. On August 18, 2006, Klein-Becker subsequently moved for a temporary restraining order.

The court held that it is “unable to grant Klein-Becker’s temporary restraining order until it [Klein-Becker] provides certification to the court about efforts it has made to give notice to the defendants, and the reasons supporting the claim that notice was not required.”

Motion for a temporary restraining order denied.

Nevertheless, the court also commented: “The court’s denial of Klein-Becker’s motion for a temporary restraining order does not comment on the chances of any motion for preliminary injunction that it might choose to file in the future. The court does not view the ‘practical effect’ of denying this temporary restraining motion as any decision on the merits of a preliminary injunction motion that might be filed by Klein-Becker at a later time. Indeed, there is every indication that the court ‘contemplates a prompt hearing on a preliminary injunction’ once Klein-Becker serves the defendants and seeks relief from the court through that avenue.”