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TCL > December 2003 Issue > Tenth Circuit Summaries

December 2003       Vol. 32, No. 12       Page  167
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Tenth Circuit Summaries

Summaries of selected opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association by Jenine Jensen and Catherine Campbell, licensed Colorado attorneys. The summaries of the U.S. Court of Appeals for the Tenth Circuit are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.
Full copies of the Tenth Circuit decisions are available on the CBA website at http: // (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.


Hobbs Act—Due Process—Unduly Suggestive Identification Procedures—Filing Federal Versus State Charges—Motions to Suppress—Prejudicial Impact of Evidence Versus Its Probative Value—Interstate Commerce Requirement—Indirect Links to Interstate Commerce

U.S. v. Curtis, No. 02-5047, 9/17/03, N.D.Okla., Judge Ebel.

Defendant appeals his convictions of eight counts of robbery under the Hobbs Act, 18 U.S.C. § 1951, and eight counts of using a gun during a crime of violence, in violation of 18 U.S.C. § 924(c). The charges arose from a string of eight armed robberies that occurred over a period of ten days, mostly for small amounts of money. Defendant was sentenced to 2,271 months in prison. The Tenth Circuit Court affirms the convictions, rejecting defendant’s six arguments. (1) Requiring the defendant to show his gapped teeth to the jury was not an unduly suggestive identification procedure and did not violate defendant’s due process rights. The fact that defendant was the only Black man in the courtroom was not so suggestive as to be a due process violation. (2) The decision to file federal rather than state charges against defendant did not violate his due process rights, and did not violate the separation of powers. (3) The court properly denied defendant’s motion to suppress his confession. The confession was knowingly and voluntarily given. (4) Nothing in the record supports defendant’s argument that the potentially prejudicial impact of introducing four videotapes from four of the robberies outweighed the tapes’ probative value during trial. The court did not abuse its discretion. (5) The jury instructions on the Hobbs Act accurately addressed the requirement of interstate commerce. (6) The direct and indirect links to interstate commerce for each robbery were sufficient to establish that the businesses were engaged in interstate commerce. The judgment is affirmed.

ERISA—Colorado Bad Faith Claim—Loss of Consortium—Preemption

Kidneigh v. UNUM Life Insurance Co., Nos. 02-1277 & 02-1282, 10/3/03, D.Colo., Judge Kelly.

Plaintiff Jon Kidneigh sued UNUM Life Insurance Co. ("UNUM") for disability benefits, pursuant to the Employment Retirement Income Security Act ("ERISA"). UNUM is the long-term disability claims administrator that covers employees of Kidneigh & Kaufman, P.C. Plaintiff also brought a Colorado state law claim for bad faith, and his wife brought a state law claim for loss of consortium. The district court denied UNUM’s motion to dismiss Jon Kidneigh’s bad faith claim as preempted, granted dismissal of Mrs. Kidneigh’s loss of consortium claim, and certified the preemption issue for interlocutory appeal. The Tenth Circuit Court holds that Colorado bad faith claims are preempted by ERISA because they conflict with ERISA’s remedial scheme. In the alternative, the Court holds that the Colorado bad faith claim did not fall within ERISA’s savings clause, which exempts state laws regulating insurance, banking, or securities. Therefore, Kidneigh’s state law bad faith claim was preempted by ERISA. Mrs. Kidneigh’s loss of consortium claim was also preempted by ERISA. The decision of the district court is affirmed in part and reversed in part.

Employment Discrimination—Continuing Violations Doctrine—"Glass Ceiling"—Americans with Disabilities Act—Breach of Contract

Croy v. Cobe Labs., Inc., No. 02-1366, 10/3/03, D.Colo., Judge McKay.

Plaintiff sued her former employer, alleging that it had discriminated against her because of her gender and failed to accommodate her multiple sclerosis disability. She also alleged that the employer breached a contract in which she was promised a promotion. The district court entered summary judgment in favor of the employer. The Tenth Circuit Court notes that a plaintiff must file an EEOC charge within 300 days after the alleged unlawful discrimination, and file suit within ninety days after the EEOC right-to-sue letter is issued. In this case, plaintiff did not meet those prerequisites to suit, but she argued that her claims were saved by the continuing violations doctrine. In view of the U.S. Supreme Court’s recent clarification of the doctrine, the Tenth Circuit Court holds that the discrete acts of failing to promote her were not actionable because they fell outside the limitations period. Plaintiff also alleged a "glass ceiling" claim, for which it was appropriate to look to the entire time period of alleged discrimination; however, because none of the acts underlying the claim occurred within the limitations period, the continuing violations doctrine did not save her untimely claims. The Tenth Circuit Court further determines that annual performance evaluations did not qualify as failures to promote plaintiff. Turning to the plaintiff’s claim under the Americans with Disabilities Act, the Court holds that plaintiff had not established that her multiple sclerosis substantially impaired a major life activity. Accordingly, summary judgment on this claim was appropriate. Finally, the Court concludes that genuine issues of material fact existed on plaintiff’s breach of contract claim, so summary judgment was inappropriate. The district court’s judgment was affirmed in part, reversed in part, and the case is remanded.

Bankruptcy—Spousal Maintenance—Personal Right—Not Property of Bankruptcy Estate

In re Wise: Peters v. Wise, No. 02-1482, 10/10/03, D.Colo., Judge Brorby.

The bankruptcy trustee claimed that spousal maintenance payments made to debtor within 180 days after she filed her Chapter 7 bankruptcy petition were property of the bankruptcy estate. The bankruptcy court held that they were not, and the district court affirmed. The Tenth Circuit Court recognizes the general rule that property debtor acquires post-petition does not become property of the bankruptcy estate. One exception is property debtor acquires within 180 days after filing as a result of a property settlement in a divorce. Because state law defines and creates property interests, the Court looks to Colorado law and concludes that spousal maintenance is a personal right and not a property right. Therefore, the maintenance payments were not property of the bankruptcy estate. The judgment of the district court is affirmed.

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