The Ninth Circuit Court of Appeals today released an opinion in RHODES v. AVON PRODUCTS, INC., No. 05-56047, a federal appeal. The panel consisted of John T. Noonan, Andrew J. Kleinfeld, and Richard A. Paez, Circuit Judges.

PAEZ, Circuit Judge:
In this trademark declaratory relief action, we must decide whether the district court properly dismissed Plaintiffs’ case for lack of subject matter jurisdiction. In their complaint, Plaintiffs sought a declaration that several of their trademarks did not infringe on Defendant’s registered marks. The jurisdictional issue turns on whether Plaintiffs alleged a constitutionally sufficient case or controversy in their First Amended Complaint (”FAC”). We must also decide whether related proceedings that were pending before the Trademark Trial and Appeal Board (”TTAB”) provided an appropriate basis for the district court to invoke the doctrine of primary jurisdiction in order to dismiss Plaintiffs’ action and, if not, whether the court properly exercised its discretion under 28 U.S.C. § 2201 when it declined to assert jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we hold that the allegations in the FAC alleged a true case or controversy that established subject matter jurisdiction. We also hold that, although the TTAB provides a forum to address trademark registration issues, the availability of such a forum does not justify the application of the doctrine of primary jurisdiction as a basis for dismissing Plaintiffs’ federal court action. Thus, Plaintiffs were not required to wait for the completion of TTAB proceedings before seeking declaratory relief in federal court. We further hold that, under the circumstances of this case, the district court abused its discretion in declining to assert jurisdiction over Plaintiffs’ request for declaratory relief. Finally, because of the firmly expressed . . .

The Ninth Circuit Court of Appeals today released an opinion in SHANE v. ALBERTSON’S INC., No. 05-56319, a federal appeal. The panel consisted of Johnnie B. Rawlinson and Stephen S. Trott, Circuit Judges, and Mary H. Murguia, District Judge.

MURGUIA, District Judge:
Albertson’s, Inc., Employees’ Disability Plan and several other Albertson’s Employee Plans (”Albertson’s”) bring this appeal from the district court’s order reversing Albertson’s decision to terminate Plaintiff-Appellee Stacey Shane’s (”Ms. Shane”) Long Term Disability (”LTD”) benefits received under Albertson’s Employees’ Disability Benefits Plan (the “Disability Plan”). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and we affirm. I. BACKGROUND Ms. Shane is a former Albertson’s employee and participated in Albertson’s Disability Plan. In April of 1999, Ms. . . .

TROTT, Circuit Judge, dissenting:
Even if we assume arguendo that the 1993 Plan controls, I respectfully disagree with my colleagues’ analysis of the standard of review applicable to this controversy, because I believe their approach to be at odds with Hensley v. Northwest Permanente Retirement Plan & Trust, 258 F.3d 986 (9th Cir. 2001). There, we held that the district court properly applied an abuse of discretion standard of review where the administrators that denied plaintiffs’ claims received their authority via a verbal delegation. In doing so, we said:
[T]he Plan provides that “each Committee establishes procedures for carrying its duties and powers and keeps records of its proceedings, acts, and other data necessary to administer the Plan.” Although the defendants did not produce documentary evidence showing the delegation of authority from the Physicians Plan administrator to Canter, affidavits from her and Kirk E. Miller, a Physicians Plan committee member, state that the committee for several years. . .

The Ninth Circuit Court of Appeals today released an opinion in SEC v. ROSS, No. 05-35541, an appeal in a civil action brought by the United States. The panel consisted of Dorothy W. Nelson, Andrew J. Kleinfeld, and Jay S. Bybee, Circuit Judges.

BYBEE, Circuit Judge:
Ernest Bustos and sixteen other Intervenor-Defendants (collectively, “Bustos”) appeal the district court’s order requiring them to disgorge commissions they received . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. SAETEURN, No. 06-10401, a criminal appeal. The panel consisted of Michael Daly Hawkins, A. Wallace Tashima, and Carlos T. Bea, Circuit Judges.

BEA, Circuit Judge:
This case deals with sentencing practice. Specifically, is the sentencing judge required to resolve disputes regarding facts recited in the Presentence Investigation Report (”PSR”),1 when those facts do not affect the term of imprisonment imposed, but may affect how the sentence is served, including a possible early release from prison? We hold that there is no such requirement upon the sentencing judge. We also consider whether the sentencing judge imposed a reasonable sentence in this case. We conclude that he did. I. Kae Chai Saeteurn was indicted on several narcotics offenses, including one count of conspiracy to distribute 3,4Methylenedioxymethamphetamine HCL (”MDMA”) in violation of 21 U.S.C. §§ 841(a)(1) and 846; one count of distribution of MDMA in violation of 21 U.S.C. § 841(a)(1); and one count of possession with intent to distribute MDMA in violation of 21 U.S.C. § 841(a)(1). Saeteurn entered a plea of guilty to the count of conspiracy to distribute MDMA and the count of possession with intent to distribute MDMA. The district court sentenced Saeteurn to 63 months in prison followed by a 36-month term of supervised release. . . .

The Ninth Circuit Court of Appeals today released an opinion in CARLSON v. UNITED STATES POSTAL SERVICE, No. 05-16159, an appeal in a civil action against the United States. The panel consisted of Jerome Farris, Robert Boochever, and Edward Leavy, Circuit Judges.

LEAVY, Circuit Judge:
Douglas F. Carlson appeals pro se the district court’s grant of summary judgment in favor of the United States Postal Service (USPS) in Carlson’s action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq., which sought public disclosure of the names, addresses, telephone numbers, regular business hours and final collection times for outgoing mail for every United States post office. The district court determined that the records sought were exempt from FOIA disclosure as “information of a commercial nature, . . . which under good business practice would not be publicly disclosed.” 39 U.S.C. § 410(c)(2). We have jurisdiction over this timely appeal under 28 U.S.C. § 1291. Because the requested records are not “information of a commercial nature,” we reverse. FACTS AND PRIOR PROCEEDINGS On June 7, 2003, Carlson submitted a FOIA request to USPS requesting:
an electronic version of records from the database that serves the Find MyPostOfficeTM search option . . .

The Ninth Circuit Court of Appeals today released an en banc opinion in FAIR HOUSING COUNCIL v. ROOMMATES.COM, LLC., No. 04-56916, a federal appeal. The panel consisted of SCHROEDER, Chief Judge.

The Ninth Circuit Court of Appeals today released an order and opinion in BOCKTING v. BAYER, No. 02-15866, a habeas corpus appeal. The panel consisted of J. Clifford Wallace, John T. Noonan, and M. Margaret McKeown, Circuit Judges.

WALLACE, Senior Circuit Judge:
Bockting appeals from the district court’s order denying his petition for a writ of habeas corpus. Bockting challenges his state convictions on charges associated with the alleged sexual abuse of his then-six-year-old step daughter. We have jurisdiction under 28 U.S.C. § 2253(a). Bockting has not demonstrated the state court’s adjudication on the merits: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings,” 28 U.S.C. § 2254(d). There. . .

The opinion and dissent filed on September 27, 2007 are withdrawn. A new opinion and dissent are filed with this order. OPINION WALLACE, Senior Circuit Judge:
Bockting appeals from the district court’s order denying his petition for a writ of habeas corpus. Bockting challenges his state convictions on charges associated with the alleged sexual abuse of his then-six-year-old step daughter. We have jurisdiction under 28 U.S.C. § 2253(a). Bockting has not demonstrated the state court’s adjudication on the merits: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings,” 28 U.S.C. § 2254(d). There. . .

NOONAN, Circuit Judge, dissenting:
This appeal, as Judge Wallace accurately puts it, turns on whether the Supreme Court of Nevada unreasonably applied Idaho v. Wright, 497 U.S. 805 (1990) to the facts of this case. In its first remand of the case, the United States Supreme Court had asked the Nevada Supreme Court to consider its affirmance of Bockting’s conviction in the light of Wright. Bockting v. Nevada, 497 U.S. 1021 (1990). Our court must ask whether the Nevada Supreme Court has reasonably done so. . . .

The Ninth Circuit Court of Appeals today released an opinion in SHIMKO v. GUENTHER, No. 05-16847, a diversity appeal. The panel consisted of Jay S. Bybee and Milan D. Smith, Jr., Circuit Judges, and J. Michael Seabright, District Judge.

MILAN D. SMITH, JR., Circuit Judge:
Appellants Milton and Kathi Guenther (collectively, “the Guenthers”), appeal a judgment awarding $359,668.00 in attorneys’ fees to Appellees Timothy Shimko, and his law firm, Shimko & Piscitelli (the law firm and its partners collectively, “Shimko”) in payment for certain legal services allegedly provided to Arizona limited partnerships, Comprehensive Outpatient Rehabilitation Facility (”CORF”) Licensing Services, L.P., and CORF Management Services, L.P. (collectively, “CORF entities”), and their limited partners. The organic documents of both the CORF entities list Milton Guenther (individually, “Guenther”) as a limited partner, not as a general partner. On appeal, Shimko argues that it reasonably believed Guenther to be a general, rather than a limited partner, and that, as a result, the Guenthers are liable for the legal fees of the CORF entities under Arizona Revised Statutes (”A.R.S.”) § 29-319. We disagree. Shimko is not an ordinary creditor. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. RICHARD, No. 06-10377, a criminal appeal. The panel consisted of Diarmuid F. O’Scannlain, Michael Daly Hawkins, and Kim McLane Wardlaw, Circuit Judges.

HAWKINS, Circuit Judge:
Jacquan Richard (”Richard”) appeals his jury conviction for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and–because we conclude the district court abused its discretion by permitting the jury to rehear only a portion of a key witness’s testimony without taking necessary precautions to ensure the jury did not unduly emphasize the testimony–we vacate Richard’s conviction and remand. I. Richard was a backseat passenger in a vehicle lawfully stopped by Las Vegas Police Officer Mark Prager (”Officer Prager”) for displaying defective registration tags. Officer Prager requested identification from the vehicle’s four occupants and was able to accurately identify three: (1) the vehicle’s owner and driver, David Martin (”Martin”); (2) backseat passenger Michael Schneider (”Schneider”); and (3) front seat passenger Nikole Reeder (”Reeder”). Officer Prager was unable to immediately identify Richard because Richard did not have physical identification and the information he provided to Officer Prager could not be confirmed via a local, national, and Department of Motor Vehicles record check. After issuing two vehicle citations to Martin, Officer Prager released him, along with Reeder and Schneider, permitting them to enter an adjacent casino, but detained Richard in order to ascertain his identity. While detained, Richard volunteered that Martin was a pimp who was pandering Reeder, prompting Officer Prager to request vice backup assistance.. . .

O’SCANNLAIN, Circuit Judge, dissenting: I begin with what one would think an unassailable proposition: An abuse of discretion standard of review presupposes that the district court has some amount of discretion. Apparently, however, that proposition is no longer true in this circuit in the context of whether and how to permit a replay of trial testimony in a criminal case. For under the court’s reasoning, if a district judge is to allow a replay at all without inviting reversible error, three requirements must be met. First, the district court must replay the testimony in open court with all parties present. Second, if the district court decides to allow a replay, it must replay the witness’s entire testimony, including cross-examination. Finally, the district court must give a limiting instruction, sua sponte, counseling the jury not to place undue emphasis on such testimony. Although district courts might be well advised to observe these precautions, the majority’s rigid, rule-based approach effectively usurps the trial court’s function, transforming our 13As noted above, we need not–and do not–express any opinion regarding Richard’s Fourth and Fifth Amendment challenges or the government’s sentencing appeal. . . .

The Ninth Circuit Court of Appeals today released an opinion in RYMAN v. SEARS, ROEBUCK AND COMPANY, No. 06-35630, a federal appeal. The panel consisted of Ferdinand F. Fernandez, Barry G. Silverman, and Susan P. Graber, Circuit Judges.

SILVERMAN, Circuit Judge:
Today we reiterate the rule that when (1) a federal court is required to apply state law, and (2) there is no relevant precedent from the state’s highest court, but (3) there is relevant precedent from the state’s intermediate appellate court, the federal court must follow the state intermediate appellate court decision unless the federal court finds convincing evidence that the state’s supreme court likely would not follow it. I. FACTS Plaintiff Daniel Ryman was fired by Sears for excessive absences; at issue here is his absence from work on November 17, 2003. From November 14, 2003, through November 16, 2003, Ryman was on leave to care for his sick child, and this absence was not counted against him by Sears. Ryman had not received his upcoming work schedule before taking leave and did not know whether he was scheduled to work on . . .