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https://www.courtlistener.com/api/rest/v3/opinions/2167156/	212 Cal. App. 3d 1165 (1989) 261 Cal. Rptr. 143 THE PEOPLE, Plaintiff and Respondent, v. ROBERT HOWARD RATEKIN, Defendant and Appellant. Docket No. E005187. Court of Appeals of California, Fourth District, Division Two. August 3, 1989. 1166 COUNSEL Stephen J. Scherr for Defendant and Appellant. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Sanford H. Feldman and John R. Vance, Deputy Attorneys General, for Plaintiff and Respondent. OPINION CAMPBELL, P.J. After appropriate waivers, the matter was submitted to the court on the transcript of the preliminary hearing and the testimony of an additional witness. The court, sitting without a jury, found the defendant 1167 guilty of the offenses of conspiring to sell cocaine (Pen. Code, § 182; Health & Saf. Code, § 11352) and selling cocaine (Health & Saf. Code, § 11352). His application for probation was denied and he was sentenced to three years in state prison. FACTS The defendant was engaged in the business of selling cocaine in the Palm Springs area. On or about April 6, 1985, his coconspirator agreed to sell four ounces of cocaine to a federal undercover narcotics agent for $8,000. The coconspirator drove to the defendant's place of residence, obtained the cocaine from the defendant, drove to the rendezvous to meet with the agent, delivered the cocaine to the agent, obtained the purchase price from the agent and then delivered the $8,000 to the defendant at the defendant's residence. (It was not necessary to resort to any wiretap evidence to establish any of the foregoing facts.) During the investigation which ultimately led to the arrest and prosecution of several persons in addition to the defendant, the federal agents obtained an "Order Authorizing The Interception Of Wire Communications And Operation Of A Pen Register Or Touch Tone Decoder," i.e., a wiretap order, from the United States District Court pursuant to section 2518, title 18, United States Code. The order authorized the tapping of the coconspirator's telephone. (The prosecution subsequently obtained an "Order Authorizing Testimonial Use Of Wire And Oral Communications" (see 18 U.S.C. §§ 2515, 2517) from the federal court.) The federal agents tapped the coconspirator's telephone by connecting a telephone line to the coconspirator's telephone terminals in the telephone company's telephone box. They attached a pen register, tape recorder and earphones to their line and were able to determine the telephone numbers called and to listen to and record any telephone calls involving the coconspirator's telephone. For reasons not made clear from the record, and despite an abundance of nonwiretap evidence clearly establishing the defendant's guilt, the prosecutor elected to offer clearly cumulative, and unnecessary, evidence obtained through the use of the wiretap. The defendant made a motion to suppress the wiretap evidence (Pen. Code, § 1538.5) on the grounds that such evidence is not admissible by virtue of the provisions of Penal Code section 632, subdivision (c). The court denied the motion and the evidence was admitted. The wiretap evidence consisted of the content of four telephone calls: (1) A call from the coconspirator to the defendant ordering "four" (presumptively referring to ounces of cocaine) and informing defendant that he would "... bring the money back as soon as I get it." 1168 (2) A call from the coconspirator to the federal agent telling him that he would call him back in an hour. (3) A call from the coconspirator to the defendant to tell him that he would be over. (4) A call from the coconspirator to the federal agent to arrange for the meeting for the delivery of the cocaine. ISSUES We are called upon to consider the following issues: (1) Does Penal Code section 632 apply to the facts of this case? We find that it does not. (2) Assuming, arguendo, that Penal Code section 632 applies to the facts of this case and that the court erred in denying defendant's motion to suppress, should the conviction be reversed? We hold that it should not. DISCUSSION Penal Code section 631, subdivision (a) (the "wiretap" section) provides that it is illegal for any person to tap or make any unauthorized connection with any telephone line, etc. (Section 631 does not address nor proscribe the use of "eavesdropping" techniques to intercept communications.) Prior to the enactment of Proposition 8 (post), subdivision (c) made evidence obtained in violation of subdivision (a) inadmissible. Penal Code section 632, subdivision (a) (the "eavesdropping" section) provides that it is illegal for any person to eavesdrop on any confidential communication by means of any amplifying or recording device. (Penal Code, section 632 does not address or proscribe the use of "wiretap" techniques to intercept communications.) As in Penal Code section 631, subdivision (c), Penal Code section 632, subdivision (d) made evidence obtained in violation of Penal Code section 632, subdivision (a) inadmissible. (1a) Although the two sections envision and describe the use of similar or the same equipment to intercept communications, the manner in which such equipment is used is clearly distinguished, separate and mutually exclusive. Penal Code section 631 prohibits "wiretapping," i.e., intercepting communications by an unauthorized connection to the transmission line. Penal Code section 632 prohibits "eavesdropping," i.e., the interception of communications by the use of equipment which is not connected to any transmission line. In order to violate section 631 it is necessary that the intercepted communication be carried over "... telegraph or telephone wire, line, cable, or instrument of any internal telephonic communication system...." No such limitation is found in section 632. (2) "When statutory language is clear and unambiguous 1169 there is no need for construction and the courts should not indulge in it." (Solberg v. Superior Court (1977) 19 Cal. 3d 182, 198 [137 Cal. Rptr. 460, 561 P.2d 1148].) (1b) We hold that the conduct of the federal agents in this matter constituted "wiretapping" as described in section 631 and did not constitute "eavesdropping" as described in section 632. Having determined that the conduct of the federal agents in this case was the type of conduct described in Penal Code section 631 and not Penal Code section 632, it is necessary to determine whether or not the evidence obtained through the use of the wiretap was admissible despite the language of subdivision (c). Penal Code section 631, subdivision (c) provides: "Except as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative or other proceeding." Article I, section 28, subdivision (d) of the California Constitution adopted on June 8, 1982 (Prop. 8), provides: "Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any statutory or constitutional right of the press." (3) The California Supreme Court has held that relevant evidence may be excluded only if exclusion is required by the United States Constitution. (In re Lance W. (1985) 37 Cal. 3d 873, 890 [210 Cal. Rptr. 631, 694 P.2d 744].) (1c) This case does not involve a "... statute ... enacted by a two-thirds vote of the membership in each house of the Legislature...." It is clear that evidence obtained under the provisions of 18 United States Code section 2510 et seq. is not required to be excluded by the United States Constitution. (See, e.g., cases collected in 18 U.S.C.A. (1989 pocket supp.) foll. §§ 2517, 2518, under heading Constitutionality, pp. 149, 161-162.) The wiretap evidence in the instant case was relevant and it was obtained pursuant to the provisions of 18 United States Code section 2510 et seq., and, therefore, the court's denial of defendant's motion to suppress was correct. Even if the denial of the motion to suppress had been error, it is clear that it would have been harmless error and we would have been compelled to affirm the judgment. The evidence of guilt was overwhelming, even excluding the wiretap evidence, and it is not "... reasonably probable that a result more favorable to the appealing party would have been reached in the *1170 absence of the error." (People v. Watson (1956) 46 Cal. 2d 818, 836 [299 P.2d 243]; see Evid. Code § 353, subd. (b).) The judgment is affirmed. McDaniel, J., and Dabney, J., concurred. Appellant's petition for review by the Supreme Court was denied November 15, 1989.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2483734/	464 F. Supp. 2d 1100 (2006) Shirley WILLIAMS et al., Plaintiffs, v. SPRINT/UNITED MANAGEMENT COMPANY, Defendant. No. 03-2200-JWL. United States District Court, D. Kansas. December 8, 2006. 1101 Andrew H. McCue, Brian D. Defrain, Martin M. Meyers, The Meyers Law Firm, LC, Claudio E. Molteni, Dennis E. Egan, Stephen J. Dennis, Bert S. Braud, The Popham Law Firm, P.C., Kansas City, MO, Daniel B. Kohrman, Laurie A. McCann, Thomas W. Osborne, AARP Foundation Litigation, Washington, DC, Gene P. Graham, Jr., Deborah J. Blakely, White, Allinder, Graham & Buckley LLC, Kenneth B. McClain, Humphrey, Farrington & McClain, Independence, MO, Matthew C. Billips, Miller, Billips & Ates, PC, Atlanta, GA, Dirk L. Hubbard, John M. Klamann, Klamann & Hubbard, P.A., Overland Park, KS, for Plaintiffs. Hector L. Rios, pro se. Socorro Rodriquez, pro se. Trinidad Rodriquez, pro se. Juan Manuel Ruiz, pro se. Sandra Serrano, pro se. Dora Torres, pro se. Jose A. Martinez, pro se. Ashley R. Hurst, Hunter R. Hughes, III, J. Timothy McDonald, John Da Grosa Smith, Thomas Joseph Mew, IV, Rogers & Hardin LLP, Atlanta, GA, Chris R. Pace, Jill S. Ferrel, Stephany J. Newport, Sprint Nextel Corporation, Overland Park, KS, Christine F. Miller, David L. Schenberg, Gerard K. Rodriguez, Harry B. Wilson, Jr., James F. Monafo, Joseph H. Guffey, Mark G. Arnold, Tamara M. Spicer, Thomas A. McCarthy, Husch & Eppenberger, LLC, St. Louis, MO, David A. Schatz, 1102 Patrick M. Gavin, Robert A. Costello, John J. Yates, Philip R. Dupont, Husch & Eppenberger, LLC, David M. Eisenberg, Baker, Sterchi, Cowden & Rice, L.L.C., Kansas City, MO, for Defendant. John R. Phillips, Blackwell Sanders Peper Martin LLP, Kansas City, MO, pro se. MEMORANDUM & ORDER LUNGSTRUM, District Judge. Plaintiff Shirley Williams filed this suit on behalf of herself and others similarly situated asserting that her age was a determining factor in defendant's decision to terminate her employment during a reduction-in-force (RIF). This case has been provisionally certified as a collective action pursuant to 29 U.S.C. § 216(b). This matter is presently before the court on that portion of plaintiffs' motions to review (does. 3605 and 4338) that the court retained under advisement in its November 9, 2006 memorandum and order; specifically, whether defendant waived the attorney-client privilege by asserting its "good faith" compliance with the ADEA. As will be explained, the court now denies that portion of plaintiffs' motions and concludes that defendant has not waived the privilege by asserting its good faith compliance with the ADEA. I. Background Plaintiffs' motions to review challenged several orders issued by the magistrate judge in which he concluded that certain documents relating to adverse impact analyses conducted by defendant are protected from discovery by the attorney-client privilege.[1] Specifically, the magistrate judge concluded that the adverse impact documents constituted communications made for the purpose of obtaining legal advice and at the direction of counsel, that the documents were kept confidential and that defendant had not waived the privilege in any respect. In their motions to review, plaintiffs asserted, among other things, that the magistrate judge erred in concluding that defendant had not waived the privilege by asserting its "good faith" compliance with the ADEA. On November 9, 2006, this court issued its memorandum and order concerning plaintiffs' motions to review. The court denied the motions to review in all but two respects the court remanded to the magistrate judge the issue of whether defendant waived the attorney-client privilege with respect to certain documents for which defendant, on its privilege log, claimed only work product protection (that issue remains pending before the magistrate judge); and the court retained under advisement the issue of whether defendant's assertion that it had engaged in "good faith" efforts during the RIF process to comply with the ADEA was sufficient to require disclosure of the adverse impact documents. With respect to that issue, the court explained that it could not discern on the record before it the facts on which defendant intended to base its assertion that it engaged in good faith efforts to comply with the ADEA and, thus, could not discern whether those facts would be sufficient to trigger a waiver of the privilege. The court, then, held a telephone conference on November 16, 2006 to permit defendant to explain (and plaintiffs to respond to that explanation) to the court the meaning of the phrase "good faith" as that phrase is used in defendant's answer and to further explain to the court the factual basis for defendant's "good faith" assertion. Thereafter, the court directed the parties to file supplemental briefs on the 1103 waiver issue. That briefing is now complete and the issue is ripe for the court's resolution.[2] II. Discussion Plaintiffs urge that defendant's assertion that it engaged in "good faith" efforts during the RIF process to comply with the ADEA is sufficient to require disclosure of documents reflecting adverse impact analyses conducted by defendant. As explained by defendant, it asserted its "good faith" in its answer to plaintiffs' revised second amended complaint only to negate plaintiffs' claims that defendant committed willful violations of the ADEA.[3] Defendant asserts that it does not intend to rely on the adverse impact analyses or the advice of counsel in support of its "good faith" defense. Rather, defendant intends to rely on its anti-discrimination policies, the training that its employees received concerning those anti-discrimination policies and certain "due diligence" conducted by its Human Resources managers in reviewing RIF selection decisions to ensure that those decisions were justified by legitimate, nondiscriminatory reasons.[4] Plaintiffs argue that defendant's reliance on its anti-discrimination policies and the "due diligence" conducted by its Human Resources managers to prove defendant's good faith compliance are both sufficient to trigger a waiver of the privilege with respect to the adverse impact documents. Plaintiffs further assert that the deposition testimony of defendant's witnesses during discovery concerning reliance on the advice of counsel is sufficient to trigger a waiver of the privilege concerning the adverse impact documents. In resolving the waiver issue, the court first examines the pertinent case law and then analyzes each of these specific categories 1104 of evidence with reference to that case law.[5] A. Pertinent Legal Standards Concerning Waiver As explained by the Tenth Circuit in Frontier Refining Inc. v. Gorrman-Rupp Co., 136 F.3d 695, 699 (10th Cir.1998), courts generally employ some version of one of three general approaches to determine whether a litigant has waived the attorney-client privilege. The first of these approaches is the "automatic waiver" rule whereby a litigant waives the privilege upon the mere assertion of a claim, counterclaim, or affirmative defense that raises as an issue a matter to which otherwise privileged material is relevant. This court, in its November 9, 2006 memorandum and order, concluded that the Circuit would reject this liberal approach to waiver. The "intermediate" approach to waiver provides that the privilege is waived "only when the material to be discovered is both relevant to the issues raised in the case and either vital or necessary to the opposing party's defense of the case." Id. (citing Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.Wash.1975)). The final, more restrictive approach provides that the privilege is waived only if the litigant directly puts the attorney's advice at issue in the litigation. Id. at 699-700 (citing Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir.1994)). While the Tenth Circuit in Frontier did not need to choose between the intermediate and more restrictive approaches to waiver, this court has advised the parties (during the November 16, 2006 telephone conference) that it believes the Circuit would adopt the intermediate approach as applied by the court in Hem v. Rhay in light of its tendency to eschew bright-line rules in favor of more flexible, balancing tests in the context of employment discrimination cases. Under the Hearn test, each of the following three conditions must exist to find waiver: (1) assertion of the privilege was the result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to its defense. Id. at 701 (quoting Hearn, 68 F.R.D. at 581). A court, then, should 1105 find that the party asserting a privilege has impliedly waived that privilege through his own affirmative conduct when the party "places information protected by it in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would [be] manifestly unfair to the opposing party." Hearn, 68 F.R.D. at 581. B. Anti-Discrimination Policies During the November 16, 2006 telephone conference and in its supplemental briefing to the court, defendant has asserted that it will demonstrate its "good faith" compliance with the ADEA by reliance on its anti-discrimination policies and the training that its employees received concerning those anti-discrimination policies. Plaintiffs contend that defendant's reliance on those policies is sufficient to waive the privilege with respect to adverse impact analyses because those policies contain express provisions concerning "disparate impact analysis" and the legal department's role in that analysis.[6] According to plaintiffs, any contrary result would preclude plaintiffs from testing defendant's adherence to its anti-discrimination policies and defendant's asserted belief that its antidiscrimination policies were effective. Defendant, in turn, argues that an employer does not waive the attorney-client privilege by merely incorporating a written "legal review" requirement into its RIF guidelines. As explained below, the court concludes that defendant has not waived the privilege by referencing "disparate impact" review or "legal review" in its antidiscrimination policies.[7] Before analyzing the parties' argument, the court must ascertain the specific "antidiscrimination policies" upon which defendant intends to rely in support of its good faith defense. Defendant has not identified any particular policy and plaintiffs have submitted to the court a "small sample" of what they contend amounts to "hundreds of pages of . . . written policies and mandatory guidelines." Defendant's reference to "anti-discrimination policies" and the training employees received concerning those policies clearly implies an intent to rely on official statements of policy or procedure that have been adopted (formally or otherwise) by defendant. While the record reflects that defendant 1106 maintains general nondiscrimination policies and statements in the employment context, see Kissinger Depo. at 29 (Jan. 18, 2005) and 342-44 (Dec. 18, 2003),[8] none of those policies are before the court and plaintiffs do not suggest that defendant's reliance on those general policies would result in a waiver of the attorney-client privilege. With respect to the specific context of a reduction in force, the record reflects that a document entitled "Workforce Reduction Guidelines" (referred to by the parties as Exhibit 8 and bearing Bates-stamp numbers SPR-W010960 et seq.) is the only written company-wide policy, practice or procedure concerning the implementation of a reduction in force. See Kissinger Depo. at 345 (Dec. 18, 2003). Defendant's Workforce Reduction Guidelines are distributed to defendant's Human Resources department for use in working with line managers to facilitate a reduction in force. See Kissinger Depo. at 29 (Jan. 18, 2005). The Workforce Reduction Guidelines are mandatory and the managers utilizing the guidelines are expected to follow the steps outlined in the guidelines. See Kissinger Depo. at 35 (Dec. 17, 2003). The Workforce Reduction Guidelines, then, appear to be the type of official policy adopted by defendant upon which defendant intends to rely to prove its good faith defense.[9] The court cannot conclude that any other documents before it constitute the type of "policy" on which defendant intends to rely to support its good faith defense. While plaintiffs have submitted numerous pages of documents that they summarily assert constitute "defendant's policies and procedures," the record does not support this conclusion. The vast majority of the documents submitted by plaintiffs appear to be stray e-mails referencing "adverse impact" or the need for "legal review" of selection decisions. In the context of the motion to review, however, the key is whether defendant has waived the privilege by its assertion of a "good faith" defense a defense that it intends to prove by reliance on its antidiscrimination policies. There is no indication that defendant is intending to rely on these e-mails to prove its good faith defense. Rather, defendant is relying on its employees' knowledge of defendant's policies concerning nondiscrimination and the effectiveness of those policies. Even under the most liberal definition, the e-mails and other documents submitted by plaintiffs do not constitute "antidiscrimination policies." The court turns back, then, to the Workforce Reduction Guidelines. For purposes of the waiver issue, only two pages of that multi-page document are pertinent. The second page of the Guidelines is entitled "Planning Checklist" and it lists a "number of topics, issues, or actions that may be relevant in planning a workforce reduction depending on the circumstances." The document then lists via bullet points fifteen (15) topics or issues, including topics such as "placement to avoid reduction," "advance notice, timing and coordination of notification," and "confidentiality." The 1107 fourth topic on the list is "Discrimination or Disparate Impact," and the ninth topic on the list is "Coordination with Law Department." The third page of the Guidelines is entitled "Displacement Guidelines" and it sets forth "guidelines for selecting employees for reduction . . . in descending order of importance." This page directs the recipient, when reviewing "same site multiple job incumbents" to "formally consider" the qualifications of each incumbent; recent performance ratings, attendance, total contribution, critical skill sets and knowledge of each incumbent; any corrective action notices or warnings; and length of service within the company and within the position. The recipient is then directed to "review planned displacement action with the Law Department and Corporate Employee Relations in advance for disparate impact analysis.[10] The court concludes that the mere fact that the Workforce Reduction Guidelines contain express provisions concerning "disparate impact" and coordination or counseling with defendant's legal department is insufficient to trigger a waiver of the privilege with respect to the adverse impact analyses. The court does not dispute plaintiffs' argument that defendant's adverse impact analyses and its consultation with counsel are relevant to the overall effectiveness of the Workforce Reduction Guidelines; indeed, those concepts are expressly contained in the Guidelines themselves.[11] As suggested by the Tenth Circuit in Frontier, however, the mere fact that privileged material is relevant to a matter that is raised as an issue in connection with the assertion of an affirmative defense is insufficient to trigger a waiver. See Frontier, 136 F.3d at 699 ("automatic waiver" rule provides that a litigant "automatically waives the privilege upon assertion of . . . an affirmative defense that raises as an issue a matter to which otherwise privileged material is relevant"). In other words, the mere fact that the Guidelines expressly require consultation with counsel or adverse impact testing, standing alone, should not trigger a waiver of the privilege. Rather, as explained in Hearn, the key is whether defendant will "assert the privilege in aid of" or "invoke the privilege in furtherance of its argument that it complied in good faith with the ADEA in part because of the effectiveness of and its adherence to its anti-discrimination policies, including the Workforce Reduction Guidelines. Hearn, 68 F.R.D. at 581. Defendant urges that it will not assert the privilege in furtherance of its good faith defense in the sense that it will not rely on any evidence which would cause it to open the door to an inquiry from plaintiffs which would then, in turn, cause defendant to assert the privilege. According to defendant, it will tout its good faith compliance with the ADEA and the effectiveness of its policies without reference to the adverse impact analyses and without reference to consultation with counsel. Instead, 1108 it will focus solely on the remaining aspects of the Workforce Reduction Guidelines and other anti-discrimination policies, including requirements that managers consider factors such as performance ratings, attendance, knowledge and experience, length of service and corrective action notices. In other words, defendant will not attempt to prove its good faith, tout the effectiveness of its policies, or otherwise justify any selection decisions by relying on advice of counsel or the results or performance of any adverse impact analyses; it will defend its selection decisions based on grounds wholly separate from advice of counsel and adverse impact testing. In such circumstances, the court believes that defendant may rely on its adherence to and the effectiveness of its policies, including the Workforce Reduction Guidelines, without requiring an examination of the adverse impact analyses or otherwise protected communications. The privilege, then, has not been waived. See Motley v. Marathon Oil Co., 71 F.3d 1547, 1552 (10th Cir.1995) (no waiver of privilege where defendant did not justify termination decision on the basis of advice of counsel and did not claim that termination was based on recommendation from counsel). In keeping with its assertion that it does not intend to rely on any adverse impact analyses or consultation with counsel in discussing its anti-discrimination policies or the Workforce Reduction Guidelines, defendant suggests that the references to "disparate impact" and coordination or counseling with the legal department be redacted from the Workforce Reduction Guidelines and that plaintiffs be prohibited from inquiring about whether defendant's managers consulted with counsel in implementing the reduction in force and whether those managers were advised about the results of any adverse impact analyses. The court is persuaded that this approach is an appropriate one. While plaintiffs contend that the documents should not be redacted and that, in the absence of a waiver finding, they should be permitted to introduce evidence that adverse impact analyses were required by the Workforce Reduction Guidelines but defendant should be prohibited from introducing evidence that those analyses were performed, leaving the jury with the inference that defendant did not adhere to its policy. This is not a reasonable solution to the issue. Because the court has concluded that defendant has not waived the privilege by including express provisions in its policy concerning adverse impact analyses and the need for legal review, it would be inappropriate to permit plaintiffs to inquire about such testing and then force defendant to either invoke the privilege in the jury's presence (creating the negative inference desired by plaintiffs) or waive the privilege by responding to the question. See Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 225-26 (2d Cir.1999) ("[W]e know of no precedent supporting [an adverse] inference based on the invocation of the attorney-client privilege."), overruled on other grounds sub nom. Moseley v. Secret Catalogue, 537 U.S. 418, 123 S. Ct. 1115, 155 L. Ed. 2d 1 (2003). Plaintiffs also contend that the redaction approach suggested by defendant creates additional problems because then the Workforce Reduction Guidelines are left devoid of any reference for the need to avoid discrimination in selection decisions, prompting plaintiffs to highlight for the jury that defendant's Workforce Reduction Guidelines do not even address the topic of discrimination. The court rejects this argument as well. Redaction of the phrase "disparate impact" still leaves a reference to "discrimination" on the Planning Checklist page of the Guidelines and it is this reference to "discrimination" that Mr. Kissinger testified was intended to incorporate into the Guidelines defendant's general nondiscrimination policies. Plaintiffs, 1109 then, would not be able to suggest that the Guidelines did not address the topic of discrimination. In any event, the court would, not permit plaintiffs to leave the inference with the jury that provisions of the Workforce Reduction Guidelines that had been redacted on the basis of privilege did not exist in the first instance. For the foregoing reasons, the court concludes that defendant has not waived the privilege with respect to adverse impact analyses by referencing "disparate impact" review or "legal review" in its Workforce Reduction Guidelines. C. Due Diligence Conducted by Human Resources In its supplemental briefing, defendant also asserts that it will support its "good faith" defense with evidence concerning "the assistance of the Human Resources Department and its due diligence in reviewing [selection] decisions prior to obtaining any legal advice." In response, plaintiffs urge that any due diligence conducted by Human Resources is inseparable from the due diligence conducted by or on behalf of defendant's legal department such that defendant's intent to rely on "due diligence" in any respect clearly waives the privilege with respect to the adverse impact documents. Defendant, on the other hand, contends that the due diligence review conducted by Human Resources is distinct from the review conducted by defendant's legal department such that its reliance on the due diligence conducted by Human Resources leaves intact the privilege concerning adverse impact documents. As explained below, the court concludes that defendant's intention to introduce evidence of human resources' due diligence review of selection decisions does not implicate the adverse impact analyses or any other privileged communication and that defendant has not waived the privilege by its reliance on the due diligence review conducted by human resources. To begin, the record reflects a great deal of confusion on the part of both plaintiffs and defendant concerning the extent to which due diligence performed by Human Resources is separate from the review conducted by the legal department. While each party vigorously blames the other for this confusion, it appears to the court that both parties have contributed to it. Defendant, in much of its briefing throughout this case and through the testimony at the March 2006 evidentiary hearing before Magistrate Judge Waxse, maintained that the due diligence conducted by Human Resources, at least through the time when the adverse impact documents were created by Human Resources, was a separate process from that conducted by the legal department. Plaintiffs, too, have evidenced a belief that these processes were separate and distinct. However, as reflected in much of the deposition testimony presented to the court by plaintiffs in connection with this motion and their motion to review the magistrate judge's order of October 5, 2006 granting defendant's motion for protective order prohibiting discovery relating to adverse impact analyses, defendant has objected on the basis of attorney-client privilege to questions posed by plaintiffs' counsel that appear designed to solicit information concerning this separate due diligence conducted by Human Resources. In large part, then, the issue has been confounded through the course of depositions in this case.[12] 1110 In an effort to ascertain for itself whether the due diligence conducted by Human Resources is separate from any review conducted by or on behalf of the legal department, the court examines the evidence in the record before it. In that regard, the record reveals that the vast majority of defendant's witnesses have testified (that is, when they have been permitted by defendant's counsel to testify on the subject) that human resources conducted an initial "due diligence" review (also referred to as a "sore thumb" review by certain witnesses) of selection decisions prior to obtaining legal advice. Similarly, virtually all of defendant's witnesses testified that the adverse impact documents were not utilized by human resources in any fashion and that those documents were generated by Human Resources for the sole purpose of transmitting the documents to the legal department. The most thorough explanation of the due diligence conducted by Human Resources is found in the testimony given by Deb Sprayberry at the March 2006 evidentiary hearing before Magistrate Judge Waxse. During the time period relevant to this lawsuit, Ms. Sprayberry was employed as defendant's Manager of Regional HR Operations responsible for supporting HR managers in the field (managers who, in turn, supported the sales organization and retail stores). As part of her job, Ms. Sprayberry was responsible for guiding field HR managers though the reduction in force process. As explained by Ms. Sprayberry, human resources would conduct a "preliminary HR review" prior to any contact with the legal department and prior to the generation of any adverse impact documents. This review constituted a "quick" review of the selection decisions by reviewing the candidate selection worksheets (also referred to as "realignment selection worksheets") worksheets containing the names of the individuals selected for termination and reflecting how those individuals were evaluated against specific selection criteria. These worksheets were not part of the adverse impact documents and, in fact, the initial HR review, as explained by Ms. Sprayberry, occurred before the adverse impact documents were created. According to Ms. Sprayberry, human resources, in conducting their initial review, did not review any summary data and only examined the "raw data" to see if "there was something that was very obvious that we needed to address." Ms. Sprayberry testified that each HR manager would have received candidate selection worksheets from the field and that any initial HR review would have been based on these worksheets. In summary, Ms. Sprayberry testified that the initial HR review was completely separate from the adverse impact process involving the legal department. Ms. Sprayberry's testimony is consistent with the testimony of other Human Resources employees. For example, Michael Brill, a manager in defendant's human resources department, testified that the organizations that he supported would provide to him candidate selection worksheets and he would use those worksheets to "perform initial due diligence before we would partner with legal on final adverse impact." According to Mr. Brill, human resources would review the candidate selection worksheets to "determine were there any decisions that look like they were inappropriate decisions." James Kissinger, 1111 previously a Vice President for Human Resources, testified that Human Resources frequently conducted a "sore thumb" review of selection decisions prior to obtaining legal advice. According to Mr. Kissinger, this review "stopped short of the official adverse impact analysis that's required and required and directed by the law department" and typically consisted of an "overall observation of the number of minority employees subject to reduction." Mr. Kissinger testified that this review simply looked for "obvious issues" and that it did not involve statistical adverse impact analysis in the sense that was required by the legal department. In addition, the testimony of numerous witnesses confirms that Human Resources did not utilize the adverse impact analyses in conducting their own due diligence review (or in any respect, for that matter). At the March 2006 evidentiary hearing before Magistrate Judge Waxse, each witness who testified on behalf of defendant (i.e., Scott Winkler; James Kissinger; Deb Sprayberry; Gina Eisler; and Eric Rice) testified that Human Resources' only involvement with the adverse impact analyses was to input the pertinent data in the computer (the computer then generated the adverse impact calculations and the matrix) and then forward the resulting document to the legal department. Without exception, these witnesses testified that Human Resources did not utilize the adverse impact documents for any reason independent of the legal review conducted by the legal department. While plaintiffs acknowledge the testimony of these witnesses, they assert that two other Human Resources employees Marvin Motley and John Shannon have testified that the due diligence conducted by Human Resources involved reviewing the same adverse impact documents that were ultimately sent to legal, thus rendering the two processes inextricably intertwined. While Mr. Motley's deposition testimony is not a model of clarity (due in part to plaintiffs' counsel's use interchangeably of the phrases "adverse impact review" and "due diligence review"), the court does not view that testimony as inconsistent with the testimony of other human resources employees. Mr. Motley testified that in terms of any "adverse impact analysis," the role of human resources was simply to collect the pertinent data and pass that information on to the legal department for a determination of whether any adverse impact existed. Mr. Motley further testified that human resources, prior to any involvement with the legal department, would have conducted a "front end" or "sore thumb" analysis. According to Mr. Motley, this review consisted of looking "at the information about what the total population looked like and who was being separated to try to at least get a feel for whether we thought there was a problem or not." Consistent with Ms. Sprayberry's testimony, then, this testimony indicates that human resources did not review any summary information or percentages and only looked at the raw data for obvious problems or glaring inconsistencies. After plaintiffs' counsel inquires about the specifics of "how" human resources would perform its "front end" analysis, the following exchange takes place: Mr. Motley: I think that they would have looked to see what the relative age of the people that are being separated compared to the population that they came from. And the example that I would give you is if we saw a situation where the population was generally fairly the majority of the population was over 40, you would expect the majority of the separated employees to be over 40. Counsel: So did you gather statistics to try to determine whether or not the 1112 majority of [the] population was over 40? Mr. Motley: I think they would have done basically, as I said before, sort of sore thumb and they would have passed off their data to do the specific analysis to the law department. Counsel: Sure. Were there any documents generated with regard for the front end analysis by the HR? Mr. Motley: Maybe not. Counsel: Maybe so? Mr. Motley: More likely not. I mean, they would have used, we would have used the same forms that we passed on to the legal folks. But I mean, we collect the data, we're going to look at it. It is apparently Mr. Motley's testimony concerning human resources' use of the "same forms" that were sent to legal from which plaintiffs infer that human resources employees used the adverse impact analyses in conducting their own due diligence or sore thumb review. The court, however, declines to draw such a sweeping inference from this isolated portion of Mr. Motley's testimony, particularly as Mr. Motley does not ever state that human resources used the adverse impact documents in connection with its own due diligence. Indeed, it is more probable that this portion of Mr. Motley's deposition references either the Master and RIF lists (spreadsheets generated by human resources indicating respectively the universe of employees in a particular pool and the individuals selected for termination from that particular pool) or the candidate selection worksheets about which other human resources employees testified. This reading of this portion of Mr. Motley's testimony is more consistent with the entirety of Mr. Motley's testimony concerning the due diligence review. In that regard, Mr. Motley consistently testified that, in his recollection, the human resources review consisted of looking "at the age of the people who were being separated" and "the pool of the people that they came from" to determine whether "an anomaly" existed. The Master and RIF lists documents that were ultimately sent to legal but are not protected by the privilege contain the very data that human resources collected and from which human resources could have performed its "front end" analysis as described by Mr. Motley. Similarly, to the extent that candidate selection worksheets were transmitted to the legal department, those documents would have been collected by human resources and examined by human resources in its initial due diligence review. For the foregoing reasons, then, the court cannot conclude that Mr. Motley's deposition testimony supports plaintiffs' assertion that human resources utilized the adverse impact documents in performing its own due diligence of selection decisions. With respect to Human Resources employee John Shannon, plaintiffs are correct that Mr. Shannon testified that he utilized the adverse impact analyses in performing his own due diligence review of selection decisions. Mr. Shannon concedes, however, that he was "running [his] own adverse impacts outside of the policy" and that his conduct in utilizing adverse impact analyses in performing due diligence was "outside the sanction of our legal department."[13] Thus, while the record reflects that Mr. Shannon was utilizing adverse 1113 impact analyses, the record also reflects that Mr. Shannon knew he was not authorized to do so and that his conduct was contrary to corporate policy. In fact, Mr. Shannon's testimony otherwise supports the conclusion that HR due diligence consisted primarily of reviewing the candidate selection worksheets for obvious issues. In that regard, Mr. Shannon testified that human resources would receive candidate selection worksheets from managers in the field and the human resources employees would "dig into" the worksheets to ascertain whether the selection decisions appeared to be supported by reason and logic and to seek clarification or additional information concerning selections decisions in advance of any input from the legal department. Mr. Shannon's testimony, then, does not persuade the court that the "HR due diligence review" on which defendant intends to rely at trial involved a review of adverse impact documents that were sent to legal. Finally, plaintiffs contend that defendant's refusal to permit their witnesses to answer deposition questions (through the assertion of a privilege objection) concerning HR's due diligence review demonstrates that the HR due diligence review is inextricably intertwined with the review conducted by the legal department. The court, however, is unwilling to draw this conclusion based solely on, the deposition excerpts provided by plaintiff. In many of the exchanges highlighted by plaintiffs' counsel in which privilege objections were lodged, plaintiffs' counsel had asked compound questions concerning both "adverse impact" and "due diligence" or had otherwise intermingled the two concepts. In other words, there are very few pointed questions aimed solely at the separate due diligence conducted by human resources. To make matters worse, defendant's counsel, on several occasions, was perhaps overreaching in its assertion of the privilege objection and failed to clarify that it did not object to questions aimed at the separate due diligence conducted by human resources. Both parties, then, have contributed to a muddled deposition record on this issue and the court cannot conclude from those excerpts before it that defendant intended to use the privilege to shield questions seeking only information concerning the due diligence conducted by human resources. To be clear, however, the court's ruling that defendant's reliance on the "separate" due diligence conducted by human resources has not waived the privilege is premised on defendant's representation that it will not lodge privilege objections to questions concerning that due diligence. If Magistrate Judge Waxse, in resolving plaintiffs' motion to compel responses to deposition questions, determines that any depositions need to be reopened to explore further the issue of HR's due diligence and defendant does not abandon its objections to questions concerning human resources' due diligence, then the court will need to revisit the waiver issue entirely, as defendant's good faith defense is admittedly based in large part on the due diligence conducted by human resources.[14] The court concludes, then, that defendant's intention to introduce evidence of human resources' due diligence review of selection decisions does not implicate the 1114 adverse impact analyses or any other privileged communication as the facts in the record concerning the due diligence review conducted by human resources demonstrate that the review did not utilize adverse impact analyses. In other words, the adverse impact analyses are not germane to the due diligence review conducted by human resources upon which defendant intends to rely. As such, defendant, through its reliance on human resources' due diligence review, has not put the adverse impact analyses or any other privileged communication at issue. Moreover, there is no manifest unfairness to plaintiffs in protecting the adverse impact analyses against disclosure as the adverse impact analyses were not part of human resources' due diligence review. In other words, plaintiffs are able to address fully defendant's evidence concerning human resources' due diligence review a review that did not include utilization of the adverse impact analyses without access to the adverse impact analyses. For the foregoing reasons, the attorney-client privilege has not been waived by defendant's reliance on the due diligence review conducted by human resources. See Frontier Refining Inc. v. Gorman-Rupp Co., 136 F.3d 695 (10th Cir.1998) (under middle-of-the-road approach to waiver, privilege is waived only when the material to be discovered is both relevant to the issues raised in the case and either vital or necessary to the opposing party's defense of the case); Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.Wash.1975) (privilege is waived when "the party asserting the privilege place[s] information protected by it in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would [be] manifestly unfair to the opposing party"). D. Deposition Testimony of Defendant's Witnesses Plaintiffs also contend that defendant's witnesses, contrary to defendant's counsel's insistence that defendant will not rely on an "advice of counsel" defense, have repeatedly testified that they relied upon defendant's legal department to advise them if any particular RIF selection decisions violated or appeared to violate anti-discrimination laws. According to plaintiffs, an inference of nondiscrimination in favor of defendant then arises from the absence of testimony (due to defendant's invocation of the privilege) that the legal department ever indicated that any selection decisions raised red flags in terms of the pertinent discrimination laws. Plaintiffs contend that this result is clearly impermissible under Hearn and its progeny, including In re Broadcom Corp. Securities Litigation, 2005 WL 1403516 (C.D.Cal. Feb.10, 2005) and Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386 (11th Cir.1994). Both In re Broadcom Corp. and Cox are distinguishable from the facts presented by plaintiffs here. In the first case, the individual defendants represented that they would affirmatively testify that each SEC filing and disclosure document was reviewed by counsel and that they expected counsel to advise them "if anything illegal was happening." In re Broadcom Corp., 2005 WL 1403516, at 2. Similarly, in Cox, the defendant desired to affirmatively present evidence that it believed its conduct was legal. 17 F.3d at 1419. By contrast, the deposition testimony relied upon by plaintiffs in this case shows, without exception, that the testimony concerning reliance on counsel was elicited by plaintiffs' counsel in response to pointed questions from plaintiffs' counsel concerning adverse impact analyses a subject that defendant has consistently urged is 1115 "off limits." For example, one of defendant's executives, Michael Fuller, was asked by plaintiffs' counsel whether "any adverse impact analysis" was conducted with respect to a particular RIF and, in response, Mr. Fuller stated that he did not know, but that he "would expect the organization to inform [him] if any issues or problems were detected." Another executive, Robert Dellinger, was asked by plaintiffs' counsel whether he was made aware of the results of adverse impact analyses; Mr. Dellinger replied that he believed he would be made aware if there was a specific issue in his organization.[15] The court finds no waiver in such circumstances.[16] In so concluding, the court is guided in large part by the Fifth Circuit's decision in Ward v. Succession of Freeman, 854 F.2d 780 (5th Cir.1988). While the procedural posture of Ward is somewhat unique, the court nonetheless finds the opinion persuasive in the factual context presented here. In Ward, a case brought by shareholders against a corporation alleging violations of securities laws, the district court had compelled defendants to disclose certain documents containing attorney-client communications based on a previous decision from the Fifth Circuit holding that shareholders, in litigation involving a corporation and its shareholders, may have access to otherwise privileged information after a showing of good cause. Ward, 854 F.2d at 784. The plaintiffs then used those documents in an attempt to establish the scienter element of their securities claims. See id. at 786. In an attempt to rebut these allegations, the defendants then sought to demonstrate their good faith reliance on the advice of counsel. See id. at 788. At that point, the district court, which had previously indicated that defendants had preserved their right to appeal the court's initial decision requiring disclosure of privileged communications, held that defendants had waived the privilege entirely by voluntarily injecting the advice-of-counsel issue into the case. See id. at 787. On appeal, the Fifth Circuit reversed the district court's initial decision to compel disclosure of the attorney-client communications and also reversed the district court's decision that defendants thereafter waived the privilege by raising the advice-of-counsel issue. According to the Fifth Circuit, the district court's finding of waiver did "not square with traditional notions of when a party acts voluntarily in introducing privileged matter so as to waive the privilege." Id. Specifically, the Fifth Circuit emphasized that the defendants "never mentioned" the advice-of-counsel defense until after the district court compelled disclosure of privileged communications and only raised it at trial after the plaintiffs in the first instance introduced privileged communications concerning the advice of counsel. Id. at 788. In such circumstances, the Circuit held that the *1116 defendants did not "voluntarily" inject the advice-of-counsel issue into the case but were merely rebutting an issue injected into the trial by plaintiffs: [Defendants were] not the first party to inject reliance on advice of counsel into the trial. The plaintiffs first argued that the advice given by [defendants'] attorneys to the defendants regarding disclosure decisions went straight to the crucial issue of whether the allegedly fraudulent decisions were made with scienter. [Defendants] had no choice but to negate the proof by showing it acted in good faith and without any knowledge of an evil plot to defraud shareholders. . . . [W]e do not see how [defendants] can be said to have waived its privilege when it was plaintiffs who exploited the attorney-client communications in order to attempt to prove their claims. Id. at 789. Similarly, the record before the court indicates that defendant's witnesses did not "voluntarily" raise the advice-of-counsel issue; they raised it only in response to direct questions from plaintiffs' counsel concerning privileged communications, including the adverse impact analyses and whether anyone had advised the witness about the results of such analyses. Unlike In re Broadcom Corp. and Cox, then, the testimony of these witnesses does not indicate that defendant intends to use advice of counsel to justify any conduct on its part. See Motley v. Marathon Oil Co., 71 F.3d 1547, 1552 (10th Cir.1995) (no waiver of privilege where employer did not attempt to justify its decisions based on advice of counsel). In other words, there is nothing in the record suggesting to the court that these witnesses (or any other witnesses on behalf of defendant) intend to, at their own initiative, testify at trial that they relied on counsel to advise them of any potential problems concerning RIF selection decisions. Rather, the record reflects that, like the factual scenario in ?Ward, defendant's witnesses would feel compelled to testify about their reliance on counsel's advice only if plaintiffs, on cross-examination, were permitted to ask those witnesses about their knowledge of adverse impact analyses a subject that has otherwise been deemed privileged. As the court will not permit plaintiffs to inquire about privileged communications, defendant's witnesses will not testify about their reliance on counsel. For the foregoing reasons, the court concludes that defendant has not waived the privilege by virtue of the deposition testimony of its witnesses. IT IS THEREFORE ORDERED BY THE COURT THAT that portion of plaintiffs' motions for review (does. 3605 and 4338) that the court previously retained under advisement are now denied. IT IS SO ORDERED. NOTES [1] For a more detailed explanation of the "adverse impact" issue in the context of this case, the reader is directed to this court's November 9, 2006 memorandum and order. [2] In their supplemental brief, defendant challenges certain statements that it believes the court made during the November 16, 2006 telephone conference with the parties. Specifically, defendant asserts that the court indicated that a party may assert the attorney-client privilege for only two reasons to simply vindicate the privilege for its own sake or to hide misdeeds and that the court suggested that it believed that defendant was asserting the privilege to hide its misdeeds. Defendant insists that the court's underlying premise is "foreign to American law" and that the privilege exists to encourage clients to approach lawyers for advice and thereby prevent problems and further objects to the court's "acceptance" of plaintiffs' argument that defendant has engaged in misdeeds. The court has reviewed the transcript from the hearing and finds that defendant's recollection of the court's comments is inaccurate. In fact, the court stated that "there are a number of reasons for a party to vigorously assert the attorney-client privilege" and proceeded to identify only two of those reasons vindicating the privilege itself and protecting from disclosure information that is harmful to the party asserting the privilege. In highlighting the "hiding misdeeds" rationale, the court did not mean to suggest that it believed that defendant was hiding misdeeds. Rather, the court expressly stated that it was drawing that inference only for purposes of the discussion a discussion in which the court asked a series of pointed questions to defendant's counsel concerning defendant's "good faith" defense based on what the court perceived as plaintiffs' arguments and evidence concerning the waiver issue. [3] Although defendant asserted its "good faith" compliance as an affirmative defense in its answer to plaintiffs' revised second amended complaint, the court has previously rejected plaintiffs' argument that defendant had automatically waived the privilege merely by asserting "good faith" in its answer. See Frontier Refining Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699-701 (10th Cir.1998). [4] In addition, defendant intends to rely on the candidate selection worksheets utilized during the RIF process, relevant information from its HRIS database and "reasonable factors other than age" that its management used making RIF selection decisions. Plaintiffs do not assert that defendant's reliance on this evidence constitutes a waiver of the privilege. [5] In their most recent brief, plaintiffs contend that a ruling from the court that defendant has not waived the privilege (rendering "off limits" any reference at trial to the adverse impact analyses) could inhibit plaintiffs from introducing evidence of defendant's awareness of the EEOC's "eighty percent" or "four-fifths" rule, as that evidence loses context in the absence of evidence concerning adverse impact analyses. The court declines to address at this juncture plaintiffs' intent to introduce evidence concerning defendant's knowledge of the four-fifths rule, as plaintiffs' argument does not bear on whether, in the first instance, defendant has waived the privilege due to its assertion of a good faith defense. Similarly, plaintiffs raise two arguments concerning the use of expert testimony at trial. First, plaintiffs state that defendant should not be able to have an expert testify about the results of his or her adverse impact testing (presumably showing that the results of those tests indicate that no discrimination occurred) when defendant, during the RIF itself, performed its own adverse impact testing allegedly showing that discrimination had occurred. Second, plaintiffs contend that if plaintiffs' experts, in performing an adverse impact analysis on behalf of plaintiffs, perform a statistical analysis at the Vice President level and defendant criticizes plaintiffs' experts for that methodology, then plaintiffs should be able to show that defendant itself performed adverse impact analyses at the Vice President level during the RIF. Again, as these arguments do not bear on the issue before the court today, the court declines to address the merits of these arguments at his juncture. [6] Plaintiffs also state that the adverse impact analyses are inextricably merged with the "intent" element of plaintiffs' claims because those analyses are the "only device by which Sprint's knowledge of unlawful discrimination might be directly proved." The court rejects plaintiffs' suggestion that having an "intent" element as part of one's burden of proof is sufficient to waive the privilege if protected documents would assist in proving that element. Otherwise, each and every discrimination claim "would pry open the privilege for [the plaintiff's] indulgence." See Ward v. Succession of Freeman, 854 F.2d 780, 786-87 (5th Cir.1988) (rejecting plaintiffs' argument that having scienter element as part of burden of proof in securities fraud case was sufficient for showing "good cause" for suspending the privilege under rule in litigation involving a corporation and its shareholders that shareholders may have access to otherwise privileged information upon a showing of good cause). [7] In its initial brief to the court, defendant contends that the court should not consider plaintiffs' argument that defendant waived the privilege by expressly including in its policies a reference to "disparate impact" testing or "legal review." According to defendant, plaintiffs' argument was not presented in their initial motion to review and is thus inappropriately presented at this late stage. The court rejects this argument. While plaintiffs did not raise the specific issue of the contents of defendants' policies before the magistrate judge or in their motion to review, plaintiffs obviously raised the "waiver by assertion of good faith defense" argument and only through prompting by the court and supplemental briefing did the specific components of that defense including defendant's reliance on its policies become clear. [8] All references to the "Kissinger" deposition refer to the 30(b)(6) deposition of James Kissinger, defendant's Senior Vice President of Human Resources, whom defendant designated as its representative to testify about the policies and procedures of defendant's human resources department. [9] The court need not resolve whether any portion of the Workforce Reduction Guidelines constitutes an "anti-discrimination policy" as defendant has not challenged plaintiffs' assertion that it does constitute such a policy. Moreover, Mr. Kissinger testified that the Workforce Reduction Guidelines' express reference to "discrimination" on the "Planning Checklist" incorporates defendant's general policies prohibiting discrimination. See Kissinger Depo. at 29-30 (Jan. 18, 2005). [10] Although the phrases "disparate impact" and "disparate impact analysis" are utilized in the Workforce Reduction Guidelines, there is no dispute that the phrase "disparate impact" is interchangeable with "adverse impact." To avoid confusion and to be consistent with prior orders focusing on "adverse impact analyses," the court in this order uses only the phrase "adverse impact." [11] Even if those concepts were not expressly contained in the Guidelines, adverse impact analyses and consultation with counsel would nonetheless be pertinent to the issue of whether the Guidelines were effective if defendant otherwise required (though not in writing) its managers to consult with counsel about selection decisions. Certainly, the court would not find a waiver in those circumstances and the court does not believe that the waiver analysis is altered by the mere fact the defendant elected to express that requirement in the Guidelines themselves. [12] Defendant contends that to the extent defendant's counsel improperly shielded deposition questions with a privilege objection, the fault lies with the "poor questioning" advanced by plaintiffs' counsel. While some of the questions asked by plaintiffs' counsel may have merged the concepts of "adverse impact" and "due diligence," certainly both parties (and witnesses) have used those phrases interchangeably at times. Moreover, defendant's counsel did not assist the deposition process by asserting a blanket privilege objection rather than clarifying for plaintiffs' counsel the distinction defendant was drawing between "adverse impact" and "due diligence" or attempting to sort out with plaintiffs' counsel the specific information sought from the deponent. [13] The record reflects that defendant has produced documents relevant to Mr. Shannon's "own" adverse impact analyses and that defendant has permitted Mr. Shannon to testify on the subject. In other words, defendant is not asserting the attorney-client privilege with respect to adverse impact analyses conducted by Mr. Shannon that were not done at the direction of the legal department. [14] The court's ruling today is also premised on the fact that, as the record demonstrates today, John Shannon is the lone exception to the rule that human resources employees did not utilize adverse impact analyses in performing their own due diligence. If Magistrate Judge Waxse determines that depositions need to be reopened to explore the due diligence process further and plaintiffs discover that numerous other human resources employees were utilizing adverse impact analyses outside the sanction of the legal department, plaintiffs are not precluded from seeking appropriate relief from the court. [15] Plaintiffs further contend that the testimony of defendant's witnesses reveals that the only information upon which those witnesses could have based their good faith belief that defendant was not violating the ADEA was the absence of any indication from defendant's legal department that problems existed with any selection decisions. The court cannot accept this argument in light of the fact that the only testimony before the court stems from direct questions relating solely to adverse impact analyses or direct questions concerning whether the witness expected someone to advise him or her if problems existed with selection decisions. The excerpts before the court do not reflect any questions concerning the factual basis for a witness' good faith belief that defendant's selection decisions complied with the ADEA. [16] Certainly, if defendant affirmatively and voluntarily injects the reliance on counsel issue at trial or in subsequent briefing to the court, the court will revisit the issue of whether defendant has waived the privilege.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2483743/	464 F. Supp. 2d 167 (2006) Jeffrey WYNTERS, Petitioner, v. Supr. Thomas POOLE, Respondent. No. 04-CV-6012(VEB). United States District Court, W.D. New York. December 1, 2006. 168 Jeffery Wynters, Romulus, NY, pro se. Loretta S. Courtney, Rochester, NY, for Respondent. DECISION AND ORDER BIANCHINI, United States Magistrate Judge. INTRODUCTION Petitioner, Jeffery[1] Wynters ("Writers"), filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on May 11, 2000, on one count of first degree rape. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c). FACTUAL BACKGROUND AND PROCEDURAL HISTORY The conviction here at issue stems from Wynters' alleged rape of thirteen-year-old V.R. in January 1998. V.R. had met Wynters in 1997 while walking down Pennsylvania Avenue in the City of Rochester on her way home from school with her friend Maria Ducks. T.223.[2] Maria[3] had introduced the man as Anthony Wynters and said that he was a friend of her mother's 169 (Yelta Hucks). Between their initial meeting and the date of the incident, V.R. saw Wynters in August 1997 at a Rite-Aid pharmacy; he asked her how school was going and told her that she "looked nice that day." T.227. V.R. saw him again in November 1997 as she was walking down Pennsylvania Avenue on her way to school; he was driving the same red Dodge Neon. At that time, Wynters had offered to give V.R. ride home in his red Dodge Neon. V.R. declined, but she did take his pager number when he offered to take her out sometime. However, V.R. testified that she never paged Wynters. T.229. In early January 1998, V.R. was walking to school down Pennsylvania Avenue at about 7 o'clock in the morning when Wynters pulled up next to her in his red Dodge Neon. He asked if she would like to go to breakfast with him. T.230. This time, V.R. accepted the offer and got into the car. V.R. testified that she was not afraid to get in the car with him because she "had met him before." T.231. Once she was inside the car, Wynters said that he needed to return to his house to get some money. When they arrived at Wynters' house on Melville Street, Wynters asked V.R. to come inside with him. V.R. agreed and followed him to his upstairs apartment. Once there, V.R. sat in the living room on the couch while Wynters went to his bedroom. When he returned, he sat on the couch next to her and inquired as to whether she liked cartoons. Wynters then stood up and went back into the bedroom, returning a short while later. Wynters then asked V.R. if she had a boyfriend and complimented her, telling her that she was pretty. T.233-34. Wynters began touching V.R.'s legs and chest with his hands. Even though V.R. told him to stop and tried to push him away, he would not stop. T.234. Wynters pushed V.R. down on the couch and tied to kiss her. During this time, V.R. was crying and pleading with Wynters to stop. T.235. She continued to try to push Wynters off of her but she could not "[b]ecause he was bigger" than she. Id. Wynters then pulled off his sweatpants and, still holding V.R. down, removed her pants. T.235-36. Wynters then forcibly raped V.R. by inserting his penis into her vagina. V.R. continued to try to resist Wynters but her efforts were to no avail. T.236. After he raped her, Wynters got off the couch and went into the bathroom. V.R. put her pants on and started to leave but Wynters stopped her and told her to wait for him. T.237. She stated that she complied because she was scared of him. Id. Wynters told her to come outside with him and to get into his car, which she did. Wynters then drove her to school. As she was exiting the car, Wynters "grabbed [her] leg" and threatened to kill her if she told anyone about the rape. T.239. At trial, V.R. identified Wynters as the person she knew as "Anthony" and stated that he was the rapist. T.225. A year passed before V.R. reported the rape to anyone. She explained at trial that she was scared and embarrassed, and believed that people would think it was her fault that she was raped because she had gone with Wynters in his car. T.241. She stated that she was afraid that she would get into trouble because her parents had a rule that she was not to get into cars with people she did not know. T.241. V.R. testified that after the rape she had become depressed, was having nightmares, had gained weight and began doing very poorly in school. T.240-41. V.R.'s mother noticed a dramatic change in V.R. at the time, but was unable to determine the cause. T.198-98. During the spring of 1999, V.R. saw Wynters again while she was waiting at a 170 bus stop. Wynters was driving his red Dodge Neon. T242. V.R. testified that seeing Wynters made her have thoughts of committing suicide. T.242-43. On May 30, 1999, V.R. went, on her own, to the emergency room at Genesee Hospital for help. T.199, 243. While there, she was seen by Jay Travers ("Travers"), a social worker who was the psychiatric assignment officer for the emergency department. When she was asked if she had been raped or molested, she replied that she had been. T.244. Travers testified that he was specially trained in dealing with victims of sexual assaults; at the time he saw V.R., he had worked with hundreds of such victims. Travers observed that V.R. was withdrawn and showed signs of depression. After speaking with V.R. for a while, V.R. eventually revealed that she was depressed because she had been raped. T.206-12. Travers testified that V.R.'s self-blame was typical in persons who are raped by someone they know. T.216. After disclosing the rape to Travers, V.R. told her mother about the rape, and the police began investigating the claim. V.R. told the police a version of events that differed somewhat from the description of the rape set forth above. V.R. explained on direct examination that she told the police that one day after school she "was going to meet Maria and that's when [she] got raped. Her mom's boyfriend[4] raped [her]." T.245, 259. V.R. testified that she believed that Wynters (i.e., Anthony) was Maria's "mom's friend." T.246. V.R. testified that she lied about the way she got to the place that she was raped because she did not want to get in trouble for going to Wynters' house or getting in the car with him. T.247, 248. V.R. told the police that she was supposed to be meeting Maria at Wynters house[5] but that when V.R. arrived, Maria was not there. Id. V.R. told the police that once she was inside, "Anthony raped [her]." Id. V.R. testified that her description to the police of the actual rape was true. T.248. V.R. also admitted that she told grand jury that she was going to Writers' house to meet Maria. T.249. V.R. explained that when she was talking to the assistant district attorney about the upcoming trial, the prosecutor had asked her to think of anything she might have left out. According to V.R., that question made her decide to tell the truth about the way she had gotten to Wynters' apartment. T.250, T.271-72. On cross-examination, defense counsel elicited testimony from V.R. that she had a friend named Vernon who apparently had given a statement to the police. V.R. admitted that what she told Vernon was different from what she told the police and, the grand jury, and how she testified at trial. T.253. When asked whether what she told Vernon was true or not, V.R. stated that it was a dream, that she "told him [she] had a dream" about being raped. Id., T.270-71. T.270-71. On re-direct, V.R. clarified that she had, in fact, had a nightmare about being raped the night before the conversation with Vernon. When she told Vernon that, he asked her "had [she] been raped for real." T.274. V.R. replied, "yes." Vernon asked her if she was going 171 to tell her parents; she replied that she was not. Id. Defense counsel cross-examined V.R. about her statements to the police and the grand jury in which she said that the rape happened at her friend Maria's house; she initially said that "Maria's mom's boyfriend let [her] into the house" and then raped her. T.259. V.R. testified that Maria lived on Garson Street but V.R. said that she did not tell the grand jury the address of the house to which she was taken. T.260. On re-direct, V.R. stated that she told the grand jury that she had been raped at a house on Melville Street. T.275. V.R. admitted on cross-examination that at first she told the police that the rapist told her that if she told anyone about the rape he "would do the same thing to Maria[.]" T.261. V.R. conceded that, by the time of the rape in January 1998, she knew that Maria was no longer living in Rochester. Id. Earlier, on direct examination, V.R. had testified that Wynters was not wearing a condom. Defense counsel confronted V.R. with her grand jury testimony in which she stated that Wynters had a condom on when he was raping her. T.262. V.R. testified that she recalled giving that answer, but when asked whether he was in fact wearing a condom, she replied that he "might have been." Id. She said that she did not see him put one on. Id. She admitted on cross-examination that when she went to the hospital to get treatment, she told an "incorrect story" about what had happened; she stated that she did not think that would affect the nature or the quality of the treatment she would get. T.265. Later on in the cross-examination, she stated that she did not tell anyone at the hospital the circumstances about the rape, just that she had been raped. T.270. Defense counsel closely cross-examined V.R. about the circumstances of how she "decide[d] to change the story" that she was going to tell the court at trial. T.271. V.R. maintained that the prosecutor did not go over any of her other statements (e.g., her grand jury testimony or police statement) with her; rather, the prosecutor "told [her] to think" of anything [she] might have left out." T.272. Investigator Cowley testified that upon his arrest, Wynters waived his rights and agreed to speak with the police. T.291. Wynters denied knowing V.R. and denied having raped anybody. T.292. Wynters stated that he had lived at 440 Melville Street for the past four and one-half years and that he drove a red Dodge Neon. Id. When asked the name by which people called him, Wynters responded, "Jeff." Id. He then stated that his middle name was Anthony. T.293. At one point, Investigator Cowley showed Wynters a photograph of two females, one of whom was V.R. Wynters pointed to V.R. and said that he had "seen her around on the street." T.294. The interview terminated after Wynters was asked to submit a polygraph examination and he requested an attorney. After the investigator's testimony, trial counsel moved to dismiss the indictment on the basis that the complainant's testimony had been so discredited during cross-examination as to be wholly unbelievable and that the indictment itself was obtained by perjured grand jury testimony from the complainant. T.296-97. After a brief recess, the trial court held that even though the witness had testified differently as to some issues in the grand jury, it did not "rise[] to the level that would require a dismissal of the indictment." Rather, it was an "issue of credibility that the jury can utilize in determining the weight and believability of witness' testimony." Id. 172 Defense counsel called Kathleen Tanea ("Tanea"), the landlord who had rented an apartment on Vermont Street to Yelta Hucks and Anthony Kimbrew until March 16, 1998. T.309. Tanea testified that she never saw Wynters at the residence on Vermont Street rented by bucks and Kimbrew. T.311. She conceded on cross-examination that she did not live in the same neighborhood as the rental property and although she went to the house to mow the lawn and make some repairs, she did not know everyone who came to the house. T.313. The jury returned a verdict convicting Wynters on one count of first degree rape as charged in the indictment. Wynters was sentenced as a second felony offender on July 19, 2000, to a determinate term of twenty years in prison followed by five-years post-release supervision. Represented by new counsel on appeal, Wynters sought review of his conviction in the Appellate Division, Fourth Department, of New York State Supreme Court. Appellate counsel argued that the prosecutor committed misconduct by eliciting testimony that Wynters had invoked his right to counsel during the police interrogation and refused to take a polygraph examination. Appellate counsel also contended that trial counsel was ineffective in failing to register an objection to this prosecutorial misconduct during trial. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the conviction. Leave to appeal to the New York State Court of Appeals was denied. People v. Wynters, 99 N.Y.2d 586, 785 N.E.2d 744, 755 N.Y.S.2d 722 (N.Y. 2003). This timely habeas petition followed in which Wynters raises the same grounds for relief as raised by appellate counsel on direct appeal. Respondent answered the petition and interposed the affirmative defense of procedural default with respect to Wynters' claim of prosecutorial misconduct. For the reasons set forth below, the petition is granted. DISCUSSION Standard of Review To prevail under 28 U.S.C. § 2254, as amended by the Anti-terrorism and Effective Death Penalty Act ("AEDPA") in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his Federal constitutional claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir.2001) (quotation omitted). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. at 412-13, 120 S. Ct. 1495 (O'Connor, J., concurring and writing for the majority in this part). The "unreasonable application" clause is applicable when "the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 173 1495. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S. Ct. 1495. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (internal quotation marks omitted). Procedural Default Where the highest state court that rendered a judgment in the case "clearly and expressly states that its judgment rests on a state procedural bar," such procedural default constitutes independent and adequate state grounds to deny habeas relief. Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989) (internal quotations and citations omitted); see also Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir.1996); Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). In such cases, a federal court is generally barred from reviewing the petitioner's claims. A federal habeas court may review a petitioner's claims only if the petitioner demonstrates (1) cause for the default and resulting prejudice, or (2) that the failure to consider the claims will "result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2566, 115 L. Ed. 2d 640 (1991); see also Edwards v. Carpenter, 529 U.S. 446, 451, 120 S. Ct. 1587, 146 L. Ed. 2d 518 (2000). As to the first test, "cause" is defined as "`some objective factor external to the defense [that] impeded counsel's efforts' to raise the claim in state court." McCleskey v. Zant, 499 U.S. 467, 493, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)). To demonstrate prejudice, the petitioner must show more than that the errors "created a possibility of prejudice, but [instead] that they worked to his actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982). Where a petitioner is unable to show cause, the Court need not consider actual prejudice. See McCleskey, 499 U.S. at 502, 111 S. Ct. 1454. On direct appeal, the Appellate Division, relying upon New York's contemporaneous objection rule, held that Wynters' claim of prosecutorial misconduct was unpreserved for review due to the lack of timely objection. People v. Wynters, 298 A.D.2d 852, 852, 747 N.Y.S.2d 619, 620 (App.Div. 4th Dept.2002); N.Y.Crim. Proc. Law § 470.05(2).[6] The court also held that, in any event, that claim and his remaining contentions were without merit. Id. The Second Circuit has held that New York's contemporaneous objection rule is an "adequate and independent" state ground for procedural default in cases where defense counsel has failed to object to a prosecutor's misconduct. See, e.g., Glenn v. Bartlett, 98 F.3d at 724-25 (finding that failure to object to prosecutor's statements in opening and on cross-examination constituted 174 adequate and independent state ground); see also Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.1990) (violation of New York's contemporaneous objection rule is an adequate and independent state ground); Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir.1999); Murray v. Carrier, 477 U.S. at 485-92, 106 S. Ct. 2639. The Supreme Court has noted that "cause" in the context of procedural default must be something "external" to the petitioner, something that "cannot fairly be attributed to him." Coleman v. Thompson, 501 U.S. at 753, 111 S. Ct. 2546. Attorney error that amounts to a denial of the Sixth Amendment right to the effective assistance of counsel can constitute such "cause." Id. at 753-54, 111 S. Ct. 2546; see also Edwards v. Carpenter, 529 U.S. at 451, 120 S. Ct. 1587; McCleskey v. Zant, 499 U.S. at 494, 111 S. Ct. 1454. It is important to reiterate that defense counsel's ineffectiveness in failing to properly preserve a claim for review in state court can suffice to establish cause for a procedural default only when the counsel's ineptitude rises to the level of a violation of a defendant's Sixth Amendment right to counsel." Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir.2001) (citing Edwards v. Carpenter, 529 U.S. at 451, 120 S. Ct. 1587 (2000); Murray v. Carrier, 477 U.S. at 488-89, 106 S. Ct. 2639) (emphasis supplied). "In other words, ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim." Edwards, 529 U.S. at 451, 120 S. Ct. 1587; accord Aparicio, 269 F.3d at 91. Here, Wynters has not asserted "cause" or "prejudice," but the Court notes that he argued on direct appeal and argues now that trial counsel was ineffective in failing to object to the alleged misconduct. Construing Wynters' pro se pleadings to set forth the strongest argument they can suggest, the Court finds that Wynters is alleging that trial counsel's ineffectiveness constitutes "cause" for the procedural default. As discussed below, the Court concludes that Wynters was deprived of his Sixth Amendment right to the effective assistance of counsel due to counsel's failure to object to the prosecutorial misconduct, and therefore counsel's alleged error can serve as "cause" to excuse the procedural default. As further discussed below, Wynters' was prejudiced not only by the prosecutor's misconduct but by counsel's ineffectual response to it. Thus, Wynters has made a sufficient showing to overcome the procedural default. In order to arrive at its conclusion that trial counsel was ineffective in his handling of the prosecutor's flagrant misconduct, this Court necessarily had to review the substance of petitioner's prosecutorial misconduct claim. As outlined below, prosecutor introduced extremely prejudicial evidence during her direct examination of the investigator who interrogated Wynters-namely, the fact that Wynters terminated his interview with the police when he was asked to take a lie detector test. The prosecutor's examination of the investigator effectively constituted a concession of guilt by the petitioner and implicated several specific constitutional rights so as to effectively deny him the protection of those rights. Trial counsel in no way "invited" the prosecutor's conduct and, because counsel did not object, the trial court did not issue a curative instruction. The Court notes that counsel's failure did not relieve the trial judge of his obligation to, sua sponte, issue a curative instruction in order to protect the petitioner's rights. However, in a case such as this one, an instruction would not necessarily nave been sufficient to ameliorate the prejudice caused to the petitioner by the prosecutor's misconduct. Moreover, this_is not a case where the evidence against Wynters 175 was overwhelming; the only evidence came from the victim, whose credibility was undermined by her admitted inconsistencies and untruths in prior statements to the police and the grand jury. Petitioner's credibility was effectively decimated by the prosecutor's invitation to the jury to infer that he was guilty because he declined to take a polygraph. The Court concludes that, under the circumstances, the prosecutor's conduct, although isolated, nevertheless rendered Wynters' trial "fundamentally unfair." See Darden v. Wainwright, 477 U.S. 168, 181-82, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986). The Appellate Division's holding to the contrary was an unreasonable application of this clearly established Supreme Court precedent. Merits of the Petition Ineffective Assistance of Trial Counsel Failure to Object to Prosecutorial Misconduct On direct appeal, the Appellate Division held that the claim of prosecutorial misconduct was unpreserved due to trial counsel's failure to object, but still went on to consider the claim on the merits. The state court found that there was misconduct, but that Wynters' right to a fair trial was not sufficiently prejudiced by it: "Although the prosecutor improperly elicited that testimony from the police officer, thereby `implying that the jury could infer defendant's guilt from his refusal to take a polygraph test' and his request for counsel," defense counsel's subsequent cross-examination of that witness "blunted any prejudice to defendant[.]" People v. Wynters, 298 A.D.2d 852, 852, 747 N.Y.S.2d 619, 620 (App.Div. 4th Dept.2002) (quotation and citations omitted). In particular, the Appellate Division approved of the way defense counsel handled the situation, noting that he "elicited testimony from the police officer that the duties of his job included eliciting incriminating information from suspects, that defendant had denied involvement in the crime, and that defendant had been cooperative with the police until he was asked to take a polygraph test. At that time, defendant asked for an attorney, and the police officer acknowledged that it was defendant's right to do so." Id. The Appellate Division therefore concluded that "under the circumstances of this case that defendant was not deprived of his right to a fair trial by prosecutorial misconduct[.]" Id. (citations omitted). However, the Appellate Division did not specifically address Wynters' related claim of ineffective assistance of counsel, instead dismissing it summarily as "without merit." Id. The Appellate Division in this case therefore adjudicated the ineffective assistance of counsel claim question "on the merits," and, because it also reduced its ruling to judgment, I must apply AEDPA deference to its decision. Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir.2002). In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court announced a two-part test for evaluating whether the assistance rendered by a petitioner's attorney was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. 2052. Counsel's performance is to be judged by an "objective" standard of "reasonableness." Id. at 688, 104 S. Ct. 2052. The Supreme Court has explained that "[j]udicial scrutiny of counsel's performance must be highly deferential" with the reviewing court making "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the 176 time." Id. at 689, 104 S. Ct. 2052. Because there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," the petitioner must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Id. at 689, 104 S. Ct. 2052 (citation omitted); accord, e.g., Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 315. Although an attorney is "strongly presumed to have rendered adequate assistance," the "deficient performance" prong of Strickland is satisfied if the representation at issue falls "outside the wide range of professionally competent assistance." Id. at 690, 104 S. Ct. 2052. While the Strickland presumption is "highly demanding," it is "by no means insurmountable[.]" Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S. Ct. 2574, 2587, 91 L. Ed. 2d 305, 323 (1986). The second prong of the Strickland, standard requires the petitioner to demonstrate that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 687, 104 S. Ct. 2052. This in turn requires asking whether there is a "reasonable probability" that, without the mistakes made by counsel, the trier of fact would have had a "reasonable doubt" with respect to the petitioner's guilt. Id. at 695, 104 S. Ct. 2052. Stated another way, the petitioner must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. 2052; accord Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 315. A court analyzing Strickland's "prejudice" component "must consider the totality of the evidence before the judge or jury." Strickland, 466 U.S. at 695, 104 S. Ct. 2052. Accordingly, the determination of prejudice necessarily is affected by the quantity and quality of other evidence against the defendant. See id. The Supreme Court observed that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id. at 696, 104 S. Ct. 2052. The Court's focus is on the fairness of the trial he received, United States v. Cronic, 466 U.S. 648, 655-56, 104 S. Ct. 2039, 2046 n. 20, 80 L. Ed. 2d 657 (1984); a showing of innocence is not required, Kimmelman, 477 U.S. at 380, 106 S. Ct. 2574 ("[W]e have never intimated that the right to counsel is conditioned upon actual innocence. . . . Consequently, we decline to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt."). It bears noting that the prejudice a defendant must demonstrate is less than the "preponderance of the evidence" standard; in other words, "a defendant need not show that counsel's deficient conduct more likely than not altered the outcome of the trial." Strickland, 466 U.S. at 693, 104 S. Ct. 2052; see also Williams v. Taylor, 529 U.S. at 405-06, 120 S. Ct. 1495 (O'Connor, J., concurring) (stating at state court's rejection of ineffectiveness claim on grounds that prisoner failed to establish by "a preponderance of the evidence" that the outcome would have differed would be contrary to clearly established Supreme Court precedent). Moreover, "Strickland's `in light of all circumstances' review does not preclude a finding of ineffective assistance where the alleged deficient actions or omission centers upon a single incident, if that error is sufficiently egregious and prejudicial." Chatom v. White, 858 F.2d 1479, 1486 (11th Cir.1988) (citing, inter alia, United States v. Cronic, 466 U.S. at 657 n. 20, 104 S. Ct. 2039; Strickland, 466 U.S. at 693-96, 104 S. Ct. 2052), cert. denied, 177 489 U.S. 1054, 109 S. Ct. 1316, 103 L. Ed. 2d 585 (1989). In order to determine whether trial counsel was ineffective in failing to object to the prosecutor's cross-examination of the investigator, the Court shall focus on the merits of the underlying prosecutorial-misconduct claims. Neill v. Gibson, 278 F.3d 1044, 1058 (10th Cir.2001) ("To resolve these claims [that trial counsel failed to object to prosecutorial misconduct], therefore, we focus on the merits of the underlying prosecutorial-misconduct claims.") (citing Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir.1999)). The prosecutorial misconduct, and the related alleged error by trial counsel occurred during the direct examination of Investigator Cowley, the police officer who had interviewed Wynters regarding the incident. The prosecutor closed her questioning of investigator Cowley with the following exchange: Q: At this point did you make a request of the Defendant? A: Yes, I did. Q: What did you ask him? A: If he would take a polygraph test. Q: What was the Defendant's response? A: He didn't want to speak to me any further without a lawyer present. Q: What did you do at that time? A: I ceased the interview. Ms. Briggs: Thank you. I have no further questions. T.294. Defense counsel did not object. During his cross-examination of Investigator Cowley, defense counsel engaged the officer in the following colloquy: Q: So, your job or assignment as it were[,] was to elicit information from the Defendant? A: That's correct. Q: Incriminating information? A: Yes, that's my job. Q: But he denied any involvement in the crime that you were asking him about? A: That's correct. Q: Now at one stage you asked him to take a lie detector test? A: Yes. Q: And at that stage he asked for an attorney? A: Yes, sir. Q. Right. Which is his right? A: That's correct. Q: I mean he cooperated with you before asking for an attorney? A: Yes, sir. Mr. Bertram: Thank you, Officer. T.295. The prosecutor did not conduct any re-direct examination of the investigator. Trial counsel did not ask for any curative instruction with regard to any of the investigator's testimony. The Supreme Court has explained that along with the great power accorded to the office of a prosecutor comes a special responsibility to exercise that power fairly: [A prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful 178 conviction as it is to use every legitimate means to bring about a just one. It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none. Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). Unfortunately, when a prosecutor does act unfairly, striking a "foul blow," there is little a defendant can do other than rely on his or her attorney to register an appropriate and timely objection. "A failure to make such an objection can have devastating consequences for an individual defendant." Hodge v. Hurley, 426 F.3d 368, 377 (6th Cir.2005) (holding that trial counsel's failure to object to repeated and egregious prosecutorial misconduct was professionally unreasonable and resulted in prejudice to the petitioner; state court's finding that counsel provided effective assistance was an "unreasonable application" of Strickland v. Washington) (citing Gravley v. Mills, 87 F.3d 779, 785-86 (6th Cir.1996) (holding that a failure to object to repeated and egregious prosecutorial misconduct amounted to ineffective assistance of counsel sufficient to serve as "cause" to excuse a procedural default)). The Supreme Court standard for evaluating prosecutorial misconduct is laid out in Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144, supra. In Darden, the Supreme Court considered the following factors as relevant to determining whether a petitioner has been deprived of a fair trial: (1) whether the prosecutor's arguments manipulated or misstated the evidence; (2) whether the remarks implicated specific rights of the accused, such as the right to remain silent; (3) whether the defense invited the response; (4) the instructions of the trial court; (5) the weight of the evidence against the petitioner; and (6) whether the defense was afforded an opportunity to rebut the remarks. Id. at 181-82, 106 S. Ct. 2464. Standing alone, a prosecutor's comments upon summation can "so infect [a] trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181, 106 S. Ct. 2464 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974) (internal quotation marks omitted)). However, as a habeas court, this Court is mindful that its review is "the narrow one of due process, and not the broad exercise of supervisory power[.]" Id. The Supreme Court has noted that it "regard[s] this observation as important for not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a `failure to observe that fundamental fairness essential to the very concept of justice.'" Donnelly v. DeChristoforo, 416 U.S. at 642, 94 S. Ct. 1868 (quoting Lisenba v. California, 314 U.S. 219, 236, 62 S. Ct. 280, 290, 86 L. Ed. 166 (1941)). "[W]hen specific guarantees of the Bill of Rights are involved, [the Supreme Court] has taken special care to assure that prosecutorial conduct in no way impermissibly infringes them." Donnelly v. DeChristoforo, 416 U.S. at 643, 94 S. Ct. 1868. The Supreme Court has drawn an important distinction between an ordinary claim of prosecutorial misconduct and a claim that the misconduct effectively deprived the defendant of a specific constitutional right. See id. ("This is not a case in which the State has denied a defendant the benefit of a specific provision of the Bill of Rights, such as the right to counsel, Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), or in which the prosecutor's remarks so prejudiced a 179 specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial of that right. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). . . . [H]ere the claim is only that a prosecutor's remark about respondent's expectations at trial by itself so infected the trial with unfairness as to make the resulting conviction a denial of due process. We do not believe that examination of the entire proceedings in this case supports that contention."). Certainly, trial counsel had grounds to object to the prosecutor's direct examination of Investigator Cowley, which contained a "trifecta" of improper remarks. First, the investigator referred to Wynters' invocation of his Fifth Amendment right to remain silent and to not incriminate himself.[7] This was plainly improper. In Baxter v. Palmigiano, 425 U.S. 308, 319, 96 S. Ct. 1551, 1558, 47 L. Ed. 2d 810 (1976), the Supreme Court reiterated the holding of Griffin v. California, noting that "Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant's silence as substantive evidence of guilt." Accord United States v. Robinson, 485 U.S. 25, 32, 108 S. Ct. 864, 99 L. Ed. 2d 23 (1988) ("Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant's silence, Griffin holds that the privilege against compulsory self-incrimination is violated. But where as in this case the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege."); see also Lakeside v. Oregon, 435 U.S. 333, 338, 98 S. Ct. 1091, 1094, 55 L. Ed. 2d 319 (1978). In this case, the Court is convinced that the prosecutor's elicitation of that testimony was "manifestly intended" and was "of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Pitre, 960 F.2d 1112, 1124 (2d Cir.1992) (citation and quotation omitted). Second, the prosecutor elicited testimony that Wynters had exercised his Sixth Amendment right to consult with an attorney. A defendant's right to seek the advice of counsel is a fundamental right, and prosecutors must refrain from commenting upon it. As the Supreme Court has explained, the right to counsel "is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. . . . The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not 180 `still be done.'" Johnson v. Zerbst, 304 U.S. 458, 462, 58 S. Ct. 1019, 1022, 82 L. Ed. 1461 (1938) (citing Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 152, 82 L. Ed. 288 (1937)). Third, the prosecutor, by introducing evidence that Wynters had stopped the interview when asked to undergo a polygraph, presumably was attempting to convey the message to the jury that it could infer his guilt from his failure to submit to the test.[8] The Court finds that the prosecutor deliberately took this tack; she knew full well that the investigator would testify in this way, since he had provided this same testimony at the pre-trial suppression hearing. In a trial such as this one, where" the result depended primarily on the jury's belief as to whether Wynters or the complainant was more credible, the Court notes that prosecutorial misconduct of the sort committed here is particularly disturbing.[9] The Sixth Circuit in Hodge v. Hurley, in addressing whether trial counsel's "failure to object to any aspect of the prosecutor's egregiously improper closing argument was objectively unreasonable," observed that "[d]ecisions not to object to inadmissible evidence already heard by the jury can in many cases be classified as part of a deliberate strategy to avoid calling the jury's attention to that evidence. Nonetheless, such concerns are not themselves sufficient to preclude a conclusion of deficient performance, as the court must still consider whether the decision not to object was objectively reasonable." 426 F.3d at 385 (citing Strickland, 466 U.S. at 688, 104 S. Ct. 2052) (emphasis omitted). In this case, as evidenced by his subsequent cross-examination of Investigator' Cowley, trial counsel clearly was aware that the prosecutor's direct examination of the investigator had been improper. Although he made an attempt to mitigate the damage done by this prejudicial evidence on cross-examination, these is no evidence that he made an intelligent, tactical decision not to object. The Court cannot discern a strategy in counsel's approach; the exchange between trial counsel and the investigator can only be read as an ineffectual and damaging cross-examination in which trial counsel only reinforced the negative evidence elicited on direct examination. He did this by having the investigator repeat his interview with the petitioner in which the petitioner terminated the session when asked to take a polygraph 181 and requested an attorney. This cross-examination most likely reinforced the jury's ability to draw the inference that the petitioner had a consciousness of guilt. Significantly, there were only two witnesses to the alleged crime. The jury was presented with serious inconsistencies in the victim-witness' testimony, juxtaposed with evidence that the petitioner abruptly terminated his interview upon a' police request that he take a polygraph, effectively requiring him to prove to them he was telling the truth. The logical inference to be drawn from this exchange, and apparently intended by the prosecutor, was that petitioner was concerned that the polygraph would demonstrate that he was lying. At best, trial counsel appears to have chosen the strategy of attempting to downplay the importance of the investigator's testimony by implying that the investigator, whose job it was to obtain incriminating information from suspects, was being stymied by Wynters' denial of any involvement in the crime and, out of desperation, was forced to resort to asking Wynters to take a polygraph test. While it would have been far more effective for trial counsel to have immediately asked for a mistrial (out of the presence of the jury) and, failing that, for a curative instruction, trial counsel inexplicably did neither. The question is whether trial counsel's strategy was objectively reasonable; the Court is not free to find that the chosen strategy was unreasonable simply because it would have handled the situation differently. Granted, this was not a case involving "repeated and escalating prosecutorial misconduct from initial to closing summation", Floyd v. Meachum, 907 F.2d 347 (2d Cir.1990) (holding that cumulative effects of state prosecutor's remarks in summation in state trial, which included both inflammatory comments and erroneous statements of law which implicated petitioner's specific constitutional right to remain silent, diverted jury from charges on which petitioner was being tried and from fundamental principles by which jury might discharge its duty warranting grant of habeas relief; prosecutor repeatedly and erroneously referred to Fifth Amendment burden of proof beyond a reasonable doubt, impermissibly asked jury to pass on prosecutor's personal integrity and professional ethics before deliberating on evidence implying that she personally vouched for credibility of main prosecution witness, and improperly characterized nontestifying defendant as a liar dozens of times). However, the Court is convinced that the improper references to the petitioner's constitutional rights, combined with the introduction of the prejudicial information that the petitioner had refused to take a polygraph test, amounted to flagrant abuse which warranted more than trial counsel's rather insipid attempt to "blunt" the prejudice. The Court recognizes that "[w]hile the instance in which a single error will rise to the level of Sixth Amendment ineffectiveness is clearly the exception and not the rule, this case is one of those exceptions." Chatom v. White, 858 F.2d at 1486 (in a murder prosecution the most damaging evidence against petitioner at trial consisted of the results of an "atomic absorption test"; trial counsel unreasonably failed to object to the test's admission despite having a basis for doing so). First of all, the prosecutor deliberately and directly impinged on three of Wynters' constitutional rights the right, against self-incrimination, and the right to counsel, and by inference the right to remain silent. The questioning certainly was not in response to any improper conduct by defense counsel, so it was not a case of the prosecutor attempting to "right the scale." Cf. Darden v. Wainwright, 477 U.S. at 181-82, 106 S. Ct. 2464 (holding that the prosecutors' comments did not deprive petitioner 182 of a fair trial since "[t]he prosecutors' argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent" and "[m]uch of the objectionable content was invited by or was responsive to the opening summation of the defense") (citations omitted). Second, this was a she-said/he-said case, where credibility was paramount. The prosecutor's elicitation of Wynters' refusal to submit to a polygraph blatantly urged the jury to infer petitioner's guilt and was a serious error. See United States v. St. Clair, 855 F.2d 518 (8th Cir.1988) (reversing conviction, despite curative instruction, in case where police officer volunteered that the defendant had refused to take a polygraph test; curative instruction was insufficient, because the credibility of the defendant was crucial and the officer's statement about the polygraph test would necessarily influence the jury). That evidence was put squarely before the jury and there was nothing limiting them from taking the prosecutor's invitation and drawing the inference. Because trial counsel did not object, and the trial court did not sua sponte intervene, the jury could well have believed that this evidence was proper. In the face of this prejudicial testimony, trial counsel was unreasonable in not objecting and requesting at least a curative instruction, if not a mistrial. Trial counsel's cross-examination, standing alone, was insufficient to "blunt the prejudice" given the nature of the case against his client and the lack of overwhelming evidence against him. The Court cannot find that the failure to object in some way to the prosecutor's misconduct was a part of any reasonable trial strategy and instead was predictably detrimental to Wynters' defense. Because the jury necessarily discredited his denial of guilt, Wynters can make a plausible argument that the polygraph reference prejudiced him. The prosecution's case here was hardly overwhelming: since there was over year's delay in the victim's reporting of the incident, physical evidence was wholly lacking. More important, the case depended utterly on the testimony of the victim and her credibility compared to Wynters, who denied any involvement in the crime. It is inexplicable why trial counsel chose to allow, without objection, Investigator Cowley's improper testimony, which so clearly undermined his client's credibility. This was tantamount to a concession of guilt and similarly bolstered the credibility of the state's case and the investigator by allowing him to repeat the prejudicial testimony on cross-examination. The crucial point here is that the jury was never informed that the inference implied by the prosecutor was actually improper, because trial counsel did not make reasonable efforts to ensure this. Because the credibility of the actors was so critical at trial, there is reasonable probability that, but for counsel's conduct with respect to the improper testimony elicited by the prosecutor, the jury could easily have had a reasonable doubt respecting petitioner's guilt. Thus, there is more than a reasonable probability that these errors had a devastating impact on the defense in this particular case. The Court is compelled to find that the prosecutor's misconduct, and trial counsel's failure to address it, impermissibly impinged upon the fundamental fairness of Wynters' trial and resulted in constitutional prejudice. Accordingly, the state court's summary rejection of Wynters' ineffective assistance of counsel claim was an unreasonable application of Strickland v. Washington. CONCLUSION For the reasons set forth above, petitioner's petition for a writ of habeas corpus 183 is granted. The petitioner shall be released unless, within sixty (60) days from entry of judgment, the state commences prosecution. This decision is stayed until all appellate proceedings are completed and a final mandate is received by this court. IT IS SO ORDERED. NOTES [1] The Court notes that petitioner's first name is spelled "Jeffrey" in the caption, but in all of the pleadings petitioner has submitted to the Court, he has spelled his name as "Jeffery." [2] Citations to "T. " refer to the trial transcript. [3] Maria moved to North Carolina at the end of June 1997. T.226. [4] Apparently, Yelta Hucks' boyfriend was named Anthony Kimbrew. T.257. However, V.R. testified that she never meant to refer to Kimbrew when she was describing who raped her. Id. [5] As part of the investigation, investigator Guidici drove with V.R. down Melville Street to see if she recognized the house to which she had been taken. V.R. pointed out # 440; when Wynters was questioned in spring of 1999, he told the police that he had lived at 440 Melville Street for the past four and one-half years. [6] Section 470.05(2), which is known as the "contemporaneous objection rule," provides, in relevant part, as follows: For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. N.Y.Crim. Proc. Law § 470.05(2). [7] The Second Circuit has explained that "`[w]hile it is axiomatic that the Government may not comment on a defendant's failure to testify at trial,' United States v. McDermott, 918 F.2d 319, 327 (2d Cir.1990), cert. denied, 500 U.S. 904, 111 S. Ct. 1681, 114 L. Ed. 2d 76 (1991), `[i]n order to reverse a conviction for improper commentary on the right to remain silent, [it] must find that the comment was "manifestly intended or [was] of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.'" United States v. Cicale, 691 F.2d 95, 107 (2d Cir.1982) (citation omitted), cert. denied, 460 U.S. 1082, 103 S. Ct. 1771, 76 L. Ed. 2d 344 (1983)." United States v. Pitre, 960 F.2d 1112, 1124 (2d Cir. 1992) (alteration in original) (direct review case in which prosecutor commented on summation, "we have these people [i.e., defendants] there with no plausible explanation;" court held that this was not an impermissible comment on defendant's right to not testify because "the government was responding to Otero's version of the facts as described in his testimony and argued in his counsel's summation"; remark was not intended by government to be a comment on the failure of any defendant to testify and jury would not "naturally and necessarily" view it as such; furthermore, district court, in its charge, explicitly instructed the jury that the burden of proof was always on the government and that no inference could be drawn from a defendant's failure to testify) (citation omitted). [8] Compare with United States v. Kiszewski, 877 F.2d 210, 216-17 (2d Cir.1989) (agreeing that evidence that defendant refused to take a polygraph test was error, but holding that it was harmless because the matter about which defendant was suspected of lying was not directly at issue in this case; the agent's testimony was in response to a question by the court, not by the prosecutor, so there was no misconduct; defense counsel's apparent failure to make an immediate, specific objection, indicated that the reference "did not have a strong impact on the listener"; the reference was an isolated statement in a lengthy trial; and any prejudicial effect was "neutralized" by the district court's strong and timely corrective instruction). [9] The Court recognizes that the prosecutor, during her summation, did not mention the investigator's testimony about petitioner's decision to decline the polygraph examination, ask for an attorney and invoke his right to remain silent. In fact, the prosecutor's summation on the whole was not improper; trial counsel only objected at one point because he believed that the prosecutor was arguing that the victim had no motive to falsely accuse Wynters. T.336 ("What grudge would she have against him? Why would she pick him?"). Trial counsel objected that the remark unfairly implied that the defense had a burden of proof, and the trial court issued a curative instruction. T.336-37 ("The defense has no burden whatsoever. The burden is on the People. Additionally, the comments of counsel are not evidence. The evidence is what you have heard from the witness stand and the exhibits that were received.").	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/214069/	In the United States Court of Appeals For the Seventh Circuit Nos. 09-3954, 09-3961 & 10-1204 U NITED S TATES OF A MERICA, Plaintiff-Appellee, v. S COTT L EWIS, V ERNON W ILLIAMS, and L AVOYCE B ILLINGSLEY, Defendants-Appellants. Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:07-cr-00007—Virginia M. Kendall, Judge. A RGUED D ECEMBER 8, 2010—D ECIDED A PRIL 6, 2011 Before F LAUM and E VANS, Circuit Judges, and M C C USKEY, District Judge. E VANS, Circuit Judge. Scott Lewis, Vernon Williams, and Lavoyce Billingsley were convicted of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846, and carrying and possessing a firearm The Honorable Michael P. McCuskey, United States District Court for the Central District of Illinois, sitting by designation. 2 Nos. 09-3954, 09-3961 & 10-1204 during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). Billingsley was also con- victed of being a felon in possession of a firearm in vio- lation of 18 U.S.C. § 922(g). Lewis and Williams were tried together, while Billingsley was tried separately. All three now appeal claiming that the evidence was insufficient to support their convictions under § 924(c). Lewis and Billingsley also claim insufficient evidence for their § 846 convictions. Lewis and Billingsley further appeal various evidentiary rulings, and Lewis and Wil- liams appeal the imposition of the mandatory consecu- tive sentence under § 924(c). In what’s fast becoming a rather shopworn scenario in this court, Lewis, Williams, and Billingsley, like a host of (apparently) unrelated defendants before them, were convicted of conspiring to distribute cocaine that didn’t exist—cocaine they planned to liberate from a fictional stash house guarded by members of an imaginary Mexican cartel. The sting that ensnared the three defen- dants here was orchestrated by Bureau of Alcohol, Tobacco and Firearms (“ATF”) Agent David Gomez in his under- cover role as “Loquito.” We have seen versions of this sting, which appears a bit tawdry, several times. See United States v. Blitch, 622 F.3d 658, 661 (7th Cir. 2010); United States v. Corson, 579 F.3d 804, 806-09 (7th Cir. 2009); United States v. Lewis,1 350 F. App’x 74 (7th Cir. 2009) (nonprecedential order). We use the word “tawdry” 1 The “Lewis” in this case (Demarlon, along with two compa- triots, Joaquin Tankey and James King) is, as far as we know, not related to the Scott Lewis in our case. Nos. 09-3954, 09-3961 & 10-1204 3 because the tired sting operation seems to be directed as unsophisticated, and perhaps desperate, defendants who easily snap at the bait put out for them by Agent Gomez. In our case, the sting was originated after Gomez’s confidential informant, Rojo, reported information in December, 2006 concerning an individual known as “Silk,” who turned out to be Lewis. Under the direction of the ATF, Rojo placed a recorded call to Lewis to arrange an introductory meeting with Gomez. The following day, Rojo, Gomez, and Lewis met (in a recorded meeting) and Gomez spun Lewis a cover story, namely that he was a disgruntled drug courier working for a Mexican cartel, and that once a month he transports cocaine for the organization. He explained that the day before he is to transport the cocaine, he gets a call telling him to be ready, and the next day he gets a call giving him the location of a secret stash house. He then goes to the guarded stash house, where on any given day he sees between 15 and 20 kilograms of cocaine being prepared. Gomez asked Lewis if he was ready to help knock over the stash house, and Lewis, who unfortunately did not have the benefit of reading our yet-to-be-issued opinions in Corson, Blitch, and Lewis, snapped at the bait. He said he had a crew of three guys ready to go, as well as “some pistols.” Gomez, Rojo, and Lewis arranged to meet with the rest of Lewis’ crew the following week. On December 18, 2006, Gomez, Rojo, Lewis, Williams, and an unknown individual identified only as “B” 2 met in a recorded (audio and visual) meeting in Westmont, 2 “B” was not Billingsley. 4 Nos. 09-3954, 09-3961 & 10-1204 Illinois. Lewis explained that there was one more member of the crew, but that he couldn’t make it to the meeting. Lewis, Williams, and “B” then went on to explain the details of their plan, which was to rush the stash house just as Gomez was leaving, yelling “Freeze, Police!” to surprise the occupants, who they expected to be armed with automatic weapons. They’d then strip the occupants naked, tie them up, steal the drugs and guns, and later sell the drugs. They also discussed various sources for obtaining guns to use in the robbery. Over the next few weeks, Lewis and “Loquito” a/k/a Gomez participated in multiple recorded phone con- versations, during which Lewis reiterated that he and his gang had guns and were ready to go. This culminated in a call on January 3, 2007, from Gomez to Lewis, telling him to have the crew ready to go the next day. January 4, 2007 was go day. It was also, and interestingly, the day the recordings died. Gomez called Lewis in an unrecorded call and asked that Lewis and his associates meet him in Westmont so they would all be together when the cartel called with the location of the stash house. Lewis replied that the associate who was bringing the guns had been arrested and that he arranged for another person with a gun to fill in. Lewis, Williams, and Billingsley subsequently met Gomez in the arranged parking lot. Lewis and Williams got out of their car and into Gomez’s vehicle, which was outfitted with only one recording unit (although, in keeping with ATF policy, Gomez usually used two de- vices). Unfortunately, this recording device supposedly Nos. 09-3954, 09-3961 & 10-1204 5 malfunctioned, so the meeting in the car was not re- corded. However, Gomez testified that he asked Lewis who the third guy (who turned out to be Billingsley) was, and Lewis explained it was his associate with the gun. Lewis then went back to the other car and spoke to Billingsley, who got out of the car, retrieved something from the trunk, tucked it into his waistband, and got into Gomez’s car. Once Billingsley was in his car, Gomez explained that they were going to steal about 20 kilograms of cocaine from a stash house. Billingsley confirmed that Lewis had told him about the plan, and he was ready to go. Gomez asked to see the gun, and Billingsley took it from his waistband and showed it to everyone in the car. Gomez then explained that he was going to take the three of them to the storage facility where they were to leave his share of the cocaine after the robbery (Gomez, according to the plan, was to be tied up as if he were one of the “victims”). Lewis, Williams, and Rojo then rode with Gomez to the storage facility, while Billingsley followed in his car. At the storage facility, Lewis, Williams, and Billingsley were arrested by waiting law enforcement agents. The arrest was videotaped. The tape shows Billingsley, imme- diately prior to his arrest, throwing something under his car. Agents later recovered a loaded Smith & Wesson .40 caliber semi-automatic from under Billingsley’s car, and two partially full boxes of .40 caliber ammunition from the trunk. Agents also recovered one pair of black leather gloves and a black doo-rag, or head covering, 6 Nos. 09-3954, 09-3961 & 10-1204 from Lewis, one black doo-rag from Billingsley, and two pairs of plastic surgical gloves and a blue stocking- cap from Williams. Both Lewis and Billingsley made post-arrest state- ments after being advised of their rights. Lewis admitted that he believed there would be 15 to 20 kilograms of cocaine in the stash house, that he told Gomez he had arranged at least one gun for the robbery but that he himself did not have a gun, and that he had a pair of black leather gloves he planned to use in the robbery. At Billingsley’s trial, ATF Special Agent Christopher Bayless testified that, in his post-arrest statement, Billingsley admitted that two days prior to the robbery he had met with Lewis, who told him about the planned drug robbery. Billingsley stated that Lewis wanted him to act as the driver for the robbery, and that Lewis thought they’d get 15 kilograms of cocaine. Billingsley also said he later met with Lewis and a man he knew only as “V” (presumably Vernon Williams) and showed them both a gun. Prior to trial, Lewis, Williams, and Billingsley all stipu- lated that 20 kilograms of cocaine is a distribution amount, not an amount for personal use. Billingsley also stipulated that some time prior to January 4, 2007, he had been convicted of a felony. At trial, Lewis claimed entrapment. He claimed he started using cocaine because Rojo hooked him on it. He also said he eventually ran up a $1000 drug debt with Rojo. He testified that Rojo made comments which he took as a threat to himself or his family regarding pay- ment of this debt, and it was only after this threat that Nos. 09-3954, 09-3961 & 10-1204 7 he gave in to Rojo’s repeated requests that he meet Gomez and participate in the robbery of a cartel stash house. Lewis also acknowledged on cross-examination that in the video-recorded meetings with Rojo and Gomez, he did not appear to fear for his safety, he never attempted to call law enforcement authorities, and he never tried to move away. He said he was unable to borrow $1000 from any friend or relative and agreed to rob the stash house to satisfy this $1000 debt. To rebut Lewis’ entrapment defense, the government was allowed to introduce evidence of two prior convic- tions during its case-in-chief, specifically a 1995 convic- tion for possession of a firearm by a felon, and a 2000 conviction for theft (pled down from residential bur- glary). However, the district judge declined to allow in Lewis’ 1991 conviction for commercial burglary, stating that it was too far removed in time and type to show a pattern of significant criminal conduct. Prior to Billingsley’s trial, Lewis had a recorded jail- house conversation with his girlfriend, Rachel Roberts. During the conversation, he explained to Roberts that he wasn’t guilty because he’d been entrapped by ATF agents, and that Billingsley was just “giving [him] a ride, basically,” and had “no idea what was going on.” Al- though Lewis testified at his own trial, when asked to testify at Billingsley’s trial he invoked his Fifth Amend- ment right to remain silent. Billingsley’s counsel moved to have Lewis’ statement admitted as a hearsay state- ment against penal interest under Federal Rule of Evidence 804(b)(3). This motion was denied because the 8 Nos. 09-3954, 09-3961 & 10-1204 district judge felt the statement lacked corroborating circumstances, rendering it trustworthy in light of the fact that it conflicted with Lewis’ previous post-arrest statement. The judge also denied another of Billingsley’s hearsay motions. Agent Bayless was called by the government to testify as to Billingsley’s post-arrest statement. On cross- examination, Billingsley attempted to ask Bayless about whether he had mentioned certain people (supposed original members of Lewis’ crew) in his statement. Billingsley had not mentioned these people, and the government objected to the questioning on hearsay grounds. The judge upheld the objection over Billingsley’s arguments that the statements were not hearsay because they were not being offered for the truth of the matter asserted. Further, at both the Lewis/Williams and Billingsley trials, much was made of the actions of Agent Gomez, and the lack of recordings of the January 4 phone call and meeting. Gomez claimed that the initial call wasn’t recorded because he’d made it when he was out to lunch, at a time when he didn’t have a recording device. A bigger issue was the lack of recording of the pre-arrest meeting in Gomez’s car during which Billingsley dis- played the gun. This meeting was supposed to have been recorded, but prior to trial the government claimed that the recording device in the car had failed. The cir- cumstances surrounding this failure were murky. Generally, Gomez used two recorders; however, on this occasion he was only equipped with one. He testified Nos. 09-3954, 09-3961 & 10-1204 9 that this was because he believed another team of agents needed the second recorder, although some evidence was introduced to show that this belief was, at best, mistaken. Gomez was unable to explain why the recorder he did have failed, and the defendants were unable to examine the recorder themselves because Gomez explained he had sent it off to be repaired, but couldn’t remember to whom he sent it for repairs, and had no paperwork relating to the repairs that could be used to track down its current location. In fact, Gomez didn’t even know the recording device had failed for two weeks, as it took him that long to attempt to listen to the tape. During the two-week gap in which Gomez assumed the recording had been suc- cessful, he did not safeguard the tape by logging it into storage as evidence. Instead, he kept it at his desk. After realizing that the recorder had malfunctioned, Gomez didn’t immediately tell anyone, including his co-case agent and friend, Timothy Wilson, who sat at the next desk, despite the fact that Wilson was due to testify in front of the grand jury. Wilson subsequently testified inaccurately before the grand jury that the January 4 meeting was recorded, as Gomez had not yet informed anyone that the device had malfunctioned. Finally, much was made at trial of inconsistencies between Gomez’s testimony regarding the January 4 meeting in the car and observations regarding that meeting made by other members of the team who were surveilling the meeting. For example, Wilson testi- fied that he had previously sworn affidavits, based on 10 Nos. 09-3954, 09-3961 & 10-1204 information he’d received from Gomez, that Lewis did not exit Gomez’s car, re-enter Billingsley’s car, and then re-enter Gomez’s car with Billingsley. This was contrary to Gomez’s testimony. Because of the questionable circumstances regarding the lack of recording of this meeting—the only meeting which put all three defendants and a government agent in proximity with a gun—and because of Gomez’s overall behavior and testimonial inconsistencies, Lewis and Williams ask that we declare the evidence insuf- ficient to support their convictions under § 924(c) as a matter of law. We review sufficiency of the evidence claims in the light most favorable to the government. United States v. Gorman, 613 F.3d 711, 715 (7th Cir. 2010) (citing United States v. Carrillo, 435 F.3d 767, 775 (7th Cir. 2006)). And we must uphold a jury’s decision if “any rational trier of fact could have found the essential ele- ments of the crime beyond a reasonable doubt.” United States v. Melendez, 401 F.3d 851, 854 (7th Cir. 2005). Williams and Lewis argue that the evidence was so thoroughly corrupted by Gomez’s behavior that it was insufficient to prove them guilty beyond a reasonable. In re Winship, 397 U.S. 358, 364 (1970). However, as we mentioned, Gomez was the subject of thorough and tough cross-examination, and much was made through- out trial of his inconsistent and questionable testimony. His testimony presented a classic question of credibility, and it is well settled that credibility assessments are the province of the jury. Given that the jury heard extensive arguments regarding Gomez’s credibility, we decline to Nos. 09-3954, 09-3961 & 10-1204 11 find Gomez unreliable as a matter of law and so overrule jury findings on a matter well within the usual sphere of juror discretion. Further, the jury could have disbelieved Gomez’s testimony as to events on January 4 and still have found Lewis and Williams guilty of the § 924(c) count. To support a conviction under § 924(c), the government was required to prove that the defendant: (1) conspired to possess a controlled substance with intent to distribute; and (2) either knowingly possessed or carried a firearm in furtherance of, or during and in relation to this con- spiracy, or could reasonably foresee that one of his co- conspirators would carry a firearm. United States v. McLee, 436 F.3d 751, 758 (7th Cir. 2006). Here, the jury could have discounted Gomez’s testimony regarding January 4 and still have found that Williams and Lewis could reasonably have foreseen that someone would carry a gun, given the multiple recorded conversations in which the two discussed plans for a violent robbery of the stash house and ways to procure weapons for the robbery. Accordingly, the evidence was sufficient to convict both Williams and Lewis under § 924(c). Lewis further argues that the evidence was insufficient to convict him under either § 846 or § 924(c) because the government failed to prove beyond a reasonable doubt that he was neither entrapped nor coerced as a matter of law. Where a defendant offers a defense of entrapment, the government must prove either that it did not induce the defendant to commit the crime, or that the defendant had a predisposition to commit the 12 Nos. 09-3954, 09-3961 & 10-1204 crime. United States v. Akinsanya, 53 F.3d 852, 858 (7th Cir. 1995). Some relevant factors for a jury considering predisposition include: (1) the defendant’s character or reputation; (2) whether the government suggested the criminal activity; (3) whether profit was involved; (4) whether reluctance was expressed which was over- come by government persuasion; and (5) the nature of the inducement or persuasion. United States v. Millet, 510 F.3d 668, 676 (7th Cir. 2007); United States v. Casanova, 970 F.2d 371, 375 (7th Cir. 1992). No single factor is dispositive, and the central question is whether the de- fendant showed reluctance to participate in the crime. Millet, 510 F.3d at 676; United States v. Blassingame, 197 F.3d 271, 281 (7th Cir. 1999). Here, Lewis claimed at trial that he only started doing cocaine because of Rojo. He further testified that Rojo asked him repeatedly to participate in a stash house robbery but that he had declined. Lewis testified that he only changed his mind and agreed to do the robbery after Rojo threatened to “send his boys to violate me and [Rojo] was going to beat me up,” supposedly because Lewis owed Rojo a $1000 cocaine debt. Lewis’ testimony was the only evidence that Rojo asked him more than once to commit the robbery, that he owed Rojo a debt or that Rojo threatened him. As Lewis acknowledged on cross-examination, there was videotape of him looking comfortable and unafraid in the presence of Rojo and Gomez. There were recordings of him agreeing to par- ticipate in, and enthusiastically planning, the robbery. He never tried to go to the police in relation to Rojo’s Nos. 09-3954, 09-3961 & 10-1204 13 threat. He never tried to move. He could not borrow $1000 from anyone he knew, but instead agreed to rob a stash house guarded by armed drug cartel members to satisfy this debt. Further, evidence was introduced of Lewis’ prior crimes, and Lewis acknowledged that he believed there to be a large amount of cocaine with a high cash value in the target stash house. Overall, there was enough evidence on which a jury could find the government had proved Lewis was predisposed to commit the robbery and therefore not entrapped, even if it believed Lewis’ unsubstantiated testimony that he was threatened by Rojo. Lewis’ coercion claim fails on similar grounds. A defen- dant presenting a defense of coercion must show that: (1) he reasonably feared immediate death or serious bodily harm unless he committed the offense; and (2) there was no reasonable opportunity to refuse to commit the offense and avoid the threatened injury. United States v. Jocic, 207 F.3d 889, 892 (7th Cir. 2000). Lewis claimed that he could not borrow money to pay the debt, that he did not have enough money to move, and that he was too frightened to contact the police. Even if the jury credited his testimony on all of these points, there was nothing in Rojo’s purported threat that suggested any immediacy such that it became coercive. For all these reasons, Lewis has failed to show that the evidence was insufficient to overcome his defense of entrapment or coercion. Billingsley argues that there was insufficient evidence to sustain his convictions under § 846 and § 924(a) on 14 Nos. 09-3954, 09-3961 & 10-1204 grounds relating to the distribution element of each charge. As a new argument on appeal, he argues that although he may have been part of a conspiracy, this was just a conspiracy to rob a stash house for drugs, and there was no evidence of his intent to distribute or knowledge that his co-conspirators were intending to distribute. Billingsley admits that he stipulated prior to trial that 20 kilograms of cocaine was a distribution amount. He also admits that he had been told there were between 15 and 20 kilograms of cocaine in the stash house. However, he points out that by special verdict he was only convicted of possession with intent to dis- tribute a measurable amount of cocaine less than 500 grams, rather than in excess of 5 kilograms as was origi- nally charged. Further, he stated at oral argument that even if he stipulated that 20 kilograms was a distribu- tion amount, this does not mean that he actually knew, prior to the robbery, that 15 to 20 kilograms was a distribution amount. Even were we to ignore Billingsley’s stipulation as to distribution amount, there is still sufficient evidence to support a conviction on the distribution element. Billingsley knowingly agreed to rob a stash house guarded by armed cartel members. There was no evidence presented that he expected any money to be present. He admitted that he expected to steal 15 to 20 kilograms of cocaine from the stash house. A jury could reasonably believe that Billingsley, who had stipulated to a felony background, was aware that such a large amount of cocaine was optimal for distribution. A jury Nos. 09-3954, 09-3961 & 10-1204 15 could equally reasonably believe that no sane person would rob a stash house guarded by armed gang members to score some recreational drugs for personal use. For a jury to reach such a conclusion hardly requires the impermissible piling of inference upon inference, but rather is the sort of rational result from circumstantial evidence we ask juries to determine every day. United States v. Sullivan, 903 F.2d 1093, 1099 (7th Cir. 1990). There was sufficient evidence to support Billingsley’s convictions. Having determined that there was sufficient evidence for the convictions of Williams, Lewis, and Billingsley, we must now turn to specific evidentiary arguments made by Lewis and Billingsley. Lewis argued that evidence of his prior convictions should not have been admitted. Billingsley argues that Lewis’ jailhouse state- ment regarding Billingsley’s involvement should have been admitted, and that the hearsay objection relating to his cross-examination of Bayless should not have been sustained. We review these matters under an abuse of discretion standard. United States v. Smith, 454 F.3d 707, 716 (7th Cir. 2006); United States v. Souffront, 338 F.3d 809, 825 (7th Cir. 2003). Lewis argues that the district judge abused her discre- tion by allowing the government to mention his 1995 and 2000 convictions during its case-in-chief. Under Fed. R. Evid. 404(b), evidence of a defendant’s prior bad acts is not admissible “to prove the character of a person in order to show action in conformity therewith.” How- ever, when a defendant employs an entrapment de- 16 Nos. 09-3954, 09-3961 & 10-1204 fense, evidence of prior bad acts is admissible to prove predisposition “because in such a case the defendant’s predisposition to commit the charged crime is legitimately at issue.” United States v. Swiatek, 819 F.2d 721, 728 (7th Cir. 1987). To be admissible however, this evidence must show an act that is similar enough and close enough in time to be relevant to the matter at issue, and its probative value must not be substantially out- weighed by the danger of unfair prejudice. Id. at 727-28. In admitting the convictions, the district judge explained that they showed “a pattern of behavior of someone who has an intent, first, to use a firearm unlaw- fully, and, secondly, to enter into a residence and commit theft.” In its case-in-chief the government intro- duced merely the titles, dates and dispositions of Lewis’ prior allowable convictions. Although Lewis argues that his 2000 theft conviction was far removed from his current conviction because it was for theft, not burglary, and because his current accomplices were not involved, the judge recognized that the charge underlying the theft plea was residential burglary, and so the conviction and the facts surrounding it could in fact show a pattern. Lewis’ 1995 conviction was admitted into evidence as “possession of a weapon by a felon,” and Lewis argues now that the title of this conviction should have been sanitized to avoid unfair prejudice. Lewis was a felon in 1995 as the result of a conviction in 1991. At Lewis’ request, the judge excluded this 1991 conviction from the government’s case-in-chief because it was too far removed in time and circumstance. Lewis argues Nos. 09-3954, 09-3961 & 10-1204 17 that because the jury did not know what his prior felony conviction was for, it might assume some- thing worse or more related to his current crime. The law in this circuit is well settled that for purposes of impeachment by prior conviction, it is appropriate to reveal the title, date, and disposition of the offense. See, e.g., Smith, 454 F.3d at 716; United States v. White, 222 F.3d 363, 370 (7th Cir. 2000); United States v. Smith, 131 F.3d 685, 687 (7th Cir. 1997). Given this, we find that it was within the discretion of the district judge to allow the titles, dates, and dispositions of Lewis’ 1995 and 2000 convictions into evidence. Similarly we find that, although we might have ruled differently, the district judge did not abuse her discretion by denying Billingsley’s request to receive in evidence Lewis’ statement to his girlfriend, Ms. Roberts. Billingsley sought to have this statement admitted under Fed. R. Evid. 804(b)(3), which permits out-of-court state- ments made by an unavailable witness that are against the declarant’s penal interest, provided corroborating circumstances clearly suggest that the hearsay statement is trustworthy. United States v. Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990). In denying Billingsley’s motion, the district judge stated, The Court assumes that Lewis and Roberts are unavail- able to testify. Additionally, because the defense has not provided the statements to the Court for review, the Court also assumes that Lewis makes statements against his penal interest. To corroborate the truthfulness of the statement, Billingsley points 18 Nos. 09-3954, 09-3961 & 10-1204 out that Lewis made the statement during an un- prompted conversation with his girlfriend. Nonethe- less, the statements contradict Lewis’ post-arrest statement that Billingsley agreed to assist in the rob- bery after Lewis told him about the details of the planned robbery and that he expected to acquire approximately fifteen kilograms of cocaine. Lewis’ statement in the recorded phone call contradicts his post-arrest statement and lacks corroborating circumstances that would render it trustworthy. Billingsley argues that the fact that Lewis made these statements in a private setting, to his girlfriend, and about a man he barely knew, corroborates the veracity of his statement. The government counters that the fact that the statements were made in the larger context of a conversation telling his girlfriend he’d been entrapped actually undermines the veracity of his state- ments to her, as he could be expected to curry favor by pleading his innocence to her. Also, the government contends that, technically, statements about Billingsley not knowing the plan are not inherently against Lewis’ penal interest, especially when taken in the larger context of a conversation about entrapment. Regardless, and although we might have been inclined at a district level to allow Lewis’ statement into evidence, given that the statement directly contradicted Lewis’ post-arrest statement, and the context in which the statement was made, we don’t believe the district judge abused her discretion by disallowing the introduction of this state- ment. Nos. 09-3954, 09-3961 & 10-1204 19 Next, we reach Billingsley’s argument regarding cross- examination of Agent Bayless. Billingsley argues that by sustaining the government’s hearsay objections during his cross-examination of Bayless, the district judge abused her discretion and violated the doctrine of com- pleteness as codified in Fed. R. Evid. 106 and applied to oral statements by Fed. R. Evid. 611(a). United States v. Li, 55 F.3d 325, 329 (7th Cir. 1995). He also argues that this ruling denied him his Sixth Amendment right to confront and cross-examine witnesses against him, as well as his Fifth Amendment right to be free from penalty for refusing to take the stand in his own defense. Agent Bayless was allowed to testify about Billingsley’s post-arrest statement under Fed. R. Evid. 801(d)(2)(A), which provides that a party’s own statement is not hearsay if the statement is offered against the party. However, on cross-examination, Billingsley attempted to question Bayless as to whether or not Billingsley had made certain statements not previously addressed by Bayless in his testimony. Apparently, Billingsley’s strategy was to show a lack of connection with Lewis’ gang, and one way he hoped to do so was by eliciting statements from Bayless that he had never mentioned certain members of the gang, such as “B” and “PJ,” in his post-arrest statement. Billingsley’s own out-of-court statements (or lack thereof) offered in support of himself are hearsay and the government objected to this line of questioning. Billingsley, unable to proffer a hearsay exception under which these statements would be ad- missible, suggested that they were not being admitted for the truth of the matter asserted, and were therefore 20 Nos. 09-3954, 09-3961 & 10-1204 not hearsay. The judge upheld the government’s objec- tion, and pointed out that if Billingsley wanted to advance a defense theory about what he knew or didn’t know at the time, he was certainly welcome to do so by taking the stand. On appeal, Billingsley argues that the doctrine of com- pleteness, as codified in Fed. R. Evid. 106 and applied to oral statements in Fed. R. Evid. 611(a) required the judge to overrule the government’s objection. Under this doctrine, a complete statement is required to be read or heard when “it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.” United States v. Sweiss, 814 F.2d 1208, 1211-12 (7th Cir. 1987). “The completeness doctrine does not, however, require introduction of portions of a statement that are neither explanatory of nor relevant to the admitted passages.” United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982). Here, there was no suggestion during direct examination of Agent Bayless that Billingsley had interaction with or knowledge of “B” or “PJ.” Nonetheless, Billingsley claimed that the testimony of Bayless regarding certain things (such as a cell phone picture Gomez showed Billingsley of guns), was misleading because the jury might assume a connection to “B” or “PJ” and therefore a greater involvement for Billingsley in the conspiracy. We don’t believe Bayless’ testimony was confusing or misleading, nor do we believe the testimony Billingsley wished to pursue was explanatory of or relevant to Nos. 09-3954, 09-3961 & 10-1204 21 the admitted testimony. Rather, what Billingsley wished to have admitted was merely explanatory of his theory of the case. Therefore, we disagree that the doctrine of completeness should have been invoked here, and believe that the district judge was well within her discretion in finding that Billingsley’s proposed cross- examination of Bayless was an attempt to bring imper- missible hearsay before the jury. As regards to his Sixth Amendment argument, Billingsley was given the opportunity to cross-examine and confront Bayless; he was just required to do so within the rules of evidence. Billingsley has provided no case law to support the theory that he must be allowed to ask any and all questions he desires, regard- less of the evidentiary or other trial rules. As for his Fifth Amendment argument, Billingsley was not penalized for declining to take the stand. He was provided a full and fair trial, governed by legitimate trial rules. Just because he would have had to take the stand to present his theory of the defense does not mean he was penalized for not doing so. What theory of defense to adopt, and whether or not to take the stand, are strategic choices made by defendants every day. At issue here were not exculpatory statements that implicated Billingsley’s Fifth Amendment rights. Marin, 669 F.2d at 85 n.6. Nor, as we explained, was this a situ- ation where selective testimony by the witness dis- torted the full picture or misled the jury such that the adequacy of repair work necessary to correct a mis- leading impression became a consideration. United States 22 Nos. 09-3954, 09-3961 & 10-1204 v. Walker, 652 F.2d 708, 713 (7th Cir. 1981). For these reasons, Billingsley’s constitutional rights were not vio- lated by requiring him to comply with hearsay rules during Bayless’ cross-examination. Finally, Lewis and Williams argue that the district judge erred in imposing a mandatory consecutive sentence under § 924(c). In support of this argument, they cite cases from the Second and Sixth Circuits holding that a district court may not impose an addi- tional consecutive term of imprisonment for violating § 924(c) where a defendant is also subject to a longer mandatory minimum sentence based on another count of conviction. See United States v. Williams, 558 F.3d 166, 168 (2d Cir. 2009); United States v. Almany, 598 F.3d 238, 239 (6th Cir. 2010). However, as Lewis and Williams acknowledge, we have rejected the approach taken by the Second and Sixth Circuits, and have instead joined the majority of circuits in upholding the imposition of a mandatory consecutive sentence under § 924(c), regardless of any other mandatory minimum sentences imposed. United States v. Easter, 553 F.3d 519, 525-26 (7th Cir. 2009). Lewis and Williams offer no basis for revising this law, but wish to preserve this argument for appeal. Therefore, we find that the district judge did not err in imposing mandatory consecutive sentences under § 924(c). For the foregoing reasons, the judgments of the district court are A FFIRMED. 4-6-11	01-03-2023	04-06-2011
https://www.courtlistener.com/api/rest/v3/opinions/2484095/	674 F. Supp. 2d 1102 (2009) Brenda CZECH, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. WALL STREET ON DEMAND, INC., a Delaware Corporation, and John Does, Defendants. Civil No. 09-180 (DWF/RLE). United States District Court, D. Minnesota. December 8, 2009. 1104 Matthew R. Salzwedel, Esq., and Robert K. Shelquist, Esq., Lockridge Grindal Nauen PLLP, and Myles McGuire, Esq., KamberEdelson, LLC, counsel for Plaintiff. Glenn M. Salvo, Esq., J.D. Jackson, Esq., and Lola Velazquez-Aguilu, Esq., Dorsey & Whitney, LLP, counsel for Defendant Wall Street on Demand. MEMORANDUM OPINION AND ORDER DONOVAN W. FRANK, District Judge. INTRODUCTION This matter is before the Court on Defendant Wall Street on Demand, Inc.'s motion to dismiss for failure to state a claim (Doc. No. 24). For the reasons stated below, this Court grants in part and denies in part the motion and dismisses Plaintiff Brenda Czech's federal claims with prejudice, but dismisses her state-law claims without prejudice. FACTUAL AND PROCEDURAL BACKGROUND Czech commenced this action on behalf of herself and a proposed class after receiving unwanted text messages on her cell phone that were sent by Defendant Wall Street on Demand ("WSOD"). As alleged in Czech's Second Amended Complaint, WSOD provides custom websites, reports, and tools for financial services industry customers, who in turn use WSOD's products to provide their clients or end-users with the ability to request and receive financial information. One service WSOD provides its customers is financial information sent via electronic text messaging to wireless devices owned by the customers' end-users. Specifically, WSOD allows customers to subscribe to a Watch List Alert, such that WSOD can forward text messages to the customers' end-users' wireless devices, such as cell phones. WSOD allegedly does not track recycled or cancelled wireless telephone numbers and, as a result, text messages are sometimes sent to persons who have not subscribed to receive Watch List Alerts. Czech alleges that she began receiving unwanted text messages from WSOD on her cell phone after she purchased a new cell phone service plan from an established national carrier. Czech asserts that she has received unwanted text messages from WSOD as recently as February 2008. As a result, Czech alleges that she incurred fees and charges related to her receipt of those messages, although she does not allege the amount of those charges or attach a bill for those charges. Czech asserts that she did not stop receiving the messages from WSOD until she contacted a lawyer, who in turn contacted WSOD. In January 2009, Czech, on behalf of herself and a proposed class, commenced this action against WSOD and other unnamed defendants, alleging (1) claims for violations of three provisions of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030; (2) a claim for trespass to chattels; and (3) a claim for unjust enrichment. After Czech filed an Amended Complaint and WSOD filed its Answer, WSOD moved for judgment on the pleadings. This Court denied that motion without prejudice and granted Czech thirty days to amend her Complaint. (Doc. No. 21.) After she filed her Second Amended 1105 Complaint, WSOD filed the present motion to dismiss with prejudice for failure to state a claim. DISCUSSION The present civil action raises the interesting question of whether the Computer Fraud and Abuse Act which was originally enacted as a criminal law prohibiting such actions as damaging another's computer system or stealing information from it, 18 U.S.C. § 1030 (Supp. II 1984) presently extends to permit a claim for damages and injunctive relief, now that it also authorizes civil actions under certain conditions, against one who has sent unwanted text messages to another's cell phone. An annoyance? Quite possibly. The basis for a civil action under either subsection 1030(a)(2)(C), subsection 1030(a)(5)(A), or subsection 1030(a)(5)(C) of the CFAA? The Court thinks not. I. Rule 12(b)(6) and Pleading Standards In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all reasonable inferences from those facts in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986). In doing so, however, a court need not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir.1999), or legal conclusions drawn by the pleader from the facts alleged, Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990). A court may consider the complaint, matters of public record, orders, materials embraced by the complaint, and exhibits attached to the complaint in deciding a motion to dismiss under Rule 12(b)(6). Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.1999). To survive a motion to dismiss, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Although a complaint need not contain "detailed factual allegations," it must contain facts with enough specificity "to raise a right to relief above the speculative level." Id. at 555, 127 S. Ct. 1955. As the United States Supreme Court recently reiterated, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," will not pass muster under Twombly. Ashcroft v. Iqbal, ___ U.S. ____, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (citing Twombly, 550 U.S. at 555, 127 S. Ct. 1955). In sum, this standard "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim]." Twombly, 550 U.S. at 556, 127 S. Ct. 1955. II. Earlier Proceedings In its earlier Order, the Court concluded by noting that it "has serious doubts concerning the future viability of Czech's CFAA claim[s]." (Doc. No. 21 at 11.) The Court agreed with WSOD that with respect to each of Czech's three particular claims under the CFAA, Czech had only offered "a formulaic recitation of the statute." (Id. at 8, 10.)[1] WSOD now contends that Czech's "Second Amended Complaint contains nothing truly new" that adequately responds to the Court's earlier-expressed concerns. (Doc. No. 35 at 1.) WSOD argues that the 1106 present Complaint (1) "does not say how many so-called unwanted text messages she received" (but rather only claims "they were `numerous'"); (2) "does not say that she lost use of her cell phone, even temporarily"; (3) "does not say that the text messages filled her phone's memory preventing her from receiving `wanted' text messages"; and (4) "does not say that her use of her cell phone was hindered in any way" or that she actually incurred any extra charge due to the unwanted text messages from WSOD. (Id. at 1-2.) At thirty-three pages, Czech's Second Amended Complaint is plainly longer than the earlier sixteen-page version that this Court dismissed as inadequate, but much of the new material simply provides background discussion of cell phone and text-messaging technology and the various problems wireless customers might experience. (Doc. No. 23, ¶¶ 32-34 (asserting potential for criminal fraud).) While this Court does not disagree that unwanted text messages, like spam e-mail, are an annoyance, whether receipt of such messages can establish a civil action under the CFAA is, of course, a different question. III. The CFAA and Claims For Receiving Unwanted Text Messages Although the CFAA originated purely as a criminal statute, and primarily remains so to this day, it now extends a private cause of action to any individual "who suffers damage or loss by reason of a violation of" the Act's prohibitions. 18 U.S.C. § 1030(g).[2] Moreover, to bring a civil action under the CFAA, a plaintiff must show a violation of one of the CFAA's substantive provisions, as set forth in § 1030(a), and also establish that such "conduct involves 1 of the factors set forth in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i)." Id.[3] A. Elements of CFAA Civil Actions and Czech's Particular Claims WSOD now asserts that Czech's various CFAA claims fail to state a claim for four reasons: (1) Czech fails to allege WSOD accessed her cell phone without authorization; (2) Czech fails to allege WSOD acted with criminal intent; (3) Czech fails to allege WSOD obtained information from her cell phone; and (4) Czech fails to allege WSOD caused damage to her cell phone. (Doc. No. 35 at 5-6.)[4] At the 1107 outset, Czech takes issue with WSOD's recitation of the purported elements of her three CFAA claims, contending that she need not plead both that WSOD obtained information from, and caused damage to, her cell phone for each of her particular CFAA claims. (Doc. No. 37 at 3.) Plaintiff asserts three specific claims under the CFAA: (1) a claim for the unauthorized obtaining of information from a cell phone in violation of 18 U.S.C. § 1030(a)(2)(C) the "information claim"; (2) a claim for intentionally causing "damage" to a cell phone by a "transmission" in violation of 18 U.S.C. § 1030(a)(5)(A) the "transmission claim"; and (3) a claim for causing "damage" (and perhaps also "loss") to a cell phone by intentionally accessing that phone without authorization in violation of 18 U.S.C. § 1030(a)(5)(C) the "access claim." (Doc. No. 23, ¶¶ 90-92.) The elements of each of these particular claims under the CFAA differ somewhat. With respect to Czech's two CFAA claims under Section 1030(a)(5), a transmission claim under subsection 1030(a)(5)(A) imposes liability on: (a) Whoever ... (5)(A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer. 18 U.S.C. § 1030(a)(5)(A) (2008) (emphasis added).[5] The statute defines "damage" as "any impairment to the integrity or availability of data, a program, a system, or information." Id. § 1030(e)(8).[6] Somewhat similarly, an access claim under subsection 1030(a)(5)(C) imposes liability on: (a) Whoever ... (5)(C) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss. 18 U.S.C. § 1030(a)(5)(C) (2008) (emphasis added).[7] The statute does not define "accesses." As noted above, the statute essentially defines "damage" as "any impairment" to the cell phone. It separately defines "loss" as 1108 any reasonable cost to any victim, including the costs of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of services. Id. § 1030(e)(11). Thus, while "damage" pertains to a physical or operational impairment of the device, "loss" concerns any pecuniary cost incurred by the device's owner. Finally, with respect to her information claim, subsection 1030(a)(2)(C) of the CFAA imposes liability on: (a) Whoever . . . (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . (C) information from any protected computer. 18 U.S.C. § 1030(a)(2)(C) (2008). The statute does not define either "obtains" or "information." As Czech correctly notes, neither her transmission claim nor her access claim, unlike her information claim, requires that WSOD "obtain" any "information" from her phone when engaging in the prohibited conduct. As Czech also correctly notes, her information claim, unlike her other two CFAA claims, does not itself require that WSOD has caused "damage" to her phone by obtaining such information. But the private right of action provision of the CFAA limits any civil action under "this section" to one who "suffers damage or loss by reason of a violation of" the Act's prohibitions. 18 U.S.C. § 1030(g).[8] In short, every claim, including her information claim under subsection 1030(a)(2)(C), requires either directly by the substantive terms of the claim itself or indirectly by the requirements of Section 1030(g) either "damage" or "loss." See SKF USA, Inc. v. Bjerkness, 636 F. Supp. 2d 696, 720 (N.D.Ill.2009) (concluding that "damage or loss" requirement of subsection 1030(g) applies to claim under subsection 1030(a)(2)(C)); America Online, Inc. v. Nat'l Health Care Discount, Inc., 121 F. Supp. 2d 1255, 1276 (N.D.Iowa 2000) (noting that "it appears the elements of a claim under subsection (a)(2)(C) have been met," but concluding that "[n]evertheless, even having reached this conclusion, we again arrive at the issue of damages" and denying summary judgment for plaintiff because plaintiff had not made the requisite damage showing). As noted above, however, the civil action provision also requires, in addition to "damage or loss" due to an underlying substantive violation of the statute, conduct involving one of the five factors of subsection (c)(4)(A)(i). 18 U.S.C. § 1030(g) (2008).[9] Although the current 1109 version of the statute built over the years by accretion through various amendments is arguably not a model of clarity with respect to the requirements for civil damages actions, the Court concludes that the requirement of subsection 1030(g) that a civil action plaintiff suffer "damage or loss" as a result of a violation is separate from the requirement that such a plaintiff show that the violative conduct involves one of the five factors of subsection (c)(4)(A)(i). See P.C. of Yonkers, Inc. v. Celebrations! The Party and Seasonal Superstore, LLC, 2007 WL 708978, at 4-6 (D.N.J. Mar. 5, 2007) (explaining that subsection 1030(g) "sets forth a two-part injury requirement," (1) a "root injury of damage or loss; and (2)... one of five operatively-substantial effects" (emphases added)).[10] This is not to say that there is never any interaction between the two separate requirements. Here, for purposes of the five factors of subsection (c)(4)(A)(i), Czech has alleged an aggregate "loss" of at least $5,000 as required by subsection (c)(4)(A)(i)(I). Thus, where (as here) a plaintiff adequately pleads a "loss" under subsection (c)(4)(A)(i)(I), such allegations would seem to also satisfy the requirement confining civil actions to one "who suffers damage or loss."[11] In sum, a civil action under subsection 1030(g) of the CFAA requires: (1) establishing the elements of the particular substantive (criminal) offense under subsection 1030(a); (2) establishing that the plaintiff suffered "damage or loss" as a result of such a violation (although some, but not all, such offenses themselves already require "damage" and one now requires "damage and loss"); and (3) establishing one of the five types of conduct specified under subsection (c)(4)(A)(i), which are also required under subsection 1030(g) (some of which might also constitute "damage" or "loss"). Thus, for purposes of civil liability under the CFAA, Plaintiff's particular claims here require that she establish "damage" or "loss" as follows: her information claim requires "loss" (by virtue of her having premised her 1110 civil action on the "loss" factor under the private cause of action clause); her transmission claim as well as her access claim requires "damage" (by virtue of their own terms) and "loss" (by virtue of her having premised her civil action on the "loss" factor under the private cause of action clause); and, to the extent her access claim involves access occurring after the September 2008 amendments, such a claim requires "damage and loss" (by virtue of its own terms, the civil action clause requiring only "damage or loss"). In its previous Order, this Court addressed an issue of statutory interpretation regarding the one type of conduct (from the five possible "factors" available under subsection 1030(g)'s incorporation of subsection (c)(4)(A)(i)) on which Czech premised her civil action an aggregate loss of "at least $5,000 in value" and concluded that "Czech has sufficiently alleged this element of the CFAA." (Doc. No. 21 at 7.) But because it is clear that the parties had presented only an issue of statutory interpretation, in resolving which of two possible readings Congress intended, this Court (by agreeing with Plaintiff's reading) was not ruling that her allegations of such an aggregate loss met the applicable pleading standard under Rule 12(b)(6) as construed by Twombly and Iqbal. The allegations of her previous Complaint on this point were as formulaic and conclusory as those addressing the substantive violations under subsection 1030(a). (Doc. No. 9, ¶ 56 (merely asserting that Czech and other class members have suffered aggregate damages of at least $5,000 as required by subsection 1030(c)(4)(A)(i)(I)).) And consistent with its general conclusion that the earlier complaint was lacking the requisite specific facts, the Court noted that while Czech "alleges that she incurred fees and charges related to her receipt of the unwanted text messages, "she does not allege the amount of those charges or attach a bill for those charges." (Doc. No. 21 at 2.) In short, adequate facts plausibly establishing such "losses" must still be pled.[12] Accordingly, to survive the present motion to dismiss, Czech must adequately plead sufficient facts plausibly showing: (1) a violation of any of the three substantive provisions under subsection 1030(a) on which she relies; (2) "damage or loss" as a result of such a violation; and (3) an aggregate loss of at least $5,000. But as noted above, while maintaining a civil action for any violation of the CFAA requires a showing of a resulting "damage or loss," for purposes of the particular claims of the present action, satisfying requirement (3) by adequately pleading facts showing an aggregate $5,000 loss would also satisfy requirement (2), which requires pleading "damage or loss" suffered as a result of a violation of the CFAA. B. Czech's Information Claim and Whether WSOD Obtained Information From Czech's Cell Phone To plead an "information claim" under the CFAA, Czech must first satisfactorily allege facts that WSOD "intentionally accesse[d]" Czech's cell phone "without authorization or" by exceeding "authorized access, and thereby obtain[ed] ... information from" the cell phone. Although WSOD also disputes the sufficiency of Czech's allegations that WSOD intentionally gained unauthorized access to her cell 1111 phone, the Court will first address the element that WSOD obtained information from the cell phone. In its earlier Order, the Court agreed with WSOD that Czech's Amended Complaint "merely offers a formulaic recitation of the statute, which is insufficient under Twombly, 550 U.S. at 545 [127 S. Ct. 1955]." (Doc. No. 21, at 8.) In the Amended Complaint that this Court found deficient, Czech had alleged that WSOD intentionally accessed without authorization and/or exceeded the authorized access to [Czech's] cellular telephone and the wireless devices of the other members of the Class by sending them unauthorized Watch List Alert text messages, thereby obtaining information from those wireless devices. (Doc. No. 9 (Am. Compl.) ¶ 52.) Czech defended the earlier Complaint by contending that WSOD obtained information from her and other class members by, among other things, "obtaining operation and storage capacity, bandwidth, and memory from their wireless devices" and by receiving a "receipt or delivery notification" from the wireless devices after the text messages were sent. (Doc. No. 16 at 11 (citing Am. Compl. ¶¶ 17, 24).) In rejecting those arguments, the Court noted that although Czech further alleges that WSOD's messages (1) caused the wireless devices to slow in operation; (2) consumed bandwidth; (3) depleted the wireless devices' memory; and (4) frustrated users (id. at ¶ 24), these allegations are insufficient to allege that WSOD actually obtained information from Czech's cell phone. There are no allegations concerning how WSOD gained information from Czech, even assuming her cell phone was slowed or its memory depleted. Moreover, Czech's frustration with the receipt of unwanted text messages in no way allows WSOD to gain information from Czech. Finally, assuming WSOD's messages did indeed consume bandwidth, there are no allegations in the Amended Complaint concerning how consumption of a cell phone carrier's bandwidth results in the obtaining of information about an end-user from his or her device. (Doc. No. 21.) In support of her newly-amended allegations that WSOD "obtained information" in violation of the CFAA, Czech makes two basic arguments: (1) that the CFAA requires only that the defendant observed information, not that it physically removed information, and (2) that even if the CFAA required actual removal of information, the Second Amended Complaint now adequately alleges such removal. 1. Observation of Information Czech now alleges that contrary to what the parties earlier had assumed the CFAA required with respect to an information claim, it is now clear that "[t]he threshold for alleging that a person `obtained information' under CFAA is minimal" because the legislative history clarifies that the obtaining of information for purposes of the CFAA "`includes mere observation of the data'" and does not require "`physically removing the data from its original location or transcribing the data.'" (Doc. No. 37 at 15 (quoting 1986 Senate Report).) But even assuming the CFAA thus applies to those who "merely read" information, Czech's Second Amended Complaint still fails to meet the standard for pleading an "information claim" under the CFAA based on the receipt of unwanted text messages. In support of her contention that merely viewing information satisfies the requirement under the CFAA that a violator obtain information, Czech relies on United States v. Drew, 259 F.R.D. 449 (C.D.Cal.2009), to draw an analogy between 1112 websites and text messages. In Drew, the court "noted that the latter two elements of the section 1030(a)(2)(C) crime" that is, accessing a computer involved in interstate commerce and obtaining information by unauthorized access "will always be met when an individual using a computer contacts or communicates with an Internet website." Id. at 457. But the Court notes that while the CFAA apparently applies to a broad range of "data processing devices," there is a fundamental difference between viewing websites and communicating with wireless devices such as cell phones by sending text messages.[13] A website, by definition, offers information (text, data, images) to anyone wishing and able to view it, whereas a cell phone (or other comparable wireless device) in its reception mode only receives incoming audio calls or text messages. Thus while anyone accessing a website will "obtain information" in the sense of viewing the text, data, or images available on that website, there is no plausible basis to conclude that the sender of a text message to a cell phone will likewise "obtain information," even by merely viewing or reading it, from the cell phone to which it sent the text message. Accordingly, even accepting Czech's argument that the CFAA extends to merely viewing information, a CFAA action confined to cell phones and comparable wireless devices simply does not present the possibility of viewing information as would a CFAA action regarding websites such as that at issue in Drew.[14] In sum, the Court rejects Czech's contention that her allegations that when sending text messages WSOD obtained information from her cell phone by merely viewing such information as would one who is viewing a website state a claim for violating subsection 1030(a)(2)(C). 2. Removal of Information Undeterred, Czech contends that even if the CFAA requires WSOD to have actually taken or removed information from her cell phone, her Second Amended Complaint now satisfactorily pleads allegations supporting that element of her information claim. Czech argues that the transmission of a text message results in the sender receiving a response "that the wireless number is active, the general geographic area where the user is located (via the [recipient's area code]), and that future text messages can be sent to that active wireless number." (Doc. No. 37 at 17.) Czech further contends that "[k]nowing that a particular wireless number is active" and the associated area code "allows the sender ... to sell, license, or otherwise market that number to others," and allows senders "to evade restrictions" imposed by Do Not Call lists and other comparable opt-out mechanisms. (Id. at 18.) Finally, she claims that WSOD also obtained information by "obtaining a portion of the finite 1113 permanent or hard drive memory storage capacity of the phone." (Id.) WSOD counters by arguing that Czech's Second Amended Complaint "simply dresses up the same allegations" that this Court previously rejected. (Doc. No. 35 at 12.) The Court agrees with WSOD that Czech's amended pleadings still fail to plausibly allege that WSOD obtained information from her phone simply by sending an unauthorized text message to it, as the new version merely dresses up the old rejected allegations in bulkier attire. The Court previously rejected as insufficient allegations that WSOD obtained information either by "`obtaining operation and storage capacity, bandwidth, and memory from their wireless devices,'" or "by receiving a `receipt or delivery notification' from the wireless devices after the text messages were sent." (Doc. No. 21 at 8.) The relevant allegations of the Second Amended Complaint presently under scrutiny merely inflate the earlier-rejected allegations with more verbiage, but fail to plausibly allege that the sender of a text message thereby obtains information from the recipient's cell phone. Where the "computer" at issue under the CFAA is a cell phone or other comparable wireless device, rather than what is commonly known as a personal computer used for word processing, databases, etc., simply sending a text message to such a cell phone does not involve anything comparable to gaining unauthorized access to another's personal computer or computer network and then viewing (much less copying or removing) a word processing document or a database file. In short, sending a text message is essentially a one-way communication that does not implicate the obtaining of information from the recipient's cell phone, as this Court understands the intent of Congress.[15] 3. "Loss" Resulting From WSOD Having Obtained Information But in any event, even if this Court would accept Czech's arguments that WSOD somehow obtained information from her cell phone, her civil action based on an information claim would still require that she incurred "damage" or "loss" as defined under the CFAA. Because this is a civil action for damages or equitable relief under subsection 1030(g), Czech must establish that she suffered "damage or loss by reason of" the particular violation of subsection 1030(a) that is, by WSOD having obtained information from her cell phone. America Online, Inc. v. Nat'l Health Care Discount, Inc., 121 F. Supp. 2d 1255, 1275-76 (N.D.Iowa).[16] And because 1114 she claims an aggregate loss of at least $5,000 as the requisite factor, the Court will assume that Czech alleges "loss" rather than "damage" for purposes of her information claim. Although Czech alleges she incurred a "loss" as defined under the CFAA essentially, any reasonable consequential cost incurred she has not plausibly alleged how any such costs resulted from the violation, that is, from WSOD having obtained information. The information purportedly obtained from Czech's cell phone "that the wireless number is active, the general geographic area where the user is located (via the [recipient's area code]), and that future text messages can be sent to that active wireless number" (Doc. No. 37 at 17) does not result in any cost to her.[17] Such supposed costs must be distinguished from a cost incurred due to her receipt of the text message itself for example, additional phone charges beyond her monthly "bucket plan" which she would have incurred even if sending the text messages did not also thereby allow WSOD to obtain information from her phone. And in any event, as the Court noted earlier, Czech still has not alleged any particular additional charges incurred during any month so as to support any plausible allegation that she in fact was forced to pay such costs. In sum, Czech does not state an information claim on which relief may be granted under the CFAA because she has failed to plead any facts supporting a plausible claim that WSOD obtained information from her phone or that she incurred any resulting loss. C. Czech's Transmission Claim and Whether WSOD Intentionally Caused "Damage" to Czech's Cell Phone To plead a "transmission claim" under the CFAA, Czech must satisfactorily allege facts that WSOD "knowingly cause[d] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally cause[d] damage without authorization, to" Czech's cell phone. 18 U.S.C. § 1030(a)(5)(A). For purposes of the present motion, the Court will assume that when WSOD sends text messages, it "knowingly causes the transmission of a program, information, code, or command." In addition, the Court understands Czech's CFAA claims to be based, at bottom, on the fact that the text messages she received were unwanted. In other words, Czech would not attempt to premise a CFAA claim here had she signed up for WSOD's service. Thus the question largely reduces to whether sending unwanted messages "intentionally causes damage without authorization" to Czech's cell phone. 1. Czech's Allegations of "Damage" Remain Conclusory In its earlier Order, this Court agreed with WSOD that the allegations in 1115 paragraph 24 of the prior version of the Complaint, even assuming they are true, do not explain how Czech or the proposed class members suffered any damage, but rather amount only to a formulaic recitation of the statute. Czech had claimed that the damage she alleged in paragraph 24 particularly, the slowing of the wireless devices and the depleting of memory impair the ability of and interrupt end-users' wireless-device service. The Court disagreed, finding such allegations "merely conclusory statements listing generalized grievances that are insufficient under Twombly." (Doc. No. 21 at 10.) WSOD now argues that the "Second Amended Complaint does nothing more than elaborate on these conclusory allegations with more generalized grievances." (Doc. No. 35 at 16.) WSOD notes that although all versions of the complaint allege a two-year span of receiving unwanted text messages, there is still no factual allegation that as a result "Plaintiff was unable to make or receive a single phone call or send or receive a single text message." (Id. at 17.) Czech counters by contending that the expanded allegations of her Second Amended Complaint now satisfy the Court's concerns (and thus the applicable pleading standard) because they assert that unauthorized text messages deplete or exhaust a cell phone's limited RAM or ROM, thereby causing its other operations and functions to slow or lock up completely (Doc. No. 23, ¶ 27); unauthorized text messages "can cause" a phone to shut down and automatically reset by rebooting, reformatting its memory and erasing any stored information (id. ¶ 28); unauthorized text messages misallocate, interfere with and/or deplete the phone's wireless bandwidth that would otherwise be dedicated to other calls or messages (id. ¶ 30); unauthorized text messages temporarily and/or permanently misallocate, deplete or consume the phone's "hard drive" memory storage capacity (id. ¶ 31); and the unauthorized text messages that Czech herself (and other class members) in fact received (1) depleted or exhausted her RAM/ROM and caused slow performance, (2) misallocated, interfered with or depleted her phone's wireless bandwidth, and (3) misallocated, depleted or consumed her phone's hard drive storage capacity (id. ¶¶ 70-72). (Doc. No. 37 at 20-23.) The Court recognizes that Czech's Second Amended Complaint expands the allegations of purported "damage" to include, among other things, claims that Czech herself incurred various types of "damage" to her cell phone due to WSOD's unwanted text messages. But the Second Amended Complaint, while perhaps personalizing the pleadings by adding allegations that Czech experienced such "damage" to her cell phone, nevertheless remains too generalized and abstract in that it still only postulates that WSOD's unwanted text messages caused "damage" to Czech's cell phone by consuming limited resources. The general damages allegation added to Czech's Second Amended Complaint that the "unauthorized text messages Plaintiff received from WSOD substantially interrupted the functioning of Plaintiff's cellular telephone and impaired the integrity and availability of data, program(s), system(s), or information found in or on Plaintiff's cellular telephone" (Doc. No. 23, ¶ 69) simply tracks the statutory definition of "damage." As noted above, the CFAA defines "damage" as "any impairment to the integrity or availability of 1116 data, a program, a system, or information." 18 U.S.C. § 1030(e)(8).[18] In the apparent attempt to avoid this shortcoming, Czech also now amplifies that general allegation by alleging the particular ways in which WSOD's unauthorized messages consumed the limited resources of Czech's cell phone. (Doc. No. 23, ¶¶ 70-72.) But as WSOD contends, this expanded restatement of the earlier allegations does not add anything new or different that could plausibly support a claim that Czech actually incurred such unauthorized "damage" as the intentional result of WSOD's transmissions. (Doc. No. 35 at 1-2, 16-17.) In sum, Czech's pleadings regarding her information claim under the CFAA remain conclusory and, therefore, inadequate. Furthermore, the Court understands Czech's theory of "damage" under the CFAA as being confined to the use or consumption of a device's finite resources that results in an actual impairment of service. (Doc. No. 23, ¶ 26 (claiming WSOD caused device "to slow and/or lag in operation" and "impaired the availability of and interrupted the wireless-device service"), ¶ 27 (claiming messages deplete RAM/ROM and thus cause device "to slow or lag in operation, or actually lock up completely"), & ¶ 31 (same).) In addition, Czech relies on America Online, Inc. v. Nat'l Health Care Discount, Inc., 121 F. Supp. 2d 1255 (N.D.Iowa), to support her argument that "damage under [the] CFAA can be found where unwanted electronic communications causes [sic] a computer to slow or otherwise diminish the capacity of the computer to function." (Doc. No. 37 at 22 (emphasis added).) There, the court concluded that "when a large volume of UBE [unsolicited bulk e-mail] causes slowdowns or diminishes the capacity of AOL to serve its customer, an `impairment' has occurred to the `availability' of AOL's `system.'" Id. at 1274 (emphasis added).[19] The alternative would be to construe Czech's complaint as alleging that "damage" under the CFAA occurs simply by any use or consumption of a device's limited resources.[20] For example, some allegations of the Complaint might suggest that any incoming message will "damage" a cell phone simply by consuming some of its finite resources without regard to the effect 1117 on a user's service. (E.g., Doc. No. 23, ¶¶ 30, 71 (alleging that incoming messages consume limited bandwidth and thus cause statutory "damage")). The problem with such a theory is that it would extend "damage" under the CFAA to include the receipt of any unwanted electronic communication under any circumstance. For example, a civil action under the CFAA would exist where a cell phone owner received a single short unwanted text message from WSOD (e.g., "Buy Intel") that consumed a certain amount of the wireless device's resources (in terms of RAM/ROM, hard drive storage, etc.) but occurred under circumstances that did not actually involve any impairment to the cell phone user's service (that is, a small message received while not receiving other messages or audio calls such that even the cumulative effect of all such incoming communications did not overwhelm the device's finite resources). It is far from obvious, or even plausible, that a theory of "damage" under the CFAA was intended by Congress to include situations where the receipt of a text message, albeit unwanted, simply used a cell phone as intended but without causing any actual impairment of the recipient's service. Moreover, such a theory would necessarily extend "damage" to include the receipt of even wanted messages. Taking the Second Amended Complaint at face value, Czech alleges that unwanted text messages consumed finite device resources so as to "damage" her phone. (Doc. No. 23, ¶¶ 26-31, 69-72.) But her allegations permit no distinction between wanted and unwanted messages an unwanted message of a given size presumably consumes the same amount of resources as would a wanted message of the same size and the fact that the message is unwanted does not mean that it is inherently more "damaging" compared to a wanted message the messages were simply unwanted, but not anything in the nature of a computer virus, a "worm" program or spyware. In other words, there is no difference between a wanted (or expected) message and an unwanted message in terms of its incremental effect on a cell phone's operations or functionality. Consistent with her theory, any incoming message will necessarily use some of the phone's RAM/ROM, hard drive storage capacity, etc. Thus a theory of "damage" as any depletion of a device's finite resources would extend to any incoming message wanted or unwanted regardless of the size of the message and the surrounding circumstances, that is, whether it is received while the device is also receiving other messages competing for the same finite resources. The Court thus understands Czech to allege consistent with what seems more likely to have been the intent of Congress "damage" as confined to an impairment of performance that occurs only when the cumulative impact of all calls or messages at any given time exceeds the device's finite capacity so as to result in a slowdown, if not an outright "shutdown," of service. (Doc. No. 23, ¶ 31.)[21] 1118 But as WSOD argues, Czech's pleadings still do not contain any factual allegation that as a result of receiving WSOD's messages "Plaintiff was unable to make or receive a single phone call or send or receive a single text message." (Doc. No. 35 at 17.) As currently drafted, the Second Amended Complaint still fails to allege that Czech, despite claiming to have received unwanted text messages from WSOD for some two years, in fact experienced on any given particular day an actual impairment of her ability to receive wanted text messages or phone calls due to the receipt of unwanted messages from WSOD. Czech alleges no specific facts (much less provides any supporting affidavit) asserting, for example, that she learned that a friend attempted to contact her by phone on a particular date but was unable to get through while Czech was receiving unwanted test messages from WSOD. Rather, Czech alleges but in a wholly conclusory fashion that WSOD's unwanted messages "caused the wireless devices of Plaintiff and the members of the Class to slow and/or lag in operation" and thereby "impaired the availability of and interrupted the wireless-device service of Plaintiff and the members of the Class." (Doc. No. 23, ¶ 26.) Accordingly, even the expanded allegations remain conclusory and, therefore, insufficient. 2. Sending Unwanted Text Messages Does Not Plausibly State A Transmission Claim Under the CFAA Apart from her conclusory allegations of "damage," the Court fails to see how Czech could shoehorn her claim that WSOD sent her unauthorized text messages into the statutory framework of a transmission claim. Thus it is perhaps not surprising that Czech's allegations remain conclusory. And this Court's independent attempt to puzzle out how Czech's claim that the receipt of unwanted text messages fits the parameters of a transmission claim results in nothing but roadblocks.[22] Even confining "damage" to an actual impairment of service, Czech's theory of liability alleges that unwanted messages cause such an impairment, but presumably would not extend to the receipt of wanted messages. But as discussed above, given the inherent limitations of such devices' physical capacities as alleged in the Second Amended Complaint that any incoming text message uses finite resources even messages that Czech wanted or expected to receive could overwhelm her cell phone's limited capacity so as to impair service. A concentrated burst of wanted or expected messages could have the same disruptive effect as a comparable burst of unwanted messages. Conversely, the fact that an incoming message is unwanted does not mean that its receipt, be it alone or in addition to wanted messages, would necessarily overwhelm a cell phone's capacity. Such messages would not impair the owner's service unless and until their individual size or aggregate cumulative size at any given time would exceed the phone's capacity. So even if "damage" is confined to the receipt of messages that result in an impairment of service, Czech's theory of liability still seems to require some limitation that separates those that send unwanted messages that actually impair cell phone service from those that send wanted messages. Under the terms of the statute, to establish a transmission claim, Czech must provide facts that plausibly allege that sending unwanted text messages constitutes a transmission that "intentionally causes damage without authorization." 18 1119 U.S.C. § 1030(a)(5)(A) (emphasis added). But even if such intent is what could validate her transmission claim, such intent presents a question of causation, particularly intentional causation. See America Online, Inc. v. Nat'l Health Care Discount, Inc., 121 F. Supp. 2d 1255, 1274-76 (N.D.Iowa) (denying plaintiff's motion for summary judgment on liability for subsection 1030(a)(2)(C) and subsection 1030(a)(5)(C) claims, even though court concluded that a large volume of unsolicited bulk e-mail that caused a slowdown or diminished the capacity of AOL to serve its customer would constitute an "impairment" of AOL's system, because there remained disputed issues of material fact as to whether defendant's "UBE caused the requisite damage for purposes of the statute") (emphasis added). In short, to be plausible, Czech's theory of liability would turn, at least in part, on whether the culpable conduct was intended to cause the prohibited outcome. In other words, Czech thus must allege facts plausibly supporting a theory that by sending unwanted text messages WSOD intended to cause damage to Czech's cell phone, and such a theory of liability must subject those who send unwanted messages but not those who send wanted messages to a civil action. And assuming that Czech's allegations are read to premise a claim only where actual impairment of service occurs so as to constitute "damage" under the CFAA, she must allege facts that WSOD intended to damage her phone by sending messages to wireless devices such as hers that it not only knew were not currently operated by subscribers to its service that the sender knew the recipient does not want such messages but also knew would be pushed past their operational limits by WSOD's unwanted message that the sender knew the circumstances of the recipient's device when such messages would be received. But there is nothing alleged in the Second Amended Complaint that WSOD knew the circumstances of Czech's phone usage such that WSOD could, at any given time, intend to disrupt her service by sending unwanted text messages that would exhaust the phone's limited resources. (Indeed, it is far from clear that a sender could know such information.) And, in fact, Czech contends that WSOD "automatically sends text messages to whatever wireless phone number(s)" a user has entered "regardless of whether the person receiving the text messages actually wants to receive or has authorized receiving the text messages." (Doc. No. 23, ¶ 5.) Czech essentially alleges only that WSOD failed to keep its subscriber list current and accurate by weeding out from its database those numbers no longer belonging to active subscribers. (Id. ¶¶ 49-60.) Such a failure might sound in negligence, but could not constitute the intentional causing of unauthorized damage to wireless devices. Moreover, as WSOD contends, such negligence might not be its own, but rather that of its former subscribers who "`terminate their wireless-carrier service... but fail to update or delete their old or discontinued wireless numbers from their Watch List Alert Account.'" (Doc. No. 35 at 10-11 (quoting ¶ 52 of Czech's Second Amended Complaint).) Moreover, WSOD, which charges its customers for the service of providing financial information to them, has no plausible reason to intentionally send text messages containing such financial information to those it knows have not paid for that service.[23] Thus, it is far from clear and 1120 indeed highly implausible that WSOD thereby intended to cause such "damage without authorization." The Court does not intend to stifle novel legal arguments advocating the extension of existing law, but such arguments particularly when premised on complicated statutory provisions must be at least plausible. Here, Czech has not adequately spelled out how her claim could fit within the statute. But for purposes of this motion to dismiss, the Court need not rely on this particular inquiry into the plausibility of Czech's transmission claim because it is clear that her allegations of the basic parameters of such a claim, particularly the necessary element of "damage," remain conclusory. See supra § III.C.1. D. Czech's Access Claim and Whether WSOD Intentionally Caused Damage to Czech's Cell Phone To plead an "access claim" under CFAA, Czech must satisfactorily allege facts that WSOD "intentionally accesse[d]" Czech's cell phone "without authorization, and as a result of such conduct, cause[d] damage" ("and loss" to the extent the unauthorized access occurred after the 2008 amendments). 18 U.S.C. § 1030(a)(5)(C) (2008); see generally U.S. Bioservices Corp. v. Lugo, 595 F. Supp. 2d 1189, 1193 (D.Kan.2009) (noting that CFAA was intended as a "criminal statute focused on `hackers' who trespass into computers" and addressing "access"). In short, Czech must allege facts that could support a claim that WSOD's sending of unwanted text messages "intentionally accesses" Czech's cell phone "without authorization" and thereby causes "damage."[24] The Court's conclusion, with respect to Czech's transmission claim, that her allegations of damage remain conclusory also dooms her access claim. In the context of an access claim, however, it is not the damage that must be unauthorized (as with a transmission claim), but rather the access to the cell phone. Compare 18 U.S.C. § 1030(a)(5)(A) with id. § 1030(a)(5)(C). But even assuming that by sending a text message the sender "accesses" the recipient's phone, and that sending such a message to one who does not want it thus "accesses" the phone "without authorization," to be liable on an access claim the act of sending text messages to a recipient who does not want them must still cause "damage." And the damage must result from such unauthorized access that is intentional. Id. § 1030(a)(5)(C) (imposing liability on one who "causes damage" as "a result of" "intentionally access[ing]" a cell phone "without authorization"). Thus, the same problems that confront one pleading a transmission claim based on sending unwanted text messages would seem to also plague one trying to plead an access claim based on that same conduct: such a plaintiff must plead facts plausibly showing an intent to impair the recipient's service. But while WSOD's sending of text messages to the cell phone of a recipient who has not authorized such messages might constitute unauthorized "access," for WSOD to be liable, that unauthorized access must still be intentional WSOD must have intended to send messages to those, 1121 like Czech, who did not want them. Here, again, there are no plausible facts alleged that WSOD intended to send its messages to those who had not signed upand paidfor that service. In short, the Second Amended Complaint contains no facts supporting any plausible theory of damage as a result of WSOD "intentionally" accessing cell phones by sending text messages to those that were not current subscribers. E. None of Czech's CFAA Claims Are Supported by Any Adequate Pleading of "Loss" One final nail seals the coffin on all three of Czech's CFAA claims. As discussed above, a civil action based on any of her three claims requires a showing of "loss." Accordingly, she must plead facts plausibly supporting a conclusion that the "loss" that she allegedly incurred was a result of the prohibited conduct, be it WSOD having obtained information by sending the unwanted text messages, or the "damage" WSOD inflicted by sending the unwanted messages.[25] WSOD contends that "the only new information [added to the Second Amended Complaint] . . . is the concession that she pays $5 each month for a plan permitting her cell phone to receive up to 300 text messages per month at no additional charge." (Doc. No. 35 at 17 (emphasis in original).) Moreover, Czech does not plead that while she stayed within that limit with respect to text messages that she wanted or expected, the unwanted WSOD messages she in fact received pushed her over that limit so as to result in any surcharge. As the Court noted in its earlier Order, while Czech had alleged "that she incurred fees and charges related to her receipt of [the unwanted WSOD] messages," she did "not allege the amount of those charges or attach a bill for those charges." (Doc. No. 21 at 2.) Likewise, the Second Amended Complaint neither references any specific financial charges allegedly incurred due to WSOD's conduct nor attaches any comparable supporting documentation of such losses she in fact incurred.[26] And in any event, even had she in fact incurred such a charge, it would not have been due to any "damage" WSOD caused her cell phone, that is, any impairment of her service. In sum, the Court concludes that Czech has failed to state a claim under the CFAA because she has failed, at a minimum, to sufficiently allege that WSOD obtained information from her cell phone in violation of the CFAA or that WSOD intended to damage her cell phone by sending text messages to those that were not current subscribers, or that any pecuniary loss 1122 Czech might have suffered was a result of WSOD having violated the CFAA by either of those actions. IV. Czech's State-Law Claims In its earlier Order, the Court found it prudentbased on its doubts about Czech's CFAA claimto delay addressing the state law claims until it would reach a final decision on the CFAA claim. (Doc. No. 21 at 11.) WSOD now asks this Court to exercise its supplemental jurisdiction over Czech's claims for trespass to chattels and unjust enrichment, and dismiss them too with prejudice. (Doc. No. 35 at 24-25.) She asks that if this Court dismisses her federal claim with prejudice, it should dismiss her state-law claims without prejudice so that she can pursue them in state court. (Doc. No. 37 at 34.) The Court declines to dismiss Plaintiff's state law claims with prejudice. The bases for the dismissal with prejudice of her federal claimfor example, her inability to establish the particular statutory requirements of "damage" and "loss"do not necessarily also preclude her non-statutory state-law claims. Moreover, the Court is unable to conclude simply on the face of the Complaint that Czech could never recover on her claim for trespass to chattels under any applicable state's law, see Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238, 248-50 (S.D.N.Y.2000) (finding that use of automated software search robot to search another's database constitutes trespass to chattels); America Online, Inc. v. Nat'l Health Care Discount, Inc., 121 F. Supp. 2d 1255, 1277-78 (N.D.Iowa 2000) (finding that sending bulk e-mail constituted trespass to chattels); America Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444, 451 (E.D.Va.1998) (concluding that transmission of bulk e-mail constituted trespass to chattels); America Online v. Prime Data Systems, Inc., 1998 WL 34016692 (E.D.Va. Nov. 20, 1998) (awarding damages and injunctive relief based in part on trespass to chattels claim), or on her claim for unjust enrichment, see Nat'l Health Care Discount, Inc., 121 F.Supp.2d at 1278-79 (addressing claim for unjust enrichment and denying plaintiff's motion for summary judgment). And this Court is not the preferred venue for addressing the merits of the "novel and fact-intensive issues raised by" Czech's state-law claims that are premised on "unsettled state law." (Doc. No. 37 at 35.) Whether she may base her novel claims on these long-recognized causes of action is an issue for the state courts.[27] CONCLUSION Plaintiff's federal claim under CFAA still failsafter two attempts at amendmentto articulate a claim on which relief may be granted. Accordingly, the Court dismisses with prejudice her CFAA claim. But the Court is in no position to likewise conclude that Plaintiff's state-law claims also suffer from incurable deficiencies so as to preclude her the opportunity to file them in an appropriate state court. Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that: 1. WSOD's motion to dismiss (Doc. No. 24) is GRANTED IN PART (insofar as it seeks dismissal with prejudice of Czech's federal CFAA claims) and DENIED IN PART (insofar as it seeks dismissal with prejudice of Czech's state-law claims). 1123 LET JUDGMENT BE ENTERED ACCORDINGLY. NOTES [1] The Court recognized, however, that to state a claim under the CFAA, a plaintiff need only allege the required elements pursuant to the notice pleading standard of Rule 8(a)(2), not the heightened pleading standard of Rule 9(b). E.g., SKF USA, Inc. v. Bjerkness, 636 F. Supp. 2d 696, 719 n. 13 (N.D.Ill.2009); P.C. of Yonkers, Inc. v. Celebrations! The Party and Seasonal Superstore, LLC, 2007 WL 708978, at 6 (D.N.J. Mar. 5, 2007). [2] Consistent with the Court's earlier ruling, all references to the CFAA are to the 2008 version unless otherwise noted. Although Czech alleges she received the unwanted text messages at issue starting in 2006 and continuing into 2008, the parties largely cite the latest version of the statute. While the 2008 amendments reorganized the structure of certain provisions of Section 1030, Pub.L. 110-326, Title II, § 204(a)(2)(C), Sept. 26, 2008, 122 Stat. 3561, the substance of the relevant provisions at issue remains largely unchanged since 2001. Compare 18 U.S.C. § 1030(a), (g) (2001) (integrating "factors" required for civil action as additional requirements for substantive offense under subsection 1030(a)(5)(B)) with 18 U.S.C. § 1030(a), (c), (g) (2008) (articulating "factors" required for civil action as bases for particular level of punishment under subsection 1030(c)). The only change of any substantive relevance here is that the 2008 amendments added, in subsection 1030(a)(5)(C), the requirement that the unauthorized access cause "loss" in addition to "damage." Pub.L. 110-326, § 204(a)(1) (rewriting subsection 1030(a)(5)). [3] With respect to these five factors, Czech's Second Amended Complaint alleges only conduct involving subclause (I), which requires a "loss to 1 or more persons during any 1-year period ... aggregating at least $5,000 in value." Id. § 1030(c)(4)(A)(i)(I). In its earlier motion, WSOD had argued that the CFAA does not allow private plaintiffs like Czech to reach the $5,000 loss threshold by aggregating losses among multiple computers owned by multiple individuals, but the Court rejected that statutory interpretation argument. (Doc. No. 21 at 5-7.) [4] In its earlier Order, the Court did not address whether Czech had not adequately pled that WSOD accessed her cell phone without authorization or that WSOD acted with criminal intent, because WSOD raised these arguments for the first time in its reply. (Doc. No. 21 (citing Myre v. State of Iowa, 53 F.3d 199, 201 (8th Cir.1995) (refusing consideration of argument raised for first time in reply brief)).) [5] All three provisions at issue apply to a "protected computer," which the statute defines (as relevant here) as a "computer" that is "used in or affecting interstate or foreign commerce or communication." 18 U.S.C. § 1030(e)(2)(B). There is no dispute that Czech's cell phone (as well as the various similar wireless devices used by the proposed class members) would constitute such a "computer" as further defined in 18 U.S.C. § 1030(e)(1). For convenience and brevity, the Court will refer to the devices at issue as "cell phones," with the understanding that it includes similar wireless devices used by other class members. [6] The statute does not define "transmission," "program," "information," "code" or "command." [7] As noted above, the requirement that such conduct under subsection 1030(a)(5)(C) causes "loss" as well as "damage" was added only by the 2008 amendments. While much, if not all, of the allegedly violative conduct at issue here occurred before the 2008 amendments, the additional requirement of "loss" under that subsection is irrelevant here, because Czech would still have to show "damage" the same as she would to establish a subsection 1030(a)(5)(A) claim, would still have to show "damage or loss" to maintain a civil action under subsection 1030(g), and would still have to show an aggregate "loss" of $5,000 as the additional requisite factor under subsection 1030(g). [8] The civil action provision was added only in 1994, Pub.L. 103-322, Title XXIX, § 290001(d), Sept. 13, 1994, 108 Stat.2097-99, to what had been up to then a purely criminal prohibition since it was originally enacted in 1984, Pub.L. 98-473, Title II, § 2102(a), Oct. 12, 1984, 98 Stat. 2190. See America Online, Inc. v. Nat'l Health Care Discount, Inc., 121 F. Supp. 2d 1255, 1272 n. 15 (N.D.Iowa 2000). Although other aspects of the private right of action provision have changed since 1994, that provision has always required that the person seeking damages or equitable relief suffer "damage or loss" due to a violation of the CFAA. E.g., 18 U.S.C. § 1030(g) (2006); 18 U.S.C. § 1030(g) (2000); 18 U.S.C. § 1030(g) (1994). [9] Although the private right of action authorizing civil suits by those suffering "damage or loss" was added to Section 1030 as subsection 1030(g) in 1994, the limitation on such civil actions to conduct that involves one of the five specified "factors" was not added until 2001. Pub.L. 107-56, Title V, § 814(e), Oct. 26, 2001, 115 Stat. 366. Since then, the precise parameters of that limitation have changed only slightly (and without any relevance to the present action). Pub.L. 110-326, § 204(a)(3), Sept. 26, 2008, 122 Stat. 3560 (shifting "factors" required for civil actions from substantive provisions of subsection 1030(a)(5) to punishment provisions of subsection 1030(c)). One court seems to view these "factors" as only limitations that "describe the harms recognized by a civil action rather than [as] pleading requirements." SKF USA, Inc. v. Bjerkness, 636 F. Supp. 2d 696, 720 (N.D.Ill.2009). But this Court need not join that particular debate because here Czech has limited her action to the factor of an aggregate "loss" of $5,000, and thus this provision would not pose any additional pleading requirement (other than the amount) beyond the "damage or loss" clause of subsection 1030(g). [10] When Congress amended subsection 1030(g) in 2001 by also requiring for civil actions one of the five specified types of conduct, it did not repeal the existing requirement that a plaintiff bringing a civil action establish that she suffered "damage or loss," nor did it amend that requirement by providing that one could show such "damage or loss" simply by establishing one of the five types of conduct, that is, by defining "damage or loss" in terms of those five factors. Rather, it removed those factors from the definitional limitations of "damage" under subsection 1030(e)(8) and added them as additional requirements for a civil action under subsection 1030(g). Pub.L. 107-56, Title V, § 814(d)(3), (e), Oct. 26, 2001, 115 Stat. 366. [11] Likewise, "damage affecting a computer" under subclause (V) would seem to constitute damage for purposes of the "damage or loss" clause of subsection 1030(g). But other types of conduct under subsection (c)(4)(A)(i) for example, "a threat to public health or safety" under subclause (IV) would not seem to constitute either "damage" or "loss" as defined by the CFAA. [12] The Court does not suggest that Czech herself must have incurred a loss of at least $5,000. But as a purportedly representative member of the alleged class (Doc. No. 23, ¶ 82), she must have incurred some additional charge as a result of WSOD's allegedly wrongful conduct. [13] When the CFAA was first enacted in 1984, the personal computer revolution was in full swing, but cell phones and other such wireless devices were not widely used by the public until substantially later. And as Czech herself notes, "text messaging was not widely offered or used on a commercial basis until around 2000." (Doc. No. 23, ¶ 18.) As the relevant technology has evolved over the last 25 years, the CFAA apparently continues to implicate a wider range of "computer" devices that are not necessarily similar in terms of all of their features and capabilities. [14] In addition, Drew involved a criminal prosecution for violation of the CFAA. 259 F.R.D. at 451-52. Here, in contrast, Czech's civil action must satisfy not only the requirements of a substantive violation of Section 1030(a), but also the requirements of Section 1030(g) for maintaining a civil action that the plaintiff suffered "damage or loss by reason of a violation of" Section 1030. See infra Section I.A.3. [15] There are no allegations that WSOD obtained, for example, credit card numbers or passwords from Czech's cell phone. [16] In America Online, Inc. v. Nat'l Health Care Discount, Inc., the court denied the plaintiff's motion for summary judgment on the issue of liability for the violation of subsection 1030(a)(2)(C) and subsection 1030(a)(5)(C). (The 2000 version of the provisions of the statute at issue there was essentially similar to those at issue here.) The court concluded that "when a large volume of UBE [unsolicited bulk e-mail] causes slowdowns or diminishes the capacity of AOL to serve its customer, an `impairment' has occurred to the `availability' of AOL's `system.'" 121 F.Supp.2d at 1274 (and noting supporting declarations that UBE imposed a substantial burden on AOL's system). But while the plaintiff had in fact suffered such a slowdown, the court nevertheless denied the plaintiff's motion because even though a violation of the CFAA seemed otherwise established, there remained disputed issues of material fact as to whether the defendant's "UBE caused the requisite damage for purposes of the statute." Id. at 1276 (emphasis added). The plaintiff's "problem, both for purposes of summary judgment and at trial, is showing specifically that [defendant's] UBE, which by [the plaintiff's] admission represents a mere fraction of the quantity of UBE regularly forced through AOL's system, caused the requisite `damage' contemplated by the statute." Id. at 1275. While the UBE may have cost the plaintiff over $50,000, that fact "does not, necessarily, mean [the defendant's] actions caused an `impairment to the integrity or availability of data, a program, a system, or information,' which directly resulted in a $50,000 loss." Id. [17] Czech further contends that "[k]nowing that a particular wireless number is active" and the associated area code "allows the sender ... to sell, license, or otherwise market that number to others," and allows senders "to evade restrictions" imposed by Do Not Call lists and other comparable opt-out mechanisms. (Id. at 18.) But there are no allegations that WSOD in fact sold or licensed her number, much less that she then incurred any resulting cost. Finally, she claims that WSOD also obtained information by "obtaining a portion of the finite permanent or hard drive memory storage capacity of the phone." (Id.) But, similarly, there are no plausible allegations that this resulted in any cost to her. [18] Czech further asserts that the parameters of liability under the CFAA recognize no de minimus or nominal damage exception. (Id. at 23.) The Court agrees. 18 U.S.C. § 1030(e)(8) (defining damage as "any impairment"). But the question remains whether Czech's allegations establish that her receipt of unwanted text messages necessarily constitutes "impairment" of any magnitude. [19] In support of this "damage" argument that unsolicited bulk e-mail ties up the recipient's computer Czech also relies on America Online, Inc. v. Prime Data Systems, Inc., 1998 WL 34016692 (E.D.Va. Nov. 20, 1998). But there, the plaintiff alleged claims under the CFAA in addition to four other statutory and common law claims. And in granting a default judgment, the court concluded only that "by sending large quantities of unsolicited e-mail messages through plaintiff's computer servers to plaintiff's customers, defendants willfully infringed plaintiff's registered trade and service marks ... and that defendants' acts constitute trespass to chattels under Virginia law." Id. at 3. Beyond referencing plaintiff's CFAA claim at the beginning of the opinion, the court never again mentioned that statute even though it did expressly discuss damages in terms of the Lanham Act, the Virginia state-law statutory claims, and Virginia common law of trespass to chattels. Id. at 3-4. [20] The Court assumes the truth of Czech's allegations that cell phones and other such wireless devices have finite resources in terms of RAM/ROM, bandwidth and hard drive storage capacity. But it is far from self-evident and Czech has provided no explanation of why it should be true that the incremental impact of any incoming call or message necessarily "impairs" such a device so as to constitute "damage." [21] At least in the context of cell phones, it is difficult to accept any naked assertion that Congress intended to extend the scope of "damage" to the normal use of a cell phone in receiving text messages, be they wanted or unwanted, such that the transmission of any text message would cause "damage." Such a theory would seem to necessarily require an additional statutory limitation that would prevent those that send authorized messages from being exposed to liability. Granted, liability under subsection 1030(a)(5)(A) extends only to transmissions that cause "damage without authorization." Under this theory, only an unwanted message causes unauthorized damage, whereas a wanted message would still cause "damage" but not "without authorization," such that WSOD would not be liable for sending messages to those that signed up to receive them. But the Court doubts Congress intended such a structurally-awkward scheme of liability under the CFAA. [22] The parties have largely approached the issue in terms of the particular elements individually. Fair enough, as far as it goes. But ultimately, the elements have to fit together to form a viable cause of action under the statute. [23] While Czech alleges that WSOD had a financial motive to send the text messages to as many recipients as possible (Doc. No. 23, ¶ 24), she fails to explain any plausible theory as to how WSOD could earn a net profit by sending messages to those that have not paid for such a service. Granted, the recipient would likely have to pay for receiving even those messages that they did not want, but it is far from clear how WSOD, rather than the cellular service provider, would receive a benefit from those charges. [24] Again, whereas "damage" is defined generally as impairment of the phone itself, "loss" is defined generally as pecuniary injury to the phone's owner. 18 U.S.C. § 1030(e)(8), (11). And the Court's discussion of "damage" to Czech's phone with respect to her transmission claim applies equally to her access claim. [25] With respect to her information claim, the Court has already explained that any loss could not have been due to WSOD obtaining information from Czech (assuming that even occurred). See supra § III.B.3. With respect to her transmission and access claims, the prohibited conduct that must cause the "loss" required by subsection 1030(g) to support a civil action is, in effect, the "damage" resulting from the prohibited conduct of both subsection 1030(a)(5)(A) and subsection 1030(a)(5)(C), respectively. See 18 U.S.C. § 1030(g) (requiring that injury occur "by reason of a violation of this section"). (Even assuming Czech received all of the unwanted text messages before the effect of the 2008 amendments that added the requirement of "loss" under 1030(a)(5)(C), such an access claim has always required, by its own terms, "damage.") [26] For example, insofar as Czech could receive up to 300 text messages per month for the flat fee of $5, she would have incurred no "loss" under the CFAA if she received 300 messages in a particular month even if all 300 were unwanted messages from WSOD. The only exception would be if unused incoming capacity could be "rolled-over" to subsequent months, but Czech does not allege that her service included any such feature. [27] In so concluding, however, this Court of course implies nothing about Czech's ability to state a claim under state law, much less her ultimate chances of recovering on such claims.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2040085/	370 N.W.2d 116 (1985) 220 Neb. 364 HAVELOCK BANK OF LINCOLN, a Corporation, Appellee, v. Frank T. McARTHUR and Marilyn J. McArthur, Appellants. No. 84-468. Supreme Court of Nebraska. July 5, 1985. 117 Vincent M. Powers, Lincoln, for appellants. Michael R. Johnson and Dana Baker of Barney, Carter & Johnson, P.C., Lincoln, for appellee. KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ. KRIVOSHA, C.J. The instant appeal presents to this court the question of whether a notice sent by a secured creditor to a debtor was sufficient to satisfy the requirements of Neb.U.C.C. § 9-504(3) (Reissue 1980) and thereby entitle the creditor to obtain a deficiency judgment against the debtor. The district court for Lancaster County, Nebraska, held that the notice was sufficient and entered a deficiency judgment for the Havelock Bank of Lincoln (Havelock) and against the appellants, Frank T. McArthur and Marilyn J. McArthur (McArthurs). We believe that the notice was not sufficient, and for that reason we reverse and dismiss. Havelock entered into a loan agreement with the McArthurs on June 17, 1981. In connection with that agreement the McArthurs signed and delivered to Havelock their promissory note dated June 17, 1981, in the principal amount of $120,328.07, payable in full on December 14, 1981. The note was secured by a 1972 International cab and chassis, a 1975 Ford pickup truck, and various items of farm equipment and cattle. Payment was not made on December 14, 1981, as required by the note, and on February 1, 1982, Havelock wrote to the McArthurs, advising them that Havelock would be taking possession of the personal property in which it had a security interest, including the cattle. The notice provided in part: "It is the banks [sic] intention to sell these cattle in a commercially reasonable manner within ten days and apply the proceeds, less any expenses, to your loan here at the bank." While the letter of February 1, 1982, advised the McArthurs that Havelock would proceed to take action and dispose of the cattle, that letter contained neither the time nor the place of the sale and was not sufficient to satisfy the requirements of § 9-504. Section 9-504(3) provides in part: Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. Not only did the letter of February 1, 1982, fail to disclose to the McArthurs either the time or the place of the public sale but, in fact, the sale was not held within 10 days, as suggested by the letter. Instead, on February 12, 1982, Havelock again wrote to the McArthurs, advising them: On Thursday, February 18, 1982 at 12 p.m. various head of cattle, that were used to secure your commercial loan here at the bank, will go on sale at the Wahoo Sale Barn in Wahoo, Nebraska. I am not taking the entire lot of cattle for sale but will be taking a few, and will give you this chance to attend that sale to bid for yourself, if you so desire. At the end of the sale I will contact you as to what was sold and how much we received, less any expenses. If you have any questions, please contact me here at the bank. (Emphasis supplied.) Had Havelock in fact sold all of the cattle on February 18, 1982, which secured 118 the loan, the notice of February 12 may have been sufficient. The difficulty, however, is that, as the letter of February 12 indicated, not all of the collateral was sold. This, therefore, imposed a further obligation on Havelock to advise the McArthurs when the balance of the cattle would be sold. The reason for requiring creditors to give notice was clearly set out by us in DeLay First Nat. Bank & Trust Co. v. Jacobson Appliance Co., 196 Neb. 398, 403, 243 N.W.2d 745, 748 (1976), when we said: Obviously, [the notice provision] is intended for the benefit and protection of the debtor. If he is given notice, he will have at least an opportunity to protect his interests by redemption, finding prospective purchasers for the property, or otherwise. Even if it might be determined he could not have protected his interest, the law requires he be given the opportunity. By advising the McArthurs that certain of the cattle would be sold on February 18, but not advising them as to when the balance would be sold, Havelock certainly did not give the McArthurs an opportunity with regard to the balance of the cattle to protect their interests by redemption, finding prospective purchasers for the property, or otherwise. On June 21, 1982, Havelock again wrote the McArthurs, advising them that certain other collateral had been sold and the proceeds applied against the loan, still leaving an unpaid balance. The letter then stated: "This leaves some cattle that need to be taken to market and I will be notifying you as soon as that is done." On August 19, 1982, Havelock once again wrote to the McArthurs and advised them that on July 9 (actually July 8), 1982, 36 cattle were taken to the Wahoo livestock market and sold. Advising the McArthurs after the fact that the cattle had been taken to market certainly did not afford them any opportunity to exercise the rights which § 9-504(3) is intended to protect. Everyone agrees that no notice was ever given the McArthurs of the July 8 sale. The question, then, is whether the failure to notify the McArthurs of the sale on July 8 precludes Havelock from obtaining a deficiency judgment. Havelock argues that because proper notice of the first sale was given the McArthurs and, further, they were advised that more sales would be held in the future, the requirements of § 9-504(3) regarding notice were satisfied. We believe that there are no exceptions to the rule requiring the creditor to give notice of every sale to the debtor if the creditor desires a deficiency judgment. Obviously, advising the debtor that numerous pieces will be sold individually on a given date at a given place, or even thereafter from day to day until all are sold, would be sufficient. But advising the debtor as to the time and place of the first sale without giving notice of the time and place of subsequent sales would defeat the whole purpose of requiring the creditor to give the debtor notice. As we noted in Bank of Gering v. Glover, 192 Neb. 575, 579-80, 223 N.W.2d 56, 59 (1974): The creditor is given several options in disposing of collateral and very minimal formal requirements. The burden on the secured creditor is to comply with the law. The act is framed in his interest. It is not onerous to require him to give notice of the time and place of sale. In some instances it will be to the creditor's advantage to do so. On the other hand, to permit him to proceed otherwise does place an onerous burden on the debtor. It prevents the debtor from taking steps to protect his interests at the sale. In a long line of cases beginning with Bank of Gering v. Glover, supra, we have repeatedly held that compliance with the notice provisions of the Uniform Commercial Code, particularly § 9-504(3), is a condition precedent to the right of a creditor to recover a deficiency judgment. See, also, DeLay First Nat. Bank & Trust Co. v. Jacobson Appliance Co., supra; First Nat. Bank & Trust Co. v. Hughes, 214 *119 Neb. 42, 332 N.W.2d 674 (1983); First Nat. Bank & Trust Co. v. Hermann, 205 Neb. 169, 286 N.W.2d 750 (1980). The failure to give the requisite notice is an absolute bar to recovery. See, State Bank of Litchfield v. Lucas, 210 Neb. 400, 315 N.W.2d 238 (1982); DeLay, supra; Citizens State Bank v. Sparks, 202 Neb. 661, 276 N.W.2d 661 (1979). As we noted in DeLay, supra 196 Neb. at 409, 243 N.W.2d at 751: The right to a deficiency judgment depends on compliance with the statutory requirements. We now hold that if a creditor wishes a deficiency judgment he must comply with the law in each transaction. While this rule may seem harsh, we are persuaded by the fact that the burden is on the secured creditor to comply with the law. The act is framed in his interest. It is not onerous to require him to observe the provisions of the law. (Emphasis supplied.) Havelock, having failed to give the McArthurs sufficient notice under § 9-504(3), is not entitled to a deficiency judgment. For that reason, therefore, the judgment of the district court is reversed and the cause remanded with directions to dismiss. REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2516730/	266 F.Supp.2d 547 (2003) Terry VAUGHN and Yvette Holman, Plaintiffs, v. SABINE COUNTY and Sheriff Tom Mattox,[1] Defendants. No. 1:01-CV-914. United States District Court, E.D. Texas, Beaumont Division. June 3, 2003. 548 Jane Swearingen Brown, Provost & Umphrey, Beaumont, TX, for Plaintiffs. Robert Scott Davis, Virginia Durham Young, Flowers Davis LLP, Tyler, TX, for Defendants. ORDER GRANTING PLAINTIFFS' MOTION FOR FRONT PAY SCHELL, District Judge. This matter is before the court on "Plaintiffs' Motion for Award of Front Pay" filed on February 10, 2003 (Dkt. #45), Defendant Sabine County's response in opposition filed on February 20, 2003, and Plaintiffs Terry Vaughn and Yvette Holmans' ("Plaintiffs") reply filed on February 27, 2003, in the above-styled and numbered cause of action. Additionally, the court held an evidentiary hearing on April 29, 2003 ("April 29th hearing") (Dkt. # 51-55). After careful consideration, the court is of the opinion that the motion should be GRANTED. Background After a four-day trial, a jury found for Plaintiffs and awarded them full back pay and mental anguish damages of $100,000.00 each. Jury Verdict Form (Dkt. # 42). However, because of statutory limitations that cap mental anguish and punitive damages, each Plaintiff will receive only the statutory maximum of $50,000.00 in mental anguish damages. Order Granting Atty's Fees at 1 (Dkt. # 49); Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 848, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001) ("The amount of compensatory damages awarded under [Title VII] for ... `emotional pain, suffering, 549 inconvenience, mental anguish ...' and the amount of punitive damages ... may not exceed the statutory cap set forth in § 1981a(b)(3).") (emphasis added). Discussion As a vehicle to make civil rights plaintiffs "whole", Title VII authorizes courts to order reinstatement of plaintiffs to positions they should have held if not for past illegal discrimination against them. However, most of the time reinstatement is not a feasible option because of the usual resentment and hard feelings between a successful Title VII plaintiff and the defendant employer. In fact, in the present case, Plaintiffs acknowledge this reality and do not request reinstatement. Pls.' Mot. for Front Pay at 2 ("Plaintiffs request that they be awarded front pay in lieu of reinstatement."). Instead, Plaintiffs ask the court to award them front pay as an alternative means of making them "whole". Id.; Reynolds v. Octel Communications Corp., 924 F.Supp. 743, 748 (N.D.Tex.1995) (citing Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992) ("When reinstatement is not feasible, the equitable remedy of front pay is available at the court's discretion.")). After the April 29th hearing, the court agrees that reinstatement is not feasible because there is simply too much ill will and distrust between the Plaintiffs and Sheriff Tom Maddox to salvage any type of working relationship. See Owens v. City of New Orleans, Civ. A. No. 89-3373, 1990 WL 94216, 5 (E.D.La.) (court should not order reinstatement "where discord and antagonism between the parties would render reinstatement ineffective as a make-whole remedy.") (citing Haskins v. City of Boaz, 822 F.2d 1014, 1015 (11th Cir.1987)). Accordingly, the court must decide the amount of front pay that would adequately compensate the Plaintiffs to make them "whole". Front Pay Analysis Under Fifth Circuit precedent, this court must employ the following six step analysis in deciding a proper amount of front pay for each Plaintiff: (1) the length of time for which Sabine County should be liable, (2) the salaries Plaintiffs earned at Sabine County before they were wrongfully not rehired, (3) the present salaries of the Plaintiffs or the salaries the Plaintiffs could have made through diligent efforts to mitigate their damages, (4) deduct the present salaries earned by the Plaintiffs from the salaries they earned at Sabine County, (5) multiply the number in step four by the relevant length of time calculated in step one, and (6) the final number[2] calculated in step five should be 550 discounted to present value. Fournerat v. Beaumont Indep. Sch. Dist, 6 F.Supp.2d 612, 614 (E.D.Tex.1998) (citing Deloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th Cir.1990)). (1) Length of Time for which Sabine County should be liable. The factors prescribed in this circuit for determining the relevant time period are as follows: length of the prior employment, permanency of the position held, nature of the work, age and physical condition of the employee, possible consolidation of jobs, and other nondiscriminatory factors that could validly affect the possible post-discharge employment relationship. Fournerat, 6 F.Supp.2d at 614 (citing Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 871 (5th Cir.1991)). Plaintiffs ask for front pay through the end of Sheriff Tom Maddox's term, which ends in December of 2004. Pls.' Mot. for Front Pay at 3. However, the jury award has already compensated Plaintiffs for over two years of back pay, therefore, the court finds Plaintiffs request for two additional years of full compensation to be excessive. After hearing the evidence and testimony of the parties, keeping in mind the speculative nature of this exercise, and contemplating the above-mentioned factors, the court finds that an award of front pay through December of 2003 will adequately compensate the Plaintiffs and make them "whole". Because the jury's verdict was rendered on January 24, 2003, the court will round the front pay award to eleven additional months (February-December). (2) Salaries of Plaintiffs while employed by Sabine County. It is undisputed that Plaintiff Holman had a monthly salary of approximately $2,041.40 and Plaintiff Vaughn had a monthly salary of approximately $1,991.40 at the time their employment at Sabine County ended. Pls.' Mot. for Front Pay at 2. (3) Present salaries of Plaintiffs or salaries Plaintiffs could be making. Plaintiff Holman testified that she earns approximately $706.00 per month as a part time security officer. See Salary Analysis Chart by Charles F. Hawkins, Ph.D. (court hereby admits as Exhibit 2). Plaintiff Vaughn testified that she currently works as a real estate agent and nets $0 per month because of her "start up" costs. Because of the Plaintiffs' similar background and training, the court will assume that Plaintiff Vaughn could be earning the same amount as Plaintiff Holman, which is $706 per month. See Owens v. City of New Orleans, Civ. A. No. 89-3373, 1990 WL 94216, 5 (E.D.La.) ("an award of front pay should be reduced by the amount that a plaintiff could earn using reasonable mitigation efforts") (citing Cassino v. Reichhold Chems., Inc., 817 F.2d 1338 (9th Cir.1987)). Therefore, the court finds, for purposes of this motion, that both Plaintiffs effectively "earn" a salary of approximately $706.00 per month. 551 (4) Deduction of present salaries from salaries earned at Sabine County. Holman: $2,041.40-$706 = $1,335.40. Vaughn: $1,991.4O-$706 = $1,285.40. (5) Multiply result of step four by relevant time period in step one. Holman: $1,335.40 X 11 months = $14,689.40. Vaughn: $1,285.40 X 11 months = $14,139.40. (6) Discount to present value. Because the relevant time period is less than one year, the court finds that it is unnecessary to discount the award to present value.[3]See Washington v. Davis, No. Civ.A. 01-1863, 2002 WL 1798764, 5 (E.D.La.) ("The Court declines to speculate on interest rates and inflation over a time frame as short as one year.... [T]he Court concludes that it is not necessary to adjust the award in order to account for interest or inflation."). Conclusion After reading the relevant pleadings and after conducting a hearing on the matter, the court finds that Plaintiffs' motion for award of front pay should be GRANTED. Accordingly, the court awards Plaintiff Holman $14,689.40 and Plaintiff Vaughn $14,139.40 in front pay. It is so ORDERED. NOTES [1] The correct spelling of Sheriff Maddox's surname is apparently "Maddox," and not "Mattox." Plaintiffs misspilled his name in their original complaint. [2] Many district courts in this circuit, including this one, have also included a seventh step in the front pay calculation: awarding prejudgment interest to the front pay award. See, e.g., Dibler v. Metwest, Inc., No. CA 3:95-CV-1046-BC, 1997 WL 222910, 4 (N.D.Tex.) ("This court has the discretion to award the plaintiff prejudgment interest on her back pay and front pay awards.") (emphasis added) (citing Deloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th Cir. 1990) (citing Giancontieri v. Pan Am. World Airways, Inc., 161 F.2d 1151, 1159 (5th Cir.1985))); Foumerat v. Beaumont Indep. Sch. Dist., 6 F.Supp.2d 612, 614 (E.D.Tex. 1998) ("Finally, prejudgment interest should be added to the front pay award.") (citing Deloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th Cir.1990)). As shown above, the district courts that add this seventh step cite to the Fifth Circuit's Deloach and Giancontieri opinions as precedent for including prejudgment interest. While it is true that the Deloach court held that prejudgment interest was collectible on an award of front pay, the Deloach court, as well as the Giancontieri court, were construing a Louisiana discrimination statute under diversity jurisdiction, and not a federal anti-discrimination statute. In fact, the Giancontieri court stated the following: Pan Am . . . argues that as a matter of economics and constitutional law it [pre-judgment interest] cannot apply to awards for future losses, since by definition the plaintiff had no right to receive these sums as of the date of judicial demand. Pan Am's argument is, as a matter of economics, entirely sound. The Louisiana courts have, however, interpreted [the Louisiana statute] to allow an award of interest on future damages as well as present damages... In a diversity case, we are bound to follow this interpretation of the will of the Louisiana legislature. Giancontieri, 767 F.2d at 1159 (citations omitted). This court agrees with the Giancontieri court's conclusion that an award of prejudgment interest on an award of front pay is economically nonsensical. [3] At the April 29th hearing, the court ordered each side to produce salary analysis charts prepared by their respective experts. The court stated that it wanted the charts broken down monthly beginning in February of 2003 (the month immediately following the jury's verdict). At the April 29th hearing, Plaintiffs provided only a final calculation through December 2004, without a month by month itemization (admitted as Exhibit 1), and on May 1, 2003, a chart that started its analysis in May of 2003 (Exhibit 2). Because the court is awarding front pay starting in February (not May) of 2003 through December of 2003 (not 2004), neither document provided by Plaintiffs' expert is particularly helpful to the court. Sabine County chose not to submit any analysis or documentation.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2484108/	674 F. Supp. 2d 182 (2009) Malda J. BROWN, Plaintiff, v. Karen Gordon MILLS, Administrator, U.S. Small Business Administration, Defendant. Civil Action No. 08-1110 (ESH). United States District Court, District of Columbia. December 16, 2009. 183 Nicholas Harry Hantzes, Hantzes & Associates, PC, McLean, VA, for Plaintiff. Carl Ezekiel Ross, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant. MEMORANDUM OPINION ELLEN SEGAL HUVELLE, District Judge. Plaintiff Malda Brown has sued the United States Small Business Administration ("SBA") for retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, 2000e-17. The SBA now moves for summary judgment, and for the reasons stated herein, the motion will be granted. FACTUAL BACKGROUND Ms. Brown is a GS-13 Procurement Analyst/Procurement Center Representative ("PCR") at the SBA and has worked at the agency since 1980. (Compl. ¶ 7.) In 1992, Ms. Brown filed an Equal Employment Office ("EEO") complaint against her then-supervisor, John Whitmore. (Pl.'s Statement of Material Facts in Dispute ["Pl.'s SMF"] ¶ 2.) That claim was settled in 1995. (Id.) In 1998, Ms. Brown filed a second EEO complaint against the SBA, alleging retaliation for her previous claim. (Id. ¶ 3.) The parties settled that complaint in 2002. (Def.'s Statement of Undisputed Material Facts ["Def.'s SMF"] ¶ 63; Dep. of Malda J. Brown ["Brown Dep."], Ex. 1 (settlement agreement).) As part of the 2002 settlement, Ms. Brown received a promotion to the GS-13 grade as a GS-1102-13 Procurement Analyst and began working out of the Department of Health and Human Services ("DHHS"). (Brown Dep., Ex. 1 ¶ 2(b).) Mr. Whitmore retired from the SBA in 2004. (Decl. of Calvin Jenkins ["Jenkins Decl."] ¶ 5.) The duties of a GS-1102-13 Procurement Analyst include "represent[ing] the [SBA] at the installations to which [the 184 analyst is] assigned on any acquisition policy or procedure which affect SBA's mission to assist small business concerns." (Brown Dep., Ex. 9 at 1 (PCR job description).) A PCR is charged with "effectively represent[ing] small business concerns with procurement officials" and "counsel[ing] representatives of small business concerns and advis[ing] them how and where to sell their products to the Government." (Id. at 2.) In 2005 and 2006, Ms. Brown worked as a PCR in Rockville, Maryland, at the DHHS offices there. (Pl.'s SMF ¶ 16.) Then, as now, Ms. Brown worked in the SBA's Office of Government Contracts, and the chain of command in the office went from plaintiff to Rhonda Anderson, David Loines, Nancyellen Gentile, Arthur Collins, and Karen Hontz, the director of the Office of Government Contracts. (Def.'s SMF ¶ 4; Dep. of Nancyellen Gentile ["Gentile Dep."], Ex. 1 (organizational chart).) Between December 2005 and August 2006, Calvin Jenkins was the Deputy Associate Deputy Administrator for Government Contracting and Business Development. (Jenkins Decl. ¶ 2.) As such, he supervised both the SBA's "HUBZone" Officewhich encourages economic development in historically underutilized business zonesand the SBA Office of Government Contracts. (Id.) Michael McHale was the head of the HUBZone Office and reported to Mr. Jenkins, as did Ms. Hontz. (Id. ¶ 3.) On November 8, 2005, the SBA HUBZone program received a HUBZone bid protest concerning a U.S. Department of Homeland Security ("DHS") contract awarded to Shirlington Limousine and Transportation, Inc. ("SLT"). (Pl.'s SMF ¶ 18.) The protest came from another HUBZone entity and challenged SLT's eligibility as a HUBZone concern. (Dep. of Lara Hudson ["Hudson Dep."] at 70.) The SBA was responsible for processing and making a determination as to SLT's eligibility. (Id.) In December 2005, Ms. Brown was contacted by the owner of SLT, Christopher Baker, who sought assistance in understanding bid protest procedures. (Def.'s SMF ¶ 10; Pl.'s SMF ¶ 20; Brown Dep., Ex. 5 at 1 (Brown interview memorandum).) Ms. Brown had not met Mr. Baker prior to his contact with her in December 2005, but she had heard of him. (Brown Dep., Ex. 5 at 1; Pl.'s SMF ¶ 21.) During the call, Mr. Baker told plaintiff that Lara Hudson was the SBA attorney working on the SLT HUBZone protest and that he had a package he needed to deliver to her. (Brown Dep. at 67-68.) Ms. Brown told Mr. Baker that once he was at the SBA office building, he could call Ms. Hudson's secretary, Bejo Green, to come retrieve the package. (Id. at 68.) On December 8, 2005, Ms. Brown was in the Washington, D.C. office of the SBA and asked for Ms. Hudson, whereupon Ms. Hudson introduced herself to Ms. Brown. (Hudson Dep., Ex. 3 (May 15, 2006 email); Pl.'s SMF ¶ 23.) On December 12, Mr. Baker appeared unannounced and unescorted at Ms. Hudson's office to deliver documents to Ms. Hudson that she had requested from his attorney. (Hudson Dep., Ex. 4 (Dec. 23, 2005 memorandum to file).) Ms. Hudson and Mr. Baker had a conversation, during which Ms. Hudson mentioned her daughter. (Id., Ex. 1 at 2 (Hudson interview memorandum).) Mr. Baker told Ms. Hudson that he was upset about the protest and that "he could throw bricks at the protesting company." (Id. at 1) Ms. Hudson accepted the documents from Mr. Baker and asked him to leave. (Id.; Hudson Dep. at 28.) Afterwards, Ms. Hudson telephoned Mr. Baker's attorney and advised him that she could not speak to Mr. Baker while the protest was under review and while he was represented by counsel. (Id., Ex. 1 at 1.) 185 A week later, on December 19, Ms. Brown placed a telephone call to Ms. Green, Ms. Hudson's secretary, and told her that Mr. Baker would be coming by to drop off a package. (Brown Dep. at 61.) Ms. Green emailed Ms. Hudson to tell her of Ms. Brown's call and that someone "is suppose[] to be coming over to see" Ms. Hudson. (Hudson Dep., Ex. 2 at 2 (Dec. 20, 2005 email chain).) Mr. Baker appeared at Ms. Hudson's office several hours later, unannounced and unescorted. (Id.) According to Ms. Hudson, the visit made her "uncomfortable." (Hudson Dep. at 28.) She thanked him for the information he delivered and told him that she could not speak with him as the protest was an ongoing matter. (Id., Ex. 4.) After Mr. Baker's second visit, Ms. Hudson emailed Ms. Green and stated that she believed the call Ms. Green received from Ms. Brown earlier that day regarding the individual who was coming by to deliver a package and Mr. Baker's visit were "related" and that Ms. Brown and Mr. Baker were "acquaintance[s]." (Id., Ex. 2 at 2.) Ms. Green then spoke with the Visitors' Center and was told that Mr. Baker had been escorted up to Ms. Hudson's floor but that it was not known who escorted him. (Id. at 1-2.) Ms. Hudson subsequently checked with the Visitor Desk and was told that Mr. Baker had not signed in. (Id. at 1.) At that point, Ms. Hudson emailed John Klein, her supervisor, and explained that she was "concerned about the lack of security in the building and the free movement that Chris Baker ... seems to have getting in the building and up to [her] office." (Id.) Ms. Hudson then asked security to "investigate how Mr. Baker had gotten to [her] office without an escort and without a badge." (Hudson Dep. at 37.) Ms. Hudson subsequently reviewed videotapes of the public entrance to the SBA Headquarters from the days when Mr. Baker arrived at her office, but she did not identify Mr. Baker on the tapes. (Id. at 39.) Despite her inconclusive investigation, Ms. Hudson did not consider the "matter over" and "still wanted an answer as to how it was that Mr. Baker had accessed the building." (Id. at 66.) Five months later, in May 2006, Ms. Hudson became aware of media reports concerning Mr. Baker and his involvement with the congressional investigation of former Congressman Randall "Duke" Cunningham. (Id. at 14.) The coverage included reports of Mr. Baker's criminal history. (Id. at 23.) Subsequently, Ms. Hudson requested a meeting with Agent Lee K. Bacon of the SBA Office of Inspector General ("OIG") Investigations Division to discuss events that had occurred while she was working on the SLT HUBZone protest, including her concern that Mr. Baker knew personal information about her from his visits. (Id.; at 88-89; Ex. 1.) She also told Agent Bacon that she suspected that Ms. Brown was involved in allowing Mr. Baker into the SBA building. (Id. at 89; Ex. 1 at 2.) On or about March 30, 2006, the OIG received a referral from the DHS regarding SLT and opened an investigation of the company. (Decl. of Lee K. Bacon ["Bacon Decl."] ¶ 3.) In May 2006, SLT was the subject of a HUBZone program examination, which is distinct from the protest that was filed in November 2005. (Def.'s SMF ¶ 35; Dep. of David J. Caulfield ["Caulfield Dep."] at 10-11.) On May 2, Ms. Brown telephoned David Caulfield, a senior program analyst with the HUBZone program whose duties included serving as the operational manager for program examinations. (Hudson Dep., Ex. 5 at 2 (May 11, 2006 email chain); Caulfield Dep. at 5.) Ms. Brown asked Mr. Caulfield what had prompted the HUBZone program examination of SLT and told him that she considered SLT "to be one of her clients and, 186 at [SLT's] request, was making certain they weren't being asked the same questions contained in the recent HUBZone protest." (Hudson Dep., Ex. 5 at 2.) Mr. Caulfield answered Ms. Brown's questions regarding the program examination and told her that communications regarding the examination of SLT should be "directed to the personnel in the district office conducting the exam," an employee named Theo Holloman. (Id.) Immediately following the call with Ms. Brown, Mr. Caulfield consulted with former HUBZone Deputy Administrator Mr. Collins, who was then the deputy for government contracting in the Office of Government Contracting. (Caulfield Dep., Ex. 1 (Caulfield interview memorandum); Dep. of Michael McHale ["McHale Dep."] at 57.) Mr. Caulfield found Ms. Brown's call to be "unusual" because he did not usually receive calls "specific to a particular circumstance involving a named company." (Caulfield Dep. at 35.) Mr. Caulfield and Mr. Collins felt that Ms. Brown's contact with Mr. Caulfield was abnormal enough to warrant notification of Mr. McHale, the head of the HUBZone office. (Id. at 57; Ex. 1.) Mr. Caulfield sent Mr. McHale an email summarizing his conversation with Ms. Brown and stating that "[t]o [his] mind, the call from Malda was unusual in that [he] d[id]n't often get calls from PCRs on HUBZone program examinations." (Hudson Dep., Ex. 5 at 2.) After sending the email to Mr. McHale, Mr. Caulfield received a second call from Ms. Brown, again asking for information concerning SLT. (Caulfield Dep., Ex. 1.) Mr. McHale also found that Ms. Brown's call to Mr. Caulfield was "unusual." (McHale Dep. at 18.) When he replied to Mr. Caulfield's email on May 3, he copied Mr. Collins. (Hudson Dep., Ex. 5 at 1.) Mr. McHale stated that he had received a call from Mr. Holloman regarding Ms. Brown's interest in the SLT program examination. (Id.) Subsequently, Mr. McHale learned that two other SBA employees, Brenda Washington and Diane Jones, had been contacted by Ms. Brown during the SLT bid protest. (Id.) On May 11, Mr. McHale emailed Mr. Collins to inform him of Ms. Brown's prior contact with Ms. Washington and Ms. Jones. (Id.) Mr. Collins, who was Ms. Brown's supervisor, then forwarded the emails he had received from Mr. McHale to Ms. Hontz, the director of the Office of Government Contracts. (Id.) In his forwarded email to Ms. Hontz, Mr. Collins stated that he was "not sure that this level of advocacy is good. Without jumping to conclusions, this has the potential of being embarrassing." (Id.) Ms. Hontz forwarded the email chain to her immediate supervisor, Mr. Jenkins, and Ms. Gentile, Ms. Brown's third-level supervisor. (Id.) On May 12, after receiving the email chain forwarded by Ms. Hontz, Mr. Jenkins asked Mr. McHale to prepare a memorandum for Ms. Hontz regarding plaintiff's interactions with the SBA staff on behalf of SLT. (McHale Dep., Ex. 7; Def.'s SMF ¶ 45.) Mr. McHale contacted staff in the Office of Government Contracting and his own staff in the HUBZone office and asked for information regarding Ms. Brown and SLT. (McHale Dep. at 50-51.) Mr. McHale sent this information to Ms. Hontz, who referred Ms. Brown to the OIG for investigation. (Id. at 51; Dep. of Karen Hontz ["Hontz Dep."] at 54-55.) The OIG opened an investigation into Ms. Brown based on her "suspected involvement with [Mr.] Baker's unauthorized access to SBA headquarters and Ms. Brown's inquiries regarding [the] HUBZone program examination involving [SLT]" and consolidated it with the already-open investigation of SLT. (Bacon Decl. ¶ 3.) On May 24, Agent Bacon interviewed Ms. Brown regarding her activities 187 "on behalf of [Mr.] Baker." (Brown Dep., Ex. 5 at 1.) The interview memorandum summarizing Agent Bacon's interview of Ms. Brown states that Ms. Brown said she had contacted Ms. Washington and Ms. Jones regarding the SLT bid protest and Mr. Caulfield and Mr. Holloman regarding the SLT HUBZone program examination. (Id. at 1-2.) It also notes that Ms. Brown stated that she had "call[ed] and ask[ed] someone to allow Baker into the [SBA] building." (Id. at 2.) On June 19, Agent Bacon sent the interview memorandum to Mr. Jenkins, Mr. McHale, and Mr. Collins. (Dep. of Calvin Jenkins ["Jenkins Dep."], Ex. 4 (June 23, 2006 email chain).) Agent Bacon explained that the interview had been conducted as a result of the information provided to the OIG by Ms. Hudson and stated that if Mr. Jenkins or Mr. McHale had any "questions or concerns regarding the information [Ms. Brown] provided," they should let him know. (Id.) Several days later, on June 23, Mr. Jenkins responded to Agent Bacon's email by stating that the interview memorandum was "an incomplete review of the facts in this matter" because "[i]nterviews were not conducted with staff in the Office of HUBZone or [the] Washington [SBA office]," which might have resulted in statements contradicting Ms. Brown's. (Id.) Mr. Jenkins then noted that Congress was "looking into undue interference in the award of contracts to [SLT] and the HUBZone certification and protest process." (Id.) He then stated that he felt it "necessary that the OIG review include statements from Lara Hudson, HUBZone and Washington District Office staff." (Id.) Subsequent to Mr. Jenkins' email, Peter McClintock, the SBA's Deputy General Inspector, held a meeting with Mr. Jenkins and Agent Bacon to discuss Ms. Brown and Mr. Jenkins' "concerns of the visibility of the case" and his desire to make sure that the SBA "left no stone unturned." (Id. at 53-54.) Following this meeting, on July 3, 2006, the OIG opened an investigation of Ms. Brown. (Id., Ex. 5 (OIG report).) Agent Bacon interviewed eight additional SBA staff members and compiled a Report of Investigation ("ROI"), dated July 25, 2006. (Id. at 1, 4.) The ROI states that the referral to the OIG "did not allege a violation of the U.S. Criminal Code" and the "matter was not referred to the U.S. Attorney's Office due to lack of evidence of any criminal violation." (Id. at 1-2.) In August 2006, following the OIG investigation, Ms. Hontz asked Mr. Collins to "contact [Ms.] Gentile ... and to work with the others in the chain of command and the SBA's Office of Human Capital Management" to determine whether a reprimand was warranted. (Hontz Dep., Ex. 1 ¶ 10 (Hontz Aff.); Def.'s SMF ¶ 58.) Mr. Jenkins also contacted Ms. Gentile and instructed her to contact Ms. Brown's supervisor, Ms. Anderson, and have Ms. Anderson tell Ms. Brown that in the future, she was not "to let someone gain access to [SBA's] secure space unless she's the person receiving them." (Jenkins Dep. at 20-21.) On August 24, Ms. Gentile emailed Ms. Anderson and directed her to give Ms. Brown the following verbal instruction: [S]he should not have contacted SBA Headquarters staff to request assistance in providing Mr. Baker, Shirlington Limousine, access to the SBA Headquarters building if she had not planned to accompany him on a pre-scheduled appointment/meeting. Please caution [Ms. Brown] that, in the future, she should not make such a request, unless she plans to accompany the client on the meeting and/or the SBA official has 188 been properly notified and has accepted the request to meet with the individual. (Gentile Dep., Ex. 2 (Aug. 24, 2006 email).) Ms. Brown initiated contact with an EEO Counselor on July 6, 2006. (Compl. ¶ 5.) She was issued a notice of Right to File a Formal Complaint on September 1, 2006. (Id.) On September 15, Ms. Brown filed a formal complaint of employment discrimination against the SBA on the basis of race and retaliation. (Id.) The SBA initiated an investigation and issued the Report of Investigation on November 29, 2007. (Id.) On March 31, 2008, the SBA issued its Final Agency Decision that Ms. Brown had failed to show by a preponderance of the evidence that the SBA management had discriminated against her on the basis of race and retaliation. (Id.) Ms. Brown filed the instant complaint on June 26, 2008, within 90 days of her receipt of the Final Agency Decision. (Id.) She alleges that "[a]s a direct and proximate result of filing prior EEO complaints of discrimination and as a direct and proximate result of having had to settle the previous EEO complaints with plaintiff, Defendant employees made false and defamatory statements about Plaintiff and improperly subjected her to investigation by the Agency including initiation of a [sic] IG investigation based on false information solely to harass and retaliate against Plaintiff." (Id. ¶ 32.) ANALYSIS I. STANDARD OF REVIEW A motion for summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). There is a "genuine issue" of material fact if a "reasonable jury could return a verdict for the nonmoving party." Galvin v. Eli Lilly and Co., 488 F.3d 1026, 1031 (D.C.Cir.2007) (quoting Anderson, 477 U.S. at 248, 106 S. Ct. 2505). A moving party is thus entitled to summary judgment against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C.Cir.2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548; 91 L. Ed. 2d 265 (1986)). When considering a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson, 477 U.S. at 255, 106 S. Ct. 2505; see also Wash. Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C.Cir.1989). However, the non-moving party "may not rely merely on allegations or denials in its own pleading." Fed.R.Civ.P. 56(e)(2). "While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of her obligation to support her allegations by affidavits or other competent evidence showing that there is a genuine issue for trial." Calhoun v. Johnson, No. 95-2397, 1998 WL 164780, at 3 (D.D.C. Mar. 31, 1998), aff'd No. 99-5126, 1999 WL 825425 (D.C.Cir. Sept. 27, 1999) (internal citation omitted). II. LEGAL STANDARD FOR RETALIATION CLAIMS UNDER TITLE VII It is unlawful under Title VII for an employer to discriminate against an employee because she "has opposed any practice made an unlawful employment practice" by Title VII or because she "has 189 made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. 42 U.S.C. § 2000e-3(a). "The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006). To prove a retaliation claim under Title VII, a plaintiff "generally must establish that he or she suffered (i) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim." Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C.Cir.2008); see also 42 U.S.C. § 2000e-3(a). A "materially adverse" action is one that would have "`dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Burlington, 548 U.S. at 68, 126 S. Ct. 2405 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006)). "The issue of whether a particular employment action was `materially adverse' is fact-intensive and `depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.'" Howard v. Gutierrez, 237 F.R.D. 310, 313 (D.D.C.2006) (quoting Burlington, 548 U.S. at 71, 126 S. Ct. 2405) (internal quotations omitted). "[R]etaliation claims based on circumstantial evidencelike [Brown's]trigger the familiar burden shifting framework of McDonnell Douglas [Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) ]." Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009). However, where a defendant "has asserted a legitimate, non-discriminatory reason for [its action], the district court need notand should not decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas." Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008). Rather, at that point, "the burden-shifting framework disappears, and a court reviewing summary judgment looks to whether a reasonable jury could infer ... retaliation from all the evidence."[1]Jones, 557 F.3d at 677 (quoting Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C.Cir. 2004)). "At that stage, the only question is whether the employee's evidence creates a material dispute on the issue of retaliation `either directly by [showing] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Id. at 678 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S. Ct. 1478, 75 L. Ed. 2d 403 (1983)). "The court can resolve that question in favor of the employer based either upon the employee's failure to rebut [the employer's] explanation or upon the employee's failure to prove an element of her case," such as the employer's commission of a materially adverse act. Taylor v. Solis, 571 F.3d 1313, 1320 n. 4 (D.C.Cir. 2009). "Evidence" includes "not only the prima facie case but also the evidence the plaintiff offers to `attack the employer's proffered explanation for its action' and other evidence of retaliation." Jones, 557 F.3d at 677 (quoting Carter, 387 F.3d at 878). 190 A plaintiff has the burden of persuasion to show that a defendant's proffered non-discriminatory reason for the challenged action is a pretext, Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 654 (D.C.Cir.2003), and she must "prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but a pretext." Woodruff v. Peters, 482 F.3d 521, 529 (D.C.Cir.2007) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)). A plaintiff can carry her burden by showing that a non-discriminatory reason offered by a defendant is false, Montgomery v. Chao, 546 F.3d 703, 707 (D.C.Cir.2008), or otherwise "presenting enough evidence to allow a reasonable trier of fact to conclude that the proffered explanation is unworthy of credence." Desmond v. Mukasey, 530 F.3d 944, 962 (D.C.Cir.2008) (internal quotation marks omitted). A plaintiff may also "attempt[] to produce evidence suggesting that the employer treated other employees ... more favorably in the same factual circumstances" than the employer treated the plaintiff. Brady, 520 F.3d at 495. Where "the employer's stated belief about the underlying facts is reasonable in light of the evidence, however, there ordinarily is no basis for permitting a jury to conclude that the employer is lying about the underlying facts," and summary judgment is appropriate. Id.; see also Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23, 27-28 (D.C.Cir.1997) ("[I]f [plaintiff] is unable to adduce evidence that could allow a reasonable trier of fact to conclude that [defendant's] proffered reason was a pretext for [retaliation], summary judgment must be entered against [plaintiff].") III. THE OIG INVESTIGATION AND INSTRUCTION Ms. Brown alleges that she was improperly subjected to the OIG investigation as a result of retaliation by the SBA for her prior EEO claims.[2] (Compl. ¶ 32.) In response, the SBA explains that it initiated the OIG investigation of Ms. Brown pursuant to an agency regulation stating that "[e]very employee shall immediately report to the SBA Inspector General any acts of malfeasance or misfeasance or other irregularities, either actual or suspected, arising in connection with the performance by SBA of any of its official functions."[3] 13 C.F.R. § 105.205. The agency maintains that Ms. Brown's OIG investigation resulted from the "independent observations of two of Plaintiff's 191 colleagues, Ms. Hudson and Mr. Caulfield," both of whom "considered Plaintiff's conduct relating to [SLT] to be `unusual' enough to cause them to report it to their immediate supervisors." (Def.'s Mem. at 28-29.) Specifically, defendant argues that Ms. Hudson "reasonably believed that Plaintiff had improperly permitted Mr. Baker to enter the SBA Headquarters building" and that Mr. Caulfield "believed that Plaintiff's inquiries on behalf of [SLT] were `unusual' and necessitated alerting his supervisor." (Id. at 33.) Defendant alleges that these reports made their way to Mr. Jenkins and Ms. Hontz, who felt that Ms. Brown's acts warranted a referral to the OIG, in part because of the contracting fraud investigation of SLT. (Id. at 32-33.) Because the SBA has articulated a non-discriminatory reason for the OIG investigation, the Court must determine whether Ms. Brown has produced sufficient evidence for a reasonable jury to infer retaliation from the SBA's actions. Brady, 520 F.3d at 494. The Court finds that Ms. Brown has not satisfied this standard. Specifically, the Court finds that plaintiff has not presented evidence sufficient to allow a jury to conclude that the OIG investigation at issue was materially adverse or that defendant's proffered explanation for the investigation is pretextual. A. Material Adversity The Court finds that the OIG investigation of Ms. Brown and the subsequent verbal instruction she received are not materially adverse because no reasonable jury could conclude that these actions would have dissuaded a reasonable worker from complaining of discrimination. Plaintiff alleges that "[a]ny person subject to an IG investigation is cast under the shadow of the accusation that the employee has committed fraud, waste, and abuse which may result in a criminal Federal prosecution." (Pl.'s Opp'n at 19.) Ms. Brown states that her "co-employees were reluctant to work with her and stayed away from her for fear of management associating them with [her]." (Id.) She also states that the "reprimand" she received caused her to "suffer[] emotional distress, [go] under doctor's care, [be] placed on medication and ... take leave for three months." (Id. at 19-20.) She asserts that the "emotional distress and loss of 152 hours of sick leave is materially adverse harm." (Id. at 20.) Despite plaintiff's allegations, there is no evidence that Ms. Brown's reputation suffered as a result of the OIG investigation. Although Ms. Brown may have believed that her co-employees were "reluctant" to work with her or avoided her based on the investigation, she offered nothing to substantiate such a claim. "Purely subjective perceptions of stigma or loss of reputation are insufficient to make an employer's action `materially adverse.'" Rattigan v. Holder, 604 F. Supp. 2d 33, 51 (D.D.C.2009) ("Rattigan III"). Ms. Brown correctly states that "clear, actual damage to one's career is not required" to establish a materially adverse act. (Pl.'s Opp'n at 20.) Rather, the "touchstone for `material adversity' is deterrence." Rattigan III, 604 F.Supp.2d at 52. However, Ms. Brown must demonstrate that the OIG investigation "would have been material to [i.e., would have deterred] a reasonable employee." Rochon, 438 F.3d at 1219 (emphasis added); see also Burlington, 548 U.S. at 71, 126 S. Ct. 2405 (relying on objective indicators of "prestige" when determining whether plaintiff's reassignment was materially adverse); Rattigan III, 604 F.Supp.2d at 54 ("[P]laintiff's purely subjective perception that the ... security investigation jeopardized his `career goals' does not make defendant's actions materially adverse.... Rather, plaintiff must 192 provide evidence that the security investigation posed an objective harm to his reputation or prospects."). Nor is there any evidence to support Ms. Brown's claims that OIG investigations "cast ... a shadow" on SBA employees. (Pl.'s Opp'n at 19.) Rather, there is evidence that OIG investigations are relatively commonplace and that the "vast majority of such matters do not result in the termination or discipline of the SBA employee being investigated."[4] (Bacon Decl. ¶ 4.) Ms. Brown's claim that her reputation was harmed because the investigation might have resulted in "criminal Federal prosecution" is undermined by the fact that Ms. Brown's referral to the OIG "did not allege a violation of the U.S. Criminal Code." (Jenkins Dep., Ex. 5 at 1.) Moreover, there is evidence that "investigations by the [OIG] are confidential and the information gathered therein is furnished solely on an official need-to-know basis." (Bacon Decl. ¶ 4.) This suggests that few, if any, of Ms. Brown's non-management colleagues (i.e., those individuals who allegedly avoided plaintiff so that management would not associate them with her) were even aware of the investigation.[5] Ms. Brown's speculation that there "inevitable [sic] are others" who knew of the investigation because it involved a "public scandal" is unsubstantiated. (Pl.'s Opp'n at 21-22.) Furthermore, there is no evidence that the investigation, which lasted just over two months and found that there was a "lack of evidence of any criminal violation," had any effect on Ms. Brown's conditions or terms of employment. See Velikonja v. Gonzales, 501 F. Supp. 2d 65, 73 (D.D.C.2007) (finding that investigation referral that "did not result in any additional disciplinary action, and thus ... ultimately had no practical consequence for [plaintiff's] employment" was not materially adverse). Similarly, the verbal "reprimand" received by Ms. Brown is not materially adverse. Again, plaintiff must adduce evidence that the instruction given to her would have deterred a "reasonable" employee from pursuing a discrimination claim. Burlington, 548 U.S. at 68, 126 S. Ct. 2405. Here, the "reprimand" Ms. Brown received was verbal, informal, and contained only instructions as to SBA procedures 193 regarding visitors. (Gentile Dep., Ex. 2.) There is no evidence that the instruction was placed in her file, carried any consequences, or had any effect on her employment. Indeed, the supervisor who gave Ms. Brown the instruction, Ms. Anderson, states that she was "not asked to reprimand" Ms. Brown and did not consider what she told plaintiff to be "a reprimand or a counseling, nor was it any form of disciplinary action." (EEO Affidavit of Rhonda Anderson ("Anderson Aff.") ¶ 4.) Ms. Brown argues that Ms. Anderson's state of mind is irrelevant (Pl.'s SMF ¶ B(61)), but Ms. Anderson's benign understanding of the instruction she gave suggests that a "reasonable" employee would not have been deterred by it. Moreover, even taking Ms. Brown's assertions as to "emotional distress" as true, the effects of the instruction on Ms. Brown do not constitute "objective" evidence that a "reasonable" employee would have been affected in the same way. Given the relatively mild nature of the instruction and the absence of any consequences to plaintiff as a result of it, there is nothing to suggest that it would have dissuaded a reasonable employee from complaining of discrimination. See Baloch, 550 F.3d at 1199 (where "[a] letter of counseling, letter of reprimand, and unsatisfactory performance review" contained "no abusive language, but rather job-related constructive criticism," letters were not materially adverse); Cochise v. Salazar, 601 F. Supp. 2d 196, 201 (D.D.C. 2009) ("Neither letters of counseling that contain job-related constructive criticism... nor warnings without attendant effects on employment, such as [defendant's] caution against dishonesty during the administrative investigation, are materially adverse employment actions."); Halcomb v. Office of Senate Sergeant-at-Arms of U.S. Senate, 563 F. Supp. 2d 228, 246-47 (D.D.C. 2008) (where plaintiff received counseling memorandum and written warning for refusal to perform tasks, neither "constituted an adverse employment action because they did not [a]ffect the plaintiff's employment"). B. Pretext But even if one were to assume arguendo that the investigation of Ms. Brown and the instruction she received constituted materially adverse acts (which they did not), plaintiff has not adduced evidence sufficient for a reasonable jury to conclude that the explanation proffered by the SBA for the investigation and the instruction were a pretext for retaliatory animus. The OIG investigation of plaintiff occurred nearly four years after the settlement of her earlier EEO claims against the SBA (Def.'s Mem. at 18), and thus there is a lack of a causal connection between these two events. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001) (alleged discriminatory action taken 20 months after protected act "suggests, by itself, no causality at all"). Moreover, there is substantial evidence to bolster the SBA's non-discriminatory explanation for its referral of plaintiff to the OIG. As such, plaintiff cannot meet her burden of persuasion to show that defendant's stated reasons for the investigation are pretextual, and summary judgment is appropriate. See Paquin, 119 F.3d 23, 27-28. Ms. Brown essentially advances four arguments in support of her claim that the SBA's explanation is pretextual: 1) the SBA knew that plaintiff did not engage in improper conduct prior to initiating the OIG investigation; 2) the SBA's arguments do not establish the truth of its explanation; 3) Mr. Jenkins insisted that the OIG investigation continue after Agent Bacon's interview of Ms. Brown; and 4) Ms. Brown was given a verbal instruction even though the OIG investigation did not 194 result in her referral for criminal prosecution. (Pl.'s Opp'n at 5, 12, 15, 16.) The Court will address each argument in seriatim. 1. The SBA Knew That Ms. Brown Did Not Engage in Improper Conduct Prior to the OIG Investigation Ms. Brown maintains that the SBA knew, prior to the initiation of the OIG investigation, that she had not engaged in any improper conduct and that, as such, their proffered explanations for the investigation are false. (Pl.'s Opp'n at 5.) She argues that the SBA employees who reported her behavior, either to supervisors or the OIG, knew or could have known that the investigation was "not justified." (Id. at 5-11.) a. Messrs. Caulfield and McHale Ms. Brown argues that although Mr. Caulfield and Mr. McHale considered her calls to be "unusual," they were unfamiliar with Ms. Brown's duties as a PCR and therefore should not have presumed her contact with Mr. Caulfield to be out of the ordinary. (Id. at 5-6.) The question before the Court, however, is not whether Mr. Caulfield's and Mr. McHale's classification of Ms. Brown's calls as "unusual" was justified or fair given a nuanced understanding of her job, but rather whether they reasonably believed plaintiff's contact with Mr. Caulfield to be abnormal and reported it pursuant to their understanding of SBA regulations obligating them to inform their supervisors of any "irregularities, either actual or suspected." Fischbach v. Dist. of Columbia Dep't of Corr., 86 F.3d 1180, 1183 (D.C.Cir.1996) ("Once the employer has articulated a non-discriminatory explanation for its action ... the issue is not `the correctness or desirability of the reasons offered ... but whether the employer honestly believes in the reasons it offers.'") (quoting McCoy v. WGN Cont'l Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992)); see also Pignato v. Am. Trans Air, Inc., 14 F.3d 342, 349 (7th Cir.1994) ("It is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or sensible. He must show that the explanation given is a `phony reason.'"). Here, if Mr. Caulfield and Mr. McHale reported Ms. Brown's conduct because they concluded they were required to do so under the SBA reporting regulation, whether they would have come to a different conclusion had they consulted Ms. Brown's standard operating procedures is immaterial. In his deposition, Mr. Caulfield stated that he found Ms. Brown's contact to be "unusual"[6] and "out of the ordinary" and that he understood that "any out-of-the-norm experience should be routed up to supervisory personnel so that a decision can be made as to whether or not [he] executed [his] duties properly." (Caulfield Dep. at 33-34; see also id. at 35 ("[W]hat is unusual is that a call would come into my office, specific to a particular circumstance involving a named company. Generally, I'm overseeing the process. I am not executing a specific program examination."). Mr. McHale also testified that he found Ms. Brown's calls as a PCR to Mr. 195 Caulfield in the HUBZone office to be "unusual." (McHale Dep. at 18 ("There's just no relationship between the program examination and the PCRs.... I don't know of any linkage between the PCRs [sic] responsibility or function and the program examination."). Plaintiff presents no evidence to suggest that these explanations are "phony" or otherwise untrue. Rather, she illogically argues that the failure of Messrs. Caulfield and McHale to familiarize themselves with the job requirements of the PCR position means that their explanation of their decision to report her conduct is untrue. (Pl.'s Opp'n at 6.) Yet, this failure actually militates against the inference of a discriminatory motive on the part of Mr. Caulfield and Mr. McHale because, lacking knowledge as to the official duties of a PCR, they would have no reason to think Ms. Brown was operating within the bounds of her position when she contacted Mr. Caulfield. See Hamilton v. Paulson, 542 F. Supp. 2d 37, 46 n. 7 (D.D.C.2008). And there is no evidence (or allegation) that Messrs. Caulfield or McHale were even aware of Ms. Brown's prior EEO complaints against and settlements with the SBA, events that occurred some four years prior to the events at issue. Nor is there any reason to suspect that either of these employees were motivated to retaliate against plaintiff because of her prior protected activity involving John Whitmore, who had left the SBA two years before these events occurred. b. Mr. Collins Ms. Brown contends that Mr. Collins "d[id] not state that [Ms. Brown's] actions [we]re improper, inappropriate, wasteful, fraudulent, or abusive" when he forwarded Mr. McHale's email to Ms. Hontz. (Pl.'s Opp'n at 6.) However, Mr. Collins stated in the email that he was not sure that Ms. Brown's "level of advocacy [wa]s good" and that it had the "potential of being embarrassing." (Hudson Dep., Ex. 5 at 1.) These statements suggest that Mr. Collins agreed with other SBA employees that Ms. Brown's behavior was, at best, out of the ordinary and, at worst, potentially harmful. Mr. Caulfield also told Agent Bacon during his interview with the OIG that "[b]oth Collins and [he] felt the contact was unusual enough to warrant the email to McHale." (Caulfield Dep., Ex. 1 (Caulfield interview memorandum).) Ms. Brown has adduced no evidence contradicting these statements or suggesting that Mr. Collins knew Ms. Brown's conduct was not improper at the time he reported it to Ms. Hontz. Moreover, as with Messrs. Caulfield and McHale, there is no evidence that Mr. Collins knew Mr. Whitmore or was aware of Ms. Brown's prior EEO activity. c. Ms. Hontz Ms. Brown maintains that Ms. Hontz "admitted that Plaintiff had not committed waste" and that "Plaintiff's call to Caulfield was not something that justified in [sic] referring to an IG's investigation." (Pl.'s Opp'n at 6-7.) As such, she argues that Ms. Hontz's explanation for referring Ms. Brown to the OIGthat Ms. Brown's actions were "serious enough" that it was necessary to refer the matteris untrue. (Id.) However, Ms. Hontz stated in her deposition that while she did not think that waste was an issue, she did suspect "abuse and potential fraud." (Hontz Dep. at 38.) Moreover, Ms. Hontz testified that it was the combination of Ms. Brown's unusual contact with Mr. Caulfield and her possible involvement with Mr. Baker's appearances in Ms. Hudson's office that led her to refer Ms. Brown. (Id. at 57, Ex. 1 ¶ 9.) There is no evidence suggesting that Ms. Hontz did not suspect abuse or fraud or that she did not reasonably rely on the reports from her subordinates that Ms. Brown's conduct was unusual. Ms. Brown's speculation that "the IG investigation was initiated by 196 Mr. Jenkins and Ms. Hontz in retaliation for Ms. Brown's discrimination complaints about Mr. Whitmore" is insufficient to counter Ms. Hontz's explanation regarding her decision to refer Ms. Brown.[7]See, e.g., Asghar v. Paulson, 580 F. Supp. 2d 30, 37 n. 15 (D.D.C.2008) ("Plaintiff's unsupported, personal speculation about the motivations of [defendant] is, without more, simply not enough to show pretext."). As such, there is no basis for a jury to conclude that Ms. Hontz, or the other employees who reported plaintiff's contact with Mr. Caulfield or Mr. Baker, were lying. See Brady, 520 F.3d at 495. Ms. Brown also alleges that the "public nature of the matter involving Shirlington Limousine ... imposed on SBA [the need] to take extra steps to ensure there was a substantial basis to initiate an IG investigation that would link Ms. Brown to the scandal" and that Ms. Hontz and Mr. Jenkins "failed to ask the necessary questions to determine if there was any credible evidence of fraud, waste, and abuse by Ms. Brown before taking the dramatic step of initiating the IG investigation." (Pl.'s Opp'n at 10.) Yet, plaintiff points to no evidence that Ms. Hontz and Mr. Jenkins had a duty to investigate Ms. Brown themselves before reporting her to the OIG. The SBA reporting regulation imposes no such obligation, and Ms. Hontz testified that it was because of the high-profile nature of the case and the fact of the federal investigation of SLT that she felt compelled to take the matter to the OIG rather than consult with Ms. Brown directly. (Hontz Dep. at 53-54.) There is no evidence to suggest that Ms. Hontz believed she had the option of speaking with Ms. Brown rather than referring her for investigation. There is, therefore, insufficient evidence for a reasonable jury to conclude that Ms. Hontz believed Ms. Brown's conduct to be normal and acceptable but reported her anyway. d. Mr. Jenkins Plaintiff alleges that Mr. Jenkins "never looked at the responsibilities and duties in relation to Ms. Brown and [SLT]" and that had he and others done so, he would have learned that Ms. Brown's contact with Mr. Caulfield "was not improper or inappropriate." (Pl.'s Opp'n at 11.) Again, however, the question before the Court is whether Mr. Jenkins actually believed that Ms. Brown's behavior was unusual and that reporting it was required, not whether Ms. Brown in fact acted properly. Fischbach, 86 F.3d at 1183. The fact that Mr. Jenkins was unaware of procedures that allegedly justified Ms. Brown's conduct supports the legitimacy of his belief that Ms. Brown was behaving unusually and/or without authorization. See Hamilton, 542 F.Supp.2d at 46 n. 7. Moreover, there is substantial evidence that far from ignoring information that would have justified Ms. Brown's conduct, Mr. Jenkins attempted to gather as much information as possible about plaintiff's acts through Mr. McHale and other subordinates before she was referred 197 to the OIG. (Jenkins Dep. at 25; McHale Dep. at 50, Ex. 7.) In light of this evidence, there is no basis to permit a jury to conclude that Mr. Jenkins is lying about his understanding that Ms. Brown's behavior was a matter of concern.[8]Brady, 520 F.3d at 495. e. Ms. Hudson Ms. Brown argues that Ms. Hudson "had no reasonable basis to assert that Plaintiff let Mr. Baker into the building." (Pl.'s Opp'n at 7.) Yet, Ms. Hudson testified that she believed Ms. Brown to be involved with Mr. Baker's appearance in her office because her secretary "told [her] specifically that [Ms. Brown] had attempted to get in touch with [her], and that she had a visitor or someone who wanted to speak to [her]" shortly before Mr. Baker arrived. (Hudson Dep. at 58.) And Ms. Brown concedes that she in fact did place a call to Ms. Hudson's secretary to tell her that Mr. Baker "would be coming by" and therefore was involved with Mr. Baker's visit. (Brown Dep. at 61.) Plaintiff has adduced no evidence to suggest that Ms. Hudson was not genuinely concerned about the situation with Mr. Baker and told Agent Bacon about her suspicion of plaintiff because she perceived a connection between Mr. Baker and Ms. Browna connection Ms. Brown admits existed. (Id.) Ms. Brown's contention that Ms. Hudson had "zero substantial evidence" and that her referral of plaintiff to the OIG "was based on suspicions" does not undermine the SBA's explanation for plaintiff's investigation, as the SBA reporting regulation clearly states that SBA employees must report any irregularity "either actual or suspected." 13 C.F.R. § 105.205. That Ms. Hudson's own investigation of Mr. Baker's appearances at her office did not fully resolve the issue is immaterial to whether Ms. Hudson suspected plaintiff's involvement and consequently reported her to OIG. Ms. Brown then contends that Ms. Hudson waited six months to speak with OIG and did so only "at the urging of Ms. Hontz and Mr. Jenkins." (Pl.'s Opp'n at 8-9.) Ms. Brown implies that Ms. Hudson's delay in reporting plaintiff to the OIG undercuts her alleged concern over the incident. However, Ms. Hudson stated that she decided to speak to the OIG once she became aware of the media coverage of Mr. Baker and his criminal record, an awareness that increased her concern regarding his visits. (Hudson Dep. at 14, 91, 96 ("[B]ased on that news coverage regarding Mr. Baker, I felt compelled to go to the IG's office and speak to them directly about my involvement with the protest.")). Plaintiff has adduced no evidence 198 to contradict Ms. Hudson's explanation, nor does she provide any evidence in support of her speculation that Ms. Hudson referred Ms. Brown only "at the urging" of Ms. Hontz and Mr. Jenkins. Absent any evidence to support her claims that Ms. Hudson was influenced by Ms. Hontz and Mr. Jenkins for retaliatory reasons, plaintiff cannot meet her burden of persuading a jury that Ms. Hudson's stated reason for reporting her to the OIG is a pretext. Morgan, 328 F.3d at 654. 2. The SBA's Arguments Are Unsupported By the Record Plaintiff attempts to show that the non-discriminatory reason for her investigation proffered by the SBA is false by highlighting a number of alleged inconsistencies and mischaracterizations in defendant's pleadings. (Pl.'s Opp'n at 12-14.) The Court finds that these arguments are insufficient to persuade a reasonable jury that the SBA's stated reason for the investigationthat its employees considered Ms. Brown's behavior "unusual" and reported it per SBA policyis "unworthy of credence." Desmond, 530 F.3d at 962 (internal quotations omitted). Four of Ms. Brown's points, however, bear further discussion. Ms. Brown first takes issue with defendant's statement that Ms. Hontz received "numerous reports" from subordinates regarding Ms. Brown's "unusual" advocacy of SLT, arguing that at most she received reports of two incidents. (Pl.'s Opp'n at 12.) Yet, Ms. Hontz received a forwarded email chain from Mr. Collins, indicating that at least six SBA employees were contacted either by Ms. Brown regarding SLT or by one of their subordinates regarding Ms. Brown. (Hudson Dep., Ex. 5.) Ms. Hontz was also aware of Ms. Hudson's concerns that Ms. Brown was involved with Mr. Baker's entry to her office. (Hontz Dep., Ex. 1 ¶ 9.) The SBA's characterization of the seven employees contacted by or concerned with Ms. Brown as "numerous" is insufficient to persuade a reasonable jury that defendant's proffered non-discriminatory reason is false. Ms. Brown then argues that the email chain received by Ms. Hontz regarding Ms. Brown's behavior also alleged "unusual" conduct by another SBA employee, Theodore Holloman. (Pl.'s Opp'n at 12.) Plaintiff maintains that Ms. Hontz's failure to refer Mr. Holloman to the OIG means that she "treated other employees ... more favorably in the same factual circumstances" than she treated Ms. Brown and that she was not simply following SBA policy when she reported Ms. Brown. Brady, 520 F.3d at 495. However, the record belies Ms. Brown's assertions. Nowhere in the email referenced by Ms. Brown are Mr. Holloman's actions described as "unusual," nor is there any indication that Mr. Holloman was a PCR or behaved in a similar manner to Ms. Brown. (Hudson Dep., Ex. 5 at 1.) Rather, the email states that Mr. Holloman spoke with Mr. McHale and reported a call he received from Ms. Brown regarding SLT. Indeed, Mr. Holloman appears to have acted consistently with the other SBA employees who felt that Ms. Brown's conduct was abnormal. There is nothing to indicate that Mr. McHale, Ms. Hontz, or any SBA employee believed that Mr. Holloman, in discussing Ms. Brown's behavior with Mr. McHale, acted unusually. Plaintiff suggests that Ms. Hontz had "contradictory reports from three different individuals as to the `unusual' nature of Plaintiff's contact to the HUBZone office" and that the "inconsistency of Ms. Hontz, Mr. Jenkins, Mr. McHale, and Mr. Caulfield [sic] explanations as to Ms. Brown's actions is sufficient to create a genuine dispute of material fact." (Pl's Opp'n 13.) 199 The Court disagrees. It is unclear as to what "inconsistency" Ms. Brown refers, since she fails to provide any cites to the record. However, the evidence shows that Mr. Jenkins, Mr. McHale, Ms. Hontz, and Mr. Caulfield all believed that Ms. Brown's contact with the HUBZone Office was "unusual." (McHale Dep. at 18; Hontz Dep., Ex. 1 ¶¶ 9, 15; Caulfield Dep. at 34.) This evidence is consistent with the SBA's position that its employees believed Ms. Brown's behavior to be abnormal and reported it as such. Finally, Ms. Brown attacks the SBA's characterization of Ms. Hudson's referral of Ms. Brown to the OIG as "reasonable" because the OIG investigation produced "zero evidence that Ms. Brown assisted Mr. Baker into the SBA Headquarters and is based on the assumption that because Ms. Brown and Mr. Baker are two African Americans they must be `acquaintances' and accomplices." (Pl.'s Opp'n at 14.) While "an error too obvious to be unintentional" might show that Ms. Hudson's stated reason for reporting plaintiff is false, Fischbach, 86 F.3d at 1183, that is not the case here. To the contrary, the OIG investigation established that Ms. Brown actively assisted Mr. Baker in entering the SBA building, as plaintiff admitted during her interview with Agent Bacon that she "did call and ask someone to allow Baker into the building." (Brown Dep., Ex. 5 at 2.) Ms. Hudson's suspicions that Ms. Brown was somehow involved with Mr. Baker's entry to her office were thus confirmed. As such, the results of the OIG investigation fail to support plaintiff's argument that Ms. Hudson's concerns about Ms. Brown were unfounded or racially motivated. 3. Mr. Jenkin's Request For a Continuation of the OIG Investigation Ms. Brown next argues that a jury could find that Mr. Jenkins' proffered explanation for his request that the OIG continue its investigation of plaintiff was false. (Pl.'s Opp'n at 15.) As described above, Mr. Jenkins suggested that the initial memorandum to file authored by Agent Bacon was an "incomplete review of the facts" because "[i]nterviews were not conducted with staff in the Office of HUBZone or Washington District Office" and "it [was] unclear if Lara Hudson was contacted for this review." (Jenkins Dep., Ex. 4.) Ms. Brown contends that the "initial report clearly stated that Agent Bacon had obtained a statement and information from Ms. Hudson" and that this undermines Mr. Jenkins' non-retaliatory explanation for the continued investigation. (Pl.'s Opp'n at 15.) Ms. Brown is correct that the ROI authored by Agent Bacon and dated July 25, 2006, indicates that Ms. Hudson was interviewed by the OIG in connection with Ms. Brown's review. (Jenkins Dep., Ex. 5.) However, Mr. Jenkins requested the continuation of Ms. Brown's investigation a month earlier, on June 23, 2006, based only on his review of Agent Bacon's interview of Ms. Brown. (Jenkins Dep., Ex. 4.) On June 19, 2006, Agent Bacon sent Mr. Jenkins the "Memorandum of Interview for Malda Brown,"[9] which he stated was "conducted as a result of information provided to us by Lara Hudson of OGC." (Id.) Nothing in this email, or in the Memorandum of Interview of Ms. Brown, states that Ms. 200 Hudson was contacted pursuant to the OIG's review of Ms. Brown's case. Agent Bacon notes only that the review was initiated based on information from Ms. Hudson, not that she had been interviewed. (Id.) As such, Mr. Jenkins' statement that "it [was] unclear if Lara Hudson was contacted" for the review is not obviously contradicted by the information in his possession at the time he requested the continued investigation. Accordingly, there is no evidence to permit a jury to find that Mr. Jenkins' proffered reason for his demand for further review was untrue or the result of retaliatory intent. 4. Ms. Brown's Verbal Instruction Ms. Brown asserts that a jury could find that the verbal instruction plaintiff received was the "product of discriminatory animus" because the OIG investigation "found no reasonable basis to conclude Ms. Brown was involved in assisting Mr. Baker into the building."[10] Yet, as discussed, the OIG investigation concluded, and Ms. Brown admitted in her deposition, that she "made a phone call and told [Ms. Green] that [Mr. Baker] would be coming by to try to drop off a package." (Brown Dep. at 61.) It was this very conduct that Ms. Gentile asked Ms. Anderson to address. (Gentile Dep., Ex. 2 ("[P]lease give Malda Brown verbal instruction that she should not have contacted SBA Headquarters staff to request assistance in providing Mr. Baker ... access to the SBA Headquarters building if she had not planned to accompany him[.]"); see also Jenkins Dep. at 20-21 ("I basically told [Ms. Gentile] that she needed to contact Malda's supervisor to have her instruct Malda that under no circumstance in the future is she to let someone gain access to our secure space unless she's the person receiving them.") There is no inconsistency between the evidence adduced during the OIG investigation and the instruction provided to Ms. Brown. There is simply no basis to allow a jury to conclude that the SBA is "lying" about why it felt it necessary 201 to instruct Ms. Brown as to SBA procedures regarding visitors, given Ms. Brown's admission. Brady, 520 F.3d at 495. CONCLUSION For the foregoing reasons, the Court grants defendant's motion for summary judgment. A separate Order will accompany this Memorandum Opinion. NOTES [1] Contrary to plaintiff's argument (see Pl.'s Mem. of P. & A.'s in Opp'n to Def.'s Mot. for Summ. J. ["Pl.'s Opp'n"] at 3-4), if a defendant also disputes the existence of a "materially adverse" action, in addition to providing non-discriminatory reasons for that action, courts may choose to address that issue before proceeding to the question of whether the plaintiff has produced enough evidence to show that the actions were retaliatory. See Baloch, 550 F.3d at 1198-1200 (engaging in adversity inquiry first). [2] Ms. Brown alleges in her complaint that the SBA retaliated against her when SBA employees 1) made false and defamatory statements about her; and 2) improperly subjected her to an OIG investigation. (Compl. ¶ 32.) However, Ms. Brown does not summarize or identify the alleged defamatory and false statements, and her opposition brief discusses only statements made in the context of the OIG investigation. (See Pl.'s Opp'n at 6, 8.) As such, the Court considers the events comprising the OIG investigation, including any allegedly false and defamatory statements, collectively. [3] Ms. Brown maintains that the SBA's asserted explanation for its investigation is that there was "`substantial evidence' that [Ms. Brown] committed fraud, waste and abuse by communicating with the HUBZone office and by allegedly granting Mr. Baker access to SBA Headquarters." (Pl.'s Opp'n at 1.) However, defendant clearly states that its decision to investigate Ms. Brown stemmed from independent reports of her "unusual" behavior, and that the reports were made pursuant to an agency regulation directing employees to report any "irregularities, either actual or suspected." (Def.'s Mem. at 28, 32.) The Court proceeds by reviewing the evidence in light of "the [SBA]'s asserted non-discriminatory reason" for the investigation, not Ms. Brown's inaccurate characterization of the reasons for the investigation. Brady, 520 F.3d at 494. [4] In contrast, in Rattigan III, on which Ms. Brown relies in her opposition, there was third-party evidence that the investigation to which plaintiff was subjected was "a very serious allegation with potentially devastating effects" on plaintiff's career. Rattigan III, 604 F.Supp.2d at 54. In that case, the record suggested that the "investigation of [the plaintiff] as a security risk [wa]s a very serious matter that could derail his career, possibly even if the investigation was unsubstantiated." (Id.) Here, there is no evidence that the OIG investigation posed a similar threat, or any threat at all, to Ms. Brown. [5] Ms. Brown contends that an August 24, 2009 letter from defendant's counsel suggests that the "IG report is readily accessible to SBA staff and, accordingly, the repeated allegations contained in the various statements continue to be available to co-workers and management." (Pl.'s Opp'n at 21.) In fact, the letter in question concerns a report from an investigation conducted by Agent Bacon in the course of a separate OIG investigation of Ms. Brown that took place in 2007. (Pl.'s Opp'n, Ex. I at 5 (Aug. 24, 2009 letter)) ("The document at issue is a Memorandum of Interview by Peter Benoit conducted by Agent Lee Bacon of the SBA's [OIG] in the course of an unrelated investigation in 2007.") The letter makes no mention of the IG report at issue in this case. Furthermore, the letter maintains only that defense counsel's use of the 2007 report during the instant litigation did not violate the Privacy Act. (Id. at 1-4.) Nowhere does the letter support Ms. Brown's contention that IG reports are available to Ms. Brown's co-workers and management. Indeed, there is contrary evidence suggesting that such reports are not "readily accessible" to anyone, are maintained as confidential, and are furnished "solely on an official need-to-know basis." (Bacon Decl. ¶ 4.) [6] Ms. Brown maintains that Mr. Caulfield's characterization of her contact with him was "disparaging." (Pl.'s Opp'n at 6.) Again, however, the Court looks not to whether Mr. Caulfield's assessment was fair or even correct, but whether he believed it to be true. Fischbach, 86 F.3d at 1183. Here, there is no evidence to suggest that Mr. Caulfield made his remark in order to vilify or denigrate Ms. Brown. Rather, Mr. Caulfield stated that it was "not [his] experience in interacting with [PCRs] that they would advocate on behalf of a specific company." (Caulfield Dep. at 28.) While he personally did not "think [her calls were] inappropriate," he understood that he was obligated to report any "out-of-the-norm experience." (Id. at 33.) [7] Ms. Brown presents no evidence as to why Ms. Hontz would want to retaliate against her. The complaint alleges that "Ms. Hontz is a personal friend of John Whitmore" and that she "was aware of that [sic] Plaintiff had prior EEO complaints involving Mr. Whitmore." (Compl. ¶ 17.) Yet, Ms. Hontz testified that she last met with Mr. Whitmore "[s]ix years ago" and that Mr. Whitmore told her nothing about Ms. Brown. (Hontz Dep. at 56.) There is no evidence that Ms. Hontz was influenced by Mr. Whitmore and was thus "determined to punish Plaintiff." (Pl's. Opp'n at 10). The mere possibility that Ms. Hontz's action was retaliatory is not sufficient to show that her explanation is pretextual. See Vickers v. Powell, 493 F.3d 186, 196 (D.C.Cir.2007). ("The mere possibility of an allegation of [retaliation] without supporting evidence does not create a presumption of illegality against [defendant's action]."). [8] As with Ms. Hontz, plaintiff presents no evidence to support her allegation that Mr. Jenkins wanted to retaliate against her for her complaints against Mr. Whitmore. Plaintiff alleges that Mr. Jenkins "had worked with John Whitmore and had participated, on behalf of management, in the process of attempting to resolve the prior EEOC claims of Plaintiff." (Compl. ¶ 18.) However, mere knowledge of Ms. Brown's protected acts is not sufficient to allow a jury to infer that Mr. Jenkins' acts were motivated by retaliation. See, e.g., Barry v. U.S. Capitol Guide Bd., 636 F. Supp. 2d 95, 106-07 (D.D.C.2009) ("[T]o defeat a motion for summary judgment, the plaintiff must submit proof beyond mere knowledge about protected activity and speculation that [defendant] harbored retaliatory animus against the plaintiff because `[c]onclusory allegations unsupported by factual data [do] not create a triable issue of fact.'") (quoting Exxon Corp. v. F.T.C., 663 F.2d 120, 126-27 (D.C.Cir. 1980)). Plaintiff presents no evidence, direct or circumstantial, that Mr. Jenkins desired to retaliate against her, and Mr. Jenkins testified that he has spoken with Mr. Whitmore only once since his retirement in 2004 and that he has never spoken to Mr. Whitmore regarding Ms. Brown. (Jenkins Aff. ¶¶ 4-5.) On the basis of such evidence, a reasonable jury could not infer a retaliatory motive on the part of Mr. Jenkins. [9] The Brown Memorandum of Interview was "initially prepared as a Memo to the File" and was "transferred without modification" on July 3, 2006, to the form in which it was presented to the Court. (Brown Dep., Ex. 5 at 2.) Mr. Jenkins' discussion of the "memo to file" in his email to Agent Bacon thus refers to the Brown Memorandum of Interview. (Jenkins Dep., Ex. 4.) [10] Ms. Brown also asserts that a jury could find the instruction to be retaliatory because it was given to her a mere six weeks after she gave notice to the EEO office of the retaliation claim at issue in this case. (Pl.'s Opp'n at 17.) Ms. Brown did not raise this claim in her complaint. Rather, she stated that the OIG investigation was "a direct and proximate result of filing prior EEO complaints of discrimination and a direct and proximate result of having had to settle the previous EEO complaints with plaintiff." (Compl. ¶ 32.) Ms. Brown's complaint makes no mention of the verbal instruction, and there is no suggestion that any part of the investigation or the instruction resulted from Ms. Brown's EEO office contact regarding the instant case. Given that plaintiff's opposition is the first mention of this claim and there is no indication that Ms. Brown exhausted her administrative remedies with respect to this allegation or that discovery was conducted on this issue, the Court declines to consider Ms. Brown's verbal instruction as a separate claim of retaliation at this stage. See Dickerson v. SecTek, Inc., 238 F. Supp. 2d 66, 83 (D.D.C.2002) ("An opposition to a summary judgment motion is not the place for a plaintiff to raise new claims."); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002) ("Each discrete discriminatory act starts a new clock for filing charges alleging that act" and "[t]he charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred."); Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C.Cir. 1985) ("[A] timely administrative charge is a prerequisite to initiation of a Title VII action in the District Court."). The Court considers the verbal instruction only to the extent it can be regarded as part of the overall OIG investigation. However, even if Ms. Brown's claim with respect to the instruction had been asserted in a timely manner, it could not survive summary judgment. As the Court concluded above, the verbal instruction given to Ms. Brown did not constitute an adverse employment action. Therefore, that action could not have served as the basis for a retaliation claim.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2484120/	674 F. Supp. 2d 122 (2009) Anthony MARTIN, Plaintiff, v. UNITED STATES MARSHALS SERVICE et al., Defendants. Civil Action No. 09-0169(EGS). United States District Court, District of Columbia. December 11, 2009. 123 Anthony Martin, Las Vegas, NV, pro se. David Cotter Rybicki, U.S. Attorney's Office, Washington, DC, for Defendants. MEMORANDUM OPINION EMMET G. SULLIVAN, District Judge. This civil action filed pro se, arises from plaintiff's participation in the United States Marshals Service's Witness Security Program ("WSP"). In addition to the Marshals Service, plaintiff sues WSP Chief Thomas E. Wight, the United States Department of Justice, former Attorneys General Michael Mukasey and Alberto R. Gonzales, the Federal Bureau of Investigation, former FBI Director Robert Mueller, the United States Department of Homeland Security and former Homeland Security Secretary Michael Chertoff. Invoking the Constitution and common law, plaintiff claims that defendants' failure to prevent disclosure of his "real identity," Compl. at 2, "jeopardiz[ed] his life," id. at 4. Defendants move to dismiss the complaint under Federal Rule of Civil Procedure 124 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim or for summary judgment under Rule 56. Defendants also move as an alternative to transfer the contract claim to the United States Court of Federal Claims. Upon consideration of the parties' submissions and the entire record, the Court will grant defendants' motion to dismiss and will dismiss the common law claims under Rule 12(b)(1) and the constitutional claims under Rule 12(b)(6). I. BACKGROUND The relevant facts are as follows. Plaintiff entered the WSP on February 13, 1992, and assumed the name Anthony Lee Martin. Compl. at 2. He voluntarily left the program on July 15, 1992. Id. Following the events of September 11, 2001, plaintiff contacted "his old F.B.I. handler and requested to go back and work as an informant to infiltrate terrorists and assist the United States." Id. He worked undercover for the FBI as a driver for the Las Vegas Taxicab Authority. Id. at 3. In 2004, while responding to plaintiff's call to report "a man . . . wielding a knife in a threatening manner on a business premises," an officer of the Las Vegas Metropolitan Police Department "ran Plaintiff's I.D. through his police car computer system . . . informed [] Plaintiff that he was not Tony Martin but Lee McKnight and took [plaintiff's] driver's license." Compl. at 3. Plaintiff contacted the Marshals Service in Las Vegas, which referred him to the Los Angeles office. Nearly four months later, plaintiff received a birth certificate bearing his assumed name and later received a "DD-214 certificate of release or discharge from active duty," also bearing his assumed name. Def.'s Statement of Material Facts Not in Genuine Dispute ¶ 6. A deputy U.S. marshal in the Los Angeles office allegedly told plaintiff that his identity was probably breached when the Las Vegas Taxi Authority fingerprinted him in 2001 for his driver's permit. Id. at 4. By letter of August 11, 2008, plaintiff informed the Marshals Service Director about the identity breach, to which defendant Wight responded by letter of September 30, 2008. Compl. Ex. A. Wight reminded plaintiff that the Memorandum of Understanding he had signed "states very clearly that Government protected witnesses will not act as informants" and warned against "being fingerprinted, as doing so will cause their identity to be compromised." Id. Wight further informed plaintiff to contact the U.S. Attorney's office or his case agent if he felt that his life was in danger and the FBI "[i]f you cooperated with" that department. Id. Plaintiff commenced this civil action on January 29, 2009, advancing the following seven claims for relief: (1) First Amendment Violation, (2) Eighth Amendment Violation, (3) Fourteenth Amendment Violation, (4) Breach of Contract, (5) Breach of an Oral Agreement, (6) Defamation Per se, Libel Per se, (7) Invasion of Privacy/False Light. Compl. at 7-9. He seeks monetary damages of $6 million from each defendant. II. DISCUSSION 1. Subject Matter Jurisdiction Defendants assert that the Court lacks subject matter jurisdiction because plaintiff's claims are statutorily barred. Defs' Mem. of P. & A. at 7-8. The statute upon which defendants rely shields the United States and its officers and employees from "any civil liability on account of any decision to provide or not to provide protection under this chapter." 18 U.S.C. § 3521(a)(3). Defendants are correct only with respect to plaintiff's breach of contract 125 claims, inasmuch as "[s]ection 3521(a)(3) establishes that no contractual obligation, express or implied, can ever arise out of a promise made in connection with the WSP." Austin v. U.S., 51 Fed. Cl. 718, 719-20 (Fed.Cl.2002). The remaining tort and constitutional claims do not arise from decisions about plaintiff's protection but rather from the alleged failure of defendants to protect his identity after he had left the WSP. The Court therefore does not find those claims foreclosed by § 3521. As discussed next, however, the Court does find the common law tort claims foreclosed by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680. With regard to the common law claims (Counts 4-7), the United States Attorney, serving as the Attorney General's delegate, has certified pursuant to 28 U.S.C. § 2679(d) that the individual defendants "were acting within the scope of their employment as employees and officers of the United States at the time of the alleged incidents." Defs' Ex. 1 [Dkt. No. 9-3]. The alleged facts do not establish the individual defendants' personal involvement in the disclosure of plaintiff's identity, nor do they show that any one defendanteach of whom was a high-level agency official at the timeacted outside the scope of his employment.[1] Pursuant to § 2679(d)(1), then, the Court deems the common law tort claims to be against the United States and substitutes the United States as the party-defendant. See Wuterich v. Murtha, 562 F.3d 375, 380-81 (D.C.Cir.2009) ("Upon the Attorney General's certification, the federal employee is dismissed from the case and the United States is substituted as the defendant in place of the employee," absent sufficient facts establishing "that the defendant['s] actions exceeded the scope of his employment[.]") (brackets in original) (internal quotation marks and citations omitted). The FTCA authorizes the bringing of a damages lawsuit against the United States but with conditions. The statute provides in relevant part that [a]n action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and [the] claim shall have been finally denied by the agency in writing and sent by certified or registered mail. 28 U.S.C. § 2675(a). The exhaustion of administrative remedies is a prerequisite to filing an FTCA lawsuit in federal court. See Simpkins v. District of Columbia, 108 F.3d 366, 370-71 (D.C.Cir.1997); GAF Corp. v. United States, 818 F.2d 901, 917-20 (D.C.Cir.1987); Jackson v. United States, 730 F.2d 808, 809 (D.C.Cir.1984). Plaintiff has not shown that he exhausted his administrative remedies with DOJ, of which the Marshals Service and the FBI are components. The Court therefore is deprived of subject matter jurisdiction over the common law tort claims. See Abdurrahman v. Engstrom, 168 Fed.Appx. 445, 445 (D.C.Cir.2005) (per curiam) ("[T]he district court properly dismissed 126 case [based on unexhausted FTCA claim] for lack of subject matter jurisdiction."). 2. Failure to State a Claim A court may dismiss a complaint on the ground that it fails to state a claim upon which relief can be granted if, assuming the alleged facts to be true and drawing all inferences in the plaintiff's favor, it appears that the plaintiff can prove no facts "consistent with the allegations in the complaint" to support the alleged violation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 550 U.S. at 555, 127 S. Ct. 1955 (citations omitted); accord Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). Plaintiff's constitutional claims (Counts 1-3) fail for three basic reasons. First, the alleged facts do not in any way support plaintiff's claim that he was "denied free speech." Compl. at 7. Second, the Eighth Amendment's proscription against "cruel and unusual punishment," id., "has no application" until "there ha[s] been [a] formal adjudication of guilt[.]" City of Revere v. Massachusetts General Hosp. 463 U.S. 239, 244, 103 S. Ct. 2979, 77 L. Ed. 2d 605 (1983). Nothing in the complaint indicates that plaintiff is or was incarcerated or under custody for a conviction at times relevant to the complaint. Third, the Fourteenth Amendment, Compl. at 8, is inapplicable to the federal government and the alleged facts do not state a claim under the "equal protection component of the Due Process Clause of the Fifth Amendment." Iqbal, 129 S.Ct. at 1948. See id. at 1948-49 ("Where the claim is invidious discrimination in contravention of the . . . Fifth Amendment[] . . . the plaintiff must plead and prove that the defendant acted with discriminatory purpose. . . on account of [plaintiff's] race, religion, or national origin.") (citations omitted); Women Prisoners of the D.C. Dep't of Corr. v. District of Columbia, 93 F.3d 910, 924 (D.C.Cir.1996) (the equal protection clause protects against the government's treating individuals differently from another similarly situated individual or group). For the foregoing reasons, defendants' motion to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) is granted. A separate Order accompanies this Memorandum Opinion. NOTES [1] Plaintiff's claim that "Gonzales, Muller and Chertoff personally conspired to expose [him when he] was no longer a useable informant," Pl's. Opp'n [Dkt. No. 14] at 2, is simply incredulous. Cf. Tooley v. Napolitano, 586 F.3d 1006, 1010 (D.C. Cir.2009) (summarizing among "allegations . . . that district courts have dismissed for patent insubstantiality" those claiming "a campaign of surveillance and harassment deriving from uncertain origins" and unsubstantiated conspiracies) (citations omitted).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2485975/	680 F.Supp.2d 1378 (2010) Kye GISCOMBE, Plaintiff, v. ABN AMRO MORTGAGE GROUP, INC.; Citimortgage, Inc.; Wells Fargo Bank, N.A.; and Does 1 through 50, inclusive, Defendants. Civil Action No. 1:09-cv-2037-TCB. United States District Court, N.D. Georgia, Atlanta Division. January 22, 2010. 1379 Irene Kim, Holly Geerdes, Geerdes and Kim, LLC, Duluth, GA, for Plaintiff. Darren E. Gaynor, William J. Holley, II, Parker Hudson Rainer & Dobbs, Atlanta, GA, David Alan Mobley, David C. Newman, Smith Gambrell & Russell, Atlanta, GA, for Defendants. ORDER TIMOTHY BATTEN, SR., District Judge. This matter is currently before the Court on Defendants ABN Amro Mortgage Group, Inc. and Citimortgage, Inc.'s motion for a more definite statement and to dismiss Plaintiffs complaint [4] and supplemental motion to dismiss [25] and Defendant Wells Fargo Bank, N.A.'s motion to dismiss [5] and supplemental motion to dismiss [26]. I. Background[1] In January 2007, Giscombe purchased property located at 2804 Clearwater Terrace, Conyers, Georgia 30013 for $243,000. Defendant ABN Amro Mortgage Group, Inc., which is now Citimortgage, Inc., loaned Giscombe $194,400 and $48,600 to purchase the property. The $194,400 loan provided for a fixed interest rate of 6.125% for thirty years with a monthly payment of $1,181.19. The $48,600 loan provided for a fixed interest rate of 9.530% with interestonly payments for 179 months followed by a balloon payment of $39,247.88. Plaintiff alleges that in May 2007 he was induced by Wells Fargo Bank, N.A. to refinance his second mortgage for $100,000 with a 7% fixed interest rate. The current outstanding balances are approximately $210,311 on the first loan and approximately $125,000 on the second. On June 19, 2009, Giscombe filed his original complaint [1] in the Superior Court of Rockdale County, asserting common law claims for fraud, fraud in the inducement, conversion, quiet title, and interlocutory injunctive relief as well as statutory claims for violations of the Georgia Uniform Deceptive Trade Practices Act, the Georgia Residential Mortgage Act, and the Georgia Fair Business Practices Act. On July 27, 2009, ABN and Citimortgage, with the consent of Wells Fargo, removed the case to this Court. On August 3, 2009, ABN and Citimortgage filed a motion for more definite statement and to dismiss [4], in which they assert that (1) Giscombe's complaint is an impermissible shotgun pleading; (2) the complaint fails to 1380 state a claim upon which relief can be granted because he fails to allege sufficient facts; (3) Giscombe's Georgia Uniform Deceptive Trade Practices Act, Georgia Residential Mortgage Act, fraud, and fraud in the inducement claims are premised on fraudulent misrepresentations and are not pled with the specificity required by FED. R.CIV.P. 9(b); (3) the quiet title and conversion claims fail because they are dependent on a viable fraud claim, which Giscombe fails to plead; and (4) the statutory claims are deficient because he either fails to allege practices prohibited by the statutes or requests relief not available under the statutes. Wells Fargo also filed a motion to dismiss [5] on August 3, 2009, in which it asserts that (1) Giscombe's complaint fails to state a claim upon which relief could be granted because it is critically devoid of specific facts; (2) Giscombe's claims based on fraudulent misrepresentations are not pled with the specificity required by FED. R.CIV.P. 9(b); and (3) Giscombe's complaint is an improper shotgun pleading and he should be ordered to replead. Giscombe separately opposed ABN and Citimortgage's motion to dismiss or replead and Wells Fargo's motion to dismiss but argued in both that he pled with the requisite particularity under FED.R.CIV.P. 8 and 9(b), and that he should be permitted replead his complaint to clarify the basis of any claim. He further argued that the Georgia Residential Mortgage Act necessarily authorized a private cause of action because Georgia courts have allowed claims under it to survive motions to dismiss, ruling instead on motions for summary judgment. Giscombe opposed dismissal of his Fair Business Practices Act claim, maintaining that certain acts within the residential mortgage context, such as the ones alleged here, are subject to the provisions of that act, despite the act's general exemption for the residential mortgage industry. Giscombe also defended the validity of his Uniform Deceptive Trade Practices Act, arguing that the statute supports an action by an individual who has suffered an injury due to the deceptive trade practice of another. On December 9, 2009, the Court issued an order [23] finding Giscombe's complaint to be an impermissible shotgun pleading. However, the Court declined to dismiss the complaint, opting instead to direct Giscombe to replead his complaint so that it was not a shotgun pleading. The Court notified Giscombe that failure to file a proper complaint could result in dismissal. Finally, the Court reserved judgment as to the merits of the alternate reasons for dismissal asserted by ABN, Citimortgage, and Wells Fargo in their motions to dismiss Giscombe's complaint, but indicated that it would revisit them upon submission of Giscombe's amended complaint. On December 22, 2009, Giscombe filed his amended complaint [24]. In addition to the claims asserted in his original complaint, Giscombe asserted four new claims: defamation, violations of the Real Estate Settlement Procedures Act, violations of the Truth in Lending Act, and civil conspiracy (as between ABN and Citimortgage). On January 8, 2010, ABN and Citimortgage filed a supplement to their original motion dismiss [25], contending that the amended complaint is still an impermissible shotgun complaint and seeking to dismiss the four new claims asserted against them in the amended complaint. Also on January 8, 2010, Wells Fargo filed a supplemental motion to dismiss [26], addressing the new claims against it and renewing its request that all counts be dismissed. II. Discussion The Court must determine whether: (1) Giscombe eliminated the deficiencies of his previous shotgun pleading, and (2) if so, 1381 whether the complaint should be dismissed for the other reasons asserted by ABN, Citimortgage, and Wells Fargo in their motions to dismiss. A. Legal Standard The sufficiency of Giscombe's amended complaint depends on whether it is a shotgun pleading; if so, it will fall short of the pleading requirements of FED.R.CIV.P. 8. Magluta v. Samples, 256 F.3d 1282, 1284-85 (11th Cir.2001) (holding that a shotgun pleading is "in no sense the `short and plain statement of a claim' required by Rule 8 of the Federal Rules of Civil Procedure."). The defining characteristic of a shotgun complaint is that it fails "to identify claims with sufficient clarity to enable the defendant to frame a responsive pleading." Beckwith v. Bellsouth Telecomms., Inc., 146 Fed.Appx. 368, 371 (11th Cir.2005). In describing the nature of a shotgun pleading, the Eleventh Circuit has noted that "[t]he typical shotgun complaint contains several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions." Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir.2002); see also Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir.2006) ("Shotgun pleadings are those that incorporate every antecedent allegation by reference into each subsequent claim for relief or affirmative defense."). In addition to making it difficult to ascertain the factual allegations that correspond to each claim, shotgun pleadings also fail to specify which defendant is responsible for each act alleged. Beckwith, 146 Fed.Appx. at 373 ("It is virtually impossible to ascertain what factual allegations correspond with each claim and which claim is directed at which defendant."); see also Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir.1991) (dismissing shotgun complaint that made "factual allegations that could not possibly be material to any of the causes of action."). B. Analysis Giscombe's amended complaint fails to remedy the deficiencies of his original complaint. It remains a shotgun pleading and clearly violates FED.R.CIV.P. 8(a)(2)'s direction that the pleading provide a "short and plain statement" of his claims and FED.R.CIV.P. 8(d)(1)'s direction that each allegation "be simple, concise, and direct." In its order directing Giscombe to replead, the Court specifically instructed him to specify which Defendants were responsible for each act alleged and which acts supported each cause of action. Giscombe has not complied with this instruction and has otherwise failed to properly re-cast his pleading. While Giscombe makes some attempt to ascribe certain acts or omissions to each Defendant, he still ascribes a majority of the alleged acts or omissions to every Defendant. Giscombe's substitution of the phrase "ABN, Citi, and Wells Fargo" for the collective "Defendants" does not remedy this deficiency. Giscombe's failure to differentiate the conduct of Defendants constitutes non-compliance with the Court's instruction to specify which Defendant is responsible for each act alleged. Furthermore, Giscombe's amended complaint fails to comply with the Court's instruction that he clarify which specific acts support each cause of action. As in his original complaint, Giscombe's amended complaint incorporates into each count all of the preceding counts and allegations, and for some counts, he inexplicably incorporates paragraphs 64-117, which represent Giscombe's first and second causes of action and the first paragraph of his third 1382 cause of action. In addition, Giscombe seems to equate length with clarity, as his amended complaint is sixty pages longer than his original complaint. However, significant portions of the amended complaint consist of generalized allegations about the mortgage industry that bear no relation to Giscombe or the transaction at issue in this case, and Giscombe unnecessarily repeats large portions of his complaint. Giscombe has thus failed to distinguish completely among Defendants, to clarify which allegations correspond to each cause of action, and to remove superfluous allegations. Rather, he adds approximately sixty more pages and further obfuscates the alleged wrongful conduct of Defendants and the relief he seeks. The combined effect of these deficiencies is that Giscombe's amended complaint does not "identify claims with sufficient clarity to enable the defendant to frame a responsive pleading" and makes it unduly difficult "to ascertain what factual allegations correspond with each claim and which claim is directed at which defendant." Beckwith, 146 Fed.Appx. at 371, 373. Moreover, Giscombe's amended complaint directly contradicts the spirit and words of FED.R.CIV.P. 8, which demands that Giscombe's complaint contain "a short and plain statement" of his claims and "be simple, concise, and direct." Gordon v. Green, 602 F.2d 743, 745-46 (5th Cir.1979) (dismissing the plaintiffs verbose pleadings because they violated Rule 8). Giscombe's amended complaint is therefore an impermissible shotgun pleading and violates FED.R.CIV.P. 8. The Court's previous order specifically provided that if Giscombe filed another shotgun complaint, the Court would consider his failure to submit an adequate pleading willful and in bad faith and would accordingly impose sanctions, including dismissal of his complaint.[2] Having found Giscombe's latest complaint to constitute a shotgun pleading, the Court will dismiss with prejudice Giscombe's amended complaint. In light of the nature of Giscombe's pleading, the Court finds it unnecessary to reach the other grounds for dismissal urged in ABN and Citimortgage's and Wells Fargo's motions to dismiss. III. Conclusion For the foregoing reasons, the Court GRANTS ABN and Citimortgage's motions to dismiss [4, 25] and GRANTS Wells. Fargo's motions to dismiss [5, 26]. The Clerk is DIRECTED to close this case. NOTES [1] Because the matter is before the Court on a motion to dismiss, the Court takes the factual allegations of the complaint as true. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir.1994). [2] "[I]f, in the face of a shotgun complaint, the defendant does not move the district court to require a more definite statement, the court, in the exercise of its inherent power, must intervene sua sponte and order a repleader. Implicit in such instruction is the notion that if the plaintiff fails to comply with the court's orderby filing a repleader with the same deficiencythe court should strike his pleading or, depending on the circumstances, dismiss his case and consider the imposition of monetary sanctions." Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir.2001) (footnote omitted); see also Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.2001) (suggesting that it is sufficient to give a plaintiff who has filed a shotgun pleading one chance to replead correctly).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2485977/	680 F.Supp.2d 1347 (2010) Leonardo FRANQUI, Petitioner, v. State of FLORIDA, Respondent. Case No. 07-22384-CIV. United States District Court, S.D. Florida. January 28, 2010. 1349 Martin J. McClain, Wilton Manors, FL, Mary Catherine Bonner, Ft. Lauderdale, FL, for Petitioner. Sandra Sue Jaggard, Attorney General Office, Miami, FL, for Respondent. ORDER DENYING PETITIONER'S AMENDED MOTION FOR CERTIFICATE OF APPEALABILITY K. MICHAEL MOORE, District Judge. THIS MATTER came before the Court upon Petitioner's Amended Motion for Certificate of Appealability. 1350 UPON CONSIDERATION of the Motion, the Response, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order. I. BACKGROUND This Court denied Petitioner Leonardo Franqui's ("Franqui") Motion for Certificate of Appealability in an Order dated December 15, 2008 (dkt. # 24). Franqui filed an Amended Motion for Certificate of Appealability with the Eleventh Circuit Court of Appeals on December 2, 2009. On December 7, 2009, the Eleventh Circuit remanded the matter and directed this Court to consider the issues raised in Petitioner's Amended Motion for Certificate of Appealability ("Amended COA Motion"). II. STANDARD OF REVIEW A prisoner appealing denial of a petition brought under 28 U.S.C. § 2254 must first obtain a Certificate of Appealability ("COA"). Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A COA shall issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner must raise an issue regarding the denial of a constitutional right which could be debatable among reasonable jurists, or is otherwise reasonably adequate to warrant further proceedings. Miller-El, 537 U.S. at 327, 336-38, 123 S.Ct. 1029 (2003). "The petitioner, however, is not required to show he will ultimately succeed on appeal, because when [considering] an application for a COA, `the question is the debatability of the underlying constitutional claim, not the resolution of the debate.'" Lamarca v. Sec'y, Dep't of Corrs., 568 F.3d 929, 935 (11th Cir.2009) (internal citation omitted). III. ANALYSIS A. Atkins Claim Petitioner seeks a COA on the denial of his claim that his mental retardation proscribes his execution. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). This Court held that this claim was unexhausted and procedurally barred because Franqui failed to timely present the claim within sixty days of October 1, 2004, as required by Florida Rule of Criminal Procedure 3.203. The Florida Supreme Court's Order instructing the Circuit Court to address Franqui's mental retardation claim in a separate Hialeah case (the "Hialeah Case") does not impact this Court's conclusion that his mental retardation claim in this case was unexhausted and procedurally barred. See Jimenez v. Fla. Dep't of Corrs., 481 F.3d 1337, 1342 n. 3 (11th Cir.2007) (stating that motions in state court in the same case that were filed after the federal habeas petition do not affect exhaustion). Therefore, even if the state court now decided to allow Petitioner to file an untimely Atkins motion in the instant case, this Court's conclusion that Petitioner's mental retardation claim was unexhausted would remain undisturbed. Of course, Franqui is free to seek state court review on the merits of his Atkins claim in this case. Thus, none of this Court's findings concerning exhaustion and procedural bar of the mental retardation claim could be debatable among reasonable jurists, or are otherwise reasonably adequate to warrant further proceedings.[1] 1351 This Court also found that the mental retardation claim was without merit because the State put forth evidence at the Hialeah trial that Franqui's Wechsler Test score was 83, thirteen points about the level of mental retardation, and that the only testimony to the contrary was incredible. It is true that the Florida Supreme Court instructed the Circuit Court to conduct an evidentiary hearing on the Atkins issue in the Hialeah case. After conducting the hearing, however, the Circuit Court concluded that the Atkins claim was without merit and the issue is now on appeal. Absent a reversal by the Florida Supreme Court that undermines the facts relied upon by this Court in concluding Franqui's mental retardation claim is without merit, this Court's denial of the claim on the merits could not be debatable among reasonable jurists, and does not warrant further proceedings. Accordingly, Franqui is not entitled to a COA on this claim. B. Peremptory Challenges Petitioner seeks a COA on the denial of his claim that his counsel was ineffective for failing to successfully exercise peremptory challenges against two venire members, Auerlio Diaz ("Diaz") and Adriana Andani ("Andani"). Franqui supports his contention that this issue could be debatable among reasonable jurists by noting that a COA on an "identical" issue was granted to Ricardo Gonzalez ("Gonzalez"), one of Franqui's co-defendants. Gonzalez v. McNeil, No. 08-22909-CIV-DIMITROULEAS (S.D.Fla. October 29, 2009) (dkt. # 19). As an initial matter, Gonzalez's claim was a substantive challenge that the trial court erred in denying his peremptory challenges as to Diaz and Andani. Franqui's claim is that his counsel was ineffective for failing to successfully exercise peremptory challenges against Diaz and Andani. Therefore, Franqui's claim differs from Gonzalez's claim because in order to succeed on his claim, Franqui must satisfy the Strickland v. Washington standard by showing that counsel's performance was deficient and resulted in prejudice that was so serious it deprived him of a fair trial. 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Recalling that judicial review of defense counsel's performance is highly deferential and courts are to presume that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment," this Court finds that given Diaz and Andani's benign answers to the voir dire questions, reasonable jurists would agree that Franqui's counsel was not ineffective for failing to provide plausible race neutral reasons for striking Diaz and Andani. Id. at 690, 104 S.Ct. 2052. Moreover, in light of the absence of evidence supporting the contention that the presence of Diaz and Andani on the jury panel negatively impacted the fairness of Franqui's trial, this Court also concludes that reasonable jurists could not find the absence of prejudice to Franqui debatable. Accordingly, Franqui is not entitled to a COA on this claim. C. Improper Statements Concerning Aggravating and Mitigating Circumstances Petitioner seeks a COA on the denial of his claim that the trial judge and prosecutor's erroneous statements concerning the proper weighing of aggravating and mitigating evidence was not harmless error. Franqui supports his contention that this issue could be debatable among reasonable jurists on grounds that: (1) three Justices of the Florida Supreme Court dissented from the Court's holding that the improper statements by the trial judge and prosecutor were harmless, see Franqui v. State of Fla., 804 So.2d 1185, 1199-1200 (Fla.2001) 1352 (Shaw, J., dissenting, Anstead, Pariente, JJ., concurring); and (2) this Court's reliance on Brown v. Payton, 544 U.S. 133, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005), fails to resolve all doubt as to whether the contested statements were harmless. During opening remarks to the initial venire at the penalty phase of Franqui's trial, the judge erroneously stated: "If you believe that the aggravating factors outweighed the mitigating factors, then the law requires that you recommend a sentence of death." Franqui, 804 So.2d at 1192. The prosecutor also similarly misstated the law during voir dire. Id. On direct appeal, the Florida Supreme Court held that although the statement was erroneous, Franqui was not prejudiced because the trial court's subsequent statement during voir dire accurately stated the law, and the final instructions to the jury were consistent with the standard jury instructions. Id. Moreover, "the trial court gave defense counsel's requested instruction apprising the jury that the weighing process was not a mere counting of the aggravating and mitigation circumstances, but rather a reasoned judgment as to what the appropriate sentence should be in light of the nature of the aggravating and mitigating circumstances found to exist." Id. In his dissent, Justice Shaw of the Florida Supreme Court stated that the cases relied upon by the majority, namely Henyard v. State, 689 So.2d 239 (Fla.1996) and Brooks v. State, 762 So.2d 879 (Fla.2000), were distinguishable because the erroneous statements found to be harmless in those cases were made by prosecutors, not by the judge, pointing out that the importance of this distinction had been previously recognized by that Court in Almeida v. State, 748 So.2d 922 (Fla.1999). Justice Shaw also noted that in Brooks, the trial court immediately responded to the prosecutor's improper argument by accurately instructing the jury on the law concerning the weighing of aggravating and mitigating evidence, whereas the misstatement of law in Franqui's case "was never cogently addressed or straightforwardly corrected," despite the trial judge's opportunity to do so. Franqui, 804 So.2d at 1200. Thus, Justice Shaw opined that it was "purely speculative" for the majority to conclude that trial judge's improper statement during voir dire was harmless simply because there was a proper reading of the jury instructions before the jury retired. Id. Nevertheless, the fact that there was some disagreement among the Florida Supreme Court's Justices is not dispositive as to whether the issue before this Court could be debatable among reasonable jurists. This is so because in finding that the trial judge and prosecutor's improper statements were harmless, the Florida Supreme Court relied on its own case law. In reviewing the issue presented in Franqui's habeas petition, however, this Court was required to determine whether the Florida Supreme Court's conclusion "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." 28 U.S.C. § 2254(d)(1). This leads to the question of whether this Court's holding, and specifically its reliance on Brown v. Payton, 544 U.S. 133, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005), is sufficient to dispel all doubt among reasonable jurists that the Florida Supreme Court's finding of harmless error was not contrary to, or did not involve an unreasonable application of, clearly established Federal law. The issue in Brown involved a prosecutor's erroneous instruction that mitigation evidence at the penalty phase did not include postconviction conduct. The defense objected and the trial judge "admonished the jury that the prosecutor's comments 1353 were merely argument, but [] did not explicitly instruct the jury that the prosecutor's interpretation was incorrect." 544 U.S. at 138, 125 S.Ct. 1432. Later, the prosecutor told the jury several times that he did not think they had heard any mitigation evidence, but continued to argue the merits of the mitigation evidence at length. Id. On direct appeal, the California Supreme Court denied the claim. Relying on Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990),[2] the Court held that "in the context of the proceedings there was no reasonable likelihood that [the] jury believed it was required to disregard his mitigating evidence." Id. at 139, 125 S.Ct. 1432. A subsequent petition for writ of habeas corpus was granted by the district court. Id. The Ninth Circuit Court of Appeals, en banc, affirmed, concluding that the reasoning in Boyde rested on the notion that a jury would be unlikely to disregard mitigating character evidence because of a long-held social belief that individuals with disadvantaged backgrounds may be less culpable than others with no such excuse. Id. at 140, 125 S.Ct. 1432. By contrast, however, it concluded that a jury would be less likely to consider postconviction evidence of religious conversion and good behavior. Id. In addition, it distinguished Boyde because the judge in Boyde gave a specific instruction correcting the prosecutor's statement, whereas in Brown, the judge only gave a general instruction that the prosecutor's statements were not evidence. Id. at 140-41, 125 S.Ct. 1432. The United States Supreme Court reversed, concluding that the California Supreme Court's holding could not be disturbed under the AEDPA's deferential standard of review. In doing so, it concluded that the California Supreme Court had not acted unreasonably in declining to distinguish between precrime and postcrime evidence. The Court also held that "the California Supreme Court's conclusion that the jury was not reasonably likely to have accepted the prosecutor's [erroneous statement of the law] was an application of Boyde to similar but not identical facts." Id. at 143, 125 S.Ct. 1432. Thus, "[e]ven on the assumption that its conclusion was incorrect, it was not unreasonable, and is therefore just the type of decision that AEDPA shields on habeas review." Id. The Florida Supreme Court's denial of Franqui's claim is not a conclusion that is opposite to a conclusion reached by the United States Supreme Court on a question of law. Nor is the issue here materially indistinguishable factually, from a case already decided by the United States Supreme Court. Thus, the only ground upon which reasonable jurists could debate the Florida Supreme Court's conclusion is that its holding was unreasonable. Even if the holding was wrong, Franqui is only entitled to a COA on this issue if reasonable jurists could debate that the Court's holding was not only wrong, but unreasonably so. As illustrated in Brown and Boyde, the test of whether an erroneous 1354 instruction prevented jurors from adequately considering a defendant's mitigation evidence turns on "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde, 494 U.S. at 380, 110 S.Ct. 1190. Moreover, Brown and Boyde mandate that "the whole context of the trial be considered." Id. at 144, 125 S.Ct. 1432. Here, the trial judge and prosecutor initially made erroneous statements of law during voir dire, but the trial judge corrected the erroneous instructions during the voir dire, and provided an accurate jury instruction again at the close of the penalty phase. It is true that Brown and Boyde did not involve statements made by the trial judge. However, the Florida Supreme Court's finding that in the context of Franqui's trial there was no resulting prejudice is not an issue debatable among reasonable jurists because it is a reasonable application of the principles delineated in Brown and Boyde. Therefore, even assuming the Florida Supreme Court's conclusion was wrong, the reasonableness of its holding on this matter is nevertheless beyond debate by reasonable jurists. Accordingly, Franqui is not entitled to a COA on this claim. D. Exclusion of the Fact that Franqui did not Fire the Fatal Shot from Consideration as a Mitigating Circumstance Petitioner seeks a COA on the denial of his claim that the trial judge erred in failing to include the fact that Franqui did not fire the fatal shot as a mitigating circumstance. Franqui contends that in light of the United States Supreme Court's holding in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), reasonable jurists could disagree with this Court's denial of his claim. In Eddings, the Court found an Eighth Amendment violation where the trial judge refused to consider the defendant's violent family history as a mitigating circumstance. Id. at 113, 102 S.Ct. 869. Citing the rule laid down in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Eddings Court stated: "[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Eddings, 455 U.S. at 110, 102 S.Ct. 869 (quoting Lockett, 438 U.S. at 604, 98 S.Ct. 2954) (emphasis in original). Thus, given that "capital punishment be imposed fairly, and with reasonable consistency, or not at all," a constitutionally indispensable part of the process is "that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Id. at 112, 102 S.Ct. 869 (quoting Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 82 L.Ed. 43 (1937)); see Tuilaepa v. California, 512 U.S. 967, 976, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (holding that challenge to portion of California's death penalty regime requiring jury to consider circumstances of the crime was merit less because it was at odds with settled principles of capital jurisprudence that circumstances of the crime must be considered). Moreover, "[j]ust as a State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence." Id. at 133-14, 102 S.Ct. 869 (emphasis in original). In Florida, "[e]vidence is mitigating if, in fairness or in the totality of the defendant's life or character, it may be considered as extenuating or reducing the degree of moral culpability for the crime committed." Spann v. State, 857 So.2d 1355 845, 858 (Fla.2003). When reviewing a trial court's conclusion as to mitigating circumstances, the Florida Supreme Court's standard is as follows: "(1) whether a particular circumstance is truly mitigating in nature is a question of law and subject to de novo review ...; (2) whether a mitigating circumstance had been established by the evidence in a given case is a question of fact and subject to the competent, substantial evidence standard; and (3) the weight assigned to a mitigating circumstance is within the trial court's discretion and subject to the abuse of discretion standard." Id. at 858-59. Of these three considerations, the second and third only apply if a circumstance is deemed to be mitigating in nature as a matter of law. In evaluating Franqui's claim that his status as a non-fatal shooter should be weighed as a mitigating factor, the trial court stated: The defense argues that the fact that the defendant did not fire the fatal shot should be considered as a non-statutory mitigating circumstance. The evidence is uncontroverted that Franqui did not fire the fatal bullet. This fact, then, has been reasonably established. However, whether this proven fact is in any way a mitigating circumstance is [a] different matter. This defendant was personally present during two prior robbery attempts during which he and/or his accomplices opened fire upon intended victims without hesitation. On December 6, 1991, this defendant personally killed another person during a robbery attempt. On January 3, 1992, with full knowledge that a uniformed police officer guarded the tellers, Franqui leapt out of his vehicle, pointed the gun and fired a shot which struck Officer Bauer in the hip. This injury caused the officer to fall towards Gonzalez, who then delivered the fatal blow. Franqui was prepared to use lethal force to eliminate any impediment to his robbery plan. He did not hesitate to [] actually use such force. This defendant's willingness to open fire on Officer Bauer sealed Officer Bauer's fate on that sad day and this defendant is as responsible for his death as the person who fired to fatal bullet. Because his bullet luckily did not strike any vital organ does not equate to a mitigating circumstance. The court is not reasonably convinced that this mitigating circumstance has been established. Franqui Sentencing Order at 16, dated September 18, 1998. In reviewing the trial court's holding the Florida Supreme Court stated: Franqui also contends that the trial court failed to find and weigh as a mitigating circumstance the fact that he did not fire the fatal bullet. Although we have indicated that the fact that a defendant did not fire the fatal shot may be a mitigating factor, whether it actually is depends on the particular facts of the case. Here, it is uncontradicted that Franqui shot at Officer Bauer, striking him in the hip. Although this wound alone was not fatal, the medical examiner testified that his findings were consistent with the conclusion that Officer Bauer was first shot in the hip by a bullet which ricocheted off the pillar he took cover behind, causing him to fall forward and be struck by the fatal bullet fired by Gonzalez. Under the particular facts of this case, we find that the trial court did not err in considering, but ultimately rejecting, the fact that Franqui did not fire the fatal bullet as a mitigating circumstance. Franqui, 804 So.2d at 1197 (internal footnote omitted). In denying Franqui's habeas petition, this Court concluded that "[t]he Florida courts satisfied their constitutional burden of considering the fact that Franqui did not fire the fatal bullet; consequently, their actions were not contrary 1356 to, or an unreasonable application of, clearly established federal law." Franqui, 2008 WL 2747093 at 22. The trial court articulated Franqui's claim as one in which Franqui claimed that his status as a non-fatal shooter should be considered as a mitigating circumstance. Franqui Sentencing Order at 16. The substance of the trial court's analysis, and its consideration of the factual circumstances of the shooting, indicates that it weighed Franqui's status as a non-fatal shooter and concluded that it was entitled to no weight as a mitigating circumstance. The trial court's language, however, could also be construed as giving Franqui's status as a non-fatal shooter "no weight by excluding such evidence from their consideration," the result of which would be an Eighth Amendment violation pursuant to Lockett and Eddings. Eddings, 455 U.S. at 114, 102 S.Ct. 869. First, the trial court rejected Franqui's claim, which the trial court construed as a claim that he was entitled to have his status as a non-fatal shooter considered as a non-statutory mitigating circumstance. In doing so, the trial court ultimately concluded that "this factor does not equate to a mitigating circumstance" and "the court is not reasonably convinced that this mitigating circumstance has been established." This language, in combination with the trial court's articulation of Franqui's claim, raises the specter that the trial court may have refused to consider his status as a non-fatal shooter as constituting a mitigating circumstance, as opposed to weighing this circumstance of the crime as a mitigating factor and concluding that it was entitled to no weight. Thus, based on the trial court's Sentencing Order, a reasonable jurist could conclude that the trial court failed to consider Franqui's status as a non-fatal shooter as a mitigating circumstance and include that within the weighing of aggravating and mitigating circumstances.[3] Likewise, the Florida Supreme Court construed Franqui's claim as asserting a right to have his status as a non-fatal shooter considered as a mitigating circumstance. Upon reviewing the trial court's holding, the Court considered the facts of the shooting and concluded that the trial court was correct in concluded that Franqui's status as a non-fatal shooter was not a mitigating factor. Again, the substance of the analysis indicates that the Court concluded that the trial court considered the circumstances of the crime and concluded that they were entitled to no weight. The Court's language, however, is not clear as to whether it concluded that the trial court properly weighed Franqui's status as a non-shooter and attributed no mitigating value to it, or found that the trial court properly excluded this fact from the scope of mitigating evidence and therefore never weighed it. Indeed, the Court's conclusion that "[u]nder the particular facts of this case, we find that the trial court did not err in considering, but ultimately rejecting, the fact that Franqui did not fire the fatal bullet as a mitigating circumstance," could permit a reasonable jurist to reach either conclusion. Franqui, 804 So.2d at 1198. Even assuming, however, that the trial court failed to consider and weigh Franqui's status as a non-fatal shooter, had it done so, it is evident from the Sentencing 1357 Order that the outcome would have undoubtedly been the same. This raises the question as to whether the trial court's alleged violation of Eddings was harmless error. The Supreme Court did not conduct a harmless error analysis in Eddings and has not found harmless error in any case since where the rule in Eddings was violated. The Court, however, has clearly indicated that harmless error is applicable to a violation of the rule in Eddings. In Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), the Court granted habeas relief, noting that the government made no attempt to argue that the sentencer's improper refusal to consider non-statutory mitigating factors was harmless error. 481 U.S. at 398-99, 107 S.Ct. 1821. The Court held that "[i]n the absence of such a showing [of harmless error] our cases hold that the exclusion of mitigating evidence of the sort at issue here renders the death sentence invalid." Id.; see Skipper v. South Carolina, 476 U.S. 1, 7-8, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (declining to hold that improperly excluded mitigating evidence was cumulative and its exclusion harmless error). When assessing whether a trial court's improper refusal to consider mitigating evidence in a capital case was harmless error, a district court must determine whether the error "`had a substantial injurious effect or influence in determining'" the defendant's death sentence. Smith v. Singletary, 61 F.3d 815, 818 (1995) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946))). Assuming, arguendo, that the trial court violated the rule in Eddings, this Court harbors no doubts that the trial court's refusal to consider Franqui's status as a non-fatal shooter as a mitigating circumstance did not have a substantial injurious effect or influence in determining Franqui's death sentence. When addressing the fact that Franqui did not fire the fatal shot, the trial judge stated that by shooting at Officer Bauer, opening fire during previous robberies, and personally killing another person in a prior robbery attempt, Franqui had demonstrated that he "was prepared to use lethal force to eliminate any impediment to his robbery plan." Franqui Sentencing Order at 16, dated September 18, 1998. Thus, the trial judge concluded that Franqui's status as a non-fatal shooter "does not equate to a mitigating circumstance." Id. Again, even assuming that the trial court failed to weigh Franqui's status as a non-fatal shooter as a mitigating circumstance, the trial judge left no doubt that had he done so, he would not have assigned this fact any weight sufficient to change his conclusion that a sentence of death was appropriate. Thus, even if the trial judge erred, this Court finds that reasonable jurists would agree that the error was harmless under the Brecht standard. Accordingly, Franqui is not entitled to a COA on this claim.[4] E. Ineffective Assistance of Counsel for Failing to Present Evidence Concerning the Voluntariness of His Confession During the Penalty Phase Petitioner seeks a COA on the denial of his claim that his counsel was 1358 ineffective for failing to present evidence concerning the voluntariness of his confession during resentencing. In support of this claim, he relies on Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986).[5]Crane, however, does not control this case because it addressed a defendant's ability to present evidence during the guilt phase in a manner that provided "a meaningful opportunity to present a complete defense." 476 U.S. at 690, 106 S.Ct. 2142 (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)). Rather, this case is controlled by Oregon v. Guzek, 546 U.S. 517, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006). In Guzek, the Supreme Court of the United States held that a defendant does not have a constitutional right to present evidence at the penalty phase that only serves to cast residual doubt on the conviction. Id. at 525, 126 S.Ct. 1226. In other words, although a defendant is entitled to present mitigating evidence concerning how the crime occurred, see Eddings, 455 U.S. at 110, 102 S.Ct. 869, a defendant is not entitled to present evidence that merely casts doubt on whether he committed the crime. Guzek, 546 U.S. at 524, 126 S.Ct. 1226. The claim for which Franqui seeks a COA turns in part on whether the evidence his counsel failed to present would do more than merely cast residual doubt on his conviction, and whether the failure to do so was tantamount to a deprivation of counsel. If so, Franqui was still required to demonstrate that the error prejudiced him in a way that deprived him of a fair trial. As an initial matter, the fact that Franqui's counsel did not attempt to introduce evidence concerning the voluntariness of his confession makes the issue of how the evidence would have been used speculative. Nevertheless, even assuming that such evidence could have served a proper purpose beyond casting doubt on the conviction, reasonable jurists could not debate that his counsel's failure do so was not a defect of sufficient gravity to meet Strickland's first prong. Given the uncontroverted evidence that Franqui shot Officer Bauer, who then fell from a covered position and was shot and killed by Gonzalez, any evidence pertaining to the voluntariness of the confession would contribute little to how the crime was committed. Moreover, in his Amended COA Motion, Franqui made no mention of how this evidence could have been used properly or why his counsel's failure to present it was a defect of a constitutional magnitude. Thus, the primary purpose of this evidence would have been to cast residual doubt on his conviction. In addition to the paucity of argument or evidence as to how the voluntariness of his confession would be relevant at the penalty phase, Franqui's Amended COA Motion does not explain how he was prejudiced by his counsel's failure to raise this issue, and this Court is unable to ascertain how such prejudice may have occurred. Thus, this Court finds that reasonable jurists could not debate that the Florida Supreme Court accurately concluded that Franqui's counsel was not ineffective for failing to present such evidence. Therefore, Franqui is not entitled to a COA on this claim. 1359 IV. CONCLUSION Accordingly, it is ORDERED AND ADJUDGED that Petitioner's Amended Motion for a Certificate of Appealability is DENIED. It is further ORDERED AND ADJUDGED that this Court's Order dated November 18, 2009 (dkt. # 37), is VACATED. NOTES [1] This Court reviewed Franqui's Atkins claim on the merits, even after concluding that it was unexhausted and procedurally barred. Franqui, 2008 WL 2747093 at * 11. Here, however, this Court's conclusion that reasonable jurists could not debate that Franqui's Atkins claim is unexhausted and procedurally barred ends the analysis as to whether Franqui is entitled to a COA on this issue. [2] Boyde involved an erroneous statement by a prosecutor involving the proper scope of mitigation evidence that the jury could consider under California's factor (k) instruction. Brown, 544 U.S. at 141, 125 S.Ct. 1432. The Court concluded that factor (k) did not limit consideration of extenuating circumstances exclusively to circumstances of the crime. Id. at 142, 125 S.Ct. 1432. In doing so, the Court established a framework for evaluating the effect of erroneous instructions to the jury, specifically "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde, 494 U.S. at 380, 110 S.Ct. 1190. [3] Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), and its progeny, including Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), stand for the distinct proposition that when a court improperly weighs an invalid aggravating circumstance, as opposed to improperly excluding a mitigating circumstance, there is an Eighth Amendment violation unless the state appellate court reweighs the aggravating and mitigating circumstances without the invalid aggravating circumstance or determines that weighing the invalid factor was harmless error. [4] Respondent contends that the issue of the exclusion of Franqui's status as a non-fatal shooter from consideration as a mitigating circumstance was only properly raised as an ineffective assistance of counsel claim in the underlying petition. In his Amended COA Motion Franqui only raises the substantive claim, which this Court resolved when ruling on the underlying petition. The Eleventh Circuit's Limited Remand instructs this Court to consider only the limited issues raised in the Amended COA Motion. Thus, it is only this Court's ruling on the substantive claim on which a COA is granted. [5] In Crane, the United States Supreme Court held that refusing to allow a defendant to present evidence concerning the circumstances of his interrogation and confession in his case-in-chief, after the trial judge had ruled that the confession was voluntary, deprived the defendant of his Sixth and Fourteenth Amendment rights. 476 U.S. at 691, 106 S.Ct. 2142. In doing so, it held that the Kentucky Supreme Court ignored that fact that the circumstances of an interrogation and confession bear not only on voluntariness, a legal issue, but credibility, a factual issue relevant to the defendant's guilt or innocence. Id. at 688, 106 S.Ct. 2142.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2485992/	680 F.Supp.2d 625 (2010) EMPRESAS CABLEVISIÓN, S.A.B. DE C.V., Plaintiff, v. JPMORGAN CHASE BANK, N.A. and J.P. Morgan Securities Inc., Defendants. No. 09 Civ. 9972 (JSR). United States District Court, S.D. New York. January 28, 2010. 626 Daniel Paul Cunningham, Judd Robert Spray, Stephen Randall Neuwirth, Quinn Emanuel Urquhart Oliver & Hedges LLP, New York, NY, for Plaintiff. Amelia Temple Redwood Starr, Davis Polk & Wardwell L.L.P., D. Scott Wise, Davis Polk & Wardwell L.L.P, Sheldon Leo Pollock, III, Davis Polk & Wardwell LLP, New York, NY, for Defendants. MEMORANDUM ORDER JED S. RAKOFF, District Judge. Plaintiff, Empresas Cablevisión, S.A.B. de C.V. ("Cablevisión"), a Mexican telecommunications operator, moves to preliminary enjoin defendants JPMorgan Chase Bank, N.A. and J.P. Morgan Securities Inc. (collectively, "JPMorgan")which loaned Cablevisión $225 million pursuant to a credit agreementfrom proceeding with a transaction under which JPMorgan would sell a 90% "participation" in the loan to Banco Inbursa, S.A. ("Inbursa"). Cablevisión alleges that this transfer to Inbursa-a bank that has common ownership with a major competitor of Cablevisión in the Mexican telecommunications market violates Cablevisión's right under the credit agreement to veto "assignments" of the loan. After receiving extensive written submissions from both parties, including detailed affidavits and a deposition transcript,[1] the Court held oral argument on December 22, 2009. After careful consideration, the Court grants Cablevisión's motion, based on the following findings and conclusions: Cablevisión, whose stock is publicly traded on the Mexican stock exchange, provides cable television and other telecommunications services to Mexican consumers. Decl. of Guadalupe Phillips Margain dated 12/3/09 ("Phillips Decl.") ¶ 5, Ex. 1. A majority of Cablevisión's stock is owned by Grupo Televisa, S.A.B. ("Televisa"), also a Mexican telecommunications company. Id. ¶ 4, Ex. 1. In December 2007, in order to acquire a company called Bestel, which operated the third-largest nationwide Mexican fiber-optic network, Cablevisión contributed $225 million to a subsidiary holding company named Cablestar, S.A. de C.V. ("Cablestar"). Id. ¶ 16. Two of Cablevisión's affiliates, Cablemás and TVI, each contributed $50 million to this transaction. Id. To finance this acquisition, Cablevisión, Cablemás, and TVI each entered into loan agreements with JPMorgan for a total of $325 million. Id. ¶ 17.[2] As part of this financing of the Bestel acquisition, JPMorgan lent Cablevisión $225 million pursuant to a credit agreement (the "Credit Agreement") and a promissory note. Id. ¶ 17, Exs. 8 (Credit Agreement) & 9 (promissory note). The Credit Agreement contains several restrictive covenants that, among other things, limit Cablevisión's ability to incur 627 debt, undergo fundamental corporate changes, make investments, sell its assets, accrue capital expenditures, and take on financial leverage. See Credit Agreement art. 6. Conversely, the agreement restricts JPMorgan's ability to transfer its obligations and rights as lender to another party in the form of an "assignment"; for instance, the Credit Agreement specifies that the loan cannot be assigned without Cablevisión's prior written consent. Id. § 9.04(b)(i). Additionally, the Credit Agreement contains certain limitations on JPMorgan's ability to sell "participations" in the loan, but participations, unlike assignments, may be made without the borrower's consent. Even then, a participation may be sold only if, in substance, the primary relationships between JPMorgan and Cablevisión, as well as JPMorgan's rights and obligations under the agreement, remain unchanged. Id. § 9.04(e). JPMorgan originally intended to syndicate the loan, as Cablevisión was aware at the time the Credit Agreement was negotiated, see Phillips Decl. ¶ 19; but JPMorgan did not attempt to do so in 2008 because of the deteriorating condition of the credit markets by that time. Decl. of Jaquelina Truzzell dated 12/16/09 ("Truzzell Decl.") ¶ 8. In early 2009, JPMorgan explored syndicating the loan in cooperation with Televisa to several banks that were acceptable to Televisa, including HSBC, BNP Paribas, and Scotia Bank. Id. ¶ 9; Phillips Decl. ¶ 33. However, according to JPMorgan, the terms offered by these banks were not sufficiently definite or attractive to pursue. Decl. of Sheldon L. Pollock dated 12/17/09 ("Pollock Decl.") Ex. A (Dep. of Jaquelina Truzzell, 12/16/09 ("Truzzell Dep.")) 33:18-35:13. Thus, JPMorgan turned its efforts to selling the loan outright to Banco Inbursa, Truzzell Decl. ¶ 10, a Mexican bank controlled by Carlos Slim Helú and his family, Phillips Decl. Ex. 7. Significantly, Slim also holds a controlling interest in Telmex, a Mexican communications conglomerate that owns over 80% of telephone land lines in Mexico and that is seeking to expand into other telecommunications markets. Phillips Decl. Ex. 2, at 9, 12; id. Exs. 3-5. Telmex is a primary competitor of Cablevisión. Id. ¶ 8; Decl. of Judd Spray dated 12/17/09 ("Spray Decl.") Ex. 4, at JPM-0001670. There are certain factual disputesnone of which is material to the Court's ruling hereregarding when Cablevisión first learned of JPMorgan's intention to assign the Cablevisión loan to Inbursa. According to hearsay proffered by JPMorgan's representative, Jaquelina Truzzell, JPMorgan employee Gilberto Sotelo had a telephone conversation in March or early April 2009 with Guadalupe Phillips Margain, Televisa's director of risk and finance, in which Sotelo informed her of JPMorgan's desire to market the loan to Inbursa and Phillips told Sotelo that she did not object to such marketing of the loan. Truzzell Decl. ¶ 11; Truzzell Dep. 11:17-12:25. Phillips attests that she has no recollection of that conversation and that she never would have agreed to allow the loan be marketed to Inbursa. Second Decl. of Guadalupe Phillips Margain dated 12/17/09 ("Second Phillips Decl.") ¶ 3. On May 7, 2009, JPMorgan's Raimundo Langlois sent by e-mail to América Castillo, a junior Televisa employee, what was in effect a prospectus for potential assignees and participants in the Cablevisión loan, Phillips Decl. Ex. 24, and the next day, Julian Lautersztain of JPMorgan requested that Castillo execute a letter authorizing Inbursa to obtain a credit bureau report on Cablevisión, id. Exs. 25 & 26. Castillo granted this authorization, but, according to Cablevisión, she perceived this request to be routine 628 and did not understand its significance. Id. ¶ 45. Regardless of when Cablevisión first definitively learned of JPMorgan's negotiations with Inbursa, it is undisputed that such negotiations were underway by March 2009. Among other things, internal JPMorgan e-mails indicate that JPMorgan not only began marketing the loan to Inbursa during this time, but also recognized that Cablevisión might object to such an assignment. Spray Decl. Ex. 5. On May 8, 2009, JPMorgan and Inbursa reached a "handshake" agreement on the basic terms of an assignment of 90% of the loan. Truzzell Dep. 17:6-18:21; see also Spray Decl. Ex. 6. This agreement was reached without Cablevisión's consent. Truzzell Dep. 18:22-19:9. On May 21, 2009, Cablevisión learned from HSBC, which had previously expressed interest in purchasing some of the loan, that the loan was no longer for sale. Phillips Decl. ¶ 47. Televisa's Phillips immediately contacted Sotelo at JPMorgan, who denied that any sale had been effected. Id. Later that day, JPMorgan's Lautersztain sent Phillips and others at Televisa a formal request for Cablevisión's consent to the assignment. Id. ¶ 48, Ex. 28. The next day, Sotelo telephoned Phillips and requested that Cablevisión immediately consent to the assignment. Id. ¶ 49. After Phillips expressed reservations, Sotelo indicated that he had assumed from Televisa's authorization of the credit bureau report that it had no objections to an assignment to Inbursa. Id. Phillips responded that this was not the case. Id. Later that day, Phillips sent JPMorgan an e-mail stating that Cablevisión would "analyze" this proposed assignment to Inbursa and clarifying that Cablevisión had not yet consented to the assignment. Id. Ex. 29. On June 3, Phillips called Carlos Ruíz de Gamboa of JPMorgan to report that Cablevisión would not consent to the proposed assignment. Id. ¶ 51. Gamboa allegedly reacted by threatening to give Inbursa the 90% interest in the form of a "participation." Id. Later that day, Phillips sent JPMorgan an e-mail with an attached letter from counsel formalizing Cablevisión's decision. That letter expressed Cablevisión's belief "that it would be inappropriate, and could cause serious harm to our business and our competitive position, if one of our major competitors is allowed to gain access to confidential and competitively sensitive information about us, or to exert any control over our business affairs and hinder the development of our business." Id. Ex. 30. The letter also noted that a "participation" of 90% of the loan to Inbursa would be similarly unacceptable and would violate JPMorgan's "duty of good faith" under the Credit Agreement. Id. Nonetheless, JPMorgan began negotiations to transfer 90% of the loan to Inbursa in the form of a participation, and these discussions continued throughout June and July until a formal agreement (the "Participation Agreement") between Inbursa and JPMorgan was executed on July 15, 2009. Truzzell Decl. ¶¶ 15-19, Ex. C (Participation Agreement). At the same time JPMorgan was negotiating the participation with Inbursa, Televisa was exploring purchasing the Cablevisión loan for itself. Cablevisión and Televisa proposed to match any offer by Inbursa for the assignment. Phillips Decl. ¶ 52, Exs. 31-32. Internal Televisa e-mails indicate that Televisa found the terms and credit risk of the loan to be attractive. See Pollock Decl. Ex. H. On June 17, JPMorgan's Sjoerd Leenart wrote to Televisa's Salvi Folch that he could not envision any scenario in which JPMorgan would sell to Inbursa at a better price than what Televisa was offering. 629 Spray Decl. Ex. 9. The next day, Leenart reported that the internal approval process for Televisa's offer had been put on hold, but he gave his "word" that "we are not agreeing to or entering into any transaction with any other party." Phillips Decl. Ex. 33. However, on June 19, Leenart wrote to Folch to argue that a participation to Inbursa would pose no significant risks to Cablevisión and could in fact be beneficial. Id. Ex. 34. Folch wrote back, faulting JPMorgan for creating the difficult situation and threatening litigation in the event that Cablevisión assigned or participated the loan to any competitor. Id. Ex. 35. Thereafter, JPMorgan completed the agreement to sell a 90% participation in the loan to Inbursa, despite indications of interest from other banks in purchasing part of the loan. See Spray Decl. Ex. 13. Moreover, even after the Participation Agreement was executed on July 15, JPMorgan did not disclose the participation to Cablevisión. Although Cablevisión eventually learned of the agreement (whereupon it promptly commenced this lawsuit), it was only after Cablevisión filed this lawsuit that JPMorgan provided Cablevisión with a copy of the Participation Agreement. See Spray Decl. Ex. 14; Phillips Decl. ¶ 64. Several aspects of the JPMorgan-Inbursa Participation Agreement are pertinent here. First, the agreement permits Inbursa to request and receive nearly unlimited information from Cablevisión. To begin with, Inbursa is entitled under the Participation Agreement to receive the following categories of information from Cablevisión: "copies of the Credit Document and any amendments, consents, waivers or notices, or any other material received by the Bank in its capacity as Lender, relating to any of the . . . Loan Documents," Participation Agreement § 3.01, and "each executed and delivered amendment, waiver or consent in respect of the Loan Documents, the occurrence of any `Event of Default' of which the Bank gives to the Borrower, [and] its exercise of any rights or remedies against the Borrower in respect of the Credit Document," id. § 3.03(c). Further, Section 3.03(b) of the Participation Agreement requires JPMorgan to "endeavor to inform" Inbursa "prior to agreeing to any other amendment, waiver or consent relating to the Loan Documents." Finally, and most importantly, Section 3.01 of the Participation Agreement obligates JPMorgan to request from the Borrower (to the extent it is entitled under the Credit Document to do so) and (if and to the extent received by the Bank from the Borrower and subject to Section 4.03 hereof) furnish to the Participant such information concerning the business, affairs or financial condition of the Borrower as the Participant may reasonably request. In other words, Inbursa can ask JPMorgan to demand virtually any information from Cablevisión that JPMorgan is allowed to request under the Credit Agreementwhich is almost anything, see Credit Agreement § 9.16and, as long as JPMorgan and Inbursa (the only parties to the Participation Agreement) agree that the request is "reasonable," JPMorgan must both demand the information from Cablevisión and then turn it over to Inbursa. At her deposition, JPMorgan's Jaquelina Truzzell, who was involved in negotiating non-price terms of the Participation Agreement, testified that the language obligating JPMorgan to provide Inbursa with "notices, or any other material received by the Bank in its capacity as Lender" was inserted into the agreement at Inbursa's request. Truzzell Dep. 81:11-83:14, 88:6-18. Truzzell's e-mails during the negotiations 630 noted Inbursa's desire to clarify that it "would receive all the information sent by the Borrower." Spray Decl. Ex. 15. Second, the Participation Agreement provides that if an Event of Default occurs under the Credit Agreement, the Participation Agreement "shall be terminated and replaced by an assignment agreement. . . whereupon the Participant shall become a Lender." Participation Agreement § 2.04(d). Truzzell testified that this provision was not part of JPMorgan's standard participation agreement; it was inserted because Inbursa "want[ed] a mechanism by which they can start direct proceedings [against] the Borrower in the case of a breach." Spray Decl. Ex. 16; see also Truzzell Dep. 80:12-22. Although Truzzell initially objected that including such a provision would be "contrary to the participation structure," Spray Decl. Ex. 16, nonetheless, after consultation with JPMorgan's legal department, this provision was adopted, Truzzell Dep. 88:19-89:7. Third, Section 2.04(a) of the Participation Agreement gives Inbursa a 90% share not only of Cablevisión's principal and interest payments under the loan, but also of any fees earned by JPMorgan in its capacity as lender. Inbursa negotiated for this provision, which was not in JPMorgan's standard form participation agreement, in order to "receive all the economic benefits generated by the loan." Spray Decl. Ex. 15; see also Truzzell Dep. 73:24-74:16. Fourth, Section 5.01 of the Participation Agreement gives Inbursa a right of first refusal with respect to any further transfer of the remaining loan amount held by JPMorgan. Once again, this provision was not part of JPMorgan's standard form agreement. Truzzell Dep. 90:24-91:21. Fifth, while each of the foregoing provisions departs from JPMorgan's standard participation agreement, several sections of the Participation Agreement contain recitals preserving JPMorgan's direct relationship with Cablevisión and its sole discretion with respect to amendments, modifications, or waivers under the Credit Agreement.[3] JPMorgan included these provisions despite Inbursa's initial requests that the parties enter "side letters" that would empower Inbursa with the ability "to make decisions concerning all matters related to the granting of amendments and waivers." Pollock Decl. Ex. F, at 3-5. Truzzell wrote to Inbursa to reject these initial requests, noting that to give Inbursa rights under the Credit Agreement beyond those explicitly provided to participants thereunder "would expose us to legal problems with the Borrower." Truzzell Decl. Ex. B. In other words, JPMorgan apparently believed that these provisions saved the Participation Agreement from being a disguised assignment. Against this background, the Court turns to Cablevisión's request for a preliminary injunction preventing JPMorgan from effectuating this transfer of the 631 loan to Inbursa. To obtain such relief, Cablevisión must demonstrate "(1) `either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor,' and (2) `irreparable harm in the absence of the injunction.'" Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 116 (2d Cir.2009) (quoting County of Nassau, N.Y. v. Leavitt, 524 F.3d 408, 414 (2d Cir.2008)). With respect to the merits, Cablevisión's application for a preliminary injunction is premised on the claims that the Participation Agreement is for all relevant purposes a disguised but unconsented-to assignment that breaches Section 9.04(b) of the Credit Agreement or that, at a minimum, the Participation so subverts the purposes underlying Cablevisión's right to veto assignments of the loan as to breach the covenant of good faith and fair dealing implied by law in the Credit Agreement. Section 9.04(b) of the Credit Agreement provides that JPMorgan may not "assign. . . all or a portion of its rights and obligations under this Agreement" without Cablevisión's prior written consentexcept for in certain specified circumstances, including if an Event of Default occurs. Cablevisión negotiated for and obtained a veto right over assignments in order to protect against the possibility of an unsuitable party being given the rights to enforce restrictive covenants or to receive information under the loan. Phillips Decl. ¶¶ 19-20. In opposing a preliminary injunction, JPMorgan argues that the Participation Agreement is technically consistent with the Credit Agreement. Superficially, this may be correct. For example, with respect to Cablevisión's concerns about confidential information, the Credit Agreement permits disclosure of information about the borrower, not just to assignees (who can be vetoed) but also to participants (who cannot), provided that such information is given on a confidential basis. Credit Agreement § 9.16(f)(i). This includes "all information received from the Borrower . . . relating to the Borrower, any of its Related Parties or their respective businesses." Id. § 9.16. Similarly, there is no express restriction in the Credit Agreement on providing a participant with its pro-rata share of fees received by the lender or an option of first refusal for any further transfer of the loan. Finally, under the Credit Agreement, assignment of the loan without borrower consent is expressly permitted when there is an Event of Default. Id. § 9.04(b)(i). But this narrow focus obscures the gist of Cablevisión's argument, which is that JPMorgan, acting in bad faith, used the guise of a purported "participation" to effectuate what is in substance a forbidden assignment, with unusual provisions demanded by Inbursa that are calculated to give Inbursa exactly what the assignment veto in the Credit Agreement was designed to prevent. JPMorgan thereby violated, at a minimum, the covenant of good faith and fair dealing automatically implied by law in the Credit Agreement. The Court agrees. Under here-applicable New York law, every contract "embraces a pledge that `neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.'" Dalton v. Educational Testing Serv., 87 N.Y.2d 384, 389, 639 N.Y.S.2d 977, 663 N.E.2d 289 (1995) (quoting Kirke La Shelle Co. v. Paul Armstrong Co., 263 N.Y. 79, 87, 188 N.E. 163 (1933)). The facts presently before the Court make out a very strong showing that JPMorgan, after failing to obtain Cablevisión's consent to an assignment of 90% of the loan to 632 Inbursa, negotiated an agreement with Inbursa that, while it took the form of a participation, gave Inbursa much of the substance of the forbidden assignment and purposely undercut what JPMorgan knew the assignment veto was designed to prevent. Such an end-run, if not a downright sham, is not permissible if, as here, it does away with the "fruits" of the contract. Cf. Metro. Life Ins. Co. v. RJR Nabisco, Inc., 716 F.Supp. 1504, 1518 (S.D.N.Y.1989) ("The appropriate analysis . . . is first to examine the [relevant contracts] to determine `the fruits of the agreement' between the parties, and then to decide whether those `fruits' have been spoiledwhich is to say, whether plaintiffs' contractual rights have been violated by defendants."). Perhaps most telling in this regard is the fact that under the Participation Agreement, Inbursa, a bank under common ownership with Cablevisión's major competitor was given, at Inbursa's request, rights that were not part of JPMorgan's standard participation agreement that enabled Inbursa not just to receive Cablevisión's confidential information but to use JPMorgan as a vehicle for demanding such information on a virtually unlimited basis. See, e.g., Participation Agreement §§ 3.01, 3.03(c).[4] The problem is compounded when these information-sharing provisions are read in conjunction with the other unusual features of the Participation Agreement demanded by Inbursa and granted by JPMorgan. For example, JPMorgan committed to assigning the entire loan to Inbursa in the case of a default under the Credit Agreement. This provision gives Inbursa immense leverage because under the Credit Agreement, an Event of Default takes place if, among other things, Cablevisión fails "to observe or perform any covenant or agreement contained in any Loan Document" and if that failure remains uncured for thirty days. Credit Agreement § 7.01(e). Therefore, under the terms of the Participation Agreement, JPMorgan must request any of Cablevisión's confidential information desired by Inbursa, and any failure by Cablevisión to provide this confidential information could trigger a default, see id. § 5.01, and thus precipitate the outright assignment of the loan to Inbursa. In addition, not only does Inbursa receive 90% of the loan's principal and interest payments and 90% of the fees paid to JPMorgan as lender, but also the Participation Agreement gives Inbursa the right of first refusal with respect to any further transfer of the remainder of the loan held by JPMorgan. The fact that these and other provisions were demanded by Inbursa and were not part of JPMorgan's standard participation agreement is further confirmation that this is really a disguised assignment. 633 For the foregoing reasons, the Court concludes that plaintiff has shown a likelihood of success on the merits of its claim that JPMorgan breached its implied covenant of good faith and fair dealing under the Credit Agreement. Further, the Court finds that Cablevisión has shown a likelihood of irreparable harm if preliminary injunctive relief is not granted. Cablevisión has made such a showing here because the aforementioned features of the Participation Agreement emasculate Cablevisión's right to veto assignments of the loan, and this sort of injury is irreparable as a matter of law. See Wisdom Import Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 114 (2d Cir.2003). When a party has "expressly negotiated for and received the right to veto certain transactions with which it disagreed before those transactions commenced, a right that is irretrievably lost upon breach, and may not be compensable by non-speculative damages," "the only way to render [such a] provision truly viable is to enforce it." Id.; see also, e.g., CDC Group PLC v. Cogentrix Energy, Inc., 354 F.Supp.2d 387, 393-94 (S.D.N.Y. 2005) (applying Wisdom Import Sales to find irreparable harm in defendant's efforts to sell majority interest in subsidiary to a third party in violation of a letter agreement barring such a sale for seven years). Moreover, independent of this legal doctrine, there is as a factual matter a strong likelihood of irreparable harm arising from Inbursa's ability to seek and obtain Cablevisión's confidential business information under the Credit Agreement and then use it to Cablevisión's detriment. See, e.g., Muze, Inc. v. Digital-on-Demand, Inc., 123 F.Supp.2d 118, 130-31 (S.D.N.Y.2000) (unauthorized use of proprietary information for competitive advantage held to cause irreparable harm). Accordingly, JPMorgan is hereby preliminarily enjoined from proceeding with the Participation Agreement, treating that agreement as valid or enforceable, or assigning, participating, or otherwise transferring any interest in its Cablevisión loan to Inbursa. Counsel for the parties are directed to jointly telephone the Court by no later than February 4, 2010 to schedule further proceedings in this case. The Clerk of the Court is directed to unseal all documents previously sealed in this case. SO ORDERED. NOTES [1] These materials, which were previously submitted under seal, are hereby unsealed, as are all other papers in this case. [2] Televisa and its affiliates had a longstanding relationship with JPMorgan, as they had previously used JPMorgan's services to borrow under loan facilities, issue and purchase debt securities, enter into derivatives contracts, effect mergers and acquisitions, and make various other investments. Phillips Decl. ¶ 15. [3] The Participation Agreement states that "(except as expressly provided herein) . . . the Participant [shall not] have, by reason of this Agreement, the Participation, any rights with respect to the Credit Document, any other Loan Document or any other extension of credit by the Bank to the Borrower." Participation Agreement § 2.04(b). JPMorgan "may (without the Participant's consent) give or withhold its agreement to any amendments of the Loan Documents or any waivers or consents in respect thereof or exercise or refrain from exercising any other rights or remedies which the Bank may have under the Loan Documents or otherwise (and the sale or granting of the Participation by the Bank shall not limit or otherwise affect its discretion in respect of any of the foregoing) . . . ." Id. § 3.03(a). [4] JPMorgan contends that another provision of the Participation Agreement, Section 4.03, negates any otherwise applicable duty to request or disclose information beyond loan documents and the like pursuant to Section 3.01. Section 4.03 relieves JPMorgan of any obligation to disclose confidential information "except for the documents and information expressly required to be furnished by the Bank under Sections 3.01 and 3.03 [of the Participation Agreement]," and JPMorgan claims that disclosure of "such information concerning the business, affairs or financial condition of [Cablevisión] as [Inbursa] may reasonably request" is not "expressly required" by Section 3.01. But by its terms, Section 3.01 provides that-subject to certain exceptions, including any limitations imposed by Section 4.03-JPMorgan "will request from [Cablevisión] . . . and . . . furnish to the Participant such information. . . ." Because there is no reason to read this provision's statement of what JPMorgan "will request" as anything but an express requirement, the Court concludes that Section 4.03 does not diminish JPMorgan's obligations to request and furnish information under this provision of Section 3.01.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2485996/	74 So.3d 944 (2011) Ex parte Sarah H. STEWART, Circuit Judge, 13th Judicial Circuit. (In re Ex parte Kevin Byrd (In re State of Alabama v. Kevin Byrd)). 1100600. Supreme Court of Alabama. June 30, 2011. 945 Martha Tierney, asst. dist. atty., Mobile County, for petitioner. Charles H. Jones, Jr., Mobile, for respondent Kevin Byrd. Samuel Henry Welch, presiding judge, and Mary Becker Windom, J. Elizabeth Kellum, Liles C. Burke, and J. Michael Joiner, judges, Alabama Court of Criminal Appeals, for respondents. Luther Strange, atty. gen., and John C. Neiman, Jr., and Prim F. Escalona, deputy attys. gen., amicus curiae Attorney General Luther Strange, in support of the petitioner. Barry D. Matson, Montgomery, amicus curiae Alabama District Attorneys Association, in support of the petitioner. MAIN, Justice. The Honorable Sarah H. Stewart, a circuit judge in the 13th Judicial Circuit, petitions this Court for a writ of mandamus directing the Court of Criminal Appeals to quash the writ of mandamus it issued to the circuit court by an unpublished order. Ex parte Byrd (No. CR-10-0035, Feb. 9, 2011), ___ So.3d ___ (Ala. Crim.App.2011) (table).[1] We grant the petition and issue the writ. I. Factual Background On December 4, 1995, Kevin Byrd pleaded guilty in the Mobile Circuit Court to first-degree assault. He was sentenced, pursuant to a plea agreement, to 10 years' imprisonment; that sentence was suspended, and Byrd was ordered to serve 180 days in "boot camp" followed by 5 years on probation and to pay $60,000 in restitution to the victim. After completing "boot camp," Byrd was released on probation. On March 5, 1998, the trial court ordered Byrd to begin making restitution payments of at least $75 per month. In March 1999, his probation was revoked because he had committed new offenses, 946 and he was ordered to serve the remainder of his sentence in prison. In 2002, Byrd completed his sentence and was released from prison. In March or April 2005, the Mobile County District Attorney's Office began collecting the unpaid restitution pursuant to § 12-17-225 et seq., Ala.Code 1975. In August 2007, the Mobile County District Attorney's Office requested that the trial court conduct a hearing at which Byrd was to show cause why he should not be held in contempt for failing to have paid the court-ordered restitution. The trial court conducted hearings in January 2008, October 2008, May 2010, and September 2010, reviewing Byrd's compliance with the restitution order and adjusting Byrd's periodic restitution payments to meet his financial ability to pay. At the January 2008 hearing the trial court ordered Byrd to pay $100 per month in restitution and to pay $1,500 by April 15, 2008, and to bring his 2007 federal and state tax returns and a household budget to the next hearing date. At the October 2008 hearing the trial court ordered Byrd to pay $500 per month in restitution. At the May 2010 hearing Byrd challenged the trial court's jurisdiction; the trial court took the matter under advisement. On August 31, 2010, the trial court issued an order holding that it had jurisdiction over the restitution matters and scheduled a hearing, at which Byrd was either to provide evidence that he was indigent or to suggest a payment plan and the State was to provide an accounting of Byrd's restitution payments since sentencing. At the September 2010 hearing there was discussion of Byrd's income, assets, expenses, and payment history; on September 23, 2010, the trial court ordered Byrd to pay $200 a month in restitution and reset the matter for review on December 8, 2010. On October 12, 2010, Byrd petitioned the Alabama Court of Criminal Appeals for a writ of mandamus directing the trial court to set aside all orders respecting restitution entered after December 4, 2000, the date on which Byrd says his probationary term for the 1995 conviction expired, and to dismiss the proceedings. On February 9, 2011, the Court of Criminal Appeals granted the petition and issued the writ, directing the trial court to set aside its September 23, 2010, order because it lacked jurisdiction. The court, in its unpublished order, held as follows: "In this case, Byrd had finished his term of imprisonment and was not on probation or parole. According to our holding in Dixon v. State, 920 So.2d 1122 (Ala.Crim.App.2005), Judge Stewart had no jurisdiction of the contempt action as she did not have jurisdiction of both the person and the subject matter. Nor could Judge Stewart, in 2010, modify a restitution order that had been entered in 1995. This petition is hereby GRANTED and Judge Stewart is directed to set aside her September 23, 2010, order for lack of jurisdiction. The State's remedies for collecting on delinquent restitution are set out in § 12-17-225.3; § 15-18-72; and § 15-18-78(a), Ala.Code 1975." The trial judge then filed the present petition for a writ of mandamus with this Court asking us to direct the Court of Criminal Appeals to quash the writ of mandamus it had issued to the circuit court. II. Standard of Review "`Our review of a decision of the Court of Criminal Appeals on an original petition for a writ of mandamus is de novo. Rule 21(e)(1), Ala. R.App.P.; Ex parte Sharp, 893 So.2d 571, 573 (Ala.2003). The standard for 947 issuance of a writ of mandamus is well settled: "`"A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court." "`Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001) (citing Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000)).' "Ex parte McCormick, 932 So.2d 124, 127-28 (Ala.2005)." State v. Jones, 13 So.3d 915, 919 (Ala. 2008). III. Analysis The ultimate issue presented by this petition is whether a trial court has jurisdiction over a proceeding involving a defendant who has failed to comply with a restitution order when the defendant has completed his or her term of imprisonment and is not on probation or parole. The trial judge contends that the Court of Criminal Appeals erred when it issued a writ of mandamus directing the trial court to set aside its September 23, 2010, order for lack of jurisdiction. The trial judge argues that the court has jurisdiction to enforce its original order imposing restitution; that the civil remedies for collecting restitution are not exclusive; that the cases relied upon by the Court of Criminal Appeals do not preclude the trial court's actions in this case because Byrd was neither found indigent by the court nor incarcerated for his failure to pay; and that the public-policy concern that victims receive restitution supports the trial court's authority to enforce restitution orders, regardless of whether the defendant has completed his or her term of imprisonment or probation. The Alabama District Attorneys Association filed in this Court a brief as amicus curiae in support of the trial judge's mandamus petition, essentially presenting the same arguments. The Alabama Attorney General also filed a brief as amicus curiae, supporting the trial judge's arguments and further arguing that the practical consequences of the Court of Criminal Appeals' ruling would be dire; he avers that if that court's ruling is allowed to stand substantial changes would be necessary for trial courts and district attorneys to collect court-ordered restitution and that civil enforcement alone is not an adequate means to attempt to collect court-ordered restitution. In its response, the Court of Criminal Appeals questions whether Judge Stewart's petition properly states grounds appropriate for an original petition for a writ of mandamus under Rule 21(e)(1), Ala. R.App.P. The Court of Criminal Appeals also argues that the trial court was without jurisdiction to modify the restitution order more than 30 days after that order was entered, see Dixon v. State, 920 So.2d 1122 (Ala.Crim.App.2005); that there existed no statutory authority for the trial court to modify a restitution order after Byrd had completed his terms of imprisonment and probation; and that after probation had ended restitution was enforceable through the civil process described in § 15-18-78, Ala.Code 1975. In the Court of Criminal Appeals' response to Judge Stewart's petition, Judge Joiner, joined by Judge Burke, filed a separate response acknowledging that they were not members of that court at the time the writ was issued and that, had they been members of that court at that time, they would have dissented from the 948 order issuing the writ. Judge Joiner and Judge Burke state that they do not believe Dixon is controlling because in Dixon the trial court increased the total amount of restitution owed by the defendant, who was indigent, and then, even after the defendant had paid more in restitution than he was originally ordered to pay, ordered him incarcerated upon finding him in contempt for failing to pay the entire increased amount. They note that here there is no indication that Byrd is indigent, that the trial court did not alter the total amount owed but rather restructured the periodic-payment schedule in accordance with Byrd's financial circumstances, that the trial court did not find Byrd in contempt or incarcerate him for failure to pay restitution, and that Byrd has not yet paid the originally ordered total amount. Judge Joiner and Judge Burke further respond that they believe that restitution is a part a defendant's sentence and that the trial court accordingly retains jurisdiction over that portion of the sentence until the restitution is paid in full. Byrd also filed a response to Judge Stewart's petition, in which he argued that a writ of mandamus was not appropriate because, he said, the State has another adequate remedy at law in that it may use civil collection procedures to collect the unpaid restitution; that the Court of Criminal Appeals correctly found that the trial court was without subject-matter jurisdiction to summon Byrd to court to show cause why he should not be held in contempt for his alleged failure to pay full restitution in a case for which he was no longer incarcerated or on probation; that the proper manner to attempt to collect the restitution following the termination of probation would be the same manner as for a civil judgment, see § 12-17-225.6, Ala.Code 1975; that the trial court was without jurisdiction to modify the restitution order more than 30 days from the date the order was entered; and that Dixon and Johnson v. State, 17 So.3d 261 (Ala.Crim.App.2009) (holding that, for the reasons expressed in Dixon, the trial court was without jurisdiction to hold the appellant in contempt and to sentence her to community corrections for failure to pay court-ordered moneys) support his claim that the trial court was without jurisdiction to enter the later restitution orders in this case because Byrd had completed his sentence of imprisonment and probation. Byrd also challenges the arguments in the amicus brief of the attorney general, asserting that the cases cited in the amicus brief do not support the conclusion that the trial court in this case had continuing jurisdiction to enter the later orders. Section 12-1-7(3), Ala.Code 1975, provides that every court has the power "to compel obedience to its judgments, orders and process and to orders of a judge out of court, in an action or proceeding therein." Title 12, Chapter 17 of the Alabama Code 1975 is entitled "Circuit and District Court Personnel." Article 6 of Title 12, Chapter 17, addresses district attorneys; Division 4, § 12-17-225 et seq., Ala.Code 1975, is entitled "Restitution Recovery Division." The relevant provisions of Division 4 are § 12-17-225, -225.1, -225.2, and -225.3, and those provisions are quoted in pertinent part below: "It is the purpose of this legislation to ensure that court-ordered restitution to crime victims, victim compensation assessments, bail bond forfeitures, court costs required by law, fines levied against criminals for wrongful conduct, and other court-ordered sums payable to the state or to the crime victims be paid in full and that cost of collection be borne by the person who is responsible for payment. The Legislature of this state further recognizes that the district attorneys of the various judicial circuits 949 are mandated by law to represent the people of the state, and a strong public policy dictates that restitution, court costs, fines, and other court-ordered sums be enforced within each judicial circuit by the district attorneys in conjunction with the circuit clerks and local courts." § 12-17-225, Ala.Code 1975. "Any law to the contrary notwithstanding, each district attorney may establish a special division designated the `restitution recovery division' for the administration, collection, and enforcement of court costs, fines, penalty payments, victim compensation assessments, bail bond forfeitures, restitution, or like payments in civil or criminal proceedings ordered by the court and payable to the state or to crime victims, or judgements entered which have not been otherwise vacated, or judicial relief given from the operation of the order or judgement." § 12-17-225.1, Ala.Code 1975. "The court or the clerk of the court shall notify the district attorney in writing when any bail bond forfeitures, court costs, fines, penalty payments, crime victims' restitution, or victims' compensation assessments or like payments in any civil or criminal proceeding ordered by the court to be paid to the state or to crime victims have not been paid or are in default and the default has not been vacated. Upon written notification to the district attorney, the restitution recovery division of the office of the district attorney may collect or enforce the collection of any funds that have not been paid or that are in default which, under the direction of the district attorney, are appropriate to be processed. In no event shall a court or court clerk notify the district attorney in less than 90 days from the date the payments are due to be paid in full." § 12-17-225.2, Ala.Code 1975. "After notification as provided in Section 12-17-225.2, the district attorney may take all lawful steps necessary in order to require compliance with the court-ordered payments, including any of the following: (1) a petition for revocation of probation; (2) a show cause petition for contempt of court; (3) any other civil or criminal proceedings which may be authorized by law or by rule of court. In addition, the district attorney may issue appropriate notices to inform the defendant of the noncompliance of the defendant and a warning of the penalty for noncompliance." § 12-17-225.3, Ala.Code 1975. Title 15, Chapter 18, codifies the sentence and punishment aspect of criminal procedure; Article 4A of Title 15, Chapter 18, is entitled "Restitution to Victims of Crimes" and was enacted by Act No. 80-588, Ala. Acts 1980 ("the restitution act"). The legislative intent in enacting the restitution act is set forth as follows: "The Legislature hereby finds, declares and determines that it is essential to be fair and impartial in the administration of justice, that all perpetrators of criminal activity or conduct be required to fully compensate all victims of such conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof. The provisions of this article shall be construed so as to accomplish this purpose and to promote the same which shall be the public policy of this state." § 15-18-65, Ala.Code 1975. The restitution act also provides: "When a defendant is sentenced to a term of imprisonment, the order of restitution shall be enforceable during the period of imprisonment when the defendant 950 has any asset or other income or any portion thereof to which a defendant is or may be entitled. The Board of Pardons and Paroles shall be notified of the amount of restitution by its parole officers and when and if the defendant is paroled, it shall be made a condition of the parole to continue the restitution payments to the victim. If during the period of the defendant's parole, he or she fails to make restitution as ordered by the original court, it shall be grounds for revocation of parole." § 15-18-71, Ala.Code 1975. "(a) When a defendant whose sentence has been suspended and placed on probation by the court, and ordered to make restitution, defaults in the payment thereof or of any installment, the court on motion of the victim or the district attorney or upon its own motion shall require the defendant to show cause why his default should not be treated as violation of a condition of his probation. "(b) When the defendant is sentenced to the penitentiary by the court, and the court orders restitution, it shall be made a condition of his parole that restitution be made. When the parolee defaults in the payment thereof or any installment, the parole board on motion of the victim or the district attorney or the supervising parole officer, may require the defendant to show cause why his default should not be treated as a violation of a condition of parole, and the board may declare the parolee delinquent and after due process may revoke his parole." § 15-18-72, Ala.Code 1975.[2] "(a) A restitution order in a criminal case shall be a final judgment and have all the force and effect of a final judgment in a civil action under the laws of the State of Alabama. The victim on whose behalf restitution is ordered, the executor or administrator of the victim's estate, or anyone else acting on behalf of the victim, shall be entitled to all the rights and remedies to which a plaintiff would be entitled in a civil action under the laws of this state as well as any other right or remedy pertaining to such restitution order as may be provided by law. "(b) The provisions of this section shall be read and deemed in pari materia with other provisions of law. Provided however, the provisions of this section are cumulative and shall not be construed so as to deprive any victim of any other remedy or relief to which a victim may now or hereafter be entitled pursuant to law." § 15-18-78, Ala.Code 1975. Although the language in §§ 15-18-71 and 15-18-72 speaks only to restitution and potential penalties for nonpayment during the term of imprisonment, parole, and/or probation, nothing in those or any of the other statutes quoted above expressly prohibits a trial court from seeking to enforce restitution orders in the manner used by the trial court in this case. Even though the restitution act designates a restitution order as a final judgment with all the force and effect of a final judgment in a civil action entitling the victim to all rights and remedies recognized under civil actions, see § 15-18-78, nothing in the restitution act makes restitution a civil matter. Rather, restitution is viewed as being incident to criminal prosecution, see Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907 (Ala.1992), and is a 951 part of the criminal sentence that serves both a compensatory function for the victim and a rehabilitative function for the defendant. See Roberts v. State, 863 So.2d 1149 (Ala.Crim.App.2002). The Court of Criminal Appeals relied on Dixon, supra, in granting Byrd's mandamus petition and directing the trial court to set aside the September 23, 2010, order. In Dixon, the Court of Criminal Appeals held that the trial court was without jurisdiction to incarcerate Dixon for failure to pay the court-ordered restitution and was without jurisdiction to rule on Dixon's motion to amend his sentence more than 60 days after the pronouncement of sentence. The defendant in Dixon was originally sentenced to 10 years in prison with no probation and was ordered to pay $10,000 in restitution and $5,000 to the Crime Victims Compensation Fund. Dixon moved the trial court to set aside his sentence, and more than nine months later the trial court suspended Dixon's 10-year sentence, released him from prison, and placed him on probation; the trial court also increased Dixon's restitution to $75,000 and increased the amount to be paid to the Crime Victims Compensation Fund to $10,000. Nearly four months after that modification, the trial court revoked Dixon's probation for failure to pay the court-ordered moneys. Then, after Dixon completed his sentence, the State petitioned the court to hold him in contempt for failing to pay nearly $39,000 of the court-ordered restitution; the trial court eventually found Dixon in contempt and held him in jail pending payment of a lump sum of $10,000. The Court of Criminal Appeals reversed the trial court's decision, holding that because there was nothing in the record showing the agreement of the parties to a continuance of the motion beyond the 60-day period, the trial court lost jurisdiction to grant Dixon's motion to modify his sentence when the motion was denied by operation of law 60 days after sentencing and that the trial court was without jurisdiction to incarcerate Dixon, who was indigent, for failing to pay the increased court-ordered moneys. The court further noted that a court must have jurisdiction over both the person and the subject matter to find a person in contempt and that a court does not have jurisdiction to incarcerate an indigent defendant for his or her inability to pay court-ordered moneys. In Dixon, the trial court increased the total amount of restitution owed by the defendant, who was indigent, and then, even after the defendant had paid more than the originally ordered amount but less than the increased amount, ordered him incarcerated upon finding him in contempt for failing to pay the entire increased amount. As Judge Joiner, joined by Judge Burke, recognize, (1) there is no indication here that Byrd is indigent; (2) the trial court did not alter the total amount Byrd owed but restructured the periodic-payment schedule in accordance with Byrd's financial circumstances; (3) the trial court did not find Byrd in contempt or incarcerate him for failure to pay but merely modified Byrd's periodic-payment schedule; and (4) Byrd has not yet paid the amount originally ordered. Judge Joiner's observations are correct, and the holding in Dixon is not controlling based on the facts presented in this case. Dixon has been cited favorably in only one other opinion, Johnson v. State, 17 So.3d 261 (Ala.Crim.App.2009). Johnson was serving a probationary sentence; the trial court conducted a hearing to determine what action to take when Johnson, who was indigent, failed to pay court-ordered moneys, after which the trial court found Johnson in contempt and ordered that Johnson serve one year with the community-corrections program. Quoting extensively from Dixon, the Court of 952 Criminal Appeals held that Johnson had improperly been found in contempt and ordered to serve time in the community-corrections program for failure to pay court-ordered moneys. Byrd's reliance on Johnson, like Dixon, is not persuasive because Byrd was not indigent and neither was he found in contempt or ordered to serve any sort of incarceration for his failure to pay court-ordered moneys. The trial judge's argument in her mandamus petition is persuasive. Byrd has completed the portion of his sentence dealing with periods of time (e.g., incarceration and probation), but he has not completed the portion of his sentence dealing with restitution. Read together, the above-quoted statutes allow the trial court to take certain steps in an effort to have Byrd pay the restitution ordered by the trial court. In taking those steps, the trial court did not increase the total amount owed but, instead, modified the payment schedule in an effort to make it commensurate with Byrd's financial ability to pay and to take into account Byrd's changing financial circumstances. The trial court did not incarcerate Byrd for failing to pay the court-ordered restitution, nor did it even suggest that he would be incarcerated if he continued to fail to meet his payment obligations. Other civil remedies are available in the statutes addressing restitution to ensure that a victim receives his or her restitution, but they are not exclusive. In short, nothing in the restitution act prevents the trial court from taking the action taken in this case. The Court of Criminal Appeals erred in holding otherwise. IV. Conclusion Judge Stewart's petition for the writ of mandamus is granted; the Court of Criminal Appeals is directed to quash the writ of mandamus it issued on February 9, 2011, in Ex parte Byrd, requiring the circuit court to set aside its September 23, 2010, order. PETITION GRANTED; WRIT ISSUED. COBB, C.J., and STUART, BOLIN, and SHAW, JJ., concur. WOODALL, PARKER, and MURDOCK, JJ., concur in the result. WISE, J., recuses herself.[] NOTES [1] At the time the Court of Criminal Appeals issued its order granting Kevin Byrd's petition for a writ of mandamus, there were two vacancies on that court and the court consisted of three judgesPresiding Judge Welch and Judges Windom and Kellum, all of whom concurred in issuing the writ. [2] Section 15-18-72 was amended effective May 4, 1982, by Act No. 82-556, Ala. Acts 1982. [] Justice Wise was a member of the Court of Criminal Appeals when that court considered this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2486005/	680 F.Supp.2d 1177 (2009) UNITED STATES of America, Plaintiff, v. Mark E. CRAWFORD, Defendant. Nos. 1:02-CV-06498 OWW, 1:96-CR-05127 OWW. United States District Court, E.D. California. December 30, 2009. 1179 Stephen R. Kahn, Law Offices of Stephen R. Kahn, Beverly Hills, CA, for Plaintiff. Carl M. Faller, Carl M. Faller, Attorney at Law, Mark Eugene Cullers, U.S. Department of Justice, Fresno, CA, for Defendant. MEMORANDUM DECISION AND ORDER DENYING MARK CRAWFORD'S § 2255 PETITION (1:96-CR-05127, DOC. 812) OLIVER W. WANGER, District Judge. I. INTRODUCTION Before the court for decision is Defendant Mark Crawford's ("Crawford" or "Petitioner") motion pursuant to Title 18, United States Code, section 2255 ("Petition"). Petitioner contends that he did not receive the effective assistance of counsel during his June 1999 trial, which resulted in a jury convicting him of racketeering, racketeering conspiracy, murder in the aid 1180 of racketeering, kidnapping in the aid of racketeering, conspiracy, embezzlement from an employee welfare benefit plan, six counts of wire fraud, three counts of money laundering, obstruction of justice by killing a witness, obstruction of justice by retaliation against a witness (murder), threatening to commit a crime of violence against a witness, and three counts of perjury. Petitioner is currently incarcerated, serving a life sentence.[1] Doc. 720.[2] Crawford's central contentions are that his lead trial counsel, Bill May: (1) was unprepared for trial and was impaired by physical, emotional, financial, and legal problems during trial; (2) failed to call a key defense witness, William Noel, who May indicated in his opening statement would testify; and (3) had an actual conflict of interest that adversely affected his representation of Petitioner. Crawford maintains that he received a constitutionally inadequate defense warranting a new trial. II. PROCEDURAL HISTORY A. Original Petition. The original Petition alleged that Petitioner's lead trial counsel, Bill May, was ineffective in seven respects: (1) May failed to secure the attendance of a key defense witness, William Noel, who purportedly would have testified to a conspiracy to frame Petitioner for the murder of Nick Brueggen; (2) May failed to adequately prepare for trial, having admitted as much to Petitioner; (3) May suffered "overwhelming personal and financial problems" compromising counsel's duty of loyalty and creating a conflict of interest; (4) May suffered financial, emotional, and psychological problems contributing to his ineffectiveness as trial counsel; (5) May slept through certain portions of the trial proceedings; (6) May failed to offer Petitioner's sons' school attendance records into evidence to corroborate Petitioner's alibi defense; and (7) May failed to object to the prosecution's closing argument that Petitioner's sons were at school all day on the day of the murder. Doc. 812. B. Prior Evidentiary Rulings Several preliminary, evidentiary matters were determined by separate Memorandum Decision. Doc. 932. Petitioner's reply brief ("Reply") included numerous factual claims that were not discussed in the original petition, namely, that: (1) May failed to call other key witness; (2) May failed to call expert witnesses; and (3) arguments pertaining to May's disciplinary records. 1:02-cv-06498, Doc. 7-1. Petitioner moved to expand the record with materials submitted as exhibits to the Reply relating to these new factual claims. Id., Doc. 9. The government opposed this motion in part and moved to strike certain portions of Crawford's Reply, along with certain exhibits thereto, as time-barred. Doc. 920. The Reply was construed as a motion to amend the Petition subject to the relation back doctrine. Doc. 932 at 6-7. The motion to amend was granted as to evidence pertaining to May's alleged failure to call Petitioner's sons' Principal as a witness, id. at 21-22, but denied as to all other evidence regarding May's failure to call other witnesses, including fact witnesses Todd Houston, Robert Weekley, and Amber Miller, id. at 15-17, and several purported 1181 expert witnesses, id. at 18-21. The government's motion to strike newly offered evidence pertaining to May's disciplinary record was granted on the ground that the offered evidence did not reflect a pervasive pattern of conduct or conduct related to May's alleged failure to prepare for trials and/or the allegation that May operated under a conflict of interest. Id. at 22-24. Defendant also moved to produce certain Criminal Justice Act ("CJA") billing records and CJA 20 forms submitted by May in the context of the underlying criminal trial. The billing records were requested because Plaintiff believed they would help establish that May was unprepared for trial. 1:02-cv-06498, Doc. 8. The CJA 20 forms require counsel to disclose under penalty of perjury any outside income earned during the course of a CJA-funded representation. Crawford alleges that May never informed the CJA Panel Administrator of certain private compensation he was receiving during the trial and suggests that this failure, if proven, might undermine May's credibility. Defendant's motion was granted as to the CJA 20 Forms, but denied as to the billing records, because the billing records would shed no additional light on Petitioner's allegations. Doc. 932 at 25-26. The CJA Panel Administrator produced the CJA 20 forms and the parties were permitted to, and did, submit supplemental briefs concerning those records. Id. at 27; Docs. 937 & 939. The court heard oral argument on the Petition before its submission. III. FACTUAL BACKGROUND. A. Overview of the Enterprise. The charges in this case relate to the organized crime activities of a racketeering enterprise known as the "Family," which was based in Southeast Texas and led by Petitioner, the former mayor of Ingleside, Texas. The charged members of the Family were defendant Mark E. Crawford, Frank R. Bochicchio, John R. Crawford (Defendant's brother), Mike Beckcom, Kirk A. Johnson, David Franco, George N. "Nick" Brueggen, Juan P. Galvan, and others. The evidence at trial established that Mark Crawford was the leader of the Family, and that he gave other members large, distinctive gold rings, with the Chinese symbol for "family" emblazoned on them. Reporter's Transcript of Trial ("R.T.") at 775-76 (Sipila). The ring symbolized loyalty, both to each other and to Family boss Mark Crawford. Id.; R.T. 2632:22-23 (Beckcom). The ring also meant that "anybody who fucks with the Family is going to fucking pay." R.T. 776:14-15 (Sipila). The Family members' crimes, as charged in the indictment and proven at trial, fall into four main categories: (1) Operation of a phony health insurance company, "Viking Casualty Company," which defrauded health plan participant victims in and around Fresno, California; (2) Operation of multiple employee staff leasing companies in southeast Texas and in Gulfport, Mississippi, which defrauded their clients and the IRS; (3) Operation of a phony "Builder's Home Warranty" insurance company in southeast Texas, with victims in Colorado and elsewhere; and (4) Kidnapping and murder of one of the Family's own members, Nick Brueggen, after he began to cooperate with federal law enforcement authorities in the Eastern District of California conducting a grand jury investigation into Viking Casualty Company. B. The Viking Casualty Company Scam. Count One's racketeering predicate acts one (embezzlement from an employee welfare benefit plan), two (wire fraud), three 1182 (money laundering), and four (money laundering conspiracy) all pertain to Mark Crawford's participation in a fraudulent insurance company with John Crawford, George Brueggen, Harry Clift, and others. See Second Superseding Indictment, Doc. 88 at 2-13. From the fall of 1992 through 1995, a company called Ararat International Administrators ("Ararat") operated in Fresno, California. R.T. 281 (Rodriguez). Ararat was a third party administrator of health insurance plans for small businesses. R.T. 280. Ararat accepted premiums from small business clients and, after deducting administrative fees, forwarded the premiums to an insurance carrier for underwriting to provide health benefits for plan participants (employees of the businesses). R.T. 281. In late 1992, Ararat was looking for an insurance company to serve as its underwriter. R.T. 282. Insurance brokers Jarman Holland and James Carroll, of Tennessee, helped Ararat find Viking Casualty Company ("Viking"), based in Corpus Christi, Texas. R.T. 316-20 (Carroll). During the search for Viking, James Carroll spoke initially with defendants George N. Brueggen and Harry E. "Skip" Clift, who represented themselves as representatives of Viking. R.T. 321. Both Brueggen and Clift told Carroll that Viking was willing to take over the risk and assume the business forwarded by Ararat. R.T. 321-22. On March 25, 1993, Carroll and Holland, acting as representatives of Ararat, traveled to Corpus Christi to meet with Viking officials and finalize the arrangements for Viking to assume the Ararat block of business. R.T. 338. Mark Crawford and his brother John Crawford met Carroll and Holland at the airport, and brought them to what the Crawfords represented was Viking's headquarters. Id. Brueggen and Harry Clift were brought in to the meeting and introduced as Viking executives. R.T. 340-41, 343. Ararat and Viking agreed in writing that Viking would assume health benefit underwriting for Ararat's clients. R.T. 343-44. The agreement called for Ararat to collect health insurance premiums and keep 22.5% for its administrative fees and costs. R.T. 347. Ararat was also to keep 40% of the premiums collected to pay small claims, and remit the balance (minus agents' fees) to Viking. R.T. 347-48. This amount remitted to Viking was approximately 30% of premiums collected. Id. The money, held in a trust account in Tennessee, R.T. 348, was to be wire transferred to an account set up by Brueggen, in Houston, Texas, R.T. 350. Viking was an admitted insurance carrier in the District of Columbia, but was suspended, as of December 31, 1992, from conducting any business. R.T. 481-82 (Sheppard). Viking had never applied to do business in the State of California, and a Certificate of Authority permitting Viking to do such business has never been issued. R.T. 496 (Torrescano). Viking was seriously undercapitalized and was essentially without assets. See R.T. 482. Racketeering predicate act one (embezzlement from an employee welfare benefit plan) encompassed the whole of Mark Crawford's conduct regarding Viking Casualty Company and the premium funds received from Ararat International Administrators. Doc. 88 at 6-9. From March 1, 1993, through July 30, 1993, Ararat transmitted $222,573 in health insurance premium funds to Viking accounts under the control of Brueggen, Mark Crawford, and John Crawford. R.T. 698 (Spjute). When Ararat submitted claims to Viking on behalf of its policyholders, Viking did not pay them, R.T. at 719, and instead kept the premium funds for the Crawfords' use and benefit. 1183 Racketeering predicate act two (wire fraud) consisted of three sub-predicates, each pertaining to a specific document sent over the wires. Doc. 88 at 9-10. Sub-predicate one was a March 29, 1993 facsimile from Brueggen, as a representative of Viking, to Ararat representative James Carroll, id. at 10, instructing Carroll to send Money to a Houston account, R.T. 350. Sub-predicate two was an April 8, 1993 facsimile from James Carroll to Brueggen, breaking down how premium payments would be distributed. R.T. 353. Sub-predicate three was a June 8, 1993 facsimile from Brueggen to Jarman Holland, Carroll, and VK Holding Company, requesting payment of fees to Viking Casualty and himself (Brueggen). R.T. 357. C. The Staff Leasing Scam. Racketeering predicate acts fourteen (wire fraud), fifteen (money laundering), and sixteen (money laundering conspiracy) all pertain to the participation of defendant Mark Crawford and his co-defendants in the Family's fraudulent staff leasing companies, including, but not limited to, Superior Employee Leasing and StaffPro. Doc. 88 at 24-28. A staff leasing company contracts to hire all of a client business's employees, and then leases those employees back to the client. The staff leasing process defers expenses, such as payroll, quarterly payment of the employer's share of employee tax withholdings to the IRS, and the payment of workers' compensation insurance. See generally R.T. 2092-94 (Zamora). The Family's staff leasing businesses assured its clients that they would duly hold and forward all payroll taxes owed to the IRS. The companies would collect the employer's share of the employees' withholding tax payments from client companies. However, instead of forwarding all of the taxes to the IRS, the Family pocketed much of the money. See generally R.T. 900-02 (McGuill); R.T. 1017-19 (Tichenor); R.T. 1391 (Cagle). The Family's staff leasing companies failed to pay taxes due and often failed to file tax returns at all for the businesses to which it leased employees. See generally R.T. 2067-81 (Zamora). The scheme netted the Family millions of dollars in just a few years. Id. Between 1993 and 1996, Family members acting under the direction of Mark Crawford formed a number of overlapping and interrelated staff leasing companies. The strategy was to operate these businesses, pocket the payroll tax and insurance money, and, when the IRS started closing in, shut the company down, declare bankruptcy, and transfer the clients to a new employee staff leasing company under another Family member's name. See R.T. 1347-49, 1354 (Beckcom); R.T. 895 (McGuill); R.T. 962-64 (Moreno); R.T. 1013-1017; R.T. 1093 (Tichenor). The scheme generated tens of thousands of dollars for Mark Crawford and the Family per week. At one point Mark Crawford alone was incurring at least $35,000 per month in personal expenses. See R.T. 2121 (Zamora); R.T. 1349 (Beckcom). All of the staff leasing businesses were interrelated. Defendant Mark Crawford, often together with his brother, John, acted as the boss. See, e.g., R.T. 752-54 (Sipila), R.T. 888 (McGuill), R.T. 1348 (Beckcom). Co-defendant Bochicchio put the bank accounts in his name for multiple businesses. See, e.g., R.T. 772, 853-54 (Sipila); R.T. 1524, 1527 (Obenhaus). Co-defendant David Franco was the accountant for all of the companies. R.T. 778-79 (Sipila). Galla McGuill was bookkeeper. R.T. 888-92 (McGuill). Multiple businesses operated from the same offices. Id. No matter which Family member a business might nominally belong to, money was siphoned out to support Mark Crawford and his fellow Family members and friends in lavish style, and to maintain the 1184 enterprises. See, e.g., R.T. 786-90, 793-94, 806-07 (Sipila); R.T. 899 (McGuill); R.T. 964-67 (Moreno); see generally R.T. 2094-110 (Zamora). The evidence established that the various companies and their revenues were, as a practical matter, completely interchangeable. As one witness put it, "everything got intermeshed and intertwined-it all became a big mess." R.T. 850, 852 (Sipila); see generally R.T. 1013-17 (Tichenor). For example, money would be siphoned out of Superior Employee Leasing and transferred to StaffPro, and "vice versa." R.T. 794-96 (Sipila). This would occur by dummy payments to individuals, or by wire transfers. R.T. 798-802; see generally R.T. 1186-91 (R. Garza). Large payments from these interchangeable accounts would often go to Bochicchio. See, e.g., R.T. 802-03 (Sipila); R.T. 903-04, 932 (McGuill); R.T. 984-87 (Moreno); R.T. 1154-55 (Willis); R.T. 1175-76 (R. Garza). Bochicchio would pick up his payments at multiple locations, including the StaffPro offices R.T. 1128-29 (Willis). D. The Builders Home Warranty Insurance Scam. Count One's racketeering acts seven through nine (wire fraud), ten through twelve (mail fraud), and thirteen (money laundering) pertain to co-defendant Bochicchio's participation in the Builder's Home Warranty insurance scam. Doc. 88 at 15-21. This scam primarily enriched the deceased, Nick Brueggen, and later Bochicchio, but money also flowed to Mark Crawford and the other Family members to maintain their lifestyles and to fund their criminal activities. The builder's home warranty insurance scam's main victims were the new home warranty customers of a company called Builder's Home Warranty ("BHW"), located in Englewood, Colorado. R.T. 1763-67 (DeRocher). BHW's business was to provide HUD-required home warranties to home builders to protect new home buyers. R.T. 1763-65. On average, a builder would pay BHW about $300 per home for the new home buyer's warranty protection, which was supposed to cover the cost of fixing any workmanship problems that surfaced in the home. Id. BHW was not an insurance company. Rather, HUD required it to contract with an insurance company to provide extra protection to the new home buyer. R.T. 1765-66. The insurance company received, on average, about half of the fee the builder paid to BHW. Id. BHW was to cover repairs costing up to $5,000; BHW's insurance company would cover repairs costing more than $5,000. R.T. 1765. Starting in 1993, Brueggen, doing business as "People's Insurance Company," began providing "insurance" coverage for BHW for the home warranties. R.T. 1766-67. Every month, BHW would overnight mail or wire transfer tens of thousands of dollars in insurance premiums from Colorado to Brueggen in Houston. R.T. 1767-69. By 1996, the payments were in the neighborhood of $60,000 per month. R.T. 1768-69. In addition, BHW also sent Brueggen a "consulting fee" amounting to ten percent of the monthly premiums. R.T. 1770-71. Between 1993 and his murder on May 6, 1996, Brueggen collected roughly $673,000 from the BHW scam. R.T. 1960-64 (Spjute); Government Exhibit ("GX") 5R. Brueggen administered his "insurance business" with the help of a CPA, James Knight, in Houston, Texas. R.T. 1559-60 (Knight). Payments and paperwork would come in to the CPA's office from BHW. Following Brueggen's instructions, Knight and his staff would pay Brueggen's personal expenses, and would stamp the insurance-related paperwork with a stamp bearing the signature: Mulk Raj Dass. 1185 R.T. 1633-36 (Hettenbach). This same fictitious signature stamp was used by Bochicchio and Mark Crawford for the operation of some of the employee staff leasing businesses. R.T. 1527-30 (Obenhaus). Brueggen was not a licensed insurance agent, nor was he affiliated with any real or legitimate insurance carrier. See R.T. 1743-46 (Sherman). The name under which he chose to operate was in fact the name of a real insurance company, affiliated with the large and reputable Progressive Casualty Insurance Company. R.T. 1721-24 (Schneider). However, Brueggen had nothing whatsoever to do with Progressive Casualty, the real insurance company, the real affiliates of which never did business in Colorado or Texas after 1990, and never underwrote builder's home warranty insurance policies. Id. Regardless, Brueggen, and later Bochicchio, worked actively to maintain the charade. As the name of the real insurance company changed over the years from "Peoples Insurance Company" to "Pro West Insurance Company" to "Progressive West Insurance Company," the name of the fake company in Texas changed with it. R.T. 1722; R.T. 1914-15, R.T. 1926 (Garcia). The phony companies never purchased insurance. From 1993 through the beginning of 1996, most of the BHW insurance premium windfall apparently went to enrich Brueggen. R.T. 1960-61 (Spjute); GX 5R. Some of Brueggen's insurance premium income, however, also went to the Family. For instance, in late 1995, Brueggen wired $10,000 to Mark Crawford so that one of the Family's employee staff leasing companies, Unique Contracting, could meet its payroll. R.T. 3857 (Recio). E. Bochicchio Becomes the Front Man. In early 1996, Brueggen began to see the need for a front man for the BHW scam. In January 1996, he received a letter from the United States Attorney's Office in the Eastern District of California informing him that he was a target of a grand jury investigation into Viking. R.T. 2267 (Horne). Because the federal authorities were focusing on Brueggen, it was decided that Bochicchio would put the phony BHW business in his name. R.T. 2630 (Beckcom). This meant, Bochicchio would play the same "front man" role he played for Mark Crawford's staff leasing companies. Id. In March of 1996, Brueggen brought Bochicchio to his accountant's office and introduced Bochicchio as the person who would be taking over the insurance business. R.T. 1574 (Knight); R.T. 1645 (Hettenbach). Like Brueggen, Bochicchio had no insurance license and no connection whatever to any bona fide insurance carrier. See R.T. 1745 (Sherman); R.T. 1721-24 (Schneider). Bochicchio instructed the accountant to continue to use the "Mulk Raj Dass" (an unrelated person) signature stamp when paying the company's bills. R.T. 1636 (Hettenbach). From then on, Bochicchio was in frequent contact with the accountant's office, giving instructions. See R.T. 1610-12 (Knight); R.T. 1645-52 (Hettenbach). That same month, Brueggen also notified BHW that premiums were no longer to be sent to "Peoples Insurance Company," but instead to Peoples/BHW in care of Bochicchio. See R.T. 1774-75 (DeRocher). In late March 1996, Brueggen and Bochicchio incorporated, in the State of Texas, the fraudulent insurance company "People's BHW" and a holding company, Infinity Operations. R.T. 1614-18 (Knight). In April 1996, Bochicchio and Brueggen set up two new bank accounts in the name of Bochicchio's Peoples/BHW company, but to which Brueggen had access, at the First State Bank in Corpus Christi, Texas. R.T. 1186 1682-83 (Russell). Bochicchio personally authorized the new accounts. R.T. 1683. Beginning in March or April of 1996, BHW, following Brueggen and Bochicchio's instructions, began sending BHW premiums to Bochicchio instead of directly to Brueggen. R.T. 3784-85 (DeRocher). At this point, Brueggen was still alive and had access to the accounts. See R.T. 1682 (Russell). F. Conspiracy to Distribute Marijuana. When the staff leasing companies of the Family began to have financial difficulties, Mike Beckcom suggested to Mark Crawford that they sell marijuana to make some extra cash. R.T. 2626-27 (Beckcom). This discussion occurred in early 1996. R.T. 2627, 2674. During this same time, defendant Kirk Johnson was calling Mike Beckcom asking Beckcom for different drugs. R.T. 2627. Kirk Johnson also asked Beckcom if he knew of ways to make some extra money. Id. Mike Beckcom obtained thirty pounds of marijuana from a man in Houston for $17,500. R.T. 2674-76. He received delivery of the marijuana in a box from the man. R.T. 2678. Inside the box, the marijuana was bundled into various weights. R.T. 2679. Mike Beckcom and Mark Crawford then sat down to decide how they were going to sell it. R.T. 2680. They decided to drive it to New York. R.T. 2681. Mark Crawford and Beckcom drove the drugs to New York, where they contacted a man Beckcom knew. R.T. 2681. Beckcom's contact agreed to purchase the drugs for $800 per pound. R.T. 2682. Mark Crawford and Mike Beckcom met with the man in a hotel room and gave him a duffel bag containing 50 pounds of marijuana. R.T. 2684. Mark Crawford and Mike Beckcom then traveled to the Port Arthur, Texas, area to provide Kirk Johnson five pounds of the marijuana to sell for the Family. R.T. 2627. Kirk Johnson sold the marijuana and gave Mike Beckcom some of the proceeds from the sale. Id. Mike Beckcom also received money wired to him from New York as a result of the delivery of marijuana there. Id. When Beckcom received money from the sale of marijuana, he gave the money to the head of the Family, Mark Crawford. R.T. 2628. G. Bankruptcy Fraud In September of 1994, Mark Crawford, doing business as Superior Employee Staff Management, Inc. ("Superior"), filed a Chapter 11 bankruptcy petition in Texas. R.T. 2022-23 (Wendlandt). Chapter 11 allows a business to continue to operate under Bankruptcy Court protection while it pays off its debts, under the supervision of a trustee. R.T. 2021. At the time this bankruptcy petition was filed, the business owed the IRS more than $1 million in withholding taxes, penalties, and interest. R.T. 2023. When a business such as Superior files bankruptcy, the officers of the company become "debtors-in-possession." R.T. 2025. A debtor-in-possession has a duty to operate the business in a reasonable manner so that the creditors of the business can receive a fair return on the amounts owed to them. R.T. 2025-26. A monthly operating report must be filed with the bankruptcy court, stating, under penalty of perjury, the amount of money the business has taken in, the expenses of the business, and the value of any assets. R.T. 2027. Mark Crawford submitted two monthly operating reports, one covering August-September, 1995, and another covering October-November, 1995. R.T. 2028. The reports were signed by Mark Crawford under penalty of perjury. R.T. 2027. On January 8, 1996, Mark Crawford testified at a hearing in U.S. Bankruptcy 1187 Court, Corpus Christi, Texas, concerning Superior's Chapter 11 petition. R.T. 2029. Petitioner admitted taking money earmarked for paying withholding taxes and using the funds to pay an insurance company. R.T. 2031. He admitted that he paid the insurance company $2 million, the bulk of which came from diverted employee withholding taxes. Id. H. The Kidnapping and Murder of Nick Brueggen. In April 1996, defendant Mark Crawford learned that Nick Brueggen had met with federal authorities in Fresno. See R.T. 2268 (Horne); R.T. 2634 (Beckcom). He became enraged that Brueggen was "snitching in California." R.T. 2635 (Beckcom). Mark Crawford said: "Nick's dead." R.T. 2636 (Beckcom). In early May 1996, Bochicchio mentioned to his bank teller in Corpus Christi that "some associates of his were picking up a gentleman from the airport that was coming from Houston...." R.T. 1928 (Garcia). On May 6, 1996, defendant Mark Crawford told Mike Beckcom and defendant Kirk Johnson to pick up Brueggen at the Corpus Christi airport when his flight arrived from Houston. R.T. 2637 (Beckcom). For the promise of $2,500 from Mark Crawford, Kirk Johnson agreed to help. R.T. 2638. Beckcom and Johnson picked up Brueggen and brought him to Mark Crawford's building at 561 Jacoby Lane. R.T. 2641-42. When they arrived at Jacoby Lane, the three men got out of the car and entered the building. R.T. 2643. Beckcom and Johnson drew guns on Brueggen. R.T. 2643-44. Mark Crawford screamed at Brueggen: "You fucked me, you screwed my family. You've fucked me for the last time. You are going to fix it today and you are leaving the country." R.T. 2644. Johnson kept Brueggen at gunpoint while Mark Crawford and Beckcom went to Wal-Mart. R.T. 2645-46. When Crawford and Beckcom returned to Jacoby Lane, Crawford and Brueggen had a conversation about some documents. R.T. at 2647. Brueggen told Crawford the documents were in Houston. Id. Crawford indicated they were going to retrieve the documents from Houston. See id. Crawford then took Brueggen's keys, and forced Brueggen to get into a large toolbox (a "Jobox"). R.T. 2648. Johnson remained behind with Brueggen while Crawford and Beckcom went to the Corpus Christi airport to purchase tickets to Houston. R.T. 2648-49. After making travel arrangements, Crawford and Beckcom returned to Jacoby Lane. R.T. 2649. By then, Johnson had let Brueggen out of the Jobox. Id. Crawford became angry and made Brueggen get back into the box, threatening: "Get in the fucking box or I will pop a fucking cap into you." Id. Brueggen got back into the box, and Crawford closed the lid. R.T. 2650. It was extremely hot in the building. Mark and Beckcom then went to a Dairy Queen in Ingleside to meet with Bochicchio. R.T. 2650 (Beckcom). As Beckcom put it: We sat down and they had a conversation. First Frank [Bochicchio] was kind of guarded. I could tell that everyone was kind of nervous. Crawford asked him-it was pretty much in relationship to a wire transfer that was expected into the account that Bochicchio had for Brueggen. Id. Later that afternoon, while Brueggen was still locked in the Jobox, Bochicchio stopped by 561 Jacoby Lane, and Beckcom introduced Bochicchio to Johnson. R.T. 2652 (Beckcom). "The rat's in the trap," Mark Crawford told Bochicchio. Id. Bochicchio hugged Mark Crawford, then Bochicchio left. Id. A short time later, Mark Crawford, Beckcom, and Kirk Johnson made a final 1188 trip to Wal-Mart, leaving Brueggen locked in the Jobox. At Wal-Mart the three picked up duct tape and a garden hose. R.T. 2653-55. When they returned to Jacoby Lane, Beckcom backed his Ford Explorer into the building, leaving it running. R.T. 2656 (Beckcom). Johnson taped one end of the garden hose to the Ford's exhaust pipe. Id. Mark Crawford taped the other end to the Jobox. Id. Mark Crawford and Johnson then together taped over all of the remaining air holes in the Jobox. R.T. 2656-57. They stacked debris on the Jobox to "dampen the noise" of Nick Brueggen's last moments. R.T. 2657. Mark Crawford, Beckcom, and Johnson then walked outside the building and made small talk while Brueggen was asphyxiated by the exhaust fumes. R.T. 2657-58 (Beckcom). After Brueggen was dead, Kirk Johnson took the "family" ring off Brueggen's hand at Mark Crawford's request. R.T. 2661-62. A few days after the murder, Mark Crawford instructed Mike Beckcom to give Kirk Johnson the "Family" ring formerly worn by the man Johnson helped murder. R.T. 2625, 2663-64 (Beckcom). "Welcome to the Family," Mark Crawford told Johnson. R.T. 2625, 2663-64. Johnson accepted the ring. See R.T. 2437. About a month later, on June 6, 1996, Brueggen's body was found in a shallow grave behind 561 Jacoby Lane. R.T. 2466-69 (Rivera). On hearing that the body had been found, Bochicchio told Beckcom, "Yeah, that's Mark's problemI told him not to bury him there." R.T. 2665 (Beckcom). After the body was found, Mark Crawford became a fugitive. He left Texas and abandoned his red Mercedes in New Orleans. R.T. 2808 (Bates). In the car, Mark Crawford left behind BHW correspondence between Brueggen and BHW CEO Andrew Jelonkiewicz. R.T. 2810-11 (Bates); GX 8C-1 and 8C-2. Mark Crawford was arrested in Mississippi on July 13, 1996. R.T. 2831-32 (Kerley). He had a disguise, which included a woman's wig and clothing. R.T. 2833-34. In the mobile home where Crawford was arrested, officers found a blue notebook containing Mark Crawford's inculpatory statements concerning the kidnapping of Nick Brueggen. R.T. 2834-37. I. Bochicchio's Continued Maintenance of the Scams. At the same time that Mark Crawford was bestowing his "family" ring upon Kirk Johnson, a few days after Nick Brueggen's murder but before his body was found, Bochicchio transferred the Peoples/BHW and Infinity Operations bank accounts again, this time to accounts in Corpus Christi over which Brueggen had no control. R.T. 1885-86. Starting a few days later, Bochicchio made a series of large withdrawals from the account. On May 18, 1996, he made two cash withdrawals, for $7,206.38 and $3,245, respectively. R.T. 1888-89; Government's Exhibits 5W-3, 5W-4. The very next day, he withdrew $8,463 in cash. R.T. 1889; Government's Exhibit 5W-5. About eleven days later, on May 31, 1996, he withdrew $8,846 in cash. R.T. 1889; Government's Exhibit 5W-6. On May 15, 1996, Bochicchio also took out a loan for $10,000 against a certificate of deposit he had purchased with BHW premium money. R.T. 1890-92; GX 5W. Meanwhile, insurance premium money continued to flow in from Colorado. From 1996 through 1998, Bochicchio took in over $2.2 million in BHW premium funds. R.T. 1964 (Spjute); Government's Exhibit 5R; R.T. 1898-1900 (Garcia). Bochicchio used the money for personal items, to purchase real property in the Corpus Christi area, buy certificates of deposit, and obtain cash. R.T. 1965 (Spjute); R.T. 1905-1922 (Garcia). At no time did Bochicchio ever engage in any insurance related activities, home warranty or otherwise. See R.T. 1189 1900-03 (Garcia). However, Bochicchio from time to time mailed letters on fake letterhead, sometimes with forged signatures, to Colorado to keep the money coming. See, e.g., R.T. 1902-04 (Garcia); R.T. 1965 (Spjute), 1969-79 (listing various forged documents purporting to show existence of an insurance business, found during a search warrant executed at Bochicchio's residence). Also, Bochicchio, from time to time, changed the name of his "insurance company" to correspond to the name changes of the real insurance company. See, e.g., R.T. 1914-15 (Garcia) (accounts in the dba name "Peoples Pro West" opened); R.T. 1926 (Garcia) (company now referred to as "Progressive Insurance Company"); see also R.T. 1722 (Schneider) (listing name changes of the real company). J. State Murder Trials. May served as Petitioner's trial counsel in both state trials.[3] Mark Crawford was tried twice in the State of Texas for his involvement in the murder of Nick Brueggen. The first trial ended in a hung jury; the second in acquittal. K. Federal Indictment. Mark Crawford and numerous other members of the Family were indicted in the Eastern District of California on May 30, 1996 on multiple felony charges related to the racketeering enterprise and the kidnapping and murder of Nick Brueggen. 1:96-cr-5127 Docs. 1, the grand jury returned a second alleging the following charges: Count Defendant Charge 1 Mark E. Crawford, Racketeering Frank R. Bochicchio, 18 U.S.C. § 1962 John R. Crawford, David Franco, Jr., Kirk A. Johnson, Juan P. Galvan 2 Mark Crawford Racketeering Conspiracy Bochicchio 18 U.S.C § 1962(d) John Crawford Franco Johnson Galvan 3 Mark Crawford Murder in Aid of Racketeering Bochicchio 18 U.S.C. § 1959(a)(1) Johnson 4 Mark Crawford Kidnapping in Aid of Racketeering Bochicchio 18 U.S.C. § 1959(a)(1) Johnson 5 Mark Crawford Conspiracy John Crawford 18 U.S.C. § 371 Harry E. Clift 6 Mark Crawford Embezzlement from an Employee Welfare Benefit Plan John Crawford 18 U.S.C. § 664 Clift 7-13 Mark Crawford Wire Fraud 1190 John Crawford 18 U.S.C. § 1343 Clift 14-16 Mark Crawford Money Laundering John Crawford 18 U.S.C. § 1956 Clift 17 Mark Crawford Obstruction of Justice by Killing a Witness 18 U.S.C. § 1512(a)(1)(C) 18 Mark Crawford Obstruction of Justice by Retaliation against a Witness (Murder) 18 U.S.C. § 1513(a)(1)(B) 19 Mark Crawford Threatening to Commit a Crime of Violence against an Individual 18 U.S.C. § 1959 20 Mark Crawford Perjury before a Grand Jury 18 U.S.C. § 1623 21 Mark Crawford Perjury before a Grand Jury 18 U.S.C. § 1623 22 Mark Crawford Perjury before a Grand Jury 18 U.S.C. § 1623 23 John Crawford Perjury before a Grand Jury 18 U.S.C. § 1623 24 Bochicchio Perjury before a Grand Jury 18 U.S.C. § 1623 25 Bochicchio Perjury before a Grand Jury 18 U.S.C. § 1623 26 Franco Perjury before a Grand Jury 18 U.S.C. § 1623 27 Franco Perjury before a Grand Jury 18 U.S.C. § 1623 28 Mark Crawford Criminal Forfeiture Bochicchio 18 U.S.C. § 1963 John Crawford Johnson Galvan Doc. 88. Count One of the second superseding indictment charged the following predicate racketeering acts: RICO Act Defendant Charge 1 Mark Crawford Embezzlement John Crawford 18 U.S.C. § 644 2 Mark Crawford Wire Fraud John Crawford 18 U.S.C. § 1343 3 Mark Crawford Money Laundering John Crawford 18 U.S.C. § 1956(a)(1)(B)(i) 4 Mark Crawford Money Laundering Conspiracy John Crawford 18 U.S.C. §§ 1956(a)(1)(B)(i), 1956(h) 5 Mark Crawford Conspiracy to Distribute Marijuana Johnson 21 U.S.C. §§ 846, 841(a)(1) 6 Mark Crawford Kidnapping and Murder Bochicchio Tex. Penal Code Ann. §§ 7.01, 7.02, 19.02(b)(3), 19.03(a)(2), 20.04 Johnson 1191 7-9 Bochicchio Wire Fraud 18 U.S.C. § 1343 10-12 Bochicchio Mail Fraud 18 U.S.C. § 1341 13 Bochicchio Money Laundering 18 U.S.C. § 1956(a)(1)(B)(i) 14 Mark Crawford Wire Fraud Bochicchio 18 U.S.C. § 1343 John Crawford Galvan Franco 15 Mark Crawford Money Laundering Bochicchio 18 U.S.C. § 1956(a)(1)(B)(i) John Crawford Galvan Franco 16 Mark Crawford Money Laundering Conspiracy Bochicchio 18 U.S.C. §§ 1956(a)(1)(B)(i), 1956(h) John Crawford Galvan Franco 17 Mark Crawford Bankruptcy Fraud 18 U.S.C. § 1962(d) Id. On July 27, 1998, defendant Mark Crawford was arraigned on the second superseding indictment and pleaded not guilty. Doc. 103. L. Petitioner's Representation During the Federal Trial. Fresno Attorney E. Marshall Hodgkins was initially appointed by the district court to represent Crawford in the federal case. Crawford specifically requested that May be appointed to represent him as well. Doc. 55. At a hearing on March 3, 1998, Hodgkins represented that, in his 20 years of practice, this was "the most complex case ... [he had] ever handled." Petitioner's Reply, Doc. 7, Exhibit ("PRX") 15 at 4. Hodgkins also requested that May be appointed co-counsel. May agreed to serve as lead counsel, with Hodgkins serving the function of local counsel. Id. at 6. May agreed, representing that he knew "so much about the case, it would take forever for me to tell anyone else everything I know about it...." Id. at 6-7. May was appointed "attorney of record" and "trial counsel," while Hodgkins was appointed "local counsel" to "assist May at his direction." PRX 16 at 1-3, 5, 7. In March 1999, Hodgkins withdrew as counsel for Crawford. See Doc. 250. In April 1999, approximately two months before trial, Roger Litman was appointed to replace Hodgkins. PRX 3, Litman 6/20/03 Depo., at 6-7. Litman was wary of accepting an appointment in such a complicated case so close to trial, but May told him "not to worry about having enough time to get up to speed because the case was going to be continued...." Id. at 7-8. Litman accepted the appointment in large part based on May's assurance that the trial was going to be continued. Id. at 8. On June 7, 1999, a few weeks prior to the scheduled trial, the district court held a hearing to consider motions in limine. May failed to appear. Litman relayed to the court a telephone conversation he had with May that morning in which May had said that because of May's financial situation, "there is no way [May] could be [in Fresno] for two or three months, having to pay the hotel, having to pay for the ongoing 1192 operation of his office in Corpus Christi without, and the words he use were, `going broke.'" PRX 21, Reporter's Transcript of 6/7/99 Proceedings, at 16. May also told Litman that even "assuming the housing situation could be worked out so that he wasn't in a position where he was going to be going broke, that [May] felt that he could not be fully prepared to represent Crawford without a 30-day continuance of the trial." Id. at 22. The request for a continuance was denied. Id. at 22. This left Litman with, in his opinion, insufficient time to adequately prepare for trial: [W]hen I got onboard, Mr. May had assured me the case was going to be continued, and I'd have sufficient time to be properly prepared .... And in fact, when he sent me in there, I'll say as his sacrificial lamb, to make and unsupported request for a continuance, that was... I won't say summarily rejected, but rejected and denied by the court because it was without legal or factual basis, um ... I started wondering, what am I getting into. PRX 5, Litman 2/24/06 Depo., at 173. Litman believes that he was "duped" by May on the issue of the continuance. Id. at 175. Litman did not raise his concerns about inadequate time to prepare with the court nor with anyone else. By then, the case had been pending for three years, and May had been in the case as attorney of record for over one year and three months. M. Disposition of the Federal Trial. The jury trial began on June 23, 1999. Doc. 368. On August 20, 1999, the jury convicted Petitioner of racketeering, racketeering conspiracy, murder in aid of racketeering, kidnapping in aid of racketeering, conspiracy, embezzlement from an employee welfare benefit plan, six counts of wire fraud, three counts of money laundering, obstruction of justice by killing a witness, obstruction of justice by retaliation against a witness (murder), threatening to commit a crime of violence against a witness, and three counts of perjury. Doc. 462. Defendant Kirk Johnson was convicted of four counts: racketeering, racketeering conspiracy, murder in aid of racketeering, and kidnapping in aid of racketeering. Doc. 458. Co-defendant John Crawford was convicted of 14 counts, including racketeering, racketeering conspiracy, wire fraud, money laundering and perjury before a grand jury. Doc. 460. Codefendant Frank Bochicchio was convicted of 3 counts, including racketeering, racketeering conspiracy and perjury. Doc. 456. Co-defendant Juan Galvan was acquitted. Doc. 464. Petitioner, Johnson, Bochicchio, and John Crawford appealed. Docs. 561, 716, 721, 750. All convictions were affirmed by the Court of Appeals. On June 19, 2000, Crawford was sentenced to life imprisonment and was ordered to pay restitution in the amount of $1.2 million. See Doc. 715. IV. STANDARD OF DECISION. To establish an ineffective assistance of counsel claim, Petitioner must show: (1) the representation was deficient, falling "below an objective standard of reasonableness"; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (both deficient performance and prejudice to defendant required to render the result of a proceeding unreliable). The Court need not evaluate both prongs of the Strickland test if the petitioner fails to establish one or the other. Strickland, 466 U.S. at 697, 104 S.Ct. 2052; Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 n. 38 (9th Cir.2005). 1193 Under the first prong, Petitioner must show that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. "A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690, 104 S.Ct. 2052. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct of counsel's performance at the time." Id. at 689, 104 S.Ct. 2052. The proper inquiry is whether, "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. The court must apply "a heavy measure of deference to counsel's judgments," and "must indulge a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance." Id. at 690-691, 104 S.Ct. 2052. "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689, 104 S.Ct. 2052. "The relevant inquiry under Strickland is not what defense counsel could have pursued, but rather whether the choices made by defense counsel were reasonable." Siripongs v. Calderon, 133 F.3d 732, 736 (9th Cir.1998). A decision to waive or not pursue an issue where there is little or no likelihood of success and concentrate on other issues is indicative of competence, not ineffectiveness. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir.1989). Similarly, while a lawyer is under a duty to make reasonable investigations, counsel may make a reasonable decision that particular investigations are unnecessary. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Trial counsel are also permitted wide discretion in their tactical decisions. See United States v. Ferreira-Alameda, 815 F.2d 1251, 1254 (9th Cir.1986); United States v. Appoloney, 761 F.2d 520, 525 (9th Cir.1985). A court must measure counsel's conduct in light of all the circumstances and from counsel's perspective at the time of trial. Id. at 688-89, 104 S.Ct. 2052. To meet the prejudice requirement, the petitioner must demonstrate that errors "actually had an adverse effect on the defense." Strickland, 466 U.S. at 693, 104 S.Ct. 2052. "It is [also] not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. "Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding." Id. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. V. ANALYSIS A. Credibility Issue. During the course of the federal trial, May submitted three Criminal Justice Act ("CJA") forms, on September 30, 1998, January 23, 1999, and September 22, 1999. The amounts claimed on those forms were $29,067.76, $10,033.00, and $62,164.64, respectively, for a total of $101,265.40, as payment for May's time (at $75.00/hour) and reimbursement for pre-trial and trial expenses. On each of those forms, May 1194 checked "No" in a box that asks: "Has the person represented paid any money to you, or to your knowledge to anyone else, in connection with the matter for which you were appointed to provide representation." Doc. 937-2, 937-3 & 937-4. It is undisputed that at the time May applied for CJA funds as appointed counsel, Petitioner's son-in-law, Tom Henry, was lending May $7,500.00 a month plus additional funds to upgrade his hotel room to accommodate court files. PRX 1, May 2/20/04 Depo., at 61. May asserts that he informed the court administrator's office of the arrangement with Henry. Id. at 61-62. Petitioner argues that May's "false representations" to the court on the CJA forms undermine May's credibility. May maintains that he did not advise the court of these payments on the CJA forms because "those were loans." May 10/31/05 Depo. 67. Henry confirms that he and May had an understanding that "May would pay [him] back after trial." PRX 7, T. Henry Aff. May, who eventually declared bankruptcy, admits that he has never repaid any of these loans, but does not disclaim Henry's right to collect. May 10/31/05 Depo., at 65, 67. There was no quid pro quo understanding between May and Henry that the loans would not be repaid and Henry has not said otherwise. These were not "under the table" payments for May's representation of Crawford. May's conduct in connection with the CJA submissions and the loans from Henry do not undermine his credibility. B. Tactical Decisions of Counsel. Three of Petitioner's arguments can be described as challenges to tactical decisions made by May during the federal trial. Petitioner contends that May was ineffective because he (1) failed to call William Noel as a witness; (2) failed to offer Petitioner's son's school attendance records at trial; and (3) failed to object to the prosecutor's reference to Petitioner's son's school attendance in closing argument. The government maintains that these decisions were "tactical trial decisions" which, as exercises of trial strategy, cannot form the basis of an ineffective assistance of counsel claim under a long line of precedent. Mancuso v. Olivarez, 292 F.3d 939, 954 (9th Cir.2002) (failure to present evidence to a jury does not amount to ineffective assistance so long as counsel's decision is strategically reasonable); LaGrand v. Stewart, 133 F.3d 1253, 1275 (9th Cir.1998) (failure to cross-examine witnesses does not necessarily amount to ineffective assistance so long as the decision is reasonable); Clabourne v. Lewis, 64 F.3d 1373, 1383 (9th Cir.1995) (explaining that counsel's failure to request a "voluntariness instruction" to the jury for an insanity defense amounted to a tactical decision and does not constitute ineffective assistance); United States v. Ferreira-Alameda, 815 F.2d 1251, 1254 (9th Cir.1986) (counsel's stipulation to facts unknown to him and failure to object to evidence does not necessarily demonstrate ineffective assistance); United States v. Appoloney, 761 F.2d 520, 525 (9th Cir.1985) (explaining that counsel's failure to raise objections on some issues is not deficient performance and may be seen as reasonably strategic). 1. Testimony of William Noel. Petitioner's primary contention is that May's failure to call William Noel as a witness in the federal trial was ineffective assistance. Petitioner maintains that this failure was compounded by May's opening statement, which stated that Noel would provide critical testimony. a. Sufficiency of Performance. Failure to produce a witness promised in opening statement may constitute 1195 ineffective assistance of counsel, if the promise was sufficiently "specific and dramatic" and the evidence omitted would have been significant. For example, in Anderson v. Butler, 858 F.2d 16, 17 (1st Cir.1988), petitioner stabbed his estranged wife numerous times after finding her with another man. The jury had to determine whether petitioner committed first degree murder, second degree murder, or manslaughter. Id. During opening statements, Defense counsel told the jury that he would call a psychiatrist and a psychologist, whose testimony would show that defendant was "walking unconsciously toward a psychological no exit.... Without feeling, without any appreciation of what was happening ... on that night [he] was like a robot programmed on destruction." Id. This statement was based upon the doctors' reports possessed by counsel, who were available to testify. Id. Nevertheless, the defense rested the next day without calling the doctors. In his closing, counsel acknowledged the omission: And I have been sitting and listening with you as the facts have been presented in this case, and I had intended to try and persuade you with fancy medical and clinical terminology. But there is no amount of psychiatric and psychological evaluations that were going to present a better picture of what you have already heard. Why should you hear this evidence again from people who presume to know Bruce Anderson better than those who really do know him and testified what they already know? At this point was it really necessary for me to try and impress you? Id. Petitioner was convicted of first degree murder. The First Circuit noted that, "little is more damaging than to fail to produce important evidence that had been promised in an opening": This would seem particularly so here when the opening was only the day before, and the jurors had been asked on the voir dire as to their acceptance of psychiatric testimony. The promise was dramatic, and the indicated testimony strikingly significant. The first thing that the ultimately disappointed jurors would believe, in the absence of some other explanation, would be that the doctors were unwilling, viz., unable, to live up to their billing. This they would not forget. Id. Such circumstances were found to be "prejudicial as a matter of law." Id. at 18. Similarly, in Ouber v. Guarino, 293 F.3d 19 (1st Cir.2002), counsel promised four times in his opening statement that defendant would testify, and stated that defendant's testimony would be central to the case: The case is going to come down to what happened in that car and what your findings are as you listen to the credibility and the testimony of Todd Shea versus what your findings are as you listen to the testimony of [defendant] Barbara Ouber. Id. at 22. On the evening of the first day of trial, counsel persuaded the defendant not to testify. Id. at 24. The First Circuit described the error attributed to counsel as consisting of "two inextricably intertwined events: the attorney's initial decision to present the petitioner's testimony as the centerpiece of the defense (and his serial announcement of that fact to the jury in his opening statement) in conjunction with his subsequent decision to advise the petitioner against testifying." Id. at 27. The First Circuit rejected the government's argument that defense counsel's actions were reasonable strategic choices: Under ordinary circumstances, that is true. It is easy to imagine that, on the 1196 eve of trial, a thoughtful lawyer may remain unsure as to whether to call the defendant as a witness. If such uncertainty exists, however, it is an abecedarian principle that the lawyer must exercise some degree of circumspection. Had the petitioner's counsel temporizedhe was under no obligation to make an opening statement at all, much less to open before the prosecution presented its case, and, even if he chose to open, he most assuredly did not have to commit to calling his client as a witness-this would be a different case. See Phoenix v. Matesanz, 233 F.3d 77, 85 (1st Cir.2000) (finding no ineffectiveness where, in the absence of an express promise, counsel chose not to call a potentially important witness). Here, however, the circumstances were far from ordinary. The petitioner's counsel elected to make his opening statement at the earliest possible time. He did not hedge his bets, but, rather, acted as if he had no doubt about whether his client should testify. In the course of his opening statement, he promised, over and over, that the petitioner would testify and exhorted the jurors to draw their ultimate conclusions based on her credibility. In fine, the lawyer structured the entire defense around the prospect of the petitioner's testimony. In the end, however, the petitioner's testimony was not forthcoming. Despite the fact that the lawyer had called the petitioner to the stand in both prior trials, he did a complete about-face. The lawyer states in his affidavit that he only realized that keeping his client off the witness stand was an option after the first day of trial. This realization came much too late. Indeed, the attorney's delayed reaction is sharply reminiscent of the situation in Anderson, in which we observed that even "if it was... wise [not to have the witness testify] because of the damaging collateral evidence, it was inexcusable to have given the matter so little thought at the outset as to have made the opening promise." Id. at 28-29. "Taken alone, each of [counsel's] decisions," emphasizing defendant's testimony during the opening statement and convincing defendant not to testify, "may have fallen within the broad universe of acceptable professional judgments. Taken together, however, they are indefensible." Id. at 27. The Seventh Circuit found ineffective assistance in Harris v. Reed, 894 F.2d 871, 873-74 (7th Cir.1990), a murder case in which two eye witnesses identified someone other than defendant running away from the scene of the crime. That individual became the prime suspect until more than a month after the shooting, when another informant indicated that he heard the gunshot and then saw the defendant run to his car, get inside, and drive away. Id. at 873. This informant was the only witness connecting defendant to the murder scene. Defense counsel told the jury about the eye witnesses and the other suspect during opening statement, but, without having interviewed the eye-witnesses or consulting with defendant, counsel decided not to call either eye witnesses during the trial. Id. at 874. The Seventh Circuit found that the eye witnesses' impartial testimony would have been credible and significant, in that it would have discredited the informant's version of the event. Id. at 877-78. Counsel offered no strategic reasons for not calling these witnesses. Id. at 878. Under the circumstances, the Seventh Circuit concluded that "counsel's overall performance, including his decision not to put on any witnesses in support of a viable theory of defense, falls outside the wide range of professionally competent assistance." Id. Harris found prejudice in 1197 counsel's decision to rest without presenting the eye witnesses to support the alternative suspect theory. This "left the jury free to believe [the informant's] account of the incident as the only account. In fact, counsel's opening primed the jury to hear a different version of the incident. When counsel failed to produce the witnesses to support his version, the jury likely concluded that counsel could not live up to the claims made in the opening." Id. at 879. In contrast, where the promise is more general in nature, and/or where the testimony to be provided would not be significant or was elicited through other means, courts may defer to counsel's reasonable decision to change course. For example, in United States v. McGill, 11 F.3d 223, 227 (1st Cir.1993), defense counsel told the jury during his opening that he would call a firearms expert. Counsel later decided not to call the expert after learning he could be easily impeached. Id. In addition, counsel "succeeded, by dint of skillful cross-examination of the prosecution's firearms expert, in eliciting much the same opinion evidence that he hoped to establish through his own expert." Id.; see also Yeboah-Sefah v. Ficco, 556 F.3d 53, 77-78 (1st Cir.2009) (no ineffective assistance where counsel's general promise that jury would hear from "psychologists and psychiatrists... about the medical affects [sic] of [petitioner's] medication" was not an explicit promise to produce a particular witness, and psychologist and psychiatrist did testify (for the government) about petitioner's medications and his mental capacity at the time of the crime); United States ex rel. Schlager v. Washington, 887 F.Supp. 1019, 1026-27 (N.D.Ill.1995), aff'd, 113 F.3d 763 (7th Cir.1997) (even though counsel indicated during opening that defendant would testify, counsel and client's reasonable strategic decision to withhold such testimony did not amount to ineffective assistance). Whether May acted appropriately is evaluated by the nature of the promise(s) made during his opening statement. Crawford's principal defenses to the murder charge were (1) that Crawford had an alibi and (2) that a key government witness, Mike Beckcom, framed Crawford. PRX 23, M. Crawford's Opening Statement, at 258:23-259:4 ("Mark Crawford couldn't have killed Nick Brueggen because he wasn't on Jacoby Lane.... In addition to that, we are going to show you that Mike Beckcom is part of a scheme to frame Mark Crawford."). In opening, May discussed William Noel's connection to these defenses: What else are we going to show you? Well, very important testimony is going to come from a man named William Noel, and this is a person that was arrested the same night the body of Nick Brueggen was found. How does this tie in? When William Noel was arrested, he had with him a briefcase and in the briefcase was Nick Brueggen's wallet, his checkbook, a lot of personal items and all the things that were supposedly on Nick Brueggen when he would have been murdered. It's all in William Noel's possession. William Noel is arrested after he excites the ire of a neighborhood dog. William Noel an hour earlier had gone to the police station and asked, `Where is Mark Crawford's house, how do I get there?' Noel is given instructions because, remember, Mark Crawford was the mayor and the police would have known where he lived. He's headed in the direction of Mark Crawford's house. He's got a briefcase with him with all of Nick Brueggen's possessions in it. And when William Noel gets arrested, he's questioned by police. The police let him go as a result of his agreement to cooperate against Mark Crawford. 1198 His first story he tells he recants, then changes the story again. He gets called as a witness by Mark Crawford, by the state once, and he's called on the second occasion. On the second occasion that Mr. Noel is called as a witness, and Mr. Noel will be here as a witness in court, Noel will tell you that the reason that he had the briefcase that night is because Mike Beckcom called him on the phone, told him to come over there and get the briefcase and told him to go plant the briefcase at Mark Crawford's old house so that whenever the body is recoveredremember the body is getting recovered on this same night, the news media is already out there, it's already on the newsMr. Noelor at least you could drive by and see that there is news media and everything, Mr. Noel, pursuant to Mike Beckcom's instructions, was taking the briefcase over to Mark Crawford's house to plant the last piece of evidence to put together the murder frame on Mark Crawford. Noel testifies that, in fact, Beckcom planned to kill Nick Brueggen and we can ask, you knowand William Noel, incidentally, is no angel. He's [sic] certainly is an ex convict. He's currently in prison for a terrible rape that he committed after he was released by law enforcement and after he agreed to testify against Mr. Crawford, but he has important testimony about his involvement with Mark Crawford. So when I say Mark Crawford was framed, at least one of the witnesses will testify that he participated in that conspiracy to frame him. Id. at 262:14-264:8. This is a specific, and lengthy description that Noel would be a witness. It suggests that Noel would testify in support of the defense theory that Mark Crawford was framed for the murder. Compare Anderson, 858 F.2d at 17 ("dramatic" promise of "strikingly significant" evidence) with McAleese v. Mazurkiewicz, 1 F.3d 159 (3rd Cir. 1993) (opening was "carefully worded recitation of evidence the defendant did produce") (emphasis added). Nevertheless, May did not subpoena Noel, who never testified in the federal trial. Why, then, did May mention Noel in his opening statement? As a general rule, failing to call a witness will not amount to ineffective assistance of counsel if the decision is a reasonable tactical choice based on adequate inquiry. Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th Cir.1997) (failure to call three witnesses who could have related mitigating sentencing evidence was a reasonable tactical decision; counsel reasonably believed testimony could backfire). However, an attorney's basis for not calling a witness can be unreasonable if it is not supported by objective evidence. Alcala v. Woodford, 334 F.3d 862, 871 (9th Cir.2003). May maintains that he expected Noel would be a government witness. PRX 1, May 2/20/04 Depo., at 49-50. May also explains that he made up his mind not to call Noel after the conclusion of Mark Crawford's San Antonio trial. PRX 2, May 11/31/05 Depo., at 98. However, objective evidence contradicts May's asserted belief that the government would call Noel as a witness. Noel was not on the government's pretrial witness list, PRX 22, nor did the government mention Noel in its opening statement. In contrast, Noel was on the internal defense witness list prepared at May's direction by the investigator appointed for Crawford. PRX 6 ¶¶ 4-5 & Exh. 6(B), at 5 (D. Cordis Aff.). This defense witness list was prepared after May gave his opening statement. Id. At the same time, May's assertion that he never intended to call Noel as a witness in the federal trial is supported by significant objective evidence. Noel arguably provided some exculpatory testimony at 1199 Crawford's state murder trial. Specifically, Noel testified that Beckcom instructed Noel to leave Brueggen's briefcase at Mark Crawford's house. PRX 28, W. Noel's Dec. 1997 testimony in Texas v. Crawford, A-96-0062-CR, at 1217-1218. Further, Noel testified in the state trial that Noel himself had wanted to kill Nick Brueggen, and that, upon learning this, Mark Crawford got "kind of upset" with Noel. Id. at 1178-1181. Noel signed a statement indicating that he would have testified to these facts in the federal trial if he had been subpoenaed. PRX 10, W. Noel statement. It is indisputable, however, that Noel had serious credibility problems as a witness in the state trials, credibility problems that undoubtedly would have been emphasized and exploited by the prosecution in the federal trial. During the first and second state court trials, Noel was a witness for the state against Petitioner. GX A, May 2/20/04 Depo., at 7-8. During cross-examination of Noel by May in the second state trial, Noel stated that if May "paid him enough money, he would have testified for Crawford rather than the State of Texas," id. at 8, confirming his testimony was for sale to the highest bidder. May stated at his February 20, 2004 deposition: Mr. Noel was an extraordinary witness in ain that trial. He just basically got up there and said he testified for the highest bidder, whoever that would have been. So, when we began the trial in California, in opening statement I wanted the jury to know about what it was that was said byor said by Noel to the detectives and, more particularly, the circumstances of Mr. Noel's apprehension with the briefcase of Mr. Brueggen. Calling Mr. Noel as a witness myself was never an option. He had written a letter to Mr. Crawford that I had seen in which Mr. Noel asked me to go to the prison to tell him what he was supposed to say in the trial so he could be a good defense witness for Mr. Crawford. And, obviously, I didn't feel like I could truthfully put Mr. Noel on the stand as a witness without suborning perjury, so I ruled him out as a witness. And I had made that decision really at the beginning of the trial, that I would never call Noel as a witness. Q. Alright. Did you communicate theseyour concerns to Mr. Crawford? A. Yes, I did. Q. Was this before the trial or during the trial or A. It was actually both. We discussed subpoenaing him to get him down there for the trial, and I explained to him the thingsI just said it now and told him that I would never call Noel as a witness because of the perjury problem. I didn't think Noel would tell the truth." GX A, at 8-9. Defense counsel had an ethical duty not to call a witness whose testimony he knew would be perjurious. Noel had already testified inconsistently for and against Mark Crawford in state court, and fatally compromised his believability by confirming his testimony was for sale. Noel wrote a letter to prosecutors prior to the federal trial in which he expressly implicated Crawford in the murder of Nick Brueggen. GX D, 1:02-cv-06498, Doc. 4-5. In the letter, Mr. Noel outlined the structure of "The Family" and Mark Crawford's role in the murder of Nick Brueggen. This letter was produced in pre-trial discovery and reviewed by Mr. May. In addition, Noel had prior felony convictions, including an aggravated rape conviction after he was released from prison as a cooperating witness to testify for the state against Petitioner. 1200 Petitioner emphasizes that Mr. Litman had a very different understanding of the defense team's plans with respect to calling Noel as a witness: "It was a given all along that Mr. Noel would be called, and I was under the belief that Mr. Noel was going to testify as a witness for Mr. Crawford." PRX 3, Litman 6/20/03 Depo., at 23-24. During Mr. Litman's trip to Corpus Christi to prepare for trial, Mr. May emphasized the importance of Mr. Noel's testimony to Mr. Litman: "[W]hen I went to Corpus Christi, it was pointed out to me by Mr. May that [Noel] was an important witness. And when I was reading the transcripts from the state trial, thathe was one of the witnesses whose testimony I made sure that I could locate andand read that." PRX 5, Litman 2/24/06 Depo., at 221. Litman recalls that Mr. May directly and consistently asserted that Noel was "an important witness for Crawford" who "would be called." PRX 3, Litman 6/20/03 Depo., at 22. May asserts that he discussed the decision not to call Noel with Litman. PRX 1, May 2/20/04 Depo., at 50-51. Litman recalls no such conversation: "I never heard [May] explain to Mr. Crawford, and he never explained to me why Mr. Noel was not called as a witness." PRX 3, Litman 6/20/03 Depo., at 23. Litman says that he was "shocked" to learn that May never issued a subpoena for Noel. Id. at 57. "[T]he shocking point was that if he had not subpoenaed [Noel] and yet made the opening statement that he was going to call him, that's what would have shocked me." Id. at 59. It is difficult to understand why, based on Litman's expressed concern and "shock" at May's failure to call Noel as a witness, Litman did nothing about it. Mr. Litman at no time drew the matter to the court's attention in camera, nor to his client's. He did not file a motion under seal, did not confront May at any time during the more than six week trial, nor did he timely seek to address the matter with the court in any other way. Nothing prevented Litman from arguing for Noel's transport to and attendance at trial in California. Noel was incarcerated and available. If Litman's view of trial strategy was so contrary to his co-counsel's, he was free and had a duty to bring the issue to the court's attention by an ex parte motion to withdraw and/or for an ex parte, in camera hearing with Crawford present to discuss the issue of Noel with the court. Given Noel's overwhelming credibility problems, likely perjury if he were permitted to testify, and sordid background, the decision not to call Noel as a defense witness was not shocking, nor was it ineffective assistance.[4] One view of May's trial 1201 tactics is that he sought to make the best of the worst, by in effect telling the jury what Noel said and would say, without the risk associated with actually putting Noel on the stand. May was able to present the Noel "framing defense" through his cross-examination of Beckcom and Kirk Johnson, while avoiding the potential disaster Noel represented. Based on Noel's testimony and conduct, Noel was an unpredictable and unreliable witnessa veritable "time bomb." The evidence May did elicit regarding Noel and the "framing" theory showed that a law enforcement officer stopped Noel near Mark Crawford's old residence at 1:30 a.m. on June 4, 1996, the same night Brueggen's body was found. R.T. 3744-45 (Perkins), 3127-28 (Rivera). After a search, officers located a briefcase containing Brueggen's driver's license and other personal belongings. R.T. 3118-3134 (Rivera). May emphasized these and other facts related to the "framing" defense during his closing argument: When you foundcombine it with the other evidence now. He's driving the car that Nick Brueggen was driving. He's using Nick Brueggen's telephone. The body is found buried behind his building. And the dead man's briefcase with his wallet and personal possessions are in his house. Pretty good case. Pretty good case. So if you want to frame someoneand, you know, the neat thing about that case, it doesn't even take anybody to testify. You know, it's a good plan because all you have to do is call someone up on the telephone with a quarter. And if you succeed in getting them down there to drop off the briefcase at the right time where he didn't get caught by the police, there you have it, nice and simple. Go look behind Mark's building, there is a body there. When you arrest him, his son is going to be driving Brueggen's car. Mark is using the telephone and the briefcase is hidden in his house, in his garage there, or in the attic. A person doesn't have to go down there. So it's a great way to frame somebody. In fact, it's so obvious, how many people could reasonably say that a murderer, one who is smart enough to be head of a crime family, is going to do all this stuff to implicate himself? It is absurd that anyone would do that. When they found the body out behind your house, you are going to get on the telephone and say, "Noel, Noel, see if you can get the briefcase down to my house so they can find that too." Doesn't make any sense. "Noel, why don't you stop the police and ask them how to get to my house." Noel apparently isn't a bright light. That part doesn't make sense to anybody. But the briefcase was on the way to Mark Crawford's house. It didn't get there. And because it didn't get there, you should infer that somebody was behind the conspiracy to plant him with that piece of evidence. That's reasonable to assume. Now, if you believe thatand see, incidentally, what are we doing here? Do I have to prove that he was framed? Do I have to prove who killed Nick Brueggen or why? No, I don't. What you are doing as jurors is you evaluate the government's proof for its quality, for how 1202 good it is. And you say to yourself, "Am I convinced beyond a reasonable doubt that Mark Crawford is guilty about this murder?" Because what causes you reason for doubt in this case is that, in part, because if he is getting planted with evidence, he's not guilty. You don't plant yourselfor plant people with evidence that are guilty. You know, that's what you do to innocent people to frame them. R.T. 4309-11. In this way, May was able to provide a basis for the framing defense, without placing the highly impeachable, disreputable, and incredible Noel on the stand. May made a reasonable tactical decision of trial strategy not to call Noel, avoiding the risk Noel's sordidness and incredibility would adversely taint Crawford's defense, and turned available, credible evidence into a defense that Crawford had been framed. Crawford in effect was able to "have his cake and eat it too." b. Lack of Prejudice. Even assuming, arguendo, that May's actionspromising the jury he would call Noel and then failing to produce him were unjustified, the question still remains whether these acts were prejudicial to Mark Crawford's defense. The time that elapsed between the opening statement and jury deliberations bears on this inquiry. In Anderson, the defense rested the day after opening statements. 858 F.2d at 17. California v. Stanley, 39 Cal.4th 913, 955, 47 Cal.Rptr.3d 420, 140 P.3d 736 (2006), distinguishing Anderson in part on the ground that the defense rested its guilt phase case nearly three weeks after delivering an opening statement promising testimony from a police witness who never materialized. Here, May gave his opening statement on June 24, 1999, Doc. 470, and the jury began to deliberate on August 10, 1999, Doc. 437, more than six weeks later. Any danger that the jury had been "primed" by May's opening "to hear a different version of the incident," but then disappointed, Harris, 894 F.2d at 879, or led to believe that defense witnesses could not "live up to their billing" in a manner they "would not forget," was minimized and dissipated by the significant temporal gap of over six weeks between the opening statements and the close of evidence. The evidence of guilt was overwhelming. Crawford kept close company with Brueggen, John Crawford, Beckcom, and other Family members. They frequented the "Compound," where they partied, and traveled together to gamble and party, and also did so in Mississippi. They created and operated a number of fraudulent businesses in Texas and Colorado, from which hundreds of thousands of dollars of unlawful insurance premiums were generated and converted to finance their mutual "high rolling" life styles. All the conspirators had a common incentive to eliminate Brueggen, a "snitch," who they believed was cooperating against them with federal authorities, and who could cause their criminal activities and profits to be brought to an end, as well as their ultimate prosecution for this extensive criminal wrongdoing. Petitioner ignores the conspiracy charges, his joint and concerted activities with John Crawford, Beckcom, Johnson, Brueggen, and Bochicchio, and the strong incentive to murder Brueggen to preserve their ongoing criminal enterprises and avoid prosecution. May's failure to call Noel as a witness was neither deficient nor prejudicial. The petition is DENIED on this ground. 2. Petitioner's Alibi Defense. a. Failure to Present School Attendance Records Through Principal. In the federal trial, Petitioner's two teenage sons testified they were with their 1203 father throughout the day of the murder, May 6, 1999. May 6, 1999 was a Mondaya school day. At the San Antonio trial, May called the principal of the boys'% high school to testify that neither of Crawford's sons attended school that day. See PRX 2, May 11/31/05 Depo., at 78. May testified at his deposition that in the second state court trial, immediately before the principal testified, May noticed the boy's attendance records contained an incorrect date. GX A, May 2/20/04 Depo., at 28. The state prosecutor did not notice the error, but May was so concerned about the error that he did not mention that alibi evidence during his closing argument to the jury in the second state court trial. Id. at 28-29. When he began the federal trial, May made the decision not to pursue that alibi evidence because he was concerned that the federal prosecutors would read the records more carefully and discover the error. Id. May believed such an error would lead to impeachment of the principal's testimony. Id. Even though he felt that petitioner's sons were telling the truth about their whereabouts that day, May believed the records would contradict their story. Id. at 82-84. The tactical decisions of trial counsel cannot form the basis for a claim of ineffective assistance of counsel, so long as the decision is strategically reasonable. Mancuso, 292 F.3d at 954. Litman suggests that May's purported "strategic reason" for not calling the principal is a post hoc rationalization, because May never discussed this strategic decision with him: "[A]s far as the school attendance records I can just tell you that Mr. May never asked me to locate those, never showed those to me, and never discussed those with me." PRX 3, Litman 6/20/03 Depo., at 40. Likewise, Litman was unaware that the principal was a potential witness and stated that he and May never discussed whether the principal would testify in the Fresno trial. PRX 4, Litman 11/10/05 Depo., 4 at 88. Litman also opined that May's purported strategic decision was not objectively reasonable, because the principal could authoritatively resolve any contradiction or ambiguity in the written attendance record. Id. at 91. "[Y]ou would ... think that the principal would be a responsible person, who doesn't have a bias, who would be cognizant of when school was in session and [sic] not, and have no reason whatsoever toto fabricate that fact." PRX 5, Litman 2/24/06 Depo., at 182. But, Litman's ignorance of and/or disagreement with May's strategic thinking does not necessarily render May's reasoning suspect. May was the Texas trial lawyer, who had twice tried Petitioner's state murder case, and served as lead counsel in the federal case. He recognized substantial risk in the potential impeachment effect of the school attendance records on the principal's testimony. May reasonably concluded that the attendance records, which contained an "incorrect" date that could have undermined the alibi defense if noticed by the government, were so potentially harmful that it was not worth risking putting the principal on the stand. This was an informed strategic choice of experienced trial counsel. The Petition is DENIED on this ground. b. Failure to Object to Prosecution's Reference to Petitioner's Son's During Closing Arguments. Petitioner also contends that his attorneys should have objected during closing argument to the government's suggestion that his sons were in school on Monday, May 6, 1996. When asked about this allegation during his deposition, May testified: 1204 Q: There's also the allegation that you did not object to the comments or statements made by the prosecutor regarding the testimony or lack thereof of Mr. Crawford's children. Do you understand what that comment is about? A: Yes, I do. And I remember that happening in the trial. And I told Mr. Mr. Litman was making objections during the argument. That was my recollection, is that's one of the things that I had him do, `cause after I finished final argument, I was tired. And I think this comment was made in the government's final argument. It was not made in the opening statement. So I'm sure it was Mr. Litman that was making those objections then. I remember the statement that he made. And the only objection that I think might have applied had to do with theI think he said something like it was Monday, it would have been a school day, they would have been in school that day, and that's clearly outside the record. But I don't know if Mr. Litman objected, and I don't recall if I objected. Q: Okay. A: But that's something I might not object to. Q: Why is that? A: Well, you know, it'sfirst of all, the objection that you would make is outside the record, which doesn't tell the jury the solution to the problem. It doesn't tell the jury that this was a Monday or that this was the 5th of May or whatever. When the judge sustains it, even if he instructs them to disregard it, I don't think those instructions are very effective in final argument. And, in fact, an objection can add to the result of having the jury pay too much attention to that particular aspect of the testimony and think that was something we were trying to slip by them. Whereas if you ignore it, that's significant really. It's just speculation over, well, maybe it was Monday, and it should have been there. I didn't think it was that effective when it was made, and it's not something I would have objected to in final argument for those reasons. GX A, May 2/20/04 Depo., at 29-30. Litman corroborated May's assertions, testifying during his deposition: Q: With regard to the closing where the government told the jury that the boys were in school, any part of the closing argument, whose duty was it to object to argument that's outside the evidence between you and Mr. May? A: I would say it was mine. Q: Did you even recognize that an objection should be entertained at that time? And Iwhat I mean by that is based on lack of familiarity with the case. A: I need to think back to um ... to the exact wording, but I think the argument was that they were probably in school. Q: I think it was: You know these boys were in school. A: Uh huh. It's a very touchy issue about arguing, you know objecting during a closing argument. And unless it is something significant, I usually don't do it. GX F, Litman 2/24/06 Depo., at 283-284. The responsibility for objecting was not May's, it was Litman's. Even if it were May's, not objecting was a reasonable strategic decision, agreed with by Litman, to avoid emphasizing the point to the jury and any adverse impression created by interrupting opposing counsel's closing argument. Judicial review of a defense attorney's summation and strategic choices on objecting during closing argument is highly deferential, and "doubly deferential when it is conducted through the lens of 1205 federal habeas." Yarborough v. Gentry, 540 U.S. 1, 6, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam). C. Preparation For Trial in Federal Court. Petitioner's opening brief alleges that May failed to adequately prepare for trial.[5] It is undisputed that this was an extremely complex criminal trial. The charges against Mr. Crawford carried the potential for the death penalty, and the United States filed a notice of its intention not to seek that sentence only several weeks before trial. See Doc 334, Notice, dated June 9, 1999. Witnesses were located across the country, in California, Texas, Colorado, Mississippi, and Washington, D.C. The trial itself lasted over six weeks. Petitioner contends that May's prior experience defending Crawford in two Texas murder trials was insufficient preparation for the federal trial. Petitioner places great weight on statements May made during his deposition: I really felt like I was kind of the one-man lawyer/investigator down there in California. And there just didn't seem to beit seemed to me that if I was going to be doing that with that large a case and that much discovery, I ought to have, like, two other lawyers assisting me in thethree lawyers reallyyou know, spending a hundred percent of their time on the case when the trial is going on and have some time before the trial begins to get familiar with it and handle aspects of the case. And there just wasn't any of that there. Would it have made a difference? I don't know. But in being completely honest with you about that, I have to tell you that I felt like, you know, I was under a huge pot of responsibility there and didn't have just a lot of people to help me with it. PRX 1, May 2/20/04 Depo., at 24-25; see also id. at 23 ("I was overburdened for the trial. I felt like that both Mr. Litman and I were overburdened given the volume of the trial."). May also believed that Litman "wasn't available most of the time" to help; May didn't "really feel like [Mr. Litman] was co-counsel." PRX 2, May 10/31/05 Depo., at 122; see also PRX 1 at 19 ("I didn't feel like [Litman] was full-fledged counsel."). Prior to trial, May told Litman that, without at least a 30-day continuance, May "couldn't be fully prepared to represent Mark Crawford." PRX 4, Litman 11/10/05 Depo., at 22. Although May requested a continuance, that request was denied. Litman testified that he and May did not discuss their respective roles at the trial "until a few days before trial." PRX 3, Litman 6/30/03 Depo., at 12-13. May and Litman decided that May "would be primarily responsible for the examination of witnesses." Id. at 13:15-13:17. Litman's role "would be to assist [May] if he needed any legal research, if we needed to be doing any last-minute preparations, speaking with witnesses. And [Litman] would be primarily responsible for the objections at trial, the evidentiary objections." Id. at 13. Litman now asserts that May's preparation for trial was inadequate: Q: Can you tell the court whether or not your feelings about Mr. May's preparationdid you feel that he had prepared in advance of this trial or can you describe that to the court? 1206 A: ... [I]t appeared to me that he was doing everything at the last minute, that he had not done any significant preparation. It appeared to me that he was relying substantially on his knowledge of facts that he had garnered from the state court cases as opposed to preparation that he had done to get back up to speed or to make sure witnesses were subpoenaed for this Federal trial. Q: Based on your experience as an attorney having handled hundreds of cases, did you feel that that was an effective way for him to prepare for this case? A: No. PRX 4, Litman 11/10/05 Depo., at 76. Litman observed that May appeared to have done no prior preparation for the cross-examination of witnesses: [T]here were multiple times when witnesses were testifying that Mr. May appeared to me to be takingto be making notes, not taking notes, but making notes of cross-examination, that he was going to ask the witness. And it just struck me that he wasthat seems like something that should have been done at an earlier time and not while the witness was testifying. PRX 3, Litman 6/20/03 Depo., at 24. Litman stated that he attempted to work with May during trial, but May never seemed to work on the case: Several occasions I did try to get together with Mr. May after court or on a weekend to talk about the case, but after a few attempts it was justit was fruitless. One time we got together on a Saturday and we ended up at a gun show. And I thought we were coming to the downtown area to work on the case and he ended up at the fairgrounds at a gun show. PRX 4, Litman 11/10/05 Depo., at 82. Three weeks into trial, May told Litman that Litman would present all of the defense witnesses, a significant change from the workload allocation the two had discussed prior to trial. PRX 3, Litman 2/24/06 Depo., at 175. Litman did not learn this until after the witnesses arrived in California. Id. Litman and the investigator met with the witnesses who did arrive in California to prepare their testimony. Id. at 168-169; PRX 6, D. Cordis Aff., at ¶ 8. May did not participate in these witness preparation sessions. PRX 6 at 8. Shortly after Litman began presenting defense witnesses, Litman fell ill with a condition serious enough to require hospitalization for several days. PRX 3, Litman 6/20/03 Depo., at 40. The district Court inquired whether May could proceed. R.T. 3482. May represented to the Court that he was "ready to proceed," because Mr. Litman "at this stage was pretty much assigned to lining up the witnesses that we were going to get in" the following week. Id. Thereafter, May picked up primary responsibility for the presentation of Petitioner's defense witnesses. Notwithstanding Litman's version of events, May presented Crawford's defense in an organized, effective manner. May had already tried the murder charges twice, so he was familiar with the factual and legal issues surrounding that portion of the trial. See GX A, May 2/20/04 Depo., at 18. In May's opinion, the additional fraud allegations were not terribly complex, and he believed he had properly prepared a defense to those allegations. Id. May reviewed the discovery produced by the government in his office in Corpus Christi, Texas before he came to California for trial. Id. He had the discovery shipped from Texas to California and put in his room at his hotel so he could continue to review it. Id. He reviewed the discovery again before each witness testified, even during evening hours, because the 1207 government gave notice of who they were going to call the following day throughout the trial. Id. It is noteworthy that other defendants, not Mark Crawford, the leader, were more involved in the day-to-day operation of separate businesses in the criminal enterprises. The four other defense attorneys participating in the trial more thoroughly cross-examined and defended against the RICO, money laundering, and wire fraud aspects of the case. Despite his reservations about May's unwillingness to cooperatively prepare for trial, Litman agreed that May was prepared each day for trial. Litman testified that May was familiar with all the witnesses called by the government. GX C, Litman 6/20/03 Depo., at 30. When asked specifically if he believed May was prepared to handle the testimony of each witness and the events of each particular court day, Litman testified that he could not think of any particular instance where May did not know who the witness was or how to handle the witness. Id. The government cites Dows v. Wood, 211 F.3d 480 (9th Cir.2000), in support of its argument that May's preparation and performance were not insufficient. In Dows, petitioner alleged his counsel was unprepared for trial, having undertaken only three days of preparation, conducted no witness interviews or investigation, and failed to contact a possible alibi witness. Id. at 486. The Ninth Circuit affirmed denial of the petition because counsel was familiar with the facts of the case, had a definite defense strategy, made cogent pretrial arguments about the use of evidence at trial, and reviewed interview statements. Dows, 211 F.3d at 486-87. Here, like in Dows, May was intimately familiar with all the witnesses and evidence in the murder portion of the case, and the criminal activities in Texas and Mississippi. He reviewed all of the allegations and familiarized himself with relevant interview statements and grand jury testimony from witnesses in the white-collar portion of the trial. May vigorously cross-examined witnesses throughout the case, and skillfully constructed a closing argument based on the record evidence. May was extremely articulate, and his Texas accent, courtesy, and affable demeanor, were well received and effective with the jury. Although his cooperation and communication with Litman may not have been ideal, Litman became ill, and May's conduct demonstrated a strong grasp of the relevant facts and witnesses and a clear and reasonable defense strategy. May was prepared and effective in challenging the government's case. D. May's Financial, Emotional, and Psychological Well-Being. Petitioner contends that May was suffering from a host of financial, emotional, and psychological problems that adversely affected his performance. 1. Family Problems Several months before trial, May separated from his wife and filed for divorce. PRX 1, May 2/20/04 Depo., at 10, 66-67. Shortly before trial, May's oldest child was arrested for cocaine possession. Id. at 16. Because of his family situation at home, one of May's childrenthen, seven years oldtraveled to Fresno and spent part of one trial day sitting in the courthouse hallway unsupervised. Id. at 67-68; PRX 5, Litman 2/24/06 Depo., at 275-76. May testified that, contrary to Petitioner's assertions, his wife had not abandoned him and his son; rather, he separated from his wife and moved out of his home before the trial. GX A, May 2/20/04 Depo., at 10. May testified that it did not distract him and that it would have been more distracting if he had not moved out. Id. May also explained that his stepson's 1208 arrest did not distract him from adequately representing Petitioner. Id. at 16-17. May testified that he ignored all the personal events of his life, stayed in Fresno, California, and worked almost exclusively on Crawford's case. Id. There is insufficient factual support for Petitioner's assertion that May's personal life interfered with his duties as counsel. 2. Drug and/or Alcohol Abuse. At the time of trial, May was taking Oxycontin for severe, chronic pain. PRX 2, May 10/31/05 Depo., at 88-89. Oxycontin, a powerful opioid narcotic, is known to be highly addictive. PRX 11, J. O'Donnell Aff., ¶¶ 4-5. May had also been prescribed the sleeping pill Ambien, a hypnotic used to treat insomnia. Id. at ¶¶ 4, 7. May acknowledges having two drinks with dinner at a local restaurant and bar. PRX 1, May 2/20/04 Depo., 56-58; PRX 3, Litman 6/20/03 Depo., at 28. According to James O'Donnell, a pharmacologist who submitted an affidavit in support of Petitioner's reply brief, the combination of Oxycontin, Ambien, and alcohol put May "at great risk for impairment in his cognitive abilities" and "drug induced impairment" during trial. PRX 11 ¶¶ 9, 11. The consequences of these impairments, including disorientation, confusion, impaired judgment, reduced ability to deliberate clearly, increased impulsivity, and reduced energy, may "limit [ones] ability to clearly and competently plan for and address ... multiple complex issues and on the spot decisions needed" during a trial. Id. at ¶ 11. However, Mr. O'Donnell was not present at the trial and did not observe May exhibiting any of these symptoms of impairment. The court observed May on a daily basis. He was alert, intelligent, articulate, and fully engaged. May was in command of himself and the defense throughout the trial. This speculative theorizing about impaired function never manifested itself in any way during trial. May exhibited no symptoms or manifestations of drug or alcohol use during trial, nor in his communications with the court over that more than six week period. 3. Financial & Legal Problems. May admits to having some financial problems during trial. PRX 2, May 10/31/05 Depo., at 65; PRX 3, Litman 6/30/03 Depo., at 33. He had to borrow money for his law practice during the trial "to make sure that I didn't go out of business while I was sitting in California." PRX 1, May 2/20/04 Depo., at 27. May accepted loans of $7,500.00 per week during trial, plus hotel expenses, from Thomas Henry, Crawford's son-in-law, for a total of $43,800. Id. at 40-41; PRX 7, T. Henry Aff. However, there is no evidence that these loans or May's financial extremis impaired May's performance as defense counsel. His finances were not a factor during trial. E. Was May Noticeably Asleep During Major Portions of the Trial? "[W]hen an attorney for a criminal defendant sleeps through a substantial portion of the trial, such conduct is inherently prejudicial and thus no separate showing of prejudice is necessary." Javor v. United States, 724 F.2d 831, 833 (9th Cir.1984); see also Burdine v. Johnson, 262 F.3d 336 (5th Cir.2001) (en banc) (counsel's sleeping during trial is presumptively prejudicial). "[U]nconscious or sleeping counsel is equivalent to no counsel at all." Javor, 724 F.2d at 834. Both Petitioner and Litman recall that May was "noticeably asleep" during portions of the trial. Mr. Crawford asserts in his sworn Petition that May "was fast asleep sitting at the defense table and [Petitioner] had to bump him to get him to wake up." Doc. 812 at 30. Although not 1209 specifically sure if May was asleep, Litman recalls that "[t]here were times when I saw [May] with his eyes closed." PRX 5, Litman 2/24/06 Depo., at 287. Litman also recalls that May was so exhausted during closing argument that he had to sit down halfway through and deliver the remainder of his argument from a chair. Id. at 287-88. Dr. O'Connell asserts that the combination of Oxycontin, Ambien, and alcohol put Mr. May at serious risk for falling asleep during trial. PRX 11 at ¶ 13. After trial, Mr. May obtained a prescription for a medication specifically to increase his wakefulness and counteract the drowsiness and sedation caused by Oxycontin. Id. at ¶ 10. May was questioned about sleeping during the proceedings: Q: The last allegation is that "you were noticeably asleep at the defense table during major portions of the trial." Wereyou at any time did you fall asleep at the defense table during the trial itself? A: No, I did not fall asleep. One time Mark kicked me under the counsel table and asked me if I was asleep. And I asked him, "You know, why did you kick me under the table?" "`Cause your eyes were closed, and your head was back.'" And I told him that a lot of times I'll listen to the testimony by doing that. I'll close my eyes and put my head back and put my glasses on my forehead, my reading glasses, and just listen to the words of the witness, and sothat's the way I concentrate better at it. And I told him that I'm not asleep when I do that, I'm listening to the witness. And that happened, I believe, around the second or third day of trial, and after that I don't think we had a problem with it again. Q: So you never fell asleep at the defense table during the trial? A: That's a funny thing, if you're asleep, you really don't know it or not, unless somebody woke you up. And nobody woke me up, so I presume I never fell asleep. GX A, May 2/20/04 Depo., at 31. There is insufficient evidence that May was sleeping. He did not need to be awakened or prompted by Litman or anyone else, nor did he ask for matters to be repeated or for a read back of missed testimony. No attorney, defendant, prosecutor, court security officer, or defense attorney ever reported or drew the court's attention to May's sleeping. No one observed May sleeping during trial. The lack of contemporaneous evidence or notice to the court of concern about this alleged sleeping requires DENIAL of the petition on this ground. F. Did May Operate Under A Conflict of Interest? 1. Relevant Facts. Petitioner contends that May's prior financial dealings with Les Tatum ("Tatum"), May's banker and vice president and loan officer of Kleberg First National Bank ("Kleberg Bank"), dissuaded May from actively pursuing a defense to the white collar criminal charges against Petitioner and his codefendants. From 1993 to 1998, Tatum provided May with financial assistance and May obtained numerous bank loans through Tatum. See May 2/20/04 Depo., at 15. Among other things, Tatum opened new accounts for May to enable May to continue writing checks; extended the repayment time for May's existing loans; ensured that the bank honored May's checks despite May's overdraft status; and transferred money into, out of, and between May's bank accounts. PRX 38, May Depo. in Kleberg v. May at 92, 122-24, 134, 139-40. Additionally, 1210 Tatum provided bank loans to May's wife. Id. at 219. In sum, Tatum approved 18 loans to May, totaling over $1 million. See PRX at 42 n. 4 (citing PRX 38, May's Depo. in Kleberg v. May, in which all loans are reviewed). May maintains that some of these loans were renewals of previous loans. May believes that Tatum forged May's signature on some of the loan documents, and that Tatum pocketed the proceeds for himself. PRX 38, May Depo. in Kleberg v. May at 33-34, 78, 188, 240. Tatum also made loans to two of the government's cooperating witnesses in the federal trial, Crawford's co-defendants, many of the staff leasing companies owned by Petitioner and his family and friends, and to Petitioner and his family, including for payment of May's legal fees in the two State murder trials. Id. at 24-26; see generally, PRX 18, Tatum grand jury testimony. Shortly before the start of Crawford's federal trial, Tatum was indicted by a federal grand jury in Corpus Christi, Texas for embezzlement. R.T. 3816-17. These accusations centered on Tatum's approval of various bank loans and conversion of some loan proceeds. Id. During the Fresno federal trial, Kleberg Bank filed suit against May, seeking to recover $500,000 in unpaid loans approved by Tatum. PRX 35 (original petition) & 36 (return of service). Although May believed he did nothing wrong in connection with the loans from Tatum, May concedes that he may have been "concerned" that he might be indicted for participating in Tatum's bank fraud. PRX 1, May 2/20/04 Depo., at 15-16. He was "concerned that... the Feds wouldn't be able to figure out that I [May] wasn't doing anything wrong, that it was Les Tatum doing it." Id. at 15. But, he was "not overly concerned. I figured they would figure it out, and no one talked to me about it." Id. at 16. Litman recalls that May was concerned that he might be charged criminally, but testified that the issue was not "weighing on" May; rather "[it] was something he mentioned in passing." Litman 11/10/05 Depo., at 38:2-11. Before the federal trial, May was alerted that Tatum had met with the federal prosecutor and was a potential witness in Crawford's case. PRX 2, May 11/31/05 Depo., at 47. May later inquired whether Tatum would in fact be called as a witness for the prosecution, informed the prosecution of his connections with Tatum, and was notified that Tatum was not going to be called. Id. at 56-57. Tatum never testified at trial. Federal prosecutors did offer evidence of Tatum's loans to Petitioner and his codefendants as part of a broad pattern of conduct establishing that the staff-leasing companies were fraudulent. Mike Beckcom testified that John Crawford introduced Beckcom to Tatum, and that Tatum gave Beckcom an unsecured $50,000.00 loan to capitalize one of the fraudulent staff-leasing companies: Q: What did you have to tell Mr. Tatum to get $50,000? A: Not a word. R.T. 1352-53. The prosecution emphasized this testimony in closing argument: [Mike Beckcom talked about how John Crawford took him to Kleberg Bank, 45 minutes outside of Corpus [Cristie], instead of down the street, and introduced him to Les Tatum, and how he got a loan from Les Tatum for Progressive with absolutely no collateral, absolutely nothing. None. R.T. 4220. In the cross-examination of John Crawford, the government sought to tie each of the members of the alleged conspiracy to Tatum and his criminal activity at the Kleberg Bank 1211 Q. ... Can you tell the jury who Les Tatum is? A. He is a banker at Kleberg First National Bank. Q. And he is your banker; is that right? A. Yes, he was my banker. Q. And how far is Mr. Tatum's bank from where you are? A. From where I live or from the office? Q. Well, from where you live. A. 45, 50 minutes. Q. 45, 50 minutes? And that's a 50-minute drive? A. Approximately, yes. Q. And Mr. Tatum was not only your banker, he was Mark Crawford's banker, too, wasn't he? A. I don't know if he was his personal banker. He was the banker for the business, Superior Employee Staff Management. Q. You got loans from Mr. Tatum; isn't that true? A. Yes, I did. Q. And Mark Crawford got loans from Mr. Tatum? A. Probably. Q. And Mr. Galvan got loans from Mr. Tatum, isn't that true? A. Probably. Q. And Geneva Garza got loans from Mr. Tatum; isn't that true? A. I have no idea. Q. Michael Beckcom got loans from Mr. Tatum; isn't that true? A. I believe that's the way it turned out, yes. Q. Isn't it true you introduced Mike Beckcom to Mr. Tatum? A. I called Mr. Tatum and Mr. Tatum said he would meet with Mr. Beckcom. I took Mr. Beckcom over there. I waited in the lobby. Whether he got a loan or not, I do not know. Q. All right. TNT Quick Stop got loans from Mr. Tatum? A. I don't know. Q. Do you know that Mr. Tatum is currently under indictment? A. I heard rumors. Q. For bank fraud? A. I don't know that. R.T. 3489-91 (J. Crawford). The prosecutor reviewed eleven specific loans that Mr. Tatum had approved for entities owned or controlled by the Family. Id. at 3489-97. This review focused on loans Tatum had approved for Superior Services (one of the fraudulent employee leasing companies), even though the company had filed for bankruptcy at the time of the loan: Q. Now, I believe you said Superior Services went bankrupt? A. It filed bankruptcy, but theit never went through the whole procedures, kind of aI don't know what you would call it. Q. Okay. And is Superior Services still operating at all? A. No, not at this time. Q. Can you explain to the jury why, on November 30th, 1995, you, signing as Superior Services, received a $79,000 loan from Mr. Tatum? A. When was the date? Q. November 30th, 1995. A. No, I wouldn't have any idea why I would do that. Q. Can you explain why on January 10th, 1996 you received a $60,000 loan from Mr. Tatum under Superior Services? A. No, I'm not sure why. Q. Can you explain to the jury why on March 1st, 1996, you received an $85,000 loan from Mr. Tatum for Superior Services? 1212 A. I have no idea. Id. at 3494-95 (J. Crawford). In his examination of John Crawford, May sought to introduce an innocent explanation for the loans: Q. Now, the prosecutor mentioned something about Les Tatum's fraud indictment. Have you read a copy of that indictment? A. No, I have not. Q. Are you aware that Mr. Tatum was accused of making false loans to individuals and stealing the money from those loans? A. No, I'm not. Id. at 3512. May did not disclose his own, similar experience, despite the fact that May believed himself to be one of these unnamed "individuals" who had been a victim of Tatum's schemes. See PRX 38 (May Depo. in Kleberg v. May at 33-35; 78). To rebut the suggestion in the prosecutor's cross that the Crawfords' use of a banker whose office was a 45-50 minute drive from Corpus Christi suggested some impropriety, May tried to prompt John Crawford into identifying other "clients from Corpus Christi" who might have been customers of Tatum: Q. Now, Kleberg National Bank or Mr. Tatum in particular, had a lot of clients from Corpus Christi, didn't he? A. Yes. MR. CULLERS: Objection, lack of foundation. BY MR. MAY: Q. Do you know if he did? THE COURT: Sustained. THE WITNESS: I know for a fact he did. Some of our clients also banked there. BY MR. MAY: Q. Was Mr. Tatum considered to be a good banker at that time? A. Yeah. Q. And some of the clients that you had at the bank there, do you know who they were, just offhand? A. No, not right off hand. R.T. 3517 (J. Crawford). On re-direct, John Crawford's attorney sought to rehabilitate his client's credibility by emphasizing the explanation May had identified in his questioning: Q. Now, let's go to something that happened today. And I heard that apparently this Mr. Tatumwhat's his first name? A. Les. Q. Les Tatum, the banker, has apparently been indicted for bank fraud. Is that your understanding? A. That's my understanding. Q. And from what Mr. May said, apparently it's for making loans tomaking phony loans, in other words, making it look like he's loaning some money to somebody when he really isn't? A. I can only say that some of the loans they mentioned and the amount, I did not do. Id. at 3540. On August 3, 1999, during a break from testimony, the government announced its intention to introduce a series of charts documenting Tatum's loans to the various staff-leasing companies. R.T. 3813-15. May objected to the government's proffer, describing to the Court his own situation without disclosing his personal involvement: [T]here is a more expansive problem here, and that's that Les Tatum is currently under indictment in Corpus Christi. And part of the indictment has to doand I haven't seen the indictment yet, I don't think but from talking to his lawyer and from talking to Mr. Kusik, who is the Assistant U.S. Attorney there that's handling the case, it appears that 1213 Mr. Tatum was doing loans to various individuals at the bank and taking the proceeds of those loans without the knowledge of the depositor, without that person knowing the loan was being made and without that person knowing that any funds were proceeds taken from his loan. Mr. Tatum has been since indicted. And there were various attorneys in Corpus Christi who had loans through Mr. Tatum that were notified by the bank to pay the loans. And it turns out those were never loans that the lawyers signed on and nor did they receive any funds from them. And Mr. Tatum apparently embezzled those amounts. Id. at 3816-17. May never informed the Court that he believed he was one of the "various attorneys in Corpus Christi" who had been "notified by the bank to pay the loans," and/or one of the "various individuals" from whom Mr. Tatum had taken "the proceeds of those loans without the knowledge of the depositor, without that person knowing the loan was being made and without that person knowing that any funds were proceeds taken from his loan." May then suggested to the Court that further unspecified witnesses might be necessary to testify to Tatum's modus operandi in order "to rebut the inference that the prosecutors are seeking to get from the evidence." R.T. 3817-18. [T]he modus operandi of Mr. Tatum in the federal case in Texas included his setting up an account in the name of the person who was going to receive the money without that person's knowledge and putting the money into that account under that person's name, and then getting the money out of that person's account by transfers to other places. And so the fact that the money is traced to an account under the person's name, that occurs in all the places where Mr. Tatum defrauded the bank. Id. at 3819. The district court acknowledged that establishing this modus operandi would be "antithetical" to "knowledge on the part of these defendants or any operation of the conspiracy or wrongdoing, because, in effect, [Mr. Tatum is] stealing from them in the process of doing that." Id. at 3825-26. However, John Crawford admitted his direct dealings with Tatum to obtain unjustified loans. Around this point in the trial, May says he approached the prosecutor and "told him that [Tatum] was my banker and that I was concerned about that if he was called as a witness in the case." PRX 2, May 11/31/05 Depo., at 57. May recalls telling the prosecutor: If Tatum is going to be a witness in this case, he was my banker, you know, as I'm sure you have seen. And I think he said, yeah. And I said are you going to call him as a witness. And this was likegolly, this had to be almost at the end of the trial. And he said, no we've decided not to call him. There's just nothing we've got to call him about. And that was it. Id. Neither May, Litman or anyone else raised the relationship between May and Tatum with the Court, and Tatum was not called as a witness. The government did not seek to introduce in rebuttal the flow-charts documenting Tatum's loans. May put on no evidence regarding his relationship with Mr. Tatum. Following Crawford's conviction, Tatum pleaded guilty to one count of bank fraud. PRX 39, Judgment in U.S. v. Tatum. May was subpoenaed by the U.S. Attorney's Office to provide exactly this modus 1214 operandi testimony at sentencing in the criminal case against Tatum: I've been asked to testify about, basically, his [Mr. Tatum's]I guess what we would in the criminal law business call his MO, his modus operandi, his way of operating at the bank, of doing the loan, and, you know, you not actually receiving the money from the loan proceeds, and, instead, the you know, Mr. Tatum would say, well, I'm going to disburse the money for you, and then him not paying off the previous notes like he was supposed to and things like that. PRX 38, May Depo. in Kleberg v. May at 40. 2. Analysis. Petitioner argues that May's relationship with Tatum dissuaded May from effectively and vigorously pursuing a defense based upon Tatum's modus operandi. Crawford contends that such a defense could have responded to the prosecution's implications that Tatum's loans were evidence of Crawford's involvement in a bank fraud conspiracy. 1:02-cv-6498, Doc. 7 at 60. Crawford alleges that since May had an interest in avoiding both criminal and civil liability, May did not wish to reveal the extent of his connections with Tatum through both the administration of adequate cross-examinations of the loan recipient witnesses and by disqualifying himself and introducing his own testimony as to Tatum's modus operandi. This theory is specious. A criminal defendant has a sixth amendment right to effective assistance of counsel, including representation free from conflicts of interest. Strickland, 466 U.S. at 692, 104 S.Ct. 2052. "In order to establish a violation of the Sixth Amendment [based on a conflict of interest] a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). If this standard is met, prejudice is presumed because the "assistance of counsel has been denied entirely or during a critical stage of the proceeding." Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). "Under this standard, an actual conflict is a conflict that affected counsel's performance-as opposed to a mere theoretical division of loyalties." United States v. Wells, 394 F.3d 725, 733 (9th Cir.2005) (quoting Mickens, 535 U.S. at 171, 122 S.Ct. 1237). "Ordinarily, [the term `actual conflict'] denotes representation of multiple conflicting interests, such as an attorney's representation of more than one defendant in the same criminal case, or representation of a defendant where the attorney is being prosecuted for related crimes." Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir.2007) (citing Mickens, 535 U.S. at 176, 122 S.Ct. 1237 ("until ... a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance") (emphasis in original)). To demonstrate an actual conflict, petitioner must show "that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." Wells, 394 F.3d at 733 (internal quotation marks omitted); see also McClure v. Thompson, 323 F.3d 1233, 1248 (9th Cir.2003) ("The client must demonstrate that his attorney made a choice between possible alternative courses of action that impermissibly favored an interest in competition with those of the client."). In contrast, a disagreement over trial strategy does amount to an actual conflict of interest. Stenson, 504 F.3d at 886. 1215 Petitioner cites Mannhalt v. Reed, 847 F.2d 576 (9th Cir.1988), in support of the proposition that May and Tatum's relationship created an actual conflict of interest. Mannhalt was accused of conspiracy to commit robbery, attempted robbery, and several counts of robbery and possession of stolen property. Id. at 578. Mannhalt was represented at trial by James Kempton, who had known Mannhalt for several years. Id. Prior to the conduct for which Mannhalt was to be tried, Kempton purchased a gold watch from Mannhalt. Id. Mannhalt assured Kempton that the watch had been purchased from a friend. Id. The key witness in the state's case against Mannhalt was Tommy Morris, who agreed to testify against several individuals, including Mannhalt, as part of a plea bargain. Id. According to a police report Morris agreed to give information about twelve items. Item No. 11 read: 11. Attorney James Kempton purchased a stolen ring $1200 with $100 bills; taken from Lake Washington area. Also purchased a stolen bracelet. Id. Kempton became aware of this accusation while preparing for Mannhalt's trial, discussed the accusation with Mannhalt, but did not point out a potential conflict of interest. Id. At trial, Kempton conducted an "extensive cross-examination of Morris," and brought out "that Morris had received a favorable plea bargain for agreeing to testify. Kempton then confronted Morris with his accusation that Kempton had purchased stolen property." Id. Kempton "became increasingly agitated during the cross-examination," offering his "own unsworn testimony that Morris' accusation was false: `No, he's telling the police I'm buying stolen goods. I'm proving he's a liar.'" The Ninth Circuit's description of Kempton's conduct continues: At one point Kempton asked his wife, a spectator, about her jewelry and she came forward and commented that she was wearing rings and that she hoped they were not glass. Kempton asked Morris many times whether he would lie and Morris replied: "Would you?" and "I've got up here and told the truth to the best of my knowledge." Kempton also asked Morris about the "diamonds from the market place" in evidence against Mannhalt. Morris admitted he had been in the donut shop where the jewelry had been seized and where Kempton had allegedly purchased stolen jewelry. Morris then volunteered that he had seen Kempton at the donut shop. Kempton admitted that he lost his composure during the cross-examination. In his affidavit submitted in these habeas corpus proceedings, Kempton stated: "I was visibly shaken and I was furious. The court cannot appreciate the furor one feels when being confronted by an absolute thieving liar and saying that one is the purchaser of stolen items." Also, during the cross-examination the trial judge remarked: "Things are coming a little unglued here, a little bit out of order." Id. at 578-79. Kempton did not take the stand to refute Morris' accusation. Id. at 579. The Ninth Circuit determined that an actual conflict existed: We find that when an attorney is accused of crimes similar or related to those of his client, an actual conflict exists because the potential for diminished effectiveness in representation is so great. For example, a vigorous defense might uncover evidence of the attorney's own crimes, and the attorney could not give unbiased advice to his client about whether to testify or whether to accept a guilty plea. See United 1216 States v. Cancilla, 725 F.2d 867, 870 (2d Cir.1984) (counsel may have conspired with someone connected to defendant or similar fraudulent insurance claims and thus actual conflict existed); see also United States v. Salinas, 618 F.2d 1092, 1093 (5th Cir.) (trial judge was within discretion in disqualifying attorney over defendant's objection where attorney was target of investigation concerning events for which clients were indicted), cert. denied, 449 U.S. 961, 101 S.Ct. 374, 66 L.Ed.2d 228 (1980). Id. at 581 (emphasis added). Regarding the second Cuyler prong whether the conflict adversely affected counsel's performancethe Ninth Circuit concluded that "Kempton should have disqualified himself so as to be available to testify and dispute Morris' testimony about the stolen ring." Id. (citing Washington State Rules of Professional Conduct 3.7 ("A lawyer shall not act as advocate at a trial in which the lawyer ... is likely to be a necessary witness....")). The Ninth Circuit found it particularly disturbing that Kempton's "cross-examination of Morris put his own and his wife's unsworn testimony before the jury.... put[ing] himself in the position of arguing his own credibility, precisely what [the ethical rules] seeks to avoid." Id. at 582. Second, the Ninth Circuit concluded that Morris' accusation against Kempton "adversely affected Kempton's cross-examination of Morris," because "Kempton's personal interest in preserving his reputation and avoiding criminal prosecution may have impacted the manner of the cross-examination." Id. The Ninth Circuit did note that Kempton and Morris'% interest actually did not conflict in a traditional sense: Once Kempton decided to question Morris, both he and Mannhalt had an interest in undermining Morris credibility. The manner of the cross-examination indicated, however, that Kempton was motivated, at least in part, by personal concerns. The examination was by all accounts unorthodox. Kempton admitted that he was shaken and furious. Kempton's emotional performance may have effectively discredited Morris in the eyes of the jury. It is equally likely, however, that the jury viewed Kempton's anger as implying that Kempton and possibly his client were involved in illegal conduct. Kempton's personal feelings about Morris' allegation may have thus adversely affected his performance. Id. The Ninth Circuit also found that "having brought out Morris' accusation on cross.... Kempton's decision not to question Mannhalt [about the accusation] may have been affected by Kempton's personal concerns"; and that "because Kempton was the target of the same criminal investigation, he may not have pursued a plea bargain in which Mannhalt would agree to testify against Kempton." Id. In sum, the Ninth Circuit concluded that the allegations against Kempton "created an actual conflict and likely affected Kempton's performance in four ways": [H]e could not call himself as a witness to refute Morris' accusations but his cross-examination included much of his own unsworn testimony, he cross-examined Morris in an unseemly and emotional manner, he did not question Mannhalt about Morris' accusation on direct, and he could not pursue a plea bargain that might implicate himself. Mannhalt has thus met the requirements of Cuyler and shown a violation of his sixth amendment right to effective assistance of counsel. Id. at 853. Although Mannhalt clearly holds "that when an attorney is accused of 1217 crimes similar or related to those of his client, an actual conflict exists because the potential for diminished effectiveness in representation is so great," May was not "accused" of any crime at the time of the federal trial. May had been named in a civil suit to collect upon the fraudulent loans issued to him by Tatum, and was "concerned that ... the Feds wouldn't be able to figure out that [he] wasn't doing anything wrong ...," but May was "not overly concerned," and "figured they would figure it out, and no one talked to me about it." PRX 1, May 2/20/04 Depo., at 15-16. Unlike Kempton, May was not rendered dysfunctional by his emotions. May's examination of John Crawford on the subject of Tatum's fraudulent activities was not particularly probing, but this was because John Crawford was not privy to information sufficient to clearly establish the nature of Tatum's fraudulent loans. Petitioner, like Mannhalt, argues that May should have disqualified himself from representing Crawford, to enable May to testify generally about Tatum's misdeeds, e.g., that he was concealing his true banking operations from his customers. Crawford contends that this testimony would have helped to exonerate Crawford and his co-defendants. Petitioner also suggests May failed to explore Tatum's misdeeds out of concern that his own connection to Tatum would be exposed. This entire line of argument misses the broader factual context of the case, namely that the family knew their businesses were shells and shams and were undeserving of legitimate bank loans, making it likely that the jury would have viewed Tatum as another conspirator in aiding these fraudulent businesses. Unlike in Mannhalt, where Morris was key to the prosecution's case, overwhelming evidence showed that the fraudulent nature of the Crawford Family's businesses went well beyond any loans Tatum made to Family-owned companies. Petitioner and others, without proper licenses, began underwriting employee welfare benefit plans under the name Viking Casualty Company. After accepting hundreds of thousands of dollars of premiums, most of which were wire transferred to members of the Family, Viking refused to pay claims submitted on behalf of policyholders. Likewise, the Family was siphoning money out of the employee leasing businesses so rapidly that the companies did not even have enough cash to pay employee taxes. The Family received funds from the employee leasing companies through dummy payments to individuals, wire transfers, and large cash payments to individual Family members. The Family operated a similar, unlicensed builder's home warranty insurance company by appropriating the name of a large, and reputable insurer, Progressive Casualty, without Progressive's knowledge or permission. Money from this operation went to support Family activities. Finally, the Family also profited from illicit marijuana sales and bankruptcy fraud. The broad, repetitive, and pervasive nature of these unlawful activities could not possibly be written off as Tatum's doing. No matter how crooked Tatum was made to appear at trial, he had nothing to do with the operation of the RICO entities. Rather, Tatum's bank loans were to the employee leasing businesses. Emphasizing the Tatum-originated loans would only have focused more attention on how bogus those companies were and how financially unworthy the Crawford companies were to receive any loans whatsoever. This would have adversely reflected on Petitioner as the kingpin of the Family businesses. If any actual conflict of interest existed between May and Crawford regarding Tatum, it had no impact on May's performance, as there was no strategic basis for 1218 May to introduce and amplify the "crooked-banker" defense. Such a strategy would only have prejudiced Petitioner. May's failure to do so was not an adverse effect resulting from a purported conflict of interest associated with an alleged failure to assert an in pari delicto, "devil (Tatum) made me do it" defense. The petition is DENIED on this ground. VI. CONCLUSION For all the reasons set forth above, Mark Crawford's petition to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255, is DENIED IN ITS ENTIRETY. SO ORDERED. NOTES [1] Defendant was sentenced to a life term on counts 1, 2, 3, 17 and 18; a 240 month term on Counts 14, 15, and 16; a 120 month term for Count 4; and a 60 month term on Counts 5, 6, 7, 8, 10, 11, 12, 13, 19, 20, 21, 22, all to be served concurrently for a total term of life imprisonment. [2] Unless otherwise noted, all "Doc." references are to docket entries in 1:96-cr-5127 OWW. [3] Bill May graduated from the University of Texas Law School in 1978, and was in private practice briefly before joining the Nueces County District Attorney's Office in 1979. May 2/20/04 Depo. He remained at the District Attorney's Office until 1988, after which he again took up private practice. Id. He has tried between 300-500 criminal cases, prosecuted three capital cases as a deputy district attorney, and defended two capital cases while in private law practice. Id. [4] Petitioner repeatedly points to Mr. Litman's opinions about the impact of May's failure to call Mr. Noel as a witness. Litman testified: Q. Do you believe that, as an attorney, when you represent to a jury what a witness is going to say and you don't call that witness, that, in fact, not only is it not sound strategy but it's actually damaging potentially to your clients' case? A. Absolutely. I mean, an opening statement is not evidence, but really that's the first chance that a lawyer gets to speak with jurors about the theory of the case and what the evidence is going to show or not going to show. And you know, at the core of representation of a client is the jury having the belief or the knowledge that defense counsel, no matter what the evidence, is being candid with them. Because it theyif you tell them certain things and it does not come about that way or you give them, the jurors, this is what the evidence is going to show that, then not only do they hear the evidence that is adverse to the interests of the client, but then they're looking it over and saying, "Wait a minute. The attorney told me the evidence was going to show something else. This guy or gal or whatever, lady, is not a credible person and it's not somebody who, when I hear them speak again, that I'm going to have confidence in or respect in." PRX 4, Litman 11/10/05 Depo., at 63-64:2. But, ineffective assistance of counsel occurs when counsel's conduct falls "below an objective standard of reasonableness." Brown v. Ornoski, 503 F.3d 1006, 1011 (9th Cir.2007) (emphasis added). Co-counsel's subjective opinions are not relevant, as he was not offered or qualified as a standard of care expert. [5] Crawford's initial habeas petition also asserted that May admitted to Petitioner during a telephone conversation that he was unprepared at the federal trial. Petitioner's reply brief abandons this specific argument in favor of a general assertion that May was simply unprepared for trial. Although May admits telling Crawford that he felt overburdened by the trial, he denies stating that he was unprepared. GX A, May 2/20/04 Depo., at 23.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2488668/	79 So. 3d 91 (2012) Fadia DANERI, et al., Appellants, v. BCRE BRICKELL, LLC, Appellee. Nos. 3D10-666, 3D10-665, 3D10-664, 3D10-663, 3D10-662. District Court of Appeal of Florida, Third District. January 4, 2012. 92 Vila, Padron & Diaz and Kara D. Phinney, for appellants. Brian K. Goodkind; Yoss and Franchesco Soto; Krinzman, Huss, Lubetsky and Neale J. Poller, and Cary A. Lubetsky, Miami, for appellee. Before RAMIREZ, SUAREZ and LAGOA, JJ. 93 RAMIREZ, J. Appellants/plaintiffs Fadia Daneri, Paola Dickinson, Paola Daneri, Consuelo Dickinson, and Jaime Dickinson (collectively, "Daneri") appeal the trial court's Final Summary Judgment in favor of appellee BCRE Brickell, LLC with regard to count III.[1] We reverse because there are issues of fact that affect whether BCRE adhered to section 718.202, Florida Statutes (2008). The record suggests BCRE may have illegally withheld a portion of Daneri's deposit because it conditioned return of Daneri's deposit, a return to which it conceded Daneri was entitled, upon its lender's consent to return of the deposit. The requirement for lender's consent was imposed by an agreement to which Daneri was not a party. Encumbering return of the first 10% of a buyer's deposit toward the purchase price of a condominium, through a contract with someone other than the buyer, would violate the statute. We cannot, however, resolve the legal issue of violation of the statute without determining whether Daneri "defaulted" under the contract, which the pleadings below suggest is in dispute. Thus, we reverse the summary judgment. Daneri entered into a contract with BCRE for the sale and purchase of a condominium. The contract required Daneri to make a 20% deposit towards the purchase price of the condominium. In the event of a buyer default, Daneri was entitled to 25% of her deposit, and the developer would be entitled to the remaining 75%. In October 2008, the developer notified Daneri, by letter, that she had defaulted on the agreement. BCRE did not return any of Daneri's deposit at that time. Instead, BCRE explained in its letter to Daneri that BCRE's lender needed to consent to the refund before returning the money to Daneri. BCRE advised Daneri's lawyers that BCRE had received consent from its lender to return 25% of Daneri's deposit, so long as she executed a release entitled "Termination Agreement." Daneri's counsel rejected the offer and filed suit against BCRE. The trial court entered summary judgment in Daneri's favor on counts I and II, which was not appealed. The trial court also reserved jurisdiction to determine entitlement to other relief deemed appropriate. The day before the hearing regarding Daneri's other relief, BCRE filed an affidavit that revealed an agreement between the escrow agent, BCRE, and BCRE's lender. BCRE had entered into an agreement with the construction lender that promised the lender whatever interest BCRE had in all of the construction's purchase agreements and escrow deposits. The agreement, entitled the "Escrow Acknowledgement and Agreement," was between BCRE, its lender, and the escrow agent. Daneri filed an amended complaint to include a third count to void the agreement for violation of the statute. Daneri argued in count III that the contract should be voided because BCRE violated section 718.202. The trial court entered final summary judgment for BCRE, and this appeal followed. Summary judgment is proper only if no genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.2000). The standard of review for summary judgment is de novo. Id. In reviewing a summary judgment, this Court "must consider the evidence contained 94 in the record, including any supporting affidavits, in the light most favorable to the non-moving party . . . and if the slightest doubt exists, the summary judgment must be reversed." Krol v. City of Orlando, 778 So. 2d 490, 492 (Fla. 5th DCA 2001). Resolution of this case requires the Court to interpret section 718.202, which imposes requirements upon developers who take deposits from buyers before substantial completion of the condominium project. When the Court interprets a statute, the Court must follow the plain meaning of the statute in light of the express legislative intent contained in the statute's language. See St. Petersburg Bank & Trust Co. v. Hamm, 414 So. 2d 1071, 1073 (Fla.1982). When interpreting a statute, we interpret its language and the resulting operation of its terms by reading the statute as a whole to give it meaning in its entirety. Forsythe v. Longboat Key Erosion Control Dist., 604 So. 2d 452, 455 (Fla.1992). Each section of the statute must be read in light of its interaction with other parts of the statute so that this Court's interpretation "give[s] full effect to all statutory provisions in harmony with one another." Id. And "the fact that the legislature may not have contemplated a particular situation does not make the statute ambiguous." Id. at 456. Similarly, limitations upon use of money placed in escrow pursuant to an agreement are governed by the terms of the agreement. Van Vorgue v. Rankin, 41 So. 3d 849, 853 (Fla.2010). In this case, the statute's purpose in imposing conditions upon use of purchaser deposits, by requiring placing the funds in escrow and limiting release of the funds placed in escrow, is "to protect purchasers under preconstruction condominium contracts from loss of their deposits should the developer fail to perform its obligations." First Sarasota Serv. Corp. v. Miller, 450 So. 2d 875, 878 (Fla. 2d DCA 1984). The statute restricts a developer's use of purchaser deposit funds by requiring those funds to be kept untouched in escrow unless certain conditions are met. As to the first 10% of the purchase price, the statute requires that "the developer shall pay into an escrow account all payments up to 10 percent of the sale price received by the developer from the buyer towards the sale price." § 718.202(1). The statute then states that "funds shall be released from escrow" only if: a) the buyer terminates the contract; b) the buyer defaults under the contract; or c) the sale closes. § 718.202(1)(a); (b); (d). As to the remainder of the deposit, "all payments which are in excess of the 10 percent of the sale price . . . shall be held in a special escrow account" controlled by an escrow agent independent of the developer and cannot be used except as specifically provided in the statute. § 718.202(2). The developer can use this portion of the deposit only for "actual construction and development." Id. In addition, the developer's contract with the buyer must specifically provide that the funds provided in excess of 10 % of the purchase price may be used in actual construction and development, or they cannot be used at all. § 718.202(3). Failure to comply with the statute makes the developer's contract with the buyer voidable by the buyer, which requires return of all monies provided to the developer as a deposit. Here, all three subsections of 718.202 are at issue, because the purchaser, Daneri, provided the developer, BCRE, with a deposit of 20% of the sale price. However, BCRE did not violate subsection (2) because BCRE specifically informed Daneri, in two places in the sales contract (the price page and the signature page), that it 95 intended to use money in excess of 10% of the purchase price to fund its construction costs, as permitted pursuant to subsection (2). BCRE also used the language required by the statute to inform Daneri of its intentions, as required under subsection (3). Summary judgment was incorrectly entered, however, because there is an issue of fact regarding whether BCRE's limitation on the return of the other portion of Daneri's deposit violated subsection (1), which states "default determinations and refund of deposits shall be governed by the escrow release provisions" contained in section 718.202. The statute's escrow release provisions provide that the ten % in escrow is released when: a) the buyer terminates the contract pursuant to its terms or as allowed under the condominium law; b) the buyer defaults under the contract; or c) the sale closes. § 718.202(1)(a); (b); (d). Here, an issue of fact exists because it is unclear whether the alleged default by Daneri was really a termination of the contract "pursuant to its terms," or whether it was a default "in the performance of [Daneri's] obligations under the contract of purchase and sale." See § 718.202(1). BCRE advised the trial court that Daneri had conceded default under the contract by demanding return of 25% of its deposit, but that is an inference we cannot make upon our de novo review of this record. While BCRE contends that Daneri conceded it had defaulted, the record only shows that BCRE gave "written notification that it has claimed or will claim" that Daneri defaulted under the agreement. Consequently, we cannot accept BCRE's contention that Daneri, by filing a lawsuit seeking to void the contract for violation of 718.202(3), conceded it had defaulted under the contract. Thus, BCRE may have violated section 718.202 because the funds held in escrow were withheld in violation of the statute due to BCRE's obligations to its lender, rather than pursuant to the purchase contract. The statute requires that "funds shall be released from escrow" under specified conditions, which as relevant here, relate to the contract's terms regarding purchaser default or developer default. If the developer defaulted, it had no right to withhold any of the deposit due back to Daneri pending approval of BCRE's lender. If Daneri defaulted, then BCRE was entitled to all the deposit, and could, as it claims to have done here, return portions of the deposit subject to the conditions imposed upon Daneri. The pleadings demonstrate this issue was disputed, and its resolution is material to whether the statute was violated, which requires us to reverse the summary judgment in favor of BCRE. See First Sarasota Serv. Corp., 450 So.2d at 878 (reversing summary judgment because determining whether a violation of the statute had occurred required "the court to first determine whether the purchasers were in default under their contracts"); Ric-Rec, Inc. v. Capri Gardens Condo., Inc., 379 So. 2d 407, 408 (Fla. 3d DCA 1980) (reversing summary judgment because the record evidence was "susceptible to conflicting inferences"). Accordingly, we reverse the trial court's summary judgment with respect to count III, because BCRE failed to demonstrate beyond dispute that it adhered to the constraints placed on funds in escrow pursuant to section 718.202. Reversed and remanded as to count III in each of the plaintiffs' cases. NOTES [1] The plaintiffs' cases are all procedurally and factually identical and have been consolidated on appeal. The units, which were the subject of the five cases in the trial court, differ in price and the corresponding 20% deposit amount.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2514590/	196 P.3d 915 (2008) In the Matter of Douglas W. DOWELL, Respondent. No. 100,863. Supreme Court of Kansas. December 5, 2008. 916 Alexander M. Walczak, deputy disciplinary administrator, argued the cause, and Stanton A. Hazlett, disciplinary administrator, was with him on the formal complaint for petitioner. Douglas W. Dowell, respondent, argued the cause pro se. PER CURIAM: This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Douglas W. Dowell, a Kansas City attorney admitted to the practice of law in Kansas in 2002. The hearing panel found that the respondent violated Kansas Rules of Professional Conduct (KRPC) 1.1 (2007 Kan. Ct. R. Annot. 384) (competence); KRPC 1.3 (2007 Kan. Ct. R. Annot. 398) (diligence); KRPC 1.4(a) (2007 Kan. Ct. R. Annot. 413) (communication); KRPC 1.15 (2007 Kan. Ct. R. Annot. 473) (safekeeping property); KRPC 8.4(g) (2007 Kan. Ct. R. Annot. 559) (engaging in conduct adversely reflecting on fitness to practice law); and Kansas Supreme Court Rule 211 (2007 Kan. Ct. R. Annot. 304) (formal hearings). Before a panel of the Kansas Board for Discipline of Attorneys, the respondent stipulated that the factual allegations contained in the formal complaint were true and resulted in the disciplinary rules violations set forth therein. Respondent then testified in mitigation of his conduct. The Deputy Disciplinary Administrator recommended the respondent be suspended from the practice of law for an indefinite period. The hearing panel unanimously accepted this recommendation. Respondent filed no exceptions to the final hearing report. The panel made the following findings of fact and conclusions of law: "FINDINGS OF FACT "Based upon the Respondent's stipulation and the evidence introduced at the hearing, the Hearing Panel finds the following facts, by clear and convincing evidence: .... "2. The Respondent practiced law with Brad Medlin until July, 2005, when Mr. Medlin left the practice and moved to Florida. Thereafter, in September, 2005, the Respondent formed a partnership with Sarah A. Sypher. "3. The Respondent and Ms. Sypher remained as law partners from September, 2005, until April 20, 2007. "4. During the period of time the Respondent practiced law with Ms. Sypher, the Respondent failed to return telephone calls to clients, the Respondent failed to diligently represent clients, the Respondent failed to take necessary action in many bankruptcy cases and received 12 orders to show cause based upon his inaction, the Respondent accepted cases that he was not competent to handle, and the Respondent provided Ms. Sypher with false information regarding the status of cases. "5. On April 20, 2007, Ms. Sypher and Christopher Kuehn, an attorney, confronted the Respondent regarding the problems in his practice. Ms. Sypher and Mr. Kuehn encouraged the Respondent to seek assistance in handling what appeared to be personal problems. "6. At the hearing on this matter, the Respondent acknowledged that he suffers from depression, that he may suffer from attention deficit disorder, and that he is an alcoholic. Following his meeting with Ms. Sypher and Mr. Kuehn on April 20, 2007, the Respondent reported to Mirror's, Inc., for intensive outpatient alcohol treatment. The Respondent successfully completed the program and continues to participate in AA meetings. Additionally, after the Respondent ceased practicing law, the Respondent contacted Don Zemites with the Kansas Impaired Lawyers Assistance Program. The Respondent worked with Mr. Zemites in addressing his alcoholism until Mr. Zemites' death. Since Mr. Zemites' death, the Respondent has not sought or obtained assistance from the Kansas Impaired Lawyers Assistance Program. 917 "7. The Respondent has not sought or obtained an evaluation or treatment for depression or attention deficit disorder. "8. After leaving the practice of law on April 20, 2007, the Respondent did not contact his clients, opposing counsel, or the courts in which he had pending cases to notify them that he would no longer be practicing law. The Respondent left the practice with the understanding that Ms. Sypher would take over the representation and assist his clients. The Respondent took no action to assist Ms. Sypher with the transition. "Representation of [D.G.] "9. In May, 2006, [D.G.] retained the Respondent to file an action in bankruptcy in her behalf. At that time, [D.G.] was three months behind in her payments on her home mortgage. The Respondent recommended that she file a Chapter 13 bankruptcy action. "10. The Respondent filed a Chapter 13 bankruptcy case in behalf of [D.G.]. After [D.G.] made her first payment on her plan, the bankruptcy court dismissed [D.G.'s] Chapter 13 case because the Respondent failed to file copies of pay stubs and income tax returns. "11. The Respondent filed a second Chapter 13 case in behalf of [D.G.]. However, the bankruptcy court dismissed [D.G.'s] second Chapter 13 case because the Respondent failed to include a confirmable plan. "12. After the court dismissed the second Chapter 13 case, [D.G.] began negotiating directly with the lender on her home mortgage. [D.G.] and the mortgage company reached an agreement. [D.G.] agreed to make her monthly payments and pay an additional amount to cover her arrearage. The mortgage company agreed that if [D.G.] paid as agreed for a period of time, the mortgage company would restore the mortgage to good standing. "13. The Respondent advised [D.G.] to not make the agreed payments because the mortgage company could still foreclose on the loan. Relying on the Respondent's advice, [D.G.] discontinued making payments. "14. The Respondent also advised [D.G.] that she should file a Chapter 7 bankruptcy to satisfy her indebtedness. However, the Respondent failed to properly research the possibility of [D.G.] filing a Chapter 7 bankruptcy. As it turns out, [D.G.] was ineligible to file a Chapter 7 bankruptcy because of the recency of her husband's prior Chapter 7 bankruptcy. As a result, [D.G.] lost her home and her vehicle. [D.G.] would not have been eligible to file a Chapter 7 bankruptcy until 2008. "Representation of [T.J.] "15. In March, 2005, [T.J.] retained Brad Medlin to file an action in bankruptcy. After Mr. Medlin left the practice of law, the Respondent replaced Mr. Medlin as [T.J.'s] attorney. "16. While the bankruptcy case was pending, ... a lien [was filed] on [T.J.'s] home. [T.J.] became aware of the lien in July, 2006, when he attempted to take a reverse mortgage on the property. The trustee informed [T.J.] that the lien was not valid. [T.J.] requested that the Respondent take action to have the lien removed. The Respondent took no action to have the lien removed. "17. [T.J.] and his friend, [M.A.], repeatedly telephoned the Respondent seeking information regarding the representation. The Respondent failed to return their telephone calls. "18. On November 30, 2006, [T.J.] died. Following [T.J.'s] death, the Respondent filed a motion to avoid the lien. The Court found that the Respondent failed to file a motion for substitution of parties and that the motion to avoid the lien was improper because [T.J.] was deceased and the Respondent lacked standing to file the motion. "19. Because of the posture of the bankruptcy case, the Respondent informed [T.J.'s] family that he was not competent to handle the case and instructed [T.J.'s] family to find a new lawyer. The Respondent 918 took no action to assist [T.J.'s] family in finding competent counsel. "Representation of [T.L.P.] "20. During 2004, [T.L.P.] retained the Respondent to represent him in a bankruptcy action and to represent him in a lawsuit against Commerce Bank in Joplin, Missouri, for providing inaccurate information to the credit reporting agencies. [T.L.P.] paid the Respondent an attorney fee. "21. Thereafter, the Respondent filed an action in bankruptcy, pursuant to Chapter 13 in behalf of [T.L.P.]. However, the bankruptcy court dismissed the action because the Respondent failed to file the appropriate documents. Later, in 2005, [T.L.P.] paid the Respondent an additional attorney fee and the Respondent refiled the bankruptcy case. "22. In early 2007, the Respondent moved to a different residence and his law firm moved to a different office. The Respondent employed [T.L.P.] to assist him with moving. While assisting the Respondent in moving the Respondent's residence, [T.L.P.] was carrying bags of trash to the receptacle. When doing so, some items fell out of the bags. When [T.L.P.] went to return the trash to the bags, he discovered that what had fallen out of the trash bags included original documents from [T.L.P.'s] bankruptcy case, [T.L.P.'s] only copy of his income tax return, his actual Lowe's credit card, and his credit card documents. [T.L.P.] looked through the trash and observed what appeared to be other bankruptcy clients' documents and property. The Respondent instructed [T.L.P.] to throw the items away. "23. After leaving the practice of law in April 20, 2007, the Respondent failed to notify [T.L.P.] that he would no longer provide him with representation in his Chapter 13 bankruptcy case and his action against Commerce Bank. "CONCLUSIONS OF LAW "1. Based upon the Respondent's stipulations and the findings of fact above, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.15, and KRPC 8.4(g), and Kan. Sup.Ct. R. 211(b), as detailed below. "2. Lawyers must provide competent representation to their clients. KRPC 1.1. `Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.' The Respondent violated KRPC 1.1 when he (1) accepted cases that he was not competent to handle, (2) failed to provide the bankruptcy court with required documentation in behalf of [D.G.] and [T.L.P.], (3) failed to file a confirmable plan for [D.G.], (4) advised [D.G.] to not make the agreed payments to her mortgage company, (5) advised [D.G.] to file a Chapter 7 bankruptcy case at a time when she was ineligible to do so, and (6) filed a motion to avoid the lien in behalf of [T.J.] after [T.J.] died. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1. "3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to [D.G.], [T.J.], and [T.L.P.] by failing to timely advance their cases. Because the Respondent failed to act with reasonable diligence and promptness in representing his clients, the Hearing Panel concludes that the Respondent violated KRPC 1.3. "4. KRPC 1.4(a) provides that `[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.' In this case, the Respondent violated KRPC 1.4(a) when he failed to return his clients' telephone calls, including [T.J.'s] and [M.A.'s] telephone calls. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a). "5. Lawyers must keep the property of their clients safe. See KRPC 1.15. The Respondent failed to keep [T.L.P.'s] property safe when he deposited it into the trash at his residence. Accordingly, the Hearing Panel concludes that the Respondent 919 failed to properly safeguard [T.L.P.'s] property. "6. `It is professional misconduct for a lawyer to ... engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.' KRPC 8.4(g). The Respondent provided Ms. Sypher, his partner, with false information regarding the status of his cases. Additionally, the Respondent placed [T.L.P.'s] personal property in his trash at his residence. Providing false information to his partner and throwing away [T.L.P.'s] personal property adversely reflects on the Respondent's fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g). "7. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup.Ct. R. 211(b) provides the requirements: `The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.' In this case, the Respondent violated Kan. Sup.Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup.Ct. R. 211(b)." RECOMMENDED DISCIPLINE In considering the appropriate discipline, the hearing panel addressed the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions, specifically, the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors. "Duty Violated. The Respondent violated his duty to his clients to provide diligent representation and adequate communication. The Respondent also violated his duty to his clients to safeguard his clients property. "Mental State. The Respondent knowingly violated his duty. "Injury. As a result of the Respondents misconduct, the Respondent caused actual injury to his clients. [T.J.] died while waiting for the Respondent to provide the assistance for which he was hired. Additionally, Ms. Sypher testified that two additional clients ... died while waiting for the Respondent to take action in their pending cases. "Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present: "A Pattern of Misconduct. Included in this case are two complaints. The complaints involve similar misconduct. Accordingly, the Respondent engaged in a pattern of misconduct. "Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 8.4(g), and Kan. Sup. Ct. R. 211(b). As such, the Respondent committed multiple offenses. "Vulnerability of Victim. The Respondent's clients were vulnerable to the Respondent's misconduct because of their financial difficulties. "Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present: "Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined. "Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. According to the Respondent, he has suffered from depression during the course of the past few years. Additionally, the Respondent identifies himself as an alcoholic. The Respondent participated in intensive outpatient treatment 920 for alcoholism and has attended, on average, three Alcoholics Anonymous meetings each week for the past year. The Respondent's impairments contributed to his misconduct. "The Present and Past Attitude of the Attorney as Shown by the Respondent's Cooperation During the Hearing and the Respondent's Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary hearing as exhibited by his complete acknowledgment of the misconduct. "Inexperience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 2002. At the time the Respondent's misconduct began, he had been practicing law for a period of three years. Accordingly, the Hearing Panel concludes that Respondent was inexperienced in the practice of law at the time he engaged in the misconduct. "Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse. "In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards: `Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.' Standard 4.12. `Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.' Standard 4.42. `Suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury to a client.' Standard 4.52." The hearing panel then stated: "Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be indefinitely suspended from the practice of law in the State of Kansas. The Respondent shall comply with Kan. Sup.Ct. R. 218. "It is clear to the Hearing Panel that the Respondent is not currently fit to practice law. The Respondent acknowledges that he suffers from depression and the Respondent also believes that he may suffer from attention deficit disorder. However, the Respondent has not sought or obtained evaluation or treatment for these conditions, because, as he testified, of his financial limitations. It is incumbent upon the Respondent to seek and obtain evaluation, and if appropriate, sufficient treatment for these conditions prior to seeking reinstatement to the practice of law." DISCUSSION In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003); see also Supreme Court Rule 211(f) (2007 Kan. Ct. R. Annot. 304) (misconduct to be established by clear and convincing evidence). Here, respondent stipulated to the factual allegations contained in the formal complaint and the disciplinary rules violations charged therein. Additionally, he filed no exceptions, the results of which render the final hearing report to be deemed admitted. Supreme Court Rule 212(c) (2007 Kan. Ct. R. Annot. 317). We conclude the panel's findings of fact are supported by clear and convincing evidence and support the panel's conclusions of law, and we adopt the panel's findings and conclusions. By virtue of respondent's stipulation before the panel to the facts and disciplinary rule violations, the only matter at issue before 921 the panel was the appropriate discipline to be recommended. At the hearing before this court, respondent concurred with the hearing panel's recommendation, stating he was not able to practice law at the present time because of his depression. Consequently, we adopt the panel's recommendation. IT IS THEREFORE ORDERED that Douglas W. Dowell be and he is hereby indefinitely suspended from the practice of law in Kansas, effective upon the filing of this opinion. IT IS FURTHER ORDERED that Douglas W. Dowell shall comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337). IT IS FURTHER ORDERED that Douglas W. Dowell shall comply with Supreme Court Rule 219 (2007 Kan. Ct. R. Annot. 350) if he seeks reinstatement. As part of the reinstatement procedure, the Disciplinary Administrator may require an evaluation by a health care provider chosen by the Disciplinary Administrator in order to determine if respondent is mentally and physically competent to engage in the active and continuous practice of law in this state. IT IS FURTHER ORDERED that this opinion be published in the official Kansas Reports and that respondent pay the costs of these proceedings.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/30717/	IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-50494 ROBERT DALE COX, Petitioner-Appellee, versus JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellant. Appeal from the United States District Court For the Western District of Texas March 6, 2003 Before HIGGINBOTHAM and DAVIS, Circuit Judges, and HUDSPETH,* District Judge. PER CURIAM:** A Texas jury found Robert Dale Cox guilty of felony theft of property valued over $750 and under $20,000 for stealing a 1940 John Deere H tractor from eighty-six year old Gertrude Klunkert. In July 1994, Klunkert agreed to pay Cox $1900 to build a carport. Cox offered to take the tractor as payment for his labor, but * Senior District Judge of the Western District of Texas, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Klunkert refused and stated that she would not sell it to him for any price due to its sentimental value to her. With the help of his brother-in-law, Cox stole the tractor. At trial, Klunkert testified that she believed the tractor was worth $1500. The state also called an expert in antique tractors, Gustav Schlender. Schlender explained that antique tractors have two types of value, a “utility value” and a “collector-type value.” Schlender testified that he had inspected the tractor and that in his opinion its fair market value as a collectible was at least $750, and could probably be sold at a price between $800 and $1000. Cox called Maurice Hilbert, a John Deere dealer, to testify to the value of the tractor. Hilbert testified that the utility value of the tractor was $200 to $300 at the most. He admitted he did not know its value as an antique or collectible, but stated that “somebody who collects tractors for restoration might offer more for it.” He also admitted that “I don’t know what the antique market is. I don’t follow the antique market ....” Cox did not call any expert regarding the tractor’s collectible value. The jury found Cox guilty of theft of property valued between $750 and $20,000. Because Cox had five prior felony convictions, he was sentenced to seventy-five years’ imprisonment. Cox moved for a new trial on the basis of new evidence and was granted a hearing. He called three experts to testify to the collectable value of the tractor, none of whom valued the tractor over $250. He also unsuccessfully attempted to enter into evidence -2- the affidavits of three other collectible tractor experts, none of whom valued the tractor over $350. After the hearing, the trial court denied Cox’s motion. Cox’s conviction was affirmed on direct appeal. He then filed two state applications for writs of habeas corpus; the first application was denied without written order, and the second was dismissed for abuse of the writ. Cox filed his federal petition in February 2000. In it he urged that his trial attorney’s failure to obtain expert testimony regarding the collectible value of the tractor constituted ineffective assistance of counsel, that he received ineffective assistance because his attorney did not request a jury instruction on his defense of “mistake of fact,” and that his sentence amounted to cruel and unusual punishment. The magistrate judge to whom the case was assigned held an evidentiary hearing, and afterwards recommended that the district court deny his claims for relief on the mistake of fact and Eighth Amendment issues, but grant relief on the ineffectiveness claim based on failure to find a collectible value expert. In April 2002 the district court accepted the magistrate judge’s report and recommendation and granted the writ, finding Cox’s ineffective assistance of counsel claim meritorious. The Director appeals. I The Director first argues that the district court erred in determining that Cox’s ineffective assistance claim based on the -3- collectible value of the tractor was not procedurally defaulted. The district court accepted the magistrate judge’s finding that Cox brought this claim in his first state court petition and that it was disposed of on the merits, thereby exhausting the claim and allowing the district court to consider it notwithstanding that Cox’s second state habeas application was dismissed for abuse of the writ.1 The Director disputes this conclusion, arguing that the ineffectiveness issue raised in the first state petition was substantially different from that pursued in the second state 1 See TEX. CODE CRIM. P. ANN. Art. 11.071 § 5 (Vernon 2002). This section provides: (a) If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that: (1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; (2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or (3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury in the applicant’s trial under Article 37.071 or 37.0711. Id. -4- application and federal petition. We disagree. In his first state petition, Cox presented a dual claim consisting of his argument that he was actually innocent of felony theft, because the tractor was worth less than $750, and that his counsel had rendered ineffective assistance by failing to investigate the tractor’s collectible value and proffer such evidence at trial. In discussing his ineffectiveness argument, Cox cited the basic law governing such claims, including Cronic2 and Strickland.3 He explained that “[c]laims of ineffectiveness must overcome a strong presumption that counsel’s representation was within the expansive range of reasonable performance, and demonstrate that the attorney’s performance fell below prevailing professional norms.” Cox further noted that “Strickland also requires a showing that, but for counsel’s errors or omissions, the result of the proceeding probably would have been different.” In particular, he urged that his counsel’s failure to sufficiently investigate the collectible value of the tractor prejudiced him. He explained that during the hearing on his motion for new trial, “three experts on antique tractors were presented, and they testified without contradiction[] that Klunkert’s tractor was worth nowhere near $750.” He asserted, “[h]ad trial counsel investigated[,] he would have found more than enough tractor 2 United States v. Cronic, 466 U.S. 648 (1984). 3 Strickland v. Washington, 466 U.S. 668 (1984). -5- experts who were willing to testify regarding the worthlessness of Klunkert’s tractor. Had he done so, it is more likely than not that the jury would have acquitted him.” Although Cox’s ineffectiveness argument was intertwined with his actual innocence claim in his first state petition, it was fairly presented in that application, and therefore is not procedurally barred by the Texas Court of Criminal Appeals’ dismissal of his second application for abuse of the writ.4 The claim presented in his first state petition was nearly identical in all relevant aspects to that asserted in his second state petition, 4 The Director argues that Cox argued ineffectiveness in an attempt to have the state courts consider his actual innocence claim, and that therefore he was not asking for relief due to ineffective assistance of counsel, but was rather asking for relief on the basis that he was actually innocent. However, the first state claim actually reveals the opposite – Cox’s counsel was operating under the mistaken view that he needed to show his client was actually innocent in order to present the ineffectiveness claim. In the petition, his attorney asserted, “[i]f the habeas court is convinced that new facts exist raising doubt about the defendant’s guilt, ... [this] ‘threshold showing of innocence would justify a review of the merits of the constitutional claims.’” Thus, Cox’s actual innocence argument was presented merely as “‘a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.’” Unfortunately, Cox’s attorney was applying the federal law applicable to successive habeas petitions in the context of Cox’s first habeas petition. See Schlup v. Delo, 513 U.S. 298, 314 (1995). His constitutional claim of ineffective assistance of counsel was not a “barred claim” in his initial habeas application, but would only have become barred if he failed to raise it in his first petition. Id. However, that Cox’s attorney misapprehended the law was of no matter, because the actual innocence discussion was merely superfluous, and did not negate the presentation of his ineffectiveness claim. -6- which again cited Cronic and Strickland and summarized Strickland’s two-pronged ineffectiveness test. Like his first state petition, the latter application also argued that his trial attorney fell below an objective standard of reasonable performance in failing to investigate and proffer at trial evidence on the collectible value of the tractor. Both his first and second state application ended its discussion of this claim with the charge, “[h]ad counsel properly investigated, he would have obtained the same overwhelming testimony presented at” the hearing on the motion for new trial, “which conclusively established that, even as a ‘collectible,’ the tractor was not worth anywhere near $750.”5 Cox therefore did not procedurally default on his ineffectiveness claim, which was rejected on the merits in his first state habeas petition. II The Director also asserts that the magistrate judge erred in granting Cox an evidentiary hearing, because Cox failed to develop 5 The Director contends that Cox’s ineffectiveness allegations differed in his first and second state petitions, because in his first petition he only argued that his counsel failed to investigate the value of the tractor, while in his second state petition he asserted that his trial attorney failed to investigate the tractor’s collectible value and present such evidence at trial. However, this argument splits hairs. In both applications, the gravamen of Cox’s ineffectiveness argument is the same: his trial attorney failed to adequately investigate the collectible value of the tractor; had he done so, he could have presented substantial evidence that the tractor’s antique value was under $750 and the jury would not have convicted Cox. -7- the factual basis for his claim in state court.6 “[A] petitioner cannot be said to have ‘failed to develop’ a factual basis for his claim unless the undeveloped record is a result of his own decision or omission.”7 Thus, “a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”8 Although the state court rejected Cox’s request for a hearing, the Director argues that Cox must still be held accountable for failure to develop the record because he did not provide the state courts with affidavits supporting his allegations. However, Cox sufficiently developed the record in state court by presenting the transcript of the hearing on his motion for new trial, which contained the testimony of three antique tractor experts that the tractor was not worth $750. Additionally, he submitted the affidavits of three other antique tractor experts who opined that the tractor was not worth $750. He relied on both the transcript of the motion hearing and these affidavits to support his ineffectiveness allegations in his first state habeas petition. We find that Cox’s reference to this evidence in his first petition, coupled with his unsuccessful request for an evidentiary hearing, satisfied his obligation to 6 See 28 U.S.C. § 2254(e)(2). 7 McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998). 8 (Michael) Williams v. Taylor, 529 U.S. 420, 432 (2000). -8- develop the factual bases for his ineffectiveness claim.9 III The Director last argues that the district court erred in determining that Cox’s trial counsel rendered ineffective assistance. Before reaching this issue, however, we must take up the question whether the district court applied the appropriate legal standard to any implicit findings of fact and conclusions of law made by the state courts. AEDPA restricts the ability of federal courts to grant relief to those cases in which the state court’s adjudication on the merits “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 “resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court 9 The Director complains that Cox proffered evidence at the federal hearing different from that provided in the affidavits and transcripts given to the state courts. During the hearing, Cox called his trial attorney, Stork, and an attorney expert, Forsythe, to testify on the ineffectiveness claim. He had not presented affidavits by these witnesses along with his first state petition. However, the district court determined before allowing the hearing that Cox did not fail to develop sufficiently his claim in state court, and we concur with that determination. Once the district court reached that conclusion, it was allowed to grant a hearing and expand the record of evidence at the evidentiary hearing. See, e.g., Rule 7 of the Rules Governing § 2254 Cases (“If the petition is not dismissed summarily the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition.”). -9- proceeding.”10 Claims of ineffective assistance of counsel are mixed questions of law and fact,11 and a federal court may grant relief for such claims only if the state court’s denial rested on “an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court,” to the facts of the case.12 Furthermore, AEDPA “requires us to presume state court findings of fact to be correct unless the petitioner rebuts that presumption by clear and convincing evidence.”13 This presumption of correctness applies not only to explicit factual findings, but also “to those unarticulated findings which are necessary to the state court’s conclusions of mixed law and fact.”14 Although the district court correctly applied the “unreasonable application” standard to the state court’s denial of Cox’s ineffectiveness claim, it refused to apply the presumption of correctness to any factual findings supporting this conclusion, because the state courts had made no explicit factual findings on the issue. The magistrate judge’s report and recommendation explains, “[g]iven that no evidentiary hearing was held, and no findings of fact were made by the trial court or the Court of 10 28 U.S.C. § 2254(d). 11 Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002). 12 Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997). 13 Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001); § 2254(e)(1). 14 Id. at 948. -10- Criminal Appeals, there are no factual findings to which this Court must – indeed can – defer.” Thus, the only factual findings it relied upon in its determination were those it made after holding an evidentiary hearing. In so doing, the district court did not abide by the Supreme Court’s instruction that, in habeas proceedings, “if no express findings of fact have been made by the state court, the District Court must initially determine whether the state court has impliedly found material facts.”15 This case presents particular circumstances that complicate a court’s determination of whether the state courts made implicit factual findings, because neither the trial court nor the Texas Court of Criminal Appeals made any explicit legal conclusions, and Cox’s first state petition was denied without written order. In Goodwin v. Johnson, we reasoned that “[t]he case law of this circuit demonstrates that some indication of the legal basis for the state court’s denial of relief on a federal claim is generally necessary to support a conclusion that the state court has made an implied fact-finding as to a factual issue underlying the claim.”16 However, it also noted, “[i]n a few instances, we 15 Townsend v. Sain, 372 U.S. 293, 314 (1963); see also Weeks v. Snyder, 219 F.3d 245 (3d Cir. 2000) (same). 16 Goodwin v. Johnson, 132 F.3d 162, 184 (5th Cir. 1998). Although this case applied pre-AEDPA law, its reasoning in regard to implied factual findings was adopted in the AEDPA context in Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001) (citing -11- have held that a state court’s bare legal ruling without accompanying conclusions of law may form a basis for implying findings of fact that support the ruling.”17 It limited these circumstances to those “in which the state court’s ruling addressed a discrete issue and the factual basis for the ruling was extremely clear based on the ruling’s limited nature.”18 As examples, the Goodwin court cited cases in which we have held that a state court’s refusal to dismiss a juror for cause after a defendant argued that the juror was partial gave rise to an implied factual finding that the juror was not biased,19 that a trial court’s denial of the defendant’s motion to suppress evidence from an out-of-court identification implied that the court had credited the identifying witness’s testimony that the out-of-court identification was not unduly suggestive,20 and that the state court’s denial of the defendant’s motion for mistrial based on pretrial publicity contained the implicit fact-finding that the publicity had not Goodwin in support of its statement that “[t]he presumption of correctness ... applies to those unarticulated findings which are necessary to the state court’s conclusions of mixed law and fact” and describing Goodwin as holding that “findings of fact can be implied from explicit conclusions of law”). 17 Id. at 185 n.16. 18 Id. 19 See Jones v. Butler, 864 F.2d 348, 362 (5th Cir. 1988). 20 See Lavernia v. Lynaugh, 845 F.2d 493, 499-500 (5th Cir. 1988). -12- created “the kind of ‘wave of public passion’ that would have made a fair trial unlikely.”21 Although the district court here should have determined whether the state courts’ denial of Cox’s ineffectiveness claim entailed implicit factual findings, we conclude that its failure to do so was harmless in this instance because, under Goodwin, no such findings can be gleaned from their summary rejection of the claim. Cox’s ineffectiveness claim differs from the discrete issues confronted in those few cases in which we have derived implicit factual findings from a state court’s summary denial of a claim. In this instance, we cannot gather from the state courts’ decision whether they denied the ineffectiveness claim because they found Cox’s attorney sufficiently investigated the case, or because they found that any testimony proffered by the defense on the collectible value of the tractor would not have affected the jury verdict, or both. Therefore, this case does not fall within those limited cases in which “the factual basis for the ruling was extremely clear based on the ruling’s limited nature.” Because we find no error in the district court’s refusal to apply the presumption of correctness to any implicit factual findings made by the state courts, we finally address the merits of Cox’s ineffectiveness claim. IV 21 See Wicker v. McCotter, 783 F.2d 487, 495 (5th Cir. 1986). -13- A Ineffective assistance is a mixed question of law and fact, and we therefore review de novo the district court’s grant of habeas, “while crediting the district court’s express or implied findings of discrete historical fact that are not clearly erroneous.”22 The familiar tenets of Strickland v. Washington control and set out a two-pronged test to analyze whether a defendant received ineffective assistance of counsel: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.23 To establish that counsel’s performance was deficient, a defendant must show that it is objectively unreasonable under prevailing professional norms.24 We apply a strong presumption that trial counsel’s conduct fell within a wide range of reasonable professional assistance or that the challenged conduct might be 22 United States v. Mullins, 315 F.3d 449, 453 (5th Cir. 2002). 23 466 U.S. 668, 687 (1984). 24 Id. at 688-89. -14- considered a trial strategy.25 The defendant must also show prejudice, which requires demonstrating that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.26 “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”27 After the magistrate judge conducted the evidentiary hearing, he made numerous factual findings. He found that Cox’s trial counsel, Stork, admitted that the value of the tractor was “the issue at trial,” but despite this knowledge never requested funds from the court to retain an expert on the tractor’s collectible value. Additionally, he determined that the one expert Stork did call to speak on tractor valuation, Hilbert, was not qualified to offer an opinion on the value of the item as an antique, which was the theory Stork knew the prosecution planned on pursuing at trial. The court also found that Stork had not written down the names of any other potential experts he had allegedly considered using. It determined that the numerous clubs of tractor enthusiasts and magazines devoted exclusively to antique tractors would have assisted Cox’s counsel in locating an appropriately qualified expert. The court concluded that, had Stork attempted to engage an 25 Id. at 689. 26 Id. at 687. 27 Id. -15- antique tractor expert, he would have had “a more than ample supply of experts to demonstrate that the value of the tractor, even for a collector, was well less than $750.” Applying the law to the facts, the magistrate judge concluded that Cox’s attorney rendered deficient performance that prejudiced the defense. He reasoned: The evidence shows that [Cox’s attorney] was on notice that the value of the tractor as a collectible was the crucial issue in Petitioner’s trial. If Petitioner was convicted of theft of [over $750], he faced sentencing as a habitual offender, and was thereby exposed to a sentencing maximum of life imprisonment. [His counsel] likewise knew the expert he intended to present on the issue of value was not qualified to value the tractor as a collectible, yet he failed to take the steps necessary to secure such an expert. Had counsel done even a minimal amount of investigation into the collectible value issue, he would have obtained the same overwhelming testimony presented at the hearing on Petitioner’s motion for new trial. It determined that Stork’s failures prejudiced Cox’s case because “the jury sent out a note indicating it was deadlocked between a conviction for a misdemeanor and a felony, meaning they were having difficulty in determining whether the value of the tractor was more than $750.” Given the closeness of the issue, and the wealth of testimony of the tractor’s low collectible valuation presented by Cox in his post-conviction proceedings, the court concluded that there was a reasonable probability that, but for Cox’s attorney’s errors, the result of the proceeding would have been different. B -16- The Director first attacks the district court’s determination on the basis that trial counsel cannot be ineffective for failing to call a better expert. She argues that Hilbert, the witness called by Cox’s counsel at trial, was “a knowledgeable tractor dealer,” and asserts that defense attorneys are not required to shop around for experts who will provide better opinions. However, we concur with the district court’s analysis on this point. It reasoned that Cox’s attorney “was not deficient for calling an expert who performed poorly,” but rather “was deficient for not taking the steps necessary to locate and call an expert on the issue actually before the court and jury – the value of the tractor as a collectible item.” The court compared the scenario to one in which “a defense attorney call[ed] a ballistics expert when the defense attorney knew that the prosecution was going to tie a gun to the defendant on the basis of fingerprints, not ballistics identification.” This situation is not, as the Director urges, akin to one in which a defendant claims his expert did not prepare as thoroughly as would have been desirable,28 or that his expert, although qualified, did not correctly diagnose his psychological 28 See Fisher v. Lee, 215 F.3d 438, 449-452 (4th Cir. 2000) (rejecting the petitioner’s complaint that his court-appointed medical expert began his evaluation of the petitioner too late to be sufficiently prepared to present effective testimony); McQueen v. Scroggy, 99 F.3d 1302, 1312 (6th Cir. 1996) (rejecting the petitioner’s claim that his attorney was ineffective because he did not sufficiently prepare the psychiatric expert). -17- disorder.29 Rather, here the issue is not one of degree – whether Hilbert or another expert could have proffered better testimony as to the utility value of the tractor – but one of kind – whether Stork was deficient in failing to locate an expert on the collectible value of the tractor. In this case, hiring Hilbert, who could speak only to the utility value of the tractor, was tantamount to hiring no expert at all. C The Director also asserts that, contrary to the district court’s finding, Cox’s counsel did not render deficient performance. She argues that his attorney conducted a reasonable investigation, “speaking to ten or twelve people total,” and went to tractor dealerships and an antique flea market that displayed antique tractors. She additionally asserts that Cox’s attorney testified that he asked Hilbert for recommendations of other potential expert witnesses, but was given only the name of the prosecution’s witness. Finally, the Director contends that Cox’s counsel “found people he thought he could qualify as experts, but they told him they did not want to get involved.” Thus, in his professional opinion he decided to call the utility valuation expert, rather than witnesses who could potentially be hostile to 29 See McQueen, 99 F.3d at 1312-13 (rejecting the petitioner’s argument that his counsel was ineffective because his psychiatric expert testified that the defendant had a sociopathic personality and became acclimated to heavy drinking and drug use); Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir. 1992). -18- his case. Contrary to the Director’s contentions, we, like the district court, are persuaded that the actions of Cox’s counsel were objectively unreasonable. As noted by the magistrate judge in his recommendation, Stork was aware that the crucial issue in this case was the value of the tractor. If the state could prove that the tractor was worth $750, Cox faced a felony conviction and a possible life sentence; if not, Cox was facing only a few years for misdemeanor theft. Stork knew that the state intended to prove the value of the tractor as an antique or collectible. Stork also knew that his expert, Hilbert, by his own admission, was not qualified to testify as to the tractor’s collectible value. Rather, Hilbert’s area of expertise was in valuing tractors as functional pieces of farm equipment. Stork apparently made some strides in locating experts to testify on the issue of collectible value, but he never hired one. Stork stopped by a flea market displaying an antique tractor and talked to several people who gave him helpful opinions regarding the value of these collectibles. He also recalled going to a tractor dealership and a tractor sale. However, the individuals he talked to expressed an unwillingness to get involved, and Stork made no attempt to persuade them to do so. Stork did not subpoena any of these witnesses, though he admitted that they were neutral to Cox and had no reason to slant the truth. Stork also failed to file a motion for court approval -19- of funds for an appropriately qualified expert, which might have remedied these individuals’ concerns that attending court would be time consuming or costly. During the evidentiary hearing, Andrew Forsythe, an “attorney performance expert,” testified that Stork should have sought funds from the court. Forsythe opined that a reasonably effective attorney would have sought such funds, which could reduce a witness’s reluctance to testify. Cox provided further evidence that Stork could have located a qualified expert who was willing to testify had he moved for funds to hire one. Curtis Johnson, an antique tractor enthusiast, testified to the ease of finding such experts, and described the many clubs around the state for tractor enthusiasts, the magazines devoted to the hobby, and meetings and shows at which experts could have been found. Six favorable opinions of antique tractor experts were submitted by Cox demonstrating the facility with which such opinions could be obtained. In sum, the Director’s contention that the actions of Cox’s attorney were not unreasonable is unsupported by the record. D The Director further argues that Cox was not prejudiced by his attorney’s performance. The district court found that the jury’s note indicated it was deadlocked on the felony versus misdemeanor issue. The Director downplays the importance of the note by -20- pointing out that the jury also requested the portion of the trial transcript in which Klunkert testified that Cox had been willing to accept the tractor in lieu of $1900, indicating that the jury based its felony determination on the amount at which Cox himself had valued the tractor. However, in pursuing this argument the Director overlooks the all too likely possibility that, had Cox put on some evidence as to the collectible value of the tractor, it would have greatly diminished the jury’s reliance on other, weaker indicia of the tractor’s value, such as the arbitrary amount Cox was willing to forgo for it. Strickland requires that there be a reasonable probability that, but for Cox’s attorney’s errors, he would have prevailed at trial. This standard is met in this case. The complete absence of any evidence proffered by the defense on the most critical issue of the case – the collectible value of the tractor – rendered the proceeding “unreliable” such that it undermines confidence in the verdict. E Concluding, in our independent judgment, that Cox proved ineffective assistance does not alone resolve this matter, however. To uphold the district court’s grant of habeas relief, we must also conclude that the state court’s denial of Cox’s petition “involved an unreasonable application of clearly established Federal law, as -21- determined by the Supreme Court of the United States.”30 It is well-settled that the rule set forth in Strickland qualifies as “clearly established Federal law.”31 Therefore, for Cox to prevail the state courts must have applied Strickland unreasonably. As the Supreme Court has instructed, “[u]nder the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.”32 The district court did not err in concluding that the state courts’ application of Strickland to the facts presented was unreasonable. As Cox’s trial counsel conceded, and as is apparent from the record, whether Cox presented a collectible tractor expert was critical to his attempt to receive a misdemeanor instead of a felony conviction. His attorney knew this, but despite this knowledge failed to make reasonable efforts to secure such an expert. To find that this did not constitute ineffective assistance of counsel is not only incorrect, but unreasonable. 30 28 U.S.C. § 2254(d)(1). 31 (Terry) Williams v. Taylor, 529 U.S. 362, 391 (2000). 32 Id. at 413. Although the magistrate judge acknowledged that Cox’s claim should be analyzed under the “unreasonable application” prong of § 2254(d)(1), it incorrectly applied the standard applicable to the “contrary to” prong, which looks to whether the state courts decided the claim “differently than ... [the Supreme Court] has on a set of materially indistinguishable facts.” -22- AFFIRMED. -23-	01-03-2023	04-25-2010
https://www.courtlistener.com/api/rest/v3/opinions/2489670/	74 So.3d 695 (2011) In re Lisa Jeanenne THOMAS. No. 2011-B-2012. Supreme Court of Louisiana. November 18, 2011. 697 PER CURIAM.[] This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Lisa Jeanenne Thomas, an attorney licensed to practice law in Louisiana. UNDERLYING FACTS 07-DB-080 Counts I & IIThe Unauthorized Practice of Law Matter Between February 4, 2005 and September 26, 2007, respondent was ineligible to practice law for failing to meet the mandatory continuing legal education ("MCLE") requirements and failing to pay bar dues and the disciplinary assessment. Nevertheless, from January 9, 2004 until early 2007, respondent represented Michael Brown in a matter involving conversion of succession assets. Additionally, from November 2006 until early 2007, respondent provided legal services and advice to Adriane Hunt with respect to a paternity and child support matter pending in California. On September 20, 2007, the ODC took respondent's sworn statement. During the sworn statement, respondent admitted she had recently become aware that she was ineligible to practice law, and she stated that she was in the process of remedying her ineligible status. She also admitted that the ODC advised her several times of the need to update her address with the Louisiana State Bar Association ("LSBA"). During the sworn statement, the ODC advised respondent again to update her address immediately, and she stated that she would do so. However, she did not update her address until October 24, 2007, more than one month later. The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b) (failure to comply with MCLE requirements), 1.1(c) (failure to pay bar dues and the disciplinary assessment; failure to timely notify LSBA of address change), 5.5 (engaging in the unauthorized practice of law), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Count III The McDonald Matter In January 2007, while respondent was ineligible to practice law, she accepted the representation of Beverly McDonald in a divorce, custody, and child support matter. Ms. McDonald paid respondent a total of $1,735. Respondent prepared a petition for divorce, custody, and child support. However, the clerk of court's office told her that she could not file the petition because Ms. McDonald owed money for a previous domestic matter. Ms. McDonald eventually terminated respondent's services because respondent failed to complete the matter. As such, on August 1, 2007, respondent refunded $1,455 to Ms. 698 McDonald, having charged her $105 as a consultation fee and $175 to draft the petition. Additionally, respondent did not update her address with the LSBA until October 24, 2007 after telling the ODC on September 20, 2007 that she would do so immediately. The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b), 1.1(c), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 5.5, 8.4(a), and 8.4(c). 10-DB-007 Counts I & IIThe Goff Matter While respondent was ineligible to practice law, she represented Fred and Marie LeBoyd in personal injury matters. The LeBoyds received medical treatment from Dr. Michael Goff. On November 13, 2006, respondent issued a letter to Dr. Goff in which she guaranteed payment of his services rendered to the LeBoyds. In March 2007, respondent settled the LeBoyds' claims. Although she withheld funds from the settlement proceeds to pay Dr. Goff's bill, she failed to do so. Instead, she utilized the funds for her own purposes and planned to pay Dr. Goff monthly from her own funds. When Dr. Goff sought payment from respondent, she told him of her plan. On November 26, 2007, she sent Dr. Goff two money orders for partial payment of the bills. However, she made no further monthly payments to Dr. Goff. Also while respondent was ineligible to practice law, she represented Andre Moore in a personal injury matter. Mr. Moore received medical treatment from Dr. Goff. On January 19, 2007, respondent issued a letter to Dr. Goff in which she guaranteed payment of his services rendered to Mr. Moore. In June 2007, respondent settled Mr. Moore's claim. Although she withheld funds from the settlement proceeds to pay Dr. Goff's bill, she failed to do so. Instead, she utilized the funds for her own purposes and planned to pay Dr. Goff monthly from her own funds. When Dr. Goff sought payment from respondent, she told him of her plan. However, she never made any monthly payments to Dr. Goff. The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.1(b), 1.1(c), 1.15(a) (safekeeping property of clients or third persons), 1.15(d) (failure to timely remit funds to a client or third person), 1.16(a)(1) (a lawyer shall not represent a client or, when representation has commenced, shall withdraw from the representation of a client if the representation will result in violation of the Rules of Professional Conduct or other law), 5.5, 8.4(a), and 8.4(c). Count IIIThe James Matter Respondent was ineligible to practice law from October 31, 2005 until September 26, 2007 for the reasons stated above. She was again declared ineligible to practice law from November 30, 2007 until January 31, 2008 for failing to file a trust account disclosure statement. In November 2006, respondent began representing Jennifer James in a child support matter. Ms. James paid respondent a $650 flat fee for the representation. The child support matter was being handled by the State of Louisiana in Orleans Parish, and respondent filed a rule to make the matter executory in East Baton Rouge Parish where Ms. James was residing. However, respondent could not advance the East Baton Rouge Parish matter until the issues in the Orleans Parish matter were settled. Before the Orleans Parish matter concluded, Ms. James filed a disciplinary complaint against respondent. 699 In June 2008, respondent informed the ODC of her intent to withdraw from the representation and refund half of the fee. She filed a motion to withdraw as Ms. James' counsel of record on August 4, 2008. However, she failed to refund the unearned fee to Ms. James. The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a), 1.1(b), 1.1(c), 1.5 (fee arrangements), 1.16(a)(1), 1.16(d) (obligations upon termination of the representation), 5.5, 8.4(a), and 8.4(c). Count IVThe Weatherspoon Matter In April 2008, Triva Weatherspoon hired respondent to represent her in a child support matter, paying respondent a total of $1,205 in attorney's fees and court costs. In June 2008, Ms. Weatherspoon went to court and learned that respondent had not yet filed anything on her behalf. As such, on or about June 18, 2008, she met with respondent in person and terminated her services. At that time, she also requested a refund. In May 2009, respondent, through her counsel in these disciplinary proceedings, refunded $980 to Ms. Weatherspoon. The ODC alleged respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(3)(4)(5) (failure to account for or refund an unearned fee), 1.15(a), 1.15(c) (a lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred), 1.16(d), 8.4(a), and 8.4(c). DISCIPLINARY PROCEEDINGS In December 2007, the ODC filed formal charges against respondent in 07-DB-080. In February 2010, the ODC filed formal charges against respondent in 10-DB-007. Respondent, through counsel, answered both sets of formal charges, denying any misconduct. The matters were consolidated before proceeding to a formal hearing on the merits, conducted by the hearing committee in September 2010. Hearing Committee Report After considering the testimony and evidence presented at the hearing, the hearing committee made the following factual findings: 07-DB-080Respondent was not eligible to practice law at the time she represented Mr. Brown, Mr. Hunt, and Ms. McDonald. She also misrepresented her status as an attorney to the public during her period of ineligibility and failed to update her address with the LSBA. Based on this misconduct, the committee found that respondent violated Rules 1.1(b), 1.1(c), 5.5, 8.4(a), and 8.4(c) of the Rules of Professional Conduct. 10-DB-007Respondent failed to disburse the funds withheld from her clients' settlements for Dr. Goff's medical bills. Instead, she converted the funds to her own use. Respondent claimed to have intended to pay Dr. Goff in monthly installments, but she was financially unable to do so, leaving $6,128.20 still due to Dr. Goff at the time of the hearing. Based on this misconduct, the committee found that respondent violated Rules 1.15(a), 1.15(d), 1.16(a)(1), 8.4(a), and 8.4(c) of the Rules of Professional Conduct. With respect to the James matter, respondent was unable to transfer the case to Baton Rouge and proceed with enforcement of the child support until the issues in the matter were resolved in New Orleans. Respondent claimed she advised Ms. James of the reason for the delay in January 2008, at which time Ms. James did not express any dissatisfaction with respondent. Respondent then received Ms. James' disciplinary complaint, 700 so she filed a motion to withdraw from Ms. James' case on August 4, 2008. Although respondent intended to refund approximately $325, which represents the portion of the fee that was not earned, as of the date of the hearing, she had failed to do so. Respondent also failed to maintain a trust account to safeguard her clients' fees. Based on this misconduct, the committee found that respondent violated Rules 1.1(a), 1.1(b), 1.1(c), 1.5, 1.16(a)(1), 1.16(d), and 8.4(a). With respect to the Weatherspoon matter, the committee found that the matter seems to be a fee dispute, which resulted in a $980 refund to Ms. Weatherspoon in May 2009. Ms. Weatherspoon failed to appear and testify at the hearing, and the committee found that the ODC failed to prove by clear and convincing evidence that respondent violated the Rules of Professional Conduct in the matter. The committee determined that respondent violated duties owed to her clients, the public, the legal system, and the legal profession. She caused actual harm to Dr. Goff by failing to pay his bills from settlement proceeds and to Ms. James by failing to refund the unearned fee when requested to do so. In aggravation, the committee found only multiple offenses. In mitigation, the committee found personal or emotional problems (the death of respondent's mother in 2000 obviously caused her emotional distress and perhaps accounted for some of her negligence in failing to properly perform her duties in the practice of law), inexperience in the practice of law (admitted 2001), lack of a mentor, and "certain mitigating circumstances involving her lack of knowledge that she was ineligible to practice law while she continued to do so, and when she became aware that she was practicing law while she was ineligible she took the necessary steps to become eligible to do so." The committee also acknowledged respondent's cooperation with the ODC's investigation and her demeanor at the hearing as mitigating factors. Under these circumstances, the committee recommended that respondent be suspended from the practice of law for two years, with one year deferred, followed by one year of supervised probation, with the condition that she make restitution to Dr. Goff in the amount of $6,128.20 and to Ms. James in the amount of $325. The ODC objected to the leniency of the sanction recommended by the hearing committee, suggesting that permanent disbarment is appropriate for respondent's misconduct. In addition, the ODC objected to the mitigating factors found by the committee. Disciplinary Board Recommendation After review, the disciplinary board determined that the hearing committee's factual findings do not appear to be manifestly erroneous, with one exception: In the Weatherspoon matter, respondent's testimony and the documentary evidence established that she failed to promptly refund the unearned fee and unused costs and did not protect the unearned fee by placing it in her trust account. The board then addressed the alleged violations of the Rules of Professional Conduct as follows: The Unauthorized Practice of Law Matter and the McDonald MatterRespondent was deemed ineligible to practice law from February 4, 2005 to September 26, 2007 for failing to fulfill her professional obligations. During that time period, she engaged in the practice of law by providing legal services to Mr. Brown, Mr. Hunt, and Ms. McDonald. Respondent knowingly practiced law while ineligible. Therefore, she violated Rules 5.5 and 8.4(c) in these matters. In the McDonald matter, 701 respondent represented Ms. McDonald for a relatively short period of time during which she was impeded from filing the petition for divorce because she was told that Ms. McDonald owed money to the clerk of court for a previous domestic matter. As such, there does not appear to be clear and convincing evidence that respondent failed to exercise reasonable diligence in violation of Rule 1.3. The Goff MatterRespondent knowingly practiced law while ineligible when she represented the LeBoyds and Mr. Moore. Therefore, she violated Rules 1.16(a)(1), 5.5, 8.4(c). Respondent further violated Rules 1.15(a) and 1.15(d) by failing to place the settlement funds in her trust account and converting Dr. Goff's funds to her own use. Finally, respondent's handling of the disbursement of the settlement funds demonstrated a lack of competence in violation of Rule 1.1(a). The James MatterRespondent knowingly practiced law while ineligible when she represented Ms. James. Therefore, she violated Rules 1.16(a)(1), 5.5, 8.4(c). Respondent acknowledged that she owes Ms. James a refund but has not yet paid same. Therefore, she violated Rules 1.5 and 1.16(d) by failing to promptly refund the unearned portion of the fee. Finally, the board determined that respondent did not violate Rule 1.1(a) because there was not clear and convincing evidence that she failed to provide competent representation. The Weatherspoon MatterAs stated above, respondent's testimony and the documentary evidence clearly established that she failed to promptly refund or protect the unearned fee and unused costs. Accordingly, she violated Rules 1.5(f)(5) and 1.16(d). Additionally, the board determined that respondent failed to fulfill her MCLE requirements and failed to pay bar dues and the disciplinary assessment. She also failed to update her registration address, which resulted in her failure to receive notices of ineligibility. Accordingly, she violated Rules 1.1(b) and 1.1(c) as alleged in the formal charges. Finally, she violated Rule 8.4(a) as alleged in the formal charges by violating other Rules of Professional Conduct. The board further determined that respondent knowingly violated duties owed to her clients and the legal profession. She caused actual harm to Dr. Goff, Ms. James, and Ms. Weatherspoon by failing to remit settlement funds or promptly refund unearned fees. She also harmed the legal profession by failing to fulfill her professional obligations and by practicing law while ineligible. In aggravation, the board found a pattern of misconduct and multiple offenses. In mitigation, the board found the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperate attitude toward the proceedings, inexperience in the practice of law, character or reputation, and remorse. After considering the ABA's Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension. In determining an appropriate sanction, the board focused on respondent's most egregious misconductthe unauthorized practice of law and the conversion of third-party funds. With respect to respondent's unauthorized practice of law, the board determined that the appropriate sanction, based on prior jurisprudence, is at least a six-month suspension with no deferral. With respect to respondent's conversion of funds, the board determined that this misconduct appeared to be the result of poor law office management skills as opposed to a dishonest or selfish motive. Therefore, 702 the appropriate sanction, based on prior jurisprudence, is at least a one year and one day suspension with some portion deferred.[1] Under these circumstances, the board recommended that respondent be suspended from the practice of law for two years, with one year deferred. The board also recommended that, as a condition of reinstatement, respondent be required to provide restitution to Dr. Goff and Ms. James. Finally, the board recommended that, upon her reinstatement to the practice of law, respondent be required to serve two years of supervised probation, with the following conditions: 1) she shall attend the LSBA's Ethics School and Trust Accounting School; 2) she shall cooperate with the appointed probation monitor; and 3) she shall refrain from additional violations of the Rules of Professional Conduct. Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation. DISCUSSION Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. In this matter, the record supports the hearing committee's factual findings as modified by the disciplinary board. Essentially, respondent was ineligible to practice law due to her failure to fulfill her annual professional obligations, but nevertheless, she continued to practice law during this period. Her failure to update her registration address with the LSBA resulted in her failure to receive notices of her ineligibility. Additionally, respondent converted third-party funds to her own use and failed to promptly refund unearned fees and unused costs to clients. Based on these facts, respondent has violated the Rules of Professional Conduct as found by the board. Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington, 459 So.2d 520 (La.1984). Respondent knowingly violated duties owed to her clients, the public, and the legal profession. Her misconduct caused actual harm. The baseline sanction for this type of misconduct is suspension. The record supports the aggravating and mitigating factors found by the board. We find the discipline imposed in this matter should reflect the fact that respondent's misconduct was largely the result of her inexperience in the practice of law and her poor law office management 703 skills rather than the result of any dishonest or selfish motive. With that in mind, we find the sanction recommended by the board is reasonable. Accordingly, we will suspend respondent for a period of two years, with one year deferred, followed by two years of supervised probation with the following conditions: 1) Respondent shall make restitution to Dr. Goff and Ms. James prior to filing for reinstatement pursuant to Supreme Court Rule XIX, § 23; 2) During the probationary period following reinstatement, respondent shall attend the LSBA's Ethics School and Trust Accounting School; 3) During the probationary period following reinstatement, respondent shall cooperate with the appointed probation monitor; and 4) During the probationary period following reinstatement, respondent shall refrain from additional violations of the Rules of Professional Conduct. DECREE Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Lisa Jeanenne Thomas, Louisiana Bar Roll number 27306, be and she hereby is suspended from the practice of law for two years, with one year deferred. Following the active portion of the suspension, respondent shall successfully complete a two-year period of supervised probation, subject to the conditions set forth in this opinion. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid. NOTES [*] Chief Justice Kimball not participating in the opinion. [1] The board correctly rejected the ODC's argument that permanent disbarment is appropriate in instances in which a lawyer practices law while ineligible to do so. See In re: Pitre, 05-0853 (La.6/17/05), 903 So.2d 1130. Further, the board was correct in its determination that respondent's conversion of funds owed to a third-party medical provider was not intentional and therefore does not warrant permanent disbarment.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2489649/	76 So.3d 1071 (2011) MH NEW INVESTMENTS, LLC, etc., et al., Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee. No. 5D10-2697. District Court of Appeal of Florida, Fifth District. December 23, 2011. Christopher V. Carlyle and Shannon McLin Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellant. Gerald B. Currington, General Counsel, and Gregory G. Costas, Assistant General Counsel, of Department of Transportation, Tallahassee, for Appellee. GRIFFIN, J. L-N-W Pizza ["L-N-W"] appeals the trial court's summary final judgment dismissing L-N-W's business damages claim in an eminent domain proceeding brought by the Florida Department of Transportation ["DOT"] to take land for a drainage easement. MH New Investments, LLC, owned property which was the subject of DOT's action, but L-N-W had a long term lease and had, for many years, operated a pizza restaurant and delivery business there. The area to be taken was a portion of the parking lot. DOT sought dismissal of the business damages claim on the ground that L-N-W did not have an interest in the real property at issue, only a license to use the real property. DOT attached a portion of the lease agreement, which provides in pertinent part: SECTION 1. PREMISES. The Lessor does hereby lease and demise unto *1072 the Lessee, and the Lessee does hereby rent and take as tenant under the Lessor, the following described premises (the "Premises"): The address of said unit being 6310 West Colonial Drive, Orlando FL. It shall be conclusively presumed, for all purposes under this Lease, that the Premises contain a total of one thousand seven hundred (1,700) square feet. SECTION 2. LICENSE. Lessor does hereby grant to Lessee a nonexclusive license for the use and enjoyment of those certain areas appurtenant to the Premises, consisting of all walkways and approaches to the Premises and the parking area adjacent thereto. The license granted hereby shall exist only during the term of this Lease, and shall terminate simultaneously with any termination of the Lease. (Emphasis supplied). L-N-W contends that, in spite of the denomination of its interest in the common areas and parking lot as a "license," it is, in fact, a non-exclusive easement to utilize the common areas, including parking and approaches, during the term of the lease. L-N-W pointed out that it was obliged to pay a fee for maintenance of the common areas. The trial court concluded that L-N-W's right to use and enjoy the common areas, driveway and parking lot, was only a license. The trial court reasoned that because the term "license" was used, only a license was intended. Because a license will not support a business damages claim under section 73.071(3)(b), Florida Statutes, the trial court dismissed the claim. We reverse. In order to be compensated under section 73.071(3)(b) for business damages resulting from a partial eminent domain taking, the party to be compensated must have an interest in the real property taken. Since a license to use real property is a privilege to use, not an interest in real property, business damages may not be predicated upon a license to use real property. See Brevard County v. Blasky, 875 So.2d 6, 12 (Fla. 5th DCA 2004) (a license "is a personal privilege, and generally may be revoked at the pleasure of the grantor"); Devlin v. The Phoenix, Inc., 471 So.2d 93, 95 (Fla. 5th DCA 1985) ("[a] license, whether express or implied, is not a right but is a personal privilege, not assignable without express permission"). The terminology used is not dispositive, however. Courts look to what a thing is, not what it is called. By its nature, a license is permissive and readily revocable at the option of the owner. Here, L-N-W had an express and enforceable right to use the areas at issue for the term of the lease. This is sufficient to support a claim for business damages in eminent domain. Night Flight, Inc. v. Tampa-Hillsborough County Expressway Auth., 702 So.2d 538 (Fla. 2d DCA 1997); Tatum v. Dance, 605 So.2d 110, 112-13 (Fla. 5th DCA 1992); Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land § 2:9, 2-20-21 (2001). REVERSED. TORPY and COHEN, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2514865/	193 P.3d 466 (2008) In the Matter of the MARRIAGE OF Lisa L. MATTHEWS, Appellant, and Burke Lee Matthews, Appellee. No. 98,440. Court of Appeals of Kansas. September 26, 2008. 467 Karen Black, of Salina, for appellant. Roger D. Struble, of Blackwell, Blackwell, & Struble, Chtd., of Salina, for appellee. Before BUSER, P.J., MALONE and STANDRIDGE, JJ. STANDRIDGE, J. Lisa L. Matthews appeals the district court's decision to exclude Subchapter S corporation distributions from her former husband's gross domestic income for purposes of calculating child support under the Kansas Child Support Guidelines. We reverse the district court's decision in this regard and remand with directions. In a claim unrelated to the S corporation distribution, the district court awarded a partial increase in child support, and, on appeal, Lisa asks this court to change the effective date of the modification. We affirm in part, reverse in part, and remand with directions. 468 I. Facts Lisa Matthews and Burke Matthews were divorced on June 2, 2004. They have three minor children. In the separation agreement, Burke agreed to pay $1,580 per month in child support. No child support worksheet was filed to support this financial agreement. The district court approved the parties' separation agreement on November 23, 2004. On December 28, 2005, Lisa filed a motion to modify child support, citing an increase in child care costs. Based on financial information about Burke's income received by Lisa during discovery related to the motion to modify, Lisa filed an amended motion to modify child support on November 1, 2006. In the amended motion, Lisa alleged that after the divorce, Burke began receiving additional income in the form of tax-exempt interest, qualified dividends, and distributions from a Subchapter S corporation. Lisa argued that this money should be included in Burke's income for purposes of calculating child support. A hearing on the amended motion was held on January 2, 2007. Counsel proffered testimony on behalf of their respective clients and presented arguments. The court admitted joint exhibits: Burke's 2005 personal income tax return and a Stock Purchase Agreement for the purchase of shares in Berco, Inc. (Berco), a Subchapter S corporation. The Stock Purchase Agreement was executed on December 31, 2004, a month after the district court approved the parties' separation agreement. In it, Burke contracted to buy 229 shares of Berco common stock from Kent Berkley, another stockholder, for $160,000. Burke paid $10,000 at the time the agreement was executed, and the remaining balance must be paid in full by December 31, 2011. To that end, Burke promised to pay Berkley at least 80 percent of any dividend received from the Berco stock toward the balance owed. In 2005, the first calendar tax year after executing the contract, Berco distributed $19,424 in dividends to Burke. On January 18, 2007, the district court issued an order denying Lisa's amended motion. In its written opinion, the district court held the Berco dividend payments should not be included as income to Burke for purposes of calculating child support. More specifically, the court found the $19,424 in Berco dividend payments was unavailable to pay additional child support, because 80 percent of the dividend ($15,539.20) went to pay Burke's installment obligation, and the balance ($3,884.80) went to pay the tax liability on the dividends. In this order, the court also directed the parties to prepare a child support worksheet to determine whether there was a change in the parties' financial circumstances and, if so, whether such change would increase Burke's child support obligation by 10 percent or more. The court further ordered that any increase in child support would be effective as of December 1, 2006, based upon the filing date of the amended motion to modify child support. Lisa filed a motion to reconsider with regard to the Berco dividends, as well as with regard to the court's failure to include as income the tax-exempt interest and qualified dividends listed on Burke's tax return. On February 21, 2007, the district issued another order recalculating Burke's gross income to include the referenced tax-exempt interest and qualified dividends. In this order, however, the court specifically noted that it was not altering its decision to exclude the Berco dividends as income to Burke for purposes of calculating child support. Again, the court directed the parties to prepare a child support worksheet to determine whether there was a change in the parties' financial circumstances and, if so, whether such change would increase Burke's child support obligation by 10 percent or more. The court also reiterated that any increase in child support would be effective as of December 1, 2006. Lisa appeals, arguing that the district court erred (1) in excluding the Berco dividends from Burke's income for purposes of calculating child support and (2) by setting December 1, 2006, as the effective date for any change in child support. II. Standard of Review The standard of review of a district court's order determining the amount of child 469 support is whether the district court abused its discretion, while interpretation and application of the Kansas Child Support Guidelines (Guidelines) are subject to unlimited review. In re Marriage of Atchison, 38 Kan. App.2d 1081, 1085, 176 P.3d 965 (2008). To that end, an appellate court reviews the district court's findings of fact to determine if those findings are supported by substantial competent evidence and are sufficient to support the district court's conclusions of law. 38 Kan.App.2d at 1085, 176 P.3d 965. In this appeal, Lisa does not challenge any of the district court's factual findings. Instead, Lisa alleges the district court erred as a matter of law in determining that the Berco dividends were not income as defined by the Guidelines. Because the interpretation of the Guidelines is a question of law, our review of the issue presented is unlimited. See Atchison, 38 Kan.App.2d at 1085, 176 P.3d 965. III. Discussion A. Are the Berco Dividends Income for Purposes of Child Support? Before discussing the ultimate issue presented whether the Berco dividends are income for purposes of calculating child support we find it helpful to briefly review the unique attributes of a Subchapter S corporation. 1. The Subchapter S Corporation A Subchapter S corporation, or simply S corporation, may not have more than 100 shareholders, may not have a shareholder who is not an individual (with certain exceptions), may not have a nonresident alien as a shareholder, and may not have more than one class of stock. 26 U.S.C. § 1361(b)(1) (2007). S corporations are designed to avoid double taxation on corporate earnings. To that end, shareholders of S corporations receive the benefit of what is known as "pass-through taxation." See Black's Law Dictionary 1500 (8th ed. 2004). In other words, the S corporation's income is passed through to its shareholders so that the shareholders are taxed on the income at the end of the year, but the S corporation as an entity is not taxed on the income. This method of taxation differs from the double taxation that results in a more traditional C corporation. In a "C corporation," the corporation as an entity is taxed on its income and then its shareholders are again taxed on the income that they receive through dividends. Black's Law Dictionary 365 (8th ed.2004). In an S corporation, the shareholders report the corporation's income on their individual tax returns in an amount proportionate to their ownership interest. K.S.A. 79-32,139. Although the shareholders pay the taxes on the income, the income is still owned by the corporation, not by the shareholders. Accordingly, it is the corporation and not the shareholders that decides whether, and in what amount, the income is distributed or retained within the corporation. S corporations may retain some, or all, of the income. This sum is referred to as "retained earnings." See Black's Law Dictionary 548 (8th ed.2004). S corporations may distribute some, or all, of the income. This sum is referred to as a "corporate distribution." See Black's Law Dictionary 508 (8th ed.2004). Notably, income taxes are assessed to the shareholder on the entire amount of income earned by the corporation (in an amount proportionate to his or her ownership interest); it is completely irrelevant to this determination whether the income is retained or distributed. See K.S.A. 79-32,139. Thus, it is possible for S corporation shareholders to be taxed on income that they never received. 2. The Kansas Child Support Guidelines The Guidelines define "domestic gross income" as "income from all sources, including that which is regularly or periodically received, excluding public assistance and child support received for other children in the residency of either parent." Guidelines § II. D. (2007 Kan. Ct. R. Annot. 108-09). As it is used within the Guidelines, the term "income" has been interpreted to mean "`every conceivable form of income, whether it be in the form of earnings, royalties, bonuses, dividends, interest, maintenance, rent, 470 or whatever.'" In re Marriage of Callaghan, 19 Kan.App.2d 335, 336, 869 P.2d 240 (1994) (quoting 2 Elrod, Kansas Family Law Handbook § 14.024 p. 14-11 [1990]). 3. Relevant Kansas Case Law Kansas courts do not presume that an individual's share of an S corporation's income should be included as income for purposes of calculating child support. In re Marriage of Brand, 273 Kan. 346, 356, 44 P.3d 321 (2002). Identifying what income is "received" for the purpose of calculating child support depends on a factual analysis applied on a case-by-case basis. 273 Kan. at 356, 44 P.3d 321. There is no bright-line rule, because there are a variety of circumstances unique to S corporations that makes this determination difficult. 273 Kan. at 358, 44 P.3d 321. In Brand, our Supreme Court gave the following examples of why this determination is so difficult: (1) it may be necessary for the corporation to retain all profits during certain years, (2) not every shareholder can force the corporation to make distributions, and (3) not all distributions increase the shareholders' ability to pay support. The Brand court provided guidance on how to determine whether S corporation income should be included in each individual case. Under a section titled "Factors for Consideration in Determining Income" the court identified the following factors: (1) the corporation's past earnings history, (2) ownership share, and (3) the shareholder's ability to control distribution or retention of the net profits of the business. It emphasized that heightened scrutiny should be exercised if the shareholder can control distributions. 273 Kan. at 359-60, 44 P.3d 321. The Brand court also stated that "[a]n overview of the entire factual history of retained earnings and distributions is recommended." 273 Kan. at 357, 44 P.3d 321. 4. Analysis The district court here did not make any determinations regarding the corporation's past earnings, its history of distributions, or Burke's ownership share in the S corporation. This is because, completely unlike the facts in Brand, the only issue before the court in this case is whether the dividends that were actually distributed to Burke are income for purposes of calculating child support. The Brand factors referenced above are aimed at determining whether a shareholder is attempting to hide money in the form of retained earnings income within the S corporation to avoid child support payments. Instead of the Brand factors, the district court here focused its analysis on what happened to the monetary distribution after the income was disbursed to Burke. In so doing, the court determined the monetary dividend distribution was not "received" by Burke and was not "available" to Burke for purposes of paying child support. We disagree. In order to accurately analyze whether the total distribution received by Burke from Berco is income for purposes of calculating child support, we will discuss separately (a) that portion of the distribution that Burke used to pay Berkley for the stock pursuant to the terms of the Stock Purchase Agreement; and (b) that portion of the distribution that Burke used to pay taxes on his share of Berco's income. (a) That Portion of the Distribution Used to Pay Berkley for the Stock We find that portion of the distribution made to Burke and used to pay Berkley for the stock is income for purposes of calculating child support. As a preliminary matter, the distribution meets the definition of domestic gross income set forth in the Guidelines: "income from all sources, including that which is regularly or periodically received, excluding public assistance and child support received for other children in the residency of either parent." Guidelines § II. D. (2007 Kan. Ct. R. Annot. 108-09). As it is used within the Guidelines, we have interpreted income as "`every conceivable form of income, whether it be in the form of earnings, royalties, bonuses, dividends, interest, maintenance, rent, or whatever.'" Callaghan, 19 Kan.App.2d at 336, 869 P.2d 240. Notably, subsequent "availability" of income received is not mentioned anywhere in 471 the Guidelines. Thus, the fact that Burke chose to use his income to pay for an asset he purchased does not change the character of the money from "income" to "non-income" for purposes of calculating child support under the Guidelines. Burke certainly did not seek to exclude from his income for purposes of calculating child support the $10,000 he paid to Berkley towards the stock at the time the Stock Purchase Agreement was executed. And, regardless of how much or how little he actually receives in income as dividends from the Berco stock, Burke must pay the remaining balance of the sums owed by December 31, 2011. Thus, the Stock Purchase Agreement clearly envisions that Burke may have to pay for the stock with income other than that he receives from Berco as distributions. To that end, if Burke used income he received from his regular paycheck to pay Berkley for the stock, the paycheck income would not somehow become "unavailable income" for purposes of calculating child support. We find the Stock Purchase Agreement is no different than income received that is pledged toward a home mortgage or a note to purchase a car. In those cases, the income received and pledged toward the home mortgage or the car payment is "not available" to pay child support in the sense that the dollars have been allocated to specific obligations. At the end of the day, however, the income received goes towards purchase of an asset that ultimately increases the net worth of the individual making the payment. In making this finding, we recognize that Burke would have no Berco income but for the purchase of the Berco stock at issue. Such a scenario, however, is no different than purchasing on credit any other asset that produces income. Consider, for example, if Burke would have taken out a loan from a bank to purchase a rental home. In such a circumstance, we would reject an argument that rental income received by Burke was not income for purposes of calculating child support simply because Burke was utilizing the rental income received from his tenant to pay back the bank loan. This is because the bank loan, as it is paid back over years, increases Burke's net worth in the rental home. By the time his children are at the age of majority, Burke would be the owner of valuable real estate debt free and at the direct expense of his children. For these reasons, we find that portion of the distribution made to Burke and used to pay Berkley for the stock is income for purposes of calculating child support. (b) That Portion of the Distribution Used to Pay Taxes on Berco Income Attributed to Burke This court previously has held that distributions used to pay income tax on money distributed by an S corporation also should be included in gross income for purposes of calculating child support. In re Marriage of Unruh, 32 Kan.App.2d 770, 88 P.3d 1241 (2004). In Unruh, the respondent argued that he did not receive the benefit from an S corporation's distributions because the distribution was designed to pay the income tax generated by the corporation. The district court excluded the entire distribution that the shareholder claimed was used to pay the taxes. This court reversed, distinguishing (1) the distribution used to pay income tax on the corporation's retained earnings from (2) the distribution used to pay income tax on the money distributed. This court held that only the portion of the distribution used to pay income tax on the retained earnings should be excluded. 32 Kan.App.2d at 776, 88 P.3d 1241. In so holding, this court reasoned that, under the Guidelines, federal and state income taxes already are considered in the child support schedules as income that is not available for spending because the charts used to calculate gross monthly income are based upon after-tax income. "By reducing [the father's] income on the distributions he received to an after-tax amount, the district court caused the income tax burden to be considered and reduced two times, once by the court and once in the child support schedules." Unruh, 32 Kan.App.2d at 776, 88 P.3d 1241. We find Unruh to be directly on point regarding this issue. Accordingly, we hold that portion of the distribution used to pay taxes on Berco income distributed to Burke 472 is income for purposes of calculating child support under the Guidelines. Because there is no evidence before us regarding how much of the distribution went to pay income tax on Berco's retained earnings attributed to Burke (if any) and how much of the distribution went to pay income tax on the income actually distributed to Burke, we must remand for such a determination by the district court. B. The Effective Date for Any Change in Child Support Lisa argues the child support modification order should become effective on January 1, 2006, not December 1, 2006. In support of this argument, Lisa maintains her original motion to modify child support was filed December 28, 2005, and that K.S.A. 60-1610(a) requires any subsequent modification order to date back to 1 month after the motion to modify was filed. We disagree. Interpretation of a statute is a question of law over which this court has unlimited review. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007). K.S.A.2007 Supp. 60-1610(a) states in part: "The court may modify or change any prior order ... within three years of the date of the original order or a modification order, when a material change in circumstances is shown, irrespective of the present domicile of the child or the parents.... The court may make a modification of child support retroactive to a date at least one month after the date that the motion to modify was filed with the court." The statutory language used here demonstrates that the legislature intended to give the district court broad authority to set the effective date of the modification. The statute restricts the district court from setting the effective date earlier than 1 month after the motion was filed. The statute provides the district court with discretion, however, to set the effective date at any time after that month. "Judicial discretion will vary depending upon the character of the question presented for determination. Generally, the trial court's decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards. However, an abuse of discretion may be found if the trial court's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. [Citation omitted.]" State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007). Lisa's original motion was unrelated to the primary reason resulting in modification. Therefore, it was reasonable for the district court to set the effective date 1 month after Lisa's amended motion. We find no abuse of discretion and affirm the decision below. Affirmed in part, reversed in part, and remanded with directions.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2492430/	72 So. 3d 910 (2011) Leila WELLS, Plaintiff-Appellant v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Madison Parish Law Enforcement District, Charles R. Harmon, Jr. (Sued in Official Capacity) and E.A. Conway Medical Center, Defendants-Appellees. No. 46,428-CA. Court of Appeal of Louisiana, Second Circuit. August 24, 2011. Rehearing Denied October 27, 2011. 913 Anthony J. Bruscato, Monroe, LA, Raymond Lee Cannon, Tallulah, LA, for Plaintiff-Appellant. James D. "Buddy" CALDWELL, Attorney General, Laurel I. White, Assistant Attorney General, for Defendant-Appellee Louisiana Dept. of Public Safety and Corrections. Usry, Weeks & Matthews, New Orleans, LA, by John Franklin Weeks, II, Freeman Matthews, for Defendant-Appellee Madison Parish Law Enforcement District and Charles R. Harmon, Jr. David Verlander, III, Monroe, LA, for Defendant-Appellee E.A. Conway Medical Center. Before GASKINS, CARAWAY and MOORE, JJ. GASKINS, J. The plaintiff, Leila Wells, mother of the decedent, Kerry Scarborough, appeals from a trial court judgment and jury verdict finding that the defendants, the Louisiana Department of Public Safety and Corrections ("DPSC"); the Madison Parish Law Enforcement District; Charles R. Harmon, Jr., former sheriff of Madison Parish; and E.A. Conway Medical Center ("Conway"), did not fail to render reasonable and adequate medical care to the decedent. For the following reasons, we affirm the trial court judgment. FACTS AND PROCEDURAL HISTORY In March 1993, Mr. Scarborough, who lived in the Tallulah, Louisiana area, saw a doctor at a clinic in Vicksburg, Mississippi, complaining of pain in his left back. In June 1993, Mr. Scarborough returned to the clinic and saw Dr. Fitten Lamar McMillan, complaining of left back scapular discomfort. Mr. Scarborough weighed 128 pounds and smoked one package of cigarettes per day. Mr. Scarborough's chest x-ray showed bullous changes at the lung apexes indicative of emphysema. He also had mild arthritic changes to bony structures. No destructive lesions were observed. Mr. Scarborough had been convicted of distribution of marijuana and was sentenced to serve seven years at hard labor. The sentence was suspended and he was placed on probation. In 1993, Mr. Scarborough was convicted of DWI and possession of marijuana. As a result of these subsequent convictions, Mr. Scarborough's probation was revoked and he was ordered to serve the seven-year sentence. He was remanded to the custody of the DPSC on August 27, 1993. Mr. Scarborough was placed in the Madison Parish Detention Center ("MPDC"), a facility run by the Madison Parish Sheriff's Office, which houses DPSC prisoners. Mr. Scarborough was assigned to that facility from August 27, 1993, until January 10, 1995. Because of his continuing complaints of pain, he was frequently seen by the nurse at MPDC and by Dr. Thomas Arthur Neumann, the physician who treated patients from MPDC. In November 1993, Dr. Neumann referred Mr. Scarborough to Conway where a CT scan of his neck was done and showed no abnormalities. Mr. Scarborough's complaints of pain continued and he was hospitalized from December 23 through December 30, 1993, at Conway. He complained of shoulder pain as well as mid-back and neck pain that had been going on for one year. Tests were conducted including x-rays, blood work, and tests for tuberculosis. Mr. Scarborough's weight was still listed as 128 pounds at that point. Chest x-rays showed chronic scarring of both pulmonary apexes with small apical cysts. No tumors were found. 914 He was discharged with a diagnosis of positive tuberculosis ("TB") exposure that was inactive. He was prescribed medication for TB and pain. Mr. Scarborough returned to Conway in June 1994. There was no change in his chest x-ray. A CT scan of his neck was done and the results were normal. Mr. Scarborough's weight was 123 pounds, reflecting a weight loss of five pounds. Mr. Scarborough was told to return to Conway in November 1994. In December 1994, Mr. Scarborough was sent to Conway. His weight had dropped to 119 pounds and he continued to complain of neck, back, and left shoulder pain. A bone scan was performed and showed that Mr. Scarborough had lung cancer which had affected the first, second, and third ribs and the vertebrae in his neck. Portions of the ribs had been consumed by the cancer. Mr. Scarborough also had a cyst or lesion on his neck. On January 10, 1995, Mr. Scarborough was transferred to Elayn Hunt Correctional Center, a DPSC facility, and was then sent to David Wade Correctional Center, another DPSC facility, on January 23, 1995. Mr. Scarborough was conclusively diagnosed with lung cancer on February 17, 1995, after a biopsy performed at Conway. He had a Pancoast lung cancer tumor which is rare and is seldom diagnosed before it causes symptoms. By the time most of these cancers are diagnosed, they have progressed to the point where there is little chance of survival. The tumor was located high on the left lung and was difficult, if not impossible, to see on earlier chest x-rays. On February 27, 1995, Mr. Scarborough received a medical furlough from prison and was released to his mother's home where he stayed until his death on March 30, 1995. Mr. Scarborough was 35 years old at the time of his death. On March 29, 1996, Mrs. Wells filed suit against the DPSC, Madison Parish Law Enforcement District, and Sheriff Harmon, alleging that their fault, negligence, and deliberate indifference to Mr. Scarborough were the sole and legal cause of the rapid progression of his illness and his untimely death. She later amended her petition to add Conway as a defendant. Mrs. Wells alleged that the defendants failed to provide adequate and complete medical care to Mr. Scarborough although he repeatedly requested it, and that they failed to provide complete and adequate medical care regarding his obvious medical needs such as significant weight loss, chronic back and shoulder pain, and lumps on his shoulder and neck. Mrs. Wells claimed that her son was transported from facility to facility to get rid of an obviously terminally ill inmate and to avoid obtaining the necessary medical care for him. During the proceedings, Mrs. Wells claimed that Mr. Scarborough frequently was not given his medications at MPDC and on one occasion, his pain medication was left out and was stolen. She asserted that the MPDC personnel did not have the medication replaced. She urged that the defendants were negligent and deliberately indifferent to the serious medical needs, welfare, and life of Mr. Scarborough. Mrs. Wells claimed that she suffered emotional pain and suffering and mental anguish and loss of consortium for the loss of her son. She also asserted a survival action for the physical and mental pain and suffering Mr. Scarborough sustained prior to his death. Many procedural matters were raised in the years prior to trial. The plaintiff propounded interrogatories to the sheriff's office concerning its understanding of the relationship between the sheriff's office and the DPSC. When the plaintiff was 915 not satisfied with the responses, she filed a motion to compel in the trial court. The trial court denied the motion to compel, finding that the discovery requests sought a legal opinion from the sheriff which he was not required to provide. The plaintiff applied for supervisory writs to this court. In Wells v. State, Department of Public Safety and Corrections, 41,836 (La.App.2d Cir. 3/7/07), 954 So. 2d 234, we found that the plaintiff's discovery requests called for legal conclusions based upon statutory or contractual law and were inappropriate. We affirmed the trial court judgment. The DPSC and the sheriff's office filed motions for summary judgment which were denied by the trial court. The defendants' writ applications from those rulings were denied by this court. The DPSC filed a motion in limine to exclude any testimony from Dr. Harrison M. Lazarus, a trauma and vascular surgeon, on the grounds that he did not have the expertise to express an opinion on the timing and propriety of nonsurgical examination, testing, and diagnosis of cancer.[1] The trial court granted the motion in limine, excluding the testimony of Dr. Lazarus. The plaintiff applied for supervisory writs with this court. On August 28, 2008, this court denied the writ application concerning Dr. Lazarus. The issues as to the DPSC were tried before a jury and those pertaining to Conway and the MPDC were tried by the court alone. Shortly before the start of the trial in August 2010, the plaintiff filed a motion in the trial court arguing that there should be a jury trial as to both the DPSC and Conway. The motion was denied by the trial court. The plaintiff applied for an emergency writ with this court. On August 24, 2010, we denied the writ application on the showing made. The case was tried August 24-27, 2010. The jury rejected the plaintiff's claims against the DPSC, finding that the DPSC did not breach its duty to provide reasonable, adequate medical care to Mr. Scarborough. The trial court rendered a verdict in favor of MPDC and Conway. As to MPDC, the court noted that there were possibly times when medication was not given in a timely fashion. However, the court found that those actions were not the cause of Mr. Scarborough's death and did not rise to the level to create liability on the part of the MPDC for failure to provide adequate medical care to Mr. Scarborough. The trial court observed that Mr. Scarborough was taken to Conway frequently for consultation, treatment and hospitalization, that he saw the nurse at the prison numerous times, and that he was seen by Dr. Neumann. According to the trial court, the MPDC did not cause the injuries sustained by Mr. Scarborough. As to Conway, the court observed that in a medical malpractice case, the plaintiff must prove by a preponderance of the evidence the standard of care that is required of the doctors who attended Mr. Scarborough and that proof must be provided by expert testimony. The court found that no expert testified on behalf of the plaintiff as to the duty of diagnosing cancers of this type. The court stated that the plaintiff was also required to prove by a preponderance of the evidence that a breach in the standard of care occurred. The court found that all the doctors who testified in this matter said that Pancoast tumors are rare, hard to detect, and when detected, 916 have usually progressed to the point that there is no available treatment. The court noted that the plaintiff was required to prove causation. In this case, the plaintiff made no showing that treatment or failure to diagnose and treat the cancer by Conway was a legal cause of Mr. Scarborough's death. The trial court found that there was nothing that could have been done to save Mr. Scarborough. The plaintiff appealed, asserting numerous assignments of error. EXPERT TESTIMONY In its oral reasons for judgment, the trial court stated that Mrs. Wells failed to provide the expert testimony necessary to establish the standard of care required of the doctors at Conway who attended Mr. Scarborough. Mrs. Wells essentially argues that the trial court erred in excluding or limiting the testimony of her expert witnesses offered to establish the applicable standard of care and that these rulings were fatal to her claim against Conway. Mrs. Wells asserts that the trial court applied the Daubert standard for the acceptance of expert witnesses strictly to her experts and leniently to the defendants' experts. She contends that the trial court erred in holding that Mr. Scarborough's treating physician, Dr. Kenneth Steier, could not be judged under the standard of care applicable to general practitioners. She claims that the trial court erred in excluding the testimony of her expert, Dr. Lazarus, concerning the standard of care for all physicians. She asserts as error the trial court's exclusion of the testimony of her expert, Dr. Lawrence Chenier, concerning the standard of care of family practitioners, as well as the standard of care of all physicians. She contends that specialist testimony was not necessary to establish the applicable standard of care in this case because Conway violated the standards of basic medicine. These arguments are without merit. Legal Principles It is well settled that a hospital is liable for its employee's negligence, including its doctors and nurses, under the repondeat superior doctrine. Little v. Pou, 42,872 (La.App.2d Cir. 1/30/08), 975 So. 2d 666, writ denied, 2008-0806 (La. 6/6/08), 983 So. 2d 920. In a malpractice claim against a hospital, the plaintiff is required to prove by a preponderance of the evidence, as in any negligence action, that the defendant owed the plaintiff a duty to protect against the risk involved (or the applicable standard of care), that the defendant breached its duty (or the applicable standard of care), and the injury was caused by the breach. La. R.S. 9:2794(A); Little v. Pou, supra. The requirements for establishing a claim for medical malpractice are set forth in La. R.S. 9:2794, which provides in pertinent part: A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., ... the plaintiff shall have the burden of proving: (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty. (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, 917 along with his best judgment in the application of that skill. (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred. A physician is not held to a standard of absolute precision; rather, his conduct and judgment are evaluated in terms of reasonableness under the circumstances existing when his professional judgment was exercised, and not on the basis of hindsight or in light of subsequent events. Johnston ex rel. Johnston v. St. Francis Medical Center, Inc., 35,236 (La.App.2d Cir. 10/31/01), 799 So. 2d 671. To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So. 3d 1002. The admission of expert testimony is governed by La. C.E. art. 702, which states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The Louisiana Supreme Court in State v. Foret, 628 So. 2d 1116 (La. 1993), adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), regarding the proper standards for the admissibility of expert testimony, which requires the trial court to perform a "gatekeeping" function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.[2] In so doing, the supreme court adopted Daubert's requirement that technical or scientific expert testimony must rise to a threshold level of reliability before it is admissible under La. C.E. art. 702. While the trial court may consider one or more of the four Daubert factors, those factors do not necessarily or exclusively apply to all experts or in every case. State v. Taylor, 42,627 (La.App.2d Cir. 10/24/07), 968 So. 2d 1135, writ denied, 2008-0424 (La. 11/10/08), 996 So. 2d 1063. Generally, an expert must satisfy the trial judge that he or she is qualified to give testimony regarding the applicable standard of care. McCurdy v. Ault, 94-1449 (La.App.1st Cir. 4/7/95), 654 So. 2d 716, writ denied, 95-1712 (La. 10/13/95), 661 So. 2d 498. A trial judge has wide discretion in determining whether to allow a witness to testify as an expert, and this discretion will not be disturbed by an appellate court unless it is clearly erroneous. Willis v. Smith, 43,958 (La.App.2d Cir. 1/14/09), 999 So. 2d 1244. 918 Daubert Standard Mrs. Wells claims that Conway and its employees committed medical malpractice in the treatment of Mr. Scarborough.[3] The plaintiff was required to establish the standard of care applicable to the treatment of the decedent, that Conway breached that duty, and that the breach resulted in the harm sustained. Mrs. Wells contends that the trial court applied the Daubert standard for accepting or rejecting expert witnesses in an uneven manner in this case. This argument is not supported by the record. The trial court's duty was to ensure that expert witnesses were relevant and reliable. The trial court in this case evaluated the qualifications of the experts presented by both the plaintiff and the defendants. The defendants' witnesses possessed the required qualifications in the stated specialties and the plaintiff's did not. The trial court did not abuse its discretion in its decisions regarding the testimony of expert witnesses. Dr. Steier In the trial court, Mrs. Wells filed two motions in limine to exclude the testimony of Dr. Steier, an osteopath who treated Mr. Scarborough at Conway. She argued that Dr. Steier had only a basic medical license and should have been judged under the standard of care applicable to general practitioners rather than under the standard of care applicable to internal medicine and pulmonary care. Mrs. Wells claims that the trial court erred in denying her motions in limine. Dr. Steier was in charge of Mr. Scarborough's care at Conway during his December 1993 hospitalization. Dr. Steier currently lives in the state of New York and gave a video deposition for trial. Dr. Steier received a degree of osteopathic medicine in 1983. He completed an osteopathic internal medicine internship in 1986 and a fellowship in pulmonary and critical care in 1988. Dr. Steier had a National Public Health scholarship which paid for his medical education in exchange for fulfilling a public health obligation in a health shortage area. To fulfill that obligation, Dr. Steier came to Conway in January 1992 as an assistant professor of medicine. Dr. Steier took the Louisiana medical licensing exam and was licensed to practice medicine in this state on February 10, 1993. While working at Conway, Dr. Steier was involved in training medical students and treating patients at the hospital. Mrs. Wells contends that Dr. Steier, as a doctor of osteopathic medicine, was not a medical doctor and was not an internal medicine or pulmonary care specialist. Therefore, she claims that the trial court erred in requiring her to establish by expert testimony the standard of care applicable to internal medicine and internal care rather than regarding Dr. Steier as simply a general practitioner. The record shows that Dr. Steier possessed qualifications as an osteopath trained in internal medicine and pulmonary and critical care at the time he treated Mr. Scarborough. The trial court did not abuse its discretion in denying Mrs. Wells' motions in limine. Dr. Lazarus The plaintiff sought to offer the expert testimony of Dr. Lazarus to establish the applicable standard of care required of Conway and its physicians in the 919 diagnosis and treatment of Mr. Scarborough's lung cancer. However, Dr. Lazarus was a trauma surgeon who did not diagnose or treat lung cancer. The defendants filed a motion in limine opposing his testimony on the grounds that he lacked the expertise necessary to establish the requisite standard of care. The trial court granted the motion in limine and, on the showing made, this court denied the plaintiff's writ application. Mrs. Wells now seeks appellate review of the trial court decision and the defendants argue that review is barred by the doctrine of law of the case. We note that the portion of Mrs. Wells' writ application objecting to the trial court grant of the motion in limine, not allowing Dr. Lazarus to testify, was denied on the showing made. This court did not consider the merits of the trial court's ruling, but merely declined to exercise our supervisory jurisdiction. Therefore, the doctrine of law of the case does not apply to this issue. See and compare Eastin v. Entergy Corporation, 07-212 (La.App.5th Cir. 10/16/07), 971 So. 2d 374, writ denied, 2007-2214 (La. 1/11/08), 972 So. 2d 1167; World Trade Center Taxing District v. All Taxpayers, Property Owners, and Citizens of World Trade Center Taxing District, 2004-1365 (La.App.4th Cir. 9/1/04), 883 So. 2d 459, writ denied, 2004-2282 (La. 10/29/04), 885 So. 2d 599. We have now reviewed the merits of the claim and find that the trial court correctly granted the motion in limine, excluding the testimony of Dr. Lazarus. The witness was a trauma surgeon who did not diagnose or treat cancer. Dr. Lazarus was not qualified to offer an expert opinion on the standard of care for diagnosing and treating Mr. Scarborough's lung cancer. See and compare Willis v. Smith, supra, holding that the trial court did not err in prohibiting a specialist in nephrology and hypertension from testifying as to the standard of care for an emergency room physician. The trial court did not abuse its discretion in finding that Dr. Lazarus was not qualified to testify regarding the applicable standard of care in this case. Dr. Chenier Mrs. Wells claims that the trial court erred in excluding the testimony of Dr. Chenier concerning the standard of care of family practitioners and the standard of care of all physicians. At trial, the plaintiff tendered Dr. Chenier as an expert in emergency medicine and family practice. In setting forth his qualifications, Dr. Chenier stated that he began, but did not complete, a residency in internal medicine. He was certified as an emergency room physician and had engaged in family practice in the community for many years. The defense objected to allowing the witness to testify as to the standard of care for family practice physicians because he had not completed a residency in that area. Dr. Chenier was not an internist, radiologist, or oncologist. Although he had practiced family medicine for many years, he had not received training in that specialty and was not board certified as a family practice physician. Based upon these facts, the trial court refused to accept him as an expert in family practice medicine. The trial court sustained the defense objection and allowed Dr. Chenier to testify only as an expert in the general practice of medicine. The fact that the trial court did not allow Dr. Chenier to testify as an expert in family practice is of no significance. He was allowed to testify as to the basic standard of care applicable to all physicians. Dr. Chenier was questioned about Mr. Scarborough's diagnosis of TB made at Conway and stated that the type of shoulder pain complained of by Mr. Scarborough 920 was not a standard symptom of TB. He testified that, as a general practitioner of medicine in 1993, he would have ordered a CT scan or MRI of Mr. Scarborough's left shoulder and upper chest right away and would have referred him to an oncologist if the tests had shown a tumor. Dr. Chenier also testified that Pancoast lung cancer tumors are very hard to diagnose until they are advanced. Therefore, although Dr. Chenier was not allowed to testify as to the standard of care for family practice physicians, he was allowed to express his expert opinion that a general practitioner would have ordered additional testing to diagnose the cause of Mr. Scarborough's pain. The trial court's decision regarding the expert qualifications of Dr. Chenier did not prevent the plaintiff from eliciting testimony that, under the circumstances of this case, he thought that the standard of care for all physicians would have required additional testing to diagnose the cause of Mr. Scarborough's continuing pain. We also find that, even judging the actions of the physicians at Conway according to the standard of care required of all physicians, a standard arguably less than that required of specialists, the evidence failed to show any breach of that standard of care by the hospital or its employees. Dr. Chenier and Dr. Steier testified that Mr. Scarborough had a rare form of lung cancer that is generally not symptomatic until it has progressed to the point that it is not survivable. Dr. Robert Golson, an expert in radiology, testified that a CT scan of Mr. Scarborough's shoulder in 1993 would have detected the tumor when the patient was complaining of pain.[4] However, Dr. Golson stated that Pancoast tumors are seldom diagnosed before they cause symptoms and at that point are Stage III or Stage IV cancers. Dr. Robert L. Ebeling, Jr., a radiation oncologist who saw Mr. Scarborough briefly in February 1995, reiterated that Pancoast tumors are rare and account for only 3 percent of all lung cancers. They do not involve major airways and do not cause the usual symptoms of lung cancer. They cause pain when they go outside the lung and at that point, there is little hope of successful treatment. The record shows that Mr. Scarborough had a rare form of cancer which is hard to diagnose and is generally discovered only after it is symptomatic and has progressed beyond the point of survivability. The record also shows that Mr. Scarborough was having pain in his shoulder and neck, symptoms indicative of this type of cancer in 1993 prior to the time he entered prison. The record shows that the physicians at Conway continued to test Mr. Scarborough until, eventually, his cancer was discovered. This evidence does not show any breach of the standard of care by Conway or any of its employees in the diagnosis of Mr. Scarborough's cancer. EXPERT WITNESS REPORT Mrs. Wells contends that the trial court erred in allowing Dr. Steier to offer expert testimony on areas outside the scope of what she terms the "treating physician exception" of La. C.C.P. art. 1425. Mrs. Wells urges that when Dr. Steier examined Mr. Scarborough at Conway in December 1993, he had a degree as a doctor of osteopathy, a medical license from Louisiana, and was board certified in osteopathic internal medicine. She essentially argues that Dr. Steier was not a 921 medical doctor and was not a specialist in pulmonary medicine. Mrs. Wells asserts that, under the treating physician exception to the expert report requirement, Dr. Steier could only offer and explain the opinions he formed in December 1993, based upon his observations at that time. She claims that she was ambushed when the trial court allowed the defendants to bootstrap Dr. Steier's testimony as a treating physician to allow him to offer an opinion as an expert pulmonologist. Legal Principles La. C.C.P. art. 1425 governs the use of expert witnesses and the requirement, that after a contradictory motion, experts must furnish reports outlining their opinions and the reasons upon which the opinions are based. That statute provides in pertinent part: A. A party may through interrogatories or by deposition require any other party to identify each person who may be used at trial to present evidence under Articles 702 through 705 of the Louisiana Code of Evidence. B. Upon contradictory motion of any party or on the court's own motion, an order may be entered requiring that each party that has retained or specially employed a person to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony provide a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor and the data or other information considered by the witness in forming the opinions. The parties, upon agreement, or if ordered by the court, shall include in the report any or all of the following: exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. However, a treating physician who is not tendered as an expert does not have to furnish a report, as set forth in Comment C to the article which states in part: Furthermore, court orders requiring the exchange of reports of testifying experts should not apply to every witness who may be entitled to express an opinion at trial. For example, when a witness, such as a treating physician or other persons with particular professional or other knowledge, will testify to facts and opinions developed because of their treatment, observations, perception or connection to a party or event (i.e. coroner, investigating officer, etc.) and have not been specially retained or employed to provide expert testimony, he or she should not be required to generate a report solely for the purposes of the litigation. Discussion La. C.C.P. art. 1425 and the comments to that provision simply provide that treating physicians do not have to provide expert witness reports prior to trial when they have not been retained or employed to provide expert testimony and when they testify as to facts and opinions developed because of their treatment, observations, perceptions, or connection to a party or an event. As discussed above, Dr. Steier had a degree in osteopathic medicine, had done an internship in internal medicine and had completed a fellowship in pulmonary and critical care prior to his treatment of Mr. 922 Scarborough. Dr. Steier testified extensively about his treatment of Mr. Scarborough in 1993. Mr. Scarborough had emphysema and inactive TB which, Dr. Steier thought, explained his symptoms. Dr. Steier saw nothing at that time indicative of lung cancer. He stated that Pancoast tumors are diagnosed late because they are hidden behind the ribs and clavicle. The scarring in Mr. Scarborough's upper lungs due to emphysema and TB also worked to conceal the cancer. Dr. Steier stated that no physician at Conway could have detected the lung cancer any earlier than it was diagnosed. It was the plaintiff's counsel who asked Dr. Steier whether in 1993, when he treated Mr. Scarborough, he considered himself an expert in diagnosing and treating him for cancer. Dr. Steier replied, "Not for any type of cancer. For lung cancer as a pulmonologist, lung cancer falls under that, yes." At the close of the trial deposition, the plaintiff objected to Dr. Steier's qualifications in internal medicine and pulmonary and critical care. The plaintiff maintained that Dr. Steier could testify only with regard to his observations and opinions at the time of treatment and not as to any opinions or certifications developed since the time of treatment in 1993. The record shows that Dr. Steier was qualified in internal medicine as well as pulmonary and critical care at the time he treated Mr. Scarborough. His testimony dealt with his professional treatment of Mr. Scarborough. The facts also fail to show that the plaintiff was ambushed or surprised by Dr. Steier's testimony or his qualifications. This case was filed approximately 16 years before it was tried. The plaintiff was aware that Dr. Steier had treated Mr. Scarborough. The plaintiff had ample time for discovery. According to the defendants, the plaintiff never sought to depose Dr. Steier prior to his trial deposition. JURY TRIAL AS TO CONWAY Mrs. Wells argues that the trial court erred in denying her motion to have the issue regarding the liability of Conway determined by a jury. This argument is without merit. The plaintiff originally requested a jury trial as to all parties in this matter and the trial court required a jury bond of $7,500. The plaintiff later amended her petition to add Conway as a defendant. On June 15, 2009, the plaintiff contends that the jury bond was raised to $10,000, but she did not timely supply the additional bond. On August 20, 2010, shortly before the beginning of this trial, the plaintiff filed a motion to have the liability of Conway determined by a jury. In that motion, Mrs. Wells argued that the request for a jury trial by the DPSC should have required a jury trial against Conway also because the DPSC asserted comparative fault against Conway. The trial court denied the motion for a jury trial as to Conway and the plaintiff filed an application for supervisory review with this court which was denied on the showing made. The plaintiff has again raised this issue on appeal. Legal Principles La. R.S. 13:5105 provides: A. No suit against a political subdivision of the state shall be tried by jury. Except upon a demand for jury trial timely filed in accordance with law by the state or a state agency or the plaintiff in a lawsuit against the state or state agency, no suit against the state or a state agency shall be tried by jury. B. Whenever a jury trial is demanded by the state, state agency, or the plaintiff in a lawsuit against the state or state agency, the party demanding the jury 923 trial shall pay all costs of the jury trial including the posting of a bond or cash deposit for costs in accordance with Code of Civil Procedure Articles 1733 through 1734.1, inclusive.[5] La. C.C.P. art. 1733 states in pertinent part: A. A party may obtain a trial by jury by filing a pleading demanding a trial by jury and a bond in the amount and within the time set by the court pursuant to Article 1734. .... C. The pleading demanding a trial by jury shall be filed not later than ten days after either the service of the last pleading directed to any issue triable by a jury, or the granting of a motion to withdraw a demand for a trial by jury. La. C.C.P. art. 1734 provides in pertinent part: A. Except as otherwise provided by R.S. 13:3105 et seq., when the case has been set for trial, the court shall fix the amount of the bond to cover all costs related to the trial by jury and shall fix the time for filing the bond, which shall be no later than sixty days prior to trial. Notice of the fixing of the bond shall be served on all parties. If the bond is not filed timely, any other party shall have an additional ten days to file the bond. Discussion A plaintiff in a lawsuit against a state agency may demand a jury trial and must pay all costs. Both the DPSC and Conway are state agencies. In the plaintiff's original petition, she sought a jury trial as to all parties and a $7,500 jury bond was set. When the plaintiff amended her petition and added Conway as a party, the trial court increased the bond to $10,000. The plaintiff was informed by the clerk of court on July 1, 2010, that the cash or bond for a jury trial had not been deposited by the plaintiff. After that notice, Mrs. Wells still did not file the additional cash or bond required, but rather filed an additional request for a jury trial as to Conway shortly before the trial in this matter was set to commence. Mrs. Wells argued that, because the DPSC had requested a trial by jury and, because it asserted issues of comparative fault 924 against Conway, then all issues as to Conway should be tried by jury. The trial court denied the plaintiff's motion and the plaintiff filed a writ application with this court seeking supervisory review of the trial court decision. This court found that, based upon the showing made, exercise of our supervisory jurisdiction was not warranted. Upon review of the merits of the plaintiff's claim, we find that the plaintiff failed to timely meet the requirements for obtaining a jury trial as to Conway. Further, the law does not afford the plaintiff a right to a jury trial against a defendant simply because a codefendant has asserted a cross-claim against him. The trial court did not err in denying the plaintiff's motion. LIABILITY OF THE DPSC Mrs. Wells maintains that the jury erred in finding no liability on the part of the DPSC, which for the majority of his incarceration, housed Mr. Scarborough in the MPDC, run by the Madison Parish Sheriff's Office, rather than in a DPSC facility. She also urges that the trial court erred in giving erroneous jury instructions regarding the standard of care applicable to the DPSC. These arguments are without merit. Legal Principles The sheriff has absolute authority over an inmate sentenced to hard labor and committed to the DPSC but housed in a parish jail due to overcrowding even where the sheriff is receiving money from the DPSC to house the inmate. Cooley v. State, 533 So. 2d 124 (La.App. 4th Cir. 1988); Harper v. State, Department of Public Safety and Corrections, 96-0047 (La. 9/5/96), 679 So. 2d 1321. The sheriff is charged with the safekeeping of prisoners in his jail, including those who are transferred there. La. R.S. 15:704; La. R.S. 15:706(C); Harper v. State, Department of Public Safety and Corrections, supra; Gullette v. Caldwell Parish Police Jury, 33,440 (La.App.2d Cir. 6/21/00), 765 So. 2d 464. Even though an inmate is in the legal custody of the DPSC, he is in the custody of the sheriff of the parish in whose jail he has been placed, not the custody of the DPSC. Harper v. State, Department of Public Safety and Corrections, supra; Gullette v. Caldwell Parish Police Jury, supra. La. R.S. 42:1441 provides in pertinent part: A. The state of Louisiana shall not be liable for any damage caused by a ... sheriff ... within the course and scope of his official duties, or damage caused by an employee of a ... sheriff.... The duty of a sheriff regarding the parish jail is stated in La. R.S. 15:704: Each sheriff shall be the keeper of the public jail of his parish, and shall by all lawful means preserve the peace and apprehend all disturbers thereof, and other public offenders. La. R.S. 15:831 provides in pertinent part: A. The secretary of the Department of Public Safety and Corrections shall establish and shall prescribe standards for health, medical, and dental services for each institution, including preventive, diagnostic, and therapeutic measures on both an outpatient and a hospital basis, for all types of patients. An inmate may be taken to a medical facility outside the institution when deemed necessary by the director. However, in situations which are not life-threatening, the medical facility selected to treat the inmate shall be a part of the state's charity hospital system. In emergency situations where treatment by a state charity hospital is not available or feasible, the inmate may receive emergency treatment 925 at the nearest private medical facility. As soon as practicable, the inmate should be transferred to a facility operated by the state's charity hospital system. Notwithstanding any law to the contrary, all payments to private hospitals or health care providers shall be governed by R.S. 15:824(B)(1)(c). No monies appropriated to the department from the state general fund or from dedicated funds shall be used for medical costs associated with organ transplants for inmates or for the purposes of providing cosmetic medical treatment of inmates, unless the condition necessitating such treatment or organ transplant arises or results from an accident or situation which was the fault of the department or resulted from an action or lack of action on the part of the department. However, nothing in this Section shall prohibit an inmate from donating his vital organs for transplant purposes.... The standard of care imposed upon the DPSC in providing for the medical needs of inmates is that services must be reasonable. This duty to provide reasonable medical care for prisoners does not require the maintenance of a full hospital at the site of each prison in order to protect an inmate against every medical risk, but does encompass the risk that an inmate will become sick or be injured and require lifesaving medical attention. Neidlinger v. Warden, Medical Department, 45,235 (La.App.2d Cir. 5/19/10), 38 So. 3d 1171. Discussion Most of the issues the plaintiff complains of regarding the care of Mr. Scarborough occurred while he was housed in the MPDC. Under the statutes and jurisprudence, when a prisoner in the legal custody of the DPSC is placed in the physical custody of a parish sheriff, the DPSC is not liable for actions taken by the sheriff's office. In 1994, several months after Mr. Scarborough was placed in the MPDC, the Basic Jail Guidelines were implemented. This document was an agreement between the Louisiana Sheriffs' Association and the DPSC for basic guidelines for housing DPSC inmates in parish jails. The guidelines encompass numerous issues in housing inmates, including medical care. The DPSC was charged with periodic inspections of parish jails to ensure compliance with the Basic Jail Guidelines. The required inspections were conducted in this case and deficiencies found in the MPDC were quickly corrected. As of September 21, 1994, the MPDC was found to be in compliance with the Basic Jail Guidelines. Further, after Mr. Scarborough was transferred to DPSC facilities at Elayn Hunt Correctional Center and David Wade Correctional Center, the record shows that his medical needs were met. He was given his prescription medication and was taken to Conway for follow-up appointments culminating in the diagnosis of his cancer. The record shows that the DPSC fulfilled its duty regarding the care of Mr. Scarborough while he was housed at the MPDC and while housed in DPSC facilities. Therefore, the jury did not err in finding the DPSC to be without liability in this matter. The jury instructions given in this case were correct. The instructions regarding the DPSC were as follows: The Sheriff is charged with the safekeeping of prisoners transferred to his jail because of lack of any statute or regulation granting DPS & C control over the Sheriff. The sheriff has authority over an inmate once he is placed in a parish jail, 926 such that DPSC could not require Sheriff to abide by its policies. There is no statute or regulation which would give any arm of the DPSC the power to control what a sheriff does with prisoners in his custody. Even though an inmate remains in the legal custody of the DPS & C, he is in the actual custody of the Sheriff of the parish in whose jail he has been placed, not the custody of DPS & C. The State of Louisiana shall not be liable for any damage caused by a Sheriff within the course and scope of his official duties, or damage caused by an employee of a Sheriff. The Basic Jail Guidelines set forth general operational guidelines for parish jail facilities specifically relating to DOC inmates. Periodic inspections of a parish jail for compliance with DOC Basic Jail Guidelines does not give DOC "authority and control" over the facility, so as to create a duty to an inmate. The Basic Jail Guidelines are not intended either in purpose or practice, to confer upon DOC any part of the absolute statutory authority given to the parish Sheriffs regarding obligations relating to the day-to-day custody of inmates in parish facilities. These instructions are a correct statement of the law. The trial court did not err in charging the jury with these jury instructions. LIABILITY OF THE SHERIFF AND THE MPDC Mrs. Wells argues that the trial court erred in failing to hold the MPDC and the Madison Parish Sheriff's Office liable for negligence. Mrs. Wells argues that the MPDC failed to exercise reasonable care and this failure caused injury to Mr. Scarborough. She points to numerous instances in the medical records which show that the MPDC knew of Mr. Scarborough's medical needs and failed to meet them, exposing him to unnecessary suffering. This argument is without merit. Legal Principles The standard of care imposed upon a confining authority in providing for the medical needs of inmates is that the services be reasonable. Calloway v. City of New Orleans, 524 So. 2d 182 (La.App. 4th Cir. 1988), writ denied, 530 So. 2d 84 (La. 1988). See Elsey v. Sheriff of Parish of East Baton Rouge, 435 So. 2d 1104 (La. App. 1st Cir. 1983), writ denied, 440 So. 2d 762 (La. 1983); Norred v. Litchfield, 2006-2156 (La.App. 1st Cir. 11/2/07), 977 So. 2d 1004; Hardy v. Foti, 2001-1257 (La.App. 4th Cir. 2/27/02), 812 So. 2d 792. La. R.S. 15:751 provides: All jails, prisons, lockups and camps and all facilities, units and rooms of such jails, prisons, lockups and camps where prisoners are detained or confined must meet standards of health and decency which shall be established by the state division of health. The director of the Department of Corrections shall confer with the state health officer or his duly authorized representative concerning the establishment of such standards for all correctional institutions. The state health officer or his duly authorized representative shall periodically inspect all correctional institutions to determine if such institutions are in compliance with the established standards and he shall prepare and issue a report on his findings to the governor, the state hospital director and the administrators of the various institutions. Discussion Mrs. Wells points out that the Conway doctors cited the lack of communication 927 and follow-up care as significant impediments to the diagnosis of Mr. Scarborough's cancer. She claims that the sheriff's records show that the doctors' instructions were repeatedly lost or ignored, nursing notes were not followed, prescription medications were not administered according to instructions, and medical appointments were missed or delayed for months with no explanation. Mr. Scarborough's intake records from the MPDC show that he was 5' 10" tall and weighed approximately 130 pounds. He did not list any medications he was taking at that time. However, there was some indication that he had been taking Vicodin for pain. Mrs. Wells testified that her son's Vicodin was stolen at MPDC and was not replaced. The MPDC records show that Mr. Scarborough complained of left shoulder pain and was given Motrin. The nurse made a notation to check with the doctor because Vicodin should have relieved his pain. On October 26, 1993, there is a nurse's note stating that Mr. Scarborough's pain medication was taken and that he wanted to see the doctor. According to the nurse at MPDC, Lena Middlebrook, and Dr. Neumann, instructions were given to get a work-up done on Mr. Scarborough to see what was causing his pain. Ms. Middlebrook testified that inmate medication would be picked up at the pharmacy by the guards. She would place the medication in folders for the inmates. The guards would dispense the medications. All medications were kept locked up. Pat Smith, an employee at MPDC, testified that medications were passed through a window to inmates who would sign for them. Ms. Smith denied that any inmate was ever denied medication. David Glover, an inmate at MPDC at the time Mr. Scarborough was there, testified that, if an inmate could not get to the window quickly enough, the guards would record that medication had been refused. Ms. Smith stated that Mr. Scarborough was transferred to Hunt Correctional Center because he and his family did not feel that his medical needs were being met. A notation on November 1, 1993, indicated that Mr. Scarborough was sent to Conway for a CT scan or MRI of cervical vertebrae. On November 2, 1993, Mr. Scarborough complained of not getting his medication and the nurse noted that he had a prescription to be filled that day. On November 14, 1993, Mr. Scarborough made a complaint of severe shoulder pain. In February 1994, he asked to see the doctor for shoulder pain. In March 1994, Mr. Scarborough asked to see a psychiatrist because of mood swings and depression. In April 1994, nursing notes show that Mr. Scarborough had a severe skin rash and was being sent to a doctor for evaluation. On July 13, 1994, Mr. Scarborough made a request to see the doctor for stronger pain medication. A nursing note on July 27, 1994, reflects that Mr. Scarborough complained of being out of pain medication. He also refused to take his TB medication because he had been told at the local health unit not to take the medication for more than six months. In August 1994, Mr. Scarborough asked to see Dr. Neumann, but when the nurse sent for him, he refused to go to nurse call. The record contains the medical logs from MPDC showing the administration of medication to Mr. Scarborough. Mr. Scarborough was prescribed Sporanox for treatment of fungal infections from April 30, 1994, to May 12, 1994. He received this medication on a fairly regular basis. From November 1994 to January 1995, Mr. Scarborough was prescribed Feldene for pain; he also received this regularly. Mr. Scarborough was prescribed Naproxen, 928 a nonsteroidal anti-inflammatory (NSAID) drug for pain, from October 12, 1993, through December 12, 1994. For the relief of pain, Mr. Scarborough was also given Robaxisal, Cataflam, Piroxicam, and Daypro at various times. Mr. Scarborough was prescribed Elavil for depression from August 16, 1994, to January 1995. The medical logs from MPDC are not orderly and it is difficult to determine the degree of regularity with which Mr. Scarborough received his medication. While there is some indication that Mr. Scarborough did not receive all of his medicine timely, the evidence is not specific enough to determine whether those discrepancies were or were not rectified quickly. The record shows that Mr. Scarborough regularly complained about shoulder pain and other maladies and was seen by the prison nurse, by Dr. Neumann, and was frequently referred to Conway for further care. Based upon the record before us, we find that the trial court did not err in failing to find the MPDC or the Madison Parish Sheriff's Office liable for negligence in the care of Mr. Scarborough. CONCLUSION For the reasons stated above, we find no error in the trial court's application of the Daubert standard in allowing or barring expert testimony or in its evidentiary rulings concerning Dr. Steier, Dr. Lazarus, and Dr. Chenier. The trial court did not err in denying the plaintiff's request for a jury trial as to Conway. The trial court did not err in the jury instructions given regarding the legal standard applicable to the DPSC. We find that the trial court did not err in failing to find Conway, the DPSC, the MPDC, or the Madison Parish Sheriff's Office liable for negligence in this matter. Costs in this court are assessed to the plaintiff, Leila Wells. AFFIRMED. APPLICATION FOR REHEARING Before STEWART, GASKINS, CARAWAY, PEATROSS and MOORE, JJ. Rehearing denied. NOTES [1] The DPSC and Sheriff Harmon also filed a motion in limine to exclude the testimony of other witnesses not at issue in this appeal. [2] Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, provided the following guidelines for assessing whether reasoning or methodology underlying the testimony is scientifically valid and can be applied to the facts at issue: (1) whether the theory or technique can be and has been tested; (2) whether the theory or technique had been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the methodology is generally accepted by the relevant scientific community. [3] It was not necessary for this medical malpractice claim to first be presented to a medical review panel. The Medical Liability for State Service Act (MLSSA), La. R.S. 40:1299.39 et seq., exempts prisoners and those pursuing claims as heirs of prisoners from filing requests for medical review panels. See Yen v. Avoyelles Parish Police Jury, 2003-603 (La.App.3d Cir. 11/5/03), 858 So. 2d 786. [4] In 1993, a CT scan was done of Mr. Scarborough's neck, but it did not show the tumor. [5] A "state agency" is defined in La. R.S. 13:5102(A): A. As used in this Part, "state agency" means any board, commission, department, agency, special district, authority, or other entity of the state and, as used in R.S. 13:5106, any nonpublic, nonprofit agency, person, firm, or corporation which has qualified with the United States Internal Revenue Service for an exemption from federal income tax under Section 501(c)(3), (4), (7), (8), (10), or (19) of the Internal Revenue Code, and which, through contract with the state, provides services for the treatment, care, custody, control, or supervision of persons placed or referred to such agency, person, firm, or corporation by any agency or department of the state in connection with programs for treatment or services involving residential or day care for adults and children, foster care, rehabilitation, shelter, or counseling; however, the term "state agency" shall include such nonpublic, nonprofit agency, person, firm, or corporation only as it renders services to a person or persons on behalf of the state pursuant to a contract with the state. The term "state agency" shall not include a nonpublic, nonprofit agency, person, firm or corporation that commits a willful or wanton, or grossly negligent, act or omission. A nonpublic, nonprofit agency, person, firm or corporation otherwise included under the provisions of this Subsection shall not be deemed a "state agency" for the purpose of prohibiting trial by jury under R.S. 13:5105, and a suit against such agency, person, firm or corporation may be tried by jury as provided by law. "State agency" does not include any political subdivision or any agency of a political subdivision.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2492876/	68 So.3d 964 (2011) Joy, 4 BROWN, Appellant, v. Dennis BROWN, Appellee. No. 2D10-5109. District Court of Appeal of Florida, Second District. August 26, 2011. Merritt A. Gardner of Gardner Law Firm, Tampa, for Appellant. Steve Bartlett of The Law Office of Steve Bartlett, Trinity, for Appellee. ALTENBERND, Judge. Joy A. Brown appeals a postdissolution order concerning child support payments. The order does not reduce the amount of child support owed by Dennis Brown, but it permits him to avoid contempt or other enforcement action so long as he pays a reduced amount of child support while the remaining amount accumulates for later payment. We conclude that the trial court had the authority to enter this order. It could enter such an order based on the evidence justifying this solution even though that proof would have been insufficient to authorize a permanent reduction in child support. Accordingly, we affirm. The Browns divorced in 2005. They have one child. In a marital settlement agreement, Mr. Brown agreed to pay his wife $1000 per month in child support. His agreement to pay this amount, while admirable, was quite unrealistic. At the time he made this agreement, he had little or no income and had monthly expenses in excess of $5000. His net assets were quite modest. Thus, although he agreed to pay this child support amount, he had no actual ability to perform on his agreement. About five months after the entry of the judgment of dissolution, Mr. Brown filed his first supplemental petition seeking to modify his child support. When he filed this petition, his financial condition had actually improved. He was earning about $1500 per month. Even with this improvement in his income, he could not realistically pay the full amount of child support. However, he was making little or no effort to pay support, and the trial court denied this petition. Mr. Brown subsequently filed another supplemental petition seeking to modify *965 his child support.[1] He was still earning about $1500 per month, and his assets had been expended. A child support hearing officer conducted a hearing in this case in November 2009. The hearing officer issued his findings of fact and concluded that Mr. Brown had not proven the type of permanent change in circumstances that would justify a reduction in the amount of the child support to which he had agreed in the marital settlement agreement. The hearing officer found that, if the child support guidelines applied, the parties would jointly owe about $560 in child support and that Mr. Brown's share would be $422. However, in light of the marital settlement agreement, Mr. Brown had no right to a reduction merely because the guidelines calculated a lower amount. The hearing officer further found that Mr. Brown owed $41,896.32 in child support arrearages. The hearing officer recommended and the trial court ordered that Mr. Brown pay weekly child support of $116.43, including $19 per week in arrearage. This amount is comparable to the amount that Mr. Brown would pay under the guidelines. The court further ordered that the difference between these payments and the $1000 per month that Mr. Brown had agreed to pay would continue to accrue as arrears. Although the order does not expressly so state, it set an amount that must be paid by Mr. Brown to avoid contempt or other enforcement procedures, but it left the total amount of child support owing under the marital settlement agreement unchanged. Ms. Brown appeals this order. On appeal, Ms. Brown argues that the trial court could not enter this order without proof of the type of permanent change in circumstances that authorizes an actual reduction in child support. We disagree. Section 61.14(1)(a), Florida Statutes (2009), gives the trial court broad authority to enter orders enforcing child support. The trial court has "jurisdiction to make orders as equity requires." The order entered is compatible with the law of contempt, which requires the trial court to set purge amounts consistent with the obligor's ability to pay, and allows the court to enter orders of relief short of contempt when the failure to pay is not willful. See Fla. Fam. L.R.P. 12.615(g). The trial court clearly anticipated a time when Mr. Brown's financial circumstances would improve and he would be required to pay a higher amount of child support. We conclude that the hearing officer received competent, substantial evidence that supported this order and that the trial court did not abuse its discretion in entering it. Affirmed. VILLANTI and CRENSHAW, JJ., Concur. NOTES [1] Items contained in the appendix record provided to this court indicate that this supplemental petition was filed either in July 2008 or July 2009.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2492896/	75 So.3d 271 (2011) CASTANEDA v. STATE. No. 1D11-4117. District Court of Appeal of Florida, First District. October 31, 2011. DECISION WITHOUT PUBLISHED OPINION Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2492991/	67 So.3d 208 (2011) COLEMAN v. SCOTT. No. 2D11-3282. District Court of Appeal of Florida, Second District. July 21, 2011. DECISION WITHOUT PUBLISHED OPINION Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1324448/	119 Ga. App. 459 (1969) 167 S.E.2d 725 McLENDON v. HARTFORD ACCIDENT & INDEMNITY COMPANY. 43962. Court of Appeals of Georgia. Argued October 8, 1968. Decided March 10, 1969. Rehearing Denied April 2, 1969. Allgood & Childs, Thomas F. Allgood, for appellant. Jay M. Sawilowsky, Hull, Towill & Norman, A. Rowland Dye, for appellee. 460 HALL, Judge. McLendon operated a peanut storage warehouse where he processed and stored peanuts for G. F. A. Peanut Association, hereinafter referred to as G. F. A. To be approved as a warehouseman it was necessary that McLendon secure a surety bond guaranteeing the faithful performance of the warehouse contract. Hartford executed the surety bond to McLendon indemnifying G. F. A. for loss resulting from the warehouse storage agreement between G. F. A. and McLendon. McLendon operated the peanut storage warehouse until the latter part of December 1963, at which time there was a disagreement between G. F. A. and McLendon. G. F. A. then took over the operation of the warehouse under the terms and conditions of the contract between it and McLendon. At a later date G. F. A. made a claim on the bond against Hartford contending the there were shortages in the amount of peanuts that it had stored with McLendon. Hartford, after paying G. F. A.'s claim, filed the present suit for reimbursement under the provisions of the bond. The bond provided that McLendon would reimburse Hartford for any amounts of money that Hartford paid in consequence of having executed the bond. The bond further provided: "That in any accounting which may be had between the undersigned and the surety, the surety shall be entitled to credit for any and all disbursements in and about the matters herein contemplated, made by it in good faith under the belief that it is or was liable for the amounts so disbursed, or that it was necessary or expedient to make such disbursements, whether such liability, necessity or expediency existed or not . . . Eleventh: That the surety shall have the exclusive right for itself, and for the principal on or in said bond or other instrument, to decide and determine whether any claim, demand, liability, suit, action, judgment or adjudication, made, brought, or entered against the surety or principal on or in said bond or other instrument, or both, whether jointly or severally, or jointly and severally, shall, or shall not, be defended, tried, appealed, or settled, and its decision shall be final, conclusive and binding upon the undersigned." McLendon contends that the trial judge erred in sustaining a motion to strike the fifth and sixth defenses of his answer 461 which set up the defense that Hartford failed to exercise good faith in acting under the terms and conditions of the bond. Hartford contends that the trial court did not err for the reason these defenses were not sufficient to meet the requirements for pleading "fraud" under Code Ann. § 81A-109(b). The fallacy of this contention is that allegations that one has failed to exercise "good faith" are totally and completely different from a claim that one has made a "fraudulent misrepresentation." Lack of "good faith" is not the same as "fraud" under Code Ann. § 81A-109(b). The bond provisions set forth above made the surety (Hartford) the agent of the principal (McLendon) "to decide and determine whether any claim, demand, liability, suit, action, judgment or adjudication, made, brought, or entered against the surety or principal . . . shall, or shall not, be defended, tried, appealed, or settled, . . ." Being its agent it is elementary that Hartford held a fiduciary relationship with McLendon and was required to act in good faith and with loyalty. See Fort Valley Coca-Cola &c. Co. v. Lumbermen's Mut. &c. Co., 69 Ga. App. 120 (7) (24 SE2d 846); Williamson, Inman & Co. v. Thompson, 53 Ga. App. 821 (187 SE 194). The situation is somewhat similar to that in which a contractor with the State Highway Department agrees that if differences arise the highway engineer shall make all decisions connected with the execution of the agreement and that his decision shall be binding and conclusive. However, a contractor can challenge this decision where he alleges there has been "fraud, or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment." State Hwy. Dept. v. MacDougald Constr. Co., 189 Ga. 490 (2) (6 SE2d 570). McLendon's fifth and sixth defenses charge in specific detail that Hartford did not act in good faith in paying off G. F. A. The trial court erred in striking these defenses and all further proceedings were thereby rendered nugatory. Hartford further contends that if this court should conclude that the fifth and sixth defenses of the answer should not have been stricken, the error was harmless in view of the fact the transcript discloses that the defendant was permitted, without 462 objection, to submit some evidence on the matter and that the entire transcript demands a conclusion that it acted in good faith in making the payment to G. F. A. We reject this contention for the simple reason that it rests upon sheer conjecture and speculation. The trial court had stricken this defense. How then can it be said as a matter of law that since McLendon was able to present some evidence at the trial in support of his stricken defenses, a finding is demanded that this was all the evidence he could or would have submitted if the defense had not been stricken? The trial court erred in granting Hartford's motion for a judgment notwithstanding the verdict. Judgment reversed. Felton, C. J., Bell, P. J., Jordan, P. J., Pannell and Deen, JJ., concur. Eberhardt, Quillian, and Whitman, JJ., dissent. EBERHARDT, Judge, dissenting. I agree with Judge Hall that the surety on the bond owed to its principal the duty of exercising good faith in settling or paying the claim made by the obligees. The situation is similar to that in which a contractor with the State Highway Department agrees that if differences arise the highway engineer shall make all decisions connected with the execution of the agreement and that his decision shall be final and conclusive. His determination is final and conclusive in the absence of fraud or the exercise of bad faith; he must exercise an honest judgment. State Hwy. Dept. v. MacDougald Constr. Co., 189 Ga. 490 (2) (6 SE2d 570). I do not think that failure to exercise good faith, or failure to make an honest judgment, falls in the same category as the making of false representations when inducing another to act, as in Daugert v. Holland Furnace Co., 107 Ga. App. 566, 569 (130 SE2d 763). The representations may be simply reckless, made in ignorance of the truth. Failure to make an honest judgment imports more. Consequently, as I view it, it is only necessary that one plead facts which, if proven, are sufficient to authorize a finding of bad faith or the lack of honesty in making judgment. The defense of bad faith here may meet that test, but the striking of it was harmless since the defendant was permitted, without objection, to submit evidence on the matter apparently all that he had, for he does not contend that 463 there was more that he could or would have submitted if the defense had not been stricken. In this situation we consider the pleadings as having been amended to put the issue back in (Code Ann. § 81A-115 (b)) and that defendant submitted all proof of his defenses that he had available. He fails to show error. A careful and sifting examination of the record discloses that as to the charge of bad faith the verdict is unsupported. The contract and the bond obligate the principal and surety to pay for the difference in the guaranteed value of the peanuts when they came into the warehouse and when they went out. This was arrived at by taking the weight and grade and applying the unit price the price being the same in each instance. McLendon does not complain of the weights or grades as the peanuts went into his warehouse. He does not attack the grades of the peanuts as they went in or out. These were made in each instance by government graders who took samples. Indeed, there was little loss of grade in any save the large Virginia peanuts, which had somehow been "beaten up," but this amounted in dollars and cents to only $108.16. Either he or his wife, who he admits was authorized to act for him, weighed the peanuts in and out, or was present when it was done and signed the weight certificates which were submitted to G. F. A. and on which he collected his warehouse charges. There is testimony both from McLendon and from his wife indicating a loss of peanuts resulting from improper handling when they were loaded out. This may account for some or all of the difference in the guaranteed values coming in and going out, but even so, it is no more than negligence in handling not bad faith. It is uncontradicted that a representative of Hartford went to the offices of G. F. A. soon after the claim was made, inspected and checked the records of McLendon's operation, on which the claim was based, and found that they were in order and under the terms of McLendon's contract with G. F. A. and of his bond for faithful performance, substantiated a valid claim for $2,077.04. (This is actually 120 percent of the loss in value, *464 as called for in the contract. The actual loss was $1,730.87, and this is what the bonding company paid and what it seeks to recover). An adjuster of the company called McLendon about the matter and McLendon denied owing the claim, asserting that he had records which would show that the claim was not meritorious and that he would dig them up and make them available to the adjuster, whereupon the adjuster asked McLendon to get back in touch with him as soon as he could get up the records. There is some conflict as to whether he ever tried to get in touch with the adjuster and as to what efforts the adjuster made to get back in touch with McLendon but they did not get together. McLendon never submitted to the company any records which discredit the claim. He produced none at the trial of the case. If he had such records it was his duty to produce and submit them to his surety when it was investigating the claim. When he failed to do so, it could conclude that he did not have them. Code § 38-119. What he did produce was an invoice from him to G. F. A. for warehouse charges which he contends to have been an accord and satisfaction of the claim. But that cannot be. G. F. A. had not audited its records relative to McLendon's warehousing for determining whether a claim for shortage in value existed when the invoice was submitted, nor does the invoice purport to be an accord and satisfaction. The evidence demands the conclusion that Hartford reached an honest judgment, that the claim was just and owing and that it did exercise good faith in making payment of it. Under terms of the contract, application for bond and the bond the surety is entitled to reimbursement, and the grant of the judgment n.o.v. was proper. I am authorized to state that Judges Quillian and Whitman join in this dissent.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2494155/	59 So.3d 500 (2011) STATE of Louisiana v. James Lyndal FOSTER. No. 10-871. Court of Appeal of Louisiana, Third Circuit. March 16, 2011. 501 James C. Downs, District Attorney9th Judicial District Court, Alexandria, LA, for Appellee, State of Louisiana. Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, James Lyndal Foster. Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges. 502 GREMILLION, Judge. Defendant, James Lyndal Foster, appeals his adjudication as a fourth felony offender. We affirm. Defendant was convicted of possession of methamphetamine, a violation of La.R.S. 40:967(C), and sentenced to five years at hard labor.[1] Immediately after sentencing, the State sought habitual offender status based on the subject conviction and six additional prior felony convictions. At a hearing, the trial court found Defendant to be a habitual offender and imposed the minimum sentence of twenty years at hard labor. At the hearing, the trial court found Ray Keith Delcomyn of the Rapides Parish District Attorney's Office to be qualified as an expert in fingerprint identification. Delcomyn testified to extensive experience in fingerprint work and to his qualification as an expert in the trial court more than thirty-five times. Although he has a certificate for completing several courses, he has no formal certification from any professional organization. Defense counsel objected to his qualification as an expert based on his lack of certification, commenting, "I assume, that there would have to be some sort of certification to say that he's a fingerprint expert." Delcomyn fingerprinted Defendant at the beginning of the hearing. He then testified about his examination of fingerprints from six bills of information involving Defendant. He also testified that, because quality is sometimes lost in the photocopy process, he went to the clerk's office and examined the fingerprints in the original records. In Delcomyn's professional opinion, the fingerprints in each of the six other records were all of the same person, and they matched Defendant's fingerprints taken in court that day. The trial court noted the present conviction and reviewed documents from each of the six prior convictions on the record. The six convictions were: Simple burglary, a violation of La.R.S. 14:62, guilty plea on October 9, 2006, docket # XXXXXX-XXX, Rapides Parish; Simple burglary, a violation of La.R.S. 14:62, guilty plea on October 9, 2006, docket # XXXXXX-XXX, Rapides Parish; Simple burglary, a violation of La.R.S. 14:62, guilty plea on November 8, 2004, docket #XXXXXX-XXX, Rapides Parish; Unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4, guilty plea on August 7, 2000, docket #XXXXXX-XXX, Rapides Parish; Issuing worthless checks from $100 to $500, a violation of La.R.S. 14:71(D), guilty plea on August 7, 2000, docket # XXXXXX-XXX, Rapides Parish; and, Possession of CDS II, a violation of La.R.S. 40:967(C), guilty plea on November 15, 1993, docket # XXXXXX-XXX, Rapides Parish. The trial court properly ascertained that the cleansing period had not expired for any of the prior convictions. The trial court then recalled and set aside Defendant's present sentence of five years at hard labor and sentenced him to the minimum sentence for an offender with more than four prior felony convictions, twenty years at hard labor. Defendant argues the State failed to present sufficient evidence to support his adjudication as a habitual offender. First, Defendant claims the trial court failed to advise him of his right to have the State prove its case against him at 503 the habitual offender proceeding. The record shows this claim could, under certain circumstances, indicate error. However, where the State presents adequate evidence to prove the existence of a defendant's prior convictions and that a defendant is the same person previously convicted, such error is harmless. State v. Spencer, 96-248 (La.App. 3 Cir. 11/6/96), 683 So.2d 1326, writ denied, 96-2938 (La.5/9/97), 693 So.2d 773. Here, the State presented adequate evidence of both the convictions and of Defendant's identity. Defendant objected to Delcomyn's expert qualifications because he had no formal certification. An expert may be qualified "by knowledge, skill, experience, training, or education." La.Code Evid. art. 702. Delcomyn had been accepted as an expert in the field of fingerprint identification more than thirty-five times in the trial court. Clearly, his experience was sufficient to qualify him as an expert. Defendant argues the record does not contain written reasons for his adjudication in violation of La.R.S. 15:529.1(D)(3). "[W]ritten reasons are not required if the court presents oral reasons to show that it had considered the State's documents and found them to be sufficient to prove the prior convictions." State v. Wilson, 06-1421, p. 16 (La.App. 4 Cir. 3/28/07), 956 So.2d 41, 50, writ denied, 07-1980 (La.8/22/08), 988 So.2d 253 (citing State v. Dozier, 06-621 (La.App. 4 Cir. 12/20/06), 949 So.2d 502, writ denied, 97-140 (La.9/28/07), 964 So.2d 350). Regarding each of the six prior guilty pleas, Defendant complains that some of the court minutes, bills of information, or plea forms the State submitted were not certified. He further complains that other court minutes may not have been offered. Review of the exhibits shows this is incorrect. The exhibit in question includes court minutes showing Defendant appeared with counsel, was advised of his rights, and pled guilty to simple burglary, as do the minutes associated with each exhibit. While some of the documents are in fact not certified, these exhibits were offered, introduced, and filed into evidence at the hearing without objection from Defendant. Thus, any purported error or irregularity arising from non-certification of any of the documents cannot be raised now. See La. Code Crim.P. art. 841. Defendant argues the absence of a link between him and the fingerprints on the earlier arrest records. At the hearing, Delcomyn was asked if the person whose prints appeared on the State's exhibits belonged to the same person, and if they also belonged to the same person printed at the beginning of the hearing (Defendant). Delcomyn said they did. Finally, Defendant complains that no witness identified him as the same person who committed the prior crimes. Defendant was fingerprinted at the beginning of the hearing, in the presence of the trial court. Delcomyn identified Defendant's prints as matching the prints from all six prior cases. The State may prove a defendant is the same person convicted of prior felonies through "expert opinion regarding the fingerprints of the defendant when compared with those in the prior record." State v. Davis, 09-72, p. 9 (La.App. 3 Cir. 10/7/09), 19 So.3d 582, 588, writ denied, 09-2496 (La.10/29/10), 48 So.3d 1098 (quoting State v. Payton, 00-2899 (La.3/15/02), 810 So.2d 1127). Many of the arguments made by Defendant are incorrect as a matter of fact. Court minutes, though uncertified, plainly show Defendant was represented by counsel and advised of his Boykin rights at 504 each proceeding. Fingerprint evidence by a qualified expert witness identified Defendant as the offender in each of six prior cases. The evidence established that Defendant is a seven-time felony offender. RULING Defendant's adjudication as a fourth felony offender is affirmed. AFFIRMED. NOTES [1] This court, in docket number 10-615, has affirmed the conviction.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2494232/	65 So.3d 724 (2011) Emily Allain SILBERNAGEL v. Eric SILBERNAGEL. No. 10-CA-267. Court of Appeal of Louisiana, Fifth Circuit. May 10, 2011. 725 J. Louis Watkins, III, Attorney at Law, Houma, LA, for Plaintiff/Appellant. Don C. Gardner, Attorney at Law, Harahan, LA, for Defendant/Appellee. Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and HILLARY J. CRAIN, Pro Tempore. FREDERICKA HOMBERG WICKER, Judge. This is a custody dispute between Emily Allain Silbernagel and Eric Silbernagel regarding the custody of their eleven-year old minor son, Matthew. After a trial on the merits, the district court modified the preexisting custody agreement by naming both parents co-domiciliary parents and by modifying the visitation scheduled from alternating seven-day periods. The district court, however, maintained the portion of the judgment which ordered Matthew's continued attendance at St. Louis King of France school. Finding that the heightened Bergeron[1] standard was met in this case, we affirm the district court's judgment. Facts and Procedural History This is an ongoing dispute between Emily Silbernagel and Eric Silbernagel that has spanned over a five-year period regarding the custody of their eleven-year old minor son, Matthew. The facts of this case were previously set forth in Silbernagel v. Silbernagel, 06-879 (La.App. 5 Cir. 4/11/07), 958 So.2d 13. In that case, we affirmed the district court's ruling which 726 maintained Emily Silbernagel as the domiciliary parent; ordered Matthew's continued attendance at St. Louis King of France school; and modified the physical custody arrangement to alternating seven-day periods. Four years after affirming that judgment, the parties are back before us regarding Matthew's custody. On January 22, 2008, Eric Silbernagel filed a Rule for Modification of Custody and Visitation in the 24th Judicial District Court in Jefferson Parish wherein he sought to be named Matthew's domiciliary parent. He also requested that the court order Matthew to remain at St. Louis King of France school in Metairie. That filing was precipitated by Emily Silbernagel's previous filing, on November 29, 2007, of a Rule for Modification and Change in Venue in the 32nd Judicial District Court in Terrebonne Parish. In that pleading, she requested that visitation be modified from the alternating seven-day periods to allow Eric Silbernagel to visit Matthew every other weekend, alternate holidays, and every other week during the summer when Matthew was out of school. She also requested that Matthew be allowed to attend school in Terrebonne Parish where she resided. After Emily Silbernagel's rule was dismissed[2] in Terrebonne Parish, Eric Silbernagel's rule was heard in Jefferson Parish by a hearing officer on March 7, 2008. The hearing officer denied the motion but recommended that Matthew remain at St. Louis King of France school until mutual agreement by the parties or further order of the court. Eric Silbernagel objected to the hearing officer's ruling denying modification of custody. The matter was subsequently heard before the district court on August 4, 2009. Emily Silbernagel, Eric Silbernagel, and Elliot Levin, a clinical social worker, testified at that hearing. Emily Silbernagel testified that she has driven Matthew from Houma to Metairie every other week since 2005. She recalled testifying during the April 2006 custody hearing that the drive was not problematic. At that time, however, she had only been making the drive for four to six months. She admitted that now, through the passage of many years, the drive is no longer manageable and endangers Matthews's life. In fact, Emily Silbernagel's Rule for Modification and Change in Venue filed in Terrebonne Parish states, "The minor child is placed in danger everyday by being on the highway driving to Metairie from Terrebonne Parish approximately 540 miles every other week, for a total of 1,080 miles a month. Defendant, Eric Silbernagel agrees that the child is put in danger by being on the highway." Emily Silbernagel further testified that since she has been making the commute, she has been involved in two vehicular accidents, one which occurred while Matthew was with her. That accident, which occurred during the school week, required Matthew to miss the next day from school and resulted in a trip to the emergency room where he was found to have a non-threatening head laceration. Emily Silbernagel confirmed that Matthew had frequently been absent from and 727 tardy to school. During the 2006 school year, Matthew was absent three times and tardy nine. In 2007, he was absent seven times and tardy four; and in 2008, he was absent seven times and tardy three. She attributed the absences to illness, stating that he was out once with the flu and that he suffers from allergies and eczema.[3] Despite the tardiness and absences, however, Emily Silbernagel testified that Matthew's performance in school has not suffered. Eric Silbernagel testified that the drive from Houma to Metairie was dangerous for Matthew. He recalled that Matthew told him that he occasionally sleeps in the backseat during the commute. Because of that, Eric Silbernagel was concerned about whether Matthew is properly restrained during the commute. He also testified that on the Friday exchanges, Matthew always appeared to be worn out, as if he had a "hectic" week. And in regards to the school absences, Eric Silbernagel testified that Matthew told him that one of the days he was absent, he and his mother "kind of played hookey." Eric Silbernagel testified that it would be in Matthew's best interest to stay with him in Metairie on the days Emily Silbernagel did not drive to New Orleans to work because it would reduce the drive time and dangers involved in traveling. He also stated that such an arrangement would give Matthew the opportunity to play sports with his friends in Metairie, which he does not get a chance to do often. He testified that Matthew has talked about attending high school in Metairie with his friends and has never mentioned attending school in Terrebonne Parish. Eric Silbernagel further testified that Matthew is thriving at St. Louis King of France where he has attended since pre-K and that Emily Silbernagel has never stated to him that she felt Matthew was receiving an inadequate education there. Elliot Levin, the clinical social worker, who was qualified as an expert in custody matters, testified that Matthew felt comfortable with both parents and that it was in Matthew's best interest to spend as much time with each parent as possible. However, he found that Matthew's life was in Metairie. Specifically, he noted that all of his family, both paternal and maternal, were there and that he had no family in Houma. He testified that all of Matthew's friends, who he enjoyed sports with and attended school with, were also in Metairie. He found it surprising that Matthew did not have any friends in Houma, considering the amount of time he has lived there. When the hearing concluded, the trial court took the matter under advisement. A judgment was rendered on August 31, 2009. The new judgment removed Emily Silbernagel as the domiciliary parent and made both parties co-domiciliary parents. The judgment also ordered that Matthew would remain at his current school and that he would attend school from Eric Silbernagel's house on the days that Emily Silbernagel did not have to drive to the New Orleans area for work. That change effectively modified the visitation schedule from the alternating seven-day periods which previously existed. Emily Silbernagel appeals the district court's judgment, assigning the following errors: the court erred in naming Eric Silbernagel and Emily Silbernagel co-domiciliary parents; the court erred in ordering Matthew to remain in school at St. 728 Louis King of France school; and the court erred in modifying the visitation schedule from alternating seven-day periods. Discussion Before addressing the merits of the appeal, we must discuss whether the underlying judgment issued on April 7, 2006, is a considered decree or consent decree. That determination is necessary to establish the burden of proof required for any modification thereof. We must also decide whether that judgment is final. A "considered decree" is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Silbernagel, supra, at 17. (citation omitted). Once a considered decree has been rendered, the proponent of the change bears the heavy burden of proving that a change of circumstances has occurred, such that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree, or that harm likely caused by a change of environment is substantially outweighed by its advantages to the child. Id. citing Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986). A consent decree, on the other hand, is one in which no evidence of parental fitness is presented. Id. (citation omitted). In such a case, the heavy burden of proof rule enunciated in Bergeron does not apply. Silbernagel, supra, at 18. Rather, a party seeking a modification of a consent decree must prove that there has been a material change of circumstances since the original (or previous) custody decree was entered and that the proposed modification is in the best interest of the child. Id. In this case, the underlying custody decree that was rendered on April 7, 2006, was a considered decree wherein the court received evidence of parental fitness regarding Emily and Eric Silbernagel's ability to exercise care for their minor child. Therefore, Eric Silbernagel, the proponent of change, bears the burden of meeting the heightened Bergeron standard to modify that decree. Eric Silbernagel contends, on the other hand, that the heightened Bergeron standard is inapplicable because the April 7, 2006 judgment was not a final judgment due to the following decree contained therein: IT IS FURTHER ORDERED that the parties appear before this Court for a review of this matter not later than six months following [the] date of this judgment. Mr. Silbernagel will file the appropriate to cause the matter to be set before us. He argues that this decree makes the judgment provisional, and it was therefore never intended to be a final determination of permanent custody. We disagree. In Poole v. Poole, 41,960 (La.App. 2 Cir. 1/24/07), 948 So.2d 382, 385, the trial court rendered a judgment which contained a similar decree whereby the parties were prohibited from seeking review or modification of the judgment for one year. In that case, the judgment, which named Mr. Poole as the permanent domiciliary parent, contained orders which stated that custody was contingent upon Mrs. Poole behaving appropriately and receiving psychiatric care. Id. The second circuit viewed the judgment as an "interim custody order interlocutory in nature." Id. In finding that the judgment was interlocutory in nature, the second circuit in Poole found that the award of permanent domiciliary status to Mr. Poole was contingent upon Mrs. Poole doing certain things. In this case, however, both Eric and Emily 729 Silbernagel were awarded equal physical custody of Matthew. Moreover, the April 2006 judgment stated that "if there is a demonstrated on-going problem with Mrs. Silbernagel in the areas of the factors listed above . . . we will consider a change from joint to sole custody in favor of Mr. Silbernagel." Unlike Poole, the provision in the Silbernagels' preexisting judgment did not make custody contingent upon either of the parties doing something. It simply provided that if the problem persisted, custody would be revisited. Furthermore, the Poole court determined that the judgment in that case was not final due to the absence of a trial on the merits. Id. In this case, however, a full trial on the merits took place. Therefore, we find that the judgment rendered on April 7, 2006, was a final considered decree which requires Eric Silbernagel to meet the heightened Bergeron standard to justify any modification thereof. First and Third Assignments of Error Turning to the merits of the case, in her first and third assignments of error, Emily Silbernagel contends that the trial court erred by removing her as the domiciliary parent and designating the parties as co-domiciliary parents and by modifying the visitation schedule from alternating seven-day periods. Because the trial court modified a considered decree, Eric Silbernagel, the proponent of change must meet the heightened Bergeron standard to show that the modification was warranted. Failure to meet this burden will result in the reversal of the trial court's ruling. The burden of proof enunciated in Bergeron is two-fold. First, Eric Silbernagel must prove that a material change in circumstances has occurred. If successfully proven, he must then show that maintaining the April 2006 judgment is so deleterious to Matthew or that any harm likely to be caused by modifying the judgment is substantially outweighed by its advantages to Matthew. We initially note, as Emily Silbernagel does in her brief, that the parties are physically in the same situation today as they were when the matter was last litigated in 2006. Matthew still travels the highway approximately 1,080 miles per month and Emily Silbernagel and Eric Silbernagel are still with their same respective employers. At the time of the April 2006 judgment, however, Emily Silbernagel had only been making the commute for four to six months and was of the opinion that the drive was manageable. But at the August 2009 hearing, she testified that through the passage of many years, she realizes the continuous drive endangers Matthew's life. Eric Silbernagel also agrees that the drive is dangerous for Matthew. We find that this appreciation of the gravity of the danger, which did not previously exist, constitutes a material change of circumstances in this case. A further material change of circumstances is Matthew's maturity over the years and all that it entails. Matthew began making the commute when he was only six-years oldat a time when he was not very involved in many after-school or social activities. As he has matured, however, his interest in these types of activities has piqued. The testimony indicates that Matthew has expressed an interest in many sports but was not enrolled due to concerns of whether he would be able to attend all the practices and games. Eric Silbernagel testified that Matthew played soccer for approximately two years but had to stop because Emily Silbernagel stated that it became too difficult to bring Matthew back and forth. Eric Silbernagel testified that Matthew missed two of his school's quarterly 730 sock hops. According to his testimony, Matthew said he missed those sock hops because his mother would not bring him because they were on the weekends at night time. From 2006-2009, Matthew had 17 unexcused absences and 13 tardies. Despite this however, Matthew's performance at school did not suffer. We must note that Matthew was in elementary school during that time period. He will soon enter high school where his schedule will increasingly become more challenging. Excessive absences and tardiness in the secondary school environment will place his current success at risk. Taking into account the totality of the circumstances, we find that a material change in circumstances has occurred such that the continuation of the April 2006 custody agreement would be deleterious to Matthew and that modification thereof was warranted. First, we find that the constant drive between Houma and Metairie places Matthew in continuous danger as evidenced by the accident he has already been involved in. More importantly, Matthew is being deprived of the very essence of his youth. At six-years old, his world consisted primarily of being surrounded by his family. Now, at eleven, Matthew's world has gotten bigger. He is interested in sports as well as attending other social events with his friends. But because of the commute, he is forced to miss this very important part of his adolescence. Finally, Matthew is excessively absent from and tardy to school. Though this is not presently presenting a problem, it will create a challenge in the future as his school workload becomes more rigorous. A trial court's determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Silbernagel, supra, at 17. Accordingly, we find that Eric Silbernagel has met the heightened Bergeron standard and that the trial court did not abuse its discretion in modifying the April 2006 judgment. Second Assignment of Error In her second assignment of error, Emily Silbernagel contends that the trial court erred in ordering Matthew to remain at St. Louis King of France school. As this Court previously stated, "a child's successful continuation of his or her education in a proven academic environment is generally found to be in his or her best interest." Silbernagel, supra at 19. (citations omitted). During the trial, Emily Silbernagel, Eric Silbernagel, and Mr. Levin testified that Matthew was thriving at St. Louis King of France and that he was on the Beta Honor Roll. We thus find no error in the trial court's ruling ordering Matthew to remain at St. Louis King of France school. CONCLUSION For the foregoing reasons, the judgment of the trial court ordering Matthew's continued attendance at St. Louis King of France school is affirmed. The portion of the judgment naming Eric Silbernagel and Emily Silbernagel as co-domiciliary parents is affirmed. The portion of the judgment ordering Matthew to attend school from Eric Silbernagel's house when Emily Silbernagel does not have to work in New Orleans is also affirmed. The other portions of the judgment were not appealed. AFFIRMED NOTES [1] Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986). [2] Emily Silbernagel's rule was dismissed because Jefferson Parish retained exclusive continuing jurisdiction. La. R.S. 13:1814(A)(1) provides: "Except as otherwise provided in R.S. 13:1816, a court of this state which has made a child custody determination consistent with R.S. 13:1813 or 1815 has exclusive, continuing jurisdiction over the determination until a court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships." [3] Although Emily Silbernagel testified that Matthew may have missed school due to illnesses, the absentee report generated by Matthew's school indicates that all of the absences were unexcused.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2494273/	57 So. 3d 576 (2011) Hubert ROUGEAU, Jr. v. GOTTSON CONSTRUCTION CO., et al. No. 10-1082. Court of Appeal of Louisiana, Third Circuit. February 9, 2011. 577 Michael B. Miller, Attorney at Law, Crowley, LA, for Plaintiff/Appellee, Hubert Rougeau, Jr. Jeremy Berthon, Johnson, Stilner & Rahman, Baton Rouge, LA, for Defendants/Appellants, Louisiana Workers' Compensation Corp., Gottson Construction Co. Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges. GREMILLION, Judge. In this workers' compensation matter, the defendants/appellants ask us to reverse the awards to plaintiff/appellee of "reasonable and necessary medical treatment," penalties and attorney fees, and the amount of attorney fees, $12,600.00. For the reasons that follow, we affirm. FACTS Hubert Rougeau was employed by Gottson Construction Company as a roustabout-mechanic on February 23, 2009, when the drive shaft from a truck fell from a jack onto his left shoulder and elbow. Gottson denied the accident occurred as 578 Rougeau claimed and that he was injured. Rougeau pursued a disputed claim for compensation against Gottson. After trial, the WCJ found that Rougeau was injured as he claimed. Rougeau was awarded temporary total disability benefits of $393.09 per week beginning February 23, 2009, "reasonable and necessary medical treatment," a penalty of $2,000.00 for Gottson's failure to pay weekly indemnity benefits, a $2,000.00 penalty for failure to pay Rougeau's medical expenses, plus attorney fees of $12,600.00. ASSIGNMENTS OF ERROR Gottson and its insurer assign three errors: 1) the award of future medical expenses; 2) the award of penalties and attorney fees; and, 3) the amount of attorney fees. ANALYSIS Gottson maintains that an employer's liability for medical expenses does not arise until they are incurred. Rougeau counters that the employer is liable for all necessary medical and non-medical treatment, pursuant to La.R.S. 23:1203. He concedes that a workers' compensation claimant is not entitled to an award of future medical expenses, but that the right to pursue expenses is always reserved to the claimant. In this case, though, Rougeau disagrees with Gottson that the effect of the judgment is to render Gottson liable for future medical expenses. Nevertheless, Rougeau disagrees that the judgment should be altered because an employer not subject to a final, nonappealable, judgment who refuses medical treatment is not subject to penalties under La.R.S. 23:1201(G)[1] but rather under La. R.S. 23:1201(F); further, that the deletion of this provision of the judgment would force an unnecessary delay in having his claim for denied benefits heard by a WCJ; and lastly, that reserving the right to seek reimbursement only provides partial relief to the injured employee. Rougeau cites Wilson v. Ebasco Serv., Inc., 393 So. 2d 1248 (La.1981), for the proposition that claims for future medical treatment have been allowed. Rougeau distinguishes between claims for future medical treatment and claims for future medical expenses. In Wilson, one of the principal issues involved the employer's responsibility to issue a letter of financial responsibility to a pain clinic. Without the letter, the clinic would not admit Wilson into its pain unit program in which she hoped to learn pain coping skills. When clinic personnel contacted the employer's insurer, they were told that no such letter would be issued. Wilson then filed suit to force the issuance. The trial court sided with the employer's contention that the petition failed to state a cause of action. A long line of jurisprudence had held that liability for an employee's medical expenses only arises as those expenses are accrued. When the court of appeal affirmed the trial court's ruling, Wilson sought writs from the Louisiana Supreme Court, which 579 granted her application. The supreme court reversed, finding that the refusal to issue the letter of financial responsibility amounted to a refusal to furnish treatment pursuant to La.R.S. 23:1203. In the present matter the WCJ's judgment awards Rougeau reasonable and necessary medical treatment. This awards him nothing more than what is reserved to him as a matter of law. The right to seek reimbursement for reasonable and necessary treatment is provided for by La.R.S. 23:1203. According to La.Code Civ.P. art. 1841, a judgment may award any relief to which the parties are entitled. The law reserves the right to seek reimbursement for expenses of reasonable and necessary medical treatment. La.R.S. 23:1203. Gottson complains of the award of penalties and attorney fees. A workers' compensation claimant is entitled to attorney fees if an employer or insurer acts arbitrarily, capriciously, and without probable cause in withholding or terminating benefits; withholding benefits is not arbitrary and capricious when based on competent medical evidence. Courville v. Omni Drilling, 96-174 (La.App. 3 Cir. 7/10/96), 676 So. 2d 861, writ denied, 96-2073 (La.11/8/96), 683 So. 2d 276. The WCJ foundand the evidence demonstratedthat an incident involving Rougeau did occur on February 23, 2009. The details of the incident are disputed, but the essentials are not. Rougeau was assisting a mechanic, Brian Fogleman, remove a transmission from a truck. The driveshaft, which weighed 150 to 200 pounds, began to fall. Rougeau redirected the driveshaft from his chest and face with his left hand. In avoiding the shaft, Rougeau injured his elbow. Rougeau claimed that he notified Fogleman of the incident. Fogleman, whose testimony was presented by deposition, asserted that he did not learn of Rougeau's injury until two days later. That same day, February 25, Rougeau went to the emergency room at Jennings American Legion Hospital. The attending physician, Dr. David Hardey, noted that Rougeau's elbow was swollen. Rougeau was diagnosed with a contusion. The report stated that Rougeau was somewhat agitated when told that his elbow had not been fractured. On February 27, Rougeau saw Dr. Paul B. Stringfellow of Crowley, Louisiana. Dr. Stringfellow noted a history consistent with Rougeau's version of the accident. Dr. Stringfellow's records reflect his observation of a prominence of the left epicondyle. He diagnosed Rougeau with tendonitis. At the emergency room at Lake Charles Memorial Hospital on April 11, Rougeau was diagnosed with left epicondylitis. Rougeau sought no further treatment until he saw Dr. Robert Morrow, a Lafayette, Louisiana, orthopedic surgeon, on June 4, 2009. Dr. Morrow diagnosed Rougeau with post-traumatic left shoulder discomfort, left lateral and medial epicondylitis, and left upper extremity complex pain syndrome. He recommended a referral to a pain management specialist. He deemed Rougeau incapable of work for at least two months, from June 4 to August 4, 2009. Rougeau did not return to Dr. Morrow, apparently because Gottson refused to authorize a further visit. However, Rougeau did return to the emergency room at Lake Charles Memorial Hospital on June 20 with what those records describe as chronic elbow and shoulder pain. The personnel told Rougeau to follow up with his primary care physician and with pain management. The claims adjuster with Louisiana Workers' Compensation Corporation, Gottson's carrier, testified that she decided to deny Rougeau's claim because her recorded 580 statements of Rougeau, his co-workers, and her review of the medical records convinced her that Rougeau was not injured in the incident. In brief, Gottson points to a number of inconsistencies that it contends justified questioning Rougeau's veracity. According to Nelson v. Roadway Exp. Inc., 588 So. 2d 350, 355 (La.1991), "[a]n unjustified belief that an employee's injury did not result from an accident does not excuse failure to pay worker's compensation benefits." Penalties are stricti juris and should be imposed only if the facts clearly negate good faith and just cause in connection with the refusal to pay. Guillory v. Travelers Ins. Co., 294 So. 2d 215 (La.1974); Duncan v. State, 556 So. 2d 881 (La.App. 2 Cir.1990). Nevertheless, the WCJ has great discretion to award or deny penalties and attorney fees; his decision will not be disturbed absent abuse of that discretion. Id.; McKenzie v. City of Bossier City, 585 So. 2d 1229 (La.App. 2 Cir.1991). In the face of objective findings of injury by both Dr. Hardey at the emergency room at American Legion and Dr. Morrow in his examination of Rougeau, it was unreasonable for Gottson to deny that Rougeau was injured, absent indication of some other cause of the objective findings. By no means does the WCJ's award of penalties and attorney fees in the face of such evidence represent an abuse of his discretion. Gottson also complains that the WCJ awarded Rougeau an excessive amount of attorney fees. Rougeau's counsel presented the WCJ with an affidavit attesting to 56 hours of work he dedicated to Rougeau's cause. The $12,600.00 awarded Rougeau would reflect an hourly rate of $225.00 had Rougeau's counsel undertaken the work on such a basis. The court of appeal reviews the amount of an attorney fee award to determine whether the WCJ abused his discretion in awarding an amount that is unreasonable. Broussard v. West-Cal Const. Co., Inc., 676 So. 2d 743 (La.App. 3 Cir.1996). This amount seems high, but not abusively so. Rougeau answered the appeal and asks for additional attorney fees for work performed on appeal. We have long held that a worker who successfully defends and workers' compensation judgment on appeal is entitled to additional attorney fees. Therefore, we award Rougeau an additional $3,000.00 in attorney fees. CONCLUSION That the judgment includes an award of "reasonable and necessary medical treatment" merely affirms Rougeau's entitlement to such treatment. The judgment does not award Rougeau future medical expenses. The WCJ did not abuse his discretion in awarding Rougeau penalties and attorney fees, nor in the amount of attorney fees he awarded. The judgment of the WCJ is affirmed. Plaintiff/appellant, Hubert Rougeau, is awarded an additional $3,000.00 in attorney fees. All costs of this appeal are taxed to defendants/appellants, Gottson Construction Company and Louisiana Workers' Compensation Corporation. AFFIRMED. NOTES [1] "G. If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers' compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2514996/	193 P.3d 320 (2008) Constable Annette CLARK, Constable of Arcadia Biltmore (f/k/a East Phoenix Two) Justice Precinct, Plaintiff/Appellant, v. Honorable Colin CAMPBELL, Maricopa County Superior Court Judge; Honorable Barbara Rodriguez Mundell, Maricopa County Superior Court Judge; Honorable Michael Orcutt, Arcadia Biltmore (f/k/a East Phoenix Two) Justice Court; David R. Smith, County Administrative Officer; Joseph Arredondo, Constable; Don Calendar, Constable; Doug Middleton, Constable; Phil Hazlett, Constable; Murel Stephens, Constable; Gary Wilson, Deputy Constable; Robert White, Deputy Constable; John Powers, Constable; Gilbert Trejo, Deputy Constable, Defendants/Appellees. No. 1 CA-CV 07-0529. Court of Appeals of Arizona, Division 1, Department E. July 10, 2008. 321 Jones Skelton & Hochuli, PLC By Georgia A. Staton and Taylor C. Young, Phoenix, Attorneys for Plaintiff/Appellant. Terry Goddard, Attorney General, Phoenix, By Bryan E. Schmid, Assistant Attorney General, Tucson, Attorneys for Defendants/Appellees Colin Campbell and Barbara Rodriguez Mundell. Law Office of Dean Wolcott By Dean M. Wolcott, Phoenix, Attorneys for Defendants/Appellees Michael Orcutt, David R. Smith, Joseph Arredondo, Don Calendar, Doug Middleton, Phil Hazlett, Murel Stephens, Gary Wilson, Robert White, John Powers, and Gilbert Trejo. OPINION NORRIS, Judge. ¶ 1 In this appeal, we examine the supervisory authority a superior court presiding 322 judge has over justice court constables, whether that authority allows the presiding judge to impose disciplinary sanctions against a constable and, if so, what procedures a presiding judge must follow in taking such action. For the following reasons, we hold a presiding judge has supervisory authority to impose disciplinary sanctions against a constable but, in exercising that authority, the presiding judge must give the constable notice, an opportunity to be heard, and an explanation of why such discipline is necessary. FACTS AND PROCEDURAL BACKGROUND ¶ 2 In November 2000, Annette Clark was elected to a four year term as Constable for Maricopa County's East Phoenix # 2 Justice Precinct ("Precinct").[1] On May 16, 2002, the Maricopa County Justice System Coordinator wrote to the Constable Ethics Committee[2] and informed it that, after Clark took office on January 1, 2001, "[c]itizens, litigants and public employees" had made regular formal and informal complaints to Maricopa County about Clark's "lack of professionalism, rudeness toward county and court staff as well as citizens, and a lack of diligence in performing her duties." ¶ 3 On July 23, 2002, the Constable Ethics Committee announced it had reprimanded Clark "for misconduct in office and other violations of the Code of Conduct for Constables" and "voted to urge Ms. Clark to retire from office" (the "Reprimand"). See A.R.S. § 22-136(D). ¶ 4 On August 2, 2002, Maricopa County Superior Court Judge Cathy M. Holt issued an Injunction Against Workplace Harassment ("Injunction") against Clark. The Injunction prohibited Clark from entering the East Phoenix #2 Justice Court ("Justice Court") building except "to retrieve or pick up documents for service or to return documents that have been served or to ask questions re: same of Judge Michael Orcutt." It also prevented her from communicating with certain Justice Court staff members. As a result, Clark's office was relocated to another justice court building. In January 2003, the superior court amended the Injunction to prevent Clark from entering the Justice Court building and ordered Maricopa County to transport all legal process for service, returned process, and any other documents between Clark's new office and the Justice Court building. ¶ 5 Several months later, relying on A.R.S. § 22-131(A) (Supp.2007),[3] the Honorable Colin Campbell, as the Presiding Judge of the Maricopa County Superior Court ("Presiding Judge"), advised Clark her services in attending the Justice Court would not be needed and the Justice Court would no longer be directing any process to her for service. His letter, dated October 14, 2003, stated in full: Pursuant to A.R.S. § 22-131(A), you are hereby noticed that for the duration of your term as Constable, your services in attending the East Phoenix Two Justice 323 Court are no longer required. The Court will no longer be directing to you any process or notice for service or return. The next day, Maricopa County's Administrative Officer wrote to Clark: We have been advised by the Maricopa County Superior Court that effective this date your services are no longer required by them in serving court documents in Maricopa County. You are being personally served the Maricopa County Superior Court directive and this letter by the Maricopa County Sheriff's Office. As a result of the Court's action, you are hereby ordered to surrender all items of County property including but not limited to: 2 metal Constable badges, Any and all County issued identification cards, Pagers, and Any documents and court papers previously issued to you by the Maricopa County courts, including those documents previously served and those pending service. Effective today, your access to County facilities will be limited to that of the general public. ¶ 6 Consistent with these letters, on October 17, 2003, the Presiding Judge issued Administrative Order No. 2003-102: The Court having determined that process for East Phoenix Justice Court Number Two need not be served by Constable Annette Clark, her services not being required, IT IS ORDERED: Constable Clark shall return all process, court logs required to be kept pursuant to statute and paperwork on court matters to Betty Adams, the Constable Administrator, immediately, but no later than noon on Tuesday, October 21, 2003. ¶ 7 Clark continued to receive her salary while interim constables performed her duties. On November 2, 2004, Clark was re-elected for another four year term as Constable. On November 30, 2004, the Presiding Judge again wrote to Clark: Pursuant to A.R.S. § 22-131(A), you are hereby notified that your services in attending the East Phoenix Two Justice Court are not required during your next term of office commencing January 1, 2005. The Court will not direct to you any process or notice for service or return. Should the situation change, we will notify you. ¶ 8 After the Maricopa County Attorney's Office denied Clark's request to bring a quo warranto action on her behalf, Clark filed a complaint in quo warranto in her own name. See A.R.S. §§ 12-2042, -2043 (2003) (if county attorney refuses to bring action in quo warranto, party may petition the court to accept action brought in own name). Clark named the Presiding Judge as a defendant. Additionally, she named as defendants the Presiding Justice of the Peace for the Precinct, the Maricopa County Administrative Officer, and seven constables and deputy constables who were performing her duties (collectively, "County Defendants"). She alleged the Presiding Judge and certain of the County Defendants had "deprived [her] from her duly elected position as Constable ... without legal cause or due process." ¶ 9 The Presiding Judge moved to dismiss Clark's complaint asserting Clark was not entitled to bring a quo warranto action. The County Defendants joined the Presiding Judge's motion and also asserted Clark had failed to state a claim because she still held the office of constable. Before the court could rule on the pending motions, Clark moved for summary judgment and essentially asserted the Presiding Judge and the County Defendants had constructively removed her from office without authority to do so and in violation of her right to due process. After the parties filed additional motions and memoranda addressing these and related issues, the superior court[4] dismissed the complaint, reasoning it did not have jurisdiction because Clark's complaint was in essence a lateral appeal from the superior court's Injunction and the Presiding 324 Judge's Administrative Order. Clark appealed. ¶ 10 In a memorandum decision, we concluded the superior court had jurisdiction over Clark's action because she was "challeng[ing] the propriety of the presiding judge's directives regarding the East Phoenix No. 2 constable position." Clark v. Campbell, 1 CA-CV 05-0301, at 14, ¶ 29 (Ariz.App. June 29, 2006) (mem.decision) ("Clark I"). We also expressed general agreement with the Presiding Judge's argument that "if [the presiding judge] determines that a court official, including an elected official, is not doing the job adequately, his administrative duties require him to take corrective action." Id. at 12, ¶ 28 (internal quotation marks omitted). We did not decide whether the actions taken by the Presiding Judge regarding Clark ("the supervisory actions") exceeded the scope of his supervisory authority. We remanded for further proceedings. ¶ 11 On remand, Clark amended her complaint to request special action and declaratory relief alleging the Presiding Judge had acted arbitrarily, capriciously, and outside his legal authority in taking the supervisory actions.[5] In addition, she asked the court to enjoin the Presiding Judge and the County Defendants "from interfering with the performance of [her] duties" as constable. ¶ 12 Clark eventually moved for summary judgment and argued the Presiding Judge had no authority to take the supervisory actions against her and had done so in violation of her due process rights to notice and an opportunity to be heard. ¶ 13 In response, the Presiding Judge argued he had been granted administrative supervision over the justice of the peace courts within Maricopa County and, pursuant to that authority, was authorized to supervise both the operations of the justice courts and their personnel, including Clark. Although the Presiding Judge did not provide the court with any evidence he had implemented the supervisory actions because of any complaints about or problems with Clark, he nevertheless argued the supervisory actions were appropriate, relying on the Injunction, complaints received by Maricopa County about Clark, and the Reprimand. He also asserted Clark was not entitled to any due process protections because she did not have a property right to her office. The County Defendants also opposed Clark's summary judgment motion and asserted they had no legal or administrative authority to direct or permit Clark to return to her duties as constable. ¶ 14 Treating the separate responses filed by the Presiding Judge and the County Defendants as cross-motions for summary judgment, the superior court denied Clark's motion and granted the Presiding Judge and County Defendants summary judgment. In so doing, it held, inherent in his administrative supervision of the justice courts, the Presiding Judge had been authorized "to direct whether Constable Clark would attend the [East Phoenix #2] Justice Court and whether any notices and processes would be directed or delivered to her." Although noting the Presiding Judge had not stated any reasons for taking the supervisory actions, the court found "the only reasonable inference [wa]s that" the Injunction and Reprimand had "contribute[d] heavily to Judge Campbell's decision to take the action at issue" and that his actions were not "arbitrary, capricious, or an abuse of discretion." Finally, the court rejected Clark's due process argument finding she did not have a property right in her elected position or in performing the duties she had been elected to perform and she had not been removed from office because she had continued to hold her title and collect her salary. ¶ 15 Clark appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21 and -2101 (2003). DISCUSSION ¶ 16 On appeal, Clark argues the superior court should not have granted summary 325 judgment against her because the Presiding Judge exceeded his authority in taking the supervisory actions. She also argues, even if the Presiding Judge had the authority to take the supervisory actions, he violated her procedural due process rights because he failed to give her notice, an opportunity to be heard, and acted "for no stated reason." Finally, she contends the court should not have granted the County Defendants summary judgment because they were necessary parties for her quo warranto and special action claims. The arguments Clark raises in this appeal are questions of law, and so our review is de novo. Midland Risk Mgmt. Co. v. Watford, 179 Ariz. 168, 170, 876 P.2d 1203, 1205 (App.1994). I. Authority of the Presiding Judge ¶ 17 In Clark I, we recognized that generally a presiding judge is empowered to take "corrective action" when he or she determines that a court official, including an elected official, is not adequately doing his or her job. See supra ¶ 10. The question now before us is whether this power includes the supervisory actions taken by the Presiding Judge when, as the elected constable for the Justice Court, Clark was statutorily entitled to attend the Justice Court and serve its process. We hold the Presiding Judge was empowered to take the supervisory actions pursuant to statutory and constitutional authorities. ¶ 18 In Arizona, the office of constable is a legislative creation. A.R.S. § 22-102 (2002); Barrows v. Garvey, 67 Ariz. 202, 204, 193 P.2d 913, 914 (1948). Although the Arizona Constitution requires a constable's salary to be fixed and definite, Ariz. Const. art. 22, § 17, it is the Legislature that has established the qualifications for holding the office, A.R.S. § 11-402 (2001), construed in Nicol v. Superior Court, 106 Ariz. 208, 209, 473 P.2d 455, 456 (1970), its term, A.R.S. § 22-102, and its duties, A.R.S. § 22-131(A). These duties require constables to attend the justice courts and to serve process directed or delivered to them by the justices of the peace. A.R.S. § 22-131(A). Historically, the office of constable has been linked with the office of sheriff. Op. Ariz. Att'y Gen. I84-167, at n. 3; 80 C.J.S. Sheriffs & Constables § 20 (2000). The Legislature has recognized the connection between these offices as it has directed "[t]he provisions of law relating to sheriffs, as far as applicable, shall govern the powers, duties and liabilities of constables." A.R.S. § 22-131(D). ¶ 19 The Legislature did not leave the duties of a constable unsupervised. The Legislature provided, in the last sentence of A.R.S. § 22-131(A), that "[i]n addition to any other provision of law these duties may be enforced by the presiding judge of the superior court in the county, including the use of the power of contempt." This enforcement authority does not mean, as Clark argues, that a presiding judge may only take steps that will compel a constable to attend a justice court or serve its process. The power to enforce a constable's performance of his or her duties necessarily includes the power to ensure that the constable is properly performing these duties and, when he or she is not, to take corrective action. ¶ 20 A presiding judge also has supervisory authority over constables pursuant to the Arizona Constitution. The state constitution grants the supreme court "administrative supervision over all the courts of the State." Ariz. Const. art. 6, § 3. The supreme court has authorized each county's presiding judge to "exercise administrative supervision over the justice of the peace courts in their counties." Ariz. Sup.Ct. Admin. Order No. 96-32. Administrative "[c]onnotes of or pertains to administration, especially management, as by managing or conducting, directing, or superintending, the execution, application or conduct of persons or things. Particularly, having the character of executive or ministerial action. In this sense, administrative functions or acts are distinguished from such as are judicial." In re Shannon, 179 Ariz. 52, 76, 876 P.2d 548, 572 (1994) (quoting Black's Law Dictionary 42 (5th ed.1979)) (emphasis in original). This administrative supervision includes the power to "manag[e] the conduct of court personnel." Id.[6] 326 ¶ 21 The duties of a constable, while more limited, closely resemble and, as discussed above, are historically linked to another county officer, the sheriff. Both the Arizona Supreme Court and this court have recognized that a sheriff, when carrying out certain of the statutory duties of the office, is acting as an officer of the court. State ex rel. Andrews v. Superior Court, 39 Ariz. 242, 248-49, 5 P.2d 192, 195 (1931); Arpaio v. Baca, 217 Ariz. 570, 579, ¶ 27, 177 P.3d 312, 321 (App.2008); see also A.R.S. § 11-441(A)(4), (7) (Supp.2007) (sheriff is required to "[a]ttend all courts ... [as] requested by the presiding judge" and to "[s]erve process and notices in the manner prescribed by law"). When a constable attends a court and serves process as directed by a court, the constable, like a sheriff, is acting as an officer of the court. Therefore, the court "has jurisdiction either to exercise control over the act or to discipline the officer for doing or not doing it." Andrews, 39 Ariz. at 248-49, 5 P.2d at 195. Such control and discipline extends to directing when a constable is to attend a justice court and whether a constable is to serve process on behalf of the court. ¶ 22 The scope of the court's power over its own officers was addressed by the supreme court in Merrill v. Phelps, 52 Ariz. 526, 84 P.2d 74 (1938). Although in Merrill the supreme court examined the interplay between the authority of a superior court judge and a county sheriff, given that a sheriff and a constable both act as officers of the court in carrying out certain duties, Merrill is instructive. ¶ 23 In Merrill, the court was confronted with one statute requiring a sheriff to "attend" certain courts within the county and obey their "lawful" orders and directions and another statute which allowed the court to direct the sheriff to provide "suitable and sufficient" attendants if not otherwise provided by the county. Id. at 530-31, 84 P.2d at 76-77. Describing the sheriff as the "executive arm of the court," the court held the sheriff's selection of his deputies was not within the jurisdiction of the court. Id. at 531, 84 P.2d at 77. Although the sheriff was, thus, entitled to select the deputies to attend the court, the supreme court nevertheless held the court, not the sheriff, had the right to determine if the attendants selected by the sheriff were "suitable and sufficient." Id. at 533, 84 P.2d at 78. The court went on to state: we think it follows impliedly from the statute that the judge, when the attendants are provided, has the sole and exclusive jurisdiction of determining how many these attendants shall be, and they must act in accordance with his direction while in attendance upon the court, regardless of the instructions of any other person whatever, and if they do not so act, to the satisfaction of the judge, they are not "suitable and sufficient for the transaction of business" of the court, and he may require that other attendants be provided satisfactory to him. Id. at 534, 84 P.2d at 78. ¶ 24 In so holding, the court rejected the argument that to permit one public officer, the sheriff, to appoint court attendants who would then be subject to the exclusive control of another officer, the judge, would "give rise to such a conflict in authority" as to "hamper the court in the performance of its duty." Id. at 535, 84 P.2d at 78. The court explained it "must assume that a sheriff will at all times consult the judge in regard to the choice of the personnel who are to be attendants upon the court, and that the judge will 327 not unreasonably reject any attendant selected by the sheriff." Id. Thus, the ultimate responsibility for determining whether a court officer was suitable rested with the court, even though the court officer had been selected by an officer in another branch of government. ¶ 25 In Mann v. Maricopa County, 104 Ariz. 561, 563, 456 P.2d 931, 933 (1969), our supreme court reaffirmed its conclusion that the judiciary "has the power of control of personnel ... working directly in connection with the administration of justice." There, a county board of supervisors rejected a request by the court to allow a bailiff and a probation officer to continue working past the statutory retirement age applicable to county employees. Id. at 562-63, 456 P.2d at 932-33. The supreme court concluded that because the judiciary had the inherent power to control the "personnel directly connected with the operation of the Courts," the board of supervisors had a duty to approve the court's request absent a showing the request had been made unreasonably, arbitrarily, and capriciously. Id. at 566, 456 P.2d at 936. This inherent power, the court explained, was grounded on our tripartite system of government: It is an ingrained principle in our government that the three departments of government are coordinate and shall cooperate with and complement, and at the same time act as checks and balances against one another but shall not interfere with or encroach on the authority or within the province of the other. The legislative and executive departments have their functions and their exclusive powers, including the "purse" and the "sword." The judiciary has its exclusive powers and functions, to wit: it has judgment and the power to enforce its judgments and orders.... it is the genius of our government that the courts must be independent, unfettered, and free from directives, influence, or interference from any extraneous source. It is abhorrent to the principles of our legal system and to our form of government that courts, being a coordinate department of government, should be compelled to depend upon the vagaries of an extrinsic will. Such would interfere with the operation of the courts, impinge upon their power and thwart the effective administration of justice. Id. at 564-65, 456 P.2d at 934-35 (quoting Smith v. Miller, 153 Colo. 35, 384 P.2d 738, 741 (1963)). ¶ 26 Although the voters selected Clark, based on authority granted by the Legislature and the supreme court as allowed by the Arizona Constitution, the Presiding Judge had both the right and the responsibility to exercise supervisory authority over Clark and was empowered to determine whether she was properly performing the statutory duties required of her in her capacity as an officer of the court. By the same authority, the Presiding Judge had the power to take appropriate and reasonable disciplinary action if she was not. Such action could properly include the supervisory actions at issue here. II. Notice, an Opportunity to be Heard, and an Explanation ¶ 27 Clark next argues that even if the Presiding Judge was empowered to take the supervisory actions, he should not have done so without giving her basic due process protections: notice and an opportunity to be heard. She also argues that because the Presiding Judge failed to explain why he had decided to take the supervisory actions, the superior court was in no position to find, as it did, that the Injunction and Reprimand "contribute[d] heavily" to the Presiding Judge's decision to act. Accordingly, Clark asserts the Presiding Judge's decision to implement the supervisory actions must be considered arbitrary and capricious, in violation of her due process rights. ¶ 28 To sustain her due process claim Clark must establish she was deprived of a property interest protected by state law. Baker v. Ariz. Dep't of Revenue, 209 Ariz. 561, 567, ¶ 25, 105 P.3d 1180, 1186 (App. 2005). Our supreme court has recognized that an elected official "has no vested right in the office which he holds." Ahearn v. Bailey, 104 Ariz. 250, 254, 451 P.2d 30, 34 (1969) (quoting State ex rel. Bonner v. District Court, 122 Mont. 464, 206 P.2d 166, 169 328 (1949)) (internal quotation marks omitted).[7] Thus, the "concept [of due process] does not protect the right to hold [elected] office." Mecham v. Gordon, 156 Ariz. 297, 302, 751 P.2d 957, 962 (1988).[8] Although we agree Clark did not "own" her office but held it "in the interest and for the benefit of the people," Ahearn, 104 Ariz. at 254, 451 P.2d at 34 (quoting Bonner, 206 P.2d at 169), the Presiding Judge should have given Clark notice and an opportunity to be heard before taking the supervisory actions and, then, an explanation of the reasons for his actions. When a court exercises administrative supervision over officers of the court and court operations, it must act reasonably, with due regard for the authority and duties of these officers. Merrill recognized this precise point. ¶ 29 When examining the relationship between the sheriff and the court, the Merrill court repeatedly emphasized the obligation of the court to act reasonably when reviewing the suitability of the deputies selected by the sheriff. The sheriff must provide deputies "to the reasonable satisfaction of the judge," Merrill, 52 Ariz. at 534, 84 P.2d at 78, and only if "the court is of the reasonable opinion that the attendants so provided are not sufficient in number or suitable in character [can it] demand that sufficient and suitable attendants be provided." Id. at 537, 8 P.2d at 79. This reasonableness requirement extends to the relationship between the presiding judge and a constable and requires the presiding judge to act reasonably when reviewing a constable's performance of his or her duties as an officer of the court. ¶ 30 Merrill does not stand alone. In a series of cases involving controversies and conflicts between courts and counties regarding the selection of or funding for court personnel, our supreme court and this court have made it abundantly clear that courts must act reasonably, must follow reasonable county procedures for filling vacancies and in making funding requests, and must pursue "reasonable avenues of cooperation and compromise." Maricopa County v. Tinney, 183 Ariz. 412, 414, 904 P.2d 1236, 1238 (1995); see also Maricopa County v. Dann, 157 Ariz. 396, 758 P.2d 1298 (1988); Deddens v. Cochise County, 113 Ariz. 75, 546 P.2d 811 (1976); Broomfield v. Maricopa County, 112 Ariz. 565, 544 P.2d 1080 (1975); Birdsall v. Pima County, 106 Ariz. 266, 475 P.2d 250 (1970); Roylston v. Pima County, 106 Ariz. 249, 475 P.2d 233 (1970); Mann v. County of Maricopa, 104 Ariz. 561, 456 P.2d 931 (1969); Lockwood v. Bd. of Supervisors of Maricopa County, 80 Ariz. 311, 297 P.2d 356 (1956); Powers v. Isley, 66 Ariz. 94, 183 P.2d 880 (1947); Reinhold v. Bd. of Supervisors of Navajo County, 139 Ariz. 227, 677 P.2d 1335 (App.1984). In all respects, the touchstone is reasonableness. ¶ 31 Although these cases focused on the relationship between separate, albeit interconnected, branches of government, their larger message is the same as in Merrill and is appropriate here: in exercising administrative supervision over a constable, a presiding judge must act reasonably, with *329 due regard for the authorities and duties of the constable. Providing notice, an opportunity to be heard before implementation of disciplinary action,[9] and an explanation of why that action is necessary is, in our view, not only consistent with a presiding judge's obligation to act reasonably but is also a measure of its exercise. ¶ 32 The procedures a presiding judge must take when implementing corrective action over a constable are required for additional reasons: notice and an opportunity to be heard ensure governmental transparency and accountability. The public has a right to know how their constables are performing the duties of their office, and how those duties and their performance are being supervised and disciplined by the presiding judge. And, requiring the presiding judge to explain in a sufficiently detailed manner why he or she has taken corrective action also ensures transparency and accountability by allowing for meaningful judicial review. As we have explained: Requiring findings of basic facts by an administrative agency assures more careful administrative consideration, protects against careless and arbitrary action, assists parties in planning their cases for rehearing and judicial review and keeps such agencies within their jurisdiction. Civil Serv. Comm'n of Tucson v. Livingston, 22 Ariz.App. 183, 188, 525 P.2d 949, 954 (1974). Although we made these observations in the context of an administrative appeal from an agency ruling, they are equally applicable here. ¶ 33 The Presiding Judge implemented the supervisory actions without notice to Clark, without giving Clark an opportunity to be heard, and without explaining why he acted as he did. On review, the superior court inferred reasons for the supervisory action. See supra ¶ 14. That inference was not based on any evidence that the Presiding Judge had implemented the supervisory actions because of the Injunction, the Reprimand, or because of any complaints about Clark. For all these reasons, the Presiding Judge was not entitled to summary judgment. III. County Defendants ¶ 34 On appeal, Clark argues the County Defendants were also not entitled to summary judgment because her quo warranto and special action claims made them necessary parties. In response the County Defendants essentially argue we should affirm summary judgment in their favor because they did not take the supervisory actions, only the Presiding Judge did, and therefore, they have "no business" in this litigation. We agree. ¶ 35 The focus of Clark's complaint concerned the supervisory actions taken by the Presiding Judge. The County Defendants did not take those actions. Although the County Defendants provided constable services to the court in Clark's absence, they did not act in excess of their jurisdiction because they had no jurisdiction to exercise over Clark. CONCLUSION ¶ 36 For the foregoing reasons, we hold the supervisory actions were within the supervisory authority granted to the Presiding Judge. However, this supervisory authority must be exercised reasonably and, thus, Clark should have received notice and an opportunity to be heard followed by an explanation of the reasons for the supervisory actions. ¶ 37 We therefore reverse summary judgment in favor of the Presiding Judge and, as against him, remand for further proceedings consistent with this opinion. We affirm, however, summary judgment in favor of the County Defendants. CONCURRING: SHELDON H. WEISBERG, Presiding Judge, and MAURICE PORTLEY, Judge. NOTES [1] The precinct is now known as the Arcadia Biltmore Justice Precinct. [2] The Constable Ethics Committee, established by the Legislature in 2001, investigates complaints involving a constable's ethical or personal behavior. Under Arizona Revised Statutes ("A.R.S.") section 22-136(D) (2002), the Committee was authorized to "attempt" to remedy a constable's inappropriate behavior by, inter alia, "[i]ssuing warnings, reprimands or admonishments" and "[u]rging a constable to retire from office." A.R.S. § 22-136 was amended in 2006 and 2007. 2007 Ariz. Sess. Laws, ch. 143, §§ 4-5 (1st Reg.Sess.); 2006 Ariz. Sess. Laws, ch. 208, § 2 (2d Reg.Sess.). The 2007 amendment renamed the Constable Ethics Committee and recodified subsection D, incorporating it in subsection A of the newly added A.R.S. § 22-137 (Supp.2007). 2007 Ariz. Sess. Laws, ch. 143, §§ 4-5. [3] With the exception of our citation to A.R.S. § 22-136, see supra note 2, we cite to the current version of all statutes cited herein because no modifications material to our decision have been made. A.R.S. § 22-131(A) states in full: Constables shall attend the courts of justices of the peace within their precincts when required, and within their counties execute, serve and return all processes and notices directed or delivered to them by a justice of the peace of the county or by competent authority. In addition to any other provision of law these duties may be enforced by the presiding judge of the superior court in the county, including the use of the power of contempt. [4] Although this action remained in the Superior Court of Maricopa County, that court transferred the case for reassignment to judges from Pinal County. [5] Judge Barbara Rodriguez Mundell replaced Judge Colin Campbell as Presiding Judge of Maricopa County in July 2005. Clark's amended complaint added Judge Mundell as a necessary party to the litigation. Because the supervisory actions were taken by Judge Campbell, we use the male pronoun in this opinion. [6] In 2002, the supreme court issued Administrative Order No. 2002-67 to increase the uniformity and effectiveness of case and financial management in the limited jurisdiction courts of Maricopa County. The supreme court suspended the administrative duties of the county's Presiding Justice of the Peace and specifically authorized Presiding Judge Colin Campbell "to enter orders to make personnel, management or organizational changes to Justice Court Administration as he deems necessary to accomplish the directives and goals of [the] administrative order." Ariz. Sup.Ct. Admin. Order No. 2002-67, at 2. In 2006, the supreme court revested certain general administrative duties in the Presiding Justice of the Peace of Maricopa County and reaffirmed the Presiding Judge's general administrative supervision over the justice courts. Ariz. Sup.Ct. Admin. Order No. 2006-56. On July 1, 2008, the supreme court "expand[ed] the day-to-day authority and responsibilities exercised by Justices of the Peace" in Maricopa County and again reaffirmed the Presiding Judge's "administrative supervision over all courts in the County," including the justice courts. Ariz. Sup.Ct. Admin. Order No. 2008-59, at 1, 2. [7] In support of her claim that elected officials are entitled to due process in disciplinary proceedings, Clark relies on In re Ackel, 155 Ariz. 34, 745 P.2d 92 (1987), overruled in part by In re Jett, 180 Ariz. 103, 882 P.2d 414 (1994). In Ackel, the Commission on Judicial Qualifications recommended permanent removal of an elected Justice of the Peace. Id. at 35, 745 P.2d at 93. The court found the judge's due process rights had been violated when two members of the Commission voted for his removal without reviewing all of the evidence. Id. at 39, 745 P.2d at 97. Clark's reliance on Ackel is misplaced. The judge in Ackel was not entitled to due process because he was an elected official but rather because the Rules of the Commission on Judicial Qualifications required he receive notice and a right to be heard. See Ariz. R. Comm'n Jud. Conduct 20-29. [8] Other courts have held that elected officials have a protectable property right in elected office so that the protections of due process apply. See Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir.1979); Gordon v. Leatherman, 450 F.2d 562, 565 (5th Cir.1971); City of Ludowici v. Stapleton, 258 Ga. 868, 375 S.E.2d 855, 856 (1989); Eaves v. Harris, 258 Ga. 1, 364 S.E.2d 854, 857 (1988). One commentator has noted that in so doing these courts have created a federal cause of action which means the "procedural aspects of a state's internal political administration" become subject to federal jurisdiction. Mark R. Fitzgerald, Comment, Should Elected Officials Have a Property Interest in Their Positions?, 1995 U. Chi. Legal F. 365, 366 (1995). [9] Because each situation will present its own unique circumstances, we do not mean to imply the presiding judge must conduct a formal hearing. Instead, it is within the sound discretion of the presiding judge to determine what kind of opportunity to be heard is appropriate under the circumstances.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2494624/	66 So.3d 342 (2011) CITIZENS PROPERTY INSURANCE CORPORATION, a Florida Government Entity, Appellant, v. ADMIRALTY HOUSE, INC., Appellee. No. 2D10-4967. District Court of Appeal of Florida, Second District. July 1, 2011. Rehearing Denied August 3, 2011. 343 J. Pablo Caceres and Lori A. Vella of Butler Pappas Weihmuller Katz Craig, LLP, Tampa, for Appellant. David J. Pettinato of Merlin Law Group, P.A., Tampa, for Appellee. CRENSHAW, Judge. Citizens Property Insurance Corporation appeals the circuit court's nonfinal order granting a motion by Admiralty House, Inc., the insured, to compel appraisal. Because a factual dispute exists as to whether the insured complied with the policy's postloss obligations, we reverse and remand for an evidentiary hearing on that issue. But contrary to Citizens' argument on appeal, we conclude that the insured did not waive its right to request appraisal because it has maintained a position consistent with the appraisal remedy. Lastly, we conclude that Citizens was entitled to an automatic stay under Florida Rule of Appellate Procedure 9.310(b)(2), because Citizens is a public body seeking to enforce a public right. Background In October 2005, the insured filed a claim with Citizens under its insurance policy seeking relief from damage caused by Hurricane Wilma. Citizens twice denied payment, finding that the damage to the property did not exceed the insured's deductible. In May 2007, the insured submitted an additional claim to Citizens for the hurricane damage repair costs, and Citizens issued a partial payment after applying the deductible. The insured next retained a public adjuster in April 2008 and demanded appraisal of the remaining damage pursuant to the policy. Citizens reopened the claim and requested that the insured submit a sworn statement in proof of loss and other supporting documentation. The insured then submitted a sworn proof of loss in June 2008 with the amount of loss "to be determined." Citizens responded with a letter rejecting the statement as incomplete. In May 2009, the insured submitted an additional proof of loss statement claiming a specified amount, but Citizens rejected this statement as untimely under the policy. Citizens also requested that the insured provide an examination under oath, any information or documents in support of the hurricane damages, and an inspection of the insured's books and records in accordance with the postloss obligations of the insurance policy. Citizens ultimately denied the insured's claim based on the insured's failure to comply with its obligations under the policy. In September 2009, the insured filed a two-count complaint against Citizens for breach of contract and declaratory judgment to determine, among other things, whether the insured had a right to demand appraisal under the policy. In July 2010, the insured filed a motion to compel appraisal and stay action pending appraisal. At the hearing on the motion, counsel for Citizens argued that an evidentiary hearing was required to determine whether the insured complied with its postloss obligations 344 such as submitting a timely proof of loss. Without taking evidence, the circuit court entered its order granting the insured's motion to compel appraisal and stay action pending appraisal. Postloss obligations Before a circuit court can compel appraisal under an insurance policy, it must make a preliminary determination as to whether the demand for appraisal is ripe. Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass'n 12 Inc., 54 So.3d 578, 581 (Fla. 3d DCA 2011). "Until these [postloss] conditions are met and the insurer has a reasonable opportunity to investigate and adjust the claim, there is no `disagreement' (for purposes of the appraisal provision in the policy) regarding the value of the property or the amount of loss" to be appraised. Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass'n, 48 So.3d 188, 191 (Fla. 3d DCA 2010). Here, the policy issued by Citizens provides in pertinent part the following conditions: 4. Your Duties After Loss. In case of a loss to covered property, you must: . . . . c. As often as we reasonably require: (1) Show us the damaged property; (2) Provide us with records and documents we request and permit us to make copies; and (3) Submit to examinations under oath while not in the presence of any other named insureds and sign the same. d. Send to us, within sixty (60) days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief: (1) The time and cause of the loss; (2) Your interest and that of all others in the Covered Property involved, and all liens on the Covered Property; (3) Other insurance which may cover the loss; (4) Changes in title or occupancy of the Covered Property during the term of the policy; (5) Specifications of damaged buildings and detailed repair estimates; (6) The inventory of damaged and undamaged personal property described in Condition number 4.b., Your Duties After Loss. Despite Citizens' argument that the insured failed to comply with its duties after loss, the circuit court failed to make the preliminary determination as to whether the insured's demand for appraisal was ripe. We therefore reverse the order compelling appraisal and remand for an evidentiary hearing on that issue. See generally Citizens Prop. Ins. Corp. v. Gutierrez, 59 So.3d 177 (Fla. 3d DCA 2011) (concluding that the trial court erred by prematurely ordering appraisal before determining whether the insureds complied with the policy's postloss provisions). We note that "[o]nce the trial court determines that a demand for appraisal is ripe, the court has the discretion to control the order in which an appraisal and coverage determinations proceed." Galeria Villas Condo. Ass'n, 48 So.3d at 191-92 (citing Sunshine State. Ins. Co. v. Rawlins, 34 So.3d 753, 754-55 (Fla. 3d DCA 2010)). Waiver Citizens argues that the insured waived its right to request appraisal by not pleading such relief and by aggressively litigating the case for ten months. We disagree and conclude that the insured did not waive its right to appraisal because it did not maintain a position inconsistent *345 with the appraisal remedy. Instead, the insured made a presuit demand for appraisal and then included as part of the complaint against Citizens a declaratory action to determine whether it was entitled to appraisal. Accordingly, "[t]here is no basis for a claim of waiver here, where the appraisal clause was invoked at the start of the litigation." Gonzalez v. State Farm Fire & Cas. Co., 805 So.2d 814, 818 (Fla. 3d DCA 2000). Automatic stay Lastly, we determine that Citizens was entitled to an automatic stay of the appraisal process during the pendency of this appeal under rule 9.310(b)(2).[1] Rule 9.310(b)(2) provides, in pertinent part, the following: Public Bodies; Public Officers. The timely filing of a notice shall automatically operate as a stay pending review. . . when the state, any public officer in an official capacity, board, commission, or other public body seeks review . . . . Under this rule, an automatic stay is self-executing upon the filing of the notice of appeal by a public body seeking review to enforce a public right. See Fouts v. Bolay, 769 So.2d 504 (Fla. 5th DCA 2000) (concluding that a public official was not entitled to an automatic stay because he was not enforcing a public right when seeking to appeal his ouster from office). We conclude based on the language of section 627.351(6)(a)(1), Florida Statutes (2010), that Citizens qualifies as a public body under rule 9.310(b)(2). The relevant portion of section 627.351(6)(a)(1) provides: The Legislature intends by this subsection that affordable property insurance be provided and that it continue to be provided, as long as necessary, through Citizens Property Insurance Corporation, a government entity that is an integral part of the state, and that is not a private insurance company. (Emphasis added.) See also Citizens Prop. Ins. Corp. v. Garfinkel, 25 So.3d 62, 64 (Fla. 5th DCA 2009) (concluding that Citizens was shielded by sovereign immunity for the purposes of bad faith claims because "it is explicitly clear that Citizens is not a private insurance company, but rather is a state body"). Further, Citizens' appeal seeks to enforce Citizens' public right or purpose of providing affordable property insurance and "providing service to policyholders . . . which is no less than the quality generally provided in the voluntary market." Accordingly, Citizens was entitled to an automatic stay under rule 9.310(b)(2). The order compelling appraisal is reversed and remanded for further proceedings consistent with this opinion. NORTHCUTT and VILLANTI, JJ., Concur. NOTES [1] We note that the motions to stay previously filed by Citizens in this court and in the circuit court requested a discretionary stay and failed to mention the automatic stay provision. We express no opinion on whether Citizens would be entitled to an automatic stay in an appeal of a money judgment, as described in rule 9.310(b)(1).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1138501/	658 So.2d 800 (1995) Vanessa LATULLAS, individually and on Behalf of her Minor Child v. The STATE of Louisiana, et al. No. 94 CA 2049. Court of Appeal of Louisiana, First Circuit. June 23, 1995. 801 Rhett R. Ryland and Frank L. Leteff, Baton Rouge, for plaintiff-appellant Nettie Elliot, in her capacity as the natural/legal tutrix of the minors, Crystal Latullas and Tia Monique Latullas, and on behalf of the Estate of Vanessa Latullas. Pamela J. LeBato, Litigation Div. Risk Management, Baton Rouge, for defendant-appellee State. George Elliot Brown, pro se. Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ. LOTTINGER, Chief Judge. In this action, plaintiff, a former inmate at Louisiana Correctional Institute for Women at St. Gabriel, seeks damages from the State, the prison warden, and a former prison security officer as a result of having been raped by the officer during her incarceration. Because plaintiff subsequently became pregnant and gave birth to a child, she contends that the obligation to support the child conceived by the rape was a damage proximately caused by defendants' acts. Plaintiff further asserts on behalf of her minor child a claim for emotional damages which will allegedly be incurred by the child due to the condition of her birth. Upon recommendation by the commissioner, the trial court found the security officer individually liable to plaintiff for damages and attorney fees. From a judgment dismissing the State and prison warden, plaintiff appeals. FACTS In August of 1985, plaintiff, Vanessa Latullas (Ms. Latullas), then 26 years of age, was incarcerated at Louisiana Correctional Institute for Women (LCIW) at St. Gabriel, Louisiana. The prison at LCIW is comprised of approximately 30 acres of which 15 acres are enclosed within a fenced compound. The prison grounds outside of the 15-acre compound are referred to as the "outside perimeter". Ms. Latullas was assigned to the line crew, a work detail comprised of approximately 15 to 20 women prisoners who were charged with maintaining the grounds of the outside perimeter. At all times relevant to this litigation, the line crew was supervised by Lieutenant George Elliott Brown (Lt. Brown), then a correctional security officer at LCIW. On the afternoon of August 19, 1985, Lt. Brown singled out Ms. Latullas and instructed her to ride with him to a group of semi-abandoned mobile homes located at the rear of the outer perimeter of the prison about 100 yards from the vocational school at LCIW. Ostensibly, Lt. Brown's purpose in taking Ms. Latullas to this remote location was to have her clean the trailer; however, once inside the trailer, Lt. Brown proceeded to rape Ms. Latullas. As a result of this rape, the minor child, Crystal Latullas[1] was conceived. Ms. Latullas did not report to the prison authorities that she had been raped by Lt. Brown, or even that she was pregnant. The prison authorities at LCIW were later advised of Ms. Latullas' condition upon their receipt of an OB-GYN report dated October 2, 1985. Ms. Latullas initially refused to disclose the identity of the father of her 802 unborn child; however, after speaking with an attorney, Ms. Latullas later said that Lt. Brown was the father of her child. On March 18, 1986, Ms. Latullas was granted a commutation of sentence, and released from LCIW on that date. She subsequently gave birth to a daughter, Crystal Latullas, on June 1, 1986. Ms. Latullas individually, and on behalf of her minor child, filed the instant suit on August 8, 1986, naming the State of Louisiana, Lt. George Elliott Brown, and Warden Johnny Jones (Warden Jones) as defendants. Based upon the allegations of her petition, Ms. Latullas sought to recover the sum of $250,000.00 in damages from defendants for the alleged sexual assault, fear, emotional distress, changes to her body, and violation of her constitutional rights. Ms. Latullas also sought $250,000.00 for damages and expenses related to her pregnancy and the future care, feeding, clothing, and schooling of her minor child. Additionally, Ms. Latullas, on behalf of her minor child, sought to recover for the future emotional damages which the "child will sustain as a result of the condition of his or her birth ...". Through blood tests for paternity performed in December, 1986, Lt. Brown was determined to be the father of Crystal Latullas. Prior to this time, Lt. Brown had denied any involvement with Ms. Latullas. Following receipt of these test results, the Department of Corrections brought disciplinary action against Lt. Brown which resulted in his dismissal. On October 21, 1987, Lt. Brown was informed that he would no longer be represented by the State in this matter. The State subsequently filed a cross-claim against Lt. Brown which was answered by a general denial. Ms. Latullas died on November 22, 1990, from injuries she received in a hit-and-run accident. On October 23, 1992, Nettie Elliot (Ms. Elliot), the mother of Ms. Latullas and the natural/legal tutrix of Ms. Latullas' minor children, Tia Monique Latullas and Crystal Latullas, was substituted as a party plaintiff in this matter. ACTION OF THE TRIAL COURT Through a motion filed on their behalf, Ms. Elliot sought to introduce Ms. Latullas' earlier deposition testimony in lieu of her testimony at trial. Over the objection of Lt. Brown's attorney[2], the commissioner allowed this evidence to be introduced. Following a hearing, Ms. Elliot and the State submitted post-trial briefs. The commissioner, in his written recommendations to the trial judge found that "Lt. Brown, through force and intimidation, engaged in sexual intercourse with Ms. Latullas" during her incarceration and as a result of this act, Ms. Latullas became pregnant with Lt. Brown's child.[3] For this reason, the commissioner recommended that Lt. Brown be cast for damages under 42 U.S.C. § 1983 and La.Civ.Code art. 2315 in the amount of $150,000.00 and attorney fees in the amount of $35,000.00 and for all costs. The commissioner further recommended that plaintiffs' claims against the State and Warden Jones be dismissed. The trial judge thereafter rendered judgment in favor of the plaintiffs against Brown, but dismissing the claims against the State and Warden Jones. From this judgment, Ms. Elliot has appealed. Lt. Brown has not appealed[4]; therefore, the judgment has become final as to him. 803 ASSIGNMENTS OF ERROR On appeal, Ms. Elliot sets forth six assignments of error which we feel can be summarized as follows: (1) The trial judge failed to hold all defendants liable under 42 U.S.C. § 1983; (2) The trial judge failed to hold the State and Warden Jones responsible under the theory of vicarious liability for the damages caused by Lt. Brown; (3) The trial judge failed to hold the State and Warden Jones responsible under a theory of independent negligence for the damages caused by Lt. Brown; and (4) The trial court failed to award child support as an item of damages. CLAIMS UNDER 42 U.S.C. § 1983 The first issue raised by Ms. Elliot is that the State and Warden Jones[5] are answerable under 42 U.S.C. § 1983 which provides that any "person" who deprives an individual of his or her constitutional rights under the color of state law shall be liable to that individual. The commissioner, whose written recommendations were accepted by the trial judge, found that: The State is protected against suits filed against it in Federal courts by the Eleventh Amendment of the United States Constitution. On suits filed against the State under Federal actions in State court, the Supreme Court of the United States has ruled in Will v. Michigan Department of State Police, [491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)] that a State is not a person within the meaning of 42 U.S.C. 1983. In Will, the Supreme Court stated: Given that a principal purpose behind the enactment of § 1983 was to provide a federal forum for civil rights claims, and that Congress did not provide such a federal forum for civil rights claims against States, we cannot accept petitioner's argument that Congress intended nevertheless to create a cause of action against States to be brought in state courts, which are precisely the courts Congress sought to allow civil rights claimants to avoid through § 1983. Will v. Michigan Department of State Police, 491 U.S. at 66, 109 S.Ct. at 2310. With regard to Ms. Elliot's § 1983 claims against Warden Jones, the commissioner found that the State, not Warden Jones, was the employer of Lt. Brown. Warden Jones, like Lt. Brown, was an employee of the State, who in his capacity as a supervisory employee of the Department of Corrections "did not actually control nor play a significant part in the hiring of George Elliot Brown." The commissioner concluded that the warden was in a peripheral position with respect to the hiring of Brown, and that the only latitude granted to Warden Jones was in making the final selection of Lt. Brown from a list of qualified applicants provided to him by the Department of Corrections. The commissioner further cited Will for the proposition that a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office, and as such, is no different from a suit against the State itself. Will, 491 U.S. at 70-72, 109 S.Ct. at 2312. In light of the Supreme Court's clear holding in Will, we find the earlier federal district court cases cited by Ms. Elliot to be inapplicable. For the reasons set forth above, we find this assignment of error to be without merit. VICARIOUS LIABILITY Ms. Elliot further asserts that the trial court erred in failing to find the State and Warden Jones answerable for the damages caused by the actions of Lt. Brown under the theory of vicarious liability. An employer can be held vicariously liable for the intentional torts committed by its employees. La.Civ.Code art. 2320; Williams v. Butler, 577 So.2d 1113, 1116 (La.App. 1st Cir.1991). The employer's liability 804 extends to only those acts which are within the course and scope of employment. Lamkin v. Brooks, 498 So.2d 1068 (La. 1986); Cousineau v. Johnson, 577 So.2d 152 (La.App. 1st Cir.) writ denied, 580 So.2d 379 (La.1991). Because Lt. Brown was, at all times pertinent hereto, an employee of the State of Louisiana, the State, and not Warden Jones, would be answerable under a theory of vicarious liability. In LeBrane v. Lewis, 292 So.2d 216 (La. 1974), the Louisiana Supreme Court set forth four factors which it utilized in determining whether an employer should be held liable for the tortious acts of its employee: (1) whether the tortious act was primarily employment-rooted; (2) whether the violence was reasonably incidental to the performance of the employee's duties; (3) whether the act occurred on the employer's premises; and (4) whether it occurred during the hours of employment. Therefore, the test for an employer's vicarious liability is whether "the tortious conduct of the [employee is] so closely connected in time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer's business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer's interests." Lamkin, 498 So.2d at 1070 (quoting LeBrane v. Lewis, 292 So.2d 216 (La.1974)); see also, Cousineau, 577 So.2d at 154. Later, in Miller v. Keating, 349 So.2d 265 (La.1977), the court stated that it did not mean to suggest that all four of the factors set forth in LeBrane must be met before vicarious liability may be found. The court went on to add that each case must be looked at on its own merits. Miller, 349 So.2d at 268-269; Williams, 577 So.2d at 1116. Upon application of these precepts to the facts before us, the trial court found, and the State and Warden Jones apparently concede, that the act in question occurred on the outside perimeter of the prison grounds at LCIW during the hours that Lt. Brown was engaged in his duties as a correctional security officer at that facility. It is well settled, however, that "an employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours." Barto v. Franchise Enterprises, Inc., 588 So.2d 1353, 1356 (La.App. 2nd Cir. 1991), writ denied, 591 So.2d 708 (La.1992); McClain v. Holmes, 460 So.2d 681, 684 (La.App. 1st Cir.1984), writ denied, 463 So.2d 1321 (La.1985); Scott v. Commercial Union Insurance Company, 415 So.2d 327, 329 (La. App. 2nd Cir.1982); Terito v. McAndrew, 246 So.2d 235, 239-240 (La.App. 1st Cir.1971). Vicarious liability will attach only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer's objectives. Scott, 415 So.2d at 329; Terito, 246 So.2d at 239-240. In brief, the State and Warden Jones assert that "the [trial] court was correct in finding that the tortious act was neither primarily employment rooted nor was it reasonably incidental to the performance of the employer's duties." The commissioner, in his written recommendations, went on to conclude that "Lt. Brown formed a plan in his own mind to pursue the willful assault against Vanessa Latullas. In the process of forming this plan, he distanced himself from his employment relationship and the course and scope of his employment with the State of Louisiana, and the State of Louisiana is not responsible for his conduct in carrying out his plan." We cannot agree. From our review of the record in this matter, we note that like the police officer in Lamkin, Lt. Brown's contact with Ms. Latullas occurred in the course of his duties as a correctional security officer at LCIW. At the time the rape occurred, Lt. Brown was on duty and charged with the direction and supervision of the female prisoners assigned to the line crew. Because of the authority bestowed upon him by his employer, Lt. Brown, like the police officer in Applewhite v. City of Baton Rouge, 380 So.2d 119 (La.App. 1st Cir.1979), was able to separate Ms. Latullas from her fellow inmates, and commit the act of rape. Even though the rape itself was totally unauthorized by Lt. Brown's employer, and motivated by Lt. Brown's personal desires, the rape nevertheless occurred while he was at 805 least partly actuated by his purpose of acting for his employer in the control and supervision of inmates, and it was through these duties that this opportunity arose. As the supreme court stated in Ermert v. Hartford Insurance Company, 559 So.2d 467, 477 (La.1990): The fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment. If the purpose of serving the master's business actuates the servant to any appreciable extent, the master is subject to liability if the act is otherwise within the service. So also, the act may be found to be in the service if not only the manner of acting but the act itself is done largely for the servant's purposes. (Citations omitted.) Accordingly, we find that the State is vicariously liable for the actions of Lt. Brown in this case. LIABILITY FOR NEGLIGENCE Having determined that the State is vicariously liable for the tortious conduct of its employee, Lt. Brown, we see no need in determining the independent negligence issue and pretermit same. DAMAGES As we have previously noted, Ms. Latullas, in her petition, asserted claims against Lt. Brown, Warden Jones, and the State of Louisiana under 42 U.S.C. 1983 and Louisiana Civil Code articles 2315 et seq. together with a demand for penalties and attorney fees. Ms. Latullas further claimed that, "[a]s a result of the attack and the resulting pregnancy, plaintiff has suffered infliction of emotional distress, changes to her body, fear and other damages associated with the trauma of the sexual assault and resulting pregnancy in the amount of TWO HUNDRED FIFTY THOUSAND ... DOLLARS." Effect of Solidary Liability The trial judge, based upon the recommendations of the commissioner, found Lt. Brown solely responsible for the injury to Vanessa Latullas and awarded damages under 42 U.S.C. 1983 and La.Civ.Code art. 2315 in the amount of $150,000.00 and attorney fees in the amount of $35,000.00. As we have stated, Lt. Brown did not appeal, and this judgment has now become final. Our earlier determination that the State is vicariously liable for the tortious conduct of its former employee, Lt. Brown, renders the State liable in solido with Lt. Brown, for the injuries he inflicted upon Ms. Latullas. This solidary relationship exists because both the State and its employee are obligated for the same thing, repair of the damage to Ms. Latullas. While Lt. Brown is primarily responsible for the damages occasioned by his tortious conduct, the State's liability for Lt. Brown's actions is derivative or secondary because of the relationship then-existing between them. Having said this, we must now consider the quantum of damages to be awarded. Because Lt. Brown failed to appeal the trial court's judgment, the amount of general damages awarded under that judgment is now final and executory against him. The State, as a solidary obligor, is also liable for the amount of this judgment which it allowed to become final against Lt. Brown.[6] In light of the foregoing, we conclude that the State is liable in solido with Lt. Brown for the $150,000.00 in general damages awarded to Nettie Elliot, the mother of decedent, Vanessa Latullas, in her capacity as the natural/legal tutrix of Tia Monique Latullas and Crystal Latullas, the minor children and sole heirs of Vanessa Latullas, for the injuries which she sustained as a consequence of the rape, resulting pregnancy and alleged emotional trauma. The State's liability as a solidary obligor does not extend to the trial court's award of attorney fees in the amount of $35,000.00 as awards of this nature are not recoverable against a public body under 42 U.S.C. § 1983. 806 Future Child Support For Crystal Latullas The trial court did not specifically address the issue of whether the State is obliged to provide future child support to the child conceived by Ms. Latullas as a result of her rape. However, it cast Brown for damages `in favor of plaintiff Nettie Elliot, individually and as the legal Tutrix of Christal (sic) Latullas and Tia Monique Latullas.' Ms. Latullas further asserted in her petition that she "will be required to expend significant sums for her care during and after pregnancy and for the care of her child to be born and for the future feeding, clothing and schooling of her child. Her damages and expenses related to her pregnancy and care of her child in the future are at a minimum TWO HUNDRED FIFTY THOUSAND... DOLLARS." We note that in Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1155 (La.1988), a malpractice case involving the subsequent birth of a child following a tubal litigation procedure, the Louisiana Supreme Court addressed the issue of an unplanned and unwanted birth of a child. In Pitre, the court examined similar cases from other jurisdictions and stated that while a great majority of courts allow parents to recover under wrongful conception or wrongful pregnancy claims, there is disagreement as to the amounts recoverable. The court further noted that where the cause of action is recognized, most courts allow the recovery of expenses directly associated with the pregnancy and delivery. While some courts award child-rearing expenses, the court stated that this amount is usually reduced by the "benefit" brought about by the birth of the child. The court in Pitre went on to hold that because of the foreseeable consequences of the doctor's alleged negligent acts and omissions, "the parents upon proper proof may recover for the expenses incurred during pregnancy and delivery, the mother's pain and suffering, the father's loss of consortium, service and society, and their emotional and mental distress associated with the birth of an unplanned and unwanted child and the unexpected restriction upon their freedom to plan their family." Pitre, 530 So.2d at 1161-1162. After a thorough review of the record in this matter, we believe that the trial court's award of $150,000.00 is more than sufficient to recompense Ms. Latullas' estate for the injuries she sustained as a result of the rape, as well as cover the expenses which have been incurred, and which will be incurred in the future, as a consequence of the birth of Crystal Latullas. Humiliation To Be Suffered By Crystal Latullas Ms. Latullas further asserted on behalf of her minor child, Crystal Latullas, a claim for damages for the humiliation the child will suffer due to the stigma surrounding her birth. At trial, there was no evidence presented on Crystal's behalf to substantiate Ms. Latullas' claim that the child suffers from or will be burdened with a stigma resulting from her birth or conception. In his report, the commissioner concluded that such a claim is tantamount to a claim for "wrongful life" as discussed in Pitre v. Opelousas General Hospital, 530 So.2d 1151 (La. 1988),[7] and denied recovery. We find no error in this ruling. CONCLUSION For the reasons set forth above, the judgment of the district court is reversed and set aside as to its finding that the State of Louisiana is not vicariously liable for the tortious conduct of its employee, Lt. George Elliott Brown. Accordingly, the State of Louisiana is liable in solido with Lt. George Elliott Brown for the $150,000.00 in general damages which the trial court awarded to Nettie Elliot, the mother of decedent, Vanessa Latullas, in her capacity as the natural/legal tutrix of Tia Monique Latullas and Crystal Latullas, the minor children and sole heirs of Vanessa Latullas, together with legal interest thereon from the date of judicial demand until paid. In all other respects, the judgment appealed from is affirmed. Costs *807 of this appeal are assessed against the State of Louisiana in the amount of $373.93. REVERSED IN PART AND AFFIRMED IN PART. NOTES [1] In his written recommendations to the trial judge, the commissioner incorrectly referred to the child fathered by Lt. Brown as Tia Monique Latullas; Tia Latullas is the older half-sister of the child in question, Crystal Latullas. [2] At a pre-trial hearing, and again on the morning of trial, counsel for Lt. Brown objected to the use of Ms. Latullas' deposition testimony on the grounds that Lt. Brown did not receive notice of this deposition and was unrepresented by counsel. While Lt. Brown, on October 21, 1987, acknowledged receipt of a letter from the State's attorney which advised that the State would no longer be representing him in this matter, the letter failed to mention the upcoming deposition of Ms. Latullas which was taken by the State on October 30, 1987. [3] As stated in Footnote 1, the commissioner throughout his recommendation, erroneously refers to the child fathered by Lt. Brown as Tia Monique Latullas; Tia Monique Latullas is the older half-sister of the child in question, Crystal Latullas. [4] At the time of trial, Lt. Brown was allegedly living in Seattle, Washington. He was not present at the trial, and had little or no contact with his attorney prior to trial. For this reason, counsel for Lt. Brown sought permission from the commissioner to withdraw on the morning of trial. This request was denied; however, after the rendition of the judgment in this matter, counsel for Lt. Brown was permitted to withdraw from this matter. [5] The commissioner's recommendation which was accepted by the trial judge, found Lt. Brown liable for damages under La.Civ.Code art. 2315 and 42 U.S.C. § 1983. [6] To protect itself from the risk of exposure, the State's remedy would have been to appeal the judgment rendered against Lt. Brown as to quantum. [7] The court in Pitre noted that a child's action for general damages as a result of being born in an afflicted condition has uniformly been rejected by all courts before which the matter has been raised. Pitre v. Opelousas General Hospital, 530 So.2d at 1154-1155.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2515061/	202 P.3d 658 (2009) STATE of Kansas, Appellee, v. Brandon Antoine McREYNOLDS, Appellant. No. 97,936. Supreme Court of Kansas. March 13, 2009. 661 Janine Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant. Sheryl L. Lidtke, deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Stephen N. Six, attorney general, were with her on the brief for appellee. The opinion of the court was delivered by ROSEN, J.: Brandon Antoine McReynolds, the appellant, seeks review of his convictions and sentence 662 for first-degree murder, aggravated robbery, and conspiracy to commit aggravated robbery. On the night of August 12, 2005, Kansas City, Kansas, police responded to a report of a person lying on the ground next to a car. When the police arrived, they found a young man, Zhihai Cui, lying on the street. Cui was a delivery driver for a Chinese restaurant. The engine of his car was running and no other people were in sight. Money, food containers, and plastic bags were on the ground near him. The police called for medical personnel, who determined that he had stab wounds to his abdomen and chest. They declared Cui dead. Detectives spoke with Tamara Ford, the appellant's 15-year-old cousin, who lived near the location where Cui was found. They also conducted a consensual search of Ford's house, where they found two knives, blood in the bathroom, and receipts from a Chinese restaurant. At the detective bureau, Ford provided the names of four juveniles whom she connected to the death: Cortez Ennis; Brandon Johnson; the 17-year-old appellant Brandon McReynolds; and his brother, Benjamin McReynolds. Around 4 a.m. on August 13, detectives went to the home of Rhonda McReynolds, the mother of the McReynolds brothers. There they found Cortez Ennis asleep in a chair in the living room. In his pockets, they found restaurant receipts and money with blood on it. In a bedroom of the house, they found the appellant and his brother sleeping and took them into custody. The appellant was wearing a T-shirt and boxer shorts when he left the house, and there appeared to be blood on his shirt. The appellant made an audiotaped statement that morning and another statement 3 days later. In his statements, the appellant admitted participating in an attack on Cui but denied making any life-threatening blows. Following an interview with Cortez Ennis, detectives located a knife they believed to be the murder weapon under a bush near the murder scene. An examination of Tamara Ford's cell phone and an inquiry at Cui's place of employment showed that a caller using Ford's phone had placed an order on the evening of August 12. The State filed an information and an amended information charging the appellant with one count of first-degree murder, K.S.A. 21-3401; one count of aggravated robbery, K.S.A. 21-3427; and one count of conspiracy to commit aggravated robbery, K.S.A. 21-3302. Following a hearing pursuant to Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), the district court granted the State's motion to admit the appellant's audiotaped statements made to detectives on the morning following the murder and 3 days later. In these statements, the appellant said that the four male youths called in an order for food delivery with the intention of robbing the delivery man, but when the driver arrived, the youths elected not to approach him. After one of the youths chastised the others, a second call was placed to the restaurant, and, when the driver arrived a second time, all four of the youths rushed at him. The appellant stated that he hit Cui with his fists, and the other youths attacked Cui with a stick, a crutch, and a knife. The youths made off with somewhat over 50 dollars, which they spent on drugs and alcohol and attending a party. The first statement concluded at 9:28 a.m., August 13, 2005, and the second statement concluded at 11:21 a.m., August 16, 2005. Tamara Ford, testified at the trial that on the evening of the crimes the appellant, his brother, Cortez Ennis, and Brandon Johnson were visiting the house where Ford lived with her mother. Cortez Ennis borrowed Ford's cell phone and made a call. The five youths then went out onto the front porch. A car pulled up and, when the driver got out, the four male youths rushed at him and hit him until he fell. The four male youths returned to the house, and Ford told them to leave. Ford overheard the appellant say, "I fucked up," as he left her house. The appellant denied any involvement in Cui's death. He testified at trial that he played football the day of the murder and got blood on his shirt from another player. Afterwards he went to the home of his aunt, Tabitha McReynolds, visited a friend's house, 663 and then purchased PCP and Ecstacy at a local drug house. He later returned to his aunt's house, where he saw Ennis and Brandon Johnson chasing a man down the street. He thereupon went into his aunt's house because he was scared. Afterwards he smoked additional PCP, attended a party, and then returned to his mother's house. During deliberations, the jury sent a note to the court requesting clarification: "Even though we don't think Brandon McReynolds committed the murder, do we have to agree to find him guilty when we do agree that one of the other 3 did do it. By the claim on Inst. # 7 on the paper it is saying that even if we don't think he is the one who physcially [sic] did it, he will still be guilty of 1st degree murder." The court directed the jury to compare the instruction defining the elements of first-degree murder with the instruction for aiding or abetting in the commission of a crime. The jury found the appellant guilty of all three counts. The court sentenced him to a term of life imprisonment with no parole until he served 20 years for the murder, a concurrent term of 94 months for the robbery, and a consecutive term of 34 months for the conspiracy. He filed a timely appeal. The appellant first contends the prosecution made an improper inference of guilt during voir dire and improperly impugned his honesty during closing arguments. Although no contemporaneous objections were lodged to these statements, a contemporaneous objection to alleged prosecutorial misconduct involving improper comments to the jury is not required in order to preserve the issue for appeal; an appellate court will apply the same standard of review regardless of whether the defendant lodged an objection. State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007). In general, appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury follows a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Albright, 283 Kan. at 428, 153 P.3d 497. In the second step of the two-step analysis, the appellate court considers three factors: "(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, [22,] 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) [conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial], have been met. [Citations omitted.]" State v. Albright, 283 Kan. at 428, 153 P.3d 497. It is unclear, however, whether this two-step analysis has been applied to comments made during voir dire such as those in the present case. Today, we hold this analysis is also properly applied to allegations of improper prosecutorial comments during voir dire. During voir dire, one of the prosecuting attorneys, in distinguishing between civil and criminal trials, made the following statement: "I'm sure most of you have heard that in criminal cases the burden of proof is proof beyond a reasonable doubt. That's the standard. In fact, that's the highest standard in the country anywhere. Proof beyond a reasonable doubt is as high as it gets. . . . . "And the reason why we have this really all goes back to our Constitution in which there is guaranteed to every person, that includes you and me, the judge, Mr. McReynolds, every person in America has 664 the right to be presumed innocent until proven otherwise. And what that means is that any person accused, whether they're guilty or not, has a right to have a jury trial, even guilty people. If someone would come in here and shoot me dead in front of all you guys and we have 50 some witnesses to that, that person still is entitled to their day in court. They have a right to have a trial by a jury of their peers. And the reason is because they are presumed innocent until the State proves them otherwise. It's the State's burden of proof." (Emphasis added.) The appellant argues that the prosecutor's statement undermined the presumption of innocence by suggesting he was guilty before the trial had commenced. He contends, because of the presumption of innocence, no defendant is guilty, as a matter of law, until a guilty verdict has been entered. The prosecutor's statement was not outside the bounds of permissible statements. Even if the reference to guilty people deserving a fair trial was, in isolation, a technically inaccurate statement of the law, the entire statement clearly placed the burden on the State to prove guilt and clearly articulated the presumption of innocence. In State v. McCorkendale, 267 Kan. 263, 276, 979 P.2d 1239 (1999), the prosecutor asked during voir dire, "Does everybody know that Mr. McCorkendale is entitled to a jury trial even if he knows he's guilty?" This court held: "[I]t is apparent that the State, albeit unartfully, was attempting to convey to the prospective jury that every accused person is entitled to trial by impartial jury. We note that there was no objection to the State's comment, which would have given the trial court the opportunity to address the defendant's concern. We also note that immediately following this comment, the State informed the jury that it `has the burden of proof, we have to prove him guilty to a jury of his peers beyond a reasonable doubt.' In light of these following comments, and the entire voir dire consisting of approximately 100 pages, we conclude that the State's comment provides no basis for reversal of the defendant's conviction." 267 Kan. at 276, 979 P.2d 1239. The voir dire in the present case consisted of 150 pages of transcript; there was no objection to the comment; and the allegedly improper comment and subsequent qualification are similar to the statement in McCorkendale. Indeed, they appear to have been made by the same prosecutor as in that case. While the appellant makes a valid point that the statement, in isolation, undermines the presumption of innocence, it does not appear that the prosecution emphasized the appellant's guilt or attempted to shift onto him the burden of proof. As in McCorkendale, albeit inartful and hopefully not again revisited phraseology, the comment does not warrant reversal. During closing argument, the prosecution stated to the jury, "No police officer benefits from this investigation, no police officers benefit from concocting stories and making Mr. McReynolds agree to those stories. There's only one person in the courtroom right now who benefits from coming into this room, concocting a story and testifying under oath about that and you know who that person is." The appellant contends that this statement insinuated that he was lying and that the police were telling the truth. The State contends that the statement was nothing more than a legitimate rebuttal to the appellant's closing argument that the police coerced false confessions from him and from Tamara Ford. In general, prosecutors may not offer juries their personal opinions as to the credibility of witnesses. Prosecutors have wide latitude, however, to craft arguments that include reasonable inferences to be drawn from the evidence. That latitude includes explaining to juries what they should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State's witnesses. State v. Scaife, 286 Kan. 614, 623-24, 186 P.3d 755 (2008). No prejudicial error occurs where the questionable statements by a prosecuting 665 attorney are provoked and made in response to prior arguments or statements by defense counsel. State v. Murray, 285 Kan. 503, 517, 174 P.3d 407 (2008). During closing argument, counsel for the appellant commented at length on coercive tactics allegedly used by the police in obtaining statements from Tamara Ford and the appellant. When a defendant has told one story during interrogation and a completely different story at trial, it would be difficult for a prosecutor to comment on the evidence without suggesting that untruths existed. See State v. Donaldson, 279 Kan. 694, 707, 112 P.3d 99 (2005). Detective Lawson had denied using coercion beyond admonishing the two youths that they would be better served by telling the truth. Because the credibility of the State's witness had been challenged, the prosecutor properly offered the jury an explanation of "what it should look for in assessing witness credibility." Scaife, 286 Kan. at 624, 186 P.3d 755. These comments were within the latitude allowed prosecutors when commenting on the evidence. It is unnecessary to reach the second step of the prosecutorial misconduct analysis. The appellant next challenges the introduction of his audiotaped statements made to Detective Lawson. The State filed a motion seeking to admit the statements that the appellant made to police shortly after the murder. The trial court granted the motion over the appellant's objection, and the jury heard the tapes and followed written transcripts of the tapes. The appellant contends on appeal that the statements should not have been admitted. When this court reviews a decision regarding suppression of statements to the police, it applies a substantial competent evidence standard to the factual underpinnings of the trial court's decision and applies a de novo standard to the ultimate legal conclusion. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Johnson, 286 Kan. 824, 835-36, 190 P.3d 207 (2008). The voluntariness of a confession is determined under the totality of the circumstances. The State has the burden of proving that a confession is admissible, and it must prove admissibility by a preponderance of the evidence. The essential inquiry is whether the statement was the product of the defendant's free and independent will. Johnson, 286 Kan. at 836, 190 P.3d 207. The court is to consider numerous factors when determining whether a statement was voluntary. A nonexclusive list of those factors includes the defendant's mental condition; the manner and duration of the interrogation; the ability of the defendant to communicate with the outside world; the defendant's age, intellect, and background; the fairness of the officers in conducting the interrogation; and the defendant's proficiency with the English language. Johnson, 286 Kan. at 836, 190 P.3d 207; see State v. Walker, 283 Kan. 587, 596-97, 153 P.3d 1257 (2007). Before each interview, the appellant was informed of his Miranda rights, which the police explained to him in some detail. The appellant had been in custody for about 5 hours when he made his first taped statement at around 9 a.m. He was taken into custody wearing a T-shirt and his undershorts and remained clothed only in those items during the first interview and taped statement. The appellant's mother testified that based on his eyes and his slow speech, the appellant appeared to be intoxicated when she saw him around midnight the night of the murder. The appellant testified that the evening before the interview he had smoked PCP mixed with marijuana and had ingested half of an Ecstacy tablet and two fifths of Hennessy cognac. He testified that he was not "in the right frame of mind" when he signed the waiver of his rights and when he made the first taped statement. He stated that his intoxication prevented him from understanding his rights and caused him to agree with all the suggestions the detectives made to him. Detective Lawson, on the other hand, testified that, at the time of the interview, the appellant showed no signs of intoxication or being under the influence of drugs. Detective 666 Lawson testified that he made no threats and used no abusive language or tactics in obtaining the statements. The trial court found that the appellant gave both statements freely and voluntarily. The court found Detective Lawson to be the most credible witness about the appellant's mental capacity. The appellant apparently raises two challenges to the admissibility of his statements. First, he argues that his statements were not freely and voluntarily made. Second, he argues that the trial court impermissibly relied on its opinion of the interviewing detective's past credibility. The appellant challenges the admissibility of his statements under almost all of the factors enumerated in State v. Walker: his mental condition, the manner and duration of the interrogation, his ability to communicate with the outside world, his age, and the fairness of the officers conducting the interrogation. He emphasizes that his mental condition was impaired by drugs and alcohol, that he was interrogated over a period of several hours, and that he was still wearing nothing but a shirt and undershorts during the interrogation. The trial court found that the statements were freely and voluntarily made. The trial court heard the testimony of the interviewing detective and the testimony of the appellant and his mother. The court also heard the statements by the appellant and considered the written waivers of rights. The two statements were made with an interval of 3 days between them, and the statements were generally consistent. The appellant testified at trial that the effects of PCP wear off after an hour or two. The appellant accurately provided the detective with his telephone number, his birthday, and his residential address during both interviews. Although the appellant implicates a number of factors that may undermine the voluntariness of a confession, the record does not provide a basis for reversing the trial court's findings. On the contrary, a review of the record suggests the appellant was lucid, articulate, consistent, and calm when making both statements and that there is substantial competent evidence to support the trial court's decision to admit the statements. The appellant also challenges the trial court's reliance on previous testimony by Detective Lawson. The trial court observed that it had found Lawson to be a credible witness in past cases. The judge stated: "Detective Lawson has testified in this court a number of times on these issues and the Court has found Detective Lawson in the past to be a very credible witness, that Detective Lawson will freely say things that may not necessarily be in the State's best interest, but that he has always been an exceptionally honest witness in this Court's view and there's nothing that's occurred here today that would cause my mind to be changed." In general, previous statements by a witness, even in the same case, may not be used to bolster the credibility of that witness. See, e.g., Donaldson, 279 Kan. at 709, 112 P.3d 99; State v. Whitesell, 270 Kan. 259, 290, 13 P.3d 887 (2000); State v. Fouts, 169 Kan. 686, 696, 221 P.2d 841 (1950); State v. Kackley, 32 Kan. App. 2d 927, 935, 92 P.3d 1128, rev. denied 278 Kan. 849 (2004). In any event, it is incumbent on the court to rely on the evidence presented in the case before it and not on its impression of a witness' credibility based on testimony presented in previous cases. This is perhaps the most serious assertion of fault raised by the appellant. The appellant's taped statements, which were at odds with the appellant's theory and testimony at trial, must have been highly persuasive to the jury. If the trial court had excluded those statements, it is conceivable that the jury might have found the appellant not guilty or perhaps guilty of lesser crimes. The trial court's reference to Detective Lawson's credibility in other cases was not merely passing; it was made at some length and in some detail. On the other hand, as we found above, the record contains ample evidence suggesting that the appellant's statements were freely and voluntarily made. This evidence includes, in addition to the detective's comprehensive testimony, the appellant's demeanor 667 on the tapes, the factual consistency between the tapes, the waivers of rights that were explained in detail, the verifiable factual accuracy of certain parts of the statements, and the passage of time between the first taped statement on the morning after the crime and the second taped statement 3 days later. The totality of the circumstances supports the trial court's determination that the statements were freely and voluntarily made. It therefore appears that the trial court's comment on Lawson's credibility was more in the nature of surplus verbiage and less in the nature of an independent, compelling reason for admitting the statements. While the trial court's comment was unnecessary, it did not amount to reversible error. The decision to admit the appellant's statements rests upon substantial competent evidence. The appellant next complains that the trial court erred in failing to grant his motion for a mistrial made during the testimony of Detective Lawson, as well as his motion for a new trial made following the proceedings. A motion for mistrial, like a motion for a new trial, is reviewed under an abuse of discretion standard, and the party alleging the abuse bears the burden of proving that his or her substantial rights to a fair trial were prejudiced. State v. Albright, 283 Kan. at 425-26, 153 P.3d 497; State v. Kirby, 272 Kan. 1170, 1192, 39 P.3d 1 (2002). Detective Lawson testified at trial about his station interview of Ford, who initially incriminated the four male youths, and his station interview of the appellant and a subsequent juvenile detention center interview of the appellant. On cross-examination, the detective mentioned statements made by the appellant's brother, Benjamin, although Benjamin's statements were not introduced at trial. Defense counsel made an oral motion for a mistrial, asserting that the detective had introduced impermissible hearsay testimony to the jury. The trial court found the detective's answers came within the scope of the open questions being asked on cross-examination and denied the motion. Defense counsel renewed the issue in a posttrial motion for new trial, which the trial court denied. In answering questions, Detective Lawson made three vague references to the consistency of the appellant's stories related during his interrogation with the stories related by others, including the appellant's brother. The cross-examination questions were directed toward the interrogation techniques and whether the detective had referred to the interrogations of the other youths to manipulate the appellant's responses. The detective testified that at the beginning of the interrogation he had not yet talked with Tamara or with the appellant's brother, but that he later confronted the appellant with inconsistencies between his story and the stories that others were telling. "I told him his story didn't jive with Tamara's nor his brother's or some other people involved." "What I'm saying is that I told him that not only had Tamara and, you know, his brother and other people told us what had been going on is that, you know, I mean everybody's stories, you know, I mean within the situation were kind of consistent." The trial court found that the questions were open-ended and allowed a broad range of responses. This finding is correct; it is difficult to ascertain specifically what some of the questions posed on cross-examination were asking. In addition, the references to the brother's statements were fleeting and did not identify any admissions or factual allegations that may have been contained in those statements. The jury could reasonably have inferred that the brother told the police something since it knew from previous testimony that he was arrested at the same time as the appellant. The record is silent as to what he actually told the police, except that it may have differed in some fashion from what the appellant and Tamara initially told the police. The appellant has not demonstrated prejudice to his substantial rights as a consequence of Detective Lawson mentioning statements by his brother, nor did the trial court abuse its discretion in refusing to grant a mistrial. Finally, the appellant argues that trial errors, considered cumulatively, were so great as to require reversal of his conviction. The standard is whether the totality of circumstances 668 substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found under the cumulative error rule if the evidence is overwhelming against a defendant. State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007). Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. State v. Davis, 283 Kan. 569, 583, 158 P.3d 317 (2007); State v. Jones, 283 Kan. 186, 218, 151 P.3d 22 (2007). One error is insufficient to support reversal under the cumulative effect rule. State v. Nguyen, 285 Kan. at 437, 172 P.3d 1165. No error of substance occurred in the course of the trial. The evidence against the appellant, especially his taped statements acknowledging his participation in the planning and execution of the fatal robbery, corroborated by other evidence introduced at trial, is overwhelming and provides no grounds for reversal. The trial court sentenced the appellant to a guideline sentence that was in the aggravated range for conspiracy to commit aggravated robbery. The appellant contends on appeal that imposition of the high end of the sentencing grid without submitting the grounds for an aggravated sentence implicates constitutional provisions for trial by jury. Interpretation of a sentencing statute is a question of law, and the appellate court's standard of review is unlimited. State v. Ruiz-Reyes, 285 Kan. 650, 653, 175 P.3d 849 (2008). The constitutionality of a sentencing statute is a question of law over which this court has unlimited review. State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007). This court has recently addressed this issue and has taken a position adverse to the appellant's argument: "A sentence to any term within the range stated in a Kansas sentencing guidelines presumptive grid block does not violate Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007), or Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)." State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207; see State v. Gallegos, 286 Kan. 869, 879, 190 P.3d 226 (2008). The appellant was assigned a criminal history score of D based on a previous conviction of robbery. He contends on appeal that the facts supporting the determination of his criminal history were not submitted to the jury and therefore could not be used to raise his criminal history score from I to D. This court has repeatedly addressed this issue, consistently reaching the same result. The issue was initially addressed in State v. Ivory, 273 Kan. 44, 41 P.3d 781(2002), and was decided adversely to the appellant. The appellant argues, however, that Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), has modified the constitutional interpretation on which Ivory relied. The appellant overlooks that cases decided subsequent to Shepard have reaffirmed the Ivory holding. See James v. United States, 550 U.S. 192, 127 S. Ct. 1586, 167 L. Ed. 2d 532 (2007); State v. Storey, 286 Kan. 7, Syl. ¶ 4, 179 P.3d 1137 (2008); State v. Farmer, 285 Kan. 541, 555, 175 P.3d 221 (2008); State v. Holt, 285 Kan. 760, 777, 175 P.3d 239 (2008); State v. Gaither, 283 Kan. 671, 693, 156 P.3d 602 (2007); State v. Hawkins, 40 Kan. App. 2d 10, 19, 188 P.3d 965 (2008). The appellant has established no grounds for reversal of his convictions for first degree murder, aggravated robbery, and conspiracy to commit aggravated robbery, nor for any modification of his sentence. The same are affirmed. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/487025/	816 F.2d 683 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-appellee,v.Lawrence FROMAN, Defendant-appellant. No. 86-5540. United States Court of Appeals, Sixth Circuit. April 6, 1987. Before MERRITT, WELLFORD and MILBURN, Circuit Judges. PER CURIAM: 1 Appellant Froman pled guilty to a violation of 18 U.S.C. Sec. 287 for willfully making false, fictitious and fraudulent claims for workmen's compensation. He was sentenced to five years imprisonment and was later placed on probation after serving six months in jail. Later, Judge Ballantine ordered the arrest of appellant to determine whether his probation should be revoked. On April 25, 1986, the court conducted a hearing to determine whether appellant had violated probation by failing to report to the U. S. Probation Office and by changing his place of residence without notifying the probation office. The court revoked appellant's probation and ordering him to serve the remaining fifty-four months of his five year sentence. Appellant brought this appeal from this order. 2 Supervision of appellant for probation under the conviction was initially given to Daryl Netherton of the United States Probation office for the western District of Kentucky on July 18, 1984. At the revocation hearing, Netherton stated that he had direct supervision of appellant from the beginning of the probationary period until supervision was transferred to Probation Officer Salgado in Florida when appellant moved to Clearwater, Florida in 1985. supervision was returned to Kentucky on November 6, 1985 when, according to the testimony of officer Netherton, appellant failed to submit his required monthly supervision report on November 1, 1985. 3 According to Netherton, appellant failed to appear for sentencing on October 15, 1985 for his state court conviction of first degree rape and sexual abuse. These offenses, however, were committed prior to the instant conviction and do not themselves form a basis for revocation. He testified also that Salgado did not find anyone at home when he attempted to visit appellant at his given home address on October 18, 1985. The last contact that appellant had with his Probation Officer was a telephone call on October 9, 1985. 4 The parties disagree about contents of a conversation between appellant and Netherton in April 1985 overheard by Verna Gibson, at whose home appellant resided until October 1985. The dispute concerns whether Netherton agreed to release appellant from probation if pending state charges were dropped. In appellant's brief he contends that "when the charges were dropped and Mr. Netherton and Mr. Salgado did not keep this promise that he left for Mexico." See Appellant's Brief at 4. Netherton testified that he personally had no authority to release appellant from probation, but could recommend a release. He claims that he did advise appellant that if the state charges for rape and other offenses were dismissed there might be a possibility of a recommendation to the Court that the probation be dismissed. The government asserts, however, that no recommendation was made because appellant was convicted. 5 Among Froman's conditions of probation were requirements to notify the probation officer of any change of address, to follow the officer's instructions and to report as directed. Appellant contends that no evidence was presented that he was required also to submit monthly reports on the first of each month. Appellant argues that the order revoking his probation was improperly based upon his failure to file one report. 6 Appellant also asserts that the testimony of Netherton in regards to the monthly report was unsubstantiated hearsay. He submits that he has a right to confront and question the witnesses against him in a probation revocation hearing. Since Officer Salgado was the probation officer responsible for appellant in October 1985, appellant argues that only Salgado would have personal knowledge of whether appellant had violated any reporting requirements at that time. He argues therefore that there was insufficient evidence upon which to base a revocation. 7 Flexible evidentiary standards prevail at probation revocation hearings; cross-examination or confrontation of reliable hearsay evidence is not required. United States v. Burkhalter, 588 F.2d 604, 607 (8th Cir. 1978). Netherton was the most reliable source of information concerning appellant's probationary status since jurisdiction over appellant always remained in Kentucky. we find his hearsay testimony to be reliable. 8 The revocation order does not specify the grounds for revocation of probation, but merely states that the court considered the record in its entirety. The conditions of probation, filed July 18, 1984, does not specify that a monthly report is required for probation, but it does state: 9 (4) You shall not leave the judicial district without permission of the probation officer. 10 (5) You shall notify your probation officer immediately of any change in your place of residence. 11 (6) You shall follow the probation officer's instructions. 12 (7) You shall report to the probation officer as directed. 13 Gagnon v. Scarpelli, 411 U.S. 778 (1973) sets out the minimum due process requirements for a probation revocation hearing: 14 "(a) written notice of the claimed violations of (probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole." Morrissey v. Brewer, supra, at 489. 15 Gagnon, 411 U.S. at 786. Morrissey v. Brewer, 408 U.S. 471 (1972) examined the reasoning to be employed in making a revocation decision: 16 Implicit in the system's concern with parole violations is the notion that the parolee is entitled to retain his liberty as long as he substantially abides by the conditions of his parole. The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. ... The first step is relatively simple. 17 Morrissey, 408 U.S. at 479-80. 18 The Court also stated that "[i]t is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Id. at 489. 19 The general rule permits admissibility of reliable hearsay evidence in probation revocation proceedings. see, e.g., Egerstaffer v. Israel, 726 F.2d 1231, 1235 (7th Cir. 1984) ("where hearsay bears a substantial guarantee of trustworthiness, the flexible revocation proceeding allows its use"); United States v. Penn, 721 F.2d 762 (11th Cir. 1983) (no error in admission of hearsay); United States v. McCallum, 677 F.2d 1024 (4th Cir.), cert. denied, 459 U.S. 1010 (1982) (same); Smith v. United States, 603 F.2d 722, 723 n.2 (8th Cir. 1979) ("Reliable hearsay evidence is admissible in probation revocation hearings"); United States v. Burkhalter, 588 F.2d 604, 607 (8th Cir. 1978) ("hearsay evidence which is demonstrably reliable need not be subject to cross-examination or confrontation in a revocation proceeding"); United States v. Cates, 402 F.2d 473, 474 (4th Cir. 1968) ("A revocation hearing is an informal proceeding and rules of evidence need not be strictly observed"). 20 Based upon these authorities, we find the hearsay testimony of officer Netherton was reliable and admissible in the probation revocation hearing, and might properly be relied upon by the district court. 21 In Hensley v. United States, 257 F.2d 681, 684 (5th Cir. 1958), it was held that the mere transfer of supervisory duties to another probation officer due to the relocation of the defendant did not transfer the jurisdiction of the sentencing court. We find this reasoning persuasive. 22 Appellant's admission at the hearing that he had absconded to Mexico, moreover, was sufficient grounds alone for revocation. The record reflects the following testimony of appellant: 23 MR. GRISE: Mr. Froman, have you ever received any court papers telling you that you were no longer on probation? 24 MR. FROMAN: No, sir. 25 Q Did you ever get a call from a probation officer who told you 'Congratulations, mr. Froman, you are no longer on probation'? 26 A No, sir. 27 Q Where did you live in October of 1985? 28 A Clearwater, Florida. 29 Q And where did you live in November of 1985? 30 A In that area. 31 Q Could you be more specific? 32 A No, sir. 33 Q You don't remember where you lived in November of 1985? 34 A I remember, but I don't see it has any bearing on this matter. 35 Q I'm sorry? 36 A I do. But I don't think it has no bearing on this matter. 37 BY THE COURT: I didn't understand what you said. 38 MR. GRISE: He said it has no bearing on this matter. 39 BY THE COURT: It certainly does. 40 MR. MURRELL: I think he's right, too, Your Honor, because the violation in this case only goes through November 1, and that's what they are alleging in the motion to revoke. 41 BY THE COURT: All right. Objection overruled. Answer the question. 42 Q where did you live in November of 1985? A Mexico 43 Q Were you there the whole month? 44 A Yes. 45 Q How about December? 46 A Yes, sir. 47 Q How about January of this year? 48 A No, sir. 49 Q When did you leave Clearwater, Florida? 50 A October the 14th, 15th, I don't know. I'm not even sure what date it was. 51 Probation was properly revoked in this case based on Froman's own testimony, despite his contention that the probation officers somehow mislead him into believing that the probation requirements might be dismissed. 52 Appellant argues that he should merely be required to serve a lesser portion of his sentence because only hearsay was submitted for evidence against him at the hearing and because this violation was a technical one, and because he claims to have been a model prisoner. 53 Appellant may be foreclosed from asserting any improper use of hearsay on appeal because he did not raise the issue at the proper time. United States v. Cates, 402 F.2d 473, 474 (4th Cir. 1968). in Sims v. United States, 607 F.2d 757, 759 (6th Cir. 1979), we held: 54 When the court suspends the imposition of sentence and places the defendant on probation, it is authorized, upon revocation of probation to impose any sentence within the limits of statutory authority. Merely placing a defendant upon probation is not a sentence under 18 U.S.C. Sec.3651. United States v. Fried, 436 F.2d 784, 787 (6th Cir. 1971). 55 Under the circumstances, we find the decision of the district court not unreasonable and within his discretionary authority. Appellant violated the terms of his probation, and he admittedly realized the possible consequences of this action. The district court did not abuse its discretion in re-imposing the original sentence upon appellant. 56 We AFFIRM the judgment accordingly.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2494750/	65 So.3d 1103 (2011) Calvin Carlos CAMPBELL, Appellant, v. STATE of Florida, Appellee. No. 4D10-3139. District Court of Appeal of Florida, Fourth District. June 29, 2011. Rehearing Denied August 17, 2011. 1104 Calvin Carlos Campbell, DeFuniak Springs, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. Calvin Carlos Campbell (Defendant) timely petitions for second tier certiorari relief from an order of the Palm Beach County circuit court, in its appellate capacity, which affirmed per curiam, without opinion, a county court order summarily denying his rule 3.850 motion for postconviction relief, challenging his plea to two counts of misdemeanor battery. We deny the petition. A final circuit court decision in its appellate capacity, including a decision denying a defendant's postconviction motion, is reviewable in the district court by petition for writ of certiorari. E.g., Slater v. State, 543 So.2d 869, 871 (Fla. 2d DCA 1989). The standard of review for such a petition is whether the petitioner has been denied procedural due process, or whether the circuit court departed from the essential requirements of law in such a way as to cause a miscarriage of justice. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889-90 (Fla.2003); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530-31 (Fla. 1995). We conclude that Defendant has established neither.[1] 1105 Defendant claims that his 1988 misdemeanor conviction should be vacated because the alleged victim of the misdemeanor battery recanted his false statements made. Thus, he claims "actual innocence" and "manifest injustice" as exceptions to the time limitation for postconviction motions. At the time of the battery incident, the defendant was on parole for first degree murder. He entered a plea to the battery, and the State dismissed more serious charges. After the misdemeanor conviction, the Parole and Probation Commission held a hearing and revoked parole. Consequently, he alleges that the misdemeanor conviction continues to affect his liberty interests as he continues to be detained on revocation of parole. In 2008, the defendant moved for postconviction relief in the county court, alleging newly-discovered evidence, namely an affidavit from the alleged victim of the 1988 battery stating that the defendant had not committed a criminal offense against him. The motion made many other claims, but these were untimely and successive. The county court denied relief, and the circuit court affirmed. The defendant was not denied due process in the circuit court, and there was no departure from the essential requirements of law. He pled to the misdemeanor conviction and admitted an unlawful touching in the plea colloquy. The victim's testimony, which the victim now recants, was not made in connection with the misdemeanor conviction but after the defendant's conviction during his revocation hearing before the Parole and Probation Commission. A revocation of the parole could have occurred, even if he had been acquitted of the battery charges. See, e.g., State ex rel. Fla. Parole & Prob. Comm'n v. Helton, 313 So.2d 413, 415 (Fla. 1st DCA 1975) (noting that acquittal of criminal charge has no bearing on sufficiency of grounds to revoke parole or probation in connection with that charge). Regardless, the victim's recantation of testimony before the Commission does not require re-consideration of the misdemeanor conviction. Petition Denied. WARNER, POLEN and STEVENSON, JJ., concur. NOTES [1] A circuit court order that affirms without opinion, and thus cannot serve as precedent, is unlikely to merit certiorari review because any error will be isolated in its effect. Dep't of Highway Safety & Motor Vehicles v. Alliston, 813 So.2d 141, 145 (Fla. 2d DCA 2002).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2429538/	735 S.W.2d 534 (1987) STATE of Texas on Behalf of Tammy WHITEHEAD, Appellant, v. Bruce WHITEHEAD, Appellee. No. 12-87-0005-CV. Court of Appeals of Texas, Tyler. June 30, 1987. 535 Troy V. Smith, Asst. Atty. Gen., Tyler, for appellant. Emerson Stone, Jacksonville, for appellee. BILL BASS, Justice. This is an appeal from a child support order entered pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA). We reverse and remand. The parties were divorced on August 17, 1983, in Union County, Ohio. Under the divorce decree the father was ordered to pay child support in the sum of $20 per week plus two percent poundage, totalling $20.40 per week.[1] The mother and child subsequently moved to Irwin, Pennsylvania, and the father is currently a resident of Tyler, Texas. On February 11, 1986, the mother filed a petition for support in Pennsylvania under that state's version of URESA. The petition alleged that the father had ceased payments of child support under the Ohio decree, and requested support in the amount of $400 per month plus arrearages. The petition was transmitted to the Office of the Attorney General in Austin, Texas, and was filed in the County Court at Law of Smith County. The father answered by general denial. At the hearing on the mother's petition, argument was presented on the issue of the court's authority to enter an order increasing the amount of child support. The court concluded that it had no jurisdiction under URESA to increase the amount of support, and therefore ordered support of $20.00 per week. The mother appeals by one point of error, urging that the court erred in concluding that it had no jurisdiction to award support in an amount different from the award in the Ohio decree. The Texas URESA, Tex.Fam.Code Ann. §§ 21.01-.66 (West 1986 and Supp.1987), is designed to improve the enforcement of support duties in cases where the obligee and obligor reside in different states; the procedures outlined in the statute attempt to relieve the obligee from traveling to a distant state to litigate the question of support. O'Halloran v. O'Halloran, 580 S.W.2d 870, 871 (Tex.Civ.App.Texarkana 1979, no writ). Sections 21.21 to 21.45 concern civil enforcement of support obligations. Generally, under the procedures outlined in those sections, the obligee files a petition for support in the state where she and the child reside ("initiating state"), and the court in that state forwards the petition to the proper agency in the foreign jurisdiction ("responding state"). The agency then forwards the petition to a court located in the county of the obligor's 536 residence. If the court finds that a duty of support exists, it may impose a full range of enforcement measures. There is some uncertainty in the law on the question of the responding state's authority to modify the support obligations ordered by an out-of-state court. The majority view permits such modification. See Sheres v. Engelman, 534 F. Supp. 286, 293-94 (S.D.Tex.1982); O'Halloran, 580 S.W.2d at 872; Annot., 31 A.L.R. 4th 347, 356-57 (1984). For the reasons set forth below, we subscribe to the majority view. The statute sets forth a presumption in contested cases, "if there is a prior support order, that the most recent order correctly designates the current amount of support and duty of support." Id. § 21.36(c)(2). Clearly, this section anticipates the presentation of evidence showing that the most recent order does not correctly designate or delimit the duty of support. This interpretation is borne out by other provisions of the statute. Section 21.04 states: The remedies herein provided are in addition to and not in substitution for any other remedies even though prior orders of support exist in this state or any other jurisdiction. Id. § 21.04. This provision makes it clear that URESA was not intended to deprive a person seeking relief under the Act of the opportunity to obtain remedies that the court is otherwise empowered to grant. Further guidance is provided by section 21.43, which states: No order of support issued by a court of this state when acting as a responding state shall supersede any other order of support, but the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both. This provision is perhaps the source of confusion, because it may be interpreted as forbidding the responding court from modifying and thus superseding a prior order. See Sheres, 534 F.Supp. at 293-94. The provision does not, however, prevent the court from modifying the amount of support, i.e., entertaining an independent action to determine the proper amount of support to be payable in the future. See id. at 294; Elkind v. Byck, 68 Cal. 2d 453, 439 P.2d 316, 318 n. 2, 67 Cal. Rptr. 404, 406 n. 2 (1968); Despain v. Despain, 78 Idaho 185, 300 P.2d 500, 503 (1956); Sullivan v. Sullivan, 98 Ill.App.3d 928, 424 N.E.2d 957, 959-60 (1981); Campbell v. Jenne, 172 Mont. 219, 563 P.2d 574, 576 (1977); Peot v. Peot, 92 Nev. 388, 551 P.2d 242, 243-44 (1976); Bourdon v. Bourdon, 105 N.H. 432, 201 A.2d 889, 891 (1964); McEvily v. McEvily, 140 Vt. 279, 437 A.2d 1110, 1111 (1981); Bubany, Texas Family Code SymposiumParent and Child, 13 Texas Tech L.Rev. 1025, 1085-88 (1982). On the contrary, by providing for the crediting of payments against amounts accruing under separate orders of support, section 21.43 assumes that separate and independently valid orders of support may exist which provide for payment of different amounts. Moreover, we note that nineteen states have permitted modification of support under the civil enforcement subchapter of URESA, while only one jurisdiction has denied such relief. Annot., 31 A.L.R. 4th 347, 356-62 (1984). The courts are admonished that URESA must be "so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it." Tex.Fam.Code Ann. § 21.06 (Vernon 1986). The appellant's point of error is sustained. The judgment is reversed and the cause remanded for further proceedings consistent with this opinion. NOTES [1] "Poundage" is defined as follows: An allowance to the sheriff, commissioner, or the like, of so much upon the amount levied under an execution. The money which an owner of animals (or other property) impounded must pay to obtain their release. In old English law, a subsidy to the value of twelve pence in the pound, granted to the king, of all manner of merchandise of every merchant, as well denizen as alien, either exported or imported. Black's Law Dictionary 1052 (5th ed. 1979) (emphasis original). In the present case the poundage constitutes a handling fee paid to the Union County Bureau of Support in Marysville, Ohio.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1304048/	469 S.E.2d 826 (1996) 220 Ga. App. 604 GRANT v. The STATE. No. A95A2580. Court of Appeals of Georgia. March 12, 1996. 827 Cook & Palmour, Bobby Lee Cook, Summerville, Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, George T. Smith, Marietta, for appellant. Tommy K. Floyd, District Attorney, Michael J. Bowers, Attorney General, Michael E. Hobbs, Senior Assistant Attorney General, Patrick D. Deering, for appellee. POPE, Presiding Judge. We granted Jeffrey Grant's interlocutory application to determine whether the trial court properly denied his motion to suppress. For the reasons set forth herein, we reverse in part. On May 5, 1992, a search warrant issued for the search of the office of Georgia Southern Lumber, one of Grant's businesses. The search was executed the following day. The warrant set forth that the laws being violated were OCGA §§ 16-8-2 (theft by taking) and 16-10-20 (false statements). It listed 828 the things to be searched for as: "letters with landowners, timber companies or participants pertaining to the purchase or transfer of land or timber; warranty deeds; options on timber contracts for the purchase or transfer of timber; loan documents where land or timber was utilized as collateral; cancelled checks, check stubs and check ledgers for the period of 1983 to the present; weight tickets; settlement sheets; cruise reports (timber evaluations); tally sheets; location maps; promissory notes; purchase records for supplies from Davis Office Supplies. (See attached participant list.)" Attached to the warrant was the eight-page affidavit of Georgia Bureau of Investigation ("GBI") special agent Roy Olinger, in which he stated that he was trained in white collar crime investigation. Olinger stated that he had been involved since 1989 with the investigation of a series of criminal schemes which had been perpetrated against Keadle Lumber Enterprises over several years. Olinger's affidavit stated that there had been a continuing pattern of criminal activity conducted by the "co-defendants" over the years. The affidavit described the types of documents ordinarily maintained in the timber industry; these documents basically conformed to the items sought in the warrant. Also attached to the warrant was a seven-page list of "co-defendants," which set forth both businesses and individuals. Both Grant and his alleged businesses were listed in this section. The final document attached to the warrant was Olinger's additional affidavit describing the investigation the GBI had undertaken with respect to Grant's involvement with the illegal activities. The affidavit stated that Grant had been the grantor of fictitious tracts of timber and that he had inflated acreage and payments based on inflated volumes of timber. The affidavit stated that Grant had prepared forged documents and provided them to Olinger for the purpose of concealing his criminal activity from 1983-1989. The affidavit then set forth various fraudulent transactions to which Grant had been a party. In July 1992, three indictments from Henry County issued against Grant, charging him with five counts of forgery in the first degree and three counts of theft by deception for acts which occurred in August, September and October 1991. These indictments were nolle prossed in November 1992. On October 14, 1992, a Henry County grand jury issued two indictments against Grant charging him with three counts of forgery in the first degree and two counts of theft by deception. The second indictments were basically the same as the earlier indictments, although one of the indictments was dropped. After the Henry County indictments issued, Grant was one of numerous individuals indicted by an Upson County grand jury under the Georgia Racketeering Influenced and Corrupt Organizations Act (RICO), OCGA § 16-14-1 et seq.[1] Grant filed a motion to suppress, arguing that the warrant was issued without probable cause and that it was overbroad. The court held a hearing on the motion at which agent Olinger testified that he had been investigating the criminal activity surrounding Keadle Lumber Enterprises since 1989; that he had previously conducted several interviews of Grant; and that on May 6, several simultaneous searches of key players involved in the alleged timber illegalities were conducted. Olinger testified that he was not involved in the search, but that he was aware that in addition to the files which contained items delineated on the warrant, the agents had seized Grant's tax returns, computer and accompanying discs, and data board. GBI agent Montgomery testified that Grant's phone messages and wall calendar were seized, and that papers regarding Grant's dealings with individuals other than the listed "co-defendants" were also taken. Montgomery 829 testified that the search lasted from 1:00 p.m. to 9:00 p.m., and Grant testified that "everything that wasn't nailed down" was taken in the search. Grant also stated that the things seized included his personal notepad and personal phone book. Olinger testified that documents which were seized and which were later deemed unnecessary would be returned to Grant. Olinger admitted that the agent executing the search had the discretion to determine what was within the warrant. He recalled that the agents executing the search were instructed to "research those files [listed in the warrant as part of the timber investigation] and if they ran across any of those files with those particular names of the other players [listed in the attachments to warrant] or anyone else that they were familiar with that were involved in the timber industry investigation, to also seize that, yes." In denying Grant's motion to suppress, the court stated that the "particular documents having to do with the Defendant and certain other suspect individuals listed in the affidavit were the only items authorized by the issuing judge to be seized. Testimony at the hearing, however, showed that not only were the items listed on the face of the warrant seized but also a number of other items." The court then concluded that because there was no "flagrant disregard" of the warrant, there was no general search requiring total suppression. The court stated: "it appears from evidence that the agent's extensive seizure of evidence resulted from practical considerations and time constraints." Accordingly, the court found that the State had satisfied its burden of proof with respect to the legality of the search. It then stated: "[o]ther items seized which were outside the scope of the warrant would be excluded if it were possible to specifically enumerate these items; however, the lack of detail in the State's inventory list, and the Defendant's failure to adequately present this information" prevented the court from excluding such documents. 1. Grant contends that the warrant was improperly executed in that the officers seized items not listed in the warrant. We agree. "A search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible. Evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation." (Citations and punctuation omitted.) Lockhart v. State, 166 Ga.App. 555, 557(2), 305 S.E.2d 22 (1983). "A lawful search is limited to that which is described in the warrant.... The warrant shall particularly describe the things to be seized and the search must be limited to that matter described." (Citations omitted.) Id. at 558, 305 S.E.2d 22. This was not a situation in which additional contraband was seized during the search because it was in plain view. See generally State v. Scott, 159 Ga.App. 869, 285 S.E.2d 599 (1981). Moreover, the "[p]lain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." (Citations and punctuation omitted.) Hogan v. State, 140 Ga.App. 716, 717-718(1), 231 S.E.2d 802 (1976). Here, the inventory list of the items seized and Olinger's testimony established that the scope of the search exceeded the warrant, and the court properly determined that the search was excessive. We find no legal support for the court's decision that practical considerations and time constraints justified the overly extensive search. Moreover, there is no factual support for this conclusion since many of the items seized which were outside the scope of the warrant (e.g., the computer, calendar) were unrelated to time constraints. Compare Ledesma v. State, 251 Ga. 885, 889-890(7), 311 S.E.2d 427 (1984) (regarding "private papers" argument). Similarly, the court erred in concluding that the motion should be denied because of the difficulty in enumerating the items improperly seized. Certainly, Grant should not be penalized for the lack of detail in the State's inventory list. Moreover, given that 830 all of his files had been taken, Grant's practical difficulty in specifying the particular items taken which exceeded the scope of the warrant was apparent. "When a motion to suppress is made on one of the three statutory grounds, challenging the validity of a search and seizure with a warrant, the burden of showing that the search and seizure were lawful shall be on the state." (Citation and punctuation omitted; emphasis in original.) Bowman v. State, 205 Ga.App. 347, 348, 422 S.E.2d 239 (1992). The State failed to show that the warrant was legally executed, and the court erred in not granting the motion in this regard. See OCGA § 17-5-30(b); see generally State v. Slaughter, 252 Ga. 435, 315 S.E.2d 865 (1984). "The remedy under state law would be return of the illegally seized items and suppression of that which was seized by an illegal execution of the warrant. OCGA § 17-5-30. This would include only the unlawfully seized items." Hunt v. State, 180 Ga.App. 103(1), 106, 348 S.E.2d 467 (1986); Dobbins v. State, 262 Ga. 161, 163(3), 415 S.E.2d 168 (1992). Thus, we remand the case for determination by the court as to which items should be returned to Grant and suppressed. 2. In four more enumerations of error, Grant essentially contends that the warrant was overbroad and that the items to be seized were not described with sufficient particularity. Again, we agree. OCGA § 17-5-21 provides that a search warrant may be issued for things or papers which are particularly described. OCGA § 17-5-21(a)(1) states that a search warrant may issue for the seizure of "[a]ny instruments, articles, or things, including the private papers of any person, which are designed, intended for use, or which have been used in the commission of the offense in connection with which the warrant is issued."[2] "The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what may be taken, nothing is left to the discretion of the officer executing the warrant. In short, what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the things to be seized is to be accorded the most scrupulous exactitude." (Citations and punctuation omitted.) Lockhart, 166 Ga.App. at 557, 305 S.E.2d 22. "The test for the sufficiency of description is whether on its face it enables a prudent officer executing the warrant to locate [the item] definitely and with reasonable certainty." (Citation and punctuation omitted.) Hunt v. State, 180 Ga.App. at 105, 348 S.E.2d 467. Further, "when circumstances make an exact description of instrumentalities a virtual impossibility, the searching officer can only be expected to describe the generic class of the items he is seeking." (Citations and punctuation omitted.) Id. "We recognize that there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person's papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.... [R]esponsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy." Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S. Ct. 2737, 2749 n. 11, 49 L. Ed. 2d 627 (1976). Here, if the items listed in the warrant are limited to those involving the named participants, the items were described with the requisite particularity. The determination of which documents fell within this rubric *831 would have been a matter of fact, and would have been an appropriate determination for the searching officers to make. Strauss v. Stynchcombe, 224 Ga. 859, 863(2), 866, 165 S.E.2d 302 (1968). However, because the warrant did not clearly limit the items to be seized to those involving the named participants, it was overly broad and allowed for an impermissible exercise of discretion by the searching officers. See generally Annotation, Sufficiency of Description of Business Records under Fourth Amendment Requirement of Particularity in Federal Warrant Authorizing Search and Seizure, 53 A.L.R.Fed. 679 (1981). Again, with the record before us, we are unable to determine which items were improperly seized, and we remand the case so that the court can make this determination. 3. Grant's contention that tapes obtained by a body bug should have been suppressed is without merit. See State v. Birge, 240 Ga. 501, 241 S.E.2d 213 (1978); OCGA § 16-11-66. Accordingly, the court properly denied the motion to suppress on this basis. Judgment affirmed in part, reversed in part and case remanded. BEASLEY, C.J., and RUFFIN, J., concur. NOTES [1] This indictment and its predecessor have given rise to numerous appeals by individuals and corporations named in the indictments. See, e.g., Raines v. State, 219 Ga.App. 893, 467 S.E.2d 217 (1996); Pope v. State, 214 Ga.App. 458, 448 S.E.2d 54 (1994), aff'd 265 Ga. 473, 458 S.E.2d 115 (1995); Fletcher v. State, 213 Ga.App. 401, 445 S.E.2d 279 (1994); State v. Adams, 209 Ga.App. 141, 433 S.E.2d 355 (1993) (in which the trial court quashed the indictments and purported to grant the motion to suppress evidence obtained pursuant to improper grand jury subpoenas). [2] Although not determinative, we are mindful that the alleged offenses here are theft by taking and false statements and that the breadth of the search is somewhat controlled by these crimes. For a discussion of the issue of subterfuge searches, see United States v. Washington, 797 F.2d 1461 (9th Cir.1986); 2 W. LaFave, Search and Seizure, § 4.11(e), pp. 183-184.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2494903/	65 So.3d 1279 (2011) Charles EBINGER, et ux. v. VENUS CONSTRUCTION CORPORATION, et al. No. 2010-C-2516. Supreme Court of Louisiana. July 1, 2011. 1281 Staines & Eppling, Thomas J. Eppling, Metairie, LA, for Applicant. Thomas H. Morrow, Babovich & Spedale, PLC, Wayne M. Babovich, New Orleans, LA, Hailey, McNamara, Hall, Larmann & Papale, LLP, Shailendra U. Kulkarni, W. Evan Plauche', Metairie, LA, Law Offices of Randall L. Kleinman, LLC, Randall Leland Kleinman, Salley, Hite & Mercer, LLC, Glen E. Mercer, New Orleans, LA, for Respondent. KIMBALL, C.J. In this dispute over alleged defects in the construction of a new home, the issue before this Court is whether the construction company's third-party demand against a subcontractor is time-barred. The resolution of this issue depends primarily upon the application of La. R.S. 9:2772, which establishes a peremptive period for actions against residential building contractors. This peremptive period was established originally at ten years, but subsequent amendments have shortened its duration twice. A 1999 amendment reduced the period to seven years; a 2003 amendment reduced it to five years. For the reasons that follow, we find the latest version of the statute applies; consequently, the construction company's right to indemnity is extinguished and its third-party demand is perempted. FACTS In 1995, Charles and Charlene Ebinger contracted with Venus Construction Corporation 1282 to build a home in Lafayette, Louisiana. The couple moved into their new residence in the spring of 1997, obtaining a certificate of occupancy on April 22, 1997. On October 9, 2003, the Ebingers filed the instant suit against Venus, alleging defects in the home's foundation had caused cracks in the drywall, tile, brick walls, and floor. The Ebingers sought recovery under the New Home Warranty Act, La. R.S. 9:3141, et seq. On September 22, 2006, Venus filed a third-party demand seeking indemnification from engineer Roy Carubba and the subcontractor that supplied the foundation, Post-Tension Slabs, Inc. Mr. Carubba filed an exception of peremption based on La. R.S. 9:5607,[1] which governs damages actions against engineers and establishes a five-year peremptive period for such claims. The trial court granted the exception, ruling the statute applies retroactively. The Third Circuit Court of Appeal affirmed the trial court's ruling, finding that Venus' indemnification claim against Mr. Carubba did not exist before La. R.S. 9:5607 was enacted because Venus was not sued by the Ebingers until after the statute took effect. Ebinger v. Venus Constr. Corp., 08-379 (La.App. 3 Cir. 10/1/08), 995 So.2d 1224, 1226 ("Ebinger I"). The court of appeal agreed with the trial court that Venus acquired an "unvested, conditional right" to indemnification when the Ebingers filed suit, but that it was by that time perempted under La. R.S. 9:5607. Id. Following the outcome of that appeal, Post-Tension Slabs filed an exception of prescription, asserting an argument similar to Mr. Carubba'sthat Venus' indemnification claim against it also was perempted. However, Post-Tension based its argument on La. R.S. 9:2772,[2] which provides a five-year peremptive period for such claims against contractors. The trial court granted the exception. Venus appealed, contending the 1997 version of La. R.S. 9:2772, which provided a ten-year peremptive 1283 period, should apply. The Third Circuit Court of Appeal reversed the trial court's ruling. Ebinger v. Venus Constr. Corp., 10-194 (La.App. 3 Cir. 10/6/10), 48 So.3d 375 ("Ebinger II"). The court of appeal agreed with Venus, basing its opinion in part on a provision in La. R.S. 9:2772 that is not contained in La. R.S. 9:5607. Section 2772 provides that its peremptive period "shall extend to every demand, whether brought by direct action or for contribution or indemnity or by third-party practice, and whether brought by the owner or by any other person." La. R.S. 9:2772(B)(3). The Third Circuit reasoned that this language started the peremptive period when the certificate of occupancy was issued in 1997; the court also determined that Venus' claim for indemnity against Post-Tension became a vested right at that time. Id. at 379. Therefore, the court of appeal concluded that the ten-year peremptive period contained in the 1997 version of § 2772 applied, and because Venus' claim against Post-Tension was filed nine years after the peremptive period began, it was not perempted. To review the correctness of this decision, and to resolve an apparent conflict between courts of appeal,[3] we granted certiorari. Ebinger v. Venus Constr. Corp., 10-2516 (La.1/28/11), 56 So.3d 955. LAW AND ANALYSIS Venus' third-party demand against Post-Tension is based on the longstanding principle that a party whose liability results from the faults of others may recover by way of indemnity. See Bewley Furniture Co., Inc. v. Maryland Casualty Co., 285 So.2d 216 (La.1973). The rule of indemnity is founded upon the general obligation to repair the damage caused by one's fault and the moral maxim that "no one ought to enrich himself at the expense of another." Id. at 220 (citing La. C.C. arts. 2315); see also La. C.C. art. 2298.[4] However, the right to indemnity is not necessarily absolute; it may be modified by prescriptive or peremptive periods. As the parties in this matter have acknowledged, La. R.S. 9:2772 establishes a peremptive period for the exercise of Venus' indemnification right against Post-Tension. The crux of their dispute is whether that period is ten years, as the statute originally established, or five years, as a 2003 amendment subsequently established. First, we must determine when the peremptive period commenced. Second, we must address which version of La. R.S. 9:2772 applies to the instant matter. Third, we must decide when Venus' cause of action arose. We will analyze each of these issues in turn. When Did The Applicable Peremptive Period Begin? Enacted in 1964, La. R.S. 9:2772 provides that no action against a residential building contractor can be brought after the applicable peremptive period has run. This prohibition includes third-party demands; the peremptive period "shall extend to every demand, whether brought by direct action or for contribution or indemnity or by third party practice. . . ." § 9:2772(B)(3). Originally, the statute forbid litigation of such an action once ten 1284 years had passed from the owner's acceptance of the work. As amended in 2003, the statute precludes any action brought "more than five years after the date of registry in the mortgage office of acceptance of the work by owner." § 9:2772(A)(1)(a). If no such acceptance has been recorded six months after the owner takes possession, the statute precludes any action brought "more than five years after the improvement has been thus occupied by the owner." § 9:2772(A)(1)(b). Therefore, regardless of the length of the peremptive period, it began when the owners took possession of the house or filed an acceptance of the work. In her deposition, Mrs. Ebinger testified that the couple moved into the house in April or May 1997. The parties in this matter agree that a certificate of occupancy was issued for the Ebingers' residence by American Metropolitan Code Authority on April 22, 1997. No notice of the owners' acceptance appears in the record before us; we therefore assume the peremptive period commenced upon the issuance of the certificate of occupancy. Thus, Venus' indemnity claim is not perempted if the ten-year period applies because its third-party demand was filed in September 2006, approximately nine years and five months after the Ebingers took occupancy of their new home. Alternatively, Venus' indemnity claim is perempted if the five-year period applies. We turn next to the question of which period applies. Which Peremptive Period Applies To This Claim? As previously mentioned, the peremptive period prescribed by La. R.S. 9:2772 has been shortened twice, by amendments in 1999 and 2003. Acts 1999, No. 1024, § 1 substituted "seven" for "ten" years in subsection (A)(1)(a). However, Section 2 of Acts 1999 states: "The provisions of this Act shall have prospective application only and shall apply to contracts entered into on or after the effective date of this Act." The amendment took effect August 15, 1999. Therefore, because the Ebingers entered into a contract with Venus in 1995, the 1999 amendment is inapplicable to the instant matter under the plain meaning of its terms. Whether the 2003 amendment applies is a more difficult question. Acts 2003, No. 919, § 1 substituted "five" for "seven" years in subsection (A)(1)(a). However, the 2003 amendment did not carry the above-quoted provision that it would "have prospective application only." Venus contends the restriction applies to the 2003 amendment despite the absence of that language in the legislation. Venus avers the "prospective only" proviso reflects the legislative intent behind both amendments. Because the statute that shortened the peremptive period of § 2772 from ten years to seven years had prospective application only, Venus asserts, the statute that shortened the period from seven years to five years should likewise have prospective application only. We cannot agree with this statutory construction. When analyzing legislative history, it is presumed the legislature's actions in drafting a law were knowing and intentional. In re Succession of Faget, 10-0188 (La.11/30/10), 53 So.3d 414, 420. More particularly, this Court must assume the legislature was aware of existing laws on the same subject, as well as established principles of statutory construction and the effect of their legislative acts. Id. Therefore, we must interpret the omission of any reference to "prospective only" application in the 2003 amendment as deliberate. The restriction contained in the 1999 amendment referred, by its own terms, to the provisions of the 1999 Act. Had the legislature intended the 2003 amendment to apply 1285 only to contracts entered into after its effective date, it would have included the same language in the 2003 Act. We cannot read into the statute language that is absent from it. Nevertheless, Venus argues the 2003 amendment cannot be applied to perempt its third-party demand against Post-Tension because to do so would disturb a vested indemnification right. Under the Due Process and Contract Clauses of both the United States and Louisiana Constitutions, a law may not be applied retroactively if it would impair contractual obligations or disturb vested rights. M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La.7/1/08), 998 So.2d 16, 29-30. Before we consider whether Venus' indemnification right vested before the 2003 amendment took effect, however, we must analyze whether the 2003 amendment otherwise may be applied retroactively. The Louisiana Revised Statutes are not applied retroactively "unless it is expressly so stated." La. R.S. 1:2. However, the Louisiana Civil Code makes clear that this rule of statutory construction applies to substantive laws only. In the absence of contrary legislative expression, procedural and interpretive laws apply both prospectively and retroactively. La. C.C. art. 6. "[S]tatutes of limitation [the common-law analog to statutes of peremption or prescription] are remedial in nature and as such are generally accorded retroactive application." Lott v. Haley, 370 So.2d 521, 523 (La.1979). La. R.S. 9:2772 does not expressly state that it may be applied retroactively. However, it is a procedural law, establishing a period after which a plaintiff may no longer assert a claim. Subject to the caveat that it may not operate to disturb a vested right, § 2772 may be applied retroactively. Despite the trial court and court of appeal's rulings in this case, we do not find it necessary to accord the statute retroactive application. The 2003 amendment became effective August 15, 2003, approximately two months before the Ebingers filed suit against Venus. Therefore, its application in this matter is not necessarily retroactive. Although the applicable peremptive period commenced in 1997, before the amendment took effect and before the suit was filed, this antecedent does not in itself require retroactivity. "[A]pplying a legislative act to conduct antedating the statute's enactment or upsetting a party's expectations based upon prior law does not mean the statute is impermissibly `operating retroactively.'" Elevating Boats, Inc. v. St. Bernard Parish, 00-3518 (La.9/5/01), 795 So.2d 1153, 1163. As Marcel Planiol explained, a law is retroactive "when it goes back to the past either to evaluate the conditions of the legality of an act, or to modify or suppress the effects of a right already acquired. Outside of those conditions, there is no retroactivity." Id. (quoting 1 Marcel Planiol, Treatise on the Civil Law, § 243 (La. State Law Inst. Trans.1959) (12th ed.1939)). In the instant matter, § 2772 "goes back to the past" not to evaluate the legality of an act but to begin the peremptive stopwatch. Therefore, it is retroactive only if it affects a right already acquired, i.e. vested. The 2003 amendment of La. R.S. 9:2772 became effective before Venus filed its third-party demand against Post-Tension, and it will apply prospectively to perempt that claim if it does not disturb a vested indemnification right. We now turn to the question of whether Venus' right to indemnity vested before the 2003 amendment became effective. 1286 When Did Venus' Cause Of Action Arise? Under Louisiana law, a cause of action accrues when a party has the right to sue. Bourgeois v. A.P. Green Indus., Inc., 00-1528 (La.4/3/01), 783 So.2d 1251, 1259. Fault, causation, and damages are required for a cause of action to accrue. Owens v. Martin, 449 So.2d 448, 451 (La.1984). "Once a party's cause of action accrues, it becomes a vested property right that may not constitutionally be divested." Cole v. Celotex Corp., 599 So.2d 1058, 1063 (La.1992). A right is vested when "the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. The right must be absolute, complete and unconditional, independent of a contingency, and a mere expectancy of future benefit. . . does not constitute a vested right." Sawicki v. K/S Stavanger Prince, 01-0528 (La.12/7/01), 802 So.2d 598, 604 (ellipses in original). Venus contends its right of indemnity against Post-Tension vested as soon as the Ebingers first noticed cracks in the brick veneer of their house. In support of this proposition, Venus relies on lower courts' pronouncements that La. R.S. 9:2772 is an exception to the general rule that prescription on a claim for indemnification does not begin to run until the party seeking indemnification has been cast in judgment. Smith v. Ly, 498 So.2d 128, 130 (La.App. 5 Cir. 1986); see also Claiborne v. Rheem Mfg. Co., 579 So.2d 1199, 1200 (La.App. 5 Cir.1991). Because of this purported exception, Venus argues, its indemnity right vested as soon as the alleged damage manifested itself. In support of this proposition, Venus cites our discussion of liberative prescription in Bailey v. Khoury, 04-0620 (La.1/20/05), 891 So.2d 1268, 1275 (explaining that prescription "generally begins to run when the victim knows or should know of the damage, the delict and the relationship between them."). We disagree that Venus' indemnification right vested as soon as the Ebingers noticed damage in their home. As an initial matter, we are mindful of the difference between prescription and peremption. Although related, the two are not the same and should not be confused; what is true of prescription may not be true of peremption. Peremption differs from prescription in two respects: (1) the expiration of the peremptive time period destroys the cause of action itself; and (2) nothing may interfere with the running of a peremptive time period. Naghi v. Brener, 08-2527 (La.6/26/09), 17 So.3d 919, 926. In addition to this critical distinction between peremption and prescription, we are mindful of the difference between the commencement of peremption and the accrual of a cause of action. These key moments in time apparently have been confused in this case. Although the peremptive period in this matter began on April 22, 1997, nothing in La. R.S. 9:2772 indicates that Venus' right to indemnity vested at that time, as Venus contends. Logic and the nature of indemnity instruct otherwise. Although cracks in the Ebingers' brick veneer may create a cause of action for the homeowners, it did not create Venus' cause of action for indemnity. Indemnity is a separate substantive cause of action, independent of the underlying wrong. Nassif v. Sunrise Homes, 98-3193 (La.6/29/99), 739 So.2d 183, 186. As we explained in Nassif, "[i]ndemnity in its most basic sense means reimbursement, and may lie when one party discharges a liability which another rightfully should have assumed." Id. at 185. Unless and until Venus is cast in judgment, it has discharged no liability for which to seek reimbursement from Post-Tension. A third-party defendant is liable 1287 to the third-party plaintiff only if the third-party plaintiff is cast in judgment. Howard v. Baker Heritage Hosiery, 683 So.2d 827, 830 (La.App. 5 Cir.10/1/96). In other words, liability on a third-party demand is contingent upon the result of the main demand. Burns v. McDermott, Inc., 665 So.2d 76, 79 (La.App. 1 Cir.1995). When the trial court granted the exception of peremption in this matter filed by Carubba, the engineer, the court reached a similar conclusion using the same reasoning. The court held: "Venus only has an unvested, inchoate right to indemnification prior to being cast in judgment. [Venus'] right for indemnification against the third party is not absolute, complete and unconditional, but dependent on a contingency, i.e. being cast in judgment." Ebinger I, 995 So.2d at 1225. The court of appeal reached the same conclusion and adopted the trial court's language, stating: "Once the Ebingers' suit was filed, Venus Construction acquired an unvested, conditional right to indemnification." Id. at 1226. In a similar dispute, the Fourth Circuit Court of Appeal also reached the same conclusion and adopted the language used by the trial court in Ebinger I. In Metairie III v. Poche Constr., Inc., 10-0353 (La. App. 4 Cir. 9/29/10), 49 So.3d 446, an assisted-living center sued its general contractor after problems with the building's sewer system emerged. The general contractor, Poche Construction, Inc., brought a third-party action against its plumbing subcontractor. The Fourth Circuit held Poche's third-party claim against the subcontractor was "merely an unvested inchoate right to indemnification prior to being cast in judgment." Id. at 454. Nevertheless, the Third Circuit Court of Appeal in Ebinger II, supra, reached a conclusion different from those in Ebinger I and Poche. The court distinguished the former case because it involved interpretation of a different statute, La. R.S. 9:5607. The Third Circuit also relied on our holding that "statutes shortening a prescriptive period may be impermissible absent a transitional period sufficient to permit a claimant to seek judicial enforcement of a claim otherwise adversely affected by the new prescriptive period." Ebinger II, 48 So.3d 375, 380 (quoting Elevating Boats, supra, 795 So.2d at 1163, n. 12) (emphasis in original). The court of appeal's reliance on this dictum is misplaced for several reasons. First, the statement applies to statutes that shorten prescriptive periods, not peremptive periods. Second, the statement is conditional, indicating that such statutes are not necessarily impermissible. Third, and most important, to conclude Venus' claim was adversely affected by the new peremptive period is to mistakenly assume Venus could have sought judicial enforcement of that claim. If Venus' cause of action for indemnity did not accrue before the 2003 amendment, as we discussed earlier, its claim did not yet exist. A non-existent claim cannot be adversely affected by a change in the law. As we have explained, the conclusion reached by the court of appeal in Ebinger II was different from the court in Ebinger I because of the following language in La. R.S. 9:2772: "this peremptive period shall extend to every demand, whether brought by direct action or for contribution or indemnity. . ." Because the statute explicitly commenced the prescriptive period for Venus' third-party claim at the time the Ebingers took occupancy of their home, the Ebinger II court held that Venus' right to indemnification vested simultaneously. As discussed above, we disagree. A vested right must be absolute, complete and unconditional, independent of a contingency. Sawicki, 802 So.2d at 604. When the Ebingers took occupancy in 1997, Venus had no claim for indemnification 1288 because it had neither been sued nor cast in judgment. Venus' indemnity right was conditional because it depended on the Ebingers' action; it was contingent because it depended on the outcome of that principal demand. Although cracks in the Ebingers' brick veneer may have established a cause of action for the homeowners, it did not create a cause of action for Venus' third-party claim because that action depends on the Ebingers seeking judicial enforcement of their claim. Until Venus has been cast in judgment, it has not suffered damages that can be recovered from Post-Tension through indemnity because liability has not been established. Therefore, Venus' indemnification right was conditional and incomplete when the Ebingers filed suit against the company. For these reasons, we find Venus' right to indemnification was not vested when the 2003 amendment to La. R.S. 9:2772 became effective. Therefore, the five-year peremptive period established by the amendment applies to this matter, and Venus' third-party demand against Post-Tension is perempted. CONCLUSION La. R.S. 9:2772, which established a five-year peremptive period for actions involving construction defects, became effective on August 15, 2003. More than three years later, Venus Construction Corporation filed a third-party demand seeking indemnification from Post-Tension Slabs, Inc. Because the peremptive period began when the Ebingers occupied the residence in 1997, Venus' claim was perempted before its cause of action arose. Accordingly, the court of appeal's ruling is reversed, and the judgment of the trial court is reinstated. REVERSED. NOTES [1] The statute provides, in pertinent part: No action for damages against any professional engineer, surveyor, engineer intern, surveyor intern, or licensee as defined in R.S. 37:682, or any professional architect, landscape architect, architect intern, or agent as defined in R.S. 37:141, or professional interior designer, or licensee as defined in R.S. 37:3171, or other similar licensee licensed under the laws of this state, or real estate developer relative to development plans which have been certified by a professional engineer or professional architect, whether based upon tort, or breach of contract, or otherwise arising out of an engagement to provide any manner of movable or immovable planning, construction, design, or building, which may include but is not limited to consultation, planning, designs, drawings, specifications, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought unless filed in a court of competent jurisdiction and proper venue at the latest within five years from . . . the date of registry in the mortgage office of acceptance of the work by owner. [2] Paragraph A provides, in pertinent part: No action, whether ex contractu, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract, or to recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable or movable property which may include, without limitation, consultation, planning, designs, drawings, specification, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought against any person performing or furnishing land surveying services, as such term is defined in R.S. 37:682, including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables, or improvement to immovable property, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9) . . . [3] Interpreting the statute at issue in this matter, La. R.S. 9:2772, the courts of appeal reached different results in Ebinger II, supra, and Metairie III v. Poche Constr., Inc., 2010-0353 (La.App. 4 Cir. 9/29/10), 49 So.3d 446. A discussion of this conflict follows, infra. [4] Art. 2315 provides, in pertinent part: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." Art. 2298 provides, in pertinent part: "A person who has been enriched without cause at the expense of another person is bound to compensate that person."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2495342/	62 So. 3d 604 (2007) Lowell Joseph KUVIN, Appellant, v. CITY OF CORAL GABLES, Appellee. No. 3D05-2845. District Court of Appeal of Florida, Third District. August 22, 2007. Lowell Joseph Kuvin, in proper person. Ricci~Leopold and Spencer T. Kuvin, Palm Beach Gardens, for appellant. Akerman Senterfitt and Michael Fertig and Jennifer Cohen Glasser, Miami; Robert S. Glazier, Miami; and Elizabeth M. Hernandez, City Attorney, for appellee. Before CORTIÑAS, and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge. SCHWARTZ, Senior Judge. Kuvin appeals a final declaratory judgment in favor of the City of Coral Gables which upheld the validity of ordinances he violated by parking his personally-used pickup truck on a street in a residential area of the municipality. Coral Gables is justly regarded by itself, by its citizens, and by the entire community as The City Beautiful.[1] Famously, and in most cases appropriately, it seeks to maintain that reputation by enacting and strictly enforcing rigorous restrictions on the design and construction of commercial and residential structures in the City. In this case, however, we conclude that the City has unconstitutionally 605 crossed the line into an impermissible interference with the personal rights of its residents and therefore reverse the judgment below. I. In 2003, Kuvin lived in the City in a rental home with no garage. On February 7 of that year, after a previous warning, he parked his Ford F-150 overnight on the public asphalt in front of his residence. This conduct violated both sections 8-11[2] and 8-12[3] of the City's Zoning Code, which respectively prohibit parking a "truck"[4] (the definition of which clearly includes an F-150) anywhere at any time in a residential area (including a private driveway) or on a public street between 7:00 p.m. and 7:00 a.m. On March 12, a Gables hearing officer found him guilty and assessed fees and costs against him. Kuvin subsequently filed a complaint in the circuit court[5] and then a motion for summary judgment, asserting, on various grounds, including the invalidity of sections 8-11 and 8-12, that his conviction had been unconstitutionally secured. The City responded and filed a cross-motion for summary judgment, which was granted. II. We reverse that ruling because there is no lawful basis for this restriction of the freedom of the residents of the City. The City seeks to justify it as an allegedly appropriate exercise of its general police power over the safety, morals and general well-being of its citizens and the particular authority to regulate zoning and land use in the city. We find, however, that the only proposed and even arguable rationales for this use of the power entirely fail the requirement for a discernible rational relationship between a municipal regulation and the advancement of a governmental goal the City has a right to promote or the discouragement of what it has a right to restrict. See County Bd. of Arlington County v. Richards, 434 U.S. 5, 98 S. Ct. 24, 54 L. Ed. 2d 4 (1977); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S. Ct. 114, 71 L. Ed. 303 (1926); Dep't of Cmty. Affairs v. Moorman, 664 So. 2d 930 (Fla.1995), cert. denied, 519 U.S. 822, 117 606 S.Ct. 79, 136 L. Ed. 2d 37 (1996); City of Miami Beach v. Lachman, 71 So. 2d 148 (Fla.1954), appeal dismissed, 348 U.S. 906, 75 S. Ct. 292, 99 L. Ed. 711 (1955). In our view, therefore, the ordinances are clearly invalid as applied to the appellant and his vehicle:[6] (a) First, the truck parking ban cannot be related to what might be, at least as to section 8-11, a permissible attempt to preserve the residential character of a neighborhood by excluding commercial uses. See Parking Facilities, Inc. v. City of Miami Beach, 88 So. 2d 141 (Fla.1956). This is so for the very simple reason that the ordinances are not restricted to "commercial" vehicles and admittedly include the truck involved here, which serves only the personal use of a resident who both owns the vehicle and lives in Coral Gables. (b) The argument that the ordinances may be supported on aesthetic grounds is just as unacceptable. Apart from pure matters of taste, concerning which government cannot be involved, Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 510, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981), there is nothing to distinguish Kuvin's truck or others like it from what some might think are even more aesthetically displeasing cars or, even more plainly, from one of whatever make or model which is in obvious disrepair or just plain dirty.[7] As the court said in City of Nichols Hills v. Richardson, 939 P.2d 17, 19-20 (Okla.Crim. App.1997): Any vehicle that meets the definition of a "private passenger vehicle"no matter how ugly, rusted or offensive, may be parked in this municipality between the hours of 2:00 a.m. and 5:00 a.m. However, not a single pickupno matter how new, expensive, or "pleasing to the eye," may be parked in any driveway during these hours. The obvious contradiction belies the City's claim that it has enacted the ordinance to protect the aesthetic integrity of the community. The result we reach in this case is in full accordance with numberless decisions of this and every other court which have invalidated government attempts to regulate conduct in similar regards but for no supportable reasons. See Eskind v. City of Vero Beach, 159 So. 2d 209, 211 (Fla.1963)(holding ordinance prohibiting motel signs advertising rates but permitting other motel advertising signs unconstitutional as having "no justification from an aesthetic viewpoint[:] ... a sign advertising rates is not aesthetically distinguishable from a sign advertising [other] motel services"); Pinellas County v. Fiore, 732 So. 2d 1152 (Fla. 2d DCA 1999)(upholding judgment invalidating, as bearing no rational relationship to asserted government interest in prohibiting gambling, ordinance regulating skill machines so as to bar leasing of toy crane machines on premises conducting bingo games); Sunshine Key Assocs. Ltd. P'ship v. Monroe County, 684 So. 2d 876 (Fla. 3d DCA 1996)(reversing order upon holding invalid, as being arbitrary and unenforceable, regulation defining recreational vehicles as less than eight feet wide so as to bar from park vehicles 607 now classified as mobile homes based on width greater than eight feet); Fox v. Town of Bay Harbor Islands, 450 So. 2d 559, 561 (Fla. 3d DCA 1984)(reversing order upon holding invalid, as having "not the slightest bearing upon the health, safety, morals or welfare of the public," ordinance limiting occupancy of parking facility apartment to building superintendent so as to bar occupancy by plaintiff); Campbell v. Monroe County, 426 So. 2d 1158 (Fla. 3d DCA 1983)(reversing order upon holding invalid, as showing no relationship to aesthetic uniformity or safety, ordinance requiring homes be built of masonry to the roof line so as to bar modular housing); Dennis v. City of Key West, 381 So. 2d 312 (Fla. 3d DCA 1980)(reversing judgment upon holding invalid, as having no discernible relationship to public health, welfare or safety, ordinance requiring all live-aboard vessels be docked or moored at designated areas so as to bar live-aboard vessels moored to pilings off the coast of Key West), petition for review dismissed, 389 So. 2d 1108 (Fla.1980); Kuster Enters., Inc. v. Dep't of Transp., 357 So. 2d 794 (Fla. 1st DCA 1978)(quashing Department order upon holding that denial of rule permitting transport of extra-wide prefabricated pools while permitting transport of mobile homes and boats of the same width as having no substantial relationship to legislative purpose); Fogg v. City of S. Miami, 183 So. 2d 219 (Fla. 3d DCA 1966)(reversing order upon holding invalid, as having no relation to public welfare, ordinance prohibiting drive-in stores so as to bar drive-in retail dairy business); City of Miami v. duPont, 181 So. 2d 599 (Fla. 3d DCA 1965)(upholding order invalidating, as unrelated to legitimate use of police power, ordinance regulating size of boathouses so as to bar erection of large structure in residential area on Biscayne Bay); see also Town of Chesterfield v. Brooks, 126 N.H. 64, 489 A.2d 600 (1985)(holding ordinance regulating location of mobile homes invalid as bearing no substantial relationship to goal of retaining town's rural character); Ohio v. Lanham, 107 Ohio App. 3d 533, 669 N.E.2d 80 (1995)(reversing judgment upon finding ordinance prohibiting unlicensed vehicles from being on property for more than thirty days invalid as not advancing public welfare). See generally 2 Sandra M. Stevenson, Antieau on Local Government Law §§ 29.01, 29.26(1) (2d ed. 2006); 6A Eugene McQuillin, The Law of Municipal Corporations §§ 24:15, 24:29 (3d ed. Westlaw database updated Jan. 2007); 8 McQuillin, § 25.31 (3d ed. Westlaw database updated Oct. 2006); 1 E.C. Yokley, Zoning Law and Practice, §§ 3-13, 3-14, 4-6 (4th ed. rev. 2000); 1 Kenneth H. Young, Anderson's Am. Law of Zoning §§ 3:10, 7:3, 7:13, 7:24 (4th ed. Westlaw database updated Nov. 2006); 2 Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning, §§ 16:7, 16:13-16:16, 16:19 (4th ed. Westlaw database updated Apr. 2007). Even more to the point, indeed directly on it, the only cases which have specifically considered a "personal truck" restriction, City of Nichols Hills, 939 P.2d at 17, and Proctor v. City of Coral Springs, 396 So. 2d 771 (Fla. 4th DCA 1981), review denied, 402 So. 2d 608 (Fla.1981), have, as we do, held it invalid. See Pennsylvania v. Frederick, 10 Pa. D. & C. 4th 554 (Pa.Com.Pl.1991)(available at 1991 WL 341737); see also Minx v. Vill. of Flossmoor, 724 F. Supp. 592 (N.D.Ill.1989)(holding that resident stated equal protection claim in alleging that ordinance impermissibly prohibited parking of personal-use pickup truck in driveway while permitting parking of other types of personal-use vehicles). But cf. Henley v. City of Cape Coral, 292 So. 2d 410 (Fla. 2d DCA 1974)(upholding broad ordinance prohibiting commercial vehicles, including "trucks," in residential 608 area; nature of vehicle involved not disclosed). On the other hand, City of Coral Gables v. Wood, 305 So. 2d 261 (Fla. 3d DCA 1974), is decisively distinguishable. First, it regulates "campers," an entirely different vehicular breed. More importantly, the decision is based on the fact that the offender may avoid prosecution by parking his camper in an enclosed garage.[8]Henley, 292 So.2d at 410 (containing similar exception). Kuvin's home, however, has no garage. The effect of the ordinances are therefore to do just what the court said was not involved in Wood: they require Kuvin to choose between owning and parking a personal vehicle of his choice in Coral Gables and leaving town (which is what Kuvin, taking his cursed truck with him, actually did). That is a decision that no government may require. III. But there is a larger issue at stake here. Absent any legitimate basis for the ordinances, what remains is that the City Parents disapprove of a perhaps unorthodox vehicle and the possibly diverse taste and lifestyle which may be reflected by its ownership.[9] See Reid R. Heffner, Thomas S. Turrentine and Kenneth S. Kurani, A Primer on Automobile Semiotics, Institute of Transportation Studies, U. of Cal. Davis (Feb.2006), http://www.its.ucdavis.edu/, available at http://repositories.cdlib.org/itsdavis/UCD-ITS-RR-06-01/; Sangho Choo and Patricia L. Mokhtarian, What Type of Vehicle do People Drive? The Role of Attitude and Lifestyle in Influencing Vehicle Type Choice, Institute of Transportation Studies, U. of Cal. Davis (2004), http://www.its.ucdavis.edu/, available at http://repositories.cdlib.org/postprints/39/; Paul Hollis, Pickup Trucks Have Become Transportation for the Masses (April 5, 2006), www.southeastfarm express.com /mag/farming_pickup_trucks_ become/index.html. This is just what Judge Hurley was getting at in Proctor by characterizing an anti-truck parking ordinance as unconstitutionally contrary to protected rights of association, privacy and "personhood." Proctor, 396 So.2d at 773 (Hurley, J., concurring); see also Moore v. City of E. Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977)(invalidating municipal zoning limitation on occupancy of dwelling to defined "family" as unconstitutionally restricting family choice to "nuclear" family). For a governmental decision to be based on such considerations is more than wrong; it is frightening. Perhaps Coral Gables can require that all its houses be made of ticky-tacky and that they all look just the same,[10] but it cannot mandate that its people are, or do. Our nation and way of life are based on a treasured diversity, but Coral Gables punishes it. Such an action may not be upheld. Reversed with directions to enter declaratory judgment for the appellant and to vacate the guilty determination of the hearing officer. CORTIÑAS, J., concurs. 609 CORTIÑAS, Judge (concurring). I concur entirely but write only to highlight the fundamental and legally significant difference between aesthetic regulations aimed at commercial and/or recreational vehicles[11] and those aimed at personal use mainstream vehicles. While commercial and recreational vehicles have been the subject of judicially-upheld regulations based on aesthetic considerations, personal use mainstream vehicles have not. Personal use mainstream vehicles include cars, station wagons, minivans, sport-utility vehicles ("SUVs"), and light trucks. Record evidence shows that the category of light trucks may encompass pickup trucks, minivans, and SUVs, many of which are smaller in length than some full-size cars.[12] According to Edmunds, a well-known resource for information on personal use vehicles, the Ford F-150 is the best-selling vehicle in the United States. It is also common knowledge that many citizens, just like appellant, choose to drive a light truck as their personal mode of transportation. Courts have upheld municipal ordinances prohibiting the outside parking or storage of recreational vehicles in residential areas. See, e.g., City of Coral Gables v. Wood, 305 So. 2d 261, 263 (Fla. 3d DCA 1974) (upholding zoning ordinance prohibiting campers, trailers, and other vehicles "designed and adaptable for human habitation" on public and private property within the City of Coral Gables as applied to a resident who parked an Apache vehicle in his backyard in a residential area). Similarly, courts have upheld municipal ordinances aimed at curbing the intrusion of commercial vehicles into residential areas. See, e.g., Henley v. City of Cape Coral, 292 So. 2d 410, 411 (Fla. 2d DCA 1974)(upholding ordinance prohibiting commercial vehicles in residential areas except when engaged in construction or repair work); City of Blue Springs v. Gregory, 764 S.W.2d 101 (Mo.Ct.App.1988)(upholding ordinance prohibiting the parking or storing of commercial vehicles over six tons in residential areas except while making deliveries); but cf. Proctor v. City of Coral Springs, 396 So. 2d 771, 774 (Fla. 4th DCA 1981)(invalidating ordinance as applied to a personal use truck that, nevertheless, met the City's definition of a commercial vehicle). In sharp contrast, there is only one reported case involving a municipal regulation prohibiting the parking of a personal use mainstream vehicle, namely a light truck, in a residential area. See City of Nichols Hills v. Richardson, 939 P.2d 17 (Okla.Crim.App.1997). That case addressed the precise issue before us and struck down the regulation in question as not rationally related to aesthetics. Id. Nichols Hills is a very affluent neighborhood near Oklahoma City, similar to Coral Gables. In Nichols Hills, the appellant was cited for violating a city ordinance by 610 parking her pickup truck in the driveway of her Nichols Hills home between the hours of 2:00 and 5:00 a.m. Id. at 17-18. There, the City argued "(a) that `aesthetics' is one of the primary reasons the ordinance was enacted and (b) that the prohibition against pickups `directly relates to the City's interest in controlling land use and maintaining land values.'" Id. at 19. The Oklahoma Court of Criminal Appeals held that, as applied to that appellant and all pickup trucks, the ordinance was unreasonable and overbroad. Id. at 20. In Henley v. City of Cape Coral, 292 So. 2d 410, 411 (Fla. 2d DCA 1974), the Second District upheld a municipal ordinance aimed at protecting residential neighborhoods against the lingering presence of commercial vehicles. The Henley court was not presented with an as-applied challenge to the ordinance. Id. Instead, the court only considered the constitutionality of the ordinance on its face and found it to be "on the whole reasonable." Id. However, most significant to our case, the Second District acknowledged that, if confronted with an as-applied challenge, such an ordinance "may be unconstitutionally applied as for example to a station wagon which gives no outward appearance of being used in business." Id. (emphasis added). In so stating, Henley is entirely consistent with all cases that have struck down, on an as-applied basis, municipal parking regulations affecting a personal use pickup truck. See Proctor, 396 So.2d at 774; Nichols Hills, 939 P.2d at 20. In Proctor, the Fourth District was faced with the type of situation foreseen in Henley, namely a municipal ordinance that, as-applied, was used to prohibit the parking of a personal use vehicle on residential property. Proctor, 396 So. 2d 771-74. Mr. Proctor's vehicle was a personal use pickup truck, without commercial markings, but which qualified within the ordinance's definition of a "commercial vehicle" because it weighed 3/4 of a ton. Id. at 771. The Fourth District held that the subject ordinance was unreasonable and unconstitutional as applied to pickup trucks. Id. at 772. The court found that the ordinance "restricts drivers of pickup trucks from visiting with friends or family by making it illegal to be parked in a residential driveway, or on the hosts' lawn, or in the street in front of the home after 9:00 p.m. even though the vehicle in question is not truly a commercial vehicle...."[13]Id. As applied to this case, the city ordinances prohibit anyone driving a personal use light truck from parking in the private driveway of a Coral Gables property owner. Similarly, an owner of a Ford F-150 vehicle is also prohibited from parking in a Coral Gables metered-parking space or other public area of the City during the evening and overnight hours of every single day. Thus, under the subject ordinances, anyone wishing to dine in Coral Gables may not park his/her personal use light truck in any public area of the City or any residential driveway. The dissent appears to agree that there is a legally significant difference between regulations aimed at a personal use vehicle and those aimed at commercial or recreational vehicles. However, the dissent dispenses with this critical distinction and would uphold the ordinances on the ground that appellant's personal use light truck "looks commercial." Presumably, the same reasoning could be used to uphold 611 a prohibition against the intrusion of Hummers within city limits because they are "military looking." Like Judge Schwartz, I find this distinction to be frightening. It would allow government to regulate the types of personal use vehicles its citizens drive simply based on their outward appearance. Such a holding embraces George Orwell's dystopia, where personal rights are subverted by the government. While affording all appropriate presumptions in favor of the constitutionality of the city ordinances at issue, as applied to appellant's Ford F-150, these ordinances bear no rational relationship to aesthetics. Nichols Hills, Henley, and Proctor stand for the clear proposition that a municipality may not exercise its police powers to regulate the parking of a personal use light truck based on aesthetic considerations. There is nothing to indicate that property values may be affected by the mere presence of a light truck in a private driveway or public parking space. Without more, there is simply no rational relationship between the parking of a personal use Ford F-150 in a residential neighborhood or public street and aesthetics. That is the case in Coral Gables, as it is in Nichols Hills, and in every town in between. ROTHENBERG, J. (dissenting) (revised). The majority opinion strikes down sections 8-11 and 8-12 of the City of Coral Gables' ("the City") zoning code ("Zoning Code") as applied to personal-use pickup trucks on two grounds: (1) sections 8-11 and 8-12 cannot be rationally related to preserving the residential character of a neighborhood by excluding commercial uses because the ordinances are not limited to commercial vehicles; and (2) the ordinances cannot be supported on aesthetic grounds. I must respectfully dissent because the majority opinion suffers from the following fatal flaws: it completely ignores and fails to apply the required standard of review, and it is in direct conflict with binding precedent of the Florida Supreme Court and this Court, holding that aesthetic considerations are a valid basis for zoning in Florida and a valid exercise of a municipality's police powers. The facts are not in dispute. Lowell Joseph Kuvin ("Kuvin") lived in the City in a rental home that did not have a garage. At the time of his residency in the City, Kuvin owned and drove for personal use a Ford F-150 pickup truck, which he routinely parked on the street in front of his home. After several warnings, Kuvin was issued a citation, alleging a violation of the City's Zoning Code. After conducting a hearing, the City's Building and Zoning Board ("Board") found Kuvin guilty of the violation and fined him $50 plus costs. Kuvin appealed the Board's decision by filing a complaint in the circuit court. In his complaint, Kuvin sought a declaration that sections 8-11 and 8-12 of the Zoning Code were unconstitutional. Section 8-11 prohibits the parking of trucks in residential areas of the City unless parked in an enclosed garage. Section 8-12, the zoning ordinance Kuvin was cited for violating, prohibits the parking of trucks, trailers, and commercial and recreational vehicles upon the streets or other public places in the City between the hours of 7:00 p.m. and 7:00 a.m. of the following day. Kuvin eventually moved for summary judgment asserting that: (1) sections 8-11 and 8-12 of the City's Zoning Code violated his right of freedom of association; and (2) sections 8-11 and 8-12 of the City's Zoning Code are unconstitutionally vague, arbitrary, capricious, and selectively enforced as applied to pickup trucks. The City filed a cross-motion for summary 612 judgment. The trial court granted the City's motion and entered a final declaratory judgment in favor of the City. Kuvin appealed to this Court, and the majority opinion reverses the trial court's order. In this dissent, I will address this Court's standard of review, which was not mentioned nor followed by the majority; Kuvin's fundamental rights challenge, which was not addressed by the majority; and decisions by the Florida Supreme Court, this Court, and the Second District that are in conflict with the majority opinion. STANDARD OF REVIEW I begin my analysis by addressing this Court's standard of review. Constitutional challenges to statutes or ordinances involve pure questions of law reviewable on appeal de novo. Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm'n, 838 So. 2d 492, 500 (Fla.2003); see also State v. Hanna, 901 So. 2d 201, 204 (Fla. 5th DCA 2005) ("The interpretation of a statute or an ordinance is a purely legal matter and is subject to de novo review."). Because Kuvin challenges the constitutionality of municipal zoning ordinances, the scope of our review is dependent on the rights that Kuvin alleges are implicated. As Justice Cantero aptly noted in his dissent in State v. J.P., 907 So. 2d 1101, 1120 (Fla.2004), "The first issue in every case considering the constitutionality of a statute or ordinance is which standard applies. Not only is the applicable standard the threshold determination in any constitutional analysis; it is often the most crucial. In this case, it has made all the difference." Kuvin argues on appeal that sections 8-11 and 8-12 of the City's Zoning Code infringe on his fundamental First Amendment right of freedom of association. He therefore contends that the trial court erred in failing to apply a strict scrutiny analysis in determining the constitutionality of the ordinances. Although the majority opinion fails to address Kuvin's "fundamental right" argument or to specify the applicable standard of review in analyzing Kuvin's claims, I can only assume by the majority's silence that it too finds Kuvin's fundamental right argument meritless. I will therefore only address Kuvin's First Amendment fundamental right arguments briefly at the end of my dissent, and focus my analysis on what appears to be the majority's positionthat no fundamental constitutional rights are at issue in this case and the ordinances are not rationally related to a legitimate public purpose. The majority's failure to identify its standard of review and the lens through which it applies its judicial scrutiny perhaps explains its conclusions. In fact, it appears that the majority opinion ignores the legal principles which must govern its review. The judicial lens through which this Court must examine the City's exercise of its police power is governed by well-established law, beginning with the premise that rational basis scrutiny "is the most relaxed and tolerant form of judicial scrutiny," City of Dallas v. Stanglin, 490 U.S. 19, 26, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989) (emphasis added), and municipal zoning ordinances, which are legislative enactments, are presumed to be valid and constitutional. See Orange County v. Costco Wholesale Corp., 823 So. 2d 732, 737 (Fla.2002) (specifying that ordinances reflecting legislative action are entitled to a presumption of validity); State v. Hanna, 901 So. 2d 201, 204 (Fla. 5th DCA 2005) (holding that statutes and ordinances are presumed to be constitutional and all reasonable doubts must be resolved in favor of constitutionality). 613 Statutes and ordinances in Florida not only enjoy a presumption in favor of constitutionality, the Florida Supreme Court and this Court have repeatedly held that zoning restrictions must be upheld unless they bear no substantial relation to legitimate societal policies or it can be clearly shown that the regulation is a mere arbitrary exercise of the municipality's police power. See Dep't of Cmty. Affairs v. Moorman, 664 So. 2d 930, 933 (Fla.1995) ("[W]e have repeatedly held that zoning restrictions must be upheld unless they bear no substantial relationship to legitimate societal policies."); Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Auth., 111 So. 2d 439, 443 (Fla.1959) (holding that zoning regulations are presumptively valid, "and the burden is upon him who attacks such regulation to carry the extraordinary burden of both alleging and proving that it is unreasonable and bears no substantial relation to public health, safety, morals or general welfare"); City of Coral Gables v. Wood, 305 So. 2d 261, 263 (Fla. 3d DCA 1974) ("A zoning ordinance will be upheld unless it is clearly shown that it has no foundation in reason and is a mere arbitrary exercise of power without reference to public health, morals, safety or welfare."). A zoning ordinance also must be upheld if reasonable persons could differ as to its propriety. In other words, "[i]f the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control." Vill. of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 388, 47 S. Ct. 114, 71 L. Ed. 303 (1926); Bd. of County Comm'rs of Brevard County v. Snyder, 627 So. 2d 469, 472 (Fla.1993); City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So. 2d 364 (1941). "The fairly debatable rule has its basis in the deference that the judicial power owes the legislative function under the separation of powers doctrine inherent in our form of government and expressly embodied in our state and federal constitutions." Albright v. Hensley, 492 So. 2d 852, 856 (Fla. 5th DCA 1986) (Cowart, J., dissenting). Thus, "[t]he fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety." Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla.1997). The majority correctly recognizes that no fundamental constitutional rights are at issue in this case and that rational basis scrutiny is the proper standard of review. It however completely ignores and does not apply the "relaxed and tolerant form of judicial scrutiny" mandated by the United States Supreme Court in Stanglin, 490 U.S. at 26, 109 S. Ct. 1591; does not apply the presumption of constitutionality afforded statutes and ordinances; fails to recognize that the regulations must be upheld unless it clearly can be shown to be an arbitrary exercise of the City's police powers bearing no relation to any legitimate public purpose; and does not overcome the highly deferential standard requiring that the ordinances be upheld where reasonable persons could differ as to their propriety. SECTIONS 8-11 AND 8-12 OF THE CITY'S ZONING CODE BEAR A SUBSTANTIAL RELATION TO A LEGITIMATE PURPOSE The City asserts that the ordinances in question are a valid exercise of the City's police power because the ordinances seek to preserve the integrity of the residential areas and the unique aesthetic qualities of the City. Kuvin admits that a zoning ordinance may regulate or limit the use of property on behalf of the general welfare of its citizens and he recognizes that unless the City's exercise of its police powers is 614 clearly shown to be unreasonable, arbitrary, and without a substantial relation to the public health, safety, morals, or general welfare, the ordinance must be upheld. See Fox v. Town of Bay Harbor Islands, 450 So. 2d 559, 560 (Fla. 3d DCA 1984) (holding that the burden of overcoming a zoning ordinance's presumption of validity is satisfied when it is shown that the ordinance does not bear a substantial relation to the public health, safety, morals, or general welfare). Kuvin's argument is that, while the ordinances' restrictions regarding trucks used for commercial purposes may pass constitutional scrutiny, these restrictions, when applied against personal-use trucks with no commercial markings, are arbitrary and unreasonable. The majority agrees with Kuvin but goes substantially further by holding that zoning ordinances cannot be supported on aesthetic grounds. As will be demonstrated herein, the majority's findings conflict with established Florida law. The majority opinion recognizes that the City enjoys and seeks to maintain its reputation as "The City Beautiful." The majority, however, concludes that by enacting the subject ordinances, "the City has unconstitutionally crossed the line into an impermissible interference with the personal rights of its residents." The majority's conclusion is based on two findings: (1) because Kuvin's pickup truck is a personal-use truck not used for commercial purposes, the ordinances do not bear a rational relationship to the City's desire to preserve the residential character of residential neighborhoods against commercial influences; and (2) "[t]he argument that the ordinances may be supported on aesthetic grounds is just as unacceptable." The majority contends that the fact that the ordinances do not address "even more aesthetically displeasing cars ... which [are] in obvious disrepair or just plain dirty ... belies the City's claim that it has enacted the ordinance[s] to protect the aesthetic integrity of the community." These findings, however, ignore well-established law in this district and state recognizing a local government's right to enact legislation to protect the appearance of its community as a legitimate exercise of its inherent police power. ZONING BASED ON AESTHETICS IS A VALID EXERCISE OF THE CITY'S POLICE POWER This Court and other courts of this state have repeatedly found that measures designed to enhance or maintain the aesthetic appeal of a community are a valid exercise of a local government's police power and these measures bear a rational relationship to a legitimate purpose. "Florida has long recognized that local governments may legislate to protect the appearance of their communities as a legitimate exercise of their inherent police power." City of Sunrise v. D.C.A. Homes, 421 So. 2d 1084, 1085 (Fla. 4th DCA 1982) (emphasis added); see also City of Lake Wales v. Lamar Adver. Ass'n of Lakeland, Fla., 414 So. 2d 1030, 1032 (Fla.1982) (recognizing that "[z]oning solely for aesthetic purposes is an idea whose time has come; it is not outside the scope of the police power") (quoting Westfield Motor Sales Co. v. Town of Westfield, 129 N.J.Super. 528, 324 A.2d 113, 119 (1974)); Intl Co. v. City of Miami Beach, 90 So. 2d 906, 906 (Fla.1956) (finding that zoning regulations based on aesthetics are relevant to maintaining the general welfare and well-being of a community); Metro. Dade County v. Section 11 Prop. Corp., 719 So. 2d 1204 (Fla. 3d DCA 1998) (reinstating administrative agency's denial of a special exception to develop land with an industrial-looking mini self-storage facility, finding that aesthetics may be properly considered by 615 the agency); Campbell v. Monroe County, 426 So. 2d 1158, 1160 (Fla. 3d DCA 1983) ("We agree that a Florida county may enforce zoning requirements which primarily regulate aesthetic appearances.") (emphasis added); Lamar-Orlando Outdoor Adver. v. City of Ormond Beach, 415 So. 2d 1312, 1316 (Fla. 5th DCA 1982) (upholding an ordinance banning billboards and off-site advertising in Ormond Beach, a primarily residential community, as a valid exercise of the police power); Moviematic Indus. Corp. v. Bd. of County Commrs of Metro. Dade County, 349 So. 2d 667, 669 (Fla. 3d DCA 1977) (holding that zoning regulations which tend to preserve the residential or historical character of a neighborhood and/to enhance the aesthetic appeal of a community are considered valid exercises of the public power as relating to the general welfare of the community); Wood, 305 So.2d at 263 (recognizing that [a]esthetic considerations have been held to be a valid basis for zoning in Florida; finding that an ordinance prohibiting campers or other vehicles designed or adaptable for human habitation from being kept or parked upon public or private property within the City of Coral Gables, unless confined in a garage, was reasonable and constitutional); see also Sunad, Inc. v. City of Sarasota, 122 So. 2d 611 (Fla.1960), receded from on other grounds by City of Lake Wales, 414 So.2d at 1032; Rotenberg v. City of Fort Pierce, 202 So. 2d 782 (Fla. 4th DCA 1967); State ex rel. Boozer v. City of Miami, 193 So. 2d 449 (Fla. 3d DCA 1967). These cases establish clear and binding precedent of the Florida Supreme Court and this Court upholding zoning regulations that tend to preserve the residential character of a neighborhood and/or to enhance the aesthetic appeal of a community. The majority ignores this binding precedent and concludes that the City's zoning ordinances cannot be rationally related to a legitimate purpose because ugly or rusted private passenger vehicles, which the majority concludes are more offensive vehicles, are not regulated by the subject ordinances, and [o]ur nation and way of life are based on a treasured diversity. With all due respect to the majority, what it finds is more aesthetically displeasing is irrelevant, and the ordinances in question do not legislate against diversity. What the City seeks to preserve is the residential character of the City. One may own and park any private passenger car regardless of its make, model, color, year, or condition anywhere in the City day or night. One may also own and drive a truck, recreational vehicle, or camper, but these vehicles must be parked in an enclosed garage at night. The ordinances do not restrict diversity because they do not restrict ownership or use. The ordinances only restrict where these commercial-looking vehicles are parked at night. The majority's findings also ignore our standard of review, requiring that we must begin with the presumption that the ordinances are constitutional, resolve all reasonable doubts in favor of upholding their constitutionality, uphold the regulations if reasonable persons could differ as to their propriety, uphold the ordinances if their validity is fairly debatable, recognize that the fairly debatable standard of review is highly deferential, and uphold the ordinances unless they are clearly shown to be an arbitrary exercise of the City's police power, bearing no relation to a legitimate public purpose. OPEN-BED PICKUP TRUCKS PARKED IN RESIDENTIAL NEIGHBORHOODS AT NIGHT DETRACT FROM THEIR RESIDENTIAL CHARACTER The majority concludes that the subject zoning ordinances are unconstitutional as 616 applied to Kuvin's open-bed pickup truck because it is not a recreational vehicle nor a vehicle used for commercial purposes. In other words, if Kuvin was a handyman or construction worker by trade and used his open-bed pickup truck for commercial purposes, the majority would have no problem with an ordinance that restricts his ability to park his truck in front of his house in the City at night, even if he left all of his supplies and equipment at the business. On the other hand, if Kuvin only used his pickup truck for personal use, the majority would find it unconstitutional to restrict his ability to park his truck in front of his house at night with a surfboard, smelly fishing nets, or a number of other items in the open bed of his truck. To base the constitutionality of the ordinances solely on whether a person uses his truck for personal or commercial purposes obviously makes no sense and would lead to absurd results. That is why the ordinances restrict the parking of all trailers, recreational vehicles, and trucks in residential neighborhoods at night unless enclosed in a garage. The Coral Gables Zoning Code defines truck as: Any motor vehicle designed, used or maintained for transporting or delivering property or material used in trade or commerce in general. Trucks shall include any motor vehicle having space designed for and capable of carrying property, cargo, or bulk material and which space is not occupied by passenger seating. Coral Gables, Fla., Zoning Code 2-128 (emphasis added). These ordinances make perfect sense and are rationally related to maintaining and enhancing the residential character of the City's neighborhoods and the aesthetics of the City because any vehicle that was designed for commercial use, regardless of whether it is used for commercial purposes, looks the same and is likely to be used to store and carry bulk material exposed to public view. The restriction, therefore, is rationally related to the health and welfare of the residents in the City. Maintaining the aesthetics of the City is rationally related to the welfare of the City. The courts in this state and others have recognized that aesthetics can be an important factor in ensuring the economic vitality of an area and that the separation of the commercial from residential not only affects the health and hazards of the community, it impacts the welfare of the community and the value of property within its borders. The attractiveness of a community... [is] of prime concern to the whole people and therefore affect[s] the welfare of all. Merritt v. Peters, 65 So. 2d 861, 862 (Fla.1953); see also United Adver. Corp. v. Borough of Metuchen, 42 N.J. 1, 198 A.2d 447, 449 (1964) (There are areas in which aesthetics and economics coalesce, areas in which a discordant sight is as hard an economic fact as an annoying odor or sound.). Ordinances prohibiting trucks, house trailers, and campers from being parked in residential neighborhoods have withstood constitutional challenges and have been upheld by various Florida courts. The common thread appears to be the intent to preserve the residential feel and look of the residential areas of the communities that have enacted these ordinances, which Florida's courts have determined is a legitimate governmental interest. We begin with this Courts ruling in Wood, which involved an ordinance similar to section 8-11 of the City's Zoning Code. The ordinance this Court reviewed in Wood prohibited campers, house trailers, and any other vehicle or part of a vehicle designed or adaptable for human habitation, from being parked or kept on public 617 or private property in Coral Gables unless enclosed in a garage. In upholding the ordinance, this Court held that a neighborhoods aesthetics is integrally bound to its property values and is a relevant zoning consideration, and that because Wood was not being deprived of his right to own a camper or recreational vehicle or to store it on his property, but was only being required to store it in a garage or similar structure, the ordinance was not unreasonable. 305 So. 2d at 263-64. Thus, this Court found that the City's ordinance was a valid exercise of the City's police power on its face and as applied to Wood. This Court, therefore, has already spoken loudly and clearly on the constitutionality of ordinances enacted for aesthetic reasons, and has found that, where the ordinance does not restrict ownership or use of the vehicle, it is not unreasonable. Likewise, the ordinances in the instant case were enacted for aesthetic reasons, prohibiting vehicles designed for commercial use from being parked in residential neighborhoods at night, but not restricting ownership or use, and providing a garage exception. Therefore, based upon Wood, the ordinances in question are constitutional, and the majority opinion is in conflict with this Courts opinion in Wood. The majority attempts to distinguish Wood on the basis that there is a difference between aesthetic regulations directed to commercial and/or recreational vehicles and those directed to vehicles that, while designed for commercial use, are being used for personal use. The majority, however, misses the pointthat local governments may constitutionally legislate to protect the appearance of their communities as a legitimate exercise of their inherent police power, and that zoning solely for aesthetic purposes is a valid exercise of the City's police power, as long as it has not clearly been shown that the ordinance has no foundation in reason or is an arbitrary exercise of the City's police power. Wood, 305 So.2d at 263. Kuvin has not made the required showing. Thus, based on Wood, we must affirm. Kuvin has not clearly shown that the City's ordinances have no foundation in reason and are merely arbitrary. Kuvin's pickup truck has a large open bed, an open space clearly designed for transporting material used in trade or commerce, property, cargo, or bulk material. Whether Kuvin actually uses his truck to transport material used in trade or commerce, the look is still the same. If the City may regulate the parking of trucks with open spaces designed for and used for commercial purposes in residential neighborhoods, it is illogical to conclude that the very same trucks may not be regulated if their owners do not use them for their designed purpose. Either way, the vehicle is the same vehicle and the effect upon the residential character of the City is the same because the open space of the vehicle is not designed for passenger travel. The City's ordinances also do not regulate ownership or use. They only regulate where such vehicles are parked at night. Thus, the ordinances, as applied to Kuvin's open-bed pickup truck, are reasonable and not a mere arbitrary exercise of the City's police power. The majority's opinion is also in direct conflict with Henley v. City of Cape Coral, 292 So. 2d 410 (Fla. 2d DCA 1974). In Henley, the Second District upheld an ordinance prohibiting trucks and house trailers of any kind from being parked in the subdivision for more than four hours, and trucks from being parked overnight in all areas zoned residential. Id. at 411. The ordinance provided that no truck, whether being used for commercial or personal purposes, could be parked overnight in residential areas. The court, in upholding the constitutionality of the ordinance, 618 held that the ordinance, which was intended to protect [the city's] residential neighborhoods against the lingering presence of commercial vehicles, was rationally related to a legitimate governmental interest and was not unreasonable nor over-broad as the ordinance did not result in a total ban since it provided for a garage exception. Id. Henley is indistinguishable from this case, and therefore, requires a finding that the instant ordinances are constitutional. Henley cannot be distinguished from the instant case as the ordinance in Henley, just like the ordinances in the instant case, was not restricted to recreational and commercial vehicles. It prohibited all trucks, including personal-use trucks, from being parked for greater than four hours or overnight in residential areas unless enclosed in a garage or a similar structure. The Second District made no distinction in Henley between large trucks and small trucks, or whether they are being used for commercial purposes or solely for personal use, as long as they were designed for commercial use. The ordinances in the instant case also make no distinction between large trucks and small trucks, or whether they are being used for commercial purposes or for personal use as long as they were designed for commercial use. They regulate the parking of trucks, trailers, commercial vehicles, and recreational vehicles within the City regardless of their use. The City defines a truck as [a]ny motor vehicle designed, used or maintained for transporting or delivering property or material used in trade or commerce in general ... including] any motor vehicle having space designed for and capable of carrying property, cargo, or bulk material and which space is not occupied by passenger seating. Coral Gables, Fla., Zoning Code 2-128. THE ORDINANCES ARE NOT UNCONSTITUTIONAL AS APPLIED TO KUVIN'S MODEL OF TRUCK The majority and concurring opinions ignore that the focus in Wood and Henley was on the design of the vehicle, not its use, and concludes that because Kuvin uses his open-bed pickup truck for personal use, the ordinances are unconstitutional as applied to him. No Florida court has made such a distinction, nor should it. Because the open bed of Kuvin's pickup truck was designed to carry and store materials it is indistinguishable from other pickup trucks in general, which are used for commercial purposes. Because Kuvin's truck was designed for commercial purposes, it matters not whether he uses it for its intended purpose. Either way, it projects the same image. The rulings by the Fourth District Court of Appeal in Proctor v. City of Coral Springs, 396 So. 2d 771 (Fla. 4th DCA 1981), and an appellate court in Oklahoma in City of Nichols Hills v. Richardson, 939 P.2d 17 (Okla.Crim.App.1997), do not require that we reach a contrary conclusion. In Proctor, the Fourth District Court addressed the City of Coral Springs' ordinance prohibiting the parking of commercial vehicles on a public right-of-way adjacent to or on private property during certain times unless in a garage or carport. The Fourth District concluded that the ordinance, as applied to Proctor's truck, which had no commercial markings and was not used for commercial purposes, was unconstitutional. The issue in Proctor, however, was not whether a municipality could constitutionally restrict where trucks, trailers or campers are parked, but rather whether the classification of Proctor's personal-use pickup truck as a commercial vehicle was reasonable. The analysis dealt with the reasonableness of the City of Coral Springs' 619 inclusion of personal use trucks in its definition of a "commercial vehicle," because only commercial vehicles were being restricted. In contrast, the ordinances in the instant appeal do not restrict commercial vehicles. They restrict trailers, campers, recreational vehicles, and trucks. Thus, the reasonableness of the application of the ordinances as applied to Kuvin's open-bed pickup truck is beyond question. Interestingly, the Proctor court specifically recognized that an ordinance should be upheld "unless it is clearly shown that it has no foundation in reason and is a mere arbitrary exercise of power without reference to public health, morals, safety or welfare," and that "[z]oning measures designed to enhance the aesthetic appeal of a community have been recognized as a valid exercise of the police power." 396 So. 2d at 771-72 (citing Wood, 305 So.2d at 263). In fact, the Proctor court noted that the ordinance in Wood was not arbitrary or unreasonable because its aim was to prevent "the unsightly appearances and diminution of property values that occurred when camper-type vehicles were parked or stored out of doors in residential areas of a community." Proctor, 396 So.2d at 772. Likewise, sections 8-11 and 8-12 of the City's Zoning Code are not arbitrary or unreasonable because the ordinances seek to preserve the residential character and the overall aesthetics of the City by regulating where vehicles designed for transporting things are parked. The Nichols Hills case was premised on an ordinance making it unlawful to park commercial or recreational vehicles, trailers, taxi-cabs, or mobile homes within certain zoned districts in Nichols Hills, Oklahoma, during certain times, unless the vehicle was screened from view. While the Nichols Hills court found that "[a]esthetic zoning measures aimed at maintaining property values, thereby promoting the general welfare, can be a valid and permissible exercise of the police power[,]" Nichols Hills, 939 P.2d at 19, the court concluded that the ordinance in question was "unreasonable and overbroad" and struck it down. Id. at 20. The court concluded that a blanket prohibition of all pickup trucks regardless of weight, width, or other factors, including its age or condition, was overbroad as applied to all pickup trucks and as applied to the pickup truck in question. I am unpersuaded by this finding. Additionally, because Nichols Hills is an Oklahoma case, and because no Florida court has concluded, as the Oklahoma court in Nichols Hills concluded, we are not required to follow it, and therefore, unlike Wood and Henley, failure to apply its holding in our case presents no conflict. To require a weight, width, age, or condition factor to uphold the ordinances, as the Nichols Hills court found, ignores our standard of review. A rational basis analysis is the most relaxed and tolerant form of judicial scrutiny, Stanglin, 490 U.S. at 26, 109 S. Ct. 1591, and a zoning ordinance must be upheld unless it is clearly shown that it possesses no foundation in reason. Wood, 305 So.2d at 263. The ordinances in question seek to preserve the residential character of residential neighborhoods within the City and to preserve the aesthetics of the City. Kuvin's pickup truck contains a large open bed on the outside of his truck which is designed to carry bulk material, and to store and transport cargo and other items in plain view. Whether Kuvin uses his truck for commercial purposes or simply stores and/or carts his personal property around in the open bed of his truck for all to see matters little. The effect upon the viewer is the same. Thus, the ordinances in question are rationally related to the City's legitimate interest 620 and are constitutional as applied to Kuvin's truck. The concurring opinion takes the position that, because Kuvin's pickup truck is a "mainstream vehicle, namely a light truck," it deserves some special treatment and exclusion in the City's zoning regulations. I must respectfully disagree. It is unclear where the label "mainstream vehicle" originates. There is no cited authority for this "mainstream" classification, nor for the classification of Kuvin's pickup truck as a "light truck." The record does contain a document submitted by Kuvin, who failed to disclose the source of the document, which states that all pickup trucks are "light vehicles." Such a conclusion is incomprehensible as many pickup trucks are quite large and heavy. The dimensions of Ford F-150 trucks provided in footnote two of the concurring opinion are also unavailing as the footnote makes no reference as to where these measurements come from and whether they relate to Kuvin's 1993 F-150 pickup truck, which appears in the photos contained in the record to be larger than later models and substantially larger than the cars the concurring opinion compares to Kuvin's truck. I, therefore, prefer to call Kuvin's truck what it is: a 1993 Ford F-150 open-bed pickup truck. An ordinance which prohibits overnight parking of open-bed pickup trucks, designed to store and transport property, cargo, or bulk material, rather than to transport people, regardless of size and weight, in residential neighborhoods at night, unless enclosed in a garage, is reasonable and rationally related to the City's intent to preserve the aesthetic appeal of the City and the property values of its residents. Kuvin's "light truck" is still a vehicle designed for commercial purposes. Its large open bed is designed to store and transport items, not people. The size and weight of these trucks vary, depending on whether the truck is designed for two passengers or more and the size of the open bed. An argument could be made that Kuvin's smaller truck is more "commercial looking" because it has very limited space for passenger use and a large open cargo area. Thus, calling Kuvin's vehicle a "light truck" adds nothing to the analysis and appears to be nothing more than a term used to deflect attention from the fact that Kuvin's truck is an open-bed pickup truck. Because sections 8-11 and 8-12 of the City's Zoning Code: are constitutional on their face; are constitutional as applied to personal-use pickup trucks designed for commercial purposes; are rationally related to a legitimate governmental interest; and provide a "garage exception," they are constitutional as applied to Kuvin's 1993 Ford F-150 open-bed pickup truck. The fact that the particular house Kuvin chose to rent in the City does not presently have a garage or an enclosed place where Kuvin could park his vehicle at night does not alter this conclusion. Kuvin was on notice regarding the City's regulations when he chose to rent at a location that did not have a garage. THE ORDINANCES ARE NOT UNCONSTITUTIONALLY VAGUE Kuvin also asserts that the ordinances are void for vagueness as they do not give him or persons of ordinary intelligence fair notice of what constitutes the forbidden conduct. Kuvin claims that the vagueness of the ordinances invites arbitrary and selective enforcement against pickup trucks, as the ordinances are not enforced against sport utility vehicles, which technically meet the definition of "truck" under the City's ordinances. On this point, the majority and I agree, the argument is without merit. 621 The standard for testing vagueness is whether a statute or ordinance "gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct." Jones v. Williams Pawn & Gun, Inc., 800 So. 2d 267, 270 (Fla. 4th DCA 2001) (citing Sieniarecki v. State, 756 So. 2d 68, 74 (Fla. 2000)). "The language of the statute [or ordinance] must provide a definite warning of what conduct is required or prohibited, measured by common understanding and practice." Jones, 800 So.2d at 270. Sections 8-11 and 8-12 of the Zoning Code prohibit, in pertinent part, the overnight parking of "trucks" except in an enclosed space or garage. The Zoning Code defines a "truck" as "[a]ny motor vehicle designed, used or maintained for transporting or delivering property or material used in trade or commerce in general." Coral Gables, Fla., Zoning Code § 2-128. The Zoning Code further specifies that "[t]rucks shall include any motor vehicle having space designed for and capable of carrying property, cargo, or bulk material and which space is not occupied by passenger seating." Id. In this instance, there is no doubt that Kuvin's Ford F-150 pickup truck, as defined by the Code, is a "truck." Kuvin admits that his pickup truck is a "truck." Consequently, as sections 8-11 and 8-12 of the Code forbid the overnight parking of "trucks" and Kuvin's pickup truck clearly falls within the Zoning Code's definition of "truck," Kuvin had fair notice of the prohibited conduct. We additionally note that, prior to being cited by the City, Kuvin received a written warning notifying him that his conduct was prohibited. We, therefore, conclude that sections 8-11 and 8-12 of the Zoning Code, as applied to Kuvin, are not void for vagueness. Additionally, Kuvin lacks standing to challenge sections 8-11 or 8-12 of the Zoning Code on the premise that the ordinances may conceivably be applied unconstitutionally to others. We, therefore, need not address his arguments on this ground. Jones, 800 So.2d at 270 (specifying that if the record demonstrates that a person "engaged in some conduct clearly proscribed by the plain and ordinary meaning of the statute [or ordinance], then [that person] cannot successfully challenge it for vagueness nor complain of its vagueness as applied to the hypothetical conduct of others") (quoting Sieniarecki, 756 So.2d at 74-75). THE ORDINANCES DO NOT INFRINGE UPON A FUNDAMENTAL RIGHT Although the majority did not address this argument and thus, by inference has rejected it, because Kuvin's primary argument on appeal is that the ordinances in question infringe on his First Amendment fundamental right of freedom of association, I will briefly address it. It is wellsettled law that if a fundamental right or suspect class is involved, the ordinances in question are subject to strict scrutiny and may only be upheld if they are narrowly tailored to serve a compelling state interest. See J.P., 907 So.2d at 1110 ("To withstand strict scrutiny, a law must be necessary to promote a compelling governmental interest and must be narrowly tailored to advance that interest."). Kuvin does not assert, nor would I find, that he is a member of a suspect class. Rather, he asserts that he is an owner of a personaluse pickup truck and that the ordinances impinge on his fundamental right of freedom of association. He, therefore, claims that because the ordinances infringe upon a fundamental right, the trial court erred in failing to perform a strict scrutiny analysis in determining its constitutionality. This argument is without merit. 622 Although the Constitution does not explicitly use the term "association," the right of association is derived by implication from the First Amendment's guarantees of speech, press, petition, and assembly. Proctor, 396 So.2d at 772. (Hurley, J., concurring). The two types of freedoms of association recognized by the United States Supreme Court as protected by the Constitution are: (1) the right of association to enter into and to maintain certain intimate human relationships; and (2) the right to associate for the purpose of engaging in those expressive activities protected by the First Amendment. Stanglin, 490 U.S. at 24, 109 S. Ct. 1591; Roberts v. United States Jaycees, 468 U.S. 609, 617, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984). Because each is different, they will be addressed separately. A. Intimate Relationships The Supreme Court has not marked the precise boundaries necessary to meet the "intimate relationship" protection. Courts, however, have accorded constitutional protection to marriage, the begetting and bearing of children, child rearing and education, and cohabitation with relatives. Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 546, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1051 (5th Cir.1996). Although the Supreme Court has not held that "constitutional protection is restricted to relationships among family members," it has "emphasized that the First Amendment protects those relationships... that presuppose `deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life.'" Duarte, 481 U.S. at 545, 107 S. Ct. 1940 (quoting Roberts, 468 U.S. at 619-20, 104 S. Ct. 3244). Kuvin received a citation for parking his open-bed pickup truck in front of his residence at night. Kuvin does not allege, nor does the record demonstrate, that the City's ordinances restricting the overnight parking of trucks, except in enclosed garages, interferes with any of his intimate relationships. Kuvin was cited for parking his truck in front of the house he was renting during the prohibited time, not for visiting a close friend or relative in the City. Kuvin does not claim that any of his friends or family members were prevented from visiting him when he lived in the City. He does, however, claim that he is prevented from visiting his friends who live in the City after 7:00 p.m. in his truck. While Kuvin does not substantiate this claim and has never been ticketed for visiting a friend in the City, the types of "intimate associations" that have found protection in the First Amendment have been more intimate than Kuvin occasionally visiting friends who currently reside in the City. See Wallace, 80 F.3d at 1051 ("The specific types of intimate associations which have found protection in the First Amendment have been more intimate than our image of typical coach-player relationships."). Even assuming Kuvin maintained or maintains a close friendship with individuals living in the City, I am unaware of, and Kuvin has failed to direct us to, "any authority which has recognized a close friendship, without more, as the highly personal or intimate human relationship that is protected by the United States Constitution." Henrise v. Horvath, 174 F. Supp. 2d 493, 500 (N.D.Tex.2001) (footnote omitted). B. Expressive Association The second protected right of association is the right of "expressive association." The First Amendment protects "a corresponding right to associate with others 623 in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." Roberts, 468 U.S. at 622, 104 S. Ct. 3244. "According [constitutional] protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority." Id. Although "[t]he First Amendment's protection of expressive association is not reserved for advocacy groups," in order "to come within its ambit, a group must engage in some form of expression, whether it be public or private." Boy Scouts of Am. v. Dale, 530 U.S. 640, 648, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000). If the group engages in "expressive association," constitutional protections are only implicated if the government action "would significantly affect the [group's] ability to advocate public or private viewpoints." Dale, 530 U.S. at 650, 120 S. Ct. 2446. The Supreme Court cautioned in Stanglin that: "It is possible to find some kernel of expression in almost every activity a person undertakes for example, walking down the street or meeting one's friends at a shopping mall but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." Stanglin, 490 U.S. at 25, 109 S. Ct. 1591. To be classified as an expressive association, there is no requirement that the involved group be devoted to advocacy. Dale, 530 U.S. at 648, 120 S. Ct. 2446. Nor must the group take a public stance. Duarte, 481 U.S. at 548, 107 S. Ct. 1940. Similarly, "[t]he fact that the organization does not trumpet its views from the housetops... does not mean that its views receive no First Amendment protection." Dale, 530 U.S. at 656, 120 S. Ct. 2446. Instead, "[a]n association must merely engage in expressive activity that could be impaired in order to be entitled to protection." Id. at 655, 120 S. Ct. 2446. Such worthy endeavors might include service activities, Duarte, 481 U.S. at 548, 107 S. Ct. 1940, transmitting values like the Boy Scouts of America in Dale, 530 U.S. at 650, 120 S. Ct. 2446, and "civic, charitable, lobbying, fundraising, and other activities." Roberts, 468 U.S. at 627, 104 S. Ct. 3244. The "expressive associations" that Kuvin asserts are constitutionally protected are: (1) his occasional visits to the homes of his friends who reside in the City between the hours of 7:00 p.m. and 7:00 a.m. or on the weekends in his open-bed pickup truck; and (2) the occasional visits by a friend who also drives a pickup truck. Kuvin asserts that when his friend came to Kuvin's home to "talk, share ideas about work, or ideas about anything, [his friend] had to violate the City's ordinances and risk being cited for violating its ordinances." Kuvin, however, fails to allege that the ordinances restrict the types of "expressive associations" that are protected under the First Amendment, and certainly, he lacks standing to raise any concerns a friend may have had, especially because Kuvin does not assert that the ordinances in question hampered visitation by his friend. Additionally, the types of expressive associations protected by the Constitution are clearly more "expressive" than Kuvin's occasional visits with his friends residing in the City after 7:00 p.m. or friends with trucks visiting him after 7:00 p.m. for the purpose of sharing time with each other and discussing issues and ideas. Kuvin, therefore, has failed to establish that his "associations" have a clearly articulated expressive identity worthy of constitutional protection under the First Amendment. More importantly, Kuvin's associations are not being restricted. Rather, the restrictions provided in the ordinances apply 624 solely to his vehicle and the ordinances do not prohibit his ownership of a truck. The ordinances permit Kuvin to own and drive his pickup truck in the City. He simply must garage the vehicle at night. As the prohibited activity does not infringe on a fundamental right, the trial court did not err in failing to apply strict scrutiny in its constitutional analysis. CONCLUSION Municipal zoning ordinances, which are legislative enactments, are presumed to be valid and constitutional. Because the ordinances do not impinge on a fundamental right, the trial court correctly applied rational basis scrutiny in evaluating the ordinances and recognized that the ordinances in question must be upheld as constitutional unless they are not rationally related to a legitimate purpose. The City may constitutionally pass ordinances to enhance or maintain the aesthetic appeal of the community and to protect the City's residential neighborhoods against the lingering presence of commercial-looking vehicles. Sections 8-11 and 8-12 of the City's Zoning Code, which restrict where recreational vehicles, campers, and trucks are parked within the City, are rationally related to a legitimate purpose. Kuvin's truck has a large open bed, a space designed for the storage and transporting of cargo in plain view, thus the ordinances prohibiting trucks and other vehicles containing space for transporting or delivering property, rather than for passenger travel, are constitutional as applied to Kuvin. I, therefore, would affirm the trial court's order upholding the ordinances. NOTES [1] Dep't of Highway Safety & Motor Vehicles v. Pipkin, 927 So. 2d 901, 904 (Fla. 3d DCA 2005)(dissenting opinion). [2] Section 8-11, Coral Gables, Florida, Zoning Code, provides, in pertinent part: Parking in residential areas. (a) It shall be unlawful for any person to park any ... truck ... in or upon any property, public or private, in any area of the city which is zoned residential. This prohibition, however, shall not apply in the following cases: 1. Vehicles which are entirely enclosed within the confines of an enclosed garage.... [3] Section 8-12, Coral Gables, Florida, Zoning Code, provides: Trucks, trailers, commercial vehicles, and recreational vehiclesParking upon streets and public places. Except as provided for herein no trucks, trailers, commercial vehicles, or recreational vehicles, shall be parked upon the streets or other public places of the City between the hours of 7:00 p.m. on one day and 7:00 a.m. of the next day. This prohibition is in addition to the total prohibition covering residential areas dealt with in Section 8-11 hereof. [4] Section 2-128, Coral Gables, Florida, Zoning Code, defines a "truck" as: Any motor vehicle designed, used or maintained for transporting or delivering property or material used in trade or commerce in general. Trucks shall include any motor vehicle having space designed for and capable of carrying property, cargo, or bulk material and which space is not occupied by passenger seating. [5] This procedure is the appropriate means to challenge the validity of an allegedly unconstitutional city ordinance because the hearing officer has no authority over that question. Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195 (Fla.2003). [6] It is not necessary orapplying the rule that appellate decisions in general, and ones based on constitutional grounds in particular, should be restricted to the narrowest possible ground, see City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985),it is not even appropriate to go further and determine whether the ordinances are also invalid on their face. See 10 Fla. Jur. 2d Constitutional Law § 102 (2003). [7] Quaere: Could Coral Gables forbid the parking of military-looking, right-angled vehicles, or any car which has not been washed and polished within the previous twenty-four hours? [8] Apparently, the mere configuration of a "truck" is so offensive to the sensibilities of Gables' residents that its enforcement officers have refused to allow Kuvin's truck to be parked there, even if, as he offered, it was completely covered by a protective tarp. [9] We are told that in response to an inquiry from Mr. Kuvin as to how she felt about the anti-pickup-truck law, a passer-by responded that she did not understand why a person who owned such a vehicle would want to live in Coral Gables. [10] See Fine v. City of Coral Gables, 958 So. 2d 433 (Fla. 3d DCA 2007). [11] Commercial vehicles include tow trucks, dump trucks, and buses, among others, while recreational vehicles may include trailers, campers, motor homes, and boats, among others. [12] For example, the dimensions of a Ford F-150 (211.2 inches (l) × 78.9 inches (w) × 73.7 inches (h)), the vehicle in this case, are comparable to those of a Ford Crown Victoria (212 inches (l) × 77.3 inches (w) × 58.3 inches (h)) and a Lincoln Town Car (215.4 inches (l) × 78.5 inches (w) × 59 inches (h)). This vehicle is also smaller than many SUVs. Unlike those of other cities, the ordinances at issue in this case do not contain any limitations concerning the weight or dimensions of trucks being prohibited from driveways or public areas. Such weight and dimension limitations may be enacted by the City to properly regulate much larger commercial use trucks. [13] Our case is even more compelling than Proctor since there is no dispute that appellant's Ford F-150 is a personal use vehicle with no commercial markings and does not remotely qualify as a commercial vehicle.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2495071/	629 F.Supp.2d 318 (2009) John BOWMAN, Petitioner, v. UNITED STATES of America, Respondent. No. 92 Cr. 392 (PKL). United States District Court, S.D. New York. June 24, 2009. Frank Handelman, New York, NY, for Petitioner. Richard Benjamin Zabel, Akin Gump Strauss Hauer & Feld LLP, New York, NY, for Respondent. MEMORANDUM ORDER LEISURE, District Judge: Pro se petitioner John Bowman ("Bowman" or "petitioner") requests that this Court reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) in light of the retroactive 2007 amendments to the United States Sentencing Guidelines (the "Guidelines") for offenses involving cocaine base ("crack cocaine"). For the reasons stated below, petitioner's motion is DENIED. BACKGROUND The facts underlying petitioner's conviction have been laid out in detail in this Court's prior decisions. See United States v. Bowman, No. 92 Cr. 392, 1999 WL 413459, 1999 U.S. Dist. LEXIS 9221 (S.D.N.Y. June 21, 1999) (Leisure, J.); Eubanks 319 v. United States, 11 F.Supp.2d 455 (S.D.N.Y.1998) (Leisure, J.); United States v. Eubanks, No. 96 Civ. 9225, 1997 WL 401667, 1997 U.S. Dist. LEXIS 10275 (S.D.N.Y. July 15, 1997) (Leisure, J.).[1] Accordingly, the Court only provides a brief recitation of those facts germane to the instant motion. On December 11, 1992, a jury convicted Bowman of distribution of and possession with intent to distribute crack cocaine, and aiding and abetting of the same, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2. This Court sentenced Bowman to life imprisonment and ten years of supervised release. In a Summary Order entered December 8, 1994, the United States Court of Appeals for the Second Circuit affirmed Bowman's conviction. Subsequently, this Court considered and rejected Bowman's contentions (i) that the Court improperly enhanced his sentence for obstruction of justice and managerial role, (ii) that the Court improperly increased Bowman's sentence due to his prior felony convictions, and (iii) that Bowman should be resentenced pursuant to Amendment 505 to the Guidelines, which took effect on November 1, 1994. See Eubanks, 11 F.Supp.2d at 461, 465-66. Petitioner now moves this Court again to reduce the terms of his sentence pursuant to the 2007 amendments to the Guidelines for offenses involving crack cocaine. See 18 U.S.C. § 3582(c)(2); U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 1B1.10. DISCUSSION Since the amount of crack cocaine estimated to have been involved in Bowman's conspiracy exceeded 4.5 kilograms, Bowman is not eligible for a sentence reduction, Under § 3582(c)(2), a court can "reduce the term of imprisonment" if it was imposed "based on a sentencing range that has subsequently been lowered." 18 U.S.C. § 3582(c)(2). In 2007, the Guidelines were amended to reduce by two points the base offense levels corresponding to the crack cocaine quantity ranges under § 2D1.1(c). See U.S.S.G. supp. to app. C, amends. 706, 711 (eff. Nov. 1, 2007); § 1B1.10(c). To determine the amended Guidelines range, the Court must substitute the amended provisions of § 2D1.1(c) and "leave all other guideline application decisions unaffected." Id. § 1B1.10(b)(1). However, the Guidelines only authorize a sentence reduction if the retroactive application of the amendments would result in a lower Guidelines range. Id. § 1B1.10(a)(2)(B). Here, petitioner's request for a sentence reduction must fail because application of the amendments does not lower his Guidelines range. The two-level reduction does not "apply in a case in which ... the offense involved 4.5 kg or more ... of cocaine base." Id. § 2D1.1 cmt. n. 10(D)(ii)(1). Since Bowman's offense involved more than 4.5 kilograms of crack cocaine, this Court cannot reduce his sentence. See United States v. Guerrero, No. 91 CR 493-02, 2009 U.S. Dist. LEXIS 35045, at 3 (S.D.N.Y. Apr. 22, 2009) (rejecting defendant's motion to reconsider the court's order denying a sentence reduction where his offense involved 6.665 kilograms of crack cocaine); United States v. Batista, No. 01 CR 823, 2009 U.S. Dist. LEXIS 21523, at 2 (S.D.N.Y. Mar. 16, 2009) (explaining that the Guidelines amendments "did not reduce the penalties for anyone who trafficked in excess of 4.5 kilograms of crack cocaine"); United States v. Delileon, No. 90 Cr. 553, 2008 320 WL 2878632, 2008 U.S. Dist. LEXIS 56308 (S.D.N.Y. July 22, 2008) (holding that defendant was ineligible for a sentence reduction where his offense involved over 240 kilograms of crack cocaine because Amendment 706 does not lower the base offense level for offenses involving 4.5 kilograms or more of crack cocaine); United States v. Thomas, No. S2 05 Cr. 482-02, 2008 U.S. Dist. LEXIS 30612, at 4-5 (S.D.N.Y. Mar. 28, 2008) (denying defendant's application for a sentence reduction because the Guidelines amendments only reduce the offense level of defendants who distributed between 1.5 kilograms and 4.5 kilograms of crack cocaine); see also United States v. Felder, No. 98-CR-363, 2009 WL 1473923, 2009 U.S. Dist. LEXIS 44496, at 3-5 (N.D.N.Y May 27, 2009) (citing United States v. Harris, 312 Fed. Appx. 244, 245 (11th Cir.2009) (per curiam), United States v. Jones, 548 F.3d 1366, 1369 (11th Cir.2008) (per curiam), and United States v. Wanton, 525 F.3d 621, 622 (8th Cir.2008) (per curiam), for the proposition that sentence reductions pursuant to Amendment 706 do not apply in cases where more than 4.5 kilograms of crack cocaine are involved).[2] Bowman also asks this Court to consider his post-conviction rehabilitation in connection with his requested sentence reduction. (See Pet'r Mem. 9.) While a court considers post-sentencing conduct before reducing a defendant's sentence pursuant to the 2007 amendments, see U.S.S.G. § 1B1.10 cmt. n. 1(B)(ii)-(iii), this Court need not consider such conduct since Bowman is ineligible for the sentence reduction. Nevertheless, to the extent that petitioner suggests that his positive post-conviction behavior provides an independent grounds for a sentence reduction, this request would also fail. District Courts "may not generally modify a term of imprisonment once it has been imposed," except as provided for in 18 U.S.C. § 3582. Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir.2007) (per curiam); accord Poindexter v. United States, 556 F.3d 87, 89 (2d Cir.2009) (per curiam) (stating that a "sentencing court may not modify a sentence once it has been imposed except under the limited conditions set forth in 18 U.S.C. § 3582"); United States v. Williams, 551 F.3d 182, 185 (2d Cir.2009) ("Congress has authorized courts to modify a term of imprisonment only in limited circumstances."). Post-conviction behavior is not an enumerated ground for a sentence modification under § 3582(c). Thus, this Court is not authorized by Congress or the Sentencing Commission to reduce Bowman's sentence based on his post-conviction behavior.[3] CONCLUSION Because petitioner's offense involved more than 4.5 kilograms of crack cocaine, he is not eligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Accordingly, *321 petitioner's motion to reduce his sentence is DENIED. SO ORDERED. NOTES [1] Pursuant to the Second Circuit's concerns in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam), copies of all cases citing to electronic databases have been appended to the copy of this Memorandum Order sent to petitioner. [2] Although petitioner cites United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in support of his argument that the Guidelines are merely advisory, and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), in support of his argument that sentencing courts may impose lesser sentences than those in the Guidelines if there is a policy disagreement with the crack-cocaine disparity, this Court will not consider these issues at this time, since petitioner is not eligible for a sentence reduction under § 3582. [3] The Court also notes for petitioner's benefit that "there can be no error in [a] district court's failure to consider ... post-sentencing conduct ..., since by definition those facts could not have been taken into account at the time of the original sentence." United States v. Sutherland, 306 Fed.Appx. 664, 667 (2d Cir.2009).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2495043/	65 So. 3d 411 (2010) T.C.T.B.M. v. B.T. 2090370. Court of Civil Appeals of Alabama. September 24, 2010. Rehearing Denied November 19, 2010. Certiorari Denied January 7, 2011 Alabama Supreme Court 1100269. 412 Alison Baxter Herlihy, Mobile, for appellant. Richard E. Shields of McCleave, Denson, Shields, LLC, Mobile, for appellee. PER CURIAM. T.C.T.B.M. ("the mother")[1] appeals from a judgment of the Mobile Juvenile Court that modified custody of the parties' child, awarded the mother visitation with the child, and ordered the mother to pay child support. We reverse and remand with instructions. L.T. ("the child") was born out of wedlock in January 2005 to the mother and B.T. ("the father"); the mother and the father never married. As a result of a paternity and child-support action filed by the mother, the juvenile court entered a judgment on November 17, 2005, in case no. CS-05-5392, that adjudicated the father to be the father of the child, set the father's monthly child-support obligation at $199 a month, and awarded the father "standard" visitation with the child; however, the father was required to exercise overnight visitation with the child at the paternal grandparents' home. On December 5, 2008, in case no. JU-08-114.91, the father filed a petition to modify the visitation provisions set forth in the November 2005 judgment. On February 11, 2009, the father amended his petition to modify visitation in case no. JU-09-114.91, and he sought an order modifying custody of the child.[2] 413 After conducting an ore tenus hearing, the juvenile court entered an order on October 21, 2009, that stated that it had found that there had been a material change in circumstances since the entry of the November 2005 judgment; however, the juvenile court did not enter a final judgment, and it requested that the child's guardian ad litem make the child's pediatric and counseling records available to the court. The juvenile court awarded temporary joint legal and physical custody of the child to the mother and the father pending entry of its final judgment. On November 30, 2009, the juvenile court entered a judgment that found that the father had met his burden set forth in Ex parte McLendon, 455 So. 2d 863 (Ala.1984), and physical custody of the child was transferred to the father. The judgment also awarded the mother standard visitation with the child and set her child-support obligation at $344 a month. The mother filed a motion to alter, amend, or vacate the juvenile court's judgment, pursuant to Rule 59, Ala. R. Civ. P. In her motion, the mother challenged the juvenile court's finding that the father had met his burden of proof pursuant to Ex parte McLendon, the award of standard visitation, and the calculation of her child-support obligation. The mother's postjudgment motion was denied by operation of law, and she timely appealed.[3]See Rule 1(b), Ala. R. Juv. P. The mother presents three issues for this court to review on appeal: (1) whether the juvenile court erred in determining that the father met his burden of proof pursuant to the custody-modification standard set forth in Ex parte McLendon; (2) whether the juvenile court erred in awarding the mother only standard visitation with the child; and (3) whether the juvenile court erred in its computation of her child-support obligation. The following pertinent facts were presented to the juvenile court. The mother, who was 29 years old at the time of the final hearing, testified regarding a visitation dispute between her and the father. According to the mother, during the summer of 2008, she and the father agreed that the father could exercise overnight visitation with the child at the father's home, despite the restriction set forth in the November 2005 judgment. However, on November 21, 2008, the mother filed a petition for protection from abuse against the father after the child complained after visitation with the father that the father had hit him in the stomach and had made his "food come up." According to the testimony of the parties, a hearing on the mother's petition for protection from abuse was held on December 17, 2008, and the mother voluntarily dismissed her petition on the condition that the father abide by the November 2005 judgment, which restricted his overnight visitation with the child to be spent at the paternal grandparents' home. The mother did not dispute that the father missed two weekend visits with the child as a result of her petition for protection from abuse. The mother stated that the father had not missed any visits with the child since that time. At the time of the final hearing, the child was enrolled in school in a pre-kindergarten program. According to the mother, the child's grades were wonderful, 414 the child was learning French, and the child was doing "fabulous" at that school. The father stated that he wanted the child to go to a different school, one that was known for their educational facilities; however, the father admitted that he was not familiar with the child's school on an educational level. The father testified that the mother regularly changed religious affiliations while he was in a relationship with heri.e., before the entry of the November 2005 judgmentbut that he never discussed the mother's religious beliefs with her because, he said, "[i]t [is] up to an individual to seek what they think is the truth." The father submitted an article from a local magazine, that appeared in the October 26, 2005 November 8, 2005 issue of the magazine, that featured the mother.[4] In the article, the mother discussed her religious affiliations, but the mother alleged at the final hearing that the local magazine had misquoted her. The father stated that he did not attend a church. The mother again changed religious affiliations in June 2007. At the time of the final hearing, the mother had been married for almost two years and she and her husband had a 13-month-old child. The mother met her husband on a Web site around July 2007, and they married in January 2008.[5] The mother stated that the child had spent only two days around her husband before they married. However, according to the mother, her husband and the child had a good relationship and the father had never expressed any complaints about her husband. The mother also stated that her two children got along very well. The mother testified that she had difficulty communicating with the father because he would not speak to her on the telephone and would only communicate via text messages. The father stated that he would not talk to the mother on the telephone because she had a reputation for being untruthful and because he wanted everything that she said to be in writing. However, he stated that he would promote telephone contact between the child and the mother if he was awarded custody of the child. The mother stated that she had congenital optic neuropathy with a nystagmus, which basically means that she has poor depth perception; for that reason, she is unable to obtain a driver's license. However, the mother stated that her condition was not degenerative and that, other than her inability to drive, her condition did not affect her everyday life. She stated that she relied on her husband and her mother for transportation. At the time of the final hearing, the mother worked approximately 20 hours each week at a therapeutic massage parlor, and she earned approximately $1,500 a month. The mother stated that she worked on Mondays from 1:00 p.m. to 6:00 p.m., on Thursdays from 10:00 a.m. to 5:00 p.m., on Fridays from 9:00 a.m. to 3:00 p.m., and on "some" Saturdays or Sundays. The mother began taking the child to a counselor in December 2008 after the child told her that the father had hit him in the stomach and had made his "food come up." The mother stated that the child had had 415 nightmares and horrible screaming fits on Sunday nights after he returned from weekend visitation with the father. The mother stated that she paid the child's counselor $100 for each visit and that she could not afford to take him twice a month. However, even including the child's school tuition, which was $270 a month, the mother agreed that her monthly income exceeded her monthly expenses. The evidence indicated that the child was not under any course of treatment with his counselor and that the counselor only saw the child to check his progress. The mother stated that she did not use illegal drugs and that she did not drink alcohol. The mother stated that the father had never expressed any concerns about the way that she raised the child. The father indicated that he thought that the mother might try to take the child out of the country,[6] apparently because the mother had sought his help in obtaining a passport for the child. The mother stated that she had asked the father about getting a passport for the child so that she and the child could visit the mother's friend in Canada. The mother stated that she and her mother, the maternal grandmother, were the subject of an investigation by the Alabama Department of Human Resources ("DHR") in January 2008 after the child, who was three years old at the time, was found "wandering" down the street from the maternal grandmother's home. However, the mother stated that she was not at her mother's home at that time and that no one from DHR ever interviewed her about the incident or otherwise did any follow-up to the investigation. The child's counseling records indicated that the child's counselor had filed a report with DHR in December 2008 concerning the allegations of abuse made by the child that implicated the father. According to the child's records, DHR had assigned a caseworker to investigate the father, but nothing in the record on appeal indicates that the father was found to have abused the child. The father testified that, since the entry of the November 2005 judgment, he had graduated from college with a degree in engineering and had found employment earning approximately $26 an hour. According to the father he was required to work 40 hours a week, which he typically fulfilled from 8:00 a.m. to 5:00 p.m., Monday through Friday. The father bought a three-bedroom, two-and-one-half-bathroom home in February 2008, and, at the time of the final hearing, the father had one roommate, a man who was a manager of an anesthesiologist group at a local hospital. The father testified that he had never hit or injured the child, that he had a great relationship with the child, and that he had unilaterally increased the amount of child support that he paid to the mother from $199 a month to $325 a month in January 2008.[7] The father stated that he had an extensive family network in the Mobile area that could assist him in caring for the child. The mother's family-support system apparently consisted of her husband, her mother, her stepfather, her grandfather, and her aunt. He stated that the last time he spent time with the mother's mother, she had used prescription medication, alcohol, and marijuana. However, he stated that he had not seen the mother's family 416 since his relationship with the mother ended in April 2005. The father stated that he sought custody of the child because he felt like he could provide a more stable environment for the child and because he wanted to spend more time with the child. The father stated that he was what had changed since the entry of the November 2005 judgment. He stated that his environment would be better for the child because he lived in a good neighborhood close to schools and a hospital. He stated that the child's life would be improved because the child would have a set schedule, because he would be available for the child on the weekends, and because he had a driver's license. We find the mother's first issue, whether the father met his burden pursuant to Ex parte McLendon, dispositive of her appeal. This court's standard of reviewing a judgment modifying custody is well settled: "When evidence in a child custody case has been presented ore tenus to the trial court, that court's findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determinationit hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing." Ex parte Bryowsky, 676 So. 2d 1322, 1324 (Ala.1996). In its final judgment, the juvenile court did not set forth any specific findings of fact to support its determination that the father had met his burden pursuant to Ex parte McLendon. Thus, this court must assume that the juvenile court made findings of fact that would support its judgment, unless those findings would be clearly erroneous. Ex parte Bryowsky, 676 So.2d at 1324. Pursuant to Ex parte McLendon, the father, as the party petitioning to modify custody of the child, was required to prove (1) that he was a fit custodian, (2) that a material change in circumstances affecting the welfare of the child had occurred since the entry of the November 2005 judgment, and (3) that the change in custody would materially promote the best interest and welfare of the child so that the inherently disruptive effect of the proposed change in custody would be outweighed by the positive good resulting from the change. 455 So. 2d at 865-66. Regarding the "material-promotion" prong of the Ex parte McLendon standard, our supreme court has explained: "`[This] is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child's healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court's satisfaction that material changes affecting the child's welfare since the most recent decree demonstrate that custody should be disturbed to promote the child's best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned.' "Wood v. Wood, 333 So. 2d 826, 828 (Ala. Civ.App.1976). "It is not enough that the parent show that [he] has . . . reformed h[is] lifestyle, and improved h[is] financial position. Carter v. Harbin, 279 Ala. 237, 184 So. 2d 145 (1966); Abel v. Hadder, 404 So. 2d 64 (Ala.Civ.App.1981). The parent 417 seeking the custody change must show not only that [he] is fit, but also that the change of custody `materially promotes' the child's best interest and welfare." 455 So.2d at 865-66. After a careful review of the record, we conclude that the father failed to meet this burden. The father presented evidence indicating that he could provide a stable home environment for the child. However, the father presented no evidence indicating that the child was living in an unstable environment in the mother's home, or that the mother did not provide the child with a schedule. Although the father argued that his work schedule allowed him to be available for the child on the weekends, we cannot conclude that the positive good brought about by the father's ability to spend the entire weekend with the child was sufficient to overcome the inherently disruptive effect that a change in custody would have on a four-year-old child who had lived primarily with the mother since his birth. The father also presented evidence indicating that the child would benefit by living with him because the father had a driver's license and the mother did not. However, there was no evidence indicating that the mother's inability to obtain a driver's license affected the child in any way. The mother presented undisputed evidence indicating that her husband and her mother met her transportation needs, and there was no indication that they could not do so in the event of an emergency. Furthermore, although the father testified that he wanted to enroll the child in a school that was well known for its educational facilities, the father presented no evidence indicating that the school that the child attended at the time of the final hearing did not provide the child with a good education; in fact, the father admitted that he was not familiar with the child's school on an educational level. The father did not present any complaints about the mother's ability to raise the child, her parenting techniques, her husband, or even her oftchanging religious affiliations. "We readily acknowledge that the trial court was in the best position to evaluate the credibility of the witnesses. See Fell v. Fell, 869 So. 2d 486, 494 (Ala.Civ.App. 2003) (noting that the trial court is in the unique position to directly observe the witnesses and to assess their demeanor and credibility). Although it was certainly within the province of the trial court to determine the credibility of the witnesses and to shape its judgment accordingly, that judgment must be supported by the evidence. See Judah v. Gilmore, [804 So. 2d 1092 (Ala.Civ.App. 2000)]." Bishop v. Knight, 949 So. 2d 160, 167 (Ala. Civ.App.2006). There was much disputed testimony at the ore tenus hearing, and, as stated above, the juvenile court was in the best position to resolve those disputes. However, the fact remains that the record lacks evidence to support a finding that the child's best interests would be materially promoted by the change in custody. Because we conclude that the juvenile court's judgment modifying custody of the child is unsupported by the evidence, we must reverse the judgment that awarded custody of the child to the father.[8] In light of the foregoing, we also remand the case with instructions to vacate the portions of the judgment that transferred custody of the child to the father, awarded the mother *418 visitation, and ordered the mother to pay child support. REVERSED AND REMANDED WITH INSTRUCTIONS. All the judges concur. NOTES [1] The mother's name appears in the record a number of different ways. We have chosen to use initials reflecting the version of the mother's name that appears in the juvenile court's final judgment. [2] We conclude that the juvenile court properly exercised jurisdiction to modify its November 2005 judgment. Before the enactment of the current Alabama Juvenile Justice Act ("the AJJA"), § 12-15-101 et seq., Ala.Code 1975, which became effective on January 1, 2009, the juvenile court had continuing jurisdiction to modify a custody judgment made in conjunction with a paternity action pursuant to former § 12-15-32, Ala.Code 1975, and former § 26-17-10(e) Ala.Code 1975. See W.B.G.M. v. P.S.T., 999 So. 2d 971, 974-75 (Ala.Civ.App.2008). Both former § 12-15-32 and former § 26-17-10(e) were repealed when the AJJA became effective. See Act No. 2008-2779(a), Ala. Acts 2008; and Act No. 2008-376, Ala. Acts 2008, § 1. Pursuant to § 12-15-117(a), Ala.Code 1975, a provision in the AJJA, the juvenile court now retains continuing jurisdiction only over cases in which "a child has been adjudicated dependent, delinquent, or in need of supervision. . . ." Because the father filed an action to modify the November 2005 judgment in December 2008, before the enactment of the AJJA, we conclude that the juvenile court retained jurisdiction to modify its November 2005 judgment. [3] Throughout the proceedings below, the juvenile court and the parties used both case numbers, JU-09-114.91 and CS-05-5392, to refer to the action initiated by the father on December 5, 2008, and assigned case no. JU-09-114.91. The mother's appeal was docketed by the clerk of this court as an appeal from JU-09-114.91 and CS-05-5392. Although some of the pleadings and the judgment list both case numbers, the judgment in case no. JU-09-114.91 is what is actually being appealed by the mother. [4] We note that this article was published before the entry of the November 2005 judgment, and nothing in the record indicates that the father became aware of this article only after the entry of the November 2005 judgment. [5] According to the mother, she was married once before she married her current husband. That marriage lasted approximately six months. According to the mother, she divorced her first husband because he was careless with firearms around the child. [6] The mother's husband is not an American citizen, but, at the time of the final hearing, he had a "green card." [7] The father's child support obligation was subsequently increased, apparently by a court order, to $450 a month. [8] Because the custody-modification issue is dispositive of the mother's appeal, we pretermit discussion of the remaining issues presented by the mother on appeal.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2495461/	439 F. Supp. 2d 779 (2006) Thomas BURR, et al., Plaintiffs, v. Andrew BURNS, et al., Defendants. No. 2:04-CV-1118. United States District Court, S.D. Ohio, Western Division. July 7, 2006. 780 781 Phillip Douglas Lehmkuhl, Mt. Vernon, OH, for Plaintiffs. John T. McLandrich, Mazanec, Robert Henry Stoffers, Raskin & Ryder Co., LPA, Frank H. Scialdone, Cleveland, OH, Michael S. Loughry, Mazanec Raskin & Ryder 782 Co., LPA, Columbus, OH, for Defendants. OPINION AND ORDER SARGUS, District Judge. This matter is before the Court on Defendants' Motion for Summary. Judgment pursuant to Federal Rule of Civil Procedure 56(c). For the reasons that follow, the Motion is granted in part and denied in part. I. This matter arises following events that transpired between the Plaintiffs, Thomas Burr, age 25, and Marie Stamp, age 18, and the Defendants, Officers Andrew Burns and Bethany Marti. In the early morning of August 3, 2004 in the City of Mt. Vernon, Ohio, at approximately 1:15 a.m., Mt. Vernon police received a citizen's complaint of a loud disturbance in or near a local cemetery. The police investigated the disturbance and apprehended one suspect, but another eluded police by running into the cemetery. Officer Burns was instructed to take a position on Taylor Road near the cemetery to watch for the fleeing suspect, who was identified to the officer as a shirtless white male with the alias of Ted Laylor. At approximately 1:30 a.m., Plaintiffs Burr and Stamp were entering the parking lot of an apartment complex on Taylor Road when they encountered Officer Burns. According to Plaintiffs, Burns immediately instructed the two to drop to the ground, while shining his flashlight in their faces. Officer Burns, however, contends that he first instructed Plaintiffs to stop, and only when Plaintiff Burr continued to walk towards him, did he instruct both to drop to the ground. Plaintiffs also allege that Burns did not initially identify himself as a police officer and that they were unable to see the per son speaking to them because of the flashlight shining in their eyes. Thus, ignoring Defendant Burns' orders, Plaintiffs continued to walk toward Officer Burns. Burns, however, contends that he identified himself as a police officer from the beginning of the incident and that although Burr continued to walk, Stamp immediately stopped walking towards him. According to Plaintiffs, Stamp was eventually able to identify the speaker as a police officer and complied by lying down on the ground. Burr, who was still unable to identify the person speaking as a police officer, did not comply with Burns' repeated commands to get on the ground. Burr continued walking towards Burns, asking the identity of the speaker. After numerous commands to drop to the ground, Burr was eventually able to either see past the glare of the flashlight to realize that the person speaking was wearing a police uniform and had a gun pointed at him. He then complied with Burns' command to get on the ground. While lying flat on the ground in the parking lot, Plaintiffs were interrogated by Officer Burns as to their identities and recent activities. Since the ground was wet, Burr asked for permission to rise to his hands and knees. While he asked, he began to rise, and Officer Burns, according to Burr, gently placed his knee on Burr, forcing him back to the ground, (Burr Depo., p. 147). Officer Burns then gave Burr permission to rise to his hands and knees. Burns continued to interrogate Burr from behind him. At one point, Burr turned to look at the officer. In so doing, he rose to the fingertips of one hand. As a result, Officer Burns told Burr to place his hands behind his back and handcuffed him. Shortly thereafter, Officer Marti arrived and handcuffed Stamp. 783 Officer Marti then took Stamp to the back of a police cruiser and interrogated her. Stamp was then removed from the cruiser and seated on the curb while still handcuffed, where she remained for twenty minutes before Officer Marti received radio orders to release her. Burr was subsequently placed in the cruiser and driven to the cemetery. He was taken out of the cruiser and told to stand handcuffed in front of it while a high-powered spotlight was shown on him. The police then asked the apprehended suspect, Heath Mickey, if Burr was the person who ran from the police into the cemetery. Mickey said that Burr was not that person. Burr was returned to the cruiser where he was given and passed a breath exam to test for the presence of alcohol. Burr was then removed from the cruiser, partially uncuffed, and instructed to remove his shirt and stand in the spotlight again. Mickey was asked again if the now shirtless Burr was the suspect and Mickey again stated he was not. Burr nonetheless was re-handcuffed and placed in the cruiser. At approximately 3:00 a.m., the police, on the request of Burr's probation officer, Rene Joris, then drove Burr to the Knox county jail and incarcerated him for possibly violating his probation by failing to comply with the order of a police officer. Plaintiff Burr contends that Joris was given false information, namely that he had tried to flee from Burns, which led Joris to request his arrest. On August 4, 2004, at the request of Joris, Burr was released from jail, nearly 32 hours after he was first detained. According to Burr, during this time, he was compelled to provide two urine samples, was never given an explanation for his detention, and was not permitted to contact an attorney. Burr was not charged with any crime or probation violation arising from the incidents of that night. Plaintiffs allege that these events have caused them to suffer from bad dreams, flashbacks, and fear of police as well as sleeplessness and anxiety. (Pls' Mem. in Opp., at p. 22). Plaintiffs, however, have not sought medical attention for said ailments, nor have they suffered any lost wages because of such injuries. Plaintiffs contend that their detainment was unnecessary because Officer Burns was looking for a shirtless male named Ted Laylor running from the cemetery. Stamp, obviously, failed to exhibit any such qualities. Burr, likewise, was neither shirtless, out of breath from running, or named Ted Laylora fact of which Burr contends Officer Burns should have been aware of because Burns had testified against Plaintiff Burr in a criminal trial only six weeks previously. Instead, Plaintiffs allege that their arrests were result of a malicious purpose because both Defendant police officers as well as the other police officer on the scene, Mark Perkins, were witnesses for the prosecution of Burr in the above-mentioned criminal trial, in which Burr was acquitted. Plaintiffs' amended complaint contains state law claims of assault, battery, unlawful arrest, false imprisonment, and intentional infliction of emotional distress, as well as various federal claims arising under 42 U.S.C. § 1983 for violations of the United States Constitution. On November 23, 2004, Defendants removed the case from the Knox County Court of Common Pleas. On August 12, 2005, this Court partially granted Defendants' Motion to Dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). The remaining claims, including claims against the City of Mount Vernon, are now before the Court on the Defendants' Motion for Summary 784 Judgment pursuant to Fed.R.Civ.P. 56. II. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). To avoid summary judgment, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); accord Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir.1993). "[S]ummary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) (stating that the court must draw all reasonable inferences in favor of the nonmoving party and must refrain from making credibility determinations or weighing evidence). In responding to a motion for summary judgment, however, the nonmoving party may not rest upon its mere allegations but must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324, 106 S. Ct. 2548; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir.1994). Furthermore, the existence of a mere scintilla of evidence in support of the nonmoving party's position will not be sufficient; there must be evidence on which the jury reasonably could find for the nonmoving party. Anderson, 477 U.S. at 251, 106 S. Ct. 2505; see Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995); see also Matsushita, 475 U.S. at 587-88, 106 S. Ct. 1348 (finding reliance upon mere allegations, conjecture, or implausible inferences to be insufficient to survive summary judgment). III. Plaintiffs bring federal claims under 42 U.S.C. § 1983 (Section 1983) for unreasonable seizure in violation of the Fourth Amendment of the United States Constitution. Defendants contend that Plaintiffs' claims for such violations are unsupported by the record and that this Court should accordingly grant summary judgment in their favor pursuant to Fed.R.Civ.P. 56. Section 1983 provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.... 785 42 U.S.C. § 1983. Section 1983 creates no substantive rights, but merely provides a mechanism for aggrieved persons to obtain a remedy for deprivation of rights established elsewhere. Oklahoma City v. Tuttle, 471 U.S. 808, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985). Section 1983 has two basic requirements: state action which deprives an individual of federal statutory or constitutional rights. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir.1998); United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir.1992). Here, the parties do not dispute that the police officers were acting under color of state law at time of the incidents giving rise to Plaintiffs' claims. In order to avoid a summary judgment, therefore, Plaintiffs must present evidence that, when viewed in the light most favorable to them, a reasonable juror could find in their favor that Defendants violated their constitutional rights under the Fourth Amendment. A. Wrongful Detainment The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures including unreasonable arrests by law enforcement officers without probable cause. Police officers, however, may briefly detain an individual "if they have a reasonable suspicion supported by articulable facts that criminal activity `may be afoot,' even if they lack probable cause under the Fourth Amendment." United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). The criteria for a reasonable-suspicion detainment, commonly referred to as a Terry stop, are significantly less arduous than the probable cause requisite for arrests. Detaining under reasonable suspicion requires only that the police officer, "`in light of his experience,' be able to conclude reasonably that illicit activity might be in progress." Spear v. Sowders, 71 F.3d 626, 631 (6th Cir.1995). Moreover, the evidence supporting such conclusion may be "less reliable" than what is required for probable cause. The Court must view the officer's conclusion in light of the "totality of the circumstances." Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). Thus, to survive a motion for summary judgment, a Section 1983 wrongful detainment claimant must offer evidence that could lead a reasonable juror to conclude that the detaining officer failed to have a reasonable suspicion for conducting a Terry stop. Plaintiffs Burr and Stamp maintain that Defendants violated their Fourth Amendment rights by unlawfully detaining them without a reasonable, articulable suspicion that they were engaged in illegal activity. The Court concludes that a reasonable juror could rule in favor of Plaintiffs on their Fourth Amendment claims of wrongful detainment and therefore DENIES Defendants' Motion for Summary Judgment with respect to this claim. The undisputed facts indicate that Officer Burns knew that the suspect who had eluded the police was a male, alone, shirtless, reportedly named Ted Laylor, and was last seen running through the cemetery in an eastwardly direction. Plaintiff Stamp met none of these descriptions, whereas Plaintiff Burr only shared the suspect's sex. Plaintiffs also contend that the location of the detainment, a mile away from the original complaint, was too attenuated to produce a valid reasonable suspicion that Burr could be the sought-after suspect. Moreover, Plaintiffs contend that Officer Burns' prior encounters with Plaintiff Burr, namely the fact that he had testified against Burr six weeks earlier in an unrelated criminal trial, invalidates the 786 claim that Officer Burns reasonably suspected him to be Ted Laylor. Indeed, Plaintiffs allege that their detainment, and Burr's subsequent arrest, were the result of a malicious purpose given that all officers involved (Burns, Marti, and Perkins) had testified for the prosecution in Burr's previous trial that resulted in Burr's acquittal just six weeks earlier. (Pl.'s Mem. in Opp., at p. 19). Defendants, however, assert that the detainment of Plaintiffs was valid under the reasonable suspicion standard primarily because: (1) there was a citizen complaint of a disturbance in the area; (2) it was late at night when very few people were in the area; (3) Burr and Stamp were walking near, or at least in the vicinity of, the cemetery; (4) the suspect was last seen fleeing on foot; (5) Burr and Stamp were on foot; (6) Plaintiffs were carrying backpacks, in which a shirt could have been stored and later put on once Burr fled the original scene; (7) Defendants had no personal knowledge of a man named Ted Laylor, nor any reason to believe that was the correct name of the suspect; (8) Burr was acting erratically; and (9) Stamp was accompanying Burr, a possible suspect, suggesting she too might have been involved in criminal activity. The Court recognizes that the reasonable suspicion standard is not a demanding one to meet; however, this specific claim turns on the fact-sensitive issue of whether Officer Burns had reasonable suspicion to make a Terry stop. Drawing all reasonable inferences in favor of Plaintiffs, as alleged; that the Plaintiffs failed to possess many of the characteristics of the suspect; and that the location of the incident is arguably not near where the original complaint was made, Plaintiffs have raised enough evidence from which a jury could reasonably find for them. Thus, the Court DENIES Defendants' Motion for, Summary Judgment as to Plaintiffs' claim for a violation of the Fourth Amendment in respect to their original detainment. B. Probable Cause for Arrests Plaintiffs additionally allege that Defendants violated their Fourth Amendment rights by wrongfully arresting them. A Section 1983 wrongful-arrest claimant must prove that there was a lack of probable cause to believe that the suspect had committed a crime. Devenpeck v. Alford, 543 U.S. 146, 156, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004); Stemler v. City of Florence, 126 F.3d 856, 871 (6th Cir.1997). Probable cause to make an arrest exists if, at the moment of the arrest, "the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrestee] had committed or was committing an offense.'" Klein v. Long, 275 F.3d 544, 550 (6th Cir.2001) (quoting Donovan v. Thames, 105 F.3d 291, 298 (6th Cir.1997)). Probable cause is assessed "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir.1997) (quoting Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)), and thus "probable cause determinations involve an examination of all facts and circumstances within an officer's knowledge at the time of an arrest." Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir.2000). The question of probable cause, therefore, is a factually intensive one. Thus, "in general, the existence of probable cause in a § 1983 action presents a jury question, unless there is only one reasonable determination possible." Klein, 275 F.3d at 550 (quoting Gardenhire, 205 F.3d at 315). 787 1. With Respect to Plaintiff Burr Without resolving an issue that is triable to a jury, the Court finds that a reasonable juror could conclude the police lacked probable cause for Plaintiff Burr's arrest. Defendants contend that probable cause existed to arrest Burr, as a matter of law, because he ignored Officer Burns' numerous commands to lie in a prone position. Defendants also contend that the existence of probable cause is supported by the fact that Burr argued with Officer Burns before complying with his orders and disregarded clear commands to keep his hands on the ground. Defendants contend that these acts, and/or omissions, presented probable cause that Burr had violated the terms of his parole by failing to comply with law enforcement and by obstructing the official business of an authorized official in violation of Ohio Rev.Code (O.R.C.) § 2921.31.[1] Burr, however, contends that his acts did not obstruct Officer Burns' official duties, because the events that allegedly gave rise to the probable cause and legitimized his arrest occurred before Officer Marti arrived. Burr reasons that he could not have postponed his arrest or otherwise interfered with official business because Officer Burns only had one set of handcuffs and there were two people in need of detainment. Thus, Burr disputes that Officer Burn's investigation was prohibited, hindered, or delayed by Burr's alleged non-compliance contending Officer Marti's tardy arrival as backup, and not his own conduct, caused the delay in the arrest. The Court has already held that genuine issues of material fact remain as to the initial stop of Plaintiff Burr. There is sufficient evidence at this juncture to create a genuine issue of material fact. Accordingly, because a reasonable juror could find that the initial detainment was without reasonable suspicion, or that the arrest was effectuated at the beginning of the encounter without probable cause, this Court DENIES Defendants' Motion for Summary Judgment. 2. With Respect to Plaintiff Stamp Plaintiffs similarly allege that Officer Burns arrested Stamp when he ordered her on the ground. Defendants, however, dispute this assertion and instead contend that Stamp was merely detained pursuant to a lawful Terry stop and was never arrested. For the same reasons noted above, there is a genuine issue of material fact that the jury must decide regarding the question of whether an arrest was effectuated by Burns' order to drop to the ground, and therefore the Court DENIES Defendants' Motion for Summary Judgment with respect Stamp's Fourth Amendment claims. Defendants rely on Houston v. Clark County Sheriff Deputy John Does, 174 F.3d 809 (6th Cir.1999), in support of their theory that Stamp's detainment never evolved into an arrest and for the proposition that neither the use of handcuffs nor detention in a police cruiser necessarily transforms a Terry stop into an arrest. (Defs.' Reply to Pls.' Mem. in Opp'n to Defs.' Mot. for Summ. J. 9). Houston, however, stresses that the factual circumstances, including the duration and motivation of the initial detainment, are essential 788 to determine if a Terry stop has ripened into an arrest. In Houston, the Court of Appeals ruled, "[a]though there is no bright line that distinguishes an investigative stop from a de facto arrest, the length and manner of an investigative stop should be reasonably related to the basis for the initial intrusion." Houston, 174 F.3d at 814 (internal citations omitted). The detainees in Houston, like Stamp, were both handcuffed and placed in police cruisers for somewhere between thirty-five minutes to an hour. The Court in Houston found that such a detainment did not ripen into an arrest. Unlike Stamp, however, the Houston detainees were thought to be armed and were suspected of involvement in a serious and violent crime, factors which the court cited that had bearing on its holding. Id. at 815. The detainment of Stamp, conversely, was made following a complaint of trespass; nonetheless, she was forced on the ground at gunpoint by Officer Burns and detained, questioned, and handcuffed for twenty minutes. According to Stamp, Officer Marti did not remove the handcuffs, even after it was allegedly obvious that Stamp did not present a threat to the police officers, herself, or other persons. Defendants refute these allegations, citing that Officer Burns was justified to order the Plaintiffs to the ground at gunpoint due to safety concerns that were present when Burr continued to walk towards him with his hands hidden behind the backpacks he was holding. Defendants also contend Officer Marti was justified in handcuffing and detaining Stamp until it was clear that Burr was not the sought-after-suspect so as to insure that she too was not involved in criminal activity. Viewing the evidence in a light most favorable to Plaintiff Stamp, the Court concludes that genuine issues of material fact remain for resolution by the jury with respect to her Fourth Amendment detainment claims. For instance, a jury must determine all the facts surrounding the timing of her detainment and ultimately whether it ripened into an arrest. Furthermore, a jury must assess the credibility of the testimony regarding the conflicting accounts of the events of the night and the basis to detain Stamp in the first place. For these reasons, Defendants' Motion for Summary Judgment is DENIED with respect to Stamp's Fourth Amendment detainment claims. 3. Conclusion Accordingly, this Court DENIES Defendants' motion for summary judgment in respect to all of the Plaintiffs' Fourth Amendment wrongful arrest claims. C. City of Mount Vernon The United States Supreme Court held in Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), that municipalities may be liable under Section 1983 only for their own policies and practices and not the individual actions of employees. Thus, a municipality may only be held liable under Section 1983 when (1) a constitutional violation has occurred and (2) the municipality "is responsible for that violation." Doe v. Claiborne County, Tenn., 103 F.3d 495, 505 (6th Cir.1996). In determining whether a municipality is responsible for a constitutional violation, the Court will consider whether the municipality's acts and or omissions constituted "deliberate indifference." Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir.1997). In order to show deliberate indifference, a claimant must "identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy." Coogan v. 789 City of Wixom, 820 F.2d 170, 176 (6th Cir.1987) (adopting the test articulated in Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir.1984) (en banc)). There is no respondeat superior liability under Section 1983: "a plaintiff ordinarily cannot show that a municipality acted with deliberate indifference without showing that the municipality was aware of prior unconstitutional actions of its employees and failed to respond." Stemler, 126 F.3d at 865 (6th Cir.1997) (citing Board of County Commr's of Bryan County, OK v. Brown, 520 U.S. 397, 407, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997); and City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989)). Here, Plaintiffs allege, inter alia, that the City of Mount Vernon is liable for the alleged misconduct of its police officers because it "has been, and is `deliberately indifferent' in the area of adequately training, [and] supervising its police officers . . .." (Pls.' Mem. in Opp., at p. 16). They assert that the City of Mount Vernon has no written policy, or rule governing the use of force, or of firearms in effecting an arrest, and no written policy, or rule governing the use of force in making an arrest. (Burr Aff., 5). Plaintiffs contend that the absence of such policy or rule resulted in Officer Burns' alleged Fourth Amendment violations. (Pls' Mem. in Opp., at p. 16). Burr, however, is not competent to make such an assertion, and his affidavit testimony in this regard is not admissible pursuant to Rule 56(c). Affidavits, according to Fed.R.Civ.P. 56(e), shall be made on personal knowledge. Burr asserts in his affidavit that he has personal knowledge of the Mount Vernon Police Department and its written policies. When asked about this personal knowledge in his deposition, however, he denied having any understanding of the written polices and procedures, and instead claimed his knowledge arose from local lore. (Burr Depo., 215). Stamp similarly does not assert that she has any personal knowledge of the polices of the Mount Vernon Police Department. (Stamp Depo., 120) Despite these admissions in their depositions, Defendants again asserted this same unsupported allegation in their opposition to summary judgment. Moreover, the city of Mount Vernon specifically produced copies of applicable policies and procedures related to the use of force and firearms during discovery. (See Merrilees Aff., Ex. 1). Beyond offering evidence of the police department's written policies concerning use of force and firearms, Defendants have also shown that both Officer Burns and Marti are graduates of the Ohio Peace Officer Training Academy and have continued to receive training throughout their careers. (Burns Aff., ¶ 3; Marti Aff., ¶ 3). Evidence of such training, absent any contrary evidence, overcomes allegations of deficiencies in training and supervising police officers. Fisher v. Harden, 398 F.3d 837, 849 (6th Cir.2005). A party's mere allegations, absent specific facts, will not survive a motion for summary judgment. Fed.R.Civ.P. 56(e). Here, Plaintiffs have failed to provide factual evidence in support of their claim that Mount Vernon is liable for the alleged constitutional violations of its police officers based on its failure to adequately train and supervise such officers. Indeed, Plaintiffs have ignored evidence in the record that suggests otherwise. Moreover, Plaintiffs have failed to provide any specific evidence that the City of Mount Vernon had prior knowledge of past unconstitutional acts by its police officers or that the City or any of its officials should have known that the policies and training would fail to protect against such abuses. 790 In light of Plaintiffs' failure to present a factual basis for their claims against the City of Mount Vernon, this Court GRANTS Defendants' Motion for Summary Judgment to the extent of the City of Mount Vernon's possible liability arising under Section 1983. D. State Law Claims 1. False Arrest and False Imprisonment Defendants move for summary judgment on Plaintiffs' false arrest and false imprisonment claims. Under Ohio law, false arrest and false imprisonment are separate and distinct torts. A false arrest refers to the unlawful deprivation of liberty by an authority with arrest powers. False imprisonment, alternatively, involves the unlawful detention by a private party. Rogers v. Barbera, 170 Ohio St. 241, 243, 164 N.E.2d 162 (Ohio 1960) (internal citations omitted). Here, because Defendants are police officers with arrest powers, Plaintiffs' claim, if any, is for false arrest, not false imprisonment. Therefore, Defendants' Motion for Summary Judgment is GRANTED with respect to Plaintiffs' false imprisonment claims. Ohio law dictates that a claim for false arrest requires proof of (1) a detention of the person, and (2) an unlawful detention. Faulkner v. Faulkner, 2000 WL 5910, at 1 (Ohio App. 6 Dist. Jan. 7, 2000). It is undisputed that Plaintiffs were detained. Thus, Plaintiffs' false arrest claim turns on whether Burr and/or Stamps' detainment was unlawful. As noted above, the Court has concluded that genuine issues of material facts exist over whether Defendants had reasonable suspicion to detain Plaintiffs, and/or probable cause to arrest them. Accordingly, Defendants' Motion for Summary Judgment is DENIED in respect to Plaintiffs' false arrest claims. 2. Assault and Battery Defendants similarly move for summary judgment on Plaintiffs' claims of assault and battery. In Ohio, a party is subject to liability for battery when she or he acts intending to cause a harmful or offensive contact, and when a harmful contact results. Love v. City of Port Clinton, 37 Ohio St. 3d 98, 99, 524 N.E.2d 166 (Ohio 1988). Offensive contact is contact which is offensive to a reasonable sense of personal dignity, id., whereas an assault is the willful threat or attempt reasonably places the other in fear of such contact. Smith v. John Deere Co., 83 Ohio App. 3d 398, 406, 614 N.E.2d 1148 (1993). In other words, an assault is the beginning of an act, which, if consummated, would constitute battery. Matlock v. Ohio Dep't of Liquor Control, 77 Ohio Misc.2d 13, 665 N.E.2d 771 (Ohio Ct.Cl.1996)(citing Ryan v. Conover, 59 Ohio App. 361, 26 Ohio Law. Abs. 593, 18 N.E.2d 277 (1938)). Ohio courts, however, have recognized that in making arrests police officers must sometimes act in such a manner that, when viewed on its face, would constitute assault and/or battery. Indeed, the Ohio Supreme Court held that the acts of subduing and handcuffing are acts of intentional contact which, unless privileged, constitute a battery. Love v. City of Port Clinton, 37 Ohio St. 3d 98, 99, 524 N.E.2d 166 (citing Restatement of the Law 2d, Torts (1965) 25, Section 13).[2] Here, genuine 791 issues of fact remain for jury disposition regarding whether officers' acts were privileged under Ohio law.[3] Accordingly, Defendants' Motion for Summary Judgment on Plaintiffs' state tort claims of assault and battery is DENIED. 3. Intentional Infliction of Serious Emotion Distress Plaintiffs allege, as a result of their detainment, they have incurred serious emotional distress in the form of bad dreams, flashbacks, and fear of police. (Pl. Reply to Mot. for Summ. J. 23). They seek damages for these injuries from Defendants under Ohio tort law protecting against the intentional infliction of emotional distress. The Ohio Supreme Court defined the tort of intentional infliction of emotional distress as "[One who by extreme and outrageous conduct intentionally or recklessly causes serious emotional distress to another." Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen, & Helpers of Am., 6 Ohio St. 3d 369, 374, 453 N.E.2d 666, 671 (1983). The Eighth District Appellate Court of Ohio later outlined four prima facie elements that has since been adopted by all Ohio courts. These elements are as follows: (1) that the actor either intended to cause emotional distress or knew or should have known that the actions taken would result in severe emotional distress; (2) that the actor's conduct was extreme and outrageous, that it went beyond all possible bounds of decency and that is can be considered as utterly intolerable in a civilized community; (3) that the actor's actions were the proximate cause of the plaintiffs psychic injury; and (4) that the mental anguish suffered by plaintiff is serious and of a nature that no reasonable person could be expected to endure. Pyle v. Pyle, 11 Ohio App. 3d 31, 34, 463 N.E.2d 98, 103 (Ohio App.1983). Defendants assert that Plaintiffs have failed to provide evidence in any pleading, affidavit, or answer to interrogatory that suggests that they fulfill the fourth element, namely that they have suffered any serious emotional distress resulting from the Defendants' conduct. The Supreme Court of Ohio has held: By the term `serious,' we of course go beyond trifling mental disturbance, mere upset or hurt feelings. We believe that serious emotional distress describes emotional injury which is both severe and debilitating. Thus serious emotional distress may be found where a reasonable person, normally constituted, would be unable to adequately cope with the mental distress engendered by the circumstances of the case. A non-exhaustive litany of some examples of serious emotional distress should include traumatically induced neurosis, psychosis, chronic depression, or phobia. Paugh v. Hanks, 6 Ohio St. 3d 72, 78, 451 N.E.2d 759 (Ohio 1983). In light of this standard, the Court finds that Plaintiffs have not raised any issue of 792 material fact concerning whether they have suffered from serious and debilitating emotional distress. Indeed, the record suggests the opposite. The record shows that Plaintiffs have seemingly been able to adequately cope, exemplified by Plaintiff Stamp's ability to earn her G.E.D. and Plaintiff Burr's ability to hold multiple jobs since the incident. Additionally, Plaintiffs have failed to exhibit, or at least allege, the severe symptoms outlined in Paugh that could amount to serious emotional distress. Even if Plaintiffs' claims did rise to the level of severity proscribed, Ohio courts additionally require evidence to suggest some "guarantee of genuineness" of a claim. Buckman-Peirson v. Brannon, 159 Ohio App. 3d 12, 25, 822 N.E.2d 830, 840 (Ohio App.2004). To satisfy this burden, Ohio Courts often seek some evidence of medical treatment; expert medical testimony, however, is not necessarily indispensable. Paugh, 6 Ohio St.3d at 80, 451 N.E.2d 759. In the absence of such expert testimony, however, the Plaintiff must present some evidence in the record beyond mere allegations suggesting a serious and debilitating emotional injury to serve as a guarantee of genuineness in order to survive a motion for summary judgment. Buckman-Peirson, 159 Ohio App.3d at 25, 822 N.E.2d 830. Plaintiffs offer no such evidence. Accordingly, this Court finds that Plaintiffs have failed to present any evidence suggesting that their injuries were serious and debilitating, or any evidence guaranteeing the genuineness of their claims. Thus, the Defendants' Motion for Summary Judgment on this claim is GRANTED. E. Qualified Immunity of Officers in Official Capacities 1. Immunity from Federal Claims Defendants Burns and Marti contend, regardless of whether they have violated Plaintiffs' constitutional rights, they are entitled to qualified immunity from Plaintiffs' Section 1983 claims. The doctrine of qualified immunity provides that, in civil suits for monetary damages, government officials acting in their official capacity and performing discretionary functions are generally shielded from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Gardenhire v. Schubert, 205 F.3d at 310-11 (6th Cir.2000) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). Qualified immunity involves a three-step inquiry. The Court must determine (1) whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show a that constitutional violation has occurred; (2) whether the violation involved a clearly established constitutional right of which a reasonable person would have known; and (3) whether the plaintiff has offered sufficient evidence "to indicate that what the official allegedly did was objectively unreasonable in light of the clearly establish constitutional rights." Feathers v. Aey, 319 F.3d 843, 847 (6th Cir.2003) (quotations and citations omitted); see also Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). The Court has already determined that Plaintiffs have presented sufficient evidence with respect to their Fourth Amendment claims to survive a motion for summary judgment. Thus, the question of whether Officers Burns and Marti are shielded from liability under the doctrine of qualified immunity turns on (1) whether the rights were clearly established to the extent that Officers Burns and Marti would have reasonably known that they *793 were violating Plaintiffs' Fourth Amendment rights, and (2) whether "it would be clear to a reasonable officer that his [or her] conduct was unlawful in the situation he [or she] confronted." Saucier, 533 U.S. 194 at 202, 121 S. Ct. 2151, 150 L. Ed. 2d 272. It is clearly established that police officers must base arrests on probable cause. St.John v. Hickey, 411 F.3d 762, 770 (6th Cir.2005) (citing Radvansky v. City of Olmsted Falls, 395 F.3d 291, 310 (6th Cir.2005); Klein, 275 F.3d at 550 (6th Cir.2001); Donovan, 105 F.3d at 298 (6th Cir.1997)). Here, assuming the Plaintiffs allegations are true, the issue turns on whether a reasonable law enforcement officer, similarly situated, would recognize that he or she lacked probable cause. The record contains sufficient evidence for the Court to conclude, for the purposes of summary judgment, that the constitutional right asserted by the Plaintiffs was clearly established. A reasonable officer would have such known that such conduct violated the constitution. Accordingly, Defendants' Motion for Summary Judgment based on Defendants' alleged qualified immunity is DENIED. 2. Immunity from State Law Claims Ohio police officers are immune from liability in performing a governmental function unless the officer's "act or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner." O.R.C. § 2744.03(A)(6)(b). The parties do not dispute that Defendants were engaged in a governmental function. Thus, the issue confronting the Court is whether Defendants acted with a malicious purpose, in bad faith, or in a wanton or reckless manner. Here, when viewing the evidence in the light most favorable to the nonmoving Plaintiffs, a reasonable jury could conclude that Defendants acted in such a malicious manner. In light of the officers' past experience with Plaintiff Burr, Defendants' reaction to the offense of trespass, and the fact that neither Plaintiff matched the description of the sought-after-suspect, this Court concludes genuine issues of material fact exist as to whether immunity under O.R.C. § 2744.03 applies. Accordingly, the Court DENIES Defendants' Motion for Summary Judgment on the basis of statutory immunity. IV. Based on the foregoing, Defendants' Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. This case will be set for trial as soon as practicable by separate Order from the Court. IT IS SO ORDERED. NOTES [1] O.R.C. § 2921.31 provides in pertinent part: (A) No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official's official capacity, shall do any act that hampers or impedes a public official in the performance of the public official's lawful duties. (B) Whoever violates this section is guilty of obstructing official business .... [2] "An arrest, whether with or without a warrant, usually involves conduct which, unless privileged, is an `assault' or `battery' as well as a `false imprisonment.' If an arrest is made by a mere touching without confinement, as in the execution of a valid warrant, the touching is offensive and, unless privileged, is a `battery' .... " Restatement (Second)of Torts § 118 cmt. b (1965). [3] Defendants did not address the merits of Plaintiffs' assault and battery claims. Instead, Defendants rely on their argument that they are statutorily immune from all state law claims, including assault and battery. Although the Court addresses Defendants' assertions of immunity infra, the Court notes that if a police officer's conduct was not privileged, Ohio Courts have held that statutory immunity does not apply and the officer's conduct in illegally detaining or arresting an individual may constitute assault or battery. Kaylor v. Rankin, 356 F. Supp. 2d 839, 854 (N.D.Ohio 2005).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2495198/	629 F.Supp.2d 699 (2009) UNITED STATES of America v. Mazen ABDALLAH, Wesam Abdallah. Criminal Action No. H-07-155. United States District Court, S.D. Texas, Houston Division. April 29, 2009. 703 Suzanne Bradley, Financial Litigation, Albert A. Balboni, Ryan D. Mcconnell, United States Attorneys Office, US Marshal, US Pretrial Svcs., US Probation, Houston, TX, for Plaintiff. Philip Harlan Hilder, James Gregory Rytting, Hilder & Associates P.C., Michael Emory Clark, Hamel Bowers et al., Houston, TX, for Defendants. MEMORANDUM AND OPINION LEE H. ROSENTHAL, District Judge. This Medicare and Medicaid fraud case arises out of ambulance transportation of individuals to and from regularly scheduled, nonemergency dialysis treatments. The individuals transported all suffered from renal disease. The government alleged that Mazen and Wesam Abdallah, brothers who purchased and operated an ambulance service from the codefendants, committed fraud and conspiracy to defraud by submitting claims for payment by Medicare and Medicaid for regularly scheduled nonemergency ambulance transports to and from dialysis of patients whose medical conditions did not make them medically eligible for the service. The government also alleged that Wesam Abdallah violated the statutory "antikickback" provisions prohibiting soliciting ambulance riders by paying them or someone else to obtain the business, and that Mazen Abdallah committed money laundering using the proceeds of the healthcare fraud. Two codefendants, Ayad Fallah and Murad Almasri, pleaded guilty to conspiracy to commit health care fraud. After a five-week trial in which the codefendants were among over forty witnesses, the jury convicted Mazen and Wesam Abdallah of conspiracy to defraud Medicare and Medicaid programs and to obtain money from Medicare and Medicaid by false billing, in violation of 18 U.S.C. § 1347. The jury acquitted Mazen Abdallah of the substantive healthcare fraud counts and acquitted him of the money laundering charge. The jury convicted Wesam Abdallah of four substantive counts of healthcare fraud and one count of violating the antikickback statute. Both defendants moved for a judgment of acquittal or in the alternative for a new trial. They argue that the evidence was insufficient and that prosecutorial misconduct, Brady violations, and the court's erroneous legal rulings infected the trial. Based on a careful review of the motions, response, and replies; the record; the evidence presented at trial; and the applicable law, this court denies the Abdallahs' motions for acquittal and new trial. The reasons for these and related rulings are explained in detail below. I. Background A. The Medicare Statute and Regulations The Medicare Act, 42 U.S.C. § 1395 et seq., established a federally subsidized health insurance program. Part A of the Act provides insurance for the cost of hospital and related postdischarge services. 42 U.S.C. § 1395c et seq. Part B establishes a program of "supplemental medical insurance" covering physicians' charges and other medical services, including ambulance service. 42 U.S.C. §§ 1395k, 1395(1), and 1395x(s); 42 C.F.R. § 410.40(a)(2). The Medicare program is run by the United States Department of Health and Human Services (HHS). HHS delegated the operation of Medicare to its 704 component entity, the Centers for Medicare and Medicaid Services (CMS). CMS contracts with insurers in various regions of the country to act for HHS in reviewing, processing, and paying Medicare claims. These insurers act as HHS's agents for the purposes of auditing claims for reimbursement by, and administering payments to, Medicare contractors. CMS is responsible for issuing guidance and instructions about the rules for beneficiaries' eligibility for coverage and the criteria for payment. CMS issues such instructions through newsletters, bulletins, manuals, and other contractor publications. Both Medicare regulations and CMS instructions address the payment of claims submitted by ambulance transport companies for providing nonemergency, regularly scheduled ambulance service for beneficiaries traveling to and from dialysis treatments. Medicare regulations provide for payment of part of the reimbursement claims submitted by ambulance transport companies for taking dialysis patients to and from treatment, under certain conditions. The ambulance transport service provider must be an approved supplier of ambulance services with a unique Medicare provider number. The transport must be medically necessary. The general rule is that Medicare will pay for ambulance transports "only if they are furnished to a beneficiary whose medical condition is such that other means are contraindicated. The beneficiary's condition must require both the ambulance transportation itself and the level of service provided in order for the billed service to be considered medically necessary." 42 C.F.R. § 410.40(d)(1). For nonemergency ambulance transportation to be "appropriate," the beneficiary must be either "bed-confined, and it is documented that the beneficiary's condition is such that other methods of transportation are contraindicated," or have a medical condition "regardless of bed confinement" "such that transportation by ambulance is medically required." Id. Bed-confinement is one factor in determining medical necessity, but not the "sole criterion." Id. The regulation states that "[f]or a beneficiary to be considered bed-confined, the following criteria must be met: (1) The beneficiary is unable to get up from the bed without assistance. (2) The beneficiary is unable to ambulate. (3) The beneficiary is unable to sit in a chair or wheelchair." Id. A special rule for nonemergency, scheduled, repetitive ambulance services, such as the dialysis transports at issue in this case, states: "Medicare covers medically necessary nonemergency, scheduled, repetitive ambulance services if the ambulance provider or supplier, before furnishing the service to the beneficiary, obtains a written order from the beneficiary's attending physician certifying that the medical necessity requirements of paragraph (d) (1) of this section are met." 42 C.F.R. § 410.40(d)(2). These physician orders, known as Certificates of Medical Necessity (CMN), must be dated "no earlier than 60 days before the date the service is furnished." Id. A separate special rule, § 410.40(d)(3), covers nonemergency ambulance services that are either unscheduled or scheduled on a nonrepetitive basis. Subsection 410.40(d)(3)(v) states: "In all cases, the provider or supplier must keep appropriate documentation on file and upon request, present it to the contractor. The presence of the signed certification statement . . . does not alone demonstrate that the ambulance transport was medically necessary. All other program criteria must be met in order for payment to be made."[1] 705 For administrative efficiency, carriers typically authorize payment for a provider's claims on receipt, absent glaring irregularities. Carriers may conduct postpayment audits to verify that the payments 706 were proper. See 42 U.S.C. § 1395u; 42 C.F.R. § 421.200(a)(2). B. The Evidence at Trial In 2002, Ayad Fallah, Murad Almasri, and Raed Elmasri became the owners and operators of Unico International, Inc., dba Americare Medical Service ("Americare"). Americare provided ambulance transportation in Houston, Texas, primarily for Medicare beneficiaries who needed dialysis treatment on a regularly scheduled, nonemergency basis. Raed Elmasri, Americare's president, was responsible for complying with the licensing and paperwork requirements imposed by Medicare and the Texas Department of Health. Murad Almasri, Raed's younger brother, was the vice-president. He handled marketing and advertising. Ayad Fallah, who had trained as a doctor in Lebanon and Russia and was a licensed EMT, directed Americare's day-to-day operations. Americare had a City of Houston Ambulance Service Permit, a Texas Emergency Medical Service Provider license, and a Medicare provider number. Each Americare EMT filled out a run sheet for each trip, documenting the EMT's information about each patient's medical condition at the time of the transport. A run sheet included a brief statement of medical history and identified the patient's condition using descriptions such as diabetes, end-stage renal disease, shortness of breath, or general weakness. A run sheet also indicated by using specified codes whether each patient was bed-confined and required movement by stretcher between the home or the dialysis center and the ambulance. Americare EMTs turned the run sheets in to the Americare office, which in turn submitted the sheets to a billing office. The billing office prepared the claims for submission to Medicare for payment to Americare. The billing office used the run-sheet information and codes to bill Medicare for the ambulance transport. Americare initially used a company called Express Billing to perform billing services. After roughly one year, Americare switched to Structure Billing, which it used from 2003 to 2005. Evelyne Almasri, Murad's wife, began doing Americare's billing in 2005. Evelyne Almasri used a computer software program called Medisoft that was set up to bill Medicare based on the diagnosis codes entered on the run sheet for each ambulance transport. During the relevant period, Medicare would pay healthcare providers such as Americare approximately $225 for each trip, or $450 for each round-trip transport, for ambulance transport services. When Fallah and Murad Almasri owned Americare, Almasri was in charge of obtaining patients to use Americare's ambulance transport service. When Americare began operating in 2002, Murad Almasri looked for potential patients at dialysis centers, nursing homes, and hospitals. Dialysis patients typically have three appointments per week that require some form of transportation. Many of the dialysis patients that Murad Almasri recruited to ride in Americare ambulances were initially clients of other ambulance companies. Fallah testified at trial that the ambulance transport business in Houston was highly competitive. In 2002, when Americare began operating, there were approximately 60 ambulance companies in Houston, and by 2007, there were approximately 300 companies. When Murad Almasri had difficulty recruiting patients to switch from the ambulance company they were using to Americare, he offered them cash payments as an incentive. These cash payments were made on a monthly basis for as long as the patient used Americare for ambulance transport to their dialysis treatments. Fallah testified that 707 Murad Almasri was paying approximately one out of ten Americare patients to use Americare's ambulance service. Murad Almasri testified that in 2005, he recruited a man named Leobaldo to use Americare for ambulance transport to and from dialysis. At the time, Leobaldo was using another ambulance company. Leobaldo's son-in-law, Sameh, was a friend of Murad Almasri's and had worked at Americare for a brief period. Murad Almasri paid Sameh $1,000 up front, then $200 to $300 a month while Leobaldo used Americare for transportation to dialysis. Almasri also testified that in late 2005 or early 2006, he began paying Margarita Gomez $200 a month to use Americare's ambulance service. Gomez began using Americare in 2004 and received treatment at Fondren Dialysis Center. She was referred to Americare by Kelvin Washington, a nursing home administrator whom Americare paid to solicit dialysis patients. A social worker at Fondren Dialysis believed that Americare's clients were not medically eligible for ambulance transport to dialysis and stated that Americare could no longer transport Fondren patients to treatments. Gomez stopped using Americare for transportation to dialysis. After Murad Almasri told Washington that some of his referrals, including Gomez, were not being allowed to be transported to Fondren Dialysis Center, the Center began allowing Americare to transport patients there again. Murad Almasri convinced Gomez to return to Americare's service by giving her the $200 monthly payment. These payments subsequently increased to $250 a month. Almasri testified that he paid cash to about seven patients (or their family members), including Leobaldo and Gomez, to use Americare's ambulance service. Murad Almasri testified that he met a City of Houston Metro-Lift driver named Mohamed while recruiting patients for Americare at a dialysis center. Metro-Lift is a public transportation service. It picks individuals up at their home or other designated place and provides curb-to-curb transportation service using specially equipped vans and sedans. The service is for individuals whose physical condition precludes them from using conventional public transportation. Using Metro-Lift requires physician approval. Metro-Lift is not an ambulance and does not provide ambulance service. Murad Almasri paid Mohamed for his current Metro-Lift "manifest" or a list of the patients he drove to and from dialysis on a regularly scheduled basis. Almasri initially paid Mohamed $30 for each name of a dialysis patient on the manifest who used a wheelchair. (Docket Entry No. 374, at 24). Murad Almasri did not initially ask Mohamed for the names of other types of Metro-Lift customers. (Id.). Murad Almasri's attempts to recruit patients from these Metro-Lift lists were largely unsuccessful. He then asked Mohamed to continue providing updated Metro-Lift manifests and agreed to pay Mohamed $400 for every patient from those manifests who signed up to ride to dialysis with Americare instead of Metro-Lift. From 2004 to 2006, Murad Almasri paid Mohamed for approximately eight or nine patients who had been on the Metro-Lift manifests and agreed to use Americare ambulances to go to and from dialysis treatment on a regularly scheduled, nonemergency basis. Fallah also paid to solicit individuals to ride to and from dialysis on Americare ambulances. Fallah testified that he entered into an arrangement with Kelvin Washington, the administrator of Sugar Land Nursing Home (SLNH), to pay Washington to have patients at the nursing home use Americare ambulances to travel to and from their dialysis treatments. Fallah met Washington while Fallah was driving Americare ambulances as an EMT. 708 Washington told Fallah that SLNH's agreement with another ambulance service company was about to expire. Washington and Fallah entered into an agreement that Americare would be the primary provider of ambulance services for SLNH patients. This arrangement gave Americare access to a new source of customers. Dialysis patients typically did not stay at SLNH long term. Once these patients returned home, Americare would recruit them to continue using the ambulances to ride to and from dialysis. Americare paid Washington for these patients. America initially agreed to pay Washington $500 for every new dialysis patient who came to SLNH and who would ride on America ambulances to and from dialysis. Americare made the first payment by check on November 11, 2003. Washington suggested that the memo notation on this check state "petty cash." The notation on subsequent checks from Americare to Washington stated "commission." By early 2006, Americare was paying Washington $1,000 for every dialysis patient at SLNH who rode to and from treatment on Americare ambulances. At trial, the government presented several of these "commission" checks made out to Washington between November 2003 and June 2006. In late 2004, Tina, the owner of Structure Billing, told Fallah about problems with the run sheets being filled out by Americare EMTs. Fallah testified that according to Tina, Medicare had denied several claims because of information the EMTs had put on the run sheets about the patient's condition. The information included details like observing the patient sitting in a wheelchair on arrival. Tina told Fallah that if a run sheet indicated that the patient was able to sit in a wheelchair, Medicare would likely deny the claim. Fallah testified that he asked Tina to explain the run sheet mistakes to the Americare EMTs. Tina subsequently came to Americare and told the EMTs how to fill out the run sheets to avoid having them declined by Medicare. The jury heard evidence that during the period of Raed Elmasri, Murad Almasri, and Fallah's ownership, some of the clinical social workers at dialysis centers believed that some of Americare's clients were not medically eligible for Medicare-provided ambulance transport to dialysis treatments. The evidence showed that Murad Almasri knew of these concerns. Almasri testified that in late 2005 or early 2006, a social worker at Fondren Dialysis Center told Americare it could not transport patients there any more. Vanessa Beltran, a social worker at a DaVita Kidney Dialysis center, testified that her observations of a patient named Richard Didsbury led her to conclude that he did not need an ambulance to get to dialysis. She told Didsbury that she did not believe that he qualified for ambulance transport under Medicare's criteria. By late 2005, Americare was transporting, each month, approximately 29-31 patients by ambulance to and from their regularly scheduled dialysis treatments. At trial, the government presented evidence that some of these patients could walk or sit in a wheelchair at the time of transport. The government also presented evidence that some of Americare's clients were medically able to travel to dialysis treatments by means other than ambulance. Several of the patients transported by Americare, including Leobaldo Pereznegron, had been using, and were able to use, Metro-Lift for transportation to dialysis. Fallah testified that when Americare did not have an available ambulance and he could not get a back-up ambulance from another company, Americare's owners transported the patient to or from dialysis in private cars. Fallah knew 709 of two occasions on which Murad Almasri had picked up Margarita Gomez in his own carnot an ambulanceand taken her home from her dialysis treatment. Mazen and Wesam Abdallah are first cousins of Murad Almasri and Raed Elmasri. The Abdallah brothers came to Houston from New Orleans in the fall of 2005 after their family's home and business were destroyed in Hurricane Katrina. When they arrived in Houston, the Abdallahs did not have jobs and stayed at Raed Elmasri's apartment. Mazen Abdallah was a recent law-school graduate. While at Americare's office, Mazen Abdallah met Fallah and asked him about the ambulance service business in Houston. Fallah told Mazen Abdallah that the business was good and that Americare was making more than a million dollars a year in profit. Mazen and Wesam Abdallah told Raed Elmasri that they wanted to start their own ambulance company to transport dialysis patients. Raed Elmasri told the Abdallahs that it typically took up to one year for a new ambulance company to obtain the necessary licenses, certifications, and Medicare provider number. He recommended that the Abdallahs begin recruiting patients to Americare while they worked on obtaining the necessary documents. Any patients the Abdallahs recruited would use Americare until the Abdallahs opened their own company. Raed Elmasri offered Mazen and Wesam Abdallah 25% of all amounts paid by Medicare for these patients. Once the Abdallahs obtained the necessary documents to start their own ambulance company, they would take these patients with them. Murad Almasri taught the Abdallahs how to recruit dialysis patients to use a particular ambulance service to ride to and from dialysis. At trial, Almasri testified about taking Mazen and Wesam Abdallah with him, separately, to show them how to recruit dialysis patients to be Americare clients. Almasri testified about two specific instances when he and Mazen Abdallah went to visit a potential customer. One was to Edna Anderson, a dialysis patient who was using another ambulance service. Almasri testified that before this visit, he told Mazen Abdallah that Americare paid patients to ride in Americare ambulances to and from dialysis. During the visit, both Murad Almasri and Mazen Abdallah talked with Edna Anderson about Americare's ambulance service. Anderson's daughter, Patricia Williams, testified at trial that she and her mother were approached by Murad Almasri and Americare's lawyer, whose name she could not recall, and that Almasri offered her mother money to use Americare's ambulance transport service. Anderson was offered $1,000 to switch to Americare. According to Almasri, Mazen Abdallah identified himself as Americare's attorney and told Anderson that she didn't have to worry because Americare was a legitimate company and everything was legal. Anderson rejected the offer and did not switch to Americare. The other visit was to an elderly woman whose name and address Murad Almasri had obtained from Mohamed at Metro-Lift. Almasri could not recall the woman's name at trial. Before the visit, Murad Almasri told Mazen Abdallah about his arrangement with Mohamed and that the woman's name and address had come from a Metro-Lift manifest. During the visit, Almasri did most of the talking with the woman, although Mazen Abdallah did talk with the woman's daughter. Murad Almasri testified that the woman rejected their offer of payment to use Americare. Murad Almasri also told Wesam Abdallah that Americare paid patients to use its ambulance service for regular dialysis treatment transportation and about recruiting patients from Metro-Lift manifests obtained from Mohamed. (Docket 710 Entry No. 374, at 67-68). Shortly thereafter, in November 2005, Wesam Abdallah began working as a van driver for Metro-Lift. He worked at Metro-Lift for a few months. Almasri testified that Wesam Abdallah began obtaining Metro-Lift manifests from work and recruiting his own ambulance patients from those manifests. Murad Almasri was still obtaining Metro-Lift manifests from Mohamed. Before purchasing and operating Americare, Mazen and Wesam Abdallah recruited approximately seven patients to ride with Americare. At trial, the government presented several commission checks for the Abdallahs's 25% share for these patients. All the checks were made out to Wesam Abdallah. Fallah testified that although some of the patients had been recruited by Mazen Abdallah, he wanted all the commission checks in his brother Wesam's name. According to Fallah, Mazen Abdallah still received his share of the commissions from his brother. In late March or early April 2006, Fallah told Mazen Abdallah that he, Raed Elmasri, and Murad Almasri were interested in selling Americare. Mazen Abdallah had discussions with all three men about buying Americare. Fallah testified that during one of the discussions, he told Mazen Abdallah about Americare's agreement to pay Washington $1,000 for every dialysis patient he brought to SLNH. Fallah took Mazen Abdallah to meet Washington at SLNH in May 2006. At the meeting, Fallah told Washington that Mazen Abdallah would be the new owner of Americare. On June 16, 2006, Mazen Abdallah and Will Smith[2] purchased Americare from Raed Elmasri, Murad Almasri, and Fallah for $2.2 million. Mazen Abdallah drafted the legal documents for the sale. One of the documents, titled "Unico International, Inc., Waiver of Notice of Meeting and Unanimous Consent of Shareholders in Lieu of Meeting," stated that Mazen Abdallah was elected president, secretary, and registered agent of the corporation and that Smith was elected vice-president. The document stated that Raed Elmasri and Fallah would each relinquish their one-third ownership of the corporation's stock. Murad Almasri would relinquish his one-third stock ownership but would retain a one-percent ownership interest. Both Murad Almasri and Fallah testified that Mazen Abdallah included the one-percent retained-ownership provision so that Americare's new owners could continue to receive Medicare payments. (Docket Entry No. 374, at 108-13). If Americare had completely new ownership, Medicare would stop paying claims until the new owners applied for and received a new Medicare provider number. (Id. at 111-12). Murad Almasri testified that he never received payment or compensation for the one-percent ownership he retained in Americare, which was intended to allow the Abdallahs to continue to use the existing Medicare provider number. (Id. at 111). Fallah testified that Americare typically received Medicare payments three weeks after a particular transport. The parties agreed at the time of sale that Raed Elmasri, Murad Almasri, and Fallah would receive the Medicare payments received for transports performed before June 16, 2006. To help the new owners cover Americare's operating expenses until they received Medicare payments for transports conducted after the sale date, Raed Elmasri, Murad Almasri, and Fallah gave Mazen Abdallah a $100,000 loan. According to Fallah, Mazen instructed Fallah and Murad 711 Almasri to write Americare checks to themselves and to pay him with cashier's checks. At trial, the government introduced two checks written from Americare's account totaling $100,000. One was payable to Fallah for $34,000 and signed by him, and the other was payable to Murad Almasri for $66,000 and signed by him. Murad Almasri testified that they cashed these checks and gave Mazen Abdallah the $100,000 loan in a cashier's check. The loan was to be repaid in August 2006. After the sale, Mazen and Wesam Abdallah operated Americare. Mazen asked Fallah to stay at Americare as a consultant for up to two months. Fallah worked as a consultant at Americare for two weeks after the sale. He helped to schedule the ambulance transports and ensure that the run sheets and CMNs were in order. Fallah testified that during this transition period, he and Mazen Abdallah were in Americare's office reviewing and discussing CMNs or prescriptions for ambulance transport to and from regular dialysis treatments. Mazen Abdallah asked Fallah what to do if the patient's nephrologist refused to sign the certification form. Fallah said that he should ask the patient's primary care doctor to sign the CMN. Mazen Abdallah told Fallah that there was a patient for whom neither doctor would sign the medical necessity form. Fallah told Mazen Abdallah that sometimes they called "easy" doctors who would look at a patient's medical file and sign a CMN for ambulance transport. During this conversation, Mazen Abdallah was holding an unsigned CMN in front of him. Fallah testified that Abdallah gestured with his pen as if to sign the form and said, "What if we sign it by ourselves?" Fallah responded that Medicare could audit the company and discover that it was not the doctor's signature. At trial, Fallah testified that while reviewing the medical necessity forms the very next day, the unsigned CMN Mazen Abdallah had been holding was signed. Fallah testified he did not know for sure if it was signed by Mazen Abdallah but that it had a signature and was in the stack of signed CMNs. On June 30, 2006, Mazen Abdallah met with Washington and Raed Elmasri and Murad Almasri at a Houston restaurant to discuss continuing the relationship between SLNH and Americare. At the meeting, Raed Elmasri brought up the fact that Americare had been paying Washington $1,000 for every dialysis patient he brought to SLNH. According to Fallah and Murad Almasri, Mazen did not object or disagree with continuing this arrangement. After the Abdallahs were indicted, FBI agents searched Mazen Abdallah's home pursuant to a warrant on June 13, 2007. A Quicken log obtained from a computer during the search references a lunch meeting with the "SLNH Administrator" on June 30, 2006. (Government's Trial Exhibit 113). At trial, the government presented evidence that Americare continued to pay Washington after Mazen Abdallah bought the company. Mazen Abdallah signed a $1,000 "commission" check made out to Washington on July 20, 2006. (Government's Trial Exhibit 1.12.1d). A $1,000 commission check signed by Mazen Abdallah and dated August 25, 2006 was for patient M.H. (Government's Trial Exhibit 1.12.1e). Marine Hanchett was a patient at SLNH from August 28, 2006 to November 25, 2006. (Government's Trial Exhibit 61). The government presented CMNs for Marine Hanchett signed by Dr. Kurt Merkelz, who worked at SLNH, dated September 13, 2006, February 2, 2007, and April 2, 2007. Each of these CMNs stated that Marine Hanchett was bed-confined. (Government's Trial Exhibit 1.12.3). Dr. Merkelz testified that he had never treated or 712 seen Marine Hanchett and that he signed the form without any information about her medical condition. Dr. Merkelz, who spent several hours each week at SLNH, testified that he had signed similar forms for patients he did not treat or know. Dr. Anil Thacker, who also worked on a part-time basis for the nursing home, gave similar testimony. The government presented evidence that Americare obtained a number of signed CMNs from Washington at SLNH, signed by Dr. Merkelz and Dr. Thacker, for patients they had not seen. Americare EMTs Michael Montalbano and Kathleen Bell testified that Wesam Abdallah gave them envelopes to deliver to Washington at SLNH. Bell testified that the envelopes she received were sealed and she did not know what was in them. (Docket Entry No. 354, at 44:2-18). Montalbano testified that on one occasion, he opened an envelope that Washington gave him to bring back to Wesam Abdallah. Montalbano testified that the envelope contained CMNs for Americare clients signed by Dr. Merkelz and Dr. Thacker. Some of these CMNs were for clients Montalbano had been transporting. Montalbano knew that these clients were not SLNH residents. The government also presented evidence that some of the CMNs found at Americare had photocopied physician signatures. Stormy Kelly, an employee of the Texas Medicaid Fraud Control Unit, testified that in reviewing the CMNs she found forms on which inspection showed that the doctor's signature had been photocopied from a prior CMN and only the dates had been changed. Kelly came to this conclusion by holding the CMNs up to the light and finding that the signatures "lined up exactly." (Docket Entry No. 364, at 25:5-16). In addition to clients obtained through Washington at SLNH, Americare clients also came from Metro-Lift manifests. Government's Exhibit 1.15 is a group of documents found in a folder in the garage of Mazen Abdallah's home during that search. Exhibit 1.15 includes Metro-Lift manifests and typed lists of client names. Beneath each name are blanks for the client's address, dialysis treatment center, "condition," and "comment." The medical conditions listed include "wheelchair," "cane," "blind," and "ambulatory." The comments describe the level of interest in ambulance transport with Americare, such as: "Possibility: Mother Against It"; "Former Client. Social Worker Drama"; "Will subscribe once Bisonnet Dialysis opens"; and "Wife Ain't Having It!" One patient, Johnny Brooks, has "wheelchair" listed next to his condition, but the comment states "He Walks." Government's Exhibit 1.9, referred to at trial as "The List," was found in Mazen Abdallah's home office during the search. The "List" is of Americare clients and the amounts paid to each, both an initial sign-up payment and a monthly payment. There is a heading for "miscellaneous" payments made to several clients. There are also payments set out under a heading for "Kelvin Washington." Some of the clients on the list, like "Leobaldo$200 (monthly); $1000 (saving sign up)," began using Americare before June 2006, but continued using the service after the change of ownership. And other clients on the list, like Ray "Stevenson$200 (monthly)," began using Americare only after the Abdallahs bought the company in June 2006. Additional evidence about Wesam Abdallah's involvement in making payments to clients to recruit them to ride to and from dialysis treatments in Americare ambulances came from Murad Almasri's testimony. (Docket Entry No. 374, at 100). He stated that Wesam Abdallah asked him and David, a Salvadorian mechanic who 713 worked for Americare, to visit a Spanish-speaking woman to convince her to use Americare's services. Murad Almasri testified that he speaks a little Spanish and that David's English was not very good. (Id.). When the three men arrived at the home, the woman was not there, so they spoke with her husband, Alfredo Garcia. Murad Almasri testified that at Wesam Abdallah's urging, they offered the husband cash payments if his wife agreed to be transported by Americare. Garcia testified that he was opposed to accepting any money, but left the decision up to his wife, Estella Garcia. She decided to accept a $500 initial payment and began using Americare for transportation to dialysis. Garcia's name is on "The List," with the notation "$500 (initial sign up)." (Government's Trial Exhibit 1.9). Evelyne Almasri formed A & A Billing on June 19, 2006 to perform the billing services for Americare after the sale to the Abdallahs. (Docket Entry No. 355, at 5). Evelyne Almasri earned a salary from Americare when she did the billing in-house, but after the sale to the Abdallahs, she was paid a percentage of the total billings. Typically, Wesam Abdallah or Americare EMTs gave Evelyne Almasri the completed run sheets, which she used to enter the codes into the computer billing system to prepare the bills and submitted those bills to Medicare or Medicaid. (Id., at 24-25). Evelyne Almasri testified that if a run sheet did not indicate that the patient was bed-confined, she would call Wesam Abdallah and ask him whether that patient was bed-confined. According to Evelyne Almasri, Wesam Abdallah never told her that he would have to check the patient's records. Instead, he always immediately responded that the patient she had inquired about was bed-confined. Evelyne Almasri testified that either because the run sheet showed that the patient was bed confined or because Wesam Abdallah told her that was the patient's condition, she marked bed-confined on the bill for each and every Americare patient for whom she billed Medicare for an ambulance transport when the Abdallahs owned and operated the company. She also testified that within months of the sale to the Abdallahs, the number of patients Americare was transporting increased from around 25-30 to approximately 50. As the August 2006 due date for the $100,000 loan approached, Mazen and Wesam Abdallah told Murad Almasri that they felt that they had overpaid for Americare and would not pay back the loan. Murad Almasri told Fallah about the Abdallahs' intentions. Fallah called Mazen Abdallah the day before the due date to discuss repayment. Fallah recorded this phone call, and the government played the recording at trial. During the conversation, Fallah and Mazen had an argument about the number of patients the Abdallahs received as a result of the sale of Americare. Before the sale, Americare had an arrangement with a man named Naief Abukhalid to recruit clients, identical to the arrangement with the Abdallahs. Abukhalid was also interested in starting his own ambulance company. He recruited clients for Americare while he waited for the necessary licenses and Medicare provider number for his own company, which became American Care EMS. In the interim, those clients rode with Americare and Abukhalid was paid for recruiting them. After Abukhalid's company, American Care, became licensed, the clients would shift to the new company. Fallah testified that everyone knew at the time of the Americare sale to the Abdallahs that there were 42 patients, 31 who "belonged to" Americare and were part of the sale to the Abdallahs and 11 who "belonged to" Abukhalid and would eventually ride with American Care. In the phone call, Fallah said that he and Raed Elmasri and Murad Almasri had given the Abdallahs everything 714 they bargained for and reminded Mazen that he had introduced him to Washington, a source of new clients. After the call ended, Fallah called back and said that he forgot to tell Mazen that "the process Americare is doing right now, it might get you in trouble with FBI, TDH, or [unintelligible] like your brother is [unintelligible]." (Government's Trial Exhibit 1.11.1.a). In the summer of 2006, an EMT named Brooke Mahalec left her job at Care Plus EMS, an ambulance transport company, and began working at Americare. While working at Care Plus, Mahalec had successfully recruited Ray Stevenson, a dialysis patient, to switch from riding on Freedom EMS to Care Plus. Stevenson had been riding with Care Plus for about four months when Mahalec went to work for Americare. While using Care Plus, Stevenson had applied for a permit to use Metro-Lift but was denied on the basis of medical ineligibility. Mahalec asked Stevenson to switch to Americare so that she could earn a commission from "Wesam," who she described as Americare's owner. Mahalec told Stevenson that if he began using Americare's service, she would split her $1,000 commission with him. Stevenson used Americare for a few weeks in July 2006 and then switched back to Care Plus. He received no payment from Mahalec. After Stevenson returned to using Care Plus, he was approved for transportation by Metro-Lift but did not immediately switch to that shared-ride service. On August 2, 2006, the FBI contacted Stevenson and asked for his help in getting information about Americare. Stevenson agreed to set up a meeting with Wesam Abdallah. Stevenson subsequently called Mahalec, obtained Wesam's contact information, and scheduled a meeting with him for September 1, 2006 at Stevenson's apartment. Before the meeting, FBI agents set up recording equipment in Stevenson's apartment and gave him a recording device to keep in his pocket. Stevenson had a lengthy medical history, including severe diabetes that had led to the amputation of several toes. Stevenson had been in a coma for approximately seven months during 2004 and for several months afterward had difficulty walking and other severe medical problems. He required dialysis several times each week. Stevenson testified that at the time of this meeting, in August and September 2006, he was capable of walking, driving, and going up and down the stairs of his second-floor apartment. He occasionally used a cane when pain in his right foot, the result of his toes being amputated, bothered him enough that he needed to use it. At trial, the jury was shown a videotape of the meeting between Wesam Abdallah and Ray Stevenson. The meeting lasted about 15 minutes and was only between the two men, in Stevenson's apartment. Stevenson is shown walking with his cane at the beginning, then sitting, unaided, on the couch. After Stevenson said that he was using Care Plus for transportation to dialysis, Wesam Abdallah said "They're not giving you nothing?" Stevenson testified he understood Wesam Abdallah was asking whether Care Plus was paying him for using that ambulance transport service. After a few minutes, Wesam Abdallah said he was feeling "uncomfortable" and asked to step outside of the apartment onto the front steps. Stevenson got up from the couch without help and walked outside with Wesam Abdallah and they continued their conversation. Abdallah told Stevenson, "I'll take care of you. I mean, I don't do business with the whole world. Do you understand?" Stevenson understood this to be an offer to pay him to use Americare's ambulance service. Wesam Abdallah continued, saying, "[I]f you want to deal with me, man, it has to be 715 between me, you, and God. Nobody else. You have to keep it that way. Look, I've got too much to lose. You understand? I've got too much to lose for you or everybody else." Abdallah stated, "Either way it goes with her, now whether or not we get that signature or not, okay, I'm going to guarantee 500. All right? I'm going to guarantee it for you . . . If you don't get it done, we'll help you. We'll find one. All right. Whatever it takes." Stevenson testified this meant regardless of what Mahalec did, Wesam Abdallah would pay Stevenson $500 if he was able to get a signed CMN prescribing ambulance transport to and from dialysis, and that if Stevenson was unable to get one of his two doctors to sign a CMN, Wesam Abdallah would find a doctor who would do so. Abdallah also told Stevenson, "Secondly, I'll slip you two a month. All right?" Stevenson testified that Wesam Abdallah would pay him $200 a month as long as Stevenson used Americare. Stevenson's name was on Government's Exhibit 1.9, the list of clients found in the study of Mazen Abdallah's home. This list had notations about payments next to the client names, such as "$200 (monthly); $500 (initial sign up)." (Government's Trial Exhibit 1.9). Next to Stevenson's name was a hand-written notation of "$200 (monthly)," consistent with what Wesam Abdallah told Stevenson in their videotaped meeting about "slipping" him "two a month." (Id.). After the September 1, 2006 meeting with Wesam Abdallah, Stevenson began riding with Americare again. When the Americare EMTs picked Stevenson up from his apartment, they gave him blank CMNs to take to his doctors. Stevenson's doctors included a cardiologist, Dr. Shenoy, and a nephrologist at Acres Homes Dialysis Center, Dr. Malya. When Stevenson was using Freedom EMS, he had received signed CMNs for ambulance transport from Dr. Malya. There was evidence that as late as March 2006, Stevenson had received a signed CMN from Dr. Shenoy for ambulance transport by Care Plus. Stevenson saw Dr. Shenoy in April 2006 for chest pains and pains in his legs, and in June 2006 for chest pains, pains in his hip, and dizziness. In September 2006, Stevenson took the blank CMNs he received from Americare to his two doctors. Neither doctor would sign the CMN authorizing Stevenson as medically eligible for Medicare transport. Dr. Malya threw the form in the trash. Dr. Shenoy told Stevenson that he would not sign it because Stevenson did not need ambulance transport. On October 3, 2006, Wesam Abdallah told Stevenson that he knew a doctor in Sugar Land who made house calls and, if needed, would evaluate Stevenson and sign a CMN stating that he needed ambulance transport to and from dialysis. Stevenson testified that no doctor ever came to evaluate him at his apartment. The government presented evidence that Americare transported Stevenson to and from dialysis treatments on July 18, 2006, November 7, 2006, and December 2, 2006. Stevenson testified that on those days, like all other days on which Americare transported him, he could walk and would enter and exit his second-floor apartment to get to and from the ambulance by using the stairs. The government introduced into evidence a CMN for Stevenson signed by Dr. Merkelz and dated October 20, 2006 which states that ambulance transport was medically necessary because Stevenson was bed-confined and other means of transportation were contraindicated. (Government's Trial Exhibit 30.8). There was no evidence that Stevenson was ever a resident at SLNH. (Government's Trial Exhibit 61). At trial, Dr. Merkelz testified that he never saw or 716 treated Stevenson. Americare billed Medicare $1,388.00 for the trips on July 18, 2006, $1,388.00 for the trips on November 7, 2006, and $1,388.00 for the trips on December 2, 2006. (Government's Trial Exhibit 1.47-28). Medicare paid Americare $435.90 for each of these three dates. (Id.). After Stevenson quit using Americare for the second time, he began using Metro-Lift for transportation to and from his dialysis treatments. He continued to use Metro-Lift up until the time of trial. The government also presented testimony from other Americare clients, including Estella Garcia and Reginald Batiste, about payments they received to use Americare. Murad Almasri and Wesam Abdallah paid Garcia $500 to begin using Americare. Garcia's name is on "The List," with the notation "$500 (initial sign up)." (Government's Trial Exhibit 1.9). Exhibit 1.15, the typewritten list of Americare clients found in Mazen Abdallah's home, stated that Garcia used a wheelchair. The run sheets for Garcia stated that she was bed-confined. Batiste testified that Wesam Abdallah paid him to begin using Americare. The "List" shows that Batiste was paid $100 on August 17, 2006. (Id.). Batiste had diabetes, end-stage renal disease, was blind, and a double amputee. The government presented evidence that, notwithstanding his ailments, he was able to and did use a wheelchair during the period of Americare transports. The run sheets for Batiste stated that he was bed-confined. Batiste testified that Wesam Abdallah also offered to pay him if he referred other dialysis patients to Americare. Batiste referred Joseph Yanowski, but never received money for the referral and was not sure if Yanowski ever used Americare. Under the heading "Miscellaneous" on "The List," it states "Reginald Batiste $___ (Commission for Yanowski)." (Id.). Americare transported Yanowski to his dialysis treatments between September and November 2006. Yanowski had end-stage renal disease, diabetes, and hypertension. Due to his diabetes, he had one foot amputated and lost some toes on his other foot. The government presented evidence that, notwithstanding his ailments, in fall 2006 he was able to and did use a wheelchair. Sophronia Ladmirault, Lucendia Reed, and Oranell Lee were also paid to use Americare. On "The List" it states "Sophronia$200 (monthly); $500 (initial sign up)." (Government's Trial Exhibit 1.9). Ladmirault had renal disease and was recovering from leg surgery during the time period Americare transported her to dialysis. There was evidence that she was able to sit in a chair or wheelchair during this time frame. The government presented a CMN for Ladmirault signed by Dr. Merkelz of SLNH on April 2, 2007. It was undisputed that Ladmirault was never a patient at SLNH. With respect to Lucendia Reed, "The List" stated "Lucendia $250 (monthly); $500 (initial sign up)." (Id.). Reed had renal disease but was able to walk. The government presented evidence that her attending physician had described her walking pattern and her ability to stand without holding onto anything as normal. Several CMNs signed by Dr. Merkelz certified that Reed was medically eligible for ambulance transport. It was undisputed that Reed too was never a patient at SLNH. With respect to Lee, "The List" stated "Oranell Lee$250." (Id.). The government presented evidence that Americare transported Lee to dialysis treatments between June 2006 and July 2007. The run sheets stated that Lee was bed-confined. Lee had renal disease and had hip replacement surgery in March 2006. She underwent rehabilitation and was unable to walk without help but was able to use a wheelchair during the relevant 717 time frame. Dr. Debra Patterson, the government's expert witness, testified that Lee's medical records showed that she was not bed-confined, as defined by the Medicare regulations, and transportation by other means was not contraindicated. The government also presented evidence about Americare's transport of Yolanda Vargas. Vargas testified that when Americare ambulances came to pick her up in 2006 and 2007, she often walked out of her house, down the front stairs, and onto the stretcher. After she moved to the back of her house, Americare EMTs began helping her walk down the back stairs and onto the stretcher. For all of her transports, upon arrival at the dialysis center Vargas was transferred from the stretcher to a wheelchair and wheeled inside for treatment. Vargas testified that during this period of time, she walked to the grocery store two blocks from her home about four times. She also testified that one time she walked to a store that was "around the corner" from her dialysis center. Vargas testified that she used an ambulance service for transportation to dialysis because she had extreme difficulty walking and could not "catch a bus." By the time of trial in April 2008, Vargas's condition had worsened and she was using a wheelchair when she testified in court. At trial, Dr. Patterson testified for the government about Vargas's numerous medical ailments, including diabetes, high blood pressure, end-stage renal disease, abnormal blood protein, and deep vein thrombosis. (Docket Entry No. 311, at 23-25). She also testified that Vargas's medical records showed a history of asthma, shortness of breath, and depression. (Id.). Patterson testified that based on the information available to her, despite these medical conditions, Vargas was not medically eligible for Medicare coverage for ambulance transport to and from dialysis. Patterson stated that, based on her review of the run sheets for the transports on November 23, 2006 and January 11, 2007, there was no indication that Vargas was bed-confined or that transportation by other means was contraindicated. Vargas's dialysis treatment records for those two dates show that Vargas arrived at and left the dialysis center sitting unassisted in a wheelchair. The government presented a video taken after Vargas's dialysis treatment on January 11, 2007 which showed her walking from the ambulance up the front steps to her door with minimal assistance. Vargas's two treating doctors testified that her medical condition was not such as to make ambulance transport to and from her regularly scheduled dialysis treatments medically necessary. Dr. Patel, her nephrologist, testified that he refused to sign a CMN for ambulance transport for Vargas. Dr. McColloster testified that Vargas walked to his clinic for treatment and was not medically eligible for Medicare coverage for ambulance transport. Americare used CMNs for Vargas signed by Dr. Thacker and Dr. Merkelz. (Government's Trial Exhibit 2.8). Vargas was never a resident at SLNH, (Government's Trial Exhibit 61), and Dr. Merkelz testified that he never saw or treated Vargas. The Abdallahs presented an expert witness, Dr. Evans, who reviewed Vargas's medical records and opined that, based on her numerous ailments and diseases, ambulance transport to her dialysis treatments was medically necessary. Some of the health care fraud counts in the indictment were based on Americare's transports of Vargas on October 31, 2006, November 23, 2006 and January 11, 2007. Americare billed Medicare $1460.00 for the trips on each of these three dates. (Government's Trial Exhibit 1.47-30). Americare received $464.94 for the October 31 718 trips, $464.94 for the November 23 trips, and $472.60 for the January 11 trips. (Id.). EMT Kathleen Bell testified that from November 2006 to April 2007, Wesam Abdallah was mainly responsible for the day-to-day operations of Americare, including scheduling, making sure the run sheets were collected, filled out, and submitted to the billing company, and obtaining CMNs. Evelyne Almasri testified that Mazen Abdallah was out of town during much of that period. In January 2007, Mazen Abdallah and Will Smith entered into a purchase agreement to buy American Care from Naief Abukhalid and from Murad Almasri's parents. Financing was obtained and the sale completed on March 26, 2007. Evelyne Almasri testified that after Mazen Abdallah purchased American Care, he brought her the run sheets for American Care's clients. (Docket Entry No. 355, at 27). Evelyne Almasri testified that she dealt with Mazen Abdallah, not Wesam, in doing American Care's billing because Wesam was operating Americare. (Id., at 26). In addition to bringing her the run sheets, Mazen Abdallah would pick up American Care's Medicare remittance notices. Medicare remittance notices show the claims paid for each beneficiary under a particular check or electronic-funds transfer. In early 2007, Murad Almasri went to Wesam Abdallah's apartment to talk to Mazen about problems with the Americare sale. Both Mazen and Wesam Abdallah were present. While there, Murad Almasri saw a stack of Metro-Lift manifests, approximately six inches high. Murad Almasri knew that Wesam Abdallah was no longer working at Metro-Lift and asked where the manifests came from. Wesam Abdallah replied that he had a connection with the dispatch people at Metro-Lift. (Docket Entry No. 374, at 91-94). On April 23, 2007, the Aballahs, along with Raed Elmasri, Murad Almasri, and Fallah, were charged with conspiracy to violate 18 U.S.C. § 1347 by submitting fraudulent claims for the ambulance transportation provided by Americare. On October 15, 2007, a superseding indictment alleged that "[i]t was [the] object of the conspiracy that defendants unlawfully enriched themselves by false and fraudulently representing the conditions of Medicare and Medicaid beneficiaries in order to bill Medicare and Medicaid for transport by ambulance to regularly scheduled non-emergency dialysis treatments, when in fact defendants well knew that the beneficiaries did not qualify for these transports." (Docket Entry No. 126). Raed Elmasri, Murad Almasri, and Fallah were charged with multiple counts of health care fraud under 18 U.S.C. § 1347 and § 2 for the dialysis transports of several patients. Mazen and Wesam Abdallah were charged with seven counts of health care fraud under 18 U.S.C. § 1347 and § 2 for dialysis transports of Yolanda Vargas, Mary Martinez, and Ray Stevenson. (Id.). Wesam Abdallah, Raed Elmasri, and Murad Almasri were also charged with violating 42 U.S.C. § 1320a-7b(b)(2)(A), the antikickback statute, by paying to obtain patients who would use Americare. Raed Elmasri, Murad Almasri, Fallah, and Mazen Abdallah were charged with conspiracy to launder funds under 18 U.S.C. § 1956(h). Murad Almasri and Fallah pleaded guilty to conspiracy to commit health care fraud and testified for the government at trial. Raed Elmasri remains a fugitive. The Abdallahs proceeded to trial. Mazen Abdallah was convicted of conspiracy to commit health care fraud and acquitted on the substantive health care fraud and money laundering counts. Wesam Abdallah was convicted of conspiracy to commit 719 health care fraud, four substantive counts of health care fraud, and one violation of the antikickback statute. The four substantive counts of fraud were Counts 31 and 32, for Americare's ambulance transports of Stevenson on November 7, 2006 and December 2, 2006, respectively, and Counts 3 and 4, for the ambulance transports of Yolanda Vargas on November 23, 2006 and January 11, 2007, respectively. The motions for acquittal, or in the alternative, a new trial, followed. II. The Motion for Judgment of Acquittal A. Legal Standard "A motion for judgment of acquittal challenges the sufficiency of the evidence to convict." United States v. Lucio, 428 F.3d 519, 522 (5th Cir.2005) (quoting United States v. Medina, 161 F.3d 867, 872 (5th Cir.1998)). When the defendant challenges the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir.) (applying Jackson), cert. denied, 546 U.S. 1024, 126 S.Ct. 672, 163 L.Ed.2d 541 (2005). The court considers the evidence, all reasonable inferences drawn therefrom, and all credibility determinations in the light most favorable to the prosecution. United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir.2008); see also United States v. Resio-Trejo, 45 F.3d 907, 910-11 (5th Cir.1995). The court's role does not extend to weighing the evidence or assessing the credibility of witnesses. Ramos-Cardenas, 524 F.3d at 605. The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence. Id.; see also Resio-Trejo, 45 F.3d at 911. The jury "retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of the witnesses." United States v. Loe, 262 F.3d 427, 432 (5th Cir. 2001) (citation and internal quotation marks omitted). B. Analysis 1. Conspiracy to Commit Health Care Fraud The superseding indictment alleged that the Abdallahs conspired to violate the health care fraud statute and that "[i]t was an object of the conspiracy that defendants unlawfully enriched themselves by falsely and fraudulently representing the conditions of Medicare and Medicaid beneficiaries in order to bill Medicare and Medicaid for transport by ambulance to regularly scheduled non-emergency dialysis treatments, when in fact defendants well knew that the beneficiaries did not qualify for those transports." (Docket Entry No. 126, at 7). As part of the conspiracy, the Abdallahs allegedly paid dialysis patients or their family members to ride with Americare, regardless of whether the patients had conditions that made ambulance transport medically necessary. The indictment alleged that the Abdallahs "falsely present[ed] prescriptions to nursing home staff in order to secure staff physicians' signatures for ambulance transports of dialysis patients who had never been under the care of the nursing home." (Id. at 9). The indictment alleged several overt acts of the conspiracy, including the substantive counts of the indictment. The Abdallahs argue that the evidence was insufficient to support a jury finding beyond a reasonable doubt that: 1) the individuals they transported were ineligible 720 for Medicare coverage for ambulance transport; 2) the Abdallahs knew the patients were ineligible; or 3) they intentionally and falsely misrepresented the patients' medical conditions to Medicare. To support a conviction for conspiracy under 18 U.S.C. § 371, the government must prove: (1) an agreement between two or more persons to pursue an unlawful objective; (2) the defendant's knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the members of the conspiracy in furtherance of the objective of the conspiracy. United States v. Dadi, 235 F.3d 945, 950 (5th Cir.2000). To support a conviction for health care fraud under 18 U.S.C. § 1347, the government must prove that the defendant: (1) knowingly and willfully executed, or attempted to execute, a scheme or artifice; to (2) defraud a health care benefit program or to obtain by false or fraudulent pretenses any money or property under the custody or control of a health care benefit program; (3) in connection with the delivery of or payment for health care benefits, items, or services. To prove conspiracy, "[t]he government must prove the same degree of criminal intent as is necessary for proof of the underlying substantive offense." Dadi, 235 F.3d at 950. Circumstantial evidence can support a finding of specific intent. Id. (conspiracy); see also United States v. Hughes, 230 F.3d 815, 821 (5th Cir.2000) (money laundering); United States v. Ismoila, 100 F.3d 380, 387 (5th Cir.1996) (fraud). The government need not prove that a defendant was aware of specific regulations, nor need it introduce evidence that would conclusively demonstrate a defendant's state of mind. It suffices to show facts and circumstances from which the jury reasonably could infer that a defendant knew his conduct was unauthorized and illegal. United States v. Bordelon, 871 F.2d 491, 494 (5th Cir.1989); see also United States v. Forcada, 206 Fed.Appx. 969, 971 (11th Cir.2006) (rejecting defendant's argument of insufficient evidence for conviction of conspiracy to commit health care fraud where there was circumstantial evidence sufficient to permit a jury to infer "that the defendant acted with the specific intent to defraud"). When proving conspiracy, "[a]n express agreement is not required; a tacit, mutual agreement with common purpose, design, and understanding will suffice." United States v. Infante, 404 F.3d 376, 385 (5th Cir.2005). "[A]ssent to a conspiracy may be inferred from acts which furthered the purpose of the conspiracy." United States v. Marx, 635 F.2d 436, 439 (5th Cir.1981). "Because secrecy is the norm, each element may be established by circumstantial evidence." United States v. Farias, 469 F.3d 393, 398 (5th Cir.2006); see also United States v. Holmes, 406 F.3d 337, 351 (5th Cir.2005) ("The Government need not rely on direct evidence of a conspiracy; each element may be proven by circumstantial evidence.") (quoting United States v. Mulderig, 120 F.3d 534, 547 (5th Cir.1997)). "Juries are free to use their common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence." United States v. Flores-Chapa, 48 F.3d 156, 161 (5th Cir.1995). "In cases of conspiracy, deference to the jury's findings is especially important . . . because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel." United States v. Morgan, 385 F.3d 196, 204 (2d Cir.2004) (internal quotation and citation omitted). 721 The Abdallahs first assert that because the object of the conspiracy was framed in terms of patient ineligibility for Medicare coverage for ambulance service, the government had to prove the Abdallahs knew that Americare's clients did not satisfy the medical necessity requirements of 42 C.F.R. § 410.40(d)(1). The object of a conspiracy is an element of the offense of 18 U.S.C. § 371, and all facts necessary to establish the object of the conspiracy must be proven beyond a reasonable doubt. See United States v. Bush, 70 F.3d 557, 561 (10th Cir.1995); United States v. Arlt, 252 F.3d 1032, 1034 (9th Cir.2001); United States v. Roshko, 969 F.2d 1, 5 (2d Cir. 1992) ("Without question, the object of a conspiracy constitutes an essential element of the conspiracy offense" defined by 18 U.S.C. § 371). The Abdallahs argue that the evidence was insufficient to prove that the ambulance transports for Americare clients were not "medically required" or to prove that the Abdallahs knew that Americare's clients were not medically eligible for Medicare coverage for their ambulance transports. The Abdallahs contend that the government's proof at trial focused on Americare clients who were not bed-confined or could use other means of transportation and "completely neglected the second prong of the definition," that the clients had medical conditions "regardless of bed confinement" "such that transportation by ambulance is medically required." (Docket Entry No. 349, at 7). The Abdallahs argue the evidence at trial showed that the transports at issue were medically required because "each beneficiary Americare transported suffered from numerous, serious, degenerative diseases, including end stage renal disease." (Docket Entry No. 349, at 11). They contend that the evidence showed patients needed assistance to move, and "even the best off [sic] patients transported by Americare had difficulty getting around under their own power." (Id. at 12). According to the Abdallahs, a reasonable juror would conclude that for someone like Reginald Batiste, a diabetic blind amputee who had recently broken his leg, ambulance transport to dialysis was "obviously medically required." (Docket Entry No. 349, at 9). With respect to Vargas and Stevenson, the Abdallahs argue that the evidence showed that ambulance transport was medically required because of their medical histories and conditions. The Abdallahs point to the testimony of the government's expert, Dr. Patterson, that Vargas was "devastated" by her illnesses, including anemia, retinopathy, neuropathy, deep-vein thrombosis, diabetic gastroparesis, end stage renal disease, and diabetes mellitus. They argue that no reasonable juror could find that ambulance transport to and from regular dialysis appointments was not medically required for Vargas in light of these conditions. With respect to Stevenson, the Abdallahs contend that although he could sit and walk, he could not walk longer than a quarter block because of shortness of breath, dyspnea on exertion, and severe peripheral vascular disease with severe muscle cramps. According to the Abdallahs, "[a] conclusion that ambulance transportation for Ray Stevenson was medically required was eminently reasonable." (Docket Entry No. 349, at 13). The Abdallahs point to the testimony of Dr. Evans, their expert witness, that based on his review of the medical records, ambulance transport was medically required for both Vargas and Stevenson because it was in the "best interest of the patient." The Abdallahs challenge the sufficiency of the evidence that they knew patients were not eligible for ambulance transport. Mazen Abdallah argues there was no evidence he knew that any individuals Americare transported did not qualify for Medicare coverage for ambulance transport. 722 He asserts he did not play a role in the day-to-day operations of Americare, and points to the testimony that he was out of town from November 2006 to April 2007. Mazen Abdallah asserts that the testimony of Americare clients showed that none of them knew or had even seen him before. Mazen Abdallah contends that the government did not show that he reviewed documents indicating Americare patients were ineligible. He asserts that the run sheets and billing records found in the search of his home showed that ambulance transport was medically required for these patients because each patient was listed as having serious medical ailments. Mazen Abdallah also asserts that there was no evidence anyone told him the individuals Americare was transporting were not qualified for Medicare coverage for regularly scheduled nonemergency ambulance transport. Contrary to the Abdallahs' arguments, the government provided ample evidence that Americare provided ambulance transports for clients whose conditions did not qualify them for Medicare coverage for such transports. The evidence showed that although the clients were sickthey all had end-stage renal disease that required regularly scheduled repetitive dialysis treatmentthat is not sufficient for Medicare coverage for ambulance transport to obtain such treatment. Instead, the regulations state that Medicare will pay for ambulance transports "only if they are furnished to a beneficiary whose medical condition is such that other means are contraindicated. The beneficiary's condition must require both the ambulance transportation itself and the level of service provided in order for the billed service to be considered medically necessary." 42 C.F.R. § 410.40(d)(1). For nonemergency ambulance transportation to be "appropriate," the beneficiary must be either "bed-confined, and it is documented that the beneficiary's condition is such that other methods of transportation are contraindicated," or have a medical condition "regardless of bed confinement" "such that transportation by ambulance is medically required." Id. Bed-confinement is one factor is determining medical necessity, but not the "sole criterion." Id. The regulation states that "[f]or a beneficiary to be considered bed-confined, the following criteria must be met: (1) The beneficiary is unable to get up from the bed without assistance. (2) The beneficiary is unable to ambulate. (3) The beneficiary is unable to sit in a chair or wheelchair. Id. The Abdallahs argue that a client is eligible for Medicare coverage for ambulance transport to regularly scheduled nonemergency repetitive dialysis appointments if it is in the "best interests" of the client. That is not what the statute or regulations provide. The statute states that covered medical services include "ambulance service where the use of other methods of transportation is contraindicated by the individual's condition, but . . . only to the extent provided in the regulations." 42 U.S.C. § 1395x(s) (7). The regulations state: "Nonemergency transportation by ambulance is appropriate if either: the beneficiary is bed-confined, and it is documented that the beneficiary's condition is such that other methods of transportation are contraindicated; or, if his or her medical condition, regardless of bed confinement, is such that transportation by ambulance is medically required." 42 C.F.R. § 410.40(d)(1). The jury heard ample testimony to support the conclusion that Americare billed Medicare for transporting clients who were not medically eligible for Medicare-covered ambulance service. The Abdallahs are correct that at trial, the government's direct examination questions for Dr. Patterson focused on whether the Americare clients whose records she reviewed were bed-confined or had conditions 723 that contraindicated transport by other means and did not expressly ask whether ambulance transport was "medically required." But Dr. Patterson testified that the clients whose records she had reviewed and who could ambulate or could sit in a wheelchair were not qualified for Medicare coverage for nonemergency ambulance transport under 42 C.F.R. § 410.40(d)(1) not only because they were not bed-confined but because "the record did not demonstrate that they had a condition otherwise for which ambulance transportation was required." (emphasis added). The jury also heard testimony from Vargas's treating physicians that although she had serious medical problems, her condition did not medically require ambulance transport. Dr. Patel testified that he refused to sign a CMN for Vargas and Dr. McColloster testified that he would not have done so. Video testimony showed Vargas walking part of the way from the ambulance to her house. Ray Stevenson testified that his two doctors, Dr. Shenoy and Dr. Malya, refused to sign a CMN for ambulance transport. The jury saw a videotape showing Ray Stevenson walking and sitting unaided on his couch and getting up unaided from the couch. The jury heard testimony that Americare successfully recruited clients from Metro-Lift manifests; a patient who was able to ride Metro-Lift, a shared-ride van service with no medical personnel available, is not a patient for whom ambulance transport is medically required. The jury instructions set forth the requirements of 42 C.F.R. § 410.40(d)(1), including the "medically required" prong. The jury's verdict shows that it chose to credit the testimony of Vargas and Stevenson's treating doctors that ambulance transport was not medically necessary over that of Dr. Evans, who never treated or saw either individual. The evidence was also sufficient to find that both Wesam and Mazen Abdallah knew that some of the clients Americare transported did not qualify for Medicare coverage of ambulance transports for nonemergency regularly scheduled dialysis trips. The analysis as to Wesam Abdallah is easy and straightforward. The videotape of his meeting with Ray Stevenson shows that he had personally observed Stevenson's ability to walk and sit. Wesam knew that Stevenson was able to use other means of transportation to get to and from dialysis and that ambulance transport was not medically required. Wesam told Stevenson that if his doctors would not sign a CMN, he would arrange it. The evidence also showed that Wesam Abdallah recruited clients from Metro-Lift manifests and that he knew that such clients were not medically limited to ambulance transport. The evidence also showed that Wesam arranged for every run sheet to show that the client was "bed-confined" by telling Evelyne Almasri to show this condition on run sheets that did not so state. Americare EMTs testified about the envelopes of false CMNs Wesam Abdallah exchanged with Washington at SLNH. With respect to Mazen Abdallah's knowledge that Americare was billing Medicare for clients whose conditions did not medically require ambulance transport, the evidence is admittedly circumstantial. There is no evidence that Mazen Abdallah had face-to-face meetings with clients whose physical condition showed that they were ineligible for Medicare coverage for ambulance transport to and from regular dialysis treatments. There was evidence that in late 2006 and early 2007, Mazen Abdallah was not in Houston. But circumstantial evidence may provide evidence of knowledge. See Holmes, 406 F.3d at 351. In that respect, the government provided ample evidence from which a reasonable jury could conclude that Mazen Abdallah was aware that Americare was transporting clients who were not bed-confined, who 724 were able to use other forms of transport, and for whom ambulance transport was not medically required. The evidence showed that before the Abdallahs purchased Americare, Murad Almasri taught both Mazen and Wesam Abdallah about using Metro-Lift manifests as a source for Americare clients. Mazen Abdallah accompanied Murad Almasri to visit a Metro-Lift client to recruit her to ride Americare ambulances to and from her dialysis treatments. Two exhibits found during the search of Mazen Abdallah's home are further evidence of his knowledge that patients were ineligible. Government Exhibit 1.9, "The List," is a list of Americare clients and the amounts paid to each, both an initial sign-up payment and a monthly payment. Exhibit 1.15, a list of Americare clients, included notations next to names that indicated at least questions as to whether ambulance transport was appropriate under Medicare. Next to the name Johnny Brooks was a notation stating "He Walks." Next to the name Richard Didsbury was the notation, "Former Client; Social Worker Drama"; the jury heard testimony that Didsbury had been told by a social worker that he did not qualify for ambulance transport. The jury could infer that Mazen Abdallah either made or saw both lists. And the government played the audio recording of Fallah telling Mazen Abdallah that "the process Americare is doing right now, it might get you in trouble with FBI, TDH, or [unintelligible]." (Government's Trial Exhibit 1.11.1.a). The jury could infer that Mazen Abdallah knew that Americare was recruiting clients for whom ambulance transport was not medically required. The jury heard evidence that both Mazen and Wesam Abdallah knew that each client's attending physician had to provide a written order certifying that the medical necessity requirements were met. The jury also heard evidence showing that both Abdallahs were involved in obtaining, or knew about the use of, false CMNs. Fallah testified about his conversation in late June 2006 with Mazen Abdallah about what should be done if a patient's doctors refused to sign a CMN. Mazen Abdallah asked Fallah "What if we sign it by ourselves?" while making a gesture to sign the blank CMN form in front of him. Fallah testified that the CMN Mazen Abdallah had pretended to sign had a doctor's signature on it the very next day. The jury heard evidence that many of Americare's CMNs dated during the time Mazen and Wesam Abdallah owned and operated the company were signed by Dr. Merkelz or Dr. Thacker at SLNH, where Mazen Abdallah was paying Kelvin Washington for every dialysis patient who rode with Americare. The evidence showed that the CMNs signed by Dr. Merkelz and Dr. Thacker were for patients they had never seen and in some cases for patients who were not and had not been SLNH residents. The evidence showed that Wesam Abdallah assured Ray Stevenson that if his own doctors refused to sign a CMN, Abdallah would take care of it. The evidence showed that other clients, including Vargas, had CMNs signed by Dr. Thacker or Dr. Merkelz after these clients' own doctors refused to sign CMNs for nonemergency ambulance transport to and from dialysis. The evidence also showed that a number of the CMNs at Americare had photocopied physician signatures. There was sufficient evidence at trial from which the jury could conclude that Americare was transporting clients whose conditions did not make ambulance transport to and from dialysis treatment on a regularly scheduled, nonemergency, repetitive basis medically necessary and that Mazen and Wesam Abdallah were aware of it. A review of the case law supports the conclusion that the evidence at trial was sufficient to allow the jury to conclude that 725 the Abdallahs knew the patients they were transporting did not qualify for Medicare payment. In United States v. Mauskar, 557 F.3d 219 (5th Cir.2009), a physician convicted of conspiracy to defraud Medicare by falsely certifying that patients met the medical eligibility requirements for motorized wheelchairs argued that the evidence presented at trial was insufficient to sustain his conviction. Id. at 229. He argued that there was no evidence that he knew that patients did not need the wheelchairs or that durable medical equipment (DME) companies were delivering less expensive scooters while billing Medicare for wheelchairs. Id. at 230. The Fifth Circuit affirmed the conviction. Id. at 223. It was undisputed that the defendant prescribed a motorized wheelchair to a patient who was jogging twice a day at the time. That patient testified that he used the scooter he received for "recreational purposes." Id. at 230. The court held that this evidence was sufficient to establish that the defendant knew patients were not eligible for wheelchairs. Id. The record also showed that the defendant had asked one of the patients whom he had prescribed a wheelchair if she was interested in a scooter. Another patient testified that she had come to "see the physician about a motor scooter." Id. The court held that this evidence was sufficient to establish that the defendant knew the DME companies charged the government for wheelchairs and delivered less expensive scooters. Id. In United States v. Beverly, 284 Fed. Appx. 36 (4th Cir.2008), the defendant owned a business designed to help individuals with mental illnesses. After the business became a licensed Medicaid provider of psychosocial rehabilitative services (PSSR) under Medicaid, the state Medicaid agency conducted an audit and determined that it "was billing [the agency] and receiving payments for dozens of recipients who were not eligible" to receive these services. Id. at 38. The agency informed the defendant of the eligibility problems and explained why the patients' mental and physical conditions did not qualify for PSSR. Id. at 39. Thereafter, the defendant continued to bill Medicaid "on behalf of individuals for whom no documented health evaluation was performed and for individuals suffering from the same physical and mental infirmities" the agency discussed with the defendant. Id. at 40. The court held that the evidence was sufficient to allow a jury to conclude that the defendant engaged in a scheme to defraud Medicaid. Id. The defendant in United States v. Morgan, 505 F.3d 332 (5th Cir.2007), was convicted of twelve counts of health care fraud and one count of conspiracy to defraud Medicare by signing CMNs for motorized wheelchairs for patients that she did not examine and who were not medically eligible for wheelchairs. The evidence showed that the owner of a DME company had approached the defendant, a physician, and offered to pay her $250 for every wheelchair CMN that she completed and signed. Id. at 336. The DME company owner brought the defendant "patient information on ten to forty patients each time he saw her, but he never took a patient to see her." Id. He paid the doctor in cash once or twice a week for all of the signed CMNs. Id. The twelve counts of health care fraud were based on twelve different patients. None of the twelve had seen the defendant, and five testified that they did not need a wheelchair. Id. at 342. The court held that "a reasonable jury could have concluded that Morgan sold prescriptions for the purposes of billing Medicare without seeing patients" and that she "conspired with [the DME owner] to defraud a health care benefit program." Id. And in United States v. Boesen, 491 F.3d 852 (8th Cir.2007), the court held that 726 circumstantial evidence of the defendant's knowledge that procedures were not medically necessary was sufficient to convict the defendant of conspiracy to defraud Medicare. Id. at 858. The defendant worked as office manager and administrator of his brother's medical clinic. The clinic used codes for medical procedures and physicians' services. A doctor entered the codes for the procedure or service performed and the defendant reviewed the codes and submitted the claims. The indictment charged that the clinic "billed codes 31237 and 69150 when those procedures were not performed, and performed code 92588 when it was not medically necessary." Id. at 854. At trial, the government presented evidence that the defendant was trained in coding and billing. A clinic employee testified that the defendant was aware that many patient billing complaints involved code 31237. A former clinic physician testified that the defendant terminated her and threatened not to pay her benefits after she resisted assisting in a surgery she did not believe was medically necessary. Id. at 856. The defendant told the clinic's audiologist that she would be fired if she confronted his brother about the overuse of a certain test. Id. The defendant continued billing code 69150 after a consultant told him that patient notes did not support that procedure. After a major insurer dropped the clinic as a participating provider, the defendant said "it was a good run while it lasted, but now we're going to have to find something else." Id. at 856-57. The district court granted the defendant's motion for judgment of acquittal, finding that the defendant's statements raised suspicion, but were not evidence of intent to defraud. Id. at 857. The appellate court reversed, holding that "[c]onspiracy may be proved by circumstantial evidence and `may be implied by the surrounding circumstances or by inferences from the actions of the parties.'" Id. (internal citation and quotation omitted). The court held that the evidence allowed a jury to infer that the defendant "knowingly and willfully executed a scheme to defraud a health care program, acting in a conspiracy with [his brother]." Id. at 858. These cases show that there was sufficient evidence for a jury to infer that both Wesam and Mazen Abdallah knew that ambulance transport was not medically necessary for some of the patients Americare was transporting. See also United States v. Hunt, 521 F.3d 636, 645-46 (6th Cir.2008) (affirming convictions for health care fraud and conspiracy to commit health care fraud where the evidence showed that the defendant, a doctor, submitted claims to Medicare for tests that had not been determined to be medically necessary because the jury could reasonably infer that the doctor knew the patients had not been examined by him or a licensed nurse practitioner under his supervision); United States v. Shpirt, ___ Fed.Appx. ___, ___, 2007 WL 2044723, at 1 (9th Cir. July 16, 2007) (finding the evidence sufficient to sustain conviction for health care fraud where DME company owner caused claims to be submitted to Medicare for equipment that patients did not use); Forcada, 206 Fed.Appx. at 971 (affirming convictions for health care fraud and conspiracy to commit health care fraud where the defendant "demonstrated his awareness of the conspiracy on numerous occasions, but nonetheless continued to participate in and benefit from it," including by directing his assistant to "go along with the unjustified dilution of patients' medical infusions with saline, participat[ing] in telling a patient how to collect money for his visit to the clinic, and advis[ing] a nurse that he knew the infusion sheets reflected improper dosages"). Finally, the Abdallahs argue the evidence was insufficient to find that they 727 agreed to make or made false representations to Medicare. The Abdallahs contend that they did not represent patient conditions to Medicare because they did not fill out the run sheets and they did not send the bills to Medicare. They contend that recruiting patients from Metro-Lift, paying patients to ride with Americare, paying Washington for dialysis patients brought to SLNH, and "arranging" to have Washington obtain CMNs from Drs. Merkelz and Thacker do not amount to an agreement to misrepresent patient conditions to Medicare to obtain payment for unnecessary ambulance transports. The Abdallahs contend that evidence of agreeing to pay kickbacks is insufficient proof of conspiracy to commit health care fraud. They rely on United States v. Medina, 485 F.3d 1291 (11th Cir.2007), in which the court held that "kickbacks alone is not sufficient to establish health care fraud." Id. at 1297. In that case, the government argued that a kickback was sufficient to establish the falsity required to defraud Medicare, even if the service was medically necessary and actually performed. Id. at 1299. The court rejected this argument, holding that paying kickbacks does not amount to health care fraud in the absence of a false or fraudulent representation to Medicare. Id. The court stated that "[t]he mere fact that [medical supply companies] submitted prescriptions with forged signatures to Medicare is insufficient to establish fraud without some evidence that individuals at [these companies] knew of the forgeries or forged the prescriptions themselves." Id. at 1299. The court also stated that testimony by patient recruiters for the companies stating that they were paid to bring in patients, in violation of the antikickback statute, did not show health care fraud, absent "evidence that a patient did not . . . need what was delivered." Id. The court held that "[t]o be interpreted as health care fraud . . . there must be some evidence present in the record that shows the patients were not legitimately prescribed the oxygen concentrators, or that [defendants] made false or fraudulent representations to Medicare." Id. In the present case, the government did present evidence that Wesam Abdallah knew of the forged prescriptions. Vargas and Stevenson were transported by Americare with false CMNs obtained from Washington at SLNH. Wesam had envelopes of false CMNs delivered to him from SLNH and knew that Washington was being paid to deliver patients to Americare. The government also presented evidence that Wesam Abdallah knew that patients did not need ambulance transport. In the video encounter between Wesam and Ray Stevenson, Stevenson walked unaided and told Wesam Abdallah that his doctors had refused to sign a CMN for ambulance transport. Wesam Abdallah recruited patients who could use Metro-Lift and automatically told Evelyne Almasri that every patient she asked about was bed-confined without making any inquiry or investigation. As to Mazen Abdallah, the evidence showed that Americare transported Marine Hanchett on prescriptions with the signature of Dr. Merkelz, even though she was never seen by this doctor. Hanchett's name was on "the list" of patients found in Mazen Abdallah's home, under the heading "Kelvin Washington." (Government's Trial Exhibit 1.9). Mazen Abdallah paid Kelvin Washington to obtain clients to ride on Americare ambulances. Mazen Abdallah had also mentioned the possibility of forging unsigned CMNs to Fallah, and a signed CMN appeared the next day. The evidence included lists of clients recruited from Metro-Lift to ride Americare ambulances. The evidence also showed that Mazen Abdallah visited a Metro-Lift customer to recruit her to ride with Americare. And the evidence allowed the jury to reasonably infer that Mazen Abdallah knew that at least two other patients, 728 Brooks and Didsbury, did not need ambulance transport. In short, the evidence missing in Medina was presented in this case. The argument that the Abdallahs did not agree to misrepresent patient conditions to Medicare because they personally did not fill out run sheets or submit bills to Medicare is not persuasive. The jury was instructed that "a representation is `false' if it is known to be untrue or is made with reckless indifference as to its truth or falsity. A representation is also `false' when it constitutes a half truth, or effectively omits or conceals a material fact, provided it is made with intent to defraud." (Docket Entry No. 325, at 14); see United States v. Dillman, 15 F.3d 384, 393 (5th Cir.1994) (approving nearly identical instruction in bank fraud case). By obtaining false CMNs for patients who did not qualify for ambulance transport, and by billing Medicare for ambulance transports for these patients, Mazen and Wesam Abdallah agreed to falsely represent the conditions of these patients and their medical eligibility for Medicare coverage for the ambulance service. The forged CMNs for patients who did not qualify made the bills submitted to Medicare materially false. See Hunt, 521 F.3d at 645 (affirming convictions for health care fraud and conspiracy to defraud Medicare where the defendant "caus[ed] claims to be submitted for tests that had not been determined to be medically necessary"). The fact that the CMNs the Abdallahs obtained for clients riding on Americare ambulances were kept at Americare and not submitted to Medicare is irrelevant. Medicare covers services under Part B only if they are medically "reasonable and necessary" for the beneficiary. By submitting claims to Medicare for payment, Americare was representing to Medicare that ambulance transport was medically required for these patients when it was not. See Beverly, 284 Fed.Appx. at 40 (holding that jury could reasonably infer that defendant's "misrepresentations were contained in the claims submitted" to Medicare for patients whom the defendant had been informed were ineligible); Hunt, 521 F.3d at 646 (holding that health care fraud is established when a defendant causes "claims to be submitted on the false pretenses that they had been determined to be medically necessary by a qualified medical professional"). The Abdallahs argue that evidence of "commissions" Mazen Abdallah paid to Washington is not the same as evidence that Mazen Abdallah paid Washington for false CMNs for those clients. Washington did more than provide Americare with SLNH patients who rode on Americare ambulances to and from regularly scheduled dialysis treatments. Washington also provided America with false prescriptions for clients, signed by Dr. Merkelz and Dr. Thacker, for patients they never saw and who were not even SLNH residents. The jury could reasonably infer that Mazen Abdallah's payments to Washington were in part for the false CMNs that he provided. In addition, there is evidence that would allow the jury to infer that Mazen Abdallah knew that the patients being recruited from Metro-Lift and patients like Brooks and Didsbury did not medically qualify for ambulance transport. Viewing the evidence in the light most favorable to the government, a reasonable jury could conclude that both Mazen and Wesam Abdallah agreed to defraud Medicare by paying Washington for false CMNs for patients that they knew did not qualify for ambulance transport, by successfully recruiting patients that they knew did not qualify for ambulance transport, and by submitting claims to Medicare for those patients. Mazen Abdallah argues that his acquittal on the substantive health care fraud counts, coupled with Wesam's convictions 729 for the counts relating to Vargas and Stevenson, "undermines [the] attempt to show the evidence was sufficient to convict" him of conspiracy. (Docket Entry No. 387, at 11). Mazen Abdallah notes that for the health care fraud counts, the jury was instructed that the defendants could be convicted of either health care fraud or aiding and abetting health care fraud. With respect to aiding and abetting, the jury was instructed, "The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by him through direction of another person as his agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise." (Docket Entry No. 325, at 18). Mazen Abdallah asserts that directing or acting in concert with is an easier standard for the government to satisfy than conspiracy. He argues that "the jury's failure to find that he aided and abetted anyone to commit health care fraud under principles that are broader than those that permit conviction for conspiracy is a very strong indication that the evidence was too insubstantial to sustain a conviction." (Docket Entry No. 387, at 11-12). This argument is unavailing. Inconsistent verdicts are not a bar to conviction so long as there is sufficient evidence to support the jury's determination of guilt. See, e.g., United States v. Gieger, 190 F.3d 661, 664 (5th Cir.1999) (jury verdict acquitting defendants on substantive counts of healthcare fraud did not bar conviction for conspiracy to submit false Medicare claims for ambulance services); United States v. Sylvester, 143 F.3d 923, 930 (5th Cir.1998) (inconsistent verdicts not a bar to conviction). "Each count in an indictment is regarded as a separate indictment, and inconsistency is not a reason to reverse a jury's verdict. Moreover, a review for evidence sufficiency is performed independent of the jury's determination that evidence on another count was sufficient." United States v. Johnson, 83 Fed.Appx. 577, 578 (5th Cir. 2003) (internal citations omitted); see also United States v. Posada-Rios, 158 F.3d 832, 861 (5th Cir.1998) ("Inconsistent verdicts do not impact the sufficiency of the evidence analysis."). A conviction on one count and acquittal on other counts shows that the jury followed the instructions to consider the evidence separately as to each defendant and count. See United States v. Neal, 27 F.3d 1035, 1045 (5th Cir.1994) ("Acquittals as to some defendants on some counts support an inference that the jury sorted through the evidence and considered each defendant and each count separately.") (quotation omitted). Mazen Abdallah's acquittal on the substantive health care fraud counts does not require a finding that there was insufficient evidence to convict him of conspiracy to commit health care fraud. The Abdallahs's motions for judgment of acquittal on the conspiracy charge are denied. 2. The Evidence Was Sufficient to Convict Wesam Abdallah on the Substantive Counts Alleging Health Care Fraud Counts 3 and 4 alleged that Wesam Abdallah submitted false claims to Medicare and Medicaid based on transporting Yolanda Vargas to dialysis treatments on November 23, 2006 and January 11, 2007 because the "claim states bed-confined and unable to ambulate; however patient ambulatory." (Docket Entry No. 126). Counts 31 and 32 alleged that Wesam Abdallah submitted false claims to Medicare and Medicaid based on transporting Ray Stevenson to dialysis treatments on November 7, 2006 and December 2, 2006 because the "claim states stretcher required, unable to ambulate and bed-confined; however, patient ambulatory." (Id.). Wesam Abdallah argues that there was insufficient evidence that he knew 730 Vargas did not qualify for ambulance transport. He also argues that the jury could not reasonably find that ambulance transport for Stevenson was not medically required. He argues that the "false CMN theory" does not show he committed health care fraud because the CMNs were not actually submitted to Medicare and because Evelyne Almasri relied on the run sheets, not the CMNs, in preparing the bills submitted to Medicare. Wesam Abdallah argues that he did not fill out the run sheets for Vargas and Stevenson and he did not submit the billing statements for these patients to Medicare, making the evidence insufficient to show health care fraud as to these clients. He argues that the evidence was insufficient for a reasonable jury to find that he knew the billings Americare submitted were false because Evelyne Almasri had set up the billing software to show that each patient was "bed-confined." Wesam Abdallah relies on United States v. Jackson, 220 Fed.Appx. 317 (5th Cir. 2007), which involved physical-therapy clinics engaging in health care fraud by billing for services that were never performed. The clinics's owner hired a consultant to assist in the clinic's transition to providing services primarily funded by Medicare/Medicaid. Id. at 320. The court found the evidence insufficient to convict the consultant of health care fraud based on the fact that the clinic billed Medicare for services provided to a patient after that patient was no longer receiving the services. The court found that the billing had been "set up to be done automatically" and that the consultant did not know that it continued after a particular patient was no longer receiving therapy. Id. at 323-24. There was no evidence that the consultant knew that these therapy services had not actually been performed as represented in the bills to Medicare. As a result, there was no basis to support the conviction for health care fraud. Id. To support a conviction for health care fraud under 18 U.S.C. § 1347, the government must prove that the defendant (1) knowingly and willfully executed, or attempted to execute, a scheme or artifice to (2) defraud a health care benefit program or to obtain by false or fraudulent pretenses any money or property under the custody or control of a health care benefit program, (3) in connection with the delivery of or payment for health care benefits, items, or services. The evidence was sufficient for a reasonable jury to conclude that Wesam Abdallah defrauded Medicare. Vargas rode Americare ambulances to and from regularly scheduled dialysis treatments using false CMNs Wesam obtained through Washington. Vargas's treating physician testified he refused to sign a CMN because ambulance transport was not medically required for Vargas. The jury saw a videotape of Vargas walking on the day of a transport. Vargas testified that she walked to the store while waiting for a dialysis treatment. The jury could reasonably conclude that ambulance transport was not medically required for Vargas and that Wesam Abdallah had obtained false CMNs for Vargas from Washington, who was paid by Americare. See Morgan, 505 F.3d at 342 (finding sufficient evidence to sustain health-care fraud conviction where doctor was paid to sign CMNs for patients she never saw and who did not need motorized wheelchairs). Stevenson also rode Americare ambulances on the basis of false CMNs. Wesam Abdallah knew that Stevenson could walk and sit unaided. His doctors had refused to find ambulance transport medically necessary. Wesam Abdallah told Stevenson that if he could not obtain a CMN from his doctor, Abdallah would get him a CMN so Stevenson could be transported by Americare and Medicare would cover the benefit. False CMNs for Stevenson signed by Dr. Merkelz were obtained. The fact that 731 Medicare was billed for the ambulance trips for Stevenson with the misrepresentation that he was bed-confined and that the trips were medically necessary supported Wesam Aballah's conviction for health care fraud. The fact that the false CMNs for Stevenson were not submitted to Medicare does not make the evidence insufficient or undermine the conviction. See Beverly, 284 Fed.Appx. at 40 (holding that the "misrepresentations [to Medicare] were contained in the claims submitted" for ineligible patients). The facts in Jackson are readily distinguishable from the evidence the government presented against Wesam Abdallah. The defendant in that case had no knowledge that services automatically billed to Medicare were not in fact provided. Jackson, 220 Fed.Appx. at 323. In this case, the government presented evidence Wesam Abdallah knew that the CMNs obtained for Vargas and Stevenson were from doctors who had never seen them. The government also presented evidence that Wesam Abdallah would routinely tell Evelyne Almasri that a patient was "bed confined" without checking the patient's records or otherwise investigating. Evelyne Almasri testified that if a run sheet did not indicate that the patient was bed-confined, she would call Wesam and ask him whether that patient was bed-confined. Evelyne testified that Wesam Abdallah never told her that he would have to check the patient's records and tell her later, but always immediately responded that the patient she had asked about was bed-confined. Viewing this evidence in the light most favorable to the government, a rational jury could have found beyond a reasonable doubt that Wesam Abdallah knowingly and willingly executed a scheme to defraud a health care benefit program by receiving payments from Medicare for false ambulance transport claims for Vargas and Stevenson. See Shpirt, ___ Fed.Appx. at ___, 2007 WL 2044723, at 1 (affirming health care fraud conviction of part-owner and supervisor of durable medical equipment company where company submitted claims for patients who did not qualify for equipment). Wesam Abdallah's motion for acquittal of his conviction on Counts 3, 4, 31, and 32 of the superseding indictment is denied. III. The Motion for New Trial A. The Legal Standard Rule 33 permits the district court to grant a new trial if "necessitated by the interests of justice." United States v. Tarango, 396 F.3d 666, 672 (5th Cir. 2005); FED R.CRIM. P. 33(a). Unlike the Rule 29 analysis, in considering a Rule 33 motion, the "trial judge may weigh the evidence and may assess the credibility of the witnesses . . .," United States v. Robertson, 110 F.3d 1113, 1117 (5th Cir.1997), but must not "set aside a jury's verdict because it runs counter to [the] result the district court believed was more appropriate." Tarango, 396 F.3d at 672; United States v. Collins, 243 Fed.Appx. 56, 58 (5th Cir.2007). The power to grant a new trial "should be exercised infrequently by district courts, unless warranted by `exceptional' circumstances." Tarango, 396 F.3d at 672. If the court "finds that a miscarriage of justice may have occurred at trial,. . . this is classified as such an `exceptional case' as to warrant granting a new trial in the interests of justice." United States v. Sipe, 388 F.3d 471, 493 (5th Cir.2004). B. Analysis The Abdallahs allege misconduct by the government and the prosecution as well as a litany of errors by this court as the bases for granting a new trial. Each allegation is analyzed below. 732 1. The Allegations of Government Misconduct The Abdallahs reassert several arguments previously raised and rejected by this court. They argue that the FBI misled Mazen Abdallah into purchasing Americare while it was under criminal investigation and misused its authority through the Texas Department of State Health Services ("TDSHS"), to gather evidence. They also argue that the FBI agent in charge of the investigation and a paid confidential informant violated the criminal provisions of the Health Insurance Portability and Accountability Act (HIPAA). The Abdallahs first raised these arguments in their motions to dismiss the indictment or, in the alternative, to suppress statements and evidence based on alleged government misconduct, (Docket Entry Nos. 260, 277, 285), and now ask this court to reconsider its prior rulings, (Docket Entry No. 349, at 45). The Abdallahs argue that the government "conscripted a state agency, TDSHS, to effectively deny that Americare was under any investigation, criminal or civil." (Id., at 46). They point to FBI Special Agent Christine Arciola's March 2006 request to the TDSHS for Americare's business and licensing records. The TDSHS faxed Arciola Americare's incorporation information, dba information, EMS permit application, and EMS permit. The Abdallahs assert that this is evidence that the FBI and TDSHS were working together to investigate Americare. Before purchasing Americare, Mazen Abdallah asserts that he asked Raed Elmasri to obtain a letter showing that the company was not under investigation. Raed requested such a letter from the TDSHS. On June 6, 2006, Michael Hay of the TDSHS stated by letter that there was "no pending investigative action by the Texas Department of State Health Services." (Docket Entry No. 349, Ex. D). The Abdallahs assert that this statement was misleading because the FBI was investigating Americare at that time. They assert that "[t]he misleading statements that were transmitted through Hay's TDSHS Letter drew Mazen Abdallah into an enterprise that he would not have engaged in at all had the Government not lied to him about the criminal investigation that Americare was under when he purchased the company." (Docket Entry No. 349, at 47). The Abdallahs argue that this "deceit" warrants dismissal or suppression. (Id.). This court rejected this argument, concluding that the facts alleged did not show that the government misled Mazen Abdallah about the existence of a federal criminal investigation into Americare. And, as described above, there was sufficient evidence that Mazen Abdallah engaged in fraudulent conduct both before and after purchasing Americare. The Abdallahs also argue that after Hays's letter, the TDSHS continued to facilitate the FBI's investigation into Americare. They assert that TDSHS employee Joey Ancelet asked Mazen Abdallah, under the pretense of a civil or administrative inquiry, whether he kept Americare records at his home. Mazen Abdallah responded that he did. Agent Arciola used Ancelet's testimony as part of the evidence to establish probable cause for a warrant to search Mazen Abdallah's home. The Abdallahs argue that this was deceptive conduct that requires dismissal or suppression of the evidence obtained during the search. This court rejected this argument, concluding that the facts alleged did not show that the FBI acted in bad faith or misused civil authority to gather evidence. The Abdallahs also reassert their argument that dismissal or suppression is appropriate because government agents violated the criminal provisions of HIPAA. HIPAA prohibits receiving and utilizing protected health information. The Abdallahs 733 argue that Ayman Fares, a paid confidential informant, stole run sheets from Americare and gave them to FBI Agent Arciola. They assert that Arciola violated HIPAA because she did not report Fares's crime, but instead used the run sheets to further the criminal investigation of Americare. The Abdallahs assert that Arciola "failed to inform the magistrate that she relied on stolen evidence and covered up the crime" and that "probable cause was dependent in part on information provided by a paid informant." (Docket Entry No. 349, at 48). This court rejected these arguments, relying on cases holding that the FBI and other law enforcement agencies are not covered entities under HIPAA. See United States v. Mathis, 377 F.Supp.2d 640, 645 (M.D.Tenn.2005) ("HIPAA applies to `a health plan,' `a healthcare clearinghouse,' or `a healthcare provider who transmits any health information in an electronic form in connection with a transaction referred to in Section 1320d-2(a)(1) of this title.' The FBI does not fit within any of these categories."); see also State v. Straehler, 307 Wis.2d 360, 745 N.W.2d 431, 435 (Wis.App.2007) (police officer is not a "covered entity" under HIPAA); State v. Downs, 923 So.2d 726, 731 (La.Ct. App.2005) (district attorney is not a "covered entity" under HIPAA). The allegations of entrapment and HIPAA violations were addressed on the record and the Abdallahs have provided no reason for this court to revisit those rulings. 2. The Allegations of Prosecutorial Misconduct The Abdallahs contend that they are entitled to a new trial because of prosecutorial misconduct. Specifically, they argue that the prosecution withheld exculpatory and/or impeachment evidence, violated this court's sequestration order, and made false representations during its closing argument. The Abdallahs also argue that the government's misrepresentations of the law resulted in misleading testimony, intimidated witnesses, and interfered with doctor-patient relationships. a. Did the Government Withhold Evidence? The Abdallahs contend the government withheld evidence that one month before trial, an Americare EMT named Cynthia Mejias contacted FBI agent Christine Arciola and disclosed exculpatory evidence. The Abdallahs assert that Mejias told Arciola that Tarek Afifi was the office manager at Americare until it was shut down in June 2007, when he began working in the same capacity at American Care. According to the Abdallahs, Mejias told Arciola that at American Care, Afifi "was selling Medicare patients, writing false ambulance run sheets and manipulating or doctoring Certificates of Medical Necessity." (Docket Entry No. 349, Ex. E, Affidavit of Cynthia Mejias).[3] The Abdallahs contend that the government withheld the FBI interview memorandum documenting this conversation between Mejias and Arciola, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). They argue that this information was material because the government introduced evidence at trial that the Abdallahs had photocopied CMNs and obtained forged CMNs from Washington at SLNH. The Abdallahs also argue that FBI agent Stormy Kelly's testimony about discovering photocopied CMNs misrepresented the genesis of the government's false CMN theory. They contend that the government devised this theory from Mejias's 734 report about what Afifi was doing at CMN and used it to incriminate the Abdallahs at trial, in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).[4] The Abdallahs assert that because the government had this FBI interview memorandum that implicated Afifi as the person responsible for creating false CMNs, the prosecutors sponsored testimony which they knew was false or misleading. The Abdallahs argue that a new trial is appropriate because the evidence the government withheld and the misleading testimony the government presented was reasonably likely to affect the jury's decision. They contend that, in the alternative, this court should strike the testimony of Kelly and Agent Tsui[5] "in its entirety, along with all Government exhibits making reference to forged CMNs or to CMNs allegedly procured by the Defendants from non-attending physicians." (Docket Entry No. 349, at 37). The government asserts that there was no Brady violation. The government argues that it did not interview Mejias (or Afifi) and there is no FBI interview memorandum that was withheld. The government asserts that it unsuccessfully attempted to interview Mejias, and that the prosecutors provided the defense with all the information they had about this witness. After Mejias testified for the defense, the prosecutor cross-examined her about an internal FBI e-mail relaying a telephone conversation with Mejias. The e-mail is from Patricia Bean, a support employee at the FBI, to Agent Christine Arciola. The e-mail is dated March 5, 2008 and states: "I took a call from Cynthia Mejias . . . regarding American Care EMS . . . she wanted to talk with the person assigned to the case. She stated she knows 6-7 Medics that are willing to testify who worked for the company." (Docket Entry No. 382, at 1). In this telephone conversation, Mejias told Bean that one company (Americare) had been closed, a new company (American Care) had been formed, and the patients had been transferred from the old company to the new company. Mejias also said that if Americare patients wanted to be transported by a different company, "they were being told that they will lose their benefits." (Id.). The government provided a copy of this e-mail to the Abdallahs after Mejias testified. On cross-examination, Mejias denied what was stated in the e-mail and insisted that she told the FBI about Afifi and his role in the CMN fraud. To establish a Brady violation, the Abdallahs must show that: 1) evidence was suppressed; 2) the suppressed evidence was favorable to the defense; and 3) the suppressed evidence was material to either guilt or punishment. United States v. Runyan, 290 F.3d 223, 245 (5th Cir. 2002). In determining materiality, the question is whether "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Strickler v. Greene, 527 U.S. 263, 290, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). The record does not support the allegation of a Brady or Giglio violation. The record does not show that the government withheld exculpatory or impeaching evidence with respect to Mejias or Afifi. The government did not interview Mejias and there is no FBI interview memorandum. The e-mail summarizing Mejias's telephone 735 call to the FBI was neither exculpatory nor impeaching and the government produced it as soon as she testified. The record shows no evidence that the government had, and withheld, information implicating Afifi as someone responsible for manipulating or doctoring CMNs at Americare or American Care. The record does not support the allegation that the government sponsored false or misleading testimony about forged or photocopied CMNs at Americare. FBI agent Stormy Kelly testified about her method of detecting that physician signatures on CMNs at Americare were photocopied. The jury was free to assess the weight and credibility of this evidence. There is no basis to strike the testimony of agents Kelly and Tsui and the government exhibits concerning CMNs. b. Did the Prosecution Violate the Order Sequestering Witnesses? The Abdallahs argue that newly discovered evidence of the government's violation of this court's sequestration order merits a new trial. To receive a new trial based on newly discovered evidence, the defendant must show: (1) the evidence is newly discovered and was unknown at the time of trial; (2) the failure to detect the evidence was not due to a lack of diligence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence, if produced at a new trial, would probably result in the defendant's acquittal. United States v. Reedy, 304 F.3d 358, 372 (5th Cir.2002). If the defendant fails to establish any of these elements, known as the Berry[6] factors, the motion for new trial must be denied. United States v. Freeman, 77 F.3d 812, 817 (5th Cir.1996). When trial began, the parties invoked the rule. See FED.R.EVID. 615 ("At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion."). During the trial, the government called EMT Kathleen Bell as a witness. She testified on April 17-18, 2008. On April 17, before trial proceedings began for the day and before Bell was sworn, FBI agent Christine Arciola showed Bell run sheets that the prosecutor planned to ask her about. Counsel for the defendants brought this to the court's attention before Bell testified and urged that there was a violation of Rule 615 and that Bell should be excluded as a witness. This court considered the contact between Arciola and Bell and found "no basis for not permitting [Bell] to testify." (Docket Entry No. 353, at 12:13-14). This court gave additional instruction that the parties could not approach Bell as long as she was a witness in the case. The next day, Bell testified that several Americare patients who were not named in the indictment could walk and sit in wheelchairs. During cross-examination, defense counsel asked Bell if she had met with any government personnel after her first day of testimony. (Docket Entry No. 354, at 77:21-78:13). Bell testified that she had not. (Id.). The Abdallahs submitted two affidavits with their motion for new trial. One is from Katherine Samuel, Bell's friend. Samuel's affidavit describes a conversation with Bell on May 22, 2008. According to Samuel, Bell said that after the first day of testimony, "a male agent interviewed her for approximately three hours in a government office." (Docket Entry No. 350, Ex. F). The second affidavit is from Ann Hinrichs, defense counsel's office administrator. This affidavit states that Hinrichs was present during a speaker-phone conversation between defense counsel and Bell on September 5, 2008. (Docket Entry 736 No. 398, Ex. G). According to Hinrichs, Bell said that after her first day of testimony, "she was asked by [a prosecutor] to go over the statement she had given to" the government in the prosecutor's office and that they spoke "about her statement for 15 to 20 minutes." (Id.).[7] The Abdallahs contend that the prosecutors defied this court's order invoking the rule and that this violation "expanded the pool of beneficiaries that the Government attempted to show had been transported and fraudulently billed." (Docket Entry No. 349, at 39). The Abdallahs contend that the government failed to correct Bell's testimony that she had not met with the prosecutors after the first day of her testimony, allowing her to mislead the jury about the government's role in shaping her testimony. The Abdallahs argue that the failure to inform the court of the false testimony violated Giglio, 405 U.S. 150, 92 S.Ct. 763. The government denies that it violated the rule. The government contends that the Abdallahs cannot meet the third, fourth, or fifth Berry factors, emphasizing that "recanting affidavits and witnesses are viewed with extreme suspicion by the courts." Spence v. Johnson, 80 F.3d 989, 1003 (5th Cir.1996) (quotation omitted). The government argues that this court should not disregard Bell's sworn trial testimony in favor of after-the-fact hearsay impeaching affidavits, which are insufficient to warrant a new trial. See United States v. Wall, 389 F.3d 457, 470-71 (5th Cir.2004) (holding that newly discovered impeachment testimony that was hearsay was not a basis for granting a new trial); Reedy, 304 F.3d at 372 (upholding district court's denial of motion for new trial based on newly discovered impeachment evidence). Moreover, according to the government, the information in these affidavits is not material and would not have affected the outcome if discovered during the trial. The newly presented affidavits are offered in part to impeach Bell's trial testimony, but are also offered in an to attempt to prove a violation of this court's order sequestering witnesses. In rare circumstances, violation of such an order may require a new trial if the defendant suffered "sufficient prejudice" from a witness's testimony that was based on an out-of-court conversation. See United States v. Wylie, 919 F.2d 969, 976 (5th Cir.1990) (noting that a violation of Rule 615 may warrant reversal of conviction if district court abused its discretion in allowing testimony and if sufficient prejudice is shown, but holding that no prejudice and no abuse of discretion occurred in that case); see also United States v. Stephenson, 987 F.2d 772, 1993 WL 67139, at 5 (5th Cir. Mar. 5, 1993) (unpublished) (observing that a violation of a sequestration order by the prosecutor could result in a new trial, but holding that the standard for reversal was not met by the defendant); United States v. Womack, 654 F.2d 1034, 1040 (5th Cir. 1981) (same), cert. denied, 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 314 (1982). The testimony must be "either tailored or less than candid" and the defendant must have been denied the opportunity to explore this possibility through cross-examination. Wylie, 919 F.2d at 976. The present record, however, does not support the relief sought. The two affidavits the Abdallahs have submitted are not 737 recanting affidavits, in that Bell herself does not disavow or retract the substance of her testimony. The affidavits are offered to contradict Bell's statement at trial that she did not meet with the government between the two days on which she testified. But the affidavits not only contradict Bell's sworn testimony at trial, they contradict each other. Samuel's affidavit says that Bell told her that "a male agent interviewed [Bell] for approximately three hours in a government office." (Docket Entry No. 350, Ex. F). Hinrichs's affidavit states that Bell said she met with a prosecutor for "15 to 20 minutes." (Docket Entry No. 398, Ex. G). It is difficult to rely on such internally inconsistent hearsay affidavits, given Bell's testimony. See Wall, 389 F.3d at 470-71. Even assuming the truth of the affidavits, the standard for a new trial is not met. The "newly discovered evidence" is not exculpatory. And there is no basis to conclude that Bell's testimony was tainted or less than candid, or that the information in the affidavits would have affected the outcome. Finally, Bell's testimony was not critical in the sense that the jury heard a significant amount of other, similar evidence. The allegations that the sequestration order was violated do not warrant a new trial. c. Did the Prosecution Make False Statements During Closing Argument? Mazen Abdallah alleges that during closing arguments, the prosecutor falsely represented that Metro-Lift manifests were found in his car in the garage of his home during the search of the home. The agent who supervised the search testified that the manifests were found in the garage but was not asked and did not reveal that the manifests were on the car seat. Mazen Abdallah argues that the incorrect statement justifies a new trial. To receive a new trial based on alleged improper remarks by the prosecutor, a defendant must show that 1) the remarks were in fact improper, and 2) the remarks prejudicially affected his substantial rights. See United States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir.1999). In making that determination, this court considers: (1) the magnitude of the prejudicial effect of the statements; (2) the efficacy of any cautionary instructions; and (3) the strength of the evidence of Mazen Abdallah's guilt. See United States v. Goff, 847 F.2d 149, 165 (5th Cir.), cert. denied sub nom. Kuntze v. United States, 488 U.S. 932, 109 S.Ct. 324, 102 L.Ed.2d 341 (1988). The question is whether the remarks cast serious doubt on the correctness of the jury's verdict. Goff, 847 F.2d at 165. "If the evidence to support a conviction is strong, then it is unlikely that the defendant was prejudiced by improper arguments of the prosecutor and reversal is not required." United States v. Casel, 995 F.2d 1299, 1308 (5th Cir.) (citation omitted), cert. denied, 510 U.S. 978, 114 S.Ct. 472, 126 L.Ed.2d 424 (1993). "The magnitude of the prejudicial effect is tested in part by looking at the prosecutor's remarks in context, and attempting to elucidate their intended effect." Id. (citations omitted). "Even if a prosecutor's statement constitutes error, the error is harmless if examination of the entire record suggests that the defendant was not substantially prejudiced by the prosecutor's statement." Id. at 1308 n. 6 (citing United States v. Morris, 568 F.2d 396, 402 (5th Cir.1978)). Mazen Abdallah submitted an affidavit in which he stated that on the date of the search, his car was parked outside on the street, not in his garage. (Docket Entry No. 398, Ex. D). He states that the key to his car was inside a drawer in his house, and it was still there when he was released on bond later that day. (Id.). Mazen Abdallah's sister, Linda Abdallah, also submitted an affidavit stating her brother's 738 car was not in the garage. (Id., Ex. E). Linda Abdallah stated in her affidavit that the car was parked curbside when she left the house in the morning. When she returned home that afternoon and found law-enforcement officials at the house, she saw no vehicle in the garage and saw her brother's car still parked on the street. (Id.). This affidavit testimony contradicted the agent's trial testimony that Mazen Abdallah's car was in the garage and searched as part of the search of the house. On September 26, 2008, the Abdallahs moved for postverdict disclosure of exculpatory and impeachment evidence. (Docket Entry No. 402). They sought to obtain, inter alia, photo and video records of the June 13, 2007 search of Mazen Abdallah's home to disprove the closing-argument statements that Metro-Lift manifests were found in his car in the garage. On October 2, 2008, the government produced photos and a videotape taken during the search that show Mazen Abdallah's car parked in the garage. The government asserts that Mazen and Linda Abdallah's affidavits stating that the car was not in the garage are false. Mazen Abdallah also contends that the Metro-Lift manifest to which the prosecutor referred in closing argument, Exhibit 119, was not found in his car but on his computer, and that this document was never admitted into evidence. Mazen Abdallah argues that the prosecutor "knew exactly what [he] was arguing from, as well as where and when, the documents in the proposed exhibit were found." (Docket Entry No. 349, at 42). Mazen Abdallah cites Gallardo-Trapero, 185 F.3d at 320, which held that "a prosecutor's closing argument cannot roam beyond the evidence presented during trial," and asks for a new trial. Mazen Abdallah accuses the prosecutor of purposeful deception, arguing that the misuse of incriminating documents not in evidence was "knowing, deliberate and calculated." (Docket Entry No. 349, at 42). Mazen Abdallah argues that the closing argument statement that the manifest was found in his caras opposed to in his garagewas inaccurate and closely linked the manifests to him and created the impression he was actively recruiting patients who were able to use Metro-Lift. Mazen Abdallah argues that he moved into his home in the fall of 2006 and did not live there from November 2006 to April 2007. On June 13, 2007, the date of the search, "the house was still filled with a disarray of boxes and documents from the move, and others that had been transferred from the limited space at Americare's offices while Mazen Abdallah was away." (Docket Entry No. 398, at 5 n. 2). He argues that Exhibit 1.15 was not found in his car, as the government stated, and was not admitted into evidence, and a new trial is appropriate because that exhibit "was the Government's entire case for health care fraud against [him]." (Docket Entry No. 349, at 43). FBI Agent Marguerite Hackney testified that she recovered what was later marked as Exhibit 1. 15, a file folder containing Metro-Lift manifests, during the search of Mazen Abdallah's home. Hackney identified the file and testified that it was found in the garage: Q. Let me show you what's been marked for identification as Government's Exhibit 1.15 and ask if you can tell me if this is a document that was seized from the residence of Mr. Abdallah on that day. A. Yes, it is. Q. And how do you know that? A. This is actually a file that I seized from the residence that day. . . . . Q. Where in Mr. Abdallah's residence was that documentthat folder? 739 A. This folder was found in the garage of the Abdallah residence. (Docket Entry No. 368, at 15:13-22, 17:12-15). The record does show that the prosecutor was wrong when he described what the evidence at trial showed about where the Metro-Lift manifest was found during the search of Mazen Abdallah's home. When referring to the manifest in his closing argument, the prosecutor told the jury that Agent Hackney had found it in Mazen Abdallah's car in the garage: In fact, ladies and gentlemen, it was Special Agent Marguerite Hackney who testified before you that she found the folder that wasshe found this Manila folder which was entitled "Addresses of Patients" in the car found in Mazen Abdallah's garage. (Docket Entry No. 361, at 26:5-9). The defendants objected. The following exchange occurred at the bench: Mr. Hilder: Yes, Judge. There is absolutely no evidence anything was found in Mr. Abdallah's car. There's no searchthere's no inventory of a search warrant. Mr. Balboni: I was referring to Government's Exhibit 1.15 that the agent said was found on the seat in Mazen Abdallah's car inside the garage. Mr. Hilder: There is nothing to support that. The Court: There is evidence in the record that is consistent with what he's described. Mr. Hilder: Respectfully, I disagree. I didn't hear that, and there's no inventory that the car was searched. There ishis residence was searched. We have an inventory to support that. The Court: This is in the garage though. Mr. Hilder: I understand that. The Court: And it was lying on the seat? Mr. Balboni: Yes, Your Honor, I believe that's correct. And it was Marguerite Hackney who testified tothat she found it. The Court: All right. I'm going to allow it. The jury has heard the evidence and they can decide. (Docket Entry No. 361, at 25:5-25). After the bench conference concluded, this court stated, "The objection is overruled. The jury has heard the evidence, the jury will decide." (Id., at 26:3-4). In response to the motion, the government states that "[w]hile the folder was in truth found in the carin the garage of Defendant Mazen Abdallah's homethe prosecutor stopped one question short and failed to get that fact into evidence." (Docket Entry No. 381, at 9 n. 6). The record shows that the Metro-Lift manifest was admitted into evidence. Agent Hackney testified that "B" signifies the box number the evidence was placed into, (Docket Entry No. 368, at 13:21-14:16), so Exhibit 1.15, which is Bates-labeled "AMS-R-B13-001032" to "AMS-R-B13-01059," came from Box # 13. The search inventory shows that Box # 13 contained items found in Mazen Abdallah's home office. The index of locations searched shows that the garage was represented by the letter "O." Three groups of material were seized from the garage and placed in Box # 8, as follows: O-1 8 Black bag in plastic box Metro lift name tag "W. Aballah, First Transit, Inc. (Metro) Employees Standards and Work Rules, Americare 740 Airgas Southwest receipt, Document containing handwritten notes with "Workplace issues" typed on it. O-1 8 Left side Fax coversheet and Confirmation sheet "Capital One." O-1 8 Above Plastic Box Package "Americare Client Survey," Misc. Americare documents and empty manila folders. Manila envelope for OSAS, manila envelope with Americare on it contains documents, Americare notepadblank, Americare magnet, Black notebook with "To Do List" notes in it. (Docket Entry No. 398, Ex. B). A handwritten note attached to the typed inventory mentioned two additional items but did not state where they were found. These two items were 1) a folder containing patient addresses and 2) Americare medical service folder with blank patient sheets. (Id., Ex. F). The Metro-Lift manifest at issue, referred to in the prosecutor's closing argument, was part of Exhibit 1.15. In addition to the Metro-Lift manifest, Exhibit 1.15 also contained a type-written list of Americare clients and potential clients with hand-written notations about attempts to contact them, their medical condition, and their willingness to sign up with Americare. It was admitted into evidence. The manifest was not part of Exhibit 119, which was found on Mazen Abdallah's computer, as Mazen Abdallah argues. That exhibit was a type-written list of Americare clients and potential clients. It did not have any hand-written notations. Nor did it contain any Metro-Lift manifests. The argument that the manifest was not admitted into evidence is not supported by the record. Agent Hackney testified that all of the documents comprising Exhibit 1.15 were found together in a folder in the garage and then sequentially Bates-numbered. The fact that items from Mazen Abdallah's home office were placed in Box 13 does not mean that all items placed in Box 13, including Exhibit 1. 15, came from that office. Agent Hackney testified that she personally found Exhibit 1.15 in the garage. The jury could reasonably infer that Exhibit 1.15 was the folder containing patient addresses described in the handwritten note attached to the inventory and could credit Agent Hackney's testimony as to the location where that folder was found. The fact that the prosecutor misstated that Exhibit 1.15 was found in his car, as opposed to his garage or even office, did not prejudicially affect Mazen Abdallah's substantial rights. The presence of the manifest in Mazen Abdallah's home, whether car or garage, was the significant fact, not where in the home it was found. The Abdallahs' argument that the prosecutor was deliberately lying because the car was not in the garage, as the prosecutor stated, but on the street, fails. The videotape of the search shows the car in the garage during the search. Contrary to Mazen Abdallah's assertion, the manifest was not the government's entire case against him. The prosecutor's incorrect statement that Agent Hackney testified the manifest was found in the car in the garage, and not merely in the garage, is not a basis for granting a new trial.[8] 741 d. Did the Government Intimidate Witnesses? Lastly, the Abdallahs argue that the government's "reckless misrepresentations" of the law and regulations intimidated witnesses, interfered with doctor-patient relationships, and resulted in misleading testimony. They point to Mary Martinez's testimony on cross-examination that the lead prosecutor told her that she should stop using ambulance services to get to dialysis treatment because her condition did not make those services medically necessary. According to the Abdallahs, "[u]nderlying this advice was the threatcertainly implicit if not voiced that Mary Martinez might be prosecuted for seeking ambulance service." (Docket Entry No. 349, at 43). They argue that the government jeopardized Martinez's health because it made her use a walker to come to court and testify, instead of allowing her to use a wheelchair. The Abdallahs assert that the government told doctors that ambulance transport is only covered by Medicare if the patient is bed-confined and transportation by other means is contraindicated, ignoring the other prong of the regulation that allows Medicare coverage if the patient's medical condition is such that ambulance transport is medically required. They contend that this narrow interpretation of the regulation caused Drs. Merkelz and Gopal to testify that they would not have authorized ambulance transport for their patients had they known this position. They accuse the government of intentionally eliciting this testimony by the doctors, "which [it] had engineered by incompetent misinformation," in violation of due process. The Abdallahs also argue that the government intimidated EMTs and chilled their testimony on behalf of the defendants by instructing them that accepting a commission for recruiting a patient was a crime. They assert that this instruction was false because EMTs can legally accept commissions from their employer for recruiting patients. The record does not support these serious allegations of prosecutorial misconduct. On redirect examination, Martinez testified that she did not recognize the prosecutor. There was no evidence that the government "made" Martinez use a walker instead of a wheelchair in court or that her health was jeopardized. Other witnesses for the government came into court and testified from a wheelchair. There is no evidence in the record suggesting that the government treated Martinez differently. The record does not support the argument that government agents told EMTs who were testifying that receiving a commission from their employer was a crime. To the contrary, EMT Bell testified that no one had ever told her receiving a commission from her employer for referring a patient was wrong. (Docket Entry No. 354, at 73:16-18). The Abdallahs have not produced any statements by Americare EMTs that their testimony was chilled or affected as a result of anything government agents told them. With respect to EMT Mahalec, who testified under a grant of immunity, the fear of criminal liability was not created by the government but by her own offer to pay Stevenson if he switched to Americare, a clear violation of the antikickback statute. 742 The record does not support the allegation that the government interfered with doctor-patient relationships. Dr. Merkelz signed CMNs for individuals who were never his patients; no doctor-patient relationship existed at to them. Dr. Gopal, who signed prescriptions for Mary Martinez, signed CMNs but testified that he never read the regulations governing ambulance transports and did not understand the criteria for prescribing such transports for Medicare coverage. The Abdallahs's allegations of intimidation and interference are not supported by the record and do not support the request for a new trial. 3. The Alleged Trial Errors The Abdallahs allege a host of errors as the basis for a new trial. They contend that the proof at trial materially varied from the indictment, that the jury instructions were erroneous, and that this court erred by: admitting Medicare manuals into evidence; allowing Patterson to remain in the courtroom; allowing Griffith to testify as an expert; permitting Griffith and Patterson to apply law to the facts without firsthand knowledge; and limiting the cross examination of Griffith and Patterson. Each argument is examined below. a. Material Variance The Abdallahs assert that it was error to permit the government to present evidence of Americare clients who rode on Americare ambulances to and from dialysis on a regularly scheduled, nonemergency, repetitive basis, despite a lack of medical need or a valid CMN for the ambulance transport, if those transports and clients were not specifically alleged in the indictment. The superseding indictment alleged that Anderson, Batiste, Guzman, Martinez, Stevenson, and Vargas were Americare clients who did not have medical conditions that qualified them for Medicare coverage for nonemergency scheduled repetitive ambulance service and who did not have valid CMNs for such service. The Abdallahs argue that the government was erroneously permitted to present evidence that several other Americare clients, not specifically identified in the indictment, were ineligible for Medicare-covered ambulance service. The Abdallahs contend that this is a variance warranting a new trial.[9] A variance exists when the evidence at trial proves facts different from those alleged in the indictment, as opposed to facts that, although not specifically mentioned in the indictment, are consistent with its allegations. See, e.g., Berger v. United States, 295 U.S. 78, 81, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935) (fatal variance exists when the indictment charged a single conspiracy and the evidence demonstrated two different and disconnected smaller conspiracies); United States v. Guthartz, 573 F.2d 225, 228 (5th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173 (1978) (fatal variance exists when "an indictment enumerates the particular facts alleged to constitute the element of a charged crime and the proof 743 makes out the elements in a different manner"). There was no variance in this case. The evidence that Medicare beneficiaries not named in the indictment rode on Americare ambulances and did not have medical conditions necessary for Medicare coverage for ambulance service was consistent with the indictment's allegations that the Abdallahs engaged in conspiracy to commit health care fraud by submitting bills to Medicare for ambulance transport for beneficiaries who did not medically qualify for the service. In a prosecution for health care fraud, "acts and transactions constituting a part of [the scheme to defraud] are admissible as proof of the criminal enterprise." United States v. Kirkham, 129 Fed.Appx. 61, 73 (5th Cir.2005). Evidence that other beneficiaries did not qualify for ambulance transport was both relevant and intrinsic to the health care fraud. The Abdallahs received notice and were aware that the government had evidence about Americare clients for whom ambulance transport was not medically required and who were not included in the indictment. In a conspiracy case, the government is not limited to presenting evidence of the substantive counts charged in the indictment, but may offer proof of acts and uncharged crimes that are outside the scope and counts of the indictment to establish the elements of conspiracy. See, e.g., United States v. Lokey, 945 F.2d 825, 834 (5th Cir.1991) (holding evidence of similar crimes committed outside the temporal scope and substantive counts of the indictment admissible "because it was relevant to establish how the conspiracy came about, how it was structured, and how each appellant became a member"); United States v. Nichols, 750 F.2d 1260, 1264-65 (5th Cir.1985) (holding evidence of defendant's involvement in uncharged crimes admissible as it was intrinsic to the government's case in proving the existence of a conspiracy). b. The Jury Instructions The Abdallahs challenge the jury instructions on the governing Medicare regulation, 42 C.F.R. § 410.40(d). The relevant part of the jury instructions are as follows: A federal regulation, Title 42 C.F.R. § 410.40, describes the requirements for establishing the medical necessity of ambulance transport that is covered by Medicare. The regulation states as follows: (d) Medical necessity requirements (1) General rule. Medicare covers ambulance services . . . only if they are furnished to a beneficiary whose medical condition is such that other means are contraindicated. The beneficiary's condition must require both the ambulance transportation itself and the level of service provided in order for the billed service to be considered medically necessary. Nonemergency transportation by ambulance is appropriate if either the beneficiary is bed-confined, and it is documented that a beneficiary's condition is such that other methods of transportation are contraindicated; or, if his or her medical condition, regardless of bed confinement, is such that transportation by ambulance is medically required. Thus, bed confinement is not the sole criterion in determining the medical necessity of ambulance transportation. It is one factor that is considered in a medical necessity determination. For a beneficiary to be considered bed-confined, the following criteria must be met: (i) The beneficiary is unable to get up from the bed without assistance. 744 (ii) The beneficiary is unable to ambulate. (iii) The beneficiary is unable to sit in a chair or wheelchair. (2) Special rule for nonemergency, scheduled, repetitive ambulance services. Medicare covers medically necessary nonemergency, scheduled, repetitive ambulance services if the ambulance provider or supplier, before furnishing the service to the beneficiary, obtains a written order from the beneficiary's attending physician certifying that the medical necessity requirements or paragraph (d)(1) of this section are met. The physician's order must be dated no earlier than 60 days before the date the service is furnished. You are instructed that this Medicare regulation does not state that an ambulance company that transports patients to and from dialysis on a nonemergency, scheduled, repetitive basis has to obtain more than a valid physician's certificate of medical necessity to demonstrate that a particular ambulance transport was medically necessary. (Docket Entry No. 325, at 16-17). The Abdallahs argue that because the government's proof at trial largely ignored the second prong of the medical necessity definition"if his or her medical condition, regardless of bed confinement, is such that transportation by ambulance is medically required"the jury had to be "disabused of the idea that the beneficiaries' ability to use other forms of transportation was an essential component of the definition of the benefit." (Docket Entry No. 349, at 67). The Abdallahs requested a separate instruction defining eligibility for nonemergency ambulance transportation. They assert that the instruction that this court gavea verbatim recitation of subsections (d)(1) and (d)(2)was erroneous because it "could create confusion at best and further harm the Defendants at worst." (Id., at 68). They argue that without a separate instruction, "the jury would clearly assume that no matter what prong was applied, the benefit was available only to beneficiaries who could not possibly take other forms of transportation." (Id.). The Abdallahs also argue that this court erred by not instructing the jury on terms found in the regulation, 42 C.F.R. § 410.40(d). The Abdallahs assert that the following terms required definition: "documentation"; "medically required"; "contraindicated"; "certificates of medical necessity"; "unable to sit in a chair or wheel chair"; and "qualified" or "eligible" for ambulance service. At trial, the Abdallahs submitted proposed jury instructions that included the following instruction about documentation requirements: "Title 42 U.S.C. § 410.40(d), subsections (1) the General Rule and (2) the Special Rule regarding non-emergency ambulance transportation do not require providers of non-emergency scheduled repetitive ambulance transportation to keep records or document the conditions of the patients that they transport." (Docket Entry No. 318, Defendant's Proposed Jury Instructions, at 7). For "medically required," the Abdallahs sought this definition: "A treatment or activity is medically required if the treatment or activity is in the best interest of the patient, or if in the absence of the treatment or activity, the patients' conditions or symptoms present a risk to the health or safety of others. Non-emergency ambulance transportation is medically required for a patient on days that a patient is to undergo dialysis if it is in the best interest of the patient to use non-emergency ambulance transportation to dialysis on those days; or non-emergency ambulance transportation is medically required. . . if transporting the patient by means other than ambulance presents a risk to the health or safety of others." 745 (Id., at 4). The Abdallahs sought to have this court instruct the jury that "contraindicated" means: "`to make (the indicated, or expected treatment) inadvisable: said of a symptom or condition.' Hence, other means of transportation are contraindicated, or other methods of transportation are contraindicated due to the conditions or symptoms of a beneficiary if the conditions or symptoms of the patient makes other means, or other methods, of transportation inadvisable." (Id., at 3). For "certificates of medical necessity," the Abdallahs proposed this instruction: "If the ambulance provider or supplier, before furnishing the service to the beneficiary, obtains a written order from the beneficiary's attending physician certifying that the medical necessity requirements of paragraph (d)(1) of 42 C.F.R. § 410.40 are met, and the physician's order is dated no earlier than 60 days before the date the service is furnished, then that CMN is sufficient for Medicare to cover nonemergency, scheduled, repetitive ambulance services during the 60 day period for the patient for whom the service is medically necessary. However, it is not necessary, according to the terms of 42 C.F.R. § 410.40(d)(2), that the ambulance provider obtain a certificate of medical necessity before transporting a patient to or from dialysis, or before submitting a bill to Medicare for ambulance service provided to the patient." (Id., at 6). And the Abdallahs sought the following definition of "unable to sit in a chair or wheelchair": "A person is `unable to sit in a chair or wheelchair' if the person is unable to sit in a chair or wheelchair safely, or is unable to sit in a chair or wheelchair without the assistance of another in transferring to or from the chair or wheelchair." (Id., at 5). The Abdallahs did not propose definitions for the terms "qualified" or "eligible for ambulance service." The Abdallahs also argue that this court erred by not instructing the jury that nonemergency scheduled repetitive ambulance services do not require a CMN. The Abdallahs contend that the government misstated the law governing ambulance transportation by stating that a CMN is necessary for transport. The Abdallahs argue that an instruction was necessary to disabuse the jury of the notion that transporting beneficiaries without a CMN was a per se violation of the regulation. They assert that under § 410.40(d)(2), a CMN is sufficient but not necessary for Medicare coverage for ambulance transports for regularly scheduled, nonemergency, repetitive ambulance services, and that this court should have given an instruction to that effect. Lastly, the Abdallahs argue that the government erroneously interpreted the regulation to impose a document retention requirement on providers of nonemergency scheduled repetitive ambulance transports. They contend that a jury instruction was necessary to clarify that no such requirement applied to Americare or the Abdallahs. Each of these contentions lacks merit. "[A] district court retains substantial latitude in formulating its jury charge, and . . . will [be] reverse[d] only if the requested instruction is substantially correct; was not substantially covered in the charge as a whole; and if the omission of the requested instruction seriously impaired the defendant's ability to present a given defense." United States v. Cain, 440 F.3d 672, 674 (5th Cir.2006) (internal quotations and citations omitted). Any error is subject to harmless error review. United States v. Nguyen, 493 F.3d 613, 622 (5th Cir.2007). "The trial court may decline a suggested charge which incorrectly states the law, is without foundation in the evidence, or is stated elsewhere in the instructions." United States v. Robinson, 700 F.2d 205, 211 (5th Cir.1983). 746 This court's instruction on the regulation that applies to Medicare coverage for nonemergency regularly scheduled repetitive ambulance transports to and from dialysis was correct, and on the proper role of the regulation in proving health care fraud, was correct. Under the "general rule," which applies by its terms to ambulance services in general, "Medicare covers ambulance services . . . only if they are furnished to a beneficiary whose medical condition is such that other means are contraindicated." 42 C.F.R. § 410.40(d)(1). Medicare coverage is present "if either the beneficiary is bed-confined, and it is documented that a beneficiary's condition is such that other methods of transportation are contraindicated; or, if his or her medical condition, regardless of bed confinement, is such that transportation by ambulance is medically required." Id. (emphasis added). The special rule is that for Medicare coverage for nonemergency repetitive scheduled ambulance services, an "ambulance provider or supplier, before furnishing the service to the beneficiary," must obtain "a written order from the beneficiary's attending physician certifying that the medical necessity requirements or paragraph (d)(1) of this section are met. The physician's order must be dated no earlier than 60 days before the date the service is furnished." The jury instructions set out this regulation. The instructions also carefully informed the jury that failure to meet the regulations was not sufficient to meet the government's burden of proving a violation of the healthcare fraud statute. This court instructed the jury that "[a] violation of a regulation is not in itself a criminal offense," and that only if the jury first found that a defendant committed the acts charged in the indictment could it then "consider the evidence of a violation of a regulation for the limited purpose of determining whether that defendant had the required state of mind or intent necessary to commit the crimes charged." (Docket Entry No. 325, at 17-18). See United States v. Butler, 429 F.3d 140, 150-51 (5th Cir.2005) (approving nearly identical instruction in fraud case); United States v. Brechtel, 997 F.2d 1108, 1115 (5th Cir. 1993) ("[W]e and our colleagues in other circuits have recognized the value of limiting instructions in attenuating any improper effect of such evidence when used for a permissible purpose.") (citing United States v. Cordell, 912 F.2d 769, 777 (5th Cir.1990); United States v. McElroy, 910 F.2d 1016, 1023-24 (2d Cir.1990); United States v. Smith, 891 F.2d 703, 710 (9th Cir.) cert. denied, 498 U.S. 811, 111 S.Ct. 47, 112 L.Ed.2d 23 (1990); United States v. Stefan, 784 F.2d 1093, 1098 (11th Cir.) cert. denied, 479 U.S. 855, 107 S.Ct. 193, 93 L.Ed.2d 125, 479 U.S. 1009, 107 S.Ct. 650, 93 L.Ed.2d 706 (1986)). The instructions were accurate and did not as a whole mislead or misinform the jury. See United States v. McPhilomy, 270 F.3d 1302, 1310 (10th Cir.2001) (finding no error in jury instructions that stated regulation verbatim and as a whole adequately informed jury of relevant law). The Abdallahs' argument that the court erred in failing to define the terms "documentation," "contraindicated," "certificates of medical necessity," and "unable to sit in a chair or wheel chair," is unpersuasive. "A trial court need not define specific statutory terms unless they are outside the common understanding of a juror or are so technical or specific as to require a definition." Nguyen, 493 F.3d at 624 (quoting United States v. Chenault, 844 F.2d 1124, 1131 (5th Cir.1988)); see also United States v. Dixon, 201 F.3d 1223, 1231 (9th Cir.2000) (holding that "the court did not err by failing to define `commercial advantage' and `private financial gain' because these are common terms, 747 whose meanings are within the comprehension of the average juror"); United States v. Moore, 921 F.2d 207, 210 (9th Cir.1990) (holding that, "since `violence' is a concept within the jury's ordinary experience, there is no prejudice in failing to define it"). The terms at issue are within the jury's common understanding and were not so technical or specific as to require definition. "Documentation" and "contraindicated" are clear terms and their undisputed meaning was made clear in the testimony. The term "certificates of medical necessity" was similarly defined and explained, without dispute, in the testimony. The terms "qualified" or "eligible" for ambulance service were defined in the medical necessity requirements of the regulation set forth in the instructions. The term "unable to sit in a chair or wheelchair" is clear and needed no additional explanation. No additional instruction was needed to define "medically required" because it was used consistent with its common meaning and the jury had sufficient guidance from the testimony, specifically that of Dr. Patterson and Dr. Evans, to determine whether ambulance transport was medically required for the patients at issue. See United States v. Thierman, 76 F.3d 390, 1996 WL 18638, at 10 (9th Cir.1996) (unpublished table decision) (district court did not err when it instructed jury on the crime of selling adulterated drugs by failing to maintain current good manufacturing processes but did not define the processes because jury had guidance from testimony as to what constituted such processes). The Abdallahs's requested instruction that a CMN is sufficient but not necessary for Medicare coverage for nonemergency scheduled repetitive ambulance transport to and from dialysis was properly denied because it incorrectly stated the law. The Medicare Act plainly states that Medicare covers a claim under Part B, which includes ambulance services, "only if . . . a physician certifies . . . that . . . such services are or were medically required." 42 U.S.C. § 1395n(a)(2)(B); see also United States v. Convalescent Transports, Inc., 2007 WL 2090210, at 2 (E.D.N.C. July 19, 2007) (interpreting, in False Claims Act case, 42 C.F.R. § 410.40(d)(2) to require a CMN for nonemergency, scheduled, repetitive ambulance services). The Abdallahs's proposed instruction that "medically required" means "in the best interest of the patient" was also an incorrect statement of the law. The regulations do not phrase "medically required" in terms of a patient's best interest. The regulations clearly state: "Nonemergency transportation by ambulance is appropriate if either: the beneficiary is bed-confined, and it is documented that the beneficiary's condition is such that other methods of transportation are contraindicated; or, if his or her medical condition, regardless of bed confinement, is such that transportation by ambulance is medically required." 42 C.F.R. § 410.40(d)(1). The Abdallahs argue that government witnesses incorrectly stated that the document-retention requirement of § 410.40(d)(3)(v), which is not, on the face of the statute, part of the special rule for nonemergency repetitive scheduled ambulance transports, applied.[10] The jury instructions specifically stated that for nonemergency scheduled repetitive ambulance 748 services, the provider does not have to obtain anything more than a valid CMN to demonstrate that a particular ambulance transport was medically necessary. This instruction was sufficient to cure any erroneous interpretation of the regulation by the government in terms of document retention. The jury instructions correctly stated the law and are not grounds for granting the Abdallahs a new trial. c. Admission of Medicare Manuals Into Evidence The Abdallahs argue that it was error to admit into evidence the 2006 and 2007 ambulance manuals published by Medicare's contractor, Trailblazer Health, Inc. The Abdallahs contend that the probative value of the manuals was substantially outweighed by the danger of unfair prejudice and confusion because the manuals "had the misleading appearance of official Government publications when they actually were composed by a Government contractor," (Docket Entry No. 349, at 54), and misinterpreted the regulation governing non-emergency scheduled repetitive ambulance service. They contend that the manuals disregarded the "medically required" prong of 42 C.F.R. § 410.40(d)(1), falsely implied that ambulance service was medically necessary only if other forms of transportation were contraindicated, and misinterpreted the regulation to require document retention and a CMN for providers of nonemergency scheduled repetitive ambulance service. The Abdallahs argue that Griffith and Patterson based their opinions that Medicare would have denied claims submitted by Americare on the manual's erroneous interpretations. They assert that a new trial is warranted because the government's introduction of the manuals and sponsorship of testimony based on the manuals "recklessly mislead [sic] the jury," (Docket Entry No. 349, at 55), in violation of Giglio, 405 U.S. at 150, 92 S.Ct. 763. The admission of the Medicare manuals was not error and does not warrant granting a new trial. Other courts have upheld the admission of Medicare manuals as relevant evidence in cases involving health care fraud. See United States v. Gold, 743 F.2d 800, 815-16 (11th Cir.1984) (conspiracy to commit health care fraud); United States v. R & F Properties of Lake County, Inc., 433 F.3d 1349, 1357-58 (11th Cir. 2005) (False Claims Act); see also State v. Romero, 533 So.2d 1264, 1275 (La.App. 3 Cir.1988) (holding that the "trial court did not err in admitting [Medicaid] provider manual into evidence"), writs granted, 541 So.2d 879, 880 (La.1989). In Gold, the court held that a similar Medicare manual was "highly relevant" in determining those claims payable under Medicare because the manual "directly reflected the interpretation of those statutes and regulations by government officials who were charged with administering the programs involved." 743 F.2d at 815-16. The ambulance manuals were relevant. They set out the agency's interpretation of the medical necessity requirements and other conditions for Medicare coverage. See also Keefe v. Shalala, 71 F.3d 1060, 1065 (2d Cir.1995) (provisions of Medicare manual "are valid interpretive rules and are promulgated by the Secretary under the authority of [the Medicare statute]") (citing Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986) for the proposition that "an `agency's construction of its own regulations is entitled to substantial deference" and St. Mary's Hospital v. Blue Cross & Blue Shield Ass'n, 788 F.2d 888, 890 (2d Cir.1986) for the proposition that "Medicare Provider Reimbursement Manual is an `interpretive' document entitled to persuasive weight"). 749 Defense counsel vigorously cross-examined the government's witnesses on their interpretation of the Medicare regulations and on the manuals. The court's instructions carefully told the jury that a valid CMN was required for Medicare coverage for the type of ambulance service at issue and that this was the only document that had to be obtained by the service provider. The jury instructions did not say that Americare or the Abdallahs were subject to any other document-retention requirement. The manuals were admissible evidence, the jury was free to assess their persuasive weight, and the admission does not provide a basis for granting a new trial. d. Alleged Errors Concerning Griffith and Patterson The Abdallahs argue that this court erred by allowing Christine Griffith, the coverage policy manager for TrailBlazer Health Enterprises, a Medicare contractor, to testify as an expert witness. They argue that Griffith was not qualified under Rule 702 to render opinion evidence on the rules and regulations governing the payment of ambulance transports for dialysis patients. The Abdallahs contend that Griffith was not qualified because she was not employed by Medicare but by a Medicare contractor and never worked in the billing department at TrailBlazer. They assert that "Griffith's familiarity with Medicare's rules and regulations was grossly deficient" because she opined that CMNs were required for nonemergency scheduled repetitive ambulance service and that providers were also required to maintain supporting documentation on file. They also argue that Griffith was not qualified to testify about the significance of medical records because she does not have medical expertise. Rule 702 states that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." As a threshold matter, the trial judge must determine whether the proffered witness is qualified to give the expert opinion he seeks to express. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Witnesses may be qualified as experts if they possess specialized knowledge, skill, experience, training, or education. FED. R.EVID. 702. The Fifth Circuit has stated that an expert must have expertise in the general area in which he testifies, but need not have expertise in the specialized area directly pertinent to the issues in question. United States v. Marler, 614 F.2d 47, 50 (5th Cir.1980). The court must determine whether the proposed expert's training or experience are sufficiently related to the issues and evidence before the court that the expert's testimony will assist the trier of fact. Primrose Operating Co. v. Nat'l Am. Ins., 382 F.3d 546, 562-63 (5th Cir. 2004). The party offering the expert testimony has the burden to establish by a preponderance of the evidence that it is admissible. Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir.1998) (en banc). The party offering the challenged expert opinions need not, however, prove "that the expert's testimony is correct." Id. The district court must also make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid [the reliability criterion] 750 and of whether the reasoning or methodology can be applied to the facts at issue [the relevance analysis]." Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606, 617 (5th Cir.1999) (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786). The district court's responsibility is "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167. The court "must ensure that the expert uses reliable methods to reach his opinions; and those opinions must be relevant to the facts of the case." Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir.2004). Contrary to the Abdallahs' arguments, Griffith was qualified to testify about Medicare rules and regulations governing payment of ambulance transports for dialysis patients. Griffith had 23 years of experience working for Medicare contractors. The argument that Griffith is not qualified because she works at TrailBlazera Medicare contractorand not for Medicare itself is unavailing. The Medicare program is implemented by private contractors that act as agents of HHS to process, review, and pay claims submitted to Medicare for payment. While working for Medicare contractors, Griffith has processed claims, corresponded with medical providers about reviewing claims, worked as a hearing officer specializing in Medicare coverage for ambulance services, trained other hearing officers on Medicare coverage for ambulance services, worked as a coverage policy specialist, and now serves as a manager at TrailBlazer. Griffith assisted in drafting the Medicare-provider manuals and participates in provider education, including seminars and teleconferences, concerning claims, documentation, and payment for ambulance services. She was amply qualified by experience and training. Furthermore, Griffith's testimony was both relevant and reliable. At trial, Griffith testified about the Medicare payment system and how it functioned, helping the jury understand the rules and regulations under which Americare submitted its claims. See United States v. Strange, 23 Fed.Appx. 715, 717 (9th Cir.2001) (observing that testimony regarding Medicare regulations and reimbursement procedures was "entirely appropriate for an expert"). Griffith's expertise in reviewing medical records for TrailBlazer in the process of reviewing claims allowed her to help the jury understand the diagnoses shown on the Americare run sheets and whether they supported a claim for payment. Griffith's opinions were based on Americare's records; Medicare's interpretation of the applicable regulations, including § 410.41(c)(3); her lengthy experience in processing and reviewing ambulance transport claims; and her review of medical and other records relating to the Americare clients. Griffith reliably applied Medicare's interpretation of the regulation to the claims and documents submitted by the Abdallahs to opine that these claims would not have been paid had TrailBlazer conducted a prepayment review. Courts have permitted such testimony in similar cases. See, e.g., United States v. Universal Rehabilitation Services, Inc., 1996 WL 297575, at 10 (E.D.Pa. May 31, 1996) (permitting expert testimony by Medicare contractor employee who offered opinion as to whether the documents submitted by provider supported claims for payment by Medicare). Second, the Abdallahs argue that this court erred by allowing Griffith and Patterson to testify about facts that they did know on a first-hand basis. They argue that Griffith never conducted a prepayment 751 review and was not competent to testify about what TrailBlazer would have done had it conducted a prepayment review. The Abdallahs contend that Patterson's testimony that Americare's claims were not covered by Medicare was not based on her medical expertise, but "was the result of Patterson applying regulations she badly misunderstood to facts supplied by the government." (Docket Entry No. 349, at 58). These arguments lack merit. Griffith and Patterson did not purport to testify exclusively from first-hand knowledge and were not required to do so. "Unlike an ordinary witness, an expert is permitted wide latitude to offer opinions, including those that are not based on first-hand knowledge or observation." Daubert, 509 U.S. at 591, 113 S.Ct. 2786. After reviewing the individual case files that were presented during trial, Griffith and Patterson offered their opinions about whether the documents supported the ambulance-transport claims billed to Medicare. Griffith and Patterson testified based on their lengthy experience with and knowledge of Medicare regulations and claims review. To the extent the Abdallahs challenge the opinions of Griffith and Patterson about whether Medicare would have paid the claims, "[i]t is well established that Fed.R.Evid. 704 permits a witness to express an opinion as to an ultimate issue that must be decided by the trier of fact." See United States v. Gold, 743 F.2d 800, 817 (11th Cir.1984) (citing United States v. Miller, 600 F.2d 498, 500 (5th Cir.), cert, denied, 444 U.S. 955, 100 S.Ct. 434, 62 L.Ed.2d 327 (1979)). In Gold, the court held that because the trial judge carefully instructed the jury about the weight that should be given expert testimony such as that offered by a witness who had received special training on Medicare, admission of the expert's opinion as to whether particular claims filed by defendants charged with Medicare fraud were eligible for reimbursement under Medicare was proper. Third, the Abdallahs argue that this court erred by failing to exclude Patterson from the courtroom, in violation of Rule 615 of the Federal Rules of Evidence. Rule 615 directs that upon a party's request or upon its own motion "the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses" subject to certain exceptions. The exceptions include "(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause." The Abdallahs contend that Patterson was not essential to the government's case because her testimony and opinion was redundant of Griffith's. Relying on Opus 3 Ltd. v. Heritage Park, Inc., 91 F.3d 625, 629 (4th Cir.1996), the Abdallahs also contend that the exception does not apply to Patterson because she also served as a fact witness regarding disputed issues in the case. The government responds that Patterson was appropriately allowed to listen to testimony because Federal Rule of Evidence 703 "provides that an expert may base his opinions on facts or data obtained `at or before the hearing.'" Mayo v. Tri-Bell Industries, Inc., 787 F.2d 1007, 1013 (5th Cir.1986). In Mayo, the court held that it was permissible for the defendant's expert witness to testify after having discussed the evidence with defense counsel during a break in trial. Citing Rule 703, the court concluded that expert witnesses "would be testifying solely as to their opinion based on the facts or data in the case, and, accordingly, were properly exempted from the order excluding witnesses. Because the experts were not witnesses whose recollections might have been colored by accounts of prior witnesses, there was no prejudice." Id. (internal citations omitted). 752 Some courts have rejected the government's argument that, consistent with Rule 703, Rule 615(3) does not cover expert witnesses who express opinions based on the facts of the case. See, e.g., Opus 3, 91 F.3d at 629; Woodson v. McGeorge Camping Ctr., Inc., 42 F.3d 1387, 1994 WL 667052, at 3 (4th Cir.1994) (unpublished table decision); Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1373-74 (5th Cir.1981); Morvant v. Const. Aggregates Corp., 570 F.2d 626, 630 (6th Cir.1978). In Miller, the Fifth Circuit agreed with the Morvant court that "Rule 703 does not furnish an automatic basis for exempting an expert from sequestration under rule 615.... Whether or not it would be reasonable for a trial court to exempt an expert witness from a sequestration order, there is no required exemption implied under rule 615." 650 F.2d at 1374. The Abdallahs' reliance on Opus 3 is misplaced. The district court excluded the witness in that case "not because he was an expert who would not benefit from testimony, but because he was a key fact witness." 91 F.3d at 629, Patterson was not a fact witness in this case, much less a key fact witness, but gave opinion testimony based on her review of the run sheets and medical records. Although Rule 703 does not provide a blanket exemption from Rule 615, Patterson was appropriately exempted from Rule 615 in this case, along with Dr. Evans, the Abdallahs' expert. Expert witnesses who either respond to the theories of an adversary's expert or base their opinions on facts adduced by witnesses at trial are infrequently excluded from the courtroom during trial. See Morvant, 570 F.2d at 629-30 ("Theoretically at least, the presence in the courtroom of an expert witness who does not testify to the facts of the case but rather gives his opinion based upon the testimony of others hardly seems suspect and will in most cases be beneficial, for he will be more likely to base his expert opinion on a more accurate understanding of the testimony as it evolves...."). It is within the trial judge's discretion to except from the rule expert witnesses who may base their opinions in part on witness testimony. Id. at 630. Patterson was appropriately exempted from the Rule 615 order. Finally, the Abdallahs argue that this court improperly limited their ability to cross-examine Griffith and Patterson about the structure and meaning of the regulation. The Confrontation Clause of the Sixth Amendment provides a criminal defendant with the right to confront and cross-examine witnesses presented against him at trial. Cruz v. New York, 481 U.S. 186, 189, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). "[T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The Confrontation Clause does not, however, mean that defense attorneys are allowed limitless opportunity to cross-examine witnesses. Trial judges retain the discretion to impose reasonable limits on cross-examination "based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). "[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id. At trial, after Griffith testified about nonemergency scheduled repetitive ambulance transports and about § 410.40(d)(2), the prosecutor asked Griffith "to look at what is marked as small v in the second column. Would you read that particular 753 section of the regulations for the jury?" Section 410.40(d)(3)(v) states, "In all cases, the provider or supplier must keep appropriate documentation on file and, upon request, present it to the contractor. The presence of the signed certification statement or signed return receipt does not alone demonstrate that the ambulance transport was medically necessary. All other program criteria must be met in order for payment to be made." After Griffith read that section, defendants objected, saying that "the interpretation that she's testifying to is not the appropriate standard, and it's confusing to the jury." In response, this court overruled the objection and told the jury that "instructions on the law are going to come from me. They are not going to come from the witness stand. You will receive those instructions at the end of the case." On cross-examination, defense counsel pointed out to Griffith that § 410.40(d)(3)(v) was placed under the rule for nonemergency ambulance services that are either unscheduled or that are scheduled on a nonrepetitive basis and asked Griffith whether the requirements of that subsection applied to nonemergency scheduled repetitive ambulance transports, which are described in § 410.40(d)(2). The government objected on grounds that Griffith is not an expert in statutory construction, and this court asked defense counsel to rephrase the question. Defense counsel proceeded to question Griffith about her qualifications and experience to interpret the regulation. After several similar questions, the government objected on the grounds that the last question asked had been asked and answered. This court asked defense counsel to move on. Later during trial, the prosecutor asked Patterson to read a policy statement from the Medicare manual, which stated: "It is important to note that the mere presence of the signed physician certification statement does not by itself, demonstrate that the transport was medically necessary and does not absolve the ambulance provider from meeting all other coverage and documentation criteria." (Docket Entry No. 311, at 7:8-18). The prosecutor then asked Patterson whether "for nonemergency regularly scheduled transports, that particular section of the code that we know as (3)(v), does it scoop up this policy statement here that's in the manual?" Patterson responded that "It's been our understanding and our instruction from CMS, that it does." (Id., at 8:8-13). On cross-examination, defense counsel asked Patterson whether she was an expert in regulatory interpretation, to which Patterson responded that she was neither a lawyer nor a judge. Defense counsel asked Patterson if she had testified about subsection (d)(3)(v), and Patterson said "I believe the prosecutor asked me to read that section." Defense counsel then stated that this subsection applied to nonemergency services that are either unscheduled or scheduled on a nonrepetitive basis, and Patterson agreed that the transports at issue in this case were nonemergency scheduled repetitive services. Defense counsel went on to elicit statements from Patterson that she was not a lawyer and not trained in principles of regulatory construction. After defense counsel asked Patterson whether regulatory construction was outside her "comfort zone," this court sustained the government's objection that the question had been asked and answered. While Griffith and Patterson were some of the government's principal witnesses, the challenged limits on their cross-examinations did not deny the jury information necessary to assess the Abdallahs' theory of the case. The Abdallahs were allowed to question Griffith and Patterson about the regulations and their qualifications to interpret them. This court limited cross-examination of these witnesses only to the extent that the questions were cumulative 754 to "avoid needless consumption of time." See FED.R.EVID. 611(a). The jury instructions correctly set forth Medicare's requirements in terms of document retention and CMNs. There was no violation of due process or the Confrontation Clause. See United States v. Sims-Robertson, 16 F.3d 1223, 1994 WL 12212, at 10 (6th Cir.1994) (unpublished table decision) (trial court did not abuse discretion by limiting cross-examination of expert into standard of care where jury instruction set forth the appropriate standard of care). The Abdallahs are not entitled to a new trial. IV. Motion for Postverdict Disclosure of Exculpatory and Impeachment Evidence The Abdallahs seek posttrial disclosure, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), of all information impeaching the government's "new theory" that Mazen Abdallah paid Kelvin Washington to procure CMNs for Americare clients.[11] The Abdallahs assert that they attempted to obtain information from Washington, but that Washington refused to be interviewed because he was a target of the government's health-care fraud investigation. Washington informed defense counsel that he would invoke his Fifth Amendment right if subpoenaed to appear at trial. The Abdallahs contend that the government effectively suppressed any available evidence from Washington by making him a target of the criminal investigation and refusing to grant him immunity to testify, even after the investigation was completed. They assert that this court denied their request to compel immunity for Washington. According to the Abdallahs, the prosecutors interviewed Washington on one or more occasions. They assert that "[a]ny statements by Washington denying that he agreed to procure CMNs illicitly or denying that he was paid or offered payment for this service would impeach" the government's theory and "directly exculpate Mazen Abdallah." (Docket Entry No. 402, at 4). "[D]isclosure naturally should include assertions by Washington that he only met with Mazen Abdallah on one or a few occasions, and assertions indicating that the only business arrangement he made related to Americare involved referring beneficiaries for ambulance service." (Id.). The Abdallahs also argue that the government should reveal any statements that tend to exonerate Washington himself, statements that Washington thought any fee arrangement for patient referrals he had with the Abdallahs was legal, and any statement that patient referrals were the only thing he ever discussed with the Abdallahs. (Id.). The Abdallahs contend that this information is unavailable from any other source. They assert that any claim of attorney work-product protection would not preclude Brady disclosure of the prosecutor's notes or documents memorializing statements made by Washington. See Dickson v. Quarterman, 462 F.3d 470, 480 n. 6 (5th Cir.2006) ("the work-product immunity for discovery in Rule 16(a)(2) prohibits discovery under Rule 16 but it does not alter the prosecutor's duty to disclose material that is within Brady") (quoting 2 CHARLES A. WRIGHT, FEDERAL PRACTICE & PROCEDURE § 254.2 (3d ed.2000)). The government argues that the allegations about Washington's role in providing Americare false CMNs for nonemergency 755 repetitive scheduled transport for Americare clients are not part of a "new theory." The government points to the superseding indictment, which states: It was further a part of the conspiracy that Defendants ... would and did falsely present prescriptions to nursing home staff in order to secure staff physician's signatures for ambulance transports of dialysis patients who had never been under the care of the nursing home or who had not been nursing home patients for many months or years.... (Docket Entry No. 126, at ¶ 16). The government argues that the Abdallahs had ample notice of its theory of Washington's role in the conspiracy. The government notes that this request for Washington's statements was not made during trial, despite the fact that the indictment itself refers to the role of a nursing home administrator in the conspiracy and in the five weeks of trial, there was extensive testimony and evidence about payments to Washington by Mazen Abdallah, Washington's role in providing clients to Americare, and the false CMNs that Americare received from doctors at SLNH. Citing United States v. Wall, 389 F.3d 457 (5th Cir.2004), the government asserts that "[w]hen a defendant becomes aware of evidence early in a trial, the defendant must seek a continuance or demonstrate efforts to obtain the evidence before it will be considered newly discovered." Id. at 469. The government further asserts that the Abdallahs never requested witness immunity for Washington and that this court never ruled on a motion to compel immunity for Washington. The government contends that the Abdallahs' Brady request is a "fishing expedition" because it is speculative and conclusory. See United States v. Edwards, 442 F.3d 258, 267-68 (5th Cir. 2006) (denying evidentiary hearing to investigate purely speculative Brady claim). Brady claims are reviewed using a three-part test. The defendant must show that: (1) evidence was suppressed; (2) the suppressed evidence was favorable to the defense; and (3) the suppressed evidence was material to either guilt or punishment. See Mahler v. Kaylo, 537 F.3d 494, 499-500 (5th Cir.2008). "When information is fully available to a defendant at the time of his trial and his only reason for not obtaining and presenting the evidence to the court is his lack of reasonable diligence, the defendant has no Brady claim." United States v. Mulderig, 120 F.3d 534, 541 (5th Cir.1997) (quotation omitted). Of the Brady elements, materiality "is generally the most difficult to prove." Mahler, 537 F.3d at 500. "Evidence is material under Brady when there is a `reasonable probability' that the outcome of the trial would have been different if the evidence had been disclosed to the defendant." United States v. Runyan, 290 F.3d 223, 247 (5th Cir.2002) (citing United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). "A `reasonable probability' is established when the failure to disclose the suppressed evidence `could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Id. (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). "[M]ateriality does not require the defendant to demonstrate by a preponderance of the evidence that omitted evidence would have resulted in acquittal." DiLosa v. Cain, 279 F.3d 259, 263 (5th Cir.2002) (citing Kyles, 514 U.S. at 434-37, 115 S.Ct. 1555). "The defendant must establish that the suppression of exculpatory evidence by the government undermines confidence in the outcome of the trial." Runyan, 290 F.3d at 247 (internal quotation marks omitted). 756 Materiality depends "almost entirely" on the value of the suppressed evidence relative to evidence the government disclosed. United States v. Sipe, 388 F.3d 471, 478 (5th Cir.2004). "Thus, `when the undisclosed evidence is merely cumulative of other evidence [in the record], no Brady violation occurs.'" Id. (quoting Spence v. Johnson, 80 F.3d 989, 995 (5th Cir. 1996)). "Similarly, when the testimony of the witness who might have been impeached by the undisclosed evidence is strongly corroborated by additional evidence supporting a guilty verdict, the undisclosed evidence generally is not found to be material." Id. (citing Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir.1994)). "Conversely, if the impeaching evidence `would seriously undermine the testimony of a key witness on an essential issue or there is no strong corroboration, the withheld evidence has been found to be material.'" Id. (quoting United States v. Weintraub, 871 F.2d 1257, 1262 (5th Cir. 1989)). The record does not show that the Abdallahs sought to obtain witness immunity for Washington so that they could interview him before trial. The record shows that the Abdallahs requested witness immunity for Will Smith but not for Washington. The government denied the request to give Smith immunity, and this court denied the defense motion to compel immunity. It is well established that a defendant has no absolute right to have a witness granted immunity. See, e.g., United States v. Straub, 538 F.3d 1147, 1166 (9th Cir.2008); United States v. Diaz, 176 F.3d 52, 115 (2d Cir.1999); United States v. Fricke, 684 F.2d 1126, 1130 (5th Cir. 1982) (defendant cannot "compel the government to grant use immunity to witnesses he desires to call"). In the absence of intimidation or deliberately distorting the facts by causing some witnesses to invoke their Fifth Amendment privilege and granting immunity to others, the failure to immunize a witness does not raise a Brady issue. See United States v. Patterson, 819 F.2d 1495, 1505-06 (9th Cir.1987) (failure of government to grant immunity to witness who allegedly would have exculpated defendant, but who refused to testify on Fifth Amendment grounds, does not constitute suppression within Brady doctrine); United States ex rel. Tatman v. Anderson, 391 F.Supp. 68, 72 (D.Del.1975) (same); cf. United States v. Morrison, 535 F.2d 223, 227 (3d Cir.1976) (prosecutor's intimidation of the defendant's primary witness to the point where she invoked her Fifth Amendment privilege was a violation of due process). There is no evidence of such intimidation or selective granting of immunity in this case. The Abdallahs also assert that the government may have withheld attorneys' notes of its interviews with Washington inconsistent with the government's theory that Mazen Abdallah paid Washington not only to obtain clients but also to obtain CMNs. The government submitted to this court, for in camera review, all notes and documents memorializing statements by Washington. After conducting a review of these documents, this court concludes that the government should have disclosed at least some portion of these documents, but that a new trial is not warranted because this evidence does not "put the whole case in such a different light as to undermine confidence in the verdict." The documents submitted by the government include a typewritten interview memorandum prepared by an agent of the Office of Inspector General at HHS, the agent's handwritten notes from that interview, and a prosecutor's handwritten interview notes from a separate interview with Washington. The government's argument that this evidence is not "newly discovered" because the Abdallahs were aware of Washington's role in the government's 757 theory of the case and yet did not diligently seek this type of evidence confuses the Brady obligation with the standard for granting a new trial based on newly discovered evidence under the Berry factors. When a motion for new trial based on newly discovered evidence raises a Brady claim, the court applies the three-prong Brady test to determine whether a new trial is appropriate. See, e.g., Runyan, 290 F.3d at 247 (citing United States v. Gonzales, 121 F.3d 928, 946 (5th Cir. 1997) (applying the three-prong Brady test in assessing a motion for new trial based on an alleged Brady violation); United States v. Conley, 249 F.3d 38, 45 (1st Cir. 2001) (noting that the three-part Brady testrather than the five-part test governing motions for new trialis applicable "where a defendant claims that the newly-discovered evidence should have been produced under Brady"); United States v. Quintanilla, 193 F.3d 1139, 1149 n. 10 (10th Cir.1999) ("Evaluation of a Brady claim asserted in a motion for a new trial involves an application of the three [Brady] elements identified above, and not the five-prong ... test utilized in typical newly discovered evidence claims.")). Moreover, the Supreme Court has made clear that the prosecutor's obligation under Brady is not dependent on a defendant's timely request for favorable or exculpatory evidence. See, e.g., Kyles, 514 U.S. at 433-34, 115 S.Ct. 1555 (holding that "regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different'") (emphasis added) (citing Bagley, 473 U.S. at 682, 105 S.Ct. 3375). And the evidence the Abdallahs seek, interview memoranda and notes in the government's possession, was not "fully available" to them at the time of trial such that a lack of diligence would preclude them from moving for a new trial based on an alleged Brady violation. Much of what is in the documents submitted for in camera review is neither favorable nor exculpatory. In fact, they contain information inculpating the Abdallahs: "AMS [Americare] brought CMNs in letter size envelopes. `Give to Kelvin for doctor signature.' Contained only CMNs. KW usually put envelopes in doctors `in' box. KW also gave doctor DNRs for signatureonly occasionally[;] usually amb. transport forms, M'care cert forms for therapies [,] etc. Just gave docs a stack of papers w/o explaining." The notes continued: "Back to Ayadpmt? Offered $ for dialysis pts (from SLHCC) transported to treatment." The notes described the introduction of Mazen Abdallah and Wesam Abdallah as "POC" and Wesam Abdallah's assurance to "KW that "everything would stay same." The notes recording Washington's statements are consistent with the testimony at trial about Washington being paid "commissions" to bring dialysis patients at SLNH and have them all ride with Americare, and to provide Americare with CMNs signed by Drs. Merkelz and Thacker. The government did not have a Brady obligation to produce the prosecutor's handwritten notes of the Washington interview. The typed HHS interview memorandum and the notes on which the memorandum is based, however, do include some information that is favorable to the Abdallahs. The memorandum states that Washington first denied that Americare paid him any commissions for referring dialysis patients. After Washington was shown two checks from Americare made out to him, he admitted that he had been paid by Americare, but asserted that these payments were for "marketing" activities and not for referring patients. Washington stated that he did marketing for Americare at 758 several nursing centers and hospitals, including Mariner First Colony, Southwest Hospital, Triumph Hospital, and Methodist Hospital. According to Washington, he talked to these facilities about using Americare for their patients' ambulance transports and left "brochures and business cards after his visits." He stated that Americare paid him "based on the number of visits" he made, but did not recall "if there was a specific amount per visit." He told the agent that each of the checks he received from Americare were for around $1,000. After being shown "The List," Washington "denied that the checks he received were commissions for recruiting those patients as indicated on `The List'" and stated that he "was paid for marketing only." The HHS interview memorandum also contained inculpatory evidence that Americare paid Washington commissions. The memorandum also stated Washington identified a fax he was shown "as being like ones he received [from Americare] requesting doctor's signatures for ambulance transportation." "There is support for the view that evidence that is both exculpatory and inculpatory does not qualify as `favorable' under Brady." Sipe, 388 F.3d at 482 n. 25 (citing United States v. Polland, 994 F.2d 1262, 1267 (7th Cir.1993) (Brady does not require disclosure of evidence that is "more inculpatory than exculpatory"); United States v. Gonzales, 90 F.3d 1363, 1369 (8th Cir.1996) ("If the evidence is inculpatory, then Brady is not violated, regardless of the effect at trial of the nondisclosure.")). But other courts have come to the opposite conclusion. See, e.g., United States v. Howell, 231 F.3d 615, 625 (9th Cir.2000) ("That the information withheld may seem inculpatory on its face in no way eliminates or diminishes the government's duty to disclose [exculpatory] evidence of a flawed police investigation."). Even assuming that the memorandum and notes meet the "favorable evidence" prong of the Brady test, however, the record does not reveal a reasonable probability that, had they been disclosed, the outcome of the trial would have been different. When the material withheld in a conspiracy case would only impeach the testimony of a witness and there is other evidence corroborating that witness's testimony, the evidence is not material. See, e.g., Moses v. United States, 1998 WL 255401, at 9 (S.D.N.Y.1998) ("Because Petitioner's role in the conspiracy was overwhelmingly established by the testimony of his co-conspirators, and the Government presented evidence concerning the surveillance of the transaction through a DEA source other than Grabowski ... the Brady/Giglio material withheld would not have undermined the most essential evidence presented by the Government in its case."). Fallah and Almasri testified that they paid Washington to bring patients to SLNH and that this practice continued after Mazen Abdallah bought Americare. This testimony was strongly corroborated by other evidence at trial. There was evidence that Mazen Abdallah signed several $1,000 checks made out to Washington for "commissions." SLNH patients were on "The List" of patients for whom payment was made to Washington. And several Americare clients were transported based on CMNs signed by Drs. Merkelz and Thacker, for individuals they had not treated or seen, which were obtained from Washington after Mazen Abdallah and Wesam Abdallah operated Americare. There is no evidence in the record to corroborate Washington's statement that he only provided "marketing services" for Americare at other nursing centers and hospitals. To the contrary, all the testimony at trial about Washington's activities for Americare focused on getting dialysis patients to SLNH and providing Americare 759 with signed CMNs for patients even if those patients had not been seen by SLNH doctors. The government's nondisclosure of the HHS interview memorandum and agent notes does not undermine confidence in the outcome of the trial. The Brady motion is denied. V. Conclusion The evidence was sufficient to convict Mazen and Wesam Abdallah of conspiracy to commit health care fraud and to convict Wesam Abdallah of health care fraud. None of the grounds alleged warrants a new trial. The motions for acquittal and new trial are denied. The Brady motion is denied. NOTES [1] The "medical necessity requirements" subsection in the regulation states as follows: (1) General rule. Medicare covers ambulance services, including fixed wing and rotary wing ambulance services, only if they are furnished to a beneficiary whose medical condition is such that other means of transportation are contraindicated. The beneficiary's condition must require both the ambulance transportation itself and the level of service provided in order for the billed service to be considered medically necessary. Nonemergency transportation by ambulance is appropriate if either: the beneficiary is bed-confined, and it is documented that the beneficiary's condition is such that other methods of transportation are contraindicated; or, if his or her medical condition, regardless of bed confinement, is such that transportation by ambulance is medically required. Thus, bed confinement is not the sole criterion in determining the medical necessity of ambulance transportation. It is one factor that is considered in medical necessity determinations. For a beneficiary to be considered bed-confined, the following criteria must be met: (i) The beneficiary is unable to get up from bed without assistance. (ii) The beneficiary is unable to ambulate. (iii) The beneficiary is unable to sit in a chair or wheelchair. (2) Special rule for nonemergency, scheduled, repetitive ambulance services. Medicare covers medically necessary nonemergency, scheduled, repetitive ambulance services if the ambulance provider or supplier, before furnishing the service to the beneficiary, obtains a written order from the beneficiary's attending physician certifying that the medical necessity requirements of paragraph (d)(1) of this section are met. The physician's order must be dated no earlier than 60 days before the date the service is furnished. (3) Special rule for nonemergency ambulance services that are either unscheduled or that are scheduled on a nonrepetitive basis. Medicare covers medically necessary nonemergency ambulance services that are either unscheduled or that are scheduled on a nonrepetitive basis under one of the following circumstances: (i) For a resident of a facility who is under the care of a physician if the ambulance provider or supplier obtains a written order from the beneficiary's attending physician, within 48 hours after the transport, certifying that the medical necessity requirements of paragraph (d)(1) of this section are met. (ii) For a beneficiary residing at home or in a facility who is not under the direct care of a physician. A physician certification is not required. (iii) If the ambulance provider or supplier is unable to obtain a signed physician certification statement from the beneficiary's attending physician, a signed certification statement must be obtained from either the physician assistant (PA), nurse practitioner (NP), clinical nurse specialist (CNS), registered nurse (RN), or discharge planner, who has personal knowledge of the beneficiary's condition at the time the ambulance transport is ordered or the service is furnished. This individual must be employed by the beneficiary's attending physician or by the hospital or facility where the beneficiary is being treated and from which the beneficiary is transported. Medicare regulations for PAs, NPs, and CNSs apply and all applicable State licensure laws apply; or, (iv) If the ambulance provider or supplier is unable to obtain the required certification within 21 calendar days following the date of the service, the ambulance supplier must document its attempts to obtain the requested certification and may then submit the claim. Acceptable documentation includes a signed return receipt from the U.S. Postal Service or other similar service that evidences that the ambulance supplier attempted to obtain the required signature from the beneficiary's attending physician or other individual named in paragraph (d)(3)(iii) of this section. (v) In all cases, the provider or supplier must keep appropriate documentation on file and, upon request, present it to the contractor. The presence of the signed certification statement or signed return receipt does not alone demonstrate that the ambulance transport was medically necessary. All other program criteria must be met in order for payment to be made. [2] Smith is a professional football player and Mazen Abdallah's friend. He has not been charged in connection with this case. [3] The Abdallahs interviewed Mejias in preparation for trial and called her as a witness during their case-in-chief. They assert that Mejias did not tell them about the interview because she was under the impression that her statements were confidential. [4] Giglio involved a violation of due process predicated upon a failure, pre-trial, to disclose material evidence favorable to the defense, which then led to the prosecution's presentation of evidence contrary to the favorable evidence at trial. Giglio, 405 U.S. at 151-53, 92 S.Ct. 763. [5] Agent Tsui testified about the CMNs signed by Drs. Merkelz and Thacker of SLNH. [6] Berry v. State, 10 Ga. 511 (1851). [7] The Abdallahs assert that they attempted to obtain an affidavit from Bell before filing their motion for new trial, but that Bell was ill and "essentially unavailable." (Docket Entry No. 398, at 24). They claim that they were also unable to obtain an affidavit from Bell before filing a reply to the government's response because "Bell seems to have evacuated due to the hurricane, which has interrupted communications generally." (Id.). [8] The Abdallahs also argue that if FBI agents retrieved Exhibit 1.15 from Mazen Abdallah's car, they did so illegally, without a warrant. This accusation lacks merit. The FBI had a valid warrant to search Mazen Abdallah's residence, and the description of the residence in that warrant includes the garage. It is well-settled law that a warrant describing the premises includes vehicles parked on the property. See United States v. Singer, 970 F.2d 1414, 1417-18 (5th Cir.1992) ("This court has consistently held that a warrant authorizing a search of the premises includes vehicles parked on the premises."); United States v. Napoli, 530 F.2d 1198, 1200 (5th Cir.1976) (holding that search of camper was authorized by warrant because "the reference to `on the premises known as 3027 Napoleon Avenue' was sufficient to embrace the vehicle parked in the driveway of those premises."). [9] While a claim of material variance is sometimes treated as a challenge to the sufficiency of the evidence, see United States v. Bolivar, 532 F.3d 599 (7th Cir.2008) ("we treat a claim of fatal variance the same as an attack on the sufficiency of the evidence"), a claim of variance can also serve as the basis for granting a new trial. See United States v. Manzella, 782 F.2d 533, 539 (5th Cir.) (holding that once defendants prove material variance, they are entitled to a new trial if they show that their substantial rights were affected by the variance), cert. denied, 476 U.S. 1123, 106 S.Ct. 1991, 90 L.Ed.2d 672 (1986); and 3 CHARLES A. WRIGHT, NANCY J. KING & SUSAN R. KLEIN, FEDERAL PRACTICE & PROCEDURE § 556 (3d ed.2004) ("any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial"). [10] Although the document-retention provision of § 410.40(d)(3)(v) on its face applies to nonemergency transports that are either unscheduled or on a nonrepetitive basis, Medicare regulations also require that, upon request, ambulance suppliers "provide additional information and documentation as required." 42 C.F.R. § 410.41(c)(3). The policy statement in the Medicare manual requiring ambulance providers to provide documentation in addition to a CMN to support a claim is consistent with § 410.41(c)(3). [11] As stated above, the Abdallahs also sought posttrial disclosure, under Giglio, of all photographic and videographic records of the search of Mazen Abdallah's home to impeach or disprove the government's allegation that Exhibit 1.15 was found in Mazen Abdallah's car in the garage. The government provided this evidence to the defendants on October 2, 2008. The evidence showed that Mazen Abdallah's car was parked in the garage on the day of the search.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/725261/	94 F.3d 645 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.James H. NATION, Plaintiff-Appellant,v.Robert W. WEDEMEYER; James E. Walton; Larry D. Wilks;City of Springfield; Charles R. Ray, Defendants-Appellees. No. 95-6354. United States Court of Appeals, Sixth Circuit. Aug. 8, 1996. M.D.Tenn., No. 95-00909; Thomas A. Wiseman, Jr., Judge. M.D.Tenn. AFFIRMED. Before: KEITH, SILER, and BATCHELDER, Circuit Judges. ORDER 1 James H. Nation, a Tennessee prisoner proceeding pro se, appeals a district court order dismissing his civil rights action filed under 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). 2 Nation was employed by the City of Springfield as director of the municipal gas department and embezzled department funds over a 15-year period. He pleaded guilty to theft of over $301,000 and was sentenced to the maximum term of 12 years in prison plus payment of restitution. In addition, the city initiated a civil action seeking to recover the embezzled funds. In his federal civil rights action, Nation sued two judges (Wedemeyer and Walton), the City of Springfield, the Springfield City Attorney (Wilks), and Nation's retained attorney (Ray) for allegedly violating his unspecified constitutional rights by "conspir[ing] ... to try and to reclaim the announced loss of monies, through any legal channel available to them and to do so under the 'color of law,' without any regard for damage against the Plaintiff." Nation sought monetary relief, relief from "persecution," and the removal of the individual defendants from public office. The district court dismissed the complaint for lack of subject matter jurisdiction in an order entered on September 20, 1995. The court concluded that Nation was challenging the legality of a pending state court action and that the federal district courts lack jurisdiction over such a challenge. 3 On appeal, Nation asserts for the first time that "the crux of [his] complaint is about 'double jeopardy' being exercised against [him] by the named defendants." He further argues that his complaint stated a valid civil rights claim for conspiracy under color of law and that the state court's restitution order is contrary to state law. 4 Upon review, we affirm the district court's order for reasons other than that stated by the district court. See City Mgmt. Corp. v. U.S. Chemical Co., 43 F.3d 244, 251 (6th Cir.1994). 5 We initially note that the injuctive relief sought--the removal of the defendants from office--is patently inappropriate and beyond this court's authority. In addition, Nation's requested "relief from persecution" is too vague a remedy to avoid dismissal. 6 Nation's argument on appeal that the "crux" of his case rests in a double jeopardy claim was not presented to the district court. Except in exceptional circumstances, which do not exist in this case, this court normally will not address an issue raised for the first time on appeal. Building Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1398-99 (6th Cir.1995). 7 The action was properly dismissed as to defendants Wedemeyer and Walton because, as judges in the proceedings, they are absolutely immune from suit for damages. See Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam); Pierson v. Ray, 386 U.S. 547, 553-54 (1967). Defendant Wilks requested the restraining order and preliminary injunction against the transfer of Nation's assets on behalf of the City of Springfield and was a witness at Nation's sentencing hearing. It is clear that the granting of the injunction, rather than the request itself, is the cause of any constitutional violation that may have resulted. Wilks is entitled to absolute immunity for his testimony at sentencing. See Briscoe v. LaHue, 460 U.S. 325, 329-36 (1983). Thus, the complaint against Wilks was properly dismissed. 8 When a § 1983 claim is made against a municipality, two distinct issues must be analyzed: (1) whether the plaintiff's harm was caused by a constitutional violation; and (2) if so, whether the city is responsible for that violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). Taking the allegations in the complaint as true, Nation has failed to allege a constitutional violation. He cites in his complaint no provision of the Constitution or its amendments which would prevent a municipality from using legal means to recover funds embezzled from it by a city employee. In fact, the Tennessee statute regarding restitution expressly provides that "[t]he provisions of this section are cumulative, and do not deprive the injured of any other right he may have for the recovery of his property or its value." Tenn.Code Ann. § 40-20-116(c). 9 Regarding the second inquiry of the Collins test, municipalities cannot be held responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691 (1978). Nation has cited no such policy or custom. The doctrine of respondeat superior, upon which Nation apparently relies, simply does not apply to § 1983 suits. Id. Therefore, the complaint against the City of Springfield was properly dismissed. 10 Nation also appears to believe that he received ineffective assistance of counsel because his counsel was attorney-of-record for a time relative to the civil action as well as representing him in his criminal proceeding. However, Nation has no right to counsel in a civil case and so has no right to the effective assistance of counsel in that proceeding. See Friedman v. Arizona, 912 F.2d 328, 333 (9th Cir.1990), cert. denied, 498 U.S. 1100 (1991). Furthermore, he has failed to allege facts to support a finding that an actual conflict of interest adversely affected his attorney's performance in his criminal case. See United States v. Mays, 77 F.3d 906, 908 (6th Cir.1996). 11 In order to be subject to suit under § 1983, the defendant's conduct must be fairly attributable to the state. See Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). Defendant Ray, as a privately-retained defense attorney, is not subject to suit under § 1983 because he is not a state actor. Although a private party who conspires with a state actor to commit the offensive conduct thus becomes a state actor himself and thus may be found liable under § 1983, see Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1982), Nation has presented no evidence, other than an attempted plea bargain, which would support a finding of conspiracy in this case. See Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir.1987). 12 Finally, Nation's argument that his restitution order violated state law is not cognizable under § 1983, which provides relief for a violation of a federal right. 13 Accordingly, the district court's order, entered on September 20, 1995, is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/725272/	94 F.3d 646 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.J.C. WILSON, Plaintiff-Appellant,v.NATIONAL CAR RENTAL SYSTEM, INC., Defendant-Appellee. No. 94-3884, 94-4050. United States Court of Appeals, Sixth Circuit. Aug. 08, 1996. Before: CONTIE, BOGGS, and NORRIS, Circuit Judges. ORDER 1 J.C. Wilson appeals a district court grant of summary judgment for defendant in this employment discrimination action filed under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34, and a subsequent district court order denying various post-judgment motions. These cases have been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). 2 Wilson filed his complaint pro se in the district court alleging that he was selected due to his age for termination from his employment with defendant during a reduction of work force. Thereafter, plaintiff obtained counsel to represent him in the district court. Defendant subsequently moved for summary judgment, and plaintiff responded in opposition. The district court granted the motion and entered summary judgment for defendant. Thereafter, plaintiff filed pro se numerous post-judgment motions seeking relief from the judgment and also filed a timely notice of appeal taken from the district court's judgment. The district court denied plaintiff's post-judgment motions without prejudice for lack of jurisdiction, and plaintiff filed pro se a timely notice of appeal taken from this order as well. Upon consideration, we affirm the district court's judgment and its order denying plaintiff's post-judgment motions. 3 First, we conclude that plaintiff's complaint is not barred under the applicable statute of limitations. Pursuant to 29 U.S.C. § 626(e), an age discrimination claim must be filed within 90 days of the receipt of an EEOC right-to-sue letter. Littell v. Aid Ass'n for Lutherans, 62 F.3d 257, 258-59 (8th Cir.1995); Vernon v. Cassadaga Valley Cent. Sch. Dist., 49 F.3d 886, 888-89 (2d Cir.1995). Here, the record reflects that a postal registered mail notice of the EEOC's right-to-sue was placed in plaintiff's post office box on December 16, 1992, which plaintiff signed for and received on December 21, 1992. Plaintiff filed his complaint in the district court on March 19, 1993, 93 days after notice of the letter was placed in plaintiff's post office box, but only 88 days after plaintiff signed for and actually received the right-to-sue letter. Under similar circumstances, courts have held that the 90-day limitations period begins when a plaintiff actually receives the EEOC's letter rather than when a postal registered mail notice is placed in plaintiff's post office box. See Sousa v. NLRB, 817 F.2d 10, 11 (2d Cir.1987) (per curiam); Holmes v. World Wildlife Fund, Inc., 908 F.Supp. 19, 21 (D.D.C.1995); O'Neal v. Marine Midland Bank, N.A., 848 F.Supp. 413, 417-21 (W.D.N.Y.1994), aff'd, 60 F.3d 812 (2d Cir.1995) (table). Therefore, plaintiff's complaint is not barred. Nonetheless, the district court's judgment will be affirmed on the basis of the court's alternate rationale. 4 Plaintiff did not establish a prima facie case of age discrimination. ADEA cases are to be decided using a nonmechanical application of the criteria enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Wanger v. G.A. Gray Co., 872 F.2d 142, 144-45 (6th Cir.1989). Ordinarily, an ADEA plaintiff must establish a prima facie case of discrimination by showing that he or she: (1) was a member of the protected class; (2) was discharged; (3) was qualified for the position; and (4) was replaced by a younger person. Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1023 (6th Cir.), cert. denied, 114 S.Ct. 175 (1993). In a case involving termination as part of a reduction of work force, an ADEA plaintiff must show "direct, circumstantial or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons" to establish a prima facie case. Allen v. Diebold, Inc., 33 F.3d 674, 677 (6th Cir.1994) (quoting Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.), cert. denied, 498 U.S. 878 (1990)). Essentially, plaintiff must offer evidence that the work force reduction is not the reason for the discharge. See Barnes, 896 F.2d at 1465. Here, the district court correctly concluded that plaintiff did not establish a prima facie case of age discrimination for the reasons stated in its opinion and order filed July 14, 1994. 5 Finally, the district court correctly concluded that it lacked jurisdiction to address the merits of plaintiff's post-judgment motions. Plaintiff's motions were properly treated as Rule 60(b) motions because they were not served within 10 days of entry of judgment and plaintiff generally sought relief from the judgment. See Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 750 (7th Cir.1995). Generally, this court reviews the denial of a Fed.R.Civ.P. 60(b) motion only for an abuse of discretion. Williams v. Browman, 981 F.2d 901, 903 (6th Cir.1992) (per curiam); McDowell v. Dynamics Corp., 931 F.2d 380, 383 (6th Cir.1991). However, a district court does not have jurisdiction to rule on a Fed.R.Civ.P. 60(b) motion after a timely notice of appeal is filed. Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6th Cir.1993). Under these circumstances, the district court did not abuse its discretion in denying plaintiff's motions without prejudice for lack of jurisdiction. 6 For the foregoing reasons, the district court's grant of summary judgment for defendant and its order denying without prejudice plaintiff's post-judgment motions are affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/2495560/	56 So. 3d 925 (2010) Theodore LANGE, v. ORLEANS LEVEE DISTRICT. No. 2010-C-0140. Supreme Court of Louisiana. November 30, 2010. Rehearing Denied February 4, 2011. 927 Middleberg, Riddle & Gianna, Alan Dean Weinberger, New Orleans, for Applicant. Klotz & Early, Attorneys at Law, William Patrick Klotz, New Orleans, for Respondent. CIACCIO, J.[] This case concerns a decision of the Board of Commissioners of Orleans Levee District ("OLD") to fire its chief executive.[1] OLD dismissed its longtime employee by resolution after a public hearing on May 21, 1997. Plaintiff Theodore Lange appealed his termination to the Louisiana State Civil Service Commission for the City of New Orleans ("the Commission"), which ultimately ordered him demoted. The decision of the Commission was affirmed by the First Circuit Court of Appeal. Theodore Lange v. Orleans Levee Dist., 09-1255 (La.App. 1st Cir.12/23/09); 25 So. 3d 252. We granted certiorari to determine the correctness of those decisions, and to determine whether OLD violated plaintiff's constitutional rights. Theodore Lange v. Orleans Levee Dist., 10-0140 (La.4/16/10); 31 So. 3d 1068. For the reasons that follow, we find plaintiff was afforded a reasonable opportunity to respond to the charges lodged against him, and we therefore conclude OLD did not violate plaintiff's due process rights. Moreover, because we find plaintiff was dismissed for cause, we reinstate OLD's decision to dismiss him. FACTS AND PROCEDURAL BACKGROUND OLD hired plaintiff in August of 1973, and he attained permanent status that year.[2] Through a series of promotions, he became head of OLD's accounting department. In 1993, he replaced the retiring managing director, a position plaintiff held until February 14, 1997, when he was suspended pending an investigation by the newly appointed OLD president, James Huey. By a letter dated April 14, 1997, Huey informed plaintiff that OLD proposed to "demote or possibly terminate" 928 him because OLD had lost confidence in plaintiff's competence and ability to fulfill his duties. The letter enumerated thirteen charges and described their bases in detail. Those charges included: 1. Failing to timely seek abolishment of an assistant director position; 2. Failing to render annual performance ratings for department heads; 3. Rendering inaccurate advice on professional service contracts; 4. Spending funds without authorization; 5. Improperly instructing the president's secretary to conceal conduct; 6. Failing to hire an internal auditor; 7. Inaccurately representing invoices; 8. Failing to respond timely to grievances; 9. Failing to hold meetings with department heads; 10. Failing to maintain fiscal responsibility; 11. Failing to represent the Board in a positive manner; 12. Failing to insure compliance with bond issuance terms; 13. Threatening department heads with discipline without justification. The letter also informed plaintiff he could respond in writing or in person at a scheduled OLD meeting. Plaintiff and his retained counsel prepared a detailed written response to the charges, with numerous references to attached exhibits. Plaintiff was given the option of meeting privately with OLD during an executive session, but he chose to respond to the charges during a public meeting on May 21, 1997. At the outset of the May 21 meeting, OLD's counsel announced the agency would allow plaintiff to confer with his attorney but that plaintiff's attorney would not be allowed to address OLD. OLD's counsel also announced the Board had decided to limit plaintiff's presentation to thirty minutes. Plaintiff began to read from the prepared document, but he did not finish his presentation within the allotted half-hour, and he was forced to end his presentation. In his opening remarks, he portrayed himself as a blameless, faithful public servant whose reward was a politically motivated "witch hunt." He derided the charges, which he described as "sorry excuses," and lambasted Huey, whom he claimed had "manufactured" the allegations. Plaintiff eventually responded to six of the thirteen charges, at which time OLD's counsel notified him that only five minutes remained. Plaintiff skipped ahead to the tenth charge and read his response to it during the time remaining. Once the thirty minutes had expired, Huey called for a motion on a pre-prepared resolution to terminate plaintiff. Plaintiff requested that his entire written response be submitted into the record, and OLD accepted it. Without deliberation, and apparently without reading the documents plaintiff submitted, OLD unanimously passed the resolution, which listed all thirteen charges as grounds for plaintiff's termination.[3] Several Board members later testified they perceived plaintiff's remarks as an inappropriate attack on OLD rather than an attempt to defend himself against the allegations. They described his remarks as a "tirade" and a "diatribe about himself" that was not responsive to the 929 charges. Several Board members also said plaintiff's attitude and demeanor influenced their decision to terminate him because they determined he displayed poor judgment and a lack of the leadership qualities they believed their chief executive should possess. Plaintiff appealed his termination to the Commission, which referred the case to a referee for trial. Thus began a protracted procedural odyssey, the details of which are not relevant to our decision today. Of particular significance, however, is the referee's finding that OLD violated civil service Rule 12.7 because plaintiff "did not get to respond" to all the charges against him during his pre-termination hearing. Civil service Rule 12.7, which governs "pre-removal/pre-discipline procedure," provides as follows: No permanent employee may be removed or subjected to any disciplinary action, other than an emergency suspension, until he has been given oral or written notice of the proposed action and the reasons therefor, a description of the evidence supporting the proposed action and a reasonable opportunity to respond thereto. Because the civil service referee determined OLD had violated this rule, he granted summary disposition to plaintiff on charges 7, 8, 9, 11, 12, and 13, dismissing them. In his written conclusions of law, the referee specifically rejected the notion that plaintiff "did not wisely use his time," ruling the half-hour allotted for his response was inadequate. The Commission and court of appeal upheld this interpretation of Rule 12.7. The Commission determined that OLD "elected not to hear" plaintiff's response to all the allegations, and therefore found OLD's action on all the charges improper. The Commission held the referee properly struck the charges to which plaintiff had not responded orally at the hearing, stating OLD's actions offended "principles of fair treatment and due process." The court of appeal found it "abundantly clear" Rule 12.7 was violated and that plaintiff "was not given a full opportunity to address the charges alleged against him." In his initial July 7, 1999, ruling, the referee found only charge 1 merited cause for disciplinary action, and he ordered plaintiff reinstated to his former position after a five-day suspension. OLD appealed the decision, and the Commission remanded the case to the referee. The referee issued another decision March 1, 2002, again finding OLD violated Rule 12.7 and ordering plaintiff reinstated. OLD appealed again, and the case was again remanded. Because the original referee was suffering from poor health, another referee conducted the trial upon remand. The second referee refused to consider the charges dismissed by the original referee. In her November 19, 2008, decision, she found OLD had proved charges 1, 2, 3, and 5; she also found OLD had partially proved charge 6. These incidents "reflect poor judgment and demonstrate [plaintiff's] unfitness to serve as Managing Director," the referee wrote. "However, taken in context, these incidents are not cause for dismissal of a twenty-three year employee with an unblemished record." Notable among the second referee's conclusions were her findings that OLD "had no basis for determining if the charges were true or not" and did not base plaintiff's termination on the enumerated charges. She found OLD did not fire plaintiff for political reasons; rather, she determined the "primary reason" OLD voted for his dismissal was that OLD Board members no longer wanted plaintiff to serve as their representative "because he handled himself so poorly during his pre-disciplinary hearing." Although she 930 found the "proven performance deficiencies adversely affected OLD's operations and eroded its faith in its Managing Director," the referee ultimately ordered plaintiff reinstated but demoted to the position of Account Manager 1. She also ordered OLD to pay plaintiff back pay and his attorney's fees. OLD again appealed, and the Commission upheld the referee's order on April 8, 2009. The court of appeal affirmed the Commission's ruling on December 23, 2009. Lange, 25 So. 3d 252. OLD then applied for a supervisory writ from this Court. LAW AND DISCUSSION The Louisiana Constitution, like its federal counterpart, provides that no person shall be deprived of property except by due process of law. La. Const. art. I, § 2. As managing director of OLD, plaintiff was a permanent, classified civil service employee, and an employee who has attained such status has a property interest in keeping his job. La. Const. art. X § 8(A); Murray v. Dep't of Revenue and Taxation, 504 So. 2d 561, 564 (La.App. 1st Cir.1986). Therefore, plaintiff could not be terminated without due process of law. As a threshold matter, we note civil service Rule 12.7 embodies this procedural safeguard. This Court heretofore has not interpreted Rule 12.7, but lower courts have recognized the rule codifies a principle elucidated in Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985), i.e. due process entitles an employee threatened with termination to notice of the charges lodged against him, and an opportunity to tell his side of the story before termination.[4] Rule 12.7 codifies the Loudermill decision, and we analyze this case accordingly. Plaintiff's due process rights The Civil Service Commission has the exclusive authority to decide all cases of employee termination. La. Const. art. X, § 12(A). The Commission's decision is subject to review on any question of law or fact. La. Const. art. X, § 12(B). In our review of the Commission's ruling that OLD violated Rule 12.7, we are mindful that due process is by nature an imprecise ideal, the contours of which are often difficult to ascertain. This is so because its requirements vary according to circumstance. Driscoll v. Stucker, 04-0589 (La.1/19/05); 893 So. 2d 32, 43. Due process encompasses the differing rules of fair play which through the years have become associated with different types of proceedings. Id. We therefore do not aspire to fix the boundaries of due process, which are inherently flexible and must remain so. Our decision today should not be read otherwise. However, due process does not lack fundamental imperatives, one of which is a reasonable opportunity to respond to charges lodged against an individual. It is undisputed that plaintiff received written notice of the charges against him, including a description of the reasons in support thereof. Therefore, the central question in this case is whether the plaintiff was afforded an adequate opportunity to respond to the charges. Plaintiff received notice of the charges April 14, 1997, and his hearing was held May 21, 1997, which gave him more than thirty days to prepare his response. A pre-termination hearing, though obligatory, need not be elaborate or evidentiary. Loudermill, 470 U.S. at 545, 105 S. Ct. 1487. The purpose of the hearing is not to determine with certainty 931 whether termination is appropriate; instead, the hearing should have served as "an initial check against mistaken decisionsessentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Id. at 545-546, 105 S. Ct. 1487. When a civil service employee is entitled to a full evidentiary hearing after termination, and retroactive relief such as reinstatement is available, pre-termination due process is satisfied by notice and an opportunity to respond. Haughton Elevator Div. v. State, Through Div. of Admin., 367 So. 2d 1161, 1165 (La.1979). In other words, only the barest of a pre-termination procedure is required when an elaborate post-termination procedure is provided. Dep't Pub. Safety and Corr. v. Savoie, 569 So. 2d 139, 142 (La. 1st Cir.1990) (emphasis added). After reviewing the record in this case, we find plaintiff's pre-termination hearing complied with this requirement. The hearing provided OLD with an opportunity to determine whether reasonable grounds existed to support plaintiff's charges and termination. Although plaintiff disputed the charges, he did not show they were groundless. Although plaintiff submitted documents in support of his claims, his hearing was not evidentiary in nature. Therefore, it is immaterial whether Board members reviewed the documents before voting on his termination. The referee's conclusion that OLD "had no basis for determining whether the charges were true or not" is inaccurate and reflects a misunderstanding of what process was due plaintiff. The record reflects Board members received copies of the charges, prepared by a law firm, along with documentary support for them before the hearing. Although at least one member acknowledged he did not review the materials beforehand, the majority said they did. The charges and the plaintiff's response to them formed the basis for OLD's determination that the charges were reasonably grounded in fact, not whether the charges were indisputably true. The pre-termination hearing "need not definitively resolve the propriety of the discharge." Loudermill, 470 U.S. at 545, 105 S. Ct. 1487. Rarely would an employer be able to determine the truth of allegations conclusively at a pre-termination hearing, where evidence is not required and may not be available. OLD was not required to resolve the propriety of plaintiff's discharge at his hearing. OLD was required to find reasonable grounds to believe the charges lodged against plaintiff were true, not whether he was guilty of them. The thirteen charges listed above were prepared by a law firm at Huey's request, and they were supported by documents prepared by OLD staff. In our review of the record, we cannot say OLD lacked reasonable grounds to believe the allegations, and Board members' testimony reflects their collective belief in the charges. Therefore, the pre-termination hearing served adequately as an initial check against a mistaken discharge. We also disagree with the referee's conclusion that OLD's "primary reason" for terminating plaintiff was his demeanor at the pre-termination hearing. The record reflects plaintiff's behavior strongly influenced OLD's decision, but only two Board members indicated that consideration was predominant, and they testified that other factors informed their decision. We interpret OLD's consideration of plaintiff's attitude as an appropriate assessment of his credibility as well as the grounds for the charges. Although it is true an employer's decision to dismiss an employee after a pre-termination hearing must be based on the charges presented, not on the employee's conduct at the hearing, the two 932 may be related. For example, an employee's failure to refute or address a charge may, under some circumstances, be interpreted as an indication of guilt, especially if he appears evasive. To the extent charges bear on an employee's character, his conduct at the hearing may demonstrate the grounds for that charge. It is apparent OLD voted to terminate plaintiff not solely because of his behavior at the hearing, but because its members perceived certain traits of plaintiffpoor judgment, lack of leadership, incompetencethat to them confirmed reasonable grounds for the charges. Plaintiff's opportunity to respond The issue of whether plaintiff was given a reasonable chance to respond is somewhat complicated by the time limit imposed on his presentation. Although plaintiff argued the time limit was arbitrary, Board members testified it was imposed based on the duration of previous hearings and the unusual circumstance of having the hearing in a public meeting. Sister Kathleen Cain said she understood pre-termination hearings typically lasted 15 to 20 minutes and "thirty minutes seemed reasonable at the time ... We said, `Let's give thirty minutes. We've got to have some structure for this to occur.' Because we wanted to keep thisto be accomplished in an orderly fashion." Huey acknowledged that no time limit had been imposed in a pre-termination hearing held two weeks before plaintiff's, but he cited the different circumstances of that hearing, which was held in his office privately. In other hearings at public meetings, when no time limit was set, "things got out of control," Huey said. "We didn't know what to expect." The time limit was imposed to provide an endpoint to the presentation. It did not limit what plaintiff said, only how long he would have to say it. Because plaintiff had not finished when time ran out, OLD did not hear his response to charges 7, 8, 9, 11, 12, or 13. It does not follow, however, that OLD was unable to establish whether reasonable grounds existed to support those charges. As the referee and Commission noted, several of the charges are interrelated, and the basis for one may have provided a basis for another. Charge 10, for example, failure to maintain fiscal responsibility, encompasses the more specific allegations in charges 4, spending funds without authorization, and 6, failing to hire an internal auditor. We find it was reasonable for OLD to conclude the written reasons for the charges and documentary support therefor, coupled with plaintiff's failure to address them, provided a reasonable basis to believe they were true. Although OLD essentially did not hear plaintiff's side of the story on five charges, we fault plaintiff for that shortcoming. He knew when he began speaking to OLD that he had thirty minutes to conclude his presentation. Had he possessed particularly strong arguments to refute the latter charges, he could have abbreviated his response to the former charges. Because he did not address several charges in the time provided, OLD reasonably concluded he was unable to show they were groundless. The law required OLD to provide plaintiff with an opportunity to respond to the charges; the law did not require his response. OLD gave plaintiff thirty minutes to respond, and he used them. Except for brief interjections, plaintiff was not interrupted and was permitted to speak as he chose. Rule 12.7 requires an employee such as plaintiff be given a "reasonable opportunity to respond." The half-hour allotted for plaintiff's response was his opportunity, and we cannot say the time allotted was unreasonable. 933 As an aside, plaintiff contended in briefs and at oral argument that he was taken aback when OLD informed him his attorney would not be allowed to speak for him at the hearing. This allegedly so discombobulated him that he struggled to read his attorney's notes and failed to present a composed response. We find this argument disingenuous. Before plaintiff's presentation at the hearing, plaintiff's attorney was permitted to advance legal arguments about why he should be allowed to speak for plaintiff, and he referred to a May 8 letter that informed him he would not be permitted to speak for plaintiff. This demonstrates plaintiff's attorney was well aware his client would be required to present his response personally. Moreover, the transcript demonstrates plaintiff read almost verbatim from a prepared documentthe same document submitted into the record. Therefore, any lack of preparation by the plaintiff is not for want of notice, in any respect, except the thirty-minute restriction. Our review of the jurisprudence in this area reveals no decisions on the propriety of limiting an employee's response time in a pre-termination hearing, and we do not rule on that propriety here. We do not imply a half-hour will be adequate in every hearing; nor do we believe thirty minutes was sufficient time for plaintiff to respond to thirteen charges in detail. However, we reject the notion that plaintiff could not present a cogent and precise initial response to each of those thirteen charges within thirty minutes. Skilled and unskilled orators alike routinely compose intricate arguments during narrow windows of allotted time before this Court. Although plaintiff is not a lawyer, one need not be a professional speaker to make several points in a short time. The success of lawyers at oral argument is generally the strength of their advocacy, not their ability to address myriad points in detail. According to the record, OLD set forth the time limit to provide structure to the hearing. A pre-termination hearing must balance the interests at stake: the employee's interest in keeping his job, the employer's interest in the "expeditious removal of unsatisfactory employees and the avoidance of administrative burdens, and the risk of an erroneous termination." Loudermill, 470 U.S. at 542-543, 105 S. Ct. 1487. We consider plaintiff's interest in keeping his job in light of the substance of his comments. We also consider OLD's interest in a avoiding disruption and holding an expeditious hearing in public. Given the totality of the circumstances, we find the half-hour limit was a reasonable restriction. To permit employees open-ended responses at pre-termination hearings, especially at a public meeting, would enable disgruntled workers to launch endless rhetorical attacks and filibuster their own disciplinary proceeding, transforming due process into an opportunity for rambling protest. It undoubtedly would lead to unproductive and unfocused digression. We are guided in this by the principle that a pre-termination hearing must balance the interests at stake. We cannot say OLD failed to balance those interests by affording plaintiff thirty minutes to respond. Several Board members said they would have extended the time allotted for plaintiff's presentation if they had believed it was warranted. However, Board members perceived his remarks as unresponsive, and so they considered an extension of his time unnecessary. Several Board members said they had "heard enough" within the half hour, testifying they found cause for plaintiff's dismissal in the seven charges he addressed, regardless of the latter six. This was improper because the pre-prepared resolution 934 for which OLD voted, resulting in plaintiff's termination, listed all thirteen charges as the basis for their action. However, this mistake is of no moment because OLD found cause for dismissal among the first seven charges, and we agree that cause existed therein. Regardless of individual Board members' testimony years after the vote, the resolution and unanimous vote demonstrate OLD terminated plaintiff based on all thirteen charges. As discussed above, OLD found a reasonable basis for all the charges despite the fact that plaintiff did not address each of them directly. An employee's opportunity to present reasons why he should not be terminated can be either in person or in writing. Loudermill, 470 U.S. at 547, 105 S. Ct. 1487. Plaintiff prepared a written response before his pre-termination hearing, then proceeded to read it, as was his right. However, he could have chosen to submit the written response in advance of the hearing, giving OLD ample time to review his response before the matter came to a vote. The fact that plaintiff apparently prepared his document with an eye toward post-termination appeal underscores another aspect of due process. Loudermill indicates a pre-termination hearing need not be elaborate when an employee has access to post-termination administrative procedures. Because he was a civil service employee, plaintiff was entitled to administrative and judicial review of OLD's termination of him. Because he was entitled to a post-termination trial, the law required his pre-termination hearing to be a minimal check against unfairness. In summary, plaintiff received adequate due process. He was given detailed descriptions of the reasons for the charges against him in writing. He received this notice 36 days before his hearing. He chose to respond in a public meeting, which OLD permitted. Plaintiff's pre-termination hearing was held before a board of directors, giving him the added benefit of multiple votes rather than the singular determination of one person. OLD gave plaintiff thirty minutes to respond, which was enough time for him to address each charge. However, because he read a series of caustic remarks that did not respond to any specific charge, then responded at length to each, plaintiff did not have enough time to read his full response. We conclude that plaintiff's pre-termination hearing did not violate civil service Rule 12.7. The civil service referee's conclusion to the contrary was clearly wrong, and the court of appeal erroneously upheld the Commission's ruling. Finding of cause for termination Because charges 7, 8, 9, 11, 12, and 13 were dismissed based on an erroneous interpretation of Rule 12.7, those charges did not factor in the referee's decision to demote, rather than terminate, plaintiff. Although those charges, if proven, may have led the referee to a different conclusion, we need not consider them here because we find the Commission abused its discretion in deciding the proven charges did not amount to cause for termination. In determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, a reviewing court should not modify the Commission's order unless it is arbitrary, capricious, or characterized by abuse of discretion. Bannister, 666 So.2d at 647. "Cause" for termination of an employee includes conduct prejudicial to the public service involved or detrimental to its efficient operation. Id. The following summarizes the second referee's findings with regard to the charges she determined OLD had proved, i.e. charges 1, 2, 3, 935 5, and partially 6: When Huey sought plaintiff's help in abolishing the assistant managing director position, plaintiff gave incorrect information and failed to tell Huey what he wanted could not be accomplished; plaintiff gave incorrect advice to Huey about approving professional services contracts, causing Huey to approve them illegally; plaintiff failed to rate two department heads for two years; plaintiff prepared uncooperative, undiplomatic responses to the Legislative Auditor; and plaintiff instructed Huey's secretary not to tell anyone he had asked her for a copy of a federal subpoena. After determining these charges had merit, the referee concluded these incidents demonstrated plaintiff's unfitness to serve as managing director. As she reasoned: A part-time Board has to be able to rely on its full-time Chief Executive Officer to tell the President when he knows something the President wants cannot be accomplished, to seek formal legal opinions on important legal issues, to provide staff feedback on their performance via service ratings, to refrain from actions that engender distrust, and to correspond diplomatically. However, taken in context, these incidents are not cause for dismissal of a twenty-three year employee with an unblemished record. We disagree with this conclusion only in the referee's determination the offenses were not grounds for termination. To hold otherwise ignores the nature of the position plaintiff occupied as chief executive and usurps OLD's discretion as his appointing authority. According to Article X of OLD's bylaws, the managing director's responsibility "shall be to execute the policies and projects of the Board as a prudent administrator." Although this phrase does not explicitly define the position as having a fiduciary capacity, it suggests the managing director has a fiduciary relationship with OLD. The word "fiduciary," as a noun, means one who holds a thing in trust for another, a trustee; a person holding the character of a trustee, or a character analogous to that of a trustee, with respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires; a person having the duty, created by his undertaking, to act primarily for another's benefit in matters connected with such undertaking. Scheffler v. Adams, 2006-1774 (La.2/22/07); 950 So. 2d 641, 647. The Uniform Fiduciaries Law, which appears in the Civil Law Ancillaries under Code Title XV Of Mandate, defines fiduciary as including an officer of a public corporation. The defining characteristic of a fiduciary relationship, therefore, is the special relationship of confidence or trust imposed by one in another who undertakes to act primarily for the benefit of the principal in a particular endeavor. Id. As OLD's managing director, plaintiff's employment by Huey and OLD was a special relationship of confidence. The aforementioned offenses demonstrate plaintiff violated that confidence to a degree from which OLD reasonably could determine not only that plaintiff was unfit to serve as managing director but was unfit to serve in any position. According to the referee, OLD proved charge 5, which involved plaintiff's attempt to conceal a request he made of Huey's secretary. On February 6, 1997, a federal grand jury subpoena was delivered to Huey's office. The subpoena was addressed to "any authorized representative" of OLD, but plaintiff was not authorized to accept for OLD. The president's secretary contacted Huey, who authorized her to accept on his behalf. Plaintiff asked the secretary to give him a copy of the subpoena but not to inform Huey that he requested the copy. The secretary informed 936 Huey of the request, and the president instructed her to give plaintiff a copy. The record does not reveal plaintiff's motive in seeking to conceal his interest in the subpoena, but it ultimately is immaterial. Whether it was nefarious or not, plaintiff's conduct reveals a troubling lack of candor. Although this charge alone may not be a terminable offense, it was a serious infraction because it demonstrated a breach of fiduciary duty. Considered in connection with plaintiff's inaccurate advice both on renewing contracts and abolishing the assistant managing director position; his failure to provide performance reviews; and his disrespectful letters to the Legislative Auditor, plaintiff's conduct was prejudicial to the public service involved and detrimental to its efficient operation. Therefore, the totality of the offenses leads us to conclude OLD terminated plaintiff for cause. Curiously, although the referee found all these violations proven, she determined they were not cause for dismissal of a 23-year employee with a clean record when "taken in context." Although longtime employment and lack of prior discipline may be mitigating factors in the determination of an employee's punishment, plaintiff's unblemished history with OLD is overshadowed by the gravity of the charges against him and the distrust they engendered. That eroded confidence is the proper context in which to consider these charges. This Court and other reviewing courts should not second-guess an appointing authority's decisions; they should intervene only when decisions are arbitrary and capricious or characterized by an abuse of discretion. See Bannister v. Dep't of Streets, 95-0404 at 8 (La.1/16/96); 666 So. 2d 641, 647. Neither should the New Orleans Civil Service Commission serve as a de facto pardon board of an appointing authority's discipline. Termination of a longtime employee may be harsh, but sympathy is not a legal standard. The referee found OLD proved several of its charges, and those charges provided a rational basis for concluding the imposition of the sanction of termination was not arbitrary and capricious. Consequently, we pretermit discussion of the allegations the referee did not consider, viz. charges 7, 8, 9, 11, 12, and 13. Because we find OLD had cause for plaintiff's termination, consideration of additional grounds is unnecessary. CONCLUSION Because OLD provided plaintiff with notice of the charges against him, detailed reasons for the charges, and a reasonable opportunity to respond to them, the Commission's finding that OLD violated civil service Rule 12.7 and, by extension, plaintiff's due process rightswas erroneous. Because OLD terminated plaintiff for cause, the Commission's decision to reinstate him was an abuse of discretion. The decisions of the Commission and the court of appeal are hereby reversed. REVERSED. NOTES [] Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball. [1] The plaintiff's title at the time of his termination was managing director, but it is undisputed that the employee in this position served as the Board's foremost officer. [2] A civil service employee who has gained permanent status cannot be subjected to disciplinary action by his employer except for cause expressed in writing. La. Const. Art. X § 8(A). [3] Voting for the resolution were OLD Commissioners Robert Smith Lupo; Patricia Harris; Sister Kathleen Cain; Ellen Hazeur-Distance; James Livingston; Marlin Gusman; and President James Huey. Commissioner Victor Landry was not present at the meeting, but later testified that he probably would have voted for plaintiff's dismissal. [4] See, e.g., Danna v. Dep't of Transp. and Dev., 2008-1275 (La.App. 1 Cir. 2/13/09); 2009 WL 385581 (unpublished).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2495681/	62 So.3d 989 (2010) STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant v. Nancy MOYER, Appellee. No. 2009-CA-01534-COA. Court of Appeals of Mississippi. December 14, 2010. Rehearing Denied March 8, 2011. Certiorari Denied June 9, 2011. H. Scot Spragins, Goodloe Tankersley Lewis, Oxford, attorneys for appellant. John B. Gillis, Oxford, attorney for appellee. Before KING, C.J., ROBERTS and CARLTON, JJ. ROBERTS, J., for the Court: ¶ 1. A jury found that Jack Butler was liable for a total of $10,000 damages that Nancy Moyer sustained when Butler's and Moyer's cars collided. Moyer had previously settled with Butler for more than the value of the $10,000 judgment but less than the limits of Butler's auto liability policy. However, Moyer had also filed a claim for uninsured-motorist benefits against her insurance provider, State Farm Mutual Automobile Insurance Company. Despite State Farm's argument that it should not be held liable for the jury's damages award because Butler did not qualify as an uninsured motorist, the Quitman County Circuit Court ordered State Farm to satisfy the $10,000 judgment arising from the jury's verdict. Aggrieved, State Farm appeals. We find that the circuit court erred. Accordingly, we reverse the judgment of the circuit court and render judgment for State Farm. 990 FACTS AND PROCEDURAL HISTORY ¶ 2. In 1994, Moyer and Butler were involved in a car wreck. Almost three years later, Moyer sued Butler for negligence. Both Moyer and Butler were insured by State Farm. Moyer also sued State Farm and claimed she was entitled to uninsured-motorist benefits. Butler's liability policy's limit applicable to the accident was $25,000. Moyer had five stacked uninsured/underinsured policies that provided for a total of $125,000 in uninsured-motorist benefits. State Farm argued that Moyer was only entitled to uninsured-motorist benefits if her damages exceeded the limits of Butler's auto liability policy. ¶ 3. In 1999, Moyer settled with Butler for $12,000. That $12,000 was paid by State Farm as part of Butler's auto liability policy. Butler's policy had also previously paid $4,671.12 toward Moyer's medical bills. Consequently, Moyer received $16,671.12 from Butler through State Farm. ¶ 4. In October 1999, State Farm and Moyer attempted to mediate Moyer's remaining claim for uninsured-motorist benefits. State Farm's position was that Moyer was not entitled to uninsured-motorist benefits because Moyer had settled for less than Butler's policy limits; therefore, Butler was not an uninsured motorist. Moyer terminated the mediation after State Farm stated its position. ¶ 5. In January 2001, Moyer filed a supplemental complaint. According to Moyer's supplemental complaint, State Farm was liable not only for uninsured-motorist benefits, but also for acting in bad faith during the failed mediation. Moyer's bad-faith claim was later dismissed after State Farm successfully moved for partial summary judgment on the issue. ¶ 6. On June 1, 2009, Moyer and State Farm went to trial on Moyer's remaining claim for uninsured-motorist benefits. The jury ultimately found that the underlying car wreck was due to Butler's negligence. The jury also awarded Moyer $10,000 as her total damages arising from the accident. However, Moyer had settled with Butler approximately ten years earlier. Moyer sought to have State Farm satisfy the jury's award of damages. The circuit court agreed that State Farm was responsible for satisfying Moyer's judgment. ¶ 7. State Farm filed a motion to alter or amend the judgment or, alternatively, for satisfaction of judgment. During a hearing on State Farm's motion, State Farm argued that it was entitled to a setoff as a matter of law and as a matter of equity. State Farm also argued that Moyer had agreed to setoff her damages when she and Butler settled. Moyer argued that State Farm was barred from arguing that it was entitled to a contractual setoff of damages because State Farm had failed to enter Moyer's policy into evidence during the trial. Ultimately, the circuit court agreed that State Farm was not entitled to a setoff and denied State Farm's motion. Aggrieved, State Farm appeals. STANDARD OF REVIEW ¶ 8. In its post-trial motion, State Farm requested relief under Rule 59 or Rule 60(b)(5) of the Mississippi Rules of Civil Procedure. A trial court's decision to grant or deny a motion filed under Rule 59 is a matter left to the trial court's discretion. Journeay v. Berry, 953 So.2d 1145, 1160 (¶ 51) (Miss.Ct.App.2007). We will reverse the trial court if it abused its discretion or if its decision would result in a miscarriage of justice if it were allowed to stand. Id. We also review a trial court's decision to deny a Rule 60 motion under the abuse-of-discretion standard of review. 991 Harvey v. Stone County Sch. Dist., 982 So.2d 463, 468 (¶ 8) (Miss.Ct.App.2008). ANALYSIS ¶ 9. State Farm argues that the circuit court erred by holding that State Farm must satisfy Moyer's $10,000 judgment against Butler. Moyer vigorously argues that State Farm is barred from arguing that it is entitled to a setoff. Moyer takes the position that because State Farm never entered Moyer's policy into evidence, State Farm is not entitled to a setoff. Nevertheless, after careful consideration, we find that this appeal does not turn on the setoff provisions of Moyer's insurance policy. Instead, this appeal turns on Butler's settlement, whether he qualified as an uninsured motorist, and the precise language of the jury's verdict. ¶ 10. As mentioned, by way of its "motion to alter or amend the judgment, or in the alternative, for satisfaction of judgment," State Farm requested relief under either Rule 59 or Rule 60(b)(5). Rule 60(b)(5) sets forth that: "On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment. . . for the following reasons: (5) the judgment has been satisfied, released, or discharged, or . . . it is no longer equitable that the judgment should have prospective application. . . ." The jury found that Butler not State Farmwas negligent and liable for Moyer's damages. By proper jury instruction, the jury was instructed to quantify all of Moyer's damages arising from the auto accident that occurred in 1994. The jury found that Moyer had sustained a total of $10,000 in damages as a result of Butler's negligence. However, through his State Farm auto liability policy, Butler had previously paid Moyer more than $16,000 in damages. Moyer did not present any evidence that Butler had exhausted the policy limits of his insurance. Moreover, Moyer did not present any evidence that Butler qualified as an underinsured motorist or an uninsured motorist under Moyer's policy.[1] Under the precise circumstances of this case, as Moyer's uninsured-motorist-insurance provider, State Farm could only be responsible for the damages attributed to Butler if Butler qualified as an uninsured motorist. Consequently, State Farm is not obligated to satisfy the jury's award of damages for negligence attributed to Butler that had already been satisfied by Butler. Succinctly put, Butler had already paid more than the amount of damages that the jury awarded, and there was no evidence that Butler had exhausted the limits of his insurance. "[A] plaintiff is only entitled to one satisfaction." Turner v. Pickens, 711 So.2d 891, 893 (¶ 7) (Miss.1998) (citing Medley v. Webb, 288 So.2d 846, 848 (Miss. 1974)). "He cannot recover the full amount due to him and still sue another joint tortfeasor because he thinks the damages awarded to him were inadequate." Id. Accordingly, the circuit court erred when it denied State Farm's motion for satisfaction of judgment. We, therefore, reverse the judgment of the circuit court and render judgment that the jury's verdict and award of damages against Butler has been satisfied. *992 ¶ 11. THE JUDGMENT OF THE QUITMAN COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE. KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING. NOTES [1] We note that the circuit court had previously granted Moyer's motion for partial summary judgment, finding that there was no genuine issue of material fact that Butler's vehicle was an uninsured/underinsured motor vehicle as defined by Mississippi Code Annotated section 83-11-103(c)(iii) (Rev.1999) because the limit of Butler's bodily injury coverage was $25,000, and the limit of Moyer's stacked uninsured motorist coverage was $125,000. Nevertheless, the jury's verdict was for less than the limits of Butler's bodily injury coverage. It was also for less than the amount for which Moyer had previously settled with Butler.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2495757/	62 So.3d 907 (2011) Melissa WHITING v. UNIVERSITY OF SOUTHERN MISSISSIPPI, Dr. Shelby Thames Officially and Individually, Dr. Dana Thames Officially and Individually, and Dr. Carl Martray Officially and Individually, Board of Trustees for Institutions of Higher Learning. No. 2009-CA-01807-SCT. Supreme Court of Mississippi. March 31, 2011. Rehearing Denied June 23, 2011. 910 Kim T. Chaze, Hattiesburg, attorney for appellant. John Simeon Hooks, Ridgeland, Lee P. Gore, attorneys for appellees. Before WALLER, C.J., DICKINSON, P.J., and KITCHENS, J. KITCHENS, Justice, for the Court: ¶ 1. Melissa Whiting appeals the Circuit Court of Forrest County's grant of summary judgment dismissing all claims against the Mississippi Board of Trustees of Institutions of Higher Learning, the University of Southern Mississippi, Dr. Shelby Thames, Dr. Dana Thames, and Dr. Carl Martray. For the reasons that follow, we affirm. Facts ¶ 2. The following facts are taken verbatim from the Federal Court of Appeals' decision in Whiting v. University of Southern Mississippi, 451 F.3d 339, 341-43 (5th Cir.2006).[1] In September 1996, Dr. Melissa Whiting became an assistant professor in the Department of Curriculum, Instruction, and Special Education in the College of Education and Psychology at USM. In 911 May 1997, the Board of Trustees of the State Institutions of Higher Learning approved her for tenure-track status. From 1996-2002, Dr. Whiting and the Board executed nine-month employment contracts for each of the six academic years that fell during that period. Those contracts state that they are subject to the "laws of the State of Mississippi and the policies and bylaws of the Board." As a member of the USM faculty, Dr. Whiting received the Faculty Handbook and the College of Education and Psychology Policy and Procedures for Tenure and Promotion. These handbooks contain language that notes "these procedures collectively constitute contractual due process the sum total of the procedural guarantees explicit and implicit [in the tenure process]." The Faculty Handbook further provides for annual evaluations and, for tenure-track faculty, a third year review. The Handbook also states that successful tenure reviews neither promise nor guarantee eventual tenure, which is only obtained by discretionary grant of the Board of Trustees. The Faculty Handbook also states that decisions regarding tenure are normally communicated to the applicant by May 1. During her time at USM, Dr. Whiting received five annual evaluations, and in each received the highest marks in the categories of teaching, research, and service. These same categories are used as criteria in evaluating suitability for tenure and promotion. Defendants Dr. Dana Thames and Dr. Carl Martray prepared, reviewed, and/or signed each annual evaluation. Dr. Whiting also underwent a third year review, based on the same criteria, and again received top marks in the above categories. At the beginning of her sixth year of employment, Dr. Whiting submitted herself for consideration for both tenure and promotion (to associate professor). As part of the process, she submitted a dossier documenting her suitability for tenure and promotion. The dossier focused on the three major areas highlighted in her prior evaluations: teaching, scholarship and publication (research), and service. Dr. Whiting alleges that her department chair, Dr. Thames, intentionally provided Dr. Whiting with flawed advice, ordering her not to include certain research materials in her dossier. Dr. Whiting further alleges that during the tenure process Dr. Thames and another faculty member, Dr. Reeves, "began a quest to scuttle [her] career," by intimating that Dr. Whiting had committed academic fraud. Dr. Whiting further alleges that Dr. Thames sought to isolate Dr. Whiting through departmental cliques and by placing her in a separate building from the rest of the faculty. She also alleges that Dr. Thames was displeased by Dr. Whiting's remarks about student rights that reflected poorly on Dr. Thames's administration of the department. USM's review of Dr. Whiting's application began with a committee of faculty from her department. At their meeting, questions arose over certain articles listed in the publication section of her dossier. The committee chair and Dr. Thames met with Dr. Whiting and requested a written response to these questions. Dr. Whiting submitted her response, including an explanation of the methodology and analysis used to write several of her published articles. After the committee reconvened and considered her response, it voted to award promotion, with six in favor, three against, and two abstentions. The committee 912 voted against awarding tenure, however, with six against, four in favor, and one abstention. The committee's summary report notes a general agreement that Dr. Whiting wait to request tenure until she had completed her sixth year of teaching (a tenure candidate may request deferral of the tenure process until the seventh year of employment). Both the committee chair and Dr. Thames notified Dr. Whiting by separate letter of the committee's conclusions and suggested that she consider withdrawing her request for early tenure. Dr. Thames prepared a written recommendation to the Dean of the College of Education and Psychology, Dr. Carl Martray, regarding the committee's decisions. In that report, Dr. Thames expressed her agreement with the committee's concerns, but informed him that Dr. Whiting still wished to move forward with both the tenure and promotion processes. Dr. Whiting's dossier, as well as the recommendation to Dean Martray and a rebuttal letter from Dr. Whiting, came before the College Advisory Committee ("CAC"), a group of representatives from each department in her College. The CAC noted the disparity between Dr. Whiting's high marks in her annual evaluations and the "more negative" report of the tenure and promotion committee. After undertaking its own review of Dr. Whiting's credentials, the CAC concluded "that it appeared that the annual evaluations of the chairs in the past were more optimistic than the credentials justified during many of the years." The CAC's report noted concerns that Dr. Whiting's body of work at that time "was not adequate and did not meet college research standards." The CAC voted to deny tenure and promotion, each vote tallying to four against and two in favor, with no abstentions. Dean Martray reviewed the CAC recommendations and Dr. Whiting's dossier, concluding that he had "no compelling reason to recommend against the CAC's determination." He transmitted Dr. Whiting's materials to the Provost, without recommendation for either promotion or tenure. Dean Martray notified Dr. Whiting of his decision and included the copies of the CAC's reports, reminding her that she retained the option to withdraw her application and request deferral to her seventh year. Dr. Whiting chose to continue with the promotion and tenure process. Accordingly, her dossier came before the University Advisory Council ("UAC"). The UAC met twice to review her materials. On the advice of her attorney, Dr. Whiting declined invitations to attend these meetings, and presented UAC members with a letter alleging failures of due process and violation of her due process rights under the Fourteenth Amendment. Ultimately, the UAC voted to award tenure (five voted in favor, three against, and one recusal), but did not reach a conclusion as to promotion (four in favor, four against, and one recusal). Those votes, in addition to another supplementary letter from Dr. Whiting, were then submitted to the Provost, who concurred with the UAC's recommendation as to tenure, and further recommended promotion. He notified Dr. Whiting of his recommendation by letter on May 17, 2002. Dr. Whiting's dossier thus came before University President Shelby Thames, father of Dr. Dana Thames, who had taken that office on May 1, 2002. On August 23, 2002, President Thames wrote to request a meeting with Dr. Whiting to discuss concerns about her application. Dr. Whiting chose not to meet with 913 President Thames. On August 30, 2002, President Thames wrote to Dr. Whiting to inform her that he would not recommend her to the USM Board of Trustees for tenure or promotion. That letter further gave notice that Dr. Whiting's employment at USM would not be renewed after the academic year ending May 2003. Dr. Whiting appealed to the Board of Trustees on September 16, 2002. In forwarding her request to the Board, the Commissioner of Education recommended that the Board decline to consider the appeal. The Board did so unanimously, because Dr. Whiting had already filed suit, and notified Dr. Whiting of its decision by letter to her attorney on November 21, 2002. Procedural History ¶ 3. On August 6, 2002, Whiting filed her complaint in the Forrest County Circuit Court, complaining of the state law claims discussed below, and federal claims alleging deprivation of substantive and procedural due process pursuant to Section 1983 of the Civil Rights Act of 1964. The defendants filed their notice of removal to federal court on August 19, 2002. The United States District Court for the Southern District of Mississippi granted summary judgment to the defendants on all federal claims, and remanded the state claims to the Circuit Court of Forrest County. ¶ 4. Dr. Whiting appealed that decision to the Fifth Circuit Court of Appeals, which affirmed the district court. Whiting, 451 F.3d 339 (5th Cir.2006). In that decision, the Court of Appeals ruled that, pursuant to Mississippi law, the subjective expectation of the grant of tenure did not create a protected property interest, and, as such, Dr. Whiting's federal claims regarding both procedural and substantive due process failed insofar as they were based on deprivation of a property interest. Id. at 346. The federal appeals court further found that Dr. Whiting had failed to meet her burden of production with respect to a deprivation of a liberty interest. Id. at 348. That court also affirmed the district court's dismissal of Dr. Whiting's claims regarding discrimination as a "class of one" and her claim that she was denied tenure in retaliation for her exercise of her First Amendment rights. Id. at 350. Ruling that the only questions left were those of state law, the federal appeals court affirmed the district court's order remanding the case to the Circuit Court of Forrest County. Id. at 352. ¶ 5. Upon remand, the defendants moved for summary judgment on the remaining state law claims, which the circuit court granted. In its Opinion and Order, the trial court, noting a lack of clarity with respect to the claims in the complaint submitted by Dr. Whiting, ruled first that any claim related to breach of contract was precluded as a matter of Mississippi law, citing in a footnote the Fifth Circuit's holding that there is no legitimate expectation of continued employment on the part of a nontenured faculty member. See Whiting, 451 F.3d at 344-345. The court further ruled that Dr. Whiting's claims relating to a deprivation or violation of her right to due process were subject to the Mississippi Tort Claims Act. The court found that, in filing suit prior to a final decision by the Board of Trustees, Dr. Whiting had failed to exhaust all administrative remedies. ¶ 6. In addition, the trial court ruled that guarantees of due process under the Mississippi Constitution depend on the showing of a protected property interest. The court found that Dr. Whiting had failed to establish an issue of material fact regarding the deprivation of any property interest. The court ruled that summary 914 judgment was therefore proper, thereby disposing of all claims founded upon a theory of violation of due process. ¶ 7. Dr. Whiting filed her motion for reconsideration on September 25, 2008, which the trial court denied on October 6, 2009. Dr. Whiting timely perfected this appeal from the trial court's grant of summary judgment to the defendants. Standards of Review ¶ 8. A trial court's denial of a motion for reconsideration under Rule 59 or Rule 60 of the Mississippi Rules of Civil Procedure is reviewed for an abuse of discretion. City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60, 66 (Miss.2005); Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984). ¶ 9. A trial court's grant of summary judgment is reviewed de novo. Hubbard v. Wansley, 954 So.2d 951, 956 (Miss. 2007). Summary judgment will be granted only when there is no genuine issue of material fact to be decided and the moving party is therefore entitled to judgment as a matter of law. Mink v. Andrew Jackson Cas. Ins. Co., 537 So.2d 431, 432-33 (Miss. 1988). "A material fact is one which resolves any `of the issues, properly raised by the parties.'" Strantz ex rel. Minga v. Pinion, 652 So.2d 738, 741 (Miss.1995) (quoting Stegall v. WTWV, Inc., 609 So.2d 348, 351 (Miss.1992)). To withstand summary judgment, the party opposing the motion must present sufficient proof to establish each element of each claim. Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987). Further, he must present more than a mere scintilla of colorable evidence to support his claims. Luvene v. Waldrup, 903 So.2d 745, 748 (Miss.2005). Additionally, the party opposing summary judgment "may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e). The evidence must be sufficient that a fair-minded jury could return a favorable verdict. Id. The mere allegation of material fact is insufficient to generate a triable issue of fact and avoid summary judgment. Palmer v. Biloxi Reg'l Med. Ctr., 564 So.2d 1346, 1356 (Miss.1990). Specifically, "the plaintiff may not rely solely upon the unsworn allegations in the pleadings or `arguments and assertions in briefs or legal memoranda.'" Id. (quoting Magee v. Transcon. Gas Pipe Line Corp., 551 So.2d 182, 186 (Miss. 1989)). In summary, if a genuine issue of material fact is found, the trial court shall deny summary judgment; otherwise, the trial court shall grant the motion where the movant is entitled to judgment as a matter of law. M.R.C.P. 56(e); Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000) (citing Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983)). Analysis ¶ 10. Dr. Whiting's argument may be summarized as follows: First, her claim is based upon a breach of contract theory and therefore is not procedurally barred by the requirement of the MTCA that all administrative remedies must be exhausted. Second, she argues that the faculty handbook, taken as an integral part of her contract with the Board, guarantees procedural and substantive due process with respect to her application for tenure. She argues further that the defendants specifically Dr. Shelby Thames, then president of the university, and Dr. Dana Thames acted in bad faith, and were motivated by bias or animus against her, in sabotaging her qualifications, refusing to recommend tenure, and refusing to rule on her tenure application once it had reached the president's office. She argues that her claim is not based on an expectation of future employment but upon a contractually 915 guaranteed right to due process. Finally, she argues that this Court should grant injunctive relief and should order a fair hearing on her tenure application. ¶ 11. The defendants contend in turn that the trial court did not err in ruling that the MTCA erected a procedural bar to Dr. Whiting's filing suit prior to an appealable ruling from the Board. Further, they argue that injunctive relief is not appropriate because Dr. Whiting cannot show any imminent threat of irreparable harm that is not otherwise addressed and is without an adequate legal remedy. ¶ 12. Briefly restated for clarity, Dr. Whiting concedes that she had no legitimate expectation of tenure as a result of her prior tenure-track employment contracts, but argues instead that the actions of then-President Thames and the Board in refusing to rule timely on her application, and by implication, grant her tenure, constituted a violation of her rights to procedural and substantive due process. She further argues that the Circuit Court of Forrest County erred in ruling that the MTCA's requirement that all administrative remedies be exhausted prior to her bringing suit against the State or its agency meant that her claim was procedurally barred. Specifically, she alleges that the MTCA does not apply to claims based upon an alleged breach of contract. ¶ 13. To the extent that Dr. Whiting's claims are based purely upon a breach of contract theory, we find that, as a matter of law, that no contract was formed between Dr. Whiting and the Board with respect to an offer of tenure. Further, the Fifth Circuit Court of Appeals's ruling that Dr. Whiting had no protected property interest that entitled her to due process considerations is applicable here, as the analysis of due process considerations under the Mississippi Constitution is coextensive with federal law on this point. ¶ 14. It is, of course, a basic principle of the law of contracts that a contract is not formed between the parties absent the essential elements of offer, acceptance, and consideration. Gatlin v. Methodist Med. Ctr., Inc., 772 So.2d 1023, 1029 n. 3 (Miss.2000) (citing Putt v. City of Corinth, 579 So.2d 534, 538 (Miss.1991)). Insofar as Dr. Whiting's claim relates to a guarantee of tenure, that argument is without merit in that the Board, the only entity capable of forming a valid employment contract with her, never made to Dr. Whiting an offer of a tenured position. It is settled law in this state that the subjective expectation of tenure does not create a property interest that is guaranteed by the right to substantive and procedural due process. Wicks v. Miss. Valley State Univ., 536 So.2d 20 (Miss.1988). ¶ 15. At the core, Dr. Whiting's argument, to the extent that it makes out a specific claim for relief, is that her contract with the Board, as memorialized in the handbook, guaranteed a fair and impartial hearing with respect to her tenure application, and the defendants denied her that opportunity. While she attempts to characterize these claims as breach of contract, a fair reading of the facts of this case and the manner in which Dr. Whiting lays out her argument establish that if there were a claim to be made, it would be for tortious breach of contract and tortious interference with contract. As such, the claims made against the Board or the university are governed by the provisions of the MTCA. ¶ 16. The MTCA provides, in relevant part, that the state, and by extension the Board, is immune from suit at law or in equity on account of any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract, 916 including but not limited to libel, slander or defamation, by the state or its political subdivisions, or any such act, omission or breach by any employee of the state or its political subdivisions, notwithstanding that any such act, omission or breach constitutes or may be considered as the exercise or failure to exercise any duty, obligation or function of a governmental, proprietary, discretionary or ministerial nature and notwithstanding that such act, omission or breach may or may not arise out of any activity, transaction or service for which any fee, charge, cost or other consideration was received or expected to be received in exchange therefor. Miss.Code Ann. § 11-46-3(1) (Rev.2002). We have interpreted the phrase "any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract" to mean that the MTCA covers both tortious breaches of contract and breaches of implied terms and warranties of a contract. City of Jackson v. Estate of Stewart ex rel. Womack, 908 So.2d 703, 710 (Miss.2005). The MTCA, of course, provides a limited waiver of immunity for claims arising from tortious acts of governmental agencies and their employees. Miss.Code Ann. § 11-46-5(1) (Rev.2002). Recovery is limited by statute to $500,000. Miss.Code Ann. 11-46-15(1)(c) (Rev.2002). ¶ 17. The MTCA further provides that notice of a claim must be brought only after all administrative remedies have been exhausted. Miss.Code Ann. § 11-46-11 (Rev.2002). This Court previously has held that, with respect to a contract for employment with an entity governed by the Board of Trustees of State Institutions of Higher Learning, failure to complete the internal grievance process for an alleged wrongful termination does not satisfy the requirement that administrative appeals be exhausted for purposes of the MTCA. Harris v. Miss. Valley State Univ., 873 So.2d 970, 988 (Miss.2004). ¶ 18. The Mississippi Constitution provides that responsibility for the management and control of the institutions of higher learning of this state is vested in the Board of Trustees of State Institutions of Higher Learning ("the Board"). Miss. Const. art. 8, § 213A. That section provides, in relevant part: [The] board shall have the power and authority to elect the heads of the various institutions of higher learning, and contract with all deans, professors and other members of the teaching staff, ... for a term not exceeding four (4) years; but the board may terminate any such contract at any time for malfeasance, inefficiency or contumacious conduct, but never for political reasons. Miss. Const. art. 8, § 213A. In addition, Mississippi Code Section 37-101-15(f) (Rev.2007) states, in relevant part, "[t]he Board shall have the power and authority to ... contract with all deans, professors, and other members of the teaching staff... for a term of not exceeding four (4) years." ¶ 19. A valid employment contract with the University of Southern Mississippi cannot exist unless and until the Board of Trustees of State Institutions of Higher Learning approves a nomination by the university's president. As a matter of statute, this is the only valid avenue for the creation of a valid contract for employment. Bruner v. Univ. of S. Miss., 501 So.2d 1113, 1115 (Miss.1987). All contracts, therefore, entered into with instructors or professors at the university properly are construed as contractual agreements with the Board and not with the several institutions it supervises or their respective employees. The university and its officers, notwithstanding the fact that they 917 act as agents of the Board, are not parties to any contract formed between the Board and Dr. Whiting. The university and the other defendants named in their individual capacities therefore are free of liability with respect to whatever contractual obligations the Board may have undertaken with respect to Dr. Whiting. ¶ 20. With respect to contracts of employment, contractual obligations may arise from, and the provisions of a contract may be modified by, employee manuals. Bobbitt v. The Orchard, Ltd., 603 So.2d 356 (Miss.1992). The Board, in general, outlines general policies regarding faculty promotion and tenure that are supplemented by more specific policies at the university level. To determine what rights to procedural due process arose as a result of Dr. Whiting's contractual relations with the Board, it is necessary to examine the university's provisions regarding the grant of tenure and the application process as outlined in the handbook that was provided to Dr. Whiting. The substantive policy of the university is outlined in Chapter X of the handbook, and the procedure is outlined in Chapter XI, entitled "Faculty Personnel Actions: Procedure and Contractual Due Process." ¶ 21. The faculty handbook that is part of the record on appeal defines contractual due process as "the sum total of the procedural guarantees, explicit and implicit, afforded by a contracting employer to a contracting employee for the regulation and enforcement of the substantive terms of employment." These guarantees refer, with respect to the grant or denial of tenure, to the internal review process that culminates in a recommendation by the president to the Board and the candidate's ability to appeal an adverse decision. ¶ 22. Speaking directly to the substantive rights regarding a tenure-track position, the handbook defines academic tenure as "a qualified expectation of continuing employment." It further states: "... academic tenure is a privilege granted on a basis of professional promise and value within the structure of goals and objectives pursued by academic units of appointment by schools, divisions, and colleges of which academic units of appointment might be component parts; by the University; and by the Board of Trustees." The handbook also provides that the process by which application for tenure is reviewed resides primarily at the departmental level. A tenured faculty member may be removed only for cause, and the dismissal of a tenured faculty member is subject to its own procedural guarantees. Tenured faculty are "protected against involuntary suspension or termination of employment except upon stipulated grounds and in accordance with specified procedures." In summary, once a faculty member has been granted tenure, she has a legitimate qualified expectation of continued employment, the statutory bar to appointments longer than four years' length notwithstanding. ¶ 23. According to the handbook, the president is delegated exclusive authority over all personnel nominations and recommendations to the Board, which in turn retains sole authority to execute those nominations and recommendations. The president's legal responsibility in this regard is explicitly nondelegable. That nondelegable legal responsibility notwithstanding, the Board Policies and Bylaws, as cited in the handbook, require the "University President to establish institutional bodies and to define and follow contractual due process in all institutional deliberations involving tenure and dismissal." ¶ 24. In the College of Education and Psychology, the application process begins, after the applicant's notice to the departmental 918 chair, with a recommendation by secret ballot of a representative tenure and promotion committee of the applicant's department. The recommendation of that committee is passed on to the College Advisory Committee for Promotion and Tenure, composed of elected, tenured members of the faculty. After a full and confidential review of the applicant's dossier, evaluations, service record, and any other materials that are deemed relevant, the College Advisory Committee votes on whether to recommend or deny tenure, and that recommendation is forwarded to the dean of the College. If the recommendation is negative, the candidate may withdraw her dossier from further consideration by notifying the dean within five working days of the dean's receipt of the dossier from the College Advisory Committee. The dean conducts further de novo review of all personnel recommendations. ¶ 25. Assuming the dossier is not withdrawn, the dean then will forward the dossier to the University Advisory Committee ("UAC"). The UAC is composed of the chairs of the College Advisory Committees, and serves as an advisory body to the provost of the University, the chief academic officer for the University. One of the functions of the UAC is "to review the merits of faculty members recommended for promotion in rank and for academic tenure, assuring general uniformity of standards within the University, and submitting favorable or unfavorable judgments to the Provost." To promote the neutral character of the review process, the handbook provides that members of the University Advisory Committee must recuse themselves from any personnel matter concerning a faculty member of the college they represent. Further de novo review is conducted by the provost (the chief academic officer for the University), who then transmits his recommendation to the president. The president then is responsible for a further level of de novo review prior to submitting his recommendations to the Board. To summarize, five levels of independent and de novo review occur prior to the application to the Board of a candidate for tenure, and the Board has exclusive authority to grant tenure and form contracts for employment. ¶ 26. The handbook provides a separate vehicle for appeals by aggrieved personnel. A faculty member may appeal any recommendations or other personnel actions, including termination and denials of tenure, at any point and from any body making the recommendation, to the person or committee having oversight of the deciding body, as outlined above. More specifically, an aggrieved faculty member may appeal any action directly to the Board of Trustees. The handbook, citing the Board Policies and Bylaws, states that upon receiving appeals, the Board reviews all relevant documentation and "determines 1) if established substantive and procedural employment policies and procedures were followed within the University, and 2) if the personnel decision was arbitrary and capricious." ¶ 27. Here, Dr. Whiting does not dispute that she did not wait for a final decision from the Board regarding her tenure application, and neither does she dispute that the president has substantial discretion over final recommendations regarding tenure decisions, or that the Board has final discretionary authority over all personnel matters. She alleges merely that the president refused to give her application a fair hearing because his familial relationship with her departmental chair biased him against her application. She makes this allegation without any evidentiary support beyond her suspicion as articulated in her deposition and in the 919 pleadings and motions incorporated in the record. ¶ 28. Dr. Whiting consistently overlooks that the tenure review process involves several layers of functionally independent review. At no point during the review process, prior to the provost's recommendation, was there anything that resembled a broad consensus, much less unanimity, among the review committees, even after Dr. Whiting had sent letters attempting to rebut allegations that her research dossier, at that point, was not strong enough to warrant a grant of tenure. Dr. Whiting's failure to meet with the president, which she said was on the advice of her attorney, does nothing to support her contention that she was deprived of a fair hearing. As she cannot show that either President Thames or the Board acted outside their duly-authorized discretion in denying her application for tenure, her contention that they breached an obligation to provide due process to her is without merit. ¶ 29. To the extent that her claims are based on an alleged violation by the Board of her rights to due process as guaranteed by the Mississippi Constitution, this argument also is without merit. It is clear that there is no legitimate expectation of employment for a nontenured faculty member that creates a protected interest. Wicks, 536 So.2d at 23 (Miss. 1988). Written tenure policies do not, of themselves, create or confer an expectation of continued employment. Id. Dr. Whiting, contrary to the explicit statements of the handbook, asserts that the policies as outlined created a legitimate expectation of the grant of tenure. As this argument is in plain conflict with the facts that the grant of tenure is within the sole discretion of the Board and the sole power to transmit recommendations rests with the university president, it is without merit. ¶ 30. Dr. Whiting further attempts to escape her obligation to exhaust her administrative remedies by arguing that injunctive relief is categorically unaffected by the MTCA. Citing Greyhound Welfare Foundation v. Mississippi State University, 736 So.2d 1048 (Miss.1999), she argues that the MTCA does not extend sovereign immunity to claims asking for injunctive relief. That exception does not apply here. Generally, mandatory injunctive relief is applicable only when there is an imminent threat of irreparable harm and there is no adequate remedy at law. Punzo v. Jackson County, 861 So.2d 340, 348 (Miss.2003). Relief should be granted only where it is reasonably practicable. Id. The injunctive relief for which Dr. Whiting is asking is, in essence, for a judicial mandate that the University provide her a tenured position. As it is clear that the procedural guarantees, as crafted by Board and university policy and as outlined in the handbook, do not create an automatic right to tenure, injunctive relief is not appropriate, and this request is without merit. Conclusion ¶ 31. Dr. Whiting failed to wait for a final decision by the Board regarding approval of her application for tenure prior to filing suit. Her claims based on tortious conduct in general, tortious breach of contract in particular, and breach of an implied contractual term or warranty are foreclosed by her failure to adhere to the requirement of the Mississippi Tort Claims Act that all administrative remedies be exhausted prior to filing suit. Further, Dr. Whiting failed to meet her burden of production in response to the defendants' summary judgment motion to show that there was a genuine issue of material fact *920 that would prevent the trial court's concluding that the defendants were entitled to judgment as a matter of law. This Court therefore affirms the Circuit Court of Forrest County's grant of summary judgment. ¶ 32. AFFIRMED. WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, CHANDLER, PIERCE AND KING, JJ., CONCUR. NOTES [1] After her complaint was filed in state court, the case was removed to federal court. None of Whiting's federal claims survived the defendants' joint motion for summary judgment in federal court, after which the case was remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1112865/	344 So. 2d 893 (1977) Morton WOLFMAN, Appellant, v. Irene WOLFMAN, Appellee. No. 76-1872. District Court of Appeal of Florida, Fourth District. March 25, 1977. Robert E. Dubow, Dania, for appellant. Merle Litman, of Litman, Muchnick & Wasserman, Hollywood, for appellee. ANSTEAD, Judge. This is an appeal by the husband of an award of alimony and child support. We reverse. The trial court ordered alimony of $200.00 monthly and child support of $400.00 monthly for a total of $600.00. In addition, the wife received exclusive possession of the marital residence and was awarded title to the furnishings in the residence. The husband also had to provide medical insurance for the children. The husband was earning $1,000.00 net monthly. He claimed expenses of $358.00 weekly. The wife was acknowledged to be disabled from employment and was receiving $370.00 monthly disability income. The wife had custody of two eight-year-old children and claimed total weekly expenses of $278.00. The record shows the husband's income was slightly higher several years previously. In one intervening year his income dropped because he was off work three months due to a serious heart attack. But his earnings at the time of trial had increased and there was no evidence tending to show any fraud, deceit, or wilfulness by the husband with respect to his earnings. The trial court, at the conclusion of the final hearing, noted that the amount awarded the wife and children was: ... about the maximum I can take from him. That doesn't leave him nearly what he has to live on but he's going to have to increase his income to satisfy his problems and his needs... . And the trial court told the husband: Well, sir, you're going to have to earn it, sir. You're capable of earning more than you're showing. You've earned more than you're showing, you're capable of earning more than you're showing, and if she comes back and shows me you're earning more, I'm going to give them more. I think right now you have to earn a little more just to maintain yourself, but I think you're capable of doing that, sir. Awards of alimony and child support must be determined essentially on the elements of needs of the wife and children and ability of the husband to respond. 10A Fla.Jur. Dissolution of Marriage, etc. §§ 54 and 80. As can be seen from the comments of the trial court, the husband did not have *894 the ability to pay the amount of alimony and child support that he was actually ordered to pay. And there were no other circumstances shown by the evidence to support an award beyond the husband's ability to pay. Accordingly, the child support payments are hereby modified to $100.00 for each child; the award of $200.00 for alimony is affirmed; and the total monthly support obligation of the husband is set at $400.00. The judgment is reversed with directions that a judgment be entered in accordance with the terms of this decision. DOWNEY and DAUKSCH, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1112863/	344 So. 2d 485 (1977) Helen A. McCALEB et al. v. Mary Lou McCaleb BROWN. SC 2019. Supreme Court of Alabama. February 25, 1977. Rehearing Denied April 22, 1977. 486 Louis Salmon, for Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellants. M. H. Lanier, Harold F. Herring and E. Cutter Hughes, Jr., for Lanier, Shaver & Herring, Huntsville, for appellee. JONES, Justice. Omitting only the introductory paragraph and the formal order, we set forth in haec verba the trial Court's Final Decree: [Facts] "Virginia E. McCaleb was the mother of six children: Robert Leon McCaleb, Sallie McCaleb Drake, Josephine McCaleb Balch, Joseph Edmond McCaleb, John William McCaleb and Shelby Blaine McCaleb. On May 21, 1942, Mrs. McCaleb executed six (6) deeds conveying to each of her children a life interest in specified separate parcels of property. "The operative language in each of the deeds was virtually identical, the only variation being in reference to the sex of the named grantee. This controversy centers upon the interpretation of the habendum clause in these deeds, and in particular, the effect of the habendum in the deed to Robert Leon McCaleb which reads as follows: "`To Have and To Hold unto the said Robert Leon McCaleb, together with all and singular, the rights, privileges, tenements, appurtenances and improvements thereunto belonging, for and during the term of his natural life, with remainder after his death in fee simple to his surviving descendants per stirpes. Provided, however, if at the time of the death of my said son, Robert Leon McCaleb, he shall not leave surviving any descendants, the remainder estate in and to said lands shall rest in equal shares in such of my children as may be living at such time, and the legal descendants per stirpes of such of my children who may have previously died, leaving surviving legal descendants.' "In June of 1943, Mrs. McCaleb died, and later on April 5, 1946, Robert Leon McCaleb legally adopted the plaintiff in this case, Mary Lou McCaleb Brown. R. L. McCaleb died on March 25, 1974, and the plaintiff sought a declaratory judgment regarding her rights in the property conveyed to her adoptive father by Virginia E. McCaleb. Joseph Edmond McCaleb, a son of Virginia McCaleb and an original defendant, died on February 23, 1975, without descendants, and the plaintiff amended her complaint to seek declaration of her rights in property similarly conveyed to Joseph Edmond McCaleb as well. Defendants answered and counter-claimed alleging that only the named defendants came within the terms of the remainder provision in the deeds at issue and sought a declaratory judgment in their favor. [Issue] "The present posture of this case sets forth a single issue for resolution by this Court. Is Mary Lou McCaleb Brown, adopted daughter of Robert Leon McCaleb, within the class of persons described in the McCaleb deeds as `his surviving descendants' and as `the legal descendants' of one of Virginia McCaleb's children? "In order to decide the question posed here, the Court is faced with the problem of framing a legal definition of the term `descendants' as used in the deeds involved. Counsel for the parties have provided the Court with able and helpful briefs, but neither the briefs nor the Court's own research has disclosed a case in which any Alabama appellate court has undertaken to define the term `descendant' as it applies to an adopted child. Therefore it appears that 487 this Court must formulate its own definition of the key term in accordance with its understanding of Alabama law. [Decision] "As an aid to this decision, counsel have discussed in brief and in argument the statutory and case law in Alabama and in other jurisdictions with regard to an adopted child's ability to inherit property from adoptive parents and adoptive collateral relatives. On the subject of inheritance from adoptive collateral relatives, the Alabama Supreme Court has clearly stated that such a result is not to be reached, Gamble v. Cloud, 263 Ala. 336, 82 So. 2d 526 (1956) [1955]. Although Gamble v. Cloud did help to produce certain amendatory legislation, that legislation did not affect the ruling in regard to inheritance from adoptive collaterals. "Alabama case law dealing with the rights of inheritance of adopted children shows a consistent pattern of restrictive interpretation of the Alabama adoption statutes as they relate to inheritance. Since those provisions are in derogation of the common law, see, Peck v. Green, 266 Ala. 321, 96 So. 2d 169 (1956); Hamilton v. Smith, 264 Ala. 199, 86 So. 2d 283 (1956), Gamble v. Cloud, 263 Ala. 336, 82 So. 2d 526 (1955); Franklin v. White, 263 Ala. 223, 82 So. 2d 247 (1955). But it is undisputed that a child who has been adopted in a valid legal procedure is entitled to inherit from its adoptive parents, Ala.Code Tit. 27, § 5. "If the Court were faced here with a problem of whether an adopted child takes by intestacy or under the will of a collateral who died prior to the adoption or even by intestacy or under the will of an adoptive parent, the question presented by this case would perhaps be less difficult to resolve. However, the instruments with which the Court must deal in this instance are deeds rather than wills. The legal device employed here was an inter vivos conveyance of a life estate with a contingent remainder in the `descendants' of Virginia McCaleb's children who had died prior to the vesting of the fee simple estate. "In other words, the short time span between the execution of the series of deeds and the death of Virginia McCaleb naturally tends to suggest an `inheritance' by collateral kin from Virginia McCaleb. But in fact, in legal contemplation, no inheritance has or will occur as a result of these transactions. There is no inheritance from Virginia McCaleb since all her interest in the real property involved here was conveyed away before her death, and there is no inheritance from any of the six McCaleb children since none of them owned, by virtue of the deeds, any estate in land which would have been transmissible at death. "Although the resolution of the instant controversy does not rest directly upon the question of whether plaintiff, Mary Lou McCaleb Brown, could have inherited property from Robert Leon McCaleb, the decisive factor is the legal relationship between plaintiff and Robert Leon McCaleb. There is no dispute about the validity of plaintiff's adoption although counsel disagree as to whether the Court should look to the 1931 statute or the present statute as amended in 1957 and 1959. The Court is of the opinion that the same result will obtain regardless of which statute is used. "Ala.Code, Tit. 27, § 5, outlines among other things the rights of inheritance of an adopted child. As noted above, the Court has concluded that this case turns on the interpretation of a class description found in a deed rather than on an application of the laws of inheritance, and nowhere in either of the variations on the adoption statute has the Legislature declared that an adopted child shall or shall not be included within the legal definition of the `descendants' of the adoptive parents. It is, however, instructive that the Alabama Legislature has stated: "`For the purposes of inheritance of property under the laws of descent and distribution an adopted child, whether now or hereafter adopted under the laws of Alabama or some other jurisdiction, shall bear the same relation to his adopting parents and their natural and adopted 488 children as if he were the natural child of such parents.'" Ala.Code of 1940, Tit. 27, § 5 (1958 Recomp. and 1973 Supp.). "The terms `descendant' and `legal descendant' are not one of precise legal definition; they are apparently undefined in Alabama case law. Other jurisdictions, however, have arrived at determinations of whether adopted children are `descendants' of their adoptive parents and of their other adoptive relatives. The results reached and the interpretive tools used have varied from state to state. "Black's Law Dictionary, in dealing with the term `descendant' lists the following as a proper definition: `One on whom the law has cast the property by descent.' This court finds such an interpretation of the phrases `descendants' and `legal descendants' to be correct and suitable in the case at bar. "Therefore, the Court concludes that Mary Lou McCaleb Brown should be included within the designated class of `descendants' and `legal descendants' of Robert Leon McCaleb since, for purposes of intestate succession to property owned in fee by Robert Leon McCaleb, plaintiff is regarded as his child or `descendant.' "We are urged to consider the intent of the grantor by the defendants. The law of descents in 1942 would have allowed an adopted child to be an heir, and the property of Robert Leon McCaleb would have descended to Mary Lou McCaleb in that year had he died and had she been adopted. She would have been as much a descendant then as any subsequent time. Virginia E. McCaleb left no signs to indicate whether or not she ever considered an adopted descendent. If we allow the luxury of speculation about intent, it is as reasonable to argue her love for an adopted child would have been as great as for a child of her blood. An excellent case can be made she would have included adopted persons if she had specifically expressed herself. She certainly could have excluded adoptees with a word or two. The court is unwilling to base its opinion upon the rambling arguments of speculation. For all we know she intended descendants to include adopted descendants." Conclusion We have tested the trial Court's decree against each of the contentions urged by the appellants; and, as supplemented by our discussion below, we adopt both the rationale and holding of the final decree from which this appeal was taken. We affirm. Initially, we deem it appropriate to emphasize, as did the trial Judge, that the only legislative expression in this general area (Title 27, § 5, Code) is not dispositive of the issue here presented. In addition to that portion of the adoption statute quoted in the trial Court's decree, the following language appears: ". . . and the child shall be invested with every legal right, privilege, obligation, and relation in respect to education, maintenance and the rights of inheritance to real estate, and to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock"all of which language speaks in terms of "rights of inheritance" and "inheritance of property under the laws of descent and distribution." But this is not an "inheritance" case, argues the appellants and thus the statute is not controlling. We agree that it is not controlling; but we also agree that the language of the statute is "instructive," and that this expression of public policy with respect to the rights of an adopted child "[f]or the purposes of inheritance" should be consistently applied in the context of inter vivos gifts of real property unless a contrary intent is clearly expressed. Rather than electing to dispose of her property by will or by the laws of intestacy, Virginia McCaleb, during her lifetime, granted a life estate to her son, Robert, "with remainder to his surviving descendants." Had she created this contingent interest by will, the adopted child of Robert would have taken as a "descendant" through the clear mandate of the express terms of the statute. Given the premise 489 that the grant did not by its language expressly exclude from the term "descendant" an adopted child (see Whitfield v. Matthews, Ala., 334 So. 2d 876 (1976)), we are constrained to hold that a different result from that in the case of a will should not obtain; and, indeed, to hold otherwise would only frustrate the overall policy of the adoption statute to treat adopted children in all respects as natural children unless a contrary meaning is clearly expressed. In In re Coe, 42 N.J. 485, 201 A.2d 571 (1964), the Supreme Court of New Jersey, under parallel circumstances, observed: "[I]t is not important whether the adoption statute directly controls the interpretation of instruments. The important point is that the statute reflects the feeling and attitude of the average man and hence its policy should be followed unless the benefactor explicitly reveals a contrary purpose."[1] Counsel for appellants contend that to allow Mrs. Brown to inherit would be contrary to the intentions of Virginia McCaleb since she never knew the adopted daughter. This argument is not persuasive, particularly in view of the fact that this was a class gift. As stated In re Holden's Trust, 207 Minn. 211, 291 N.W. 104 (1940): "The least persuasive of all reasons given for the rule is that an adopted child should not be permitted to take because he was unknown to the testator. In many cases where provision is made for a class such as heirs or issue, the members of the class are unknown to the testator for the very simple reason that membership in the class is to be determined in the future and after his death. No one has ever supposed that one answering the description of those who are to take was to be excluded because he was unknown to the testator." The appellants have cited cases from many jurisdictions. The statutory provisions in these jurisdictions are inapposite to the issue here presented. In some instances, the statutory language clearly restricts the rights of adopted children from inheriting collaterally. See, e. g., In re Leask, 197 N.Y. 193, 90 N.E. 652 (1910). In other instances, the express terms of the statute indicate that the legislature intended to limit the right of the adopted child to inherit from the adopted parents only. See, e. g., Jenkins v. Jenkins, 64 N.H. 407, 14 A. 557 (1888). See, generally, 9 Ill.L.Rev. 149. One state which does have a statute similar in nature to our own is Wyoming, and their Supreme Court has held ". . . the term `descendant' includes an adopted child when considered in connection with the adoption statute." In re Cadwell's Estate, 186 P. 499 (Wyo.1920). Therefore, we hold consistent with the adoption statute which creates a parent-child relationship between the adopter and the adoptee, that the latter is presumptively within the designation of the adopter's descendants unless the context or circumstances clearly establish a contrary intention. The judgment of the trial Court is affirmed. AFFIRMED. All the Justices concur. NOTES [1] For an excellent discussion of this problem and a compilation of cases from other jurisdictions, see In re Estate of Tafel, 449 Pa. 442, 296 A.2d 797 (1972).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1114036/	6 Kan. App. 2d 335 (1981) 627 P.2d 1193 SHARON L. ORR, Appellant, v. HOLIDAY INNS, INC., TOPEKA INN MANAGEMENT, and HOLIDAY INN TOWERS, Appellees. Affirmed 230 Kan. 271, 634 P.2d 1067 (1981). No. 51,535 Court of Appeals of Kansas. Opinion filed May 22, 1981. J. Roy Holliday, Jr., of Speer, Austin, Holliday, Lane & Ruddick, of Olathe, for the appellant. Daniel P. Hanson, of Wallace, Saunders, Austin, Brown & Enochs, of Overland Park, for the appellees. Before JUSTICE McFARLAND, presiding, SPENCER, J., and RON ROGG, Associate District Judge, assigned. ROGG, J.: This case grew out of personal injuries received when appellant was assaulted, raped and sodomized on the premises of the Holiday Inn Towers in Kansas City, Kansas. Appellant brought an action for personal injuries on a negligence theory. Appellees interposed the defense that appellant's injuries were covered by the Kansas Workmen's Compensation Act, and thus an action on the theory of negligence did not lie. The trial court sustained appellees' motion for summary judgment based on the 336 pleadings, the deposition of appellant, and written interrogatories answered by appellees. There are two issues to be considered by the court on appeal: (1) Did the trial court err as a matter of law in granting summary judgment on the issue of whether appellant's exclusive remedy was within the purview of the Kansas Workmen's Compensation Act? (2) Did the trial court err in determining from the undisputed facts available to it that appellant's injuries arose out of and in the course of her employment as defined by the Kansas Workmen's Compensation Act? Since the adoption of our code of civil procedure, the appellate courts of this state have frequently stated the standard the trial court must follow in ruling on motions for summary judgment. The court should search the record and determine whether issues of material fact do exist. Dugan v. First Nat'l Bank in Wichita, 227 Kan. 201, 606 P.2d 1009 (1980). The appellate court must examine the record in the light most favorable to the party defending against the motion for summary judgment. It should accept such party's allegation as true, and give that party the benefit of doubt when a party's assertions conflict with those of the movant. Collier v. Operating Engineers Local Union No. 101, 228 Kan. 52, Syl. ¶ 2, 612 P.2d 150 (1980). Appellant contends the trial court erred in finding as an undisputed fact that appellant was employed by appellees. It is appropriate to note that the burden of proving employment falls on the appellees and not on the appellant. Unlike a claim for workmen's compensation where the claimant must establish the employment relationship, here the question of workmen's compensation coverage was raised by way of defense to the claim of appellant. The California case of Doney v. Tambouratgis, 23 Cal. 3d 91, 96-97, 151 Cal. Rptr. 347, 587 P.2d 1160 (1979), states: "It has long been established in this jurisdiction that, generally speaking, a defendant in a civil action who claims to be one of that class of persons protected from an action at law by the provisions of the Workers' Compensation Act bears the burden of pleading and proving, as an affirmative defense to the action, the existence of the conditions of compensation set forth in the statute which are necessary to its application ... `It is incumbent upon the employer to prove that the Workmen's Compensation Act is a bar to the employee's ordinary remedy.'" In this case the petition contained no allegation indicating that an employment relationship existed between appellant and appellees, 337 or that the injuries arose out of and in the course of employment. It was therefore appellees' responsibility to both plead and prove their relationship as employers of appellant, thus granting to them the protection of the workmen's compensation act. We have carefully reviewed the record before us, which contains all the record the trial court had at its disposal in determining the motion for summary judgment. Appellant's deposition indicated she worked at the "Holiday Inn." Deposition Exhibit No. 1 indicated appellant was employed at the Holiday Inn Towers. Appellees' answer admitted appellant was employed "by the defendants as a waitress in the cocktail lounge at said motel." It would seem the record supports the finding, at best, that appellant was employed "as a bartender in the Red Fox Lounge, located in defendants' hotel in Kansas City, Kansas." At no place in the record are appellees Holiday Inns, Inc., or Topeka Inn Management mentioned as employers of appellant. To further confuse the issue of the relationship of appellees to each other and to appellant, the answers to interrogatories propounded to appellees indicated the real property where the incident occurred was owned by the Iowa Phoenix Corporation and leased to the Kansas Realty Development, Ltd., which in turn leased the premises to Kansas City Motor Hotels, Inc. Ronald Carver Ray managed the property where the incident occurred, under policies established by Topeka Inn Management. The named defendants in this action were Holiday Inns, Inc., a Tennessee corporation; Topeka Inn Management, a Kansas corporation; and Holiday Inn Towers. The record does not support the trial court's finding that the various defendants are so related to appellant that they are protected from this suit by the workmen's compensation act. Summary judgment, therefore, was not appropriate on this issue. Although the previous finding of the court determines the question of whether or not summary judgment should have been granted, the rulings of the court in terms of the further issues raised are in areas somewhat unique, and which have not been precisely determined in prior reported Kansas cases. We therefore wish to examine the court's findings in terms of the issue of whether summary judgment was proper on the question of the injury arising out of and in the course of the employment of appellant. 338 Since the workmen's compensation act is being used as an affirmative defense by appellees, it is useful to note its application here. In Wilburn v. Boeing Airplane Co., 188 Kan. 722, Syl. ¶ 1, 366 P.2d 246 (1961), the general rule is stated: "The workmen's compensation act is not to be construed liberally in favor of compensation when an injured workman seeks compensation and construed strictly against compensation when he seeks to recover damages against his employer. In other words, the same rule and yardstick, as applied to the same facts, must govern whether invoked by the employee or the employer." Another general rule is that the workmen's compensation act should be liberally construed in favor of the workman and in favor of allowing compensation where it is reasonably possible to do so. Odell v. Unified School District, 206 Kan. 752, 756, 481 P.2d 974 (1971). The workmen's compensation act should be liberally interpreted then in such a way as to bring a workman under the act whether desirable or not for the specific individual's circumstance. It would be helpful at this point to recite what we believe are the material undisputed facts which cover this issue. Appellant was employed to work in the cocktail lounge from 4:30 p.m. until 1:30 a.m. the night of the alleged assault, which occurred at approximately 10:00 p.m. in a restroom located across the hallway from the lounge, on the premises of the Holiday Inn Towers. Appellant's specific duties were to serve as a bartender and to mix drinks for the patrons of the lounge. Appellant's employment did not require her to dress in a distinctive fashion or uniform, carry large sums of money, be present at or frequent isolated or secluded areas of the building, deal with the general public, or deal with or evict unruly clientele. During appellant's hours of employment, she did not have any schedule of prearranged breaks, nor was it necessary for her to request permission to use the restroom. Appellant, when assaulted, was on a break and utilizing the restroom used by employees, guests and patrons of the motel. A separate employees' restroom had been furnished but, because of its condition, appellant had consistently utilized the public restroom. The motel in question is located in a dangerous and high-crime area of the city, which is especially dangerous at night. Appellant was aware of the dangers and was frightened to such an extent that she would not walk in that area of town at night without an escort. Appellant had never seen nor had any 339 prior association with her assailant, and there appeared to be no personal motivation for the assault. The case of Siebert v. Hoch, 199 Kan. 299, 303-304, 428 P.2d 825 (1967), states the general law of Kansas as to when an accidental injury arises out of and in the course of employment: "Our workmen's compensation act (K.S.A. 44-501) provides that in order to be compensable an accidental injury must arise `out of' and `in the course of' the employment. The two phrases have separate and distinct meanings (Floro v. Ticehurst, 147 Kan. 426, 76 P.2d 773, Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P.2d 701); they are conjunctive and each condition must exist before compensation is allowable (Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P.2d 197, Tompkins v. Rinner Construction Co., 194 Kan. 278, 398 P.2d 578); and as to when every case must be determined upon its own facts. "The phrase `in the course of' employment relates to the time, place and circumstances under which the accident occurred, and means the injury happened while the workman was at work in his employer's service (Pinkston v. Rice Motor Co., supra). "This court has had occasion many times to consider the phrase `out of' the employment, and has stated that it points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment. Some of our decisions to this effect are: Carney v. Hellar, 155 Kan. 674, 127 P.2d 496; Jones v. Lozier-Broderick & Gordon, 160 Kan. 191, 160 P.2d 932; Neal v. Boeing Airplane Co., 161 Kan. 322, 167 P.2d 643; Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 211 P.2d 89; Pinkston v. Rice Motor Co., supra; and Bohanan v. Schlozman Ford, Inc., 188 Kan. 795, 366 P.2d 28. "This general rule has been elaborated to the effect that an injury arises `out of' employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury (see Hudson v. Salina Country Club, 148 Kan. 697, 84 P.2d 854; Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 347 P.2d 235; Rorabaugh v. General Mills, 187 Kan. 363, 356 P.2d 796). "An injury arises `out of' employment if it arises out of the nature, conditions, obligations and incidents of the employment (Bohanan v. Schlozman Ford, Inc., supra; Geurian v. Kansas City Power & Light Co., 192 Kan. 589, 389 P.2d 782). In Taber v. Tole Landscape Co., 181 Kan. 616, 313 P.2d 290, this court stated the foregoing tests exclude an injury not fairly traceable to the employment and not coming from a hazard to which the workman would have been equally exposed apart from the employment." We have no difficulty in this case finding that the injury of the appellant occurred "in the course of" her employment. The use of a restroom during the time of her employment and at the place of her employment seems to easily put it within the meaning of that phrase. The more difficult question is, did the injury of the appellant 340 arise "out of" her employment? A personal attack is obviously not part of the appellant's prescribed duties. Is her injury fairly traceable to her employment and is there a causal connection apparent to the rational mind because of the nature, conditions, obligations and incidents of the employment? We believe that the injury of this appellant does meet the test as previously set out by the court. Appellant was exposed to attack by virtue of being in a high-crime area at night for purposes of her employment. The general public was not so exposed. The general public must be viewed as a broader cross-section of the community than that group of people who happen to be in this dangerous area of the city at night. Having considered the trial court's reasoning and findings concerning the issue of whether appellant's injury occurred in the course of and out of her employment, we must conclude that the trial court ruled correctly. When her employer is identified and determined, the defense of the exclusiveness of appellant's recourse under the workmen's compensation act is a defense to her action as to that employer or employers. In view of the fact we find the case was not ripe for summary judgment because there was a controverted material fact as to who the employer of appellant was at the time of her injury, we reverse the trial court's finding on that basis alone, and remand the case for determination of who appellant's employer was and direct that summary judgment as to that employer be sustained. Any of the named defendants who is not an employer of appellant would not be entitled to claim the workmen's compensation act as a defense to appellant's claim. McFARLAND, J., dissenting: I believe, under the present law of Kansas, appellant's injury did not arise out of her employment and is not compensable under the workmen's compensation act. I would therefore simply reverse the trial court's entry of summary judgment in favor of the appellees. My rationale is this. Although not adopting the same by name, the Kansas Supreme Court applied the "increased-risk" test in permitting recovery in Hensley v. Carl Graham Glass, 226 Kan. 256, 597 P.2d 641 (1979). Under this test, to be compensable the injury must be caused by an increased risk to which the claimant, as distinct from the general public, was subjected by his employment. In Hensley, being employed on the roof of a building 341 increased the risk of injury by sniper fire over the street level general public's risk. Hence, the injury was compensable. In the case at hand, appellant was injured by a sexual assault from a stranger in a public restroom. From the undisputed facts the attack was aimed at appellant only because she entered the restroom, and was wholly unrelated to any job-related duties. The restroom was not secluded and was located just off the lobby of a large metropolitan hotel near the dining room and cocktail bar. The facts are readily distinguished from cases wherein the injured female employee was required to work in a secluded area. Unless the positional-risk test is adopted and applied, the appellant's injury is not compensable. Kansas has not adopted this test. For a full discussion of the various tests, see 1 Larson's Workmen's Compensation Law § 6, p. 3-1 et seq. (1978). I would reverse the summary judgment as to all defendants.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2495968/	66 So.3d 700 (2011) Gerald HAMMOND, Appellant v. CATERPILLAR FINANCIAL SERVICES CORPORATION, Appellee. No. 2010-CA-00547-COA. Court of Appeals of Mississippi. June 14, 2011. Gregory D. Keenum, attorney for appellant. Robert B. Ireland III, Jackson, attorney for appellee. Before LEE, C.J., ISHEE and ROBERTS, JJ. ROBERTS, J., for the Court: ¶ 1. Gerald Hammond bought a 2005 Caterpillar Skid-Steer (Skid-Steer) from David Timbes on August 15, 2008. Almost a year later, on July 10, 2009, Caterpillar Financial Services Corporation (Caterpillar Financial) filed a replevin in the Alcorn County Circuit Court alleging that it was entitled to possession of the Skid-Steer due to a prior, perfected security interest. The circuit court granted Caterpillar Financial possession of the Skid-Steer. Feeling aggrieved, Hammond now appeals. FACTS AND PROCEDURAL HISTORY ¶ 2. On January 9, 2006, Caterpillar Financial obtained a security interest in a Caterpillar Skid-Steer. Then, on July 26, 2006, Caterpillar Financial approved the transfer of the Skid-Steer to Double D Services, Inc., a Texas corporation. After the transfer, Caterpillar Financial perfected its security interest in the Skid-Steer by filing a UCC financing statement with the Texas Secretary of State's office. ¶ 3. Double D Services, Inc. was administratively dissolved by the Texas Secretary of State's office in 2007. Before the 701 corporation's dissolution, it had defaulted on the contract with Caterpillar Financial, but Caterpillar Financial was unable to collect from it. Timbes, a former owner of Double D Services, Inc., sold the Skid-Steer to Hammond on August 15, 2008, for $7,600. Apparently, Timbes executed this sale without requesting permission from or informing Caterpillar Financial. Caterpillar Financial learned of the sale of the Skid-Steer, and on July 10, 2009, it commenced a suit for replevin in the circuit court against Hammond seeking possession of the Skid-Steer due to its prior, perfected security interest in the equipment. ¶ 4. On March 4, 2010, the circuit court conducted a hearing to determine whether Hammond or Caterpillar Financial was entitled to possession of the Skid-Steer. At the hearing, the circuit judge began by asking if there was any dispute that Caterpillar Financial had a perfected security interest in the Skid-Steer.[1] The circuit judge then allowed each party to give a statement about his case. Hammond asserted that, although Caterpillar Financial had a perfected security interest in the Skid-Steer, he was a buyer of a consumer good. His position as a buyer of consumer goods entitled him to possession over Caterpillar Financial's perfected security interest. Caterpillar Financial then presented its argument as to why Hammond was not a buyer of a consumer good and that it, not Hammond, was entitled to possession of the Skid-Steer. After hearing from both parties, the circuit judge found in favor of Caterpillar Financial and granted it possession of the Skid-Steer. ¶ 5. Hammond appeals raising the following three issues: 1. The circuit judge failed to require Caterpillar Financial to prove or establish that it was entitled to immediate possession of the equipment. 2. The circuit judge refused to accept any testimony or evidence at the hearing other than the parties' statements, and he made the decision based solely on the pleadings. 3. The circuit judge excluded or otherwise ignored Hammond's request to produce evidence which was essential to the understanding of the case. Finding no error, we affirm the circuit court's judgment. STANDARD OF REVIEW ¶ 6. An appellate court, when reviewing the decision of a trial judge sitting without a jury, "may only reverse when the findings of the trial judge are manifestly wrong or clearly erroneous." Singley v. Smith, 844 So.2d 448, 451 (¶ 9) (Miss.2003) (citing Amerson v. State, 648 So.2d 58, 60 (Miss.1994)). Further, "a circuit court judge's findings are `safe on appeal where they are supported by substantial, credible, and reasonable evidence." James Wrecker Serv. v. Humphreys County, 906 So.2d 771, 772 (¶ 4) (Miss.Ct.App.2004) (quoting Maldonado v. Kelly, 768 So.2d 906, 908 (¶ 4) (Miss.2000)). ANALYSIS ¶ 7. Caterpillar Financial brought suit under Mississippi Code Annotated section 11-37-131 (Rev.2002) which permits a replevin suit be brought without posting bond and without requesting immediate seizure of the property. As required by statute, Caterpillar Financial and Hammond appeared before the circuit court on March 4, 2010, for a final hearing to determine 702 the possession rights of the parties with regard to the Skid-Steer. At the hearing, Hammond did not dispute that Caterpillar Financial had a perfected security interest in the Skid-Steer. Once this fact was admitted, the circuit judge asked Hammond to tell him why Caterpillar Financial's prior, perfected security interest does not carry the day. The trial transcript clearly indicates that Hammond was permitted to describe, at length, the issues and evidence he would present to prove his case. His primary argument was that he was a buyer of a consumer good without knowledge of the prior security agreement; thus, he was entitled to possession of the Skid-Steer over Caterpillar Financial's security interest. The circuit judge heard Hammond's argument and gave Caterpillar Financial an opportunity to respond. After hearing the arguments from both parties, the circuit judge found that "Caterpillar Financial Services Corporation had a perfected security interest in [the Skid-Steer] under the law of the State of Texas, which we're going to honor here in [Mississippi]" and granted Caterpillar Financial possession of the Skid-Steer. ¶ 8. Although Hammond does not dispute that Caterpillar Financial had a properly perfected security interest in the Skid-Steer, he does argue that the circuit judge erred in not allowing any evidence to be presented at the hearing and not requiring Caterpillar Financial to prove it was entitled to immediate possession before granting Caterpillar Financial possession of the Skid-Steer. We find that the circuit judge did not err. I. Proof of Immediate Possession ¶ 9. The sole case Hammond cites in his brief, Robinson v. Friendly Finance Company of Biloxi, 241 Miss. 239, 243, 130 So.2d 256, 257 (1961), supports the proposition that Caterpillar Financial bears the burden of proving its right to possession of the Skid-Steer. The circuit judge found that Caterpillar Financial proved its right to possession by demonstrating that it had a valid prior, perfected security interest in the Skid-Steer by virtue of the properly filed financing statement in Texas. Further, Hammond did not dispute that this security interest existed and was valid. Our standard of review is limited to whether the circuit judge's decision was manifestly wrong or clearly erroneous. Singley, 844 So.2d at 451 (¶ 9). After review of the record, we find that the circuit judge's decision that Caterpillar Financial was entitled to immediate possession of the Skid-Steer was not manifestly wrong or clearly erroneous and was supported by substantial evidence. II. Failure to Allow the Introduction of Evidence ¶ 10. In addition to Hammond's claim that Caterpillar Financial did not prove it was entitled to immediate possession, he also argues that the circuit judge ignored his request to produce evidence or hear testimony at the hearing. It should be noted that Hammond failed to provide any relevant authority to support this argument. The failure to provide authority acts as a procedural bar, and this Court is under no obligation to consider this issue on appeal. Taylor v. Kennedy, 926 So.2d 957, 959 (¶ 4) (Miss.Ct.App.2006) (citing Grey v. Grey, 638 So.2d 488, 491 (Miss. 1994)). ¶ 11. We find Hammond's issue procedurally barred. ¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF ALCORN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. *703 LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. RUSSELL, J., NOT PARTICIPATING. NOTES [1] At the time of the hearing, Renasant Bank, the bank that had financed Hammond's loan, was also a party. It did not dispute that Caterpillar Financial had a valid, perfected security interest in the Skid-Steer. Renasant Bank is not a party to this appeal.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2496089/	56 So. 3d 1254 (2011) SWC SERVICES, LLC v. ECHELON CONSTRUCTION SERVICES, LLC and Chenier Property Partners, LLC and Travelers Casualty and Surety Company of America. No. 2010 CA 1113. Court of Appeal of Louisiana, First Circuit. February 11, 2011. Clint L. Pierson, Covington, LA, Intervenor/Appellee In Proper Person. David J. Krebs, Marc L. Domres, Sandra Sutak, New Orleans, LA, for Counsel for Defendant/Appellant Travelers Casualty and Surety Company of America. Lloyd N. Shields, Elizabeth L. Gordon, Katy B. Kennedy, New Orleans, LA and Richard C. Stanley, W. Raley Alford, III, Michael J. Palestina, New Orleans, LA, for Counsel for Defendant/Appellee Chenier Property Partners, LLC. Before WHIPPLE, McDONALD, and McCLENDON, JJ. McCLENDON, J. A payment bond insurer appeals a trial court judgment against it that awarded sanctions to a subcontractor's previous counsel personally after settlement of the underlying dispute. For the following reasons, we vacate in part the judgment of the trial court. FACTS AND PROCEDURAL HISTORY On January 18, 2007, Chenier Property Partners, L.L.C. (Chenier), as owner, and Echelon Construction Services, L.L.C. (Echelon), as general contractor, entered into a contract for the construction of the project known as Chenier Apartments located 1255 in Mandeville, Louisiana. A payment bond in the amount of $30,011,467.00 was secured on January 18, 2007, naming Echelon as principal, Travelers Casualty and Surety Company of America (Travelers) as surety, and Chenier as obligee. Pursuant to the Private Works Act, the contract and statutory bond were filed with the parish before work began on the project. Sometime thereafter, SWC Services, L.L.C. (SWC) entered into a subcontractor agreement with Echelon to perform work on the project. In December of 2008 and February of 2009, SWC recorded liens against the property, claiming that it had provided labor and equipment for the project and that it had not been paid $122,331.63, the principal balance due and owing, despite amicable demand. On March 6, 2009, SWC filed the present lawsuit against Echelon, Chenier, and Travelers to collect the unpaid balance, alleging that SWC provided labor and equipment to the project and that Echelon failed to pay SWC the $122,331.63 outstanding balance. In Paragraph 3 of its Petition, SWC alleged that "Travelers executed a Payment Bond, which is also recorded with the Contract and in which Travelers assumed the role as surety of all claims for labor and material used or furnished in performance of the Contract." On April 20, 2009, Echelon and Travelers, through their counsel, answered the petition, specifically denying the allegations of Paragraph 3. Further, as an affirmative defense in Paragraph 16 of their Answer, Echelon and Travelers alleged that "[t]he claims of SWC against Travelers are barred by the applicable provisions of the payment bond." When SWC, through discovery, in May of 2009, tried to ascertain what provisions of the payment bond allegedly barred SWC's claims, Travelers objected to the request, responding that the document was the best evidence of its contents. On May 28, 2009, counsel for Travelers withdrew. Thereafter, on August 18, 2009, SWC filed a Motion for Partial Summary Judgment and for Sanctions, seeking to have the payment bond declared valid and to sanction Travelers for having wrongfully filed pleadings that it knew or should have known were false and only for delay purposes. Travelers opposed the motion claiming that it was improper in that it sought to compel discovery responses instead of a judgment and, further, that SWC was not entitled to judgment as a matter of law. Travelers also opposed the motion for sanctions contending that its responses were accurate and were made in good faith and upon reasonable belief or inquiry, not with the purpose to cause undue delay. A hearing was held on September 29, 2009, after which the trial court orally ruled, granting SWC's motion for summary judgment and awarding sanctions against Travelers' certifying attorney in the amount of $1,500.00. However, because the certifying attorney was not given notice of the hearing, the matter was reset for November 3, 2009. Meanwhile, on October 5, 2009, SWC settled all claims with Travelers. Upon discovering that SWC and Travelers settled the matter, counsel for SWC withdrew as counsel for SWC on October 20, 2009. Subsequently, after learning that the settlement proceeds were going to be deposited into the registry of the court, SWC's former counsel filed a petition for intervention, on October 23, 2009, urging the court to retain one-third of the settlement amount.[1] At the November 3, 2009 hearing, there was lengthy discussion between the trial 1256 court and counsel for the parties regarding the history of this matter. At the conclusion, the trial court orally reiterated its ruling of September 29, 2009, awarding sanctions, but removed the sanctions against the certifying attorney and sanctioned only Travelers in favor of the mover's attorney. The trial court further granted the parties' motion to dismiss the underlying matter based on the settlement. Judgment on the motion to dismiss was signed on November 5, 2009, specifically reserving the rights of all parties and counsel "to pursue any claims for sanctions."[2] Judgment was signed on November 30, 2009, granting SWC's motion for summary judgment and confirming that the Travelers bond was a valid and enforceable Private Works Act bond under LSA-R.S. 9:4801, et seq.[3] The judgment further granted sanctions and ordered Travelers to pay $1,500.00 in attorney fees to the "Mover's Attorney" and court costs associated with the motion for summary judgment. Travelers appealed the award of sanctions. DISCUSSION At the time that sanctions were imposed in this matter[4], LSA-C.C.P. art. 863 provided, in pertinent part: A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address. B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. * * * D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney's fee. E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction. Article 863 is derived from Rule 11 of the Federal Rules of Civil Procedure.[5]1257 Because there is limited jurisprudence interpreting and applying Article 863, federal decisions applying Rule 11 have provided guidance to Louisiana courts. Sanchez v. Liberty Lloyds, 95-0956, p. 5 (La.App. 1 Cir. 4/4/96), 672 So. 2d 268, 271, writ denied, 96-1123 (La.6/7/96), 674 So. 2d 972. Both Rule 11 and Article 863 apply to the signing of pleadings, motions and other papers, imposing upon attorneys and litigants affirmative duties as of the date a document is signed. The court must determine whether the individual, who certified the document purported to be violative, has complied with those affirmative duties. Id. The obligation imposed upon litigants and their counsel who sign a pleading is to make an objectively reasonable inquiry into the facts and the law. Sanchez, 95-0956 at p. 6, 672 So. 2d at 271. The comments to Federal Rule 11 recognize that the purpose of Rule 11 sanctions is to deter rather than to compensate. Further, as a general rule, an award of attorney fees is a type of penalty imposed not to make the injured party whole, but rather to discourage a particular activity on the part of the opposing party. See Langley v. Petro Star Corp. of La., 01-0198, p. 3 (La.6/29/01), 792 So. 2d 721, 723. Thus, penal statutes are to be strictly construed. Id. In its appeal, Travelers claims that LSA-C.C.P. art. 863 does not provide for sanctions to the "mover's attorney." It asserts that Article 863 is unambiguous and runs only to the benefit of the party and, because SWC settled all claims with Travelers on October 5, 2009, the award of sanctions to SWC's previous counsel was inappropriate. Chenier[6] argues, however, that because LSA-C.C.P. art. 863 D provides that an appropriate sanction "may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney's fee," the language makes no restrictions on sanctions to be imposed, including to whom the sanctions may be awarded. (Emphasis added.) We disagree. Being penal in nature, Article 863 must be strictly construed. The language regarding appropriate sanctions simply addresses one of the possible sanctions that may be imposed upon a party or parties, not to whom they can be paid. A similar conclusion has been reached by our brethren on the fourth circuit in Green v. Wal-Mart Store # 1163, 96-1124, p. 3 (La.App. 4 Cir. 10/17/96), 684 So. 2d 966, 968. There, they concluded that it was error to direct sanctions payable to the client's attorney, rather than to the client, since the article restricts payment of the sanction to the other party or parties. We thus conclude that it was error for the trial court to award $1,500.00 in sanctions to the "Mover's Attorney" in its judgment of November 30, 2009. Further, SWC did not pursue the sanctions claim following its settlement with Travelers, despite the reservation of rights in the judgment of dismissal allowing it to do so. Accordingly, that portion of the judgment awarding sanctions must be vacated.[7] CONCLUSION Based on the above, that portion of the November 30, 2009 judgment of the trial court, awarding sanctions to the "Mover's Attorney" is hereby vacated. Costs of this 1258 appeal shall be shared equally between the intervenor/appellee and Travelers. JUDGMENT VACATED IN PART; MOTION TO STRIKE DENIED. NOTES [1] Former counsel also asked for an increase in the amount of attorney fees awarded as sanctions. [2] We note however that the mere reservation of the right to pursue sanctions cannot confer a right that does not exist under the law. [3] We do not address the propriety of the judgment confirming the validity of the bond, as this issue has not been raised by the parties, nor has it been assigned as error. [4] Louisiana Code of Civil Procedure Article 863 was amended by Acts 2010, No. 540, § 1. [5] Although Rule 11 is worded somewhat differently from LSA-C.C.P. art. 863, that distinction is not pertinent to our discussion herein. [6] Travelers has filed a motion to strike the opposition of Chenier or, alternatively a reply brief. We deny said motion and treat it as a reply brief, and note that our decision is based solely on the record before us and not on argument of counsel. [7] While there may well be merit in the sanctions imposed on Travelers, based on our opinion, that issue is pretermitted.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2496510/	65 So. 3d 1046 (2009) ROBIN KENT HOLT v. BRANDEE RIGGINS HOLT. No. 2080802. Court of Civil Appeals of Alabama. October 23, 2009. DECISION WITHOUT PUBLISHED OPINION Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2496558/	62 So.3d 95 (2011) STATE of Louisiana v. Todd GOHMERT. No. 2011-KK-0497. Supreme Court of Louisiana. April 25, 2011. Denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2515200/	397 F.Supp.2d 726 (2005) UNITED STATES of America v. Ismael Juarez CISNEROS, Defendant. No. CRIM.A. 04-283. United States District Court, E.D. Virginia, Alexandria Division. July 21, 2005. 727 Patricia Giles, Ronald Walutes, Assistant United States Attorneys, United States Attorneys Office, Alexandria, VA, for Plaintiff's Attorneys. James C. Clark, Land, Clark, Carroll, Mendelson & Blair, Alexandria, VA, Nina Ginsberg, DiMuro, Ginsberg & Mook, Alexandria, VA, Sandra L. Babcock, Minneapolis, MN, for Defense Attorneys. MEMORANDUM OPINION LEE, District Judge. THIS MATTER is before the Court on Defendant Ismael Juarez Cisneros's Motion to Suppress Defendant's Statements for Violation of the Vienna Convention on Consular Relations. The Court denied Defendant Ismael Juarez's Cisneros's motion by Order dated February 24, 2005, and issues this opinion to explain that ruling. Defendant Ismael Juarez Cisneros and three co-defendants were charged with (1) Conspiracy to Tamper with a Witness or an Informant, 18 U.S.C. § 1512(k), (2) Conspiracy to Retaliate Against a Witness or an Informant, 18 U.S.C. § 1513(e), (3) Killing a Person Aiding a Federal Investigation, 18 U.S.C. §§ 2 & 1121(a)(2), (4) Tampering with a Witness or an Informant, 18 U.S.C. §§ 2 & 1512(a)(1), and (5) Retaliating Against a Witness or an Informant, 18 U.S.C. §§ 2 & 1513(a)(1). The government filed a Notice of Intent to Seek a Sentence of Death against all four defendants on October 1, 2004. Defendant Ismael Juarez Cisneros, a Mexican national, made statements to detectives from the Alexandria Police Department, the Arlington County Police Department and a special agent of the FBI on June 16, 2004, and to detectives from Alexandria and Arlington on June 22, 2004. Defendant Ismael Juarez Cisneros asserts that these statements should be excluded by the Court because he was not advised of his right to contact the Mexican Consulate, in violation of Article 36 of the Vienna Convention on Consular Relations. See Vienna Convention on Consular Relations ("VCCR," "Vienna Convention"), opened for signature Apr. 24, 1963, 21 U.S.T. 77. The questions before the Court are (1) whether Defendant Ismael Juarez Cisneros has shown that his rights under Article 36 of the Vienna Convention were violated and that he suffers prejudice as a result, and if so, (2) whether exclusion is the proper remedy. The Court denies Mr. Cisneros's motion to suppress for violation of the Vienna Convention because Mr. Cisneros failed to demonstrate that his trial was prejudiced by this violation. In addition, even if his trial were prejudiced, a judicially crafted remedy such as suppression is not appropriate because the 728 VCCR does not confer constitutional rights on defendants. I. BACKGROUND Mr. Ismael Juarez Cisneros Defendant Ismael Juarez Cisneros ("Defendant," "Mr. Cisneros") is a Mexican national who was born and raised in Mexico City, Mexico. His native language is Spanish, and he requires interpretation into English to communicate with his attorneys and the Court. He speaks limited English from his experience as a laborer in the United States. At age seventeen, Mr. Cisneros illegally crossed the border from Mexico into the United States making his way to Washington, D.C. where he worked as a landscaper and unskilled laborer. In June 1999, Mr. Cisneros was arrested for unlawful wounding in Fairfax County, Virginia. He was convicted on October 1, 1999, turned over to INS custody, and deported to Mexico on May 30, 2000. Shortly after deportation, Mr. Cisneros again illegally entered the United States. On November 18, 2003, Mr. Cisneros was arrested following a routine traffic stop in Vienna, Virginia. After determining that Mr. Cisneros was in the United States illegally, the arresting officer contacted an Immigration and Customs Enforcement ("ICE") agent who took Mr. Cisneros into custody. On November 23, 2003, Mr. Cisneros was charged with Illegal Reentry in Violation of 8 U.S.C. § 1326(a) in the United States District Court for the Eastern District of Virginia. On February 1, 2004, Mr. Cisneros pled guilty to a criminal information. On April 4, 2004, Mr. Cisneros was sentenced to a term of 46 months imprisonment. On June 16, 2004, Mr. Cisneros was questioned about the murder of Ms. Brenda Paz ("Ms.Paz"), the victim in this case, by Detectives Victor Ignacio ("Detective Ignacio") of the Alexandria Police Department, Detectives Ricky Rodriguez ("Detective Rodriguez") and Oscar Santiago of the Arlington County Police Department and Special Agent David Solis of the FBI. He was again questioned by Detectives Ignacio and Rodriguez on June 22, 2004. At the beginning of both sessions, Mr. Cisneros was advised of his Miranda rights in Spanish both orally and in writing. The transcript of each session indicates that he read the following declaration out loud, in Spanish, and then signed a written waiver of his Miranda rights, also in Spanish: "I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. No threats, promises, or offers of reward have been made to me." See Govt. Opp'n Def. Cisnero's [sic] Mot. Suppress (hereinafter "Govt Opp'n") Exs. A, B, C & D. During the questioning on June 16, 2004, Mr. Cisneros told the detectives he was born in the Federal District in Mexico on August 21, 1978. In addition, the questioning elicited damaging statements from Mr. Cisneros including what the government contends are facts about the murder, such as who was present and when and how it occurred. At no point in his interactions with the United States criminal justice system, from 1999 until 2004, was Mr. Cisneros told that he could seek assistance from the Mexican Consulate. Mr. Cisneros was indicted for the murder of Ms. Paz on June 24, 2004, and he was arraigned before this Court on July 14, 2004. Ms. Nina J. Ginsberg ("Ms.Ginsberg"), one of two attorneys appointed by the Court to represent Mr. Cisneros, had her first contact with a representative of the Mexican government on July 26, 2004. Ms. Ginsberg spoke with Ms. Sandra Babcock, Esq. ("Ms.Babcock"), lead counsel for the Government of Mexico in the Mexican 729 Capital Legal Assistance Program. Since July 26, 2004, Ms. Ginsberg has received ongoing assistance from Ms. Babcock, Ambassador Edgardo Flores Rivas ("Ambassador Flores Rivas"), the Mexican Consul General in Washington, D.C., and several employees of the Mexican Consulate, Office of Protection, in Washington, D.C. On or about August 24, 2004, Ambassador Flores Rivas wrote to Attorney General John Ashcroft stating Mexico's opposition to the death penalty and requesting that the death penalty not be pursued in the case of Mr. Cisneros. On September 3, 2004, Ambassador Flores Rivas wrote a letter to this Court in support of Mr. Cisneros's first motion to continue the trial date. Laura O. Dietz ("Ms.Dietz") of the Mexican Consulate, Office of Protection, visited Mr. Cisneros at the Arlington County Detention Facility on September 15, 2004. According to Ms. Ginsberg, "[t]he Government of Mexico continues to provide counsel and Mr. Juarez Cisneros with invaluable assistance in the preparation and presentation of this case, both in the United States and in Mexico." Aff. Supp. Mot. Suppress Def.'s Statement Violation VCCR ¶ 6. Mr. Cisneros asserts that his rights under Article 36 of the Vienna Convention on Consular Relations ("Convention," "VCCR") were violated because he was never told that he had the right to contact the Mexican Consulate. In essence, he argues that after the International Court of Justice's ("ICJ") decision in Avena and Other Mexican Nationals (Mex.v.U.S.) 2004 I.C.J. 128 (March 31, 2004) (hereinafter "Avena"), the courts of the United States must provide a judicial remedy for violations of the VCCR; merely apologizing to the detained national's embassy is insufficient to meet treaty requirements. See Mot. Suppress Def.'s Statements at 9 (citing various pre-Avena United States circuit courts of appeal decisions holding that suppression or dismissal of an indictment is an improper remedy for violation of the VCCR). Mr. Cisneros moves the Court to suppress the statements he made to detectives on June 16 and 24, 2004, as a remedy for the alleged violation of the VCCR. As an alternative to suppression, at oral hearing, Mr. Cisneros suggested that the Court could strike the government's Notice of Intent to Seek the Death Penalty. In support of a judicial remedy generally, Mr. Cisneros asserts that while the VCCR is silent on the issue of remedies, the Avena judgment "makes clear that remedies are available for violations of Article 36 and must be provided through judicial proceedings. 2004 ICJ 128 ¶ 141." Def.'s Mot. Suppress Def.'s Statements at 14-19 (emphasis in original). Further, Mr. Cisneros argues that it would be nonsensical to provide no remedy for a violation of the right to consular notification. Id. at 16 (citing, inter alia, Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946)) ("[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief"). In addition, Mr. Cisneros asserts that the remedy for a treaty violation is the status quo ante, that is, the defendant should be put in the position he was in before the violation occurred. Id. at 7 (citing RESTATEMENT (THIRD) OF THE LAW OF FOREIGN RELATIONS 901 (1987)). Consequently, his statement should be suppressed. The government raises numerous arguments in opposition to Defendant Cisneros's motion. The crux of its argument, however, is that (1) Mr. Cisneros has not demonstrated that he suffered any prejudice as a result of the alleged violation of 730 his rights under the VCCR since he has received substantial assistance from the Mexican Consulate since July 26, 2004, and (2) based on existing precedent, including Fourth Circuit precedent, the remedy of suppression is not warranted even if Mr. Cisneros does make out a violation of his rights under the VCCR. The Court held an evidentiary hearing on this motion on January 4 and 5, 2005. During the hearing, Mr. Cisneros testified that he would have contacted the Mexican Consulate had he been alerted to his rights of consular notification. He also testified that he would have followed any advice offered by the Mexican Consulate, including advice not to make any statements to law enforcement. In addition, representatives from the Mexican Consulate testified about the assistance and advice they would have provided to Mr. Cisneros before his police interrogation. II. DISCUSSION The Court denies Mr. Cisneros's motion because he has not shown that his trial is prejudiced by the VCCR violation and because suppression is not the appropriate remedy for a VCCR violation since the VCCR does not confer constitutional rights on defendants. Background on the Convention The United States and several other countries signed the Vienna Convention on Consular Relations in 1963. The United States ratified the treaty in 1969, making it binding on the states and giving it the force of federal law under the Supremacy Clause of the United States Constitution. U.S. Const. Art. VI, cl. 2 ("...and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding"). Article 36(1)(b) of the Vienna Convention states: [I]f he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph. VCCR, Art. 36(1)(b). In addition to the VCCR, the United States also ratified the Optional Protocol to the Vienna Convention concerning the Compulsory Settlement of Disputes, April 26, 1963, 596 U.N.T.S. 487. The Optional Protocol states that "[d]isputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by a written application made by any party to the dispute being a Party to the present Protocol." Id. In other words, the United States agreed to be bound by the decisions of the International Court of Justice as to the VCCR. Both the Optional Protocol and the VCCR are self-executing treaties, and thus, do not require implementing legislation. See Hearing Before the Senate Committee on Foreign Relations, S. Committee on Foreign Relations, S.Exec. Rep. No. 91-9, 91st Cong. At 5 (1st Sess.1969) (statement of J. Edward Lyerly, Deputy Legal Adviser for Admin., U.S. Dep't of State). Nevertheless, the Department of Justice and the Immigration and Naturalization 731 Service enacted agency regulations to ensure compliance with the requirements of Article 36. 8 C.F.R. 236.1(e) (2002) states that every detained alien is to be notified that he or she may communicate with consular or diplomatic officers of his or her country. See also 28 C.F.R. 50.5(a)(1) (2002). In addition, the Department of State has provided guidance to the law enforcement community as to its obligations to foreign nationals under the VCCR. See UNITED STATES DEP'T OF STATE, CONSULAR NOTIFICATION AND ACCESS: INSTRUCTIONS FOR FEDERAL, STATE, AND LOCAL LAW ENFORCEMENT AND OTHER OFFICIALS REGARDING FOREIGN NATIONALS IN THE UNITED STATES AND THE RIGHTS OF CONSULAR OFFICIALS TO ASSIST THEM, available at (hereinafter "Instructions"). The Instructions state that regardless of whether a detainee's country has a mandatory notification agreement with the United States, the foreign national must be told of the right of consular notification and access. The foreign national then has the option to decide whether he/she wants consular representatives notified of the arrest or detention... If the detainee requests notification, a responsible detaining official must ensure that notification is given to the nearest consulate or embassy of the detainee's country without delay. Id. at 14 (emphasis in original). In addition, the State Department's Instructions specify that a law enforcement officer is not required to ask everyone arrested or detained whether he or she is a foreign national. Rather, "[i]f you have reason to question whether the person you are arresting or detaining is a U.S. citizen ... you should inquire further about nationality so as to determine whether any consular notification obligations apply." Id. at 18. According to the same publication, the following kinds of detentions are covered by the VCCR: While there is no explicit exception for short detentions, the Department of State does not consider it necessary to follow consular notification procedures when an alien is detained only momentarily, e.g., during a traffic stop. On the other hand, requiring a foreign national to accompany a law enforcement officer to a place of detention may trigger the consular notification requirements, particularly if the detention lasts for a number of hours or overnight. The longer a detention continues, the more likely it is that a reasonable person would conclude that the Article 36 obligation is triggered. Id. at 19. Giving the Miranda warning alone does not satisfy the requirements of the VCCR according to the State Department. Id. The State Department further states that if a foreign national requests consular officials be notified, "there should be no deliberate delay, and that notification should occur as soon as reasonably possible under the circumstances." Id. at 20. DOS expects consular notification to occur within 24 hours of the request for notification, "and certainly within 72 hours." Id. DOS does not specify what remedies are required when violations of the VCCR occur. Instead, it simply points out that some alien defendants are attempting to obtain judicial remedies or executive clemency. Id. at 22 (providing no perspective on the appropriateness of such remedies). Former Attorney General John Ashcroft acknowledged in a letter to Ambassador Carlos de Icaza of Mexico that criminal defendants have a right to seek judicial remedies for violations of the VCCR resulting in prejudice: Consistent with the opinion of the International Court of Justice in Mexico v. United States of America (Case Concerning 732 Avena and Other Mexican Nationals), Mr. Guerrero is free to argue in the trial court that his rights under Article 36 of the Vienna Convention were violated by a failure to inform him of his right to contact his consulate once it was realized that he was a foreign national or there were grounds to think that he was probably a foreign national and to argue that prejudice resulted from the alleged Vienna Convention violation. Letter of Attorney General John Ashcroft to His Excellency Carlos de Icaza, Ambassador of Mexico, June 3, 2004. The International Court of Justice ("ICJ") has issued two opinions in the last several years that discuss the United States' obligations under the Vienna Convention, LaGrand Case (F.R.G.v.U.S.) 2001 ICJ 104 (June 27, 2001) and Avena. 2004 ICJ 128. In Lagrand, the ICJ held that Article 36(1)(b)'s language "creates individual rights" of consular notification, meaning that when a state does not provide consular notification, that individual's rights are violated. Id. at ¶ 77 (holding, also, that by not informing the LaGrand brothers of their rights of consular notification in a timely fashion, the United States breached its obligations to Germany and to the LaGrand brothers). In addition, the ICJ concluded that the United States violated its obligations to Germany and the LaGrand brothers under Article 36 by "not permitting the review and reconsideration" of the convictions and sentences of the LaGrand brothers. Id. at ¶ 128(4). In Avena, the ICJ made several interpretations of Article 36 that are relevant to this case. First, it held that Article 36's admonition to inform individuals "without delay" of their rights to contact their consulate "cannot be interpreted to signify that the provision of such information must necessarily precede any interrogation, so that the commencement of interrogation before the information is given would be a breach of Article 36." Avena at ¶ 87. Nevertheless, an arresting authority should apprise an individual of his or her rights under the VCCR "as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national." Id. at ¶ 88 (finding a VCCR violation when a Mexican citizen was informed of his consular rights 40 hours after his arrest when the arrest report stated he was born in Mexico). In addition, in the ICJ's view, whether a consulate would have offered assistance is irrelevant to whether a violation of the convention is established. Id. at ¶ 102. The court also considered what are appropriate remedies for a VCCR violation. The ICJ held that the remedy to make good these violations should consist in an obligation on the United States to permit review and reconsideration of these nationals' cases by United States courts ... with a view to ascertaining whether in each case the violation of Article 36 committed by the competent authorities caused actual prejudice to the defendant in the process of administration of criminal justice. Id. at ¶ 121. The ICJ chose not to address a submission by Mexico that applying the exclusionary rule to confessions would be the appropriate remedy in some cases. Instead, the ICJ asserted that United States courts would have to examine the legal consequences flowing from the beach of obligations under Article 36 and remedy them accordingly. Id. at ¶ 127. One of the Mexican nationals whose rights were adjudicated in Avena, Jose Ernesto Medellin, subsequently sought review and reconsideration of his conviction and sentence through a federal writ of habeas corpus. The district court denied his petition for writ of habeas corpus and 733 for certificate of appealability. The Fifth Circuit Court of Appeals also denied the application. The United States Supreme Court granted certiorari in December 2004 to consider the following: first, whether a federal court is bound by the International Court of Justice's (ICJ) ruling that United States courts must reconsider petitioner Jose Ernesto Medellin's claim for relief under the Vienna Convention ... without regard to procedural default doctrines; and second, whether a federal court should give effect, as a matter of judicial comity and uniform treaty interpretation to the ICJ's judgment. Medellin v. Dretke, ___ U.S. ___, ___, 125 S.Ct. 2088, 2089, 161 L.Ed.2d 982 (2005). On February 28, 2005, President George W. Bush issued a memorandum explaining that "the United States will discharge its international obligations under the decision of the International Court of Justice in [Avena], by having state courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision." Mem. From Pres. Bush For Atty. Gen'l., Feb. 28, 2005. As a result of the President's Memorandum, Mr. Medellin filed a writ of habeas corpus in the Texas Court of Criminal Appeals. On May 23, 2005, the Supreme Court held that it had improvidently granted the writ of certiorari since the Texas courts might provide Mr. Medellin with the review he seeks. Medellin, 125 S.Ct. at 2092. In addition, the Court discussed the numerous hurdles that Mr. Medellin would face should he seek federal habeas review after the state court judgment. Id. at 2091-92. Mr. Cisneros Has Failed to Show Prejudice The Court denies Mr. Cisneros's motion to suppress based on violation of the Vienna Convention because, even assuming he has individually enforceable rights under the VCCR and his rights under the VCCR were violated, he fails to show his trial was prejudiced as a result of the violation. The Fourth Circuit has issued no published opinions on direct appeals of denials of motions to suppress, dismiss the indictment or dismiss the death notice for violation of Article 36 of the VCCR. Nevertheless, in ruling on a habeas petition, the Fourth Circuit explained that, assuming without deciding that the VCCR creates individual rights, "it certainly does not create constitutional rights." Murphy v. Netherland, 116 F.3d 97, 99-100 (4th Cir.1997). In its unpublished opinions addressing direct appeals of denial of motions for remedies for violation of the VCCR, the Fourth Circuit consistently holds that a defendant must show prejudice to prevail because no constitutional right has been violated, and the Fourth Circuit has never found a defendant to establish prejudice. See, e.g., United States v. Zhang, No. 99-4901, 2000 WL 951401, at 2 (4th Cir. July 11, 2000) (denying motion to dismiss indictment of Chinese citizen for law enforcement's failure to notify him of his rights to contact the Chinese Embassy because he failed to establish prejudice); United States v. Ediale, No. 98-4834, 1999 WL 991435, at 1 (4th Cir. Nov.2, 1999) (denying motion to suppress statements made to FBI agents by a Nigerian granted political asylum because Defendant had not shown prejudice by testifying that, had he been given the opportunity to contact his consulate, he would have availed himself of it, and the consulate would have informed him of his rights under American law, since the FBI agents advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and he signed a waiver saying he understood those 734 rights); United States v. Salas, No. 98-4374, 1998 WL 911731 (4th Cir. Dec.31, 1998) (holding Defendant did not establish prejudice sufficient to support his motion to suppress because he did not assert how the failure to notify him of his right to contact the consulate of the Dominican Republic would have "affected the outcome of his case"); United States v. Guerrero, 2002 WL 2022629, at 1 (4th Cir. Sept.5, 2002) ("[a]s Guerrero cannot demonstrate and the record does not reveal any prejudice resulting from the failure to inform, we find this contention meritless"); United States v. Beckford, 2000 WL 376155, at 13 (4th Cir.2000) (holding that the defendant was not entitled to have his death penalty notice quashed for violation of the VCCR because he "was not sentenced to death and he has not demonstrated how the failure would have otherwise affected the outcome of his case"); United States v. Maldonado-Vences, 1998 WL 911711 (4th Cir. Dec.31, 1998) (affirming denial of motion to suppress for VCCR violation for no prejudice when Defendant contended he would have contacted the consulate and would have followed directions by the consulate not to make statements to police). Mr. Cisneros's motion to suppress for failure to notify him of his rights under the VCCR is denied because he fails to show his case was prejudiced as a result of the treaty violation. Mr. Cisneros testified at the hearing on the motion to suppress that, had he been given the opportunity to call the Mexican Consulate, he would have heeded consular officials' advice to make no statements to law enforcement. Mr. Cisneros was informed of his right to remain silent by the detectives who interrogated him, in Spanish, yet he still gave extensive, incriminating statements. He assented to waiver of his Miranda rights both orally and in writing. Given these facts, Mr. Cisneros did not meet the burden of showing that he would have listened to the Mexican consulate and that he was prejudiced by the VCCR violation. See United States v. Moreno, 122 F.Supp.2d 679, 683 (E.D.Va.2000) (holding that Defendant did not establish prejudice when he waived his Miranda rights prior to providing a statement). Furthermore, the Mexican Consulate did render valuable assistance to Mr. Cisneros by helping to make witnesses available during the penalty phase of this death penalty trial and by providing assistance to Mr. Cisneros's attorneys. Consequently, because Mr. Cisneros has not made the requisite showing of prejudice, the Court denies his motion to suppress for violation of the VCCR. The district court must adhere to existing precedent in rendering this decision today. The Court concurs with the Fourth Circuit in expressing "disenchantment" with the continued practice of local Virginia police not adhering to the requirements of the VCCR. Republic of Para. v. Allen, 134 F.3d 622, 629 (4th Cir.1998). "There are disturbing implications in that conduct for the larger interests of the United States and its citizens." Id. Judicially Created Remedies Are Not Appropriate for VCCR Violations Even assuming Mr. Cisneros has individual rights under the VCCR, he has standing to assert these rights, his rights were violated, and as a result of the violation his trial was prejudiced, the Court denies Mr. Cisneros's motion to suppress because he is not entitled to the judicially created remedy of exclusion for this treaty violation. In United States v. Li, 206 F.3d 56 (1st Cir.2000), the First Circuit held that regardless of whether the Vienna Convention creates individual rights, suppression of evidence is not an appropriate remedy. Id. at 60. In support of its decision, the First Circuit explained that treaties "do not generally create rights *735 that are privately enforceable in federal courts," and it pointed to a historical presumption against the remedy of exclusion except for violations of "the most fundamental of rights," such as those secured by the Fourth, Fifth, and Sixth Amendments to the Constitution. Id. at 60-61. Although Avena may have altered the first justification set forth by the First Circuit, it has not changed the second justification that exclusion is an extreme remedy reserved for the most important of our rights. See Medellin, 125 S.Ct. at 2091 n. 3 (implying, by stating that it had no final ICJ adjudication before it about whether the VCCR created individually enforceable rights at the time it decided Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998), that now, after Avena, such rights may definitively exist). Similar to the First Circuit, the Fifth, Sixth, Seventh, Ninth, and Eleventh Circuit Courts of Appeals have held that suppression of evidence is not an appropriate remedy for violations of the VCCR. See United States v. Jimenez-Nava, 243 F.3d 192 (5th Cir.2001); United States v. Page, 232 F.3d 536 (6th Cir.2000); United States v. Felix-Felix, 275 F.3d 627 (7th Cir.2001), superseded by statute on other grounds, United States v. Rodriguez-Cardenas, 362 F.3d 958 (7th Cir.2004); United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir.2000); United States v. Cordoba-Mosquera, 212 F.3d 1194 (11th Cir.2000). Although the Fourth Circuit has not directly addressed the question whether judicially created remedies such as suppression are appropriate remedies for a VCCR violation, it has indicated that treaty violations are different than constitutional rights violations. See Murphy, 116 F.3d at 99-100 (stating that violations of treaties are not violations of constitutional rights). Because judicially created remedies are generally reserved for violations of constitutional rights, not rights flowing from treaties, suppression is not an appropriate remedy here. Consequently, the Court denies Mr. Cisneros's motion to suppress. III. CONCLUSION Because Mr. Cisneros fails to establish that the outcome of his trial was prejudiced as a result of the violation of his VCCR rights, and because, even if his trial was prejudiced, judicially created remedies such as suppression or dismissal of a death notice are exclusive to constitutional right violations, the Court denies Mr. Cisneros's motion. For the foregoing reasons, it is hereby ORDERED that Defendant Ismael Juarez Cisneros's Motion to Suppress is DENIED. The Clerk is directed to forward a copy of this Order to counsel of record.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2515203/	202 P.3d 610 (2009) John DOE, Petitioner-Appellee, v. Jane DOE, Respondent-Appellant. No. 28662. Intermediate Court of Appeals of Hawai`i. February 27, 2009. 615 Gary Victor Dubin, on the brief, for Respondent-Appellant. Elizabeth C. Melehan, on the brief, for Petitioner-Appellee. Marianita Lopez, on the brief, Guardian Ad Litem. RECKTENWALD, C.J., WATANABE and LEONARD, JJ. Opinion of the Court by LEONARD, J. Respondent-Appellant Jane Doe (Mother) appeals from a June 19, 2007 order (Final Order) of the Family Court of the Second Circuit (Family Court), which granted sole legal and sole physical custody of the parties' five-year-old child (Child) to Petitioner-Appellee John Doe (Father) and granted Father leave to relocate to the mainland with Child. Mother also challenges two interlocutory orders of the Family Court, a September 23, 2005 ex parte order awarding sole custody to Father (Ex Parte Order), and an August 17, 2006 order granting in part and denying in part Mother's motion to vacate the Ex Parte Order and two purported stipulated orders (Order re Motion to Vacate),[1] as well as the Family Court's findings of fact (FOFs) and conclusions of law (COLs) entered on June 19, 2007.[2] We hold that: (1) Mother's argument that the Ex Parte Order violated her substantive liberty interests and due process rights under the Hawai`i Constitution is not moot because of the significant, unmitigated impact of the Ex Parte Order; (2) under the Hawai`i Constitution, absent express findings of exigent or emergency circumstances, due process requires that a parent be given notice and an opportunity to be heard prior to a change in primary physical or legal custody in family court custody matters; (3) the Family Court erred when it issued a blanket protective order precluding Mother from obtaining any discovery from the guardian ad litem without balancing Mother's legitimate discovery needs in the context of this case against the alleged injury or burden that might result from Mother's discovery; (4) subject to reasonable restrictions and limitations, Mother was entitled to seek discovery from a therapist whose opinions played a critical role in this case and to subpoena the therapist's testimony; (5) the Family Court did not err in excluding expert testimony that lacked foundation; (6) a party's willingness to submit to polygraph testing, as well as the results of such polygraph testing, are inadmissible as evidence in child custody proceedings; (7) in this case, polygraph results substantially contributed to the granting of the Ex Parte Order, triggered Mother's prolonged separation from Child, substantially affected the outcome of the custody proceedings, and were highly prejudicial to Mother in ways that were not adequately addressed by merely excluding those results at trial; and (8) the best interest of a child can be justly and adequately determined only in proceedings that are consistent with the requirements of the Hawai`i Constitution and applicable law. As provided herein, we vacate the Final Order and remand for further proceedings consistent with this opinion. I. BACKGROUND After a "short term," unmarried, relationship between Mother and Father, Child was born in March of 2002. Mother and Father lived together in Father's home during Mother's 616 pregnancy. When Child was approximately five weeks old, Father asked Mother to move out. In June of 2002, Mother and Child moved to California, where they stayed with Mother's father (GJ) and stepmother (KJ) (collectively, the Js) for two weeks before moving into an apartment. During the one-year period that Mother and Child lived in California, GJ provided financial assistance to Mother and the Js babysat for Child while Mother worked and went to school. As later reported by a Guardian Ad Litem (GAL) appointed by the Family Court, KJ also wanted to help Mother "by giving her advice on child care." Mother and the Js became estranged in or about June 2003. Also in 2003, Father petitioned a California court regarding paternity and visitation. On June 5, 2003, with the agreement of both Mother and Father, the California court entered a Conciliation Court Agreement and Stipulated Order Re: Custody and Parenting Plan and a Child Custody Visitation Order Attachment, both of which were incorporated into and made part of a Judgment entered by the California court on June 10, 2003 (California Custody Judgment). The parties stipulated that Father was the biological father of Child, Mother and Father would hold joint legal custody of child, and, upon Mother's moving to Hawai`i with Child (as agreed), Mother would have the care and responsibility of Child, except during Father's time, which was every Tuesday and Thursday, from 3 p.m. to 7 p.m., and the 1st, 2nd, 3rd, and 5th weekend of the month from Saturday at 9 a.m. to 4 p.m. or Sunday 9 a.m. to 4 p.m. (alternating with each weekend visitation). Father's visitation was to be changed to every other weekend, from Saturday at 9 a.m. to Sunday at 4 p.m., upon Child becoming thirty months old or sooner, if the parents agreed that Child was ready. This parenting schedule was further modified by a holiday and vacation schedule. Beginning on June 15, 2003, Father was ordered to pay child support to Mother in the monthly amount of $450, along with 50% of the total child care costs and 50% of the reasonable uninsured health care costs for Child. Various other issues were memorialized and/or addressed in the California Custody Judgment. It appears that Mother and Child moved back to Maui in July 2003 and that Father already resided on Maui at that time. On March 17, 2004, Mother filed pro se a Registration of Child Custody Determination; Custody/Visitation Statement; Exhibit A (California Custody Judgment) in UCCJEA No. 04-1-0003 (2004 Proceeding) in the Family Court.[3] Although the exact timing is unclear, it is abundantly clear that a dispute arose between Mother and Father over visitation and custody of Child, which included, inter alia, allegations by Mother that Father had sexually abused Child. On September 17, 2004, Father filed a petition in the 2004 Proceeding seeking sole physical and legal custody of Child (Sole Custody Motion # 1).[4] Father claimed that Mother was difficult to deal with, refused to make reasonable accommodations for Father's visitation, intended to interfere with his overnight visitation with Child, and falsely accused Father of molesting Child. Father argued, inter alia: "I am now self-employed and have great flexibility in my schedule. I am able to have our [Child] on a full-time basis with reasonable visitation to [Mother]." Father concurrently submitted an ex parte motion to enforce the California Custody Judgment, noting that Child had reached the age of thirty months (days earlier), and seeking to immediately enforce his visitation rights, specifically including overnight visits. On September 21, 2004, this ex parte motion was filed, along with an attached order granting the ex parte motion, without prior notice to Mother. An acknowledgement of service dated September 28, 2004, indicates that Mother was served on September 24, 2004. Prior to Family Court's ruling on 617 Father's ex parte motion, however, on September 18, 2004, Father kept Child overnight following his regular Saturday day visit. When he did not return Child to Mother's care, the police were called and Mother reportedly sought and obtained a temporary restraining order, which was later dismissed. On September 23, 2004, Father caused subpoenas to be issued to the director of Child's preschool (for all records and correspondence pertaining to Child), the Custodian of Records for the Maui Police Department (for all records and reports pertaining to Mother and Father), and two individual police officers. Also on September 23, 2004, the Js filed a motion to intervene for the purpose of allowing them to seek visitation with Child. On September 29, 2004, a hearing was held on Father's Sole Custody Motion # 1 and the Js' motion to intervene. Roughly ten months later, on August 3, 2005, an interim order was entered granting the Js' motion to intervene, ordering the appointment of Jacque Ford as GAL (GAL # 1), and confirming visitation to Father on Tuesday and Thursday afternoons, with overnight visitation subject to the GAL's inspection of Father's residence. An evidentiary hearing was set for January 3, 2005 on the Js' request for visitation and Father's Sole Custody Motion # 1. On December 2, 2004, Father filed a motion for appointment of a new GAL, which also sought a temporary order modifying custody/visitation, an order that Mother submit to psychological evaluation, and to continue trial. A hearing was held on December 15, 2004, but no transcript was provided to this court. A written order, which was entered on August 3, 2005, stated that the parties agreed to the appointment of a new GAL and if they could not agree on a name, they would both submit names of potential appointees to the court. The order also stated that the issue of psychological evaluation was moot because evaluations had already been completed on both parties by Mark Breithaupt, Ph.D. (Dr. Breithaupt), and the parties agreed that the evaluations could be submitted to the court under seal. On January 12, 2005, Father caused subpoenas to be issued to GAL # 1, Ellen Brewerton of Child Protective Services (Brewerton), and Dr. Breithaupt. GAL # 1's Report was filed (under seal) on January 13, 2005, with an addendum filed on January 14, 2005. GAL # 1's report noted disturbing reports from various persons concerning the Js' past conduct, particularly with respect to GJ. GAL # 1 reported "multiple psychological allegations" by Mother and Father and her opinion that Dr. Breithaupt's recommendations "need to be followed," including Father's completion of a parenting class (which Mother had already completed). GAL # 1 recommended that Mother and Father be allowed time, with the assistance of professionals, to learn to co-parent Child, and that the Js "need to take a step back." GAL # 1 opined that "the involvement of [the Js] in this case complicates the ability of [Child's] parents to resolve their issues." It appears that a hearing or hearings were held on January 18 and 24, 2005, but no transcripts were provided to this court. Months later, on August 3, 2005, a "Further Order on Motion for Appointment of a New GAL ..." referencing the January 24, 2005 hearing was entered, ordering, inter alia, that the existing custody/visitation schedule would remain in effect pending the appointment of a new GAL (with the cost of the GAL to be equally shared by Mother and Father) and that a case review and investigation would be conducted by the new GAL. On January 31, 2005, Father filed a "Proposed Order Appointing Guardian Ad Litem," which proposed that attorney Marianita Lopez (GAL # 2 or Lopez) be appointed as the GAL. Father requested that Lopez be appointed at an hourly rate of $200.00, that the parties be equally responsible for her fees and costs, and that Lopez not be limited in the amount of her fees. On February 7, 2005, Mother filed "Proposed Orders Appointing Guardian Ad Litem," which proposed either attorney Mitch Werth or attorney Janice Wolf be appointed as the GAL, both of whom had agreed to a cap of $5,000. However, in the interim, on February 4, 2005, Lopez was appointed as GAL # 2. On March 1, 2005, Father caused another subpoena to be issued to GAL # 1, seeking GAL # 1's entire file, specifically including 618 any information or reports received from Dr. Breithaupt. On March 16, 2005, Lopez filed an interim report, which was to make a recommendation on whether it was in Child's best interests that the Js remain as intervenors in the case. In addition to reporting on the parties' histories and statements, Lopez reported, inter alia, that: [The Js] have funded Father's litigation in California and Maui and have provided him a car for use in Maui and a well-appointed apartment in Kihei. [The Js] also provide emotional support to Father and are in continual contact with him, particularly when [Child] is with Father. This support of Father, and not her, by her own father has angered and hurt Mother. Although Lopez did not see any ulterior motives on the part of the Js, she stated that their support of Father and their legal intervention only complicated matters and fueled the litigation. Lopez recommended that the Js voluntarily withdraw from the case. On April 15, 2005, a stipulation to dismiss the Js' motion to intervene without prejudice was signed by the parties and entered by the Family Court. The Js' financial and other support for Father apparently continued. On May 13, 2005, Father caused subpoenas to be issued to Child Care Connection, Dr. Breithaupt, Kaiser Permanente, Children's Garden Pre-School, Susan Brown, MA, DHS/Child Welfare Services, Verizon Hawai`i, and Meredith Moon, Ph.D. (Dr. Moon). On May 20 and 26, 2005, Father also caused subpoenas to be issued to Cellco Partnership and Dr. William Kepler. On May 20, 2005, Father filed an ex parte motion to enjoin and restrain Mother from removing Child from the island of Maui. This ex parte motion was supported only by a declaration of counsel, which reported statements to counsel by Father and the Js that (three-year-old) Child told them that Mother said they were moving to the mainland and Mother said they were moving to Italy. The ex parte motion was granted, without prior notice to Mother and without a hearing. No hearing was ever held on these allegations, which were repeated in a later (September 23, 2005) ex parte motion.[5] A proof of service dated May 23, 2005, indicates that Mother was served, after-the-fact, at 4:28 p.m. on May 20, 2005. On May 27, 2005, Father filed a motion for immediate change of custody, for temporary restraining order, and other pendente lite relief, seeking inter alia, immediate physical custody, sole legal custody, and suspension or supervision of Mother's visits with Child (Sole Custody Motion #2). This motion was served on Mother and set for hearing on June 8, 2005. On August 3, 2005, the Family Court entered an order reserving Father's requests for an immediate change in custody from Mother to Father, suspension of Mother's "visits" with Child, and court-ordered psychological counseling of Mother and granting, inter alia, Father's request to allow Father to engage the services of a play therapist (ordering the parties to alternate taking Child to therapy), to enjoin and restrain Mother from disseminating confidential information to third parties, and to order Mother to submit to a polygraph test to aid the GAL's investigation of the custody dispute. The order on Sole Custody Motion # 2 set a further hearing on that motion for July 28, 2005 and reset the hearing on Sole Custody Motion # 1 from July 14 and 15, 2005 to November 17 and 18, 2005. On June 28, 2005, Father moved to compel the production of documents from Kaiser Permanente, DHS/Child Welfare Services, Child Care Connection, Dr. Breithaupt, Susan Brown, MA, and for an order to show cause why Dr. Moon and Wendy Choi, Ph.D. (Dr. Choi), should not produce documents pertaining to Mother (as requested in the unfiled, unserved subpoenas to Drs. Moon and Choi, which were submitted with Father's motion). On the same day, June 28, 2005, Father initiated a new proceeding in the Family Court, UIFS No. 05-1-0033 (2005 Proceeding), 619 with the filing of a "Registration of Foreign Support Order," which (again) submitted the California Custody Judgment to the Family Court. On June 29, 2005, Father filed a Motion and Affidavit for Post-Decree Relief in the 2005 Proceeding, seeking to reduce his $450 monthly child support obligation, as well as his obligation to share in child care and health care expenses (Motion to Reduce Child Support). Father stated that, now that he was self-employed, his income had decreased. Father's Income and Expense Statement reflected, inter alia, gross monthly income of $1,700, monthly housing and transportation expenses in the amount of $2,285, including a rent or mortgage payment in the amount of $1,650 (with no car payment, but with monthly car insurance, maintenance and operating expenses), plus personal expense of $1,082 for Father and Child (including child support). Father noted that he was "getting assistance from friends and family," but did not disclose the source or amount of the assistance. Father asserted that Mother was earning $2,500 per month. In her opposition to the Motion to Reduce Child Support, Mother included a June 7, 2005 letter notifying her that she was not meeting her minimum sales quota at her time-share sales job and that she had fourteen days to meet the standard, as well as a July 1, 2005 letter confirming that she was released from her employment on June 21, 2005, and that her monthly earnings for April, May and June of 2005 had been less than $805 per month. Mother also submitted a letter verifying that she started a new job (at a restaurant) on July 3, 2005, with an estimated gross monthly income of $1,450 per month. After various further developments in the 2004 and 2005 Proceedings, discussed below, on March 16, 2006, the Family Court entered an order on the Motion to Reduce Child Support, which ordered Mother to pay $450 monthly child support to Father. In June and July of 2005, Father initiated another wave of discovery, issuing new subpoenas duces tecum and notices of subpoenas of documents in lieu of depositions upon written interrogatories to Buzz's Wharf Restaurant, Consolidated Resorts, Ma'alaea Grill, Beverly Lundquist, Leigh-Anne Leggett, William G. Kepler, M.D. (Dr. Kepler), Annie Reinecke (DHS/CWS), Brewerton, Wendy Choi, Ph.D., and Dr. Moon. On July 28, 2005, a hearing was held on what was described (in the written order) as Father's motion for extended visitation. Although no transcript was provided, it appears that this was a further hearing on the reserved issues stemming from Sole Custody Motion # 2. The order entered on August 8, 2005, provided, inter alia, that Father would have visitation three consecutive nights each week, from Friday to Monday morning.[6] It appears that this order was intended to be an interim order pending the hearing on Sole Custody Motion # 1. On September 23, 2005, Father filed an Ex Parte Motion for Immediate Change of Custody and for Temporary Restraining Order (Father's Ex Parte Motion). Father's Ex Parte Motion included declarations from GAL # 2 and Father. GAL # 2's Declaration referenced a number of reasons for supporting the Father's Ex Parte Motion including, inter alia, four TRO applications by Mother in the prior year seeking orders restraining Father from contact with Mother and/or Child, Mother's purportedly "failed" polygraph tests (reported to GAL # 2 by a third party), and the GAL #2's belief that Mother had coached Child to say "Daddy touched my foony" and otherwise sexualized Child for the purpose of terminating contact between Father and Child. It appears from GAL # 2's Declaration that her belief that Mother was responsible for Child's sexual abuse allegations against Father was based predominantly on a report of a polygraph test given to Mother and the following sequence of events reported by the GAL: (1) on September 2, 2005, Mother provided Brewerton with a number of videotapes 620 (two of which were viewed by GAL #2) in which Child states that Father had sexually abused her, including graphic filming (by Mother) of Child demonstrating what Father allegedly did to her; (2) after a meeting with Brewerton, GAL # 2, Child's therapist (Fisher), police detective Brad Rezents (Rezents), Dr. Moon, and two professionals from the Children's Justice Center, it was agreed that the contents of the videotapes warranted further investigation and a cessation of Father's visitation with Child pending the investigation; (3) Father reportedly agreed to stop visitation and to take "another" polygraph; (4) on September 19, 2005, Rezents requested and Mother agreed to take a polygraph, which reportedly "showed deception," although no details as to the nature of the deception were provided; and (5) on September 20, 2005, Mother sought a TRO against Father, based on allegations of Father stalking Mother.[7] Notably, between the time of the seven professionals' agreement that Father's visitation should be stopped pending further investigation and the GAL's decision to support Father's Ex Parte Motion, the only development in the abuse investigation was the oral report to GAL #2 concerning Mother's polygraph test. In the Ex Parte Order, Father's Ex Parte Motion was granted, without a hearing, by the Family Court on the same day Father's Ex Parte Motion was filed. No notice was provided to Mother prior to the entry of the Ex Parte Order, which awarded sole physical custody to Father and provided that Mother would be allowed supervised or monitored visitation only, as arranged by GAL # 2. On September 30, 2005, after Child was removed from Mother's custody, certified copies of Father's Ex Parte Motion and the Ex Parte Order were served on Mother. The Ex Parte Order did not provide for an immediate post-deprivation hearing and Mother was not otherwise notified of any post-hearing proceeding at which she would have the opportunity to be heard on Father's Ex Parte Motion.[8] As directed in the Ex Parte Order, on September 23, 2005, Child was removed from Mother's custody with the assistance of Maui police. On October 26, 2005, Cheryl R. Brawley, Esq. (Brawley), appeared on behalf of Mother and filed a motion to continue the November 17th and 18th trial on Sole Custody Motion # 1, based on Brawley's recent retention and inability to effectively represent Mother without more time.[9] At about the same time, Father noticed oral depositions of Mother and Ernest R. Heller and issued subpoenas duces tecum to American Savings Bank, First Hawaiian Bank, Cellco Partnership d/b/a Verizon Wireless, Edward F. Clarke, Hawaiian Telcom, Activities 4-Less, Consolidate Resorts, and Fairfield Resorts. On November 7, 2005, a pre-trial order was entered for a trial on November 17 and 18, 2005, consolidating for trial Sole Custody Motion # 1 and Father's Motion to Reduce Child Support. The pre-trial order stated that Mother's motion to continue trial was withdrawn. On November 10, 2005, Father filed a witness and exhibit list identifying forty-seven witnesses and one hundred exhibits. Mother did not file a witness or exhibit list, but issued eleven subpoenas for witnesses at trial 621 (Father issued approximately three dozen trial subpoenas). No trial was conducted on November 17, 2005.[10] Instead, after lengthy off-the-record discussions, Father's counsel represented on the record that an agreement had been reached and stated the purported terms for the record. As Mother's counsel was beginning to state two clarifications, there was a glitch in the recording of the proceedings and no complete transcript is available. On March 16, 2006, orders (prepared by Father's counsel with no approval as to form by Mother or Mother's counsel) were entered based on the agreement purportedly reached by the parties on November 17, 2005 (Purported Stipulated Orders).[11] Mother later stated, in a sworn affidavit, that she understood that any "tentative agreement" made on November 17, 2005 was a continuance of the status quo pending the availability of the prior presiding judge (Judge Polak) and not a permanent resolution of legal and physical custody in favor of Father, as was later argued by Father and reflected in the Purported Stipulated Orders.[12] In the meantime, Mother asked Brawley to withdraw as counsel and attempted pro se to initiate discovery and, on February 13, 2006, sought the removal of Lopez as GAL, based on Lopez's alleged withholding of "critical information" including reports that the polygraph tests cited by Lopez were unreliable (as well as inadmissible), Dr. Breithaupt's report of his psychological evaluation of Father, Dr. Moon's report indicating sexual abuse of Child, as well as allegations that Lopez had assumed a role of advocate for the Js and supported the Js' continued financial involvement in their payment of Father's attorneys' fees, GAL bills, court-ordered monitoring bills, and other payments associated with the case. Mother's motion, which was procedurally improper (filed ex parte and pro se, although her counsel had not yet formally withdrawn from the case), was denied without a hearing. On February 21, 2006, the Family Court also entered an order quashing, without prejudice, subpoenas issued directly by Mother prior to her counsel of record's withdrawal from the case. After Brawley filed a motion to withdraw as counsel, but before an order was entered granting the motion, Mother issued (pro se) another series of subpoenas, including a subpoena to the Js, seeking a broad range of financial information, most but not all of which was related, directly or indirectly, to the Js' financial involvement with Father, Mother, Child, and the various professionals and service providers associated with and/or during the custody dispute. On March 1, 2006, the Js filed a motion for a protective order. On March 6, 2006, Father filed an ex parte motion for protective order and to shorten time for a hearing to strike and quash Mother's discovery and to hold Mother in contempt of court. An ex parte order was entered on the ex parte motion quashing Mother's subpoenas until a further court order and setting a hearing on shortened time. The Js' motion was granted at a hearing held on March 7, 2006. Thereafter, Mother and the Js both submitted forms of a written order regarding the Family Court's granting of the Js' motion for a protective order. Mother also filed an objection to the Js' form of order. The Js' form of order went well beyond the procedural defects in Mother's subpoena to state, as a basis for the protective order, that because Mother and Father "reached an Agreement on the disputed issues of custody and visitation on November 17, 2005," none of the information sought by Mother was relevant to any issue before the court. Notwithstanding that Mother's written objection to the form of order stated that 622 she did not and never would have knowingly agreed to permanently give up custody of Child, the Family Court entered the Js' form of order and (without citation to any authority) sanctioned Mother by ordering her to pay the Js' attorneys' fees incurred in conjunction with the motion for protective order. As noted above, on March 16, 2006, the Family Court entered the Purported Stipulated Orders, based on the "agreement" allegedly reached on November 17, 2005, which Mother steadfastly maintains was never intended by her to be a relinquishment of her custody of Child. It appears from the record that, although Mother maintained steady employment, her financial situation had significantly deteriorated. As she withdrew as counsel, Brawley sought and obtained a "Judgment" from the Family Court against Mother for attorney's fees. The Js referred to Mother as "judgment proof" as they sought monetary sanctions against her related to the improper discovery. GAL # 2 refused to provide records to Mother because she had not paid all of her portion of the GAL fees. There is reference to and a general acknowledgment that Mother had filed for bankruptcy protection. However, there is insufficient information in the record for this court to evaluate whether and to what extent Mother's obligations related to this case may have been discharged.[13] On June 1, 2006, Mother filed a motion for admission of counsel pro hac vice and to substitute counsel. In this motion, Mother sought the admission of three mainland lawyers, who had agreed to act as attorneys pro bono publicus for Mother, and a waiver of Disciplinary Board fees associated with their admission. A Hawaii-licensed attorney agreed to be associated as local counsel solely for the purposes of pro hac vice admission. The Family Court sua sponte granted the motion, but denied the waiver of the fees.[14] On June 23, 2006, through her new counsel, Mother filed a motion to vacate, which sought to vacate the Ex Parte Order and both Purported Stipulated Orders (Motion to Vacate). The Motion to Vacate was primarily based on: (1) due process grounds; (2) the lack of evidence in the record regarding a "meeting of the minds" as to the alleged agreement of November 17, 2005, irregularities in the entry of the Purported Stipulated Orders;[15] (3) the inequitable circumstances of the November 17, 2005 hearing based on the alleged egregious violation of Mother's constitutional rights in conjunction with the ex parte order stripping her of custody of Child, substantially altering her procedural posture in the litigation; and (4) the lack of an appropriate "confirmation hearing" on November 17, 2005 to scrutinize the appropriateness and enforceability of the purported agreement. After further submissions by both parties and an August 10, 2006 hearing, on August 17, 2006, the Order re Motion to Vacate was entered. As to Mother's request to vacate the Ex Parte Order, the Family Court ruled: [Mother's Motion to Vacate] is denied in part for the reason the Ex Parte Order was superseded by the parties having settled the case on November 17, 2005 as reflected by the Court's March 16, 2006, Order. [Mother] readily agrees that some agreement had been reached, but contends that it was temporary in nature, while 623 [Father] contends it was intended to be a permanent order. Regardless of the characterization ascribed to the agreement, for purposes of the status of Ex Parte Order, either a temporary or a permanent order addressing the same issue (custody) as the Ex Parte Order will supersede and extinguish the Ex Parte Order. Therefore, this issue appears moot. As to the Purported Stipulated Orders, the Family Court ruled: [Mother's Motion to Vacate] is granted in part and the [Purported] Stipulated Orders shall be and hereby are vacated. Thus, it appears that the Family Court ruled that, in light of the subsequent order regarding custody, the Ex Parte Order was moot and therefore the court declined to set it aside. The Family Court nevertheless vacated the only other order awarding custody to Father, i.e., the Purported Stipulated Orders. The Family Court did not explain in its written order how the Purported Stipulated Orders could be vacated yet still supersede and moot the Ex Parte Order. The Family Court's decision necessarily left the Ex Parte Order in place as the operative order regarding the custody of Child. In addition, the Family Court ordered a further hearing to set a new trial date for Sole Custody Motion # 1 and Father's Motion to Reduce Child Support. On August 24, 2006, the Family Court set a pre-trial conference for February 1, 2007 and a trial setting for February 8, 9, and 12, 2007. On August 29, 2006, Mother filed a Notice of Appeal from the Order re Motion to Vacate. On November 15, 2006, the Family Court entered Findings of Fact and Conclusions of Law regarding the Order re Motion to Vacate. On January 3, 2007, the Intermediate Court of Appeals dismissed Mother's appeal for lack of appellate jurisdiction because the Order re Motion to Vacate was not a final order and was not certified for interlocutory appeal. A motion to continue the February 2007 trial for lack of Family Court jurisdiction, initiated prior to this court's denial of Mother's motion for reconsideration of the dismissal of the appeal, appears to have been granted. Father initiated a further subpoena duces tecum to Mother's employer and Mother sought records from Child's preschool. On March 21, 2007, Father filed a motion for leave to relocate to the mainland with minor child (Motion to Relocate). In a declaration submitted with the Motion to Relocate, Father stated, inter alia, that: (1) he wanted to relocate to California as soon as possible; (2) Father had been offered a job with a (named) real estate appraisal company in California; (3) Father and Child would be living with a (named) family friend at a (specified) Costa Mesa, California, address; (4) upon approval of relocation, Child would be registered in the Costa Mesa elementary school identified in Father's declaration; (5) relocation would allow Child to be near family and friends of both Father's and Mother's (including the Js); and (6) the real estate appraisal job would allow Father to establish himself, become financially secure and provide for Child.[16] By the time the Motion to Relocate was heard on May 31 and June 1, 2007, along with other outstanding matters, Father testified that his reason for relocating was "family support." Although just two months had passed since Father's initial declaration regarding relocation, Father also 624 testified that: (1) Father intends to live with his mother and step-father, who live in Orange County, until he finds a place of his own; and (2) until he can finish the testing requirements to work for a real estate appraiser, he has "several jobs lined up in the construction industry." It appears that the particulars of Child's education in California were yet-to-be-determined. In May of 2007, Mother issued subpoenas duces tecum to PACT (the agency that had been designated by the Family Court to supervise visits between Mother and Child) and Sherri Fisher, MA, an expressive arts therapist, who was Child's therapist (Fisher). Mother also served a discovery request, including interrogatories and a request for documents, on Lopez. On May 24, 2007, Lopez filed a motion for protective order seeking not only to protect Lopez from Mother's discovery attemptsunless Mother paid Lopez in advance for the time to be expended to comply with the request[17]but also to disallow Mother any discovery from Fisher. Although Lopez's reports and trial testimony relied on information and opinions provided to Lopez by Fisher, Lopez maintained that Mother was bound by a pre-engagement agreement (which was apparently unwritten and communicated to Fisher through Lopez) that Fisher would be "protected" from litigation, such as depositions, subpoenas, requests for documents, etc. Mother opposed the motion for protective order, arguing, inter alia, that the request for documents was necessary to Mother's cross-examination of Lopez on the basis for the GAL's report, which recommended that Father be awarded custody of Child. In an attempt to secure the documents only, Mother twice narrowed her discovery requests, and offered to completely withdraw her request for answers to interrogatories if the requested documents would be provided. On May 31 and June 1, 2007, the Family Court conducted a hearing and trial on the GAL's motion for a protective order, Father's Motion to Relocate, custody of Child, and, nominally, on whether the Ex Parte Order was unconstitutional. In the first instance, the Family Court granted Lopez's motion for a protective order and denied Mother any discovery from either Lopez or Fisher. The court deferred ruling on Mother's "Motion for Hearing to Dissolve or Modify Ex Parte Custody" until after hearing the evidence on the custody issues.[18] Over the course of two days, the Family Court heard the testimony of Jamie Baldwin,[19] Lopez, Father, Dr. Breithaupt, Mother, Dr. Moon, and Karina Coronesi.[20] At the conclusion of the trial, the Family Court instructed the parties to submit proposed findings of fact and conclusions of law, in lieu of making closing arguments, and set a further hearing for June 22, 2007 to orally announce the court's decision. On June 19, 2007, the Family Court entered: (1) the Final Order; and (2) the Family Court's FOFs and COLs. At the June 22, 2007 hearing, the Family Court explained its decision to award custody to Father and to grant the Motion to Relocate, as follows: [T]he Court agrees that both [Mother] and [Father] are very capable parents. I mean, the record shows that they are both 625 lovable, they love [Child] very much, they have done all they can for their child. And that's what makes this a difficult case. But the Court has to make that decision. And when the Court makes that decision, it determines what is in the best interest of the child, it must consider all the evidence and determine what iswhat the weight must be given to the evidence. In this case the Court, as I stated, and the findings of fact and conclusion [sic] of law places great weight to the testimony of [Lopez], who has worked in that capacity on this case since February 2005 and thoroughly investigated, reviewed records, interacted with the parties, interviewed and consulted with other professionals throughout the case. And although defendant has argued that the GAL may be biased and has questioned her objectivity, the Court finds to the contrary, that Ms. Lopez initially in this case did not recommend a change in custody. Custody should have remained with [Mother]. But after a while, after through her investigation [sic], again, like I said, she did change her mind. And I think the reason why the recommendation was changed is [Father] had to prove himself. And he had to overcome many obstacles to do that. And, especially, the false allegation of sexual abuse. So I think he has done that. He has shown that through his actions and through the history of this case that, in his decision to relocate, he has done that in the best interest of the child, and where [he] will be better situated for [Child] in all aspects of the child's well-being. And the Court finds that it has been established by substantial evidence in accord with Fisher v. Fisher. And during the trial, [Mother] has shown through her exhibit, one exhibit specifically, Respondent's 2, which has been labeled Exhibit R-2, should show a happy picture of her with the child at the birthday party. But [Father] has shown, through his actions and his diligence, on a daily basis, that he has and will continue to nurture and to ensure that [Child] will thrive in his custody. And [it is] in [Child's] best interest that he continue to have sole custody of [Child] and be allowed to relocate to California. Mother timely filed a notice of appeal on July 19, 2007. It appears that, shortly after the Family Court's decision, Father moved to California because, on August 15, 2007, Mother filed an ex parte motion to enforce visitation rights. In this motion, which was granted by the Family Court, Mother sought the court's assistance in ensuring that Mother would be allowed to proceed with her allowed "monthly" visitation with Child, in California, on the weekend that a visitation supervisor was available and Mother had made work, travel, and supervision arrangements. II. POINTS OF ERROR Mother raises the following points of error: 1. The Family Court erred in failing to find that the Ex Parte Order was unconstitutional and in finding that the constitutionality issue was moot; 2. The Family Court erred in denying Mother all discovery requested from GAL # 2 and Fisher and in disallowing testimony by Dr. Breithaupt on his opinion concerning the factual basis for Fisher's conclusions; 3. The Family Court erred in admitting into evidence offers to take polygraph tests and crediting GAL # 2's recommendations based in part on the results of polygraph tests; 4. The Family Court erred in failing to establish a specific visitation schedule, in imposing "vague and impossible" conditions for resumption of unsupervised visitation, including therapy for conditions that the uncontradicted expert testimony at trial stated that she did not have; and 5. The Family Court erred in entering FOFs 9, 14, 86, 89, 105, 106, 109, 114, 116, 130, 134, 185, 186, 191, 208, 213, 218, and 219. III. APPLICABLE STANDARDS OF REVIEW Mootness is an issue of subject matter jurisdiction. "Whether a court possesses subject matter jurisdiction is a question of 626 law reviewable de novo." Kaho'ohanohano v. Dep't of Human Serv., 117 Hawai`i 262, 281, 178 P.3d 538, 557 (2008) (citation and internal quotation marks omitted). "We answer questions of constitutional law by exercising our own independent judgment based on the facts of the case. Thus, we review questions of constitutional law under the right/wrong standard." State v. Fields, 115 Hawai`i 503, 511, 168 P.3d 955, 963 (2007) (internal quotation marks, citation, and ellipsis omitted). "[A] trial court's FOFs are subject to the clearly erroneous standard of review." Ueoka v. Szymanski, 107 Hawai`i 386, 393, 114 P.3d 892, 899 (2005) (citations omitted). An FOF is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction in reviewing the entire evidence that a mistake has been committed. An FOF is also clearly erroneous when the record lacks substantial evidence to support the finding. We have defined substantial evidence as credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion. Bremer v. Weeks, 104 Hawai`i 43, 51, 85 P.3d 150, 158 (2004) (quoting Beneficial Hawai`i, Inc. v. Kida, 96 Hawai`i 289, 305, 30 P.3d 895, 911 (2001)). [The appellate] court reviews the trial court's COLs de novo. A COL is not binding upon an appellate court and is freely reviewable for its correctness. Moreover, a COL that is supported by the trial court's FOFs and that reflects an application of the correct rule of law will not be overturned. Bhakta v. County of Maui, 109 Hawai`i 198, 208, 124 P.3d 943, 953 (2005) (internal quotation marks, citations, and brackets in original omitted). Generally, the family court possesses wide discretion in making its decisions and those decisions will not be set aside unless there is a manifest abuse of discretion. Thus, we will not disturb the family court's decisions on appeal unless the family court disregarded rules or principles of law or practice to the substantial detriment of a party litigant and its decision clearly exceeded the bounds of reason. Fisher v. Fisher, 111 Hawai`i 41, 46, 137 P.3d 355, 360 (2006) (quoting In re Doe, 95 Hawai`i 183, 189-90, 20 P.3d 616, 622-23 (2001)). We review a trial court's granting of a protective order for an abuse of discretion. See, e.g., Kukui Nuts of Hawaii Inc. v. R. Baird & Co., Inc., 7 Haw.App. 598, 620-21, 789 P.2d 501, 515 (1990). IV. DISCUSSION A. The Ex Parte Order 1. The Issue of the "Constitutionality" of the Ex Parte Order Is Not Moot In its June 19, 2007 FOFs and COLs, the Family Court concluded: The issue of whether this Court's September 23, 2005 Ex Parte order is unconstitutional is moot, as the parties have now had the hearing on the issues of custody and visitation as raised in the September 17, 2004 Motion and the September 23, 2005 Ex Parte Order. As discussed below, the constitutional issues implicated in this case include both Mother's substantive liberty interest in the care, custody, and control of her child and her procedural due process right not to be deprived of a liberty interest without reasonable notice and a meaningful opportunity to be heard. We consider whether the "constitutionality" of the Ex Parte Order is moot in light of applicable precedent stating: The mootness doctrine is said to encompass the circumstances that destroy the justiciability of a suit previously suitable for determination. Put another way, the suit must remain alive throughout the course of litigation to the moment of final appellate disposition. Its chief purpose is to assure that the adversary system, once set in operation, remains properly fueled. The doctrine seems appropriate where events subsequent to the judgment of the trial court have so affected the relations between the parties that the two conditions 627 for justiciability relevant on appealadverse interest and effective remedyhave been compromised. Hamilton v. Lethem, 119 Hawai`i 1, 5, 193 P.3d 839, 843 (2008), quoting Lathrop v. Sakatani, 111 Hawai`i 307, 312-13, 141 P.3d 480, 485-86 (2006) (internal citations omitted) (format altered); see also In re Doe Children, 105 Hawai`i 38, 57, 93 P.3d 1145, 1164 (2004) (stating that "the two conditions for justiciability relevant on appeal [are] adverse interest and effective remedy"). The Family Court's mootness determination rests on the fact that the court eventually held a hearing on the issues of custody and visitation.[21] In essence, the Family Court ruled that any failure of due process in the initial custody determination was remedied and, therefore, mooted by the hearing that was held approximately twenty months later. Mother argues that, under the circumstances of this case, that remedy was inadequate because of the collateral consequences of the Ex Parte Order. Mother also argues that the central issue in this appeal, whether a parent can be deprived of his or her liberty interest in the care, custody, and control of his or her child, without prior notice and an opportunity to be heard, is a matter that affects the public interest and, therefore, falls within the public interest exception to the mootness doctrine. Finally, Mother argues that the issue remains justiciable on appeal because an effective remedy is available in this case: a new trial untainted by the impacts of the Ex Parte Order. The Ex Parte Order, which awarded full legal and physical custody to Father and allowed Mother only weekly supervised visits with then three-year-old Child unquestionably affected the outcome of the hearing on custody and relocation. This impact is directly evidenced by the Family Court's FOFs, including the following: 9. Based upon the information provided in the September 23, 2005 Ex Parte Motion, including the Declaration of the Guardian Ad Litem In Support Of a Change in Physical Custody, this Court found that an immediate change in custody was in the best interests of the minor child to insure the safety and welfare of the minor child, pending further hearing.[22] . . . . 124. This court granted [Father's] September 23, 2005 ex parte motion and issued is [sic] ex parte order. 125. Since that September 23, 2005 order, [Father] has had sole physical custody of [Child] and [Mother] has had supervised visits only at PACT in Wailuku.[23] 126. Since the September 23, 2005 order, it appears that [Child] has thrived while in [Father's] care. 628 . . . . 131. Ms. Fisher reported that [Father] has been working on strengthening his parenting skills. 132. Ms. Fisher reported that [Father] is doing a great job in parenting [Child]. 133. Ms. Lopez opined that her investigation has lead [sic] her to conclude that [Child] is happy, settled and very much connected to [Father]. . . . . 151. [Father] testified that [Child] and he are basically here on Maui alone, since [Mother's] access has been so limited and she has not shown that she really wants to co-parent. . . . . 168. On Maui, [Father] is [Child's] sole caregiver. Except for the times that [Child] is in school, [Father] has no respite, as [Mother] only has supervised visits. . . . . 170. The fact that [Father] has [Child] nearly all of the time without family support has hindered [Father's] ability to establish himself financially. . . . . 208. This court finds that there has been no compelling evidence to controvert Ms. Lopez's conclusions regarding custody, visitation and relocation. 209. The credible evidence is that [Child] has thrived in [Father's] sole custody since September 2005. 210. The credible evidence is that [Child] is well taken care of by [Father] and that they have a bonded, close, loving and nurturing relationship. 211. [Father] should continue to have sole physical custody of [Child]. The impact of the Ex Parte Order on the outcome of the custody and relocation issues is further demonstrated in the Family Court's comments when it announced its ruling on June 22, 2007: ... And the Court agrees that both [Mother] and [Father] are very capable parents. I mean, the record shows that they are both lovable, they love [Child] very much, they have done all they can for their child. And that's what makes this a difficult case. But the Court has to make that decision. And when the Court makes that decision, it determines what is in the best interest of the child, it must consider all the evidence and determine what is-what the weight must be given to the evidence. In this case, the Court, as I stated, and the findings of fact and conclusion [sic] of law places great weight to the testimony of [Lopez][.] . . . . And during the trial, [Mother] has shown through her exhibit, one exhibit specifically, Respondent's 2, which has been labeled Exhibit R-2, should show a happy picture of her with the child at the birthday party. But [Father] has shown, through his actions and his diligence, on a daily basis, that he has and will continue to nurture and to ensure that [Child] will thrive in his custody. And in [Child's] best interest that he continue to have sole custody of [Child] and be allowed to relocate to California. Clearly, the Ex Parte Order's change of this pre-school-age child's custody from Mother, as the primary custodial parent, to Father, as the sole custodial parent, had a significant and substantial impact on the Family Court's decision to order that Father should "continue" to have sole physical custody and be allowed to relocate to California with Child, while Mother (a Maui resident) would be allowed supervised visits with Child in California, as often as once per month, at Mother's expense. We conclude that, although a hearing was ultimately held on the custody issues in this case, in light of the significant, unmitigated impact of the Ex Parte Order on the outcome of that hearing and the availability of an effective remedy through this appeal, the issues concerning the constitutionality of the Ex Parte Order are not moot. Even if the constitutional issues were considered to be moot because of the conduct of the custody hearing, the collateral consequences exception to the mootness doctrine is applicable 629 in this case. See Hamilton, 119 Hawai`i at 7, 193 P.3d at 845.[24] 2. Mother's Fundamental Liberty Interest and Right to Procedural Due Process A parent's right to the "care, custody and control" of his or her child is a fundamental liberty interest protected by the United States Constitution. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) ("[T]he interest of parents in the care, custody, and control of their childrenis perhaps the oldest of the fundamental liberty interests recognized by this Court."). Hawai`i too has long recognized that parents have a substantive, fundamental liberty interest in raising their children. We affirm, independent of the federal constitution, that parents have a substantive liberty interest in the care, custody, and control of their children protected by the due process clause of article 1, section 5 of the Hawai`i Constitution. Parental rights guaranteed under the Hawai`i Constitution would mean little if parents were deprived of the custody of their children without a fair hearing. . . . . Furthermore, the Supreme Court has said that parental rights cannot be denied without an opportunity for them to be heard at a meaningful time and in a meaningful manner." In re Doe, 99 Hawai`i 522, 533, 57 P.3d 447, 458 (2002); see also Doe v. Doe, 116 Hawai`i 323, 334-35, 172 P.3d 1067, 1078-79 (2007) (citing several Hawai`i cases recognizing that parents have a fundamental liberty interest in the companionship, care, custody and management of their children); In re Doe, 77 Hawai`i 109, 114-15, 883 P.2d 30, 35-36 (1994) (recognizing parents' fundamental liberty interest in the care, custody, and management of their children). There is no question that Mother had a fundamental liberty interest in her right of care, custody, and control of Child. Thus, under the Fourteenth Amendment of the United States Constitution and article 1, section 5 of the Hawai`i Constitution, the State may not deprive her of this interest without providing a fair procedure for deprivation. See In re Doe, 108 Hawai`i 144, 118 P.3d 54 (2005); In re Doe, 99 Hawai`i at 533, 57 P.3d at 458; see also In re Doe Children, 85 Hawai`i 119, 123, 938 P.2d 178, 182 (App. 1997). "At its core, procedural due process of law requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner before governmental deprivation of a significant liberty interest." State v. Bani, 97 Hawai`i 285, 293, 36 P.3d 1255, 1263 (2001) (citations omitted). Mother argues that the Ex Parte Order deprived her of custody of Child without the constitutionally required procedural protections. We agree. Although due process is not a fixed concept requiring specific 630 procedures in every situation,[25] under Hawai`i law, due process generally requires that notice and an opportunity for an appropriate hearing be afforded before deprivation of the protected liberty interest, except in emergency situations. See, e.g., Slupecki v. Admin. Dir. of Courts, 110 Hawai`i 407, 413, 133 P.3d 1199, 1205 (2006) (requiring prior notice of process allowing petitioner to seek to set aside default in administrative driver's license revocation proceedings); State v. Bani, 97 Hawai`i 285, 298, 36 P.3d 1255, 1268 (2001) (convicted sex offender entitled to notice and opportunity to be heard on the issue of whether he posed a threat to the community prior to public notification of his status as a sex offender); accord Brokaw v. Mercer County, 235 F.3d 1000, 1020 (7th Cir.2000) ("Minimally, [due process] also means that governmental officials will not remove a child from his home without an investigation and a pre-deprivation hearing resulting in a court order of removal, absent exigent circumstances."); Hollingsworth v. Hill, 110 F.3d 733, 739 (10th Cir.1997) ("Removal of children from the custody of their parents requires pre-deprivation notice and a hearing except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.") (internal quotation marks and citation omitted). The Family Court did not specify upon which legal authority the Ex Parte Order was issued. Mother was not provided notice or an opportunity to be heard before the Ex Parte Order was issued. The Family Court did not make any findings in support of the Ex Parte Order, much less a finding of exigent circumstances or immediate, imminent, irreparable harm to warrant deprivation without a hearing. The Family Court did not, at any point in the proceedings, set a post-deprivation hearing at which evidence was taken on the contentions raised in Father's Ex Parte Motion. See, e.g., Brown v. Thompson, 91 Hawai`i 1, 12 n. 13, 979 P.2d 586, 597 n. 13 (1999) ("Where extraordinary circumstances justify dispensing with a pre-deprivation hearing ... a prompt post-deprivation hearing must be provided.") (emphasis added); see also Jordan by Jordan v. Jackson, 15 F.3d 333, 343 (4th Cir.1994) ("[I]t is well-settled that the requirements of process may be delayed where emergency action is necessary to avert imminent harm to a child... provided that adequate post-deprivation process to ratify the emergency action is promptly accorded.") (internal citations omitted); O'Donnell v. Brown, 335 F. Supp. 2d 787, 813 (W.D.Mich.2004) (as this case involved no emergency, post-deprivation remedies for removal of children were inadequate and parents suffered a procedural due process violation). Although a hearing was later held on the issues of custody and visitation generally, by then, the die was cast. Father was the custodial parent and Mother's contact with Child had been reduced to infrequent, supervised visits of short duration. We hold that, under the Hawai`i Constitution, absent express findings of exigent or emergency circumstances, due process requires that a parent be given notice and an opportunity to be heard prior to a change in primary physical or legal custody in family court custody matters such as this one.[26] Absent evidence that harm is likely to result from the delay necessary to set a hearing, no parent involved in a custody dispute should have his or her child removed by the police, without notice of the grounds for removal and an opportunity to be heard on the charges. As evidenced by this case, custody disputes are particularly susceptible to dueling allegations of misconduct and abuse. Absent a true emergency, ex parte custody proceedings can provide fertile ground for a misuse of the judicial process. We further hold that, if a family court determines that an emergency situation requires an immediate change of custody, then the ex parte order changing custody 631 must include notice of: (1) a post-deprivation hearing, promptly set; and (2) the grounds for this extraordinary measure. A parent deprived of custody in this manner must be given a prompt and meaningful opportunity to address the allegations supporting the immediate change of custody. Under the facts of this case, we are unable to conclude that the violation of Mother's constitutional rights was harmless. B. The Protective Order The protective order entered by the Family Court on June 22, 2007 (Protective Order), states, in relevant part: 1. [GAL #2]'s Motion for Protective Order filed on May 24, 2007 is granted as to the discovery requests made by [Mother] on or about May 4, 2007 to [GAL #2] and as to subpoenas issued to [Fisher] on or about May 16, 2007. 2. The discovery is not permitted. Mother alleges that the Family Court erred in disallowing her any discovery from Lopez and Fisher. HFCR Rule 26(c) provides: (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the circuit where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ... As the moving party, Lopez had the burden of showing good cause to support the issuance of a protective order. See, e.g., 8 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2035 (1994); In re Terra Int'l Inc., 134 F.3d 302 (5th Cir. 1998); Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir.1995).[27] In determining whether good cause exists for issuance of a protective order under HFCR Rule 26(c), "the court must balance the requesting party's need for information against the injury that might result if uncontrolled disclosure is compelled." Brende v. Hara, 113 Hawai`i 424, 431, 153 P.3d 1109, 1116 (2007) (citations omitted). In this case, determining whether there was good cause for the issuance of the blanket protective order required a balancing of Mother's legitimate discovery needs in the context of this case against the injury or burden that might result to Lopez and Fisher from being required to respond to any of Mother's discovery requests. 1. Discovery from Lopez We first consider Mother's request for discovery from Lopez. Mother served Lopez with interrogatories concerning, inter alia, her communications with Father, the Js, the Family Court (including any ex parte communications), Dr. Moon, and others, payments received from or on behalf of Father, various facts, information, and communications related to Father's Ex Parte Motion and Lopez's opposition to the Motion to Vacate, and other queries related to opinions, documents, and information relied on or discounted by Lopez. Mother's request for documents included the documents in Lopez's GAL file or files in this matter, draft GAL reports, documents received from any therapist or service provider, records concerning her time spent on this matter, documents related to her communications with Father and with DHS, and any documents regarding Father's history of domestic violence. In her attempts to reach a compromise with Lopez, Mother ultimately offered to withdraw all interrogatories and all document requests, except the first one, which sought access to Lopez's GAL file or files in this matter. Lopez raised no objection to the discovery sought based on relevance, privilege, or other substantive grounds; rather, she primarily 632 objected on the grounds that Mother had paid only a de minimis portion of her GAL's fees and requested that Mother be required to "advance at least $1600 for [Lopez's] time to comply with [Mother's] request"[28] or that the discovery be denied. Lopez's declaration stated, in part: 14. I have continued to do my work as GAL, via investigation, court appearances on Maui, writing of reports and correspondence, attendance at meetings, contacts with collateral sources, with PACT and with other supervisors to supervise visits between [Mother] and [Child]. My total GAL fee to date is $30,981.00. 15. I expect to be paid for my work. [Mother] has violated the court order by failing to pay what she owes me. [Mother] now expects me to continue to work on her behalf, without pay. 16. It is an undue burden and expense for me to comply with [Mother's] discovery requests. We note that neither the Lopez Declaration nor the record in this case contain any invoices or other records concerning the requested GAL fees. It does not appear that the GAL fees were submitted to or approved by the Family Court and, in response to the motion for protective order, Mother stated that she had never received any invoices from Lopez. Mother also claimed to have paid Lopez more than the amount reported to the court by Lopez. It is unclear how much of Mother's half of the purported $30,981 in GAL fees was discharged in bankruptcy. In its oral ruling on Lopez's motion for protective order, the Family Court stated: The Court notes that there is a prior court order where the Courtand the parties, by agreement, where the GAL and the therapist werecould be restricted as far as discovery and cross-examination. And although, [Mother's counsel], you have argued, and I note in your memo in opposition, that the GAL failed to include certification, that she attempted to resolve this dispute in good faith underand you cite Hawaii Family Court Rule 26(c)looking at the GAL's declarationand I am referring to paragraph seven and eleven shows that there was good faith attempts by her to resolve this with you. And, also, her arguments in court. And as far as your argument that the GAL [sic] must comply with the subpoena, and you cited Hawaii Family Court Rule 45(b) in your memo in op, you know, the court may quash a subpoena if it's unreasonable or oppressive, and it seems like that's what happenswhat happened before with the prior judge regarding a subpoena.[29] The Court notes, again, based on the agreement, which was pursuant to court order, and agreed to by all parties, that the GAL's duties do not include responding to discovery requests. The GALand I would note based on the evidence todaywas only paid $75 by your client. And theher total bill was over $30,000. I am not saying that [is] a reason why I am denying it. That's just another factor to consider. And, again, that Subsection D of the court order says that the court may restrict discovery and cross-examination of the GAL and any therapist. And the factors will include harm to the child, harassment of litigious parties, depletion of marital and personal resources. I think all of those factors apply in this case. So I am going to grant the Motion for Protective Order regarding discovery requests by both the GAL and the therapist Sherry Fisher at this time. The record does not reflect any balancing of Mother's need for discovery from Lopez against Lopez's claim that she needed to be advanced $1,600 for the time 633 she anticipated it would take to respond to (limited) interrogatories and document requests (even though Mother had waived the interrogatories and reduced her document request to a single request). Even in the absence of a prior order, a court may restrict discovery. However, that discretion does not supplant the requirement to weigh a party's legitimate discovery needs. See Brende v. Hara, 113 Hawai`i at 431, 153 P.3d at 1116. As the motion for protective order did not cite any harm to the child or harassment, it seems that the determinative issue was Mother's failure to pay the outstanding GAL fees.[30] We consider the relevance or potential relevance of Lopez's files to Mother's position in this case. Lopez was, without question, Father's key witness in the case. Lopez filed two GAL Reports that included no supporting documents, written communications, or opinions, instead referencing a variety of contacts and materials relied on by her. Lopez's testimony occupied nearly all of the first day of the two-day trial. Lopez recommended that Father be granted sole legal and physical custody of Child and recommended approval of Child's relocation to California with Father. The Family Court accorded "great weight" to her testimony and, in ruling in favor of Father, found that there was "no compelling evidence to controvert [Lopez's] conclusions regarding custody, visitation and relocation."[31] Under the circumstances of this case, Mother was entitled to review the documents and materials relied upon by Lopez, as well as any documents and materials provided to and discounted by Lopez. See, e.g., Kelley v. Kelley, 175 P.3d 400, 403 (Okla.2007) (parties in a custody proceeding have the right to cross-examine the GAL and to seek discovery concerning the basis for a custody recommendation);[32]In re 634 Hoffman, 97 Ohio St. 3d 92, 776 N.E.2d 485, 489 (2002) ("[I]n a permanent custody proceeding in which the guardian ad litem's report will be a factor in the trial court's decision, parties to the proceeding have the right to cross-examine the guardian ad litem concerning the contents of the report and the basis for a custody recommendation."); In re Kosek, 151 N.H. 722, 871 A.2d 1, 7 (2005) ("[T]he right to be heard in custody and visitation cases encompasses the right to call and cross-examine witnesses, to be informed of all adverse evidence, and to challenge such evidence."); In re Dolly D, 41 Cal. App. 4th 440, 446-47, 48 Cal. Rptr. 2d 691, 695-96 (1995) (holding that the trial court deprived Father of due process when it prohibited cross-examination of the author of a "highly conclusory" report regarding custody). Although it might have been a reasonable exercise of the Family Court's discretion to condition the production on payment of Lopez's hourly fees and any costs related to the production, on the evidence and argument before the Family Court, it was unreasonable to deny production entirely based on Mother's failure to pay past, uncertified, possibly uninvoiced fees, some of which had been discharged in bankruptcy. Other remedies were available to address unsatisfied GAL fees. Indeed, in the February 3, 2005 Order Appointing [Lopez as] Guardian Ad Litem, the Family Court erroneously stated that "[p]roceeding to trial automatically will be certified as sufficient cause to compensate the GAL beyond the statutory maximum." It appears that this language was intended to avoid the requirement that the court review and certify the necessity of any payment to Lopez in excess of the statutory maximum. At all times relevant to this case, HRS § 571-87(b) (2006) stated, in relevant part: § 571-87. Appointment of counsel and guardian ad litem; compensation. ... (b) The court shall determine the amount of reasonable compensation to appointed counsel and guardian ad litem, based on the rate of $40 an hour for out-of-court services, and $60 an hour for in-court services with a maximum fee in accordance with the following schedule: . . . . (2) Cases arising under chapters 560, 571, 580, and 584 ... $1,500. Payments in excess of any maximum provided for under paragraphs (1) and (2) may be made whenever the court in which the representation was rendered certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the administrative judge of such court. (Emphasis added.) Under the plain reading of this statute, a court does not have the discretion to issue a blanket pre-approval of all fees in excess of the statutory maximum. The statute mandates a determination of the reasonableness of a GAL's fees, a finding of necessity as to the amounts in excess of the maximum stated in the statute, and the court's approval of the fees. The record in this case is devoid of any determination of the reasonableness, necessity, and approval of Lopez's fees. We conclude that the Family Court could have placed reasonable conditions on the discovery, such as advancement of payment or immediate payment for the GAL's time and expenses reasonably incurred in the document production, and could have placed reasonable limitations on the scope of the discovery, such as limiting the production to documents not provided to Mother's previous counsel (assuming that segregation of documents would not have been more burdensome, time-consuming, and expensive). However, the Family Court abused its discretion in granting, without limitation, Lopez's request to preclude any production of the GAL's documents to Mother. 2. Subpoena to Fisher On May 16, 2007, Mother filed and served Fisher with a subpoena duces tecum (along with a notice of production of documents in lieu of deposition) seeking any and all documents regarding Father, Mother, and Child, including notes, correspondence, reports, observations, and evaluations, as well as a subpoena 635 to appear at trial. The subpoena duces tecum requested that the documents be made available for pick-up no later than May 22, 2007. Father and Lopez were served by mail with copies of the subpoenas. HFCR Rule 45 provides, in relevant part: Rule 45. Subpoena . . . . (b) For production of documentary evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things. . . . . (d) Subpoena for taking depositions; place of examination. (1) Proof of service of a notice to take deposition as provided in Rules 30(b) and 31(a) constitutes a sufficient authorization for the issuance by the clerk of the circuit court of the circuit in which the deposition is to be taken of subpoenas for the persons named or described therein. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 26(c) and subdivision (b) of this Rule 45. The person to whom the subpoena is directed may, within 10 days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than 10 days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition. Fisher, as the "person to whom the subpoena is directed," failed to serve a written objection on Mother's attorney before the time specified for compliance with the subpoena or any time thereafter. Lopez presumably sought the Protective Order for Fisher in her role as GAL for Child, and thus as a party in the case[33]and not as an attorney or representative of Fisher. Lopez argued that Mother should be denied all discovery from Fisher on the grounds that: (1) the copy of the subpoena attached to the notice of production of documents in lieu of taking a deposition was not signed and sealed by the clerk of court (although it is undisputed that the original subpoena served on Fisher was "signed and sealed"); (2) in early 2005, the parties and their attorneys orally agreed that Fisher would be "protected from litigation;" and (3) Mother had failed to pay her share of Fisher's fees as Child's therapist. Lopez requested that if the court were inclined to order Fisher to comply with the subpoenas, Mother should be ordered to pay all moneys due to Fisher, along with payment for Fisher's time to produce the documents and to give expert testimony. Fisher did not provide a declaration to the court supporting Lopez's assertions; no invoices or other documentation of Fisher's fees were provided. In response to Lopez's motion, Mother objected to the untimeliness of an objection on behalf of Fisher, argued that Lopez did not have standing under HFCR Rule 45 to object to the subpoenas to Fisher, and argued that the lack of a clerk's signature and seal on the service copy of the documents subpoena did not invalidate the subpoena. We conclude that, under HFCR 636 Rule 45, an objection on behalf of Fisher was indeed untimely. Thus Fisher was in jeopardy of being deemed in contempt of court pursuant to HFCR Rule 45(f). However, as a party to the proceeding, Lopez had standing under HFCR Rule 26(c) to seek to limit Mother's discovery from Fisher. We agree with Mother that Lopez's argument based on the service (on the parties) of an unfiled copy of the subpoena is meritless. See HFCR Rule 5(d). Regarding her need for discovery and testimony from Fisher, Mother argued that the unwritten agreement was entered based on an understanding that there would be voluntary, open communications between Fisher and all parties and that Fisher's role was to provide support for Child, not to provide an opinion favoring one party's custody over the other's. The record is unclear as to the exact scope of and assumptions related to the parties' oral agreement not to involve Fisher in the litigation. Even written stipulations may be set aside when subsequent, unanticipated events render discovery essential and make it "inequitable to enforce [an] agreement ... closing the door to the development of potentially critical facts." In re Westinghouse Elec. Corp.Uranium Lit., 570 F.2d 899, 902 (10th Cir.1978). In this case, Fisher waived any claim to be sheltered from court proceedings when she initiated communications intended to influence the outcome of the dispute. For example, in July of 2006, Fisher sent an email to Father and Lopez (and requesting an email address for Mother) with the subject line "letter to the court for July 12, 2006." In the email, Fisher stated, inter alia, "Here is my statement to the court concerning [Child's] therapy.... In my professional opinion, increase in visitation and especially unsupervised visitations should not happen until both parents are engaged in their personal therapy and actively participating in co-parenting sessions." At the hearing on Lopez's motion, Mother's counsel further explained her need for formal discovery from Fisher and the problems encountered in seeking information from her. [Mother] just wants information from [Fisher] on the same terms that [Father] and [Lopez] have gotten that information. She is entitled to it without a subpoena because she has joint legal custody of the child.... Here, we simply asked [Fisher], in preparation for this hearing, simply for a copy of a letter she wrote with her recommendation for this hearing. It's the March 20, 200[7], letter to the guardian ad litem. And she said no." In addition, Lopez relied substantially on Fisher's views in both her GAL Reports and her testimony at trial. "An individual must have an opportunity to confront all the evidence adduced against him, in particular that evidence with which the decisionmaker is familiar." Vanelli v. Reynolds School Dist., 667 F.2d 773, 780 (9th Cir.1982). Finally, Lopez's trial testimony that Fisher was seeing Father "as a client," while she was providing therapy to Child and providing opinions supporting Father's position that he should retain sole legal and physical custody, casts doubt on Fisher's ability to provide unbiased recommendations to Lopez and, through Lopez, to the Family Court. As Lopez is an attorney, not a psychologist or therapist, and Lopez gave little or no weight to Dr. Moon and Dr. Breithaupt's opinion, Fisher's opinions played a critical role in this case.[34] We conclude that, under the circumstances of this case, Mother was entitled to seek discovery from Fisher, subject to reasonable conditions and limitations, and to subpoena her testimony. 3. The Limitations on Dr. Breithaupt's Testimony regarding Fisher's Conclusions Mother attempted to rebut evidence of Fisher's conclusions regarding Mother with testimony by Dr. Breithaupt. Objection was raised by Father that Dr. Breithaupt lacked foundation to testify regarding any conclusion about Mother which Fisher expressed in a letter that was admitted into evidence. The Family Court questioned Dr. Breithaupt about the extent of his knowledge of investigations 637 or records relied on by Fisher in forming her opinion. Dr. Breithaupt replied that he had not viewed any investigative report, notes, or other material that Fisher might have relied on, only the letter offered by Father. The Family Court concluded that Dr. Breithaupt had no foundation to offer an opinion on the conclusions reached by Fisher in her letter. Mother called the Family Court's attention to the fact that Mother's discovery request to Fisher had not been allowed and, therefore, no material was available for Dr. Breithaupt to review prior to trial. The Family Court ruled that allowing Dr. Breithaupt to testify about his opinion of the lack of foundation for Fisher's conclusions would not be "fair to either side." The Family Court has wide discretion to limit expert testimony. See, e.g., State v. Wallace, 80 Hawai`i 382, 419 n. 37, 910 P.2d 695, 732 n. 37 (1996) (whether expert testimony should be admitted at trial rests within the sound discretion of the trial court and will not be overturned unless there is a clear abuse of discretion); Larsen v. State Sav. & Loan Ass'n, 64 Haw. 302, 304, 640 P.2d 286, 288 (1982). We conclude that the Family Court did not abuse its discretion in limiting Dr. Breithaupt's testimony.[35] C. The Polygraph Evidence Hawai`i law concerning the use of polygraph evidence is well-established and crystal clear. In 1962, the Hawai`i Supreme Court held that the results of polygraph tests are inadmissible for any purpose. State v. Chang, 46 Haw. 22, 31-38, 374 P.2d 5, 11-14 (1962); see also State v. Reyes, 93 Hawai`i 321, 326 n. 3, 2 P.3d 725, 730 n. 3 (App.2000) (citing to Chang for Hawai`i rule on the credibility of lie detector tests); State v. Okumura, 78 Hawai`i 383, 397, 894 P.2d 80, 94 (1995) (reaffirming Chang holding that polygraph results are inadmissible);[36]State v. Antone, 62 Haw. 346, 357, 615 P.2d 101, 109 (1980) (citing Chang holding that polygraph results are inadmissible). In Chang, the supreme court plainly stated: Evidence of a lie detector test has no place in the trial of a case. Courts do not consider the polygraph or lie detector sufficiently perfected nor the interpretation of results in its use reliable enough to permit testimony respecting such a test to be admitted in evidence. No rule of evidence could be more firmly established than that excluding such testimony. 46 Haw. at 31, 374 P.2d at 11. The rule of law disallowing the use of polygraph evidence also comports with Hawai`i Supreme Court precedent holding that expert testimony on a witness's credibility invades the province of the trier-of-fact to determine who is telling the truth. State v. Batangan, 71 Haw. 552, 556-57, 799 P.2d 48, 51 (1992); State v. Klafta, 73 Haw. 109, 117, 831 P.2d 512, 517 (1992). "A fundamental premise of our criminal trial system is that the jury is the lie detector." United States v. Scheffer, 523 U.S. 303, 313, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998) (plurality opinion). We see no reason to apply a different rule when the trier-of-fact is a judge. The Chang opinion announced that lie detector tests are inadmissible whether offered by the prosecution or the defense, in civil cases as well as criminal, and that a person's "willingness or unwillingness to take such a test is inadmissible at trial." Chang, 46 Haw. at 33-34, 374 P.2d at 12 (emphasis in the original) (citations omitted); accord, e.g. United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir.2003) (willingness to take test inadmissible); Commonwealth v. Martinez, 437 Mass. 84, 769 N.E.2d 273, 278-79 (2002) (willingness to take test inadmissible) State 638 ex rel. Kemper v. Vincent, 191 S.W.3d 45, 49 (Mo.2006) (en banc) (willingness to take test inadmissible); State v. Hawkins, 326 Md. 270, 275, 604 A.2d 489, 492 (1992) (willingness to take test inadmissible); Loren B. v. Heather A., 13 A.D.3d 998, 788 N.Y.S.2d 215 (N.Y.App.Div.2004) (polygraph inadmissible in civil custody proceeding); Posner v. Dallas County Child Welfare Unit of Texas Dept. of Human Services, 784 S.W.2d 585 (Tex.App.1990) (polygraph tests inadmissible in termination of parental rights proceeding); Miller v. Heaven, 922 F. Supp. 495, 500-04 (D.Kan.1996) (excluding evidence of polygraph examinations in a civil case); contra Henderson v. Henderson, 93 N.M. 405, 407, 600 P.2d 1195, 1197 (1979) (allowing polygraph evidence in child custody matter). Although Hawai`i courts have recognized that polygraphs may be used as investigative, screening, or monitoring tools, they have never wavered from the rule announced in Chang. See, e.g., Kaho'ohanohano, 117 Hawai`i at 271-72, 178 P.3d at 547-48 (noting use of polygraph in DHS investigation); State v. Naone, 92 Hawai`i 289, 990 P.2d 1171 (1999) (allowing polygraph testing for investigative or monitoring purposes, including as condition of probation, but not for evidentiary purposes). In the case now before us, the parties' willingness to submit to polygraph testing and the results of such testing both contributed substantially to the change of custody from Mother to Father. A significant portion of Father's Ex Parte Motion is based on unverified, third-hand reports of polygraph testing. In the motion itself, Father repeatedly hammered on the polygraph testing: ... Most recently, [Mother] has "failed" a polygraph test administered by the Maui Police Department on the issue of her allegations that [Father] has sexually molested [Child]. Immediately after being informed that she had failed the polygraph test, [Mother] indicated to [Rezents] that she did not want [Father] to have visitation. A day after she failed the polygraph test, [Mother] filed for a temporary restraining order ... Lopez's declaration in support of (and attached to) Father's Ex Parte Motion strongly suggests that Lopez changed her position on Child's custody based on the oral reports she received concerning the parties' polygraph tests: p. At the conclusion of the meeting [with Lopez, Brewerton, Fisher, Rezents, Lindquist, Dr. Moon, and the director of the Children's Justice Center,] it was agreed that the contents of the videotape required further investigation. Detective Rezents was to present the matter to the Prosecutor's Office. Visits with Father were to be stopped, preferably with Father's acquiescence. q. Ms. Brewerton informed Father of the outcome of the meeting and he agreed to stop his visitations until such time as there was still another, full investigation. Father offered to take another polygraph, his third thus far. t. Father had previously requested that Mother take a polygraph. Mother agreed and the order issued from the July 28, 2005 hearing, required [sic] Mother to take a polygraph to assist the GAL in her investigation. It is unknown to Declarant whether Mother took a polygraph pursuant to the court order. A written request was made to Mother's attorney for that information but there has been no response. u. However, Detective Rezents requested that Mother take a polygraph, and Mother did so on September 19, 2005. v. Detective Rezents informed Declarant that Mother's responses showed deception, and Mother was informed of the results. Mother reportedly asked Detective Rezents whether Father's visitation would recommence. w. On September 20, 2005, the day after Mother failed the polygraph, she filed for and was granted a temporary 639 restraining order against Father. . . . . 5. I believe Mother has been coaching [Child] to say the things that [Child] has said for the sole purpose of terminating contact between Father and [Child]. . . . . 9. At this time I support a change in custody from Mother to Father as I believe such a change is in the child's best interests. At trial, Lopez confirmed that the results of Mother's polygraph test caused her to change her opinion on custody in favor of Father:[37],[38] Q (by [Father's counsel]) Were you made privy to the results of the polygraph. A Yes. [Objection by Mother's counsel] . . . . Q And then as a result, did your position with regard to who should have custody change? A Yes, it did. Father's declaration in support of Father's Ex Parte Motion is similarly infused with his willingness to take polygraph tests, his report that he "passed" two tests and volunteered for a third, and his lawyer's report to him (necessarily based on someone else's report to her) that Mother's test came up as deceptive. Although she had no opportunity to object to the consideration of the polygraph "evidence" at the time of Father's Ex Parte Motion, Mother raised and preserved her objections at trial and on this appeal. In addition to the use of the polygraph tests in conjunction with Father's Ex Parte Motion, at trial, Father attempted to enter into evidence both polygraph test results and offers to take polygraph tests. Mother objected. The Family Court upheld Mother's objections as to the admissibility of polygraph results, but ruled that offers to take the polygraphs are admissible. The Family Court erred in allowing evidence regarding the parties' willingness to submit to polygraph testing. While the Family Court excluded direct testimony regarding polygraph results and specific references to the polygraph results in Lopez's GAL report, the Family Court gave "great weight" to Lopez's custody recommendation, which was admittedly formed in part based on the polygraph results. To the extent that the polygraph results contributed to the granting of the Ex Parte Order, they triggered Mother's prolonged separation from Child, substantially affected the outcome of the custody proceedings, and were highly prejudicial to Mother in ways that were not adequately addressed by merely excluding those results at trial. D. The Cumulative Effect of Errors on the Family Court's Conclusions as to Custody, Visitation and Relocation Mother argues, on additional grounds as well as based on the foregoing errors, that the Family Court clearly erred in its ultimate determinations regarding custody, visitation, and relocation. Our consideration of these contentions is grounded in HRS § 571-46 (2006), which stated in part: § 571-46. Criteria and procedure in awarding custody and visitation. In the actions for divorce, separation, annulment, separate maintenance, or any other proceeding where there is at issue a dispute as to the custody of a minor child, the court, during the pendency of the action, at the final hearing, or any time during the minority of the child, may make an order for the custody of the minor child as may seem necessary or proper. In awarding the custody, the court shall be guided by the following standards, considerations, and procedures: 640 (1) Custody should be awarded to either parent or to both parents according to the best interests of the child, and the court may also consider frequent, continuing, and meaningful contact of each parent with the child unless the court finds that a parent is unable to act in the best interest of the child;[39] . . . . (4) Whenever good cause appears therefor, the court may require an investigation and report concerning the care, welfare, and custody of any minor child of the parties. When so directed by the court, investigators or professional personnel attached to or assisting the court shall make investigations and reports which shall be made available to all interested parties and counsel before hearing, and the reports may be received in evidence if no objection is made and, if objection is made, may be received in evidence; provided the person or persons responsible for the report are available for cross-examination as to any matter that has been investigated; (5) The court may hear the testimony of any person or expert, produced by any party or upon the court's own motion, whose skill, insight, knowledge, or experience is such that the person's or expert's testimony is relevant to a just and reasonable determination of what is for the best physical, mental, moral, and spiritual well-being of the child whose custody is at issue; (6) Any custody award shall be subject to modification or change whenever the best interests of the child require or justify the modification or change and, wherever practicable, the same person who made the original order shall hear the motion or petition for modification of the prior award; . . . . (8) The court may appoint a guardian ad litem to represent the interests of the child and may assess the reasonable fees and expenses of the guardian ad litem as costs of the action, payable in whole or in part by either or both parties as the circumstances may justify[.] (Emphasis added.) This court has previously held that "the family court is not authorized by statute or otherwise to delegate its decision-making authority to a guardian ad litem" and "when the family court orders that one parent `shall have only supervised visitation with' a child, it must be as specific as is reasonably possible regarding the details such as the supervisor(s), the place(s), the day(s) and time(s)." Bencomo v. Bencomo, 112 Hawai`i 511, 516, 147 P.3d 67, 73 (App. 2006). In this case, the Family Court unquestionably violated these principles when it entered the Ex Parte Order based on Lopez's beliefs about whether Father was abusing Child or whether Mother was coaching Child, without a hearing at which the underpinnings for these beliefs could be addressed by Mother and duly considered by the Family Court. The Ex Parte Order, as the Final Order, further violated these principles with unreasonably vague provisions regarding supervised visitation. In the Ex Parte Order, the court provided only, "[Mother] shall have supervised or monitored visitation as arranged with [Lopez]." In the Final Order, the court ordered "[Mother] is hereby awarded rights of supervised visits in California as often as once per month, at her expense." This court is keenly aware that custody, visitation, and relocation decisions should be overturned only in the rarest of cases, where there has been a "manifest abuse of discretion." See, e.g., Sabol v. Sabol, 2 Haw.App. 24, 31, 624 P.2d 1378, 1383 (1981). The sole consideration in every custody case is necessarily the best interest of the child. However, a child's best interest can be justly and adequately determined only *641 in proceedings that are consistent with the requirements of the Hawai`i Constitution and applicable law; that did not happen in this case. Therefore, we must vacate the Ex Parte Order, the Order re Motion to Vacate to the extent that it denied relief as to the Ex Parte Order, the Final Order, and the Family Court's Findings of Fact and Conclusions of Law, and remand this case for further proceedings. Pursuant to HRS § 571-54, we order that, upon remand, Child's custody shall be restored to the custody and visitation schedule set forth in the California Custody Judgment. However, in light of the circumstances of this case, the Family Court will need to exercise its sound discretion as to the timing and process for implementing this transition in accordance with the best interests of Child. It appears to this court that, under the circumstances of this case, Child's best interests require: (1) a new GAL be appointed to represent Child in this process; (2) in accordance with HRS § 571-46.5, a detailed parenting plan be developed by the parties or, if necessary, the court, and fully implemented for a reasonable period of time, prior to either party's initiation of further motions to modify custody and visitation;[40] and (3) in accordance with HRS § 576D-7, a review and adjustment of the child support order set forth in the California Custody Judgment. In light of the foregoing, we need not address Mother's remaining arguments and contentions of error. V. CONCLUSION For the foregoing reasons, the Family Court's Final Order, Ex Parte Order, Order re Motion to Vacate (to the extent noted above), and June 19, 2007 Findings of Fact and Conclusions of Law are vacated and this case is remanded to the Family Court for further proceedings consistent with this opinion. NOTES [1] The Honorable Simone C. Polak entered the Ex Parte Order and the Order re Motion to Vacate. [2] The Honorable Keith E. Tanaka entered the Final Order, as well as the FOFs and COLs. [3] Although the 2004 Proceeding was initiated by Mother with this filing, she is identified as the Respondent or Defendant, presumably as a reflection of her status in the California case. [4] It is undisputed that Mother and Father agreed to jurisdiction and venue in the Family Court after Father filed a request for a change of custody in the California court in July of 2004 and Mother sought to quash service, dismiss the petition, and transfer the case to the Family Court. [5] At the custody hearing held in mid-2007, Mother denied these allegations and pointed out that neither she nor Child had passports. Perhaps ironically, Mother also noted that it was Father who later took Child out of pre-school for approximately one month to go on an extended "vacation" in California in contravention of a later Family Court order. [6] The August 8, 2005 order also provided for "monitoring" of the "parties' access," presumably the parties' access to Child, as well as monitoring of Child while Child was with each parent and continued therapy for Child. Without explanation, the Family Court further ordered that no one was to reveal where payment for the monitoring was coming from. [7] This is the fourth TRO referenced by GAL # 2. Father's visitation with Child had been suspended at this time and, if true, Mother's sworn statements concerning Father's appearance at her workplace and questioning of her manager about her, may have reasonably been considered to be harassing. The record is silent as to whether GAL # 2 made any attempt to contact Mother's employer to either verify or refute Mother's allegations. The first TRO was issued when Father kept Child overnight without Mother's agreement and before the issuance of the ex parte order that confirmed Father's overnight visits. The second and third TROs are not part of the record in this case and no finding was ever made that any of the TROs involved a willful misuse of the TRO process. [8] Father's reference in Father's Ex Parte Motion to an "evidentiary hearing set for November 17 & 18, 2005" apparently referred to a hearing on Sole Custody Motion # 1 and Father's Motion to Reduce Child Support. [9] The record does not reflect the reasons for prior counsel's withdrawal and Brawley's substitution, which roughly coincided with Mother's filing of bankruptcy and followed the Family Court's granting of the Ex Parte Order. [10] It appears that the Honorable Simone C. Polak was unavailable on that date. The Honorable Eric G. Romanchak presided. [11] In the 2004 Proceeding, the Family Court entered an Order On Petitioners' Petition to Modify Existing Child Custody Order and for Sole Legal and Physical Custody, Filed September 17, 2004. In the 2005 Proceeding, the Family Court entered an Order on Petitioner's Motion for Post-Decree Relief Filed June 29, 2005. Together, these two orders entered on March 16, 2006, are referred to as the Purported Stipulated Orders. [12] Mother also averred that she never received any written stipulated order to sign and did not waive her right to present evidence to the court on the disputed issues. [13] In conjunction with a motion for leave to proceed in forma pauperis, which was denied by the Family Court, Mother stated that she "declared personal bankruptcy in October 2005, which was completed February 1, 2006." [14] Thereafter, a motion for admission of counsel pro hac vice was filed by local counsel for Mother, who apparently also served as Mother's bankruptcy counsel. After various further filings by both parties, pro bono pro hac vice counsel Evan Nordby (an attorney in the Office of the Solicitor of Labor at the United States Department of Labor in Washington, D.C.) and Kristen A. Nilsen (a private attorney in Washington, D.C.) were admitted. A third pro bono attorney who sought to appear pro hac vice, Mr. Gregory F. Jacob (the Deputy Solicitor of Labor at the United States Department of Labor) withdrew (upon accepting a position as Special Assistant to the President for Domestic Justice Policy). [15] The alleged November 17, 2005 agreement was later memorialized in the Purported Stipulated Orders, the form of which apparently was not settled in accordance with the Family Court's instructions or applicable Family Court rules and were not signed by and apparently were not tendered to Mother or Brawley for signature. [16] In his March 21, 2007 declaration, Father also stated: "I have found it very difficult to establish myself on Maui, especially with being solely responsible for [Child] and her care." We note that, with the first of Father's many filings to obtain sole legal and physical custody of Child (the September 17, 2004 Petition), Father stated in an undated declaration, inter alia: "I am now self-employed and have flexibility in my schedule. I am able to have our daughter on a full-time basis with reasonable visitation to [Mother]." In other words, after first arguing that his lack of regular employment should be a basis for granting him sole legal and physical custody of Child (thereby, incidentally, limiting Mother's custody of the toddler over whom she had had primary custody from birth), Father later (successfully) argued that his desire to change this employment situation was a basis for moving Child out of the State and, incidentally, away from Mother. The Family Court's post-trial Findings of Fact include: "The fact that [Father] has [Child] nearly all of the time without family support has hindered [Father's] ability to establish himself financially." [17] At the hearing on Lopez's motion for protective order, Lopez also argued that she should have had a full 30 days to respond to Mother's discovery. However, at a prior hearing attended (telephonically) by Lopez, the court's granting of Father's request to expedite a hearing on relocation and custody, which was supported by Lopez, was made dependent on Mother's being allowed expedited discovery. The timing of the discovery was not cited as a basis for the granting of the protective order. [18] Although the Family Court and Father's counsel state on the record that they had file-stamped copies of Mother's motion, the record on appeal does not include a copy of this motion. [19] Jamie Baldwin testified that, about two weeks before the hearing, she had been contacted by the attorneys for Father and Mother and GAL # 2 to participate in supervised visits between Mother and Child. [20] Karina Coronesi testified that she knew Mother and Child because her child had been in preschool with Child and the children had played together outside of school. Ms. Coronesi testified that Mother was a great mom who was very focused on the child, made sure Child was polite and eating well, and did all the things that a very caring mother would do. [21] Father never argued that the constitutional issue was moot. Instead, in opposition to the Motion to Set Aside, Father argued that the constitutionality argument was a red herring because he had relied on HRS § 571-46, rather than Hawaii Family Court Rules (HFCR) Rule 65, in support of his ex parte request for a change in custody. Father essentially argued that an ex parte change of custody is supported by the language in HRS § 571-46 stating: "where there is at issue a dispute as to the custody of a minor child, the court, during the pendency of the action, at the final hearing, or any time during the minority of the child, may make an order for the custody of the minor child as may seem necessary or proper." Father also claimed that his HFCR Rule 65 request was to restrain Mother from disseminating the "disturbing videotapes" Mother had made of Child. Although the Ex Parte Order in this case does not include any finding that Child was at risk of immediate danger, Father argued that it is proper to issue an order changing custody, without prior notice or a hearing, when a child is at risk of immediate harm. Father also argued that the "subsequent report of the GAL and opinion of the professionals involved with the minor child and the parties" supported the declarations of Father and GAL # 2 that accompanied Ex Parte Motion. Notwithstanding three extensions of time to do so, Father did not file an Answering Brief on appeal. Nevertheless, in light of the paramount consideration of Child's best interests, we have carefully reviewed all of Father's arguments below. [22] This FOF is clearly erroneous. Although the Ex Parte Order immediately changed custody, it did not include any findings concerning the best interest, safety, or welfare of Child. [23] Mother's visitations at PACT were terminated in October of 2006. From that point to the custody and relocation hearing, Mother and Child had a single visitation supervised by GAL # 2, at which Mother hosted a birthday party for Child with other children and moms. [24] In addition, we agree with Mother that the public interest exception to the mootness doctrine is applicable here. In Doe v. Doe, 116 Hawai`i 323, 327, 172 P.3d 1067, 1071 (2007) (citations omitted), the Hawai`i Supreme Court reiterated its earlier holding that "when the question involved affects the public interest and an authoritative determination is desirable for the guidance of public officials, a case will not be considered moot." The analysis required to determine whether the public interest exception should be invoked includes: "(1) the public or private nature of the question presented; (2) the desirability of an authoritative determination for future guidance of public officers, and (3) the likelihood of future recurrence of the question." Id. Although this case clearly involves a custody battle between Mother and Father, the Family Court's use of ex parte proceedings to immediately change custody from one parent to another, without notice or a hearing, stands to affect the fundamental rights of many Hawai`i families. Particularly in light of Father's position that HRS § 571-46 authorizes, without limitation, ex parte custody decisions, the Family Court's refusal to address the constitutionality of the ex parte ruling, and the lack of guidance on this issue, it is our view that a determination on this issue will provide needed guidance. As to the third factor, Mother points out that the Family Court issued no fewer than four significant ex parte orders in this case alone. While not all of those orders are the subject of this appeal, it appears the use of ex parte rulings is not uncommon and that there is a strong likelihood that the issue presented here could recur. We are also mindful of the enormous impact of custody decisions on children and families, and the difficulties and limitations inherent in seeking appellate review of a custody determination. [25] Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Hawai`i 217, 243, 953 P.2d 1315, 1341 (1998). [26] This opinion does not address and does not apply to any custody matters under HRS Chapter 587, including but not limited to protective police custody and/or temporary foster custody pursuant to that chapter; nor does it address domestic abuse protective orders under HRS Chapter 586. [27] In reviewing matters under Hawai`i Rules of Civil Procedure (HRCP) Rule 26(c), the Hawai`i Supreme Court has looked to parallel federal law for guidance. As HFCR Rule 26(c) is, in relevant part, parallel to HRCP Rule 26(c), we will look to federal case law, as well as Hawai`i cases on HRCP Rule 26(c). [28] It appears from Lopez's declaration that the request for a $1,600 advance was based on an offer from Mother to reduce the number of interrogatories and document requests. Thereafter, Mother further offered to reduce her discovery to a single document request. [29] The comparison to the quashing of Mother's earlier subpoenas appears to be inapposite. As noted above, with one exception, Mother's subpoenas were quashed because she initiated them on a pro se basis before her prior counsel's withdrawal was formalized. [30] While the Family Court also noted depletion of marital or personal assets, that factor can be considered properly only in the context of the case. Obviously, Mother and Father were never married and there is no financial impact to Father flowing from Mother's access to the GAL's files. Thus, Father's only interest was strategic. Indeed, under the circumstances of this casewherein Father issued over 40 subpoenas (not counting trial subpoenas) to GAL # 1, Mother's employers, telephone service providers, and health care providers, Child's preschool, DHS/CWS, Dr. Moon, Dr. Breithaupt, Dr. Kepler, Brewerton, Dr. Choi, Mother's banks. Mother's stepfather, and othersMother's request for discovery from GAL # 2 and Fisher was highly relevant and reasonable in scope. Father apparently had no need to seek discovery from Lopez or Fisher. From the time that Lopez attached her declaration to Father's Ex Parte Motion to the evidentiary hearing, Lopez appeared to be working closely with Father and his counsel. At trial, Lopez testified that Fisher was seeing Father "as a client," in addition to her role as Child's therapist. We also reject the notion of a per se rule or presumption that a GAL's duties do not include responding to discovery. As with other discovery, a balancing of legitimate discovery needs with any resulting harms or burdens to the GAL is necessary. [31] This court has been unable to identify any statute, rule, or case law that would require Mother to marshall "compelling evidence" to controvert the GAL's conclusions. Indeed, it appears that, as the party seeking to modify or change custody in this case, Father had the burden to show that "the best interests of the child require or justify the modification." HRS § 571-46(6). [32] In Kelley, a father petitioned for a writ of mandamus, asserting that a statute that shielded the GAL from discovery and a family court order prohibiting the GAL from being called as a witness were unconstitutional. 175 P.3d at 401. The Oklahoma Supreme Court granted the writ and held that: (1) "[d]ue process necessitates that a parent have the right to cross-examine the guardian ad litem once the guardian's report is proffered to the trial court"; and (2) the statute barring discovery of the GAL, insofar as it "negates the right of a parent to cross-examine the guardian concerning the contents of the report and the basis for a custody recommendation," is an "unconstitutional restraint on the parent's fundamental rights to the care, custody, companionship and management of his or her child." 175 P.3d at 406. The court reasoned that the "overwhelming majority of the states addressing the parental right to cross-examine a guardian ad litem have held either expressly, or by necessary implication, that an order or decree awarding or modifying custody must be based on evidence heard in open court in observance of the requirements of due process." Id. at 404-05 (citing examples from Washington, Tennessee, Ohio, Montana, South Carolina, Connecticut, Alabama, Colorado, New Mexico, Maryland, and Indiana). It further stated that a family court's reliance on evidence/reports untested by cross-examination would be "fundamentally unfair" and would "amount to private investigations by the court... out of the sight and hearing of the parties, who are deprived of the opportunity to defend, rebut or explain." Id. at 406. [33] The question of whether a GAL is a party in custody proceedings, for all purposes including discovery, was not raised as an issue in this appeal. [34] As Fisher's qualifications to testify and the reliability of her opinions on the matters before the Family Court are not at issue on this appeal, we do not address them. [35] The Family Court correctly limited Dr. Breithaupt's testimony regarding Fisher's conclusions as he lacked foundation to opine on what data and procedures she utilized in forming her conclusions regarding Mother. See Bowman, Hawaii Rules of Evidence Manual, § 702-1 [3][A] (3rd Ed.2006). However, Dr. Breithaupt's inability to effectively respond to Fisher's conclusions exemplifies the disadvantage Mother suffered as a result of the Protective Order. [36] Okumura overruled Chang on a separate and unrelated point of law. Okumura, 78 Hawai`i at 408, 894 P.2d at 106 (holding that, contrary to Chang, refusal to give an accomplice witness instruction is not, in every case, an abuse of discretion). [37] From the time of her declaration in support of Father's Ex Parte Motion, Lopez's position never wavered, even when Mother hired independent experts who reported that the polygraph results relied on by Lopez were inconclusive and unreliable. [38] The first of Lopez's two GAL reports similarly includes references to offers to take polygraph tests, polygraph results, and Mother's failure to forward the result of a privately conducted polygraph test that Lopez "believes" Mother took. [39] This italicized part was added effective July 12, 2005. The statute was further amended in 2008. [40] As provided in HRS § 571-46, the Family Court may, at any time during the minority of Child, make a further order for the custody of Child in accordance with the statute. We have fashioned the remedy on this appeal to address the significant errors that occurred in the proceedings below fully understanding that the restoration of primary custody to Mother will likely be disruptive in the first instance. This remedy does not, however, require the Family Court to turn a blind eye to further improper conduct by either party, or material changes in circumstances, that would warrant modifications in the best interest of the child, notwithstanding the remedial intent of this court's order.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2515205/	202 P.3d 355 (2009) Ann R. DEUTSCHER, Appellant, v. Jeffrey P. GABEL, D.O., and Jane Doe Gabel; and Providence Health System-Washington, Inc. d/b/a Providence Centralia Hospital, Respondents. No. 58641-6-I. Court of Appeals of Washington, Division 1. March 2, 2009. Michael King, Carney Badley Spellman, P.S., Seattle, WA, for Appellant. Steven Fitzer, Melanie Stella, Burgess Fitzer, P.S., Tacoma, WA, for Respondents Jeffrey P. Gabel, D.O., and Jane Doe Gabel. Rebecca Ringer, Mary Spillane, Seattle, WA, for Respondent Providence Health Systems-WA, Inc. BECKER, J. ¶ 1 We are asked to decide whether a trial court erred by imposing sanctions on counsel for the plaintiff after a hard-fought medical malpractice trial. At the beginning of trial, counsel for the plaintiff identified a new witness, a nurse formerly employed by the defendant doctor. Counsel represented that she had discovered the nurse only by chance at the last minute, and she argued that the doctor had committed egregious misconduct by failing to identify the nurse in discovery. The court recessed the trial several times to accommodate the need to interview the new witness. Then it unfolded that the doctor's 356 receptionist had told counsel for plaintiff about the nurse months earlier during a deposition. The court imposed sanctions on plaintiff's counsel for her lack of candor to the court. Counsel contends it was wrong to sanction her because it was the doctor's responsibility to identify his employees. But another party's omissions do not justify counsel in stating that a witness is newly discovered when counsel knows that it is not true. Finding no abuse of discretion, we affirm. ¶ 2 Summer Goble was 22 years old when Dr. Jeffrey Gabel performed a hysterectomy on her. The surgery took place at Providence Centralia Hospital on June 26, 2003. In April 2004, attorney Ann Deutscher filed a medical malpractice lawsuit on behalf of Summer against Dr. Gabel and Providence. Summer alleged that Dr. Gabel pressured her into having the hysterectomy when less drastic alternatives were available. Dr. Gabel denied any wrongdoing. He claimed that Summer was adamant that she wanted a hysterectomy to end the pain and irregular bleeding associated with her menstrual cycles. ¶ 3 The matter proceeded to a jury trial in May 2005. After approximately two weeks of testimony, the jury returned a verdict of more than $1.7 million for Summer. The jury apportioned 90 percent of the fault to Dr. Gabel and 10 percent of the fault to Providence. Two weeks after the verdict, both defendants moved for a new trial. They also asked the court to sanction Deutscher for misconduct. The court granted the motion for a new trial as to Providence only. The court also granted the motion to impose sanctions. The ruling granting Providence a new trial and the remaining judgment against Dr. Gabel are not challenged on appeal. This appeal is concerned only with Deutscher's challenge to the order granting the motion for sanctions. ¶ 4 Among several instances of alleged misconduct discussed in the motion, the defendants claimed that Deutscher made false statements to the court when, at the beginning of trial, she added nurse Sandra Dickenson to the witness list and claimed she had only recently become aware of her. It came out during the trial that Dickenson's name and potential relevance to Summer's case had been made known to Deutscher months earlier during the deposition of Maria White, the receptionist at Dr. Gabel's clinic. The trial court agreed that Deutscher had not been candid, and granted the motion for sanctions based solely on the Dickenson matter. Sanctions were made payable in the amount of $6,523.45 to Dr. Gabel and $4,739.95 to Providence for defense fees and costs expended during trial to deal with adding Dickenson as a witness. Deutscher appeals. Providence responds. ¶ 5 In reviewing a sanctions decision, we apply the abuse of discretion standard. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 338, 858 P.2d 1054 (1993). The abuse of discretion standard recognizes that deference is owed to the judicial actor who is better positioned to decide the issue, in this case, the trial judge. The trial judge has wide latitude to determine what sanctions are proper in a given case. ¶ 6 This controversy is rooted in events that took place during discovery. In June 2004, Summer sent an interrogatory asking Dr. Gabel to identify fact witnesses: "State the names, current addresses and telephone numbers of all persons having relevant knowledge of facts concerning the issues in the above-entitled case, and the general substance of their knowledge of such facts concerning the issues of liability, fault and the damages or personal injuries alleged by Summer Goble."[1] Dr. Gabel responded in October 2004, stating: "At this point, the defense is aware only of the following: 1. The parties; 2. The names contained in the medical records which have been produced and are being gathered; and 3. The names of individuals identified in discovery to date."[2] Dr. Gabel did not disclose that a temporary nurse, Sandra Dickenson, had been working with him at the time he treated Summer. And Dickenson's name was not included in 357 the medical records or other discovery materials provided to Summer up to that point. ¶ 7 Deutscher deposed Dr. Gabel on November 3, 2004. She asked Dr. Gabel about staff changes in his office during the previous two years: "In terms of employees that you have had working for you in the last two years, are they all still currently working with you?" Dr. Gabel answered: "All except for Rachel Jaeger."[3] Dr. Gabel did not disclose that Sandra Dickenson had been his nurse from April to July 2003, the timeframe during which he was treating Summer. ¶ 8 Deutscher deposed Dr. Gabel's receptionist, Maria White, in September 2005. Deutscher went over Summer's medical file with White to see if she knew whose handwriting was on the chart. White recalled that Dr. Gabel had an interim nurse named Sandra Dickenson. White thought Dickenson might have made the chart notations. Deutscher inquired about Dickenson: [Deutscher]: Who is Sandra Dickenson? [White]: She was the temporary nurse, I believe, right before Rachel, when Patty put in her two weeks. It might be that might be hers. . . . [Deutscher]: Where is Sandra now? [White]: I don't know. Last time I heard, she was working for Dr. Case. [Deutscher]: Who is Dr. Case? [White]: He is an allergist that comes down to Centralia and also has an office in Olympia. [Deutscher]: Did Sandra leave under good terms? [White]: I don't know. I have no clue what I would say. . . . [Deutscher]: So who do you believe was Dr. Gabel's nurse in May or June of 2003? [White]: It could be Patty. It could be Sandra. It could be Rachel. I can't remember. I was new there. [Deutscher]: Okay. Yeah, I can understand that. But it sounds like it's most likely Rachel or Sandra? [White]: It might be.[[4]] ¶ 9 White's disclosure that Dickenson had worked for Dr. Gabel in 2003 but was not currently working for him contradicted the answer Dr. Gabel gave at his own deposition when he said no one had left his employment except Rachel Jaeger. The contradiction should have prompted Dr. Gabel and his attorney to check payroll records. He should have then supplemented his previous answers by identifying Dickenson as an ex-employee and fact witness who had been his nurse when he treated Summer. White's disclosure should also have prompted Deutscher, if she was truly interested in finding Dr. Gabel's ex-employees or in interviewing the nurses who made the notations on Summer's medical records, to follow up to find out when Dickenson was employed, what she knew, and why she left. But it seems that White's testimony about Sandra Dickenson was ignored by both parties. Dickenson's name did not resurface until after the trial began on Monday, May 1, 2006. ¶ 10 On May 3, Deutscher disclosed Sandra Dickenson as a newly discovered witness. On May 4, she sought permission to mention Dickenson during her opening statement. Deutscher related that Dr. Gabel had inaccurately told her, during his 2004 deposition, that only one individual Rachel Jaeger had left his employ. She told the court she had just coincidentally met Dickenson through a potential client. And she had learned that Dickenson "was, in fact, terminated or left his employment during 2003. If I had been told that there had been a nurse who had left her employment in 2003, I would have been out looking for her aggressively."[5] ¶ 11 Deutscher said Dickenson could not remember the exact dates she had worked for Dr. Gabel, but she could testify about the policies and procedures in his office: 358 She is going to say that Dr. Gabel refused to allow her to chart patients' signs and symptoms, and I believe she may say that he altered records .... and that it was his policy when his surgical schedule opened up to go and have her look through charts for patients who might need a hysterectomy....[[6]] The court instructed Deutscher not to mention Dickenson during her opening statement, and to bring in more information about what Dickenson's testimony would be and the time frame it covered. Arrangements were made for Dickenson to be deposed on Wednesday, May 10. On May 11, Steven Fitzer, counsel for Dr. Gabel, reported that during the deposition, Dickenson said she worked for Dr. Gabel in August or September 2003. Fitzer moved to exclude Dickenson on the basis that she was not employed in June at the time of Summer's surgery. The court reserved ruling pending a review of the transcript. It was agreed that if Dickenson testified, it would be on May 17. ¶ 12 Over the weekend, in preparation for the possible cross-examination of Dickenson, Fitzer instructed Dr. Gabel to check to see if he had any employment records that would help determine the exact dates of Dickenson's employment. Dr. Gabel located payroll records showing that Dickenson worked for him in June 2003 when Summer had been a patient. Fitzer forwarded this information to the court and other parties. On Monday morning, May 15, he withdrew his motion to exclude Dickenson's testimony. ¶ 13 During the discussion on May 15, Deutscher pressed the court to give her another recess to go over the medical records with Dickenson. She said she now believed that Dickenson was actually the nurse who evaluated Summer and made notations in her medical charts. Deutscher argued that Dr. Gabel's failure to disclose Dickenson as a former employee in his responses to interrogatories or during his deposition testimony placed her at a "tremendous disadvantage." She said she would be moving for sanctions: First of all, it was not our obligation to go out and hunt her down. It was their obligation on at least two occasions in sworn testimony to tell us who she was. . . . And so the critical issue to us again is, we are in the middle of trial ... none of this is the plaintiff's fault. It is squarely on the shoes of the defense, and we are put at a tremendous disadvantage. . . . I think I need to have a break on Wednesday morning to have an opportunity to fully discuss this case with Ms. Dickenson.... I need to have several, frankly, several hours with her to show her the medical records and sit down with her. She lives 150-odd miles away. But I may need to recall Ms. Goble. I may also need to take telephone testimony from Dr. Miller. I have multiple things at this point. We are also going to be making a motion for sanctions.[[7]] ¶ 14 The court did not rule immediately on Deutscher's request for a break in the trial. Deutscher brought it up again the next day and reiterated that her need for extra time was due to Dr. Gabel's discovery violation: We found out about her two days, two business days, before the trial started ... we asked for all relevant witnesses to be identified in June of 2004. She wasn't identified. We made requests for any employees of Dr. Gabel who had left his employ in the last two years .... she believes there are records missing, and she believes there have been deletions to the records. These are new facts to us.[[8]] ¶ 15 Fitzer objected to characterizing Dr. Gabel's conduct as a discovery violation, pointing out that Deutscher could have asked him during his deposition about the identity of the nurse whose handwriting was on the charts, but it "obviously was not on her list of what was important."[9] Deutscher responded that a note on Summer's chart stating "wants hyster scheduled" had always been at 359 the heart of the case and "it defies credibility that Mr. Fitzer did not ask who wrote that note." The court asked Deutscher, "Did you ask who wrote that note?"[10] Deutscher replied that she did not because Dr. Gabel had led her to believe there had been no changes in his nursing staff: I did not ask who wrote that note. And again, this was done in 2004. But in essence, what they are doing is they knew who this nurse was. And if they didn't know, they should have known. I specifically asked if they had gotten rid of anybody, and when he said no, the only person who had left ... was Rachel Jaeger, that implied that his nurse hadn't left.... . . . ... I specifically asked: Who left your employ? . . . So in essence, what is being said here is they cannot disclose an absolutely critical witness that we had no way of suspecting even existed and we found by happenstance, total happenstance, we found this witness. We would have gone through this whole trial and not known.[[11]] The court granted Deutscher's request for several additional hours to talk with Dickenson the next day in preparation for Dickenson's trial testimony, which was set to begin at 1:30 p.m. ¶ 16 The next day was May 17. That morning, Deutscher filed a brief on the admissibility of Sandra Dickenson's testimony. A section of the brief argued that Dr. Gabel had committed sanctionable misconduct when he failed to identify Sandra Dickenson in response to plaintiff's discovery requests. Deutscher argued that sanctions were mandatory under CR 26(g) and Fisons, and that the appropriate sanction was to allow Dickenson to testify without permitting the defense to add an additional witness to rebut her testimony. ¶ 17 At 1:00 p.m., after Deutscher concluded her meeting with Dickenson, the parties appeared in court to discuss the parameters of Dickenson's testimony. Deutscher reported that Dickenson did indeed remember Summer as a patient in the office. She said Dickenson was also prepared to testify about a number of things relating to Dr. Gabel's practices with respect to charting, dictation, appointments, scheduling and record keeping. The court indicated that it was still inclined to let Dickenson testify, but suggested that limitations might need to be imposed to the extent Dickenson was now recalling things the defendants had not learned about in the previous deposition. Deutscher resisted this suggestion: That's not our problem. Okay? If they had told us about her when they should have, we would have known when she worked there and we certainly would have found her and we would have investigated. . . . I would love to sit here and have a deposition that had been comprehensively taken. Why don't we have that? And that's why I go back to the sanctions issue. This is the most appropriate case in my 20 years of practice that I have ever seen to have a sanction awarded for this. I mean, if this isn't a discovery abuse, I don't know where there is one.[[12]] ¶ 18 The court ruled that Dickenson would be allowed to testify, but only after the defendants had the opportunity to depose her and make a record that would facilitate preliminary rulings. The court arranged for Dickenson's trial testimony to be delayed until the following morning and released the jury for the day. The court did not address Deutscher's motion for sanctions. ¶ 19 It was on the next morning, May 18, that Maria White's deposition came to the court's attention. Fitzer brought it into court and used it to show that Deutscher knew months earlier that Sandra Dickenson had temporarily worked as a nurse for Dr. Gabel in the summer of 2003, had then left 360 his employ, and was now thought to be working for a Dr. Case in Olympia. Fitzer apologized to the court "for not realizing that I knew about this name seven months ago. And I hope this puts to rest the idea that Ms. Deutscher didn't either."[13] ¶ 20 Upon disclosure of the fact that Deutscher had actually heard about Sandra Dickenson long before trial, Providence moved to exclude Dickenson. "She was certainly not a late-disclosed witness from the defense point of view .... there's no excuse for her appearing for the first time on plaintiff's witness list on the day of trial." The court denied the motion: So given the fact that we are down this road this far, there has now been full discovery on this witness, there has been opportunity for the parties to investigate this witness, I did not know of this information from Mr. Fitzer until this morning, and all the parties are prepared to go forward with the examination of this witness, and certainly her testimony is probative, we will go forward with the testimony of the witness.[[14]] ¶ 21 Dickenson took the stand and testified that the office had scheduled Summer as a hysterectomy patient before she even came in for her first appointment with Dr. Gabel. Dickenson stated that several entries on Summer's medical chart including the one indicating that the patient wanted a hysterectomy had not been present when she first reviewed the chart, and must have been added after the fact. Dickenson remembered talking to Summer, and she said the new entries were not consistent with what she had been told by Summer. Her testimony contradicted Dr. Gabel's claim that it was Summer who insisted on going forward with a hysterectomy. ¶ 22 The trial ended with testimony from Dr. Gabel and another witness. On May 23, the court dealt with pending motions. One of these was Deutscher's motion to sanction Dr. Gabel for his nondisclosure of Sandra Dickenson. The court acknowledged that Dr. Gabel should have identified Dickenson when asked about his former employees. The court nevertheless denied the motion for sanctions because the plaintiffs had learned the same information from receptionist Maria White: However, there's no prejudice to the plaintiff because in September 2005, it's now undisputed that a witness disclosed the name of Sandra Dickenson during a deposition, specifically, stating that she may have been the nurse during the time that Summer Ann Goble was, in fact, cared for by Dr. Gabel. So the plaintiff knew that Ms. Dickenson or should have known she was a potential witness in the hospital excuse me in the doctor's office at the time of the treatment, and she knew that as early as September of 2005.... It's a matter of practice, there's simply no justification for filing a motion for sanctions in this case.[[15]] Closing arguments took place on May 24. The jury returned its verdict for Summer on May 26. ¶ 23 On June 8, 2006, Dr. Gabel and Providence filed the motion for sanctions that gave rise to this appeal. They alleged that Deutscher made "false statements to the Court regarding the time and circumstances in which witness Sandra Dickenson was identified."[16] In a responding brief, Deutscher did not deny that she knew about Sandra Dickenson through Maria White's deposition. She said that when she presented Dickenson as a newly discovered witness, what she meant was that she did not previously know Dickenson had any relevance to the case. She continued to place all blame upon Dr. Gabel for the trial interruptions: During an extended discussion on the record regarding the circumstances behind her late request to have Ms. Dickenson testify, Ms. Deutscher stated: "we knew about her about three days before this trial 361 started." It was not Ms. Dickenson's name that Ms. Deutscher learned about shortly before trial, but the fact that Ms. Dickenson was a person with relevant and material knowledge. . . . There was no statement by Ms. Deutscher that she had discovered Ms. Dickenson's name shortly before trial, and no mistaken belief on the part of the Court that Ms. Deutscher had not known Ms. Dickenson's name until shortly before trial. ... ... Dr. Gabel's false response during his deposition and his failure to identify Ms. Dickenson in response to Plaintiff's Interrogatory 14 or a supplement thereto were the reasons that Ms. Deutscher did not investigate Ms. Dickenson as a potential witness at an earlier date.[[17]] ¶ 24 The trial court granted the motion for sanctions, focusing on Deutscher's lack of candor about when she learned about Dickenson: The Court awards terms (all attorneys fees and costs) against Ms. Deutscher only, and not Summer Ann Goble or Todd Elliot, limited to time and costs related to Ms. Deutscher's groundless request for discovery at trial on the subject of an allegedly recently discovered witness, Sandra Dickenson, and for her baseless request for sanctions against a defense lawyer. The Court took Ms. Deutscher seriously, added the witness, allowed the discovery and considered sanctions against defense counsel. Ms. Deutscher was not candid to the Court about when she learned about this witness. This lack of candor caused an immense amount of trial time to be expended on discovery mid-trial. Had the truth been known, a motion to exclude (which the defendants made, and which was denied) would have disposed of the matter in less than five minutes on the first day of trial. Once the truth was known, she did not deny that she had become aware of the witness much earlier. . . . ... Ms. Deutscher represented to the Court numerous times that she was completely unaware of Ms. Dickenson and that she had learned of her only by accident through another person shortly before the trial began. . . . On the morning that Ms. Dickenson was to testify, Mr. Fitzer informed the Court (and the parties do not now dispute) that Ms. Deutscher learned of Ms. Dickenson as a potential witness no later than September 2005 in a deposition that Ms. Deutscher scheduled and took and in questions that she asked.... Ms. Deutscher never disclosed this fact to the Court. Once Mr. Fitzer disclosed this fact, Ms. Deutscher only stated that she was entitled to rely upon Dr. Gabel's deposition answer made in 2004, eight months before Ms. Dickenson's name was disclosed in the September 2005 deposition. She has never suggested, in Court or in later briefing, that she simply forgot. In the context of a discovery motion to compel, Ms. Deutscher could have argued that Dr. Gabel's deposition answer was not accurate and that he should have disclosed Ms. Dickenson's name (she never filed such a motion). However, Ms. Deutscher could not rely upon Dr. Gabel's answer alone in affirmatively representing to the Court numerous times that she had never heard of the witness and in filing a Motion for Sanctions on that basis.[[18]] ¶ 25 The court rejected, as factually inaccurate, Deutscher's explanation that she was aware of Dickenson's name but not her relevance: Ms. Deutscher now argues that she did inform the Court that she knew of Ms. Dickenson's name before trial, but informed the Court that she was unaware that she had relevant and material knowledge and that this is what she told the Court. This argument fails as it is factually inaccurate. During the trial, the Court was told explicitly and was given the impression 362 that the plaintiff had never heard of Ms. Dickenson at all. Moreover, this argument makes no sense because Ms. Deutscher first learned of Ms. Dickenson's name while learning that she may have worked for Dr. Gabel during the time her client was being treated. In other words, she learned of the name and the context for relevance simultaneously. Ms. Deutscher's implicit and explicit representations in Court that she had never heard of Ms. Dickenson were not true. She was aware of the witness. When this matter was called to her attention in Court by Mr. Fitzer, she did not deny this. She should have fully disclosed to the Court all information she had about her knowledge of Ms. Dickenson, especially the September 2005 deposition that she took. See RPC 3.3(a). Without candor from counsel, this Court cannot, and in this case, was not able to make a fully informed and fair decision under the rules of civil procedure. If the Court had been fully informed at the time, Ms. Dickenson would not have been allowed to testify. She was disclosed long before discovery cutoff. There was no attempt to add Ms. Dickenson by motion or provide a disclosure of her name. If Ms. Deutscher had disclosed the fact that Ms. Dickenson was known to her by September 2005, this matter could have been handled pretrial in a few minutes by motion. These terms are reasonable and narrowly tailored for two reasons. First, the Court, when made aware of the fact that Ms. Dickinson was known in September 2005, considered but rejected the more severe remedy of exclusion of the witness. The Court took into consideration the fact that the parties had taken depositions of the witness. Exclusion at that point would have punished the plaintiff rather than the attorney. Second, this remedy is narrowly tailored when considering other misconduct of counsel during the trial and for which she is not being sanctioned and for which terms are not being imposed.[[19]] ¶ 26 On appeal, Deutscher argues that she simply forgot that she heard about Dickenson during White's deposition. And she maintains that it was perfectly understandable that she would forget, because she was entitled to rely on Dr. Gabel's silence about Dickenson during discovery. ¶ 27 If the situation had been presented to the trial court as one of simply forgetting, this would be a different case. But the argument that Deutscher simply forgot about Dickenson is new on appeal. The trial court's order states: "She has never suggested, in Court or in later briefing, that she simply forgot." ¶ 28 "A trial court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law." Fisons, 122 Wash.2d at 339, 858 P.2d 1054. Deutscher dwells upon Dr. Gabel's failure to disclose Dickenson during discovery. Deutscher contends that the court's decision to sanction her was driven by the erroneous view that it was her responsibility, not Dr. Gabel's, to "ferret out" Dickenson. ¶ 29 It is true that Dr. Gabel is blameworthy for his failure to disclose Dickenson. The trial court expressly recognized that Dr. Gabel and his counsel were not justified in their failure to disclose.[20] Dr. Gabel was directly asked whether all of his employees during the past two years were still currently working for him. The inaccurate answer he gave to this question would have prevented the plaintiff from discovering a witness who had highly relevant testimony, if Dickenson had remained otherwise undisclosed. But Dickenson did not remain undisclosed. As the trial court concluded, Dr. Gabel's violation did not prejudice the plaintiff. Seven months before trial, Deutscher was provided with all of the information that made Sandra Dickenson worthy of investigation as a potentially critical witness the fact that she had been formerly employed as the nurse in Dr. Gabel's small office at approximately the same time that Summer Goble was being treated there. No appeal has been taken from the trial court's decision not to sanction 363 Dr. Gabel. We decline Deutscher's invitation to make Dr. Gabel's misconduct the pivotal point of our analysis. The issue in this appeal is whether the court erred in sanctioning Deutscher. ¶ 30 Deutscher also argues that the court's decision to sanction her was based on the erroneous view that Dickenson could have been properly excluded as a witness if the trial court had known all the facts at the beginning of trial. The trial court commented that the last-minute request to list Dickenson as a witness would have been denied "in a few minutes" but for the erroneous assertion that she was newly discovered. Deutscher argues that excluding Dickenson would have been manifestly incorrect under Burnet v. Spokane Ambulance, 131 Wash.2d 484, 497-98, 933 P.2d 1036 (1997) (disallowing evidence and limiting discovery was too severe a sanction given the length of time to trial, the severity of the injury to plaintiff, and the absence of a finding that the plaintiff had willfully violated a court order). She contends the court's remark shows that the decision to sanction Deutscher was driven "by a misplaced notion about the importance, above all else, of compliance with case management deadlines."[21] ¶ 31 We disagree. The trial court did not make a decision to exclude Dickenson. The trial court made a decision to sanction Deutscher. The court's comment that it would have excluded Dickenson was not the driving force behind the sanctions decision. The driving force behind the decision was the court's appreciation of its obligation to insist upon candor from attorneys. Misleading the court is never justified. As stated in Fisons: "Misconduct, once tolerated, will breed more misconduct and those who might seek relief against abuse will instead resort to it in self-defense." Fisons, 122 Wash.2d at 355, 858 P.2d 1054 (citation omitted). Imposing sanctions upon an attorney is a "difficult and disagreeable task" for a trial judge, but if sanctions are warranted, it is a necessary task "if our system is to remain accessible and responsible." Fisons, 122 Wash.2d at 355, 858 P.2d 1054. Fisons states that "a spirit of cooperation and forthrightness during the discovery process is necessary for the proper functioning of modern trials." Fisons, 122 Wash.2d at 342, 858 P.2d 1054. The trial court properly applied Fisons when stating, "without candor from counsel, this court cannot, and in this case, was not able to make a fully informed and fair decision under the rules of civil procedure."[22] ¶ 32 The dissent contends that the sanctions order should be reversed because the particular sanction chosen payment of the other side's attorney fees was crafted on the erroneous belief that Dickenson could have been excluded as a witness if Deutscher had been truthful at the beginning of trial. But Deutscher's misrepresentation and lack of candor to the court deserved sanction regardless of what would have happened if she had told the truth. Below, Deutscher did not accept or acknowledge her lack of candor nor did she propose that a different type of sanction, such as a payment to a court fund, would be more appropriate. At this late date and on this record, we decline to second guess the trial court's discretion in deciding the type of sanction to impose. ¶ 33 We conclude that the trial court's decision to impose sanctions was squarely based on a correct understanding of the law set forth in Fisons. We cannot say the court abused its discretion by judging Deutscher's misrepresentation to be a sanctionable act and by choosing payment of attorney fees as a sanction. ¶ 34 Affirmed. I CONCUR: SCHINDLER, C.J. DWYER, A.C.J. (dissenting) ¶ 35 I do not share the majority's comfort in viewing attorney Anne Deutscher's lack of candor to the trial court in isolation from the nature of the sanction putatively imposed as a result. The majority concludes that the trial court properly sanctioned Deutscher for failing to properly disclose when she first learned that Sandra Dickenson might be the 364 nurse who treated Summer Goble, thus learning that Dickenson might be a key witness in Goble's medical malpractice lawsuit against Dr. Jeffrey Gabel. Even accepting this characterization of the trial court's rationale for sanctioning Deutscher, however, the record demonstrates that the actual sanction imposed was unrelated to Deutscher's putative wrongful conduct. Rather, the sanction expressly reflected the trial court's erroneous view that it could have properly excluded Dickenson's testimony based on Deutscher's late disclosure of Dickenson as a witness, and that Goble's motion for sanctions against Dr. Gabel's attorney was improper. The principles articulated in Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 858 P.2d 1054 (1993), show that this late disclosure was attributable to Dr. Gabel's discovery violations, not to Deutscher's failure to independently discern Dickenson's significance as a witness. Thus, the exclusion of Dickenson's testimony would have been an abuse of the trial court's discretion. Because, accordingly, the sanction imposed on Deutscher was also a clear abuse of the trial court's discretion, I dissent. ¶ 36 Dr. Gabel performed an unnecessary hysterectomy on 22-year-old Goble, permanently depriving her of the ability to bear children. When Goble sued, Dr. Gabel altered Goble's medical records to make them appear consistent with his story that she had sought to have a hysterectomy in spite of his cautions to the contrary. In fact, he had told her that she had no other options. During discovery, Dr. Gabel repeatedly (and wrongfully) failed to disclose that Dickenson had been the nurse that treated Goble someone who could both testify that Dr. Gabel had altered Goble's medical records and that he had consistently lied about the events leading up to Goble's hysterectomy. Notwithstanding this, the majority concludes that the trial court properly sanctioned Goble's attorney, Deutscher, by awarding terms in favor of Goble's litigation adversaries. ¶ 37 The majority writes that "[t]he court's comment that it would have excluded Dickenson was not the driving force behind the sanctions decision. The driving force behind the decision was the court's appreciation of its obligation to insist upon candor from attorneys." Assuming without accepting the accuracy of this statement, the nature of the sanction still correlated directly and exactly with the trial court's erroneous belief that it would have been justified in excluding Dickenson's testimony had Deutscher been honest about when she learned of Dickenson's existence, and that Goble's motion seeking sanctions against Dr. Gabel for failing to disclose Dickenson as a possible witness was improper. The trial court made this unambiguously clear by forcing Deutscher to pay all of Providence's and Dr. Gabel's costs and attorney fees incurred as a result of interviewing Dickenson in preparation for her testimony: The Court awards terms (all attorney fees against costs) against Ms. Deutscher ... limited to time and costs related to Ms. Deutscher's groundless request for discovery at trial on the subject of an allegedly recently discovered witness, Sandra Dickenson, and for her baseless request for sanctions against a defense lawyer. The Court took Ms. Deutscher seriously, added the witness, allowed the discovery and considered sanctions against defense counsel. Ms. Deutscher was not candid to the Court about when she learned about this witness. This lack of candor caused an immense amount of trial time to be expended on discovery mid-trial. Had the truth been known, a motion to exclude (which the defendants made, and which was denied) would have disposed of the matter in less than five minutes on the first day of trial. ¶ 38 Had the trial court ordered Deutscher to make a monetary payment to the court for failing to be candid about when she learned of Deutscher's identity, I would not hesitate to affirm it. See Fisons, 122 Wash.2d at 356, 858 P.2d 1054 ("we encourage trial courts to consider requiring that monetary sanctions awards be paid to a particular court fund or to court-related funds"). However, no such sanction was ordered. Instead, the trial court ordered Deutscher to pay Providence and Dr. Gabel all of their costs and fees associated with preparing for Dickenson's trial testimony. This sanction award was expressly premised on the notion that, had Deutscher been forthcoming about when she 365 first heard of Dickenson, the trial court could have properly excluded Dickenson's testimony and, hence, no preparation for that testimony on the part of Providence and Dr. Gabel would have been required. This is entirely incorrect. ¶ 39 I do not share the majority's serenity in believing that "[t]he trial court properly applied Fisons," thereby implying that the trial court could have justifiably excluded Dickenson's testimony had Deutscher been candid. Moreover, the majority's observation that "[t]he trial court did not make a decision" to actually exclude Dickenson's testimony, is misleading the trial court explicitly crafted its sanction against Deutscher premised on the belief that it would have been justified in excluding Dickenson's testimony had Deutscher been candid about when she learned of Dickenson's existence. The sanction consisted of exactly the amount of money that Providence and Dr. Gabel would have saved if Dickenson had been excluded as a witness at the time she was disclosed by Deutscher. Under the majority's view, this sanction was consistent with the principles of Fisons because the exclusion of Dickenson's testimony would have been proper. I am convinced that this application of Fisons is exactly backwards, and that exclusion of Dickenson's testimony would have been improper under the principles of that and other cases. ¶ 40 The fundamental and overriding principle articulated in Fisons is that neither a party nor an attorney representing a party may fail to produce information responsive to properly crafted interrogatories or requests for production, and that submitting an affidavit certifying compliance with the discovery rules in the face of such failure makes sanctions against the violator mandatory. Fisons, 122 Wash.2d at 349-50, 355, 858 P.2d 1054. Here, on a minimum of three occasions, Dr. Gabel had a duty to disclose that Dickenson was the nurse who treated Goble: in response to Goble's original interrogatories, during his own deposition when directly asked who might have been Goble's treating nurse, and to supplement the deposition testimony of receptionist Maria White bringing Dickenson's existence to light. The trial court's refusal to sanction Dr. Gabel for these serious and obvious discovery violations was inexplicable and incorrect. Moreover, while this refusal is not the subject of this appeal, it is directly relevant to the propriety of the sanctions imposed against Deutscher. ¶ 41 This is so, most obviously, because those sanctions included all costs and fees incurred by Dr. Gabel and Providence in defending against Deutscher's supposedly "baseless request for sanctions against a defense lawyer." Thus, insofar as the majority "decline[s] Deutscher's invitation to make Dr. Gabel's misconduct the pivotal point" in its analysis, it ignores a significant portion of the monetary sanction imposed against Deutscher. It also skirts the necessity of addressing the absence of any basis whatsoever supporting the trial court's conclusion that Goble's motion was "baseless." ¶ 42 Less obviously, but just as importantly, the principles articulated in Fisons and the cases in accord with Fisons should lead the majority to conclude that exclusion of Dickenson's testimony would have been inappropriate as a sanction for Deutscher's misconduct. As a result of this, a monetary sanction premised solely on the trial court's incorrect conclusion that it could have properly excluded Dickenson's testimony if only Deutscher had been more forthcoming and crafted precisely to reflect that erroneous conclusion, is likewise inappropriate. "[T]he least severe sanction that will be adequate to serve the purpose of the particular sanction should be imposed." Fisons, 122 Wash.2d at 355-56, 858 P.2d 1054. ¶ 43 There was absolutely no basis for the trial court's apparent belief that the wholesale exclusion of a critical fact witness's testimony a punishment directed at Goble was the least severe sanction adequate to punish Deutscher for her apparent lack of candor. On the contrary, there is a wealth of cases holding precisely the opposite: "`it is an abuse of discretion to exclude testimony as a sanction [for noncompliance with a discovery order] absent any showing of intentional nondisclosure, willful violation of a court order, or other unconscionable conduct.'" Burnet v. Spokane Ambulance, 131 Wash.2d 484, 494, 933 P.2d 1036 (1997) (quoting Fred 366 Hutchinson Cancer Research Ctr. v. Holman, 107 Wash.2d 693, 706, 732 P.2d 974 (1987)) (alteration in original) (internal quotation marks omitted)[1] The majority's implicit endorsement of the opposite view ignores that "[o]ur overriding responsibility is to interpret the rules in a way that advances the underlying purpose of the rules, which is to reach a just determination in every action." Burnet, 131 Wash.2d at 498, 933 P.2d 1036 (citing CR 1). ¶ 44 Here, exclusion of Dickenson's testimony would not have been an appropriate sanction for Deutscher violating the trial court's witness disclosure schedule. A violation of a court order is willful only if it is done without reasonable excuse. Hyundai Motor Am. v. Magana, 141 Wash.App. 495, 511, 170 P.3d 1165 (2007). Deutscher had a more-than-adequate excuse for not believing that Dickenson was a witness with relevant testimony: Dr. Gabel's repeated (and untruthful) representations to that effect in his discovery responses. Since Fisons, discovery "responses must be consistent with the letter, spirit and purpose of the rules." Fisons, 122 Wash.2d at 344, 858 P.2d 1054. Litigants are entitled to rely on the completeness and accuracy of responses to discovery requests. ¶ 45 This notion, however, did not find its genesis in Fisons. Decades before that case, our Supreme Court made clear both that deceit during discovery is not to be rewarded and that a party's duty to exercise due diligence does not require the party to act with the presumption that the opposing party is a perjurer. In rejecting the assertion that a lawyer should always anticipate the opponent's deceit and independently investigate every fact, our Supreme Court observed: Perhaps this is so, but the matter of diligence in investigating yielded to the categorical statements, made under oath, on a subject well within a party's knowledge which could, we think, forestall further investigation of the point involved. Kurtz v. Fels, 63 Wash.2d 871, 874, 389 P.2d 659(1964). ¶ 46 Justice Hale, on behalf of the court, then unambiguously explained the lawyer's obligation: We take the rule to be that, where a party to an action, in clear and unambiguous terms under oath, asserts the existence or nonexistence of a fact whereof such party has knowledge, or in the ordinary course of affairs would be expected to have knowledge, the adverse party may rely on such statements and, in the exercise of reasonable diligence, is not required to look behind the statements. Kurtz, 63 Wash.2d at 875, 389 P.2d 659; accord Seals v. Seals, 22 Wash.App. 652, 656, 590 P.2d 1301 (1979) ("Where a party ... in clear and unambiguous terms ... asserts the nonexistence of a fact, of which that party has or should have knowledge, the requesting party may rely on such statements. The exercise of reasonable diligence does not require a party to look behind the answers."). ¶ 47 Accordingly, for over four decades, the standard to which the trial court and the majority hold Deutscher that, as Goble's lawyer, she was required to assume that Dr. Gabel was being deceitful in his discovery responses and investigate the case in that light has not been the law in Washington. ¶ 48 In fact, in order to exercise appropriate diligence, Deutscher was not required to discern that Dickenson was the nurse who had treated Goble from an offhand remark in the deposition of a third-party witness in the face of repeated assurances in Dr. Gabel's discovery responses that he had employed no nurses during the relevant period other than those he disclosed. ¶ 49 This being the case, the trial court's sanction, expressly formulated on its assumption that it would have had the discretion to properly exclude Dickenson's testimony based on Deutscher's supposed non-compliance 367 with the case scheduling order, would have been an abuse of discretion even if it had been made in response to Deutscher's violation of that order. This being so, it can hardly be said to be within trial court's discretion to impose the sanction it did here for something utterly unrelated to Dickenson's late disclosure by Deutscher: Deutscher's lack of candor about when she learned of Dickenson's existence. ¶ 50 "A trial court abuses its discretion when its order is manifestly unreasonable or based on untenable grounds. A trial court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law." Fisons, 122 Wash.2d at 339, 858 P.2d 1054 (internal footnotes omitted). The trial court's sanction of Deutscher was a clear abuse of discretion. From the majority's opinion holding to the contrary, I respectfully dissent. NOTES [1] Clerk's Papers at 1589 (Interrogatory 14). [2] Clerk's Papers at 1605. [3] Clerk's Papers at 1641-42. [4] Exhibit 65 (Excerpt of Maria White's Deposition, Sept. 29, 2005). [5] Report of Proceedings (May 4, 2006) at 5. [6] Report of Proceedings (May 4, 2006) at 6-7. [7] Report of Proceedings (May 15, 2006) at 10, 13, 14. [8] Report of Proceedings (May 16, 2006) at 3-4. [9] Report of Proceedings (May 16, 2006) at 18. [10] Report of Proceedings (May 16, 2006) at 21. [11] Report of Proceedings (May 16, 2006) at 21-22. [12] Report of Proceedings (May 17, 2006) at 35, 47. [13] Report of Proceedings (May 18, 2006, excerpt transcript) at 5. [14] Report of Proceedings (May 18, 2006, excerpt transcript) at 7-8. [15] Report of Proceedings (May 23, 2006) at 4. [16] Clerk's Papers at 1072. [17] Clerk's Papers at 1340-41, 1342, 1343 (emphasis in original). [18] Clerk's Papers at 1448, 1449, 1450-51. [19] Clerk's Papers at 1452. [20] Clerk's Papers at 1450 n. 6. [21] Appellant's Reply Br. at 19. [22] Clerk's Papers at 1451. [1] To the extent that opinions of this court prior to Burnet suggest that trial courts have unfettered discretion to exclude testimony for violations of scheduling orders, e.g., Dempere v. Nelson, 76 Wash.App. 403, 406, 886 P.2d 219 (1994), those cases were abrogated by Burnet. Moreover, those cases filed after Burnet, e.g., Lancaster v. Perry, 127 Wash.App. 826, 832, 113 P.3d 1 (2005), in which the party aggrieved by the dilatory discovery response was, itself, without culpability do not for obvious reasons control the disposition of this dispute.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2515209/	202 P.3d 983 (2009) In re the Marriage of Mary L. BAKER, Appellant, v. Jayhu C. BAKER, Respondent. No. 27242-7-III. Court of Appeals of Washington, Division 3. March 10, 2009. 984 John F. Bury, Steve Schneider, Attorneys at Law, Spokane, WA, for Appellant. Michael J. McLaughlin, Attorney at Law, Newport, WA, for Respondent. BROWN, J. ¶ 1 Mary L. Baker appeals the trial court's decision to deny execution upon one of five contiguous parcels of land belonging to her former husband, Jayhu C. Baker, that he claimed exempt under the Homestead Act, chapter 6.13 RCW. Ms. Baker appeals, arguing the homestead exemption does not apply to parcels of property not occupied by a judgment debtor. Because Mr. Baker resides on one of the contiguous parcels, and no other exemption issues are raised, we affirm the trial court. FACTS ¶ 2 In dissolving the parties' marriage, the court awarded Ms. Baker a $2,000,000 judgment with interest to be paid in $20,000 monthly installments by Mr. Baker. Mr. Baker failed to make the ordered payments. Ms. Baker then moved for judgment on the delinquent monthly amounts and sought a writ of execution on property owned by Mr. Baker, referred to as Parcel B. Parcel B is one of five contiguous parcels, one of which, Parcel A, is where Mr. Baker's home is located. The five parcels were originally Mr. Baker's parents'. All of the parcels were deeded to him as his separate property as part of the parties' property distribution. ¶ 3 The court awarded Ms. Baker a monetary judgment, but found Parcel B was exempt under the homestead act. Ms. Baker appealed. ANALYSIS ¶ 4 The sole issue on appeal is whether Parcel B is exempt from a writ of execution under the homestead act. Mr. Baker contends the parcel is part of the land surrounding the parcel his residence is built on and, therefore, is exempt under the definition of a homestead in RCW 6.13.010(1). ¶ 5 Whether the homestead act exempts property surrounding a parcel where a residence is located is a matter of statutory interpretation, which we review de novo. Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 9, 43 P.3d 4 (2002). "The homestead act `implements the policy that each citizen have a home where [the] family may be sheltered and live beyond the reach of financial misfortune.'" In re Dep. of Schermer, 161 Wash.2d 927, 953, 169 P.3d 452 (2007) (quoting Pinebrook Homeowners Ass'n v. Owen, 48 Wash.App. 424, 427, 739 P.2d 110 (1987)). Courts favor the act and construe it liberally to promote its purpose of protecting family homes. Id. ¶ 6 Under RCW 6.13.030, a home automatically becomes a homestead when the owners use the property as their primary residence. The homestead act protects up to the amount of the land's value or $125,000, whichever is less. RCW 6.13.030. The judgment amount awarded to Ms. Baker for delinquent payments totaled $100,000. The record suggests the value of the questioned parcel is under $125,000. ¶ 7 When a dwelling house is at issue, "[T]he homestead consists of the dwelling house . . . in which the owner resides or intends to reside, with appurtenant buildings, and the land on which the same are situated and by which the same are surrounded, or improved or unimproved land owned with the intention of placing a house or mobile home thereon and residing thereon." RCW 6.13.010(1) (emphasis added). ¶ 8 Ms. Baker argues the homestead exemption applies to either the land where a dwelling house is located "or" unimproved land, but not both. RCW 6.13.010(1). But, since a residence already exists on one of the parcels, the true issue is whether contiguous parcels would be characterized as "land . . . by which the same are surrounded." Id. ¶ 9 Our Supreme Court over a hundred years ago held that a homestead may consist of lots in one block on which a dwelling is situated, and lots in an adjoining block separated from a dwelling and used for other purposes. Morse v. Morris, 57 Wash. 43, 106 P. 468 (1910). The Court also held several years ago, that four lots in one tract may be set aside to widow as homestead. In re 985 Murphy's Estate, 46 Wash. 574, 90 P. 916 (1907). Several other states have held similarly. See In re Allman, 286 B.R. 402, 407 (Bankr.D.Ariz.2002) (homestead includes entire contiguous parcel of land on which a residence sits, regardless of whether it consists of one or more lots as determined by the subdivision plat or assessor's parcel numbers); Blomgren v. Van Zandt, 126 S.W.2d 506, 509 (Tex.Civ.App.1939) (head of family may designate 200 acre homestead portion out of larger contiguous acreage); McCray v. Miller, 78 Okla. 16, 184 P. 781, 784 (1919); ("homestead necessarily includes the idea of a house for a residence, or mansion house, and includes that part of a man's property which is about or contiguous to the dwelling house."). ¶ 10 These holdings are instructive because the use and enjoyment of a residence includes the surrounding property. They, together, make up the homestead. The sanctity of a homestead is the same today as it was in the early 1900s when our Supreme Court decided Morris and In re Murphy's Estate. Furthermore, we follow these holdings to give effect to our legislature's use of the term "land . . . by which the same are surrounded." RCW 6.13.010(1). Appropriately, our legislature set a $125,000 limit to avoid abuse of the homestead exemption. ¶ 11 In view of the public policy involved in our homestead statutes, the sanctity with which the legislature has attempted to surround and protect homestead rights, and the guidance provided by our Supreme Court and other state courts, the parcels that surround Mr. Baker's residence are exempt under Washington's homestead act. The trial court correctly concluded likewise. ¶ 12 Affirmed. WE CONCUR: SWEENEY and KORSMO, JJ.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1822659/	96 B.R. 413 (1989) In re Paul Nelson KING, Jr., d.b.a. Paul N. King, Jr., Electrician, and Leila M. King, Debtors. SPRINGFIELD INSTITUTION FOR SAVINGS, Plaintiff, v. Paul Nelson KING, Jr., d.b.a. Paul N. King, Jr., Electrician and Leila M. King, Defendants. Bankruptcy No. 88-40018-JFQ, Civ. A. No. 88-0194-F. United States District Court, D. Massachusetts. February 22, 1989. William F. McNamara, Pioneer Valley Legal Clinic, Springfield, Mass., for plaintiff. Steven Weiss, Cooley, Shrair, Alpert, Labovitz & Dambrov, Springfield, Mass., for defendants. MEMORANDUM AND ORDER FREEDMAN, Chief Judge. I. INTRODUCTION Before the Court is appellants Paul and Leila King's ("the Kings") Appeal From a Judgment of Nondischargeability of Debt of the Bankruptcy Court, appellee Springfield Institution for Savings' ("SIS") Memorandum in Support of Cross Appeal, and in Response to Debtor's Appeal, and appellants' Reply thereto. 414 There being no dispute as to the facts as found by Bankruptcy Judge Queenan,[1] they are hereby adopted as follows: 1. The Co-debtor, Paul N. King, Jr. (the "Debtor"), was a sole proprietor of an electrical contracting business which he began on a full-time basis in March of 1987, after having previously operated the business part-time for a few years. 2. On or about the last week in July of 1987, the Debtor inquired of the Plaintiff, Springfield Institution for Savings (the "bank"), as to the possibility of a loan. This inquiry was made to Michael Farrell ("Farrell"), a loan officer of the Bank whom the Debtor had met a few months before when renting a vacation home of Farrell's. The Debtor told Farrell that he needed additional capital to order electrical supplies in bulk at a lower price. He also told Farrell that he had credit card bills for personal items which had been incurred as a result of his cash being drained from starting the business. Farrell stated that a loan from the Bank would be at a lower interest rate than the credit card debt carried. That initial discussion concluded with a tentative plan for two loans, one to pay the credit card debt and the second being a line of credit for the business. Farrell gave the Debtor a financial statement to complete, and they arranged to meet again. 3. On August 3, 1987 the Debtor and his wife met with Farrell at Farrell's office. The Debtor brought with him the financial statement which had been completed except for the value of his home and the debt portion. The Debtor said he had a figure on their debt over and above their real estate mortgage, but that he was not sure whether to put this on the line for secured or unsecured debt. Farrell indicated they could put it all on the line for secured debt, because part of the debt was for secured debt on the car. The Debtor and his wife then inserted the figure of $31,000 on the line for secured debt. 4. The Debtor's personal debt, exclusive of business debt, amounted to about $31,000, broken down roughly as follows: car loan$18,000; home improvement loan$5,000; and credit card loans $8,000. 5. In addition, on August 3, 1987, the Debtor had about $15,000 to $16,000 of business debt incurred for the purchase of electrical supplies and equipment. Most of this debt was over 60 days old. Two of these creditors had brought suit, one having levied execution on the home and the other having attached the home. Neither the Debtor nor his wife informed Farrell of either these business debts or the two lawsuits. This omission was intentional. At the time of the meeting with Farrell, the Debtor had no more than a few hundred dollars of business receivables from which to pay these debts. 6. At the meeting of August 3, 1987, Farrell had a credit report which contained information on the existence of the credit card debt but no information on the existence of the business debt. The report indicated that only two additional supply houses had made credit inquiries. 7. On August 12, 1987, the Debtor and his wife signed two notes, one for $10,000 upon which $10,000 was immediately advanced and one for a $15,000 line of credit upon which $15,000 was advanced over a period of time. 8. The omission of the $15,000-$16,000 of trade debt from the financial statement is significant in view of the absence of offsetting receivables. Other alleged discrepancies concerning valuation were not significant. 9. In extending this credit the Bank placed substantial reliance on the financial statement in that the statement showed nothing which was contrary to the picture of a small, growing and prosperous electrical contracting business. 10. The representation in the financial statement that the Debtors had $31,000 415 of debt (other than their home mortgage) was a representation which was: materially false; respecting the Debtor's financial condition upon which the Bank reasonably relied; and which was made by the Debtor and his wife with intent to deceive. 11. Including interest through to today, the Bank's claim on the $15,000 note is $16,221.15, and on the $10,000 note is $9,914.33. Including attorneys' fees of $4,588 and disbursements of $192.13, the total claim is $30,915.61. The Court rules that the Bank's burden of proof is to convince by a fair preponderance of the evidence, not clear and convincing evidence. Kleiner v. Daboul (In re Daboul), 85 B.R. 197 (Bankr. D.Mass.1988); Stern v. Dubian (In re Dubian), 77 B.R. 332 (Bankr.D.Mass. 1987). The Bank has sustained that burden here. It would not have sustained its burden on the issue of intent had the standard been one of clear and convincing evidence, an extremely difficult standard to achieve in proving intent to deceive. In re King, No. 88-40018-JFQ, slip op. at 1-4 (Bankr.D.Mass. Aug. 10, 1988). The issues on appeal may be briefly stated as follows: (1) Did the Bankruptcy Judge apply the correct burden of proof? (2) Did SIS succeed in meeting the correct burden of proof? (3) Did the Bankruptcy Judge err by not allowing SIS to amend its complaint on the day of the trial? These issues will be discussed seriatim. II. DISCUSSION In the adversarial proceeding in the Bankruptcy Court, SIS sought to have Bankruptcy Judge Queenan declare two of the debtors' debts nondischargeable under 11 U.S.C. § 523(a)(2)(B), which states in relevant part: (a) A discharge under section 727, 1141, or 1328(b) of this title [11 U.S.C.S. § 727, 1141, or 1328(b)] does not discharge an individual debtor from any debt . . . . (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by . . . . (B) use of a statement in writing (i) that is materially false; (ii) respecting the debtor's or an insider's financial condition; (iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive. . . . In his opinion, Judge Queenan states that SIS' burden was "to convince by a fair preponderance of the evidence, not clear and convincing evidence." In re King, slip op. at 4. In support of his conclusion, Judge Queenan relies on two prior opinions he authored. Kleiner v. Daboul (In re Daboul), 85 B.R. 197 (Bankr.D.Mass.1988); Stern v. Dubian (In re Dubian), 77 B.R. 332 (Bankr.D.Mass.1987). Judge Queenan then concluded that SIS had prevailed by a fair preponderance of the evidence, but would not have if he had required clear and convincing evidence. The appellants challenge Judge Queenan's choice of standard. A. The Correct Burden of Proof 1. Appellants' Arguments As the appellants correctly state, this Court is required to conduct a de novo review of the law as applied by the trial court. The Bible Speaks v. Dovydenas, 81 B.R. 750, 754 (D.Mass.1988). The burden of proof applied by the Bankruptcy Court clearly falls within that category. The appellants argue that Judge Queenan's decision is flawed because he has disregarded a decision by the United States Bankruptcy Appellate Panel for the First Circuit which is directly on point. In re Coughlin, 27 B.R. 632 (Bankr. 1st Cir. 1983). The appellants also direct this Court's attention to In re Day, 54 B.R. 570 (Bankr. D.Mass.1985), in which Bankruptcy Judge Glennon wrote: Because the primary purpose of bankruptcy law is to relieve debtors from the 416 burden of indebtedness and exceptions to discharge are narrowly construed in favor of debtors and against creditors, an objector to discharge must establish [the elements of section 523(a)(2)(B)] with clear and convincing evidence. Id. at 572 (citations omitted). The Kings suggest that further support for the "clear and convincing" standard is also contained in In re Toscano, 23 B.R. 736, 741 (Bankr.D.Mass.1983) and in In re Valley, 21 B.R. 674, 680 (Bankr.D.Mass. 1982). In disputing appellants' position, SIS relies heavily on a split of authority in this district. Specifically, the appellee acknowledges the Coughlin ruling ("clear and convincing"), but argues that Daboul and Dubian ("preponderance") are entitled to equal precedential weight, and that this Court is free to choose the quantum of proof it thinks is most appropriate. SIS may technically be correct in stating that the Coughlin decision is entitled to no more precedential value than a district court decision. Nonetheless, this Court must still be conscious of the fact that a Bankruptcy Appellate Panel is likely better versed in the intricacies of the Bankruptcy Code than a district court such as this which deals in bankruptcy matters on an irregular basis. Upon review of the authorities cited by the parties and in light of its own research, this Court concludes that the "clear and convincing evidence" is required under these circumstances. The Court does so in large part because the cases cited by SIS are either distinguishable from the case at hand or are authority from outside this jurisdiction. Appellee's brief is marked in its failure to identify the relevant case law in this district, the weight of which clearly contradicts the bank's position. 2. Discussion of Relevant Case Law SIS begins its argument by suggesting that another district court in this jurisdiction has "expressed substantial doubts about application of the clear and convincing standard. . . ." Appellee's Response at 7, citing Kwiat v. Doucette, 81 B.R. 184 (D.Mass.1987) (Young, J.). It is true that Judge Young expounds on the difficulties of applying the clear and convincing standard. Kwiat, 81 B.R. at 190 n. 13. However, the distinction between Kwiat and the case at hand lies in the fact that Kwiat deals almost exclusively with defalcation under section 523(a)(4), a "negligent failure to act in a fiduciary capacity." Id. at 190 (emphasis added). By contrast, section 523(a)(2) deals with intentional fraud of one kind or another. As Judge Young himself recognized, "a more exacting standard is tradtionally required for positive fraud involving `moral turpitude' or some willful or intentional conduct. . . ." Id. at 190, citing generally McCormick on Evidence § 340 (1984). Dubian and Daboul, both heavily relied upon by SIS, are likewise unpersuasive, in light of the fact that both decisions are based on events readily distinguishable from the instant case. Creditors of both Dubian and Daboul had secured state court fraud judgments against them, and sought to have the Bankruptcy Court declare the underlying debts nondischargeable. Dubian, 85 B.R. at 198; Daboul, 77 B.R. at 333. The standard of proof in Massachusetts in all civil cases, including fraud, is a preponderance of the evidence. As a result, Judge Queenan concluded that it would be a waste of judicial resources to require a higher degree of proof in the Bankruptcy Court than already determined sufficient in the state court. Such a requirement would necessitate a second trial at the federal level of the issue of intent, which Judge Queenan describes as "an unnecessary exercise of judicial machinery." Daboul, 85 B.R. at 201; Dubian, 77 B.R. at 339. This Court recognizes the importance of efficient allocation of judicial resources. However, not all bankruptcy judges in this district have concluded that requiring a higher level of proof places an unnecessary strain on the federal judiciary. For instance, in In re D'Annolfo, 54 B.R. 887 (Bankr.D.Mass.1985), Judge Gabriel specifically denied issue preclusion based on a Massachusetts state court judgment because he concluded that the standard of 417 proof is higher under section 523(a)(2) than under the state fraud statute. Id. at 889. Judge Gabriel wrote that "[t]he overwhelming majority of courts (including this court) requires clear and convincing evidence in nondischargeability proceedings under § 523(a)(2)(A)." Id. While noting that some courts have opted for a "preponderance of the evidence" standard, Judge Gabriel stated that a similar section in the form Bankruptcy Act, section 17(a)(2), as well as the legislative history of section 523(a)(2), both require "clear and convincing" evidence. Id., citing L. King, 3 Collier on Bankruptcy, ¶ 523.09, at 523-24 (15th ed. Sup.1984). As SIS should recognize, the strength of Judge Queenan's analysis in both Daboul and Dubian is undercut by the inexplicable failure to reconcile the unequivocal holdings in Coughlin or D'Annolfo with his view that the correct burden of proof should be a "preponderance of the evidence."[2] Lastly, the appellee argues that Judge Queenan's "thoughtful analysis" has altered the view of at least one court in this district. Appellee's Brief, at 10. However, the support to be drawn from In re Jackson, 89 B.R. 308 (Bankr.D.Mass.1988) is shaky at best. In a case arising under sections 523(a)(2)(A) and (B), Chief Bankruptcy Judge Gabriel stated that the parties did not make an issue of the applicable standard of proof. Id. at 313 n. 4. While noting that he "has consistently held that the clear and convincing standard applies[,]" see D'Annolfo, supra, Chief Judge Gabriel acknowledged Judge Queenan's opinion in Daboul and concluded that "[f]or purposes of this opinion only and in recognition of the fact that `[v]ariations in the wording of the burden of proof . . . [may be] . . . pure abstractions unsuited to the realities of decisionmaking,' [Daboul,] 85 B.R. at 201, the Court will utilize the preponderance of the evidence standard." Id. No one should mistake Chief Judge Gabriel's tightly limited decision for a general statement in favor of the "preponderance of the evidence." As for the appellee's citations to authority from other jurisdictions, only two need specific comment. Both Combs v. Richardson, 838 F.2d 112 (4th Cir.1988) and In re Watkins, 89 B.R. 848 (Bankr.D.Wis. 1988) are cases that explicitly arise under section 523(a)(6), and as such are distinguishable for the reasons set forth in this Court's discussion of Kwiat, supra. Combs also suffers from the defect that the ruling arose in the context of issue preclusion, similar to that found in Daboul and Dubian. The effect of issue preclusion on the Fourth Circuit's decision in Combs takes on particular significance in light of the fact that other courts of appeal have consistently chosen the higher standard when not faced with the question of issue preclusion. The Eighth Circuit held that under section 523(a)(2)(A), "[c]reditors bear the burden of proof . . . and must prove each element of their claim by clear and convincing evidence." Matter of Van Horne, 823 F.2d 1285 (8th Cir.1987). The Sixth Circuit wrote that "[t]he party seeking an exception from discharge under section 523(a)(2) has the burden of proof by clear and convincing evidence." In re Martin, 761 F.2d 1163 (6th Cir.1985). It is worth noting that the Martin case arose under the same subsection as the instant case, section 523(a)(2)(B). See also, In re Bogstad, 779 F.2d 370 (7th Cir.1985) ("The standard of proof is one of `clear and convincing evidence.'"). Even if this Court were to agree with the appellee that its citations reflect a legitimate split of authority in this district regarding the appropriate burden of proof, it would still opt for the higher standard. Research in this area reveals a number of cases in this district which support the use of the higher standard. See, e.g., In re Salett, 53 B.R. 925 (Bankr.D.Mass.1985) ("The plaintiff bears the burden of proving 418 each element by clear and convincing evidence."); In re Santore, 51 B.R. 122 (Bankr.D.Mass.1985) ("The Bank, as the party seeking to except the debt from discharge, has the burden of proving by clear and convincing evidence. . . ."); In re Delano, 50 B.R. 613 (Bankr.Mass.1985) ("Each element [of section 523(a)(2)(B)] must be shown by clear and convincing evidence."); In re Mann, 40 B.R. 496 (Bankr.D.Mass. 1984) (Under section 523(a)(2)(B), "[a] creditor seeking a determination of nondischargeability of a debt has the burden of proving each element by clear and convincing evidence."); In re Leger, 34 B.R. 873 (Bankr.D.Mass.1983) ("The plaintiff bears the burden of proving each element by clear and convincing evidence."); In re Andrews, 33 B.R. 970 (Bankr.D.Mass.1983) ("The lender has the burden of proving each element of its claim under [section 523(a)(2)(B)] by clear and convincing evidence."). Based on the weight of authority before it, and lacking any compelling reason to act to the contrary, the Court hereby rules that Judge Queenan applied the incorrect burden of proof, and that SIS should have been required to prove its case by "clear and convincing" evidence. B. Did SIS Meet the Correct Burden of Proof? Having determined that the correct burden of proof is "clear and convincing," the Court now looks to see if SIS met that burden. Judge Queenan ruled that SIS had met its burden of proof by a fair preponderance of the evidence. In a somewhat unusual but helpful step, he also ruled that had he decided that the appropriate burden was "clear and convincing," SIS "would not have sustained its burden on the issue of intent. . . ." In re King, slip op. at 4. Judge Queenan's rulings in this regard are findings of fact and, as such, are reviewable under a different standard. Bankruptcy Rule 8013 states in relevant part that: "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous." Foreseeing the possibility that this Court would rule against it, SIS filed a post-trial motion in the Bankruptcy Court stating that it had met the "clear and convincing" standard. Judge Queenan denied the motion, the substance of which is presented to this Court. In essence, SIS attempts to demonstrate that the facts of this case are similar to those in Coughlin, in which it was held that a showing by clear and convincing evidence had been made. Coughlin, who was self-employed, also submitted materially false financial statements and tax returns. As the plaintiff points out, the Bankruptcy Appellate Panel concluded that the creditor had established intent by clear and convincing evidence by showing Coughlin's "reckless indifference to, or reckless disregard of, the accuracy of the information in the financial statement. . . ." Coughlin, 27 B.R. at 636. A quick examination of the specifies of Coughlin's application, however, illustrates the differences between that case and the present one. Coughlin claimed assets of $1.73 million, liabilities of $73,500, net worth of $1.66 million and annual income of $125,000. In actuality, Coughlin's true net worth was $50,000 to $60,000, and his annual income was approximately $11,500. Id. at 634. Despite some confusion as to the source of the figures, it was not unreasonable for the Bankruptcy Court to find that Coughlin's adoption of the vastly erroneous claims was "clear and convincing" evidence of his intent to deceive. Although incomplete, the application submitted by the Kings was far closer to the truth than Coughlin's. In addition, Judge Queenan received mitigating testimony as to the various omissions. For instance, although the Kings had undisclosed trade debt on the order of $15,000 to $16,000, they each testified that they thought the actual amount was closer to $8,000 to $9,000. They further testified that although they had not disclosed information regarding two lawsuits brought against them, they had set up payment plans with the respective creditors. In looking at all the facts, including the debtors' relative 419 lack of financial sophistication, Judge Queenan clearly concluded that the proof of intent offered by SIS was not "clear and convincing." This Court concludes that Judge Queenan's finding that SIS did not meet its burden of proof by "clear and convincing" evidence was not clearly erroneous, and will be upheld. C. The Denial of SIS' Motion to Amend the Complaint On the day of trial, SIS moved to amend its complaint to include the allegation that the Kings made false representations to the bank beyond those contained on their loan application. Judge Queenan denied the motion and also denied the bank's motion for reconsideration following trial. SIS claims that it did not become aware that it had a claim under section 523(a)(2)(A) until after depositions of the Kings were taken. The bank also claims that the motion was not untimely in light of the fact that it did not finally receive transcripts of those depositions until just eight days before trial. SIS also challenges any suggestion that allowing their motion to amend the complaint would have prejudiced the debtors. The evidence needed to support the section 523(a)(2)(A) charge, SIS says, was elicited during direct examination of the Kings, and the Kings' counsel had ample opportunity to challenge the evidence during cross-examination of both the debtors and the bank's loan officer, Michael Farrell. The Kings argue that the motion to amend the complaint would certainly have prejudiced them, as they prepared their case and conducted discovery on the assumption that the basis for the bank's claim was section 523(a)(2)(B). Moreover, the debtors point out that their depositions were completed nearly a month before trial, and suggest that the bank's counsel did not need copies of the transcripts to determine that a claim might lie under section 523(a)(2)(A). Judge Queenan had two opportunities to weigh the potential prejudice to debtors against the reasons for SIS' delay in filing its motion, and in both instances, he determined that the balance lay with the debtors. Upon review of the situation, this Court determines that he did not abuse his discretion in denying either motion. III. CONCLUSION For the reasons set forth above, the appellant debtors' Appeal from a Judgment of Nondischargeability of Debt of the Bankruptcy Court is ALLOWED and SIS' Cross Appeal is DENIED. The Bankruptcy Judge is reversed as to the standard of proof applicable under section 523(a)(2), and affirmed as to his finding that SIS did not meet its burden of proof. Judge Queenan is also affirmed on his denial of SIS' motion to amend its complaint. Accordingly, this case is REMANDED to the Bankruptcy Judge for proceedings not inconsistent with this opinion. It is So Ordered. NOTES [1] On cross appeal, SIS challenges the weight given the facts by Judge Queenan, who stated that while SIS had satisfied the "preponderance of the evidence" standard, it had not met the "clear and convincing" standard. See infra. [2] In fact, Judge Queenan does not even cite Coughlin. He does cite but does not discuss In re Toscano, 23 B.R. 736 (Bankr.D.Mass.1982), which held that "[f]raud and misrepresentation within the purview of Section 523(a)(2)(A) must be demonstrated by clear and convincing evidence." Id. at 739.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1820475/	945 So. 2d 239 (2006) STATE of Louisiana, Appellee, v. Jared Jermaine GIPSON, Appellant. No. 41,549-KA. Court of Appeal of Louisiana, Second Circuit. December 13, 2006. 240 Louisiana Appellate Project by Peggy J. Sullivan, Indigent Defender Board by Mary L. Harried, for Appellant. Paul J. Carmouche, District Attorney, Tommy J. Johnson, Brady D. O'Callaghan, Assistant District Attorneys, for Appellee. Before STEWART, DREW and SEXTON (Pro Tempore), JJ. STEWART, J. Jared Jermaine Gipson seeks review of his sentence for Armed Robbery with a Firearm, a violation of La. R.S. 14:64 and La. R.S. 14:64.3. The court imposed a sentence of 20 years at hard labor without benefit of probation parole or suspension of sentence in addition to a consecutive 5 years at hard labor without benefits under the enhancement statute, La. R.S. 14:64.3. A timely motion for reconsideration of sentence was denied. For the reasons that follow, we affirm the defendant's conviction and sentence. FACTS On June 14, 2005, the defendant entered Blalock's Professional Beauty College with his face covered, wearing a red hooded shirt. The defendant brandished a gun and told everyone to get on the ground. He then pulled out a garbage bag and then ordered one of the college's instructors to assist him in collecting purses. After the first instructor refused to assist him, another instructor was chosen to place items in the bag. This instructor gathered a few purses and then placed any other items she could find in the bag before the defendant realized what she was doing and took the bag. At some point, the defendant took $15.00 from a student instructor then ordered him to the back of the building. As the defendant attempted to make his getaway with the bag containing the purses and other items, he was tripped by a college employee. The defendant fell into a wall and was forced to the ground by the student instructor. The student instructor took the gun, and the defendant yelled that the gun was not loaded. Once the defendant was on the ground, many of the students and employees beat him with several items including curling irons, hair dryers, pieces of board, and a chair leg. During the melee the defendant fought to escape the college and in doing so he pushed and hit those who attempted to detain him. The defendant took several swings at one of the students, who was 241 pushed into a wall and suffered a fractured tailbone during the struggle. Once police arrived, the defendant was pulled from the crowd and handcuffed. The defendant required medical treatment for his injuries and was transported to a hospital. When interviewed in the hospital, the defendant told a detective that a couple of girls told him the school would "be an easy lick," referring to an easy robbery. The defendant reported he had obtained a gun from somewhere near the school and went in to rob the school, but the situation turned bad really fast. After a bench trial, the defendant was found guilty of armed robbery with a firearm. The defendant was sentenced to 20 years at hard labor without benefit of probation, parole, or suspension of sentence for the armed robbery and a consecutive 5 years without benefit of probation, parole, or suspension of sentence for the firearm enhancement. A multiple offender bill filed by the state was dismissed after the victims expressed their concern that the sentence the defendant could possibly receive would be excessive. DISCUSSION Excessive Sentence When, as here, a defendant's motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So. 2d 1059 (La. 1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So. 2d 164. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So. 2d 739 (La.1992); State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So. 2d 1123. In this case, the trial court considered the defendant's previous conviction for simple robbery and the fact that the defendant's probation for that offense had been revoked because of positive drug screens. The defendant also received a misdemeanor theft conviction while on probation. The trial court noted it considered the fact that the instant crime was a very violent, brazen felony offense committed against numerous young ladies. The court stated that the fact that the gun was not loaded was of no consequence in this matter. The trial court also considered the defendant's family background, the defendant's upbringing in a church environment, and the individuals who had been role models in the defendant's life, and several letters written on behalf of the defendant. The court was cognizant of the defendant's remorse, his drug addiction, and the victims' viewpoint and/or recommendations for sentencing. CONCLUSION On this record, we do not find constitutional error. The sentence of less than half of the defendant's potential minimal exposure under a multiple offender bill is lawful and is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to our sense of justice. There is no showing of an abuse of the district court's discretion in the imposition of this sentence. The sentence is affirmed. AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2496811/	62 So. 3d 1226 (2011) Robert Graham BISHOP, Appellant, v. STATE of Florida, Appellee. No. 5D10-3714. District Court of Appeal of Florida, Fifth District. June 10, 2011. *1227 Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. Robert Graham Bishop appeals an order revoking his probation and sentencing him to three years in prison followed by a new two-year probationary term on an underlying charge of attempted lewd or lascivious exhibition. The State alleged and the trial court found that Bishop violated the probationary condition requiring that he "actively participate in and successfully complete a sex offender treatment program." We affirm as to this issue. See, e.g., Adams v. State, 979 So. 2d 921, 925 (Fla.2008) (holding "that the failure of a probation order to include specific deadlines or the number of attempts the defendant will be given to complete sex offender treatment does not eliminate the trial court's discretion to revoke sex offender probation for failure to complete the program on the first try."); Woodson v. State, 864 So. 2d 512, 517 (Fla. 5th DCA 2004) ("If immediate initial attempts [at sex offender treatment] are unsuccessful and the defendant expresses a willingness to try again, other chances at compliance are a matter that should be left to the sound discretion of the trial court."). The State presented evidence below that Bishop was discharged from his first treatment program after displaying a "victim attitude" (or, seeing "himself as the one who was hurt"), and continuing to "fantasiz[e] about his past victims." He was then discharged from his second treatment program after six months. Although the second discharge was based in part on multiple absences, some of which may have been because Bishop could not afford to pay for the therapy, Bishop's counselor emphatically testified that Bishop could not continue outpatient treatment because he was resistant to therapy to the point of not being "amenable to treatment any longer" and because he continued "acting out at the time when he was last in treatment [and was] still acting out in society. ..." Given these facts, we find no abuse of discretion in the trial court's revocation of Bishop's probation. However, we do note a potential sentencing illegality in the record on appeal. Bishop's offense is a third-degree felony, which carries a five-year maximum penalty. Given that the trial court imposed a new split sentence totaling five years of confinement and supervision, Bishop must be given credit for the time he previously served on probation against the new probationary period imposed to comply with Waters v. State, 662 So. 2d 332, 333 (Fla.1995). See Edwards v. State, 59 So. 3d 1177 (Fla. 5th DCA 2011). It does not appear from Bishop's sentencing documents, in the record on appeal, that this credit was awarded. Accordingly, we remand with directions that Bishop be given any probationary credit necessary for his new split sentence to comply with Waters. AFFIRMED; REMANDED WITH DIRECTIONS. PALMER, LAWSON, and EVANDER, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2515266/	202 P.3d 289 (2009) 226 Or. App. 84 STATE v. COWAN. Court of Appeals of Oregon. February 18, 2009. Affirmed without opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2497490/	65 So.3d 500 (2009) EX PARTE PAUL A. BANFI II. Nos. 1081552, (2070519). Supreme Court of Alabama. September 11, 2009. DECISION WITHOUT PUBLISHED OPINION Cert. denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2497549/	66 So.3d 302 (2011) COCKERHAM v. AMERICAN EXP. BANK, FSB. No. SC10-2235. Supreme Court of Florida. June 21, 2011. DECISION WITHOUT PUBLISHED OPINION Review denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498311/	389 F.Supp.2d 121 (2005) Joan BENNETT, Barbara Ann Bennett, Judith Ewell, Nancy Derderian, Robert Bennett, Susan Mary Bennett, Walter Bennett, Jr., Brenda Thorburg, Francine Wilbanks, William Bennett, and Geraldine Proszek, Plaintiffs v. UNITED STATES of America, et al Defendants No. CIV.A.03-11442 RCL. United States District Court, D. Massachusetts. September 30, 2005. 122 Paul J. Gannon, Gannon & Hurley, P.C., Francis J. Hurley, Gannon & Hurley, PC, Boston, MA, Plaintiffs. Stacey Bosshardt, U.S. Department of Justice, Torts Branch, Catherine J. Finnegan, U.S. Department of Justice, Allen L. Lanstra, U.S. Department of Justice, Keith H. Liddle, Department of Justice Civil Division, Torts Branch, Washington, DC, for Defendant. MEMORANDUM AND ORDER ON THE MOTION OF THE UNITED STATES TO DISMISS LINDSAY, District Judge. This action is brought against the United States and H. Paul Rico[1] by the eleven surviving children of Walter Bennett. The case arises out of the circumstances of Walter Bennett's murder on or about December 23, 1967. The plaintiffs allege that Stephen J. Flemmi murdered Walter Bennett, and that at the time of the murder, Flemmi was both a leader in a notorious criminal organization known as the Winter Hill Gang and an informant of the FBI. On various theories, the complaint alleges that Rico and the United States bear responsibility for and are liable to the plaintiffs for Walter Bennett's murder. Count I asserts a claim against Rico under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Counts II through VIII assert claims, on various state law theories of liability, for the alleged wrongful death of Walter Bennett. These claims are made against the United States pursuant to the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346, 2401, 2671, et seq. The United States has moved to dismiss all the claims against it for lack of subject matter jurisdiction, claiming that the plaintiffs failed to present their respective administrative 123 claims to the appropriate federal agency within two years of the accrual of their claims, as required by the FTCA, 28 U.S.C. § 2401(b). The plaintiffs oppose the motion to dismiss. I grant the motion to dismiss without reaching the grounds asserted by the United States. As noted above, all the plaintiffs' claims against the United States made pursuant to the FTCA, arise out of the alleged wrongful death of Walter Bennett. The relief sought by the plaintiffs is typical of relief sought in a wrongful death action. That is, the plaintiffs seek recovery for "the loss of parental consortium, society and companionship of [Walter Bennett] and resultant emotional distress ..." First Amended Complaint, ¶ 109. The claims asserted by the individual plaintiffs in this case, however, can only be brought by an executor or the administrator of the Estate of Walter Bennett, pursuant to the Massachusetts wrongful death statute, Mass. Gen. L. ch. 229, § 1, et seq. It is well settled under Massachusetts law that the wrongful death statute "requir[es] that any action for wrongful death be brought by a personal representative on the behalf of the designated categories of beneficiaries [set forth in Mass. Gen. L. ch. 229 § 1]." Gaudette v. Webb, 362 Mass. 60, 71, 284 N.E.2d 222 (1972). The Supreme Judicial Court has interpreted the wrongful death statute categorically in the following terms: "The wrongful death statute provides for a single action brought by the decedent's executor or administrator. The executor or administrator presents all claims by the designated beneficiaries for damages flowing from the wrongful death." Hallett v. Town of Wrentham, 398 Mass. 550, 555, 499 N.E.2d 1189 (1986). (emphasis added). The executor or administrator "merely acts as representative or conduit for the children's recovery." Gaudette, 362 Mass. at 72, 284 N.E.2d 222. Two of the claims brought by the individual defendants in this case are claims for "emotional distress." Count VI alleges negligent infliction of emotional distress, and count VII alleges intentional infliction of emotional distress. Although the SJC has held that certain emotional distress claims are not preempted by the wrongful death statute, Cimino v. Milford Keg, Inc., 385 Mass. 323, 431 N.E.2d 920 (1982), the emotional distress claims here can only be brought by the estate, because they are claims essentially for the sorrow and grief that the plaintiffs have experienced as a consequence of the loss of their father. Indeed, the plaintiffs describe their emotional distress as "resultant" of their loss of the consortium, society and companionship of their father. First Amended Complaint, ¶ 109. The plaintiffs' claims thus are not claims of psychological shock arising from their having witnessed the conduct leading to Walter Bennett's death; that is, they are not the kind of emotional distress claims excluded from the purview of the wrongful death statute. See Miles v. Edward O. Tabor, M.D., 387 Mass. 783, 443 N.E.2d 1302 (1982) (holding that plaintiff's claims for grief and sorrow over her son's death were indistinct from her claim for wrongful death, because there was insufficient evidence that such emotional suffering resulted from witnessing the conduct that caused the plaintiff's son's death.); see also Cimino, 385 Mass. at 334, 431 N.E.2d 920 (distinguishing individually recoverable emotional distress, in the form of "severe psychological shock, directly resulting from experiencing or witnessing, the effects of a defendant's conduct" from the emotional distress in the form of loss of consortium recoverable only by an estate pursuant to the wrongful death statute.) As the Supreme Judicial Court has said: "The two claims are theoretically different and deal with different responses to the same wrong, even though a plaintiff *124 might have difficulty sorting out whether a particular emotional response is attributable to the loss of consortium or to the direct effect of the wrong...." Nancy P. v. D'Amato, 401 Mass. 516, 523 n. 9, 517 N.E.2d 824 (1988). I conclude that all the claims made by the individual plaintiffs in this case are wrongful death claims and as such may not be brought individually by these plaintiffs.[2] The waiver of the sovereignty of the United States, granted by the FTCA, only makes the United States liable for the wrongful conduct of its employees, acting within the scope of their employment, "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). Because a private party in Massachusetts would not be liable to the individual plaintiffs here for the claims asserted in this case, those claims may not be asserted against the United States. In other words, in Massachusetts, a private party would only be liable for wrongful death to the estate of the deceased person, not to individual beneficiaries. Thus, the United States is not liable here. Accordingly, counts II thought VIII of the first amended complaint are dismissed. Furthermore, because no entity has been substituted for the defendant, Rico, following his death, the claim against him asserted in count I likewise is dismissed. The action I have taken here amounts to a sua sponte dismissal of the plaintiffs' claims. The First Circuit has warned that "[s]ua sponte dismissals are strong medicine and should be dispensed sparingly." Cepero-Rivera v. Fagundo, 414 F.3d 124, 130 (1st Cir.2005) (quoting Chute v. Walker, 281 F.3d 314, 319 (1st Cir.2002)). Furthermore, "such dismissals are erroneous unless the parties have been afforded notice and an opportunity to amend the complaint or otherwise respond." Id. (internal quotation marks and citations omitted). For that reason, the orders of dismissal contained in this memorandum and order shall be conditional for a period of twenty-one days from the date hereof. The plaintiffs must show cause not later than October 21, 2005 why a final order of dismissal should not be entered for the reasons set forth in this memorandum and order. If the plaintiffs fail to respond within the time prescribed or fail adequately to show cause within that time, the order of dismissal, entered today, shall become a final order of dismissal. If the plaintiffs file a brief and/or other papers, in response to the order to show cause, the United States shall have fourteen days from the date of that filing to respond. SO ORDERED. NOTES [1] The complaint alleges that, at relevant times, the defendant, H. Paul Rico, was an agent of the Federal Bureau of Investigation ("FBI"). This case is one of several assigned to me that raise the issue of the liability of the United States and certain agents of the FBI for the murder by informants of the FBI of various individuals. In the lead case, Estate of McIntyre v. United States, et al, C.A. No. 01-10408-RCL, a suggestion of the death of Rico was filed on January 20, 2004. By virtue of having been filed in that case, into which I have consolidated the several cases of this genre for pretrial purposes, the suggestion of death applies to the present case. [2] The Estate of Walter Bennett has a companion case before me in which the Estate makes claim for the wrongful death of Walter Bennett. Joan Bennett, Administratrix of the Estate of Walter Bennett v. United States, et al, Civil Action No. 04-10011-RCL.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2497624/	84 F. Supp. 2d 784 (2000) UNITED STATES of America, Plaintiff, v. Lonnie GIBSON and E. Carol Gibson, Defendants. No. Crim.A. 2:99-00092. United States District Court, S.D. West Virginia, Charleston Division. February 14, 2000. 785 L. Anna Crawford, Assistant United States Attorney, Charleston, WV, for plaintiff. Brian J. Kornbrath, Assistant Federal Public Defender, Charleston, WV, Michael R. Cline, Charleston, WV, for defendants. MEMORANDUM OPINION AND ORDER GOODWIN, District Judge. Pretrial motions filed by the United States presented the following issues: 1) whether the defendants could introduce the hearsay statements made by the late Arnold Browning during his examination under oath; and 2) whether the United States could introduce additional hearsay statements made by Browning to his sister, Rose Hinkle. The United States sought to introduce Browning's statements to his sister either as substantive evidence or to impeach Browning's statements made during his examination under oath. At a pretrial conference held on January 11, 2000, the court ruled that the defendants could introduce Browning's hearsay statements made during his examination under oath and that the United States could introduce Browning's statements to his sister solely for impeachment purposes. The court informed the parties that it would further explain its ruling in a written opinion, which is set forth below. I. The superseding indictment filed against the defendants in this matter arises from a fire that destroyed the defendants' home on May 27, 1996. The defendants attempted to collect on a homeowner's insurance policy issued to them by State Farm General Insurance Company (State Farm). State Farm refused to pay the defendants the policy proceeds, and the defendants subsequently sued State Farm in the United States District Court for the Southern District of West Virginia, alleging that State Farm acted in bad faith in failing to pay the insurance proceeds. The superseding indictment alleges that the defendants intentionally set fire to their home as part of a scheme to defraud and obtain money from State Farm and charges the defendants with five counts of mail fraud, one count of use of fire to commit a federal felony, and four counts of perjury for lying under oath in the civil case against State Farm. In his notice of alibi in the criminal action, Mr. Gibson states that he intends to introduce statements that Browning, a friend of his, made in an examination under oath during the pendency of the civil action. During that examination by State 786 Farm, Browning supported Mr. Gibson's alibi that he was fishing on the Tug River in West Virginia for approximately one week prior to the fire. Browning was killed in an automobile accident prior to the trial in the civil action. The United States objects to the admission of Browning's statements on the basis that they are hearsay and therefore inadmissible. If the court admits the examination under oath, the United States then requests the court to admit additional hearsay statements made by Browning to his sister, Rose Hinkle. According to the United States, Browning admitted to Hinkle that he and Mr. Gibson set fire to the Gibson home. II. Browning's statements made during his examination under oath clearly constitute hearsay. They are out-of-court statements offered by the defendants to prove the truth of the matter asserted. See Fed.R.Evid. 801(c). The defendants argue, however, that the statements are admissible under Rule 804(b)(1) of the Federal Rules of Evidence, which provides: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Id. 804(b)(1). Browning is deceased and therefore unavailable as a witness in the criminal trial. His former testimony was made under oath. The determination of whether Browning's statements in his examination under oath fall within Rule 804(b)(1) therefore rests upon whether "the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." Id. The United States did not have an opportunity to develop Browning's testimony that was taken in preparation for the civil action filed against State Farm. The defendants argue, however, that State Farm conducted Browning's examination under oath and had the same motive as the United States to challenge Browning's reliability. This court agrees. In defense of the civil action filed against it by the defendants, State Farm asserted that the defendants intentionally set fire to their residence and that it was therefore proper to deny them coverage. (Def.Resp. to Gov't Mot. in Limine Ex. 1.) State Farm therefore had a motive to challenge Mr. Gibson's fishing trip alibi, which was supported by Browning. The United States seeks to prove that the defendants intentionally set fire to their home as part of a scheme to defraud State Farm. If the United States had been given the opportunity to examine Browning under oath, its motive to develop Browning's testimony would be very similar to that of State Farm. According to the Fifth Circuit, "[i]f a party in a civil case and the government in a later criminal case have sufficiently similar incentives to develop the testimony, [there is] no reason to conclude that [Rule 804(b)(1)] is necessarily and always unavailable to a criminal defendant." United States v. McDonald, 837 F.2d 1287, 1292-93 (5th Cir.1988). In fact, prohibiting a criminal defendant from introducing former exculpatory testimony that satisfies the similar motives test implicates due process considerations. See 2 McCormick on Evidence § 303, at 293 (5th ed.1999). Although the United States and State Farm had similar motives to develop Browning's testimony, the United States contends that such testimony remains inadmissible because State Farm was not a "predecessor in interest" of the United States. The 787 Fourth Circuit has held, however, that "privity is not the gravamen of the analysis" under Rule 804(b)(1). Horne v. Owens-Corning Fiberglas Corp., 4 F.3d 276, 283 (4th Cir.1993); see Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc., 71 F.3d 119, 128 (4th Cir.1995) (quoting Horne and then noting that privity would present little problem "even if privity was a concern in the analysis under Rule 804(b)(1)" (emphasis added)). Rather, the Fourth Circuit requires the party against whom the sworn testimony is offered to "point up distinctions in her case not evident in the earlier litigation that would preclude similar motives of witness examination." Supermarket of Marlinton, 71 F.3d at 128 (quoting Horne, 4 F.3d at 283). The United States has failed to offer such distinctions. The court therefore finds that the United States and State Farm had a similar motive to develop Browning's testimony under oath and that Browning's statements are admissible under Rule 804(b)(1) of the Federal Rules of Evidence. Accordingly, the motion in limine of the United States to exclude Browning's statements is DENIED. III. A. Having found Browning's former testimony to be admissible, the court must address the request of the United States to introduce additional hearsay statements that Browning allegedly made to his sister, Rose Hinkle. After viewing a local television news story about the fire that destroyed the Gibson residence, Browning allegedly told Hinkle that he assisted Mr. Gibson in setting the fire in return for a motorcycle and $1,000, which Browning never received. The United States asserts that these additional hearsay statements are admissible as substantive evidence under the following Federal Rules of Evidence: as a present sense impression under Rule 803(1), as an excited utterance under Rule 803(2), as relating to Browning's state of mind under Rule 803(3), as statements against Browning's penal interest under Rule 804(b)(3), and under the residual exception found in Rule 807. The court finds that the arguments of the United States concerning the application of Rules 803(1), 803(2), 803(3), and 807 to Browning's statements are without merit. The potential application of Rule 804(b)(3) deserves further consideration. Rule 804(b)(3) of the Federal Rules of Evidence provides: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. Fed.R.Evid. 804(b)(3). Browning is deceased and therefore unavailable as a witness in these criminal proceedings. Further, his statements admitting his involvement in setting the Gibson residence on fire tended to subject him to criminal liability at the time they were made and would not have been made unless Browning believed them to be true. His statements are therefore against his penal interest and fall under Rule 804(b)(3). Browning's statements are not, however, automatically admissible as substantive evidence against the defendants. Browning's statements equally inculpate himself and Mr. Gibson and therefore raise the issue of whether their admission would violate Mr. Gibson's Sixth Amendment right "to be confronted with the witnesses against him." US Const. amend. VI. In Lilly v. Virginia, 527 U.S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999), the Supreme Court considered whether an accused's Sixth Amendment right is violated by admitting into evidence at his trial a nontestifying accomplice's confession containing statements against the accomplice's penal interest and statements inculpating the accused. Lilly, 119 S.Ct. at 1892. In a plurality opinion, the Court expressed concern 788 about denying an accused his right to subject a declarant to cross-examination, the "greatest legal engine ever invented for the discovery of truth." Id. at 1894 (quoting California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970)). The plurality reiterated its prior holding that the untested admission of a hearsay statement against an accused is only permitted when "(1) `the evidence falls within a firmly rooted hearsay exception' or (2) it contains `particularized guarantees of trustworthiness' such that adversarial testing would be expected to add little, if anything, to the statements' reliability." Id. (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980)). Regarding the first factor in the Roberts test, the Lilly plurality clearly stated that "accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." Id. at 1899. In support of this holding, the plurality cited several of its prior cases in which it emphasized the principle that "accomplice confessions that inculpate a criminal defendant are not per se admissible (and thus necessarily fall outside a firmly rooted hearsay exception), no matter how much those statements also incriminate the accomplice."[1]Id. at 1899 n. 5 (citing Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998); Cruz v. New York, 481 U.S. 186, 107 S. Ct. 1714, 95 L. Ed. 2d 162 (1987); Lee v. Illinois, 476 U.S. 530, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986); Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968)). Applying this principle and the Supreme Court's express holding in Lilly, the court finds that although Browning's statements fall within Rule 804(b)(3), they equally inculpate Mr. Gibson and are therefore not within a firmly rooted exception to the hearsay rule. The Confrontation Clause, however, does not place a blanket ban on the introduction by the United States of hearsay statements that inculpate a criminal defendant. Id. The United States may still introduce into evidence Browning's statements if they contain "`particularized guarantees of trustworthiness' such that adversarial testing would be expected to add little, if anything, to the statements' reliability." Id. at 1894 (quoting Ohio, 448 U.S. at 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597). A hearsay statement may contain such guarantees of trustworthiness in an exceptional case in which the statement is incontestably reliable, competent, and probative. Id. at 1900. In order to allow the United States to introduce Browning's statements, this court must therefore be confident that Browning's "truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility." Id. (quoting Idaho v. Wright, 497 U.S. 805, 820, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990)). The court does not believe that Browning's statements that inculpate himself and Mr. Gibson constitute the exceptional case in which the statements are incontestably reliable and their truthfulness so clear from the surrounding circumstances. The Seventh Circuit has recently found statements similar to those Browning made to his sister as possessing sufficient indicia of reliability to warrant their admission. See United States v. Robbins, 197 F.3d 829, 839-40 (7th Cir.1999). In Robbins, the Seventh Circuit focused on the fact that the declarant's confession did not shift blame to co-criminals, was not made while in the custody of law enforcement authorities, and was voluntarily made to his fiancee and confidante. Id. The court therefore 789 concluded that the declarant had no ulterior motive or other reason not to tell the truth. Id. Although Browning's statements were made to his sister rather than to law enforcement officers and do not appear to shift blame to Mr. Gibson, this court does not find that such factors are sufficient to demonstrate that Browning's statements are incontestably probative, competent, and reliable. This court therefore disagrees with the view held by the Seventh Circuit and by commentators that Lilly does not apply to non-custodial confessions or to confessions that do not spread blame to co-criminals. See, e.g., id.; Leading Cases, 113 Harv.L.Rev. 233, 241 (1999). Further, this court believes that, in this instance, cross-examination could be of much more than marginal utility. The court therefore finds that permitting the United States to offer Browning's statements to his sister in its case-in-chief would violate Mr. Gibson's Sixth Amendment right to "be confronted with the witnesses against him." US Const. amend. VI. The court DENIES the request of the United States to introduce Browning's statements to his sister as substantive evidence. B. In the alternative, the United States seeks to introduce Browning's statements to his sister to impeach the statements Browning made during his examination under oath. Rule 806 of the Federal Rules of Evidence permits impeachment of a hearsay statement and provides: When a hearsay statement ... has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. Fed.R.Evid. 806. If Browning were still alive and able to testify consistent with his examination under oath, Rule 613(b) of the Federal Rules of Evidence would permit the United States to impeach him through extrinsic evidence of a prior inconsistent statement. Browning's statements to his sister disclose that he and Mr. Gibson set fire to the Gibson residence. The statements are therefore inconsistent with Browning's testimony in his examination under oath in which he supported Mr. Gibson's fishing trip alibi. Rule 806 therefore permits the United States to use Browning's statements to his sister to attack the credibility of his examination under oath. It is not necessary that Browning have been provided an opportunity to deny or explain the inconsistency. See id. The defendants argue that the Supreme Court's decision in Lilly should preclude not only admission of Browning's statements to his sister as substantive evidence, but admission for impeachment purposes as well. Although this court recognizes that methods of impeachment may implicate the Confrontation Clause, see, e.g., United States v. Hall, 989 F.2d 711, 716 n. 10 (4th Cir.1993); Joyner v. United States, 547 F.2d 1199, 1201 (4th Cir.1977), this court does not read Lilly as preventing the United States from introducing certain of Browning's statements to his sister to impeach the statements he made under oath. Throughout its Confrontation Clause analysis, the Court in Lilly was concerned with hearsay "evidence offered by the prosecution to establish the guilt of an alleged accomplice of the declarant." Lilly, 527 U.S. 116, 119 S.Ct. at 1895, 144 L. Ed. 2d 117; see id. at 1897-1901. That is, Lilly addresses hearsay statements offered by the prosecution for the purpose of establishing the guilt of the defendant, not for the purpose of impeaching hearsay testimony introduced by the defendant. Using Browning's statements to his sister to impeach his sworn testimony will have the additional impact of implicating Mr. Gibson in the cause of the fire. Rule 403 of the Federal Rules of Evidence permits this court to exclude the statements 790 "if [their] probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed.R.Evid. 403. Significant probative value exists in permitting the United States to use Browning's statements to impeach his testimony under oath. Browning's prior testimony supports Mr. Gibson's fishing trip alibi and constitutes strong evidence against the United States. Browning's statements to his sister directly contradict this prior testimony and are directly probative of Browning's credibility. Although Browning's statements to his sister inculpate Mr. Gibson, their probative impeachment value is not "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Id.; see United States v. Sisto, 534 F.2d 616, 622 (5th Cir.1976) (stating that prior inconsistent statements are admissible for impeachment and that it makes no difference that the statements "tend directly to inculpate the defendant"). This is not a case in which the United States is seeking to impeach its own witness as a subterfuge to place before the jury evidence that is otherwise inadmissible. See, e.g., United States v. Morlang, 531 F.2d 183, 190 (4th Cir.1975). The United States would only introduce Browning's statements to his sister in an attempt to question Browning's credibility and to raise doubts about the reliability of his examination under oath. Any resulting prejudice to the defendants would not be unfair or substantially outweigh the statements' probative impeachment value. Further, the court would provide a cautionary instruction to the jury concerning the difference between substantive and impeachment evidence. This instruction would reduce the danger of unfair prejudice, confusion of the issues, or misleading of the jury that might otherwise occur. See Sisto, 534 F.2d at 624 (allowing impeachment testimony that provides devastating evidence with respect to the one contested element of the crime, as long as the court provides a cautionary instruction). Having conducted the Rule 403 balancing test, the court finds that the danger of unfair prejudice, confusion of the issues, or misleading the jury does not substantially outweigh the significant probative impeachment value of Browning's statements to his sister. The court GRANTS the request of the United States to introduce Browning's statements to his sister for impeachment purposes. IV. For the foregoing reasons, the court DENIES the motion in limine filed by the United States to exclude Browning's statements made during his examination under oath, DENIES the request of the United States to introduce Browning's statements to his sister as substantive evidence, and GRANTS the request of the United States to introduce Browning's statements to his sister for impeachment purposes. The Court DIRECTS the Clerk to send a copy of this Order to the defendant and counsel, the United States Attorney, the United States Probation Office, and the United States Marshal. NOTES [1] Consistent with this principle, several states, including West Virginia, have provided statutorily that not only do such confessions fall outside a firmly rooted hearsay exception, but they also do not fall within the against-penal-interest hearsay exception in the first place. Lilly, 527 U.S. 116, 119 S.Ct. at 1899 n. 4, 144 L. Ed. 2d 117 (citing various state statutes and court decisions, including In Interest of Anthony Ray Mc., 200 W.Va. 312, 489 S.E.2d 289, 298 (1997)).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2497587/	84 F. Supp. 2d 1241 (1999) HIGH COUNTRY HOME HEALTH, INC., Plaintiff, v. Donna E. SHALALA, Secretary of the United States Department of Health and Human Services; Defendants. No. 97-CV-1036-J. United States District Court, D. Wyoming. December 20, 1999. R. Douglas Dumbrill, Lubnau Hand & Bailey, Gillette, WY, Charles F. MacKelvie, Suzanne Ellis, David J. Ryan, MacKelvie & Associates, Chicago, IL, for High Country Health Inc., a Wyoming corporation, plaintiff. L. Robert Murray, Thomas D. Roberts, U.S. Attorney's Office, Cheyenne, WY, 1242 Donald H. Romano, Department of Health and Human Services, Baltimore, MD, Elizabeth E. Kondonijakos, Department of Health and Human Services, Washington, DC, for Health and Human Services Secretary aka Donna E. Shalala, defendant. ORDER GRANTING PLAINTIFF'S MOTION FOR AN ORDER DECLARING UNLAWFUL AND SETTING ASIDE SECRETARY SHALALA'S MAY 20, 1997 DECISION DENYING PLAINTIFF REIMBURSEMENT FOR CERTAIN PHYSICAL THERAPY EXPENSES ALAN B. JOHNSON, Chief Judge. The Plaintiff's Motion for An Order to Declare Unlawful and Set Aside Secretary's Decision of May 20, 1997 and the Defendant's Memorandum in opposition thereto came before the Court for hearing April 28, 1998. Appearing for plaintiff were Charles MacKelvie of Chicago, Illinois and R. Douglas Dumbrill of Gillette, Wyoming; appearing for the defendant were Robert Murray, Assistant United States Attorney, Elizabeth Kondonijakos of Washington, D.C. and Donald Romano of Baltimore, Maryland. The Court, after hearing arguments of counsel, and after having reviewed the pleadings and administrative record, and the applicable law, FINDS and ORDERS as follows: Background This is an appeal of an order of the Secretary's May 20, 1997 decision denying plaintiff reimbursement for certain physical therapy expenses. The Secretary's decision reverses the unanimous decision of the Provider Reimbursement Review Board (PRRB) and denies plaintiff reimbursement for certain physical therapy expenses plaintiff incurred in providing Medicare services. The Secretary's decision denied plaintiff approximately $28,000 of its claimed reimbursement for the costs of physical therapy services provided by plaintiff's physical therapists to Medicare beneficiaries.[1] The plaintiff's employee therapists were paid on a fee for service basis rather than upon a salaried basis, with average fee for service of $62.19. The Secretary, pursuant to a provision of the Provider Reimbursement Manual, applied the Salary Equivalency Guidelines, which are cost limits to these services, to set a rate of $51.04 per visit for the region in question. The plaintiff contends that the Secretary erroneously applied the Salary Equivalency Guidelines, pursuant to 42 U.S.C. § 1395x(v)(5)(A), authorizing her to establish limits on the amount that a provider of Medicare services may be reimbursed for physical therapy services provided by outside suppliers. Plaintiff argues that the Secretary should not have applied the Salary Equivalency Guidelines to limit reimbursement for services that were provided by plaintiff's own employees. The PRRB concluded that there was no statutory or regulatory basis for the application of the Salary Equivalency Guidelines to employee physical therapists. Plaintiff is a Wyoming corporation providing home health care to Medicare beneficiaries and other patients in Wyoming. The dispute arises because plaintiff's employees and it is not disputed that they are in fact employees are paid on a fee-per-visit basis rather than on a salaried or hourly basis. Plaintiff withholds applicable taxes, pays FUTA, SUTA, and workers' compensation insurance, maintains an office for its employees, and employees are entitled to participate in High Country's health insurance plan and stock purchase plan, in accordance with the company's eligibility requirements. Under the applicable statutes, a Medicare provider is entitled to be reimbursed actual costs, both direct and indirect, found to be necessary to the efficient delivery of needed health services. An exception to 1243 the general rule that a provider's reasonable costs are to be reimbursed is a limit established by Congress on the amount that a provider may be reimbursed for physical therapy services it provides "under an arrangement" with another provider, usually pursuant to an arrangement with an outside supplier as opposed to services rendered through the provider's own employees. The limitation is that costs of services of physical therapists furnished under arrangements with a provider of services may not exceed an amount equivalent to the prevailing salary and additional costs that would reasonably have been incurred by the provider had such services been performed by such person in an employment relationship, plus the cost of other reasonable expenses incurred by such person in furnishing services under such an arrangement. Plaintiff argues that pursuant to the Medicare statute, regulations and instructions implementing it, the Salary Equivalency Guidelines do not apply to bona fide employees. Plaintiff seeks to have the Secretary's decision set aside because it is contrary to the language and purpose of the Medicare Act; it imposes language that does not exist in the regulations; and it is contrary to the agency's prior constructions. Plaintiff argues that the Secretary's focus on the term "salaried" is misplaced. Plaintiff states that nothing in the applicable law requires periodic compensation of a provider's employees or excludes payment on a fee for service basis. Plaintiff argues as well that the application of the Salary Equivalency Guidelines to the plaintiff's employees constitutes an unlawful retroactive application of a rule. Even if 42 U.S.C. § 1395x(v)(5)(A) and 42 C.F.R. § 412 did not authorize limiting reimbursement for physical therapy services provided by employees, application of the Guidelines would be arbitrary, capricious and contrary to law, because the data on which the Guidelines are based is flawed and have not been updated properly. There was no finding that the provider's employee physical therapists' costs were substantially out of line with physical therapy costs paid by other home health agencies. The Secretary responds by arguing that pursuant to a provision of the interpretive Provider Reimbursement Manual (PRM) and longstanding agency policy, the cost limits established by 42 U.S.C. § 1395x(v)(5)(A) (the Salary Equivalency Guidelines) apply. The cost limits set a rate of $51.04 per visit for the region in question. Defendant contends the Secretary's decision is not arbitrary, capricious and is also supported by substantial evidence. Defendant further asserts that the Secretary has sufficient discretion under the Act to consider certain situations, such as this one, to be "under an arrangement" where they present the same compensation scheme (fee for service) and are present for traditional outside supplier arrangements. The Secretary also urges this Court to regard the PRRB as an intermediate tribunal within the Department and suggests that courts should give broad deference to the Secretary's decision overruling the PRRB, where the Secretary's interpretation of the regulation at issue is reasonable. Defendant contends that the Medicare statute authorizes the application of Salary Equivalency Guidelines to fee for service arrangements involving employees. The application of the Guidelines to all fee for service arrangements is consistent with the language of 42 U.S.C. § 1395x(v)(5)(A). The statute provides that where physical therapy services are provided under an arrangement, the amount the provider will receive can be no more than the amount of a reasonable salary had the therapist been an employee of the provider. The statutes do not define the term "under an arrangement," but the defendant contends arrangements are, however, broadly defined in 1395x(w). The Secretary urges that the definition of arrangement does not refer in any way to the employment status of the individual or entity furnishing the service, and that the definition does not exclude employee situations, 1244 because in employment situation receipt of Medicare payment by the provider discharges the beneficiary of liability to the employee furnishing the service. The Secretary asserts that the application of the guidelines is consistent with congressional intent in enacting 42 U.S.C. § 1395x(v)(5)(A). It is authorized by 42 U.S.C. § 1395x(v)(1)(A), which mandates that the Guidelines be applied to certain situations, but does not prohibit the Secretary from developing and applying Guidelines to other situations. The statute does not otherwise limit the Secretary's authority to define what are and what are not reasonable costs. Determination of "reasonable costs" is an exercise of "broad discretion." Defendant argues that given the complexity of Medicare reimbursement, it is reasonable to expect the Secretary to address certain situations not contemplated by Congress through the issuance of interpretive rules (which are applied through the adjudicative process) as long as such interpretations are consistent with the relevant statutes and regulations. The Secretary also argues that longstanding agency policy has been to apply the Guidelines to all fee for service arrangements without regard to whether the service provider was an outside contractor or an employee or something in between. Defendant disagrees with plaintiff and states that the Guidelines have been calculated as required by the regulations and have been adequately updated. In the Secretary's decision, she also discussed the proposed March 1997 rule and argues this is entirely proper to rebut the plaintiff's contention that the Secretary improperly considered the proposed rule in making the decision. The proposed rule is stated to "clarify" that the Guidelines apply to fee for service arrangements involving employees. This proposed change is lumped together with discussion of other changes in policies that were proposed in the March 1997 rule; however, the overall policy has been in existence since 1977. Finally, the defendant argues that the question of whether plaintiffs costs were substantially out of line is not relevant, because the Secretary was entitled to apply cost limit guidelines. Plaintiff's reply reiterates that the Salary Equivalency Guidelines apply only to those situations where services are provided by those not working as an employee. The disclosures to Medicare made by High Country list salaries and wages, including all monies paid to employees, and including monies paid on a per visit basis. Standard of Review The scope of review is governed by 42 U.S.C. § 1395oo(f), which provides that an appeal of a final decision by the Board must be pursued under the judicial review sections of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Under the Act, a court may set aside an agency action that is arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). Agency action may also be set aside if it is unsupported by substantial evidence in cases in which an agency hearing is reviewed on the record. 5 U.S.C. § 706(2)(E). See Thomas Jefferson University v. Shalala, 512 U.S. 504, 114 S. Ct. 2381, 2386, 129 L. Ed. 2d 405 (1994); Medical Rehabilitation Service, P.C. v. Heckler, 803 F.2d 720 (Table), Unpublished Disposition, Text at 1986 WL 17724 (6th Cir.1986). A reviewing court must defer to the Secretary's interpretations of the agency's interpretations of its own regulations unless it is plainly erroneous or inconsistent with the regulation. Thomas Jefferson University v. Shalala, 512 U.S. 504, 114 S.Ct. at 2386. Discussion The Medicare Act provides reimbursement to Medicare providers for the lesser of the reasonable costs or customary charges for services furnished to Medicare patients. High Country Home Health, Inc. is a Medicare provider. Section 1395x(v)(1)(A) of Title 42, United States Code, defines reasonable costs to be "the cost actually incurred, excluding therefrom 1245 any part of incurred cost found to be unnecessary in the efficient delivery of needed health services[.]" 42 U.S.C. § 1395x(v)(5)(A) provides: Where physical therapy services, occupational therapy services, speech therapy services, or other therapy services or services of other health-related personnel (other than physicians) are furnished under an arrangement with a provider of services or other organization, specified in the first sentence of subsection (p) of this section (including through the operation of subsection (g) of this section) the amount included in any payment to such provider or other organization under this subchapter as the reasonable cost of such services (as furnished under such arrangements) shall not exceed an amount equal to the salary which would reasonably have been paid for such services (together with any additional costs that would have been incurred by the provider or other organization) to the person performing them if they had been performed in an employment relationship with such provider or other organization (rather than under such arrangement) plus the cost of such other expenses (including a reasonable allowance for travel time and other reasonable types of expense related to any differences in acceptable methods of organization for the provision of such therapy) incurred by such person, as the Secretary may in regulations determine to be appropriate. 42 U.S.C. § 1395x(v)(5)(A). Pursuant to the enabling statute, the Secretary promulgated regulations set forth at 42 C.F.R. § 413.160, entitled "Reasonable cost of physical and other therapy services furnished under arrangements." The regulation provides, in relevant part, as follows: (a) Principle. The reasonable cost of the services of physical, occupational, speech, and other therapists, and services of other health specialists (other than physicians), furnished under arrangements (as defined in section 1861(w) of the Act) with a provider of services, a clinic, a rehabilitation agency or a public health agency, may not exceed an amount equivalent to the prevailing salary and additional costs that would reasonably have been incurred by the provider or other organization had such services been performed by such person in an employment relationship, plus the cost of other reasonable expenses incurred by such person in furnishing services under such an arrangement. However, if the services of a therapist are required on a limited part-time basis, or to perform intermittent services, payment may be made on the basis of a reasonable rate per unit of service, even though this rate may be greater per unit of time than salary-related amounts, if the greater payment is, in the aggregate, less than the amount that would have been paid had a therapist been employed on a full-time or regular part-time salaried basis. Pursuant to section 17(a) of Pub.L. 93-233 (87 Stat. 967), the provisions of this section are effective for cost reporting periods beginning after March, 1975. The real issue at the heart of the instant case is whether the statute, 42 U.S.C. § 1395x(v)(5)(A), and the regulation promulgated pursuant to that statute, 42 C.F.R. § 413.106, authorize the Secretary to apply the Salary Equivalency Guidelines to the cost of bona fide employee physical therapists who are not outside physical therapy contractors providing services under an agreement with a provider of services. In this case, the Provider Reimbursement Review Board ("PRRB") determined unanimously that the statute and regulation have no application to employee physical therapists, a decision subsequently reversed by the Secretary during the administrative appeal process. The Secretary argues that she should be allowed to apply the Guidelines in the situation where an employee is paid on a per visit or fee-for-service basis. The Secretary argues the meaningful distinction 1246 should be between services furnished "under arrangement" and those provided through a salaried employee relationship. Because the plaintiff's employees were not salaried and were instead paid on a per visit basis, the Secretary argues the Guidelines apply. The Secretary contends that the use of the term "under an arrangement" in 1395x(v)(5)(A) is not limited to non-employment relationships, that the term "arrangement" is broad and means something other than an employment relationship. Because the statute is silent or ambiguous as to whether it should be applied to employees compensated on a per visit basis, the Secretary urges the Court to uphold the agency's interpretation because it is reasonable. Substantially similar arguments were considered by the Eighth Circuit Court of Appeals in In Home Health, Inc. v. Shalala, 188 F.3d 1043 (8th Cir.1999). That opinion will be quoted from at length because this Court believes it provides useful guidance helpful to disposition of this matter. The circuit court stated: "Under the APA, the Secretary's decision shall be set aside if it is arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or contrary to law." Hennepin County Med. Ctr. v. Shalala, 81 F.3d 743, 748 (8th Cir.1996); see 5 U.S.C. § 706. "Federal court review is de novo." Hennepin County Med. Ctr., 81 F.3d at 748. "The plain meaning of a statute controls, if there is one, regardless of an agency's interpretation." Id. (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984)). "An agency's interpretive rules, which are not subject to APA rulemaking procedures, are nonbinding and do not have the force of law." Id. We find that 42 U.S.C. § 1395x(v)(5)(A) does not provide a basis for the application of the Guidelines to In Home's employees physical therapists. The first part of the sentence in 42 U.S.C. § 1395x(v)(5)(A) explains that the subsection applies to persons providing physical therapy services "under an arrangement" with a provider. The second part of the sentence explains that the reasonable cost of compensation for persons "under an arrangement" is calculated by reference to the salary which would reasonably have been paid to the person if that person had been in an "employment relationship" with the provider. The plain meaning of 42 U.S.C. § 1395x(v)(5)(A) and 42 C.F.R. § 413.106, which uses similar language, distinguishes between services provided "under an arrangement" and those provided by a person in an "employment relationship." It is clear from the language that a physical therapist who is "under an arrangement" is different from a person in an "employment relationship" with the provider. The Guidelines apply to a person "under an arrangement." The final notice in the Federal Register indicates that a person "under an arrangement" is an outside contractor. The Secretary's attempt to now further limit the term "employment relationship" to mean only salaried employees is not supported by the statute or the Secretary's contemporaneous interpretation as reflected in the 1992 regulation. The statutory reference to "the salary which would reasonably have been paid" to a person in an employment relationship does not render a non-salaried employee subject to the Guidelines as a person "under an arrangement." The term "salary" as used in this manner and not specifically defined in the statute can be as generic as "a remuneration for services given." See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2003 (1986). Thus, the statute requires nothing more than that a provider should be reimbursed for the services performed by a nonemployee, i.e., an outside contractor working under an arrangement with the provider, similarly to what an employer reasonably would pay its employee for such services. Services provided by a provider's 1247 employee are themselves subject to a reasonableness requirement. See 42 U.S.C. § 1395x(v)(1). The Secretary points to her own Provider Reimbursement Manual (PRM) to support her position that the Guidelines should be applied to In Home's employee physical therapists. The PRM explains: The guidelines apply only to the costs of services performed by outside suppliers, not to the salaries of providers' employees. However, the costs of the services of a salaried employee who was formerly an outside supplier of therapy or other services, or any new salaried employment relationships, will be closely scrutinized to determine if an employment situation is being used to circumvent the guidelines. Any costs in excess of an amount based on the going rate for salaried employee therapists must be fully justified. In situations where compensation, at least in part, is based on a fee-for-service or on a percentage of income (or commission), these arrangements will be considered nonsalary arrangements, and the entire compensation will be subject to the guidelines in this chapter. PRM § 1403. We have construed the PRM to contain only nonbinding interpretative rules that have not been subjected to APA rulemaking procedures. Shalala v. St. Paul-Ramsey Med. Ctr., 50 F.3d 522, 527-28 n. 4 (1995). To the extent the PRM supports the Secretary's view that paid per-visit employees are subject to the Guidelines, we conclude that this agency interpretation is contrary to the plain language of the statute as articulated above. Accordingly, we cannot defer to the Secretary's interpretation. We need not reach the Secretary's second argument regarding reasonableness because we conclude the plain meaning of 42 U.S.C. § 1395x(v)(5)(A) controls. III. We affirm the district court's reversal of the Secretary's decision and hold that the Secretary may not apply the Guidelines to In Home's employee physical therapists. In Home Health, Inc. v. Shalala, 188 F.3d 1043, 1046-1047 (8th Cir.1999) In the absence of authority from either the Tenth Circuit or the United States Supreme Court directing a particular disposition of the issues presented in this case, the Court has elected to follow the lead of the Eighth Circuit in In Home Health, Inc. v. Shalala and adopts that court's analysis. In this case, it is not disputed that the physical therapists were in fact employees, paid on a per visit basis. Under the Eighth Circuit's analysis, the statutory reference to "salary which would reasonably have been paid" to a person in an employment relationship does not render a nonsalaried employee subject to the Guidelines as a person "under an arrangement." The Secretary's determination that paid per-visit employees are subject to the Guidelines is contrary to law and cannot be upheld. Because the foregoing is dispositive, the Court declines to consider the parties' remaining arguments. It is therefore ORDERED that the Secretary's May 20, 1997 decision applying the Salary Equivalency Guidelines to the employee physical therapists of High Country Health, Inc. shall be SET ASIDE AS ARBITRARY, CAPRICIOUS, and CONTRARY TO LAW. It is further ORDERED that plaintiff, as the prevailing party, shall recover its costs and interest, pursuant to 42 U.S.C. § 1395oo(f)(2). NOTES [1] Plaintiff asserts that absent reversal by the Court, application of Secretary's decision to all cost years through 1997 could cause plaintiff's reimbursement for physical therapy services already rendered to Medicare beneficiaries to be reduced by approximately $100,000.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2497650/	84 F.Supp.2d 249 (1999) CHARLIE AUTO SALES, INC./HYUNDAI DE BAYAMON, Charlie La Costa; Elba Gotay and the Conjugal Partnership formed between them, Plaintiffs, v. MITSUBISHI MOTOR SALES OF CARIBBEAN, INC., et al., Defendants. No. 98-1767 (PG). United States District Court, D. Puerto Rico. December 2, 1999. 250 Dario Rivera-Carrasquillo, Pinto-Lugo & Rivera, San Juan, PR, for Charlie Auto Sales, Inc., plaintiffs. James Belk-Arce, Carlos J. Grovas-Porrata, Sierra-Serapion, San Juan, PR, Pedro J. Santa-Sanchez, Carlos A. Valldejuly-Sastre, O'Neill & Borges, Hato Rey, PR, Juan A. Ramos-Diaz, San Juan, for defendants. OPINION & ORDER PEREZ-GIMENEZ, District Judge. Defendants have produced a mountainous volume of paper in search of a quick dismissal to this case. (Dkts. 15, 16, 21, 27 & 37) Plaintiffs are likewise responsible for the demise of a good number of trees. (Dkts. 24 & TENDERED) After wading through the forest that once was and considering what is left of the forest and the trees, the Court is prepared to decide Defendants' Motions to Dismiss (Dkt.# 15-16). THE PARTIES AND THEIR POSITIONS Plaintiffs' Charlie Auto Sales, Inc./Hyundai de Bayamón, Charlie La Costa, Elba Gotay, and their marital partnership, brought suit against Defendants in Federal District Court for the District of Puerto Rico, alleging antitrust violations under § 2(a) of the Clayton Act, and causes of action under Puerto Rico's Law 75, 10 L.P.R.A. § 278, et seq. and Article 1802 of the Civil Code of Puerto Rico, Tit. 31, § 5141. Defendants subsequently filed a Motion to Dismiss, stating that Plaintiffs' claims were subject to an arbitration clause embedded in an agreement signed by the parties (the Servicing Dealer Agreement, "SDA") and that therefore, Plaintiffs' causes of action must be stayed or dismissed without prejudice.[1] Defendants also make the alternative argument that Plaintiffs' claims should be dismissed for lack of subject matter jurisdiction under FED.R.CIV.P. 12(b)(1) and/or failure to state a claim under FED.R.CIV.P. 12(b)(6). Defendants have also moved the Court to sanction Plaintiffs under 28 U.S.C. § 1927.[2] The number of named Defendants rivals the voluminous pages of material presented by the parties. The named defendants are: Mitsubishi Motor Sales of Caribbean, Inc. ("MMSC"), Juan Barceló, María Milagros Vélez, Steven McClintock, Evelyn McClintock, and their respective marital partnerships, Bebo & Mike Auto Sales, inc., Miguel Casanova Auto Sales, Inc., Hyundai de Cayey, Hyundai de Ponce, Taíno Motors & Taíno del Norte, Hyundai 251 de Caguas, Hyundai de Guyanabo, Hyundai de Areceibo, Hyundai de Aguadilla, Hyundai de San Sebastían, Cacique Motors, Autos del Caribe, Hyundai de Río Piedras, Miguel Casanova, his wife Mary Doe and their marital partnership, Miguel Ongay, his wife, Jane Doe, and their marital partnership, Angel Maldonado Nevares, his wife Fran Doe, and their marital partnership, Jose Ramón Vázquez, his wife, Nelly Vázquez, and their marital partnership, Carlos Alberto Pazos Rodríguez, his wife, Maritza López de Victoria, and their marital partnership, Rafael Estevez, his wife, Judy Doe, and their marital partnership. Plaintiffs main contention is that the contract ended and therefore the arbitration clause in inapplicable. Regardless, Supreme Court precedent compels the Court to dismiss Plaintiffs' claims without prejudice. WHICH WAY DOES THE TREE FALL? The federal antitrust laws seek to promote free and unfettered competition in the marketplace and prohibit certain types of anticompetitive behavior. Antitrust claims have both a private and public interest and it is the public interest in unfettered competition that creates a strong tension between antitrust and arbitration. The Court is acutely aware of the concern that submitting antitrust claims to arbitration may result in the subrogation of the public interest to individual compromise. See Eric James Fulsang, The Arbitrability of Domestic Antitrust Disputes: Where does the Law Stand?, 46 DEPAUL L. REV. 779, 784 (1997). Antitrust claims historically were outside the purview of arbitration. In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), the Supreme Court held that antitrust claims were arbitrable pursuant to the arbitration act, at least in an international commercial context. The Supreme Court has not explicitly held that domestic arbitration clauses are arbitrable and courts since have split on this issue. See GKG Caribe, Inc. v. Nokia-Mobira, Inc., 725 F.Supp. 109 (D.P.R.1989) (holding that antitrust laws of Puerto Rico are subject to arbitration clause); DJ Mfg. Corp. v. Tex-Shield, Inc., 998 F.Supp. 140 (D.P.R.1998) (holding that domestic antitrust disputes are subject to arbitration); Gemco Latinoamerica, Inc. v. Seiko Time Corp., 623 F.Supp. 912 (D.P.R.1985) (holding that the court was bound to apply the Federal Arbitration Act if: (1) the court finds a contract with an arbitration clause in effect when the dispute arose and (2) the claim is within the scope of the contract and is arbitrable); Nghiem v. NEC Electronic, Inc., 25 F.3d 1437 (9th Cir.1994), cert. denied, 513 U.S. 1044, 115 S.Ct. 638, 130 L.Ed.2d 544 (1994). But see Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511 (10th Cir. 1995) (an arbitration clause extends only to disputes "touching specified provisions of the agreement."); Kotam Elecs., Inc. v. JBL Consumer Prods., 93 F.3d 724, 724 (11th Cir.1996), rev'g 59 F.3d 1155 (11th Cir.1995), vacated and reh'g en banc granted, 69 F.3d 1097 (11th Cir.1995), cert. denied, 519 U.S. 1110, 117 S.Ct. 946, 136 L.Ed.2d 835 (1997) ("antitrust disputes in the domestic context are arbitrable"). The Federal Arbitration Act ("FAA") is clear: "when an agreement between the parties contains an arbitration clause and the claims being litigated fall within the scope of the clause, a stay pending arbitration of the claims in mandatory, not discretionary." DJ Mfg. Corp. v. Tex-Shield, Inc., 998 F.Supp. at 143 (citations omitted). See also 9 U.S.C. § 3. Furthermore, the Supreme Court has directed that the FAA requires that any doubt as to the arbitrability of a given dispute must be resolved in favor of arbitration. See-Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); DJ Mfg. Corp. v. Tex-Shield, Inc., 998 F.Supp. at 144. However, "the broad reach of an arbitration 252 clause is not infinitely elastic." Id. Given the importance of antitrust in our capitalistic system, the shackles that arbitration places on the public must be used sparingly. Therefore, antitrust claims that implicate the contract are arbitrable, and conversely, antitrust claims that do not implicate the contract are litigable. See id. (citing Coors Brewing Co. v. Molson Breweries, 51 F.3d at 1516). This conclusion best serves the dual interests presented by arbitration and antitrust claims. DOES THE ARBITRATION CLAUSE IMPLICATE THE CONTRACT? The arbitration clause at issue reads: All disputes, controversies or differences which may in any way arise between MMSC and DEALER including, without limitation, those which relate hereto, will be finally settled by arbitration conducted in English in accordance with the rules and regulations of the American Arbitration Association (Dkt.15, exh. B, p. 54) Plaintiffs' antitrust claim alleges that MMSC and the other defendants conspired against Plaintiffs by discriminating in price and sales terms. Plaintiffs' claims implicate section III.C. of the SDA, which covers price and payment and are therefore subject to arbitration. Plaintiffs' state law claims likewise implicate the contract and are therefore arbitrable. Plaintiffs argue that the contract ended in 1992 and therefore the arbitration clause is inapplicable. The Court disagrees. See Gemco Latinoamerica, Inc. v. Seiko Time Corp., 623 F.Supp. at 919 (the conduct of the parties indicates that they intended to extend the contract). Here, the conduct of the parties clearly extended the contract.[3] Wherefore, Defendants' Motion to Dismiss is GRANTED to the extent the Court DISMISSES WITHOUT PREJUDICE of reinstatement Plaintiffs' claims. Defendants Motions to Dismiss for lack of subject matter jurisdiction and for failure to state a claim are therefore rendered MOOT. SECTION 1927 SANCTIONS Defendants have moved for § 1927 sanctions against Plaintiffs' counsel. In a vexing diatribe, Defendants chastise Plaintiffs' counsel for "not show[ing] the respect that this Honorable Court and the integrity of the legal profession deserve." (Dkt.27, p. 10) Defendants conclude that such conduct violates the American Bar Association's Model Rules of Professional Conduct (adopted by this Court as Local Rule 211.4(B)). See id. Defendants do not cease to cast stones at Plaintiffs' counsel there, however. Indeed, Defendants proceed to attack Plaintiffs' submission as "frivolous and baseless," while working in the catch terms "multiplying" and "vexatiously" as they are used in § 1927. See id. The Court would also like Defendants to understand the importance of antitrust principles in law. These principles are not to be cast aside as readily as Defendants might have the Court believe. Congress passed the antitrust laws for a purpose, just as they passed the FAA for a purpose. There is an obvious conflict between the two, and each serves as a legitimate and important function. As such, the Court will not waste time on such dribblings from overly creative minds. Suffice to say, Defendants motion for sanctions are DENIED in toto. CONCLUSION In light of the above findings, the Court DISMISSES WITHOUT PREJUDICE of reinstatement Plaintiffs' antitrust claims as well as its state law claims. Defendants Motions to Dismiss for lack of subject 253 matter jurisdiction and failure to state a claim are MOOT. IT IS SO ORDERED. NOTES [1] These parties are not strangers to arbitration nor the courts. Presently, virtually the same parties are involved in arbitration proceedings and in December of 1998, a case brought by Plaintiffs in this same district was dismissed without prejudice of reinstatement by Judge Laffitte. See Charlie Auto Sales, Inc./Hyundai of Bayamon, et al. v. Mitsubishi Motor Corp., et al., No. 97-2351(JAF) (D.P.R. Dec. 30, 1998). [2] This section is designed to sanction any attorney or party that "unreasonably and vexatiously" multiples the proceedings in any case and allows a court to impose costs, expenses and attorneys' fees. See 28 U.S.C. § 1927. [3] Regardless, this is an appropriate issue for arbitration.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2515332/	202 P.3d 1215 (2007) The PEOPLE of the State of Colorado, Complainant v. Charles W. RASURE, Jr., Respondent. No. 06PDJ088. Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado. May 30, 2007. 1216 Attorney Regulation. Following a hearing pursuant to C.R.C.P. 251.18, a Hearing Board suspended Charles W. Rasure, Jr. (Attorney Registration No. 25569) from the practice of law for a period of one year and one day. The Colorado Supreme Court affirmed the Hearing Board's sanction on May 1217 19, 2008. Respondent brought claims against persons who previously reported his misconduct in violation of C.R.C.P. 251.32(e). Respondent's misconduct constituted grounds for the imposition of discipline pursuant to C.R.C.P. 251.5 and violated Colo. RPC 8.4(d). On April 9-10, 2007, a Hearing Board composed of FRANCES L. WINSTON, a citizen Hearing Board member, and THOMAS J. OVERTON, a member of the Bar, and WILLIAM R. LUCERO, the Presiding Disciplinary Judge ("the PDJ or the Court") held a Hearing pursuant to C.R.C.P. 251.18. Kim E. Ikeler, appeared on behalf of the Office of Attorney Regulation Counsel ("ORAC or the People"). Charles W. Rasure, Jr., (Respondent) appeared pro se. The Hearing Board issues the following Opinion and Order Imposing Sanctions Pursuant to C.R.C.P. 251.19. OPINION AND ORDER IMPOSING SANCTIONS PURSUANT TO C.R.C.P. 251.19 I. ISSUE/SUMMARY Supreme Court disciplinary rules prohibit a lawyer from filing a lawsuit against anyone predicated upon lawyer misconduct or lack of professionalism reported to the People unless the person reporting (1) fails to maintain confidentiality and (2) the communication is in reckless disregard of the truth or in bad faith. Respondent brought claims against persons who reported Respondent's misconduct. Did Respondent violate 251.32(e) by filing suit[1] against reporting parties after admitting the reported misconduct? The Hearing Board finds clear and convincing evidence that Respondent violated C.R.C.P. 251.32(e). Independent of C.R.C.P. 251.32(e), the Hearing Board also finds clear and convincing evidence that Respondent violated Colo. RPC 8.4(d), conduct prejudicial to the administration of justice. The Hearing Board finds that filing suit under the circumstances present here has a profound chilling affect on the attorney regulation process and its ability to obtain information about lawyer misconduct. The Hearing Board, however, cannot find clear and convincing evidence that Respondent violated Colo. RPC 3.1 by filing a frivolous lawsuit. Respondent's federal case against Sitter and McLachlan is still pending in federal district court where substantive legal issues are yet to be resolved. SANCTION IMPOSED: ATTORNEY SUSPENDED FOR ONE YEAR AND A DAY II. PROCEDURAL HISTORY On October 25, 2006, the People filed a complaint in this matter. Respondent filed his answer on November 20, 2006. The parties did not file any dispositive motions. III. FINDINGS OF MATERIAL FACT The Hearing Board finds that the following facts have been established by clear and convincing evidence. Respondent took and subscribed the oath of admission and gained admission to the Bar of the Colorado Supreme Court on May 15, 1995, and is registered upon the official records of the Colorado Supreme Court, Attorney Registration No. 25569, and is therefore subject to the jurisdiction of the Court. Respondent's registered business address is 679 E. Second Ave., Ste. 4, Durango, CO 81301. Background Concerning Respondent's Lawsuit In December 2001, Respondent and Thomas P. Dugan ("Dugan") terminated their relationship as co-owners in the law firm of Dugan & Rasure. Dugan purchased all of Respondent's shares in Dugan & Rasure as part of a stock purchase agreement. Respondent and Dugan further agreed that if Respondent took any case that belonged to the firm, Respondent would pay Dugan one-third of the attorney's fees "produced" from the case even though their partnership had ceased. One of the cases Respondent kept upon leaving Dugan & Rasure was the "Concordia case." This case was subject to the 1218 agreement that Respondent would pay Dugan one-third of the attorney's fees generated therefrom. In November 2003, nearly three years after leaving Dugan & Rasure, Respondent settled the Concordia case and received a $200,000.00 settlement. Respondent placed these funds into his trust account and paid the client(s) their share from his trust account. Respondent then caused the remainder of the funds to be placed into his operating account. Respondent testified that he instructed his secretary, to pay Dugan an amount equal to one-third of the total fee, approximately $20,000 from his operating account. However, Dugan was not paid, and Respondent used all these funds for his own purposes. Though Respondent settled the case, he did not tell Dugan about the Concordia settlement. Furthermore, Respondent never received or asked Dugan's permission to use any portion of Dugan's one-third share of the Concordia contingency fees. On May 6, 2004, Dugan discovered from court records that Respondent had settled the Concordia matter without telling Dugan or otherwise paying Dugan his share of the contingency fees from the Concordia settlement.[2] Respondent admits that he misled Dugan concerning the progress of the Concordia settlement beginning in December 2003 until Dugan discovered from court records in May 2004 that Respondent had dismissed the case upon settlement of $200,000.00 After Dugan discovered that Respondent received settlement funds in the Concordia litigation without advising him, Dugan insisted Respondent pay Dugan his one-third share of the attorney's fees immediately. Dugan also sought assurances from Respondent that his money was in Respondent's trust account.[3] During this period of time, however, Respondent was having financial difficulties and could not pay Dugan as agreed. When Respondent did not deliver Dugan's share of the Concordia settlement, Dugan contacted Michael McLachlan ("McLachlan"), a Durango attorney from whom Dugan sought both ethical and legal advice concerning his efforts to collect his share of the contingency fees from Respondent. In seeking McLachlan's advise about collecting the Concordia contingency fees Respondent owed, Dugan provided McLachan a series of emails Dugan and Respondent exchanged concerning the Concordia contingency fees.[4] McLachlan read these emails and recognized what he considered to be an ethical issue because Respondent had not kept Dugan's share of the Concordia contingency fees in a trust account. McLachlan also spoke to Respondent's former secretary and others in Durango about other incidents including one involving Respondent's failure to place client funds in a trust account. Among the persons McLachlan contacted was Douglas Sitter ("Sitter"), a lawyer who was associated with Respondent in a firm that shared various expenses and a trust (COLTAF) account. When McLachlan called Sitter, he did so in an effort to collect Dugan's contingency fees from Respondent on the Concordia settlement. McLachlan asked Sitter whether Respondent placed the Concordia settlement funds into the firm's COLTAF account. Based upon his conversations with McLachlan, Sitter was concerned that he may be implicated in Respondent's dispute with Dugan because of Sitter's business relationship with Respondent. Sitter then asked Respondent whether he had placed the Concordia settlement or contingency fees in the firm's COLTAF account. Respondent assured Sitter that the settlement funds were not placed into the firm's trust account but into his individual COLTAF account. Nevertheless, as a result of this conversation, Sitter decided that he could no longer trust Respondent and terminated their business relationship in May 2004.[5] Respondent Pays Dugan On May 11, 2004, after conferring with McLachlan, Dugan emailed Respondent the following, 1219 His (McLachlan's) advice is Grievance and the DA. Please think about this carefully. I do not want to hurt you, but this must be taken care of.[6] On or about November 17, 2003, Respondent provided Dugan with a promissory note in the amount of $20,525.00, plus interest at the rate of 8% per annum from November 17, 2003.[7] On or about July 2004, Respondent completed paying Dugan his one-third share of the Concordia settlement from money he received on another contingent fee case. Although McLachlan encouraged Dugan to report Respondent's conduct to the People, Dugan did not do so. McLachlan Tells the People about Concordia and Other Matters In November 2004, while representing a respondent in a disciplinary matter unrelated to Respondent, McLachlan told a member of the People's management staff that they should be looking at Respondent's conduct. In particular, McLachlan told ORAC that (1) Respondent had been censured by a judge in the four corners area, (2) he was subject to a restraining order, (3) he was in default on a bank loan, and (4) he had not paid Dugan his share of the fees in the Concordia litigation. These statements were all substantially true. Sitter Answers the People's Inquires Sitter, at McLachlan's suggestion, called the CBA Ethics Hotline concerning his duties and received the same advice that McLachlan offered: report the matter to the People. Nevertheless, Sitter decided not to report Respondent to the People. On November 22, 2004, in response to an inquiry from the People, Sitter reluctantly sent a letter to the People concerning his knowledge of Respondent's activities concerning the Concordia matter. Sitter's reluctance stemmed from his fear that Respondent would retaliate if he cooperated with the People. In his letter to the People, Sitter explained that most of his information came from others who claimed to know what Respondent had done. Sitter further explained that he had been a partner of Respondent's and that Respondent claimed to have a "legitimate dispute" about fees with Dugan about the Concordia contingency fees.[8] The Formal Complaint Based on the Concordia Issue On November 23, 2005, the People filed a formal complaint against Respondent, 05PDJ081, which alleged in part that Respondent had converted Dugan's share of the contingency fees in violation of Colo. RPC 8.4(c). The People also alleged that Respondent violated Colo. RPC 8.4(c) by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in misleading Dugan concerning the Concordia settlement. In addition, the People alleged Respondent violated Colo. RPC 1.15(a)(b) and (c) in that Respondent failed to properly separate Dugan's fees from his own. On April 14, 2006, after mediating the matter, Respondent, his counsel, and the People entered a stipulation concerning Respondent's conduct involving the Concordia contingency fees. In the stipulation, Respondent admitted violating C.R.C.P. 251.5, Colo. RPC 8.4(c) and 1.15(c). Respondent also admitted the following facts: In his March 14, 2006 Order re: Judgment on the Pleadings (this as the People's Motion)[9] the Presiding Disciplinary Judge found that respondent's statements to Dugan about the status of the Concordia settlement from December 2003 through early May 2004 were false and that respondent did not correct these false statements until May 2004. Based on this and related findings, the Presiding Disciplinary Judge held that respondent violated Rule 8.4(c).[10] 1220 Respondent also admitted that he violated Colo. RPC 1.15(c) when he failed to keep Dugan's fees separate and apart from his own until there was an accounting of the funds he owed Dugan.[11] Based upon Respondent's admission, the People agreed to dismiss the "knowing" conversion claim under Colo. RPC 8.4(c), Claim V in the People's complaint, as part of the settlement.[12] Respondent also agreed that he should be suspended for one year and one day and that the suspension should be stayed upon successful completion of a one-year probation, with conditions.[13] One of the conditions of Respondent's probation was that he not engage in any conduct which results in the imposition of discipline under C.R.C.P. 251.6 or 251.7. Respondent Files Suit Against McLachlan and Sitter On August 3, 2006, four months after entering into the stipulation as described above, Respondent, pro se, filed a civil action against Sitter and McLachlan in the United States District Court for the District of Colorado.[14] Counts III and IV of Respondent's federal lawsuit alleged that McLachlan and Sitter caused the People to bring a "quasi-criminal" case (05PDJ081) against him that resulted "substantially" in Respondent's favor and that "Sitter and McLachlan intentionally caused the People to initiate disciplinary proceedings against Rasure." Respondent, however, did not file suit against Dugan, the person who initially released information about Respondent's conduct in the Concordia matter to McLachlin. Before filing his federal case, Respondent testified that he exhaustively researched C.R.C.P. 251.32(e) and the substantive case law in Colorado on malicious prosecution and abuse of process. However, Respondent did not seek advice or counsel about his proposed lawsuit and the implications of doing so in light of the provisions of C.R.C.P. 251.32(e). As a result of the filing of Respondent's federal lawsuit, both McLachlan and Sitter have hired attorneys and incurred legal expenses in the tens of thousands of dollars for their defense. This lawsuit is still pending in federal district court. In addition to the malicious prosecution and abuse of process claims, Respondent's lawsuit also charges that McLachlan and Sitter engaged in slander, civil conspiracy, intentional interference with contract, and extreme and outrageous conduct. These claims reference facts that are included in Respondent's claim that McLachlan and Sitter caused the People to bring disciplinary charges arising out of the Concordia matter. McLachlan and Sitter's Statements to the People When McLachlan and Sitter reported Respondent's conduct concerning the Concordia litigation, they did so based upon information they believed to be true and under their duty to report professional misconduct as provided in Colo. RPC 8.3. The initial source of this information appears to be Dugan. Before formal charges were filed against Respondent, Sitter did tell the following people about the information he reported to the People: his secretary, Ms. Smith, Dolores Kansky, Scott Macock and Douglas Ware. McLachlan, on the other hand, told no one about the information he reported to the People after formal charges were filed against Respondent related to the Concordia dispute between Dugan and Respondent. The record is not clear on how much of this information was disseminated in and about Durango before the People filed formal charges against Respondent. When speaking to the People in November 2004, McLachlan advised that he had heard a number of complaints about Respondent that were of concern to him. Specifically, McLachlan reported the following: 1. Respondent was in default on an $80,000.00 loan to the Bank of the San Juans. 1221 2. A judge in the four corners area had sanctioned Respondent. 3. Respondent was the subject of a restraining order. 4. Respondent had mishandled his COLTAF funds, including those he received in the Concordia litigation. Respondent's Testimony Respondent testified that neither McLachlan nor Sitter knew anything about the stock purchase agreement between Dugan and Respondent when they communicated with the People on their knowledge of the Concordia matter. Respondent's position is that the stock purchase agreement and its provision on sharing contingency fees with Dugan were contractual in nature and that any money due under the agreement represented a contractual obligation and not an ethical one. Respondent testified that since McLachlan and Sitter did not review the stock purchase agreement, their statements to the People as well as statements that Respondent converted funds were either reckless, in bad faith, or both. In addition to Respondent's argument that his obligation to Dugan was contractual based upon the stock purchase agreement, Respondent also testified that McLachlan and Sitter's demeaning and factually incorrect comments about him in and about Durango before and after the People filed a formal complaint against him show a pattern of reckless and bad faith communications. He argues that if McLachlan and Sitter acted recklessly and in bad faith before and after reporting him to the People, they must have acted in a similar manner when they reported the Concordia matter to them. Respondent also claims that Sitter was his lawyer when Respondent made statements concerning the Concordia settlement. Further, Respondent testified that when Sitter reported these discussions to the People; he violated his duty to keep Respondent's disclosures confidential. Nevertheless, when Respondent initially responded to the People concerning the allegations Sitter made against him on or about December 22, 2004, Respondent mentioned nothing of an attorney client relationship between himself and Sitter.[15] It was not until August 28, 2006 that Respondent raised the issue of Sitter violating his duty to maintain confidentiality under Colo. RPC 1.6.[16] IV. CONCLUSIONS OF LAW SUBSTANTIVE ALLEGATIONS Claim I, Colo. RPC 3.1 In Claim I, the People charged Respondent with violation of Colo. RPC 3.1, which prohibits a lawyer from bringing or asserting a frivolous claim, unless there is a good faith argument for an extension of the law. The People ask the Hearing Board to find Respondent's lawsuit frivolous because C.R.C.P. 251.32(e) precludes Respondent from bringing such an action. After carefully considering the pleadings in Respondent's federal case, which raise broader issues than the matters before this Hearing Board, the Hearing Board cannot conclude by clear and convincing evidence that Respondent violated Colo. RPC 3.1. The Hearing Board agrees that C.R.C.P. 251.32(e) may preclude a lawyer licensed in Colorado from bringing suit against a citizen predicated on a report of alleged lawyer misconduct to the People. However, C.R.C.P. 251.32(e) is not, a substitute for substantive rules of law on the issues of malicious prosecution and abuse of process. The federal court is in the best position to resolve those issues based upon substantive law federal law. Furthermore, the federal case that the People claim to be frivolous has yet to be resolved. See In the Matter of Smith, 989 P.2d 165, 170 (Colo.1999). The Hearing Board cannot speculate on whether the federal court will find Respondent's case frivolous. Claim I, Colo. RPC 8.4(d) Claim I also charges that Respondent violated Colo. RPC 8.4(d) by engaging 1222 in conduct that is prejudicial to the administration of justice. The Hearing Board finds clear and convincing evidence on this claim independent of a C.R.C.P. 251.32(e) violation. Whether Respondent ultimately proves his federal case or not, he has nevertheless engaged in conduct that prejudices the administration of justice and the disciplinary process. While the Hearing Board is reluctant to find clear and convincing evidence that Respondent violated Colo. RPC 3.1, such is not the case with Respondent's conduct in retaliating against Sitter and McLachlin. Furthermore, C.R.C.P. 251.32(e) is mandatory as to all lawyers licensed to practice law in Colorado and does not rely upon an analysis of the merits of any substantive claim. Upon accepting a license to practice law, a lawyer is granted certain rights and privileges not afforded to other citizens. At the same time, a lawyer gives up certain rights that may be afforded to other citizens. One such right is access to the courts when C.R.C.P. 251.32(e) is implicated. Without this rule the public's willingness to participate in the attorney regulation process would be chilled. This rule may create a hardship in some cases because it denies attorneys access to the courts in narrow instances. But such a rule is necessary to promote the citizen cooperation in attorney discipline matters. While the Colorado Supreme Court in its plenary authority over lawyer conduct has precluded lawyers from suing anyone who reports lawyer misconduct, it has also protects the lawyer's right to bring suit if the reporting party acts in bad faith or in reckless disregard of the truth. See C.R.C.P. 251.31(b). The Respondent has the burden of proving that the reporting parties' communications with the People are reckless or in bad faith. He has failed to meet this burden. To the contrary, the Hearing Board finds that the clear and convincing evidence shows McLachlan and Sitter truthfully related information they relied on in good faith. On the other hand, Respondent admitted dishonesty in his failure to honor his agreement with his former partner in the Concordia matter. Knowingly filing suit against McLachlan and Sitter under these circumstances belies Respondent's claim that he acted in good faith and in compliance with the mandates of C.R.C.P. 251.32(e) when he filed suit against them. Claim I, C.R.C.P. 251.5(c) C.R.C.P. 251.5(c) states that it is misconduct for any attorney to engage in any act that violates the disciplinary procedural rules. C.R.C.P. 251.32(e) is such a rule. For the reasons stated above, the Hearing Board finds that when Respondent filed counts III and IV in his federal lawsuit against McLachlan and Sitter, he violated C.R.C.P. 251.32(e) and thereby violated C.R.C.P. 251.5(c). V. ANALYSIS While the Hearing Board finds that there is not clear and convincing evidence that Respondent's violated Colo. RPC 3.1, Respondent violated his duty to obey Supreme Court rules, including C.R.C.P. 251.32(e). This duty is not founded on whether his suit against McLachlan and Sitter is meritorious under substantive rules. Instead, C.R.C.P. 251.32(e) deals with broader policy and ethical issues; one of those issues is the integrity and effective administration of the attorney regulation system. C.R.C.P. 251.32(e) mandates that all lawyers give up their her right to sue reporting parties unless the lawyer proves that the reporting parties communicated with the People in reckless disregard of the truth or in bad faith. Neither of those circumstances applies here. VI. SANCTIONS The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) ("ABA Standards") and Colorado Supreme Court case law are the guiding authorities for selecting and imposing sanctions for lawyer misconduct. In re Roose, 69 P.3d 43, 46-47 (Colo. 2003). In imposing a sanction after a finding of lawyer misconduct, the Hearing Board must first consider the duty breached, the mental state of the lawyer, the injury or potential injury caused, and the aggravating 1223 and mitigating evidence pursuant to ABA Standard 3.0. Under ABA Standard 6.22, suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding. The People cite In re Smith, 830 P.2d 1003 (Colo.1992), and correctly point out that Smith was disbarred in a case that involved a claim that he brought suit against the parties who reported alleged misconduct on his part to the People. The Smith case, however, is inapposite here for the following reasons: (1) C.R.C.P. 251.32(e), unlike the rule applicable at the time Smith was disbarred, allows attorneys to bring an action against anyone who communicates with the People in reckless disregard of the truth or in bad faith; and (2) Smith was disbarred reciprocally in Colorado because he had violated a federal court order suspending his right to practice. Thus, the Colorado Supreme Court never addressed whether the Hearing Board's recommended sanction of a suspension for a year and a day was appropriate for Smith for violating a rule that provided absolute immunity to parties who reported lawyer misconduct to the People. Thus, the facts and the law in Smith were different than those present in this case. Therefore, the Hearing Board does not rely on Smith in determining the appropriate sanction here. Nevertheless, the Hearing Board finds Respondent knowingly brought suit against McLachlan and Sitter without objectively showing they acted recklessly or in bad faith. While C.R.C.P. 251.32(e) allows for a narrow exception to the rule, Respondent had no rational basis to claim the exception applied. Instead, the Hearing Board finds that Respondent filed Counts III and IV predicated on McLachlan and Sitter's communications with the People and in retaliation for doing so. Duties Breached Respondent owes a duty to the profession, the Colorado Supreme Court, and the citizens of this state to follow the rules promulgated by the Court. State of Mind Respondent acted knowingly; that is, he was aware of his conduct in filing a federal suit against McLachlan and Sitter but without the conscious objective of violating C.R.C.P. 251.32(e) or Colo. RPC 8.4(d). Respondent also acted with intent; that is, his conscious objective was to benefit himself financially or otherwise (Respondent requested monetary damages in his federal lawsuit) by filing suit against McLachlan and Sitter. See ABA Standard, Definitions and 6.21. Injury The injury Respondent caused is substantial. Most important is the damage and potential Respondent caused to the integrity of the attorney disciplinary system. The profession, citizens, and courts have a reasonable expectation that Respondent and other lawyers will follow the Colorado Supreme Court's direction. Respondent's actions have financial and emotionally damaged McLachlan and Sitter and could potentially damage the legal profession and the public's confidence in the integrity of our system. Aggravating Factors ABA Standard 9.22 (a) Prior disciplinary offense. The prior discipline is directly related to his conduct in this case. (g) Refusal to acknowledge wrongful nature of conduct. (h) Substantial experience in the practice of trust law. Mitigating Factors ABA Standard 9.32 None. The ABA Standards state that the presumptive sanction here is suspension. The undisputed facts show Respondent retaliated against those who reported his misconduct to the People. The conduct McLachlan and Sitter reported was essentially the same conduct Respondent admitted in his stipulation. Respondent received notice in the signed stipulation that he was not to engage in any conduct that would result in discipline. Violating C.R.C.P. 251.32(e) is precisely the kind 1224 of conduct that could result in discipline. Respondent was also warned that he was violating this rule by persisting in claims in federal court against McLachlan and Sitter.[17] Nevertheless, Respondent continued to press forward on his suit against McLachlan and Sitter.[18] Respondent admittedly read C.R.C.P. 251.32(e) before he filed suit against McLachlan and Sitter. He knew or should have known that in order to file suit against them and avoid the immunity provisions of C.R.C.P. 251.32(e), he had to prove that they had acted in reckless disregard of the truth or in bad faith. Respondent also knew that he had essentially admitted the conduct that McLachlan and Sitter had reported. Even if Respondent had no duty to affirmatively prove these circumstances, the record here is clear and convincing; McLachlan and Sitter acted properly in cooperating and reporting Respondent to the People. Respondent is clearly angry and upset that McLachlan and Sitter discussed his conduct concerning the Concordia case and other cases with residents of Durango. Indeed, Respondent called a witness who credibly testified that shortly before this hearing, McLachlan told the witness that Respondent would be "disbarred" for converting funds. Respondent may have a substantive right to bring a suit against Sitter and McLachlin because he believes they are spreading rumors about him that are not true. But in order to support an affirmative defense under C.R.C.P. 251.32(e), a lawyer must do more than claim that he believes the reporting parties were acting in bad faith or reckless disregard of the truth in making a report to the OARC about his conduct. Respondent's subjective belief is not enough. If it were, C.R.C.P. 251.32(e) would be meaningless. Respondent has offered little more to support his claim that McLachlan and Sitter acted in bad faith or reckless disregard of the truth than that they failed to review the stock purchase agreement Respondent and Dugan signed before they communicated with the People.[19] If such level of scrutiny were required in every instance before citizens could report perceived lawyer misconduct, few reports would be made. Respondent's view of what McLachlan and Sitter's duties to investigate also fails to take into account the procedures that must be followed before any citizen report can be processed to a formal complaint. First, the People must conduct an initial investigation, evidence must be gathered, and the Attorney Regulation Committee must review and approve any recommendation the People make to them to file formal charges. Only then may the People file a formal complaint against a lawyer who a citizen has reported for misconduct. Here, Respondent admitted in a stipulation to the Court that he violated C.R.C.P. 251.5, Colo. RPC 8.4(c) and 1.15(c). With reference to Respondent's claim that Sitter breached an attorney-client privilege to Respondent, the Hearing Board finds no evidence that Sitter represented Respondent in the Concordia dispute with Dugan. But even if there were such a relationship, Sitter's report of information about Respondent would not relieve Respondent of his obligations under C.R.C.P. 251.32(e). VII. CONCLUSION One of the primary goals of our disciplinary system is to protect the public from lawyers who pose a danger to them. Upon consideration of the duties breeched, the state of mind, the injury, and the significants factors in aggravation as well as Colorado Supreme Court case law, the Hearing Board finds that Respondent should be suspended from the practice of law for a period of a year and a day. 1225 VIII. ORDER The Court therefore ORDERS: 1. CHARLES WILLIAM RASURE, JR., Attorney Registration No. 25569, is SUSPENDED from the practice of law for a period of ONE YEAR AND A DAY, effective thirty-one (31) days from the date of this order. 2. CHARLES WILLIAM RASURE, JR. SHALL pay the costs of these proceedings. The People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Respondent shall have ten (10) days within which to respond. 3. CHARLES WILLIAM RASURE, JR. SHALL submit to an Independent Medical Examination by a doctor or other professional agreed upon with the People before applying for reinstatement. NOTES [1] Counts III and IV of Respondent's suit deal with alleged malicious prosecution and abuse of process based upon reports Sitter and McLachlan made to the People, which ultimately led to disciplinary charges being filed against Respondent. [2] Exhibit 6. [3] Exhibit 10. [4] Exhibits 6-11. [5] Exhibit 14. [6] Exhibit 11. [7] Exhibit 15. [8] Exhibit 17. [9] Respondent also filed a motion for summary judgment. The Court denied that motion. [10] Exhibit 21, Stipulation, Agreement and Affidavit containing the Respondent's Conditional Admission of Misconduct, paragraph o. Respondent also stipulated to a one year and one day suspension, stayed upon successful completion of a one-year probation with conditions. [11] Exhibit 21. [12] Absent compelling evidence in mitigation, knowing conversion would result in disbarment. [13] Exhibit 19. [14] Exhibit 23. [15] Exhibit 18. [16] Exhibit 25. [17] Although there is insufficient evidence to demonstrate that Respondent suffers from a disability, the Hearing Board is nevertheless troubled by Respondent's apparent inability to objectively analyze implications of filing Claims III and IV against Sitter and McLachlan. [18] Exhibit 27. [19] Exhibit 27.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2921597/	NUMBER 13-03-384-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ___________________________________________________________________ RODNEY EDWARD HOWARD, Appellant, v. THE STATE OF TEXAS, Appellee. ___________________________________________________________________ On appeal from the 351st District Court of Harris County, Texas. __________________________________________________________________ MEMORANDUM OPINION Before Justices Yañez, Rodriguez, and Garza Memorandum Opinion by Justice Rodriguez Appellant, Rodney Edward Howard, brings this appeal following a conviction and thirty-two year sentence for possession of a controlled substance. The trial court has certified that this case “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). By two points of error, appellant contends the trial court committed reversible error in admitting certain testimony over objection. We affirm. I. FACTS As this is a memorandum opinion, and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4. II. PRESERVATION OF ERROR By two points of error, appellant contends the trial court erred in admitting an officer’s testimony that appellant did not give a written or oral recorded statement when the officer tried to obtain identifying information. Appellant claims the testimony regarding his post-arrest silence violated his state and federal rights to remain silent. See U.S. Const. amend. V; Tex. Const. art. I, § 10. To preserve error for appellate review, a party must make a timely, specific objection at the earliest possible opportunity. Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Generally, an objection should be made as soon as the ground for objection becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997); Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). If a defendant fails to object until after an objectionable question has been asked and answered, his objection is untimely and error is waived, unless the defendant can show a legitimate reason to justify the delay. Lagrone, 942 S.W.2d at 618; Dinkins, 894 S.W.2d at 355. In addition, even constitutional errors may be waived. See Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990); Gibson v. State, 516 S.W.2d 406, 409 (Tex. Crim. App. 1974). In this case, appellant failed to preserve error because his objection came after the question was asked and answered and appellant did not show a legitimate reason justifying the delay in objecting. See Lagrone, 942 S.W.2d at 618; Dinkins, 894 S.W.2d at 355. The officer was asked whether appellant had given any written or oral recorded statement, the officer answered in the negative and defense counsel subsequently objected. The objection was untimely, as it should have been made as soon as the ground for objection became apparent. See Lagrone, 942 S.W.2d at 618; Dinkins, 894 S.W.2d at 355. For these reasons, we find the objection was untimely, and therefore, appellant failed to preserve error. Appellant’s two points of error are overruled. III. CONCLUSION Accordingly, the judgment of the trial court is affirmed. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this 29th day of July, 2004.	01-03-2023	09-11-2015
https://www.courtlistener.com/api/rest/v3/opinions/2497819/	(2008) Ida CUMMINGS, mother and next friend of the minor child J.C., Plaintiff, v. WOODSON SENIOR HIGH SCHOOL, et al., Defendants. Civil Action No. 08-0289(PLF). United States District Court, District of Columbia. July 3, 2008. MEMORANDUM OPINION PAUL L. FRIEDMAN, District Judge. Plaintiff Ida Cummings, mother and next friend of the minor child, J.C, represented by counsel, filed this action against named defendants Woodson Senior High School, the District of Columbia, and Mayor Adrian Fenty. The two counts of plaintiffs amended complaint allege that the defendants are denying J.C. the free appropriate public education ("FAPE") to which she is entitled under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"). This matter was removed by the defendants to this Court from the Superior Court of the District of Columbia and is now before the Court on defendants' motion to dismiss ("Mot."). After the Court issued an Order to Show Cause, plaintiff filed a brief in opposition ("Opp."), and defendants filed a reply brief ("Reply"). I. BACKGROUND A Hearing Officer for the District of Columbia Public Schools ("DCPS") issued a Decision ("HOD") dated May 31, 2007, concluding that the DCPS had not denied J.C. a FAPE because "a request for evaluation of the student for special education services was not delivered to DCPS after the February 13, 2004 ineligibility decision." HOD at 2.[1] The Hearing Officer found that plaintiffs counsel admitted this fact during the due process hearing on May 22, 2007. See id. The Student Hearing Office attempted to fax a copy of the HOD to plaintiffs counsel on May 31, 2007, but plaintiffs counsel's fax number was not working. See Exhibit 1 to Reply. After plaintiffs counsel requested a copy of the HOD nearly three months later, in August 2007, see exhibits to Notice of Removal at 41-42, the Student Hearing Office successfully faxed a copy of the HOD to plaintiffs counsel at her new fax number on August 22, 2007. See Exhibit 2 to Reply. Instead of filing a civil complaint in this Court or in the Superior Court, as required by the IDEA, see 20 U.S.C. § 1415(i)(2)(A), plaintiffs counsel filed a "petition for review" in the Superior Court on August 24, 2007. See Opp. at 4.[2] The one-page petition for review states only that it "[r]equest[s] a review of decision because hearing officer disregarded evidence and testimony. Request a finding of violation of FAPE by DCPS." Petition for Review. The petition also states that the date of the decision to be reviewed is August 23, 2007. See id. The Superior Court's Clerk's Office deemed the petition to be one seeking review under the Merit Personnel Act. There were various proceedings in the Superior Court. On January 31, 2008, the Superior Court denied defendants' motion to dismiss and granted plaintiff leave to file an "amended complaint." On February 16, 2008, plaintiff's counsel filed the operative amended complaint, asserting claims under the IDEA. The defendants then removed the case to this Court and filed a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim under Rule 12(b)(6). That motion is now before the Court. II. DISCUSSION As a preliminary matter, the Court agrees with the defendants that Woodson Senior High School is not an entity that can sue or be sued. See Mot. at 9-10. As Judge Collyer has explained in a different case brought by the same attorney, "[f]or all practical purposes, this suit is against only the District of Columbia. As a public school in D.C, [the individual school] is non sui juris and the Mayor is sued in his official capacity." Hamlet v. MM Washington School, Civil Action No. 04-1746, 2006 WL 1933833, at * 1 n. 1 (D.D.C. July 11, 2006); see also Hinson v. Merritt Educational Center, 521 F. Supp. 2d 22, 34 (D.D.C.2007) (same).[3] Woodson Senior High School therefore is dismissed as a defendant. With respect to plaintiffs claims under the IDEA, defendants argue that the Court lacks subject matter jurisdiction because plaintiffs amended complaint under the IDEA was filed outside the 90 day statute of limitations provided for in the statute for suits seeking to challenge an adverse decision of a Hearing Officer. See Mot. at 4 (citing 20 U.S.C. § 1415(i)(2)(B)).[4] The IDEA provides, in relevant part, that the "party bringing the action shall have 90 days from the date of the decision of the hearing officer to bring such an action[.]" 20 U.S.C. § 1415(i)(2)(B); see also R.P. v. District of Columbia, 474 F. Supp. 2d 152, 152 (D.D.C. 2007), aff'd without opinion, No. 07-7051, Judgment, 276 Fed.Appx. 1 (D.C.Cir. March 28, 2008) ("under the plain language of the IDEA, the 90-day period in which a party must file a civil action runs from the date of the hearing officer's decision, rather than from the date of service or notice"). Plaintiffs counsel fails to address this argument at all in the brief filed in opposition to the motion to dismiss. Defendants filed this motion to dismiss in this Court on March 31, 2008. On April 18, 2008, when plaintiffs counsel had failed to file an opposition brief within the time provided for by the Federal Rules of Civil Procedure and the Local Civil Rules of this Court, the Court issued an Order to Show Cause. The Order to Show Cause reminded plaintiffs counsel that Local Civil Rule 7(b) provides: Within 11 days of the date of service or at such other time as the Court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion. If such a memorandum is not filed within the prescribed time, the Court may treat the motion as conceded. Local Civil Rule 7(b). Plaintiffs counsel filed an opposition brief within the time directed by the Court in the Order to Show Cause. The brief she filed, however, is filled with irrelevant legal principles and citations on topics such as 42 U.S.C. § 1983 and qualified immunity, and does not address the substance of defendants' arguments as to why plaintiffs claims under the IDEA should be dismissed. As a result, the Court will dismiss plaintiffs IDEA claims. In addition to the IDEA, plaintiffs amended complaint also references "Title II of the American with Disability Act of 1990 [sic] (ADA) 42 U.S.C. §§ 1231 et seq. [sic]; the Rehabilitation Act (section 504), 29 U.S.C. §§ 701 et seq." Am. Compl. ¶ 1.[5] The two counts of the amended complaint, however, assert only a denial of FAPE and related services claims cognizable under the IDEA. See Am. Compl. at 3. Plaintiff has failed to state a claim under the ADA or the Rehabilitation Act in her amended complaint. The complaint filed by plaintiffs counsel "contains no specific allegations regarding Plaintiffs Rehabilitation Act claim." Hinson v. Merritt Educational Center, 521 F.Supp.2d at 30-31 (noting that plaintiffs complaint "contains no specific allegations regarding Plaintiffs Rehabilitation Act claim"); see also id. at 31 ("the ADA addresses discrimination "by reason of a disability, 42 U.S.C. § 12132, and Plaintiffs' Complaint is devoid of allegations that [plaintiff] was discriminated against on the basis of [her] disability"). Plaintiffs complaint in this case suffers from the (apparently exact) same deficiencies as the previous complaints filed by the same attorney. Moreover, in her opposition brief, plaintiffs counsel fails to mention the ADA at all, and mentions the Rehabilitation Act only in a conclusory manner, with no analysis or reasoning to support an argument that the Rehabilitation Act applies to the facts as alleged in this case. See Opp. at 8 (page numbers provided by the Court's electronic filing system rather than appearing on the face of the brief). Accordingly the Court concludes that plaintiff has failed to state a claim under the ADA or the Rehabilitation Act. The history of this attorney's conduct in this case and before other judges of this Court in similar cases indicates that in many cases she has not provided competent or responsible representation to her clients. She has repeatedly made the same mistakes including missing deadlines and statutes of limitations, filing improper pleadings, naming improper defendants, failing to oppose dispositive motions, and mis-citing statutes in numerous IDEA cases before a number of different judges of this Court.[6] Counsel has repeated these same errors even after various judges have issued decisions explaining, for example, such basic points as that an individual District of Columbia Public School is, not subject to suit, and that plaintiffs attempted citation to the ADA is to a statutory provision that does not exist. In this case and in others, counsel's failings have disadvantaged her clients, sometimes leading to the dismissal of her clients' cases. The Court finds all this even more troubling in light of the fact that counsel, on her internet website, holds herself out as "a special education law attorney with more than ten years of experience."[7] Accordingly, the Court intends to refer this attorney to the Grievance Committee of this Court and to the District of Columbia Bar Office of Bar Counsel, so that the proper authorities may determine whether or not she is fairly and competently representing the interests of those persons she accepts as clients or whether she should be sanctioned for these serious violations. An Order consistent with this Memorandum Opinion will be issued this same day. SO ORDERED. ORDER For the reasons explained in the Memorandum Opinion issued this same day, it is hereby ORDERED that defendants' motion to dismiss [2] is GRANTED. This case is DISMISSED. The Clerk of the Court shall remove this case from the docket of the Court. This is a final appealable order. See FED. R.APP. P. 4(a). Any other pending motions are denied as moot. SO ORDERED. NOTES [1] The HOD, the Petition for Review, and various other papers were attached to the Notice of Removal and are part of the record before this Court. [2] Defendants assert that plaintiff's counsel has had another case dismissed in the Superior Court as a result of the same deficiency. See Mot. at 4 n. 2. [3] Plaintiff's counsel here also was counsel in Hinson and in Hamlet. [4] IDEA claims asserted by Ms. Cummings on behalf of J.C. in a previous lawsuit filed by the same counsel were also dismissed for lack of subject matter jurisdiction as a result of counsel's failure to file timely appeals from a number of Hearing Officer Decisions. See Cummings v. District of Columbia, Civil Action No. 04-1426, 2006 WL 1126811, * 3 (D.D.C. March 31, 2006). [5] As Judge Kotelly pointed out in a different case filed by the same attorney, the complaint "refers erroneously to a non-existent section of the United States Code, 42 U.S.C. § 1231, et seq." Hinson v. Merritt Educational Center, 521 F.Supp.2d at 31. Judge Kotelly continued: Nevertheless, the Court assumes that Plaintiffs meant to assert a claim pursuant to 42 U.S.C. § 12132, which provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. In turn, 42 U.S.C. § 12131 defines a public entity as, inter alia, "any department, agency, special purpose district, or other instrumentality of a State or States or local government." 42 U.S.C. § 12131. Hinson v. Merritt Educational Center, 521 F.Supp.2d at 31. The Court in this case will make the same assumption. [6] For example, a quick review of this Court's electronic filing system reveals a number of cases in which counsel has missed various deadlines, including statutes of limitations, and the failure to oppose dispositive motions or to serve process on the defendants. See, e.g., Cummings v. District of Columbia, Civil Action No. 04-1427 (Collyer, J.) (filed August 24, 2004) (service of process not completed within 120 days); Hamlet v. MM Washington School, Civil Action No. 04-1746 (Collyer, J.) (filed October 13, 2004) (failure to compete service of process until Court issued an Order to Show Cause; failure to oppose first dispositive motion until Court issued an Order to Show Cause; case later dismissed due to failure to oppose dispositive motion, which was itself a motion to dismiss for lack of prosecution); Smith v. Gibbs Elementary School, Civil Action No. 05-0515 (Kotelly, J.) (filed March 14, 2005) (case dismissed for failure to complete service of process or to show cause why service had not been completed); Carruthers v. Ludlow Taylor Elementary School, Civil Action No. 05-0516 (Urbina, J.) (filed March 14, 2005) (failure to oppose dispositive motion until Court issued an Order to Show Cause; case later dismissed due to missed statute of limitations); Smith v. Gibbs Elementary School, Civil Action No. 05-0568 (Huvelle, J.) (filed March 18, 2005) (case dismissed because counsel failed to oppose dispositive motion); Simmons v. MC Terrell Educational Center, Civil Action No. 08-0388 (Robertson, J.) (filed March 3, 2008) (failure to oppose partial motion to dismiss). A search of this Court's electronic filing system also shows that counsel has filed several lawsuits in this Court improperly naming individual District of Columbia Public Schools as defendants. See, e.g., Cummings v. District of Columbia, Civil Action No. 04-1426 (Collyer, J.) (filed August 24, 2004); Cummings v. District of Columbia, Civil Action No. 04-1427 (Collyer, J.) (filed August 24, 2004); Hamlet v. MM Washington School, Civil Action No. 04-1746 (Collyer, J.) (filed October 13, 2004); Savoy-Kelly v. Eastern High School, Civil Action No. 04-1751 (Kessler, J.) (filed October 13, 2004); Smith v. Gibbs Elementary School, Civil Action No. 05-0515 (Kotelly, J.) (filed March 14, 2005); Carruthers v. Ludlow Taylor Elementary School, Civil Action No. 05-0516 (Urbina, J.) (filed March 14, 2005); Smith v. Gibbs Elementary School, Civil Action No. 05-0568 (Huvelle, J.) (filed March 18, 2005); Hinson v. Merritt Educational Center, Civil Action No. 07-0934 (Kotelly, J.) (filed May 21, 2007); Simmons v. MC Terrell Educational Center, Civil Action No. 08-0388 (Robertson, J.) (filed March 3, 2008). A third quick review of this Court's electronic filing system reveals several complaints in which counsel has "refer[red] erroneously to a non-existent section of the United States Code, 42 U.S.C. § 1231, et seq.," see supra n. 5. See, e.g., Cummings v. District of Columbia, Civil Action No. 04-1426 (Collyer, J.) (filed August 24, 2004); Cummings v. District of Columbia, Civil Action No. 04-1427 (Collyer, J.) (filed August 24, 2004); Hamlet v. MM Washington School, Civil Action No. 04-1746 (Collyer, J.) (filed October 13, 2004); Savoy-Kelly v. Eastern High School, Civil Action No. 04-1751 (Kessler, J.) (filed October 13, 2004); Smith v. Gibbs Elementary School, Civil Action No. 05-0515 (Kotelly, J.) (filed March 14, 2005); Carruthers v. Ludlow Taylor Elementary School, Civil Action No. 05-0516 (Urbina, J.) (filed March 14, 2005); Smith v. Gibbs Elementary School, Civil Action No. 05-0568 (Huvelle, J.) (filed March 18, 2005); Hinson v. Merritt Educational Center, Civil Action No. 07-0934 (Kotelly, J.) (filed May 21, 2007); Maynard v. Cesar Chavez PCS, Civil Action No. 08-0258 (Walton, J.) (filed February 15, 2008); Simmons v. MC Terrell Educational Center, Civil Action No. 08-0388 (Robertson, J.) (filed March 3, 2008). Counsel has filed documents that were inappropriate in other respects as well. See, e.g., Savoy-Kelly v. Eastern High School, Civil Action No. 04-1751 (Kessler, J.) (filed October 13, 2004) Slip Opinion at 2 n. 2 ("Plaintiffs' Complaint and papers are extremely difficult to follow, very incomplete, and do not provide the Court with the appropriate information upon which to base its decision."). [7] Olekanma A. Ekekwe, P.C. Law Offices, http://www.olekanmalaw.com/PracticeAreas/ Education-Law.asp (last visited July 3, 2008).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498016/	(2008) GENESIS HEALTH VENTURES OF NAUGATUCK, INC., et al., Plaintiffs, v. Michael O. LEAVITT, Defendant. Civ. No. 04-1766 (LFO). United States District Court, District of Columbia. June 30, 2008. MEMORANDUM & OPINION LOUIS F. OBERDORFER, District Judge. Plaintiff Genesis Health Ventures of Naugatuck, Inc. owns 219 skilled nursing facilities that provide services to Medicare patients; each of these facilities is also a plaintiff.[1] Plaintiffs brought this action against the Secretary of Health and Human Services seeking reversal of a final decision of the Provider Reimbursement Review Board ("Board") requiring Plaintiffs to allocate employer contributions of Federal Insurance Contributions Act (FICA) taxes to the Employee Health and Welfare cost center ("Employee Health and Welfare") for fiscal years 1996, 1997, and 1998. Plaintiffs had sought to allocate FICA contributions to the Administrative and General cost center ("Administrative and General"), which would have increased their Medicare reimbursement for those cost years by approximately eight million dollars. For the reasons stated herein, an accompanying order grants the Secretary's motion for summary judgment and denies Plaintiffs' motion for summary judgment. I. Background Plaintiffs have entered into a "provider agreement" with the Secretary to provide Part A Medicare services. See 42 U.S.C: §§ 1395x(u), 1395cc. A private insurance company, BlueCross BlueShield Association/Veritus Medicare Services (the "Intermediary"), acts as the Secretary's agent to review Plaintiffs' claims for reimbursement and to administer payment. See 42 U.S.C. §§ 1395h, 1395x(u). Plaintiffs receive interim payments throughout the fiscal year. See 42 U.S.C. § 1395g. Within five months after the close of each fiscal year, Plaintiffs must file Medicare cost reports with the Intermediary. See 42 C.F.R. §§ 413.20(a), 413.24(a), (f) (2001). The Intermediary reviews the cost report and determines the amount of Medicare reimbursement due Plaintiffs for that fiscal year, offset by interim payments. See 42 C.F.R. § 405.1803 (2001). During the period at issue, Medicare reimbursed Plaintiffs for reasonable costs "determined in accordance with regulations establishing the method or methods to be used, and the items to be included, in determining such costs." 42 U.S.C. § 1395f(b)(1). The regulations establishing the guidelines for determining "reasonable cost" are published in 42 C.F.R. Part 413 (2001). The Provider Reimbursement Manual ("the Manual" or "PRM") contains the Secretary's interpretations of the governing statute and regulations to assist agency decision makers and facilities in understanding how to apply the reasonable cost rules. The first step in determining a facility's reimbursement is to identify the "allowable" costs of furnishing covered services. 42 C.F.R. § 413.24(d) (2001); see also 42 C.F.R. 413.50(a) (2001). Allowable costs are "necessary and proper expenses of an institution in the production of services," 42 C.F.R. § 413.5(a) (2001), "which are appropriate and helpful in developing and maintaining the operation of patient care facilities and activities." 42 C.F.R. § 413.9(b) (2001). After allocating each allowable cost to an appropriate cost center, PRM § 2302.7, the provider apportions them between Medicare and non-Medicare patients so that the program reimburses the provider for only those costs incurred treating Medicare beneficiaries. See 42 C.F.R. Pt. 413, Subpt. D. (2001) Cost centers can generally be classified as either (1) revenue producing cost centers, which produce patient care revenue, and (2) non-revenue producing cost centers, which do not directly generate patient care revenue but contribute to patient care revenue by serving the revenue producing cost centers. PRM § 2306. In order to properly match revenue and expenses, the regulations provide that the costs of revenue-producing cost centers should include both their direct expenses as well as their proportional share of each non-revenue producing cost center based on the amount of services received. 42 C.F.R. § 413.24 (2001). The regulations characterize this as "cost finding" and define it as "the determination of [the costs of the various types of services furnished] by the allocation of direct costs and proration of indirect costs." 42 C.F.R. § 413.24(b) (2001). Plaintiffs used the "step-down" method to allocate allowable costs to the appropriate cost centers: Step-down Method. This method recognizes that services furnished by certain nonrevenue-producing departments or centers are utilized by certain other nonrevenue-producing centers as well as by the revenue-producing centers. All costs of nonrevenue-producing centers are allocated to all centers that they serve, regardless of whether or not these centers produce revenue. The cost of the nonrevenue-producing center serving the greatest number of other centers, while receiving benefits from the least number of centers, is apportioned first. Following the apportionment of the cost of the nonrevenueproducing center, that center will be considered "closed" and no further costs are apportioned to that center. This applies even though it may have received some service from a center whose cost is apportioned later. Generally, if two centers furnish services to an equal number of centers while receiving benefits from an equal number, that center which has the greatest amount of expense should be allocated first. 42 C.F.R. § 413.24(d)(1) (2001). Similarly, the Manual defines "general service cost centers" as "organizational units which are operated for the benefit of the institution as a whole," PRM § 2302.9, and directs providers to allocate general service costs to other cost centers using the step-down process: The costs of a general service cost center need to be allocated to the cost centers receiving service from that cost center. This allocation process is usually made, for Medicare cost reporting purposes, through cost finding using a statistical basis that measures the benefit received by each cost center. PRM § 2307. A. Letters Discussing FICA Allocation A series of letters from the Health Care Financing Administration (the "Administration")[2] in 1998 and early 1999 (the "1998 Letters") addresses the allocation of FICA costs. On April 14, 1998, one of the Administration's intermediaries wrote to the Administration's Division of Cost Reporting and "requested clarification concerning the proper classification of workers' compensation and employment related taxes as employee benefits or administrative costs on the Medicare cost report." AR 547. On May 5, 1998, the Administration responded in writing: Workers' compensation and other employment related taxes (employer's share of FICA, unemployment compensation) are not fringe (employee) benefits; rather, they are administrative business costs of the provider. Accordingly, these costs are generally included in the provider's administrative and general cost center. Id. The letter went on to note that these costs "may, dependent upon the individual provider's accounting sophistication and subject to intermediary approval, be allocated directly to the various cost centers to which related employee compensation costs have been allocated." Id. In July 1998, in response to a request for further clarification, the Administration sent another letter (the "July 1998 Letter") that stated: Payroll-related taxes such as workers compensation, unemployment compensation and F.I.C.A. (employer's share) are not considered fringe benefits because they are not amounts paid to, or on behalf of, an employee in addition to direct salary or wages (see PRM section 2144.1). Rather, these costs are considered payroll-related tax costs. AR 551-52. The letter stated that allocating payroll-related taxes to cost centers that have incurred payroll costs is "preferred over a method that would allocate these costs through the A & G cost center" Id. The letter went on to state that providers that lack a level of accounting sophistication sufficient to break out payroll-related taxes and place them in the cost centers that have incurred payroll costs "may include these costs in the A & G cost center for allocation purposes" and that the Administration has "no plans to limit the flexibility that providers have in reporting these costs." Id. In a letter dated April 8, 1999 to a Medicare appeals consultant, the Administration stated that "Payroll related tax costs for workers compensation, FICA (Employer's portion), FUTA and SUTA should be recorded as administrative and general (A & G) costs" but that "the provider may, subject to intermediary review and approval, directly allocate the costs to the various cost centers to which related salary costs had been allocated." Letter from Ward C. Pleines to Paul R. Gulbrandson dated April 8, 1999 (AR 554). B. Plaintiffs' Cost Reports Plaintiffs completed cost reports for fiscal years 1996 and 1997 and filed them with the Intermediary, assigning the FICA costs to Employee Health and Welfare, before they learned of the 1998 Letters. At the hearing before the Board, Plaintiffs' Vice President of Reimbursement testified that he assigned these costs to Employee Health and Welfare because, "It was the way, when I first started doing cost reports many years prior, I had always been told to do it, and I did it that way as a matter of course." Board Hearing Tr. (Sept. 12, 2003) at 64-65, AR 80. Plaintiffs learned of the 1998 Letters in May 1999, just before the June 1 due date for the 1998 cost reports. Id. Plaintiffs requested a two-week extension to allow them to adjust the 1998 cost report to allocate FICA to Administrative and General. Id. The Intermediary responded that, should Plaintiffs not file their cost reports by their due date, it was "extremely likely" that the Intermediary would suspend Medicare payments to Plaintiffs. AR Supp. 18. In light of this response, Plaintiffs indicated that they would submit their 1998 cost reports by June 1, 1999 and "employ the traditional methodology [they have] used for allocating [their] cost for cost report filing purposes." Id. Plaintiffs' original 1998 cost report allocated FICA to Employee Health and Welfare. Plaintiffs filed amended 1998 cost reports allocating FICA to Administrative and General, but the Intermediary refused to accept them. See AR Supp. 20. The Intermediary also denied Plaintiffs' request to reopen its 1996 and 1997 cost reports to allow it to reclassify payroll-related costs. AR Supp. 22. The Intermediary computed the reimbursement amounts due Plaintiffs by allocating all payroll-related tax costs, including employer FICA contributions, to Employee Health and Welfare. As a result, Plaintiffs received approximately eight million dollars less in reimbursement payments than they would have received if their employer FICA contributions had instead been allocated to Administrative and General. AR 4-5. On August 6, 1999, Genesis noticed a timely group appeal to the Board challenging the Intermediary's treatment of payroll-related tax. AR Supp. 413-17. On August 23, 1999, the Administration sent its intermediaries a letter ("August 1999 Letter") which begins by stating that the most accurate and appropriate method of cost finding is to assign payroll-related tax costs "to those cost centers charged with the related salary costs" rather than assigning them to Administrative and General. AR 162-63. The letter stated: In my prior letter, I also should have pointed out that the current cost reporting instructions provide that payroll-related tax costs may be reclassified to the employee benefits cost center to be allocated on the basis of gross salaries (see the Provider Reimbursement Manual, 3611). In terms of the degree of appropriateness and accuracy, this method would rank second (i.e., slightly less accurate than directly assigning the payroll-related costs, but clearly more accurate than allocating these costs as a component of A & G). AR 163. The letter continues: I understand that some providers have requested and received your approval to change their allocation bases from a more accurate option to a less accurate option (e.g., from direct allocation to A & G or from employee benefits to A & G). Any further requests of that nature should not be approved. Moreover, any previously granted requests should be rescinded. The regulations at 42 CFR 413.24 and PRM at chapter 23 prohibit the use of a less appropriate and accurate cost allocation once the provider has used a more appropriate and more accurate cost allocation. Id. C. Proceedings Before the Board The Board originally denied jurisdiction over the appeal, and Plaintiffs appealed that decision to this court. AR 518-25. After the parties filed a stipulation of settlement, the court ordered the Board to decide the appeal on the merits. AR 274. On September 12, 2003, the Board conducted a hearing on the record on the question "Should the Providers' Federal Insurance Contributions Act (FICA) payroll costs be classified to the administrative and general cost center?" AR 4, 65-123. Plaintiffs made substantially all the arguments they make here: that the 1998 Letters were binding on the Intermediary; that FICA taxes are not properly allocated to Employee Health and Welfare because they are not a fringe benefit; that there is not a prohibited cost shift by allocating payroll-related tax costs to Administrative and General; and that other providers may have been granted permission to classify payroll-related tax costs as Administrative and General. See AR 3-8 The Board, in a unanimous opinion dated August 13, 2004, rejected each of plaintiffs' arguments in turn. Id, First, the Board found that the primary consideration in this case is the payment of reasonable costs consistent with the regulation at 42 C.F.R. § 413.24, which seeks the development and application of methodologies which yield the most accurate determination of actual costs incurred in the provision of health care services under the Medicare program. The Board finds that the Intermediary's methodology for allocating FICA costs is the most accurate and appropriate. AR 8. The Board reasoned that since FICA costs are salary-generated costs, "the use of gross salaries as the allocation basis" is the most accurate way to allocate these costs because it links the costs to those activities that benefit "from the services rendered by employees." AR 7. The Board found that Plaintiffs' FICA costs fit within the definition of a "fringe benefit" and, as such, "should be classified to the employee benefits cost center." AR 7. The Board found that "[u]sing the allocation method advanced by Providers would result in the allocation of costs to cost centers that do not even contain any employees or direct salary expense." AR 8. The Board also found that the fiscal intermediary "has demonstrated that the Providers' allocation approach over-allocates costs to ancillary departments that are reimbursed at a higher Medicare utilization rate." AR 8. The Board stated that "[w]hile [Administration] letters can be accorded `great weight' by the Board, the letters in the instant case reflect inconsistent points of view" and, therefore, the letters taken as a whole were unpersuasive and not entitled to any "particular deference." AR 8. (quoting 42 C.F.R. § 405.1867 (2001) ("The Board shall afford great weight to interpretive rules, general statements of policy, and rules of agency organization, procedure, or practice established by CMS.")). Accordingly, the Board ruled that the fiscal intermediary's decision to allocate Plaintiffs' FICA taxes to the Employee Health and Welfare cost center "is proper and is affirmed." AR 8. D. Procedural History On October 1, 2004, the Administration declined to further review the Board's decision. AR 2. Plaintiff filed this action pursuant to 42 U.S.C. § 1395oo(f)(1), which provides for judicial review of final agency decisions on Medicare provider reimbursement disputes under the terms of the Administrative Procedure Act, 5 U.S.C. §§ 701-06. Each party moved for summary judgment. Plaintiffs raise four arguments: (1) the Board retroactively applied an interpretive rule; (2) allocating employer FICA contributions to Administration and General would not result in improper cost shifting; (3) employer FICA contributions are not fringe benefits; and (4) the Secretary has treated Plaintiffs differently from similarly situated service providers. II. Discussion A. Standard of Review A court may set aside agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "unsupported by substantial evidence in a case ... reviewed on the record of an agency hearing provided by statute." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-15, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Under the arbitrary and capricious standard, a court may invalidate an agency action only if it is "not rational and based on consideration of the relevant factors;" F.C.C. v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 803, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978). The substantial evidence standard is satisfied if the final agency decision is supported by "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (quoting Consolidated Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). This court reviews the agency decision on the administrative record without considering matters outside the record. Walter O. Boswell Mem. Hosp. v. Heckler, 749 F.2d 788, 792 (D.C.Cir.1984). B. Retroactive Application of Interpretive Rule "[T]he Secretary has no authority to promulgate retroactive cost-limit rules." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 215, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). "[Interpretive rules, no less than legislative rules, are subject to Georgetown Hospital's ban on retroactivity." Health Ins. Ass'n of America, Inc. v. Shalala, 23 F.3d 412, 423 (D.C.Cir.1994). Plaintiffs argue that the Board was required to act as if the August 1999 Letter (instructing Intermediaries to allocate FICA contributions to Employee Health and Welfare) did not exist because it was an interpretive rule issued after Plaintiffs filed their request to reopen the cost reports. Had the Board done so, Plaintiffs argue, it would have given the 1998 Letters the "great weight" required by 42 C.F.R. § 405.1867 and ruled in favor of Plaintiffs' request to allocate employer FICA contributions to Administrative and General.[3] The flaw in Plaintiffs' reasoning is that, even if the August 1999 Letter does promulgate an interpretive rule, the Board relied on the letter merely as evidence that the 1998 Letters did not accurately state the rule in effect at that time. The August 1999 Letter states that it was written to "clarify" the July 1998 Letter. AR 162. It further states, "In my prior letter, I also should have pointed out that the current cost reporting instructions provide that payroll-related tax costs" should be allocated to Employee Health and Welfare, and that this method is "clearly more accurate" than allocating such costs to Administrative and General. Id. (emphasis added). The letter then instructs the Intermediary not to approve any requests by providers to "change their allocation bases from a more accurate option to a less accurate option (e.g., from direct allocation to [Administrative and General] or from employee benefits to [Administrative and General])." Id. Thus, the August 1999 Letter contains an admission that the July 1998 Letter did not accurately state the rule in effect at that time. An admission of such an error by the author calls into question the reliability of the June 1998 Letter and the other 1998 Letters that reach the same conclusion. It was not error for the Board to rely on this admission in declining to give great weight to the 1998 Letters. Moreover, at the time Plaintiffs incurred the costs at issue here, they themselves believed the rule to be as described in the August 1999 letter. As one of Plaintiffs' employees testified at the hearing before the Board, allocating FICA contributions to Employee Health and Welfare "was the way, when I first started doing cost reports many years prior, I had always been told to do it, and I did it that way as a matter of course." AE 80. The law disfavors retroactivity because "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted." Cookeville Reg'l Med. Ctr. v. Leavitt, 531 F.3d 844, 2008 WL 2550542 (D.C.Cir.2008) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)) (discussing exceptions to the presumption against retroactivity in statutory construction). Because the August 1999 Letter conformed with Plaintiffs' settled expectations during the 1996, 1997, and 1998 cost years, the elementary considerations of fairness are satisfied here. C. Cost Shifting The Secretary argues that the allocation method that the Board upheldthe use of gross-salaries as the allocation basis for salary-generated costsis the most accurate way to apportion costs between Medicare and non-Medicare patients and that this is the most important consideration. The Board's reasoning makes intuitive sense, and at least one court has upheld this reasoning. See Pleasant Care Corp. v. Leavitt, No. 05-05456 (C.D.Cal. Aug. 2, 2006) (upholding a Board decision denying a provider's request to reopen cost reports to change its allocation of FICA to the Administrative and General cost center because the Board's holding that such an allocation was less accurate was supported by substantial evidence). Plaintiffs have not attempted to show that their preferred allocation method is more accurate. Rather, Plaintiffs argue that case law requires the Secretary to make a finding that classifying FICA costs as Administrative and General would cause a disproportionate allocation of Administrative and General costs as a whole, citing for that proposition Walter O. Boswell Memorial Hospital v. Heckler, 749 F.2d 788 (D.C.Cir.1984). That case is easily distinguished from the current dispute. The Secretary's decision at issue in Walter O. Boswell modified an existing cost allocation scheme to remove medical malpractice premiums from the administrative and general cost center. The Secretary justified this change as follows: We believe that the current cost finding and apportionment procedure is generally an equitable method of allocating [non-malpractice] overhead costs. However, because malpractice costs are so significant and the disproportionate allocation of malpractice costs to Medicare is so great, we believe a unique exception is warranted to deal with these costs. Id. at 794. The D.C. Circuit noted that the "precise factual basis for this conclusion, however, remains obscure from the record before the District Court." Id. The court stated that, to justify his decision, the Secretary must make a finding that failing to remove malpractice premiums from the administrative and general cost center results in improper cost shifting when the cost center is taken as a whole. Id. at 795. So far, this decision does seem to support Plaintiffs' argument, because there is no record that the Secretary made such a finding in the case now before the court. However, the Walter O. Boswell court went on to say that this requirement to examine the costs taken as a whole exists because the old method "had long been presumed to balance costs fairly between Medicare and non-Medicare patients." Id. This supports the Secretary's position, because the Secretary is advocating maintaining a long-standing ruleone followed by Plaintiffs for "many years" "as a matter of course." AR 80. As such, there is a presumption that this rulethe rule upheld by the Boardbalances costs fairly. Plaintiffs also rely on National Medical Enterprises, Inc. v. Shalala, 43 F.3d 691 (D.C.Cir.1995) as an example of the D.C. Circuit affirming "the reversal of a [Board] decision where the Board had done precisely what it did here: require that a particular cost be classified in the manner it believed to be the most accurate methodology for allocating the particular cost despite the absence of any evidence showing that that reporting methodology was required to avoid disproportionate allocation of an entire category of costs taken as a whole." PI. Motion for Summary Judgment at 36. Plaintiffs are misapplying National Medical Enterprises. The D.C. Circuit upheld the Secretary's decision to overrule the Board in that case, deferring to the Secretary's decision to use an "allegedly" less accurate allocation method because "the Secretary has resolved this difficult task [of allocating costs] by adopting an averaging system wherein costs are balanced between Medicare and non-Medicare patients as a whole and not on a per service basis." Nat'l Med. Enters., 43 F.3d at 696. Nothing in the opinion justifies requiring the Secretary to use a less accurate allocation method for a particular cost. Plaintiffs have presented no argument that their desired method of cost allocation is more accurate than the Secretary's longstanding method. Moreover, the requirement that changes to cost allocation methods be justified by analysis of costs as a whole supports the Secretary's contention that the 1998 Letters do not represent a considered change in policy, because there is no evidence that those letters were based on such a comprehensive analysis. Case law requires the Secretary to perform an analysis of any change in cost allocation method that takes into account the costs as a whole. However, there is no case law that requires the Secretary to do so when he is not making a change in the method of cost allocation. There is substantial evidence to support the Board's decision that allocating FICA to the administrative and general cost center is less accurate than the method used by Plaintiffs in their original cost reports. D. Categorization as Fringe Benefit The Board found that employer FICA contributions are fringe benefits and thus properly categorized as Employee Health and Welfare costs. Plaintiffs raise two objections: (1) the Board should have given great weight to the 1998 Letters' statements that employer contributions to FICA are not a fringe benefit; and (2) case law supports the contention that employer contributions to FICA are not a fringe benefit. The first argument is addressed and disposed of above. As for their second argument, Plaintiffs first cite two bankruptcy cases which found that workers' compensation insurance premiums are not fringe benefits. The Medicare program has its own definition of fringe benefits: Fringe benefits are amounts paid to, or on behalf of, an employee, in addition to direct salary or wages, and from which the employee, his/her dependent (as defined by IRS), or his/her beneficiary derives a personal benefit before or after the employee's retirement or death. In order to be allowable, such amounts must be properly classified on the Medicare cost report, i.e., included in the costs of the cost center(s) in which the employee renders services to which the fringe benefit relates and, when applicable, have been reported to the IRS for tax purposes.... See AR 7 (quoting HCFA Pub. 15-1 § 2144.1). Because the aspects of this definition that the Board decision relies on were not relevant to the cited bankruptcy cases, they are inapplicable here. Plaintiffs also cite a holding by the Board that workers' compensation costs are not fringe benefits and are properly allocated to Administrative and General. Longwood Mgmnt Corp. Group v. Blue Cross and Blue Shield Ass'n, Blue Cross of California, PRRB Decision 99-D34, Case No. 97-0354G (April 06, 1999). The Board cited a bankruptcy decision that distinguished workers' compensation costs from fringe benefits because workers' compensation insurance primarily benefits the employer by covering a state-imposed liability. The Board also contrasted the Manual's statement that "workers' compensation insurance [is] a form of liability insurance ... primarily purchased to protect the employer (Providers) against potential losses due to workers injury" with the rule that "fringe benefitfs] inure primarily to the benefit of the employee." Id. The Board in Longwood found the definition of liability insurance "more compelling" as applied to workers' compensation because "it specifically addresses the type of insurance (liability) which workers compensation encompasses." Id. The reasoning in Longwood is not applicable here. It is clear that employer FICA contributions do not qualify as liability insurance. Therefore, the Board could not have applied Longwood's reasoning in this case. Plaintiffs point out that the Board in Longwood did note that "fringe benefits are generally `bargained for' between employers and employees." Id. Employer FICA contributions are not bargained for, they are mandated by law. However, Longwood did not say that all fringe benefits are bargained for, it said they were "generally" bargained for. Therefore, the Board's decision in this case is consistent with Longwood. The Board's finding that "the employer's share of FICA taxes is an employee fringe benefit that serves to secure a right to a future benefit, i.e., social security at retirement, disability or survivor's benefits" is consistent with the Medicare program's definition of fringe benefits and is thus supported by substantial evidence. E. Disparate Treatment Plaintiffs argue that the Secretary has treated them differently from similarly situated service providers. The burden is on "an appellant complaining of inconsistency and capriciousness in the agency's explanation of its treatment to bring before the reviewing court sufficient particulars of how the appellant was situated, how the allegedly favored party was situated, and how such similarities as may exist dictate similar treatment and how such dissimilarities as may exist are irrelevant or outweighed." PIA Michigan City Inc. v. Thompson, 292 F.3d 820, 826 (D.C.Cir.2002). Plaintiffs cite three pieces of evidence in their attempt to meet this burden: (1) the August 1999 Letter, (2) the Intermediary's testimony before the Board, and (3) transcript evidence from a similar case before the Board. None of this evidence provides the proof necessary to sustain Plaintiffs claim of disparate treatment. August 1999 Letter. Plaintiffs rely on the following excerpt from the August 1999 Letter as evidence that other providers received the treatment Plaintiffs seek: I understand that some providers have requested and received your approval to change their allocation bases from a more accurate option to a less accurate option (e.g., from direct allocation to A & G or from employee benefits to A & G). Any further requests of that nature should not be approved. Moreover, any previously granted requests should be rescinded. AR at 162. The letter writer's "understanding" is insufficient to prove that other providers received disparate treatment. Further, the letter actually indicates that intermediaries should deny providers' requests to allocate employer FICA contributions to Administrative and Generalin other words, that providers should receive the same treatment as Plaintiffs. Intermediary's Testimony. Plaintiffs argue that testimony of the Intermediary's representative at the hearing before the Board is evidence that some intermediaries allowed other providers to allocate FICA contributions to Administrative and General. PI. Reply at 14-15. A reading of the entire transcript passage makes it clear that the Intermediary was not aware of any providers that were allowed to reclassify their FICA costs: Q. ... before you came here today, were you aware that the Intermediary that you work for had both received and approved the very type of cost reclassification change that Genesis is seeking here prior to August 23, 1999?. A. For FICA? Q. For Providers other than Genesis? A. No, I wasn't. No, I was not. AR at 115. After questioning the witness about his understanding of the August 1999 Letter, Plaintiffs' counsel then asked, "are you aware of any basis for [the Intermediary] to have approved such a change other than the [1998] letters?" The witness answered, "No." Id. The witness did agree that the letters seem to indicate that some providers sought and approved a reclassification of FICA to general and administrative costs, but he never provided any indication that he has independent knowledge of that occurring. His testimony on this issue amounts at most to a restating of the August 1999 Letter. Testimony Before Board in Similar Case. Plaintiffs ask the court to take judicial notice of testimony before the Board in a similar case, Mutual of Omaha v. Pleasant Care Corp., Case No. 00-0909G. There, a managerial employee of the intermediary testified that he allowed several providers to reopen cost reports to change the allocation of employer FICA contributions to Administrative and General. The intermediary did not require these providers to reclassify FICA after issuance of the August 1999 Letter: Q: Why didn't you reopen the cost reports, the 14 that you reopened [and allowed reclassification on], why didn't you reopen them and reverse the adjustment? A: Well, what we had done is, at least in my view, there were no precise program instructions on that. We got the [April 1999 Letter]. I considered that statement of policy at the time. When I called Ward, [the author of the letter] what he told me was that HICFA [sic] had reconsidered their position. At some point in time, HICFA's [sic] position is changing, so I didn't see the reason to go back and reopen and take the money away from the Providers, I mean, I think that we did our best to determine what HICFA [sic] policy was at that time, and we paid the providers. So I wasn't going to take it back. Pl. Opp. to Def. Mot. for Sum. J., Ex. 2, Mutual of Omaha Tr. at 135:13-136-9. In contrast to this evidence that a single intermediary allowed an unspecified number of providers to do the same thing Plaintiffs seek to do herereopen cost reports to reallocate employer FICA contributions to Administrative and General there are examples of providers receiving the same treatment as Plaintiffs. In the Mutual of Omaha case, the Board ruled, just as it did in this case, that employer FICA contributions are properly allocated to Employee Health and Welfare. Mutual of Omaha v. Pleasant Care Corp., PRRB Decision 2005-D43, Case No. 00-0909G, June 10, 2005.[4] The testimony given above makes it clear that, after receiving the August 1999 Letter, the intermediary did not allow providers to reopen cost reports to change their FICA allocation. Although examples of similar treatment are not in and of themselves a defense to claims of disparate treatment, these examples serve to illustrate that the brief period in which a single intermediary allowed some providers to reopen cost reports was an erroneous departure from long-standing policy. Plaintiffs have provided a single instance where the Secretary failed to reclaim money improperly paid to some providers. The prohibition against disparate treatment does not require repeating that error for Plaintiffs' benefit. III. Conclusion The Board's decision is supported by substantial evidence. Plaintiffs do not even attempt to argue that the Board's central holdingthat categorizing employer FICA contributions as fringe benefits and allocating them to the Employee Health and Welfare cost center is more accurate than allocating those costs to Administrative and Generalis incorrect. Nor are their arguments that the Board improperly applied a retroactive interpretive rule or treated Plaintiffs differently than other similarly situated providers persuasive. Therefore, an accompanying order will grant the Secretary's motion for summary judgment and deny Plaintiffs' motion for summary judgment. NOTES [1] On July 27, 2007, the Calendar Committee reassigned this case from the late Judge John Garrett Penn to Judge Louis F. Oberdorfer [Dkt. No. 21]. [2] The Administration changed its name to the Centers for Medicare and Medicaid Services sometime after the period relevant to this case. [3] If this court were to find that the Board failed to properly weigh the letters, the remedy would be remand, not reversal. See PPG Indus., Inc. v. United States, 52 F.3d 363, 365-66 (D.C.Cir.1995) ("[W]hen a court reviewing agency action determines that an agency made an error of law, the court's inquiry is at an end: the case must be remanded to the agency for further action consistent with the corrected legal standards."). [4] A district court upheld the Board's decision. See Pleasant Care Corp. v. Leavitt, No. 05-05456, (C.D.Cal. Aug. 2, 2006).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498158/	389 F. Supp. 2d 628 (2005) GASKIN, et al., Plaintiffs, v. COMMONWEALTH OF PENNSYLVANIA, et al., Defendants. No. CIV.A.94-4048. United States District Court, E.D. Pennsylvania. September 16, 2005. Jessica R. Lowenthal, Judith A. Gran, Max Lapertosa, Philadelphia, PA, Phillip A. Drumheiser, Carlisle, PA, Yvonne M. Husic, Law Offices of Yvonne M. Husic, Harrisburg, PA, for Plaintiffs. Fredrick Cabell, Jr., Deputy Attorney General, Gwendolyn T. Mosley, Office of 629 Atty. Gen., Lawrence White, M. Patricia Fullerton, Office of General Counsel, Dept. Education, Harrisburg, PA, for Defendants. MEMORANDUM EDUARDO C. ROBRENO, District Judge. After eleven years of alternating between aggressive litigation and intensive settlement negotiations, the parties in this action have reached a Settlement Agreement. Before the Court is the parties' joint motion for final approval of the proposed Settlement Agreement (doc. no. 326). For the following reasons, the Court will grant the motion, approve the Settlement Agreement, and dismiss the case with prejudice. I. BACKGROUND On June 30, 1994, twelve students,[1] all of whom were enrolled in various local school districts in Pennsylvania and alleged to have disabilities, and eleven state and regional disability advocacy groups ("Plaintiffs"), initiated the instant class action against the Commonwealth of Pennsylvania, the Pennsylvania Department of Education ("PDE"), and multiple individuals acting in their capacities as officials of various state organizations ("Defendants"). Plaintiffs claimed that Defendants violated: (1) the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. §§ 1400-1485, by failing to identify disabled students, develop individual educational programs or plans ("IEPs"),[2] and provide a free appropriate public education ("FAPE") in the least restrictive environment ("LRE") to the maximum extent reasonably possible; (2) Section 504 of the Rehabilitation Act, as amended by 29 U.S.C. § 794, by excluding disabled students, solely because of their disability, from participating in or from receiving the benefits of any program that received federal funding; and (3) Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134, by excluding otherwise qualified students from access to public programs solely because of their disability. Defendants denied these allegations. In 1995, pursuant to Federal Rule of Civil Procedure 23, the Court certified the class, defined as: [A]ll present and future school age students with disabilities in the Commonwealth of Pennsylvania who have been denied the option of receiving a free appropriate education in regular classrooms with individualized supportive services, or have been placed in regular education classrooms without the supportive services, individualized instruction, and accommodations they need to succeed in the regular classrooms. Gaskin v. Pennsylvania, No. Civ. A. 94-4048, 1995 WL 355346, at 1 (E.D.Pa. June 12, 1995). The class is comprised of approximately 255,264 members, according to the most recent data from PDE.[3] (Fairness Hr'g Tr., 06/24/2005, 20-22.) 630 Following certification, the parties engaged in extensive discovery, which lead to, inter alia, the production of thousands of documents, the taking of dozens of depositions, and the exchange of at least eighteen expert reports involving a panoply of subjects. During various stages of discovery, the parties also exchanged settlement proposals and participated in settlement discussions with a number of court-designated facilitators. Each settlement attempt, although not initially successful, brought the parties closer together. In 2002, following a discovery dispute, the Court appointed The Honorable Louis C. Bechtle, former Chief Judge of the United States District Court for the Eastern District of Pennsylvania, as Discovery Master in the case. With Judge Bechtle's guidance, the parties completed discovery on May 30, 2003. Thereafter, the parties filed cross-motions for summary judgment, along with responses and replies. On March 24, 2004, the Court heard oral argument on the summary judgment motions. After oral argument, and at the Court's suggestion, the parties agreed to reconvene settlement discussions, with Judge Bechtle serving as a mediator. From July 2004 to December 2004, the parties negotiated through mediation sessions with Judge Bechtle, face-to-face meetings with negotiating teams that represented the parties, and the exchange of correspondence a settlement that addressed all of the issues in the case. On December 21, 2004, the parties filed a joint motion for provisional approval of the proposed Settlement Agreement (doc. no. 295), which the Court granted on April 29, 2005 (doc. no. 305).[4] The Court also (1) altered and approved the parties' proposed form of notice; (2) prescribed time frames for the distribution of the notice; (3) established time frames for the submission of objections to the proposed Settlement Agreement; and (4) set a date for a Fairness Hearing. The Court received nineteen objections to the Settlement Agreement, of which only sixteen where submitted by class members or their parents. At the Fairness Hearing, which was held on June 24, 2005, the Court heard oral argument from the parties and other interested persons and received testimony from a special-education 631 expert, Commonwealth officials, parents of several named Plaintiffs, and certain representatives from advocacy groups. The parties submitted additional evidence through declarations and reports. Thereafter, the Court ordered the parties to file a joint motion for final approval of the proposed Settlement Agreement (doc. no. 318). The joint motion was filed on August 5, 2005. (doc. no. 326). II. PROPOSED SETTLEMENT AGREEMENT With the Court's final approval, the Settlement Agreement will resolve finally and completely the case of Gaskin v. Pennsylvania, No. Civ. A. 94-4048 (E.D.Pa.1994). Rather than continuing to litigate this action, the parties have agreed to follow the terms and conditions of the proposed Settlement Agreement fully and comprehensively to resolve all outstanding claims in the case. The life of the Settlement Agreement will be the five-year period of time commencing on the date on which the Court formally enters an order dismissing the case and ending exactly five years later. (Settlement Agreement, Provisions II(B)-(C), doc. no. 295.) As a foundation to the Settlement Agreement, the parties have affirmed the following mutual goals and principles that will guide interpretation of the Settlement Agreement. (1) The IDEA and related case law, including Oberti v. Board of Education, 995 F.2d 1204 (3d Cir.1993), require special education students to be educated with students who do not have disabilities to the maximum extent appropriate. (2) It is desirable that school districts increase their capacity to provide appropriate specially designed instruction, related services, supplementary aids and services and support to special education students placed in regular education classrooms. (3) When the law requires that special education students receive supplementary aids and services in order to be educated with students who do not have disabilities to the maximum extent appropriate, such supplementary aids and services should be: (a) available to all students in need of them; (b) designed to provide meaningful educational benefits; and (c) provided in a manner sensitive to the need to avoid stigmatizing special education students who receive them. (4) Pennsylvania school districts educate all children and welcome children with special needs. (Id. at Provision III(A)(1)-(4).) A summary of certain Settlement terms and conditions follows. A. Policy Development and Implementation The overarching policies undergirding the Settlement Agreement are divided into five categories. (Id. at Provision IV.1.) First, PDE agrees to require school districts to adhere strictly to the IDEA, and the case law construing that statute, when making decisions regarding the placement of students with disabilities. To meet this condition of the Settlement Agreement, the PDE will ensure: (1) students may not be removed from regular education classes simply because of the severity of their disabilities; (2) school districts have an obligation to provide students with disabilities, including students with significant cognitive disabilities, specially designed instruction or other supplementary aids and services, if needed, to benefit from participating in a regular education classrooms; (3) before considering removal of a student with disabilities from a regular education classroom, the IEP team must first determine 632 whether the goals in the student's IEP can be implemented in a regular education classroom with supplementary aids and services; and (4) school districts will consider the full range of supplementary aids and services, based on peer-reviewed research to the extent practicable, that can be utilized in regular education classrooms before contemplating removal of a student with disabilities from a regular classroom. (Id. at Provision IV.1(A).) Second, when non-PDE Commonwealth agencies or private agencies are required to provide a free appropriate public education in the least restrictive environment, "the services will be provided, coordinated, and paid in accordance with the interagency coordination [set forth in the] Memorandum of Understanding entered into among PDE, the Pennsylvania Department of Public Welfare, the Pennsylvania Department of Labor and Industry, and the Pennsylvania Department of Health." (Id. at Provision IV.1(B).) Third, students who are entitled to gifted support or Chapter 15 accommodations[5] will have one IEP that incorporates all specially designed instruction, accommodations, or other support identified by the IEP team. (Id. at Provision IV.1(C).) Fourth, PDE agrees to create readily available, informational materials about the types of supplementary aids and services that children with disabilities can receive in a regular education classroom and how parents can seek assistance in obtaining these aids and services for their children. PDE will seek input from the Advisory Panel (see Part II.A below) for this initiative. (Id. at Provision IV.1(D).) Finally, PDE agrees to create materials representing that all children, including those children with disabilities, are welcome in school. These materials will be displayed in school buildings. PDE also agrees to seek input from the Advisory Panel (see Part II.A below) for this initiative. (Id. at Provision IV.1(E).) B. Advisory Panel PDE agrees to establish a special advocacy group, known as the "Bureau Director's Advisory Panel on Least Restrictive Environment Practices" (or simply the "Advisory Panel"),[6] to engage in the following 633 functions: (1) to review system-wide progress in the delivery of individualized, specially designed instruction in regular education classrooms to students with disabilities; (2) to analyze and report periodically on the status of implementation of the Settlement Agreement; and (3) to advise PDE on the implementation of the Settlement Agreement's terms and conditions. (Id. at Provision IV.2(A).) The Advisory Panel will be comprised of fifteen members, at least nine of whom will be parents of children with disabilities who are not employed by PDE, or by any school district in Pennsylvania, or by any other local education agency in Pennsylvania. (Id. at Provision IV.2(B).) More specifically, during the life of the Settlement Agreement, the organizational Plaintiffs will annually select twelve Advisory Panel members, and the Bureau Director will annually select three Advisory Panel members. (Id.) Although all Advisory Panel members will initially be appointed to a one-year term, the Settlement Agreement provides that each member is eligible for reappointment, up to a maximum of five years. (Id.) The Settlement Agreement also establishes guidelines for how vacancies on the Advisory Panel will be filled, how often the Advisory Panel will meet, how the Advisory Panel will operate, and what types of data will be accessible to the Advisory Panel. (Id. at Provision IV.2(C)-(M).) Notably, the Bureau of Special Education agrees to provide "a reasonable level of support, including support staff, to the Advisory Panel consistent with the PDE's budgetary resources and as determined by the Bureau Director." (Id. at Provision IV.2(K).) Two of the Advisory Panel's main initiatives will be: (1) to assist in designing a needs assessment, based on research-based practices and the supplementary aids and services available in regular education classrooms, of the school districts' and intermediate units' personnel; and (2) to aid the Director of the Bureau of Special Education in identifying school districts that have established exemplary LRE programs and practices, rewarding those districts, and creating materials to help other school districts replicate the LRE initiatives of the exemplary school districts. (Id. at Provision IV.2(L)- (M).) C. Individualized Education Program or Plan ("IEP") Format As done previously, PDE will provide an Annotated IEP Format to guide school districts in developing IEPs. (Id. at Provision IV.3(A).) Under the Settlement Agreement, however, the LRE portion of the Annotated IEP Format will be modified to reflect the new LRE Monitoring, which is described below. (Id. at Provision IV.3(C)-(E).) Additionally, the Settlement Agreement sets forth how and when the LRE portion of the IEP may be modified during the life of the Settlement Agreement, and what type of guidance PDE will provide to school districts concerning the modified LRE portion of the IEP. D. Compliance Monitoring Perhaps the most significant aspect of the Settlement Agreement involves the provision for "compliance monitoring" by PDE of the individual school district's performance. Compliance monitoring is intended to ensure, inter alia, that local school districts are adhering to the IDEA and other federal and state laws that protect the rights of children with disabilities. (Id. at Provision IV.4(A).) Of the three types of compliance monitoring that PDE agrees to conduct, one is new ("LRE Monitoring") and two are existing, but will be modified under the Settlement Agreement ("Regular Cyclical Monitoring" and "Targeted Monitoring"). 634 (Id.) All types of compliance monitoring will be "data-and information-based and verifiable." (Id. at Provision IV.1(B)(1)(A).) PDE will use this data-based information as a guide for determining how to allocate resources to address "areas of greatest need[,]" relating to the support for children with disabilities. (Id. at Provision IV.1(B)(1)(B).) "As permitted by its resources, PDE will provide support, including focused, customized technical assistance, to school districts in need of such support." (Id. at Provision IV.1(B)(1)(C).) Moreover, parents of children with disabilities will be afforded the opportunity, on a continuous basis, to provide PDE with information. (Id. at Provision IV.4(B)(1)(e).) And for those school districts failing to take corrective action as mandated by PDE, sanctions will result. (Id. at Provision IV.4(I).) LRE Monitoring, which is a new type of monitoring under the Settlement Agreement, will be based of five guiding principles: (a) LRE monitoring will be based on a limited number of priorities (goal statements) identified by PDE following input from a diverse group of stakeholders through the Advisory Panel. Priorities will include: (1) increasing the number of students with disabilities included in regular education classes and neighborhood schools with needed supplementary aids, services and support; and (2) developing IEPs capable of providing students with disabilities a meaningful benefit from education. (b) LRE monitoring will be based on a limited number of indicators (objective measures of the goal) identified by PDE within each priority area. (c) LRE monitoring will be based on comparisons to state averages identified by PDE. Monitoring standards will be clearly communicated to school districts. (d) Triggers (levels of performance at which PDE will intervene and require corrective action) will be clearly communicated to school districts. (Id. at Provision IV.4(A)(3)(a)-(d).) Under LRE Monitoring, PDE will closely monitor and provide specialized support to half of Pennsylvania's school districts selected according to "LRE Index Score" rankings that have not been meeting the needs of children with disabilities. (Id. at Provision IV.4(C).) The LRE Index Score will derive from weighted "data factors," which will be agreed to by the parties and reviewed on an annual basis. (Id.) Based on the LRE Index Score, half of all school districts in Pennsylvania will be identified under one of three categories on an annual basis. (Id.) "Tier One LRE Monitoring" will be comprised of the twenty school districts with the lowest LRE Index Scores. (Id. at Provision IV.4(C)(1).) "Tier Two LRE Monitoring," also known as the "warning list," will consist of school districts in the bottom ten percent of the LRE Index Scores that have not been identified for "Tier One LRE Monitoring." (Id. at Provision IV.4(C)(2).) Finally, "Tier Three LRE Monitoring," also known as the "alert list," will be comprised of school districts in the bottom fifty percent of the LRE Index Score that have not been identified for Tier One LRE Monitoring or Tier Two LRE Monitoring. (Id. at Provision IV.4(C)(3).) The LRE Index Scores of all school districts will be made publicly available as part of the school and district report cards under the No Child Left Behind Act and the IDEA. (Id. at Provision IV.4.) Regular Cyclical Monitoring, a pre-existing monitoring process that is mandated by the United States Department of Education ("USDOE"), involves the monitoring 635 of each Pennsylvania school district once every six years to ensure that the district is in compliance with the state and federal special education laws and regulations. (Id. at Provision IV.4(A)(1).) Targeted Monitoring, the other pre-existing type of compliance monitoring, is performed by the Bureau of Special Education in response to specific deficiencies within a particular school district that were identified through the Regular Cyclical Monitoring process. (Id. at Provision IV.4(A)(2).) The parties have agreed to a five-tier process for compliance monitoring, including initial triggers for each level of intervention: (a) Tier One LRE Monitoring of 20 school districts (excluding any school district implementing a Tier One CAP)[7] identified via data analysis as most in need of systemic LRE-related changes. (b) Tier Two LRE Monitoring based on a warning designation for school districts identified in the bottom ten percent (approximately) of data analysis (excluding any school district implementing a Tier One or Tier Two CAP). (c) Tier Three LRE Monitoring based on an alert designation for school districts identified in the remaining bottom half (approximately) of data analysis. (d) Targeted [M]onitoring based on referral by a Bureau staff member due to extenuating circumstances within the school district. (e) Regular [C]yclical [M]onitoring of all Pennsylvania school districts coordinated to the district strategic plan process, currently on a six-year cycle as approved in the Pennsylvania state plan approved by the USDOE. (Id. at Provision IV.4(B)(2)(a)-(e) (emphasis in original) (footnote added).) Those school districts failing to comply with PDE's corrective action plans created to rectify deficiencies identified through any type of compliance monitoring will be subject to sanctions and enforcement powers, including: (1) A mandatory meeting with PDE in Harrisburg in which the superintendent and chair of the school board will be obligated to participate. (2) Appropriate sanctions as set forth in PDE's "Basic Education Circular" on enforcement, including the withholding of funds from the school district and redirecting those funds to the appropriate body to support specific expenditures (e.g., hiring personnel) to implement the action required. (3) If appropriate, the initiation of professional disciplinary action against the superintendent or others whose conduct is found to have resulted in the school district's failure to meet its obligations under the CAP. (Id. at Provision IV.4(I).) E. Complaint Resolution Under the Settlement Agreement, PDE will modify and expand its present system of complaint investigation and resolution. (Id. at Provision IV.5.) First, the Bureau will investigate all complaints filed by parents or students. (Id. at Provision IV.5(A).) If PDE determines that the complaint was timely filed and that jurisdiction lies with PDE to investigate the complaint, pursuant to 34 C.F.R. § 300.662, then PDE will resolve the matter 636 using its best efforts to interview: (1) the parents or student, and (2) a reasonable number of persons identified by the complainant(s) as having actual knowledge of the facts. (Id.) Second, when PDE finds in the course of the complaint resolution process that a school district has violated a student's right to receive supplementary aids and services in a regular education class or when such a violation is established after a due process hearing, PDE will investigate whether the offending school district has corrected the violation for all similarly situated students during the school district's next compliance monitoring. (Id. at Provision IV.5(B).) F. Financial Terms Defendants will pay named Plaintiffs $350,000 in full, final, and complete settlement and release of Plaintiffs' claims for compensatory damages that have been asserted in this case. (Id. at Provision IV.9(A).) Plaintiffs will be responsible for allocating the $350,000 among themselves. Additionally, Defendants will pay Plaintiffs' counsel $1,825,000 in full, final, and complete settlement and release of all claims by Plaintiffs or their attorneys for attorneys' fees and litigation costs. (Id. at Provision IV.9(B).) G. Other Components of the Proposed Settlement Agreement Under the Settlement Agreement, PDE will "build upon and refine its present system of review and approval or disapproval of special education plans [that are] submitted by the 501 school districts in Pennsylvania [.]" (Id. at Provision IV.6.) In part, PDE will require those school districts that failed to meet the needs of children with disabilities, as determined by compliance monitoring, to include appropriate corrective actions in their special education plans. Id. Additionally, the Settlement Agreement establishes that the Bureau of Special Education will provide extensive on-site training, technical assistance, and professional development to school districts to ensure that the terms of the Settlement Agreement are being met. (Id. at Provision IV.7.) The Advisory Panel will offer support in this initiative by recommending content, delivery systems, and evaluation processes, inter alia, for the training programs. (Id.) Plaintiffs' counsel will continue to advocate for trained, informed, and effective support to parents on issues relating to specially designed instruction to students with disabilities. (Id. at Provision IV.8.) As Plaintiffs' counsel has informed PDE, part of their advocacy will include submitting grant proposals to PDE and seeking funding for programs that support their special-education goals. (Id.) During the life of the Settlement Agreement, PDE agrees to review such grant proposals. (Id.) If the proposals submitted by Plaintiffs' counsel are consistent with PDE's obligations, priorities, and goals, and do not jeopardize PDE's own grant proposals, then PDE will support such grants and take reasonable steps to assist Plaintiffs' counsel in obtaining the grants. (Id.) III. SUMMARY OF PROOFS, AFFIDAVITS, AND TESTIMONY Class members and their parents had the opportunity to file written objections to the proposed Settlement Agreement by June 10, 2005. Nineteen objections were either filed or received by the Court. All objectors were given the opportunity to produce evidence and be heard at the Fairness Hearing. The following proofs, affidavits, and testimony were produced by the parties to support approval of the Settlement Agreement. 637 A. Experts 1. Christopher Kliewer, Ph.D., Associate Professor of Special Education at the University of Northern Iowa The parties submitted the declaration of Christopher Kliewer, Ph.D., Associate Professor of Special Education at the University of Northern Iowa, to support their joint motion for final approval of the Settlement Agreement. Dr. Kliewer served as an expert in an earlier phase of the litigation and is familiar with the Settlement Agreement. Based on a substantial body of scholarly and empirical research, Dr. Kliewer stated that special needs children perform better, both academically and socially, when educated in regular classrooms then when educated in a non-inclusive setting. (Dr. Christopher Kliewer's Decl. ¶¶ 3-8, doc. no. 302.) Moreover, Dr. Kliewer indicated that great disparities exist among the states in placing children with special needs, which is evidenced by data that the United States Department of Education collected in 2002. (Id. at ¶ 14.) According to that data, Pennsylvania educated only 35% of its special education students (aged 6-21) in general education classrooms for 80% of a day or more. (Id.) Comparably, Vermont and New Hampshire educated approximately 80% and 75% of its special education students (aged 6-21), respectively, in general education classrooms for 80% of a day or more. (Id.) This disparity helps to demonstrate that Pennsylvania's practices for educating children with disabilities are not reflective of what experts know about "best practices." (Id.) 2. Gail McGregor, Ed.D., Research Professor of Education at the University of Montana Dr. Gail McGregor, a research professor of education at the University of Montana, testified at the Fairness Hearing. (Fairness Hr'g Tr., 06/24/2005, at 53-77.) With over thirty years of experience in the area of special education, which includes approximately twelve years working in Pennsylvania, Dr. McGregor served as an expert witness in earlier stages of this litigation and, if the Court gives final approval to the Settlement Agreement, will be assisting the Bureau of Special Education in implementing the Settlement Agreement. (Id. at 53-57.) As an expert on behalf of Plaintiffs, Dr. McGregor studied Pennsylvania's approach to professional development for teachers. (Id. at 57-58.) In Dr. McGregor's opinion, the Settlement Agreement provides strong training, technical assistance, and professional development. (Id.) Notably, the Settlement Agreement also emphasizes "system accountability." (Id. at 62.) In her declaration submitted to the Court and from her testimony at the Fairness Hearing, Dr. McGregor highlights certain aspects of the Settlement Agreement that meet the training and accountability directives. First, the Settlement Agreement establishes "policy guidance" to the IEP teams by requiring them to consider initially whether a special needs child can be supported in a regular classroom with supplementary aids and services. (Id. at 59.) Accordingly, for this policy to be implemented, the IEP teams must be aware of the research-based practices that allow children with disabilities to learn in a general education classroom. (Id. at 58-59.) Additionally, because the Settlement Agreement will require PDE and the Bureau of Special Education to provide parents of special needs children with information about supplementary aids and services, both the parents and the IEP teams will start "on the same page." (Fairness Hr'g Tr., 06/24/2005, at 60.) 638 Second, under the Settlement Agreement, professional development needs will be assessed throughout the Commonwealth, whereby actual practice will be contrasted with research- and evidence-based "best practices" in the special education field. (Id. at 61-62.) Third, the LRE Monitoring created under the Settlement Agreement, which requires the ranking of school districts according to data factors that measure how well children with disabilities are being included in regular classrooms, will provide an objective mode for determining the impact of training. (Id. at 62-67.) According to Dr. McGregor, tiered monitoring and corrective action create accountability. (Id.) And although the LRE Index Scores will be based on data factors that have not yet been determined by the parties, Dr. McGregor testified that the realm of possible data factors is limited and includes information that the school districts are already required to report to PDE. (Id. at 74.) Fourth, the Settlement Agreement establishes system accountability by creating provisions for review and approval of each school district's special education plans, which in turn will help direct training and technical assistance. (Id. at 62-67.) Moreover, parents will be able to address their grievances through the complaint resolution process. (Id. at 60.) Based on the aforementioned and "a very, very large body of evidence that suggests that there are positive outcomes from students with disabilities" to be placed in regular classrooms, Dr. McGregor is confident that the Settlement Agreement will "absolutely" benefit Pennsylvania's special needs children. (Id. at 66-67.) B. PDE Officials Two PDE officials Francis V. Barnes, Ph.D., Secretary of Education for the Commonwealth of Pennsylvania, and Linda Rhen, Ed.D., Director of the Bureau of Special Education of the Pennsylvania Department of Education testified at the Fairness Hearing. Both officials expressed, on behalf of the Commonwealth, full support for the Settlement Agreement. 1. Francis V. Barnes, Ph.D., Secretary of Education for the Commonwealth of Pennsylvania At the time the Settlement Agreement was entered into, Dr. Barnes served as the Secretary of Education for the Commonwealth. In that capacity, he was the highest educational official in Pennsylvania. At the Fairness Hearing, Dr. Barnes testified that he was familiar with the Settlement Agreement, that the Pennsylvania Department of Education was entering into the Settlement Agreement willingly and voluntarily, and that the terms of the Settlement Agreement would be implemented faithfully. (Id. at 12-14.) Additionally, Dr. Barnes stated that the Commonwealth had both the staff support and financial support to implement the terms of the Settlement Agreement. (Id. at 13.) Although Dr. Barnes acknowledged that he planned to leave his position as Secretary of Education within a few months of the Fairness Hearing, he stressed that his departure would "absolutely not" impact the commitment of the Commonwealth to carry out the terms of the Settlement Agreement. (Id.) Dr. Barnes indicated that the Settlement Agreement would not only serve the best interests of special education children in the Commonwealth, but also those children receiving a general education. (Id.) 2. Linda Rhen, Ed.D., Director of the Bureau of Special Education of the Pennsylvania Department of Education As Director of the Bureau of Special Education of PDE, and with more than 639 thirty-four years of experience in the field of special education, Dr. Rhen is the Commonwealth official who will have the most direct responsibility for implementing the terms and conditions of the Settlement Agreement. (Id. at 17-20.) At the Fairness Hearing, Dr. Rhen defined special education as: "In a generic sense, special education is providing the support[] and services to students with disabilities from the ages 3 through 21 to help them be successful in school and prepare them for adult life." (Id. at 20.) Also, Dr. Rhen indicated that 255,264 students with disabilities are school-aged in Pennsylvania, according to the most recent official data that PDE reported to the United States Department of Education, as of December 1, 2003. (Id. at 21-22.) Dr. Rhen testified that she has "studied ... and studied" the Settlement Agreement and is very familiar with its terms. (Id. at 22.) Under the Settlement Agreement, the Bureau will be responsible for convening the Advisory Panel and naming three of the Panel's fifteen members. (Id. at 19.) Additionally, the Bureau will present information and recommendations to the Advisory Panel, help devise the LRE Index Score, and conduct compliance monitoring. (Id.) According to Dr. Rhen's testimony, the Bureau of Special Education is committed to implementing the terms and conditions of the Settlement Agreement, which "serves the best interests of the Commonwealth and our students." (Id. at 22.) Dr. Rhen also represented that PDE can afford the implementation costs for the five-year life of the Settlement Agreement. (Id. at 23.) As to the life of the Settlement Agreement, Dr. Rhen testified that the five-year period gives PDE and the Bureau adequate time to "address the issues and the tasks that are in front of us in the settlement agreement. Some are more complex than others. But, I think it gives us the time to be able to identify and work with each and every issue." (Id.) Under the recently enacted federal Individuals with Disabilities Education Improvement Act of 2004, Dr. Rhen indicated that "Least Restrictive Environment Monitoring" will be required, which is very similar to monitoring that is mandated under the Settlement Agreement. (Id. at 24.) With changing laws, however, Dr. Rhen stated that it would be hard to predict what exactly would happen after the life of the Settlement Agreement, but the "five years gives us the time to implement the settlement agreement and get some sound information on which ... to build future plans." (Id. at 24-25.) Finally, Dr. Rhen testified about a series of town hall meetings that the Bureau participated in throughout the Commonwealth to inform parents, school districts, intermediate units, charter schools, agencies, and other interested parties about the Settlement Agreement. (Id. at 27-30.) C. Plaintiffs Three parents of individually named Plaintiffs including Joseph Gaskin, the father of lead Plaintiff Lydia Gaskin testified at the Fairness Hearing. These parents shared their experiences with navigating through the educational system in an effort to have their children with disabilities included in regular classroom settings. Moreover, the parents explained the litigation, mediation, and settlement phases of this case. These parents fully support the Settlement Agreement and believe that it is in the best interest of Pennsylvania students. In particular, Mr. Gaskin stated that his greatest reservation with the Settlement Agreement had been the limited five-year time frame, but determined that this provision was a better alternative than a lengthy trial without guaranteed results. (Id. at 46.) Mr. Gaskin noted, however, that with the Settlement Agreement, "we [can] start implementing it right away and 640 start helping kids throughout Pennsylvania immediately." (Id.) Additionally, representatives from state and regional disability advocacy groups some named organizational Plaintiffs testified and/or submitted declarations. These representatives described the arms-length negotiations and expressed full support of the Settlement Agreement. Finally, twelve parents of children with disabilities requested to speak at the Fairness Hearing, and the Court afforded them the opportunity to do so. (Id. at 91-120.) With one exception, these parents commended the efforts of the parties to the action and expressed their support for the Settlement Agreement. (Id.) One parent evinced several concerns that the Settlement Agreement would limit parents' choices in placement of their children. (Id. at 92.) IV. LEGAL ANALYSIS A. Standard of Review "Even if [a proposed settlement agreement] has satisfied the requirements for certification under Rule 23, a class action cannot be settled without the approval of the court and a determination that the proposed settlement is `fair, reasonable, and adequate.'" In re Prudential Ins. Co., 148 F.3d 283, 316 (3d Cir.1998) (citing In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liability Litig., 55 F.3d 768, 785 (3d Cir.1995)); see also Fed.R.Civ.P. 23(e)(1)(C) ("The court may approve a settlement ... that would bind class members only after a hearing and on finding that the settlement ... is fair, reasonable, and adequate."). This determination "is left to the sound discretion of the district court." Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir.1975). Before delving into legal analysis, it is important to delineate the role of the Court in the shaping of the public policy choices that are embedded in the Settlement Agreement. Contrary to the expectations of some who object to the Settlement Agreement or who appeared at the Fairness Hearing, it is not the Court's role (or intent) to superintend from henceforth the delivery of educational services to the members of the class, or to adjudicate individual disputes between parents and the school districts, or to pick and choose among programs or policies to be implemented by the Commonwealth or its school districts. Whether the Settlement Agreement embodies optimum educational choices or strikes the proper allocation of resources among competing educational needs is not the business of the Court. The task of giving life to the statutory mandate of providing a "free appropriate public education" to children throughout the Commonwealth and to fund those mandates adequately will remain, as it should, under the stewardship of the executive and legislative branches of state government, and not the Court. 20 U.S.C. § 1412; 34 C.F.R. § 300.13. Rather, the role of the Court is focused and more modest, which is simply to ensure that the public policy choices embodied in the Settlement Agreement are not inconsistent with federal or state law. In addition, the Court has the statutory role of verifying that the Settlement Agreement is "fair, reasonable, and adequate." Fed.R.Civ.P. 23(e)(1)(C). In Girsh, the Third Circuit enumerated certain factors that district courts may consider in determining whether to grant final approval of a class action settlement. Id. at 157. The Girsh factors include: (1) the complexity, expense and likely duration of the litigation...; (2) the reaction of the class to the settlement ...; (3) the stage of the proceedings and the amount of discovery completed ...; (4) the risks of establishing liability ...; (5) the risks of establishing damages ...; (6) the risks of maintaining the class action through the trial ...; 641 (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery ...; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.... Id. (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974)). These factors, however, are not exclusive. Nor are they all relevant to every class action. Id. at 156 (stating "[s]ome of the factors which are relevant to a determination of the fairness of a settlement [are] ... as follows."). In fact, the Third Circuit has suggested that district courts consider additional factors given the "sea-change [which has occurred] in the nature of class actions." Prudential, 148 F.3d at 323. These additional factors include: [1] the maturity of the underlying substantive issues, as measured by experience in adjudicating individual actions, the development of scientific knowledge, the extent of discovery on the merits, and other factors that bear on the ability to assess the probable outcome of a trial on the merits of liability and individual damages; [2] the existence and probable outcome of claims by other classes and subclasses; [3] the comparison between the results achieved by the settlement for individual class or subclass members and the results achieved-or likely to be achieved-for other claimants; [4] whether class or subclass members are accorded the right to opt out of the settlement; [5] whether any provisions for attorneys' fees are reasonable; and [6] whether the procedure for processing individual claims under the settlement is fair and reasonable. Id. As this Court recognized in Schwartz v. Dallas Cowboys Football Club, Ltd., 157 F. Supp. 2d 561 (E.D.Pa.2001) (Robreno, J.), Distilled to their essence, Girsh-Prudential compels courts to obtain satisfactory answers to the following questions: 1. What benefit did the litigation confer upon the putative class members either by way of financial compensation or by [structural] relief? 2. What past, present or future claims are surrendered by the class members by settling the case? 3. Do the administrative costs, including attorneys fees, reflect the market value of the services performed and are they commensurate with the results achieved? 4. Are the terms of the Settlement Agreement consistent with the public interest and is the public's confidence in the administration of justice and the integrity of the class action process enhanced or impeded by the settlement? 5. What are the prospects that, if the Settlement Agreement is rejected, further litigation would enlarge the recovery of the class and, if so, at what financial cost? Id. at 572. It is within this framework that the Court will consider the pending Settlement Agreement. B. Analysis of the Settlement Agreement 1. What benefit did the litigation confer upon the class members? While the Settlement Agreement does not create new norms of conduct for the PDE or the school districts, it does provide for systematic changes in the manner in which PDE monitors, advises, and trains the local school districts in supporting children with disabilities. Significant impacts in monitoring will be implemented. Improved measuring instruments will permit closer monitoring, and a more efficient and effective delivery of student services. This focus on how better to meet the needs 642 of children with disabilities in Pennsylvania will greatly benefit more than 255,000 students. 2. What past, present or future claims are surrendered by the class members by settling the case? As set forth in Provision IV.9(E) of the Settlement Agreement, the payments ... of the Settlement Agreement are intended by the parties to constitute, and will be construed by the parties to constitute, consideration exchanged by the defendants for a full, final, and complete release of all claims that the plaintiffs asserted or could have asserted against any and all of the defendants arising out of or relating directly or indirectly to the causes of action asserted in Gaskin v. Commonwealth of Pennsylvania, No. 94-CV-4048 (E.D.Pa.). (Settlement Agreement, Provision IV.9(E), doc. no. 295.) Therefore, the sweep of the release is not overly broad and does not extinguish the rights of parents to otherwise vindicate federal- or state-provided rights through due process hearings. 3. Do the administrative costs, including attorneys fees, reflect the market value of the services performed and are they commensurate with the results achieved? Under the Settlement Agreement, Plaintiffs' counsel will receive $1,825,000 for attorneys' fees and litigation costs. "In determining the appropriate amount of attorneys' fees to be paid to class counsel, the principal consideration is the success achieved by the plaintiffs under the terms of the settlement." Schwartz, 157 F.Supp.2d at 578; see also Prudential, 148 F.3d at 338 ("`[N]umerous courts have concluded that the amount of the benefit conferred logically is the appropriate benchmark against which a reasonable ... fee charge should be assessed.'") (quoting Conte, 1 Attorney Fee Awards § 2.05, at 37). After litigating for over eleven years, Plaintiffs represent that the Settlement Agreement provides them "with a remedy that addresses virtually every form of relief that was requested in the Complaint." (Joint Mot. for Final Approval of Settlement Agreement at 56.) In their complaint, Plaintiffs requested that PDE: (1) provide comprehensive development and training to regular and special education personnel concerning provisions for supplementary aids and services to students with disabilities in regular classrooms; (2) monitor local school districts to determine whether they are improperly removing class members from regular education classrooms and whether the local school districts are providing specialized instruction and supplementary aids and services that could enable students with disabilities to be educated satisfactorily in a regular classroom; and (3) require local school districts to take corrective action when failure to provide the aforementioned services occurs. (Id.) These requests have been met under the Settlement Agreement. Moreover, the Settlement Agreement provides for policy development and implementation that will require school districts to adhere to the standards for placing students in regular education classrooms; to change the IEP format to include additional guidance to IEP teams in making placement decisions; and to implement a complaint resolution process that is responsive to parental complaints. Plaintiffs' counsel has filed an itemized listing of all attorneys' costs and fees associated with this litigation. The actual fees and costs amount to $2,651,000. (Michael Churchill's Decl. ¶ 4, doc. no. 302.) Plus, an estimated $90,000, which reflects over 300 hours of attorney time during negotiations, is excluded from the actual fees and costs. (Id. ¶ 8.) 643 The $1,825,000 sought by counsel reflects only 62% of counsel's actual fees and costs, as of June 1, 2004. This reduced amount is lower than the lodestar method would command. See In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 821 (3d Cir.1995) [hereinafter General Motors].[8] Most of the work for which compensation is sought appears to have been necessary and diligently performed. The attorneys' hourly rates are not unreasonable, and, in the Court's experience, are consistent with market rates. Therefore, the attorneys' fees and costs under the Settlement Agreement are fair and reasonable. 4. Are the terms of the Settlement Agreement consistent with the public interest and is the public's confidence in the administration of justice and the integrity of the class action process enhanced or impeded by the Settlement? The Settlement Agreement is the product of lengthy and arms-length litigation and negotiations conducted by experienced counsel with the assistance of well-qualified experts and a skilled mediator. All policies embodied in the Settlement Agreement have been fully endorsed at the highest levels of the Commonwealth's educational decision makers. The objections to the Settlement Agreement are de minimis. The Court is also satisfied that the terms of the Settlement Agreement are not inconsistent with federal or state law. Nor does the Settlement Agreement entangle the judiciary in the future management or delivery of state services. The attorneys' fees and costs are reasonable, particularly in light of the results achieved. Under these circumstances, public confidence in the administration of justice and the integrity of the class system will not be undermined. 5. What are the prospects that, if the Settlement Agreement is rejected, further litigation would enlarge the recovery of the class and, if so, at what financial cost? As this Court has previously recognized, in this final step of the analysis, the sole reason for approving the Settlement Agreement must be that, in the 644 opinion of counsel, further litigation will generate significant expenses and is unlikely to result in greater recovery for the class members. The opinion of experienced counsel, particularly one with knowledge of this area of the law, is entitled to substantial weight. Schwartz, 157 F.Supp.2d at 580. Both parties maintain that the costs and time associated with further litigation, which would most likely result in a trial, would be large. The Court agrees. As the parties contend in their joint motion for final approval of the Settlement Agreement, this case involves novel issues concerning, generally, the responsibility of state agencies for the education of special needs children. If this case were to proceed to summary judgment and/or to trial, the result would be uncertain. An appeal would almost be certain to follow. Consequently, the parties would most likely have to wait years for resolution of the case. As it currently stands, this case has been before the Court for over eleven years. Most of the individually named Plaintiffs have graduated from public high school and will not directly benefit from the new procedures being implemented under the Settlement Agreement. Moreover, Plaintiffs initiated this action to effectuate change in the future policies and practices of PDE and other Commonwealth agencies, all of which are achieved by the Settlement Agreement. Considering these factors, the Court finds that further litigation is not likely to result in a greater recovery for the class and would entail significant financial costs and risks. In light of the above discussion, the Court concludes that the terms and conditions of the Settlement Agreement are fair, reasonable, and adequate. V. OBJECTIONS TO THE PROPOSED SETTLEMENT AGREEMENT The Court received nineteen objections to the provisionally approved Settlement Agreement.[9] Although the Court directed objectors to file their concerns with the Clerk's Office, only three objectors followed this directive. One of those three objectors later sought leave from the Court to withdraw the objection, which the Court granted (doc. no. 313). Out of the nineteen objections, three were submitted by non-class members, which included identical objection letters from twelve school districts, one objection by a former teacher, and one objection by the Berks County Intermediate Unit and Chester County Intermediate Unit. The Court will not directly entertain objections from non-class members. See Fed.R.Civ.P. 23(e)(4)(A). Notably, some of the objections submitted by non-class members have also been asserted by class members. First, of the 255,264 members of the class, only sixteen class members (or parents of class members) filed objections. These objections to the Settlement Agreement can be broken down into eight categories, each of which will be discussed in turn.[10] 645 A. Failure to Compensate Absent Class Members for Past Wrongs Four class members questioned why only the named Plaintiffs, as opposed to all class members, were receiving compensation under the Settlement Agreement. According to the parties, Plaintiffs initiated this action to effectuate change in the future policies and practices of PDE and other Commonwealth agencies, and not to receive compensation for previous harm. Moreover, most of the individually named Plaintiffs have graduated from public school and will not directly enjoy the benefits created under the Settlement Agreement. The Court agrees with the parties. This lawsuit was not about compensatory damages. The compensation to Plaintiffs is appropriate considering the time and effort spent in prosecuting this lengthy and complex litigation. Accordingly, the Court will overrule this objection. B. Failure to List "Brain Injury" Among the Specific Injuries in the Definition of "Eligibility" Two objectors requested that "brain injury" be added to the list of conditions requiring training and technical assistance under the Settlement Agreement. According to the parties, students with brain injury who are eligible for special education services are included in the category of "students with significant disabilities," under Provision IV.7 of the Settlement Agreement. Additionally, the list of disabilities following the definition of "students with significant disabilities" is not exhaustive and cannot be used to exclude students with brain injury from benefitting under the Settlement Agreement. The parties also comment that if a needs assessment 646 required under Provision IV.2(L) of the Settlement Agreement reveals that teachers lack knowledge and experience in teaching children with brain injury in a regular classroom, then training will be provided in response to the assessment. The Court finds that brain injury is addressed under the Settlement Agreement, as argued by the parties. As such, the Court will overrule this objection. C. Inadequate Length of the Settlement Agreement Two class members opposed the length of the Settlement Agreement, arguing that a five-year time frame is inadequate. The parties, however, have indicated that this duration was a necessary compromise to reach a Settlement Agreement. Additionally, as the parties appropriately point out, "[m]any of the provisions of the settlement, when implemented, will have an impact lasting far longer than the agreement terms and will build the Commonwealth's capacity for inclusive practices." (Joint Motion for Final Approval of Settlement Agreement at 30-31; see also Gaskin Decl. ¶ 10.) In fact, at the Fairness Hearing, Dr. Rhen testified that the "five years gives us the time to implement the settlement agreement and get some sound information on which ... to build future plans." (Fairness Hr'g Tr., 06/24/2005, 24-25.) The Court concludes that any period lengthier than five years will require Court entanglement in the delivery of state educational services for longer than necessary to fulfill the objectives of the Settlement Agreement. Accordingly, the objection will be overruled. D. Large Compensation to the Individual Plaintiffs and Attorneys Two class members object to the compensation that the individually named Plaintiffs and Plaintiffs' counsel will receive under the Settlement Agreement. As previously addressed in Part IV.B.3 of this decision, the Court finds that the compensation is fair and reasonable. Therefore, this objection will be overruled. E. Potential Effects of Provisions for Training and Technical Assistance One parent expressed concern that the school districts would use Provision IV.7 of the Settlement Agreement, which concerns training, "to argue against the provision of training and consultation with respect to individual students rather than to `school districts.'" (Joint Motion for Final Approval of Settlement Agreement at 31.) According to the parties, Provision IV.7 does not prevent training and technical assistance with respect to individual students, but rather requires such training and assistance identified by a needs assessment. The Court finds the parties' argument to be persuasive. When considering the parties' position in light of Dr. McGregor's testimony at the Fairness Hearing, the Court determines that training and technical assistance are adequately addressed in the Settlement Agreement, as driven by the educational policy of the Commonwealth. Thus, the Court will overrule this objection. F. Failure to Increase State Funding to Local School Districts Parents of a child with a disability objected that the Settlement Agreement did not guarantee increased state funding to assist the school districts in meeting their obligations. First, Plaintiffs did not seek increased state funding in their complaint. Second, it is doubtful that the Court has the power to require any specific expenditures of state funds under the circumstances of the case. Third, to the extent that moneys are needed to fund the Settlement Agreement, both the Secretary of Education and the Director of PDE's Bureau of Special Education testified at the 647 Fairness Hearing that the Commonwealth had the funds and resources to implement the provisions of the Settlement Agreement. (Fairness Hr'g Tr., 06/24/2005, 13, 23.) Accordingly, the Court will overrule this objection. G. Need for a Change in Placement Practices One parent proposed that children who have not met certain testing and grading standards should immediately be placed in a learning support program, while the school districts and parents arrange for appropriate testing to determine the specific learning disability and then tailor the IEP to address each child's specific needs. According to the parties, the Settlement Agreement does not and cannot change the provision in the IDEA that requires evaluation and development of an IEP before a student's placement can be changed. 20 U.S.C. § 1414. The parties note, however, that the Settlement Agreement provides for professional development, which may help teachers identify students in need of supplementary aids and services, but who have not been identified as having a disability because they can be clearly included in a regular classroom. The Court concurs with the parties and will overrule this objection. H. Lack of Time Between Notice of Proposed Settlement and Deadline for Filing Objection Two class members take issue with the amount of time in which they had to file objections to the Settlement Agreement. As this Court set forth in its provisional approval of the Settlement Agreement (doc. no. 305), notice of the proposed Settlement Agreement was to be published to certain Pennsylvania newspapers and distributed to educational agencies, entities, and known parents of children with disabilities by May 20, 2005. The Court determined that class members and their parents could file written objections to the proposed Settlement Agreement no later than June 10, 2005. Thus, objectors should have had approximately twenty-one days, give or take, to file objections. In any event, at the Fairness Hearing, the Court heard from any individual wanting to share his or her thoughts about the Settlement Agreement, whether or not that individual filed a written objection. There is no evidence that the parties did not meet the notice requirements established by the Court, or that any member of the class lacked notice or the opportunity to object. Accordingly, the Court will overrule this objection. VI. CONCLUSION For the foregoing reasons, the Court will grant the parties' motion, approve the Settlement Agreement, and dismiss the case with prejudice. ORDER AND NOW, this 16th day of September, 2005, it is hereby ordered that this case shall be REMOVED FROM SUSPENSE and PLACED ON ACTIVE STATUS. IT IS FURTHER ORDERED, upon consideration of the Joint Motion for Final Approval of the Settlement Agreement (doc. no. 326) and objections from class members and interested parties at the Fairness Hearing, that the motion is GRANTED and the parties' Settlement Agreement is APPROVED in the form submitted to this Court. IT IS FURTHER ORDERED that the case is DISMISSED WITH PREJUDICE. The court shall retain jurisdiction to enforce certain aspects of the Settlement Agreement as provided therein. AND IT IS SO ORDERED. NOTES [1] All twelve students were minors when the class action was initiated. Thus, the students' parents or foster parents commenced the lawsuit on their behalf. [2] According to the Settlement Agreement: "IEP" stands for "individualized education program" or "individualized education plan." IEP is statutorily defined as "a written statement for each child with a disability that is developed, reviewed, and revised in accordance with [20 U.S.C. §] 1414(d)." (See 20 U.S.C. § 1401(1)); 32 C.F.R. §§ 300.340-300.350. (Settlement Agreement, Provision II(I)(3), doc. no. 295.) [3] This total reflects the number of school-aged children that is, children between the ages of 3 and 21 who have an IEP. (Fairness Hr'g Tr., 06/24/2005, 20 & Defs.' Ex. 3.) At the Fairness Hearing, Dr. Linda Rhen, Director of the Bureau of Special Education for the Commonwealth, testified that this number represents the best estimate of class members. (Id. at 21-22.) [4] As the Court indicated in its order granting provisional approval of the proposed Settlement Agreement, citing to its decision in Samuel v. Eguicredit Corp., No. Civ. 00-6196, 2002 WL 970396, at *1 n. 1 (E.D.Pa. May 6, 2002), [a] decision granting preliminary approval does not bind the court to granting final approval. As noted by the Third Circuit, "[the] preliminary determination establishes an initial presumption of fairness...." In re General Motors Corp., 55 F.3d 768, 785 (3d Cir.1995) (emphasis added). "If the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls within the range of possible approval, then the court should direct that the notice be given to the class members of a formal fairness hearing ..." Manual for Complex Litigation, Second § 30.44 (1985). In addition, "[t]he court may find that the settlement proposal contains some merit, is within the range of reasonableness required for a settlement offer, or is presumptively valid." Newberg on Class Actions § 11.25 (1992). In this case, the court finds that the settlement falls within the "range of possible approval" and shall be submitted to the class members for their consideration and for a hearing to determine whether the settlement will be approved by the court. (doc. no. 305). [5] As Chapter 15 of Pennsylvania's Administrative Code on Education provides: (a) This chapter addresses a school district's responsibility to comply with the requirements of Section 504 and its implementing regulations at 34 CFR Part 104 (relating to nondiscrimination on the basis of handicap in programs and activities receiving or benefiting from federal financial assistance) and implements the statutory and regulatory requirements of Section 504. (b) Section 504 and its accompanying regulations protect otherwise qualified handicapped students who have physical, mental or health impairments from discrimination because of those impairments. The law and its regulations require public educational agencies to ensure that these students have equal opportunity to participate in the school program and extracurricular activities to the maximum extent appropriate to the ability of the protected handicapped student in question. School districts are required to provide these students with the aids, services and accommodations that are designed to meet the educational needs of protected handicapped students as adequately as the needs of nonhandicapped students are met. These aids, services and accommodations may include, but are not limited to, special transportation, modified equipment, adjustments in the student's roster or the administration of needed medication. For purposes of the chapter, students protected by Section 504 are defined and identified as protected handicapped students. 22 Pa.Code § 15.1. [6] The "Bureau Director" refers to the Director of PDE's Bureau of Special Education. [7] Under the Settlement Agreement, "CAP" means "a corrective action plan ordered by PDE as the consequence of deficiencies identified during compliance monitoring conducted under Section IV.4 of the Settlement Agreement." (Settlement Agreement, Provision II(L), doc. no. 295.) [8] In General Motors, the Third Circuit determined that "a court making or approving a fee award should determine what sort of action the court is adjudicating and then primarily rely on the corresponding method of awarding fees[, either the lodestar or the percentage of recovery methods]." 55 F.3d at 821. The Third Circuit recognized: Courts generally regard the lodestar method, which uses the number of hours reasonably expended as its starting point, as the appropriate method in statutory fee shifting cases. Because the lodestar award is de-coupled from the class recovery, the lodestar assures counsel undertaking socially beneficial litigation ... an adequate fee irrespective of the monetary value of the final relief achieved for the class. Id. On the other hand, a percentage of recovery method is used in common-fund cases, based on "the theory that the class would be unjustly enriched if it did not compensate the counsel responsible for generating the valuable fund bestowed on the class." Id. As this Court recognized in Lake v. First Nationwide Bank, 900 F. Supp. 726 (E.D.Pa.1995), "[n]either the lodestar method nor the percentage of recovery method, however, is mandatory. Thus, the district court has wide discretion to decide which method of fee calculation to apply." Id. at 734 (citing General Motors, 55 F.3d at 821). Here, Plaintiffs secured substantial changes in the monitoring, training, and delivery of special-education services. While the exact value of these changes is difficult, if not impossible, to quantify, the Court can consider these changes in normative terms. That is, the provisions of the Settlement Agreement will presently affect approximately 255,264 children and thousands more over the life of the Settlement Agreement. The extent of counsel's recovery is not disproportional to the equitable relief obtained. [9] The Court prepared a summary of all objections that were either filed with the Clerk's Office or submitted to the Court prior to the Fairness Hearing. This summary was filed after the Fairness Hearing so that the parties could comment on them in post-Fairness Hearing briefs (doc. no. 320). [10] The Berks County Intermediate Unit and Chester County Intermediate Unit (the "Intermediate Units") non-parties to this action filed a motion to intervene for purposes of filing a motion to strike the proposed Settlement Agreement (doc. nos. 303 and 304), which the Court denied. Although the Intermediate Units have no standing to object to the Settlement Agreement, they did assert a procedural issue that is worth comment. Under the Commonwealth Documents Law, 45 Pa. Stat. Ann. §§ 1102-1602, administrative agencies must follow specialized procedures for implementing a new standard of conduct. The parties to the action vehemently deny that the Settlement Agreement creates new or modified standards of conduct. As one Pennsylvania Commonwealth Court stated: Administrative agencies often devise rules or regulations, some of which create a controlling standard of conduct, while some do not. In order for an agency `to establish a substantive rule [thereby] creating a controlling standard of conduct, it must comply with the provisions of the Commonwealth Documents Law.' These `substantive regulations ... when properly enacted under the Commonwealth Documents Law, have the force of law.' Agencies also devise rules, known as `interpretive rules,' which do not establish a binding standard of conduct. These interpretive rules `need not be promulgated in accordance with the Commonwealth Documents Law.' For an interpretive rule to be viable, however, it `must genuinely track the meaning of the underlying statute, rather than establish an extrinsic substantive standard. Lowing v. Public Sch. Employees' Retirement Bd., 776 A.2d 306, 308-09 (Pa.Cmwlth.2001) (internal citations omitted) (alteration in original); see also Giant Food Stores, Inc. v. Commonwealth of Pa., Dep't of Health, 713 A.2d 177, 180 (Pa.Cmwlth.1998) ("The [Commonwealth Documents Law, or `CDL,'] establishes a process for issuing regulations that includes public notice of a proposed rule, receiving comments from interested parties, and holding hearings when appropriate."). By entering into the Settlement Agreement, neither PDE nor any Commonwealth agency is creating a new substantive rule. No obligations are directly imposed on the Intermediate Units. Rather, the Settlement Agreements provides for increased monitoring, inter alia, to ensure that school districts are following both federal and state educational laws, such as the IDEA. This monitoring does not substantively change the state of education law in Pennsylvania. On the contrary, the monitoring created under the Settlement Agreement provides a means to better determine whether school districts are following federal and state educational law. In fact, it appears that the Commonwealth has the power to implement the provisions of the Settlement Agreement, whether or not the Settlement Agreement is approved by the Court, without violating the Commonwealth Documents Law.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498122/	65 So.3d 146 (2011) SPM RESORTS, INC., Petitioner, v. DIAMOND RESORTS MANAGEMENT, INC., Respondent. No. 5D10-4429. District Court of Appeal of Florida, Fifth District. July 8, 2011. Wayne Tosko of Vasquez & Tosko, LLP, Orlando, for Petitioner. James V. Etscorn and Robert W. Thielhelm of Baker & Hostetler, LLP, Orlando, for Respondent. PER CURIAM. SPM Resorts, Inc. (SPM) seeks certiorari review of a circuit court decision ordering it to pay $20,000, and potentially more in the future, to conduct computer searches of its own computers to comply with Diamond Resorts Management, Inc.'s (DRM) discovery request. SPM, the defendant in the underlying case, contends that the court's order requiring it to comply with the discovery request of DRM, the plaintiff below, is unreasonably and unduly burdensome and is a departure from the essential requirements of law. We agree and grant the petition. Both SPM and DRM are in the business of managing homeowners associations and are direct business competitors. DRM had a management contract with the Polynesian *147 Island Resort in Osceola County. After a vote of the Resort's Board of Directors, DRM lost the management contract with two of the Resort's associations, Polynesian Island Resort Condominium Association I (Poly I) and Polynesian Island Resort Condominium Association IV (Poly IV). SPM took over the management of both Poly I and Poly IV. As a result, DRM filed the underlying action against SPM, alleging that SPM engaged in a series of tortious and unlawful acts intended to destroy DRM's contractual and business relationships for management of certain associations at the Resort. DRM propounded a ten page first request for production directed to SPM, which included a request for any electronic data or communications regarding the associations between SPM or its attorneys and Poly I and Poly IV. SPM had some difficulty in complying with the request, in part, because of a change in its legal representation. Consequently, DRM filed three separate motions to compel production directed to its initial request to produce. In its order granting DRM's third motion to compel and impose sanctions, the court ordered that the parties engage a neutral computer expert to inspect SPM's computer systems pursuant to a protocol agreed to by both parties. The expense of implementing the protocol was to be born equally by the parties up to $40,000. If the expense exceeded $40,000, the parties were to agree on a method of paying additional expenses or bring the issue before the court. The court also granted the motion for sanctions and awarded DRM $5,732.50 in attorney's fees and costs related to the motions to compel. SPM contends that requiring it to pay half the cost of the inspection of its own computers is improper and burdensome. We agree. The courts have considered this issue on numerous occasions. To place a substantial financial burden on a party relating to the production of its adversary's discovery request does nothing more than require a party to fund its adversary's litigation. Nothing in the Rules of Civil Procedure permits this. It is clear that the trial court, in this matter, did not impose this obligation against SPM for its failure to comply with the discovery request. The trial court's order requiring SPM to pay up to $20,000 in costs and potentially more for the inspection of its own computers is unreasonable and unduly oppressive and is a departure from the essential requirements of law. See Bristol Myers Co. v. District Court in & for City & County of Denver, 161 Colo. 354, 422 P.2d 373 (1967); Korneffel v. S. Broward Hosp. Dist., 431 So.2d 742 (Fla. 4th DCA 1983); Dow Corning Corp. v. Garner, 423 So.2d 1034 (Fla. 4th DCA 1982); Schering Corp. v. Thornton, 280 So.2d 493 (Fla. 4th DCA 1973). Therefore, we grant the petition for certiorari. The Petition for Certiorari is GRANTED and the trial court's order requiring SPM to advance discovery costs is QUASHED. SAWAYA, MONACO and JACOBUS, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498154/	67 So. 3d 204 (2011) HILL v. DAVIS. No. 1D10-4033. District Court of Appeal of Florida, First District. August 18, 2011. DECISION WITHOUT PUBLISHED OPINION Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498414/	45 F.Supp.2d 787 (1998) Yvonne Marie COLBURN and Mark Colburn, Plaintiffs, v. UNITED STATES of America, Defendant. No. 97-0619-IEG LAB. United States District Court, S.D. California. August 6, 1998. 788 Richard Scott Benjamin, R. Scott Benjamin, San Diego, CA, for plaintiffs. Alan D. Bersin, U.S. Attorney, Thomas B. Reeve, Jr., Steven J. Poliakoff, Asst. U.S. Attys., U.S. Attorney's Office, Civil Div., San Diego, CA, for U.S. ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION AND GRANTING DEFENDANT'S MOTION TO DISMISS [Doc. No. 13] GONZALEZ, District Judge. BACKGROUND On April 8, 1997, plaintiffs Yvonne Marie Colburn ("Mrs. Colburn") and Mark Colburn ("Mr. Colburn") filed a complaint under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671, 1346(b), 1367, 1402(c), seeking money damages and demanding a jury trial. In the complaint, plaintiffs raise the following claims for relief: (1) Mr. and Mrs. Colburn's wrongful death claim for Austin Colburn; (2) Mr. and Mrs. Colburn's wrongful death claim for Wyatt Colburn; (3) Mrs. Colburns' negligent infliction of emotional distress ("NIED") claim; (4) Mr. Colburn's NIED claim; (5) Mr. Colburn's loss of consortium claim; and (6) Mr. and Mrs. Colburn's negligent spoliation of evidence claim. Mrs. Colburn seeks damages in the amount of $750,000 and Mr. Colburn seeks damages in the amount of $500,000. 789 A. Factual Background The events giving rise to plaintiffs' claims occurred on October 24, 1994. On that date, at approximately 1:00 a.m., Mr. and Mrs. Colburn arrived at Balboa Naval Hospital reporting a twenty-three week twin pregnancy. Mrs. Colburn complained of irregular contractions. Thereafter, at 1:53 a.m., Lt. Pamela Ambroz Rice, M.D. ("Dr.Rice"), the senior resident on duty, conducted a vaginal examination.[1] Dr. Rice determined that Mrs. Colburn was fingertip dilated. Dr. Rice performed subsequent vaginal examinations at about 2:47 a.m. and 3:15 a.m. In addition, Mrs. Colburn received oral and intravenous hydration to hydrate her and to decrease the frequency of her contractions. Despite these efforts, Mrs. Colburn continued to have intermittent contractions. At 6:00 a.m., Mrs. Colburn left the hospital with instructions to return to the hospital in three to four hours for another examination.[2] At approximately 8:30 a.m., Mr. and Mrs. Colburn returned to the hospital. Upon examination, it was determined that Mrs. Colburn was six centimeters dilated and completely effaced. Tocolytics, a medication used to stop premature labor, was administered to Mrs. Colburn in an effort to delay labor and the delivery of the twins. Prior to the twins' births, a doctor advised Mr. and Mrs. Colburn that the twins' premature births would likely result in death or severe retardation. Mr. and Mrs. Colburn orally consented to a "do not intervene" instruction, which authorized the hospital not to medically intervene after the twins' births.[3] Subsequently, Mrs. Colburn gave birth to the twins. Mr. and Mrs. Colburn held the babies and noted that the twins had difficulty breathing and were "gasping for air." (Decl. of R. Scott Benjamin; Ex. 10, Deposition of Mrs. Colburn at 96.) The twins died three hours after birth. B. Procedural Background On October 3, 1996, plaintiffs sought administrative remedies, asserting that Dr. Rice was negligent for not foreseeing that Mrs. Colburn would begin premature labor and for not giving her drugs that might have suppressed the contractions. Plaintiffs filed suit in this Court on April 8, 1997. On July 7, 1998, the government filed the instant motions to dismiss and for summary adjudication against plaintiffs. The government seeks: (a) summary adjudication of Mrs. Colburn's claims for wrongful death; (b) summary adjudication, or alternatively, dismissal of Mr. Colburn's wrongful death claim; (c) dismissal of Mr. Colburn's NIED claim; (d) dismissal or summary adjudication of Mr. and Mrs. Colburn's spoliation claim; and (e) confirmation of the applicability of the California Medical Injury Compensation Reform Act's ("MICRA") limitation on noneconomic damages. In their opposition, plaintiffs agree to voluntarily dismiss Mr. and Mrs. Colburn's spoliation claim and Mr. Colburn's wrongful death claims. Furthermore, at oral argument, Mr. Colburn agreed to voluntarily dismiss his NIED claim. Accordingly, the Court DISMISSES WITH PREJUDICE Mr. and Mrs. 790 Colburn's spoliation claim and DISMISSES WITH PREJUDICE Mr. Colburn's claims for wrongful death and for NIED. DISCUSSION A. Jurisdiction The Court has subject matter jurisdiction over the instant action under the FTCA. The FTCA provides that "the district courts ... shall have exclusive jurisdiction of civil actions or claims against the United States ... for death caused by the negligent or wrongful act or omission of any employee of the Government while acting in the scope of his office or employment." 28 U.S.C. § 1346(b)(1). In the instant action, plaintiffs allege that Dr. Rice, an employee of the United States of America, caused the deaths of their babies. Therefore, the Court has the authority to hear the instant action. B. Summary Adjudication of Wrongful Death Claims 1. Legal Standard The Court may grant summary adjudication when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When considering these motions, the Court must examine all the evidence in the light most favorable to the nonmoving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). If the moving party does not bear the burden of proof at trial, that party may then discharge the burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In particular, the moving party is entitled to summary judgment if the nonmovant fails to make a sufficient showing of an element of its case with respect to which it has the burden of proof. See id. at 323, 106 S.Ct. 2548. Once the moving party meets the requirements of Rule 56 by either showing that no genuine issue of material fact remains or that there is an absence of evidence to support the nonmoving party's case, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party opposing a properly supported motion for summary judgment may not "rest on mere allegations or denials of his pleadings," id., but must go beyond the pleadings to designate specific facts showing the existence of genuine issues for trial, see Celotex, 477 U.S. at 324-25, 106 S.Ct. 2548. A genuine issue exists when a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 247-49, 106 S.Ct. 2505. 2. Analysis Under the FTCA, California law controls on the issue of liability. See 28 U.S.C. § 1346; Garcia v. United States, 826 F.2d 806, 809 (9th Cir.1987). A claim for wrongful death has, as necessary elements, all the traditional elements of negligence, i.e., duty, breach of duty, causation, and damage. See Marlene F. v. Affiliated Psychiatric Med. Clinic Inc., 48 Cal.3d 583, 588-90, 257 Cal.Rptr. 98, 770 P.2d 278 (1989). The government contends that summary adjudication must be granted with respect to Mrs. Colburn's claims for wrongful death because the government provided the reasonable standard of care prior to the twins' births, and Mrs. Colburn's "do not intervene" instruction constituted superseding conduct that broke the chain of causation between the government and the twins' deaths. In opposition, Mrs. Colburn argues that the twins' deaths occurred because Dr. Rice breached the 791 reasonable standard of care in her treatment prior to the twins' birth. a. Standard of Care Prior to Twins' Births "The courts require only that physicians and surgeons exercise in diagnosis and treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances." See Burgess v. Superior Ct., 2 Cal.4th 1064, 1081, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992). Thus, a physician breaches the standard of care only if the physician action is "some deviation from the standard of care that his peers consider appropriate in the situation." Id. A plaintiff must convince the trier of fact that the physician's peers would consider his or her act to be blameworthy to constitute a breach of the reasonable standard of care. See id. The government contends that the standard of care administered to Mrs. Colburn prior to the twins' births was reasonable and did not cause their subsequent deaths. With respect to the administration of tocolytics, the government's expert, Dr. William Rayburn ("Dr. Rayburn"), opined that its use would have only temporarily diminished Mrs. Colburn's contractions, and that this limited time, "most probably hours or days," would have had limited significance on a pregnancy that was less than 24 weeks. (Reply; Ex. F, Deposition of Dr. Rayburn ("Dr. Rayburn Depo.") at 69.) With respect to sending Mrs. Colburn home at 6:00 a.m., Dr. Rayburn stated in his deposition that Dr. Rice's decision to send Mrs. Colburn home for three to four hours was not below the reasonable standard of care. (Dr. Rayburn Depo. at 96.) Furthermore, Dr. Rayburn stated that Dr. Rice "exercised good judgment in making sure the patient understood that she needed to come back within just a short time to reassess things." (Dr. Rayburn Depo. at 80.) In contrast, Mrs. Colburn's medical expert, Dr. Jeffrey P. Phelan ("Dr. Phelan") asserts, in his report, that the government's care to Mrs. Colburn was "unacceptable and a deviation from accepted standards of obstetrical care ... [and] ... in all medical probability contributed to or caused the preterm birth[s] of ... [the twins] and their subsequent deaths." (Decl. of R. Scott Benjamin; Ex. 8, Report of Dr. Phelan at 1.) With respect to the administration of tocolytics, Dr. Phelan opined that the failure to use tocolytics before Mrs. Colburn's release at 6:00 a.m. was below the reasonable standard of care. (Benjamin Decl; Ex. 9, Deposition of Dr. Phelan ("Dr. Phelan Depo.") at 147.) Furthermore, he stated that had tocolytics been administered, Mrs. Colburn's pregnancy "should have been prolonged" long enough to give birth to twins that could have lived a meaningful life. (Dr. Phelan Depo. at 150.) With respect to sending Mrs. Colburn home at 6:00 a.m., Mrs. Colburn provides evidence to support her contention that sending her home was below the standard of reasonable care. Dr. Phelan stated in his deposition, "when she was sent home, I thought it fell within conscious disregard." (Dr. Phelan Depo. at 187.) He stated that the hospital should have kept Mrs. Colburn at the hospital for observation because it was a "known risk that upon discharge children could be delivered prematurely." (See id.) Furthermore, Mrs. Colburn stated that she was unable to walk out of the hospital and did not want to go home because of her condition. (Benjamin Decl.; Ex. 9, Deposition of Yvonne Colburn ("Mrs. Colburn's Depo.") at 83.) Based on the foregoing, Mrs. Colburn provides evidence to support her contention that the government breached the reasonable standard of conduct. Therefore, a genuine issue of material fact exists with respect to this issue. b. Causation and Superseding Conduct After Twins' Births In a medical malpractice claim, causation must be proved by a reasonable 792 medical probability based upon competent expert testimony. See Jones v. Ortho Pharmaceutical Corp., 163 Cal.App.3d 396, 401, 209 Cal.Rptr. 456 (1985). Superseding conduct, as set forth in the Second Restatement of Torts, breaks the chain of causation under California law. See Stewart v. Cox, 55 Cal.2d 857, 864, 13 Cal.Rptr. 521, 362 P.2d 345 (1961). The Restatement provides: "a superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about." Restatement (Second) of Torts § 404. The government alleges that Mrs. Colburn's agreement to a "do not intervene" instruction was a superseding force that broke the chain of causation between the government's actions and the twins' deaths. Because the superseding conduct was not committed by a third person, traditional standards of superseding forces do not apply. Thus, the government contends that California Civil Code § 3515 authorizes summary adjudication. Section 3515 provides: "he who consents to an act is not wronged by it." The government argues that if Mrs. Colburn consented to the "do not intervene" instruction, which the government maintains caused the twins' deaths, the government cannot be held liable for the twins' deaths. The government provides the following evidence in support of its argument. First, Mrs. Colburn agreed to the "do not intervene" instruction when she stated that "we felt like if we kept the babies alive it would only be for ourselves ... so we said that if they couldn't survive they should let them die by natural means." (Mrs. Colburn's Depo at 93.) Second, plaintiffs' expert Dr. Phelan stated that based on his "training, skill, and experience in regard with dealing with delivery issues [and] 600 gram infants" the twins, who were 600 grams, were born viable and should have survived with medical intervention. (Dr. Phelan's Depo. at 182.) Finally, Dr. Phelan opines that it was his "understanding that you're not suppose to" resuscitate premature infants contrary to parental wishes. (Dr. Phelan's Depo. at 187.) In opposition, Mrs. Colburn asserts that her "do not intervene" instruction was conditional, and only to be followed if the twins were not viable.[4] Mrs. Colburn also argues that she was not given accurate information to formulate an informed consent. Because the twins were born viable, Mrs. Colburn contends that the government should have provided medical care to the twins. First, Mrs. Colburn states, in her deposition, that a doctor "explained to [her] that if the babies weren't old enough, they would probably die" or suffer severe retardation or blindness. (Mrs. Colburn's Depo. at 90, 92.) Thus, Mrs. Colburn decided that "if [the twins] couldn't survive, they should die by natural means." (Mrs. Colburn's Depo. at 93 (emphasis added).) Second, Dr. Phelan opined that the twins "in all medical probability should have survived." (Dr. Phelan's Depo. at 182.) Thus, Mrs. Colburn provides evidence in support of her contention that the hospital should not have followed her "do not intervene" instruction because the twins were viable at birth. In addition, Mrs. Colburn argues that the government's breach of the reasonable standard of care in treating her prior to the twins' births caused the twins' deaths. Mrs. Colburn cites to Dr. Phelan's Deposition in support of her proposition. Dr. Phelan opined: [T]he administration of tocolytics (medications used to stop premature labor) in the early morning hours of 24 October 1995 would, in all medical probability, 793 have prolonged Yvonne Heuston Colburn's twin pregnancy. [If] the tocolytics [had] been administered, we would have had a minimum of three days. When you're dealing with low birth weight, such as these twins, one day makes a difference in the outcome of the child. (Dr. Phelan Depo. at 146-47.) Thus, a genuine issue of material fact exists with regards to the cause of the twins' deaths. Accordingly, the Court DENIES the government's motion for summary adjudication. C. MICRA Under the terms of the FTCA, the measure of damages in FTCA cases are generally based on the law of the state where the tort occurred. See Shaw v. United States, 741 F.2d 1202, 1205 (9th Cir.1984). The MICRA legislation, as embodied in Cal.Civ.Code § 3333.2(b), provides: "In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000)." Cal.Civ.Code § 3333.2(b). The government contends that under MICRA, a single plaintiff can recover a maximum of $250,000 in noneconomic damages, regardless of the number of claims the plaintiff alleges. In opposition, plaintiffs argue that the $250,000 maximum for noneconomic damages applies to each individual claim. Neither the California Supreme Court nor the appellate courts have ever held that a single plaintiff can recover more than the MICRA limit for noneconomic damages. To the contrary, the courts have consistently limited the maximum recovery to $250,000, regardless of the number of claims alleged. See Fein v. Permanente Med. Group, 38 Cal.3d 137, 157-64, 211 Cal.Rptr. 368, 695 P.2d 665 (1985) (approving a reduction of noneconomic damages to $250,000 when multiple diagnostic errors occurred); Atkins v. Strayhorn, 223 Cal.App.3d 1380, 1394, 273 Cal. Rptr. 231 (1990) (limiting a husband and wife to $250,000 each for noneconomic damages); Yates v. Pollock, 194 Cal. App.3d 195, 200, 239 Cal.Rptr. 383 (1987) (finding that the "maximum recovery [for noneconomic damages] permitted in any single medical malpractice action is $250,000, regardless of the number of plaintiffs involved"); Engalla v. Permanente Med. Group, 15 Cal.4th 951, 987, 64 Cal.Rptr.2d 843, 938 P.2d 903 (1997) (observing that a single plaintiff with a claim for wrongful death and loss of consortium was limited to an aggregate maximum potential recovery of $250,000 for all noneconomic damages). Mrs. Colburn argues that MICRA's limitation should apply to each of her claims, thus allowing a potential recovery of $750,000 for her three remaining claims for wrongful death and NIED. Mrs. Colburn asserts that Burgess v. Superior Court, 2 Cal.4th 1064, 1071, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992), allows such a recovery because there, the California Supreme Court held that a mother could recover for negligence, emotional distress, and wrongful death. Id. at 1071, 9 Cal.Rptr.2d 615, 831 P.2d 1197. However, the Burgess Court did not address the issue of MICRA's applicability to recovery under these claims. Thus, the holding in Burgess is inapposite and does not support Mrs. Colburn's argument. Therefore, the Court finds that MICRA provides a $250,000 maximum aggregate recovery for a single plaintiff. Accordingly, Mr. and Mrs. Colburn have a combined maximum potential recovery of $500,000 for all noneconomic damages. CONCLUSION For the reasons stated above, the Court DENIES the government's motion for summary adjudication on Mrs. Colburn's first and second claims for wrongful death and DISMISSES WITH PREJUDICE Mr. Colburn's first and second claims for wrongful death, Mr. Colburn's fourth claim for negligent infliction of emotional distress, and Mr. and Mrs. Colburn's sixth claim for spoliation. Furthermore, the *794 Court FINDS that, with respect to each plaintiff, MICRA limits the aggregate maximum recovery for all noneconomic damages to $250,000.[5] IT IS SO ORDERED. NOTES [1] A factual dispute exists regarding what treatment Mrs. Colburn received before 1:53 a.m. Plaintiffs contend that she was not evaluated until 1:53 a.m., while the government claims that medical personnel immediately began to render care to her. [2] Plaintiffs contend that Dr. Rice "pulled rank" on Mr. Colburn, who was on active duty at the time, and ordered plaintiffs to leave the hospital despite plaintiffs' protest to stay. (Decl. of R. Scott Benjamin; Ex. 10, Deposition of Mrs. Colburn at 82.) The government states that Dr. Rice permitted Mrs. Colburn to go home with the specific instruction to return in three to four hours for another examination. (Reply; Ex. E, Deposition of Dr. Rice at 235.) [3] It is disputed whether the "do not intervene" instruction was confirmed after the twins' birth. [4] The government argues that Mrs. Colburn's Deposition and Declaration are inconsistent. The Court finds that Mrs. Colburn's Deposition is sufficiently consistent with her Declaration for the purposes of this motion. Therefore, the Court OVERRULES the government's objection. [5] The following claims remain in the action: Mrs. Colburn's first and second claims for wrongful death, Mrs. Colburn's third claim for negligent infliction of emotional distress, and Mr. Colburn's fifth claim for loss of consortium.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498531/	63 So.3d 1068 (2011) LEMOINE/BRASFIELD & GORRIE JOINT VENTURE, LLC v. ORLEANS PARISH CRIMINAL SHERIFF'S OFFICE. No. 2010-CA-1220. Court of Appeal of Louisiana, Fourth Circuit. March 30, 2011. Writ Denied June 17, 2011. 1069 Murphy J. Foster III, Steven B. Loeb, Yvonne R. Olinde, Breazeale Sachse & Wilson, L.L.P., Baton Rouge, LA, for Plaintiff/Appellant. Michael G. Gaffney, Hurndon & Gaffney, New Orleans, LA, Gregory C. Weiss, Weiss & Eason, L.L.P., Mandeville, LA, for Defendant/Appellee. H. Bruce Shreves, Denise C. Puente, Christopher B. Conley, James A. Burton, Simon Peragine Smith & Redfearn, LLP, New Orleans, LA, for Carl E. Woodward, LLC. Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DANIEL L. DYSART. TERRI F. LOVE, Judge. This litigation involves a dispute over the award of a contract for a public works project at the Orleans Parish Criminal Sheriffs Office. Lemoine/Brasfield & Gorrie Joint Venture, L.L.C., brought suit against the Orleans Parish Criminal Sheriff's Office seeking to have the bid of Carl E. Woodward, L.L.C. rejected and seeking to be awarded the contract as the lowest bidder. Lemoine/Brasfield & Gorrie Joint Venture, L.L.C. now appeals the trial court's judgment, which dismissed all of its requests for relief. We find that the OPCSO acted in a fair and legal manner and not arbitrarily in disqualifying Lemoine/Brasfield and affirm the trial court's judgment. 1070 FACTS AND PROCEDURAL BACKGROUND In 2009, the Orleans Parish Criminal Sheriffs Office (the OPCSO or Defendant/Appellee) advertised a bid solicitation from contractors in conjunction with the award and execution of a public works contract for the construction of a project entitled "Orleans Parish Criminal Sheriffs Office Kitchen Warehouse Plant" (the Project). Lemoine/Brasfield & Gorrie Joint Venture, L.L.C. (Plaintiff/Appellant or Lemoine/Brasfield) is a limited liability company (L.L.C.) comprised of two companies, The Lemoine Company and Brasfield & Gorrie, L.L.C. Appellant was the lowest numerical bidder, however, the OPCSO notified Appellant that its bid was rejected as not being a responsive bid, as Lemoine/Brasfield did not have a contractor's license separate and distinct from the individual licenses of its component companies. The OPCSO opted to award the contract to the second lowest numerical bidder, Carl E. Woodward, L.L.C. (CEW or Appellee/Intervenor). Lemoine/Brasfield responded to this rejection by filing suit against the OPCSO; in its suit, Lemoine/Brasfield sought preliminary and permanent injunctions prohibiting the OPCSO from awarding the contract to any other bidder, an order of mandamus compelling the OPCSO to award the contract to Lemoine/Brasfield, and a declaratory judgment to the effect that any contract entered into between the OPCSO and CEW, or any other bidder, was null and void. In the alternative, Lemoine/Brasfield sought a monetary damage award. CEW intervened in the lawsuit, asserting that its bid complied with the public bid law. The trial court conducted a hearing on the motion for preliminary injunction and denied Appellant's request for preliminary injunction. The trial court rendered judgment to that effect and, three days later, issued an amended judgment that differed from the original judgment only with respect to phrasing, not substance. Thereafter, the trial court made the denial of the Appellant's request for preliminary injunction permanent pursuant to an agreement of the parties, and rendered a final judgment of dismissal. The trial judge ruled that: "1. The denial of the Preliminary Injunction by Judgment dated January 8, 2010, is hereby made permanent and deemed a final judgment. 2. Plaintiff's Motion for Mandatory Injunction is dismissed as moot. 3. Plaintiff's Petition for Injunctive Relief, Mandamus and Declaratory Judgment is hereby dismissed with prejudice with all Court costs assessed to Plaintiff." Lemoine/Brasfield appeals and avers that the trial court erred in denying its request for preliminary and permanent injunctive relief and argues that the trial court's judgment should be reversed. Lemoine/Brasfield further maintains that this matter should be remanded for judgment on the request for monetary damages. STANDARD OF REVIEW A public agency awarding a public works contract is vested with the power and discretion to determine the responsibility of the bidder and to reject all bids if none are satisfactory. J.W. Rombach v. Parish of Jefferson, 95-829, p. 12 (La.App. 5 Cir. 2/14/96), 670 So.2d 1305, 1310 (citing La. R.S. 38:2212). However, the agency's discretion must be exercised in a fair and legal manner and not arbitrarily. J.W. Rombach, 95-829, p. 12, 670 So.2d at 1310. On review of the state agency's exercise of discretion determining whether 1071 a bidder is the lowest responsible bidder, a court should not substitute its judgment for the good faith judgment of an administrative agency. Id. at p. 13, 670 So.2d at 1311. The agency's reasonable good faith interpretation of its own specifications should not be disturbed by a court that may have different views. Systems Plus, Inc. v. East Jefferson General Hosp., 94-83, p. 11 (La.App. 5 Cir. 5/31/94), 638 So.2d 404, 409 (quoting D.M. Clement Contr. v. St. Charles Parish, 524 So.2d 86 (La.App. 5th Cir.1988)); J.W. Rombach v. Parish of Jefferson, 95-829, p. 13 (La.App. 5 Cir. 2/14/96) 670 So.2d 1305, 1311. The duty of this Court is to determine whether the OPCSO acted in a fair and legal manner and not arbitrarily in disqualifying Lemoine/Brasfield. J.W. Rombach, 95-829, p. 14, 670 So.2d 1305, 1311; B.F. Carvin Const. Co., Inc. v. Jefferson Parish Council, 98-1189, p. 12 (La.App. 5 Cir. 5/19/99), 735 So.2d 859, 865. PUBLIC WORKS CONTRACT Appellant is comprised of two companies-The Lemoine Company and Brasfield & Gorrie, L.L.C. Appellant bid on the Project, and while Appellant was the lowest numerical bidder, the OPCSO declared Appellant's bid non-responsive. The OPSCO determined that Appellant did not have a contractor's license separate and distinct from its two component entities and awarded the contract to the second lowest numerical bidder, Intervenor. Appellant contends that each of its component companies hold individual, valid contractor's licenses, and Appellant maintains that because the companies formed a "joint venture," Appellant was not required to obtain a separate license. Appellee contends that while Lemoine/Brasfield submitted their bid under the name "The Lemoine Company, L.L.C./Brasfield Gorrie, Joint Venture L.L.C.," Louisiana law does not recognize a "limited liability company joint venture" as an entity. Appellee argues that state bid law and state contracting law require that the entity that is awarded the contract be licensed, and the L.L.C. at issue does not meet this requirement. Louisiana's Public Bid Law, La. R.S. 38:2212, et seq., "was enacted in the interest of the taxpaying citizens and has for its purpose their protection against contracts of public officials entered into because of favoritism and involving exorbitant and extortionate prices." Haughton Elevator Div. v. State Div. of Admin., 367 So.2d 1161, 1164 (La. 1979). In enacting the public bid law, the legislature specifically prescribed the conditions under which the state will permit public work to be done on its behalf or on behalf of its political subdivisions. Hamp's Constr., L.L.C. v. The City of New Orleans, 05-489, p. 4 (La.2/22/06), 924 So.2d 104, 107; Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Auth., 04-211, p. 6 (La.3/18/04), 867 So.2d 651, 656. La. R.S. 37:2150 provides that: The purpose of the legislature in enacting this Chapter is the protection of the health, safety, and general welfare of all those persons dealing with persons engaged in the contracting vocation, and the affording of such persons of an effective and practical protection against the incompetent, inexperienced, unlawful, and fraudulent acts of contractors with whom they contract. Further, the legislative intent is that the State Licensing Boards for Contractors shall monitor construction projects to ensure compliance with the licensure requirements of this Chapter. La. R.S. 37:2151, et seq. provides for the creation of the State Licensing Board for Contractors, and La. R.S. 37:2153 sets 1072 forth the powers and duties of the board and provides in part: The board shall have the power to make by-laws, rules and regulations for the proper administration of this chapter; to employ such administrative assistants as are necessary; and to fix their compensation. The board is hereby vested with the authority requisite and necessary to carry out the intent of the provisions of this chapter. In accordance with this statute, the State Licensing Board for Contractors enacted the State of Louisiana Contractors' License Law and Rules and Regulations (Administrative Rules). Administrative Rule 1103 states: A. All licensed contractors bidding in the amount of $50,000.00 or more shall be required to have qualified for the classification in which they bid. B. When two or more contractors bid as a joint venture on any project in the amount of $50,000.00 or more, not in conflict with R.S. 37:2150 et seq., all parties are required to be licensed at the time the bid is submitted. Each party to the joint venture may only perform within the applicable classifications of the work of which he is properly classified to perform. (Emphasis added). The Louisiana Contractors' Licensing Law, La. R.S. 37:2150, et seq., contains the following definitional provisions. In pertinent part, La. R.S. 37:2150.1(4)(a) defines contractor as: "... any person who undertakes to, attempts to, or submits a price or bid or offers to construct, supervise, superintend, oversee, direct, or in any manner assume charge of the construction, alteration, repair, improvement, movement, demolition, putting up, tearing down, or furnishing labor, or furnishing labor together with material or equipment, or installing the same for any building, highway, road, railroad, sewer, grading, excavation, pipeline, public utility structure, project development, housing, or housing development, improvement, or any other construction undertaking ... (emphasis added)" La. R.S. 37:2150.1(9) provides in part that: "Person" means any individual, firm, partnership, association, cooperative, corporation, limited liability company, limited liability partnership, or any other entity recognized by Louisiana law... (emphasis added.)" Appellee concluded that simply including the words "joint venture" in the name of Appellant's limited liability company did not allow Appellant to circumvent the licensing requirement for limited liability companies. Appellant, on the other hand, avers that it is not required to hold a license separate from that of its component companies because each company holds a contracting license. Appellant supports its contention with J. Caldarera & Company, Inc. v. Hospital Service District No. 2 of the Parish of Jefferson, 97-1025, p. 2 (La.App. 5 Cir. 2/11/98), 707 So.2d 1023, 1026, wherein Manhattan Construction Company (Manhattan) was a licensed contractor in the State of Louisiana, and Gibbs Construction Company (Gibbs) was a licensed contractor in the State of Louisiana. Manhattan and Gibbs submitted a bid as a joint venture, "Manhattan/Gibbs, A Joint Venture." Id. at p. 7, 707 So.2d at 1026. In Caldarera, the Louisiana Supreme Court stated: "... we believe that the trial court correctly interpreted the applicable law to provide that a joint venture is properly licensed when each of its members holds a valid license and, therefore, that joint 1073 venture itself is not required to get an additional license." Id. Further, Appellant notes that the Caldarera case was decided prior to the 1997 amendment to La. R.S. 37:2150.1(9); at that time, the definition of "person" included "joint venture." Appellant likens the OPCSO's argument here to that of the plaintiff in Caldarera, where the Court rejected the plaintiff's contention that because the statute provided that a "joint venture" is a "person," and because a "person" must be licensed, the joint venture must have its own license before it can bid on a public project. We find the matter sub judice distinguishable from Caldarera. Unlike Caldarera, at present, the definition of "person" in La. R.S. 37:2150 et seq. does not include "joint venture." La. R.S. 37:2150 et seq. currently provides that a "person" includes a "limited liability company." Administrative Rule 1103 on joint ventures applies "[w]hen two or more contractors bid as a joint venture on any project in the amount of $50,000.00 or more, not in conflict with R.S. 37:2150 et seq." (Emphasis added). According to the basic rules of statutory construction, when written law is clear and unambiguous, and its application leads to no absurd consequences, the law shall be applied as written. La. Civ.Code Art. 9; Rosenbush Claims Service, Inc. v. City of New Orleans, 94-2223 (La.4/10/95), 653 So.2d 538, 544. Moreover, the legislature is presumed to have enacted a statute in light of the preceding statutes of the same subject matter and court decisions construing those statutes, and where the new statute is worded differently from the preceding statute, the legislature is presumed to have intended to change the law. Rosenbush Claims Service, Inc. v. City of New Orleans, 94-2223 (La.4/10/95), 653 So.2d 538, 544; Helmerich & Payne, Inc. v. Stephens, 569 So.2d 21, 23 (La.App. 4th Cir.1990). Reading the statutes in pari materia with the administrative rule, we find the matter before us in direct conflict with the requirements of La. R.S. 37:2150 et seq. While the limited liability company's name contains the words "joint venture," including the words "joint venture" in a name does not necessarily make it such. Further, while a joint venture is not required to get an additional license to be deemed a responsible bidder under the Public Works Act, a limited liability company is required to hold a license. Lemoine/Brasfield captioned their effort a "joint venture" and formed a limited liability company. Under the instant facts, the formation of this new legal entity made Lemoine/Brasfield subject to the requirements set forth under public bid law for limited liability companies. We find that the trial court correctly interpreted the applicable law to provide that under the instant facts, a limited liability company is required to obtain a license although its name contains the words "joint venture." Appellant formed a limited liability company, which made it a "person." State bid law and state contracting law require that the entity that is awarded the contract be licensed, and the limited liability company at issue did not meet this requirement. Lemoine/Brasfield is thus a non-licensed bidder, and we find that the OPCSO did not act arbitrarily or unfairly in disqualifying Lemoine/Brasfield. We therefore find no error in the trial court's judgment. DECREE We conclude that the OPCSO acted in a fair and legal manner and not arbitrarily in disqualifying Lemoine/Brasfield. For the foregoing reasons, we affirm the trial 1074 court's judgment dismissing all of the claims of Lemoine/Brasfield against the OPCSO. AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498534/	66 So.3d 564 (2011) Nathen BANDARIES v. Joanna V. CASSIDY. No. 11-161. Court of Appeal of Louisiana, Third Circuit. June 1, 2011. 565 Nathen Madro Bandaries, M. Claire Trimble, New Orleans, LA, Billy L. West, Nachitoches, LA, for Plaintiff/Appellant, Nathen Madro Bandaries. Fred L. Herman, Thomas J. Barbera, George W. Jackson, Jr., New Orleans, LA, for Defendant/Appellee, Joanna V. Cassidy. Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges. PAINTER, Judge. Plaintiff, Nathen Madro Bandaries, appeals the judgment of the trial court dismissing his suit pursuant to Defendant's exception of lis pendens. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY The trial court correctly outlined the facts of this case in written reasons for judgment as follows: Nathen Banderies[1], plaintiff/respondent filed the present suit against [] Joanna V. Cassidy, defendant/exceptor, on April 21, 2010 in the Tenth Judicial District Court in Natchitoches (hereinafter the "10th JDC lawsuit"). The petition alleges that [ ] Cassidy is indebted to the plaintiff in the amount of $33,744.14. Cassidy allegedly received loans from Bandaries for various items such as repairs on her home, hotel rooms, and airplane flights. Bandaries alleges that the parties entered into an agreement whereby Bandaries would advance money to Cassidy, with the understanding that Cassidy would repay these amounts from proceeds from the sale of a film [ ] Cassidy was producing. Bandaries alleges that, under the agreement, he agreed to and did perform a variety of duties related to [] Cassidy's finances and her film career. Bandaries further alleges that Cassidy has not repaid him; and he seeks reimbursement for these loans. He bases his claim on the legal theory of unjust enrichment. However, prior to the filing of the present suit, there were two other suits filed in Civil District Court for the Parish of Orleans (hereinafter sometimes referred to as "CDC"). The first suit (hereinafter the "CDC-1" lawsuit) was filed by Joanna Cassidy against Madro Bandaries, PLC and Madro Bandaries. It was a petition for a declaratory judgment, seeking to have that Court find a certain attorney contract invalid and to determine that certain sums are not due. The second lawsuit was filed on March 25, 2010 by Madro Banderies, PLC (a law firm) and Nathen Banderies against Joanna Cassidy also in Civil District Court for the Parish of Orleans (hereinafter the "CDC-2" lawsuit). In the CDC-2 petition, the plaintiffs allege that Nathen Banderies was the defendant's attorney (an allegation absent from the 10th JDC petition). The suit alleges that the attorney-client contract between the parties provided for venue in Orleans Parish. This contract is also the subject of CDC-1 lawsuit. These two suits were assigned to two different divisions in the Civil District court for the Parish of Orleans. Cassidy then filed a motion to consolidate the two suits in Orleans Parish. Bandaries, et al, opposed the consolidation and the 566 issue is pending in Civil District court for the Parish of Orleans. The trial court granted the exception of lis pendens. Plaintiff filed a motion for new trial, which the court denied. This appeal followed. DISCUSSION Lis Pendens The basis for the exception of lis pendens lies in La.Code Civ.P. art. 531. It reads as follows: When two or more suits are pending in a Louisiana court or courts of the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all. The article lays out three requirements that must be satisfied in order for a lis pendens exception to be properly sustained. First, there must be two or more suits pending. Second, the suits must involve the same transaction or occurrence. Third, the suits must involve the same parties in the same capacities. In Coury Moss, Inc. v. Coury, 07-1578, p. 4 (La.App. 3 Cir. 4/30/08), 981 So.2d 936, 939-40, writ denied, 08-1174 (La.9/19/08), 992 So.2d 944, this court stated that, "[t]he test for ruling on an exception of lis pendens is to inquire whether a final judgment in the first suit would be res judicata in the subsequently filed suit. Domingue v. ABC Corp., 96-1224, p. 3 (La.App. 4 Cir. 6/26/96), 682 So.2d 246, 248." Travcal Properties, LLC v. Logan, 10-323, p. 4 (La.App. 3 Cir. 10/6/10), 49 So.3d. 466, 469. It is without question that two suits are pending. However, Plaintiff disputes the remaining two factors. Therefore, we will examine whether the suits involve the same transaction or occurrence and whether they involve the same parties in the same capacities. The trial court found as follows: "[B]oth lawsuits concern the exact same transaction and occurrence. Both involve the same series of loans by Bandaries to [ ] Cassidy and Cassidy's refusal to repay those loans. Both lawsuits seek the same amount and both describe the same circumstances leading up to and following the loans." Although Plaintiff notes that La.Code Civ.P. art. 531 was amended to change the words "cause of action" to "transaction or occurrence," Plaintiff argues that the words "transaction or occurrence" should be interpreted to mean cause of action and cites pre-amendment law to support his argument. We do not agree. Since the law of res judicata is applicable to determine whether an exception of lis pendens should be granted, we look to La.R.S. 13:4231 to determine what is intended by the terms "transaction or occurrence." That statute provides, in pertinent part that "[i]f the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action." Comment (b) to the statute states that: R.S. 13:4231 also changes the law by adopting the principle of issue preclusion. This principle serves the interests of judicial economy by preventing relitigation 567 of the same issue between the same parties. For example, if a plaintiff brings an action against a defendant to recover for injuries sustained in an automobile accident, the judgment rendered in that action would preclude relitigation of any issue raised in a subsequent action brought by defendant against plaintiff to recover for his injuries sustained in the same accident provided that the issue had been actually litigated and essential to the judgment, e.g., fault of either party. This proviso insures that the issue would have been fully developed by the parties in the first action and makes it fair to hold the parties bound to that initial determination. Because a judgment rendered in the plaintiff's action can also have preclusive effect on an action by the defendant, Code of Civil Procedure Article 1061 has been amended to require the defendant to assert by reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action. Applying this rule to the action before us, all causes of action arising out of the transaction or occurrence that is the basis of the suit are subject to challenge for lis pendens, regardless of whether the claim is made on the basis of unjust enrichment, contract, or other cause of action arising out of the same occurrence. Further, the same issues must be litigated in both actions. Accordingly, we find that the trial court correctly found that both suits arise out of the same transaction or occurrence. We next consider whether the suits involve the same parties in the same capacities. Originally, the CDC suit opened with the following statement: "NOW INTO COURT, through undersigned counsel come MADRO BANDARIES, PLC, a Louisiana Professional Law Corporation, domiciled in Orleans Parish, Louisiana, and Nathen Bandaries, a stockholder of same, who is also a resident of the Parish of Orleans, of the age of majority. . . ." However, shortly before the hearing on the exception of lis pendens, the CDC suit was amended to state: "Madro Bandaries, PLC, a Louisiana Law Corporation, through its managing partner, appearing herein as a corporate officer, only, of Madro Bandaries PLC . . ." Plaintiff asserted at the hearing on the exception of lis pendens and reasserts to this court that this amendment served to distinguish the parties in the CDC action sufficiently from the parties in the 10th JDC action to preclude the grant of the exception of lis pendens. The "identity of parties" prerequisite for res judicata does not mean that the parties must be the same physical or material parties, so long as they appear in the same quality or capacity. Berrigan v. Deutsch, Kerrigan & Stiles, L.L.P., 01-612, p. 6 (La.App. 4 Cir. 1/2/02), 806 So.2d 163, 167. The only requirement is that the parties be the same "in the legal sense of the word." Id. at p. 6, 806 So.2d at 167. Coury Moss, Inc., 981 at 940. In La. Cotton Ass'n Workers' Comp. Group Self-Ins. Fund v. Tri-Parish Gin Co., Inc., 624 So.2d 461, 464 (La.App. 2 Cir.1993), the court explained that "where the parties not only share the same quality as parties but, in essence, their identities are virtually merged into one, . . . the parties are the same for the purposes of lis pendens." In both the CDC and the 10th JDC cases, Plaintiffs are attempting to collect the same debt resulting from the same transactions from the same defendant. Plaintiff in one case is a law firm owned and operated by Plaintiff in the other case. We find that the parties not only share the same quality as parties, but 568 they are virtually, if not actually, merged into one. Therefore, the trial court correctly found that the suits involve the same parties in the same capacities. New Trial Plaintiff asserts that the trial court erred in denying his motion for new trial on the basis that the amendment of the CDC suit removed the basis for the exception of lis pendens. Having previously found that the amendment was not a bar to the exception, we find no merit in this assignment of error. CONCLUSION For the reasons set forth herein, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiff/Appellant. AFFIRMED. NOTES [1] Nathen Madro Bandaries is an attorney whose law firm is called Madro Bandaries, PLC. Nathen Bandaries, Nathen Madro Bandaries and Madro Bandaries are all the same person. Madro Bandaries, PLC is the law firm formed by him.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498536/	66 So.3d 830 (2010) Carlton Reashard LANE v. STATE of Alabama. CR-07-1354. Court of Criminal Appeals of Alabama. December 17, 2010. Joshua J. Lane, Anniston, for appellant. Troy King, atty. gen., and William D. Little, asst. atty. gen., for appellee. After Remand from the Alabama Supreme Court PER CURIAM. The Alabama Supreme Court in Lane v. State, [Ms. 1091117, September 24, 2010] 66 So.3d 824 (Ala.2010), reversed this Court's decision in Lane v. State, [Ms. CR-07-1354, December 18, 2009] 66 So.3d 812 (Ala.Crim.App.2009), and adopted the views expressed in the dissenting opinions authored by Judge Windom and Judge Main. The Court held that Lane's 120-year sentence was within the statutory range set out in § 13A-5-9(b)(3), Ala.Code 1975, and that Lane, a third-time felony offender, was correctly sentenced for a Class A felony to a term in excess of 99 years. The Supreme Court remanded the case to this Court and directed that we address Lane's claim that his 120-year 831 sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. "The Eighth Amendment ... contains a `narrow proportionality principle' that `applies to noncapital sentences.'" Ewing v. California, 538 U.S. 11, 17, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), quoting Harmelin v. Michigan, 501 U.S. 957, 996-97, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). We recognized this limited principle in Wilson v. State, 830 So.2d 765 (Ala.Crim. App.2001). In Wilson, a majority of this Court held that a first-time offender's sentence of life imprisonment without the possibility of parole for selling a substance containing morphine constituted cruel and unusual punishment. We noted that in order to conduct a full-scale Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), analysis we must first determine whether the sentence is grossly disproportionate to the crime for which the defendant is being sentenced. "Application of Harmelin [v. Michigan, 501 U.S. 957 (1991),] mandates that we make a threshold determination in this case by considering whether the mandatory sentence of life imprisonment without parole imposed in Wilson's case is grossly disproportionate to her crime. To perform this analysis, we must consider the gravity of the offense and the harshness of the punishment. Solem [v. Helm,] 463 U.S. [277] at 290-91, 103 S.Ct. 3001 [(1983)]. The United States Supreme Court noted in Solem that no single factor determines when a sentence is grossly disproportionate, and it offered a nonexhaustive list of factors to be considered when a court is assessing the severity of a crime. These factors include consideration of the circumstances of the crime, the harm caused to the victim or to society, the culpability of the offender, and the offender's motive in committing the crime. Id. at 290-94, 103 S.Ct. 3001." 830 So.2d at 778 (emphasis added). See Smallwood v. Johnson, 73 F.3d 1343, 1347-48 (5th Cir.1996) ("In light of Harmelin [v. Michigan, 501 U.S. 957 (1991)], it appears that Solem is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of `gross disproportionality.'") Clearly, Lane's sentence does not meet this threshold inquiryit is not grossly disproportionate to the crime for which Lane was sentencedmurder. Lane was convicted and sentenced under the Habitual Felony Offender Act to 120 years' imprisonment for intentionally murdering Christopher Toson by shooting him in the chest. "Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history." Harmelin v. Michigan, 501 U.S. 957, 994-95, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). "`It is well settled that "[w]here a trial judge imposes a sentence within the statutory range, this Court will not disturb that sentence on appeal absent a showing of an abuse of the trial judge's discretion." Alderman v. State, 615 So.2d 640, 649 (Ala.Crim. App.1992). "The exception to this general rule is that `the appellate courts may review a sentence, which, although within the prescribed limitations, is so disproportionate to the offense charged that it constitutes a violation of a defendant's Eighth Amendment rights.'" Brown [v. State, 611 So.2d 1194,] 1197, n. 6 [(Ala.Crim.App.1992)], quoting Ex parte Maddox, 502 So.2d 786, 789 (Ala.1986)." 832 "Adams v. State, 815 So.2d 583, 585 (Ala.Crim.App.2001). "Ware was given a heightened sentence under the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975. Legislatively mandated sentences carry a presumption of validity. McLester v. State, 460 So.2d 870, 874 (Ala.Crim.App. 1984). `"Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes...."' 460 So.2d at 874, quoting Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). `"`Where the punishment prescribed by the legislature is severe merely by reason of its extent, as distinguished from its nature, there is no collision with the Eighth Amendment.'"' Wilson v. State, 427 So.2d 148, 152 (Ala.Crim.App. 1983) (quoting Watson v. State, 392 So.2d 1274, 1277 (Ala.Crim.App.1980), quoting in turn Ex parte Messelt v. State, 351 So.2d 636, 639 (Ala.Crim.App. 1977)). Likewise, this Court has held that the Habitual Felony Offender Act does not violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. See Watson v. State, 392 So.2d 1274 (Ala.Crim.App. 1980)" Ware v. State, 949 So.2d 169, 183 (Ala. Crim.App.2006). Lane's 120-year sentence does not constitute cruel and unusual punishment; therefore, Lane is due no relief on this claim. AFFIRMED. WISE, P.J., and WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498546/	45 F.Supp.2d 1308 (1999) JOHNSTON INDUS. INC., et al., Plaintiffs, v. MILLIKEN & CO., et al., Defendants. No. Civ.A. 98-D-1255-E. United States District Court, M.D. Alabama, Eastern Division. March 23, 1999. 1309 Jere L. Beasley, Montgomery, AL, for plaintiff. Ronald G. Davenport, Montgomery, AL, James R. McKoon, Jr., Phenix City, AL, J. Pelham Ferrell, Clayton, GA, Michael T. Dawkins, Jackson, MS, Justin D. Waldrep, pro se, Atlanta, GA, JDW Consulting, pro se, Atlanta, GA, for defendants. MEMORANDUM OPINION AND ORDER DE MENT, District Judge. Before the court are Plaintiffs' Motion To Remand ("Remand Mot."), filed on December 3, 1998 and Brief In Support Of Plaintiffs' Motion To Remand ("Pls.' Brief"), filed on December 9, 1998. Contained within both Plaintiffs' Motion To Remand and Plaintiffs' Brief is a request, pursuant to 28 U.S.C. § 1447(c), that the court assess against Defendants just costs and actual expenses, including attorneys' fees, incurred as a result of improper removal, which request the court construes as a Motion For Attorneys' Fees. On January 4, 1999, Defendant Milliken & Company ("Milliken") filed a Memorandum Of Law In Opposition To Plaintiffs' Motion To Remand, which the court construes as a Response ("Response"). On January 6, 1999, Defendants R.A. Taylor & Associates, Inc. ("Taylor & Associates"), Global Intelligence Network, Inc. ("Global"), and Rodney A. Taylor ("Mr.Taylor") filed a Notice Of Joinder In Defendant's [Milliken's] Response. On January 11, 1999, Plaintiffs' filed a Reply Brief ("Reply"). After a thorough review of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Plaintiffs' Motion To Remand is due to be granted and that Plaintiffs' Motion For Attorneys' Fees is due to be denied. FACTUAL BACKGROUND In this case of alleged corporate espionage, Plaintiffs Johnston Industries, Inc. ("JI") and Johnston Industries Alabama, Inc. ("JIA") filed a Complaint against Defendants Milliken, Taylor & Associates, Global, Justin D. Waldrep ("Mr.Waldrep"), JDW Consulting ("JDW"), and Mr. Taylor in the Circuit Court of Russell County on October 7, 1998. In their Complaint, Plaintiffs allege, inter alia, that: Defendants have engaged in an extensive and ongoing pattern of fraud and theft of trade secrets and confidential information-illegal schemes devised and implemented by the perpetrators as part of an enterprise to acquire and use confidential competitor information through fraudulent misrepresentations and tortious activities-all to the substantial financial and competitive benefit of the Defendants and to the detriment of Milliken's competitors, including JI. (Compl.¶ 17.) On November 6, 1998, Defendant Milliken timely filed a Notice Of Removal ("Removal Not.") pursuant to 28 U.S.C. §§ 1441 and 1446, thereby removing this case to this court. Also, on November 6, 1998, Defendants Taylor & Associates, Mr. Taylor, and Global filed a Joinder In Notice Of Removal, as did Defendants JDW and Mr. Waldrep. 1310 In support of removal, Defendant Milliken asserts that this court exercises subject matter jurisdiction over this case through diversity of citizenship and requisite amount in controversy, pursuant to 28 U.S.C. § 1332.[1] (Removal Not. ¶ 17.) Plaintiffs and Defendant Milliken agree upon the following citizenship designations of the Parties to this action: (1) Plaintiff JI is a Delaware corporation with its principal place of business in Georgia (Compl. ¶ 1; Removal Not. ¶ 10); (2) Plaintiff JIA is an Alabama corporation with its principal place of business in Alabama[2] (Compl. ¶ 2; Removal Not. ¶ 11); (3) Defendant Milliken is a Delaware corporation with its principal place of business in South Carolina (Compl. ¶ 3; Removal Not. ¶ 4); (4) Defendant Taylor and Associates is a Georgia corporation with its principal place of business in Georgia (Compl. ¶ 4; Removal Not. ¶ 5); (5) Defendant Global is a Georgia corporation with its principal place of business in Georgia (Compl. ¶ 6; Removal Not. ¶ 6); (6) Defendant Mr. Taylor is a resident of Georgia (Compl. ¶ 8; Removal Not. ¶ 7); (7) Defendant Mr. Waldrep is a resident of Georgia (Compl. ¶ 10; Removal Not. ¶ 8); and (8) Defendant JDW is an unincorporated association with its principal place of business in Georgia and whose sole owner/member, Defendant Mr. Waldrep, is a resident of Georgia. (Compl. ¶ 12; Removal Not. ¶ 9.) Defendant Milliken contends, however, that Plaintiff JI "was fraudulently joined, and is not a real party in interest here. Thus, Johnston's [JI's] citizenship should be disregarded for purposes of determining whether complete diversity exists in this case. The only Plaintiff whose citizenship should be considered is JI Alabama [JIA]." (Removal Not. ¶ 20.) Specifically, Defendant Milliken argues that, but for the fraudulent joinder of Plaintiff JI, which has Georgia citizenship, complete diversity would exist between the remaining Plaintiff, JIA, which has Alabama citizenship, and the six Defendants, which have either Georgia, South Carolina, and/or Delaware citizenship. (Removal Not. ¶¶ 18-20, 27.) In their Motion To Remand, Plaintiffs contend that this court does not have subject matter jurisdiction because "Johnston Industries [JI] is a proper Plaintiff and was not fraudulently joined" (Remand Mot. ¶ 4) because JI "alleges several viable causes of action under Alabama law." (Reply at 1.) Plaintiffs argue that "Defendants have failed to prove that recognition of JI's claims ... is impossible." (Id. at 2.) Therefore, Plaintiffs argue that removal by Defendant Milliken was improper because of a lack of complete diversity. (Mot. ¶ 4.) DISCUSSION I. Plaintiffs' Motion To Remand Removal of a case from state to federal court is proper if the case could have been brought originally in federal court. See 28 U.S.C. § 1441(a). A federal district court may assert jurisdiction in a case involving citizens of different states where the amount in controversy, exclusive of interest and costs, exceeds $75,000.00. See 28 U.S.C. § 1332(a). "Diversity jurisdiction under 28 U.S.C. § 1332 requires complete diversity every plaintiff must be diverse from every defendant." Tapscott v. MS Dealer Serv. Co., 77 F.3d 1353, 1359 (11th Cir.1996). Therefore, where the parties are diverse and the amount in controversy is sufficient, a defendant has the statutory right to remove an action from state to federal court. See 28 U.S.C. § 1332(a). It is well-settled that the defendant, as the party removing an action to federal court, has the burden to establish federal jurisdiction. See Diaz v. Sheppard, 85 1311 F.3d 1502, 1505 (11th Cir.1996). Removal statutes must be strictly construed because of the significant federalism concerns raised by removal jurisdiction. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Seroyer v. Pfizer, Inc., 991 F.Supp. 1308, 1312 (M.D.Ala.1997) (DeMent, J.). Therefore, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). "All doubts [and uncertainties] about federal court jurisdiction must be resolved in favor of a remand to state court." Seroyer, 991 F.Supp. at 1312 (citing Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994)); see also Shamrock Oil v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214; Diaz, 85 F.3d at 1505; Coker v. Amoco Oil Co., 709 F.2d 1433 (11th Cir. 1983); Stone v. Williams, 792 F.Supp. 749 (M.D.Ala.1992). As the Supreme Court has long recognized, a defendant's "right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy." Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 66 L.Ed. 144 (1921). The Eleventh Circuit has articulated that joinder may be deemed fraudulent in three situations: The first is when there is no possibility that the plaintiff can prove a cause of action against the resident (non-diverse) defendant.... The second is when there is outright fraud in the plaintiff's pleading of jurisdictional facts.... [A] third situation of fraudulent joinder was identified i.e., where a diverse defendant is joined with a nondiverse defendant as to whom there is no joint, several or alternative liability and where the claim against the diverse defendant has no real connection to the claim against the nondiverse defendant. Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.1998) (citations omitted). "The removing party bears the burden of proving that the joinder of the resident defendant was fraudulent." Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir.1989) (citing Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983)); see also Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.1997) (citing Cabalceta). The burden on the defendant is a "heavy one." Crowe, 113 F.3d at 1538. "[T]he district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff." Id.; see also Coker, 709 F.2d at 1440 (citing Bobby Jones Garden Apts., Inc. v. Suleski, 391 F.2d 172, 177 (5th Cir.1968)).[3] "If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court." Coker, 709 F.2d at 1440-41 (citing Parks v. New York Times, Co., 308 F.2d 474, 477-78 (5th Cir.1962)). In addressing fraudulent joinder, the court may consider both affidavits and deposition excerpts. See Cabalceta, 883 F.2d at 1561; Coker, 709 F.2d at 1440. Generally, fraudulent joinder is raised in the context of a defendant accusing a plaintiff of fraudulently joining a resident, or non-diverse, defendant in an effort to destroy diversity. Here, both Defendant Milliken and Plaintiffs seek the court's determination as to whether or not Plaintiff JI was fraudulently joined. In so doing, Milliken and Plaintiffs assume the existence of the doctrine of fraudulent joinder of a plaintiff. The court, however, does not assume the existence of such a doctrine. Therefore, the threshold issue before the court is whether the doctrine of 1312 fraudulent joinder of a defendant extends to include the alleged fraudulent joinder of a plaintiff. As discussed below, the court finds that the application of the doctrine of fraudulent joinder of a defendant does not extend to include the alleged fraudulent joinder of a plaintiff. Therefore, the court finds that Defendant Milliken improperly removed this case to federal court and finds that Plaintiffs' Motion To Remand is due to be granted.[4] The court notes that Defendant Milliken mischaracterizes, on several occasions, the case law concerning fraudulent joinder. While the court encourages counsel to zealously represent their clients by, inter alia, offering persuasive interpretations of the case law, the court frowns upon the type of blatant misrepresentations offered by Defendant Milliken. For example, Defendant Milliken alters the plain language of the basic definition of fraudulent joinder of a defendant as set forth by the Eleventh Circuit in cases such as Triggs, 154 F.3d at 1287, Tapscott, 77 F.3d at 1360 n. 17, and Insinga v. LaBella, 845 F.2d 249, 254 (11th Cir.1988). First, in its Notice Of Removal, Defendant Milliken inaccurately cites Insinga, stating that fraudulent joinder occurs where: (i) there is no possibility that the plaintiffs could prove a cause of action against the defendants, or (ii) the plaintiffs fraudulently pled jurisdictional facts in order to subject the defendant to the jurisdiction of the state court. (Removal Not. ¶ 19 (emphasis added).) The actual language in Insinga includes the word "resident" as a modifier to the word "defendant" as follows: [T]here was no possibility that the plaintiff could prove a cause of action against the resident defendant or that the plaintiff fraudulently pled jurisdictional facts in order to subject that resident defendant to the jurisdiction of the state court. Insinga, 845 F.2d at 254 (emphasis added). Defendant Milliken fails to include the word "resident," which clearly indicates that fraudulent joinder contemplates the fraudulent joinder of a non-diverse, or resident, defendant and not of a plaintiff. Likewise, in its Response, Defendant Milliken again inaccurately sets forth the instances where fraudulent joinder occurs. This time, instead of merely deleting the word "resident," as a modifier to the word "defendant," Defendant Milliken goes one step further. By changing "resident" to 1313 the analogous "non-diverse" and moving it to modify "plaintiff" instead of "defendant," Defendant Milliken inaccurately cites Tapscott as follows: [T]o establish fraudulent joinder, the removing party must show either (1) that there is no possibility that the non-diverse plaintiff could establish a cause of action against the defendant(s) in state court; or (2) that there has been outright fraud in the pleading of jurisdictional facts. (Resp. at 7 (emphasis added).) The actual language in Tapscott reads as follows: This Circuit has previously recognized two situations where joinder is fraudulent: (1) if there is no possibility the plaintiff can prove a cause of action against the resident defendant; or (2) if there has been outright fraud by the plaintiff in pleading jurisdictional facts. Tapscott, 77 F.3d at 1360 n. 17 (emphasis added). Once again, the court reminds Defendant Milliken that there is a difference between interpreting the law and misrepresenting the law. Further, in its Response, Defendant Milliken inaccurately cites Wright v. State Farm Fire & Casualty Co., No. 96-A-1663-N, 1997 WL 114902, at 2 (M.D.Ala. Feb.14, 1997), as standing for the proposition that fraudulent joinder occurs when a plaintiff attempts to prevent removal by joining either a non-diverse plaintiff or a non-diverse defendant, stating that "[b]ecause of the complete diversity requirement, plaintiffs may prevent removal merely by joining a non-diverse party in the litigation, either as a plaintiff or a defendant." (Resp. at 6 (emphasis added).) However, the actual language in Wright refers only to the fraudulent joinder of a non-diverse defendant, as follows: "Because of the complete diversity requirement, a plaintiff may prevent removal simply by joining a defendant who shares the same state citizenship as the plaintiff." Wright, 1997 WL 114902, at 2 (emphasis added). Further, the very next sentence in Wright states that "[t]he filing of a frivolous or otherwise illegitimate claim against a non-diverse defendant solely to prevent removal is called a `fraudulent joinder.'" Id. (emphasis added). Defendant Milliken again inaccurately cites Wright as standing for the proposition that "[w]here, however, a non-diverse party has no legitimate connection with the litigation, and has been joined solely to defeat diversity, courts may disregard that party's citizenship under the doctrine of `fraudulent joinder' when assessing the existence of complete diversity." (Resp. at 6 (emphasis added).) The actual language in Wright does not address a "non-diverse party," by which Defendant Milliken means a defendant or a plaintiff, but rather states that "[c]ourts may disregard the citizenship of fraudulently joined defendants when assessing the existence of complete diversity." Wright, 1997 WL 114902, at 2 (emphasis added). In Wright, Defendants removed the case to federal court on the basis of diversity jurisdiction, alleging that one of the defendants had been fraudulently joined; the case has nothing to do with the fraudulent joinder of a plaintiff. Id. at 1. Here again, Defendant Milliken unsuccessfully and inappropriately attempts to convince the court that the doctrine of fraudulent joinder of a defendant extends to include situations involving the alleged fraudulent joinder of a plaintiff. Plaintiffs accurately note that "Defendants have failed to cite a single case in the Eleventh Circuit where a Plaintiff was held to have been fraudulently joined." (Reply at 3.) The court, too, notes that Defendant Milliken fails to offer the court any guidance from the Eleventh Circuit on the issue of fraudulent joinder of a plaintiff. While the court assumes that Defendant Milliken failed to cite such Eleventh Circuit case law because none exists on point, the court notes that Defendant Milliken failed to inform the court of same. Indeed, Defendant Milliken offers the court just one case, from a district court in Mississippi, which involves the fraudulent joinder of a plaintiff. See Nationalcare Corp. v. St. Paul Property & Casualty Ins. 1314 Co., 22 F.Supp.2d 558 (S.D.Miss.1998). In Nationalcare, the court does not examine the viability of the extension of fraudulent joinder to plaintiffs, but rather assumes that fraudulent joinder of a plaintiff exists and ultimately determines that a resident plaintiff has no standing to sue, thereby denying plaintiffs' motion to remand. Id. Upon careful examination of Nationalcare, this court is not persuaded that it stands for the proposition that there is such a doctrine as fraudulent joinder of a plaintiff. Therefore, this court is not persuaded by Nationalcare to extend the doctrine of fraudulent joinder of defendants to include fraudulent joinder of plaintiffs. Plaintiffs offer two cases in which the issue of fraudulent joinder of a plaintiff arises. See Nelson v. St. Paul Fire & Marine Ins. Co., 897 F.Supp. 328, 331-32 (S.D.Tex.1995) (declining to find that joinder of non-diverse plaintiff was fraudulent where novel issue of state law presented and remanding the case); Glass Molders, Pottery, Plastics & Allied Workers Int'l Union v. Wickes Cos., 707 F.Supp. 174, 181 (D.N.J.1989) (same). The Nelson court assumes the viability of fraudulent joinder of a plaintiff and urges that "a federal district court ought to inquire into improper or fraudulent joinder of plaintiffs as well as improper or fraudulent joinder of defendants where the motive is to defeat federal jurisdiction." Nelson, 897 F.Supp. at 331 (quoting Picquet v. Amoco Prod. Co., 513 F.Supp. 938, 943 (M.D.La.1981)). Other than this suggestion, however, the Nelson court does not address the validity of the rationale underlying the extension of fraudulent joinder to include plaintiffs. Thus, this court remains unpersuaded by Nelson. This court is aware of no case law by either the Eleventh Circuit or any of the district courts within the Eleventh Circuit which addresses the issue of fraudulent joinder of a plaintiff. The court reiterates its finding that a state court motion to dismiss is the proper procedural vehicle through which Defendant Milliken should pursue its claim that JI lacks standing. Based on the foregoing, the court finds that this case is due to be remanded to the Circuit Court of Russell County for adjudication.[5] II. Plaintiffs' Motion For Attorneys' Fees Finally, the court considers Plaintiffs' request for costs and attorneys' fees. Plaintiffs claim that they are entitled to such an award because "[t]here is little question that this case should not have been removed from the Circuit Court of Russell County, Alabama" and because "[s]ubject matter jurisdiction is patently lacking in this case." (Pls.' Brief at 9-10.) Defendant Milliken argues, however, that Plaintiffs have failed to demonstrate that removal jurisdiction was patently lacking. (Resp. at 17-18). The court finds that Plaintiffs' Motion For Attorneys' Fees is due to be denied. In the Judicial Improvements and Access to Justice Act of 1988 ("JIAJA"), Congress greatly expanded the discretion afforded to federal district courts to award costs and attorneys' fees pursuant to 28 U.S.C. §§ 1446 and 1447, where an action has been improperly removed to a federal court. See Pub.L. 100-702. As a result of the JIAJA, the amended version of § 1447(c) provides, in relevant part, that "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). Whether to award attorneys' fees and costs is within the sole discretion of the trial court. See IMCO USA, Inc. v. Title Ins. Co. of Minn., 729 F.Supp. 1322, 1323 (M.D.Fla.1990). Prior to the 1988 amendment to § 1447(c), most courts did 1315 not include an award of attorneys' fees for improper removal without a showing of bad faith because the statute did not mention attorneys' fees as an available remedy to an improper removal. See Gray v. New York Life Ins. Co., 906 F.Supp. 628, 630 (N.D.Ala.1995) (citing Bucary v. Rothrock, 883 F.2d 447, 450 (6th Cir.1989)). Subsequent to the amendment, courts have interpreted § 1447(c) to allow broad discretion to a district court when determining whether to award attorneys' fees. See Gray, 906 F.Supp. at 631 (citing Daleske v. Fairfield Communities, Inc., 17 F.3d 321, 325 (10th Cir.1994)). The standard that has emerged is whether "the defendants in this action acted reasonably on the basis of the information available at the time of removal." Howard Griggs Trucking, Inc. v. American Central Ins. Co., 894 F.Supp. 1503, 1510 (M.D.Ala.1995) (DeMent, J.). More specifically, even though a defendant may have acted in good faith, a district court may award attorneys' fees against a defendant for improper removal where subject matter jurisdiction is "patently lacking." See Grace v. Interstate Life & Accident Ins. Co., 916 F.Supp. 1185, 1192 (M.D.Ala.1996) (DeMent, J.); Bedford v. Connecticut Mut. Life Ins. Co., 916 F.Supp. 1211, 1217 (M.D.Ala.1996) (DeMent, J.) (finding that "removal jurisdiction was not `patently lacking' because the issue of whether diversity jurisdiction exists ... is far from a simple determination"). In this action, the court finds that, although this case is due to be remanded, removal jurisdiction was not "patently lacking." Despite the court's extreme disappointment with Defendant Milliken's counsel's mischaracterization of the case law as detailed above, the court notes that Defendant Milliken acted reasonably in removing this case on the basis of the information available at the time of removal. Defendant Milliken had a viable, but unsuccessful, argument in advocating for an expansion of the law. Specifically, although the court is not persuaded by Defendant Milliken's arguments in support of the issue of fraudulent joinder of a plaintiff, Defendant Milliken did present one case, albeit from the Southern District of Mississippi, in which the court addresses the issue of fraudulent joinder of a plaintiff. Because the Eleventh Circuit has not yet addressed the issue of fraudulent joinder of a plaintiff, and because case law relevant to this issue, though sparse, exists in at least the three district courts outside of the Eleventh Circuit brought to the court's attention by the Parties, the court finds that Defendant Milliken had a reasonable and justifiable basis on which to remove this case. The court reminds Defendant Milliken that having a reasonable basis pursuant to which to remove a case does not give counsel license to blatantly distort the unambiguous meaning of the law in so removing. Indeed, Plaintiffs do not argue specifically to the court that fraudulent joinder of a plaintiff is not a proper ground for removal. Rather, Plaintiffs argue that fraudulent joinder of a plaintiff should be addressed by the court in the same fashion as fraudulent joinder of a defendant, stating: To the extent that the Defendants may argue that the alleged fraudulent joinder of a Plaintiff is somehow different from where it is alleged that a Defendant has been improperly joined, Plaintiff would direct the Courts [sic] attention to [certain cases addressing the issue of fraudulent joinder of a plaintiff]. (Pls.' Brief at 3 n. 3.) Thereafter, Plaintiffs argue that Defendant Milliken fails to cite any Eleventh Circuit cases in which the court found a plaintiff to be fraudulently joined. (Reply at 3.) Thus, because neither Defendant Milliken nor Plaintiffs dispute the existence of the doctrine of fraudulent joinder of a plaintiff, the court finds that the possibility of removal jurisdiction is not patently lacking. Based on the foregoing, the court finds that Plaintiffs' Motion For Attorneys' Fees is due to be denied. 1316 ORDER It is therefore CONSIDERED and ORDERED that Plaintiffs' Motion To Remand be and the same is hereby GRANTED, and that this action be and the same is hereby REMANDED to the Circuit Court of Russell County, Alabama, pursuant to 28 U.S.C. § 1447(c). The Clerk of Court is DIRECTED to take all steps necessary to effectuate said remand. It is further CONSIDERED and ORDERED that Plaintiffs' Motion For Attorneys' Fees be and the same is hereby DENIED. NOTES [1] The issue of requisite amount in controversy is not in dispute in this action. Accordingly, the court focuses on the alleged diversity of citizenship. [2] The court notes that Plaintiffs state that JIA has its corporate office in Columbus, Georgia. However, the issue of JIA's Alabama citizenship is undisputed because JIA is an Alabama corporation with its principal place of business in Alabama. (Compl.¶ 2.) [3] Decisions of the former Fifth Circuit rendered prior to October 1, 1981, constitute binding authority in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc). [4] The court notes that, rather than invoking this court's jurisdiction by filing a Notice Of Removal, Defendant Milliken more properly should have filed a Motion To Dismiss Plaintiff JI in the Circuit Court of Russell County based upon an alleged lack of standing. Indeed, in its Response, Defendant Milliken argues that "[t]he issue before the Court is whether a parent holding company (Johnston) [JI] has standing to initiate a claim for alleged injuries sustained solely by its wholly-owned operating subsidiary (JI Alabama) [JIA]." (Resp. at 1.) Assuming arguendo that the Circuit Court found that Plaintiff JI lacks standing in this lawsuit, Defendant Milliken then could have removed this case to federal court based upon diversity jurisdiction. Defendant Milliken, by first filing a motion to dismiss in state court, however, would not have jeopardized its ability to remove this case. Specifically, Defendant Milliken would have had thirty days from the time it first learned that JI was no longer a Plaintiff and, therefore, that the case was removable, to file such notice of removal. Section 1446(b) recognizes that there may be instances in which a defendant is not aware from the initial pleading that a case is removable, stating: If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of [diversity] jurisdiction ... more than 1 year after commencement of the action. 28 U.S.C. § 1446(b). Plaintiffs filed their Complaint on October 7, 1998, which would have provided Defendants up to one year from that date within which to file a notice of removal, subject to the thirty-day limitation. [5] The court notes that Defendant Milliken also requests that the court permit limited discovery on the issue of JI's standing to maintain a claim against Defendants. (Resp. at 15.) The court, however, need not address said request because the court's finding that this case is due to be remanded remains unaffected by the resolution of the standing issue raised by Defendant Milliken.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498547/	45 F.Supp.2d 593 (1999) David Lee NEIGHBORS and, Leslie Ann Neighbors, Plaintiffs, v. PENSKE LEASING, INC., a Pennsylvania Company; National Steel Corporation, a Delaware Corporation; Transportation and Material Handling, a Division of National Steel Corporation; CRA Trailers, Inc., a Georgia Corporation f/k/a Great Dane Trailers, Inc.; General Electric Capital Corporation, a Delaware Corporation; Sturdy-Lite, Inc., a Tennessee Corporation; DNN Galvanizing Corporation, an Ontario Corporation; and DNN Galvanizing Limited Partnership, an Ontario Limited Partnership; Jointly and Severally, Defendants. No. 97-CV-75449-DT. United States District Court, E.D. Michigan, Southern Division. March 18, 1999. 594 Fred A. Custer, Materna, Custer and Associates, Madison Heights, MI, for Plaintiffs. Bret A. Schnitzer, Melican & Schnitzer, P.C., Detroit, MI, Co-Counsel for Plaintiffs. Gerald V. Padilla, Siemion, Huckabay, Baiter, Padilla, Morganti & Bowerman, P.C., Southfield, MI, for DNN. Dennis G. Bonucchi, Gerald E. Szpotek, Jr., Clark Hill, P.L.C., Birmingham, MI, for Defendants National Steel Corporation, Transportation and Material Handling, a Division of National Steel Corporation, Penske Truck Leasing Co., L.P. and General Electric Capital Corporation. Elaine S. Wright, Darice E. Weber, Bowman and Brooke L.L.P., Detroit, MI, for Defendants Great Dane. Jerome A. Galante, Plunkett & Cooney, PC, Detroit, MI, for Sturdy-Lite, Inc. OPINION DUGGAN, District Judge. This matter is currently before the Court on defendants DNN Galvanizing Corporation's and DNN Galvanizing Limited Partnership's (collectively "defendants") motion to dismiss and/or partial motion for summary judgment. Defendants contend that this Court is without personal jurisdiction over them, venue is improper in this district, and the Canadian statute of limitations has run on plaintiffs' cause of action. In addition, defendants seek an order from this Court quashing service of process for an alleged failure to comply with Article 3 of the Hague Convention. Plaintiffs have filed a response in opposition to defendants' motions. The Court entertained oral argument on the defendants' motions on December 17, 1998. Because the Court is without personal jurisdiction over the DNN defendants, the Court grants the DNN defendants' motion to dismiss for lack of personal jurisdiction. Background Plaintiffs' complaint is premised upon a July 31, 1995 accident in which plaintiff David Neighbors sustained an injury while climbing onto the bumper of a flat bed trailer. Plaintiff is a truck driver who transported a load of steel on the flat bed trailer and delivered it to the DNN defendants' premises in Windsor, Ontario, Canada. Plaintiff was employed by Vanguard Services and the trailer plaintiff was operating at the time of his injury was owned by defendants Penske Leasing, Inc. ("Penske") and General Electric Capital Corporation ("General Electric"). (Pls.' Br. in Opp. to Dfs.' Part.Mot.Summ.J. at 9). Penske and General Electric leased 595 the trailer to defendants Transportation and Material Handling ("TMH") and National Steel, Inc. ("National"). Id. At the time of the injury, the flat bed trailer was located on the DNN defendants' premises in Windsor. The DNN defendants are engaged in the business of galvanizing steel. According to defendants, "[s]teel companies bring rolls of steel to DNN on flat bed trailers. The steel is dropped off for processing and picked up after it has been galvanized." (Dfs.' Br. in Supp.Part.Mot.Summ.J. at 9). On the date of the injury, plaintiff was delivering a load of steel to defendants and attempted to climb onto the flat bed trailer to remove a tarp covering the steel. Plaintiff allegedly slipped and fell during this process sustaining severe injury. Discussion Personal Jurisdiction The DNN defendants seek dismissal of this action contending that this Court is without personal jurisdiction. According to defendants, the facts in the record will not support this Court's exercise of either general or limited[1] personal jurisdiction. With respect to the exercise of general jurisdiction, defendants maintain that they are not incorporated in the state of Michigan, they have not consented to suit in Michigan, nor do they carry on "continuous or systematic" business in the state of Michigan. (Dfs.' Br. in Supp.Part.Mot. Summ.J. at 13). In addition, defendants maintain that the facts do not warrant the exercise of limited jurisdiction. Defendants maintain that they do not advertise in Michigan, own any delivery trucks in Michigan, nor do they have a sales representative present in Michigan. Further, defendants allege that the tort forming the subject matter of the lawsuit occurred in Windsor, Ontario, Canada, and defendants do not contract to insure any person in the state of Michigan, nor do they enter into contracts for performance of services in the state of Michigan. Id. The plaintiff has the burden of establishing the Court's jurisdiction over the defendants, and when faced with a properly supported Rule 12(b)(2) motion, the plaintiff must set forth facts establishing personal jurisdiction. Id. at 1458. Where, as in this case, the court does not hold an evidentiary hearing on the matter, "the court must consider the pleadings and affidavits in a light most favorable to the plaintiff.... To defeat such a motion, [the plaintiff] need only make a prima facie showing of jurisdiction." Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir.1998) (quoting CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996)). A prima facie showing requires the plaintiff to "`demonstrate facts which support a finding of jurisdiction....'" Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir.1980) (quoting Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir.1977), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981)).[2] Furthermore, a court does not weigh the controverting assertions of the party seeking dismissal. Dean, 134 F.3d at 1272 (quoting CompuServe, Inc., 89 F.3d at 1262). Therefore, in order to decide this motion, the Court must ascertain only whether plaintiffs have established a prima facie case of personal jurisdiction. The Court will review the pleadings, including the deposition testimony offered by plaintiffs, in a light most favorable to plaintiffs, to determine whether plaintiffs have adduced 596 sufficient facts on which the Court can conclude it is appropriate to exercise personal jurisdiction over the DNN defendants. Plaintiffs argue for the presence of both general and limited jurisdiction. The Due Process clause permits a Court to exercise both general and limited jurisdiction. However, "[i]n analyzing the due process limits of personal jurisdiction, a distinction is made between `general' jurisdiction and `specific' jurisdiction." Conti v. Pneumatic Prod. Corp., 977 F.2d 978, 981 (6th Cir.1992) (citing Third Nat'l Bank in Nashville v. WEDGE Group, Inc., 882 F.2d 1087, 1089 (6th Cir.1989)). "General jurisdiction exists when a defendant has `continuous and systematic contacts with the forum state sufficient to justify the state's exercise of judicial power with respect to any and all claims.'" Aristech Chem. Int'l, Ltd. v. Acrylic Fabricators, 138 F.3d 624, 627 (6th Cir.1998) (quoting Kerry, 106 F.3d at 149). By contrast, "[s]pecific jurisdiction ... subjects the defendant to suit in the forum state only on claims that `arise out of or relate to' a defendant's contacts with the forum" Id. (quoting Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 & n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). In Michigan, general personal jurisdiction over a corporate defendant is governed by MICH.COMP.LAWS § 600.711 which provides: The existence of any of the following relationships between a corporation and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise general personal jurisdiction over the corporation and to enable such courts to render personal judgments against the corporation. (1) Incorporation under the laws of this state. (2) Consent, to the extent authorized by the consent and subject to the limitation provided in section 745. (3) The carrying on of a continuous and systematic part of its general business within the state. MICH.COMP.LAWS § 600.711. With respect to § 600.711(1), it is clear from the record that the DNN defendants are not incorporated in the state of Michigan. The DNN defendants have not consented to suit in the state of Michigan so as to fall within the purview of § 600.711(2). Further, the DNN defendants do not carry on a "continuous and systematic" portion of their business in Michigan. As discussed infra, the record reveals that the DNN defendants galvanize steel which has been transported to their facility in Windsor, Ontario. The DNN defendants do not engage in any solicitation of business in the state of Michigan; nor do they contract for the delivery of the steel to Michigan. Therefore, in view of the record currently before the Court, this Court is unable to exercise general personal jurisdiction over the defendants. In addition, plaintiffs argue that the facts of the present case warrant this Court's exercise of limited jurisdiction over the DNN defendants. The exercise of limited jurisdiction over a corporate defendant is governed by MICH.COMP.LAWS § 600.715 which provides: The existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such corporation and to enable such courts to render personal judgments against such corporation arising out of the act or acts which create any of the following relationships: (1) The transaction of any business within the state. (2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort. (3) The ownership, use, or possession of any real or tangible personal property situated within the state. 597 (4) Contracting to insure any person, property, or risk located within this state at the time of contracting. (5) Entering into a contract for services to be performed or for materials to be furnished in the state by the defendant. MICH.COMP.LAWS § 600.715. Plaintiffs contend that the DNN defendants transact business within the state as evinced by the joint venture relationship between DNN and defendant National. Second, plaintiffs contend that in order to effectuate the joint venture, DNN engages in daily telephone, mail, and electronic contact with defendant National in Michigan. Therefore, plaintiffs argue that subsection one of Michigan's long-arm statute is satisfied. "A federal district court sitting in diversity must apply the law of the forum state to determine whether it may exercise jurisdiction over the person of a non-resident defendant. However, constitutional concerns of due process limit application of this state law." Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir.1991) (citations omitted). In Michigan, "[a] personal jurisdiction analysis is a two-fold inquiry: (1) do the defendant's acts fall within the applicable long-arm statute, and (2) does the exercise of jurisdiction over the defendant comport with due process?" Green v. Wilson, 455 Mich. 342, 347, 565 N.W.2d 813 (1997) (citing Starbrite Distributing, Inc. v. Excelda Mfg. Co., 454 Mich. 302, 562 N.W.2d 640 (1997)). Therefore, in this Court, the defendant must be subject to the Court's jurisdiction under both Michigan's long-arm statute and the Due Process Clause. See Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 149 (6th Cir.1997). The Michigan Supreme Court has construed Michigan's long-arm statutes to bestow the broadest possible grant of personal jurisdiction consistent with due process. Sifers v. Horen, 385 Mich. 195, 188 N.W.2d 623, 624(Mich.1971). Where a state's long-arm statute extends to the constitutional limits of the Due Process Clause, the two inquiries merge; courts must only determine whether an assertion of personal jurisdiction over the defendant violates the Due Process Clause. Nationwide Mut. Ins. Co. v. Tryg Int'l Ins. Co., 91 F.3d 790, 793 (6th Cir.1996). The Due Process Clause requires that plaintiffs establish a defendant's minimum contacts with the forum state sufficient to comport with "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). The Sixth Circuit requires satisfaction of the following three criteria: First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Southern Mach. Co. v. Mohasco Indus., 401 F.2d 374, 381 (6th Cir.1968). Because the Court believes that its exercise of personal jurisdiction over the DNN defendants would offend the Due Process Clause, the Court will confine its analysis to the constitutionality of personal jurisdiction. In order to be subject to personal jurisdiction, a defendant must "purposefully avail[] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). On the facts presented by the parties in the pleadings, it is clear that the DNN defendants have not "purposefully availed" themselves of the benefits or protections of Michigan law. 598 Plaintiffs stress that the DNN defendants operate a steel galvanizing facility at which a substantial portion of National's steel is galvanized. However, the Sixth Circuit has held that the amount of business conducted with the non-resident defendant is not supportive of a purposeful availment argument. "It is the `quality' of [the] `contacts,' and not their number or status, that determines whether they amount to purposeful availment." CompuServe, Inc., 89 F.3d at 1265 (quoting Reynolds v. Int'l Amateur Athletic Fed'n, 23 F.3d 1110, 1119 (6th Cir.1994) and LAK, Inc. v. Deer Creek Enters., 885 F.2d 1293, 1301 (6th Cir.1989), cert. denied, 494 U.S. 1056, 110 S.Ct. 1525, 108 L.Ed.2d 764 (1990)). In addition, the record is devoid of any evidence that DNN solicited this business from National in Michigan. The Sixth Circuit addressed the relevancy of solicitation in determining the existence of purposeful availment and stated, "the question of which party solicited the business interface is irrelevant, so long as defendant then directed its activities to the forum resident." Lanier v. American Bd. Of Endodontics, 843 F.2d 901, 910 (6th Cir.1988) (emphasis added) (citing Southern Machine, 401 F.2d at 382.). There are no facts presented by the pleadings that show the defendants directed their activities to National. In fact, DNN notes in its supplemental brief that it is merely set up to galvanize the steel and does not even own the trucks on which the steel is transported to its Windsor, Ontario facility. (Dfs.' Supp.Br. in Sup. Mot. for Part. Summ. J. at 3). While it is true that National and DNN are engaged in a joint venture, plaintiffs have failed to demonstrate how this venture implicates any contact on behalf of DNN with the forum state. Plaintiffs have failed to present to the Court any authority for the proposition that the existence of a joint venture between a Michigan corporation and a Windsor, Ontario corporation, standing alone, is sufficient to subject the Canadian corporation to personal jurisdiction.[3] Instead, to establish its prima facie case, plaintiffs rely on the deposition testimony of Pamela Bone, shipping administrator of DNN Limited Partnership and Come Belisle, vice president and general manager of DNN Limited Partnership, both of whom described the nature of the defendants' contacts with the state of Michigan.[4] According to Mr. Belisle, DNN Limited Partnership is engaged in the business of galvanizing steel for two primary customers, defendant National, and Dofasco. (Belisle Dep. at 5). Defendant National is a steel mill located in Ecorse, Michigan. (Belisle Dep. at 7). According to Belisle, defendant DNN Limited Partnership receives steel from defendant National and Dofasco and applies a zinc coating to the steel and the steel is then returned to the respective corporation. (Belisle Dep. at 5). In addition, Ms. Bone testified that defendant National 599 places a work order with defendant DNN Limited Partnership via facsimile which is then filled at the Windsor facility. (Bone Dep. at 6-7). Ms. Bone also stated that regular telephone conversations occur between National in Ecorse, Michigan and DNN Limited Partnership in Windsor, Ontario. (Bone Dep. at 8). Despite plaintiffs' reliance on it to the contrary, this Court is of the opinion that the deposition testimony of Ms. Bone and Mr. Belisle, viewed in a light most favorable to plaintiffs, fails to reveal the existence of any purposeful availment of the forum state by defendants. The plaintiffs' reliance on the frequent communications between DNN and National is misplaced. In Walker Motorsport, Inc. v. Henry Motorsport, Inc., No. 95-2250, 110 F.3d 66, 1997 WL 148801, at 3 (6th Cir. March 31, 1997), the Sixth Circuit rejected a similar argument where a plaintiff attempted to rely on telephone correspondence with a sponsor in Michigan stating, "`[t]he telephone calls and letters on which the plaintiff's claim of jurisdiction primarily depends strike us as precisely the sort of `random,' `fortuitous' and `attenuated' contacts that the Burger King Court rejected as a basis for haling non-resident defendants into foreign jurisdictions.'" Id. (quoting LAK, supra). See also Reynolds, 23 F.3d at 1119 (holding that phone calls and letters alone cannot provide the requisite minimum contacts to satisfy due process). Moreover, the Court finds plaintiffs' reliance upon the Sixth Circuit's decision in Theunissen v. Matthews, 935 F.2d 1454 (6th Cir.1991) similarly unavailing. In Theunissen, a truck driver injured his hand while delivering a load of lumber to a Canadian corporation for processing and ultimate delivery to Westland, Michigan. The Canadian corporation moved for dismissal contending that the Court was without personal jurisdiction. The Sixth Circuit denied defendant's motion to dismiss for lack of jurisdiction because the Court was persuaded by the quality of defendant's alleged contacts with the State of Michigan. Most notably, the court highlighted, "Matthews has maintained a residence in Michigan and contracted with common carriers and other firms. These allegations alone might suffice to establish purposeful availment." Theunissen, 935 F.2d at 1460. The truck driver in Theunissen was employed by a company with whom the defendant Matthews contracted to transport lumber to and from its Canadian facility. By contrast, in the case sub judice, plaintiff was not employed by a transportation company in contract with the DNN defendants. The trailer operated by plaintiff was owned by defendants Penske and General Electric and leased to defendants TMH and National. The DNN defendants do not engage in any contract for the transport of steel to and from their facility.[5] Further, as previously highlighted by the Court, plaintiff has failed to establish any contact on the part of defendants with the State of Michigan. Thus, Theunissen is factually inapposite to the instant case.[6] In sum, as the presence of the first Southern Machine[7] factor is completely 600 lacking, the Court will not engage in a discussion of the remaining factors. In this Court's opinion, its exercise of personal jurisdiction over the DNN defendants would offend the Due Process Clause; thus, the Court declines to exercise jurisdiction over the DNN defendants and will dismiss plaintiffs' complaint as to the DNN defendants. Conclusion For the reasons stated herein, the DNN defendants' motion to dismiss is granted. An Order consistent with this opinion shall issue forthwith. NOTES [1] The Court notes that Michigan courts use the term limited personal jurisdiction synonymously with the term "specific" personal jurisdiction. See Green v. Wilson, 455 Mich. 342, 565 N.W.2d 813 (1997). Throughout this opinion, the Court will use the term "limited" personal jurisdiction to refer to "specific" personal jurisdiction. [2] If a district court does hold an evidentiary hearing on the personal jurisdiction issue, the plaintiff must show by a preponderance of the evidence that jurisdiction exists. Welsh, 631 F.2d at 439. [3] Although not issues of joint venture, the courts have addressed related issues of whether controlling interests or ownership of shares constitutes purposeful availment. The Sixth Circuit has held that controlling interests do not constitute purposeful availment. See Dean, 134 F.3d at 1273-4 ("a company does not purposefully avail itself merely by owning all or some of a corporation subject to jurisdiction."). The United States Supreme Court has held that ownership of shares does not constitute purposeful availment. See Shaffer v. Heitner, 433 U.S. 186, 216, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) (ownership of shares does not constitute purposeful availment). Therefore, it is unlikely that a joint venture, standing alone, is sufficient to demonstrate purposeful availment. [4] The Court is unable to glean from the pleadings before it the precise nature of the corporate relationship existing between DNN Galvanizing Corporation and DNN Limited Partnership. However, the Court notes that in a July 17, 1998 Order from Magistrate Judge Komives permitting plaintiffs to file a third amended complaint, Judge Komives states that DNN Galvanizing Corporation is the general partner of DNN Galvanizing Limited Partnership. (Df. National Steel's Mot. to Strike Ex. A). [5] Plaintiffs allege that "DNN specifically contacted Michigan-based TMH to order transportation of the steelduring which Plaintiff was injured." (Pls.' Sec.Supp.Br. in Opp. Dfs.' Mot.Part.Summ.J. at 4) (citing Bone Dep. at 8-9). A review of this portion of Bone's deposition testimony reveals that she calls TMH, on behalf of defendant National, to apprise TMH as to whether a load is available for pick-up on a certain day. Bone did not testify as to the presence of any transportation agreement between the two companies. [6] The Court notes that on appeal following remand, the Sixth Circuit affirmed the district court's determination that it lacked personal jurisdiction over the Canadian defendant. See Theunissen v. Matthews, No. 92-1271, 992 F.2d 1217, 1993 WL 100060 (6th Cir. Apr.5, 1993). [7] As the Court has determined that the DNN defendants did not purposefully avail themselves of the privilege of acting in the forum state or causing a consequence in the forum state, the Court will not engage in an analysis of the remaining Southern Machine factors. However, the Court concludes that it logically follows that the record fails to evince that plaintiff's cause of action for personal injury arose from any activity on behalf of the DNN defendants in Michigan. Thus, the Court also concludes that the exercise of jurisdiction over the DNN defendants would be unreasonable given the absence of connection between the forum state of Michigan and any acts of the DNN defendants.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498548/	45 F.Supp.2d 509 (1998) John S. OWENS, Billy S. Owens, Austin Blaine Owens, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, FARM SERVICE AGENCY, Defendant. No. Civ.A. 96-0147-A. United States District Court, W.D. Virginia, Abingdon Division. August 26, 1998. 510 Stephen Marshall Quillen, Lebanon, VA, for plaintiffs. Julie C. Dudley, Stephen U. Baer, Asst. U.S. Atty's, Roanoke, VA, for defendant. MEMORANDUM OPINION GLEN M. WILLIAMS, Senior District Judge. Plaintiffs filed this action challenging the final decision of the United States Department of Agriculture ("USDA") denying an allotment to raise tobacco on Plaintiffs' property. This Court exercises jurisdiction pursuant to 7 U.S.C. § 1365. I. Facts and Procedural History The production of burley tobacco in the United States is closely regulated by the USDA. See 7 C.F.R. Pts. 718[1] and 723. As part of the regulatory scheme, that agency administers an allotment system that controls the amount of tobacco that can be produced and sold from each farm. Id. When, as in this case, a tobacco-producing farm is divided into several smaller farms, or "reconstituted," the tobacco allotment must be divided as well. 7 C.F.R. §§ 718.201-204. This allocation is performed by a sub-division of the USDA, the Farm Service Agency ("FSA") for the appropriate county or counties. In November 1995, a large tobacco farm in Russell County, Virginia, was divided into three smaller farms and sold to separate individuals. The Plaintiffs purchased a tract of approximately 65 acres, and subsequently requested that the Russell-Wise-Dickenson Farm Service Agency reconstitute the farm and assign quotas for production of tobacco. The FSA may use one of several methods to reconstitute a farm. Under the 1996 regulations, the methods in order of preference were the "estate," "designation by landowner," "contribution," "cropland," and "history" methods. 7 C.F.R. § 719.8(a) (1996). The FSA must use the first applicable method. 7 C.F.R. § 718.201(a). In this case, the first applicable method of reconstituting the Plaintiffs' farm was the "cropland" method.[2] Under the "cropland" analysis, the newly-created smaller farm is assigned a tobacco quota in the same proportion that the cropland contained in the newly-created farm bears to the cropland that was contained in the original farm. 7 C.F.R. § 718.205(f)(1). For example, if the newly-created farm contains thirty percent of what was the cropland of the original farm, then the newly-created farm will be assigned 511 thirty percent of the original farm's tobacco allotment. "Cropland" is defined in pertinent part as land which is either "currently[3] being tilled for the production of a crop for harvest [or][i]s not currently tilled, but it can be established that such land has been tilled in a prior year and is suitable for crop production." 7 C.F.R. § 718.2. The Russell-Wise-Dickenson FSA determined that Plaintiffs' 65 acre tract contained no cropland, and thus assigned no tobacco quota. Plaintiffs exhausted the administrative appeals process, arguing at each level that the farm does indeed contain cropland within the meaning of 7 C.F.R. § 718.2. Specifically, Plaintiffs have offered undisputed evidence that portions of their farm is suitable for crop production and was suitable at the time of reconstitution, and that the land was used to grow wheat, corn, oats, orchard grass, clover, and other crops at various times in the 1960's. The government does not dispute that the land is and was suitable for production, and that crops were grown on the land in the 1960's, but maintains that such attenuated use does not satisfy the requirement that the land have been tilled in a "prior year." Plaintiffs sought review of the agency determination by the U.S. District Court in August, 1996. Both parties have moved for summary judgment. II. Standard of Review and Summary Judgment Standard The factual findings by the FSA are entitled to great deference. If these findings are supported by substantial evidence, then they are ordinarily not to be disturbed by a reviewing court. 7 U.S.C. § 1366. Rather, a reviewing court should limit its inquiry to questions of law. Id. It is a well-settled principle that a reviewing court will defer to reasonable interpretations by an agency of a statute that it administers. Nat'l. Railroad Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407, 417, 112 S.Ct. 1394, 1401, 118 L.Ed.2d 52, 65-66 (1992); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694, 703 (1984). However, deference is not appropriate if the interpretation chosen by the agency is unreasonable or in conflict with the plain language of the statute. Nat'l Railroad Passenger Corp., 503 U.S. at 417, 112 S.Ct. at 1394, 118 L.Ed.2d at 66; K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 292, 108 S.Ct. 1811, 1818, 100 L.Ed.2d 313, 324 (1988). Summary judgment is proper when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-2510, 91 L.Ed.2d 202, 211 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986). In deciding a motion for summary judgment, a court must view all evidence and inferences in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, 91 L.Ed.2d at 216. III. Law and Discussion As is evident from the facts recited above, this case hinges on the definition of the term "prior year" as it applies to the "cropland" method of reconstitution. The regulations do not supply a definition of this term. Plaintiffs have shown without contradiction that crops were grown on the land in the 1960's, and thus argue that, according to the plain language of the statute, crops were grown on the land in a "prior year." The USDA argues that it is unreasonable for the term "prior year" to encompass "the past five, ten, twenty, thirty, or one hundred years." Def. Motion for Sum.J. at 12. Rather, the USDA contends that "prior year" should be determined by *512 reference to another method of reconstitution, the "history" method. Because the various methods of reconstitution are to be used in a certain order of priority, the "history" method is not normally used if the "cropland" method is applicable. 7 C.F.R. § 718.205(a). Nevertheless, the USDA argues that certain language found in the "history" method is instructive here. The "history" method, at least at the time this action was commenced, required the use of "base periods" for each crop to determine what use has been made of land in recent history. 7 C.F.R. § 719.8(g) (1996). Quotas for tobacco production would then be assigned with reference to this use. The "base period" for burley tobacco is three years. 7 C.F.R. § 723.104. Relying on this, the USDA argues that this land can be said to have been tilled in a "prior year" only if it was tilled during the three years immediately prior to reconstitution. Since it is undisputed that crops were not grown on the Plaintiffs' land at the time of reconstitution or in the three previous years, the USDA contends that as a matter of law the Plaintiffs' land is not "cropland." The USDA's approach is flawed in several respects. First, there is no authority for the importation of definitions from one method of reconstitution to another. The agricultural regulations have never contemplated use of "base period" as a limitation on what constitutes a "prior year." That there is no such interlocking scheme is evidenced by the deletion of any reference to "base period" in the 1998 regulations governing the history method, 7 C.F.R. § 718.205(g), while the "cropland" method remains essentially unchanged, 7 C.F.R. § 718.205(f)(1). Secondly, a court is not at liberty to ignore the plain language of the regulations absent some indication of legislative intent that it do so. The legislature could certainly have defined "prior year" had this been its desire. Indeed, the regulations before 1965 specifically stated that "cropland" was land that was either being tilled for production at the time of reconstitution, or had been tilled in one of the five previous calendar years. 27 F.R. 6482 (1962); see also Slaughter v. Elkins, 260 F.Supp. 835, 836-38 (W.D.Va.1966). Today there is no bright-line definition of "prior year," nor is there any reason to impute to the words a meaning different from that which they commonly have. Finally, the USDA seems to argue that if "prior year" is not somehow limited to a relatively short period, such as the "base period" for a certain crop, then almost any land could qualify as "cropland." However, there are two requirements that must be met before land not currently in production can qualify as "cropland": not only must the land have been tilled in a prior year, it also must be "suitable for crop production" at the time of reconstitution. 7 C.F.R. § 718.2. In many cases the suitability requirement would operate to defeat a claim based on farming that occurred in the extremely distant past, because in many cases land which was last farmed a century ago would not remain suitable for crop production today. It is therefore not necessary to impose an artificial limitation on the term "prior year." IV. Conclusion The Plaintiffs have shown, and the USDA has admitted, that portions of the land in question here were used to grow crops in the past, and have remained suitable for the growing of crops until the present. Thus, this land is "cropland" within the meaning of 7 C.F.R. § 718.2. There is no question of material fact as to this issue. The Defendant's Motion for Summary Judgment is hereby DENIED, and the Plaintiffs' Motion for Summary Judgment is hereby GRANTED. The case is remanded to the Russell-Wise-Dickenson FSA for determination of a tobacco production allotment in a manner consistent with this opinion. NOTES [1] This action was commenced in late 1995, and the administrative proceedings below occurred in 1996. The 1996 regulations governing reconstitution of tobacco quotas were set out in 7 C.F.R. Pt. 719, whereas the 1998 regulations are set out at 7 C.F.R. Pt. 718. Unless otherwise noted, citation herein will be to the 1998 regulations, which are substantially identical to the earlier regulations. [2] The "estate" method was not applicable because the original farm was not divided in the process of settling an estate. 7 C.F.R. § 719.8(b) (1996). The "designation by landowner" method was not applicable because that method may not be used to divide burley tobacco quotas. 7 C.F.R. § 719.8(c)(6)(i) (1996). The "contribution" method was not applicable because that method only applies when several tracts of land are combined to produce a larger farm. 7 C.F.R. § 719.8(d) (1996). [3] "Currently" means at the time the change requiring the reconstitution occurred. 7 C.F.R. § 718.204(a). In this case, that change was the division and sale of the original farm.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498550/	276 P.3d 838 (2012) STATE v. DUNN. No. 106344. Court of Appeals of Kansas. May 18, 2012. Decision Without Published Opinion Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498555/	45 F.Supp.2d 75 (1999) BIONX IMPLANTS, INC., Bionx Implants, Oy, and Dr. Saul N. Schreiber, Plaintiffs, v. INNOVASIVE DEVICES, INC., Defendant. No. CIV. A. 98-12111-NG. United States District Court, D. Massachusetts. March 16, 1999. Robert J. Muldoon, Jr., Margaret H. Paget, Sherin & Lodgen, Boston, MA, Lynne Darcy, Kenyon & Kenyon, New York City, for plaintiffs. Sarah C. Columbia, Choate, Hall & Stewart, Boston, MA, for defendant. MEMORANDUM AND ORDER GERTNER, District Judge. Plaintiffs, Bionx Implants, Inc., Bionx Implants, Oy, and Dr. Saul N. Schreiber ("Bionx"), seek a Preliminary Injunction enjoining defendant Innovasive Devices, Inc. ("Innovasive") from the manufacture, use, offering for sale, sale or importation of the Innovasive Dart ("Dart"), a product that Bionx claims literally infringes its Patent, No. 4,873,976 ("the Schreiber patent"). Primarily because I hold, for reasons explained below, that Bionx is unlikely 76 to succeed on the merits, Bionx's Motion for a Preliminary Injunction (docket # 3) is DENIED. I. FACTUAL BACKGROUND A. The Devices The Schreiber patent is for a "surgical fastener and method," using a bioabsorbable device for repairing torn body tissues, especially a torn meniscus in the knee. The device is called a Meniscus Arrow ("Arrow"). In simpler language, the Arrow is essentially a barbed, bioabsorbable nail. See Appendix, figures 3-7. It is driven into a torn meniscus, and holds the meniscus together to allow healing to take place. The meniscus is held together because one or more barbs in the device prevent it from sliding out, and the base keeps it from sliding further in. The torn meniscus is therefore squeezed together between the barb or barbs and the base. The Dart serves the same function. It too is a bioabsorbable suture that holds a torn meniscus together so that it can heal. Its configuration, however, is less like a conventional nail. See Appendix. The tip is rather blunt, and coming off the shaft on only one side, are two or three fins. These fins function like the barb or barbs on the Arrow. Some distance below the fins, a gusset or ridge runs down the side of the shaft. At the tail end of the shaft, on the same side as the fins and gusset, a bar sits angled slightly forward towards the tip. The bar serves the same function as the base on the Arrow. B. The Infringement Claim Bionx says that the Dart literally infringes on Claims 1 and 15 of the Schreiber patent because it embodies each element of those Claims. (While Bionx's Complaint says that the Dart infringes the Schreiber patent "literally and/or under the doctrine of equivalents," the preliminary injunction motion is based solely on the grounds of literal infringement.) Claim 1, describing "A single unit suture for body tissue repair," has the following elements: (a) a solid base member for seating against an exterior surface of said tissue; (b) a single rigid shaft portion upstanding from and integrally connected to said base member adapted for insertion into said tissue; and (c) barb means integrally connected to said shaft portion to aid in insertion of said shaft portion into said tissue and to lock said shaft portion into said tissue. Claim 15 has the same elements, but adds that the suture is resorbable in tissue. II. LEGAL STANDARDS The standard for obtaining a preliminary injunction is the same in a patent case as it is in other cases. As the moving party, Bionx has to establish its right to a preliminary injunction based on four factors: "(1) a reasonable likelihood of success on the merits; (2) irreparable harm if the injunction were not granted; (3) the balance of relative hardships tips in its favor; and (4) whether and how an injunction would impact the public interest." Bell and Howell Document Management v. Altek Sys., 132 F.3d 701, 705 (Fed.Cir. 1997). The core of the analysis concerns Bionx's likelihood of success on the merits. There are two steps in determining whether there has been a literal infringement: "The first step is determining the meaning and scope of the patent claims asserted to be infringed. The second step is comparing the properly construed claims to the device accused of infringing." Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995) aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996) (citation omitted). The first step, that of claim construction, is exclusively a question of law for a court to decide. Markman, 517 U.S. at 372, 116 S.Ct. 1384. 77 Bionx has the burden of proving infringement. Glaxo, Inc. v. Novopharm, Ltd., 110 F.3d 1562, 1567 (Fed.Cir.1997). In order to establish literal infringement of Claim 1, Bionx must demonstrate that the accused device, the Dart, "embod[ies] every element of" Claim 1.[1]Mannesmann Demag Corp. v. Engineered Metal Prods. Co., 793 F.2d 1279, 1282 (Fed.Cir.1986). See also Strattec Security Corp. v. General Automotive Specialty Co., Inc., 126 F.3d 1411, 1418 (Fed.Cir.1997). Before determining whether the Dart infringes on every element of Claim 1, I must construe the elements of Claim 1. "It is well-settled that, in interpreting an asserted claim, the court should look first to the intrinsic evidence of record, i.e. the patent itself, including the claims, the specification and, if in the evidence, the procedural history." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). In this case, I have no need to go beyond the intrinsic evidence. III. ANALYSIS A. Success on the Merits 1. Construing the Claim I find that the Dart does not infringe the third element of Claim 1. As such, I conclude that the Dart does not literally infringe on either Claim 1 or Claim 15 of the Schreiber patent. The third element of Claim 1 reads, "barb means integrally connected to said shaft portion to aid in insertion of said shaft portion into said tissue and to lock said shaft portion into said tissue" (emphasis added).[2] One way to make sense of a "barb means" aiding in the "insertion" of the shaft (as well as locking the shaft in place) would be to construe the "barb means" to include the pointed tip at the head of the shaft (along with the portion of the "barb means" which extends out past the shaft itself). The other way is to construe the "barb means" as a structure connected to the shaft that is swept back towards the base so that it minimally resists the insertion of the shaft (while also locking the shaft in place). Bionx would have me read the "barb means" in the second way. This would be consistent with the idea that there can be barbs on places on the shaft other than the tip (See Appendix, figures 4, 6, and 7). But while such a construction meets the second requirement of the element in question "lock[ing] said shaft portion into said tissue" it does not meet the first "aid[ing] in insertion of said shaft portion into said tissue." The first construction of the "barb means," as including the pointed tip, obviously provides a more plausible reading of the concept of aiding in the insertion of the shaft. If the Arrow has a pointed tip, which composes part of the "barb means," then the "barb means" plainly aids in the insertion of the rest of the Arrow. If the "barb means" is construed merely as that part of the barb which is "swept back," then the most that can be said for the 78 "barb means" is that it minimally resists the insertion of the shaft. Bionx objects that I cannot read Claim 1 to include the requirement of a sharply pointed tip because Claim 9 includes that limitation, and this would make Claim 9 superfluous. Claim 9 reads in full: "The suture of claim 1 wherein said barb means comprises a flat triangular point at the end of said shaft portion opposite said base member and having a width greater than said shaft portion" (emphasis added). Bionx is mistaken. Construing the "barb means" in the third element of Claim 1 to include the idea of a pointed end does not make Claim 9 superfluous. Claim 9 specifies that the "barb means" is to have a flat triangular head. Without that extra specification, one could imagine that the "barb means" would be, for example, conic, with the lip of the cone extending out beyond the width of the shaft (see Appendix, figure 5, number 52), or with rod-like extensions protruding beyond the edge of the shaft (like the barbs depicted in Appendix, figure 7, number 62). Indeed, rather than undermine the construction of "barb means" to include the pointed tip, Claim 9 supports the construction of the "barb means" as including the pointed tip. For if there were any question whether the "barb means" must be limited to only that part of the barb which locks the Arrow in place, that question is answered in the negative by Claim 9, which describes the "barb means" more broadly. This construction of the concept of the "barb means" in Claim 1 to include a pointed tip is further confirmed in two ways. First, it is confirmed by comparing Claim 1 with an alternative embodiment of the Arrow, as described in Claim 16 (depicted in Figure 7). Claim 16 has the following three elements: (a) a solid base member having a substantially flat portion for seating against an exterior surface of said tissue; (b) a single, rigid cylindrical shaft portion upstanding from and integrally connected to said base member and having a pointed end for insertion into said tissue; and (c) barb means positioned along said shaft portion. (emphasis added). In this embodiment of the Arrow, what serves "for insertion" (i.e. "aids in insertion") is simply the pointed end. This strongly suggests that the "barb means" referred to in Claim 1 which, rather than the tip of the shaft, is said to "aid in insertion" should be construed as comprising, in part, the pointed tip of the Arrow. Second, the construction of the "barb means" as including the pointed tip allows Claim 1, which provides a general description of one preferred embodiment, to capture an essential feature of the Arrow, namely that it can be pushed into a meniscus in and of itself, without the need for any other devices. This feature of the Arrow was emphasized numerous times in the procedural history ("PH").[3] For example, Dr. Schreiber argued at one point before the Patent and Trademark Office ("PTO") that it "is crucial ... that no unnecessary enlargement of the aperture of the tissue material through which the fastener must pass through [sic] is required." PH at 97. In other words, the Arrow can be inserted without the use of a carrying needle to bring it into position, and thus, without creating a hole in the tissue wider than the Arrow itself. On another occasion, Dr. Schreiber contrasted the Arrow with another suture which has "no teaching of a rigid shaft as claimed by the Applicant which is necessary to have the suture penetrate through the meniscus 79 tear." PH at 42 (emphasis). While neither of these arguments mentions a pointed tip directly, they clearly indicate that the Arrow has to be capable of penetrating meniscal tissue in and of itself, and that in turn implies that the Arrow must have a pointed tip. Construing the "barb means" in Claim 1 to include the pointed tip brings this essential feature of the Arrow already implied with the "aid in insertion" language into the general description of Claim 1. For all of these reasons, I interpret the phrase "a barb means ... to aid in insertion of said shaft" to imply that the barb means comprises not only the projection from the shaft which locks the shaft in place, but also the pointed tip of the shaft. There may be additional barbs on the shaft (as described in Claims 10-12), but they are distinct from the "barb means" described in the third element of Claim 1. 2. Comparing the Dart The Dart quite simply does not infringe the third element of Claim 1. It has a blunt end. It is at least in part because of the blunt end that the Dart has to be inserted using a needle carrier (a device with a sharp tip, in which the Dart sits, and by which the Dart is inserted into positionsee the Appendix). Because of this difference, I conclude that Bionx is not likely to succeed on the merits. B. Conclusion Since I find that Bionx does not meet the "likelihood of success on the merits" test, the public interest resoundingly favors both devices remaining on the market. They both address the problem of holding together a torn meniscus in importantly different ways. The Arrow has the advantage of being inserted with a narrower opening in the meniscus, but it has the disadvantage of having a pointed tip that may cause damage if it somehow works its way through the meniscus. The Dart has the advantage of a blunt tip, but the disadvantage of requiring a needle carrier to be inserted. Patients who need the kind of help that the Arrow and Dart provide, clearly have an interest in having access to whichever device would serve them better. Since I am in no position to say that the Arrow will serve all of these patients better than the Dart, I can only suppose that the public interest overall will be served by leaving the medical community to sort out which device is better under which circumstances. For the foregoing reasons, Bionx's Motion for a Preliminary Injunction (docket # 3) is DENIED. SO ORDERED. *80 APPENDIX NOTES [1] Claim 15 is simply a repeat of Claim 1, with the additional element that the suture is bioabsorbable. Since the Dart is bioabsorbable, infringement will hinge completely on an analysis of Claim 1. [2] Contrary to Innovasive's assertion, this element is not presented in "means-plus-function" language. An element presented in means-plus-function language does not itself "recite a definite structure which performs the described function." Cole v. Kimberly-Clark Corp., 102 F.3d 524, 531 (Fed.Cir.1996), cert. denied, ___ U.S. ___, 118 S.Ct. 56, 139 L.Ed.2d 20 (1997). Put in the context of this case, the issue is whether the word "barb" defines a definite structure for performing the task. I conclude that it does. See Cole, 102 F.3d at 531 ("the `perforation means ... for tearing' element of Cole's claim fails to satisfy the statute [35 U.S. § 112, ¶ 6 (1994)] because it describes the structure supporting the tearing functions (i.e. perforations)"). But the ultimate conclusion here of no infringement would hold even if I concluded that the word "barb" did not include a definite structure, since I would then be directed to refer to the specifications in the patent, which would only further buttress the ultimate conclusion. [3] References to the Procedural History are taken from Tab C in the Affidavit of Sarah Chapin Columbia.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498565/	45 F. Supp. 2d 1088 (1999) UNITED STATES of America, Plaintiff, v. Jorge Carlos RODRIGUEZ, Defendant. No. Civ.A. 92-CR-248-WD. United States District Court, D. Colorado. February 24, 1999. 1089 1090 Joseph T. Urbaniak, Jr., U.S. Atty's Office, Denver, CO, for Defendant. Harvey Abe Steinberg, Springer & Steinberg, P.C., Denver, CO, for U.S. ORDER DOWNES, District Judge. This matter comes before the Court on the parties' Plea Agreement and Stipulation of Facts Relevant to Sentencing. The Court, having carefully reviewed the written materials submitted and the Presentence Investigation Report, having received testimony and heard the oral argument of counsel, and being otherwise fully advised in the premises, FINDS and ORDERS as follows: BACKGROUND Jorge Carlos Rodriguez (hereinafter "Defendant" or "the defendant") was originally charged in a thirteen-count Indictment (hereinafter "original Indictment") in the District of Colorado as follows: a) one count alleging that from June 1989 to July 1992, Defendant conspired to possess with intent to distribute and to distribute five (5) kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and b) seven counts alleging that in June 1989, June 1990, August 1990, June 1991, March 1992, and April 1992, Defendant possessed (or aided and abetted others in possessing) with intent to distribute five (5) kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Following this Indictment, Defendant remained a fugitive for approximately two years. On January 26, 1995, federal authorities arrested Rodriguez in Miami, Florida, at which time he provided the authorities a false address and date of birth. The government later determined that it could not establish venue over conduct charged by a significant portion of the original Indictment. As a result, Defendant was charged in a nine-count Superseding Indictment[1] as follows: a) one 1091 count alleging that from June 1989 through July 1992, Defendant conspired to possess with intent to distribute and to distribute five (5) kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and b) three counts alleging that in June 1989 and June 1990, Defendant possessed (or aided and abetted others in possessing) with intent to distribute five (5) kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The parties subsequently entered into a Plea Agreement and Stipulation of Facts Relevant to Sentencing (hereinafter "Plea Agreement") pursuant to FED.R.CRIM.P. 11(e)(1)(C). In the Plea Agreement, the parties stipulated that in June 1989, Osmay Perez-Herrera (a co-defendant in this case) requested that Mario Lopez drive a tractor-trailer from New York, New York to Los Angeles, California, "pick up a load of cocaine," and return to New York. Defendant Rodriguez traveled separately from New York to Los Angeles in order to assist "in loading the tractor trailer with cocaine" as part of a "business enterprise" for profit, an activity which Defendant knew to be unlawful. The defendant assisted Lopez in loading approximately one hundred (100) kilograms of cocaine onto the tractor-trailer. The parties' stipulated facts, however, grotesquely understate the defendant's relevant conduct. Under the Sentencing Guidelines, the sentencing range for a particular offense is determined "on the basis of all `relevant conduct' in which the defendant was engaged and not just with regard to the offense of conviction." Witte v. United States, 515 U.S. 389, 393, 115 S. Ct. 2199, 132 L. Ed. 2d 351 (1995) (citing U.S. SENTENCING GUIDELINES MANUAL § 1B1.3). A defendant is accountable for all quantities of contraband "with which he was directly involved and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook." Id. With these principles in mind, the record reveals that in 1989, Defendant, a Cuban native, joined a co-defendant's drug-trafficking organization and began using tractor-trailers to transport cocaine across the United States.[2] Defendant has been directly linked to three such shipments between 1989 and 1990, totaling an estimated 899 kilograms of cocaine. In 1990, Defendant established a drug-trafficking organization independent of his co-defendant's organization and began utilizing his own "trucking" business to transport cocaine across the United States. Defendant has been directly linked to seven such shipments (or attempted shipments) between 1990 and 1992, encompassing five shipments of approximately 1,175 kilograms of cocaine, one shipment of 12 "burlap sacks" of cocaine, and one shipment of 1092 an unspecified amount of cocaine.[3] Federal authorities estimate that up to a ton of cocaine per month was transported in this fashion. Transcript # 2 at 34. Overall, the Probation Officer concluded that the defendant was directly involved in the possession or attempted possession of approximately 2,074 kilograms of cocaine, excluding the twelve "burlap sacks" and additional unspecified amount of cocaine.[4] Of this amount, 500 to 600 kilograms of cocaine are "readily provable" against the defendant. Sentencing Transcript of October 21, 1997 (hereinafter "Transcript # 1") at 35, 46; Transcript # 2 at 6-9, 13-14. The government seized approximately $1.5 million in assets connected to the defendant, including residences, condominiums, tractor-trailers, sports cars, jet skis, a long-wheel dragster, and a jeep. Transcript # 2 at 82-83. Pursuant to the terms of the Plea Agreement, Defendant agreed to execute a Waiver of Indictment and plead guilty to a single count of traveling in interstate commerce with the intent to promote or facilitate unlawful activity, a violation of 18 U.S.C. § 1952. The maximum penalty for this offense is not more than five (5) years' imprisonment, a fine not to exceed $250,000, supervised release not to exceed three (3) years, and a $50 special assessment. The defendant further agreed to truthfully debrief, testify for, and cooperate with the government. In turn, the government agreed to file a motion pursuant to U.S. SENTENCING GUIDELINES MANUAL § 5K1.1 (1995) and 18 U.S.C. § 3553(e), recommending that the Court depart downward and sentence the defendant to time served and a term of probation. It further agreed not to prosecute the defendant in the District of Wyoming for conduct underlying the dismissed portion of the original Indictment, and to dismiss the original Indictment and Superseding Indictment altogether following the defendant's sentencing. The parties further stipulated that: (a) Defendant's base offense level is 36; (b) due to the defendant's "minor role in the offense," the base offense level should be reduced to 34; (c) Defendant should receive a three-level reduction for acceptance of responsibility, resulting in a total offense level of 31; (d) the guideline range[5] for a total offense level of 31 is 108 - 135 months' imprisonment,[6] and a fine of between $15,000 - $150,000; (e) the maximum penalty for a violation of 18 U.S.C. § 1952 is sixty (60) months' imprisonment; and (f) pursuant to the Plea Agreement and § 5K1.1 motion, the government has made a binding recommendation of a sentence of imprisonment equivalent to the approximately ten months Defendant spent in pretrial detention, a period of supervised release of not more than three 1093 (3) years, and the requisite special assessment. The Court conditionally accepted the parties' Plea Agreement, and ordered the Probation Officer to prepare a Presentence Investigation Report. Neither party submitted timely objections to the Presentence Investigation Report. Therefore, the Court accepts the factual representations of the Probation Officer as true for purposes of evaluating the Plea Agreement. The Court held a sentencing hearing on October 21, 1997, which was concluded on November 17, 1997. The Probation Officer has evaluated factors applicable to the defendant's sentencing as follows: (a) Defendant's base offense level is 38,[7] which should be enhanced four levels because the defendant was an "organizer or leader" of a criminal activity involving five or more participants, resulting in a total base offense level of 42;[8] (b) Defendant should receive a three-level reduction for acceptance of responsibility, resulting in a total offense level of 39; (c) Defendant qualifies for three criminal history points, warranting a criminal history category of II; and (d) a total offense level of 39, combined with a criminal history category of II, yields a guideline range of 292 - 365 months' imprisonment. Because the statutorily-authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily-authorized maximum sentence of sixty (60) months becomes the applicable guideline sentence.[9] The government argues the following in support of the Plea Agreement: a) the events in this case happened over nine years ago; b) the case against Mr. Rodriguez is a "no dope" case, based almost entirely upon the testimony of other persons who participated in the alleged conspiracy.[10] Accordingly, the case is "readily provable," but only "marginally triable"; c) the defendant assisted in loading and offloading a truck on two occasions, and was a "minor participant" in the conduct charged by the Superseding Indictment; d) Defendant has forfeited all of the assets associated with his alleged conduct, and spent ten (10) months in pretrial detention; e) Defendant gave two sworn statements to the government; and f) several co-defendants who were more culpable than this defendant received immunity or were not prosecuted.[11] 1094 STANDARD OF REVIEW The parties have entered into a plea agreement which provides that a specific sentence is the appropriate disposition of this case. See FED.R.CRIM.P. 11(e)(1)(C). So long as a district court exercises sound judicial discretion in rejecting a tendered plea, Rule 11 is not violated. U.S. v. Robertson, 45 F.3d 1423, 1437 (10th Cir.1995). However, the district court's discretion to reject a plea agreement varies depending on the content of such a bargain. Id. at 1438. Sentence bargains, which are predicated on the guarantee of a particular sentence, implicate the sentencing power of the district court. Id. at 1437. Charge bargains, which are predicated on the dismissal of some counts, implicate the charging power of the executive branch. Therefore, "hybrid" plea agreements in which a defendant agrees to plead guilty to certain charges in exchange for dismissing other charges, and the parties agree to a particular sentence, involve both judicial and prosecutorial discretion. Id. at 1438-39. A Rule 11(e)(1)(C) plea agreement directly and unequivocally infringes on the sentencing discretion of district courts, and rejecting such a plea agreement due to the court's refusal to permit the parties to bind its sentencing discretion constitutes the exercise of sound judicial discretion. Id. at 1439. DISCUSSION The Plea Agreement at issue in this case is a "hybrid" plea agreement, implicating both judicial and prosecutorial discretion. However, certain aspects of the Plea Agreement, including the government's binding sentencing recommendation based primarily on its § 5K1.1 motion, directly and unequivocally infringe upon this Court's sentencing discretion. The government filed a Motion Pursuant to Section 5K1.1 of the Sentencing Guidelines, and Title 18, U.S.C., Section 3553(e), indicating that the defendant provided substantial assistance "to the Government and law enforcement authorities in the investigation or prosecution of other persons" who committed acts in violation of federal criminal law. According to the government, the defendant (a) gave two sworn statements detailing his, and others,' involvement in drug trafficking;[12] (b) is prepared to be called in the future as a witness during the trial of a more culpable co-defendant; and (c) assisted the government in forfeiting approximately $1.5 million in assets related to his unlawful conduct. The government contends that the information Defendant provided is truthful, complete, and reliable. By virtue of its Motion, the government seeks a substantial departure from sixty months' imprisonment (the statutory maximum penalty for the offense to which Defendant has pleaded guilty pursuant to the Plea Agreement) to the approximately ten months' imprisonment the defendant served in pretrial detention. It is worth emphasizing, however, that in effect the Plea Agreement reduces the defendant's sentence from between 292 and 365 months' imprisonment under the applicable U.S. Sentencing Guidelines to a mere ten months' imprisonment. Section 5K1.1 of the U.S. SENTENCING GUIDELINES MANUAL (1995) provides that: Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has 1095 committed an offense, the court may depart from the guidelines. (a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following: (1) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance provided; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;[13] (3) the nature and extent of the defendant's assistance;[14] ** (5) the timeliness of the defendant's assistance. "Section 5K1.1 gives a district court substantial discretion to depart downward from the guidelines after considering a nonexhaustive list of relevant factors including the `significance and usefulness' of the defendant's assistance." U.S. v. Blackwell, 127 F.3d 947, 959 (10th Cir.1997) (citation omitted). The extent of a departure under § 5K1.1 remains within the sentencing court's sound discretion. Id. With regard to Defendant's purported assistance in forfeiting his assets, the AUSA for the District of Colorado discussed Florida's restrictions upon asset forfeitures. Due to such restrictions, title to some of Defendant's assets could not be conveyed to the government without the defendant's assent.[15] Cooperation relating to the forfeiture of assets, however, is not within the purview of U.S. SENTENCING GUIDELINES MANUAL § 5K1.1 (1995). Application Note 2 to § 5K1.1 states that [t]he sentencing reduction for assistance to authorities shall be considered independently of any reduction for acceptance of responsibility. Substantial assistance is directed to the investigation and prosecution of criminal activities by persons other than the defendant, while acceptance of responsibility is directed to the defendant's affirmative recognition of responsibility for his own conduct. The forfeiture of assets is not sufficiently "directed to the investigation and prosecution of criminal activities by persons other than the defendant," but pertain more "to the defendant's affirmative recognition of responsibility for his own conduct." See U.S. v. Sanchez, 927 F.2d 1092, 1093-94 (9th Cir.1991) (holding that assistance provided in a civil forfeiture proceeding is not "substantial assistance" within the meaning of Section 5K1.1, and stating that "by its plain language, Section 5K1.1 applies only to assistance provided in the investigation or prosecution of another person"). The government also asserts that the defendant participated in loading and offloading narcotics on just two occasions, and was a "minor participant" in the conduct charged. The defendant's culpability relative to that of his co-defendants, however, seems irrelevant in evaluating whether the defendant provided substantial assistance to the government. Even if arguably relevant, the record plainly does not support the government's assertions. Considering the defendant's role in the alleged conspiracy, especially his supervision of numerous individuals in furtherance of the conspiracy, it is abundantly 1096 clear that Mr. Rodriguez was not a "minor participant." See U.S. SENTENCING GUIDELINES MANUAL § 3B1.1(a) and Application Note 2 (1995). The Probation Officer testified that, based on his review of court documents and sworn testimony from previous hearings in this case, Defendant "was not a minor participant but was in fact a supervisor or an organizer or leader of the other activities which were dismissed out of the original indictment and which were later brought to Wyoming for review." Transcript # 2 at 76. According to SA Stanfill, Defendant had the ability to directly contact the source of the cocaine (usually Colombian) in Los Angeles, arrange for someone to retrieve the cocaine from the source, arrange the personnel and equipment (by directing the actions of numerous individuals) necessary to transport the cocaine across the United States, and personally assist in loading and unloading the cocaine. Transcript # 1 at 34, 44. SA Stanfill further opines that the defendant is as culpable as several co-conspirators who were indicted and sentenced in this case. Id. at 34. Defendant gave a sworn statement on February 24, 1995,[16] and another sworn statement on March 24, 1995, upon which the government relies heavily to support its § 5K1.1 motion. The statements contain Defendant's somewhat fractured, "piecemeal" colloquy to SA Stanfill and an Assistant United States Attorney; a "debriefing" of sorts. Considering the marginal significance and usefulness of the defendant's sworn statements, as well as the nature and extent of the information provided by Defendant in the statements, the Court concludes that the sworn statements do not warrant a departure for substantial assistance under § 5K1.1. To the extent that the sworn statements may have assisted the government, the assistance provided certainly does not justify a departure of the magnitude the parties seek in this case.[17] In the first statement, Defendant provided general background information about himself, details as to how he began drug-trafficking with his co-defendant, and a general account of his own drug-related activities (some of which appear directly related to the charged conspiracy, and others which seem irrelevant to the charged conspiracy).[18] Defendant also offered to locate a person in Miami who claimed to be a fugitive, but the record does not indicate whether the case agents or the AUSA acted upon this offer. In the second statement, Defendant identified several individuals pictured in photographs, offered hearsay information regarding the murder of a person who had "snitched" concerning a drug "rip-off," a traced the distribution of the drugs which had been "ripped off." He also provided further details concerning his individual drug activities and the logistics of his drug transactions, and summarily named others involved in several transactions. SA Stanfill, who was present during both statements, testified that the defendant's statements did not contribute meaningfully 1097 to his investigation "because most of the information that we talked about was information that we knew of, and during debriefings we were using them to gauge the honesty of Mr. Rodriguez." Transcript # 1 at 35. In other words, "all it did was corroborate what we already ... knew. We weren't there basically to get into new type information or anything proactive. It was just basically to try and verify his truthfulness." Transcript # 2 at 11. Indeed, during Defendant's March 24, 1995 statement, SA Stanfill informed Defendant's counsel that "[y]ou know a lot of stuff that he's telling us he's just corroborating what we already know, so we know it's true." Defendant's Sworn Statement of March 24, 1995 at 88. Defendant's statements are also vague as to the names and identities of his contacts, the time frames of the events he referred to, and the quantity of drugs involved in his activities. In addition, the information provided by Defendant pertained primarily to the defendant himself, not to the investigation and prosecution of other persons. The government contends that the defendant also provided substantial assistance by his willingness to testify at the trial of a more culpable co-defendant. However, the defendant's willingness to testify is not sufficiently significant or useful to constitute "substantial assistance" under § 5K1.1. The Court previously accepted a Rule 11(e)(1)(c) Plea Agreement between the government and this co-defendant which resulted in a sentence of eighty-four (84) months' imprisonment.[19] Further, the defendant's willingness to testify did not contribute meaningfully to the government's ability to obtain a guilty plea from this co-defendant.[20] According to the Probation Officer, the government's evidence against the co-defendant was "very strong" and "Mr. Rodriguez' testimony was really not needed."[21] Transcript # 2 at 81. The AUSA for the District of Colorado apparently concurs, indicating that the case against this co-defendant did not "depend on the testimony of any one witness. There are records, documents and everything and a number of witnesses on him." Id. at 86. A final factor for the Court's consideration is the timeliness of the defendant's assistance. Defendant remained a fugitive for approximately two years until federal authorities arrested him on January 26, 1995. It was only after his arrest, and a two-year foray as a fugitive, that the defendant began to cooperate with the government. This, too, weighs against a finding of "substantial assistance" on behalf of the defendant. The Probation Officer concluded that, based on his review of the record and his discussions with SA Stanfill and the AUSA, he could "not collect any information that would substantiate that ... there was enough cooperation, significant cooperation, to justify a 5K1.1 departure down to the stipulated sentence."[22] Transcript # 2 at 78. For these reasons, the Court cannot accept the parties' Plea Agreement. In so concluding, the Court is mindful of the statement contained in U.S. SENTENCING 1098 GUIDELINES MANUAL § 6B1.2 (1995),[23] which provides that a court may accept a Rule 11(e)(1)(C) plea agreement if it is satisfied that "the agreed sentence is within the applicable guideline range" or "the agreed sentence departs from the applicable guideline range for justifiable reasons." It is readily apparent from the record, particularly the evidence reflecting the relevant conduct attributable to this defendant, that the parties have not satisfied either of these criterion. In response to the Court's concern regarding the disposition of this case in the event that the tendered plea was rejected, the AUSA for the District of Colorado adamantly pronounced "I can't drop the case and I won't drop the case." Transcript # 2 at 83. It remains to be seen whether the government will honor this assertion. The Plea Agreement offered by the parties in this case implicates several dangers associated with accepting plea agreements that drastically depart from the Sentencing Guidelines. While some courts may be willing to stray far from the Guidelines, utilizing Rule 11(e)(1)(C) as a vehicle to reach what is perceived to be "more acceptable" sentencing results, the recommended sentence in the instant case is patently unacceptable and impinges upon the very concept of justice. While the Court is cognizant of the need for flexibility in obtaining guilty pleas and the government's substantial discretion in such matters, a judge's already-restricted sentencing discretion is often too easily surrendered. Proceedings before this Court suggest that in the everyday application of the Guidelines to the all-encompassing drug conspiracy charge, "nickeland-dime" drug addicts suffer the full force of mandatory minimum sentences based on their relevant conduct. At the same time, guilty pleas obtained through contrived charges, "substantial assistance" departures and drastically-reduced Rule 11(e)(1)(C) sentence recommendations allow the government to extend benefits to significantly more culpable conspirators. As defense counsel aptly admits, "this is a capitalist system, and the one who has the most gets the most." Transcript # 2 at 88. The instant case is a glaring example of this practice, and baldly undermines the legal principles and policies established by the United States Sentencing Commission. CONCLUSION Few federal laws have been more heatedly debated in legal circles than has the Sentencing Reform Act of 1984. The law remains widely unpopular among District Judges and it is not surprising that some attempt to wriggle free of the Act's most onerous provisions. Indeed, the Supreme Court's decision in Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996), is widely perceived as marking the triumphant return of discretion to sentencing judges. In the opinion of this judge, however, the promise of Koon remains largely illusory. It cannot be overlooked that the Sentencing Commission, by 1099 administrative flat, can always slam shut the already narrow window of opportunity for the sound exercise of judicial discretion. Nonetheless, however disgruntled this Court or any other court may be regarding the efficacy and fairness of the current Sentencing Guidelines, such displeasure does not give license to avoid the law. Resisting the temptation to skirt the law is made undeniably more difficult by prosecutors who invite a judge to engage in questionable sentencing practices. Their siren's song may contain any number of appealing themes, including: "The sentence is too harsh and equity dictates that the Court accept a 5K1.1 Motion for Downward Departure to achieve a more desirable result." (turning a blind eye to the Motion's obvious infirmities) "Don't tag the defendant with the full extent of his complicity in drug trafficking, because the full amount of drugs initially seized are not readily provable as to this defendant." (even if the evidence is clearly to the contrary). "Technically speaking, Judge, the sentence is not contemplated by the guidelines, but there is no cause for worry because neither the prosecution nor the defendant will appeal." (put another way, "So what if the sentence is unlawful, what the Court of Appeals doesn't know, won't hurt it.") It is essential, however, that sentencing judges blow the whistle in those instances where, as here, the Guidelines are being circumvented. Judicial defiance and prosecutorial chicanery, concealed from the scrutiny of appellate judges and the Sentencing Commission, even if for reasons which seem palatable, will not incite reform. While Congress sought national uniformity in sentencing similarly situated defendants and, to that end, constrained the discretion of federal judges, it has perhaps unwittingly given enormous, often unfettered, discretion to federal prosecutors. In the long term, this quantum shift of judicial authority into the hands of the executive branch may have a most profound and pernicious effect upon our criminal justice system. To accept the Plea Agreement in this case would only further denigrate the role of this federal judge in the sentencing process. THEREFORE, it is hereby ORDERED that the parties' Plea Agreement is REJECTED. It is further ORDERED that, pursuant to FED. R.CRIM.P. 11(e)(4), the defendant may withdraw his guilty plea. NOTES [1] The Assistant United States Attorney (hereinafter "AUSA") for the District of Colorado and the investigating case agents contacted the District of Wyoming about possibly presenting the dismissed portion of the original Indictment to a Wyoming grand jury. According to Special Agent Michael Stanfill of the Drug Enforcement Administration (hereinafter "SA Stanfill"), one of the defendant's alleged tractor-trailer drivers stated that he had transported cocaine from west to east via Interstate 80, which passes through Wyoming. The government also possessed a Western Union money transfer receipt which one of Defendant's alleged tractor-trailer drivers received in Wyoming. Sentencing Hearing Transcript of November 17, 1997 (hereinafter "Transcript # 2") at 10-11. A grand jury was impaneled in the District of Wyoming, and received evidence over a period of several days. However, according to SA Stanfill, the AUSA for the District of Wyoming advised that "he did not want to return an indictment until Mr. Rodriguez' arrest because he did not know how long it would take for Rodriguez' arrest." Id. at 18. A period of over eighteen months elapsed, and the District of Wyoming declined to pursue the matter further. Despite having been prepared to indict the defendant, according to SA Stanfill, "after he was arrested, [the District of Wyoming] decided not to." Id. at 17. The AUSA for the District of Wyoming reportedly "conceded" that venue was proper in the District of Wyoming, but thought that "there was better venue in other jurisdictions and thought we should pursue an indictment there." Id. at 35. Because the statute of limitations would run as to the dismissed portion of the original Indictment in approximately six months, and based in part on the case agents' evaluation of the defendant's Plea Agreement in the pending Colorado case, the case agents and the AUSA for the District of Colorado began contacting other United States Attorney's offices (including Los Angeles, California, and Detroit, Michigan) about prosecuting the dismissed portion of the original Indictment. According to SA Stanfill, these offices "did not have a problem with the case. The only problem was the amount of time that it would take to prepare to get it indicted." Id. at 17. [2] The organization transported cocaine primarily from Los Angeles, California to Houston, Texas, New Orleans, Louisiana, Detroit, Michigan, and New York, New York. [3] According to SA Stanfill, this estimate is based primarily on the tractor-trailer drivers' recollection of the sizes and weights of boxes which they loaded onto trucks, and the testimony of other drivers which had been arrested. SA Stanfill admits that there are no written receipts, telephone records, hotel receipts, or fingerprints linking the defendant to conduct charged by the instant case. However, the government does possess such evidence as to the conduct charged by the dismissed portion of the original Indictment, including witness testimony, "paper trail" evidence, actual drug seizures, taped phone conversations, and wired money transfer receipts. This evidence, according to SA Stanfill, objectively corroborates the drivers' testimony regarding the instant case. [4] This total consists of approximately 127 kilograms of cocaine attributable to the offense of conviction, 772 kilograms attributable to the acts described in three counts of the Superseding Indictment, and 1,175 kilograms attributable the dismissed portion of the original Indictment, which the parties have agreed to dismiss pursuant to the Plea Agreement. [5] The November 1, 1995 edition of the U.S. SENTENCING GUIDELINES MANUAL has been used in this case. [6] The government estimated Defendant's criminal history to be "Category I," but notes that the Plea Agreement is not conditioned on the defendant qualifying for a particular criminal history category. [7] This calculation is based on relevant conduct encompassing the possession with intent to distribute, and the distribution of one-hundred-fifty (150) kilograms or more of cocaine. [8] The Probation Officer agreed with the parties' additional stipulation that obstruction, victim-related and specific offense characteristic(s) adjustments are inapplicable. [9] U.S. SENTENCING GUIDELINES MANUAL § 5G1.1(a) (1995). [10] SA Stanfill testified that at least four witnesses, including a co-defendant in the instant case, can identify the defendant as a member of the alleged conspiracy. Several witnesses have also provided credible information as to the defendant's role in the alleged conspiracy, which is corroborated by physical evidence pertaining to the dismissed portion of the original Indictment. Internal Revenue Service Agent Jerry Burke, an investigating agent, concurs in this assessment. [11] The Court recognizes that immunity and charging considerations, and their resulting implications, reside in the government's sole discretion. With this in mind, the Court observes that four co-defendants who appear to be similarly-situated to the defendant have previously been sentenced to between forty (40) and eighty-four (84) months' imprisonment and between three (3) and five (5) years of supervised release. According to the government, however, two of these co-defendants were more culpable than Mr. Rodriguez, one co-defendant had a different and "less involved" role in the alleged conspiracy, and the co-defendant who had a role in the conspiracy similar to that of Mr. Rodriguez possessed different sentencing characteristics. Six additional co-defendants have been sentenced for conduct related, and unrelated, to this case. Several of these co-defendants pleaded guilty to the charge of conspiracy to possess and to distribute three-hundred-sixty (360) kilograms of cocaine, which resulted in sentences of between forty-two (42) and two-hundred-four (204) months' imprisonment. [12] Defendant offered to participate in proactive cooperation, but the government, as well as the case agents, were reluctant because the defendant had been a fugitive for approximately two years prior to his arrest, and the defendant indicated that his sources always contacted him, and not vice versa (sudden proactive contact would raise the suspicion of the defendant's sources). Transcript # 2 at 11-12; Defendant's Sworn Statement of February 24, 1995. [13] Neither party suggests that the defendant provided untruthful, incomplete, or unreliable information to the government, except that SA Stanfill "feel[s] there are still assets out there" which the defendant has not forfeited. Transcript # 1 at 44-45. [14] Application Note 3 to § 5K1.1 states that "[s]ubstantial weight should be given to the government's evaluation of the extent of the defendant's assistance, particularly where the extent and value of the assistance are difficult to ascertain." [15] SA Stanfill, however, stated that there were still "problems getting the property seized because the property had not yet been signed over by Mr. Rodriguez." Transcript # 1 at 39. [16] The statement's cover pages are dated February 24, 1994, but the corresponding transcript certification indicates that the statement was in fact given on February 24, 1995. [17] The government has not identified, with specificity, any action it took based on the defendant's statements, or how the statements otherwise contributed to the investigation and prosecution of this, or any other, case. Furthermore, the government reported to the Probation Office that Defendant's cooperation is ongoing, thereby enabling the government to bolster its Motion. To date, however, the Court has not been provided with any additional, purported justification to support such a dramatic departure for substantial assistance. It is the opinion of this Court that if such a justification has not been identified by now, it never will be. [18] For example, Defendant describes his transition from a co-defendant's drug-trafficking organization to his independent drug-trafficking activities, a vague account of his contacts with Colombian individuals, and events surrounding the resolution of his drug-related debts and a shipment of "lost merchandise." [19] In United States v. Perez-Herrera, Docket No. 92-CR-248-02, the Court accepted a FED. R.CRIM.P. 11(e)(1)(C) Plea Agreement that involved a dramatic departure from the calculated sentence under the Guidelines. In that case, however, the Court accepted the government's § 5K1.1 Motion based, in part, upon the Probation Officer's conclusion that the defendant's assistance in fact warranted an extraordinary departure. [20] In fact, it appears that the more culpable co-defendant cooperated meaningfully with the government against Mr. Rodriguez. Transcript # 2 at 77. [21] The Probation Officer's assessment was based on information obtained from SA Stanfill. [22] The Probation Officer admittedly did not review the Defendant's sworn statements. [23] The Commentary to this section provides that [t]he court may accept an agreement calling for dismissal of charges or an agreement not to pursue potential charges if the remaining charges reflect the seriousness of the actual offense behavior. This requirement does not authorize judges to intrude upon the charging discretion of the prosecutor. If the government's motion to dismiss charges or statement that potential charges will not be pursued is not contingent on the disposition of the remaining charges, the judge should defer to the government's position except under extraordinary circumstances. However, when the dismissal of charges or agreement not to pursue potential charges is contingent on acceptance of a plea agreement, the court's authority to adjudicate guilt and impose sentence is implicated, and the court is to determine whether or not dismissal of charges will undermine the sentencing guidelines. The government's proposed dismissal in this case is disconcerting, considering the disparity between the defendant's sentencing guideline range and the parties' stipulated sentence.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498592/	45 F. Supp. 2d 818 (1999) Wes COOLEY, Plaintiff, v. Phil KEISLING, Secretary of State, for the State of Oregon, Defendant. No. CIV. 98-1115-HU. United States District Court, D. Oregon. June 9, 1999. 819 Wes Cooley, Bend, OR, pro se. David Leith, Assistant Attorney General, Oregon Department of Justice, Salem, OR, for Defendant. ORDER FRYE, District Judge. The Honorable Dennis James Hubel, United States Magistrate Judge, filed Findings and Recommendation on April 27, 1999. Plaintiff filed timely objections to the Findings and Recommendation. When either party objects to any portion of a magistrate judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate judge's report. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S. Ct. 1277, 71 L. Ed. 2d 461 (1982). The matter is before this court pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). This court has, therefore, given de novo review of the rulings of Magistrate Judge-Hubel. This court ADOPTS the Findings and Recommendation of Magistrate Judge Hubel dated April 27, 1999 in its entirety. IT IS HEREBY ORDERED that defendant's motion to dismiss (# 4) is GRANTED; defendant's motion to dismiss (# 12) is DENIED; and plaintiff's motion for summary judgment (# 7) is DENIED. FINDINGS AND RECOMMENDATION HUBEL, United States Magistrate Judge: Wes Cooley ("plaintiff") filed this declaratory judgment action against Phil Keisling ("defendant"), in his capacity as the Secretary of State for the State of Oregon, to challenge a provision of Oregon law dealing with elections. Before the court are defendant's motions (# # 4 & 12) to dismiss and plaintiff's motion (# 7) for summary judgment. BACKGROUND Plaintiff ran in the Republican Party Primary for Oregon's Second Congressional District in the May 1998, Primary Election. Plaintiff did not win. Subsequently, the Oregon Reform Party nominated plaintiff to run as that party's candidate for the Second Congressional District. The Secretary of State's office rejected the Reform Party's filing for the Second Congressional District pursuant to O.R.S. § 249.048, which states: No candidate for nomination of a major political party to a public office who fails to receive the nomination shall be entitled to be the candidate of any other political party or to become an independent candidate for the same office at the succeeding general election. The filing 820 officer shall not certify the name of such a candidate. STANDARD Summary judgment should be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). If the moving party shows there are no genuine issues of material fact, the non-moving party must go beyond the pleadings and set forth specific facts, by affidavit or other admissible evidence, showing there is an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of America v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir.), cert. denied, 493 U.S. 809, 110 S. Ct. 51, 107 L. Ed. 2d 20 (1989). A Rule 12(b)(6) motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove "no set of facts in support of his claim which would entitle him to relief." Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995); see also Mountain High Knitting, Inc. v. Reno, 51 F.3d 216, 218 (9th Cir.1995). The court must treat all facts alleged in the complaint as true. Parks School of Business, Inc., 51 F.3d at 1484. All doubts are resolved in favor of the nonmoving party. Everest and Jennings v. American Motorists Ins., 23 F.3d 226, 228 (9th Cir.1994). DISCUSSION Plaintiff claims that O.R.S. § 249.048 violates 18 U.S.C. § 245 and seeks a declaration that the Oregon statute is null and void. On October 14, 1998, plaintiff moved for summary judgment. Subsequent to plaintiff's motion, the court ordered plaintiff to comply with Fed.R.Civ.P. 56 and this court's local rules regarding summary judgment. Plaintiff's memorandum in support of summary judgment alleges that O.R.S. § 249.048 not only violates 18 U.S.C. § 245, but also violates the Reform Party's and plaintiff's rights under the First and Fourteenth Amendments to the United States Constitution. Because plaintiff is proceeding without the assistance of counsel, the court will construe his pleadings very liberally. 18 U.S.C. § 245 is a criminal statute and does not grant the plaintiff a private right of action. The enforcement of this provision of federal law rests in the discretion of the Attorney General of the United States. Plaintiff's assertion that the Attorney General of Oregon has a duty to prosecute defendant for violation of this federal law is misplaced. Plaintiff may not challenge the Oregon statute on the basis of this federal law. John's Insulation, Inc. v. Siska Constr. Co., 774 F. Supp. 156, 163 (S.D.N.Y.1991). Therefore, the court will proceed as if plaintiff challenges the Oregon statute under the First and Fourteenth Amendments to the United States Constitution.[1] Defendant filed two motions to dismiss. The first motion seeks dismissal based on defendant's argument that the United States Supreme Court has already upheld the validity of a similar "sore loser"[2] statute in Storer v. Brown, 415 U.S. 724, 94 S. Ct. 1274, 39 L. Ed. 2d 714 (1974). Defendant then filed a supplemental motion to dismiss, arguing plaintiff's complaint 821 is moot because the general election plaintiff complains of has past. Defendant argues plaintiff's complaint is moot because plaintiff sought to have his name placed on the ballot for the general election in November 1998, which has past, and therefore, no actual controversy exists. Defendant's argument is misplaced. Plaintiff challenges the constitutionality of a Oregon Statute. The reason plaintiff was excluded from the ballot could arise again in the future, with the same challenge from another person interested in serving in an elected office. Thus, there is an actual controversy and defendant's mootness argument should be rejected. Storer, 415 U.S. at 737 n. 8, 94 S. Ct. 1274. In Storer, the Court stated: The `capable of repetition, yet evading review' doctrine, in the context of election cases, is appropriate when there are `as applied' challenges as well as in the more typical case involving only facial attacks. The construction of the statute, an understanding of its operation, and possible constitutional limits on its application, will have the effect of simplifying future challenges, thus increasing the likelihood that timely filed cases can be adjudicated before an election is held. Id. See also Anderson v. Celebrezze, 460 U.S. 780, 784 n. 3, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983). Because plaintiff challenges the constitutionality of the Oregon statute under the federal constitution and the controversy at issue is capable of repetition, this case is not moot. When analyzing whether a state election law unconstitutionally infringes upon the associational rights of plaintiff under the First and Fourteenth Amendments, the court must "weigh the character and magnitude of the burden the State's rule imposes on those rights against the interest the State contends justify that burden, and consider the extent to which the State's concerns make the burden necessary." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S. Ct. 1364, 1370, 137 L. Ed. 2d 589 (1997)(internal quotations omitted). Regulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions. Id. (internal quotations omitted). The impact of candidate eligibility requirements on voters implicates basic constitutional rights.... [I]t `is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the `liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.' Anderson, 460 U.S. at 787, 103 S. Ct. 1564 (quoting Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968)). However, states do have the right to enact reasonable regulations concerning elections, parties and ballots. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S. Ct. 1364, 1369, 137 L. Ed. 2d 589 (1997). In Storer, plaintiffs challenged several provisions of the California Elections Code. 415 U.S. at 727-28, 94 S. Ct. 1274. Two of the California provisions at issue read: A candidate whose name has been on the ballot as a candidate of a party at the direct primary and who has been defeated for that party nomination is ineligible for nomination as an independent candidate. . . . . . A candidate who fails to receive the highest number of votes for the nomination of the political party with which he was registered as affiliated on the date his declaration of candidacy or declaration of acceptance of nomination was filed with the county clerk cannot be the candidate of any other political party. 822 415 U.S. at 749, 751, 94 S. Ct. 1274 (quoting Cal. Elec.Code §§ 6402(a) & 6611 (Supp. 1974)). While upholding the exclusion of plaintiffs from the California ballot based on a different provision of the elections code, the Court did discuss the California provisions analogous to O.R.S. 249.048. §§ 6402 and 6611 provide that a candidate who has been defeated in a party primary may not be nominated as an independent or be a candidate of any other party; and no person may file nomination papers for a party nomination and an independent nomination for the same office, or for more than one office at the same election. . . . . . A candidate in one party primary may not now run in that of another; if he loses in the primary, he may not run as an independent; and he must not have been associated with another political party for a year prior to the primary. . . . . . The State's general policy is to have contending forces within the party employ the primary campaign and primary election to finally settle their differences. The general election ballot is reserved for major struggles; it is not a forum for continuing intraparty feuds. The provision against defeated primary candidates running as independents effectuates this aim, the visible result being to prevent the losers from continuing the struggle and to limit the names on the ballot to those who have won the primaries and those independents who have properly qualified. 415 U.S. at at 733-735, 94 S. Ct. 1274. Contrary to defendant's assertion, Storer to did not expressly uphold the so-called "sore loser" provision of California law that is essentially identical to O.R.S. § 249.048. Nonetheless, the Supreme Court did discuss the analogous California provisions approvingly. Like in Storer, the State of Oregon has an interest in avoiding further intra-party feuding by restricting "sore loser" candidates from running again in the general election. The general election is reserved for candidates with broad based support. Oregon's "sore loser" law is not a severe burden on plaintiff's rights, and even if it were, it is narrowly tailored to advance the compelling state interest approved by the Supreme Court in Storer. Additionally, the disaffiliation provision upheld expressly in Storer is stricter than the regulation on elections found in Oregon's "sore loser" provision. The provision of California law upheld as constitutional barred independent candidates from the general election if that candidate was affiliated with a political party in the immediately preceding primary election.[3]Storer, 415 U.S. at 752, 94 S. Ct. 1274 (quoting Cal. Elec.Code § 6803(d)). The Oregon provision only bars candidates from the general election if he or she lost as a candidate for another party in the preceding primary. Contrary to plaintiff's statements at oral argument, the Oregon law does not deprive the Reform Party of placing a candidate on the ballot. It merely deprived this individual plaintiff because he had unsuccessfully sought the primary nomination for the Republican Party. This was not a unreasonable burden upon the constitutional rights of the plaintiff or the Reform Party. At oral argument, defendant seemed to suggest that the court was without jurisdiction to hear this matter pursuant to the recent decision in Dornan v. Sanchez, 978 F. Supp. 1315 (C.D.Cal.1997). Dornan involved a challenge by the contestant to the 1996 general election for the 46th Congressional District seat in the United States *823 House of Representatives under the Federal Contested Elections Act ("FCEA"), 2 U.S.C. § 381 et seq. 978 F.Supp. at 1317. The FCEA allows individuals to challenge the election of another person to the House of Representatives, with the House making the ultimate decision. That act also allows for discovery in the contested cases with some involvement by the federal court. Id. at 1317. In Dornan, the court decided only the constitutionality of the discovery provision of the FCEA. Id. at 1318. Plaintiff in this case does not challenge the election of a successful candidate. Instead, plaintiff challenges a state statute that regulates elections. Dornan does not provide support for the argument that the court is without jurisdiction to decide this question. The cases relied upon by this court all entail challenges to various state laws regulating elections. The court's jurisdiction to decide the constitutionality of a state law regulating federal elections is clear. Timmons, 117 S.Ct. at 1370. Plaintiff asserted in his complaint that the O.R.S. § 249.048 was invalid and moved for summary judgment. Defendant argues the law is a reasonable regulation under the reasoning of Storer and that plaintiff's complaint should be dismissed for failing to state a claim. Oregon's "sore loser" statute is a reasonable regulation of the state's election scheme. Therefore, I recommend that defendant's motion (# 4) to dismiss BE GRANTED; defendant's motion (# 12) to dismiss BE DENIED; and plaintiff's motion (# 7) for summary judgment BE DENIED. SCHEDULING ORDER The above Findings and Recommendation will be referred to a United States District Judge for review. Objections, if any, are due May 13, 1999. If no objections are filed, review of the Findings and Recommendation will go under advisement on that date. If objections are filed, a response to the objections is due May 27, 1999, and the review of the Findings and Recommendation will go under advisement on that date. April 27th, 1999. NOTES [1] See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S. Ct. 1364, 1369, 137 L. Ed. 2d 589 (1997)(First Amendment protects the right of citizens to associate and form political parties to promote common goals). In Timmons, the Supreme Court assessed whether a Minnesota election law violated plaintiffs' associational rights under the First and Fourteenth Amendments of the United States Constitution. 117 S. Ct. at 1370. The court will assume plaintiff intends to raise this challenge to the Oregon statue. [2] Anderson v. Celebrezze, 460 U.S. 780, 784 n. 2, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983). [3] Plaintiffs were registered Democrats until early 1972. Storer, 415 U.S. at 728, 94 S. Ct. 1274. Both men were barred from the 1972 general election under Cal. Elec.Code § 6803(d), among others. Id.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498602/	274 P.3d 45 (2012) MARTINEZ v. STATE. No. 102961. Court of Appeals of Kansas. March 30, 2012. Decision Without Published Opinion Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498677/	45 F. Supp. 2d 110 (1999) TURBOCARE DIVISION OF DEMAG DELAVAL TURBOMACHINERY CORPORATION, Plaintiff, v. GENERAL ELECTRIC COMPANY, Defendant. No. Civ.A. 95-30069-MAP. United States District Court, D. Massachusetts. March 31, 1999. Catriona Collins, Francis J. Murphy, Alan H. Pollack, Kimberly S. Chotkowski, 111 Hopgood, Calimafde, Kalil, Blaustein & Judlowe, New York City, Michael J. Coyne, Bacon & Wilson, P.C., Springfield, MA, for Turbocare Division of Demag Delaval Turbomachinery Corporation, plaintiff. Mark T. Banner, Christopher J. Renk, Allegretti & Witcoff, Chicago, IL, John P. Iwanicki, Sanjay Prasad, Banner & Allegretti, Ltd., Boston, MA, Thomas K. Pratt, Banner & Allegretti, Ltd., Chicago, IL, for General Electric Company, defendant. C. Brian McDonald, Bulkley, Richardson & Gelinas, Springfield, MA, for Clifford G. Brock, movant. ORDER PONSOR, District Judge. For the reasons stated in the accompanying Memorandum, the Report and Recommendation of Magistrate Judge Neiman is hereby adopted in toto. Defendant's motion for summary judgment for unenforceability is hereby DENIED, and defendant's motion for partial summary judgment for invalidity is ALLOWED. The clerk will set a date for a status conference to set a schedule for future proceedings. MEMORANDUM REGARDING REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT OF INVALIDITY AND FOR SUMMARY JUDGMENT OF UNENFORCEABILITY OF U.S. PATENT NO. 5,037,115 I. INTRODUCTION This is an action seeking damages for infringement of two United States patents: Patent No. 4,436,311, entitled "Segmented Labyrinth-Type Shaft Sealing System for Fluid Turbines" (the "'311 patent") and Patent No. 5,037,115, entitled "Piston Ring Assemblies for High Temperature Seals" (the "'115 patent"). Some of the background facts are set forth in a previous opinion of this court on an earlier motion regarding plaintiff's first cause of action, raising the '311 patent.[1]See TurboCare Div. of Demag Delaval Turbomachinery Corp. v. General Elec. Co., 938 F. Supp. 83 (D.Mass.1996). In this memorandum the court will address GE's motion directed at plaintiff's second cause of action. The motion seeks partial summary judgment regarding two of three claims in the '115 patent, on the ground of invalidity, and summary judgment on the entirety of the second cause of action because the incorrect patent fee was paid at the time of the patent's issuance in 1991. GE's motion was referred to Magistrate Judge Kenneth P. Neiman, who has issued a Report and Recommendation to the effect that the motion asserting invalidity be allowed and the motion raising the failure to pay the proper fee be denied. Both parties have filed objections to the Report and Recommendation. Since this court's de novo review reveals that Magistrate Judge Neiman's analysis was entirely correct, the court will adopt his recommendation and rule in accordance with it. The detail and care exhibited by the Report and Recommendation, attached to this memorandum at Exhibit A, make lengthy discussion here unnecessary. II. FACTUAL BACKGROUND The pertinent facts of record are set forth in the Report and Recommendation at pages 3-10. They are essentially undisputed and need not be repeated here. III. DISCUSSION Disposition of the defendant's motion requires this court to address only two relatively straightforward questions. First, does the fact that the inventor of the '115 112 patent, Ronald E. Brandon, paid the "small entity" patent issuance fee of $525.00 when the patent issued in 1991, instead of the "large entity" fee of twice that amount, render the '115 patent unenforceable? Second, were the first two claims of the '115 patent "anticipated" by a patent application for an essentially identical apparatus, the so-called "Hitachi reference," made to the Japanese Patent Office in the late 1970s and disclosed to the public on November 29, 1977? The answer to the first question is not difficult. As a preliminary matter, the law is far from settled that a simple error in payment of a fee amount will irretrievably extinguish an inventor's patent rights. The one opinion cited by the defendant in support of this rather draconian proposition, DH Technology, Inc. v. Synergystex International, Inc., 937 F. Supp. 902 (N.D.Cal.1996), even though it involved facts far more egregious than those presented here, has been reversed on appeal. See 154 F.3d 1333, 1342 (Fed.Cir.1998). More importantly, the record is undisputed that in 1991 Brandon, not the large corporate entity Imo, owned the patent. As it happens, Brandon owns the patent to this day. In fact, Imo did not even possess a formal license agreement permitting exploitation of the patent until 1994. The plain truth is that an informed applicant in Brandon's shoes, operating in good faith, would have paid the $525.00 fee in 1991. The most that could even be colorably (though unpersuasively) argued is that Brandon made a minor, good faith error, because Imo's possession of some sort of implied license made the higher fee more appropriate. The demand for such dire consequences for this mistake, if mistake there was, has no foundation. The answer to the second question requires a slightly more complex analysis but in the end is equally manifest. The court's inquiry will begin will the patented device itself, a solid ring assembly used to seal the steam input areas of steam turbines. The basic underlying engineering problem arises from the fact that where the pipe carrying steam passes through and into the turbine casing, some sort of seal must be provided to prevent steam leakage and resulting loss of turbine efficiency. The challenge to a designer of such a seal is prodigious, because the extremely hot steam coming in through the pipe, called the "snout" pipe, will cause both the pipe and the turbine casing to expand and move relative to each other. The seal has to allow for such movement while maintaining a tight fit. Prior art assemblies employed to attack this problem used an array of alternating small and large piston rings. The small rings had an inner circumference nearly identical to the outer circumference of the snout pipe, and the larger rings had an outer circumference nearly identical to the inner circumference of the turbine casing. The small and large rings could slide in relation to each other, permitting some motion while providing a tight seal. This solution had a serious drawback, which the Brandon patent attempted to address. The fit between the outer, larger rings and the turbine casing, and between the inner, smaller rings and the snout pipe was so snug that assembly of the seal was often difficult. Moreover, after years of exposure to high temperature steam, oxide coatings would develop on both sets of rings, tending to lock them into position and undermine their essential mission, which was to move and expand while maintaining the seal. In addition, the oxide layers made it difficult to disassemble the seal for normal maintenance without damaging the turbine casing, snout pipe or the rings themselves. Claim 1 of the patent describes an assembly in which the large rings expand more than the surrounding casing when exposed to extreme heat (meaning, in technical terms, that they possess a greater "coefficient of thermal expansion") and the small rings expand less than the snout pipe. As a result, when the turbine is shut 113 down, and therefore cool, the larger rings will fit more easily into position within the casing, and the smaller rings will slide more easily over the snout pipe. When the turbine resumes operation, and heats up, the larger rings will expand more than the surrounding casing, making a tight fit, and the smaller rings will expand less than the snout pipe, with the same result. Significantly, Claim 1 makes no mention of the actual material that might be used to manufacture the rings in order to insure the different rates of expansion. It only describes the basic mechanism. Claim 2 is dependent on Claim 1 and includes all its limitations, but with one addition: that the small piston rings "are fabricated from materials selected from any of the martensitic stainless steels for use at elevated temperature." (Defendant's Exhibit. B, '115 Patent, Col. 6, Ins. 26-29) The record is undisputed, and plaintiff does not appear to contest, that the Hitachi reference is virtually identical to Claims 1 and 2. As with the '115 patent, its operation depends on the differential expansion of the rings when exposed to heat. The only slight difference, which plaintiff concedes does not distinguish it from the '115 patent, is that the Hitachi reference specifies the material to be used for the small rings: 12 chrome steel, which is one form of martensitic stainless steel. Like Claims 1 and 2 of the '115 patent, the Hitachi reference does not specify any material to be used in manufacturing the outer rings. It simply states that they should be of a material having a greater coefficient of thermal expansion than the casing. This deficiency, plaintiff claims, is crucial to the "anticipation" analysis. Unlike the Hitachi reference, Claim 3 of the '115 patent adds a further limitation: that "... the [large] piston rings are fabricated from materials selected from any of the austenitic stainless steels and precipitation hardening alloys intended for high temperature applications...." (Defendant's Exhibit B, '115 Patent, Col. 6, Ins. 30-34) TurboCare does not contend that the materials specified in Claim 3 are the only materials usable for the large ring, or that the subject matter of Claim 3 is necessary in order to make Claim 1 work. Further, it is important to remember that Claim 3 is not the subject of this motion for summary judgment. In other words, GE does not contend that Claim 3 was anticipated by the Hitachi reference. Having examined the patent, the court will now turn to the law. 35 U.S.C. § 102 prohibits entitlement to a patent where the invention was patented or described in a printed publication, in this country or abroad, more than one year prior to the date of application in the United States. A patent claim is anticipated, and therefore invalid, "only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference." Where a defendant can make such a showing by pointing to undisputed facts of record, summary judgment is appropriate. See Scripps Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1576 (Fed. Cir.1991). Even if a claimed invention is disclosed in a printed publication, that disclosure will not justify summary judgment as prior art, if it is not "enabling." Paperless Accounting, Inc. v. Bay Area Rapid Transit Sys., 804 F.2d 659, 665 (Fed.Cir.1986) (citations omitted). To be enabling, the prior disclosure, here the Hitachi reference, "must be such as will give possession of the invention to a person of ordinary skill." Id. (quoting In re Borst, 52 C.C.P.A. 1398, 345 F.2d 851, 855 (Cust. & Pat.App.1965)). TurboCare argues that the Hitachi reference would not give such a person "possession of the invention" because (like Claims 1 and 2) the Hitachi reference does not specify the material to be used in making the large rings. Plaintiff points to the rather ambiguous affidavit of its expert 114 Richard Shiffler for the proposition that discovering the material for the large rings would require additional work and perhaps some testing. At another point in his deposition, however, Shiffler concedes that no "undue experimentation" would be needed to discover the appropriate material. (Defendant's Exhibit Q, Shiffler Dep. at 558) TurboCare's argument that the Hitachi reference is not "enabling" fails for two reasons. First, the prior reference is, for all practical purposes, identical to Claims 1 and 2. Plaintiff appears to concede in its memorandum that the focus in evaluating prior art is on the claims, but then tries by a rather contorted argument to bring Claim 3, which is not the target of defendant's motion, into the analysis. Counsel concedes that Claim 3 cannot be "read into" Claims 1 and 2 in evaluating the prior art, but nevertheless argues that the "disclosure of the '115 patent" as a whole is necessary to teach one skilled in the art how to make the inventions of Claims 1 and 2. (Docket No. 142 at 14 (emphasis in original)) This argument will not wash. The Hitachi reference is identical in every pertinent respect to Claims 1 and 2 of the '115 patent. Claim 3 cannot be dragged in through the back door to avoid summary judgment. Second, and equally importantly, the Hitachi reference is "enabling" as a matter of law. The mere fact that some experimentation and possible testing might be needed to select the appropriate material for one part of the invention does not justify the conclusion that the prior art does not disclose the invention to a person with pertinent experience. A patent is not required to be a production specification; it will suffice if a skilled person "using the knowledge available to such a person and the disclosure in the patent document, could make and use the invention without undue experimentation." Northern Telecom, Inc. v. Datapoint Corp., 908 F.2d 931, 941 (Fed.Cir.1990). Here, the court finds on the undisputed record that, as a matter of law, the amount of effort needed to select the material for the large rings an effort that would in any case be needed exploit the invention asserted in Claims 1 and 2 was not undue. IV. CONCLUSION For the foregoing reasons, the Report and Recommendation of Magistrate Judge Neiman is hereby adopted in toto. Defendant's motion for summary judgment for unenforceability is hereby DENIED, and defendant's motion for partial summary judgment for invalidity is ALLOWED. The clerk will set a date for a status conference to set a schedule for future proceedings. A separate order will be issue. EXHIBIT A UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS TURBOCARE DIVISION OF DEMAG DELAVAL TURBOMACHINERY CORPORATION, Plaintiff v. GENERAL ELECTRIC COMPANY, Defendant Civil Action No. 95-30069-MAP REPORT AND RECOMMENDATION WITH REGARD TO GENERAL ELECTRIC COMPANY'S MOTION FOR PARTIAL SUMMARY JUDGMENT OF INVALIDITY AND A SUMMARY JUDGMENT OF UNENFORCEABILITY OF U.S.PATENT NO. 5,037,115 (Docket No. 106) NEIMAN, United States Magistrate Judge. I. INTRODUCTION In this action, TurboCare Division of the Demag Delaval Turbomachinery Corporation 115 ("Plaintiff"), proceeding pursuant to 35 U.S.C. § 271, charges in its second cause of action that the General Electric Company ("Defendant") infringed Plaintiff's United States Patent No. 5,037,115 ("the '115 patent"). Defendant's motion for summary judgment, which has been referred to this Court for a report and recommendation, see 28 U.S.C. § 636(b)(1)(B), has two parts. First, Defendant has moved for partial summary judgment, asserting that two of the three claims in Plaintiff's '115 patent are invalid because they were not novel at the time of their alleged invention. Alternatively, Defendant seeks summary judgment on the entirety of Plaintiff's second cause of action, asserting that the '115 patent lapsed and is unenforceable due to Plaintiff's failure to pay the appropriate patent fee. For the following reasons, the Court recommends that Defendant's motion be allowed in part and denied in part.[1] II. STANDARD OF REVIEW In accordance with Fed.R.Civ.P. 56(c), summary judgment may be granted if "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." See National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995). Once the moving party has established that no genuine issue of material fact exists, the burden shifts to the opposing party to contradict the showing "by pointing to specific facts demonstrating that there is, indeed, a trialworthy issue." National Amusements, 43 F.3d at 735. A "genuine" issue is one that a factfinder could reasonably resolve in favor of the nonmoving party. See McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995); United States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992). Not every genuine factual conflict, however, necessitates a trial. "`It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared.'" Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir. 1997) (quoting Martinez v. Colon, 54 F.3d 980, 983-84 (1st Cir.1995)). It is likewise well settled that "[s]ummary judgment is as appropriate in a patent case as in any other where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law." Townsend Eng. Co. v. Hitec Co., Ltd., 829 F.2d 1086, 1089 (Fed.Cir.1987). See also Continental Can Co. USA, Inc. v. Monsanto Co., 948 F.2d 1264, 1265 (Fed.Cir.1991). III. BACKGROUND Ronald E. Brandon ("Brandon"), an individual inventor named in over twenty United States patents, made the alleged invention covered by the '115 patent in the late 1980's. (See Def. Exhibit A at 526-27.) The patent which issued is entitled "Piston Ring Assemblies for High Temperature Seals." The '115 patent contains multiple claims and relates to sealed passages for steam between two separate casings used to power a steam turbine. The patent relates more particularly to the materials used in piston ring assemblies for such sealed passages and the overall increased efficiency of the steam turbine based on improvements to those seals. (See Def. Exhibit B; Pl. Exhibit 6). A. The technology of the '115 Patent An overview of the mechanics of steam turbines and previously existing ("prior art") piston ring assemblies is essential to an understanding of the '115 patent technology. Generally, steam turbines consist of a steam inlet pipe which must pass through the inner and outer casings of the turbine. At each point where the pipe passes through a casing, a seal must form 116 to prevent the leakage of high pressure steam, thereby maximizing the efficiency of the turbine. The typical prior art piston ring assembly utilized alternating small and large piston rings to provide the seal. The small piston rings had an inner circumference, which closely matched the outer circumference of the steam entry pipe, and fit tightly around the outer periphery of the inner steam pipe, preventing steam leakage at that interface. Similarly, the large piston rings had an outer circumference that closely matched the inner circumference of the surrounding casing and fit tightly against the wall of the casing, eliminating steam leakage at that interface. To further minimize steam leakage, the small and large piston rings were stacked alternatively, with common contact surfaces on their upper and lower faces, to prevent leakage between the adjacent piston rings. Finally, other rings, called either locking or retaining rings, were used to hold the small and large ring assembly in place. Because the outer rings fit tightly in the casing to provide the seal, the rings necessary to form the seal were cooled and thus shrunk prior to installation so that they would fit more easily within the casing. However, the tight fit of the inner rings made assembly of the pipe through the rings more difficult. Because the steam pipe and the casings moved independently, albeit relative to each other, the seal formed had to allow for such movement. As noted in the '115 patent, after years of exposure to high temperature steam this assembly was vulnerable to the formation of oxide coatings, causing the rings to lock in position rather than move freely. Further, disassembly for maintenance could damage various parts of the seal. It is undisputed that all of the above concepts were prior art and not part of the teachings of the '115 patent. (See Def. Exhibit A at 555.) What the '115 patent addresses is an improvement in the seal assembly through the selection of materials. Accordingly, claim 1 of the '115 patent describes a piston ring seal assembly containing both small piston rings (that rest adjacent to the interior pipe) and large piston rings (that rest adjacent to the outer casing). Claim 1 teaches that the material used for each of the large rings expands more under high operating temperatures than the surrounding casing or, in scientific parlance, has a coefficient of thermal expansion greater than that of the turbine casing. The term "coefficient of thermal expansion" describes the rate of expansion of a material as heat is applied. Claim 1 also teaches that each of the small rings is fabricated from a material having a coefficient of thermal expansion less than that of the steam inlet pipe, expanding less then the inlet pipe under operating conditions. Claim 1 further describes a system whereby the coefficient of thermal expansion of the material contained in the seal and the material against which it is sealing close tighter under increasing temperatures increasing the overall efficiency of the steam turbine.[2] 117 Claim 2 of the '115 patent, which is dependent on claim 1, specifies that "the small piston rings are fabricated from materials selected from any of the martensitic stainless steels for use at elevated temperatures." (Def. Exhibit B, Pl. Exhibit 6 at 28629). In a third claim (claim 3), not challenged as invalid by Defendant's motion, Brandon proposed that the large rings be fabricated from "materials selected from any of the austenitic stainless steels and precipitation hardening alloys intended for high temperature application." Id. In sum, the inventions in the '115 patent are intended to increase the overall efficiency of the turbine, reduce the tendency of the rings to lock in position and to facilitate the removal of the piston rings for easy maintenance. (See Def. Exhibit B.) B. The Hitachi reference In the late 1970's, a patent application, Kokai No. 52-143312 assigned to Hitachi K.K. ("the Hitachi reference"), was filed in the Japanese Patent Office.[3] The Hitachi reference was laid open to the public on November 29, 1977. As with the later '115 patent, the Hitachi reference describes a piston ring seal assembly with large rings made from a material having a coefficient of thermal expansion greater than that of the casing surrounding them, and small rings made from a material having a coefficient of thermal expansion less than that of the steam inlet pipe that is surrounded by the small ring.[4] The large and small rings are arranged alternatingly along the casing surrounding the inlet pipe. (See Def. Exhibit C at 4, Fig. 3; Def. Exhibit D; Def. Exhibit E).[5] The Hitachi reference teaches, as an example, that the steam pipe may be formed of molybdenum vanadium steel and that the small rings can be fabricated from 12% chromium stainless steel ("12Cr steel"). While it is not the only martensitic stainless steel, 12Cr steel is one martensitic stainless steel. (See Def. Exhibit F at 23-15.) C. Ownership of the '115 Patent License Brandon, with the assistance of Quabbin Industries ("Quabbin"), a company of 118 employees with which Brandon had a business relationship, filed for small entity status with the Patent and Trademark Office ("PTO") in September of 1989, (Def. Exhibit G), a filing status applicable to small 118 business concerns, independent inventors and nonprofit organizations. At about the same time, on September 11, 1989, Brandon filed his '115 patent application with the PTO which subsequently issued a notice of allowance of the patent on March 20, 1991. (Def. Exhibit B.) Brandon paid the small entity patent issuance fee of $525 on May 3, 1991. (See Def. Exhibit L.) The patent issued on August 6, 1991. Prior to the patent's issuance, Quabbin agreed to pay Brandon an 8% commission on their `snout ring sales' pursuant to a written agreement with Brandon. It is undisputed that these were sales related to Brandon's claimed inventions in the '115 patent. On July 2, 1990, Quabbin was purchased by Imo Industries, Inc. ("Imo"), (see Def. Exhibit H), which continued to pay Brandon commissions of 8% on all sales of technology claimed in the '115 patent. (See Def. Exhibits I; Def. Exhibit J). According to its 1990 annual report, Imo had over 6,000 employees in the United States. (See Def. Exhibit O.) In March of 1992, an exclusive licensing agreement between Imo and Brandon was negotiated regarding the '115 patent, but after negotiations fell apart, the agreement was not executed. (Pl. Exhibit 5.) On September 3, 1993, Brandon wrote to Imo and demanded that it refrain from selling products based on the '115 patent, among other "unassigned patents." (Pl. Exhibit 3.) In response, Imo asserted that it believed it had a right to sell products based on the '115 patent. (Pl. Exhibit 4.) Later, after January of 1994, Brandon licensed the '115 patent to Imo, (Pl. Exhibit 2A at 617-18), and received at least $52,000 in related royalties that year. (See Def. Exhibit M.) Mannesmann Capital Corporation ("Mannesmann") purchased Imo's TurboCare Division on January 17, 1995, (see Exhibit N), and together with its wholly-owned subsidiary, Plaintiff Demag Delaval Turbomachinery Corporation, became the licensee of the '115 patent that same day. IV. DISCUSSION Defendant makes two distinct arguments. First, pursuing partial summary judgment with respect to two of the three claims in the '115 patent, Defendant avers that both claims 1 and 2 are invalid because they are not novel, i.e., they were `anticipated' by the Hitachi reference. Invalidity for anticipation precludes a cause of action for patent infringement as a matter of law. Second, Defendant asserts that the '115 patent is unenforceable in its entirety because, when the patent issued, Brandon failed to pay the appropriate patent issuance fee, thus causing the patent to lapse. Because Defendant's second argument, if adopted, would completely dispose of Plaintiff's cause of action with respect to the '115 patent, it is addressed first. A. Unenforceability A fee consistent with a sum specified by the PTO is due within three months of the allowance of a patent application. 35 U.S.C. § 151. If the payment is not timely made, the application shall be regarded as either abandoned or lapsed. Id. In either event, a failure to pay the appropriate fee commensurate with one's patent will render the patent application a nullity. See Id. The essence of Defendant's unenforceability argument is that Brandon failed to pay the correct statutory fee. There is apparently no dispute that Brandon paid a small entity fee for the patent. The statutory small entity fee is half that required of a large entity. 35 U.S.C. § 41(h)(1). As indicated, the lesser fee is made available to small business concerns, independent inventors and nonprofit organizations, as defined by regulations promulgated pursuant to the statute. Id.[6] "[O]nce status as a small entity has been established in an application or patent, 119 fees as a small entity may thereafter be paid in that application or patent without regard to a change in status until the issue fee is due or any maintenance fee is due." 37 C.F.R. § 1.28(b). Defendant avers that Brandon was not entitled to pay the small entity fee when the patent issued in 1991. Rather, Defendant argues, it was Imo, concededly a large entity, which either owned or was licensed the '115 patent at the time. Accordingly, Defendant argues, a large entity fee was due and, since no such payment was made, the patent is unenforceable. Relying predominantly on one case, DH Technology, Inc. v. Synergystex Intl., Inc., 937 F. Supp. 902, 905-07 (N.D.Cal.1996), Defendant asserts that Brandon, as the inventor, not only had to verify his small entity status at the time of the patent application, but had a continuing duty to inform the PTO he was no longer entitled to "small entity status." In DH Technology, however, unlike the case at bar, it was undisputed that the plaintiff was ineligible for small entity status. Accordingly, the court's inquiry focused on whether the plaintiff's failure to claim a lack of small entity status, while knowing that it was ineligible, was so egregious as to breach a duty of good faith regarding self-verification and to commit fraud upon the PTO. Id. at 906-07. That is simply not true with respect to the present matter. In fact, the very reason why Plaintiff should survive Defendant's motion for summary judgment centers on a genuine dispute regarding the ownership, if not licensure, of the '115 patent in August of 1991, when the patent issued. In contrast to the plaintiff in DH Technology, Plaintiff presents sufficient factual evidence to argue that, despite Imo's purchase of Quabbin, Imo did not purchase or license the '115 patent between Brandon's filing and receipt of his patent. Brandon himself disputes that a license issued to Imo in this time period. (Pl. Exhibit 2A; see also Pl. Exhibit 2B (Ciara Dep. at 298-299)). As Plaintiff argues, if Imo had a license under the '115 patent in August of 1991, it would not have spent the next two and one-half years attempting to obtain the very same license from Brandon. Nor would Brandon have been in a position, as late as September of 1993, to threaten to exclude Imo from the manufacture or sale of products covered by the "unassigned" '115 patent. The only writing which Defendant alleges to be a license agreement is a letter of April 12, 1990, from Quabbin to Brandon. (See Def. Exhibit I.) The letter, however, makes no reference to the '115 patent or its application. The letter merely provides for payment of "commissions" to Brandon on the sale of a number of products and services which related to "... joint efforts on new applications for efficiency products." Although one of the enumerated products on which commissions were payable, "articulated snout rings," related to the '115 patent application, it is debatable whether the April 12, 1990, letter amounted to a license. This is so even though Brandon, in his declaration claiming small entity status, listed Quabbin as an organization to which he had "assigned, granted, conveyed, or licensed or [was] under an obligation under contract or law to assign, grant or convey, or license any rights in the [patent] invention." (Def. Exhibit G). Such a representation does not a license make. Given the genuine and material factual disputes, the Court finds that the case is not appropriate for summary judgment based on patent unenforceability.[7] 120 B. Invalidity Defendant fares significantly better with respect to its assertion regarding the invalidity of parts of the '115 patent. Defendant maintains that it could not have infringed Plaintiff's patent because claims 1 and 2 were anticipated by the Hitachi reference, thus precluding infringement as a matter of law. Of course, Defendant's argument falls squarely within the statutory framework that "[e]ach claim of a patent (whether in independent, dependent or multiple dependent form) shall be presumed valid independently of the validity of other claims." 35 U.S.C. § 282. Thus, Defendant bears the burden of overcoming that presumption and demonstrating the invalidity of the '115 patent based on anticipation. Kori Corp. v. Wilco Marsh Buggies and Draglines, Inc., 708 F.2d 151, 154 (5th Cir.1983). However, inasmuch as the presumption is based on a deference to the PTO in determining patent validity, its force fades when the prior art was unknown to the PTO at the time of patent prosecution. American Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350, 1359-60 (Fed.Cir.1984). 1. The anticipation standard Defendant's anticipation argument derives from 35 U.S.C. § 102 which provides, in pertinent part, that a person shall be entitled to a patent unless: (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States. 35 U.S.C. § 102. Anticipation is a technical defense grounded in this statutory language and requires a showing, by the party claiming anticipation, of actual identity of the later invention in prior art. Nat'l Bus. Sys., Inc. v. AM Int'l, Inc., 743 F.2d 1227, 1235 (7th Cir.1984); Kori Corp., 708 F.2d at 154; Plastic Container Corp. v. Continental Plastics of Okla., Inc., 708 F.2d 1554, 1559 (10th Cir.1983); American Original Corp. v. Jenkins Food Corp., 696 F.2d 1053, 1057 (4th Cir.1982); Velo-Bind, Inc. v. Minn. Mining & Mfg. Co., 647 F.2d 965, 970 (9th Cir.1981). The standard for measuring claim anticipation is exacting. In order for a claim to be invalid for anticipation, each and every element of the claim must be contained in a single prior art reference. In re Graves, 69 F.3d 1147, 1151 (Fed.Cir.1995).[8] All 121 parts of the inquiry must be proven by clear and convincing evidence at trial. Verdegaal Bros., Inc. v. Union Oil Co. of Calif., 814 F.2d 628, 631 (Fed.Cir.1987). A similar quantum of proof is likewise considered at the summary judgment stage. Scripps, 927 F.2d at 1576.[9] Whether the prior art meets the anticipation criteria, rendering a patent invalid, turns initially on the interpretation of each specific claim set forth in the patent. A judge is charged with the ultimate interpretation of the various claims made by an inventor because patent construction is analogous to other issues regarding construction and, thus, is always a question of law. Markman v. Westview Instruments, 517 U.S. 370, 116 S. Ct. 1384, 1394, 134 L. Ed. 2d 577 (1996). Because patents are legal instruments, a judge ultimately is charged with "giving to the patent its true and final character and force." Id. (quoting 2 W. Robinson, Law of Patents § 732 at 481-83 (1980)). A judge is deemed to have the training and practice to make sounder determinations regarding the interpretation of the various claims in a patent because of his or her training in the interpretation of those and other legal instruments. Id. As recently as last year, the Supreme Court noted that "[t]he construction of written instruments is one of those things that judges often do and are likely to do better than jurors unburdened by training in exegesis." Id. Plaintiff argues and Defendant concedes that, while claim interpretation is solely for a court, anticipation is a question of fact. In re Graves, 69 F.3d at 1151; In re Lowry, 32 F.3d 1579, 1582 (Fed.Cir.1994); Scripps, 927 F.2d at 1576. However, this concession does not necessarily mandate a jury or bench trial. Thus, if there are no material or genuine facts in dispute relative to the anticipation question, a defendant may well be able to prevail on a motion for summary judgment. See Lockwood v. American Airlines, Inc., 107 F.3d 1565 (Fed.Cir.1997); Sinskey v. Pharmacia Ophthalmics, Inc., 982 F.2d 494 (Fed. Cir.1992); compare Tillotson Ltd. v. Walbro Corp., 831 F.2d 1033, 1037 (Fed.Cir. 1987). Stated another way, if, after examining the claims in the '115 patent in the present matter, the Court finds that no factual dispute exists and the claims were anticipated, Defendant is entitled to summary judgment. 2. The Every Element Test Two analyses are at play in the interpretation of patent claims and the assessment of anticipation, the "every element" test and the "enablement" standard. Messerschmidt v. United States, 29 Fed. Cl. 1, 21 (1993). The first test requires that, for anticipation to occur, each and every element of a patent claim must be disclosed in a single prior art reference. Id.; Scripps, 927 F.2d at 1576; Verdegaal Broth., 814 F.2d at 631. To be clear, despite Plaintiff's contrary interpretation, the test is not whether every claim in the later patent was disclosed in the prior art. Messerschmidt, 29 Fed.Cl. at 21. Rather, the test requires an analysis of each specific claim and a determination as to whether the claim itself was previously disclosed, either expressly or inherently, in a single prior art reference. Id. at 21-22. Thus, the instant analysis requires an examination of claim 1 separate from claim 2 and a determination as to whether each and every element in claim 1 was previously disclosed in the Hitachi reference. The same test is then independently applied to claim 2. Applying the test, the Court notes that claim 1 of the '115 patent describes a piston ring seal assembly containing alternating small and large piston rings. In 122 addition, the '115 patent teaches that each of the large rings has a coefficient of thermal expansion greater than that of the turbine casing, thus expanding more under the high operating temperatures. Claim 1 also teaches that the material used for each of the small rings has a coefficient of thermal expansion less than that of the steam inlet pipe therefore expanding less then the inlet pipe under operating conditions. Similarly, the Hitachi reference teaches a piston ring seal assembly with large rings made from a material with a coefficient of thermal expansion greater than that of the casing surrounding them, and small rings fabricated from a material having a coefficient of thermal expansion less than that of the steam inlet pipe that is surrounded by the small rings. The Court finds that these rings are arranged in an alternating fashion and are described in much the same manner as the '115 patent. Thus, both claim 1 in the '115 patent and the Hitachi reference describe a system whereby the coefficient of thermal expansion of the seal and the material against which it is sealing get tighter under increasing temperatures increasing the overall efficiency of the steam turbine. At bottom, the Court finds no discernable difference between claim 1 and the disclosures in the Hitachi reference. Claim 2 of the '115 patent specifies that "the small piston rings are fabricated from materials selected from any of the martensitic stainless steels for use at elevated temperatures." (Def. Exhibit B; Pl. Exhibit 6 at 28629). The Hitachi reference teaches that the small rings can be fabricated from 12Cr steel, an example of a martensitic stainless steel. (See Def. Exhibit F at 23-15.) The '115 patent also names 12Cr steel as a usable example of a martensitic steel. Relying on verbal descriptions, reprints of both the pertinent parts of the '115 patent and the Hitachi reference, as well as schematic drawings provided by both parties, the Court can find no pragmatic difference between the inventions.[10] While not dispositive, the Court finds it worthy of mention that Brandon, the inventor of the '115 patent, admitted in his deposition that there is a "strong similarity" between the Hitachi reference and claim 1 of the '115 patent. (See Def. Exhibit A at 598-606.) Brandon was also unable to identify any meaningful difference between the teachings in the Hitachi reference and those described in either claims 1 or 2 of the '115 patent. Id. Finally, Brandon stated at his deposition that he was unaware of the Hitachi reference when he was prosecuting the '115 patent and that, had he known of it at the time, he surely would have told the PTO patent examiner about it. (Def. Exhibit A at 604-06.) This last concession, however, seriously undermines the presumption of patent validity. See American Hoist & Derrick, 725 F.2d at 1359-60. ("Indeed, new prior art not before the PTO may so clearly invalidate a patent that the burden [of demonstrating invalidity] is fully sustained merely by proving its existence and applying the proper law."). 3. The Enablement Standard Although, in the Court's opinion, Plaintiff fails the every element test, the anticipation inquiry does not necessarily end there. See Messerschmidt, 29 Fed.Cl. at 21. Plaintiff argues vigorously that there is also an enabling component of the anticipation query, namely, that "the disclosure must be such as will give possession of the invention to the person of ordinary skill." 123 Paperless Accounting, Inc. v. Bay Area Rapid Transit Sys., 804 F.2d 659, 665 (Fed.Cir.1986) (internal citations and quotation marks omitted). It is settled that a person of ordinary skill means someone in the particular field. Messerschmidt, 29 Fed.Cl. at 21. Plaintiff suggests that the enablement requirement focuses on the validity of the invention as a whole. Arguing that the invention is essentially the entirety of the '115 patent, or at least claims 1 and 2 together, Plaintiff avers that claims 1 and 2 are useless without the subsequent teachings of claim 3. Plaintiff contends further that absent the teaching in claim 3, which is undisputedly lacking in the Hitachi reference, someone skilled in the field would be unable to recreate a similar invention using only the prior art. Unfortunately for Plaintiff, its argument misconstrues the definition of `invention' to mean final working product, rather than correctly viewing each of the claims as `inventions' themselves. Markman, 116 S.Ct. at 1387-88. In so doing, Plaintiff also confuses the enablement requirement to mean that the claimed final outcome (in this case, the whole of the piston ring seal assembly) must be successful in order for a prior art reference to be enabling. It is also the opinion of the Court that Plaintiff proves too much regarding claims 1 and 2. In attempting to show that claim 3 is necessary to make claims 1 and 2, the undisputed facts show that claims 1 and 2 are equal to the prior art disclosures. Indeed, the very fact that Brandon was able to create the inventions in claims 1 and 2 leads to the inescapable conclusion that someone skilled in the art could and did possess the prior art reference. Therefore, the disclosures in the Hitachi reference, which are equal to claims 1 and 2, are enabling. That the entire seal assembly will not work without the material specified in claim 3 is irrelevant to the instant case. Finally, even if the Court were to use Plaintiff's misconstrued standard for enablement, the standard as applied is not nearly as rigorous as Plaintiff suggests. A prior patent actually meets the enablement requirement even if it fails to teach all the principles of an invention to those possessing ordinary skill in the particular field. In re Paulsen, 30 F.3d 1475, 1478 (Fed. Cir.1994); Scripps, 927 F.2d at 1572; See also Ex parte Thomson, 24 U.S.P.Q.2d 1618, 1620, 1992 WL 336793 (Bd.Pat.App. & Interf.1992) ("The mere fact that some experimentation is necessary ... is not fatal to enablement where as here the procedures ... are routine."). Plaintiff's expert's affidavit to the contrary, the Court remains convinced that the prior art was enabling as a matter of law.[11] That "perhaps some testing" may be necessary by someone skilled in the field, (Shifler Aff. ¶ 22), does not preclude the Court's finding, since some experimentation is acceptable under the enablement standard. In sum, the facts presented to the Court establish, without genuine or material dispute and by clear and convincing evidence, that the Hitachi reference contains each and every claim limitation set forth in claims 1 and 2 of the '115 patent. Accordingly, Defendant is entitled to partial summary judgment of invalidity under 35 U.S.C. § 102(a) and (b). 124 V. CONCLUSION For the foregoing reasons, the Court recommends that Defendant's motion for summary judgment with respect to unenforceability be DENIED, but that Defendant's motion for partial summary judgment with respect to invalidity (regarding claims 1 and 2) be ALLOWED.[12] NOTES [1] The court has also issued a memorandum today adopting the Report and Recommendation of Magistrate Judge Kenneth P. Neiman, and denying defendant's motion for summary judgment regarding the '311 claim on the grounds of equitable estoppel or laches. [1] Defendant also filed a summary judgment motion regarding a second allegedly infringed patent, United States Patent No. 4,436,31. A report and recommendation concerning that motion issued on June 25, 1997. (See Docket No. 135.) [2] Claim I reads as follows: In a turbine inclusive of: a turbine shaft having a longitudinal axis, a steam pipe, a shell circumadjacent the pipe, the pipe and shell being shiftable in vertical and transverse and axial directions relative to the longitudinal axis of the shaft, and a seal assembly disposed between the pipe and shell and comprising a stack of interdigitated relatively large and small piston rings, the improvement comprising: each large ring (a) loosely fitting inside the shell during nonoperative conditions and firmly and sealingly engaging the shell during operative conditions; and (b) having a coefficient of thermal expansion greater than that of the shell for expanding at a rate faster than the expansion rate of the shell under a condition of increased temperature, each small ring (a) loosely fitting around the pipe during nonoperative conditions and firmly and sealingly engaging the pipe during operative conditions; and (b) having a coefficient of thermal expansion less than that of the pipe for expanding at a rate slower than the expansion rate of the pipe under a condition of increased pressure, with the large and small rings tightening upon the respective shell and pipe respectively under an increasing temperature condition and shrinking from the respective shell and pipe respectively under a decreasing temperature condition due to the relative coefficients of thermal expansion between the large and small rings and the respective shell and pipe. (Defendant's Exhibit B (Docket No. 112)) (emphasis added). [3] A translation of the Hitachi reference can be found as Exhibit C to Defendant's brief. [4] The terms thermal expansion and linear expansion, translated in the Hitachi reference, are synonymous. [5] The Hitachi reference discloses at page 4 the following pertinent language: According to the present invention, the seal ring 11 shown in Fig. 3 is formed of a material having a lower coefficient of linear expansion than the material of the pipe 7a so that the pipe 7a can be inserted into the seal ring 11 with the gap G left there between during installation and assembly. They are heated and expanded by the main steam temperature during operation, but the gap g1 is reduced due to the lower coefficient of linear expansion of the seal ring 11. The same concept may be employed for the outer gap g2 of the outer seal rings 11b. That is, the same advantage is achievable by selecting such that the outer seal rings 11b have a greater coefficient of thermal expansion than the casing 12. It is understood that although the gap is zero during operation, a sufficient gap is available during installation, permitting easy assembly and disassembly without causing damage to the sealing surfaces. [6] The applicable federal regulation specifically defines a small business concern as a business, together with its affiliates, whose number of employees does not exceed five hundred persons and is under no obligation under contract or law to assign, grant, convey or license, any rights in the invention to any person who could not be classified as an independent inventor if that person had made the invention, or to any concern who would not qualify as a small business concern or a nonprofit organization under this section. 37 C.F.R. § 1.9. [7] Defendant advances another argument, also based on DH Technologies, namely, that it is now too late for Plaintiff to correct Brandon's failure to pay the large entity issuance fee. Defendant avers that that failure, even if it was unintentional or unavoidable and thus open to correction under the statute, see 37 C.F.R. § 1.317, cannot be remediated because the time has long since passed for a seasonable correction, id.; see also DH Technology, Inc., 937 F.Supp. at 907. Given the evidence surrounding Brandon's reasonable belief that he was entitled to small entity status, this bootstrap argument is not dispositive. [8] See also Standard Havens Prods., Inc. v. Gencor Indus., Inc., 953 F.2d 1360, 1369 (Fed.Cir.1991) ("Anticipation can occur when a claimed limitation is `inherent' or otherwise implicit in the relevant reference."); Scripps Clinic & Research Found. v. Genentech Inc., 927 F.2d 1565, 1576 (Fed.Cir.1991) ("[T]he claimed process, including each step thereof, must have been described or embodied, either expressly or inherently, in a single reference."); Brown-Bridge Mills, Inc. v. Eastern Fine Paper, Inc., 700 F.2d 759, 762 (1st Cir. 1983) (for anticipation to occur "elements of the claimed invention or their equivalents [must be] functioning in essentially the same way") (citing Shanklin Corp. v. Springfield Photo Mount Co., 521 F.2d 609, 616 (1st Cir. 1975)); Cf. Butler v. Helms, 550 F.2d 954, 956-57 (4th Cir.1977) ("[A] merely extraneous structural feature recited in a claim, which has no function with respect to the invention claimed, should not prevent invalidity for anticipation if all of the requirements of anticipation are otherwise met."); Procter & Gamble Co. v. Nabisco Brands Inc., 711 F. Supp. 759, 762 (D.Del.1989) ("The prior art need not, however, state the elements of the claim in identical language"). But see Akzo N.V. v. U.S. Intern. Trade Com'n, 808 F.2d 1471, 1479 (Fed.Cir.1986). [9] One part of the anticipation inquiry turns on whether the prior reference was published. For the purposes of this question, Japanese patent applications are considered publications. See Kubota v. Shibuya, 999 F.2d 517, 519 (Fed.Cir.1993). The parties do not dispute that the Hitachi reference was validly published prior art. [10] Plaintiff, correctly, does not assert that the specification of a particular martensitic steel, as in the Hitachi reference, is any sort of bar to anticipation. Nor does Plaintiff contend that the generalization of martensitic steel for the small piston rings in claim 2 of the '115 patent is somehow inconsistent with the specification of one species in a genus of steel and thus inconsistent with Defendant's claim of anticipation. See Messerschmidt, 29 Fed.Cl. at 21 n. 7. [11] In his affidavit, Plaintiff's steam turbine expert, Richard Shifler, states that, without a material for the large rings, claim 3 of the '115 patent, he could not recreate the invention in claims 1 and 2. To do so, he would need to consider such factors as the coefficient of thermal expansion of the pipe casing material and candidate materials for the large rings under great temperature variations, the range of temperatures to which the assembly would be subjected and the oxidation and corrosion properties of both the casing material and the candidate ring materials. He states further that he would also need to calculate the appropriate ring size of the large rings in claim 3 based on those previously noted considerations. (Shifler Aff. ¶¶ 1-6, 23.) [12] The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). A party may respond to another party's objections within ten (10) days after being served with a copy thereof.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498684/	45 F. Supp. 2d 259 (1999) Robert LEDERMAN, Plaintiff, v. Sergeants Steve ADAMS, Mary Fasone, and Rappenthal, Officers DiPaolo and Spreen, individually and as employees of the New York City Police Department, The New York City Police Department, and The City of New York, Defendants. No. 96 Civ. 4569 (DC). United States District Court, S.D. New York. March 25, 1999. 260 261 John Ware Upton, New York City, for plaintiff. Michael D. Hess, Corporation Counsel of the City of New York by Chlarens Orsland, New York City, for defendants. OPINION CHIN, District Judge. In this case, plaintiff Robert Lederman, an artist and president of the organization Artists' Response to Illegal State Tactics 262 ("A.R.T.I.S.T."), was arrested on three separate occasions by police officers employed by defendant New York City Police Department (the "NYPD"). Lederman challenges these arrests on the basis that they were not supported by probable cause. He further alleges that the police arrested him because he protested the arrest of artists purportedly for violating an ordinance, later declared unconstitutional by the Second Circuit, prohibiting artists from selling their artwork on the street without a vendor's license. Lederman asserts several causes of action, including civil rights violations under 42 U.S.C. § 1983. Defendants move for partial summary judgment. Because genuine issues of material fact exist for trial, defendants' motion is denied. BACKGROUND A. The Facts Construed in the light most favorable to plaintiff, the facts are as follows: Lederman is an artist who displays and sells his work on the sidewalks of Manhattan, primarily in the SoHo section of lower Manhattan. (Orsland Decl.Ex. C at 31-34). He is also the president of A.R.T.I.S.T., which advocates for the First Amendment right of artists to display and sell their art. (Id. at 42; Am.Compl. ś 9). Lederman and other artists formed A.R.T.I.S.T. in 1994 when police began enforcing a New York City general vending ordinance by arresting artists who displayed and sold their art on the street without a license. (Am.Compl. ś 3). Lederman was thereafter arrested on three occasions in connection with his advocacy activities. 1. The Administrative Code The New York City Administrative Code (the "Code") contains regulations governing street vendors. The Code, for example, restricts the locations on the sidewalk where vendors may sell their merchandise. New York, N.Y.Code ("N.Y.Code") § 20-465.[1] In addition, § 20-453 of the Code requires vendors to obtain a license. Until October 10, 1996, street artists were covered by these regulations.[2] Artists therefore were not permitted to sell their artwork on the street without a license. Artists were permitted, however, to display their artwork on the street provided that they did not sell or offer to sell it. (Upton Affirm.Ex. J). In 1994, Lederman filed two actions in the Southern District of New York against the City of New York (the "City") challenging the constitutionality of the requirement that artists obtain a vending license. Bery v. City of New York, 94 Civ. 4253; Lederman v. City of New York, 94 Civ. 7216. The district court denied plaintiffs' motion to enjoin enforcement of the general vending laws against street artists. On October 10, 1996, however, the Second Circuit ruled that the provision was unconstitutional as applied to street artists. Bery v. City of New York, 97 F.3d 689, 698 (2d Cir.1996), cert. denied, 520 U.S. 1251, 117 S. Ct. 2408, 138 L. Ed. 2d 174 (1997). The court held that appellants' artwork was "entitled to full First Amendment protection." Id. at 696. While the court recognized that the City "had a significant interest in keeping its public spaces safe and free of congestion," the court held that appellants were entitled to a public forum for their expressive activities, and that the City could not bar all street art sales when 263 less restrictive regulations would suffice. Id. at 697. 2. Community Pressure to Enforce License Requirement and the Formation of A.R.T.I.S.T. The First Police Precinct (the "First Precinct"), which covers SoHo, receives many complaints from residents and business people of the SoHo community concerning the activities of unlicensed peddlers, including street artists. Those who complain allege that the peddlers draw crowds that congest the neighborhood, pose safety problems, and create unsanitary conditions. One of the organizations that complains to the First Precinct is the SoHo Alliance, which is a private, volunteer community group. Over the years, a considerable degree of enmity has developed between Lederman and members of SoHo Alliance. Among others who complain of street vending in SoHo to the First Precinct are the local Post Office, Community Board No. 2, and New York City Councilmember Kathryn E. Freed, whose district includes SoHo. Freed testified during her deposition that she also made complaints about street vending to the head of enforcement of consumer affairs and the Office of the District Attorney. (Upton Affirm.Ex. F at 34). Freed complained to the Mayor about the performance of the First Precinct in handling unlicensed vending. (Id. at 51). Lederman alleges that prior to 1994 artists were generally permitted to sell their artwork without a license. (Lederman Aff. ś 3). According to Lederman, the police began arresting and threatening to arrest artists in 1994 because the SoHo Alliance pressured the police to remove the street artists from the neighborhood. (Id. ś 4). In response to these arrests, plaintiff and other artists formed A.R.T.I.S.T. to protest what they viewed as an attack on their First Amendment right to sell and display their art. (Id.). As president of A.R.T.I.S.T., Lederman participated in many demonstrations, issued several press releases, attended community and other meetings, and distributed leaflets. (Id.). When plaintiff witnessed the police harassing or arresting artists for selling their art on the street without a license, he would inform passers-by that the police were arresting artists and explain his opinion that the artists' activities were protected by the First Amendment. (See Orsland Decl.Ex. C at 137). Some of the demonstrations included chants such as "Stop arresting artists." (Lederman Aff. ś 7). Prior to October 10, 1996, Lederman repeatedly displayed and sold his artwork on the street without a license. Lederman alleges that as his reputation as spokesperson for the street artists grew, however, he became the focus of police attention and was therefore more likely than other artists to be threatened, harassed, and arrested. (Id.). Plaintiff claims that he was frequently threatened with arrest while attending public meetings, speaking on the street, or distributing leaflets. (Id.). He further alleges that after an arrest in 1994, a police officer informed him that the Intelligence Division of the NYPD had opened a file on him and was monitoring his activities. (Id. ś 9). 3. The Arrests Lederman alleges that the police unlawfully arrested him because of his advocacy activity. (Compl.ś 10). In this case, plaintiff challenges three arrests, which occurred on March 25, 1995, April 28, 1996, and May 11, 1996. a. March 25, 1995 Arrest On March 25, 1995 at approximately 5 p.m. in SoHo, Lederman was approached by an artist who told him that another artist, Marika Ley, was being arrested a block away for selling art. (Lederman Aff. ś 12). Lederman walked to the location and "saw Ley face down on the pavement with two police officers on top of her." (Id.). Plaintiff immediately began speaking to the crowd about the City's and the NYPD's "policy of arresting artists and 264 selling or destroying the confiscated art." (Id.). He also distributed leaflets to people in the crowd who expressed an interest in additional information. (Id.). According to Lederman, neither he nor any other member of the public interfered with the police, encouraged anyone to interfere with the police, or blocked any vehicular or pedestrian traffic. (Id.). Defendant Steven Adams, a member of the NYPD, arrived on the scene in a patrol car. (Id. ś 14). Adams instructed Lederman to stop distributing leaflets and "jabbed [him] in the chest with his hand several times" telling him to "keep walking." (Id.). Because on prior occasions Adams had instructed Lederman to walk slowly from corner to corner while demonstrating, so as not to obstruct traffic, Lederman began to do so on that day. (Id.). Although Adams returned and again jabbed plaintiff with his hand, instructing plaintiff to stop distributing leaflets, Lederman continued his activity. (Id.). An ambulance arrived on the scene to transport Ley to the hospital. (Id. ś 15). Neither Lederman nor anyone else blocked the ambulance, interfered with the police, or obstructed traffic. (Id.). Several members of the public had been closer than plaintiff to the area of the arrest and the ambulance. (Id.). After the ambulance departed, Adams, without saying anything else to plaintiff, "grabbed [Lederman] by the back of the neck and threw [him] against the side of a car." (Id. ś 16). According to Lederman, Adams then instructed two officers to "drag" him to a police car and "throw" him "horizontally head first" into the car. (Id.). Lederman alleges that upon arrival at the precinct, Adams "violently yanked" plaintiff from the car and "pushed and shoved" plaintiff into the precinct, all the while addressing him with expletives and coarse language. (Id. ś 17). Plaintiff complains that his neck and back hurt for two weeks after this incident. (Id. ś 18). At the precinct, Adams charged plaintiff with disorderly conduct. (Id. ś 17). Lederman was confined in a cell for three hours before he was released. (Id.). On June 20, 1995, Judicial Hearing Officer Maurice Gray found Lederman not guilty of disorderly conduct. (Id. ś 20). b. April 28, 1996 Arrest On April 28, 1996 at approximately 11:30 a.m., defendant Mary Fasone, another member of the NYPD, approached Lederman and other artists who were displaying their art at Prince Street between Greene and Mercer Streets in SoHo. (Lederman Aff. ś 22). When Fasone threatened to arrest the artists for selling art without a license, plaintiff began to inform passers-by about Fasone's activities. (Id.). Plaintiff claims that he photographed Fasone destroying a painting. (Id.). According to plaintiff, even though he did not interfere with Fasone's actions or obstruct traffic, Fasone arrested him and charged him with disorderly conduct and obstructing governmental administration. (Id.). On October 25, 1996, after Lederman appeared in criminal court several times, the charges were dismissed. (Id. ś 23). During plaintiff's arrest, Fasone and other police officers confiscated plaintiff's artwork, including seventy-five original art prints, and protest signs. (Id. ś 22). Thereafter, the NYPD informed Lederman that his art had been destroyed. (Id.). On or about July 18, 1996, plaintiff filed a notice of claim, but the City has failed to make any adjustment or payment. (Compl.ś 28). c. May 11, 1996 Arrest According to Lederman, on May 11, 1996 at approximately 2 p.m., he was painting at Prince and Mercer Streets in SoHo and had with him paint brushes, a color palette, a rag, and a can of water. (Lederman Aff. ś 25). When defendant Joanne Spreen, an NYPD police officer, 265 approached plaintiff,[3] plaintiff explained to her that he was painting and that the six paintings he had on display were not for sale. Lederman then showed Spreen two "Display Only" signs that he had put up when he arrived. During her deposition, Spreen testified that from observing Lederman's activities, she determined that he was attempting to sell his paintings without a license. (Orsland Decl.Ex. D at 14-20). Spreen further testified that she requested that a supervisor come to the scene to verify Lederman's arrest. (Id. at 33-34). Lederman asserts that Spreen then began harassing other nearby artists. When Spreen approached the other artists, plaintiff took a photograph of her, picked up a "Stop Arresting Artists" protest sign and began to inform the public about the "policy" of arresting artists, the existence of a federal lawsuit challenging the constitutionality of that policy, and the sale of confiscated art at auction by the police. (Lederman Aff. ś 26). Lederman and several other artists participated in a "short" (five to ten minutes) and "peaceful" demonstration with protest signs and the chant: "Stop arresting artists." (Id.). None of the demonstrators, including plaintiff, impeded the pedestrian or vehicular traffic or the activities of the police, and Spreen did not order the protestors to stop demonstrating. (Id.). Toward the end of the demonstration, two other officers, defendants Michael Ruppenthal, incorrectly sued herein as Rappenthal, and Donato DiPaolo, arrived on the scene in a patrol car, conversed with Spreen near plaintiff's paintings, and looked at plaintiff's paintings. (Id. ś 28). Spreen testified that she explained to Ruppenthal, that based on her observations of Lederman, she wanted to arrest Lederman for unlicensed general vending. (Orsland Decl.Ex. D at 47-49). Ruppenthal authorized the arrest. (Id. at 47-48). Lederman took a photograph of the three officers after which they immediately arrested him.[4] (Lederman Aff. ś 28). Plaintiff alleges that while he was in custody DiPaolo: (1) threatened to report him to the Internal Revenue Service for failing to pay taxes; and (2) asked plaintiff if he was Jewish and then said: "I think Hitler had some good ideas[,] don't you?" (Id. ś 30). At the precinct, plaintiff was charged with unlicensed general vending and disorderly conduct. These charges were dismissed on October 25, 1996 after he was required to appear in court on several occasions. (Id. ś 31). When they arrested plaintiff, Ruppenthal, DiPaolo, and Spreen seized the six paintings he had on display. After the criminal charges were dismissed, plaintiff demanded the return of his paintings, but the NYPD informed him that the paintings had been sold or destroyed in September 1996. (Compl. ś 33). On or about July 18, 1996, plaintiff filed a notice of claim, but the City has failed to make any adjustment or payment. (Id. ś 34). B. Procedural History Lederman filed a complaint on June 19, 1996 against Adams and the City. On August 16, 1996, the City filed an answer denying the allegations and asserting affirmative defenses. Adams filed an answer denying the allegations and asserting affirmative defenses on October 22, 1996. On February 3, 1997, Lederman filed an amended complaint, including as additional defendants Fasone, Spreen, Ruppenthal, DiPaolo, and the NYPD.[5] The amended 266 complaint is not a model of clarity and purports to assert eight causes of action. It appears, however, to assert claims for assault and battery, false arrest, false imprisonment, malicious prosecution, use of excessive force, and interference with rights to assemble and speak and to due process of law, in violation of the U.S. Constitution as well as state law, based on the March 25, 1995, April 28, 1996, and May 11, 1996 arrests. Plaintiff seeks compensatory and punitive damages under 42 U.S.C. § 1983 and state law against the individual police officers as well as the City, together with equitable relief, attorney's fees, and costs. This motion followed. DISCUSSION Defendants have not moved for summary judgment with respect to the April 28, 1996 arrest.[6] Hence, I will limit my discussion to the March 25, 1995 arrest, the May 11, 1996 arrest, and the issue of municipal liability. A. March 25, 1995 Arrest Adams moves for summary judgment on the claims stemming from his March 25, 1995 arrest of Lederman when plaintiff was protesting the arrest of artist Ley. Five claims are presented: (1) unlawful arrest; (2) malicious prosecution; (3) excessive use of force; (4) assault and battery; and (5) the First Amendment. 1. Unlawful Arrest Adams seeks dismissal of the § 1983 claim for unlawful arrest for disorderly conduct on the basis that he is entitled to qualified immunity. a. Relevant Legal Standards (1) Disorderly Conduct Under New York law, "[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," she or he engages in certain behavior, including: creating unreasonable noise, using abusive or obscene language in public, disturbing a lawful assembly, obstructing pedestrian or vehicular traffic, congregating with other people in public and refusing to comply with a lawful police order to disperse, and creating a hazardous or physically offensive condition that does not serve a legitimate purpose. N.Y.Penal L. § 240.20. (2) Probable Cause The right to be free from arrest in the absence of probable cause is well established. Probable cause exists "when the arresting officer has `knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.'" Nichols v. Village of Pelham Manor, 974 F. Supp. 243 (S.D.N.Y.1997) (holding that probable cause to arrest for disorderly conduct did not exist where plaintiff, an official of a political party, called police officers "ignoramuses") (quoting O'Neill v. Town of Babylon, 986 F.2d 646, 650 (2d Cir.1993)). (3) Qualified Immunity The doctrine of qualified immunity shields police officers from personal liability for "official conduct that `does not violate clearly established statutory or constitutional rights of which a reasonable 267 person would have known.'" Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 127 (2d Cir.1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). An officer is therefore entitled to qualified immunity for false arrest: (1) if it was objectively reasonable for the officer to believe that there was probable cause to make the arrest; or (2) if reasonably competent police officers could disagree as to whether there was probable cause to arrest. See Ricciuti, 124 F.3d at 128. In qualified immunity cases, the focus is not on the "correctness of the defendants' conduct, but rather the `objective reasonableness' of their chosen course of action given the circumstances confronting them at the scene." Lennon v. Miller, 66 F.3d 416, 421 (2d Cir.1995). Although immunity is usually an issue for the court, where the facts are disputed, "jury consideration is normally required." Fincher v. County of Westchester, 979 F. Supp. 989, 1001 (S.D.N.Y. 1997) (quoting Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir.1994), cert. denied, 513 U.S. 1076, 115 S. Ct. 721, 130 L. Ed. 2d 627 (1995)); see Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996) (stating that summary judgment is only appropriate if no dispute exists "as to the pertinent events and the knowledge of the officers"). Defendants are not entitled to summary judgment "if any reasonable trier of fact could find that the defendants' actions were objectively unreasonable." Lennon, 66 F.3d at 420. An officer's actions are objectively unreasonable if no reasonably competent officer would have acted the same way under similar circumstances. Id. at 420-21. b. Application Adams claims Lederman "cannot reasonably assert that he was not guilty of disorderly conduct." (Defs. Mem. at 15). I disagree. A reasonable jury could find that plaintiff was not responsible for the crowd forming or remaining in the area. Lederman testified at his deposition that, when he arrived on the scene, a crowd had already formed to watch the police arrest Ley, and that the crowd continued to grow because of the police activity, not because of him. (See Orsland Decl. Ex. C at 136-37). Further, plaintiff claims that neither he nor anyone else from the crowd blocked the ambulance, interfered or threatened to interfere with police activity, or obstructed vehicular traffic. (Lederman Aff. ś 15). Moreover, a reasonable jury could conclude, on the evidence before the Court, that Adams's arrest of Lederman for disorderly conduct was not supported by probable cause and was not objectively reasonable. Accordingly, Adams is not entitled to qualified immunity as a matter of law and his motion for summary judgment in this respect is denied. 2. Malicious Prosecution To state a claim for malicious prosecution under New York law, the plaintiff must prove: (1) the initiation or continuation of a criminal proceeding against the plaintiff; (2) the termination of the proceeding in the plaintiff's favor; (3) lack of probable cause to commence the proceeding; and (4) actual malice as motivation for the defendant's actions. Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997), cert. denied, ___ U.S. ___, 118 S. Ct. 1051, 140 L. Ed. 2d 114 (1998). Here, Adams arrested Lederman and charged him with disorderly conduct; the charges were dismissed; and Lederman alleges actual malice. As the Court has denied Adams's motion for summary judgment on the unlawful arrest claim, Adams's motion to dismiss plaintiff's malicious prosecution claim is also denied. 3. Excessive Force Adams argues that the amount of force alleged by plaintiff does not rise to the level of a Fourth Amendment violation and that therefore he is entitled to summary judgment on the civil rights claim for use of excessive force. 268 To establish that an officer employed excessive force during an arrest, the plaintiff must show that the force constituted an unreasonable seizure of the person "judged from the perspective of a reasonable officer on the scene." Graham v. Connor, 490 U.S. 386, 395-96, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989); see Landy v. Irizarry, 884 F. Supp. 788, 798 (S.D.N.Y. 1995). The issue is whether the amount of forced used by the officer was "objectively reasonable" based on the totality of the circumstances. Graham, 490 U.S. at 397, 109 S. Ct. 1865. Factors to be considered include: (1) the severity of the crime; (2) whether the suspect poses an immediate threat to the safety of officers or others; (3) and whether the arrestee actively resists arrest or attempts to evade arrest by flight. Id. at 396, 109 S. Ct. 1865; see also Robison v. Via, 821 F.2d 913, 923 (2d Cir.1987) (considering the need for force, the amount of force used, the injury inflicted, and whether force was applied in good faith or maliciously and sadistically). Adams cites several cases to support the proposition that the amount of force alleged here does not reach constitutional proportions. These cases are inapposite. In Hamilton v. Broomfield, No. 95 Civ. 3241, 1998 WL 17697, at 2 (S.D.N.Y. Jan.20, 1998), for example, the plaintiff admitted that he resisted arrest. Similarly, in Sassower v. City of White Plains, No. 89 Civ. 1267, 1995 WL 222206, at 2 (S.D.N.Y. Apr. 13, 1995), plaintiff was convicted of resisting arrest. Adams also cites Robison where the court ruled that an officer prying at the plaintiff's fingers was insufficient force as a matter of law to constitute excessive force. Robison, 821 F.2d at 923. The allegations of the force allegedly used by a second officer in Robison, however, are similar to the allegations here: The officer there pushed the plaintiff against the inside of her car door, yanked her out of the car, threw her against the fender, and twisted her arm, resulting in bruising that lasted approximately two weeks. Id. at 923-24. The Second Circuit held that these allegations were sufficient to preclude summary dismissal of the plaintiff's excessive force claim. Id. Lederman has likewise raised a genuine issue of fact as to whether Adams employed excessive force while arresting him. The nature of plaintiff's actions were not violent, plaintiff claims that he did not pose a threat to the safety of officers or others, and there is no evidence that plaintiff attempted to resist arrest or flee. Accordingly, Adams's motion for summary judgment as to the § 1983 claim for excessive use of force is denied. 4. Assault and Battery An assault is "an intentional placing of another person in fear of imminent harmful or offensive contact"; a battery is "intentional wrongful physical contact with another person without consent." Charkhy v. Altman, 252 A.D.2d 413, 678 N.Y.S.2d 40 (1st Dep't 1998) (quoting United Nat'l Ins. Co. v. Waterfront N.Y. Realty Corp., 994 F.2d 105 (2d Cir.1993)); see Johnson v. Suffolk County Police Dep't, 245 A.D.2d 340, 665 N.Y.S.2d 440, 440 (2d Dep't 1997) (holding that a police officer committed a battery when he touched the plaintiff during an unlawful arrest). Under New York Penal Law § 35.30, an officer "may use physical force when and to the extent [she or] he reasonably believes such to be necessary to effect the arrest." As discussed above, an issue of fact exists as to whether the arrest was lawful and whether Adams's use of force was reasonable under the circumstances. Accordingly, Adams's motion for summary judgment on the assault and battery claim is denied. 5. First Amendment Adams moves for summary judgment on plaintiff's claim of retaliatory arrest and prosecution for exercising his First Amendment right to assemble and speak. 269 A plaintiff may pursue a claim of retaliatory arrest and prosecution under § 1983. (Defs. Reply Mem. at 8). See Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir.1995), cert. denied, 517 U.S. 1189, 116 S. Ct. 1676, 134 L. Ed. 2d 779 (1996); Magnotti v. Kuntz, 918 F.2d 364 (2d Cir.1990). Adams argues, however, that Lederman has failed to demonstrate that his actions had a chilling effect on his First Amendment activities. The cases defendants cite are inapposite. In Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir.1992), for example, the court held that "[a]n individual does not have a right under the First Amendment to be free from a criminal prosecution supported by probable cause that is in reality an unsuccessful attempt to deter or silence criticism of the government." See Singer, 63 F.3d at 120 (stating that the officer had probable cause to arrest the plaintiff). In Spear v. Town of West Hartford, 954 F.2d 63, 67 (2d Cir.), cert. denied, 506 U.S. 819, 113 S. Ct. 66, 121 L. Ed. 2d 33 (1992), the court held that the plaintiff failed to allege with sufficient particularity the purported chilling effect of the defendant's actions. Here, a question of fact remains as to whether Adams had probable cause to arrest plaintiff or is otherwise entitled to qualified immunity. Further, while Lederman continued his advocacy activities in general, and in that sense his will and effort to exercise his First Amendment rights were not chilled, Adams's actions had an immediate and specific chilling effect on plaintiff in that upon arrest he was unable to continue his demonstration and his First Amendment activities were cut short. Accordingly, Adams's motion for summary judgment on the First Amendment claim is denied. B. May 11, 1996 Arrest Spreen, Ruppenthal, and DiPaolo also move for summary judgment on the claims stemming from their May 11, 1996 arrest of Lederman, when plaintiff contends that he was merely painting and displaying his artwork and protesting police enforcement of the license requirement for artists. These claims include: (1) unlawful arrest; (2) malicious prosecution; and (3) the First Amendment. 1. Unlawful Arrest Because Spreen arrived at the scene prior to Ruppenthal and DiPaolo, and because Ruppenthal and DiPaolo advance additional arguments, the Court will discuss their roles separately. a. Spreen Spreen seeks dismissal of the § 1983 claim for unlawful arrest for unlicensed vending and disorderly conduct on the ground of qualified immunity. 1. Unlicensed Vending Spreen contends that Lederman cannot dispute the unlicensed vending charge because he admitted that he did not have a license and "repeatedly proclaimed his political belief that artists should not be required to have a license to sell art on the street." (Defs. Mem. at 7). Spreen testified that she saw six to eight unlicensed artists, including Lederman, who had their work on the sidewalk; that the artists did not move away from their art; and that passers-by approached and spoke with the artists, but that she did not witness any sales. Spreen argues that her testimony is corroborated by plaintiff's concessions that: He observed Spreen watch the vendors; he displayed his work on the wall; pedestrians were walking by; and Spreen instructed him to remove his art from the wall. Questions of material fact exist that preclude summary judgment. In his affidavit, Lederman swore to facts upon which a reasonable jury could conclude that Spreen's arrest was not supported by probable cause and was objectively unreasonable. Lederman stated, for example, that he: (1) was painting when Spreen approached him and informed the officer 270 that he was doing so; (2) told the officer that his paintings were not for sale; and (3) showed the officer two "Display Only" signs that he claims to have put up when he arrived. Lederman thus alleges, under oath, that he was complying with the law. Spreen argues that "a police officer need not see an actual sale, or even hear actual sale words used, to establish unlawful vending." (Defs. Mem. at 8). In support of this position, Spreen cites People v. Sylla, 154 Misc. 2d 112, 584 N.Y.S.2d 985 (Crim.Ct.N.Y. County 1992). The arrests challenged in Sylla were based on officers observing the defendants for one or two minutes while the defendants stood behind briefcases containing costume watches. Id. at 986-87. The defendants argued that they had not made any verbal offers or displayed any price tags, and that there were no potential customers in the vicinity. Id. at 987. The court found, however, that the officers could have reasonably inferred from the circumstances that the merchandise was being displayed for sale. Id. at 987-88. In determining whether the defendants were operating as vendors pursuant to § 20-453 of the Code, the Sylla court considered: (1) the nature of the goods; (2) their plurality in number; (3) the time, location, and manner of display; and (4) "the obvious, if implicit, availability of the defendants" to sell the goods. I agree with the Sylla court that "an offer to sell may be conveyed in ways other than verbal and need not be aggressive to be effective." Sylla, 584 N.Y.S.2d at 988. Applying the factors here, and accepting Lederman's version of the facts for purposes of this motion, however, I conclude that a reasonable jury could find that it was objectively unreasonable for Spreen to conclude that plaintiff was not simply displaying his art but was instead offering his art for sale. Unlike watches, art may be displayed without being offered for sale, and Lederman claims, in any event, to have hung two "Display Only" signs. Accordingly, Spreen is not entitled to qualified immunity as a matter of law and her motion for summary judgment on the § 1983 claim based on unlicensed vending is denied.[7] 2. Disorderly Conduct Plaintiff has succeeded in raising a triable issue of fact as to whether it was objectively reasonable for Spreen to arrest him for disorderly conduct. Lederman denies that he blocked pedestrian traffic on the sidewalk. Plaintiff further denies that he or the other demonstrators were ordered by the police to disperse. Although, as defendants emphasize, Lederman was speaking to the crowd "loud enough to be heard across the street," the level of his voice arguably was not unreasonable for a few minutes at approximately 2 p.m. on the streets of Manhattan. Accordingly, a reasonable factfinder could conclude that plaintiff's arrest was objectively unreasonable and Spreen's motion for summary judgment is therefore denied. b. Ruppenthal and DiPaolo Ruppenthal and DiPaolo also claim that they are shielded by qualified immunity because they were entitled to rely upon Spreen's representation of the facts. DiPaolo further argues that he is entitled to 271 qualified immunity because his superior, Ruppenthal, authorized the arrest. A law enforcement officer without personal knowledge of the facts is permitted to take action based on the representations of another officer, if it is reasonable to believe that the other officer is telling the truth. Signorile v. City of New York, 887 F. Supp. 403, 417 (E.D.N.Y.1995) (citing United States v. Hensley, 469 U.S. 221, 232-33, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985)). If the defendant was aware of information at the time of the arrest that would have undermined a finding of probable cause, however, that knowledge could defeat the defense of probable cause. Amaker v. Coombe, No. 96 Civ. 1622, 1998 WL 637177, at 8 (S.D.N.Y. Sept. 16, 1998); see also Shaw v. City of New York, No. 95 Civ. 9325, 1997 WL 187352, at 4 (S.D.N.Y. Apr.15, 1997) ("Absent circumstances that raise doubt as to their veracity, an officer is entitled to rely upon the statements of ... fellow police officers." (emphasis added)). Plaintiff has presented sufficient evidence to raise a genuine issue of fact as to whether Ruppenthal and DiPaolo were entitled to rely on Spreen's statements under the circumstances. According to Lederman, prior to his arrest, Ruppenthal and DiPaolo conversed with Spreen close to plaintiff's art. Ruppenthal and DiPaolo arguably were able to see the "Display Only" sign and painting paraphernalia that plaintiff claims were in plain view. Further, it is unclear from the transcript of Spreen's deposition what exactly she told the other two officers and defendants have not submitted affidavits from Ruppenthal and DiPaolo.[8] Ruppenthal and DiPaolo may therefore also have known that plaintiff said to Spreen that his art was not for sale. Defendants argue that Ruppenthal and DiPaolo should not have been required to make an "independent credibility assessment." While there are circumstances under which officers may rely solely on the representations of a fellow officer, a reasonable jury could conclude that it was objectively unreasonable for Ruppenthal and DiPaolo to have done so here. Accordingly, Ruppenthal and DiPaolo's motion for summary judgment is denied. 3. Malicious Prosecution As was the case with Adams's March 25, 1995 arrest of Lederman, here, Lederman was arrested and charged with unlicensed vending and disorderly conduct; the charges were dismissed; and he alleges actual malice. Because a question of fact remains as to whether the arrest was supported by probable cause or whether these defendants are otherwise entitled to qualified immunity, their motion to dismiss Lederman's malicious prosecution claim is denied. 4. First Amendment Again, as was the case with Adams's March 25, 1995 arrest of Lederman, here, a question of fact remains as to whether Spreen, Ruppenthal, and DiPaolo had probable cause to arrest plaintiff or were otherwise entitled to qualified immunity. Further, the May 11, 1996 arrest had an immediate and specific chilling effect on plaintiff in that, upon arrest, he was unable to continue his demonstration and his First Amendment activities were again cut short. Accordingly, the three officers' motion for summary judgment on the retaliatory arrest and prosecution claim is denied. *272 C. Municipal Liability To establish a municipality's liability under § 1983 for unconstitutional acts by an employee who is below the policymaking level, a plaintiff must show that the constitutional violation was caused by a municipal custom or policy. Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995); see Monell, 436 U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). A plaintiff need not prove that the municipality had an explicitly stated rule or regulation; instead, a plaintiff may show that the municipality exhibited deliberate indifference to the possibility of such a constitutional violation. Vann, 72 F.3d at 1049. Lederman has presented sufficient evidence to demonstrate the existence of genuine issues of material fact as to whether the City had an informal policy to deny him and other artists their constitutional rights. The record contains evidence that policymakers, including the Mayor, the Police Commissioner, and the District Attorney, were pressured by the SoHo community and others to rid their streets of unlicensed vendors, including unlicensed artists and Lederman in particular, and that this pressure was relayed to the First Precinct. Further, plaintiff has presented evidence that certain police officers knew and disliked him because of his advocacy activities. Moreover, Lederman was thrice arrested and each time the charges were dismissed. Many of his paintings were destroyed and others artists were arrested as well. A jury could conclude, on the basis of this evidence, that there existed a municipal policy to drive the artists out of the SoHo community. Accordingly, the City's motion for summary judgment is denied. CONCLUSION For the reasons stated above, defendants' motion for partial summary judgment is denied. The parties shall appear for a pretrial conference on April 9, 1999 at 11 a.m. in Courtroom 11A at 500 Pearl Street. SO ORDERED. NOTES [1] A vendor may not allow any goods or any other item related to vending to "touch, lean against or be affixed permanently or temporarily to any building or structure." N.Y.Code § 20-465(c). [2] The only exception from the license requirement was for general vendors who sold "only newspapers, periodicals, books, pamphlets or other similar written matter." N.Y.Code § 20-453. [3] According to Spreen, before Lederman acknowledged her presence, she told him four times that if he did not have a license, he could not sell his paintings and would have to remove the art from the wall. (Orsland Decl. Ex. D at 30-32). [4] According to plaintiff, the three officers also arrested artist Guillermo Barretto because, while Lederman was being arrested, Barretto said to the officers: "[I]f you're going to arrest him you should arrest me too." (Lederman Aff. ś 29). [5] It is well established that as a municipal agency or an organizational subdivision of the City, the NYPD is not a properly suable entity. See Williams v. New York City Police Dep't, 930 F. Supp. 49, 53, 54 (S.D.N.Y.1996); see also Signorile v. City of New York, 887 F. Supp. 403, 421 (E.D.N.Y.1995) ("[T]he NYPD can sue and be sued only in the name of the City."). Hence, as a technical matter, the NYPD is not a proper defendant and the claims against the NYPD are deemed to have been filed against the City. [6] Defendants concede that Fasone's April 28, 1996 arrest of Lederman for disorderly conduct is not amenable to summary judgment because of factual disputes. (Defs. Mem at 4). [7] Spreen further argues that plaintiff violated § 20-465(c) of the Code because his paintings were on the wall of a building. Spreen asserts that there is no "informal verbal permission" exception to the prohibition against hanging or leaning paintings on walls. Lederman did not violate § 20-465(c), however, if he was not acting as a general vendor at the time of the incident. If Lederman was merely displaying his artwork, he would not be a general vendor pursuant to § 20-452(b) and therefore would not be subject to § 20-465(c), which states that: "No vending vehicle, pushcart, stand, goods or any other item related to the operation of a vending business shall touch, lean against or be affixed permanently or temporarily to any building or structure...." If Lederman's paintings were not on sale on May 11, 1996, then they would not be "items related to the operation of a vending business" and therefore Lederman would not have been in violation of § 20-465(c). [8] During her deposition, Spreen apparently merely informed Ruppenthal that based on her observations, she wanted to arrest Lederman for unlicensed vending. (See Orsland Decl. Ex. D at 48). Spreen apparently told Ruppenthal merely that she observed plaintiff, but did not tell him the specific facts that she observed. (Id. (stating "I didn't explain" when asked whether she told Ruppenthal what her observations were)). In their briefs, however, defendants represent that Spreen recited the facts to Ruppenthal. (Defs. Mem. at 12; Defs. Reply Mem. at 4).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498695/	274 P.3d 655 (2012) 47 Kan. App. 2d 204 Gary M. BOLTON, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee. No. 105,188. Court of Appeals of Kansas. March 23, 2012. Barry A. Clark and Jeremiah L. Platt, of Clark & Kellstrom, Chtd., of Manhattan, for appellant. J. Brian Cox, of Legal Services Bureau, Kansas Department of Revenue, for appellee. Before LEBEN, P.J., MALONE and BRUNS, JJ. LEBEN, J. A driver's license may be suspended when the driver fails a breath test for alcohol so long as the testing procedures substantially complied with the directives of the Kansas Department of Health and Environment. Gary Bolton appeals the suspension of his license based on the contention that because he wears denturesthat were left in his mouth for the breath testthe officer didn't follow the testing protocol that prohibits the "oral intake of anything" for 20 minutes before the test. But intake is the act of taking something in, and Bolton's dentures were in his mouth well before the 20-minute observation period that precedes a breath test. See American Heritage Dictionary of the English Language 911 (5th ed.2011) (defining intake as "[t]he act of taking in"). Moreover, all that's required is substantial compliance with the testing procedures. See K.S.A.2010 Supp. 8-1020(h)(2)(F). Officers don't have to have people remove their dentures before performing a breath test for alcohol, so we affirm the suspension of Bolton's driver's license. Bolton's case began after his 2008 DUI arrest. An officer asked him to take a breath test for alcohol on the Intoxilyzer 8000; Bolton agreed. The officer testified that he inspected Bolton's mouth, didn't see anything unusual, and asked Bolton whether he had anything in his mouth. According to 656 the officer, Bolton said no. The officer didn't ask about dentures, though Bolton testified that he was wearing removable dentures at the time. The officer kept Bolton in his presence for an observation period (which must be at least 20 minutes but in this case went for 22 minutes), during which the officer didn't see Bolton put anything in his mouth. Bolton then blew into the machine, and it recorded a blood-alcohol content of.246, well over the legal limit of .08. See K.S.A.2008 Supp. 8-1567(a)(2). After an administrative hearing, the Kansas Department of Revenue affirmed the suspension of Bolton's driver's license based on the test failure. Bolton appealed to the district court, which hears cases like this independently based on evidence presented to the court. See K.S.A.2010 Supp. 8-1020(p). The district court concluded that the officer had substantially complied with testing standards, and the court affirmed the license suspension. No facts related to the substantial-compliance issue are disputed, so we must make an independent determination of that issue on appeal, without any required deference to the district court. See Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008). The legislature has provided for driver's license suspensions when a driver fails a breath test and the testing has been done in accordance with procedures established by the Kansas Department of Health and Environment. That agency has adopted an administrative regulation requiring that those who operate the testing equipment follow a standard operating procedure. See K.A.R. 28-32-9(b)(4). One of the challenges a driver may raise in appealing a license suspension is whether "the testing procedures substantially complied with" these procedures. K.S.A.2010 Supp. 8-1020(h)(2)(F). Our court has said that to demonstrate lack of substantial compliance, the driver must show "a violation of the ... testing procedures that strikes at the purpose for the protocol and casts doubt upon the reliability of the subsequent test results." Mitchell v. Kansas Dept. of Revenue, 41 Kan. App. 2d 114, Syl. ¶ 4, 200 P.3d 496, rev. denied 289 Kan. 1279 (2009). The testing protocol provided by the Kansas Department of Health and Environment requires that the machine operator "[k]eep the subject in [his or her] immediate presence and deprive the subject of alcohol for 20 minutes immediately preceding the test." In addition, the agency supplies an operator's manual for the Intoxilyzer 8000, and it includes this directive: "Do not allow subject to eat, drink, smoke, or chew gum, or to have oral intake of anything" during the 20-minute deprivation period. Bolton argues that letting him blow into the machine with dentures in his mouth violated the directive not to let him "have oral intake of anything." But it certainly did not do so under the ordinary usage of the word intake: the dentures were already in Bolton's mouth, and he did not take them in during the 22 minutes the officer observed him before the test. Nor has Bolton provided any evidence that having dentures in one's mouth affects the breath-test result in any way. The only evidence supporting Bolton's position is the officer's testimony that had he known Bolton had removable dentures in his mouth, the officer would have asked him to take them out before the test. But the officer said he would have done this "just to be safe and avoid issues down the road," not because anyone had trained him to do so. The officer observed Bolton for more than 20 minutes, and Bolton didn't take anything into his mouth during that period. The officer substantially complied with testing procedures, even though Bolton wasn't asked to remove his dentures. We conclude that an officer need not ask a driver to remove his or her dentures to comply with the established testing procedures. We note that all of the published appellate opinions we have been able to locate on this issue have come to the same conclusion. See Schofield v. State, 867 So. 2d 446, 448 (Fla. Dist.App.2004); People v. Witt, 258 Ill. App. 3d 124, 126-27, 196 Ill. Dec. 459, 630 N.E.2d 156 (1994); Farr v. Director of Revenue, State of Mo., 914 S.W.2d 38, 39-40 (Mo.App.1996); State v. Cook, 9 S.W.3d 98, 101 (Tenn.1999). Bolton did not present evidence that the presence of dentures would 657 have affected the test result; thus, this case is not decided based upon a fact-finder's choice between competing expert witnesses. Cf. Bruno v. Iowa Dept. of Transp., 603 N.W.2d 596, 597-98 (Iowa 1999) (affirming license suspension based on fact-finder's acceptance of expert testimony that dentures had no effect on test results over the testimony of competing expert). The judgment of the district court is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498708/	276 P.3d 1013 (2012) 2012 OK 30 TRIAD TRANSPORT, INC. and Insurance Company of the State of Pennsylvania, Petitioners/Appellants, v. Carl WYNNE and the Workers' Compensation Court, Respondents/Appellees. No. 109,810. Supreme Court of Oklahoma. April 10, 2012. 1015 Catherine C. Taylor, Perrine, McGivern, Redemann, Berry & Taylor, P.L.L.C., Tulsa, Oklahoma, for Petitioners/Appellants. Angelica M. Ortiz, Law Offices of Daniel M. Davis, Oklahoma City, Oklahoma, for Respondents/Appellees. COLBERT, V.C.J. ¶ 1 This matter presents the single issue of whether the Workers' Compensation Court has jurisdiction over the claim for injury. All other issues were reserved to the trial court. This Court determines that the employer's offer of employment was accepted by the worker in Oklahoma and therefore the Workers' Compensation Court has jurisdiction to hear the claim. FACTS AND PROCEDURAL HISTORY ¶ 2 Carl Wynne (Claimant) was a truck driver. While he was in Tennessee and driving a truck for his former employer, he heard that Triad Transport, Inc. (Employer) was hiring. Claimant called Employer's headquarters in McAlester, Oklahoma and spoke to Employer's recruiter who had hiring authority. Claimant requested that an application be sent by fax to Odessa, Texas, where Claimant lives. He completed the application and sent it by fax to McAlester. A week or so later, the recruiter phoned while Claimant was driving along Interstate 40, somewhere between Georgia and Arizona. He does not remember in which state he was driving at the time of the call. From the call, Claimant understood that his application had been approved. ¶ 3 Claimant agreed to travel to McAlester for orientation. He returned his prior employer's truck to a terminal in Tuscon, Arizona, and a Triad employee gave him a ride to a Triad satellite terminal in Laveen, Arizona. There, he passed a drug test, was provided a fuel card, and dispatched to Rockwall, Texas with a load. After delivering that load, he drove the empty truck to McAlester for orientation, which began on January 4, 2008 and continued four days. ¶ 4 At the orientation, Claimant underwent a DOT physical, a hydrochloric sulfide test, and a stress test. He completed the paperwork necessary for employment,[1] was assigned a truck, and was issued an employee photo identification card which listed his date of orientation as the date of his employment. In addition, he was told for the first time what would be his precise rate of pay. After orientation, Claimant was dispatched from McAlester to pick up a load. Payment for the trip from Arizona to McAlester was included in his first paycheck on January 25, 2008. ¶ 5 On June 28, 2010, Claimant was injured in a motor vehicle accident in Colorado while he was driving Employer's truck. He filed a Form 3 claim for benefits in the Oklahoma Workers' Compensation Court. The trial tribunal conducted a hearing solely on the issue of the court's jurisdiction. Two witnesses were presented, Claimant and the President of Employer. Claimant testified concerning when and where he was actually hired, and Employer's President testified to the general hiring practices of his company. The recruiter was not called to testify. ¶ 6 The trial tribunal made several findings of fact and concluded: "THAT this court has jurisdiction to hear the case of claimant's subsequent injury as claimant's hiring and final assent to permanent employment relationship between claimant and respondent occurred in Oklahoma." A three-judge panel of the Workers' Compensation Court unanimously affirmed the decision. This Court retained this appeal on its own motion. STANDARD OF REVIEW ¶ 7 "The question of where an employment contract was entered into is nothing 1016 more than an inquiry into a claimant's employment status within Oklahoma." Garrison v. Bechtel Corp., 1995 OK 2, ¶ 24, 889 P.2d 273, 283-284. As such, it is a jurisdictional question, and is reviewable without a denial or an award of benefits. See Id., ¶ 16, 889 P.2d at 280. This Court has held continuously that a decision of the Workers' Compensation Court concerning a jurisdictional question is reviewed de novo. Id., ¶ 24, 889 P.2d at 283. ANALYSIS ¶ 8 Oklahoma's statutory code of workers' compensation applies when (1) a covered employee sustains a compensable injury within Oklahoma or (2) such employee sustains a compensable injury outside Oklahoma and the employment contract was formed within Oklahoma.[2] "To establish that an employment contract was entered into within Oklahoma, the employee must prove that an employment offer was made by the employer or its agent and that it was accepted by the employee in Oklahoma." Garrison, 1995 OK 2, ¶ 19, 889 P.2d at 281. "To constitute acceptance, there must be an expression of the intent to accept the offer, by word, sign, writing or act, communicated or delivered to the person making the offer or the offeror's agent." Id., ¶ 18, 889 P.2d at 281. It is not the place of an employer's offer that establishes where the contract is made. Instead, "a contract is deemed to have been made where [the employee's] final assent to the offer is given." Id. Therefore, if the employee gives final assent to employment while within the territorial limits of Oklahoma, the Oklahoma Workers' Compensation Court has jurisdiction over the workrelated injury. See, e.g., General Electric Co. v. Folsom, 1958 OK 279, 332 P.2d 950; Alexander v. Transp. Distrib. Co., 1998 OK CIV APP 10, 954 P.2d 1247. Conversely, if the employee's final assent to employment is given while the employee is outside the territorial limits of Oklahoma, the claim is not subject to Oklahoma's workers' compensation laws. See, e.g., Garrison, 1995 OK 2, 889 P.2d 273; Daleo, Inc. v. Edmonds, 1994 OK 122, 884 P.2d 544; Driver Mgmt., Inc. v. Miller, 1995 OK CIV APP 137, 908 P.2d 815. ¶ 9 When there are "mere formalities" or "contingent acts" that are performed in another state after final assent, the date of employment relates back to the date of the final assent and the location of the employee at the time of final assent is controlling. Folsom, 1958 OK 279, ¶ 7, 332 P.2d at 952 (Oklahoma employee's final assent in letter to employer out of state created an employment contract even though it was contingent upon a medical examination in Indiana because, upon completion of the requirement, "the effective date of his employment related back to, and was coincident with, his acceptance in Oklahoma."); Alexander, 1998 OK CIV APP 10, ¶ 18, 954 P.2d at 1251 (Where an employee gave her final assent to employment in Oklahoma, "the new employees' orientation activities in which the claimant participated upon arriving in Joplin were merely formalities or contingent acts to be performed by the employee at some future time and somewhere other than Oklahoma."); Miller, 1995 OK CIV APP 137, ¶ 9, 908 P.2d at 818 ("[E]mployer's imposition of a condition to the hiring to be performed other than in Oklahoma does not preclude formation of a contract of employment in this state where the parties manifest the requisite intent here."). *1017 ¶ 10 Employer asserts that it made an offer of employment when the recruiter phoned while Claimant was traveling along I-40 between Georgia and Arizona. Employer argues the offer was accepted (1) in that phone conversation or (2) by Claimant's decision to bring one of Employer's trucks to Oklahoma and deliver a load to Texas on the way.[3] Employer characterizes the orientation in Oklahoma as a mere formality which followed Claimant's final assent to employment in a state other than Oklahoma. Claimant, on the other hand, argues that he did not give his final assent to employment until his orientation, testing, and training in Oklahoma. ¶ 11 The factual dispute at trial centered on the time and place of Claimant's final assent. Claimant testified to his understanding of the employment offer and his assent thereto. Employer's President testified as to the general hiring practices of his company and his confidence in the recruiter with whom hiring authority was vested. The only testimony as to what was actually understood from the conversation between Claimant and the recruiter was provided by Claimant. ¶ 12 "The relation of employer and employee is a first prerequisite to any award under the compensation act, and such relation is created by contract, either express or implied, or by the unequivocal acts of the parties recognizing the relationship." Landrum v. Ownby, 1955 OK 343, ¶ 0, 290 P.2d 400, 401 (Syl. n. 1 by the Court). Employer's evidence of its general hiring practices does not address the question of whether Claimant communicated final assent to an offer from the recruiter during a phone call. Only the recruiter and Claimant could address that question, and only Claimant testified. Nor can the acts of Claimant in moving the load from Arizona to Texas on the way to Oklahoma be considered to constitute "unequivocal" assent to an offer of employment, if such an offer was made in that conversation. The acts are entirely consistent with Claimant's testimony that he believed he was merely "getting [himself] back up to McAlester by means of moving a load for Triad" and that he needed to attend orientation to complete all the paperwork in order to provide his assent to employment. ¶ 13 This Court's de novo review of the record, the testimony of the witnesses, and the arguments of the parties leads to the conclusion that Claimant's final assent to employment did not occur until he attended the orientation in Oklahoma. This is not a matter in which final assent was followed by "mere formalities" or "contingent acts" which relate back to the date of final assent and therefore the date of employment. Rather, in this matter, a prospective employee performed a service for the benefit of a prospective employer in order to facilitate the hiring process. That process began when Claimant first made contact with Employer's recruiter, but it did not end until Claimant gave his final assent to employment during the orientation in Oklahoma. The Workers' Compensation Court did not err in determining that it has jurisdiction to hear the claim. AFFIRMED. ALL JUSTICES CONCUR. NOTES [1] Claimant completed a three-inch binder of paperwork during the orientation. [2] The statute in effect at the time of Claimants injury provided: [A]ll the provisions of the Workers' Compensation Act of this state, Sections 1 et seq. of this title, shall apply to employers and employees, irrespective of where [the] accident resulting in injury may occur, whether within or without the territorial limits of the State of Oklahoma, when the contract of employment was entered into within the State of Oklahoma, and the said employee was acting in the course of such employment and performing work outside the territorial limits of this state under [the] direction of such employer. Okla. Stat. tit. 85, § 4 (2001). The current provision of the Workers' Compensation Code, effective August 26, 2011, is in accord. It provides: Every employer subject to the provisions of the Workers' Compensation Code shall pay or provide benefits according to the provisions of this act for the accidental injury or death of an employee arising out of and in the course of his or her employment, without regard to fault for such injury, if the employee's contract of employment was made or if the injury occurred within this state. Okla. Stat. tit. 85, § 310 (2011). [3] A third position was asserted at trial when Employer's President stated his belief that the state of an employee's residence determines where the employment offer is accepted and the employment contract is formed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498919/	12 F.Supp.2d 931 (1998) Paula Corbin JONES, Plaintiff, v. William Jefferson CLINTON and Danny Ferguson, Defendants. No. LR-C-94-290. United States District Court, E.D. Arkansas, Western Division. June 30, 1998. Order Granting Reconsideration in Part September 1, 1998. 932 Robert E. Rader, Jr., Thomas Wesley Holmes, James McCord Wilson, James Austin Fisher, David M. Pyke, Donovan Campbell, Jr., Rader, Campbell, Fisher & Pyke, Dallas, TX, for Paula Corbin Jones. Kathlyn Graves, Wright, Lindsey & Jennings, Little Rock, AR, Stephen C. Engstrom, Wislon, Engstrom, Corum & Coulter, Little Rock, AR, Robert S. Bennett, Skadden, Arps, Slate, Meagher & Flom, Washington, DC, for William Jefferson Clinton. Bill W. Bristow, Seay & Bristow, Jonesboro, AR, Robert Batton, Municipal Judge, Jacksonville, AR, for Danny Ferguson. MEMORANDUM AND ORDER SUSAN WEBBER WRIGHT, Chief Judge. Faced with intense and often inaccurate media coverage of virtually every aspect of this civil case, this Court, on October 30, 1997, entered a Confidentiality Order on Consent of all Parties, thereby imposing limits on the dissemination of information concerning a large portion of discovery and placing under seal court filings dealing with discovery. The Court took this action to help ensure that a fair and impartial jury could be selected in the event this matter went to trial by limiting prejudicial pre-trial publicity. Following entry of the Confidentiality Order, various media entities filed a motion for Leave to Intervene, Motion to Modify and/or Rescind Confidentiality Order and Motion for Access to Court Records and Discovery.[1] Other parties also sought recission of the Confidentiality Order and for 933 access to Court records and discovery. By Memorandum and Order dated March 9, 1998 [doc. # 335], this Court denied the motions seeking to rescind and/or modify the Confidentiality Order. In its Memorandum and Order, the Court pointed out the need to ensure a fair trial and, further, that there existed a need to protect the privacy interests of third-party witnesses pursuant to Fed.R Civ.P. 26(c).[2] The media entities appealed. Following the filing of the notice of appeal but before the Court of Appeals for the Eighth Circuit could issue an opinion on the matter, this Court, by Memorandum Opinion and Order dated April 1, 1998, granted the President's and Ferguson's motions for summary judgment and entered judgment dismissing this case. See Jones v. Clinton, 990 F.Supp. 657 (E.D.Ark.1998). The Eighth Circuit subsequently issued an order dismissing the media entities' appeal and directing this Court to consider on remand the need for keeping its Confidentiality Order in place in view of the grant of summary judgment. See Jones v. Clinton, 138 F.3d 758 (8th Cir.1998). The Eighth Circuit's mandate was filed in this Court on June 3, 1998. In accordance with the Order of the Eighth Circuit, this Court, by Order dated June 8, 1998, asked the parties to file briefs on or before June 19, 1998, setting forth their positions, if any, on the need for keeping in place the Confidentiality Order.[3] With the exception of defendant Ferguson (who apparently takes no position on the matter), all the parties timely filed briefs as directed by the Court. Having considered the matter, this Court concludes that the primary reasons for maintaining the Confidentiality Order are no longer in place and that the Confidentiality Order should be and hereby is vacated in part as set forth below. I. Plaintiff essentially argues that the Confidentiality Order should remain in effect for so long as there is a possibility that this case will be tried to a jury as the parties' rights to a fair trial are paramount. The President likewise argues that so long as any appeal is pending, the parties' rights to a fair trial and a fair and impartial jury remain an issue and the Confidentiality Order should thus remain in place. The media entities, however, argue that the two primary purposes of the Confidentiality Order preserving the parties' fair trial rights and protecting third party witnesses from "the stigma of being associated with a case that involves alleged sexual indiscretions and which is being played out on a national stage" has been mooted by virtue of this Court's grant of summary judgment to the defendants and by virtue of the fact that the identities of many third party witnesses have been made public in one manner or another. It is also argued that possible embarrassment from the disclosure of discovery materials does not in itself justify sealing such materials and that any privacy interests implicated in this case are diminished due to the compelling public interest in the conduct of one of the most public officials in the world, the President of the United States. II. In an effort to keep the Confidentiality Order as narrow as possible, the Court previously unsealed pleadings and/or rulings involving, among other things, the Paula Jones Legal Fund, the United States Secret Service, Monica Lewinsky, and the Office of Independent Counsel. See Memorandum and Order of March 9, at 8. Since that time, a significant portion of the matters previously under seal have now been made a part of the public record by virtue of the briefing of the issues regarding summary judgment and the filing of additional pleadings in the period 934 that followed. Because a significant part of the record relating to discovery has, in one form or another, been made public, there is no need to maintain under seal those materials that continue to be subject to the Confidentiality Order. See In re Texaco, Inc., 84 B.R. 14, 18 (S.D.N.Y.1988) (noting that the need to seal court records is diminished where the information has already been disclosed to the public in some fashion).[4] In addition, the Court has since granted the defendants' motions for summary judgment and there is now no imminent trial in which prejudicial pre-trial publicity remains a concern. While there is, of course, the possibility that the Eighth Circuit will determine that the grant of summary judgment to defendants was erroneous (whether in part or in whole), any such decision would not be handed down for several months and any trial date would most likely not be set until sometime after the first of the year, a significant passage of time from today's date.[5] That being so, and considering the substantial information already in the public domain, the Court determines that the primary basis for the Confidentiality Order the threat of prejudicial pre-trial publicity is no longer sufficient justification for its maintenance. III. The Court does determine, however, that compelling privacy interests weigh in favor of maintaining under seal the identities of any Jane Does that may be revealed in the record or in any materials in the possession of the parties that have not been filed of record. This includes, but is not limited to, their names, addresses, occupations, or any other identifying information. As the Court previously noted, protecting the privacy interests of individuals who might be the subject of intrusive and embarrassing discovery is good cause under Rule 26(c) for maintaining the Confidentiality Order: Rule 26(c) ... protects privacy interests and specifically includes among its express purposes the protection of a party or person from embarrassment. See Seattle Times, 467 U.S. at 35 n. 21. If ever there was a case necessitating such protection, the case of Jones v. Clinton is it. Much of the discovery in this case of alleged sexual harassment has delved deeply into the personal lives of individuals and elicited information that, regardless of its truth or falsity, could prove damaging to reputation and privacy. Many in the media have shown no restraint in their willingness to place such personal information in the public domain despite the pain it may cause. Driven by profit and intense competition, gossip, speculation, and innuendo have replaced legitimate sources and attribution as the tools of the trade for many of these media representatives. Stories are apparently no longer subjected to critical examination prior to being printed. Indeed, the printing of a story in one publication is itself now considered newsworthy and justification for its reprinting in other publications, without critical examination for accuracy and bias. Thus, stories without attribution and based on gossip, speculation, and innuendo fly through media outlets with blinding speed only later to be placed in context or subjected to clarification and/or retraction, as 935 the case may be. The Court finds there is good cause under Rule 26(c) in attempting to protect private individuals from the stigma of being associated with a case that involves alleged sexual indiscretions and which is being played out on a national stage. Memorandum and Order of March 9, at 6-7. The Court continues to adhere to that aspect of its Memorandum and Order and, thus, determines that the Confidentiality Order will remain in place insofar as the identities of any Jane Does are concerned. IV. With the exception of the identities of any Jane Does (to which the Confidentiality Order will remain in effect), the Court's decision to vacate the Confidentiality Order applies as well to any materials that may be in possession of the parties but which are not a part of the Court record. This includes the full transcript of the plaintiff's and President's respective depositions, but not, however, the videotapes of any depositions taken in connection with this lawsuit.[6] All videotapes shall remain under seal. In addition, the parties may make any public statements that would otherwise have been subject to the Confidentiality Order to the extent such statements do not reveal the identities of any Jane Does. The parties may decide for themselves whether to release any such materials that may be in their possession and which were previously subject to the Confidentiality Order and whether to make any public statements that would otherwise have been subject to the Confidentiality Order. Should any of the parties release any materials in their possession they must redact any and all portions of those materials that reveal in any way the identities of any Jane Does including, but not limited to, their names, addresses, occupations, or any other identifying information. Should any of the parties make public statements, any such statements must likewise not reveal in any way the identities of any Jane Does. V. In sum, the Court vacates the Confidentiality Order as to those matters which do not reveal the identities of any Jane Does and hereby unseals the record in this matter. The Confidentiality Order shall remain in effect with respect to the identities of any Jane Does who may be revealed in the Court record, in any materials in possession of the parties that have not been filed of record, and in any public statements. In addition, all videotapes of depositions taken in connection with this lawsuit shall remain under seal. The parties shall have until and including July 10, 1998, in which to file a notice of appeal from today's decision and to ask that today's decision be stayed pending appeal. If no notice of appeal and motion to stay is filed within that time, the Court will proceed to unseal the record in a manner consistent with today's Memorandum and Order. MEMORANDUM AND ORDER On May 6th, 1994, the plaintiff in this case, Paula Corbin Jones, filed suit against William Jefferson Clinton, President of the United States, and Danny Ferguson, a former Arkansas State Police Officer, seeking damages for alleged actions beginning with an incident that is said to have occurred in a hotel suite in Little Rock, Arkansas, on May 8th, 1991. The case ultimately made its way to the Supreme Court of the United States where it was determined that plaintiff's lawsuit could proceed while the President is in office. See Clinton v. Jones, 520 U.S. 681, 117 S.Ct. 1636, 137 L.Ed.2d 945(1997). Following that decision, and following this Court's partial denial of the President's and Ferguson's subsequent motion for judgment on the pleadings, see Jones v. Clinton, 974 F.Supp. 712 (E.D.Ark.1997), formal discovery commenced. Because of the salacious nature 936 of much of the discovery and the media's intense and often inaccurate coverage of this case, this Court, on October 30th, 1997, entered a Confidentiality Order on Consent of all Parties, thereby imposing limits on the dissemination of information concerning a large portion of discovery and placing under seal court filings dealing with discovery. The Court took this action to help ensure that a fair and impartial jury could be selected in the event this matter went to trial by limiting prejudicial pre-trial publicity. Following entry of the Confidentiality Order, various media entities filed a Motion for Leave to Intervene, Motion to Modify and/or Rescind Confidentiality Order and Motion for Access to Court Records and Discovery.[1] Other parties also sought recission of the Confidentiality Order and for access to court records and discovery. By Memorandum and Order dated March 9th, 1998, this Court denied the motions seeking to rescind and/or modify the Confidentiality Order. In its Memorandum and Order, the Court pointed out the need to ensure a fair trial and, further, that there existed a need to protect the privacy interests of third-party witnesses pursuant to Fed.R.Civ.P. 26(c).[2] The media entities appealed. Following the filing of the notice of appeal but before the Court of Appeals for the Eighth Circuit could issue an opinion on the matter, this Court granted the President's and Ferguson's motions for summary judgment and entered judgment dismissing this case. See Jones v. Clinton, 990 F.Supp. 657 (E.D.Ark.1998). The Eighth Circuit subsequently issued an order dismissing the media entities' appeal and directing this Court to consider on remand the need for keeping its Confidentiality Order in place in view of the grant of summary judgment. See Jones v. Clinton, 138 F.3d 758 (8th Cir. 1998). The Eighth Circuit's mandate was filed in this Court on June 3rd, 1998. In accordance with the Order of the Eighth Circuit, this Court, by Order dated June 8th, 1998, asked the parties to file briefs setting forth their positions, if any, on the need for keeping in place the Confidentiality Order. Following submission of the briefs outlining the parties' respective views, this Court, by Memorandum and Order dated June 30th, 1998, vacated in large part the Confidentiality Order and directed that a substantial portion of the record in this matter be unsealed. In so ruling, the Court determined that the Confidentiality Order shall remain in effect with respect to the identities of any Jane Does who may be revealed in the Court record, in any materials in possession of the parties that have not been filed of record, and in any public statements. In addition, the Court determined that all videotapes of depositions taken in connection with this lawsuit shall remain under seal. Now before the Court is a motion by the President for reconsideration of this Court's decision to partially unseal the record and to stay the June 30th Memorandum and Order. The plaintiff and the media have responded to the President's motion and the President has filed a reply to the plaintiff's and the media's responses. Having considered the matter, the Court grants in part and denies in part the President's motion for reconsideration. I. The President argues that this Court should reconsider the June 30th, 1998 Memorandum and Order because this Court may not have been aware of all the discovery material that remains under seal, much of which he says was not filed with the Court or attached to any motion; there is no right of access to the material at issue; the parties' fair trial interests would be prejudiced and that prejudice cannot be mitigated by the passage of time; the privacy interests protected 937 are too narrow; and unsealing would permit plaintiff, the media and others to misuse the Court's processes and Court files for profit or political gain. In response, the media entities argue that the President's motion raises no new issues and should be denied for that reason alone. They further argue that this Court's order represented a proper exercise of its discretion in balancing privacy rights against the interest of the media and the public in full and accurate disclosure of the history of this case and the course of the discovery process, and that there is no basis for the President's contention that much of the record in this litigation over serious allegations of official misconduct should be concealed from public view long after any circumstances require it. For her part, the plaintiff has altered her previous position on the matter and now argues for the complete unsealing of the record.[3] She argues that it is in the best interests of all parties concerned, as well as the rights of the public and media, to disclose all the discovery and evidence relating to the case at this time, with the single exception of the identifying testimony relating to a certain Jane Doe. Plaintiff further argues that this Court has enunciated no rational justification for retaining the seal on videotapes of deposition testimony and that the Court's Order with regard to the videotapes constitutes a taking of her property without just compensation or due process pursuant to the Fifth and Fourteenth Amendments. II. At issue are three categories of materials: (1) court filings that are under seal; (2) discovery materials in the hands of the parties that are not filed with the Court but are nevertheless under seal as subject to the Confidentiality Order; and (3) videotaped and transcribed depositions.[4] The Court will address these categories in turn. 1. With respect to the first category of materials court filings that are under seal the Court has determined that there are contained in the Court's files matters under seal which do not at this time impact upon the parties' rights to a fair trial or the interests of the Jane Does in maintaining privacy, two interests for implementation of the Confidentiality Order. In that regard, the Court will review all materials on file with the Court and will release on a periodic basis such materials, either in whole or as redacted, that the Court determines will not (1) impact upon the parties' rights to a fair trial and/or (2) do not adversely affect the privacy interests of any Jane Does. In releasing such materials, the Court will attempt to ascertain the negative inferences any such materials may have on one party or the other and will attempt, where possible, to coordinate the release of such materials on an equal basis. The Court will not, however, release any materials involving Jane Does, whether in whole or as redacted, without first giving those Jane Does and the parties an opportunity to object to their release. While the President may be correct that such review and/or redaction of the record prior to release may prove to be a burdensome task, this Court must follow its duty notwithstanding the difficulty of any particular course of action. 2. With respect to the second category of materials discovery materials in the hands of parties that are not filed with the Court but are nevertheless under seal as subject to the Confidentiality Order the Court directs that no such materials in the hands of the parties be released or otherwise disclosed without first obtaining Court approval. In approving the release of any materials, whether in whole or as redacted, the Court will utilize the test previously enunciated, 938 i.e. whether the release of any such materials impacts upon the parties' rights to a fair trial and/or whether such materials adversely affect the privacy interests of any Jane Does. 3. With respect to the third and final category of materials the videotaped and transcribed depositions of the parties the Court will maintain under seal the videotapes of any depositions taken in connection with this lawsuit, whether they be videotapes of the parties or of non-party witnesses. As the Court has previously noted, the videotapes of the depositions are not judicial records to which any common law right of public access attaches and, with respect to the President, there is a strong judicial tradition of proscribing public access to recordings of testimony given by a sitting President. See United States v. McDougal, 103 F.3d 651, 656-659 (8th Cir.1996), cert. denied, ___ U.S. ___, 118 S.Ct. 49, 139 L.Ed.2d 15 (1997). With respect to transcripts of the depositions of the parties, however, the Court will permit these transcripts to be released in their entirety provided, however, that all identifying information of any Jane Does has been redacted and the redaction has been approved by the Court. It should be noted that the plaintiff and Ferguson do not object to their depositions being released in their entirety. Although the President does object, his deposition has largely been made public and has been the subject of intense scrutiny in the wake of his public admission that he was "misleading" with regard to his relationship with Monica Lewinsky.[5] That being the case, the Court determines that no fair trial interests are implicated by the release, as redacted and approved by this Court, of the transcripts of his or the other parties' depositions. III. Having set forth the procedure this Court will utilize in unsealing a large part of the record, the Court now addresses plaintiff's claim that she has a Fifth Amendment property interest in discovery materials, namely the videotapes of depositions which she noticed. Plaintiff cites no authority for such a proposition and, as correctly noted by the President, the Supreme Court has held that "[l]iberal discovery is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes." Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Indeed, as a general matter, plaintiff would not have any right to the material at issue but for the discovery procedures set forth in the Federal Rules of Civil Procedure. The Court thus rules that plaintiff has no property interest in the discovery materials she has amassed. Likewise, the Court rejects any assertion by plaintiff that this Court is impeding upon First Amendment interests in the discovery materials she has amassed in this case. See Seattle Times, 467 U.S. at 33-37, 104 S.Ct. 2199 (holding that "restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information," and that "where a protective order is entered on a showing of good cause as required by Rule 26(c) [of the Federal Rules of Civil Procedure], is limited to the context of pretrial discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment"). IV. One final matter concerns motions by two Jane Does to intervene and to reconsider the Court's June 30th, 1998 Memorandum and Order, both of which were filed for purposes of protecting their privacy interests, a motion by non-party deponent Dolly Kyle Browning for a Protective Order in which she requests that certain portions of her deposition transcript and exhibits remain sealed to protect the privacy of persons with little or no connection with the facts underlying this action and to preserve proprietary information, and a motion by the Office of Independent Counsel ("OIC") to maintain the confidentiality of its March 27th, 1998 filing, i.e., "In Camera Submission of the United States in Support 939 of [the United States'] Motion for Limited Intervention and a Stay of Kathleen Willey's Further Deposition." The motions of the two Jane Does to intervene are granted.[6] Those portions of their motions to reconsider are granted to the extent set forth in today's Memorandum and Order. The motion of Dolly Kyle Browning for a Protective Order is granted as well. If and/or when the record in this matter is unsealed (either in whole or part),[7] the Court will address the concerns set forth in Ms. Browning's motion at that time. Finally, the Court grants OIC's motion and will maintain the confidentiality of its March 27th, 1998 filing, i.e., "In Camera Submission of the United States in Support of [the United States'] Motion for Limited Intervention and a Stay of Kathleen Willey's Further Deposition." V. The parties are hereby given until and including Tuesday, September 15th, 1998, in which to file a notice of appeal from today's decision. Assuming an appeal is filed, today's decision will be stayed in its entirety pending the resolution of any such appeal. If no appeal is filed, the Court will proceed to unseal the record as set forth above. All court filings unsealed in accordance with today's decision will be posted on the Court's website beginning on Monday, September 28th, 1998, at the following address: www.are.uscourts.gov. Future documents unsealed in accordance with today's decision will be posted at the same address. Because it may be necessary for the Court to periodically have phone conferences to address any objections that may be raised to the release of a particular document, the Court cannot provide a precise schedule setting forth the times that any documents will be released. Accordingly, the Court will not announce any such postings in advance, and neither the Court nor the Clerk's Office will answer media inquiries about the timing of any such postings. The Court will be reviewing documents for possible unsealing and a barrage of calls could interfere with this process. VI. For the foregoing reasons, the Court grants in part and denies in part the President's motion for reconsideration. The Confidentiality Order is hereby modified as set forth above. The motions of the Jane Does to intervene and to reconsider are granted to the extent set forth above, and the motions of Dolly Kyle Browning and OIC are granted as well. NOTES [1] The media entities that joined in this motion are as follows: Pulitzer Publishing Company; The New York Times Company; Associated Press; USA Today, a division of Gannett Satellite Information Network, Inc.; Cable News Network, Inc.; Newsday, Inc.; National Broadcasting Company, Inc.; CBS, Inc.; American Broadcasting Companies, Inc.; Time Inc.; Little Rock Newspapers, Inc.; and The Reporters Committee for Freedom of the Press. Following the filing of this motion, two additional media entities, Fox News Network, LLC, and The Society of Professional Journalists, filed a motion seeking the same relief. [2] Rule 26(c) provides that "[u]pon motion by a party or by the person from whom discovery is sought ... and for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense...." [3] In addition to other matters contained in the March 9th Memorandum and Order, the Court notified the parties that it was particularly interested in the parties addressing this Court's conclusion that protecting the privacy interests of individuals who might be the subject of intrusive and embarrassing discovery is good cause under Rule 26(c) for maintaining the Confidentiality Order. [4] The Court notes also that the substantial unauthorized release of information in this case has served to place in the public domain matters which, having been filtered through the media, often do not accurately reflect that which is contained in the record. The Court has stated in previous orders, and reiterates again today, that it is very concerned about the unauthorized release of information in this case and that there are a variety of sanctions available to the Court should it ascertain who is responsible. [5] Plaintiff's brief and appendix at the Eighth Circuit was originally due on June 22, 1998. Following the Eighth Circuit's granting of plaintiff's motion for an extension of time pending the U.S. Supreme Court's decision in Burlington Industries v. Ellerth, ___ U.S. ___, 118 S.Ct. 2257, 141 L.Ed.2d 633, which was handed down on June 26, 1998, plaintiff's brief and appendix is now due on July 30, 1998. Pursuant to this new briefing schedule, defendants' briefs are due on September 8, 1998, and plaintiff's reply brief is due on September 22, 1998. Oral arguments will be scheduled sometime after September 22, 1998. [6] The Court notes that the videotape of the President's deposition is not on file with the Court. Even if the videotape were a part of the Court record, the Court would not unseal the videotape as it is not a judicial record to which any common law right of public access attaches and there is a strong judicial tradition of proscribing public access to recordings of testimony given by a sitting President. See United States v. McDougal, 103 F.3d 651, 656-659 (8th Cir.1996), cert. denied, ___ U.S. ___, 118 S.Ct. 49, 139 L.Ed.2d 15 (1997). [1] The media entities that joined in this motion are as follows: Pulitzer Publishing Company, The New York Times Company; Associated Press, USA Today, a division of Gannett Satellite Information Network, Inc.; Cable News Network, Inc.; Newsday, Inc.; National Broadcasting Company, Inc.; CBS, Inc.; American Broadcasting Companies, Inc.; Time Inc.; Little Rock Newspapers, Inc.; and The Reporters Committee for Freedom of the Press. Following the filing of this motion, two additional media entities, Fox News Network, LLC, and The Society of Professional Journalists, filed a motion seeking the same relief. [2] Rule 26(c) provides that "[u]pon motion by a party or by the person from whom discovery is sought ... and for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense...." [3] Plaintiff initially took no position on the unsealing of the record but later submitted a pleading that argued for the need to keep in place the Confidentiality Order. In her most recent pleading, plaintiff withdraws her consent to the Confidentiality Order and argues for the complete unsealing of the record. [4] Portions of the transcribed depositions of parties and various witnesses have been made part of the Court record by virtue of the briefing on the President's and Ferguson's motions for summary judgment, or by motions involving discovery issues. The latter motions currently remain under seal pursuant to the Confidentiality Order. [5] Although the Court has concerns about the nature of the President's January 17th, 1998 deposition testimony given his recent public statements, the Court makes no findings at this time regarding whether the President may be in contempt. [6] Because the Court is allowing all Jane Does the opportunity to object to the release of information which may affect their interests, the Court hereby sua sponte grants leave of all other Jane Does permission to intervene in this matter. [7] Assuming an appeal is filed, the Court will, of course, await the resolution of any such appeal prior to unsealing any part of the record in this case. See Section V, infra.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498873/	12 F. Supp. 2d 827 (1998) UNITED STATES of America ex rel., Willie JENKINS, Petitioner, v. Kenneth DOBUCKI, Respondent. No. 97 C 4706. United States District Court, N.D. Illinois, Eastern Division. July 16, 1998. 828 Willie Jenkins, Hillsboro, IL, pro se. William Lloyd Browers, Illinois Atty. General's Office, Criminal Appeals Div., Chicago, IL, Stephen F. Potts, Domenica A. Osterberger, Atty. General's Office, Chicago, IL, for Respondent. MEMORANDUM OPINION AND ORDER ASPEN, Chief Judge. Presently before us is Willie Jenkins' pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Jenkins contends that: 1) his waiver of the right to counsel at trial was not knowing and voluntary; 2) the trial court erred in failing to conduct a hearing to determine whether his use of epilepsy medications rendered him unfit to stand trial; and 3) his appellate counsel was ineffective in failing to argue that he was entitled to a fitness hearing. For the reasons set forth below, we deny the petition. I. Background The charges against Jenkins stemmed from a violent argument he had with his girlfriend on July 16, 1988. The conflict started in the apartment of Jenkins' brother and grew increasingly heated until finally Jenkins threw his girlfriend over a railing outside the third floor apartment and onto the second floor landing below. He then stomped on her chest repeatedly and dragged her down a flight of stairs by the back of her blouse. Shortly thereafter, police apprehended Jenkins near the scene. After a jury trial in the Circuit Court of Cook County, where he appeared pro se (with the assistance of standby counsel), Jenkins was convicted of attempted first degree 829 murder. Before sentencing, the trial court noted that petitioner had previously received psychiatric treatment, and ordered a psychiatric examination to determine his fitness for sentencing. After a psychiatrist declared Jenkins fit for sentencing, the court sentenced him to 50 years imprisonment. The conviction and sentence were affirmed on appeal, and the Illinois Supreme Court denied Jenkins' Petition for Leave to Appeal. Jenkins exhausted his post-conviction remedies without obtaining any relief, and then filed the instant petition. II. Procedural Default Before a federal court will entertain a petition for a writ of habeas corpus, the petitioner must (1) exhaust all remedies available in state courts and (2) fairly present any federal claims in state court. See Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir. 1996) (citing § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971); and Verdin v. O'Leary, 972 F.2d 1467, 1472-73 (7th Cir.1992)). Even assuming arguendo that Jenkins fairly presented his claims to the Illinois courts (or could show cause and prejudice for his failure to do so), we find his claims to be without merit, as explained below. III. Discussion A. Waiver of the Right to Counsel Jenkins' first argument is that his waiver of his right to counsel at trial was invalid because it was not knowing and voluntary.[1] A criminal defendant, of course, has the right to conduct his own defense. See Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533, 45 L. Ed. 2d 562 (1975). Before a trial court lets a defendant exercise this right, however, it must ensure that the defendant's waiver of his right to counsel was knowing and voluntary. See id. at 835; Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938); United States v. Moya-Gomez, 860 F.2d 706, 731 (7th Cir.1988). A trial court's finding that a waiver has occurred is entitled to a presumption of correctness. See 28 U.S.C. § 2254(e)(1); Cain v. Peters, 972 F.2d 748, 749-50 (7th Cir.1992); Lewis v. Huch, 964 F.2d 670, 674-75 (7th Cir.1992). The Supreme Court has not articulated a precise test for determining if a defendant waived counsel knowingly and voluntarily. Rather, we must determine whether "the record as a whole demonstrates that the defendant knowingly and intelligently waived his right to counsel." Moya-Gomez, 860 F.2d at 733. There are several factors to consider during this inquiry. First, we must see if the trial court engaged in a meaningful discussion with the defendant to ascertain whether he understood the significance of his decision to waive counsel. See Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S. Ct. 316, 323-24, 92 L. Ed. 309 (1948) (plurality opinion) (colloquy should appraise the defendant of the "nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof"); Moya-Gomez, 860 F.2d at 733 (trial court must "conduct a formal inquiry in which the defendant is informed fully of the risks [of] proceeding pro se and explicitly advised against self-representation"); United States v. Mitchell, 788 F.2d 1232, 1235-36 & n. 3 (7th Cir.1986). A court "need not give `a hypothetical lecture on criminal law,'" Mitchell, 788 F.2d at 1235 (quoting Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir.1969)), but "should question the defendant to demonstrate the difficulties he would encounter in acting as his own counsel." Moya-Gomez, 860 F.2d at 732. Second, we must consider whether other evidence in the record establishes that the 830 defendant in fact understood the dangers and disadvantages of self-representation. See id. at 736. Third, we must inquire whether the defendant's background and experience indicate that he did or did not understand the significance of waiving counsel. See id. Having examined the trial record with these factors in mind, we have no doubt that Jenkins' waiver of counsel was knowing and voluntary. First, the trial judge did conduct the kind of formal inquiry envisioned by Von Moltke, Moya-Gomez, and Mitchell. The judge engaged in a substantial conversation with Jenkins about his constitutional right to counsel and advised him against proceeding pro se. See Pet'r Answer Br. Ex. A at 4-12 (transcript excerpt). During this conversation the judge informed Jenkins that the charges against him were serious and that proceeding without counsel was risky. See id. at 7. (Jenkins made light of this line of inquiry, stating to the judge, "I am well familiar with the phrase, `Only a fool has himself for a lawyer.'" Id. at 4.) The judge also inquired into Jenkins' educational background, and asked if he was familiar with the law and rules of evidence, to which Jenkins replied that he was. See id. at 9-11. The judge even advised Jenkins to think about his decision to represent himself over the weekend, an invitation he declined. See id. at 7. At the end of the discussion, the judge took note of the fact that Jenkins appeared to be in control of his mental faculties (a conclusion amply supported by Jenkins' coherent answers to the questions posed to him), and found that Jenkins' waiver of counsel was "knowing and intelligent." Id. at 12. This colloquy more than satisfies the constitutional minimum. Furthermore, to the extent the rest of the trial record sheds any light on the question, it appears that Jenkins understood the dangers and disadvantages of self-representation. Most importantly, Jenkins had previously been convicted of two serious crimes, so he was no stranger to the criminal process. See Pet'r Answer Br. Ex. B. at 18. He had enough education-two years of college and a business degree-to understand the significance of legal representation. And at the very beginning of Jenkins' opening argument he explained to the jury that he had chosen to defend himself even though he was not trained in the law because he felt the public defender was biased against him. See Tr. at 192. We think the overall picture that emerges from the trial is that Jenkins understood the disadvantages of proceeding pro se when he made the decision to do so. Thus, we agree with the trial judge's conclusion that Jenkins' waiver of the right to counsel was knowing and voluntary, even aside from the presumption of correctness to which that conclusion is entitled. B. Due Process Jenkins' second argument is that the trial court denied him due process by failing to hold a fitness hearing to determine his competence to stand trial.[2] Jenkins contends that he was under the influence of psychotropic drugs at the time of his trial,[3] and therefore was entitled to a fitness hearing. Even assuming arguendo that the trial court erred in failing to conduct a fitness hearing, this error is harmless unless Jenkins can present a colorable argument that he was unfit to stand trial. See United States v. Franzen, 686 F.2d 1238, 1245-46 (7th Cir. 1982). This he cannot do. A defendant is competent to stand trial if he has "`a rational as well as factual understanding of the proceedings against him.'" Godinez v. Moran, 509 U.S. 389, 396, 113 S. Ct. 2680, 2685, 125 L. Ed. 2d 321 (1993) (quoting Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (per curiam)). If the defendant has such understanding, he will be deemed competent to stand trial regardless of mental defect. If a 831 party challenges fitness for trial post-trial, evidence of his behavior and demeanor during the court proceedings is relevant to the competency determination. See Eddmonds v. Peters, 93 F.3d 1307, 1314 (7th Cir.1996), cert. denied, ___ U.S. ___, 117 S. Ct. 1441, 137 L. Ed. 2d 548 (1997). As with the waiver of the right to counsel, a trial court's finding that a defendant is fit to stand trial is a factual finding which we presume to be correct. See Maggio v. Fulford, 462 U.S. 111, 116-118, 103 S. Ct. 2261, 2263-65, 76 L. Ed. 2d 794 (per curiam). But cf. id. at 118-119 (White, J., concurring) (arguing that fitness is a mixed question of law and fact). We could hardly imagine a case having more evidence of the defendant's ability to understand the proceedings and to assist in his own defense than this one. Jenkins conducted his own defense giving opening and closing statements, putting on witnesses, cross-examining the state's witnesses, filing motions in limine and post-trial and the record clearly shows that he understood what was going on throughout these proceedings. Moreover, our earlier conclusion that Jenkins knowingly and intelligently waived his right to counsel implies the more general conclusion that he was fit to stand trial. The Eddmonds case is particularly bad precedent for Jenkins. In Eddmonds, the court found that a habeas corpus petitioner had been fit to stand trial even though he was taking psychotropic drugs and several psychiatrists had declared him, early in the proceedings, unfit for trial. The court held that the defendant's conversations with the trial judge regarding his decision to waive a jury trial demonstrated his understanding of the relevant issues. Combined with the defendant's detailed recollection of events surrounding the crime, the judge found the defendant a "reasonably intelligent man actively defending his interests." Id. at 1318. The court concluded that the lack of fitness hearing did not prejudice the defendant's case. It noted further that: The trial transcripts reveal a man with a good memory, a good understanding of the facts arrayed against him, and a firm grasp of his trial strategy.... Coupled with the numerous psychiatric and psychological examinations finding him fit in the months preceding the trial, this shows that whatever psychoses may have afflicted him, [the defendant] was fit to participate actively and meaningfully in the adversarial process, and in fact did so. That is all the Constitution requires. Id. at 1319. Jenkins' case is even weaker than the defendant in Eddmonds, as no psychiatrist ever declared Jenkins unfit for trial. Indeed, the doctor the court enlisted to determine Jenkins' fitness for sentencing concluded that Jenkins "understands the nature of the charges, shows an adequate understanding of court proceedings, and shows the ability to cooperate with counsel in aggravation and mitigation matters." Pet'r Answer Br. Ex. C (letter from Dr. Matthew Markos). We conclude that Jenkins was fit to stand trial, and therefore any error committed by the trial court in failing to hold a fitness hearing was harmless. C. Ineffective Assistance of Counsel Jenkins' last argument is that his appellate counsel was constitutionally ineffective in failing to raise his entitlement to a fitness hearing on direct appeal. To establish that he was deprived of effective assistance of counsel, Jenkins must demonstrate that: (1) "counsel's representation fell below an objective standard of reasonableness," and (2) "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 686-87, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674 (1984). With respect to the first prong known as the "performance" prong the Supreme Court has observed: The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted even if defense counsel has made demonstrable errors the kind of testing envisioned by the Sixth Amendment has occurred. United States v. Cronic, 466 U.S. 648, 656, 104 S. Ct. 2039, 2045, 80 L. Ed. 2d 657 (1984). The second prong known as the *832 "prejudice" prong requires the defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A defendant asserting a Sixth Amendment claim has "the heavy burden of affirmatively establishing that counsel's performance was constitutionally deficient." United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1133 (7th Cir.1990). We may not second-guess counsel's strategic decisions. See United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir.1997). Even if we assume that Jenkins was entitled to a hearing, "a fitness hearing is not an end in itself.... [T]he improper denial of a fitness hearing can be harmless under Strickland." Eddmonds, 93 F.3d at 1316. We need not ask whether the court should have conducted a fitness hearing, but rather whether the defendant was fit to stand trial. "Only if there was a reasonable probability that [the defendant] was not fit, calling into question the integrity of the adversarial process, will `confidence in the outcome' of the trial be deemed undermined for purposes of an ineffective assistance claim under Strickland." Id. at 1317 (citation omitted). As set forth above, there is no probability that Jenkins was not fit, so suffered no prejudice from his attorney's failure to raise this argument on appeal. IV. Conclusion For the reasons set forth above, we deny Jenkins' petition for writ of habeas corpus. It is so ordered. NOTES [1] In his petition, Jenkins actually argued only that his waiver of the right to counsel was obtained in violation of Illinois Supreme Court Rule 401. Pet'r Answer Br. at 5. As we explained in a subsequent order, however, a claim that a state court violated a state procedural rule is not cognizable on federal habeas review. See Biskup v. McCaughtry, 20 F.3d 245, 247 (7th Cir.1994). Since Jenkins is proceeding pro se, however, we construed his brief as alleging that the trial court deprived him of his constitutional right to counsel without obtaining a valid waiver, and we invited the parties to submit supplemental briefing on this theory. In addition to the fact that this theory is without merit, as explained in the text, it has almost certainly been procedurally defaulted since Jenkins never presented it to the Illinois courts. [2] As with his waiver argument, Jenkins did not present his fitness argument to us as a constitutional claim he merely argued that he was entitled to a hearing under state law. Though we will construe his claim as a constitutional due process argument, this theory was never presented to the Illinois courts, and is thus defaulted. [3] The parties dispute the classification of the anti-convulsants Phenobarbitol and Dilantin which Jenkins took for epilepsy as psychotropic. See Pet'r Br. at 6-7; Resp. Br. at 15-16. Even if these drugs are psychotropic, however, Jenkins' claim cannot succeed, as explained infra in the text.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498901/	12 F. Supp. 2d 1215 (1998) Anthony V. RIGGS, Plaintiff, v. The BOEING COMPANY, Defendant. No. 98-2091-JWL. United States District Court, D. Kansas. July 29, 1998. Anthony V. Riggs, Wichita, KS, pro se. Trisha A. Thelen, Foulston & Siefkin L.L.P., Wichita, KS, for Defendant. MEMORANDUM AND ORDER LUNGSTRUM, District Judge. This matter is presently before the court on defendant's motion to dismiss plaintiff's complaint (doc. # 8) pursuant to Fed.R.Civ.P. 12(b)(6). As set forth in more detail below, defendant's motion to dismiss is denied without prejudice. The court will allow plaintiff leave to amend his complaint, to the extent set forth below, on or before August 14, 1998. The court will permit defendant to respond to plaintiff's surreply, addressing the specific issues set forth below, and any amended complaint filed by plaintiff, on or before August 28, 1998. I. Background On February 22, 1993, defendant Boeing terminated plaintiff's employment. More than four years later, on September 17, 1997, plaintiff visited defendant's personnel office "to receive a copy of [his] personnel file and discuss [his] employment with The Boeing Company." Upon reviewing his personnel file, plaintiff discovered a memorandum dated February 24, 1993 from defendant's Manager 1216 of Security Investigations. The memorandum reads as follows: The above-captioned Boeing-Wichita employee was terminated as a result of an investigation by this office. Prior to giving any consideration to recalling or rehiring the captioned individual, please contact Security Investigations. During this review, plaintiff also allegedly discovered that his signature was forged on two documents in his personnel file a "Termination of Employment" form dated February 22, 1993 and a "Notice of Suspension During Investigation" form dated April 29, 1988. On March 23, 1998, plaintiff filed a pro se complaint against defendant and attached several documents to the complaint as exhibits the two forms which were purportedly forged; the security investigation memorandum; and a letter written by plaintiff to defendant's personnel office after plaintiff reviewed his file in which he sets forth the allegations described above. Although the specific nature of his claims are unclear, plaintiff apparently seeks relief for "wrongful termination," "illegal devious behavior," "wrongful doing" and forgery based on the two allegedly forged documents and the placement in his personnel file of the security investigation memorandum. II. Discussion Defendant moves to dismiss plaintiff's "wrongful termination" claim on the basis that any such claim is barred by all conceivable statutes of limitations. Defendant seeks dismissal of plaintiff's remaining claims for failure to state a claim upon which relief can be granted. As set forth below, plaintiff's surreply suggests that plaintiff was not aware that defendant had terminated his employment until September 1997 when he reviewed the documents in his personnel file.[1] Accordingly, the court will permit defendant an opportunity to address the effect, if any, of plaintiff's allegation on defendant's statute of limitations defense. Finally, the court agrees with defendant that plaintiff has not pled sufficient facts to support any recognized legal claim based on defendant's alleged "wrongful doing," "illegal devious behavior," or forgery. Nonetheless, in an abundance of caution, the court will permit plaintiff an opportunity to amend his complaint to the extent additional factual allegations exist which would support any recognized legal claims based on the alleged actions of defendant.[2] A. Rule 12(b)(6) Standards[3] Dismissal of a claim under Rule 12(b)(6) is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Oleson v. KMart Corp., No. 96-4066-SAC, 1996 WL 772604, at 1 (D.Kan. Dec.5, 1996) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957))); Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472, 1473 (10th Cir.1990) ("Under Rule 12(b)(6), dismissal is inappropriate unless plaintiff can prove no set of facts in support of his claim to entitle him to relief.") (citing Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986)). Moreover, at the motion to dismiss 1217 stage, the court is required to accept all well-pleaded facts as true. Butler v. City of Prairie Village, 961 F. Supp. 1470, 1476 (D.Kan.1997) (citing Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984)). B. Plaintiff's "Wrongful Termination" Claim Defendant moves to dismiss plaintiff's wrongful termination claim on the grounds that the claim is barred by all conceivable statutes of limitations. When actions filed in the district court rely on state law,[4] the statute of limitations of the forum determines the limitation period in the federal court. Northern Natural Gas Co. v. Grounds, 931 F.2d 678, 683 (10th Cir.1991) (citing Guaranty Trust Co. v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945)). Regardless of the particular legal basis for plaintiff's "wrongful termination" claim (i.e., breach of implied or express contract; retaliatory discharge), there is no statute of limitations under Kansas law which would allow plaintiff to bring such an action more than five years after the cause of action accrued. See, e.g., K.S.A. § 60-511(1) (an action for breach of a written contract must be brought within five years after the cause of action accrued); K.S.A. § 60-512(1) (an action for breach of an implied contract must be brought within three years after the cause of action accrued); Marquardt v. Miles, Inc., No. 93-2153-JWL, 1994 WL 171698, at 5 (D.Kan. Apr. 14, 1994) (two-year statute of limitation found in K.S.A. § 60-513(a)(4) applies to retaliatory discharge claim) (citing Johnston v. Farmers Alliance Mut. Ins. Co., 218 Kan. 543, 546-47, 545 P.2d 312 (1976)), aff'd, 68 F.3d 483 (10th Cir.1995). A cause of action for plaintiff's termination arising under a contractual theory would accrue at the time of the alleged breach. See, e.g., Purification Int'l, Inc. v. OHM Remediation Servs. Corp., No. 96-2051-JWL, 1997 WL 94225, at 3 (D.Kan. Jan. 31, 1997) (cause of action for breach of contract claim accrues at the time of the alleged breach, "irrespective of any knowledge on the part of the plaintiff or of any actual injury it causes.") (quoting Pizel v. Zuspann, 247 Kan. 54, 73, 795 P.2d 42 (1990) (citing Price v. Holmes, 198 Kan. 100, 106, 422 P.2d 976 (1967))). A cause of action for retaliatory discharge would accrue at the time plaintiff was notified of the termination. Marquardt, 1994 WL 171698, at 5 (retaliatory discharge claim accrues on the date plaintiff receives notice of termination) (citing Johnston, 218 Kan. at 548, 545 P.2d 312). In his complaint, plaintiff alleges that defendant wrongfully terminated his employment. The documents attached to plaintiff's complaint expressly indicate that plaintiff's employment was terminated by defendant on February 22, 1993. Plaintiff filed his claim on March 23, 1998 at least five years after the date on which alleged wrongful act occurred. Thus, at first blush, it appears that plaintiff's wrongful termination claim is barred by the statute of limitations as a matter of law, unless a factual basis for tolling the statute exists. Tiberi v. CIGNA Corp., 89 F.3d 1423, 1428 (10th Cir.1996). See also Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir.1980) ("While the statute of limitations is an affirmative defense, when the dates given in the complaint make clear that the right sued upon has been extinguished, the plaintiff has the burden of establishing a factual basis for tolling the statute.") (citations omitted); Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992) ("[T]he burden of proving facts sufficient to toll the statute of limitations is upon the plaintiff."). The Kansas Legislature has enacted several tolling provisions which toll a statute of limitations under certain circumstances. In contract cases, for example, the statute of limitations may be tolled when partial payment is made or the debtor acknowledges an existing liability. K.S.A. § 60-520; Jarnagin v. Ditus, 198 Kan. 413, 418, 424 P.2d 265 (1967). A statute of limitations may also be tolled when a defendant is out of the state, K.S.A. § 60-517, when a plaintiff is legally disabled, K.S.A. § 60-515, or when a suit is stayed by an injunction, K.S.A. § 60-519. 1218 The Kansas Supreme Court has also recognized that an otherwise untimely filing may be excused when "unique circumstances" are present. See Slayden, 250 Kan. at 30-31, 825 P.2d 119; Schroeder v. Urban, 242 Kan. 710, 713-14, 750 P.2d 405 (1988). This doctrine requires a "demonstration of good faith" on the part of the party seeking additional time and a "reasonable basis for noncompliance within the time specified by the rules." Slayden, 250 Kan. at 30, 825 P.2d 119. The Kansas Supreme Court has cautioned, however, that the unique circumstances doctrine is one of "specific and limited application." In re Tax Appeal of Sumner County, 261 Kan. 307, 316, 930 P.2d 1385 (1997). In fact, the Kansas Supreme Court has applied the unique circumstances doctrine only where an untimely filing was the result of third-party error. See Sumner County, 261 Kan. at 317, 930 P.2d 1385 (untimely filed petition for reconsideration excused where Board of Tax Appeals made erroneous statement with respect to filing period); Slayden, 250 Kan. at 30-31, 825 P.2d 119 (applying unique circumstances doctrine where 40-day delay in serving summons was caused by error of clerk of the district court); Schroeder, 242 Kan. at 713-14, 750 P.2d 405 (untimely filing of appeal excused where the district court purported to extend the appeal period). In his surreply, plaintiff suggests that he did not know that defendant had actually terminated his employment until September 1997. Prior to reviewing his personnel file and the documents therein, plaintiff apparently believed that he had been placed on leave pending further notice. Moreover, plaintiff suggests that he was denied access to his personnel file prior to September 1997. The rules of this court do not provide for the filing of surreplies, EEOC v. International Paper Co., No. 91-2017-L, 1992 WL 370850, at 10 (D.Kan. Oct. 28, 1992), and plaintiff did not seek permission from the court prior to filing his surreply. Because this rule is not expressly stated in the local rules, the court will indulge plaintiff, appearing pro se, in this one instance. Van Deelen v. City of Eudora, No. 96-4040-SAC, 1996 WL 707016, at 1 (D.Kan. Nov. 5, 1996). Moreover, plaintiff's surreply clarifies for the court plaintiff's argument with respect to his wrongful termination claim. Prior to receiving plaintiff's surreply, the court did not understand plaintiff's argument to be that he did not have notice of his actual termination in February 1993. Rather, plaintiff's complaint and initial response merely suggested to the court that plaintiff did not decide to review his personnel file until more than four years after he had been terminated (which review, as the court initially understood plaintiff's claim, gave rise to concerns about the circumstances surrounding the termination). Thus, the court will permit plaintiff to file his surreply and will permit defendant to specifically address whether plaintiff's wrongful termination claim, as clarified in plaintiff's surreply, is barred by the statute of limitations.[5] Plaintiff is instructed that the court will not consider any additional responsive papers from plaintiff with respect to this issue without prior permission from the court and for good cause shown. C. Plaintiff's Remaining Claims In addition to his "wrongful termination" claim, plaintiff purports to assert claims of "wrongful doing," "illegal devious behavior" and forgery. Although the court bears in mind that plaintiff is appearing in this lawsuit pro se and, accordingly, the court should construe his pleadings liberally, this liberal construction "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.1996) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Plaintiff's allegations of "wrongful doing" and "illegal devious behavior," in light of the facts pled by plaintiff, do not trigger in the court's mind any recognized legal claim separate and distinct from plaintiff's wrongful termination claim. Significantly, plaintiff has failed to allege any facts (and the court cannot adduce any additional facts from the 1219 documents attached to plaintiff's complaint) with respect to damages he has incurred as a result of any actions allegedly taken by defendant. Moreover, although forgery is certainly a recognized concept, it is a criminal act for which plaintiff cannot obtain relief through the civil justice system in Kansas. See Nevin v. Hoffman, 431 F.2d 43, 49 (10th Cir.1970) (noting that no Kansas case has indicated that Kansas has or would adopt the "civil forgery" rule). Based on the facts presently before it, the court will not endeavor to decipher whether plaintiff's allegations of "wrongful doing," "illegal devious behavior," and forgery translate into recognized legal claims. In an abundance of caution, however, the court will permit plaintiff an opportunity to amend his complaint in an effort to state a cognizable claim based on any actions allegedly taken by defendant. Plaintiff should take particular care to set forth whether and how he has incurred damages or injury as a result of defendant's actions. Any claims not amended by plaintiff on or before August 14, 1998 will be dismissed. IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motion to dismiss plaintiff's complaint (doc. # 8) is denied without prejudice. The court grants plaintiff leave to file an amended complaint, to the extent any additional factual allegations exist, with respect to his allegations of "wrongful doing," "illegal devious behavior" and forgery. Plaintiff may file his amended complaint on or before August 14, 1998. Any claims not amended by plaintiff on or before August 14, 1998, will be dismissed. The court grants defendant leave to file a response to plaintiff's surreply to address the specific issue of whether plaintiff's wrongful termination claim, as clarified in plaintiff's surreply, is barred by the statute of limitations. Defendant may also respond to any amended complaint filed by plaintiff at that time. Defendant may file this response on or before August 28, 1998. Plaintiff may not file any additional papers with respect to the statute of limitations issue without the court's prior consent for good cause shown. If, however, plaintiff files an amended complaint with respect to his remaining claims and defendant moves to dismiss plaintiff's amended complaint, plaintiff can certainly respond within the appropriate time frame to defendant's motion to dismiss. IT IS SO ORDERED. NOTES [1] According to his surreply, plaintiff apparently believed that he was simply on leave from his employment with defendant pending further notice. [2] Defendant, in the alternative, moves to dismiss plaintiff's "wrongful doing," "illegal devious behavior" and forgery claims because, according to defendant, such claims are barred by the applicable statute of limitations. Because the court cannot discern from plaintiff's complaint any recognized legal claims, the court is unable to engage in an analysis of the statute of limitations issues raised by defendant with respect to these "claims." Should plaintiff properly amend his complaint to assert cognizable claims based on actions allegedly taken by defendant, defendant may raise the statute of limitations defense with respect to the specific claims asserted by plaintiff. [3] The court can properly consider the documents attached to plaintiff's complaint without converting defendant's motion to dismiss to a motion for summary judgment. See Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir.1991) (written documents attached to the complaint as exhibits are considered part of the complaint for consideration in a Rule 12(b)(6) motion) (citing Fed. R.Civ.P. 10(c)). [4] The court assumes that plaintiff's wrongful termination claim is contemplated under state law. Although the letter attached to plaintiff's complaint suggested that plaintiff intended to seek relief under Title VII, plaintiff clarified in his papers that he is not pursuing a Title VII claim against defendant. [5] The court wonders whether plaintiff's express abandonment of any Title VII claim against defendant raises any jurisdictional issues. If appropriate, defendant may move to dismiss plaintiff's complaint on jurisdictional grounds at the time defendant responds to plaintiff's surreply and any amended complaint filed by plaintiff.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498892/	12 F. Supp. 2d 568 (1998) UNITED STATES of America v. Shelby DANIELS. Nos. CIV. 396CV2996-BC, CIV. 392CR029-BC. United States District Court, N.D. Texas, Dallas Division. July 16, 1998. 569 570 MEMORANDUM OPINION AND ORDER BOYLE, United States Magistrate Judge. Before the Court, is Defendant Shelby Daniels' Motion to Vacate and Set Aside a Conviction and Sentence, filed pursuant to 28 U.S.C. § 2255.[1] Having reviewed the record of this case, the pleadings, and the relevant authority, this Court DENIES the motion for the reasons that follow. Background On April 30, 1992, Defendant, Shelby Daniels ("Daniels"), pled guilty to one count of bank fraud under 18 U.S.C. § 1344. Guilty Plea, Tr. at 4, 5. On July 9, 1992, he was sentenced to 27 months imprisonment and a five year term of supervised release. Sentencing. Tr. at 6. On August 3, 1992 Daniels completed his prison sentence and began his term of supervised release. On February 22, 1996, the District Court revoked his supervised release and sentenced him to nine months imprisonment. See Judgment entered February 22, 1996. Thereafter, on November 1, 1996 he filed the instant motion. In his § 2255 Motion Daniels asserts three grounds for relief. First, he attacks the voluntariness of his guilty plea, contending, in essence, that he is not guilty of the crime to which he pled. Def's Mot. at 3,4. Secondly, he argues that he was subjected to double jeopardy when the Government forfeited certain of his personal property and thereafter prosecuted him in this case. Def.'s Mot. at 4. Thirdly, Daniels claims his counsel was ineffective for failing to adequately investigate the facts and circumstances of his case. Id. at 22-25. Before addressing Daniels' claims, the Court will briefly review the extent of relief available to him under § 2255. Scope of Relief Under Available Under § 2255 It is settled that "`a collateral challenge may not do service for an appeal'." United States v. Shaid, 937 F.2d 228, 231 (5th Cir.1991) quoting United States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 1593, 71 L. Ed. 2d 816 (1982). In defining the scope of collateral challenge under § 2255, the Shaid court instructed, "A defendant can challenge his conviction after it is presumed final only on issues of constitutional or jurisdictional magnitude, (internal citation omitted), and may not raise an issue for the first time on collateral review without showing both `"cause"' for his procedural default, and `"actual prejudice"' resulting from the error." Shaid, 937 F.2d at 232. The cause and prejudice test applies even to allegations of fundamental constitutional error. Id., citing Murray v. Carrier, 477 U.S. 478, 493, 106 S. Ct. 2639, 2648, 91 L. Ed. 2d 397 (1986). The only exception to the application of the cause and prejudice test is where a movant can establish a fundamental miscarriage of justice coupled with the defendant's actual innocence of the crime for which he is convicted. Shaid, 937 F.2d at 232 citing Carrier, 477 U.S. at 496, 106 S.Ct. at 2649. (other citations omitted). The cause and prejudice test, however, does not apply to claims of ineffective assistance of counsel which are ordinarily brought for the first time on collateral review. United States v. Gaudet, 81 F.3d 585, 589 n. 5 (5th Cir.1996) citing United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.1992). With the foregoing authority as a guide, the Court next examines whether Daniels' claims are subject to Shaid's procedural bar. Although Daniels filed a direct appeal after his conviction, none of the grounds he raises in his present motion to vacate were presented to the Fifth Circuit in that appeal. United States v. Daniels, No. 92-1621, slip op. (5th Cir. July 15, 1993). By failing to raise his claims on direct appeal, Daniels has procedurally defaulted on these claims and may raise them collaterally only by meeting the cause and prejudice standard or by demonstrating that he is "`actually innocent'" of his crime. Bousley v. United States, ___ U.S. ___, 118 S. Ct. 1604, 1610-11, 140 L. Ed. 2d 828 (1998) quoting Carrier, 477 U.S. 571 at 985, 496 106 S.Ct. at 2643-44, 2649-50, 91 L. Ed. 2d 397 (other citations omitted). With this in mind, the Court reviews each of Daniels' claims to determine if he has overcome the foregoing "procedural hurdles" to warrant a review of his claims. Claim No. 1-Guilty Plea Turning first to Daniels' claim that he is not guilty of bank fraud, the Court finds that he has failed to satisfy the cause and prejudice test and is likewise deficient in demonstrating actual innocence. Neither Daniels' lengthy § 2255 motion or his 10-page reply brief address the cause and prejudice issue. Instead, Daniels attempts to justify his failure to raise his § 2255 claims on direct appeal by relying on the "deliberate bypass" standard discussed in Buckelew v. United States.[2]See Reply at 2, 3. However, this court finds the deliberate bypass standard unavailing to Daniels. Specifically, based on the Supreme Court's pronouncement in Bousley, supra, that the "cause" and "prejudice" standard applies to procedurally defaulted claims raised via § 2255, this Court finds that it is the cause and prejudice standard rather than the deliberate bypass test that Daniels must satisfy to have his claims heard on their merits.[3] A review of Daniels' motion reveals that he has wholly failed to establish either cause for his procedural default or prejudice resulting from the error.[4] Consequently, his sole avenue for obtaining a review of his claims is to establish that the constitutional errors of which he complains "`ha[ve] probably resulted in the conviction of one who is actually innocent.'" Bousley, 118 S.Ct. at 1611 quoting Carrier, 477 U.S. at 496, 106 S.Ct. at 2649. "To establish actual innocence, [the defendant] must demonstrate that, `"in light of all the evidence,"' `it is more likely than not that no reasonable juror would have convicted [the defendant].'" Bousley, 118 S.Ct. at 1611 quoting Schlup v. Delo, 513 U.S. 298, 327-28, 115 S. Ct. 851, 867-868, 130 L. Ed. 2d 808 (1995) (other citations omitted).[5] Daniels asserts that he is innocent of the bank fraud offense to which he pled guilty and now stands convicted. Based on the foregoing case authority, Daniels may surmount the procedural bar to his claims based on his claim of innocence only if he can demonstrate his actual innocence of the bank fraud charge. In determining whether Daniels has made the requisite showing, the Court may consider all relevant evidence whether or not the evidence was available at 572 the time of Daniels' plea. Schlup, 513 U.S. at 327-28, 115 S.Ct. at 867-68. With this in mind, the Court reviews Daniels' claim that he is innocent of bank fraud.[6] In a lengthy argument challenging his guilty plea, Daniels contends that his conduct underlying his conviction did not amount to bank fraud under 18 U.S.C. § 1344. More specifically, Daniels claims that when he pled guilty he was under the mistaken belief that his actions in entering fraudulent credit card transactions into an electronic point-of sale terminal which, in turn, caused the order of a wire transfer of funds to a bank constituted bank fraud, when it did not. Def.'s Mot at 3,4; Reply at 4-8. In deciding whether Daniels' has met his burden of establishing actual innocence, the court naturally looks first to the available facts relevant to his culpability and then applies the relevant legal authority to those facts. The facts supporting Daniels' culpability are set forth in the indictment and factual resume. Daniels pled guilty to Count 3 of the indictment which charged a violation of 18 U.S.C. § 1344[7] as follows: From on or about December 1, 1991, through on or about December 19, 1991, in the Dallas Division of the Northern District of Texas, defendant Shelby Daniels, did knowingly execute and attempt to execute the aforesaid scheme and artifice to defraud East Park National Bank, Dallas, Texas, a financial institution, and to obtain money, funds, credits, and assets owned by and under the custody and control of said financial institution by means of false and fraudulent pretenses, representations, and promises, in that the defendant caused the wire transfer of credit card funds to the East Park National Bank in the amount of approximately $359,117.62, well knowing that these said credit card fund transfers were false and fraudulent obtained. A violation of Title 18 U.S.C. § 1344.[8] The factual resume supporting the defendant's conviction and adopted by the defendant when he entered his plea, states in pertinent part: From on or about November 7, 1991, until on or about December 19, 1991, the Defendant Shelby Daniels, executed and attempted to execute a scheme and artifice to defraud and obtain money and property from others. In order to effectuate the scheme, Daniels used a point of sale terminal in a name other than his own, used a bank account other than his own to receive fraudulently obtained funds, used credit card access numbers which were fraudulently obtained and used telephone lines to transmit fraudulent representations of access numbers. Additionally, Daniels used a mail box at an address other than his own for the purpose of receiving mail, applied for credit cards by using names and social security numbers which were not his own, requested that credit cards be mailed to mail boxes other than his own and used 573 credit cards fraudulently obtained to receive things of value. Specifically, Daniels obtained a point of sale terminal from Sammy Aycock and entered numerous fraudulently obtained credit card access numbers in order to make fraudulent credit card transactions. During the time frame between December 9, 1991, and December 11, 1991, Daniels submitted ninety-five fraudulent credit card transactions in the amount of $359,117.62. Daniels planned to have the proceeds from these transactions deposited into Sammy Aycock's account at the East Park National Bank. Daniels planned to have Aycock withdraw this money and deliver it to him. The scheme was discovered before Daniels could actually obtain this money. Throughout 1991, Daniels also operated a bogus credit "cleansing" company. Daniels misrepresented to customers that he could help them clean up their credit. In reality, Daniels assisted them to fraudulently assume the credit identities of others. Daniels accessed credit bureau files and obtained personal information on various people. He then used this personal information to submit applications for credit using his own address as a return mailing address. After Daniels obtained the credit cards, he used them to make charges or cash ATM withdrawals.[9] Daniels' version of the facts, as set forth in his § 2255 motion, appears to be that, while he did enter the fraudulent credit card transactions into the point-of-sale terminal, that the wire transfer was automatically "program" (sic) by Harbridge (see fn. 9). Def.'s Reply at 6,7. Put simply, Daniels' somewhat confusing argument seems to boil down to a contention that in causing the order of a wire transfer of funds to East Park National Bank, he made no false statements, representations or promises essential elements of subsection 2 bank fraud-and is, therefore, not guilty of bank fraud. With these facts as a backdrop, for Daniels' claim of innocence, the Court turns to the applicable authority. It is a violation of due process "to convict someone of a crime on the basis of conduct that does not constitute the crime." United States v. Briggs, 939 F.2d 222, 228 (5th Cir.1991). To convict an individual under these circumstances, "offends the basic notions of justice and fair play embodied in the constitution." Id. The defendant cites both Briggs, supra, and United States v.. Medeles[10] in support of his contention that his conduct did not constitute bank fraud and consequently, that his guilty plea should be set aside. Both of those cases, however, are factually dissimilar to this case and, thus, do not support his argument. In Medeles, the defendant was convicted by a jury of bank fraud based on his involvement in a check-kiting scheme. The defendant kited checks between his bank accounts knowing the checks to be drawn on insufficient funds. The Fifth Circuit reversed the defendant's conviction, finding that the record failed to reflect any evidence that the defendant made any false representations to carry out his scheme as required under the relevant provision of the bank fraud statute. Medeles, 916 F.2d at 197-202. The court's rationale in reversing the convictions in Medeles was that "an order to a bank contained in a check is not a factual representation and 574 therefore cannot be a misrepresentation." Briggs, 939 F.2d at 226, citing Medeles. The Fifth Circuit later, in Briggs, found this reasoning equally applicable to wire transfer orders. Id. In Briggs, the defendant contended that she pled guilty to bank fraud with a "mistaken belief" that her conduct in ordering unauthorized wire transfers from her employer's bank accounts alone amounted to culpable conduct under the bank fraud statute. 939 F.2d at 228. The Fifth Circuit remanded the case to the trial court after a review of the record revealed that the plea proceedings including the factual resume contained no evidence that Briggs had made "false representations, statements, or promises in carrying out her scheme." Id. at 226. In remanding the case, the Fifth Circuit explained: "[t]he bare act of instructing a bank to transfer funds is not a factual representation; thus, it cannot be a mis representation, a false representation, or any kind of representation." Id. The Briggs decision, appeared to rest on the dearth of record evidence regarding false representations by the defendant. Put simply, the record simply did not reflect whether the defendant had or had not made any misrepresentations regarding her authority to act. Id. And the Court was careful to state that it was not holding that a wire transfer can never constitute a misrepresentation only that the act itself does not constitute a misrepresentation. Id. at 227. The Court noted that a wire transfer containing either an actual or implied misrepresentation of authority to act may suffice to establish bank fraud. Id. In contrast to Medeles and Briggs, in United States v. Miller,[11] the D.C. Circuit Court affirmed the bank fraud conviction of a defendant who had used his employer's ATM card and personal four-digit code to withdraw funds from his employer's bank account. On appeal the Defendant, citing, inter alia, Medeles, argued that the unauthorized withdrawals were akin to check-kiting which, he argued, other circuits had found insufficient to establish fraud. 70 F.3d at 1355. The appeals court rejected this argument and distinguished both Medeles and Briggs by noting that the defendant had used his employer's personal four-digit code to withdraw the funds, an act akin to cashing a check with a forged signature, which conduct expressly violates the bank fraud statute. Id. at 1355-56. Other courts have identified conduct which involved some form of misrepresentation or deceptive practice sufficient to sustain a bank fraud conviction. See United States v. Burnett, 10 F.3d 74, 78 (2d Cir.1993) citing United States v. Bonnett, 877 F.2d 1450, 1453 (10th Cir.1989) (defendant's conviction affirmed based on the deceptive practices in the use of the worthless checks); United States v. Falcone, 934 F.2d 1528 (11th Cir.) vacated, 939 F.2d 1455 (1991), reinstated in relevant part, 960 F.2d 988 (en banc), cert. denied 506 U.S. 902, 113 S. Ct. 292, 121 L. Ed. 2d 216 (1992). See also United States v. Davis, 989 F.2d 244, 247 (7th Cir.1993) (depositing of three forged money orders sufficient to constitute bank fraud); United States v. Stone, 954 F.2d 1187, 1191 (6th Cir.1992) (false oral statements to bank manager regarding defendant's bank account, sufficient under bank fraud statute) and United States v. Sayan, 968 F.2d 55, 61 n. 7 (D.C.Cir.1992) ("false signatures and endorsements on checks and drafts would have supported conviction under Subsection 2 had statute been in effect when that conduct occurred"). A review of the foregoing case authority suggests that, under the facts of this case, Daniels' reliance upon Briggs and Medeles is misplaced. Contrasted with the defendants' actions in those cases, the factual resume supporting Daniels' conviction indicates that his scheme was carried out through overt false representations as to his authority to act. Put simply, this was much more than a simple wire transfer of funds as in Briggs. As established by the factual resume, in order to obtain the funds that were to be placed in the bank's custody, Daniels had to submit 95 different fraudulent credit card transactions by using a point of sale terminal in a name other than his own, by using credit card access numbers fraudulently obtained and by using a bank account which did not 575 lawfully belong to him. Only by expressly misrepresenting facts with respect to the credit card transactions and his authority to act, was Daniels able to attempt to carry out his scheme. See Briggs, 939 F.2d at 227 ("[A] wire transfer order containing an actual misrepresentation (e.g. a false recitation of the authority for its issuance)" falls within the bank fraud statute's prohibitions.). Had Daniels not falsely represented his authority to act, he would not have been able to attempt to access the funds in the custody of the East Park National Bank.[12] It is the record evidence of his false representations in carrying out his scheme that distinguishes this case from Briggs and Medeles and likens it to Miller, supra. Because the factual resume in this case reflects that Daniels falsely represented his authority to act in his attempt to carry out his bank fraud scheme, he cannot establish his actual innocence of his crime of conviction and, consequently, this claim is procedurally barred from consideration. Claim No. 2 Double Jeopardy Daniels next argues in vague terms that was subjected to double jeopardy when the government forfeited certain of his personal property and later prosecuted him criminally in the instant case. Def.'s Mot. at 19. This claim is also barred due to Daniels failure to satisfy the cause and prejudice test or, as set forth in detail above, demonstrate his actual innocence of bank fraud. Moreover, this claim fails on its merits. Daniels does not identify the personal property he asserts was involved in the alleged forfeiture which caused the claimed double jeopardy violation. Nor does he specify when the alleged civil forfeiture took place.[13] Mere conclusory allegations on a critical issue fail to present a constitutional claim. United States v. Pineda, 988 F.2d 22, 23 (5th Cir.1993). In sum, Daniels' double jeopardy claim is procedurally barred. Moreover, his claim is wholly conclusory and does not specify what property was subject to forfeiture and under what circumstances, leaving the court to speculate on the dates and facts supporting this claim. Claim No. 3-Ineffective Assistance of Counsel In his third claim for relief, Daniels contends that his counsel was ineffective for failing to independently investigate the facts and circumstances of his case. Def's Mot. at 22. He also complains that his attorney did not interview potential defense witnesses. Id. Daniels provides no factual detail to support these allegations. Although properly before the Court in a § 2255 motion,[14] these conclusory allegations cannot serve as the basis for a claim of ineffective assistance of counsel. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir.1994) (stating that "without a specific, affirmative showing of what the missing evidence or testimony would have been, `a habeas court cannot even begin to apply Strickland's standards' because `it is very difficult to assess whether counsel's performance was deficient, and nearly impossible to determine whether the petitioner was prejudiced by any of the deficiencies in counsel's performance.'") (citation omitted). Moreover, "mere conclusory allegations do not raise a 576 constitutional issue in a habeas proceeding." Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir.1983). Daniels' complaint with respect to his attorney is wholly conclusory and cannot support a request to vacate his conviction and for that reason must be denied. Conclusion For the forgoing reasons, Daniels' Motion to Vacate and Set Aside a Conviction and Sentence, is DENIED. NOTES [1] On June 20, 1997, both the defendant and Government consented to proceed before this Court for all proceedings, including final judgment, pursuant to 28 U.S.C. § 636(c). [2] 575 F.2d 515, 519 (5th Cir.1978). [3] Whether the deliberate bypass test survives Bousley is not specifically addressed by the high court in that case. Nonetheless, it appears doubtful that it continues to govern collateral attacks of federal convictions in the aftermath of Bousley. Moreover, the Supreme Court has specifically rejected deliberate bypass as the test for raising collateral challenges to state court convictions in favor of the cause and prejudice test. See Woods v. Johnson, 75 F.3d 1017, 1029 n. 16 (5th Cir.1996) citing Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992). [4] Daniels' claim that he is innocent of the crime to which he pled guilty rests squarely on two cases decided by the Fifth Circuit in which the Circuit found that the defendants' conduct did not constitute bank fraud. See United States v. Medeles, 916 F.2d 195 (5th Cir.1990) and United States v. Briggs, 939 F.2d 222 (5th Cir.1991)(discussed in detail in the portion of this opinion addressing the facts underlying Daniels' guilty plea.). However, both of these cases were decided prior to Daniels' guilty plea and therefore foreclose any argument by him that this case authority was not "reasonably available" to him at the time of his direct appeal. See Bousley, 118 S.Ct. at 1611.(petitioner argued that his procedural default should be excused because the "`legal basis for his claim was not reasonably available to counsel' at the time his plea was entered.") [5] The Court recognizes the distinction between substantive and procedural claims of actual innocence enunciated by the Supreme Court in Schlup, 513 U.S. at 313-17, 326-27, 115 S.Ct. at 860-862, 866-67, 130 L. Ed. 2d 808 (1995). (applying Carrier's less stringent standard to procedural claims of actual innocence). In Bousley, the defendant, like Daniels, claimed that he had been misinformed about the elements of the offense to which he had pled guilty. Bousley, 118 S.Ct. at 1608. The Supreme Court applied Carrier's standard as the test the defendant had to satisfy to overcome a procedural bar based on a claim of actual innocence. Based on the high court's treatment of the defendant's claim in Bousley, this Court finds that Daniels' claim of innocence is likewise procedural in nature and, thus, applies the Carrier standard to determine if his claims should be heard on their merits. [6] The Court recognizes that by reviewing Daniels' claim regarding his guilty plea in detail, it is necessarily reviewing this claim on the merits. However, in view of his claim of innocence and the detail with which he has supported that claim, the undersigned finds it necessary to undertake such an analysis to determine whether or not he has made colorable showing of factual innocence. [7] Section 1344 provides: Whoever knowingly executes, or attempts to execute, a scheme or artifice ... (1) to defraud a financial institution; or (2) to obtain any of the monies, funds, credits, assets, securities, or other property owned by, or under the custody of control, a financial institution, by means of false or fraudulent pretenses, representations, or promises; shall be fined not more than I million dollars or in prison not more than thirty years, or both. [8] As set forth above, the count to which Daniels pled alleges that he violated § 1344 but does not specify which provision of the statute is implicated by his conduct. A review of the charge in Count 3 suggests that both provisions of the bank fraud statute are applicable. However, as set forth in the factual resume supporting Daniels' plea, it appears that Daniels' conviction can only be upheld under subsection 2 of the bank fraud statute. The factual resume does not suggest that East Park National Bank suffered even a potential loss based upon Daniels' conduct. Rather, it appears that Daniels' culpable conduct is in attempting to obtain funds in the custody and under the control of that bank, rendering the violation actionable only under subsection 2. See Briggs, 939 F.2d at 225 (although the government charged the defendant under both provisions of the bank fraud statute, the record supported a conviction only under subsection 2.) [9] The Fifth Circuit's review of the facts on direct appeal provides further elucidation as to the facts supporting Daniels' culpability: Daniels entered into a scheme in which he obtained a "point of sale" credit card terminal belonging to Sammy Aycock, one of the proprietors of a pawn shop located in Dallas, Texas. Normally, Harbridge Merchant Services ("Harbridge") would accept credit card transactions from Aycock for payment by Mastercard and Visa, and then deposit the dollar amounts in Aycock's bank account at East Park National Bank. Daniels' scheme involved entering numerous fraudulently obtained credit card access numbers in order to make fraudulent credit card transactions. Daniels planned to have the money deposited in Aycock's account and have Aycock withdraw the money and deliver it to him. Harbridge discovered the scheme before Daniels could obtain the money. United States v. Daniels, No. 92-1621, slip op. at 2 (5th Cir. July 15, 1993). [10] 916 F.2d 195 (5th Cir.1990). [11] 70 F.3d 1353, 1355-56 (D.C.Cir.1995). [12] The fact that the funds were never deposited in the bank is of no moment to the lawfulness of his conviction because the statute permits a conviction based on the "attempt to execute" a scheme to defraud a financial institution. See n. 7, supra. [13] Significantly, he raised a similar contention in a § 2255 motion filed on June 19, 1997 in Case No. 3-95-CR-281-G. At the time Daniels' supervised release was revoked in this case, he had also been separately indicted in cause No. CR-3-95-281-G. See Govt.'s Response at 2. He was sentenced to nine months imprisonment on the revocation to run consecutively with his sentence in Case No.3-95-281-G. In that case he argued that his sentence should be vacated because the federal prosecution in that case, filed subsequent to state in rem civil forfeiture proceedings based on the same conduct, violated the double jeopardy clause of United States Constitution. See Findings filed July 3, 1997, 3-95-CR-281-G. This Court, rejected that argument and recommended to the District Court that his motion be denied for the reasons set forth in findings entered July 3, 1997. Id. The District Court adopted those findings denying Daniels' petition in that case on July 15, 1997. See Judgment entered July 15, 1997. [14] See Pierce, supra, 959 F.2d at 1301.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2498912/	276 P.3d 502 (2012) Vicki L. POUNDERS, individually and as surviving wife of Dudley W. Pounders, Deceased, Plaintiff/Appellant, v. ENSERCH E & C, INC. nka EECI, Inc.; Riley Power, Inc. fna Riley Stoker Corporation; BW/IP, Inc., and its wholly-owned subsidiaries, Defendants/Appellees. No. 1 CA-CV 11-0282. Court of Appeals of Arizona, Division 1, Department A. April 17, 2012. 504 Stephen I. Leshner PC By Stephen I. Leshner, Phoenix and Waters & Kraus LLP By Charles S. Siegel, pro hac vice, Mark A. Linder, pro hac vice, Dallas, TX, Attorneys for Plaintiff/Appellant. Stinson Morrison Hecker LLP By Larry J. Wulkan, and Hawkins Parnell Thackston & Young LLP, Phoenix, By Edward M. Slaughter, pro hac vice, Dallas, TX, Attorneys for Defendant/Appellee Enserch E & C, Inc., n/k/a EECI, Inc. Jennings, Haug & Cunningham, LLP By Larry J. Crown, Hillary P. Gagnon, William F. Begley, Phoenix, and Kurowski Bailey & Shultz LLC By David J. Fisher, Swansea, IL, Attorneys for Defendant/Appellee BW/ IP, Inc. Jennings, Haug & Cunningham, LLP By Larry J. Crown, Travis A. Pacheco, Phoenix and Herrick & Associates, PC By David P. Herrick, pro hac vice, Dallas, TX, DeHay & Elliston, LLP By Bridgett N. Whitmore, pro hac vice, Dallas, TX, Attorneys for Defendant/Appellee Riley Power, Inc., f/k/a Riley Stoker Corporation. OPINION TIMMER, Judge. ¶ 1 The appeal in this wrongful death case requires us to employ choice-of-law principles to determine whether the substantive law of Arizona or New Mexico applies. If we agree with the trial court that New Mexico law applies, we then must decide whether the court properly applied New Mexico's statute of repose to find that suit is barred against Appellees. For the reasons that follow, we affirm. BACKGROUND ¶ 2 From 1969 to 1974 and again from 1977 to 1983, Arizona Public Service ("APS") employed Dudley W. Pounders to work as a welder at the Four Corners Power Plant (the "Plant") located in New Mexico. Mr. Pounders performed repair and maintenance work that required him to disturb and remove asbestos contained within equipment and insulation. As a result, he inadvertently inhaled asbestos fibers. Mr. Pounders lived in New Mexico while he worked at the Plant. ¶ 3 In May 2008, Mr. Pounders and his wife, Vicki, were living in Arizona when doctors diagnosed him with mesothelioma, a type of cancer purportedly caused by asbestos exposure. The Pounders initiated a personal injury lawsuit the following month in Arizona against several defendants, alleging defective design, construction, and use of asbestos in the Plant and a failure to warn of the dangers of asbestos. These defendants included appellees Enserch E & C, Inc. ("Enserch"), successor-in-interest to the architect and construction manager for three units at the Plant, BW/IP, Inc. ("BW"), parent company to the manufacturer, designer, and supplier of ten pumps used at the Plant, and Riley Power, Inc. ("Riley"), which designed and manufactured industrial boilers used at the Plant. After Mr. Pounders died in August, Mrs. Pounders amended the complaint to assert a claim for wrongful death. ¶ 4 During the course of litigation, the trial court granted Appellees' motion to apply New Mexico law to substantive issues concerning Mrs. Pounders' claims because Mr. Pounders' injuries occurred in that state. 505 The court subsequently granted summary judgment for Appellees after applying New Mexico's statute of repose, New Mexico Statutes Annotated § 37-1-27 (West 2012),[1] which bars all claims arising from improvements made to real property and asserted more than ten years after substantial completion of the improvements. This timely appeal followed. DISCUSSION ¶ 5 Mrs. Pounders argues the trial court erred by entering summary judgment because (1) Arizona substantive law, which does not include a statute of repose for tort claims,[2] applies to her lawsuit, and (2) even assuming New Mexico law applies, the court misapplied New Mexico's statute of repose. ¶ 6 The trial court properly granted summary judgment if "there is no genuine issue as to any material fact and [ ] the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c)(1). In reviewing the court's ruling, we determine de novo whether any disputed issues of material fact exist and whether the court properly applied the law. Best Choice Fund, LLC v. Low & Childers, P.C., 228 Ariz. 502, 506, ¶ 10, 269 P.3d 678, 682 (App.2012) (as amended). We view the facts and inferences arising from them in the light most favorable to Mrs. Pounders as the party against whom judgment was entered. Id. Finally, we review a choice-of-law issue de novo as a question of law. Baroldy v. Ortho Pharm. Corp., 157 Ariz. 574, 578, 760 P.2d 574, 578 (App. 1988). I. Choice of law ¶ 7 Although the law of the forum state governs procedural matters, substantive issues are resolved by "the law of the jurisdiction to which the court is referred by the choice-of-law rules of the forum." Cardon v. Cotton Lane Holdings, Inc., 173 Ariz. 203, 206, 841 P.2d 198, 201 (1992) (citations omitted). All parties acknowledge, and we agree, the statutes of repose in Arizona and New Mexico are matters of substantive law, and we must apply choice-of-law tenets to determine which state's laws apply. Albano v. Shea Homes Ltd. P'ship, 227 Ariz. 121, 127, ¶ 24, 254 P.3d 360, 366 (2011) (noting statutes of repose define substantive rights); see also Rice v. Dow Chem. Co., 124 Wash.2d 205, 875 P.2d 1213, 1217 (1994) ("The general authority is that statutes of repose are to be treated ... as part of the body of a state's substantive law in making choice-of-law determinations."). ¶ 8 Arizona follows principles set forth in the Restatement (Second) of Conflict of Laws ("Restatement") (1971) to resolve conflict-of-law issues. Bryant v. Silverman, 146 Ariz. 41, 42-43, 703 P.2d 1190, 1191-92 (1985). Section 175 provides that in wrongful death actions, "the local law of the state where the injury occurred determines the rights and liabilities of the parties" unless another state has "a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied." Restatement § 175; see also Restatement § 146 (providing same principles for all personal injury actions). In other words, the laws of the state where the injury occurred presumptively apply unless another state has a more significant relationship. Phillips v. Gen. Motors Corp., 298 Mont. 438, 995 P.2d 1002, 1008 (2000) (characterizing Restatement § 175 as establishing a presumption). To resolve the parties' dispute, we initially decide where Mr. Pounders' "injury occurred"New Mexico or Arizona and then consider whether the other state has a more significant relationship to the event causing his injury and with the parties. A. Place of injury ¶ 9 Mrs. Pounders argues her husband's injury occurred in Arizona because he was living there when the effects of inhaling asbestos 506 manifested in injurymesothelioma. She contends Mr. Pounders did not sustain an injury in New Mexico because inhalation of asbestos absent the onset of disease is not harmful. Appellees counter that Mr. Pounders sustained injury when he inhaled asbestos while working in New Mexico because asbestos fibers immediately damaged his lung tissue. The issue presented by the parties is whether, for purposes of resolving a choice-of-law dispute, a plaintiff diagnosed with a slow-developing disease is injured at the time of exposure to conditions causing the disease or at the time the disease manifests. The appellate courts in this state have not yet addressed the issue. ¶ 10 We start with Restatement § 175. Comment b to that section provides: b. Place of injury. The place where the injury occurs is the place where the force set in motion by the actor first takes effect on the person. This place is not necessarily that where the death occurs. Nor is it the place where the death results in pecuniary loss to the beneficiary named in the applicable death statute. The parties do not dispute that "the force set in motion" by Appellees was exposing Mr. Pounders to asbestos and failing to warn him of its dangers. Their quarrel centers on where this exposure "first [took] effect" on Mr. Pounders. ¶ 11 Mrs. Pounders urges us to decide that asbestos exposure first takes effect on the person inhaling it when an asbestos-related illness develops. Until that time, she points out, the person does not possess a personal injury claim. She relies primarily on cases discussing compensability of claims based on exposure to harmful conditions. DeStories v. City of Phoenix, 154 Ariz. 604, 605, 744 P.2d 705, 706 (App.1987), for example, concerned a personal injury lawsuit filed by construction workers who sued their employer for exposing them to asbestos dust, which increased their risk of future asbestos-related illness and caused them to suffer emotional distress due to their fear of developing a future serious illness. This court held that an increased risk of injury and resulting mental anguish is not compensable absent proof of present physical harm or a medically identifiable effect from the asbestos exposure or associated emotional distress. Id. at 607-08, 610, 744 P.2d at 708-09, 711. Other cases cited by Mrs. Pounders reach similar conclusions. Transamerica Ins. Co. v. Doe, 173 Ariz. 112, 115, 840 P.2d 288, 291 (App.1992) (deciding plaintiffs exposed to HIV-infected blood did not sustain a "bodily injury" entitling them to recover under an insurance policy because they suffered no resulting physical injury); Burns v. Jaquays Mining Corp., 156 Ariz. 375, 376-78, 752 P.2d 28, 29-31 (App.1987) (concluding plaintiffs who inhaled asbestos fibers that changed lung tissue could not sue for increased risk of future asbestos-related disease or for distress caused by risk of future onset of disease before any disease becomes manifest). ¶ 12 DeStories, Transamerica, and Burns are distinguishable as they address the compensability of an effect on the plaintiff as a result of a defendant's conduct rather than the existence of that effect, which is the linchpin of Restatement § 175 comment b. Indeed, in DeStories, the court acknowledged the distinction: In a sense, the injury in this case is the inhalation of asbestos fibers. It was not an actionable injury, however, meaning it was not legally cognizable, until at least one evil effect of the inhalation became manifest. There was no cause of action at all, in other words, until the [disease] asbestosis appeared. 154 Ariz. at 609-10, 744 P.2d at 710-11 (quoting Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 412 (5th Cir.1986), abrogated on other grounds as recognized in Centennial Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378, 382 n. 10 (5th Cir.1998)). And the Burns court recognized that inhaling asbestos fibers has an immediate effect by deciding that, even in the absence of a manifestation of asbestos-related diseases, the plaintiffs were entitled to damages for the cost of medical monitoring in light of expert testimony that plaintiffs were at great risk for developing such diseases. 156 Ariz. at 380, 752 P.2d at 33. Consequently, as these cases focus on injury compensability rather than injury existence, we are not persuaded by them to adopt Mrs. Pounders' position. 507 ¶ 13 Courts outside Arizona that have considered the "place of injury" associated with slow-developing diseases have reached opposing conclusions. For example, in Rice v. Dow Chemical Co., 875 P.2d at 1217-18, the Washington Supreme Court applied Restatement § 145[3] and concluded that an individual exposed to dangerous pesticides in Oregon and later diagnosed with leukemia in Washington was "injured" in Oregon. The court rejected plaintiff's contention he was injured in Washington because he was living there when his claim accrued at the time of his diagnosis years after exposure. Id. at 1218. The court recognized that "[t]he place an injured Plaintiff's action accrues may be completely unrelated to where the plaintiff was injured" and then reasoned that the plaintiff was injured in Oregon where he was primarily exposed to the pesticides. Id. After examining other factors, the court held Oregon law applicable and affirmed dismissal of the plaintiff's complaint under Oregon's statute of repose. Id. at 1218-19. Other courts have reached similar conclusions.[4] ¶ 14 The Nevada Supreme Court reached a contrary conclusion in Wyeth v. Rowatt, ___ Nev. ___, 244 P.3d 765 (2010). In that case, three women took the defendant's hormone therapy drug for a number of years before being diagnosed with breast cancer in Nevada. Id. at 770. Because two of the women started taking the drug in other states before moving to Nevada and continuing to take the drug there, the defendant asserted that the laws of the other states applied to substantive issues. Id. at 776. The court applied Restatement § 146, which is applicable to personal injury actions and identical to Restatement § 175, and decided that the place of injury was Nevada because it was the state where the last event necessary for a tort claim occurreddiagnosis of the cancer. Id. at 776-77. The court reasoned that this selection conforms to Nevada's definition of "injury," which necessitates the existence of damages and that a plaintiff knows or has reason to know of the defendant's potential liability. Id. at 776. Other courts have entered similar holdings.[5] 508 ¶ 15 We are persuaded that Rice and like cases provide the better analysis and hold that the "effect" of a defendant's conduct need not manifest as a physical impairment or disease in order to constitute an injury for purposes of determining where an injury took place. First, comment b to Restatement § 175 does not tie the initial effect of an act or omission to compensability or accrual; it merely requires an "effect." Second, deeming the initial effect of conduct, regardless of compensability and accrual, as the injury for choice-of-law purposes promotes the Restatement goals of certainty, predictability, and uniformity of result. Restatement § 175, cmt. d (setting forth values furthered by section's principles). Specifically, our decision cements the "place of injury" at the time the allegedly tortious conduct impacted the plaintiff rather than at the onset of a disease that may slowly develop as the plaintiff moves from location to location before an eventual diagnosis. Our decision also eliminates the potential for a costly "trial within a trial" to determine the precise time and place a disease manifested before eventual discovery, thereby furthering the Restatement goal of ease of determination. Id. Having decided that the "place of injury" is not dependent on manifestation of a physical impairment or disease, we now consider where Appellees' alleged tortious conduct first took effect on Mr. Pounders. ¶ 16 The forces put in motion by Appelleesallegedly exposing Mr. Pounders to asbestos without warning of its dangersfirst took effect on Mr. Pounders when he inhaled the asbestos fibers into his lungs while living and working in New Mexico. According to an affidavit of expert witness John C. Maddox, M.D., submitted to the trial court by Mrs. Pounders, mesothelioma is a "dose response disease" and "[e]ach and every time" Mr. Pounders inhaled asbestos dust, it contributed to the onset of the disease. And as previously explained, see supra ¶ 12, Arizona courts have acknowledged the immediate effects of asbestos inhalation. DeStories, 154 Ariz. at 609-10, 744 P.2d at 710-11; Burns, 156 Ariz. at 380, 752 P.2d at 33. Other courts and commentators have made similar findings. See, e.g., Forty-Eight Insulations, 633 F.2d at 1222 (noting medical evidence is uncontroverted that "tissue damage takes place at or shortly after the initial inhalation of asbestos fibers"); 60 Am.Jur. Trials § 73, at 8 (1996) ("Upon inhalation or ingestion, the long and sharp [asbestos] amphibole fibers... bury themselves along the mucous lining and deep in the lung wall and are inextricable by the lung. Once embedded in the lung wall, the fibers begin the long process of impairing the lung to function properly."). ¶ 17 We hold that Appellees' purportedly tortious conduct first took effect on Mr. Pounders in New Mexico where he repeatedly inhaled asbestos fibers, which eventually manifested years later in Arizona as mesothelioma and gave rise to a claim against Appellees and others. For this reason, New Mexico is the place of injury for purposes of Restatement § 175, and New Mexico substantive law presumptively applies unless application of Restatement § 6 principles reveals Arizona has a more significant relationship with events or the parties. B. Most significant relationship ¶ 18 Restatement § 6 provides that a court should consider the following principles to determine which state has the most significant relationship to the occurrence and the parties: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Additionally, contacts described in Restatement § 145(2) should be taken into account in applying the § 6 principles: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and 509 (d) the place where the relationship, if any, between the parties is centered. See also Bryant, 146 Ariz. at 44-45, 703 P.2d at 1193-94 (considering § 145(2) contacts in applying § 6). Deciding whether another state has more significant contacts than the state where the injury occurred turns on the quality of the contacts rather than the quantity. See id. at 45, 703 P.2d at 1194. Factors favoring New Mexico ¶ 19 For the reasons explained, see supra ¶¶ 9-11, New Mexico is the place of injury. This factor is particularly meaningful as the injury took place in a fixed location and was therefore predictable rather than fortuitous. Garcia v. Gen. Motors Corp., 195 Ariz. 510, 517, ¶ 22, 990 P.2d 1069, 1076 (App.1999) (stating place of injury loses strength as factor if injury is merely fortuitous); see, e.g., Baroldy, 157 Ariz. at 579, 760 P.2d at 579 (concluding manifestation of disease in North Carolina from diaphragm use fortuitous as plaintiff could have used device in any state). Additionally, Mr. Pounders was a New Mexico resident while he worked at the Plant and suffered asbestos exposure. Restatement § 175 cmt. f ("When ... the decedent ... resided ... in the state where the conduct occurred, this state is more likely to be the state of most significant relationship and therefore the state of the applicable law...."). ¶ 20 New Mexico is also the state where a significant part of the tortious conduct occurred because that is where Appellees purportedly engaged in defective construction and use of asbestos at the Plant. Restatement § 145(2) cmt. e (noting that state of injury likely to be state of conduct when issues involve standards of conduct as that state has natural concern in resolving such issues).[6] We reject Mrs. Pounders' contention that this factor should be discounted because Appellees chose to conduct their activities in New Mexico as its tort laws are favorable for defendants. See Restatement § 145 cmt. e. The record does not suggest Appellees chose to do business only in states with favorable tort laws. ¶ 21 As previously explained, see supra ¶ 15, the principles of certainty, predictability, and uniformity of result, as well as ease of application of law, favor New Mexico. Additionally, applying New Mexico substantive law furthers that state's natural interest in regulating businesses that construct or distribute defective products within its borders and deterring such conduct. See Jackson v. Chandler, 204 Ariz. 135, 139, ¶ 17, 61 P.3d 17, 21 (2003) (recognizing that Arizona has significant interest in regulating conduct within its borders and deterring future tortious conduct); Jaurequi v. John Deere Co., 986 F.2d 170, 175 (7th Cir.1993) (holding that state has interest in regulating businesses that distribute defective products in that state). And New Mexico has an interest in protecting the justified expectations of both businesses and injured parties that New Mexico law will apply in any lawsuit arising from conduct and injury in New Mexico. See Jaurequi, 986 F.2d at 175-76 (holding that Missouri has interest in providing a forum for victims injured as a result of activities conducted within its borders). ¶ 22 Finally, in comparing the relevant policies of New Mexico and Arizona regarding claim viability, New Mexico's interests are weightier. The New Mexico legislature enacted its ten-year statute of repose to preclude claims asserted years after completion of a construction project. Coleman v. United Eng'rs & Constructors, Inc., 118 N.M. 47, 878 P.2d 996, 1000 (1994). According to the New Mexico Supreme Court, the legislature was persuaded that "[t]he passage of time might make the preparation of a reasonable defense impossible for those involved in the 510 design, planning, supervision, inspection, or administration of construction of an improvement to real property." Id. Although Arizona has a policy to compensate tort victims, Jackson, 204 Ariz. at 137, ¶ 7, 61 P.3d at 19, New Mexico's interests are more deeply affected by the decision whether to apply its statute of repose. Restatement § 6 cmt. f ("In general, it is fitting that the state whose interests are most deeply affected should have its local law applied."). If the New Mexico statute of repose can be readily bypassed by a victim's relocation to another state before manifestation of disease, even though the tortious conduct and injury occurred in New Mexico, the statute has diminished application to the types of claims specifically targeted by the legislature. Conversely, Arizona is not opposed to statutes of reposeit has one applicable to contract and warranty actions. A.R.S. § 12-552 (West 2012). And Arizona's policy of compensating tort victims is not eviscerated by application of the New Mexico statute of repose because a victim may still sue the property owner and obtain redress if a claim is made within the applicable statute of limitations. Factors favoring Arizona ¶ 23 Mr. Pounders resided in Arizona when he was diagnosed with mesothelioma, underwent treatment, and subsequently died. Additionally, while he worked at the Plant, he was employed by APS, an Arizona public service corporation. Mrs. Pounders continues to reside in Arizona and will feel the impact of her husband's loss in Arizona. No evidence suggests the Pounders engaged in "forum shopping" by moving to Arizona to take advantage of more favorable tort laws. Thus, Arizona has an interest in securing just compensation for one of its citizensMrs. Pounders. Jackson, 204 Ariz. at 137, ¶ 7, 61 P.3d at 19. Comparison of interests ¶ 24 Applying the Restatement principles, we conclude Mrs. Pounders fails to overcome the presumption that New Mexico substantive law applies because Arizona has a more significant relationship to the events and parties. The only significant factor favoring Arizona is the Pounders' residency in Arizona when Mr. Pounders was diagnosed with mesothelioma, engaged in treatment, and subsequently died. But that factor alone cannot overcome the presumption favoring New Mexico because it would effectively mean Arizona would always apply its substantive laws to resolve claims brought by Arizona residents. We agree with the Washington Supreme Court's assessment in analogous circumstances: The only significant contact with Washington, and corresponding state interest, is Plaintiff's residency in Washington. Plaintiff has identified Washington's interest as its interest in "seeing to it that its residents are compensated for personal injuries".... Although this is a real interest, recognizing this as an overriding concern, despite the lack of contacts, would mean that Washington law would be applied in all tort cases involving any Washington resident, regardless of where all the activity relating to the tort occurred. Furthermore, residency in the forum state alone has not been considered a sufficient relation to the action to warrant application of forum law. See, e.g., Restatement (Second) of Conflict of Law § 145 cmt. e (1971) ("The fact ... that one of the parties is domiciled ... in a given state will usually carry little weight of itself."); Ferren v. General Motors Corp., 137 N.H. 423, 427, 628 A.2d 265 (1993) ("`The possibility that the employee might change his residence at any time, after the injury, and thus shift the burden of support to another state, makes the fact of present residence less significant.'") (quoting Robert A. Leflar, American Conflicts Law § 160, at 329-30 (3d ed. 1977)). Rice, 875 P.2d at 1218-19. ¶ 25 In summary, Mr. Pounders was injured in New Mexico, although his compensable claim did not accrue until he was diagnosed with mesothelioma years later while living in Arizona. We therefore presume that New Mexico substantive law applies, unless Arizona has a more significant relationship with the events causing Mr. Pounders' injury or with the parties. For the reasons explained, Arizona's interests do not overcome the presumption. Consequently, the trial court correctly held that New Mexico's statute of repose applies to Mrs. Pounders' lawsuit. 511 II. Statute of repose ¶ 26 Mrs. Pounders next argues the trial court erred by applying New Mexico Statutes Annotated § 37-1-27, New Mexico's statute of repose, to find her claims barred against Riley and BW.[7] Section 37-1-27 provides in relevant part as follows: No action to recover damages ... for injury to the person, or for bodily injury or wrongful death, arising out of the defective or unsafe condition of a physical improvement to real property ... against any person performing or furnishing the construction or the design, planning, supervision, inspection or administration of construction of such improvement to real property, and on account of such activity, shall be brought after ten years from the date of substantial completion of such improvement; provided this limitation shall not apply to any action based on a contract, warranty or guarantee which contains express terms inconsistent herewith. Mrs. Pounders does not contest that Riley and BW made "improvement[s] to real property" by designing and installing boilers and pumps, respectively, at the Plant.[8] Instead, she argues these Appellees are not protected by the statute of repose because she sued them in their roles as suppliers of "off-the-shelf asbestos components." Appellees respond they designed their products for the Plant and used asbestos products as integral parts of these unique designs, bringing them within the protection of the statute of repose. ¶ 27 We are in the curious position of determining the breadth of the only New Mexico appellate decision parsing the roles of a defendant that provides construction and supply services. In Howell v. Burk, 90 N.M. 688, 568 P.2d 214, 217 (N.M.Ct.App.1977), a child was injured when he ran into a glass door or window at the Albuquerque Airport. He sued PPG Industries, Inc. ("PPG"), which manufactured, sold, and installed the glass, and other parties, including the City of Albuquerque, which owned the airport. Id. The City asserted a cross-claim against PPG. Id. Because PPG had installed the glass more than ten years before initiation of the lawsuit, it moved for summary judgment based on the statute of repose. Id. ¶ 28 After reviewing the purpose of the statute, the Howell court held that "a materialman who does no more than manufacture or supply materials does not benefit from the statute," but a party that performs construction or design does benefit. Id. at 223. According to the court, whether PPG was entitled to invoke the statute of repose turned on the "activity" for which it was sued. Id. To the extent the plaintiff sued PPG as a manufacturer or seller of glass, PPG could not assert the statute as a defense. Id. But if the plaintiff sued PPG as the designer or installer of glass, the statute shielded PPG from the lawsuit. Id. Because the plaintiff's complaint and the City's cross-claim fell in the latter category, the court affirmed summary judgment for PPG. Id.; see also Pfeifer v. City of Bellingham, 112 Wash.2d 562, 772 P.2d 1018, 1022-23 (1989) (employing Howell's activity analysis to decide that a seller who happens to be a builder is not shielded by Washington's statute of repose if sued for supplying a faulty product). ¶ 29 Employing the Howell activity analysis, Mrs. Pounders contends both Riley and BW were sued in their capacities as materialmen that supplied asbestos to the Plant. She points to evidence that both supplied asbestos-laden components in their products to comply with the customer's specifications as demonstrating these entities' separate and distinct roles as suppliers as well as designers and installers. She further asserts that whether the boilers and pumps were mass-produced or customized is irrelevant to determining an entity's role as supplier, pointing out that New Mexico courts have never made such a distinction. Riley and BW urge a contrary view, pointing out they were engaged as designers and installers rather than materialmen. ¶ 30 We start our resolution of the parties' dispute by examining the activities of Riley 512 and BW at the Plant. Riley designed, constructed, and supervised the erection of two industrial, custom-designed boilers at the Plant. At Riley's instruction, its subcontractor insulated the boilers with a product containing asbestos. BW designed, manufactured, and oversaw the installation of ten industrial pumps, which were specially designed for the Plant. Each pump was the size of a small car and was integrated with the Plant structure as a permanent feature. Some of the pump components contained asbestos. Thus, the record establishes that both Riley and BW served as designers and installers at the Plant, and Mrs. Pounders does not contest that their products were improvements to real property. The narrow and determinative issue before us, then, is whether designers and installers of improvements to real property can also be considered "suppliers" to the extent they provide defective materials to construct their designs. ¶ 31 We are guided by cases addressing the applicability of statutes of repose to entities that play multi-faceted roles in making improvements to real property. In Ball v. Harnischfeger Corp., 877 P.2d 45, 45-46 (Okla.1994), for example, the Oklahoma Supreme Court addressed whether a company that both designed and manufactured a crane to fit specifications established by the owner of a port terminal and installed the crane as an improvement to real property could invoke Oklahoma's statute of repose. After employing an activity analysis, the court held that if the manufacturer of a product also acted as a designer, planner, construction supervisor or observer, or constructor, the statute of repose would apply. Id. at 50. "It is the specialized expertise and rendition of particularized design which separates those protected from mere manufacturers and suppliers." Id. Because the crane was designed to meet the customer's specifications, the crane manufacturer also served as a construction observer, and the crane improved real property, the court held that the crane company was protected by the statute of repose. Id. A majority of courts that have addressed the applicability of a statute of repose to an entity serving multiple roles have made holdings following this line of reasoning.[9] ¶ 32 We are persuaded that New Mexico's statute of repose applies to entities, like Riley and BW, which design and install customized products that constitute improvements to real property without regard to whether such entities also supplied the materials used in their designs and installations. Neither party was engaged to supply or manufacture asbestos-laden insulation or product components nor were they in the business of selling such items. Rather, Riley and BW were engaged to utilize specialized expertise to design, manufacture, and install customized boilers and pumps, respectively, for use at the Plant as improvements to real property. See Ball, 877 P.2d at 50; Dighton v. Fed. Pac. Elec. Co., 399 Mass. 687, 506 N.E.2d 509, 515 (1987) (stating statute of repose only intended to apply to "economic actors who perform acts of `individual expertise' akin to those commonly thought to be performed by architects and contractorsthat is to say, to parties who render particularized services for the design and construction of particular improvements to particular pieces of real property"). Because the asbestos used in the boilers and pumps was integral to their function, the fact Riley and BW supplied the component material did not convert these parties into materialmen, who are not protected by the statute of repose. See Pendzsu v. Beazer East, Inc., 219 Mich.App. 405, 557 N.W.2d 127, 132 (1996). To hold otherwise would provide an "end run" around the statute's protection whenever a constructor or designer supplies materials for use in construction rather than obtaining those materials from the owner. 513 ¶ 33 For these reasons, we hold that New Mexico's statute of repose applies to shield entities which supply defective materials as integral components of products specially designed, and installed as improvements to real property. Of course, if such entities separately supply other materials in aid of construction of real property that do not relate to the products designed and installed by these entities, the statute of repose would not apply. Because Riley and BW fall within the former category, the trial court correctly found that the statute of repose barred Mrs. Pounders' claims against them. CONCLUSION ¶ 34 For the foregoing reasons, we hold that New Mexico substantive law, including its statute of repose, applies to this lawsuit. Because the trial court correctly applied the statute to find that Mrs. Pounders' claims against Appellees are barred, we affirm the entry of summary judgment. CONCURRING: MAURICE PORTLEY, Presiding Judge, and ANDREW W. GOULD, Judge. NOTES [1] Absent material revision after the date of the events at issue, we cite a statute's current version. [2] Arizona has an eight-year statute of repose applicable to contract and warranty claims asserted against parties who develop, design, engineer, or construct improvements to real property. Ariz.Rev.Stat. ("A.R.S.") § 12-552 (West 2012). Unlike the New Mexico statute of repose, § 12-552 would not bar Mrs. Pounders' claims against Appellees as the statute does not apply to claims for personal injury or wrongful death. A.R.S. § 12-552(D). [3] Restatement § 145 sets forth general principles for choice-of-law issues in tort cases. Restatement § 145 cmt. a. It provides a "most significant relationship" test to assess which state's law should be applied to a particular issue that is akin to the Restatement § 175 paradigm. [4] See Clayton v. Eli Lilly & Co., 421 F.Supp.2d 77, 79-80 (D.D.C.2006) (applying Restatement and finding that plaintiff was injured in Alabama where her mother filled prescription for dangerous drug and used it, exposing plaintiff in utero, although adverse effects of exposure diagnosed while plaintiff lived in Puerto Rico); Harding v. Proko Indus., Inc., 765 F.Supp. 1053, 1054-57 (D.Kan.1991) (conducting § 145 analysis and finding Texas law applied where decedent exposed in that state while he resided there even though mesothelioma was detected while decedent lived in Kansas); Smith v. Walter C. Best, Inc., 756 F.Supp. 878, 880-81 (W.D.Pa.1990) (conducting Restatement analysis and concluding plaintiff was injured by silica dust where exposure occurred and not where he subsequently suffered from silicosis); McCann v. Foster Wheeler LLC, 48 Cal.4th 68, 76, 97-98, 105 Cal. Rptr.3d 378, 225 P.3d 516 (2010) (determining that law of state of exposure to asbestos governs rather than law of state where diagnosis of mesothelioma occurred); Celotex Corp. v. Meehan, 523 So.2d 141, 146 (Fla.1988) (deciding New York law applied where decedent was exposed in New York to asbestos and was a resident of New York even though asbestos-related disease manifested in Florida). Decisions addressing the meaning of the term "bodily injury" in insurance policies have similarly held that injury occurs at the time of exposure to conditions that ultimately cause a slow-developing disease. Although, as Mrs. Pounders points out, these cases rest on principles of contract interpretation rather than the Restatement, they nevertheless support Appellees' position as they employ similar analyses in determining the place of injury. See, e.g., Ins. Co. of N. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1218-23 (6th Cir.1980) (determining that "bodily injury" triggering insurance coverage occurs at time of exposure to asbestos), as amended on reh'g by 657 F.2d 814 (1981); Chantel Assocs. v. Mount Vernon Fire Ins. Co., 338 Md. 131, 656 A.2d 779, 785 (1995) (concluding that direct damage to cells and bodily tissue by lead paint exposure constitutes "bodily injury" under insurance contract). [5] In re Joint E. & S. Dist. Asbestos Litig., 721 F.Supp. 433, 435-36 (E.D.N.Y. & S.D.N.Y.1988) (following the "last event necessary" approach and concluding the last event necessary refers to the place where the plaintiff became ill); Trahan v. E.R. Squibb & Sons, Inc., 567 F.Supp. 505, 507-08 (M.D.Tenn.1983) (finding plaintiff injured in Tennessee where adverse effects developed due to exposure in utero to dangerous drug even though exposure occurred in North Carolina, where she was born). [6] The record before us does not reveal where Appellees designed their products or decided not to warn Plant employees of asbestos dangers, but Mrs. Pounders does not assert that any decisions were made in Arizona. See Baroldy, 157 Ariz. at 579, 760 P.2d at 579 (holding with failure-to-warn claim, place of conduct is where tortious decision was made); In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594, 607 (7th Cir.1981) (concluding design of jet engine took place in California where defendant performed this work); Norwood v. Raytheon Co., 237 F.R.D. 581, 595 (W.D.Tex.2006) (when applying most significant relationship test "[i]n a products liability case alleging defective design, courts generally consider the place where the conduct causing the injury occurred to be the place where the product was designed and manufactured"). [7] Mrs. Pounders does not challenge application of the statute of repose against Enserch. [8] BW's subsidiary, Byron Jackson Pumps, designed and installed the pumps, which included asbestos-related components. For ease of reference, we refer to BW as the entity that performed these functions. [9] See Ball, 877 P.2d at 47 n. 3 (collecting cases); Fine v. Huygens, DiMella, Shaffer & Assocs., 57 Mass.App.Ct. 397, 783 N.E.2d 842, 847-48 (2003) (applying activity analysis and concluding statute of repose applies to design professionals who supplied exterior wall panel but does not apply to suppliers who provided stock windows); Abbott v. John E. Green Co., 233 Mich.App. 194, 592 N.W.2d 96, 102 (1998) (holding under activity analysis contractors who designed and installed asbestos product were entitled to protection of statute of repose); Pendzsu v. Beazer East, Inc., 219 Mich.App. 405, 557 N.W.2d 127, 132 (1996) (rejecting plaintiff's argument that entity that designed, manufactured, and installed coke ovens was a "supplier" for purposes of statute of repose).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3072140/	COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-14-00318-CV In the Matter of the Guardianship of § From Probate Court No. 1 Linda Jane Hart § of Tarrant County (2014-GD00268-1) § March 26, 2015 § Per Curiam JUDGMENT This court has considered the record on appeal in this case and holds that the appeal should be dismissed. It is ordered that the appeal is dismissed for want of jurisdiction. SECOND DISTRICT COURT OF APPEALS PER CURIAM	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/2499123/	274 P.3d 1063 (2012) 167 Wn. App. 698 Robert CATSIFF, Appellant, v. Tim McCARTY and City of Walla Walla, Respondent. No. 30422-1-III. Court of Appeals of Washington, Division 3. April 12, 2012. 1065 Michael Edward De Grasse, Attorney at Law, Walla Walla, WA, for Appellant. Timothy J. Donaldson, Walla Walla City Attorney, Walla Walla, WA, for Respondent. BROWN, J. ¶ 1 Robert Catsiff appeals a superior court decision affirming a Walla Walla administrative order mainly deciding a sign he painted on his store violated size and height restrictions of the city's sign code. We reject Mr. Catsiff's federal and state free speech contentions, deny his attorney fee request, and affirm. FACTS ¶ 2 Mr. Catsiff owns and operates the Inland Octopus toy store and gift shop in Walla Walla. In 1991, the city enacted a sign ordinance as part of a coordinated downtown revitalization plan to further central business district (CBD) renovation and to preserve and restore its historic resources. Consistent with city visual-quality policies designed to improve the appearance of the downtown area, the city recognized "[p]articular attention needs to be given to signing in the [CBD]." Clerk's Papers (CP) at 360. On March 27, 1991, the city council resolved to form a local improvement district to finance the installation of downtown revitalization improvements and passed a complementary zoning ordinance at its next meeting including the city's sign code. ¶ 3 The 1991 sign code's stated purpose was to improve the city's visual quality by accommodating and promoting sign placement "consistent with the character and intent of the zoning district; proper sign maintenance; elimination of visual clutter; and creative and innovative sign design" Walla Walla Municipal Code (WWMC) § 20.204.010. The city adopted wall sign size and height requirements for Walla Walla's CBD. Wall signs are limited to 25 percent of a wall area, and no combination of sign areas may exceed 150 square feet per street frontage. WWMC § 20.204.250(A)(4), (5). In addition, signs cannot extend higher than 30 feet above grade. WWMC § 20.204.250(A)(8). ¶ 4 In 2002, the city designated a "downtown area" as a subset of its CBD. It then adopted design standards in 2003 that contained signage requirements applying to the downtown area. Similar to the sign code, the downtown design standards disallow wall signs higher than 30 feet above grade, provide that wall signs shall not exceed 25 percent of a wall area, and limit sign areas to 150 square feet per street frontage. WWMC § 20.178.110. ¶ 5 In March 2004, Mr. Catsiff opened the Inland Octopus toy store at 220 E. Main Street. He applied for, and was issued, a sign permit. In February 2010, desiring to change business locations, Mr. Catsiff leased 7 E. Main Street within the city's CBD and downtown area. He told the owner he wanted to paint a wall sign depicting a hiding octopus on the exterior back wall of his store. On March 18, Mr. Catsiff submitted a business registration application to the city for the 7 E. Main Street location. The application contained a notification above the signature line that Mr. Catsiff, "will need to obtain a sign permit prior to construction or installation of any exterior sign." CP at 644. 1066 ¶ 6 In late April 2010, Mr. Catsiff painted a wall sign depicting an octopus hiding behind a rainbow over the rear entrance of the store. He did not apply for a permit before painting it. In September Mr. Catsiff painted on the store front an octopus hiding behind several buildings with a rainbow above the buildings; Mr. Catsiff concedes the front sign exceeds the city's height and width limits. ¶ 7 Acting Walla Walla City Manager, Tim McCarty, issued a notice of civil violation to Mr. Catsiff and his landlord regarding both signs on October 14, 2010 for violating the city's sign code permitting requirements, and the sign size and height requirements of the sign code and the downtown design standards. At the violation hearing, Mr. Catsiff stipulated factually to his violations, but asserted the regulations were unconstitutional. The city's hearing examiner concluded he violated the WWMC by failing to get sign permits before painting his back and front wall signs and by failing to get a right-of-way permit before using the public sidewalk as a staging area to paint the front sign. The hearing examiner further ruled the front sign constituted a continuing violation of the size and height requirements of both the sign code and the downtown design standards. ¶ 8 Mr. Catsiff appealed to the superior court, requesting declaratory and injunctive relief. The court issued a letter decision on April 28, 2010 rejecting Mr. Catsiff's constitutional claims and affirming the hearing examiner's decision. On June 1, 2010, the court entered findings of fact and conclusions of law and judgment in favor of the city. The Washington Supreme Court declined Mr. Catsiff's petition for direct review, and transferred the matter to this court. ANALYSIS ¶ 9 The issue is whether the trial court erred in deciding the city's sign-and-height code restrictions did not violate Mr. Catsiff's free speech rights under the state and federal constitutions. ¶ 10 The superior court reviews the administrative record before the body or officer in the local jurisdiction authorized to make the final determination. Citizens to Preserve Pioneer Park v. Mercer Island, 106 Wash.App. 461, 470, 24 P.3d 1079 (2001). We stand in the same position as the superior court and review the record before the hearing examiner. Thornton Creek Legal Def. Fund v. City of Seattle, 113 Wash.App. 34, 47, 52 P.3d 522 (2002). We review the findings of fact under the substantial evidence standard and conclusions of law de novo. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 176, 4 P.3d 123 (2000). ¶ 11 "First Amendment protections apply equally to statutes and local ordinances." State v. Immelt, 173 Wash.2d 1, 3, 267 P.3d 305 (2011). Article I, section 5 of the Washington Constitution also provides free speech protection. Kitsap County v. Mattress Outlet, 153 Wash.2d 506, 511, 104 P.3d 1280 (2005). The interpretation of constitutional provisions and legislative enactments, including municipal ordinances, presents a question of law that we review de novo. City of Spokane v. Rothwell, 166 Wash.2d 872, 876, 215 P.3d 162 (2009). Generally, we presume legislative enactments are constitutional. State v. Bahl, 164 Wash.2d 739, 753, 193 P.3d 678 (2008). ¶ 12 Initially, Mr. Catsiff suggests court decision inconsistencies between the principle that a party challenging an ordinance must demonstrate its unconstitutionality beyond a reasonable doubt and the principle that the government bears the burden of justifying restrictions on commercial speech by generally showing they are narrowly tailored to serve a substantial state interest. But in Mattress Outlet, for instance, our Supreme Court had no difficulty applying these principles. Mattress Outlet, 153 Wash.2d at 512, 104 P.3d 1280. And, the Immelt court noted a party challenging an ordinance bears the burden of proving its unconstitutionality, and in the free speech context the State usually bears the burden of justifying a restriction on speech. Immelt, 173 Wash.2d at 3, 267 P.3d 305. We turn now to Mr. Catsiff's five contentions. ¶ 3 First, Mr. Catsiff incorrectly contends the octopus signs on his business were not commercial speech. Two nondefinitive formulations distinguish between commercial 1067 and noncommercial speech. The Supreme Court has said commercial speech is "expression related solely to the economic interests of the speaker and its audience." Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Another formulation is "speech proposing a commercial transaction." Id. at 562, 100 S.Ct. 2343. The octopus signs meet both formulations. ¶ 14 Mr. Catsiff named his toy store "Inland Octopus." He designed a store logo depicting an octopus hiding behind inland buildings. He displayed images of his Inland Octopus logo and rainbows on his original storefront and in advertising for his store. Mr. Catsiff admits he used an octopus on his storefront to convey "[t]hat its a wonderful experience to come into my store and a wonderful place to buy toys." Ex. 15, at 29. Since the purpose of the sign was economic, the sign would be characterized as commercial speech under Central Hudson. ¶ 15 Second, because the city restricted commercial speech, we must decide whether, as Mr. Catsiff contends, the city met its burden of justifying the restrictions because they were narrowly tailored to protect the city's substantial interest in traffic safety and aesthetics. He argues a conflict exists between Collier v. City of Tacoma, 121 Wash.2d 737, 854 P.2d 1046 (1993) and State v. Lotze, 92 Wash.2d 52, 593 P.2d 811 (1979), over whether traffic safety and aesthetic values are compelling state interests. ¶ 16 The Lotze court held such interests are compelling in the context of regulating political signs visible from highways. Lotze, 92 Wash.2d at 59, 593 P.2d 811. But the Collier court held a city ordinance restricting the length of time political signs may be displayed was not adequately justified by the city's interests in traffic safety and aesthetics. In so holding the court criticized Lotze and "depart[ed]" from it "to the extent it implie[d] that aesthetics and traffic safety are compelling interests justifying greater restrictions on political speech than on commercial speech." Collier, 121 Wash.2d at 756, 854 P.2d 1046; see also Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 513 n. 18, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (criticizing and overruling its prior summary approval of Lotze for not giving adequate weight to the distinction between commercial and noncommercial speech and to the higher level of protection afforded the latter). As can be seen, the Collier court departed from Lotze solely as to the extent Lotze made aesthetics and traffic safety compelling interests justifying restrictions on political speech. ¶ 17 The criteria outlined by the Court in Collier for evaluating regulations upon the noncommunicative aspects of signs are virtually identical to the standards enunciated by the United States Supreme Court in City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994), while signs are a form of expression protected by the free speech clause, they pose distinctive problems that are subject to municipalities' police powers. Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation. Collier, 121 Wash.2d at 752, 854 P.2d 1046. Under Collier and Ladue, restrictions upon the noncommunicative aspects of signs, i.e. the physical characteristics of signs, must be (1) content neutral, i.e. absent censorial purpose; (2) reasonable, and (3) supported by a legitimate regulatory interest. We address these restrictions in turn. ¶ 18 Regarding content neutrality, the Collier, court explained that restrictions are content neutral if they do not regulate on the basis of viewpoint or classify speech in terms of subject matter. Collier, 121 Wash.2d at 748-53, 854 P.2d 1046. Walla Walla's wall sign size and height restrictions do not limit what a business owner may say or depict in a wall sign. The requirements in the sign code regulate size and placement. The downtown design standards similarly solely state: Wall signs must be either painted upon the wall, mounted flat against the building, or erected against and parallel to the wall not extending out more than twelve inches (12) therefrom. Wall signs shall be located no higher than 30 feet above grade . . . the maximum combined area of all wall signs per street frontage shall not exceed twenty-five 1068 percent (25%) of the wall area. No combination of sign areas of any kind shall exceed one hundred fifty (150) square feet per street frontage. WWMC § 20.178.110(B). Nothing in either provision regulates viewpoint or message. The size and height restrictions apply to all wall signs without classification and without reference to content. Thus, they are content neutral. ¶ 19 Next, regarding reasonableness, the Mattress Outlet court recognized "the means chosen need not be the least restrictive means, the fit between the means chosen and the interests asserted must be reasonable." Mattress Outlet, 153 Wash.2d at 515, 104 P.3d 1280. In Prime Media v. City of Brentwood, the court upheld a 120 square foot restriction, explaining, "[T]he question is not whether a municipality can `explain' why a 120-square-foot limitation `detract[s] more from the aesthetics of the City than signs with smaller sign face sizes'; it is whether the regulation is substantially broader than necessary to protect the City's interest in eliminating visual clutter' and advancing traffic safety." 398 F.3d 814, 822 (6th Cir.2005) (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)). Additionally the United States Supreme Court has stated, "[T]he case law requires a reasonable `fit between the legislature's ends and the means chosen to accomplish those ends.'" Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001) (quoting Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989)). ¶ 20 The city satisfies the reasonableness test. The legislative history shows the city carefully considered its sign size and height restrictions. Its sign code was a product of its stated policy of "working with downtown businessmen to develop a workable sign code specifically for the downtown area." CP at 354. A building improvement guide was commissioned which recommended a "sign should not dominate; its shape and proportions should fit your building just as a window or door fits" CP at 578. It suggested "[s]ome types of signs are not appropriate, including . . . oversized signs . . . applied over the upper facade." Id. The city used those considerations when choosing its sign size and height limitation in 1991, and it continues to rely on them. CP at 627. The city's consideration of such issues demonstrates reasonable legislative balancing based on local study and experience which satisfies any calibration duty. Prime Media, 398 F.3d at 823-24. ¶ 21 Finally, regarding a legitimate regulatory interest, Mr. Catsiff argues his signs are entitled to greater protection under article I, section 5 of the Washington State Constitution and the city lacks a compelling interest for regulating sign size and height. The Lotze court described traffic safety and aesthetic values to be compelling state interests adequate to distinguish between commercial and noncommercial speech when regulating highway sign placement. Lotze, 92 Wash.2d at 58-59, 593 P.2d 811. The Collier court departed from Lotze by implying "aesthetics and traffic safety are compelling interests justifying greater restrictions on political speech than commercial speech." Collier, 121 Wash.2d at 756, 854 P.2d 1046. But, the Court still concluded these interests are "sufficient" to justify regulations on the noncommunicative aspects of signs such as size. Id. at 761, 854 P.2d 1046. ¶ 22 Here, the sign code purpose section states, "The purpose of this section is to accommodate and promote: sign placement consistent with the character and intent of the zoning district; proper sign maintenance; elimination of visual clutter; and creative and innovative sign design. To accomplish this purpose, the posting, displaying, erecting, use, and maintenance of signs shall occur in accordance with this Chapter." WWMC § 20.204.010. Mr. Catsiff argues the purpose section is inadequate because it does not use the words "aesthetics" or "traffic safety." But, the section analogously discusses "visual clutter." CP at 104. The sign code manifests its interest in traffic safety in WWMC § 20.204.050(A) where it explains it does not apply to a "sign which is not visible to motorists or pedestrians on any public right-of-way." CP at 63. Notably, the city has provided a legislative history showing the 1069 wall sign size and height restrictions were adopted as part of a comprehensive plan to address aesthetics and traffic control. Thus, the city has demonstrated a legitimate regulatory interest in adopting its sign restriction ordinances. ¶ 23 In sum, the city shows its restrictions were content neutral, reasonable, and supported by a legitimate regulatory interest, satisfying the Collier restrictions. We hold the city has met its burden of showing the ordinances are lawfully justified. ¶ 24 Third, Mr. Catsiff contends the ordinances are unconstitutionally vague. A party challenging the constitutionality of an ordinance has the burden of proving it is unconstitutionally vague beyond a reasonable doubt. City of Seattle v. Huff, 111 Wash.2d 923, 928, 767 P.2d 572 (1989). When an enactment is challenged on vagueness, we examine whether adequate notice is given to citizens and adequate standards prevent arbitrary enforcement. Id. at 928-29, 767 P.2d 572. Mr. Catsiff argues the term "sign" is itself vague. The restrictions, however, apply to "wall signs." CP at 57. The sign code defines a "wall sign" as "any sign attached to or painted directly on the wall, or erected against and parallel to the wall of a building, not extending more than twelve (12) inches from the wall." WWMC § 20.204.020(A)(37). The downtown design standards similarly provide the size and height restrictions apply to "wall signs" painted upon, mounted flat, or erected against and parallel to a building. WWMC § 20.178.110(B). Each, in turn, defines a "sign" as "any device, structure, fixture (including the supporting structure) or any other surface that identifies, advertises and/or promotes an activity, product, service, place, business, political or social point of view, or any other thing." WWMC § 20.204.020(A)(27); WWMC § 20.06.030. ¶ 25 When read together, no danger exists that a citizen could mistake other surfaces, such as t-shirts or hats, as being regulated by the city's size and height requirements; the restrictions are limited to wall surfaces, surfaces attached to walls, and surfaces erected against and parallel to walls. Accordingly, we hold the ordinances provide adequate notice regarding the conduct prohibited and, therefore, are not vague. ¶ 26 Fourth, Mr. Catsiff contends the wall sign size and height restrictions are constitutionally overbroad, because they reach noncommercial speech as well as commercial speech. The Supreme Court recognizes the overbreadth doctrine is "strong medicine" that should be employed sparingly and solely as a last resort. State v. Halstien, 122 Wash.2d 109, 122, 857 P.2d 270 (1993) (citing O'Day v. King County, 109 Wash.2d 796, 804, 749 P.2d 142 (1988)). The first step in an overbreadth analysis is to determine if a statute reaches constitutionally protected speech or expressive conduct. Id. at 122, 857 P.2d 270. "If the answer is yes, then the court must examine whether the statute prohibits a `real and substantial' amount of protected conduct in contrast to the statute's plainly legitimate sweep." Id. at 123, 857 P.2d 270 (quoting City of Tacoma v. Luvene, 118 Wash.2d 826, 841, 827 P.2d 1374 (1992)). ¶ 27 As discussed above, the ordinances regulate advertizing by downtown businesses to protect aesthetics and promote traffic safety. Thus, the ordinances do not reach constitutionally protected speech. Accordingly, Mr. Catsiff does not meet the first task in an overbreadth analysis. In short, his claim fails. ¶ 28 Fifth, Mr. Catsiff contends the sign-permit requirement is an invidious prior restraint. Initially, the city argues Mr. Catsiff cannot bring a prior restraint claim in this proceeding because he did not first raise this issue in an administrative appeal. The city issued a business permit for relocation of his store on March 29, 2010. Mr. Catsiff's business permit contained a condition he "[o]btain a Sign permit prior to construction or installation of any exterior signage." CP at 647. The WWMC provided him with an administrative appeal option if he contested this procedure. WWMC § 20.18.070. "If . . . an administrative proceeding might leave no remnant of the constitutional question, the administrative remedy plainly should be pursued." Ackerley Commc'n v. Seattle, 92 Wash.2d 905, 909, 602 P.2d 1177 (1979) (quoting Pub. Util. Comm'n v. United States, 355 1070 U.S. 534, 539-40, 78 S.Ct. 446, 2 L.Ed.2d 470 (1958)). Because Mr. Catsiff did not exhaust his administrative remedies, this issue is not properly before this court. ¶ 29 Even so, because the trial court concluded the restrictions did not impose an unlawful prior restraint, we address prior restraint. "Prior restraints are `official restrictions imposed upon speech or other forms of expression in advance of actual publication.'" JJR, Inc. v. City of Seattle, 126 Wash.2d 1, 6, 891 P.2d 720 (1995) (quoting City of Seattle v. Bittner, 81 Wash.2d 747, 756, 505 P.2d 126 (1973)). While under the First Amendment "a system of prior restraint is not presumptively unconstitutional," a prior restraint is unconstitutional per se under article I, section 5. JJR, Inc., 126 Wash.2d at 6, 891 P.2d 720. ¶ 30 Not every speech regulation is a prior restraint. Regulations that do not ban expression but instead impose valid temporal, geographic, or manner of speech limitations are analyzed as time, place, and manner restrictions. Ino Ino, Inc. v. City of Bellevue, 132 Wash.2d 103, 126, 937 P.2d 154 (1997). For the reasons discussed above, the city's sign size and placement restrictions were reasonable and based on legitimate government interests. Accordingly, Mr. Catsiff fails to show a constitutionally invalid prior restraint. ¶ 31 Given the above, we do not reach Mr. Catsiff's attorney fee request for this appeal under 42 U.S.C. § 1983 because he does not substantially prevail. ¶ 32 Affirmed. WE CONCUR: KULIK and SWEENEY, JJ.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499158/	276 P.3d 1174 (2012) 2012 UT App 97 Lori RAMSAY and Dan Smalling, Plaintiffs and Appellants, v. KANE COUNTY HUMAN RESOURCE SPECIAL SERVICE DISTRICT; Utah State Retirement System; Dean Johnson; and John Hancock Life Insurance Company, Defendants and Appellees. No. 20100659-CA. Court of Appeals of Utah. April 5, 2012. 1175 Brian S. King, Salt Lake City, for Appellants. Timothy C. Houpt and Mark D. Tolman, Salt Lake City, for Appellee Kane County Human Resource Special Service District. David B. Hansen and Liza J. Eves, Salt Lake City, for Appellee Utah State Retirement System. Chad J. Utley and Brandon L. Kidman, St. George, for Appellee Dean Johnson. Thomas R. Barton and Florence M. Vincent, Salt Lake City; and H. Joseph Escher III, San Francisco, California, for Appellee John Hancock Life Insurance Company. Before Judges VOROS, DAVIS, and THORNE. OPINION DAVIS, Judge: ¶ 1 Lori Ramsay and Dan Smalling, individually and as representatives of a class of similarly situated individuals (collectively, Plaintiffs), appeal the trial court's dismissal of their complaint for lack of subject matter jurisdiction. We affirm in part and reverse in part. We affirm the trial court's dismissal with respect to those claims that fall under the Utah State Retirement and Insurance Benefit Act (the Act) and reverse and remand with instructions for the trial court to 1176 stay the proceedings as to those claims that do not fall under the Act pending resolution of the related administrative proceeding. Cf. Bar Harbor Banking & Trust Co. v. Alexander, 411 A.2d 74, 79 (Me.1980) (remanding "with instructions to stay further action pending completion of the administrative proceedings"). BACKGROUND ¶ 2 Plaintiffs filed a complaint on December 16, 2009, alleging several claims against the Kane County Human Resource Special Service District (the Hospital),[1] the Utah State Retirement System (URS), Dean Johnson, and John Hancock Life Insurance Company (John Hancock). Plaintiffs allege that the Hospital failed "to fund [the Plaintiffs'] retirement benefits in the amounts and manner required by Utah statute and federal law" and that Johnson and John Hancock, who assisted the Hospital in setting up its retirement benefits program, and URS, which administers the Act that the Hospital's retirement plan allegedly violated, either neglected to advise or inadequately advised the Hospital regarding its duty. Plaintiffs also allege that URS failed to remedy the situation when initially contacted by Plaintiffs. URS did eventually commence a proceeding before the Utah State Retirement Board (the Board) against the Hospital "to recover the unpaid benefit contributions from 1993 to 2009," and Ramsay and Smalling, as individuals and not as representatives of a class, were allowed to intervene in that administrative proceeding.[2] Plaintiffs filed their complaint several months after URS commenced the administrative proceeding, raising five causes of action against Defendants: "1) breach of contract; 2) breach of the covenant of good faith and fair dealing; 3) breach of fiduciary duty; 4) negligence; and 5) declaratory and injunctive relief." Each of the defendants responded to Plaintiffs' complaint individually, asserting a similar argument that the trial court lacked subject matter jurisdiction based on Plaintiffs' failure to exhaust existing administrative remedies in light of the ongoing proceeding before the Board. The trial court agreed and dismissed Plaintiffs' complaint for lack of subject matter jurisdiction. In its dismissal, the trial court also noted "that the case was filed in the improper venue ... [and] should have initially been filed in Kane County," not Salt Lake County. Plaintiffs appeal the trial court's dismissal. ISSUE AND STANDARD OF REVIEW ¶ 3 Plaintiffs argue that the trial court erred in dismissing their case for lack of subject matter jurisdiction instead of staying the case while awaiting resolution of the proceeding before the Board.[3] "We review the district courts' dismissals for lack of subject matter jurisdiction for correctness and accord no deference to their legal conclusions." Strawberry Water Users Ass'n v. Bureau of Reclamation (In re Uintah Basin), 2006 UT 19, ¶ 7, 133 P.3d 410. ANALYSIS ¶ 4 Plaintiffs argue that the trial court incorrectly dismissed their case for failure 1177 to exhaust administrative remedies in accordance with Utah Code section 49-11-613, see Utah Code Ann. § 49-11-613 (Supp. 2011) (governing appeals procedures under the Act), and the Utah Administrative Procedures Act (the UAPA). The Utah State Retirement and Insurance Benefit Act provides that "any dispute regarding a benefit, right, obligation, or employer right under this title is subject to the procedures provided under this section," which requires "[a] person who disputes a benefit, right, obligation, or employment right ... [to] request a ruling by the executive director [of the Board]," that can then be appealed to a hearing officer. See id. § 49-11-613(1)(b)-(d). The hearing officer's review shall comply with the "procedures and requirements" of the UAPA, and "[t]he [B]oard shall review and approve or deny all decisions of the hearing officer." Id. § 49-11-613(2)(b), (3). "A party may file an application for reconsideration by the [B]oard" based on various grounds and can obtain judicial review of that decision in accordance with the UAPA. Id. § 49-11-613(7). Under the UAPA, "[a] party may seek judicial review only after exhausting all administrative remedies available, except [when] ... (i) the administrative remedies are inadequate; or (ii) exhaustion of remedies would result in irreparable harm disproportionate to the public benefit derived from requiring exhaustion." Utah Code Ann. § 63G-4-401(2), (2)(b)(i)-(ii) (2011). ¶ 5 The UAPA's requirement that a party seeking review of an administrative decision must first exhaust all available administrative remedies is a matter of subject matter jurisdiction. See Nebeker v. Utah State Tax Comm'n, 2001 UT 74, ¶ 14, 34 P.3d 180 ("As a general rule, parties must exhaust applicable administrative remedies as a prerequisite to seeking judicial review." (internal quotation marks omitted)); Republic Outdoor Adver., LC v. Utah Dep't of Transp., 2011 UT App 198, ¶ 30, 258 P.3d 619 (upholding the trial court's determination that the plaintiff's "failure to exhaust its administrative remedies left the [trial] court without subject matter jurisdiction to review" the plaintiff's claims). "Subject matter jurisdiction is the power and authority of the court to determine a controversy and without which it cannot proceed. If a court acts beyond its authority those acts are null and void." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App.1989) (citation and internal quotation marks omitted). Accordingly, "subject matter jurisdiction cannot be waived," Chen v. Stewart, 2004 UT 82, ¶ 34, 100 P.3d 1177, and when a court determines that "a matter is outside the court's jurisdiction it retains only the authority to dismiss the action," Varian-Eimac, 767 P.2d at 570. ¶ 6 Here, the trial court determined that it did not have subject matter jurisdiction over any of Plaintiffs' claims against any of the defendants in light of the ongoing administrative proceeding initiated by URS against the Hospital, which Ramsay and Smalling joined. However, Plaintiffs contend that "the scope of the URS action before the [B]oard ... is limited under ... the Act and under the terms of [URS's] Notice of Board Action." They argue that the administrative proceeding is merely "a collection proceeding against [the Hospital that] ... does not attempt to obtain anything but a ruling ... that [the Hospital] was required to fund its employees' retirement benefits at the minimum levels outlined in the Act." Plaintiffs note that URS does not "attempt to bring claims based on contract, tort or breach of fiduciary duty nor does URS purport to represent the interests of Ramsay, Smalling or any other employee of [the Hospital] per se." Additionally, Plaintiffs point out that "Johnson and John Hancock are not parties to the [administrative proceeding]." In other words, Plaintiffs argue that "[a]t least some of the causes of action in this case ... fall outside the scope of the Act" and therefore outside the scope of the administrative proceeding. As a result, Plaintiffs contend that "the district court, and only the district court, has jurisdiction over those claims." ¶ 7 We agree with Plaintiffs' argument that "[a]t least some of the causes of action in this case ... fall outside the scope of the 1178 Act" and therefore should not have been dismissed for lack of subject matter jurisdiction. While each of the claims alleged in Plaintiffs' complaint will be affected by the outcome of the administrative proceeding irrespective of the result, the decision from that proceeding will not and cannot resolve all of the claims contained in the complaint. Accordingly, the trial court erred when it dismissed Plaintiffs' complaint outright on jurisdictional grounds. Moreover, under the unique facts and circumstances of this case, the scope and nature of most of the claims that should have survived dismissal cannot be determined until the administrative remedies are exhausted. We therefore do not attempt to identify which specific claims should have survived dismissal and which were properly dismissed. ¶ 8 We conclude that to the extent Plaintiffs' complaint raises issues "regarding a benefit, right, obligation, or employment right under" the Act, see Utah Code Ann. § 49-11-613(1)(b), Plaintiffs must first exhaust their administrative remedies before seeking judicial review. See Patterson v. American Fork City, 2003 UT 7, ¶ 17, 67 P.3d 466 ("Where the legislature has imposed a specific exhaustion requirement ..., [courts] will enforce it strictly."). Thus, those claims were properly dismissed. See generally Varian-Eimac, 767 P.2d at 570 ("When a matter is outside the court's jurisdiction it retains only the authority to dismiss the action."). Conversely, to the extent Plaintiffs' claims do not fall under the Act, the trial court's dismissal for lack of subject matter jurisdiction is reversed. Nevertheless, because those claims may be affected by the outcome of the administrative proceeding, we instruct the trial court to stay its proceedings until the completion of the administrative hearing. We do not rule on the Plaintiffs' challenge to the trial court's venue determination and, instead, invite the trial court to revisit the venue issue, along with Plaintiffs' remaining claims, once the administrative proceeding is complete. CONCLUSION ¶ 9 The trial court correctly dismissed those of Plaintiffs' claims that fell under the ambit of the Act for lack of subject matter jurisdiction in light of Plaintiffs' failure to first exhaust their administrative remedies before seeking judicial review. However, the trial court incorrectly dismissed those of Plaintiffs' claims that do not fall within the ambit of the Act. Consequently, we affirm in part and reverse and remand in part, with instructions for the trial court to stay the proceedings as to the claims that do not fall under the Act, which can only be identified at the close of the administrative proceeding. ¶ 10 I CONCUR: WILLIAM A. THORNE JR., Judge. ¶ 11 I CONCUR IN THE RESULT: J. FREDERIC VOROS JR., Associate Presiding Judge. NOTES [1] According to the complaint, "Kane County Human Resource Special Service[] District ... is a governmental entity that for many years has operated the Kane County Hospital" where Plaintiffs currently work or have worked. [2] Ramsay and Smalling joined the administrative proceeding eight months after their complaint had been filed. URS filed its "Notice of Board Action" against the Hospital on August 11, 2009; Plaintiffs filed their complaint on December 16, 2009; and Plaintiffs' motion to intervene in the administrative proceeding was granted by the Board as to Ramsay and Smalling, and denied as to their proposed class, on August 18, 2010. [3] Plaintiffs also argue that the trial court's determination that the case was filed in the wrong venue is erroneous. Because of the manner in which we rule on Plaintiffs' subject matter jurisdiction argument, we do not reach this argument. Rather, we note that on remand and after completion of the administrative proceedings, venue may need to be reconsidered, with the relevant statutory provisions taken into consideration, see, e.g., Utah Code Ann. §§ 78B-3-307 to -309 (2008); Utah Code Ann. § 63G-7-502 (2011).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1390633/	68 S.E.2d 9 (1951) MORRIS v. NELSON et al. No. 10333. Supreme Court of Appeals of West Virginia. Submitted October 2, 1951. Decided December 18, 1951. 10 J. T. Reynolds, Lon G. Marks, Charleston, for plaintiff in error. Dewey B. Jones, Charleston, for defendants in error. HAYMOND, Judge. This action of ejectment was instituted in June, 1949, in the Court of Common Pleas of Kanawha County, by the plaintiff Okey Morris to recover from the defendants, Lottie Nelson and Sidney Nelson, her husband, possession of a small triangular parcel of land containing approximately 2.2 acres which the plaintiff alleged was a part of a larger tract of 25 acres of land situated on Mill Creek, Elk District, Kanawha County, the possession of which small triangular parcel of land the plaintiff charged the defendants unlawfully withheld from him. To the declaration of the plaintiff, filed in the clerk's office on June 15, 1949, the defendant Lottie Nelson, on July 9, 1949, filed her plea of not guilty and a disclaimer by which she renounced any right, title or interest in the 25 acres of land described in the declaration, except the small triangular parcel of land containing approximately 2.2 acres and any other portion of the tract of 25 acres which might intersect or overlap a certain parcel of land conveyed to her by W. D. Lewis and Jennie Lewis, his wife, by deed dated May 24, 1913. At the same time the defendant Sidney Nelson, without entering any plea to the declaration, filed his disclaimer by which he renounced all right, title or interest to the land described in the declaration. Upon the foregoing pleadings and the disclaimers of the defendants, the case was tried by a jury which, on January 14, 1950, returned a general verdict in favor of the defendants. By order entered January 24, 1950, the court of common pleas overruled the motions of the plaintiff to render judgment for the plaintiff notwithstanding the verdict of the jury and to set aside the verdict and entered judgment upon the verdict and awarded costs in favor of the defendants. By order entered May 11, 1950, the Circuit Court of Kanawha County refused the petition of the plaintiff for a writ of error and supersedeas to the final judgment of the Court of Common Pleas of Kanawha County, and to that judgment of the circuit court this Court granted this writ of error upon the petition of the plaintiff. The tract of land of 25 acres to which the plaintiff claims title, and in which he contends the parcel of 2.2 acres in dispute between the parties is included, was conveyed to the plaintiff and his brother, Kelly Morris, by Algie Swinburn by deed dated March 21, 1938, and by deed dated July 21, 1939, Kelly Morris conveyed his interest in the property to the plaintiff. Certified copies of these deeds and other mesne conveyances during a period of approximately thirty-four years under which Algie Swinburn held, and the plaintiff, as his successor, holds, title to the tract of 25 acres of land, were introduced in evidence by the plaintiff. The defendant Lottie Nelson claims title and ownership to the small parcel of 2.2 acres in dispute by virtue of a deed to her for a small triangular parcel of land, the area of which is not stated in the description in the deed, from W. D. Lewis and Jennie Lewis, his wife, dated May 24, 1913. The plaintiff, who was unacquainted with the tract of 25 acres and with the land claimed by the defendant Lottie Nelson, before he and his brother purchased the land from Algie Swinburn, entered into possession of the tract of 25 acres in 1938, and since then he and his wife have resided in a dwelling on a part of the tract 11 located west of but not included in the 2.2 acres in dispute between the parties. The defendant Lottie Nelson and her husband, Sidney Nelson, in 1912, under a contract of purchase, entered into possession of the small tract of land conveyed to her by her deed from the Lewises dated May 24, 1913, and since that time they have occupied and resided upon what they claim is a part of the land covered and conveyed by that deed, and they claimed the land so occupied by them to the extent of the boundaries set forth in the deed. By the plea of the general issue, filed by the defendant Lottie Nelson, the only plea permitted in an action of ejectment by the provisions of Section 10, Article 4, Chapter 55, Code, 1931, and under which the defendant may give in evidence any matter which, if pleaded in the former writ of right, would have barred the action of the plaintiff, and by the disclaimers filed by both defendants with her plea, the issue between the parties was narrowed and confined to the 2.2 acres in dispute which are definitely described by metes and bounds in the disclaimer of the defendant Lottie Nelson and in the declaration of the plaintiff. The plaintiff introduced evidence to show that the 2.2 acres in dispute were included in the description of the 25 acre tract of land set forth in the deeds to him from Kelly Morris and Algie Swinburn. The plaintiff and a surveyor, who made a survey of the 25 acre tract in 1947 and a map of the land as surveyed by him which was filed in evidence with his testimony, both testified to that effect. Plaintiff also introduced evidence to the effect that parts of the 2.2 acres in dispute were covered by underbrush and small timber when the plaintiff moved on the 25 acre tract in 1938, that only small portions of the 2.2 acres had been or were cleared, and that those portions had been only intermittently cultivated or farmed since that time. The evidence introduced in behalf of the plaintiff also tended to show that a two room dwelling which the plaintiff says he permitted a man named Bill Hickman to build on the 2.2 acres was built in the summer of 1939, and that at that time there were no fences upon any part of the 2.2 acres. The plaintiff also introduced evidence to prove that the tract of 25 acres of land was a part of Lot R of lands indicated on a map designated as the Lower Steel Survey filed in evidence as plaintiff's Exhibit A. This map indicates the division line between Lots R and N of the Lower Steel Survey and the plaintiff relies upon the map to support his contention that the land claimed by the defendant Lottie Nelson was a part of Lot N and that no part of it was included within the boundaries of Lot R as disclosed by that survey. The evidence introduced in behalf of the defendants tended to show that the 2.2 acres in dispute were included within the boundaries described in the deed from the Lewises to the defendant Lottie Nelson. Both of the defendants who were well acquainted with the 25 acre tract of the plaintiff and the land claimed by the defendant Lottie Nelson, and had known those lands and other lands in the immediate neighborhood for many years, testified that the 2.2 acres in dispute lay within the boundaries contained in the deed from the Lewises to the defendant Lottie Nelson. The defendant Sidney Nelson also testified that the triangular parcel of land claimed by the defendant Lottie Nelson, under her deed from the Lewises, had been surveyed by a surveyor named Cole in 1933 and that he had assisted Cole in making the survey. The defendants introduced a map of this survey, which had been filed of record in the Circuit Court of Kanawha County in prior litigation between Sidney Nelson and other parties involving other land claimed by Nelson in that litigation. This map showed only two lines which ran from the base and joined at the apex of the triangular parcel of land but did not show any line at the bottom or the base of the triangle. A civil engineer, introduced as a witness for the defendant, testified that in 1948 he made a map which was introduced in evidence with his testimony, based on the Cole survey and map, and that on his map he had added a line between the two ends of the two lines on the Cole map, and that the line so added by him closed the triangle and indicated the land claimed by the defendant 12 Lottie Nelson. The defendant Lottie Nelson also testified that Hickman had occupied the small dwelling built by him on the land in dispute as her tenant and that following Hickman's removal from the dwelling within several months after it was built various other persons had occupied it as her tenants. She and her husband and son further testified that Hickman had built the dwelling in 1935 or 1936 and not in 1939 as testified to by the plaintiff and his wife. They also testified that a fence had been constructed between the small residence built by Hickman and the residence occupied by the defendants and on other parts of the land in dispute; and the son of the defendants testified that these fences were built in 1934. According to Sidney Nelson and his son parts of these fences are no longer standing but other parts still remain upon the land. The defendants, the sister of the defendant Sidney Nelson, and other witnesses produced in behalf of the defendants, stated that the defendants had cleared and cultivated various portions of the land in dispute during the period between 1913 and the commencement of this action. The evidence introduced in behalf of the respective parties, relating to the courses and the distances of the boundaries described in the deeds under which the plaintiff claims title to the land in dispute and as indicated on the map filed in evidence as plaintiff's Exhibit C, and to the courses and the distances of the boundaries described in the deed under which the defendant Lottie Nelson claims such land and as indicated on the maps filed in evidence as defendants' Exhibits No. 1 and No. 1A, discloses material discrepancies between the boundaries mentioned in the deeds and as shown on the respective maps. The difference in the distance of one of the boundary lines in the two deeds to the plaintiff and the same line as shown on plaintiff's Exhibit C was as much as 69.5 feet, and the difference between the course and the distance of one of the boundary lines in the deed under which the defendant Lottie Nelson claims and the same line as shown on defendants' Exhibit No. 1 is as much as 44 degrees and 186½ feet. It is likely that these discrepancies in the descriptions in the deeds and the maps introduced in evidence and relied on by the respective parties caused the jury to believe that neither the plaintiff nor the defendant established his or her title or right of possession to the land in dispute. If the jury entertained that belief it should have rendered, as it did in fact render, its verdict in favor of the defendants. Upon substantially the foregoing evidence the jury returned a verdict in favor of the defendants upon which the judgment complained of by the plaintiff was entered by the trial court. By his numerous assignments of error the plaintiff seeks reversal of the judgment of the trial court on substantially these grounds: (1) The verdict is fatally defective because it fails to locate the boundary line between the land claimed by the plaintiff and the land claimed by the defendant Lottie Nelson; (2) the evidence in behalf of the defendant does not support the verdict of the jury; (3) the trial court improperly admitted in evidence the map made by the civil engineer who testified as a witness for the defendants; (4) the trial court should have sustained the motion of the plaintiff for judgment notwithstanding the verdict; (5) the trial court should have sustained the motion of the plaintiff to set aside the verdict and grant him a new trial; and (6) the instructions offered by the plaintiff, and refused by the trial court, should have been given. The plaintiff insists that the verdict of the jury in favor of the defendants is fatally defective because it failed to locate the boundary line between the land claimed by the plaintiff and the land claimed by the defendant Lottie Nelson, and in support of that contention he cites the case of Miller v. Holt, 47 W.Va. 7, 34 S.E. 956, in which the jury returned a verdict for the plaintiff for the land described in the declaration but did not locate or describe a line which constituted the division line between the lands of the plaintiff and the defendant. The statute which with slight modifications has been in force in this State for many 13 years and a part of which is now Section 18, Article 4, Chapter 55, Code, 1931, provides that "When the right of the plaintiff is proved to all the premises claimed, the verdict shall be for the premises generally, as specified in the declaration; but if it be proved to only a part or share of the premises, the verdict shall specify such part particularly as the same is proved, and with the same certainty of description as is required in the declaration. * * * The verdict shall also specify the estate found in the plaintiff, whether it be in fee or for life, stating for whose life, or whether it be a term of years, and specifying the duration of such term." Another part of the same statute which is now Section 17, Article 4, Chapter 55, Code, 1931, also provides that "If the jury be of opinion for the plaintiffs, or any of them, the verdict shall be for the plaintiffs or such of them as appear to have right to the possession of the premises, or any part thereof, and against such of the defendants as were in possession thereof, or exercised acts of ownership thereon, or claimed title thereto or any interest therein, at the commencement of the action. Where any plaintiff appears to have no such right, the verdict as to such plaintiff shall be for the defendants. * * " The requirement of the first quoted statutory provision that if the right of the plaintiff be proved to all or to only a part or share of the premises involved the verdict in favor of the plaintiff shall specify such part particularly as it is proved, with the same certainty of description as is required in the declaration, and shall also specify the estate found in the plaintiff, has been recognized and enforced by this court in many cases. Low v. Settle, 22 W.Va. 387; Oney v. Clendenin, 28 W.Va. 34; Miller v. Holt, 47 W.Va. 7, 34 S.E. 956; Wilson v. Braden, 48 W.Va. 196, 36 S.E. 367; Croston v. McVicker, 76 W.Va. 461, 85 S.E. 710; Yonker v. Grimm, 101 W.Va. 711, 133 S.E. 695. When, however, the verdict is for the defendant, there need be no specification of the estate. See Hicks v. New River and Pocahontas Consolidated Coal Company, 95 W.Va. 17, 120 S.E. 898. In Jones v. Chesapeake & Ohio Railroad Company, 14 W.Va. 514, the plaintiffs, claiming a tract of 50 acres of land, sought to recover a part of the 50 acres consisting of a small strip of land claimed and possessed by the defendant as a right of way. The case was heard by the jury upon the defendant's plea of not guilty. The jury returned a general verdict for the defendant, and after the return of the verdict the defendant disclaimed all right or title to any portion of the premises described in the declaration except the small strip of land. In sustaining the verdict in the form returned by the jury, this Court held, in point 3 of the syllabus that "A general verdict for the defendant in an action of ejectment, if warranted by the evidence, is proper; and no disclaimer is necessary to its validity, although much more land was described in the declaration, than the defendant had in possession at the commencement of the action." In the opinion in the Jones case this Court said: "It is claimed, that the court erred in refusing to set aside the verdict and grant a new trial, `because the verdict gave the defendant the fee simple right to the one acre of land in its possession, when the evidence showed that the said defendant claimed only the life-estate of James W. Huffard in the said one acre of ground.' The learned counsel making the objection, is entirely mistaken as to the effect of the verdict. It was not to establish the right of the defendant to the land; because the defendant, according to the well settled law, could as well have defeated the plaintiffs by showing an outstanding title in some other person than the plaintiffs, as to show that it had the title in itself. The plaintiff in ejectment must recover upon the strength of his own title, and not upon the weakness of the title of his adversary. The declaration asserts, that the defendant unlawfully withholds from the plaintiffs the possession of the premises. The verdict says it does not. "Section 23 of chapter 90 of the Code provides: `If the jury be of opinion for the plaintiffs, or any of them, the verdict shall be for the plaintiffs, or such of them 14 as appear to have right to the possession of the premises or any part thereof, and against such of the defendants as were in possession thereof, or claimed title thereto, at the commencement of the action.' "Section 24 declares: `Where any plaintiff appears to have no such right, the verdict, as to such plaintiff, shall be for the defendant.' "The verdict in this case was in strict accordance with the 24th section. The plaintiffs did not appear to have any right to the possession of the land in possession of the defendant at the commencement of the action, and therefore the verdict for the defendant was proper. The verdict was proper in the form it was rendered: `We, the jury find for the defendant.' It was a general verdict of not guilty; and there was no need of a disclaimer; there was nothing for the defendant to disclaim. It had recovered nothing. It had prevented the plaintiffs from recovering from it the little strip of ground over which it claimed the right of way. "While the disclaimer was unnecessary its being entered of record did no injury to the plaintiffs." In Tolley v. Pease, 72 W.Va. 321, 78 S.E. 111, a general verdict for the defendants which did not locate a division line definitely fixed in a disclaimer was recognized as valid by this court. In the case at bar the jury evidently believed, from the evidence, that the plaintiff had no right to the land in dispute occupied by the defendant Lottie Nelson and, for that reason, returned a general verdict for the defendants. The verdict constituted a finding that the plaintiff was not entitled to recover from the defendants the possession of any part of the 2.2 acres in dispute, is regular and proper, and should not be disturbed. The evidence in behalf of the respective parties bearing upon the issues of the relative claims of the plaintiff and the defendant Lottie Nelson to the title and the possession of the 2.2 acres of land in dispute, which issues were limited by the pleadings and the disclaimer of the defendant Lottie Nelson to that parcel of land, was conflicting. The jury, by its verdict, resolved the conflict in the evidence in favor of the defendants. In ejectment the fundamental general rule, uniformly recognized and applied by this Court, is that the plaintiff must recover upon the strength of his own title and not upon the weakness of the title of the defendant. Jones v. Chesapeake & Ohio Railroad Company, 14 W.Va. 514; Barton's Heirs v. Gilchrist, 19 W.Va. 223; Witten v. St. Clair, 27 W.Va. 762; Low v. Settle, 32 W.Va. 600, 9 S.E. 922; Holly River Coal Company v. Howell, 36 W.Va. 489, 15 S.E. 214; Ronk v. Higginbotham & Carrier, 54 W.Va. 137, 46 S.E. 128; Summerfield v. White, 54 W.Va. 311, 46 S.E. 154; Wade v. McDougle, 59 W.Va. 113, 52 S.E. 1026; Taylor v. Russell, 65 W. Va. 632, 64 S.E. 923; William James Sons Company v. Hutchinson, 73 W.Va. 488, 80 S.E. 768; Sands v. Holbert, 93 W.Va. 574, 117 S.E. 896; Rolfe Coal Mining Company v. Redden, 102 W.Va. 59, 135 S.E. 171. In an action of ejectment, when the boundaries of the land are in dispute, the burden is upon the plaintiff to identify the land claimed by him so far as its external boundaries are concerned. Holly River Coal Company v. Howell, 36 W.Va. 489, 15 S.E. 214; Miller v. Holt, 47 W.Va. 7, 34 S.E. 956; Ronk v. Higginbotham and Carrier, 54 W.Va. 137, 46 S.E. 128. By its verdict the jury resolved the conflict in the evidence, upon the issues involved, in favor of the defendants. The determination of the weight of the evidence is for the jury. Porter v. Staley, 99 W.Va. 91, 127 S.E. 911. When a case involves conflicting testimony and circumstances, and has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless it is against the preponderance of the evidence or without evidence to support it. Davis v. Pugh, W.Va., 57 S.E.2d 9; Yuncke v. Welker, 128 W.Va. 299, 36 S.E. 410; Dangerfield v. Akers, 127 W.Va. 409, 33 S.E.2d 140; Webb v. Brown & Williamson Tobacco Company, 121 W.Va. 115, 2 S.E.2d 898; Ware v. Hays, 119 W.Va. 585, 195 S.E. 265; Graziani v. Fimple, 110 W. Va. 383, 158 S.E. 658; Simms v. Chambers, 105 W.Va. 171, 141 S.E. 788; City of Charleston v. De Hainaut, 95 W.Va. 202, 15 120 S.E. 524; Rush v. Buckles, 93 W.Va. 493, 117 S.E. 130; Keenan v. Donohoe, 70 W.Va. 600, 74 S.E. 859. The verdict in this case, being based on conflicting evidence and the evidence being sufficient to support it, will not be disturbed by this Court. The plaintiff complains of the action of the trial court in permitting the defendants to introduce evidence, under the plea of not guilty, in support of the claim of adverse possession of the land in dispute for more than the statutory period of ten years by the defendant Lottie Nelson, under her deed as color of title to the land in dispute, or of the particular portions of such land actually occupied and farmed or cultivated by her, under claim of title to such parts of such land. In ejectment a defendant who claims title to land against its legal owner may show his color or his claim of title as a defense, but in so doing he must show that such color or claim of title covers the land or part of the land in controversy; that he entered under such color or claim of title upon the land or some part of it; that his entry was hostile and adverse to the party having the legal title, and was actual, visible, exclusive and unbroken under color or claim of title for ten years before the commencement of the action against him. Maxwell v. Cunningham, 50 W.Va. 298, 40 S.E. 499. Such defenses may be shown upon the plea of the general issue in ejectment under Section 10, Article 4, Chapter 55, Code, 1931, which provides that "Upon such plea, the defendant may give in evidence any matter which, if pleaded in the former writ of right, would have barred the action of the plaintiff." Upon those issues, the evidence was conflicting and the jury resolved the conflict in favor of the defendants. Under the rule, previously stated relating to a verdict of the jury based upon conflicting evidence, the verdict in this case, with respect to those issues, should not be disturbed by this Court. It should be observed that the case of Alford v. Kanawha and West Virginia Railroad Company, 84 W.Va. 570, 100 S.E. 402, cited and relied on by the plaintiff in support of his contention that the defendants should not be permitted to interpose the separate defenses of adverse possession by the defendant Lottie Nelson under color and claim of title to the land in dispute against the claim of the plaintiff, does not deal with the right of a defendant to interpose separate and distinct defenses in an action at law. In the Alford case this Court held in point 4 of the syllabus that "Where plaintiff's cause of action is based upon two separate theories of negligence upon the part of the defendant, one of which is supported only by improper evidence admitted over defendant's objection, and the court submits the same to the jury upon both of such theories, a verdict rendered in favor of the plaintiff will be set aside, for the reason that it is impossible to tell upon which theory the verdict is based; it being as likely that the jury based its verdict upon the theory supported only by improper evidence as upon the other." The distinction between different theories on which a plaintiff in an action at law bases his claim, one of which is supported only by incompetent evidence, and the right of a defendant in an action of ejectment to interpose the different defenses interposed in this case under the plea of not guilty is obvious, and the holding in the Alford case is clearly inapplicable to any issue involved in the case at bar. The contention of the plaintiff that the trial court erred in overruling his motion to render judgment for the plaintiff notwithstanding the verdict is devoid of merit. A judgment notwithstanding the verdict may not be based on the evidence adduced under the pleadings in an action but must be based on the merits of the case as disclosed by the pleadings. It may be applied to defeat a judgment on a verdict based on a declaration that does not state a cause of action but in no event can it be based upon a declaration which, as in this case, is sufficient in law. Thomason v. Mosrie, W.Va., 60 S.E.2d 699; Shafer v. Security Trust Company, 82 W.Va. 618, 97 S.E. 290. In the Shafer case, in discussing the function of a motion for judgment notwithstanding the verdict this Court said in point 5 of the syllabus: "A judgment non obstante veredicto must be based 16 upon the merits of the case as disclosed by the pleadings, not in any sense upon the evidence adduced thereunder. It may be applied to defeat a judgment upon a verdict predicated upon a declaration that does not state a cause of action entitling the plaintiff to recover. But in no event can it serve the purpose of a demurrer to reach a merely formally defective declaration, which but for the informality or irregularity states a good cause of action." The plaintiff offered four instructions, three of which, upon objection of the defendants, were refused by the trial court. Each of the instructions refused would have told the jury that if the defendants failed to establish the defense mentioned in the particular instruction the jury could return a verdict in favor of the plaintiff. As the burden rested upon the plaintiff to establish his right to recover from the defendants the possession of the land in dispute, the instructions, which ignored that requirement, were properly refused. For the foregoing reasons, the judgments of the Court of Common Pleas and the Circuit Court of Kanawha County are affirmed. Affirmed.	01-03-2023	10-30-2013

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