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https://www.courtlistener.com/api/rest/v3/opinions/2922191/	NUMBER13-05-224-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG _______________________________________________________ DIANA TORRES, Appellant, v. PALACIOS HOUSING AUTHORITY, Appellee. _______________________________________________________ On appeal from the County Court of Matagorda County, Texas. _______________________________________________________ MEMORANDUM OPINION Before Justices Hinojosa, Yañez, and Garza Memorandum Opinion Per Curiam Appellant, DIANA TORRES, perfected an appeal from a judgment entered by the County Court of Matagorda County, Texas, in cause number 5002. The clerk=s record was filed on May 16, 2005. A supplemental clerk=s record was filed on May 23, 2005. No reporter=s record was filed. Appellant=s brief was due on June 22, 2005. To date, no appellate brief has been received. In addition, appellant has failed to pay the $125.00 filing fee in this matter. When the appellant has failed to file a brief in the time prescribed, the Court may dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure and the appellee is not significantly injured by the appellant=s failure to timely file a brief. Tex. R. App. P. 38.8(a)(1). On July 25, 2005, notice was given to all parties that this appeal was subject to dismissal pursuant to Tex. R. App. P. 38.8(a)(1). Appellant was given ten days to explain why the cause should not be dismissed for failure to file a brief. To date, no response has been received. The Court, having examined and fully considered the documents on file, appellant=s failure to pay the $125.00 filing fee and to file a proper appellate brief, this Court=s notice, and appellant=s failure to respond, is of the opinion that the appeal should be dismissed for want of prosecution. The appeal is hereby DISMISSED FOR WANT OF PROSECUTION. PER CURIAM Memorandum Opinion delivered and filed this the 30th day of August, 2005	01-03-2023	09-11-2015
https://www.courtlistener.com/api/rest/v3/opinions/2499086/	(2008) UNITED STATES of America, Plaintiff, v. Fernando DELATORRE, also known as "Fern," "Fern-dog," and "Fernwood," Bolivar Benabe, also known as "Jap," Juan Juarez, also known as "Ghost," Julian Salazar, also known as "Mando," "Comrade," "Conrad," "Cuz," and "Cuzzo," Harold Crowder, also known as "H-Man," Christian Guzman, also known as "Mousey," and Steven Susinka, Defendants. No. 03 CR 90. United States District Court, N.D. Illinois, Eastern Division. October 8, 2008. MEMORANDUM OPINION & ORDER RUBEN CASTILLO, District Judge. Presently before this Court are the defendants' post-trial motions seeking acquittal or a new trial. (R. 1005, 1012, 1014, 1015.) Also pending is the defendants' motion to reconsider the Court's previous denial of their post-trial motions alleging juror misconduct. (R. 1050.) For the reasons stated herein, the motions are denied. BACKGROUND The facts underlying this long-running case involving members of the Insane Deuce Nation street gang ("Insane Deuces") have been set forth in numerous opinions and will not be repeated here, except as is relevant to the pending motions. See, e.g., United States v. Delatorre, 572 F. Supp. 2d 967 (N.D.Ill.2008); United States v. Delatorre, 522 F. Supp. 2d 1034 (N.D.Ill.2007); United States v. Delatorre, 508 F. Supp. 2d 648 (N.D.Ill.2007); United States v. Delatorre, 438 F. Supp. 2d 892 (N.D.Ill.2006). In short, the government charged 16 members of the Insane Deuces with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d), committing violent crimesincluding murder, attempted murder, solicitation to commit murder, robbery, witness tampering, and multiple narcotics offensesin aid of the racketeering activity, and committing various narcotics and firearms offenses. (R. 227, Second Superseding Indictment ("Indictment").) One defendant, Akeem Horton, pled guilty (R. 380), and another defendant, Miguel Martinez, is a fugitive. The fourteen remaining defendants are: Fernando Delatorre ("Delatorre"), Miguel Rodriguez ("Rodriguez"), Steven Perez ("Perez"), Romel Handley ("Handley"), Steven Susinka ("Susinka"), Juan Juarez ("Juarez"), Christian Guzman ("Guzman"), Julian Salazar ("Salazar"), Bolivar Benabe ("Benabe"), Moriano Morales ("Morales"), Arturo Barbosa ("Barbosa"), Harold Crowder ("Crowder"), Brian Hernandez ("Hernandez"), Lionel Lechuga ("Lechuga"). Prior to trial, this Court severed the trial of the 14 defendants into two groups. Delatorre, 522 F.Supp.2d at 1056. The first group, consisting of Guzman, Benabe, Juarez, Salazar, Delatorre, Crowder, and Susinka, were tried before this Court in a two-month trial that began on February 6, 2008.[1] (Id. at 1056-57.) During the trial, the jurors heard testimony from more than 100 government witnesses and 15 defense witnesses. (Trial Tr. at 346-5383.) Among the evidence presented by the government was the testimony of former Insane Deuces gang members now cooperating with the government, including Orlando Rivera, a former high-ranking member of the Aurora Insane Deuces; undercover audiotapes of gang meetings; undercover videotapes; videotaped confessions of Delatorre; eyewitness identifications; and weapons, drugs, and gang-related documents recovered from the defendants' homes. On April 21, 2008, after deliberating for more than two weeks, the jury found the defendants guilty on all but three counts. (R. 921-929.) The jury found Guzman not guilty on Count Five, assault with a dangerous weapon on Victim C, and they were unable to reach a verdict on Count One, the conspiracy count, against Crowder and on Count Nine, a narcotics count, against Susinka. (R. 921, 928, 929.) The Court declared a mistrial on these latter two counts. (R. 922, 943.) After further proceedings and two more days of deliberations, on April 23, 2008, the jury returned its verdict on Phase II, the special factual findings pertaining to sentencing, and Phase III, pertaining to forfeiture. (R. 930-59.) Presently pending before the Court are post-trial motions filed by the defendants alleging numerous reasons why they are entitled to acquittal under Federal Rule of Criminal Procedure 29, or alternatively, a new trial under Federal Rule of Criminal Procedure 33. (R. 1005, Delatorre's Pro Se Mot. for Reversal & New Trial ("Delatorre's Pro Se Mot."); R. 1012, Juarez's Mot. for Judgment of Acquittal Or, In the Alternative, Mot. for New Trial ("Juarez's Mot."); R. 1014, Joint Mot. of Delatorre, Benabe, Juarez, Salazar, Crowder, Guzman & Susinka for Judgment of Acquittal or New Trial ("Joint Mot."); R. 1015, Benabe's Pro Se Mot. to Vacate the Verdict Based on Trial in Absentia ("Benabe's Pro Se Mot.").) These motions are now fully briefed. (See R. 1030, Gov't's Consol. Resp. to Defs.' Post-Trial Mots. ("Gov't's Resp."); R. 1046, Delatorre's Response to Gov't's Consolid. Resp. to Defs.' Post-Trial Mots. ("Delatorre's Pro Se Reply"); R. 1048, Defs.' Joint Reply to Gov't's Consolid. Resp. to Defs.'s Post-Trial Motions ("Joint Reply").) ANALYSIS I. Sufficiency of the Evidence The defendants first argue that there was insufficient evidence to support their convictions, specifically as to the RICO enterprise and the drug trafficking. (R. 1014, Joint Motion at 1-2.) It is a "daunting task" for a defendant to prevail on a sufficiency of the evidence claim. United States v. Cochran, 534 F.3d 631, 633 (7th Cir.2008). In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the government to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. In making this determination, the Court does not "weigh the evidence or assess the credibility of the witnesses." United States v. Orozco-Vasquez, 469 F.3d 1101, 1106 (7th Cir.2006). The Court finds the evidence in this case more than sufficient to support the convictions. The government in this case presented testimony from 100 witnesses, along with undercover video and audio recordings, documentary evidence, weapons, and narcotics. The evidence established that the Insane Deuces are a well-established street gang operating throughout Northern Illinois, with principal factions in Chicago, Elgin, and Aurora, and that its members, which include the defendants, engaged in acts of violence against rival gang members and others; the gang was an ongoing organization with members that functioned as a, continuing unit, with a definite structure and distinct roles for its members; the gang members engaged in drug trafficking to benefit the gang; and the gang operated a "caja" system, in which gang members had access to a common fund of drugs, guns and money. The defendants suggest that the evidence was insufficient because the government's principal witness, Orlando Rivera, a former high-ranking member of the Aurora Insane Deuces, "was thoroughly impeached." (R. 1014, Joint Motion at 2.) To obtain a new trial based on the credibility of a witness, the defendants must show that the witness's testimony was "incredible as a matter of law," either because it would have been physically impossible for the witness to observe what he described, or because it would have been impossible under the laws of nature for the event described by the witness to have occurred. United States v. Ortiz, 431 F.3d 1035, 1039 (7th Cir.2005). The defendants do not come anywhere near meeting this high standard. Instead, they rely on discrepancies in Rivera's account and his motive for providing testimony favorable to the governmentevidence that is insufficient to establish that his testimony was incredible as a matter of law. Id "When a jury has chosen to credit crucial testimony with full knowledge of the many faults of the witness providing it, we have no basis to interfere, as the jury is the final arbiter on such questions." United States v. Alcantar, 83 F.3d 185, 189 (7th Cir.1996). For these reasons, the Court rejects the defendants' argument. Guzman separately argues that there was insufficient evidence against him on the racketeering charge. (R. 1014, Joint Mot. at 2-7.) The Court finds no merit to this argument. First, there was significant evidence of Guzman's membership in the Insane Deuces, including the testimony of multiple cooperating gang members, the testimony of Aurora Police Detective Jeff Wiencek, and the tape of a July 5, 2002, gang meeting. There was also significant evidence that a primary responsibility of an Insane Deuces gang member was to kill rival gang members, and that one of the ways to advance within the gang was to commit violence against rival gang members. The evidence also established that Guzman personally committed at least two acts of racketeering, specifically, the attempted murder of Latin King gang member Shermain Shamley on July 18, 2002, and the murder of David Lazcano (who was mistakenly thought to be a Latin King) on August 11, 2002. Guzman challenges the eyewitness testimony identifying him as the shooter in these incidents, but the fact remains that these eyewitnesses identified Guzman, and it is not the role of this Court to "weigh the evidence or assess the credibility of the witnesses" in ruling on the defendants' sufficiency of the evidence claim. Orozco-Vasquez, 469 F.3d at 1106. Moreover, there was other evidence linking Guzman to Lazcano's murder, including the testimony of former gang member Rivera. In short, the Court finds sufficient evidence to support Guzman's convictions. Susinka separately argues that the government failed to prove that he personally committed two predicate acts charged in the indictment. (R. 1014, Joint Mot. at 7-10.) However, Susinka was charged with participating in a RICO conspiracy under 18 U.S.C. § 1962(d), not with a substantive RICO violation under 18 U.S.C. § 1962(c). Unlike a substantive RICO violation, in a RICO conspiracy case the government does not have to prove particular predicate acts were committed by a particular defendant. United States v. Glecier, 923 F.2d 496, 500 (7th Cir.1991); Delatorre, 522 F.Supp.2d at 1045. Instead, the government need only prove that the defendant agreed that some member of the conspiracy would commit two or more predicate acts of racketeering. See Salinas v. United States, 522 U.S. 52, 63-65, 118 S. Ct. 469, 139 L. Ed. 2d 352 (1997). The government proved that in this case. There was substantial evidence presented at trial that one of the primary missions of the Insane Deuces was to kill rival gang members, that the members of the gang, including Susinka, knew that primary mission and agreed to that objective, and that multiple acts of violence were committed in furtherance of that mission. The Court therefore rejects Susinka's argument. Susinka also argues that there was insufficient evidence to show that he joined the charged conspiracy or adopted the overall goals of the Insane Deuces. (R. 1014, Joint Mot. at 9-10.) The Court rejects this argument as well. There was substantial evidence showing that Susinka was a member of the Insane Deuces, including evidence that: he was arrested several times with other Insane Deuces gang members; he was the getaway driver in the murder of Robert Perez, which was ordered by the gang leadership and committed by Insane Deuces gang members; he was arrested on March 13, 2002, with a "nation" gun, which had been used three days earlier in the attempted murder of two suspected Latin King gang members; he attended and was photographed at a gang meeting on April 10, 2002; he was arrested with another "nation" firearm on April 16, 2002; and he sold drugs as an Insane Deuces gang member. Although Susinka's defense theory, and his testimony at trial, was that he was not a member of the Insane Deuces, the jury chose to reject this theory. There was substantial evidence from which the jury reasonably concluded that Susinka was a member of the charged conspiracy. Benabe separately argues that the evidence against him was insufficient because he was too far geographically removed from the criminal acts that occurred in Aurora, and there was no evidence that he had any control over the Aurora Insane Deuces who committed these criminal acts. (R. 1014, Joint Mot. at 10.) This argument is misguided, since Benabe was convicted of participating in a racketeering conspiracy and a drug conspiracy. In that regard, there was substantial testimonial and documentary evidence that Benabe was a key participant in both conspiracies, and that for several years he was the highest ranking Insane Deuces gang member outside of prison, responsible for overseeing the operations of all factions of the gang throughout Northern Illinois, including Aurora. Again, the Court finds substantial evidence from which the jury reasonably concluded that Benabe was a member of the charged conspiracy. For all of these reasons, the Court rejects defendants' arguments regarding the sufficiency of the evidence. II. Severance The defendants next claim that they should be granted a new trial pursuant to Rule 33 because they were unfairly prejudiced by a joint trial. (R. 1014, Joint Mot. at 10-13.) The severance issue was exhaustively briefed by all parties prior to trial (see, e.g., R. 151, 161, 329, 348, 356, 365, 403, 457, 461, 474), and this Court previously issued a comprehensive opinion explaining its reasons for severing the case into two trials. Delatorre, 522 F.Supp.2d at 1034-60. After careful consideration of the competing interests at stake, and the parties' various severance proposals, this Court concluded that trying all fourteen defendants in one single consolidated trial would be prejudicial to the defendants, but that the defendants' proposed severance plans were unworkable and would require unnecessary duplication of the evidence. Id. at 1034-57. Without recounting all of the reasons previously articulated, the Court continues to view its severance plan dividing the defendants into two groups as the best possible approach to this difficult and complex case. In their motion, the defendants argue that they should not have been jointly tried "because of the overwhelming number of discrete acts which the jurors were required to evaluate" as part of the charged conspiracy, rendering the jury unable to sift through the evidence to determine who was responsible for each violent act proven at trial. (R. 1014, Joint Mot. at 12.) The Court rejects this argument. The defendants were charged with participating in a RICO conspiracy, which, by its very nature, involved multiple violent acts, including murder, attempted murder, witness tampering, and drug trafficking. (R. 227, Indictment.) The evidence of these acts was necessary to prove the existence of the enterprise, the pattern of racketeering activity, and the defendants' involvement in the conspiracy. The mere fact that racketeering conspiracies may involve spillover evidence regarding predicate crimes committed by other defendants does not require each defendant to be tried separately, since "every member of a conspiracy is substantively culpable for other conspirators' acts within the scope of the conspiracy." United States v. Hoover, 246 F.3d 1054, 1057-58 (7th Cir.2001); see also United States v. Goines, 988 F.2d 750, 759-60 (7th Cir.1993) ("The government, however, may prosecute coconspirators of every level together, from the street dealer to those who run the show.... [M]embers of a conspiracy run the risk of prosecution for every crime committed in furtherance of the conspiracy, even crimes in which they did not directly participate. As long as the crimes were within the scope of the conspiracy they joined, they will be held liable. This rule is fair because every member of the conspiracy benefits from the contribution of the others."). Moreover, the fact that the jury reached a mixed verdict in this case is a strong indication that the jurors were able to parse through the evidence to determine the culpability of each individual defendant. For these reasons, the Court rejects this argument. Guzman separately argues that he was prejudiced by a joint trial because of the disparity of the evidence against him and the other defendants. (R. 1014, Joint Mot. at 11.) This Court disagrees. The evidence established that Guzman was an integral participant in the charged conspiracy, and that during a two-month period in 2002, he committed one murder and two attempted murders on behalf of the Insane Deuces. Again, the jury's careful deliberations and mixed verdicts in this case indicates to this Court that the jury carefully parsed through the evidence to determine the culpability of each individual defendant on each count. Indeed, the jury found Guzman not guilty on Count Five of the Indictment. (R. 929.) For these reasons, the Court concludes that Guzman was properly tried with the other defendants. Next, Juarez, Salazar, Guzman, and Susinka argue that they were prejudiced by their joinder with Delatorre and Benabe, who were absent from the trial, which they claim "inevitably tainted the trial." (R. 1014, Joint Mot. at 12.) As detailed more fully in Section VII below, Benabe and Delatorre were excused from the trial because of their disruptive conduct, in an effort to protect the remaining defendants from being prejudiced by their conduct during trial. This Court instructed the jury that they were not to consider the absence of these defendants, both during voir dire and at the close of the evidence. (Trial Tr. at 73-84, 6116.) The Court also instructed the jury on the government's burden of proof and the presumption of innocence enjoyed by all defendants through all stages of the trial. (Trial Tr. at 6116-18.) Jurors are presumed to follow the Court's instructions. United States v. Wantuch, 525 F.3d 505, 516 (7th Cir.2008). The fact that the jury took more than two weeks to deliberate and ultimately reached mixed verdicts is a strong indication to this Court that the jury carefully considered the evidence against each individual defendant. For these reasons, the Court rejects this argument. Finally, Benabe, Juarez, Salazar, Delatorre, and Susinka claim that the trial was tainted by Guzman's outburst during closing argument. (R. 1014, Joint Mot. at 12.) During the government's rebuttal argument, government counsel was discussing an eyewitness's identification of Guzman and, based on the expression on Guzman's face, stated that Guzman "thinks this is funny." (Trial. Tr. at 6086.) Guzman responded, "I don't think nothing's funny. I think you're making this whole case up. That's what I think you're doing." (Id.) The Court instructed Guzman to be quiet, but he continued, "You fabricated this whole case. You're sitting up there lying through your teeth, without showing respect for the jurors." (Id.) The Court immediately took a recess and had the jury removed from the courtroom. (Id.) After being given time to compose himself, Guzman apologized for his behavior and promised the Court that he would not make any further outbursts if permitted to remain in the courtroom. (Id. at 6088.) Notwithstanding the government's request that Guzman be removed for the remainder of the trial, the Court permitted him to return based on his representations to the Court. (Id.) Guzman sat quietly through the remainder of the trial and made no further outbursts in the presence of the jury. During jury instructions, this Court instructed the jury, "You should not consider any in-court action or in-court statement by defendant Christian Guzman in any way in arriving at your verdicts. These actions and statements are not evidence against Defendant Guzman or any other defendant." (Tr. at 6118.) The jury is presumed to have followed this instruction. Wantuch, 525 F.3d at 516. This case is distinguishable from United States v. Mannie, 509 F.3d 851 (7th Cir. 2007), relied on by the defendants. In that case, Mannie's co-defendant engaged in repeated outbursts, lengthy diatribes from the witness stand, and at one point engaged in a "violent courtroom brawl" with his attorney. Id. at 857. The Seventh Circuit found this situation "so beyond the pale" that prejudice against Mannie had to be presumed. Id. at 856-57. The Court reiterated throughout the opinion, however, that this situation was unusual, and that normally curative instructions are the appropriate means of dealing with an outburst by a co-defendant. Id. This case does not present the type of "beyond the pale" facts at issue in Mannie. Given the limited nature of Guzman's outburst, in which he merely expressed his view that the government's evidence against him was false, and the fact that he returned to the courtroom and was compliant during the remainder of the trial, the Court concludes that no prejudice was suffered by any defendant. Instead, there is every reason to believe that the jury followed the Court's curative instruction, in light of the jury's careful deliberations and jury verdicts ultimately reached in this case. III. Evidence Against Benabe A. Motion to Suppress Benabe argues that the Court erred in denying his motion to suppress evidence recovered from his residence. (R. 1014, Joint Mot. at 13.) This issue was briefed by the parties prior to trial (R. 383, 391, 392), and this Court thoroughly addressed the issue in an opinion denying Benabe's motion. (R. 424, Mem. Opinion & Order.) There are no new arguments in the posttrial motion, and for the reasons previously articulated, the Court finds no basis to grant a new trial on this ground. B. Introduction of Firearms Benabe next argues that the Court erred in admitting into evidence two handguns recovered from his apartment, arguing that the guns were "insufficiently relevant" and "unduly prejudicial." (R. 1014, Joint Mot. at 14.) Federal Rule of Evidence 403 allows the district court to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice...." Fed. R.Evid. 403. This Court previously determined that the handguns were admissible, and the evidence at trial further bore out the relevance of these weapons. The evidence at trial established that Benabe was a high-ranking member of the Insane Deuces and was responsible for running the gang outside of prison. Given Benabe's position with the gang, and the evidence that the Insane Deuces engaged in repeated acts of violence (mainly shootings) against rival gang members, the handguns were highly relevant and were not unduly prejudicial within the meaning of Rule 403. Thus, the Court rejects Benabe's argument. C. Benabe's Bill of Particulars Benabe next argues that this Court erred in denying his pre-trial "Motion to Enforce the Bill of Particulars." (R. 1014, Joint Mot. at 14.) Benabe initially moved for a Bill of Particulars on September 17, 2007, and the Court granted that request. (R. 442, 489.) The government thereafter filed its written response to Benabe's motion, which included a description of the government's theory of Benabe's criminal culpability, as well as a list of examples of the evidence the government intended to introduce at trial to prove Benabe's participation in the charged conspiracy. (R. 553.) Benabe was not satisfied with this response and filed a "Motion to Enforce the Bill of Particulars." (R. 663.) The Court denied this motion. (R. 676.) As this Court previously concluded, a Bill of Particulars is not a vehicle to obtain a fact-by-fact detailing of the government's evidence; this is particularly true here where the government tendered voluminous discovery to the defendants during the course of this case. Without any new or compelling arguments by Benabe on this issue, the Court will adhere to its previous ruling, and finds no basis to grant a new trial on this ground. IV. Guzman's Motion for Pretrial Witness List Guzman argues that he is entitled to a new trial because the Court improperly denied his motion for pretrial discovery of the government's witness list. (R. 1014, Joint Mot. at 14-19.) Guzman's request for additional pretrial discovery was thoroughly briefed before trial (R. 589, 610), and this Court denied his request. (R. 638.) Guzman now argues that without the information he sought in his pretrial motion, he could not adequately prepare for cross-examination of various government witnesses. (R. 1014, Joint Mot. at 14-19.) The Court finds this argument without merit. The government provided defendants with unredacted copies of all cooperating gang member statements and testimony more than a year in advance of trial. More than two years in advance of trial, the government provided the defendants with copies of police reports, ATF reports, and grand jury statements of civilian witnesses, with identifying information of those witnesses redacted to protect their safety. Throughout trial, the government provided to defense counsel one week in advance the list of upcoming witnesses and complete copies of their statements, including their names. None of the defense attorneys requested additional time to prepare for cross-examination of civilian witnesses.[2] Guzman's counsel extensively cross-examined the civilian eyewitnesses about their identifications of Guzman. In light of the record, the Court finds no basis to grant a new trial on this ground. V. Santiago Proffer The defendants next argue that this Court erred in denying their motion for a more specific Santiago proffer.[3] (R. 1014, Joint Mot. at 19-20.) The Santiago proffer in this case spanned 140 pages, most of which was single-spaced, and the government set forth an extensive overview of the evidence it planned to introduce at trial, including summarizing the co-conspirator statements it intended to offer. The government incorporated by reference various undercover recordings and cooperating gang member statements, all of which were provided to the defendants well in advance of trial. The Court denied the defendants' motion for a more specific proffer, and advised them that they need to object at trial to any statements they believed were not co-conspirator statements. (R. 638.) Notably, the defendants do not point to any statement that was erroneously admitted at trial as a co-conspirator statement. Based on the record, the Court finds no basis to grant a new trial on this ground. VI. Exclusion of Benabe and Delatorre From The Courtroom Next, Benabe and Delatorre argue that this Court denied them a fair trial by excluding them from the courtroom during trial. (R. 1014, Joint Mot. at 20-24; R. 1005, Delatorre's Pro Se Mot.; R. 1015, Benabe's Pro Se Mot.) A criminal defendant's right to be present at every stage of a trial is rooted in the Confrontation Clause of the Sixth Amendment, and is also protected by the Due Process Clause of the Fifth and Fourteenth Amendments. Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970); United States v. Smith, 230 F.3d 300, 309 (7th Cir.2000). This right has also been codified in Federal Rule of Criminal Procedure 43. See Fed.R.Crim.P. 43(a). While the right to be present during trial is one of the most basic rights afforded to a criminal defendant, this right is not absolute. Allen, 397 U.S. at 342-43, 90 S. Ct. 1057. The defendant can lose the right to be present if, "after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful that his trial cannot be carried on with him in the courtroom." Id. at 343, 90 S. Ct. 1057; see also Fed. R.Crim.P. 43(c)(1)(C) (the defendant waives his right to be present "when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom."). Once lost, the right can be reclaimed "as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings." Allen, 397 U.S. at 343, 90 S. Ct. 1057. The Supreme Court has recognized that removing an unruly defendant, though unfortunate, will sometimes be necessary: "It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country." Allen, 397 U.S. at 343, 90 S. Ct. 1057. Thus, a defendant's "flagrant disregard" of "elementary standards of proper conduct should not and cannot be tolerated." Id. A trial judge confronted with "disruptive, contumacious, stubbornly defiant defendants" must have "sufficient discretion to meet the circumstances of each case." Id. The Supreme Court has identified three constitutionally permissible ways for the trial judge to handle such a defendant: (1) bind and gag him; (2) cite him for contempt; or (3) have him removed from the courtroom "until he promises to conduct himself properly." Id. at 343-44, 90 S. Ct. 1057. Benabe and Delatorre argue that they were improperly excluded from the trial because they "were never disruptive nor disrespectful during pre-trial proceedings." (R. 1014, Joint Mot. at 21.) The Court finds this characterization, at best, revisionist history. The Court considers the conduct of Benabe and Delatorre, as reflected in the record. Beginning in October 2007, approximately four months before the trial was scheduled to begin, Delatorre (who was represented by two highly experienced defense attorneys), began inundating the Court with pro se motions, affidavits, petitions, notices, letters, and other filings. (See, e.g., R. 470, 471, 493-99, 522, 578, 607, 608, 612-15.) In each filing, Delatorre raised essentially the same arguments, that this Court lacked jurisdiction over him because: (1) the United States Criminal Code was never properly enacted and is thus void; (2) he is a "sovereign" "flesh and blood man," not the "fictional" entity "FERNANDO DELATORRE" charged in the Indictment; and (3) United States district courts do not have jurisdiction to enforce federal criminal law outside of the District of Columbia, Puerto Rico, Virgin Islands, and federal enclaves and territories. United States v. Delatorre, 2008 WL 312647, at 1. Around this same time, Delatorre also began routinely disrupting court proceedings, speaking out of turn, interrupting this Court, and ignoring direct requests and questions from this Court. Id. at 3. Many times Delatorre would orally reiterate the arguments raised in his pro se filings, demanding that this Court answer the questions posed in those filings, and accusing the government of illegally detaining him.[4]Id. Shortly before trial, Benabe (who was also represented by two experienced defense attorneys) also began raising similar "jurisdictional" challenges in multiple pro se filings. (See R. 741-46.) In an effort to put these purported "jurisdictional" issues to rest, this Court issued an opinion fully explaining why these arguments were unavailing under the law of the Seventh Circuit and the Supreme Court. See Delatorre, 2008 WL 312647, at 1-2. The opinion also expressly warned that the defendants' failure to obey this Court's orders and exercise self-control during court proceedings could result in exclusion from the courtroom during jury selection or trial. Id. at 3-4. At a status hearing on January 31, the day after the opinion was issued, Delatorre began speaking out of turn almost immediately after the case was called, again raising his jurisdictional arguments. (1/31/08 Tr. at 5.) The Court responded, "[I]t is my firm decision, after carefully evaluating all of the factors that I need to evaluate to ensure that there is a fair trial, any further disruptions of any kind by any defendant are not going to be tolerated by this Court. I will not sever any defendant. I will use my authority to have that defendant watch all or any portion of the trial proceedings at the [Metropolitan Correctional Center]. That is my firm decision." (1/31/08 Tr. at 6.) The Court thereafter inquired of each defense attorney whether they had received a copy of the Court's opinion and shared it with their clients. (Id. at 6-7.) Delatorre's counsel stated that Delatorre had refused to accept a copy of the opinion from him. (Id. at 6.) Benabe's counsel stated that she attempted to visit Benabe in the lock-up but he refused to see her, and so she gave him a copy of the opinion when he arrived in court that morning. (Id.) Several other defense counsel stated that they had not yet had an opportunity to review the opinion with their clients. (Id. at 7.) Based on these representations, the Court set one final status hearing for February 5, and directed that by that date every defendant should have read the opinion. (Id.) The Court further advised: On Tuesday, I intend to ask each defendant if they intend to speak during the trial without my court permission. Any defendant who responds in the affirmative will be held at the MCC from day one of the trial and will see the trial from a seat at the MCC. I will not allow any defendant to prejudice any of the other defendants on trial before any of the prospective jurors. I want to make this as clear as I can. I've taken the time to write this opinion because I believe in the sincerity of different views held by defendants.... But any further attempts by Mr. Delatorre or any defendant to disrupt this trial will have to be interpreted by me as a willingness on the part of that defendant to watch the trial at the MCC, and I will make arrangements to ensure that happens. My preference is, when I look at this courtroom, I see a lot of competent attorneys who are good at putting the government to its burden of proof. The government's burden of proof will be stressed throughout this trial of beyond a reasonable doubt for any allegations. I would think the defendants would be served by having a neutral jury evaluate whether or not the government can meet that burden of proof after a trial. Anything less than that is just a waste of the resources of our federal criminal justice system, and I, as indicated by the Court of Appeals in the Mannie decision, in other decisions that they issued with regard to Mr. Warner, Mr. Ryan, have really obligated me to take affirmative steps to control what happens in this courtroom, and I certainly will honor what my Court of Appeals wants me to do. That's all I'm going to say with regard to that issue, so we will have another status Tuesday. (1/31/08 Tr. at 7-8.) The Court thereafter addressed numerous other issues pertaining to the trial. (Id. at 8-19.) In the midst of a discussion about the clothing to be worn by the defendants during the trial, Benabe again began asserting jurisdictional arguments similar to those already rejected by the Court. (Id. at 19.) The Court responded, "Mr. Benabe, all I can do is request that you read the opinion I issued yesterday. As I understand it, you haven't had a chance to read that, is that correct?" (Id.) Benabe responded, "And probably will not do so, Judge, because I'm a born sovereign." (Id.) He thereafter demanded that the Court provide him with "documented evidence" explaining how the Court "presumes to have jurisdiction over a born sovereign flesh-and-blood human being." (Id. at 19-20.) The Court stated that it would not continue to debate these issue with Benabe, and advised again, "On Tuesday, I will ask you whether or not you're going to make statements without my court permission during the trial. If you give me no answer or if you say that you will, I will hold you at the MCC while the trial proceeds...." (Id. at 20.) The Court further stated: "I really want to emphasize this to all defendants, talking to you person to person, not judge to defendant. All you're going to do is hurt yourself in the eyes of the jury. I would really urge you not to do that." (Id.) Benabe thereafter continued to interrupt the Court and to assert his jurisdictional arguments. (Id. at 20-21.) The Court directed the marshals to remove Benabe from the courtroom. (Id. at 21.) Shortly thereafter, Delatorre began reasserting his jurisdictional arguments. (Id.) The Court directed the marshals to remove Delatorre from the courtroom. (Id.) Delatorre continued to speak and to disrupt the proceeding until he was physically removed from the courtroom. (Id.) The Court held one final status hearing on February 5, the day before the trial was scheduled to begin. (2/5/08 Tr.) The Court began by asking the attorneys whether the defendants had been provided with copies of this Court's opinion. (2/5/08 Tr. at 6-7.) Delatorre's attorney stated that he had attempted to give Delatorre a copy but that he had refused to accept it. (Id. at 7.) The other attorneys indicated that they had provided copies of the opinion to their clients. (Id. at 6-8.) The Court then stated, "Let me also add to it that I will consider from this point on and I've been patient to this pointthat any outbursts by a defendant, from this point on without, the Court's permission, I will consider contempt of court.... Now, my priority is simply to allow both sides to have a fair trial and to have the government put to its burden of proof. That is my priority. So I do not want to go down this road, but I feel compelled to proceed with the questioning of each defendant in order to ensure that tomorrow's proceeding and every proceeding thereafter takes place in an orderly fashion in compliance with the Mannie opinion." (Id. at 9.) The Court then proceeded to question each defendant individually regarding whether they intended to speak without the Court's permission during the trial. (Id. at 9-20.) Susinka, Juarez, Guzman, Crowder, and Salazar all responded that they did not intend to speak without the Court's permission during trial. (Id.) When the Court questioned Benabe, however, he again began asserting his jurisdictional arguments. (Id. at 10-11.) The Court advised Benabe that these arguments had been rejected for the reasons fully explained in the January 30 opinion, that he had preserved the issue for appeal, and that the Court was not going to debate the matter with him further. (Id. at 11-12.) The Court then asked him directly, "Do you intend to make any statements in front of the prospective jurors or the jury that is picked .... without the express permission of this Court?" (Id. at 12.) Benabe did not wait for the Court to finish this question, interrupting the Court to again assert his jurisdictional arguments. (Id.) He continued to speak and to interrupt this Court, despite the Court's repeated efforts to redirect him to the Court's question about his courtroom behavior. (Id. at 12-13.) The Court asked him again whether he intended to speak without the Court's permission during trial, and advised him, "I'm going to ask you to listen closely to the question because if you do not answer the question, you will be removed from this courtroom, and you will not be here tomorrow." (Id. at 13.) Benabe continued to make non-responsive statements regarding the Court's lack of jurisdiction over him. (Id. at 13-14.) The Court then had the court reporter read back the question, and asked, "Mr. Benabe, do you understand the question? The question" (Id. at 14.) Benabe interrupted the Court again, responding, "I understand very well, Judge. I'm illegally being prosecuted. This Court has not addressed that issue." (Id.) At that point, the Court directed the marshals to remove Benabe from the courtroom. (Id.) The Court subsequently turned to Delatorre, inquiring whether he had read the Court's January 30 opinion. (Id. at 15.) Delatorre responded that he had "never seen a copy of it." (Id.) He indicated an awareness that the Court was concerned about courtroom behavior, however, and stated, "[O]ut of fear of my life and the physical harm, I'm taking the liberty of addressing those concerns in writing, the Court's concerns...." (Id.) He tendered a document to the Court, which this Court reviewed, in which he again made nonresponsive statements regarding this Court's jurisdiction over him.[5] (Id.) Delatorre then complained that his attorney had not given him a copy of the Court's January 30 opinion. (Id. at 16.) The Court asked government counsel to give Delatorre a copy in open court. (Id.) Delatorre responded, "I would like to know if the order bears my true birth-given name on it. If it does not, I cannot accept it." (Id.) Delatorre was then given a copy of the opinion, but he rejected it because in his view it did not contain his proper name. (Id.) The Court then asked him directly, "[A]s to your courtroom behavior, sir, do you intend to make any statements to either the prospective jurors who will be here tomorrow or the final jurors selected for this case without the permission of this Court?" (Id. at 17.) Delatorre refused to answer the question, but instead directed the Court to his filing. (Id.) The Court stated, "Do you understand my question?" (Id.) Delatorre again directed the Court to his filing and refused to give a direct answer, and did so a third time after the Court instructed the court reporter to read the question back to him. (Id. at 18.) The Court stated, "Mr. Delatorre, I've tried to be as patient as I can with you. I've written an opinion that in my view is" (Id.) At that point, Delatorre interrupted the Court and stated that he'd never seen a copy of the opinion. (Id.) After further discussions in which Delatorre refused to provide a direct answer to the Court's question about his courtroom behavior, the Court directed the marshals to remove him from the courtroom. (Id. at 18-19.) Once again, Delatorre continued to speak until he was physically removed from the courtroom. (Id. at 19.) At the close of the proceedings, the Court ordered the marshals to bring Delatorre and Benabe over to the courthouse the following day, the first scheduled day of trial, "as we try one last time." (Id. at 90.) The Court also made arrangements for a closed-circuit video camera to be set up in the courtroom so that Benabe and Delatorre could watch the proceedings from the MCC if necessary. (Id. at 21.) On the first day of trial, Benabe and Delatorre were brought over to the courthouse, but they refused to meet with their attorneys or otherwise assure the Court that they would not disrupt the trial. (Trial Tr. at 4-5.) The Court ordered that these two defendants be excluded from the courtroom, but that they be permitted to watch the proceedings from the MCC if they wished to do so. (Id.) Benabe and Delatorre subsequently refused to watch the proceedings on video, and the Court eventually ordered the camera equipment removed from the courtroom so as not to distract the jury. (Trial Tr. at 84-85.) The Court advised that if either defendant expressed a desire to watch the proceedings, the courtroom equipment would be re-installed. (Id. at 85.) These defendants never indicated a desire to watch the trial, nor did they indicate a willingness to assure this Court that they would not disrupt the proceedings if allowed to return to the courtroom, and so the entirety of the trial proceeded in their absence. As is apparent from a review of the record, this Court was faced with two defendants who continuously flouted this Court's authority, disrupted the proceedings, diverted attention away from the multitude of logistical and substantive issues presented by this case, and refused to answer the Court's direct questions about whether they intended to conduct themselves with basic levels of decorum during the trial. This situation would have been difficult enough had Benabe and Delatorre been the only two defendants in this case. They were not. It was the duty of this Court to make every effort to safeguard the fair trial rights of the other five defendants, who were not disruptive during court proceedings. Mannie, 509 F.3d at 856-57. The stakes were particularly high given the complexity and estimated length of the trial in this case, which the government predicted could last up to four months. The jury pool was carefully prescreened for a trial of this length over the course of two months, background checks were conducted by pretrial services, and each potential juror filled out a lengthy background questionnaire. (See R. 543, 544; Trial Tr. at 19-23). Against this backdrop, the Court found it necessary to gain assurances from Benabe and Delatorre that they intended to conduct themselves appropriately during the trial. They refused to give a direct answer to the Court's questions, and instead gave every indication that they fully intended to disrupt the trial based on their view that they were being illegally detained by a Court with no jurisdiction over them. To allow these two defendants to appear at trial and immediately taint the carefully selected jury pool with their outbursts, causing months of delay, would not have been fair to the other defendants. See Mannie, 509 F.3d at 856-57. This Court was thus left to consider the three options outlined by the Supreme Court in Allen: binding and gagging the defendants; finding them in contempt; or excluding them from the courtroom. As to the first option, this Court shares the Supreme Court's concern that binding and gagging a defendant, though constitutionally permissible, "is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold." Allen, 397 U.S. at 344, 90 S. Ct. 1057. The Supreme Court has also recognized that holding an unruly defendant in criminal contempt will often be ineffective where the defendant is "charged with a crime so serious that a very severe sentence such as death or life imprisonment is likely to be imposed." Id. at 345, 90 S. Ct. 1057. This was the case here, given that the defendants were facing the prospect of very lengthy sentences. Indeed, the Court threatened the defendants with contempt, but this appeared to have absolutely no effect on their ability to conform their behavior to acceptable standards. (See 2/5/08 Tr. at 9.) This left the Court with the option of excluding the defendants from the courtroom. As the record reflects, this Court made every effort to indulge these defendants, giving them enormous leeway in voicing their thoughts and opinions, and attempting to communicate to them in every means possible that their disruptive behavior, if continued, would result in their absence from the courtroom during trial. Despite the Court's repeated warnings, these defendants continued to interrupt the Court during pretrial proceedings, refused to answer the Court's direct questions, and repeatedly asserted arguments that this Court had already rejected. "[O]ur courts, palladiums of liberty as they are, cannot be treated disrespectfully with impunity.... It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes." Allen, 397 U.S. at 346, 90 S. Ct. 1057. Benabe and Delatorre suggest that they should not have been excluded until they acted up during the trial itself. The defendants cite no case law, nor is this Court aware of any, requiring the Court to proceed in this manner. These defendants gave every indication that they would continue to make outbursts and otherwise disrupt the proceedings if permitted to be present during trial. As the Seventh Circuit recognized in Mannie, when a defendant is unruly or uncooperative, the trial court must take proactive steps to control the courtroom atmosphere and protect the rights of his co-defendants. Based on this Court's reading of Mannie, we could not sit idly by and allow Benabe and Delatorre to taint the jury pool, resulting in months of delay for the other defendants who were behaving appropriately. In an analogous setting, the Seventh Circuit, applying Allen, held that the trial court did not err in revoking the defendant's Sixth Amendment right to represent himself based on his disruptive conduct during pretrial proceedings. United States v. Brock, 159 F.3d 1077 (7th Cir. 1998). Brock involved an unruly defendant who engaged in conduct similar to Benabe and Delatorre. For instance, the defendant "made requests that were denied by the district judge," and "expressed his dissatisfaction with the judge's rulings and explanations" by refusing to answer the court's questions and to cooperate in the proceedings. Id. at 1080. He made repeated challenges to the court's authority, demanding that the court provide him with a Bill of Particulars, a request the court had already denied. Id. In short, "[d]espite the district court's repeated attempts to secure his compliance, Brock stubbornly adhered to his policy of insisting that the court provide him with a Bill of Particulars and state the basis for its authority." Id. Based on the defendant's conduct during pretrial proceedings, the trial court refused to permit him to represent himself at trial. Id. On appeal, the defendant argued that the trial court violated his right to self-representation because he only acted up during pretrial proceedings and not at the trial itself. Id at 1080. The Seventh Circuit rejected this argument, holding that the defendant had demonstrated a "lack of good faith cooperation with the court," and that his conduct during pretrial proceedings "was a strong indication that [he] would continue to be disruptive at trial." Id. at 1081 & n. 3. Based on this conduct, the Seventh Circuit held that the trial court did not err in revoking the defendant's Sixth Amendment right to represent himself at trial. Id. at 1081. Similarly, in United States v. Brown, 791 F.2d 577 (7th Cir.1986), the Seventh Circuit affirmed the district court's decision to hold an unruly defendant in criminal contempt based on his pretrial conduct. The defendant, like Benabe and Delatorre, was unhappy with the Court's pretrial rulings and expressed his displeasure by refusing to cooperate in the proceedings. Id. at 577-78. He repeatedly asserted arguments that had been rejected by the trial court, despite the court's attempts to explain to him in detail why such arguments were unavailing. Id. at 578. Ultimately, the trial court told the defendant that if he refused to cooperate, he would be held in contempt. Id. The defendant was "polite but resolved," and steadfastly refused to cooperate based on his disagreement with the court's pretrial rulings. Id. The Seventh Circuit held that under these circumstances, the defendant had forfeited his right to represent himself and was properly held in contempt of court. Id. at 579. In approving the trial court's decision to hold the defendant in contempt, the Seventh Circuit reaffirmed that the court also had the option of removing the defendant from the courtroom and proceeding with the trial in his absence. Id. at 578. As in Brock, the pretrial conduct of Benabe and Delatorre was a "strong indication" that they had every intention of continuing their disruptive conduct during trial. As in Brown, Benabe and Delatorre repeatedly flouted this Court's authority by refusing to answer questions and repeatedly raising arguments this Court had rejected, despite this Court's multiple attempts to explain to them why the arguments were unavailing and advising them that they had preserved their arguments for appeal. "A court is entitled to obedience. Litigants ... have the right to appeal. They may store up errors, but they must obey in the interim." Brown, 791 F.2d at 579. Given the behavior of Benabe and Delatorre, and the interests of the other defendants, the exclusion of these defendants was fully warranted in this case. Furthermore, this Court made every effort to lessen the impact of the absence of these defendants during trial. During jury selection, the Court instructed the potential jurors as follows: "Let me also explain to you, ladies and gentlemen, two of the seven defendants are not here. Mr. Benabe and Mr. Delatorre have been excused from attending the trial by the Court for reasons that have nothing to do with the merits of the trial. Let me just say that Mr. Benabe and Mr. Delatorre, like all defendants, are presumed innocent and are entitled to a fair trial in which the government must prove the allegations against them beyond a reasonable doubt." (Trial Tr. at 73-74.) The Court also questioned the potential jurors about their ability to be fair to the two defendants who were absent. (Trial Tr. at 74-84.) Finally, at the close of the evidence, the Court instructed the jury as follows: "I have excused Defendant Bolivar Benabe and Defendant Fernando Delatorre from being present in the courtroom for reasons that have nothing to do with the merits of the trial. The fact that Defendant Benabe and Defendant Delatorre were not present during the trial should not enter into your deliberations in any way." (Trial Tr. at 6116.) The Court also instructed the jury on the government's burden of proof and the presumption of innocence enjoyed by all defendants through all stages of the trial. (Trial Tr. at 6116-18.) The jury is presumed to follow the Court's instructions.[6]Wantuch, 525 F.3d at 516. The jury's somewhat split verdicts are a strong indication that the jurors followed this Court's instructions. For all of these reasons, the Court rejects the argument of Benabe and Delatorre that they were denied a fair trial based on their exclusion from the courtroom during trial. VII. Benabe's Motion for a Competency Evaluation Benabe next argues that the Court erroneously denied his request for a competency evaluation. (R. 1014, Joint Mot. at 24.) Based on his pretrial conduct detailed above, Benabe's attorneys requested that he undergo a competency evaluation. (R. 729.) The opinion of this Court, having presided over this case and observed Benabe on multiple occasions, was that Benabe was fully competent and that his behavior was a calculated attempt to delay and disrupt the proceedings. (Trial Tr. at 239-41.) The Court therefore denied the motion. (R. 740.) There are no new or compelling arguments in the post-trial motion that convince the Court that the prior ruling was error, or that a new trial is warranted on this ground. VIII. Anonymous Jury The defendants next argue that the Court erred in granting the government's motion to empanel an anonymous jury. (R. 1014, Joint Mot. at 24-26.) This issue, too, was briefed by the parties prior to trial. (R. 597, 639.) This Court issued an opinion granting the government's request for an anonymous jury, and fully explaining its reasons for doing so. United States v. Delatorre, 2008 WL 161702, at 1-4. The Court carefully considered all of the defendants' arguments against empaneling an anonymous jury, but determined that, given the facts of this case, there was a credible risk that members of the jury could be in jeopardy of intimidation, and that jurors would have undue concerns for their own safety. Id. at 2-3. Without recounting all of the reasons again here, the Court continues to view this as an unfortunate but necessary measure in this case. In their post-trial motion, the defendants argue that "subsequent proceedings regarding Juror 79 have demonstrated that restricted information available about potential jurors limited the defendants' exercise of peremptory challenges in this case, with potentially significant consequences." (R. 1014, Joint Mot. at 25.) The defendants do not explain the basis for this argument, but as fully detailed in this Court's opinion addressing the allegations of juror misconduct, this Court disagrees that the defendants were denied a fair trial based on the presence of Juror 79, or any of the other jurors, on the jury. See Delatorre, 572 F.Supp.2d at 986-95. For these reasons, the Court rejects the defendants' argument. IX. Testimony of Mario Gomez The defendants next argue that this Court erred in permitting Mario Gomez ("Gomez") to testify. (R. 1014, Joint Mot. at 27-28.) Gomez was the victim of a shooting on September 28, 2002, which left him paralyzed and confined to a wheelchair. The defendants argue that "Mr. Gomez's wheelchair and his emotionally depressed demeanor during the testimony rendered Mr. Gomez's testimony inflammatory and unfairly prejudicial." (Id.) This Court determined that Gomez's testimony was admissible under Rule 403, and the Court continues to view this as the appropriate ruling. Gomez's testimony was highly relevant, given that the gun used to shoot him was ultimately connected to the Insane Deuces. Furthermore, Gomez's testimony was not cumulative, as the defendants argue. (R. 1014, Joint Mot. at 27.) Although Gomez's brother also testified about the circumstances leading up to the shooting, his brother was not present during the shooting itself, and thus could not provide the location of the shooter provided by Gomez. The location of the shooter was critical since it established the location of a spent shell casing recovered from the scene; this shell casing was used to connect the gun to the Insane Deuces. In short, the testimony of Gomez was properly admitted. X. Testimony of John Rea The defendants next argue that this Court erred in precluding the testimony of John Rea, a defense investigator who would have testified concerning statements made to him by Luis Lomelli ("Lomelli") about his participation in a shooting along with government witness Orlando Rivera. (R. 1014, Joint Mot. at 28-32; R. 1012, Juarez's Mot. at 6-10.) In essence, the defense contends that Rea would have testified that on August 11, 2002, Rivera was driving a car in which Lomelli was a passenger, and that Lomelli fired multiple rounds at a Latin King gang member. This issue was briefed during the trial, and the Court also heard oral argument from both sides on this issue. (R. 841; Trial Tr. at 4759-60, 4854-59.) After considering the parties' respective arguments, this Court determined that Lomelli's statements were not admissible under Rule 804(b)(3), because the portion of the statement inculpating Rivera was not against Lomelli's penal interest and did not bear indicia of reliability, and further, that the statement was inadmissible under Rule 608(b). (Trial Tr. at 4857-59.) There is nothing contained in the post-trial motion to convince the Court that it was error to exclude this hearsay statement for the reasons previously stated. Even assuming it was error to exclude the statement, such error would have been harmless, given the strength of the government's evidence and the fact that the defendants were permitted to attack Rivera's credibility on numerous other grounds. See United States v. Savage, 505 F.3d 754, 762 (7th Cir.2007) (new trial warranted only where exclusion of evidence "had a substantial influence over the jury and the result reached was inconsistent with substantial justice."). For these reasons, the Court rejects the defendants' argument. XI. Admission of Summary Chart The defendants next argue that the Court erred in admitting into evidence a summary chart of multiple violent acts committed by Rivera. (R. 1014, Joint Mot. at 33-38.) The government prepared the chart to streamline the testimony of Rivera, who admitted being involved in upwards of 40 violent acts during his time in the Insane Deuces. After considering all of the defendants' objections, the Court admitted the summary chart under Rule 1006, as well as Rules 401 and 403. (Trial Tr. at 1494.) The Court continues to view the admission of the chart as proper for the reasons previously stated. Moreover, even if it was error to admit the chart, it is difficult to discern how the defendants were prejudiced by its admission. One of the main defense themes throughout the trial was that the jury should not believe the testimony of Rivera, who was the government's key witness, in part because he himself had been involved in multiple acts of violence. If anything, the summary chart served as a constant reminder to the jury of the multiple violent acts in which Rivera admitted being involved, thus impeaching his credibility. Indeed, in their closing arguments, virtually every defense attorney attacked Rivera's credibility by either referring to the chart or by mentioning the fact that Rivera admitted to personally participating in over 40 separate acts of violence. For these reasons, the Court rejects this argument. XII. Jury Instructions The defendants next challenge three different instructions given to the jury. The Court addresses each in turn. A. Aiding and Abetting The defendants first argue that the Court erred when it gave the Seventh Circuit's pattern jury instruction on aiding and abetting. (R. 1014, Joint Mot. at 38-39.) Instead, the defendants wanted the Court to instruct the jury that to be guilty of aiding and abetting the racketeering conspiracy, the defendant must have "knowingly assisted in the commission of at least two of the predicate acts set forth in paragraph 11 of Count One." (R. 831.) This proposed instruction was not a correct statement of the law following the Supreme Court's decision in Salinas, and it was proper to give the Seventh Circuit pattern instruction. Accordingly, the Court finds no merit to the defendants' argument. B. Ostrich Instruction Benabe argues that the Court erred in giving Seventh Circuit Pattern Instruction 4.06, known as the "ostrich" instruction. (R. 1014, Joint Mot. at 39.) At trial, Benabe's defense was that, although he was a member of the Insane Deuces, he was based in Chicago far from Aurora, and that he was merely an administrator for the gang, and was not involved in any of the violence that occurred in Aurora. In short, there was evidence that Benabe intentionally turned a blind eye to the violence committed in Aurora by the Insane Deuces, and the ostrich instruction was therefore appropriate. United States v. Black, 530 F.3d 596, 604 (7th Cir.2008) (ostrich instruction appropriate where there is evidence defendant was willfully ignorant of criminal activity). C. Pinkerton Instruction The defendants next argue that the Court erred in giving the Pinkerton instruction[7] during the second phase of the jury's deliberations. (R. 1014, Joint Mot. at 39-40.) During the second phase of the trial, the jury was asked to decide whether each defendant's participation in the RICO conspiracy was based on certain types of racketeering activity, in this case, four first-degree murders. The Court instructed the jurors that "a person commits the offense of first degree murder when he, or one for whose conduct he is legally responsible, kills an individual, if in performing the acts which cause the death, the person, or one for whose conduct he is legally responsible ... intended to kill or do great bodily harm to that individual." (R. 945 at 6.) Under the facts of this case, the defendants could be held responsible for first-degree murder under three possible theories: (1) as a direct participant; (2) as an aider, abettor, counselor, or commander; or (3) under Pinkerton. The instruction given was an accurate statement of the law. Contrary to the defendants' assertion, the Seventh Circuit has not held that the Pinkerton instruction cannot be given in conspiracy cases. (See R. 1014, Joint Mot. at 40.) The Court in a 1986 opinion raised a question about the value of giving the instruction in RICO conspiracy cases, given that in such cases the defendant can already be punished for substantive offenses without invocation of Pinkerton. See United States v. Neapolitan, 791 F.2d 489, 504 n. 7 (7th Cir.1986) ("Given that implicit within the compound nature of RICO is a concept of punishment for substantive offenses, the commission of which was agreed to by the defendant, it is difficult to see why the government needs to invoke a second cumulative punishment device in the form of Pinkerton."), modified on other grounds by Brouwer v. Raffensperger, Hughes & Co., 199 F.3d 961 (7th Cir.2000). Nevertheless, the Court expressly stated that "there is nothing in RICO precluding the use of Pinkerton instructions," nor is there anything "wrong or improper" about giving the instruction in RICO conspiracy cases. Id. The Court has reaffirmed that principle in subsequent cases. See United States v. Campione, 942 F.2d 429, 437-38 (7th Cir.1991); United States v. Caliendo, 910 F.2d 429, 438 (7th Cir.1990). The instruction was proper for the reasons stated above, and the Court finds no basis to grant a new trial on this ground. D. Verdict Forms The defendants next argue that the Court erred in using the government's proposed verdict forms in phase two of the deliberations. (R. 1014, Joint Mot. at 40-41.) This issue was briefed prior to the verdict, and the Court fully considered the arguments of the defendants regarding the verdict forms. (R. 890, 900, 901.) The Court continues to view the verdict forms used as setting forth in a logical and straightforward manner the various questions the jury needed to answer in phase two. Accordingly, the Court rejects this argument. XIII. Transcripts in Jury Room The defendants argue that the Court erred by providing the jury with transcripts in the jury room. (R. 1014, Joint Mot. at 41-42; R. 1012, Juarez's Mot. at 3-6.) During their deliberations, the jury requested that they be allowed to review certain transcripts from the trial. The defendants objected to this request, but after fully considering the defense arguments, the Court overruled the objections and permitted the jury to have the transcripts. (See Trial Tr. at 6203-25.) The Court reasoned: "The jury has been deliberating now almost a week. It's a very careful deliberation, as far as I can tell.... The jury has made a very pointed request for certain testimony. I believe we should assist them." (Trial Tr. at 6217.) In sending the transcripts back to the jury room, the Court gave the following limiting instruction: Enclosed are the exact trial transcripts you requested yesterday afternoon. As you well know, these transcripts are only a portion of the entire trial. Any testimony that was inadmissible or any part of the transcript that occurred outside your presence has been removed. You must keep in mind that the trial testimony itself is the evidence and not the raw transcripts. The transcripts cannot replace each juror's collective memory of a witness's credibility. You must, therefore, weigh all the trial evidence and not just one particular portion of the trial. Also, please note that each of the witnesses' direct testimony you have requested was also cross-examined by the defense. The entire testimony of each witness you have identified can be made available to you at your written request. Your verdicts must be based on my entire jury instructions and all the evidence. (Trial Tr. at 6225-26.) The Court continues to view the decision to send the transcripts to the jury room as an appropriate exercise of its discretion. See United States v. Crowley, 285 F.3d 553, 561 (7th Cir.2002), superseded on other grounds as stated in United States v. Rodriguez-Cardenas, 362 F.3d 958 (7th Cir.2004); United States v. Keskey, 863 F.2d 474, 476 (7th Cir.1988). The defendants do not raise any argument not fully considered by the Court in ruling on this issue at trial, and the Court finds no basis to grant a new trial on this ground. XIV. Juarez's Franks Hearing Juarez argues that the Court erred in denying him a Franks hearing with respect to the search warrant executed at his house on March 8, 2002. (R. 1012, Juarez's Mot. at 10-15.) To obtain a Franks hearing, a defendant must make "a substantial preliminary showing that a `false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and the allegedly false statement is necessary to the finding of probable cause.'" United States v. Hoffman, 519 F.3d 672, 675 (7th Cir.2008) (citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).) Juarez points to three allegedly false statements in the warrant affidavit which he believes entitled him to a Franks hearing. (R. 1012, Juarez's Mot. at 11-12.) The Court fully considered Juarez's arguments at trial and declined to hold a Franks hearing. (Trial Tr. at 3477.) Juarez has not established that the challenged statements were knowingly or intentionally false. Even assuming he could do so, the affidavit contained information sufficient to establish probable cause even without considering the challenged statements. Accordingly, the Court finds no basis to grant a new trial on this ground. XV. Motion to Reconsider Juror Issues The final matter to be addressed is the defendants' motion to reconsider the Court's August 21, 2008, opinion denying their post-trial motions alleging juror misconduct. (R. 1050, Joint Mot. to Reconsider.) For reasons fully explained in the opinion, after considering all of the defendants' arguments, this Court concluded that no further evidentiary hearing or other type of relief was warranted on the grounds of alleged juror misconduct. See Delatorre, 572 F. Supp. 2d 967. The motion to reconsider contains no arguments not already given careful consideration by the Court, and the Court finds no basis within the motion to alter its prior ruling. Accordingly, the motion is denied. CONCLUSION For the reasons stated herein, the defendants' motions for acquittal or a new trial (R. 1005, 1012, 1014, 1015) are denied. The defendants' motion to reconsider (R. 1050) is also denied. In deference to the related trial currently proceeding before Judge Leinenweber, see supra footnote 1, this Court will not proceed with any sentencing proceedings for these defendants until the related trial has been completed. NOTES [1] The trial of the second group, consisting of Handley, Rodriguez, Barbosa, Lechuga, Morales, Hernandez, and Perez, was scheduled to begin on October 6, 2008, before Judge Leinenweber, who graciously volunteered to preside over the second portion of the case. (R. 906, Minute Entry.) The trial of these defendants originally began on April 2, 2008, but Judge Leinenweber had to declare a mistrial shortly after opening statements when several of the jurors expressed a desire to be removed from the jury. (R. 892, Minute Entry; 4/2/08 Tr.) [2] Guzman himself raised an issue of wanting to call additional witnesses in his defense. The Court exhaustively explored this issue with Guzman's attorneys, who explained on the record their reasons for deciding not to call the witnesses identified by Guzman. (Trial Tr. at 4846, 4865-77.) [3] Under United States v. Santiago, 582 F.2d 1128 (7th Cir.1978), overruled on other grounds by Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987), the statements of unindicted co-conspirators are admissible as non-hearsay if the government proves prior to trial that a conspiracy existed, that the defendant and the declarant were members of the conspiracy, and that the statements were made during the course and in furtherance of the conspiracy. Wantuch, 525 F.3d at 511 n. 3. The admissibility of the co-conspirator statements is subject to the trial court's "later determination that the government proved these foundational elements at trial." Id. [4] After observing Delatorre's conduct and demeanor during court proceedings, the Court found it necessary to order an examination of his mental competency. (R. 541.) Delatorre was subsequently found to be fully competent. This Court surmises that Delatorre may have hoped that his outbursts would cause the Court to sever his trial from that of the other defendants. The prospect of a joint trial may have concerned Delatorre, given that he cooperated with law enforcement early in this case and provided statements inculpating himself and others in various criminal acts. Delatorre's videotaped statements were offered as evidence by the government at trial. [5] This document was not made part of the record, but Delatorre has attached it to his reply in support of his pro se post-trial motion. (R. 1046, Delatorre's Pro Se Reply, Ex. A.) [6] The Court notes that during a post-trial hearing on an unrelated issue, the jury foreperson testified that the absence of these two defendants from the trial played no role in the verdicts. (5/30/08 Tr. at 9.) [7] Under Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), a member of a conspiracy is criminally responsible for a substantive offense committed by his co-conspirators if he was a member of the conspiracy when the offense was committed, and if the offense was committed in furtherance of and as a foreseeable consequence of the conspiracy.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2061094/	1 Pa. Commonwealth Ct. 190 (1971) City of Philadelphia v. Stradford Arms, Inc. Commonwealth Court of Pennsylvania. Argued October 6, 1970. February 4, 1971. 191 Argued October 6, 1970, before President Judge BOWMAN, and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MANDERINO, MENCER and BARBIERI (who has since been appointed to the Supreme Court of Pennsylvania and did not participate in the decision). 192 Carl K. Zucker, Deputy City Solicitor, with him, Levy Anderson, City Solicitor and Paul L. Rucci, Assistant City Solicitor, for appellant. Irvin Stander, for appellee. OPINION BY JUDGE MANDERINO, February 4, 1971: Appellee, Stradford Arms, Inc., completed construction in September, 1962, of apartment dwellings at premises located on Blakiston Street in the City of Philadelphia. The buildings constructed had a setback of only three feet six inches on one side and off-street parking space amounting to 10,394 feet. In both of these respects, the buildings did not comply with the requirements of the zoning regulations of Philadelphia. The zoning regulations required the setback to be eight (8) feet and the off-street parking area to be eleven thousand (11,000) square feet. An application for a variance by Stradford was denied by the Zoning Board of Adjustment, and the denial was upheld on appeal. Stratford Arms, Inc. v. Zoning Board of Adjustment, 429 Pa. 132, 239 A. 2d 325 (1968). 193 Subsequently the City of Philadelphia brought an action in equity against Stradford to require compliance with the zoning ordinance. This is the case before us. The City requested compliance and also a fine of Three Hundred ($300.00) Dollars per week for each week of violation. A full hearing on the matter was held in the Court of Common Pleas of Philadelphia County which resulted in a decree nisi directing Stradford to pay Ten ($10.00) Dollars per week from July 31, 1962, to July 31, 1968. (Stradford calculated this to be approximately Three Thousand One Hundred ($3,100.00) Dollars). Following an en banc hearing the court increased the fine and ordered Stradford to pay Fifteen ($15.00) Dollars per week until the premises were brought into compliance. (Stradford calculated this to be approximately Thirty-Five Thousand ($35,000) Dollars over the life of the apartments). From this order the City of Philadelphia appealed to the Supreme Court of Pennsylvania and under the Commonwealth Court Act (Act No. 185 of January 6, 1970); 17 P.S. 211.13 (1970), the appeal was transferred to the Commonwealth Court. In its findings, the Common Pleas Court found that the "setback deficiency was unintentional on the part of defendant." It further found that although the parking area was deficient, the existing space was "adequate for the needs of the residents." The court also found that the apartment buildings did not "constitute a nuisance" nor did they "adversely affect the health, welfare and safety of the surrounding community." These were the key findings upon which the court entered its order. The appellant, City of Philadelphia, does not contend that there was any abuse of discretion in the court's findings and our reading of the record indicates that there was substantial evidence to sustain the findings. 194 The City's challenge to the order below is that the court considered whether the violations were intentional or unintentional. According to the City, that question was not open before the equity court. The City states that the court, in this equity action, could not have found the violations to be unintentional because in the other proceedings involving the variance, the Board of Adjustment found violations to be intentional. The City argues that since the Board in the administrative hearings concluded that the violations were intentional, a court in a different judicial hearing was bound by that finding and could not consider the question again even though a full judicial hearing was held. It is the City's argument that the "law of the case" had already been determined on this issue and could not be re-opened. It relies principally on Commonwealth v. Tick, Inc., 431 Pa. 420, 246 A. 2d 424 (1968). The City, quoting from Tick, says "It is hornbook law that issues decided by an appellate court on a prior appeal between the same parties become the law of the case and will not be reconsidered on a second appeal." The principle is not applicable to the situation before us. In Tick and in other cases cited, the principle was being enunciated in situations where there were two appeals involving the exact same case and the courts were correctly stating that having considered a matter on a first appeal they would not consider the identical matter on a second appeal in the same case. We have found no case and none has been cited in which the "law of the case" principle was held to be applicable in two different appeals involving different cases even though the same factual determination was relevant in both cases and the parties were the same. If the principle were applicable in such a situation, there would be no need for the principles of res judicata and collateral estoppel. These are the well established 195 principles applied to determine whether or not a litigant is bound by determination of fact or law made by a different tribunal at another time. The principle of res judicata cannot apply. The application of this principle requires the presence of four (4) identities: (1) identity in the thing sued for, (2) identity in the cause of action, (3) identity of persons and of parties to the action and (4) identity of the quality in the persons for and against whom the claim is made. Seifried v. Boyd, 237 Pa. 55, 85 A. 72 (1912). The identities required are, obviously, not all present in this case. There remains the possibility of the application of the principle of collateral estoppel. Pennsylvania has followed the Restatement of Judgments in the matter of collateral estoppel. Thal v. Krawitz, 365 Pa. 110, 73 A. 2d 376 (1950); Larsen v. Larsen, 392 Pa. 609, 141 A. 2d 353 (1958). Under the Restatement the principle is not applicable to our situation. In order for that doctrine to apply when a matter has been considered by two different tribunals, the second tribunal will only be bound by a finding of the first tribunal if the first tribunal had equivalent subject matter jurisdiction as the second tribunal. Restatement of Judgments § 71 (1963). The Restatement cites a particularly relevant illustration in that section at comment d. "A brings an action against B in a court which has jurisdiction of claims not exceeding one hundred dollars to recover accrued interest of Fifty ($50.00) Dollars on a promissory note not yet matured for One Thousand ($1,000) Dollars, executed by B and payable to A. B alleges that the note was secured by fraud. Whether the verdict and judgment are for A or B, the judgment is not conclusive on the issue of fraud in a subsequent action brought by A against B in a court of unlimited jurisdiction to recover the principal on the note after its maturity." 196 Since the Zoning Board of Adjustment does not have equity jurisdiction, it cannot grant injunctions or impose penalties; this is not a part of its subject matter jurisdiction. Such jurisdiction belongs to a Court of Common Pleas. Since it was the first tribunal having subject matter jurisdiction to grant injunctive relief or impose penalties, the court below was not bound by any prior proceedings. The prohibition on the use of collateral estoppel set forth in the Restatement applies when the question is whether one court of law should be bound by that which occurred in another court of law in a different subject matter proceeding. When the question is whether a court of law in a judicial proceeding should be bound by that which occurred in a different proceeding before an administrative agency, the prohibition is more compelling. Nor is the application of the above prohibition affected by the Supreme Court's affirmance of the denial of the variance by the Board of Adjustment. Within the confines of the Board's subject matter jurisdiction, the Court decided only whether the Board of Adjustment abused its discretion or committed an error of law. Stratford Arms, Inc. v. Zoning Board of Adjustment, 429 Pa. 132, 129 A. 2d 325 (1968). Boards of Adjustment in proceedings involving requests for variances make many findings relating to real property including at times ownership matters. To hold that such findings would bind litigants in other judicial proceedings strikes us as unjust. Order affirmed. Judge MENCER dissents.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499290/	581 F.Supp.2d 2 (2008) Mikeisha BLACKMAN, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants. Civil Action No. 97-1629 (PLF). United States District Court, District of Columbia. October 6, 2008. 3 Haylie Michelle Iseman, Michael J. Eig, Michael J. Eig and Associates, PC, Carolyn W. Houck, Chevy Chase, MD, Ira A. Burnim, Bazelon Center For Mental Health Law, Myrna Lee Fawcett, Bonita A. Jones-Moon, Fawcett & Fawcett, Tilman L. Gerald, Law Offices of Tilman L. Gerald, Jane Irene Ryan, Steptoe & Johnson, L.L.P., James E. Brown, James E. Brown & Associates, PLLC, James E. Williams, Elizabeth T. Jester, Jester & Williams, Laura Nicole Rinaldi, Matthew I. Fraidin, Tracy L. Goodman, The Children's Law Center, Jesse P. Goode, Department Of Human Services, Office of General Counsel-St. Elizabeths, Angela T'nia Green, Premier Legal Services LLC, Joseph B. Tulman, University Of DC, David A. Clarke School of Law, Ronald Lee Drake, Margaret A. Kohn, Donna L. Wulkan, Travis A. Murrell, Anna Elizabeth Jenefsky, Karen D. Alvarez, Arthur Hughes Fawcett, Jr., Washington, DC, Paul Leonard Chassy, Chassy & Chassy, Kensington, MD, Daniel Adlai Katz, Andalman & Flynn, Silver Spring, MD, Paul S. Dalton, Ellen Douglass Dalton, William E. Houston, Dalton, Dalton & Houston, P.C., Alexandria, VA, Diana Marjorie Savit, Savit & Szymkowicz, LLP, Bethesda, MD, Matthew B. Bogin, Rockville, MD, for Plaintiffs. Julius Lyons, Pro Se. Amy Caspari, Richard Allan Latterell, Daniel Albert Rezneck, Maria L. Merkowitz, Veronica A. Porter, Edward P. Taptich, Office of the Attorney General for the District Of Columbia, Cary D. Pollak, Robert Ray Rigsby, Office of Corporation Counsel, D.C., Daniel Herbert Margolis, Patton Boggs LLP, Jeffery Thomas Infelise, 4 U.S. Securities & Exchange Commission, Lisa Annette Bell, O'Riordan, Bethal Law Firm, LLP, Robert C. Utiger, DC Attorney General, Cathye Hopkins, Veleter Mazych, DCPS General Counsel, Peter J. Nickles, DC Government, Washington, DC, Laurie Pouzzner McManus, Arlington, VA, for Defendants. MEMORANDUM OPINION AND ORDER PAUL L. FRIEDMAN, District Judge. The District of Columbia is far from achieving compliance with the August 24, 2006, 2006 WL 2456413, Consent Decree. The Report of the Evaluation Team for the 2007/08 School Year, filed on August 28, 2008, (the "Evaluation Team Report") identifies key areas of deficiency. The District of Columbia does not dispute these findings of deficiency, either in its own Status Report or through counsel at the September 3, 2008 status hearing. See Status Report of the District of Columbia at 2 ("[T]he District fully supports the views, findings, and recommendations in the Evaluation Team's report."). The Consent Decree is both a binding court order and a contract. The fact that District of Columbia school officials have many other pressing responsibilities does not justify the lack of progress made toward achieving compliance. The Court is concerned that the District of Columbia has failed to meet the requirement of the Consent Decree in part because the District has not made those requirements a priority and has not tasked particular individuals within the District of Columbia Public Schools ("DCPS") or the Office of the State Superintendent of Education ("OSSE") with day-to-day, hands-on responsibility for the specific tasks necessary to achieve the requirements of the Consent Decree. Nor does it appear that the District of Columbia has made particular individuals accountable for the failure to meet the requirements of the Consent Decree. Indeed, it is not even clear to the Court whether, even though OSSE as the state education agency has ultimate responsibility for compliance with the IDEA, it is DCPS or OSSE that is responsible for implementing certain Consent Decree requirements, much less which individuals within DCPS and OSSE bear these responsibilities. For these reasons, as the Court announced at the September 3, 2008 status conference, the Court will require DCPS Chancellor Michelle Rhee and Deborah Gist, State Superintendent of Education, to give testimony regarding the District of Columbia's plan for ensuring coordinated implementation of the requirements of the Consent Decree, the Evaluation Team Report's recommendations, and related provisions of the parties' Alternative Dispute Resolution ("ADR") agreement. This hearing will take place on October 20, 2008, at 9:00 a.m. Counsel and the Evaluation Team should also be prepared to comment on the testimony provided and may, if they wish, submit additional questions in advance for the Court's consideration. Chancellor Rhee and Superintendent Gist should be prepared to address the following questions and areas of inquiry in their testimony. I. COMPLIANCE AND ACCOUNTABILITY 1. How do you personally track progress toward compliance with the Consent Decree? What, if any, reports do you receive? If you receive reports, how frequent are they? What measures do you use to track progress? How do you ensure corrective action is taken when needed? 2. Is there a written document or documents within DCPS or OSSE that 5 set forth with specificity who is responsible, on a day-to-day basis for implementing each of the specific requirements of the Consent Decree, to whom each person reports with respect to each paragraph, and who within the entity is ultimately accountable to the Chancellor and the Superintendent for ensuring that compliance is achieved? Please bring copies of those documents to the October 20, 2008 hearing. 3. Does either DCPS or OSSE have an internal compliance officer for the Consent Decree? If so, please explain this individual's role, scope of authority, allocated resources and performance measures and provide a copy of the documents setting forth that person's responsibilities. If there is no such official, why not? 4. What role, if any, does the DCPS/OSSE General Counsel take in monitoring agency compliance with the obligations imposed by the Consent Decree? 5. What role, if any, does the Office of the Attorney General ("OAG") take in monitoring agency compliance with the obligations imposed by the Consent Decree? II. COMPLIANCE WITH SPECIFIC CONSENT DECREE REQUIREMENTS For each of the specific Consent Decree requirements listed below, Chancellor Rhee and Superintendent Gist should be prepared to identify the individual(s) who has daily operational responsibility for bringing the District into compliance. If the responsibilities of individuals at OSSE and DCPS overlap, what are the differences in their roles and how are efforts coordinated? Who has lead or primary responsibility for ensuring that compliance is achieved? To whom does he or she report? For the individuals identified as having primary responsibility for the various Consent Decree requirements, please identify: a. What is the individual's scope of authority to implement the task? b. What staff and resources are available to the individual? c. What performance measures are used to track progress toward compliance? When were they developed? d. To whom are progress reports and performance measures provided and with what frequency? From what date have such reports become available or will they become available? e. What is the process for taking corrective action based on progress reports and performance measures? 1. Timely issuance of HODs and SAs (Superintendent Gist only) a. Timely issuance of Hearing Officer Decisions ("HODs") and Settlement Agreements ("SAs"), consistent with the Consent Decree performance measures. See Consent Decree ¶¶ 28-30. b. Management and data tracking of filed complaints and issuance of HODs and SAs. See Consent Decree ¶¶ 31-32; 55(b), 60. c. Oversight and management of the Student Hearing Office ("SHO") to ensure that the SHO conducts hearings in a timely and professional manner. See Consent Decree ¶¶ 54-55. 2. Timely Implementation of HODs/SAs a. Timely implementation of HODs and SAs, consistent with the Consent 6 Decree performance measures. See Consent Decree ¶¶ 40-48. b. Management and data tracking of implementation of all HODs and SAs. See Consent Decree ¶¶ 52, 60-66. c. Implementation of the Backlog Reduction Plan agreed upon in the January 18, 2008 ADR notice. d. Compliance with the Action Plan's specification that an additional seventy full time equivalent positions will be created and filled. See Consent Decree ¶ 51; Consent Decree, Exhibit A. e. Investment and tracking of $5 million additional funds to achieve timely implementation of HODs/SAs. See Consent Decree ¶ 50. f. Ensure timely assessments and development of students' annual Individual Education Programs ("IEPs"), as provided in the Action Plan. See Consent Decree, Exhibit A. g. Implementation of the Case Management provisions of the ADR agreement to provide a foundation for ensuring timely implementation of HOD/SAs and early resolution of issues giving rise to parent due process complaints. 3. Data Systems a. Maintenance of an accurate and reliable student data system that allows DCPS to track: (a) implementation of HODS/SAs and to identify impediments to timely implementation; and (b) the delivery of related services to students on an individual basis, lapses in the service delivery, and systemic actions taken to address related services lapses. See Consent Decree ¶¶ 60, 63, 65. b. Provision of regular and reliable data reporting, consistent with the requirements of the Consent Decree. See Consent Decree ¶¶ 117-122, 125. 4. Compensatory Services a. Timely identification of compensatory service needs and provision of compensatory services to Blackman/Jones class members. See Consent Decree ¶¶ 74-82. 5. Charter Schools a. Full integration of charter schools into the District of Columbia's support and accountability process for ensuring their compliance with the provisions of the Consent Decree and underlying requirements under the Individuals with Disabilities Education Act. b. OSSE's plans for assuming greater responsibility for review and investigation, where appropriate, of the charter schools' delivery of special education services. 6. Implementation of recommendations in the Evaluation Team's Report of August 28, 2008. See Evaluation Team Report at 68-70. 7. The extent to which staffing and hiring issues at the OSSE may preclude effective exercise of OSSE's legal responsibility for ensuring special education compliance within the District of Columbia. (Superintendent Gist only). 8. OSSE's plans as the State Education Agency to assume greater responsibility for review and investigation, where appropriate, of DCPS' delivery of special education services. Chancellor Rhee and Superintendent Gist are encouraged to bring documents with them (or file them in advance) that will elucidate, document or support their oral testimony. *7 Counsel for both sides may file additional questions on or before October 14, 2008, that they seek to have the Court address to Chancellor Rhee and Superintendent Gist. SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3072139/	IN THE TENTH COURT OF APPEALS No. 10-14-00050-CV IN THE INTEREST OF D.H., D.H., N.H., AND H.H., CHILDREN From the 74th District Court McLennan County, Texas Trial Court No. 2012-4969-3 MEMORANDUM OPINION William H. appeals from the termination of his parental rights to his two children, N.H. and H.H. In his sole issue, William complains that the evidence was legally insufficient to support the trial court's finding that termination of his parental rights was in the children's best interest. Because we find that the evidence was legally sufficient, we affirm the judgment of the trial court.1 Legal Sufficiency William complains that the evidence was legally insufficient for the trial court to have found that terminating his parental rights was in the children's best interest 1 Lacresha, the mother of all four of the children signed an affidavit of relinquishment of parental rights and her parental rights were terminated. The parental rights of the father of D.H. and D.H. were also terminated. Neither parent is a party to this appeal. because he had completed a substantial part of his parenting plan, was bonded with his infant children, had a stable job, and had a stable residence with his ex-wife, who was not the mother of N.H. and H.H. When the legal sufficiency of the evidence is challenged, we look at all the evidence in the light most favorable to the trial court's finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). "To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. "If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient." Id. at 344- 45. In determining whether termination of William's parental rights was in the children's best interest, we consider the well-established Holley factors. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). There is no requirement that the Department In the Interest of D.H., D.H., N.H., and H.H., Children Page 2 prove all these factors as a condition precedent to parental termination, and the absence of evidence about some factors does not preclude a factfinder from reasonably forming a strong conviction that termination is in the children's best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Evidence establishing one of the predicate grounds under section 161.001(1) also may be relevant to determining the best interest of the child. See In re C.H., 89 S.W.3d at 27-28. N.H. and H.H., twin girls, were removed from the care of William and Lacresha because of allegations of domestic violence between William and Lacresha. Lacresha told the investigating caseworker that William had dropped H.H. during an altercation. H.H. was an infant at the time. There were other allegations of domestic violence that were witnessed by the older children in the home. William has a fairly extensive criminal history for primarily domestic violence-related cases and spent time in jail twice during the pendency of the case, once receiving time served for a class C assault charge. William admitted to residing in multiple locations during the pendency of the case, including his stints in jail, and was currently residing with his ex-wife, Jana, and her three older children in a two-bedroom apartment. Although he did complete parenting classes and anger management in his service plan, William did not pay any of his court-ordered child support during the pendency of the case because he felt that since the Department had the children it was not necessary. William's driver's license In the Interest of D.H., D.H., N.H., and H.H., Children Page 3 had been suspended yet he continued to drive, even though he knew that it could result in another arrest. During the pendency of the case, Dr. Shinder completed two psychological evaluations of William and also was William's therapist and provider of parenting and anger management classes. Shinder testified that William suffers from antisocial personality disorder, was found to have high levels of verbal aggression and hostility, and also shows a significant problem with "blame externalization." Shinder explained that William blames others for his problems, does not learn from his mistakes, and has great difficulty in social interactions. Shinder was concerned that because of these issues, William would be unable to work with physicians, teachers, and other professionals as needed with N.H. and H.H., who were born prematurely. Shinder stated that William would also be unlikely to follow recommendations of those individuals. Shinder's opinion was that "the bottom line reality is [William] cannot independently care for [N.H. and H.H.]." N.H. and H.H. were in a relative placement in a licensed foster home with their siblings, D.H. and D.H. N.H. and H.H. had improved significantly and were very bonded with their foster parents. The foster parents were interested in adopting N.H. and H.H. and the Department's recommendation was that William's parental rights be terminated so that the foster parents could adopt them. In the Interest of D.H., D.H., N.H., and H.H., Children Page 4 Viewing all of the evidence in the light most favorable to the trial court's finding that termination was in the children's best interest, we find that a reasonable trier of fact could have formed a firm belief or conviction that termination of William's parental rights was in the best interest of the children. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). The evidence was legally sufficient to support the trial court's finding. We overrule William's sole issue. Conclusion Having found no reversible error, we affirm the judgment of the trial court. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed May 8, 2014 [CV06] In the Interest of D.H., D.H., N.H., and H.H., Children Page 5	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/3119152/	Affirm and Opinion filed November 28, 2012. iii The (!.tntrt uf Apra1 FiftIi iiitrirt uf xa at 1atkui No. 05-i i-00893-CV ROBERT J. COLLiNS, Appellant V. CHRIS GREEN, Appdllee On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. 09-17367 MEMORANDUM OPINION Before Justices Richter, Lang-Miers, and Myers Opinion By Justice Lang-Miers Pro se appellant/attorney Robert J. Collins appeals from a post-answer default judgment rendered against him in a legal malpractice lawsuit. In his sole issue on appeal, he contends that the trial court abused its discretion by denying his motion for new trial. We affirm the trial court’s judgment. Appellee Chris Green filed a lawsuit against appellant, his attorney, alleging claims for professional negligence and breach of fiduciary duty. Although appellant filed an answer, he did not appear for trial.t Green tried his case to the court. He testified that he paid appellant $1,500 to file The final judgment states that appellant appeared pro se and announced ready for trial. The record shows, however, that he did not appear. The t conflict between the final judgment and the record does not affect our analysis. a lawsuit on his hehal I against NIi Ian lioyanich. a California resident with whom Green had a dispute, seeking the return of$30,000 Green paid Boyanich in a deal that fell through. Green testified that he also agreed to pay appellant a percentage of his recovery. Green testified that appellant filed the lawsuit against Boyanich in Dallas County and attempted to serve Boyanich by mail. but the citation was returned undelivered. Appellant never served Boyanich, and the trial court eventually dismissed the case for want of prosecution. Appellant told Green on numerous occasions, even after the lawsuit had been dismissed, that he was still trying to serve Boyanich. Appellant never tried to have the court reinstate the case after it was dismissed and. by the time Green learned about the dismissal, his claim was time barred. After hearing the evidence, the trial court ruled in favor of Green and rendered judgment against appellant in the amount of $31,500 plus pre- and post- judgment interest. Appellant filed a motion for new trial, which was overruled by operation of law. On appeal, appellant raises a single issue: Whether or not the Trial Court abused it’s [sic] discretion in not granting Appellant’s Motion for New Trial because Appellee failed to prove an element of his cause of action for professional negligence. Appellant contends that the judgment must be reversed because Green did not prove that the damages in the underlying case would have been collectible. See Akin, Gump, Strauss, Hatier & Feld, L.L.P. v. Nat’! Dcv, & Research Coip., 299 S.W.3d 106, 112 (Tex. 2009) (stating when plaintiff sues his lawyer alleging lawyer improperly represented him in another case, he “must prove and obtain findings as to the amount of damages that would have been recoverable and collectible if the other case had been properly prosecuted”). We do not need to decide that issue, however, because appellant did not challenge all independent grounds upon which the judgment could have been rendered. See Britton v. Tex. Dep ‘t ofCrim. Justice, 95 S.W.3d 676, 681 (Tex. App—Houston [1st Dist.] 2002, no pet.) (“Generally speaking, an appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment.”); see also Fed. Deposit Ins. Corp. v. LenA, 361 S.W.3d 602,604 (Tex. 2012) rWhen a party. . . waives an argument on appeal, an appellate court may not consider the. . . waived issue.”). Green alleged claims against appellant for professional negligence and breach of fiduciary duty. The judgment did not state the specific claim upon which it was granted. Consequently, appellant must challenge each independent ground supporting the judgment. Sec Lenk. 361 S.W.3d at 604; Briuon, 95 S.W.3d at 681. In his brief; however, appellant does not cite the standard of review for a claim for breach of fiduciary duty, does not perform an analysis ofthe evidence on that issue, and does not otherwise indicate that he is complaining about the evidence on that claim. Because appellant did not attack all independent grounds supporting thejudgment. we affirm the trial court’sjudgment See LenA, 361 S.W.3d at 604; Walling v. Metca(fe, 863 S.W.2d 56.58 (Tex. 1993) (appellate court generally cannot reverse for reason not assigned as error on appeal); Dallas CnIy. v. Crestview Corners Car Wash, 370 S.W.3d 25,56-57 (rex. App.—DalIas 2012, pet denied) (op. on reh’g) (“an appellate court has no discretion to fhbricate an issue not raised in the appellant’s brief’) (quoting Bankhead i’. Maddox, 135 S.W.3d 162, 163—64 (Tex. App.—Tyler 2004, no pet)). The trial court’s judgment is affirmed. 1 l0893F.P05 -3- (!niirt tif 1t1ci1 Fift1! Ditrirt nf Lixwi it t11ui JUDGMENT ROBERT J. COLLINS, Appellant Appeal from the 1 34th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. No. 05-1 1 -00893-CV 09-17367). Opinion delivered by Justice Lang—Miers, CHRIS GREEN. Appellee Justices Richter and Myers participating. In accordance with this Court’s opinion of this date, the judgment of the trial court is A1’FIRMEI). It is ORDERED that appellee Chris Green recover his costs of this appeal from appellant Robert J. Collins. Judgment entered November 28, 2012. / / 1 / j / I p / ELIZABETH LANG-MR JUSTICE	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/2227222/	383 N.W.2d 755 (1986) 222 Neb. 330 FIRST NATIONAL BANK IN ORD, Nebraska, Appellee and Cross-Appellant, v. J.H. SCHROEDER, Individually, and J.H. Schroeder Family Trust, Appellants and Cross-Appellees. No. 84-904. Supreme Court of Nebraska. March 28, 1986. 756 Curtis A. Sikyta, Ord, for appellants and cross-appellees. Robert E. Wheeler, Ord, for appellee and cross-appellant. KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ. HASTINGS, Justice. J.H. Schroeder and the J.H. Schroeder Family Trust appeal the judgment of the district court which, in response to plaintiff's petition in the nature of a creditor's bill, decreed that the defendant trust was null and void. In March of 1978 J.H. Schroeder transferred substantially all of his assets to the J.H. Schroeder Family Trust (hereinafter trust), which he created. In exchange for the property, Schroeder received a certificate of beneficial interest for 100 units, representing the "entire ... value of the trust." Both before and after the creation of the trust, the First National Bank in Ord carried on a business relationship with Schroeder. This relationship existed with Schroeder 757 in his personal capacity, and essentially the trust was disregarded. In September of 1982 the bank obtained a judgment against Schroeder on a note. Thereafter, the bank executed on the judgment and it was returned unsatisfied. The bank then filed this action to set aside the trust. Although finding in favor of the defendants on four causes of action, including the bank's allegations that the trust was invalid due to fraudulent conveyances, the court did rule for the bank on its claim that the trust was void in failing sufficiently to specify beneficiaries. The trustees were ordered to hold the assets in a constructive trust for J.H. Schroeder. The defendants appeal, and the plaintiff cross-appeals based on the court's dismissal of its other four causes of action. However, because we affirm the judgment of the trial court on its finding against the defendants, it is unnecessary to consider the cross-appeal. "A trust is not created unless there is a beneficiary who is definitely ascertained at the time of the creation of the trust or definitely ascertainable within the period of the rule against perpetuities." Restatement (Second) of Trusts § 112 at 243 (1959). The trust created by Schroeder does not identify the beneficiaries nor provide a method for determining who the beneficiaries were intended to be. The trust provides: CERTIFICATES OF BENEFICIAL INTEREST The Beneficial Interests, as a convenience, for distribution are divided into One Hundred (100) Units, substantially in the certificate form hereto attached. They are non-assessable, non-taxable ... non-negotiable but transferable; and the lawful possessor thereof shall be construed the true and lawful owner thereof.... The trust document contains no provision indicating who is to receive the certificates of beneficial interest, nor does it empower the trustees to make that determination. Schroeder argues that because the trust provides that the possessor of a beneficial interest certificate is the "true and lawful owner thereof" and that the trust in fact transferred the certificate of 100 units of beneficial interest to him, the beneficiaries were at all times ascertainable. Schroeder misses the point that `[i]t is essential to the creation and existence of a trust that a ... beneficiary ... be designated with sufficient clarity and certainty to be capable of identification, although not necessarily by name...." (Emphasis supplied.) 76 Am.Jur.2d Trusts § 135 at 377 (1975). The trust simply designates the owner as the beneficiary without providing how possession and ownership shall occur. Resultingly, the trust, on its face, does not adequately identify its beneficiaries and therefore must fail. The trial court's ruling in this regard is correct and makes it unnecessary to address whether the trust violated the rule against perpetuities. The defendants also assigned as error the trial court's failure to grant a continuance due to the absence of a material witness. "A motion for continuance is addressed to the sound discretion of the court, and in the absence of a showing of an abuse of discretion, a ruling on a motion for a continuance will not be disturbed on appeal." In re Interest of M., 215 Neb. 383, 390, 338 N.W.2d 764, 769 (1983). To warrant a continuance because of the absence of a witness or evidence, the expected evidence must be credible and such as probably to affect the result. The absence of evidence that plainly cannot alter the result of the action is clearly no ground for a motion to continue a cause. 17 C.J.S. Continuances § 51 at 428 (1963). Accord Life Insurance Clearing Co. v. Altschuler, 55 Neb. 341, 75 N.W. 862 (1898). *758 In the case at bar the trial court determined as a matter of law that the trust document was insufficient to establish a trust. The defendants' witness, who was to testify primarily about the administration of the trust, could in no way have altered that result. There was no abuse of discretion in denying the continuance. We affirm the decree of the trial court declaring that the J.H. Schroeder Family Trust is void and that "its assets are held by the Trustees in Constructive Trust for J.H. Schroeder." AFFIRMED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499356/	(2008) Michael S. GALLEGOS, Petitioner, v. Dora B. SCHRIRO, et al., Respondents. No. CV-01-1909-PHX-NVW. United States District Court, D. Arizona. September 29, 2008. MEMORANDUM OF DECISION AND ORDER NEIL V. WAKE, District Judge. Before the Court is Petitioner Michael S. Gallegos's amended petition for writ of habeas corpus. (Dkt.74.)[1] Petitioner alleges, pursuant to 28 U.S.C. 2254, that he was convicted and sentenced to death in violation of the United States Constitution. (Id.) The amended petition raised 33 claims for relief. (Id.) Respondents filed an answer to the petition and Petitioner filed a traverse. (Dkts.68, 86.) In an order denying Petitioner's requests for evidentiary development, the Court dismissed Claim 30 based on a procedural bar, Claim 31 on the merits, Claim 32 for failure to state a cognizable ground for habeas relief, and Claim 33 as premature.[2] (Dkt.106.) This Order addresses the procedural status and/or the merits of the remaining claims and concludes, for the reasons set forth below, that Petitioner is not entitled to habeas relief. BACKGROUND In 1991, Petitioner was tried and convicted for the first degree murder of, and sexual conduct with, eight-year-old Kendall Wishon.[3] The victim lived with her mother, Cynthia Wishon, and Petitioner's brother Jerry Gallegos (Gallegos) in Phoenix. In November 1989, the victim's half-brother, George Smallwood, moved to Flagstaff to live with Petitioner and Petitioner's family. Petitioner's parents became Smallwood's legal guardians. Petitioner and Smallwood were friends and attended high school together. Smallwood visited his mother, Mrs. Wishon, and his half-sister, the victim, in Phoenix during holidays, and Petitioner sometimes accompanied him. Petitioner and Smallwood were on spring break in March 1990 and spent the week in the victim's home in Phoenix. They worked on their respective vehicles most of that week. In the afternoons, they were responsible for supervising the victim when she came home from school because both Mrs. Wishon and Gallegos worked during the day. Gallegos worked at a truck and trailer repair shop in Phoenix. On Thursday, March 15, 1990, at about 4:30 p.m., Petitioner and Smallwood went to Gallegos's repair shop to work on their vehicles. After the other employees left for the day, Gallegos supervised both Petitioner's and Smallwood's repair work. They drank some beer and worked on their vehicles until about 9:30 p.m. On their way home, Gallegos purchased a case of beer. They arrived home about 10:00 p.m. and continued working on the vehicles until about 10:30. During this time, Gallegos shared a couple of beers from his case with them. When Petitioner and Smallwood came into the house at about 10:30 p.m., the victim was bathing; she went to bed shortly thereafter. Mrs. Wishon stopped by the victim's room to kiss her goodnight on her way to bed. Gallegos took a shower and then played a video game with Petitioner and Smallwood before he retired at about 11:30 p.m. On his way to bed, Gallegos checked the case of beer and found that the case was all "basically there." As to the events that transpired later that night, Petitioner confessed on two occasions and testified at trial as follows. After Gallegos retired, Petitioner and Smallwood continued playing video games and drank more beer. Petitioner suggested that they go into the victim's room to fondle her; Smallwood agreed. Once they were inside the victim's room, Petitioner lifted her nightgown and rubbed baby oil on the small of her back. According to Petitioner, when the girl began to awaken, Smallwood put his hand over her mouth and Petitioner put his hand over Smallwood's hand and over the victim's nose. She gasped for air, struggled, and made sounds "like a little pig" before eventually going limp. Believing that the victim was dead, Petitioner and Smallwood decided to "finish her off." They pulled her body off the bed and placed her on the floor. According to Petitioner, Smallwood attempted to insert his penis into the victim's vagina. Petitioner then had anal intercourse with her for 15 to 20 minutes. During this time, Petitioner testified, Smallwood stuck his penis inside the victim's mouth. After Petitioner completed the sex act, the two carried the victim's naked body out of the house and down the street where they dropped it under a tree. They returned to the house and went to bed. Early the next morning, Mrs. Wishon and Gallegos got up to go to work. The couple did not attempt to awaken the victim, who did not have school that day. Mrs. Wishon went into Petitioner and Smallwood's room to give them money to buy milk. Smallwood took the money and went to the store. When he returned, Petitioner went outside to work on his vehicle. After talking with Petitioner, Smallwood called Mrs. Wishon at work and told her the victim was missing. Mrs. Wishon left work and arrived back at the house at about 10:00 a.m. Smallwood also contacted Gallegos and the police. When Gallegos and the police arrived, they began an extensive search of the neighborhood. Petitioner and Smallwood participated in the search but deliberately avoided the area where they had dropped the victim's body. At around 1:00 p.m., an unidentified boy alerted the police as to the body's location. The police found the victim's naked body under the tree where it had been left the night before. Petitioner's confessions and testimony in his own defense are the only evidence implicating Smallwood. The victim's body was located 250 feet from the house. The victim was lying supine with her legs spread apart. The body was dirty and covered with grass. There was obvious trauma to the vaginal area and some type of oil located on one leg and in the vaginal area. The victim had sustained contusions to the left side of her face, her forehead, her right eye, and the right side of her nose. The medical examiner determined that the victim died of asphyxiation due to suffocation. He testified at trial that the victim's rectum was "marketedly dilated" and that the anal trauma occurred while the victim was alive. He noted that the victim had various bruises and abrasions on her face and body, some of which were red, indicating that they occurred while the victim was still alive. She had also suffered a blunt force injury to her head. Mrs. Wishon testified that, before the night of the murder, the victim had no noticeable bruises or marks. The police searched the victim's house and seized numerous articles of evidence, including her underwear, nightshirt, and bed sheet. In the kitchen, the police found an empty beer bottle and two empty cardboard beer cartons in a plastic trash container. They also found two empty beer cans on the dishwasher and noted several hard liquor bottles on the kitchen shelves. In the carport, the police found another empty beer can and a large cardboard box filled with empty beer and soda cans. The police photographed the victim's room and dusted it for fingerprints. Because the house showed no signs of forced entry, the investigation focused on Petitioner and Smallwood. The police transported them to the police station for questioning. Detectives Armando Saldate, Jr., and Michael Chambers escorted them into separate interview rooms. Detective Saldate advised Petitioner of his Miranda rights and then questioned him while Detective Chambers questioned Smallwood. After initially denying any involvement in the victim's death, Petitioner confessed to Detective Saldate. He later confessed a second time in the presence of both Detective Saldate and Detective Chambers. The trial court determined that these confessions were voluntary. When Smallwood was confronted with Petitioner's confessions, he denied any involvement in the victim's death. He stated that if Petitioner had implicated him, it was only because he did not want to take the blame alone. The two were subsequently indicted for the murder and sexual molestation of the victim. The State submitted blood samples taken from Petitioner and Smallwood, along with the evidence obtained at the crime scene, to a forensic laboratory for DNA testing. The lab later notified the State that Smallwood could not be included as a contributor to the evidence. The State dismissed the case against Smallwood based on insufficient evidence. During Petitioner's trial, the parties stipulated that a fingerprint removed from the victim's bedroom matched Petitioner's right middle finger; that semen was detected on the victim's panties, nightshirt, and bed sheet; that DNA testing showed that the stain on the victim's panties contained a banding pattern that matched the pattern obtained from Petitioner's blood; and that the probability that an individual other than Petitioner was the source of the stain on the victim's panties was one in 10 million for Caucasians and one in 67 million for Hispanics. Petitioner took the stand in his own defense and testified that he participated in the victim's death. He maintained that he was drunk and did not intend to kill her. He also testified that he believed the victim was dead at the time of the sexual penetration. On cross-examination, he was unable to explain the various bruises and abrasions on the victim's body. Petitioner was prepared to call Smallwood as a witness, but on the advice of counsel Smallwood invoked his Fifth Amendment right not to testify. The jury unanimously found Petitioner guilty of first degree murder and sexual conduct with a minor. The jury was divided, however, on whether the murder was premeditated or felony murder. In sentencing Petitioner, the trial judge found two aggravating circumstances, that Petitioner committed the murder in an especially heinous, cruel, or depraved manner, and that he was an adult at the time of the offense and the victim was under 15 years of age. The judge found one statutory mitigating factor, Petitioner's age of 18, and two non-statutory mitigating factors, Petitioner's remorse and the recommendations of leniency from Detectives Saldate and Chambers. After considering each of the mitigating circumstances, the trial judge found that they were not sufficiently substantial to outweigh the aggravating factors and call for leniency. The judge, noting that "[e]ach aggravating circumstance standing alone outweighs the total mitigation," sentenced Petitioner to death for the murder. The Arizona Supreme Court affirmed the conviction on direct appeal but reversed and remanded for resentencing, holding that the trial court had failed to consider whether Petitioner's impairment at the time of the crime, coupled with his history of drug and alcohol abuse, constituted a non-statutory mitigating circumstance. State v. Gallegos, 178 Ariz. 1, 5, 21, 870 P.2d 1097, 1101, 1117 (1994) (Gallegos I). A resentencing hearing was held by the trial court on October 24, 1994.[4] The court found that Petitioner's impairment and history of alcohol and drug abuse constituted additional non-statutory mitigation. However, it concluded that the mitigating circumstances were not sufficiently substantial to call for leniency and re-sentenced Petitioner to death. The Arizona Supreme Court affirmed. See State v. Gallegos, 185 Ariz. 340, 343, 916 P.2d 1056, 1059 (1996) (Gallegos II). Petitioner thereafter filed a petition for state post-conviction relief (PCR) and a supplemental petition in the trial court. (PCR docs. 188, 204.)[5] The court denied relief on most of the claims, but set an evidentiary hearing regarding Petitioner's claims of ineffective assistance of counsel. (ME 9/28/00.) Following the evidentiary hearing, the court denied those claims on the merits. (PCR doc. 227; see PR doc. 10.) Petitioner filed a petition for review in the Arizona Supreme Court, which summarily denied relief. (PR docs. 1, 12). Thereafter, Petitioner initiated the instant habeas proceedings. EXHAUSTION AND PROCEDURAL DEFAULT A writ of habeas corpus may not be granted unless it appears that a petitioner has exhausted all available state court remedies. 28 U.S.C. 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). To exhaust state remedies, a petitioner must "fairly present" the operative facts and the federal legal theory of his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999); Anderson v. Harless, 459 U.S. 4, 6, 103 S. Ct. 276, 74 L. Ed. 2d 3 (1982); Picard v. Connor, 404 U.S. 270, 277-78, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). The principle of exhaustion requires that a petitioner clearly alert the state court that he is alleging a specific federal constitutional violation. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir.2004); see also Gray v. Netherland, 518 U.S. 152, 163, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996) (general appeal to due process not sufficient to present substance of federal claim); Lyons v. Crawford, 232 F.3d 666, 669-70 (2000), as amended by 247 F.3d 904 (9th Cir.2001) (general reference to insufficiency of evidence, right to be tried by impartial jury, and ineffective assistance of counsel lacked specificity and explicitness required); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999) ("The mere similarity between a claim of state and federal error is insufficient to establish exhaustion."). A petitioner must make the federal basis of a claim explicit either by citing specific provisions of federal law or case law, Lyons, 232 F.3d at 670, or by citing state cases that plainly analyze the federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir.2003) (en banc); cf. Fields v. Washington, 401 F.3d 1018, 1022 (9th Cir.2005) (mere citation to a state case that conducts both a state and federal law analysis does not, by itself, satisfy exhaustion). In Arizona, there are two procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and post-conviction relief proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner is precluded from relief on any claim that could have been raised on appeal or in a prior PCR petition. Ariz. R.Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a) may be avoided only if a claim falls within certain exceptions and the petitioner can justify why the claim was omitted from a prior petition or not presented in a timely manner. See Ariz. R.Crim. P. 32.1(d)-(h), 32.2(b), 32.4(a). A habeas petitioner's claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30, 111 S. Ct. 2546. The procedural bar relied on by the state court must be independent of federal law and adequate to warrant preclusion of federal review. See Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989). Arizona's preclusion rule is independent of federal law, see Stewart v. Smith, 536 U.S. 856, 860, 122 S. Ct. 2578, 153 L. Ed. 2d 762 (2002) (per curiam), and the Ninth Circuit has repeatedly determined that Arizona regularly and consistently applies its preclusion rules such that they are an adequate bar to federal review of a claim. See Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir.1998) (finding Rule 32.2(a)(3) regularly followed and adequate); Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir.1997) (same). Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Coleman, 501 U.S. at 735 n. 1, 111 S. Ct. 2546; see also Ortiz, 149 F.3d at 931 (district court must consider whether the claim could be pursued by any presently available state remedy). If no remedies are currently available pursuant to Rule 32, the claim is "technically" exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n. 1, 111 S. Ct. 2546; see also Gray, 518 U.S. at 161-62, 116 S. Ct. 2074. Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984). As a general matter, the Court will not review the merits of a procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the failure to properly exhaust the claim in state court and prejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of justice would result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750, 111 S. Ct. 2546. Finally, pursuant to 28 U.S.C. 2254(b)(2), the Court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. 269, 277, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005) (holding that a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under 2254(b)(2) as "plainly meritless"). Therefore, the Court will undertake an analysis of the procedural status of Petitioner's claims only where necessary. AEDPA STANDARD FOR RELIEF Petitioner's habeas claims are governed by the applicable provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997). The AEDPA established a "substantially higher threshold for habeas relief" with the "acknowledged purpose of `reducing delays in the execution of state and federal criminal sentences.'" Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 1939-40, 167 L. Ed. 2d 836 (2007) (quoting Woodford v. Garceau, 538 U.S. 202, 206, 123 S. Ct. 1398, 155 L. Ed. 2d 363 (2003)). The AEDPA's "`highly deferential standard for evaluating state-court rulings' . . . demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002) (per curiam) (quoting Lindh, 521 U.S. at 333 n. 7, 117 S. Ct. 2059). Under the AEDPA, a petitioner is not entitled to habeas relief on any claim "adjudicated on the merits" by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. 2254(d). The phrase "adjudicated on the merits" refers to a decision resolving a party's claim which is based on the substance of the claim rather than on a procedural or other non-substantive ground. Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir.2004). The relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664 (9th Cir.2005). "The threshold question under AEDPA is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final." Williams v. Taylor, 529 U.S. 362, 390, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). Therefore, to assess a claim under subsection (d)(1), the Court must first identify the "clearly established Federal law," if any, that governs the sufficiency of the claims on habeas review. "Clearly established" federal law consists of the holdings of the Supreme Court at the time the petitioner's state court conviction became final. Williams, 529 U.S. at 365, 120 S. Ct. 1495; see Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 653, 166 L. Ed. 2d 482 (2006); Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003). Habeas relief cannot be granted if the Supreme Court has not "broken sufficient legal ground" on a constitutional principle advanced by a petitioner, even if lower federal courts have decided the issue. Williams, 529 U.S. at 381, 120 S. Ct. 1495; see Musladin, 127 S.Ct. at 654; Casey v. Moore, 386 F.3d 896, 907 (9th Cir.2004). Nevertheless, while only Supreme Court authority is binding, circuit court precedent may be "persuasive" in determining what law is clearly established and whether a state court applied that law unreasonably. Clark, 331 F.3d at 1069. The Supreme Court has provided guidance in applying each prong of 2254(d)(1). The Court has explained that a state court decision is "contrary to" the Supreme Court's clearly established precedents if the decision applies a rule that contradicts the governing law set forth in those precedents, thereby reaching a conclusion opposite to that reached by the Supreme Court on a matter of law, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Williams, 529 U.S. at 405-06, 120 S. Ct. 1495; see Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per curiam). In characterizing the claims subject to analysis under the "contrary to" prong, the Court has observed that "a run-of-the-mill statecourt decision applying the correct legal rule to the facts of the prisoner's case would not fit comfortably within 2254(d)(1)'s `contrary to' clause." Williams, 529 U.S. at 406, 120 S. Ct. 1495; see Lambert, 393 F.3d at 974. Under the "unreasonable application" prong of 2254(d)(1), a federal habeas court may grant relief where a state court "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular . . . case" or "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407, 120 S. Ct. 1495. For a federal court to find a state court's application of Supreme Court precedent "unreasonable" under 2254(d)(1), the petitioner must show that the state court's decision was not merely incorrect or erroneous, but "objectively unreasonable." Id. at 409, 120 S. Ct. 1495; Landrigan, 127 S.Ct. at 1939; Visciotti, 537 U.S. at 25, 123 S. Ct. 357. Under the standard set forth in 2254(d)(2), habeas relief is available only if the state court decision was based on an unreasonable determination of the facts. Miller-El v. Dretke, 545 U.S. 231, 240, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005) (Miller-El II). A state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El, 537 U.S. 322, 340, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (Miller-El I); see Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.2004). In considering a challenge under 2254(d)(2), state court factual determinations are presumed to be correct, and a petitioner bears the "burden of rebutting this presumption by clear and convincing evidence." 28 U.S.C. 2254(e)(1); Landrigan, 127 S.Ct. at 1939-40; Miller-El II, 545 U.S. at 240, 125 S. Ct. 2317. But it is only the state court's factual findings, not its ultimate decision, that are subject to 2254(e)(1)'s presumption of correctness. Miller-El I, 537 U.S. at 341-42, 123 S. Ct. 1029 ("The clear and convincing evidence standard is found in 2254(e)(1), but that subsection pertains only to state court determinations of factual issues, rather than decisions."). As the Ninth Circuit has noted, application of the foregoing standards presents difficulties when the state court decided the merits of a claim without providing its rationale. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002); Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir.2000). In those circumstances, a federal court independently reviews the record to assess whether the state court decision was objectively unreasonable under controlling federal law. Himes, 336 F.3d at 853; Pirtle, 313 F.3d at 1167. Although the record is reviewed independently, a federal court nevertheless defers to the state court's ultimate decision. Pirtle, 313 F.3d at 1167 (citing Delgado, 223 F.3d at 981-82); see also Himes, 336 F.3d at 853. Only when a state court did not decide the merits of a properly raised claim will the claim be reviewed de novo, because in that circumstance "there is no state court decision on [the] issue to which to accord deference." Pirtle, 313 F.3d at 1167; see also Menendez v. Terhune, 422 F.3d 1012, 1025-26 (9th Cir. 2005); Nulph v. Cook, 333 F.3d 1052, 1056-57 (9th Cir.2003). DISCUSSION Claim 1 Violation of Ring v. Arizona Petitioner contends that he was entitled to be sentenced by a jury under Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). (Dkt. 74 at 33-35.) In Ring, the Supreme Court held that Arizona's aggravating factors, as elements of the offense of capital murder, must be found by a jury. In Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004), however, the Court held that Ring does not apply retroactively to cases already final on direct review. Because direct review of Petitioner's case was final prior to Ring, he is not entitled to federal habeas relief premised on that ruling. Therefore, Claim 1 is without merit and will be denied. Claim 2 Judicial bias on resentencing Petitioner alleges that his due process right to a fair and impartial tribunal was violated because the trial judge was biased against him when he heard the case on remand.[6] (Dkt. 74 at 35-41.) For this proposition, Petitioner cites comments made by the judge indicating "antagonism" toward Petitioner and "contempt" for the resentencing proceedings. (Id. at 35-36.) He further contends that judicial bias was manifest in the "procedural irregularities" that occurred on resentencing ÔÇö namely, the judge's failure to hold a "separate" sentencing hearing after receiving the new mitigation evidence. (Id. at 36.) Respondents counter that the claim is unexhausted and meritless. Background At the end of the resentencing hearing, the victim's mother made a statement to the court in which she described the emotional trauma caused by the ongoing legal process, stating that "every time something like this comes up, it's just one more knife that gets jabbed into me and my family and friends . . . and it's a constant never ending hell." (RT 10/24/94 at 171-72.) She concluded, "I beg of you not to change anything that has been handed down already, because with all this going on, there seems like there's no end, that there's just no end." (Id. at 172.) The trial judge responded with the following comments, which included a reference to the dissenting opinion in Gallegos I: Let me apologize to everyone involved here for the obvious emotional trauma. Here we are these many years later and the matter has to be dragged up again. Justice Martone has referred to this ÔÇö coming back to this court for resentencing as a triumph of form over substance. This is simply a legal exercise, technicality type of situation, and again I wanted to apologize to everyone for my part in the fact that the supreme court determined that a remand hearing was necessary. (Id. at 172.) After the parties' closing arguments, the judge proceeded to pronounce sentence. Prior to reading the portion of his special verdict dealing with nonstatutory mitigating factors, the judge remarked, "I honestly can say that I don't understand the Supreme Court's ruling, but I will abide by their ruling and I will do exactly that." (RT 10/24/94 at 188.) Citing testimony elicited at the resentencing hearing, the court found that Petitioner's impairment at the time of the murder and his history of substance abuse constituted a nonstatutory mitigating circumstance in addition to the circumstances previously found but concluded that all of mitigating evidence considered cumulatively was not sufficiently substantial to outweigh the aggravating factors and call for leniency. (Id. at 182-89.) In a final comment noted by Petitioner, the judge stated that "even if the Arizona Supreme Court told this court to weigh the alcohol and drug history and impairment ten times, this court would still find that each aggravating circumstance standing alone would outweigh all collective mitigation." (Id. at 189-90.) Analysis Petitioner asserts that he exhausted his claim of judicial bias by raising it in his initial and supplemental PCR petitions and in his petition for review (PR). (Dkts. 74 at 35, 86 at 35.) The Court disagrees and finds that the claim is procedurally barred. Petitioner's initial PCR petition contained the allegation that Judge Hotham should have recused himself at resentencing because he was unable or unwilling to "genuinely reweigh" the aggravating and mitigating circumstances and failed to do so. (PCR doc. 188 at 19.) The supplemental PCR petition raised the claim that "[t]here was no separate sentencing hearing, as required by law." (PCR doc. 204 at 21.) The PR simply alleged that the trial court erred because it "failed to exercise its discretion in weighing aggravating and mitigating circumstances on remand." (PR doc. 1 at 5.) The PR sought "review of all claims raised" in the PCR petitions (id. at 2) and included an appendix containing the petitions. In none of these filings did Petitioner allege a violation of his federal constitutional rights based upon the sentencing court's bias. The claim is therefore not exhausted. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir.2004); Gray v. Netherland, 518 U.S. 152, 163, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996). In addition, the PCR court found Petitioner's recusal claim "precluded pursuant to Rule 32.2(a)(3) (waived because not raised at trial or on appeal), and, alternatively was necessarily determined by Judge Reinstein in denying Defendant's motion for change of judge filed at the beginning of the post-conviction relief proceeding."[7] (PR doc. 10 at 1.) This preclusion ruling rests on an independent and adequate state procedural bar.[8]See Smith, 536 U.S. at 860, 122 S. Ct. 2578 (Arizona's Rule 32.2(a) is independent of federal law); Ortiz, 149 F.3d at 931-32 (Rule 32.2(a)(3) is an adequate procedural bar). As cause to overcome the default, Petitioner asserts the ineffectiveness of appellate counsel. (Dkt. 86 at 38.) Before ineffectiveness of appellate counsel may be used to establish cause for a procedural default, it must have been presented to the state court as an independent claim. See Edwards v. Carpenter, 529 U.S. 446, 451-53, 120 S. Ct. 1587, 146 L. Ed. 2d 518 (2000); Murray v. Carrier, 477 U.S. 478, 489-90, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir.1988). Petitioner contends (see Dkt. 86 at 38) that he exhausted a claim of ineffective assistance of appellate counsel by alleging, in his initial PCR petition, "The denial of the Constitutional Right of representations [sic] by a competent lawyer at every stage of the proceedings" (PCR doc. 188 at 2). The Court disagrees. The remainder of the initial PCR petition raises no claim of ineffectiveness of appellate counsel; nor does the supplemental PCR petition or the PR. (PCR doc's 188, 204; PR doc. 1.) Because the Arizona Supreme Court has not had a fair opportunity to rule on Petitioner's ineffectiveness claim alleged as cause, and Petitioner may not exhaust those claims now, such claims are technically exhausted but procedurally defaulted. See Gray, 518 U.S. at 161-62, 116 S. Ct. 2074; Coleman, 501 U.S. at 735 n. 1, 111 S. Ct. 2546. Therefore, Petitioner's allegations of ineffective appellate counsel cannot constitute cause to excuse the default. See Carpenter, 529 U.S. at 453, 120 S. Ct. 1587 (ineffective counsel as cause can itself be procedurally defaulted). Even if Petitioner had properly exhausted a claim of ineffective assistance of appellate counsel, he would not be entitled to relief on this claim. Where ineffective assistance of appellate counsel is raised as cause for excusing a procedural default, application of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), requires the Court to look to the merits of the omitted issue. Hain v. Gibson, 287 F.3d 1224, 1231 (10th Cir. 2002); United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995) (to determine if appellate counsel provided ineffective assistance by failing to raise an issue on appeal "we examine the merits of the omitted issue"). If the omitted issue is meritless, counsel's failure to appeal does not constitute a Sixth Amendment deprivation. Cook, 45 F.3d at 392-93. Because the Court has determined that the claim is without merit, the Court need not determine whether ineffective assistance of appellate counsel caused the default. To succeed on a judicial bias claim, a petitioner must "overcome a presumption of honesty and integrity in those serving as adjudicators." Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975). "In the absence of any evidence of some extrajudicial source of bias or partiality, neither adverse rulings nor impatient remarks are generally sufficient to overcome the presumption of judicial integrity, even if those remarks are `critical or disapproving of, or even hostile to, counsel, the parties, or their cases.'" Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir.2008) (quoting Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994)). In addition, as the Supreme Court explained in Liteky, "It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant." 510 U.S. at 555, 114 S. Ct. 1147; cf. Withrow, 421 U.S. at 57, 95 S. Ct. 1456 (having the same judge retry a case after remand does not violate due process). On federal habeas review, the Court "must ask whether the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution." Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir.1995). "To sustain a claim of this kind, there must be an `extremely high level of interference' by the trial judge which creates `a pervasive climate of partiality and unfairness.'" Id. (quoting United States v. DeLuca, 692 F.2d 1277, 1282 (9th Cir.1982)). Read in the context of the entire resentencing proceeding, the judge's comments neither suggested that he had a personal grievance against Petitioner nor created a pervasive climate of partiality and bias. As Respondents note, in apologizing for the necessity of holding the resentencing proceedings, the judge quoted from Judge Martone's dissent in Gallegos I. His comments were not directed against Petitioner but expressed frustration on behalf of the victim's family and regret at his role in prolonging the proceedings. The judge's other comments, while hyperbolic, simply reflect his conclusion regarding the weight to be ascribed to Petitioner's impairment and substance abuse history as a nonstatutory mitigating circumstance. The remarks did not reveal opinions of "such a high degree of favoritism or antagonism as to make fair judgment impossible." Liteky, 510 U.S. at 555, 114 S. Ct. 1147. Finally, even assuming that the judge was biased, there was no prejudice because the Arizona Supreme Court independently reviewed the sentence and determined that the death penalty was appropriate. Gallegos II, 185 Ariz. at 348, 916 P.2d at 1064. Conclusion Claim 2 is both procedurally barred and meritless. Petitioner is not entitled to habeas relief. Claims 3-9 Ineffective Assistance of Counsel Petitioner alleges that defense counsel performed in a constitutionally ineffective manner during the guilt and penalty stages of his trial. The PCR court denied these claims after holding an evidentiary hearing. (PCR doc. 227; see PR doc. 10 at 2.) Clearly established federal law For claims of ineffective assistance of counsel, the applicable law is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. To prevail under Strickland, a petitioner must show that counsel's representation fell below an objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at 687-88, 104 S. Ct. 2052. Review of counsel's performance under Strickland is "extremely limited." Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir.1998), judgment rev'd on other grounds, 525 U.S. 141, 119 S. Ct. 500, 142 L. Ed. 2d 521 (1998). "The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial." Id. The inquiry under Strickland is highly deferential, and "every effort [must] be made 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 time." 466 U.S. at 689, 104 S. Ct. 2052. Thus, to satisfy Strickland's first prong, deficient performance, a defendant must overcome "the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. For example, while trial counsel has "a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary, . . . a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. at 691, 104 S. Ct. 2052. To determine whether the investigation was reasonable, the court "must conduct an objective review of [counsel's] performance, measured for reasonableness under prevailing professional norms, which includes a contextdependent consideration of the challenged conduct as seen from counsel's perspective at the time." Wiggins v. Smith, 539 U.S. 510, 523, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (citation and quotation marks omitted). The Supreme Court has reiterated, "In judging the defense's investigation, as in applying Strickland generally, hindsight is discounted by pegging adequacy to `counsel's perspective at the time' investigative decisions are made" and by applying deference to counsel's judgments. Rompilla v. Beard, 545 U.S. 374, 381, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. 2052). Because an ineffective assistance claim must satisfy both prongs of Strickland, the reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Strickland, 466 U.S. at 697, 104 S. Ct. 2052 ("if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed"). A petitioner must affirmatively prove prejudice. Id. at 693, 104 S. Ct. 2052. To demonstrate prejudice, he "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. In assessing prejudice, the court should presume "the judge or jury acted according to law," and "should proceed on the assumption that the decision-maker is reasonably, conscientiously, and impartially applying the standards that govern the decision." Id. at 694-95, 104 S. Ct. 2052. "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. 2052. In answering that question, a reviewing court necessarily considers the strength of the state's case. See Allen v. Woodford, 395 F.3d 979, 999 (9th Cir.2005) ("even if counsel's conduct was arguably deficient, in light of the overwhelming evidence of guilt, [the petitioner] cannot establish prejudice"); Johnson v. Baldwin, 114 F.3d 835, 839-40 (9th Cir. 1997) (where state's case is weak, there is a greater likelihood that the outcome of the trial would have been different in the absence of deficient performance). Also inherent in the prejudice analysis demanded by Strickland is the principle that in order to demonstrate that counsel failed to litigate an issue competently, a petitioner must prove that the issue was meritorious. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). For example, with respect to allegations that counsel was ineffective for failing to file a motion, in order to demonstrate prejudice a petitioner "must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him." Wilson v. Henry, 185 F.3d 986, 990 (9th Cir.1999) (citing Morrison, 477 U.S. at 373-74, 106 S. Ct. 2574); see Boyde v. Brown, 404 F.3d at 1173-74. Finally, the Court notes that under the AEDPA its review of the state court's decision is subject to another level of deference. Bell v. Cone, 535 U.S. 685, 698-99, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002). In order to merit habeas relief, therefore, Petitioner must make the additional showing that the state court's ruling that counsel was not ineffective constituted an unreasonable application of Strickland. 28 U.S.C. 2254(d)(1). Claim 3 Counsel "abandoned" Petitioner at trial by conceding guilt Petitioner alleges that trial counsel's strategy of conceding Petitioner's role in the victim's death, together with his negative comments to the jury about Petitioner and his actions, amounted to an abandonment of all defenses such that prejudice is presumed under United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). (Dkt. 74 at 41-56.) He contends that the PCR court erred in applying the Strickland standard in rejecting this claim. Finally, he argues that even under Strickland counsel's performance was ineffective. Background Trial In his opening statement, counsel spoke of the "uncomfortable position" he was in defending Petitioner, the difficulty of the jurors' role, the horrific nature of the crime, and its tragic effects on the victim's family. (RT 3/7/91 at 47-49.) He continued: "What my client has done is despicable. He's absolutely responsible for the death of Kendall Wishon in this case, and at the end of this case I'm going to ask you to convict my client, but we're not quite at that point yet." (Id. at 47.) Counsel also indicated that Petitioner would testify, explaining that he "is the key in this case": You will hear from Mr. Gallegos. He will tell you what I have told you. It will be difficult. It will be ugly. It will be horrible. But nonetheless, in order for me to paint my picture, in order for me to paint that picture of events as it truly happened, you have to hear from him . . . You can't make that decision in a case of this magnitude, I believe, unless you hear from him. And you will. He will get up and tell you what he told Detective Saldate. He will tell you of his responsibility in this case; that he is responsible. He will tell you of Mr. Smallwood. My client will get up there and he will literally bear his soul to you so that you can make a fair and adequate decision in this case. (Id. at 49-50.) Counsel concluded his opening statement by reiterating that the State had the burden of proving "beyond a reasonable doubt . . . that what they say is true, what they have accused Michael Gallegos of doing is the truth, and that what they are asking you to convict him of is first degree murder and sexual conduct with a minor." (Id. at 51.) Counsel then stated: I am asking you to be fair. I'm asking you to convict my client. I'm asking you to make a fair and realistic assessment of the facts as they will be represented to you. And I think that's all I can ask. That's all the court and the system can demand of you. It's a very difficult duty, and I hope you do it well. (Id.) At trial, counsel vigorously cross-examined Dr. Bolduc, the medical examiner, attempting to cast doubt on his testimony that the victim's injuries indicated she was sexually assaulted pre-mortem. (RT 3/11/91 at 51-65.) Counsel presented Petitioner's testimony on the last day of trial. Petitioner testified that he was extremely intoxicated at the time of the crime, that Smallwood was an equal participant, that the victim's death was accidental, that he believed the victim was dead when he penetrated her, and that he was sorry for what he had done. (RT 3/13/01 at 46-72.) The next day, during his closing argument, counsel explained to the jury: Yesterday, I put my client on the stand and I treated him with taming [sic] contempt. I don't normally do that. But I though it was called for in this case. You needed to see Michael Gallegos. You needed to see that he is not the person that the State has portrayed to you. You needed to see that he's a child. He's a man-child. He's pathetic, he's despicable, but he's a child. You needed to see what Detective Saldate saw. . . . He told you he believed Michael Gallegos. Michael told him that he never intended for this to happen. And he told you that he believed him. (RT 3/14/91 at 28.) Counsel further informed the jury: I told you in my opening that I felt uncomfortable. I do. Several times throughout the course of this trial, that was willfully [sic] apparent. And I'm sorry for that. But I don't think to characterize the situation in any other manner other than it's very, very real. Stark reality is fair. I think I would insult you. . . . I didn't want to get up here and on behalf of my client deny things that are not in dispute. The facts, as Mr. Stalzer [the prosecutor] related them to you are not in dispute. His theory is, though. (Id. at 25-26.) Counsel again acknowledged that Petitioner was "absolutely responsible for the taking of Kendall Wishon's life," adding: "That is extremely difficult for me to say. It's probably extremely difficult for a lot of people to hear. But it's true." (Id. at 26.) However, counsel proceeded to attack the allegation that Petitioner "knew he would cause the death of Kendall and that he did so with premeditation." (Id.) Counsel argued: The State's theory in this case is that George Smallwood, Michael Gallegos were playing Nintendo, two 18-year-old high school boys, were playing Nintendo and that when they walked into the bedroom of Kendall Wishon, that they experienced those feelings. I think that that is absurd. I don't believe that the evidence in any way, shape, or form showed you that that was the case. (Id. at 26-27.) Counsel urged the jury to set aside its passions and "make a fair and just assessment of the facts." (Id. at 27.) He then continued his attack on the first degree murder charge and argued for conviction on a lesser count: One of the instructions that you are going to receive is an instruction that deals with the crime of reckless manslaughter, and what that says is if the defendant caused the death of another person by conduct showing a conscious disregard of a substantial and unjustifiable risk of death, then you can find him guilty of that. I submit to you that all of the facts that you have heard certainly show that that was the case. Mr. Stalzer has told you about premeditation. To me that's just that somehow my client was cunning, he was cold, he was calculating when he did this. I would simply ask you to think of what he told you, think of what he told Detective Saldate, think of what Saldate said about him. He was telling the truth. (Id. at 29.) Next counsel discussed the medical examiner's testimony: We've had some testimony from Dr. Bolduc about post-mortem injuries, about time of death, about the injuries that were present on the body of young Kendall. I think you have heard enough to make the decision in that regard for yourself. (Id. at 30-31.) Counsel concluded his closing argument by again apologizing to the jurors for the difficulty of their task and asking the jury to be fair. (Id. at 30.) PCR proceedings Testifying at the evidentiary hearing before the PCR court, counsel disputed the allegation that he had provided constitutionally ineffective assistance at trial. (RT 12/1/00 at 6.) He explained that his strategy in conceding Petitioner's responsibility for the victim's death was to ask the jury "to consider very seriously not finding him responsible for a first degree murder but something lesser." (Id. at 10.) He described his theory of the case as follows: [T]hat given Michael's age, given his alcohol consumption, given his. . . prior history, his upbringing, that this was in no way shape or form a premeditated act. It was a lesser . . . type of situation, and we couldn't escape, given his statements, . . . the fact that he beared [sic] some responsibility, but it was just an effort to characterize that. (Id. at 39.) Counsel defended his negative comments about Petitioner in his opening statement as an attempt to prepare the jury for the horrific facts they were going to hear and to maintain the defense's credibility: [I]t was going to draw the string with some very horrible facts that were going to come in. We needed to set the stage for what was going to happen because his statements [to Detective Saldate were going to come in. We had already litigated those . . . and I think you lose a lot of ground in a trial by simply by trying to say, you know, it's red when it's really black. . . . This was going to come down to the credibility of Michael and the believability of Michael. And to. . . characterize what had happened in any type of a fashion less than what it was, I think would have been . . . certainly ineffective. I mean, you can't dance around the issues in every case. And I think this was one that called for us to simply step up to the plate and confront them and call them what they were because otherwise I think . . . given the facts as they were about to unfold at that point, given the pretrial rulings, we knew we had a tough road. And I think to simply ignore things at that point would have been a disservice, and I think would have clearly been . . . a less than adequate job.] (Id. at 25-26.) Counsel added that his comments during opening were "not an attempt to vilify or distance myself from Michael. I mean, I think quite the opposite. We needed to. . . strongly characterize what had happened accurately and then . . . explain the reasons for the conduct." (Id. at 34.) Counsel also testified that he had discussed this approach with Petitioner. (Id. at 41-42.) Counsel acknowledged that in his opening statement, when he conceded Petitioner's guilt and asked the jury to convict him, he did not qualify his statements by specifying a charge less than first degree murder. (Id. at 27.) He testified that he did so purposely. (Id. at 28.) He indicated that his strategy was "to present to the jury the facts and arguments from which they would find him guilty of a lesser offense." (Id. at 41.) Counsel testified that his approach to the case was a "reasonable tactic based on [his] experience." (Id. at 42.) The PCR court, in denying Petitioner's claims of ineffective assistance, determined that the applicable standard was Strickland, not Cronic, because "trial counsel's performance did not constitute abandonment." (PCR doc. 227 at 2.) The court then set forth its application of Strickland's two-pronged standard: As to the first prong, the Court finds that Petitioner has not sufficiently shown that trial counsel's performance was deficient. Because of the overwhelming evidence of Defendant's guilt, it was reasonable for trial counsel to adopt a strategy that could result in a conviction for a lesser-included offense such as second degree murder or manslaughter, thereby avoiding the death penalty. . . . To make a request for manslaughter, as trial counsel did in closing argument here, it was important for him to maintain credibility with the jurors, which might explain his tactics and choice of wording during his opening statement. His words about the "despicable conduct" of the Defendant were harsh, but probably added to counsel's credibility with the jury when pleading for manslaughter; there simply is no way to sugar-coat the sodomization and murder of an eight year old female child. (Id.) The court then explained that even if counsel's performance had been deficient, Petitioner would not be entitled to relief under Strickland because he failed to prove prejudice: [T]he State's evidence was completely overwhelming: The Defendant confessed twice to two different police detectives, and the DNA evidence in Kendall's rectum linked to the Defendant was devastating to the defense; all the other evidence corroborated the Defendant's guilt. There is no reasonable probability that, but for any errors made by trial counsel, the result of the trial would have been any different. (Id. at 3.) Analysis In United States v. Cronic, the Supreme Court created an exception to the Strickland standard for egregious cases evidencing an actual breakdown in the adversarial process at trial. 466 U.S. at 656-58, 104 S. Ct. 2039. In such cases, the prejudicial impact of counsel's performance is presumed and need not be proved. Id. at 659-60, 104 S. Ct. 2039; see United States v. Swanson, 943 F.2d 1070, 1072-74 (9th Cir.1991). Petitioner argues that Cronic, rather than Strickland, provides the appropriate analytical framework for evaluating defense counsel's efforts. Controlling case law dictates otherwise. In Florida v. Nixon, 543 U.S. 175, 176, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004), the Court held that defense counsel's failure to obtain the defendant's express consent to a strategy of conceding guilt during a capital trial did not automatically render counsel's performance deficient. The Court rejected the assertion that counsel's effectiveness should be evaluated under the per se prejudice standard of Cronic, explaining that the Cronic standard is a "narrow exception to Strickland's holding" and is "reserved for situations in which counsel has entirely failed to function as the client's advocate." Id. at 189-90, 125 S. Ct. 551. Instead, the Court applied the Strickland standard and held that, under the circumstances of the case, counsel's concession strategy was reasonable. Id. at 188-89, 125 S. Ct. 551. Similarly, in United States v. Thomas, 417 F.3d 1053, 1057 (9th Cir.2005), defense counsel, faced with overwhelming evidence, conceded his client's guilt in an effort to enhance the defendant's credibility while attempting to avoid conviction on other charges. The Ninth Circuit, citing Nixon, held that counsel's performance did not descend to the level of a complete failure to subject the prosecution's case to meaningful adversarial testing such that it was presumptively prejudicial. Id.; see Trice v. Ward, 196 F.3d 1151, 1162 (10th Cir.1999) (in light of overwhelming evidence of guilt "it was an entirely reasonable strategy for [defendant's] trial counsel to concede [that defendant raped the victim] and focus his efforts on persuading the jury that [the defendant] did not have the intent to commit first-degree murder, and/or persuading the jury to spare [his] life"). In Petitioner's case, counsel actively advocated on his client's behalf throughout the trial, examining the State's witnesses, including the medical examiner, and presenting Petitioner's testimony in an attempt to advance the theory that Petitioner, while responsible for the victim's death and therefore guilty of lesser-included offenses, should not be convicted of first degree murder. See Millender v. Adams, 376 F.3d 520, 523 (6th Cir.2004) ("Throughout the trial, petitioner's attorney was an active participant: he crossexamined witnesses, made proper objections, and presented a closing argument. This level of representation does not fall below the low threshold required by Cronic"); Hooper v. Mullin, 314 F.3d 1162, 1175 (10th Cir.2002) (Cronic inapplicable where "[d]efense counsel cross-examined the State's guilt-stage witnesses, made objections to the State's evidence, presented some evidence in Petitioner's defense, and made opening and closing arguments"). Moreover, counsel articulated a strategic purpose for his concession of Petitioner's guilt and his acknowledgment of the egregious nature of the crime; namely, he was attempting to establish credibility with the jury. Courts have recognized this as a valid strategy rather than a form of abandonment that would trigger the Cronic presumption of prejudice. See Thomas, 417 F.3d at 1058 (counsel "had a sensible reason for not contesting Thomas's participation in the . . . robbery: it was, for all practical purposes, incontestable, and he believed that doing so would enhance his credibility on counts where the evidence was somewhat less clear and the penalties significantly greater"); Hovey v. Ayers, 458 F.3d 892, 906 (9th Cir.2006) (counsel conceded his client's guilt to protect his own credibility and avoid conviction on other charges). Because counsel subjected the State's case to meaningful adversarial testing and had a strategic basis for his concession of guilt, the Cronic presumption of prejudice does not apply, and the Court will evaluate Claim 3 using the Strickland standard. It is not necessary for the Court to assess the quality of counsel's performance because it is clear that Petitioner cannot satisfy Strickland's prejudice prong. Strickland, 466 U.S. at 697, 104 S. Ct. 2052. Uncontested evidence, including Petitioner's confessions and corroborative DNA evidence, established that Petitioner killed the victim and sexually assaulted her. Given this evidence, there was not a reasonable probability that the jury would have returned a different verdict if counsel had adopted a different defense theory or used different tactics at trial. See Thomas, 417 F.3d at 1059; see also Haynes v. Cain, 298 F.3d 375, 382-83 (5th Cir.2002) (counsel's failure to obtain defendant's consent before conceding in opening argument that defendant was guilty of second-degree murder did not prejudice defendant where prosecution possessed nearly conclusive evidence that defendant committed offense.); Parker v. Head, 244 F.3d 831, 840 (11th Cir. 2001) (counsel's strategic decision to concede defendant's guilt did not amount to ineffective assistance in light of overwhelming evidence of guilt, including defendant's admissible confession). Conclusion The PCR court's rejection of this claim did not constitute an unreasonable application of Cronic and Strickland. Therefore, Petitioner is not entitled to relief on Claim 3. Claim 4 Failure to introduce exculpatory photographic evidence Petitioner alleges that counsel performed ineffectively by failing to introduce photographic evidence showing George Smallwood's fingernails and the scratches on the victim's face. (Dkt. 74 at 56-59.) According to Petitioner, as a "chronic nail biter" his fingernails, in contrast to Smallwood's, were too short to have caused the scratches, a fact which would have corroborated Petitioner's testimony, supported a conviction on a lesser count, and established several mitigating factors. (Id.) At the evidentiary hearing, counsel testified that Petitioner had short nails as a result of his nail-biting habit and that photographs had been taken of his and Smallwood's hands. (RT 12/1/00 at 14.) Counsel acknowledged that Petitioner's testimony might have been corroborated by evidence showing that Smallwood's nails were more capable of causing the scratches on the victim's face. (Id. at 15.) However, counsel was concerned because the photos of Petitioner showed cuts to the back of his hands; the State could have argued that the injuries were caused in Petitioner's struggle with the victim. (Id. at 16.) At the evidentiary hearing counsel also noted that he had presented testimony from Petitioner's mother that Petitioner had a habit of biting his fingernails. (Id. at 35; see RT 3/13/91 at 29-30.) Finally, counsel testified that Petitioner's nails, while chewed down, were capable of leaving scratches. (RT 12/1/00 at 43) The PCR court found that there was "no merit" to this claim. (PCR doc. 227 at 3.) This ruling is not an unreasonable application of Strickland because Petitioner can show neither deficient performance nor prejudice. Counsel explained that he was aware of the photos and made a tactical decision not to open the door to evidence of injuries to Petitioner's hands. According to Strickland, such strategic choices are "virtually unchallengeable." 466 U.S. at 690, 104 S. Ct. 2052. Petitioner himself acknowledged that he participated with Smallwood in smothering the victim, so little relevance would have attached to evidence that his nails were shorter than Smallwood's and perhaps less likely to have left the scratches on the victim's face. To the extent that such evidence had any value, counsel realized it through the testimony of Petitioner's mother. Petitioner is not entitled to relief on Claim 4. Claim 5 Failure to prepare for cross-examination of medical examiner Claim 6 Failure to retain independent expert to challenge medical examiner Petitioner alleges that counsel performed ineffectively in his presentation of the theory that Petitioner had sex with a corpse rather than a human being. (Dkt. 74 at 60-63.) Pursuant to this theory, Petitioner was technically not guilty of sexual conduct with a minor because the offense required both a living victim and a belief on Petitioner's part that the victim was alive.[9] Petitioner faults counsel for failing to prepare for his cross-examination of the medical examiner and for failing to retain an independent expert to support the defense theory. (Id.) Analysis The PCR court found these claims meritless. (PCR doc. 227 at 3.) This decision was not an unreasonable application of Strickland because Petitioner cannot establish that counsel's performance was deficient or prejudicial. With respect to Claim 5, the record refutes Petitioner's argument that counsel was unprepared to cross-examine Dr. Bolduc. As previously noted, defense counsel questioned the medical examiner regarding the timing of the victim's injuries, challenging Dr. Bolduc's testimony that the anal penetration occurred prior to death. (RT 3/11/91 at 51-65.) In support of his allegation that counsel was unprepared, Petitioner cites an incident during Dr. Bolduc's testimony when counsel became aware that certain notes and diagrams from Dr. Bolduc's report had not been disclosed. Counsel moved to exclude the materials; the court took a recess to allow counsel to review the information, which documented blunt force trauma to the victim's head. (Id. at 31-37.) After reviewing the documents, counsel withdrew his motion, informing the court: Based upon my discussions with [Dr. Bolduc] . . . it appears that the items are not going to make much of a difference to his opinions as it relates to the typed version [which was disclosed to counsel]. I take it from speaking to him there is going to be no surprise. Obviously I will listen closely; if there is, I will jump up. But based upon what he's told me, I'm not going to be surprised about anything. (Id. at 37-38.) At the post-conviction evidentiary hearing, counsel reiterated that the omitted material was "not significant because clearly it was referred to within the body of the report, and it was not something that I did not know about." (RT 12/1/01 at 47.) Counsel further indicated that his focus when cross-examining Dr. Bolduc was the injury to the victim's rectum and whether it was consistent with pre- or post-mortem sexual assault, explaining that his goal was to point out inconsistencies in Dr. Bolduc's testimony regarding the timing of the victim's death. (Id. at 44-45.) Based upon this record, Petitioner has not shown that counsel performed at a constitutionally ineffective level with respect to his handling of Dr. Bolduc's testimony. Regarding Claim 6, counsel did not present a defense expert to testify on Petitioner's behalf. At the PCR evidentiary hearing, counsel testified that he made efforts to retain an independent medical examiner, contacting a pathologist in Los Angeles. (RT 12/1/00 at 11.) However, counsel "was unable to secure an opinion that would have directly contradicted Dr. Bolduc's opinion" that the penetration occurred pre-mortem. (Id. at 48.) Petitioner offers nothing but speculation that an expert witness could have been found whose testimony would have supported the defense theory. This is insufficient to support an allegation of ineffective performance or prejudice, particularly in light of counsel's efforts to locate such an expert and his substantial cross-examination of Dr. Bolduc. See Bower v. Quarterman, 497 F.3d 459, 471-72 (5th Cir.2007) (decision not to call an expert witness to rebut the state's ballistics evidence did not constitute deficient performance where counsel felt the evidence was weak and brought out those weaknesses in cross-examination of the state's experts); see also Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir.2001) (speculation as to what expert might say "is insufficient to establish prejudice"); Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir.1997) (same); Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002) ("complaints of uncalled witnesses are not favored in federal habeas corpus review because allegations of what the witness would have testified are largely speculative" and "to demonstrate the requisite Strickland prejudice, [petitioner] must show not only that [the] testimony would have been favorable, but also that the witness would have testified at trial.") (citations omitted). For the reasons set forth above, Petitioner is not entitled to relief on Claims 5 and 6. Claim 7 Requiring Petitioner to testify Petitioner alleges that counsel rendered ineffective assistance by requiring him to testify without valid strategic or tactical reasons and without a full investigation and well-developed defense theory. (Dkt. 74 at 64-66.) He contends that his testimony was harmful and unnecessary, given that Detective Saldate had already related all the details of his confession to the jury. (Id.) Petitioner also asserts that counsel expressed contempt for him and that the decision to put him on the stand was the product of a conflict of interest stemming from counsel's desire to ingratiate himself with the jury and distance himself from Petitioner. (Id.) Background At the evidentiary hearing before the PCR court, counsel disagreed with the contention that Petitioner's testimony offered nothing beneficial to the defense: [I]t was my feeling that the jury in this case and in this type of case, given the facts of the case and given the elements of what we were dealing with, really needed to hear from Michael. They needed to make their own assessment of him and make those critical credibility judgments that they had to make given what we were asking them to do. (RT 12/1/00 at 10.) When asked why he did not rely solely on Detective Saldate's testimony to put Petitioner's version of events before the jury, counsel responded: Well, you know, coming from a police officer that's somewhat coldhearted and dispassionate, and it is a little bit worse, you know, than coming from a defendant. I think in Michael's situation he was a young man. He was eighteen years old. . . . He was not sophisticated. He was not somebody that was coldblooded and uncaring, and I thought the jury needed to see that, to see that he was literally a child. That he was not, you know, the man the State was trying to portray him as. I mean, he was not that type of person. (Id. at 49-50.) Counsel further explained that Petitioner's testimony was necessary to demonstrate his remorse, to detail his history of alcohol abuse, and to generate sympathy from the jury by showing that he was "an honest and polite young person" who came from a "good, strong family" and had "good support." (Id. at 50-51.) Counsel stated that he "was hoping . . . that. . . those values would come out and be apparent in front of a jury and maybe they would realize that here was a poor young man who made a tragic mistake." (Id. at 51.) According to counsel, Petitioner's testimony was also required to support the defense theory that the victim was dead at the time of the sexual contact. (Id.) When asked to characterize his demeanor toward Petitioner when Petitioner testified at trial, counsel answered: You know, it kind of went back and forth. . . . I put Michael on, and at times it's my recollection during his testimony ÔÇö I mean, he and I had talked about areas that we were going to directly confront, and he needed to let this jury see him address those issues. And, you know, he was ÔÇö he was certainly very scared about it. He certainly . . . had some, I guess, reluctance to talk, and I pushed him. I pushed him when he was on the stand because . . . I felt that the jury needed to make . . . a real critical assessment of him. . . . He had a lot of things going for him, and he had simply made a bad mistake, and they needed. . . to make that assessment. And it is hard to make that assessment of someone if they are sitting there being mute and emotionless, and that's who we tried to get out of Michael in front of the jury. (Id. at 22-23.) Counsel acknowledged being "forthright" with Petitioner, asking "very direct questions" and not "babying him when he was on the stand," but he denied treating Petitioner with contempt. (Id. at 23.) Counsel also testified that, contrary to Petitioner's assertions, he did not force or require Petitioner to testify: [M]y recollection is that I didn't force. . . Michael or put Michael ÔÇö that was a decision that we made. Before my opening statement we had discussed it for some time because I would never have said what I said in my opening statement . . . that he was going to take the stand, that these people were going to hear from him unless I had discussed that, and I explicitly have a very clear memory of discussing it with Michael, of writing a letter to Michael memorializing our discussions with respect to what I was going to do in opening because I told Michael I didn't want to have any surprises. . . . [W]e talked about him taking the stand and, you know, that type of point, you know, this room is not a room to be timid in, and we decided. . . that, heck, this is how we were going to play it. (Id. at 21-22.) In contrast, Petitioner testified that he did not recall receiving a letter from counsel, that the decision that he would testify was made on short notice, and that he had mixed feelings about testifying but acceded to counsel's advice. (Id. at 85-86.) Applying Strickland, the PCR court found that the decision to offer Petitioner's testimony was a strategic matter and did not amount to deficient performance: Calling the Defendant as a witness was also reasonable strategy because that was the only way to emphasize the Defendant's extreme intoxication that night, which was very important to defeat the State's claim of premeditation and specific intent. The Defendant's testimony also raised the issue of George Smallwood's complicity and the fact that it was George who put his hand over Kendall's mouth, causing her death by asphyxiation. (PCR doc. 227 at 3.) The court also found that Petitioner had not demonstrated prejudice in light of the overwhelming evidence of his guilt. (Id.) Analysis The decision of the PCR court did not represent an unreasonable application of Strickland. Counsel's performance was not deficient. He explained that there were strategic reasons for calling Petitioner as a witness. Petitioner was able to provide first-hand information in support of key elements of the defense: his level of intoxication, the accidental nature of the victim's death, the extent of Smallwood's participation, the assertion that the victim was dead at the time he penetrated her, and Petitioner's remorse. Counsel also believed that Petitioner would be a sympathetic witness and that in order to humanize him and explain his actions to the jury he would have to testify. The record indicates that counsel's strategy was fully considered, developed in consultation with Petitioner, and "the result of reasonable professional judgement." Strickland, 466 U.S. at 690, 104 S. Ct. 2052. As the Ninth Circuit recently reiterated: "To declare that it was wrong because in hindsight it proved unsuccessful and must have been uninformed is not what the Supreme Court intended when we analyze a Strickland claim after the fact." Pinholster v. Ayers, 525 F.3d 742, 761 (9th Cir. 2008) ("Given the evidence presented by the State, trial counsel's tactical decision to advise [petitioner] to testify was reasonable."). Having found that counsel's performance was not deficient under Strickland, it is unnecessary to address the question of prejudice. Nevertheless, the Court notes that Petitioner's allegations of prejudice are unpersuasive. Petitioner asserts that the decision to present his testimony was harmful because the trial court and the Arizona Supreme Court relied on the testimony to find that he acted with foresight and appreciated the wrongfulness of his conduct and to establish cruelty as an aggravating factor. To the contrary, the information most damaging to Petitioner's defense was contained in Detective Saldate's testimony. To the extent Petitioner's testimony offered additional information, it tended to reduce his culpability by emphasizing his level of impairment and the absence of any intent to kill the victim. Claim 7 is without merit and will be denied. Claim 8 Denial of right to counsel at resentencing Petitioner alleges that the trial court denied his right to the effective assistance of counsel by its handling of his pro per motion for new counsel. (Dkt. 74 at 66-68.) At the resentencing hearing, the court discussed with Petitioner and counsel a letter Petitioner had sent to the court requesting a new attorney. (RT 10/24/94 at 108-10.) During the discussion, Petitioner first told the judge that he would like the letter to be entered into the record. (Id. at 108.) He then indicated, however, that he and his attorney had "resolved" the issue and Petitioner had "agreed to keep him on as my attorney" and wanted him to handle the hearing. (Id. at 109.) After Petitioner told the judge he was withdrawing his request for new counsel, the judge gave him back the letter and it was not entered into the record. (Id. at 110.) The PCR court found this claim "precluded pursuant to Rule 32.2(a)(3) (waived because not raised at trial or on appeal), and alternatively, . . . not colorable." (PR doc. 10 at 1.) This preclusion ruling rests on an independent and adequate state procedural bar. See Smith, 536 U.S. at 860, 122 S. Ct. 2578; Ortiz, 149 F.3d at 931-32. Petitioner alleges that the procedural default of this claim is excused by the ineffective performance of his appellate counsel. (Dkt. 86 at 57-58.) As stated above with respect to Claim 2, because Petitioner failed to exhaust an independent claim of ineffective assistance of appellate counsel in state court, such an allegation cannot constitute cause for the procedural default of Claim 8. In addition, the issue omitted by appellate counsel is meritless. Petitioner withdrew his request for new counsel after discussing the matter with current counsel. The record clearly indicates that he was not, as he now contends, dissuaded from filing his letter, but agreed to withdraw the document when the judge informed him that he could do so if he wished. (RT 10/24/94 at 110.) To the extent Petitioner alleges that his counsel was ineffective at resentencing, that claim will be discussed below. Claim 9 Failure to investigate and present mitigating information at sentencing Petitioner alleges that trial and resentencing counsel provided ineffective assistance by failing to sufficiently investigate and present evidence concerning his mental health and personal history. (Dkt. 74 at 68-77.) Petitioner raised this claim in his supplemental PCR petition, alleging that counsel performed ineffectively by failing to explore Petitioner's mental health background, specifically the "origins, extent and implications of Petitioner's learning disability." (PCR doc. 204 at 22-23.) The PCR court denied the claim, finding neither deficient performance nor prejudice. (PR doc. 10 at 2.) This Court previously found the claim exhausted but denied Petitioner's requests for evidentiary development. (Dkt.106.) Having reviewed the merits of the claim, the Court finds, for the reasons set forth below, that Petitioner is not entitled to habeas relief. Background Initial sentencing At the guilt phase of trial, Petitioner's mother testified about his learning disability and alcohol consumption. (RT 3/13/91 at 23-32.) Petitioner himself testified that he suffered from a learning disability; he also detailed his alcohol consumption on the day of the crimes. (Id. at 34-35, 37-41, 42-58, 84-90, 112-16.) Following Petitioner's conviction, counsel moved for a "diagnostic evaluation" of Petitioner pursuant to Rule 26.5 of the Arizona Rules of Criminal Procedure. (ROA 119.) The court granted the motion and appointed Dr. John DiBacco to evaluate Petitioner and determine whether, at the time of the crime, his "capacity to appreciate the wrongfulness of his conduct or to conform his conduct to requirements of the law was significantly impaired, but not so impaired as to constitute a defense to the prosecution."[10] (ROA 122.) Counsel prepared a sentencing memorandum and attached to it the predispositional reports written by Petitioner's juvenile probation officer. (ROA 127.) These reports detailed Petitioner's status as a learning disabled student. Specifically, the reports stated: Mike is a Special Education student. . . currently enrolled in the 12th grade. Mike was diagnosed as a Learning Disabled Student during Elementary School. Mrs. Gallegos reports that Mike is able to learn things that require the use of his hands, but book material takes a long time for Mike to understand. Mrs. Gallegos reports that Mike does well in Mechanics, while Math gives him the most difficulty. Mike's attendance has been poor. Attendance reports indicate an excessive number of truancies and 21 classes missed due to Out of School Suspension. Mike's grade report for the 1988-89 school year reflect the following: Weight Training F; Resource English D; Resource U.S. History B; Independent Study C; Welders Helper C and Resource Math F. . . . . It is this Officer's opinion that Mike Gallegos is a young man who apparently has not developed the ability to think before he acts. Mike tends to behave impulsively and allows himself to become involved in a situation without considering the consequences. Mike's actions do not appear to be vicious, just thoughtless. Once he is confronted with his mistake, it is this Officer's experience that Mike will choose to deny his actions and attempt to avoid consequences instead of admitting his mistake. (Id., Ex. at 5.) At the sentencing hearing, counsel called as witnesses Petitioner's father, mother, brother, and sister Margaret, all of whom testified that Petitioner was a good kid from a good family and was remorseful for his actions. (RT 5/24/91 at 21-30.) Petitioner's juvenile probation officer also testified. (Id. at 10-20.) He expressed his opinion that Petitioner was the least likely of his clients to commit this type of crime. (Id. at 16.) He also testified, reiterating comments made in his written reports, that Petitioner tended to act impulsively. (Id. at 15.) He further explained that Petitioner was a follower, not a leader; he "had always been the type of person who would get involved with somebody else, and he always seemed to be the person who was led rather than be the leader himself." (Id. at 19-20.) Next, Detectives Chambers and Saldate testified that they did not believe the death penalty was the appropriate sentence for Petitioner. (Id. at 30-41.) Detective Chambers testified that he strongly opposed the death penalty for Petitioner. (Id. at 37.) He indicated that Petitioner's "age is still a question in my mind. I'm aware of his chronological age, but I'm not certain of his ÔÇö his actual maturity. My impression in my brief contact with this young man was of him, one, being unsophisticated, and, two, being at some point less than his chronological age." (Id. at 39-40.) Finally, Petitioner took the stand, reading a statement that expressed his remorse for the victim's death and attributing his actions to drug and alcohol impairment. (Id. at 42-43.) Counsel also submitted Dr. DiBacco's report (id. at 57-58, 65) and dozens of letters advocating a life sentence rather than the death penalty. Also before the court was the presentence investigation report, which included sections on Petitioner's substance abuse history and mental health. (ROA 131.) The latter section included the comments of Dr. J.J. Singer, who counseled Petitioner while he was on juvenile probation. (Id. at 6.) Dr. Singer described Petitioner as "definitely a follower and not a leader" who "[w]hen he got into trouble it was because he was following his peers in order to be accepted." (Id.) In its special verdict, the trial court stated that it had considered in mitigation Petitioner's "documented" history of drinking and substance abuse and the fact that Petitioner had "a documented learning disability." (RT 10/24/94 at 184-85.) The Arizona Supreme Court likewise noted that Petitioner "presented evidence that he had a history of alcohol and drug abuse, as well as a documented learning disability." Gallegos I, 178 Ariz. at 18, 870 P.2d at 1114. Resentencing As previously noted, the Arizona Supreme Court remanded the case for resentencing with the directive that the trial court assess Petitioner's impairment as a nonstatutory mitigating circumstance. Id. at 23, 870 P.2d at 1119. Prior to the resentencing hearing, counsel sought and the court authorized the appointment of mitigation investigator Mary Durand and Dr. C.J. Shaw, an addiction specialist. (ROA 154.) Dr. Shaw prepared a report opining, based upon information provided by Petitioner, that Petitioner's blood alcohol level at the time of the crimes was 0.2 or higher. (ROA 161; see RT 10/24/94 at 142.) At the resentencing hearing, counsel presented testimony from Petitioner and his family and friends regarding his drug and alcohol use, learning disability, and passive, nonviolent personality. Petitioner testified that he suffered from a learning disability and was placed in special education classes starting in the fourth grade. (RT 10/24/94 at 5-6.) He testified that he began drinking alcohol at age 12 or 13, and began using marijuana in sixth or seventh grade and methamphetamine in tenth or eleventh grade. (Id. at 6-7.) Petitioner stated that his conduct deteriorated when George Smallwood arrived at his home in Flagstaff; he drank more, used drugs, and skipped school. (Id. at 8-9.) He explained that on the day of murder he and Smallwood drank half a bottle of scotch, schnapps, and beer in the morning, smoked two joints, and then drank beer throughout the afternoon and night. (Id. at 11-12.) He testified that the crimes would not have happened if he had not been impaired and if Smallwood had not been present. (Id. at 13.) Petitioner's mother testified that from second grade on he had attended special education classes due to his learning disability. (Id. at 54.) She stated that Petitioner had a tendency to take the blame for things other people did. (Id. at 55.) Mrs. Gallegos became aware of Petitioner's drug use when he was in junior high. (Id. at 56.) According to her testimony, Smallwood was violent and a bad influence; he exerted control over Petitioner and Petitioner followed his lead. (Id. at 58.) Petitioner's sister Margaret testified that she was aware of his drug and alcohol use in the years before the murder. (Id. at 63-64.) She stated that Petitioner was nonviolent and mellow when he was intoxicated. (Id. at 64-65.) She testified that after Smallwood arrived Petitioner's behavior changed; he became more sullen, withdrawn, and hateful, and abandoned his old friends in favor of Smallwood. (Id. at 66.) Petitioner's sister Maria Covarrubiaz became aware of his drug and alcohol use when he was in seventh grade. (Id. at 71.) She too indicated that Petitioner became quiet and mellow when drinking; he did not get into fights or arguments. (Id. at 72.) She described Petitioner as a follower who was led by other people; he did not stand up for himself or resist peer pressure. (Id. at 72-73.) Smallwood was the leader and Petitioner followed him. (Id. at 74.) She indicated that Smallwood had a bad influence on Petitioner, who began to drink more and became rebellious and hateful toward his parents. (Id. at 76.) Carlos Covarrubiaz, Petitioner's brother-in-law, testified that Petitioner began drinking at age 13 or 14. (Id. at 83.) He too had observed that Petitioner became mellow under the influence of drugs. (Id.) Michelle Emig, Petitioner's niece, testified that Petitioner started drinking in junior high. (Id. at 96.) According to Emig, Petitioner began to drink every day and used marijuana and crystal meth. (Id.) She indicated that Petitioner was mellow when drunk. (Id. at 97.) Emig explained that Petitioner became "snobby and rude" when Smallwood arrived. (Id.) She testified that Smallwood was the leader and Petitioner the follower. (Id. at 98.) She also testified that Smallwood expressed resentment of the victim and thought she was spoiled. (Id. at 99.) Todd Emig, Michelle's husband and a school friend of Petitioner, testified that he began drinking with Petitioner three years before the murder. (Id. at 86.) Like the other witnesses, he testified that Petitioner was quiet and laid back when intoxicated. (Id. at 87.) He further testified that Petitioner used marijuana, acid, and mushrooms, under the influence of which he remained mellow and did not become argumentative or violent. (Id. at 88.) Petitioner began drinking more and became distant from family and friends after Smallwood's arrival. (Id.) Petitioner would go along with Smallwood's ideas even if he did not really want to; he never stood up to Smallwood. (Id. at 89.) Greg Weiber, another friend of Petitioner, testified that they drank a lot and smoked marijuana and crystal meth. (Id. at 116.) According to Weiber, they used marijuana 10 times a day, crystal meth two or three times a week, and alcohol whenever they had the next day off from work or school. (Id.) Petitioner became passive and mellow under the influence of drugs and alcohol; he went along with the crowd, never initiated anything, and was never violent. (Id. at 117-18.) Weiber testified that Smallwood was in control of the relationship with Petitioner; he was strongerwilled and manipulative. (Id. at 119.) David Harvey, an acquaintance of Petitioner, testified that he never saw Petitioner drink but did smoke marijuana with him. (Id. at 128.) Petitioner never became violent. (Id.) Harvey also testified that Smallwood dominated the relationship with Petitioner. (Id. at 129-30.) Anthony Duran, another Flagstaff friend, testified that he drank and used drugs with Petitioner and that Petitioner was "easygoing" when under the influence. (Id. at 136.) Duran indicated that Petitioner became less happy after Smallwood's arrival. (Id. at 138.) According to Duran, Petitioner was generally unable to resist Smallwood's influence. (Id. at 138-39.) Duran characterized Petitioner as a follower who was easy to manipulate. (Id. at 140.) In addition to these witnesses, counsel again presented the testimony of Detectives Saldate and Chambers in opposition to a death sentence. Detective Saldate testified, however, that he did not believe Petitioner was significantly intoxicated at the time of the murder. (Id. at 36-37.) Detective Chambers testified in support of a life sentence based on his feeling that the killing was accidental; he believed Petitioner had been drinking. (Id. at 43-45.) In rebuttal, the State called Dr. Alexander Don to critique Dr. Shaw's report and his conclusion that Petitioner was intoxicated at the time of the crime with a high blood alcohol level. (Id. at 148-54.) The State also called the victim's mother, who testified that she did not observe signs that Petitioner was impaired on the night of the murder. (Id. at 161.) At the close of the hearing, the court indicated that it would consider mitigating evidence from the first sentencing hearing, including the testimony of Petitioner's juvenile probation officer. (Id. at 170.) In sentencing Petitioner, the court again rejected impairment as a statutory mitigating factor. (Id. at 185.) In doing so, the court repeated its finding that Petitioner "has a documented learning disability. His testimony is that it affects his math and spelling but not his reading or understanding. There is no evidence that the defendant is mentally deficient." (Id.) The court found that Petitioner's impairment and substance abuse history constituted nonstatutory mitigation but that it, together with the other mitigating circumstances, did not outweigh the aggravating factors. (Id. at 188-90.) In Gallegos II the Arizona Supreme Court affirmed the trial court's findings regarding the aggravating and mitigating factors, including the mitigating value of Petitioner's impairment and history of substance abuse. 185 Ariz. at 344, 916 P.2d at 1060. PCR evidentiary hearing At the evidentiary hearing on Petitioner's ineffective assistance claims, counsel at Petitioner's trial and initial sentencing testified on cross-examination that he had been assisted by mitigation specialist Mary Durand. (RT 12/1/00 at 51.) Counsel had asked Ms. Durand to identify "areas of mitigation that we could utilize on behalf of [Petitioner], . . . school records, psych records,. . . disciplinary records, work history records, things like that." (Id. at 51-52.) Counsel testified that he had no reason to believe that Petitioner suffered from "mental problems"; he "didn't have any indication from the family or any records to suggest that." (Id. at 53.) In addition to Ms. Durand, counsel was assisted by another investigator, who was referred to him by Petitioner's family; this investigator was able to find little mitigating information. (Id.) Despite raising the claim in his PCR petition, during the evidentiary hearing PCR counsel did not ask trial counsel any questions about his performance during the initial sentencing proceedings or otherwise address the issue of ineffective assistance at sentencing.[11] Analysis Clearly established federal law The right to effective assistance of counsel applies not just to the guilt phase but "with equal force at the penalty phase of a bifurcated capital trial." Silva v. Woodford, 279 F.3d 825, 836 (9th Cir.2002) (quoting Clabourne v. Lewis, 64 F.3d, 1373, 1378 (9th Cir.1995)). In assessing whether counsel's performance was deficient under Strickland, the test is whether counsel's actions were objectively reasonable at the time of the decision. Strickland, 466 U.S. at 689-90, 104 S. Ct. 2052. The question is "not whether another lawyer, with the benefit of hindsight, would have acted differently, but `whether counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.'" Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.1998) (quoting Strickland, 466 U.S. at 687, 104 S. Ct. 2052). With respect to prejudice at sentencing, the Strickland Court explained that "[w]hen a defendant challenges a death sentence . . . the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." 466 U.S. at 695, 104 S. Ct. 2052. In Wiggins, the Court further noted that "[i]n assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence." 539 U.S. at 534, 123 S. Ct. 2527. The totality of the available evidence includes "both that adduced at trial, and the evidence adduced in the habeas proceeding." Id. at 536, 123 S. Ct. 2527 (quoting Williams v. Taylor, 529 U.S. at 397-98, 120 S. Ct. 1495). The clearly-established federal law governing this claim includes the Supreme Court's decision in Bell v. Cone, 535 U.S. 685, 122 S. Ct. 1843, 152 L. Ed. 2d 914, which, as indicated above, clarifies the standard this Court must apply in reviewing the PCR court's rejection of Petitioner's sentencing-stage ineffective assistance claim. In Cone the Supreme Court, after noting the deferential standards set forth in the AEDPA and required by its own precedent, explained that for a habeas petitioner's ineffective assistance claim to succeed: he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must show that [the state court] applied Strickland to the facts of his case in an objectively unreasonable manner. Id. at 698-99, 122 S. Ct. 1843 (citation omitted). In reviewing Petitioner's allegations of ineffective assistance, this Court further notes that the judge who presided over the trial, sentencing, and resentencing also presided over the PCR proceedings. Thus, in considering Petitioner's ineffective assistance claims, Judge Hotham was already familiar with the record and the evidence presented at trial and sentencing. The judge's familiarity with the record provides this Court with an additional reason to extend deference to the PCR court's ruling. See Smith v. Stewart, 140 F.3d 1263, 1271 (9th Cir.1998). As the Ninth Circuit explained in Smith, when the judge who governed the post-conviction proceeding is the same as the trial and sentencing judge, the court is considerably less inclined to order relief; doing so "might at least approach `a looking-glass exercise in folly.'" Id. (quoting Gerlaugh v. Stewart, 129 F.3d 1027, 1036 (9th Cir.1997)). Application of Strickland to Claim 9 Petitioner contends that if his attorneys had conducted a constitutionally adequate investigation into his mental health history, "they would have discovered that [Petitioner's] family, friends and teachers would have provided evidence, including significantly more corroborating evidence than either counsel presented at sentencing or resentencing." (Dkt. 74 at 70.) Specifically, witnesses could have addressed Petitioner's "learning disability, placement in special education classes, and designation as being Emotionally Handicapped," as well as the "embarrassment and low self esteem" he experienced as a result of his placement in special education, and the fact that he was a "follower, incapable of standing up to others, especially George Smallwood." (Id. at 70-72.) Petitioner further contends that he was prejudiced by counsel's failure to present corroborating evidence of Petitioner's drug and alcohol use. (Id. at 73.) Petitioner has failed to demonstrate that counsel's sentencing-stage performance was either deficient or prejudicial, let alone that the PCR court's rejection of the claim was objectively unreasonable. First, it is clear that resentencing counsel did not perform deficiently in presenting evidence of Petitioner's history of drug and alcohol abuse and passive personality. As the Arizona Supreme Court noted, "At the resentencing hearing, defendant and 9 lay witnesses testified concerning defendant's past substance abuse, and Dr. Shaw's report discussed defendant's selfreport of past substance abuse." Gallegos II, 185 Ariz. at 345, 916 P.2d at 1061. As described above, nearly all of these witnesses also testified that Petitioner did not become violent when under the influence of drugs and alcohol, that he had the personality of a follower, and that he was manipulated by Smallwood. It is difficult to envision how counsel could have presented a more complete picture of Petitioner's impairment and history of substance abuse, as well as his passive personality and the dynamics of his relationship with Smallwood. Moreover, both the trial court and the Arizona Supreme Court found that Petitioner's impairment and substance abuse history constituted nonstatutory mitigation, so even if counsel could have presented additional corroborating evidence, Petitioner was not prejudiced by this aspect of counsel's performance. Similarly, counsel did not perform ineffectively with respect to the presentation of evidence concerning Petitioner's intellectual capacity. Petitioner's trial counsel retained the services of Mary Durand, who subsequently assisted resentencing counsel, to review Petitioner's school and medical records in search of mitigating information to present at the initial sentencing hearing. (RT 12/1/00 at 51-52.) At both the initial sentencing and at resentencing, Petitioner's attorneys made the court aware that Petitioner suffered from a learning disability and had been placed in special education classes throughout his school years. Nonetheless, Petitioner contends that counsel performed deficiently by relying on Dr. DiBacco's report at the first sentencing hearing because Dr. DiBacco originally misdiagnosed Petitioner and because his revised report, which did address Petitioner's learning disability, was ignored by the court. (Dkt. 92 at 13.) This argument is unpersuasive. Again, both the trial court and the Arizona Supreme Court acknowledged Petitioner's disability. In discussing Petitioner's youth as a mitigating factor, the supreme court explained: The weight that age should receive as a mitigating factor depends on the defendant's intelligence, maturity, and life experiences. In this case, defendant was in special education classes beginning in second grade, which could indicate that his intelligence was below average. A psychological expert's report concluded, however, that defendant has "at least average fluid intelligence," that he is "not mentally deficient," and that he can understand the consequences of his behavior. Gallegos II, 185 Ariz. at 345, 916 P.2d at 1061 (citations omitted). The court concluded, however, that given Petitioner's "extensive and prolonged" participation in the criminal acts, his conduct was not the product of impulsivity and immaturity and therefore his age was "a statutory mitigating circumstance worthy of some weight," but was "discount[ed] . . . by the extent of defendant's participation in the murder." Id. Because evidence regarding Petitioner's mental functioning was presented to and considered by the trial court and the state supreme court, Petitioner cannot establish that he was prejudiced by counsel's performance. See Hedrick v. True, 443 F.3d 342, 353 (4th Cir.2006) ("the connection [petitioner] would have had his trial counsel make between his low intelligence, being easily led, and being prone to substance abuse . . . was nearly identical to evidence presented"). Any further evidence that Petitioner was a slow learner who required special education classes would have been cumulative to the evidence already presented. See Babbitt, 151 F.3d at 1176 (no prejudice where evidence omitted at sentencing was "largely cumulative of the evidence actually presented"). Other evidence, such as that Petitioner suffered from ADHD and an "inability to process language,"[12] which Petitioner now contends should have been presented, would not have altered the basic sentencing profile provided to the judge. See Strickland, 466 U.S. at 699-700, 104 S. Ct. 2052; see also Henley v. Bell, 487 F.3d 379, 387-88 (6th Cir.2007) (no prejudice resulting from counsel's failure to call a psychiatric expert to testify during sentencing phase of capital murder trial that defendant had learning disabilities, had dropped out of school, and at the time of the offense was depressed and acting out of character). In Eddmonds v. Peters, 93 F.3d 1307 (7th Cir.1996), the Seventh Circuit held that the habeas petitioner was not prejudiced by trial counsel's performance at sentencing. Eddmonds had been convicted of deviate sexual assault and murder and sentenced to death for smothering a nine-year-old boy to death while raping him. Id. at 1311-12. The killing was unintentional. Id. at 1322. At sentencing, counsel presented the testimony of a psychiatrist who recounted Eddmonds's history of mental illness, which included a diagnosis of schizophrenia. Id. Counsel also offered a brief closing argument asking the court for mercy. Id. at 1322. Eddmonds alleged that counsel's performance was ineffective because he did not seek additional psychological evaluations or present evidence of Eddmond's extreme mental and emotional disturbance at the time of the crime or information concerning his troubled upbringing and history of drug use. Id. at 1319-20. In rejecting this claim of ineffective assistance, the Seventh Circuit reviewed the proffered mitigation evidence and found that "none of this would have helped had counsel expressly raised it at sentencing." Id. at 1321. The court concluded that "we are certain counsel's failure to throw a few more tidbits from the past or one more diagnosis of mental illness onto the scale would not have tipped it in Eddmonds' favor." Id. Likewise, in Petitioner's case there was not a reasonable probability of a different sentence if counsel had presented to the sentencer additional details regarding Petitioner's intellectual limitations or substance abuse history. Conclusion The PCR court, having presided over the trial, the initial sentencing, and the resentencing proceedings, rejected the claim that Petitioner's right to effective assistance of counsel was violated by the penalty-phase performance of his attorneys. This decision was not an unreasonable application of Strickland. Therefore, Petitioner is not entitled to relief on Claim 9. Claim 11 Unconstitutionality of cruel, heinous, or depraved aggravating factor Petitioner contends that the aggravating factor set forth in A.R.S. 13-703(F)(6) is facially overbroad and was applied to his sentence in an unconstitutional manner.[13] (Dkt. 74 at 78-90.) Background At sentencing, the trial court found that Petitioner committed the murder in an especially cruel, heinous and depraved manner pursuant to 13-703(F)(6). (ROA 132 at 2-4.) The court found that the murder was especially cruel based upon the victim's physical and mental suffering. (Id.) In finding the murder especially heinous or depraved, the court noted the helplessness of the victim and the senselessness of the crime, as indicated by the victim's small size, trusting relationship with Petitioner, and the fact that Petitioner could have accomplished his sexual goals without taking the victim's life. (Id. at 3.) The court further described the crime as "marked by debasement and perversion," citing Petitioner's admission "that he had anal intercourse with the victim thinking that since she was already dead, he might as well finish what he started." (Id.) Finally, the court found that Petitioner "actively participated in the killing" and in fact "killed Kendall." (Id. at 8-9.) On direct appeal, the Arizona Supreme Court considered and rejected both the facial and as-applied challenges to (F)(6). In upholding the constitutionality of the factor, the court explained: The United States Supreme Court has upheld the constitutionality of this statutory provision, and has found that we have construed its operative terms "in a manner that furnishes sufficient guidance to the sentencer." Walton v. Arizona, 497 U.S. 639, 655, 110 S. Ct. 3047, 3058, 111 L. Ed. 2d 511 (1990). The trial judge specifically applied our limited construction of the terms especially "heinous," "cruel," and "depraved" in its special verdict. We therefore find no support in the record for defendant's contention that the judge applied this factor without adhering to statutory requirements. Gallegos I, 178 Ariz. at 14, 870 P.2d at 1110 (citation omitted). The court also rejected Petitioner's argument that the (F)(6) aggravating factor was inapplicable without proof that he physically performed the actions that caused the victim's death, finding that Petitioner "actively participated in the killing." Id. Finally, the court denied Petitioner's claim that the trial court erred in finding that the murder was committed in an especially heinous or depraved manner. The court detailed its findings: Heinousness and depravity focus on defendant's mental state and attitude at the time of the offense as evidenced by his words and actions. State v. Salazar, 173 Ariz. 399, 412, 844 P.2d 566, 579 (1992). In determining whether the murder was committed in a heinous or depraved manner, we consider 5 factors: (1) whether defendant relished the murder, (2) whether defendant inflicted gratuitous violence on the victim, (3) whether defendant mutilated the victim, (4) the senselessness of the crime, and (5) the helplessness of the victim. State v. Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983). "The mere existence of senselessness or helplessness of the victim, in isolation, need not always lead to a holding that the crime is heinous or depraved. . . ." Gretzler, 135 Ariz. at 52-53, 659 P.2d at 11-12. "Either or both of these factors [senselessness and helplessness], considered together with other circumstances present in a particular case, may lead to the conclusion that an offense was heinous or depraved." Gretzler, 135 Ariz. at 52, 659 P.2d at 11. Here, we have more. See Runningeagle, 176 Ariz. at 65, 859 P.2d at 175. We believe that the record in this case supports a finding of senselessness, helplessness, and gratuitous violence. The victim was helpless; she was an 8year-old girl who stood a mere 4 feet 5 inches tall and weighed only 57 pounds. Defendant, an 18-year-old male who was in a trust relationship with the victim, stole into the victim's room while she was asleep and senselessly suffocated her. We agree with the trial judge that the victim "never had a chance." We further find that defendant inflicted gratuitous violence on the victim. Recently, we held that a defendant's act of necrophilia "without question" constituted the infliction of gratuitous violence on the victim. State v. Brewer, 170 Ariz. 486, 502, 826 P.2d 783, 799 (1992). Here, the trial court noted that the medical examiner testified that the "injuries to [the victim's] rectum were inflicted either premortem or contemporaneously with her death [perimortem]." Defendant, however, testified that he had anal intercourse with the victim for about 15 to 20 minutes after she went limp and after he believed she was dead. Thus, defendant believed he was committing an act of necrophilia. Defendant explained his conduct in a statement made during the presentence investigation: He stated that he went ahead and finished the act because "it wasn't like she was going to tell anybody." He sodomize[d] the victim because it was like "why not." He knew he was going to get caught the next day. This statement evinces the depravity of defendant's mental state. Moreover, other evidence of gratuitous violence exists. After defendant sodomized the victim, he dumped her naked body under a tree where it was found, bruised and battered, the next day. We think the record supports the trial judge's finding that the murder was committed in an especially heinous or depraved manner. We therefore need not address the judge's finding of cruelty. Gallegos I, 178 Ariz. at 14-15, 870 P.2d at 1110-11. Analysis As the Arizona Supreme Court explained, the United States Supreme Court has upheld the (F)(6) aggravating factor against allegations that it is vague and overbroad, rejecting a claim that Arizona has not construed it in a "constitutionally narrow manner." See Lewis v. Jeffers, 497 U.S. 764, 774-77, 110 S. Ct. 3092, 111 L. Ed. 2d 606 (1990); Walton v. Arizona, 497 U.S. 639, 649-56, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). Petitioner's facial challenge to the factor is therefore without merit. With respect to the state courts' application of the factor to Petitioner's sentence, habeas review "is limited, at most, to determining whether the state court's finding was so arbitrary and capricious as to constitute an independent due process or Eighth Amendment violation." Jeffers, 497 U.S. at 780, 110 S. Ct. 3092. In making that determination, the reviewing court must inquire "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the factor had been satisfied." Id. at 781, 110 S. Ct. 3092 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Petitioner contends that the state courts erred in finding that he committed the murder in an especially heinous and depraved manner because there no proof that he actually killed the victim and because he believed she was dead when he sexually assaulted her. He further contends that the heinousness or depravity of his actions must be "evaluated in light of his age and limited intellectual ability." (Dkt. 74 at 88.) The relevant issue in applying the heinous or depraved prong of (F)(6) is the defendant's state of mind; nevertheless, the determination is based not on his subjective mental state but on his "words and acts." See State v. Fulminante, 161 Ariz. 237, 255, 778 P.2d 602, 620 (1988). As the Arizona Supreme Court explained, five non-exclusive factors are used to determine if a murder was heinous or depraved: relishing of the murder, the infliction of gratuitous violence, mutilation of the victim's body, the senselessness of the murder, and the helplessness of the victim. Gallegos I, 178 Ariz. at 14-15, 870 P.2d at 1110-11 (citing State v. Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983)). A defendant's intellectual status is not assessed in applying the factor. Additionally, it is clear, notwithstanding Petitioner's assertion to the contrary, that a rational factfinder could have determined that Petitioner actually killed the victim. Petitioner testified that, with Smallwood's hand already on the victim's mouth, he placed his hand over her nose and kept it there as she gasped for air, struggled and flailed, and then went limp. (RT 3/13/91 at 63-66, 103-04.) He testified that he knew he had killed her "by suffocation." (Id. at 97.) He acknowledged that he "actively participated in the killing of Kendall." (Id. at 127.) With respect to the heinous or depraved prong of (F)(6), a rational trier of fact could also find, based upon Petitioner's words and actions, several of the Gretzler factors. A factfinder could determine that the purpose of the crime was sexual assault, and that the murder was not necessary to achieve that goal. Therefore, the murder was senseless. The age and size disparity between Petitioner and the victim support the finding that she was helpless. Finally, as the Arizona Supreme Court explained, Petitioner's prolonged act of perceived necrophilia constituted gratuitous violence, the depravity of which was further indicated by Petitioner's comments about his conduct. A rational fact finder could have determined that Petitioner's actions were heinous and depraved in satisfaction of the (F)(6) aggravating factor. Therefore, the Arizona Supreme Court's denial of this claim was not an unreasonable application of Jackson. Claim 11 is denied. Claims 12-18 Application of mitigating evidence Petitioner alleges that the trial court refused to weigh, or gave inadequate weight to, several mitigating circumstances, including his lack of intent to kill the victim (Claim 12), his intoxication and substance abuse history (Claim 13), his age (Claim 14), his lack of a serious criminal record (Claim 15), the recommendations of leniency from two detectives (Claim 16), the "aberrant" nature of the crime (Claim 17), and the cumulative impact of all the mitigating evidence (Claim 18). (Dkt. 74 at 93-114.) Background As the Arizona Supreme Court noted, Gallegos II, 185 Ariz. at 343, 916 P.2d at 1059, over the State's objection the trial court held a full resentencing hearing and allowed Petitioner to present any mitigation evidence that he desired. The trial court again found two aggravating circumstances, that Petitioner was an adult and the victim under 15 and that the murder was especially heinous, cruel, and depraved. (ROA 163 at 2-4.) The court again found that Petitioner had proved that his age and relative immaturity constituted a statutory mitigating circumstance. (Id. at 7-9.) The court found that Petitioner failed to prove by a preponderance of the evidence three other statutory mitigating circumstances: impairment, under A.R.S. 13-703(G)(1); that he was legally accountable for the conduct of another and that his participation in the crime was relatively minor, under (G)(3); and that he could not reasonably have foreseen that his conduct would cause death, under (G)(4). (Id. at 5-9.) The court further found that Petitioner proved four non-statutory mitigating circumstances: remorse, recommendations of leniency by the police, a history of alcohol and drug abuse, and alcohol impairment. (Id. at 9-10.) The court found that Petitioner did not prove as a non-statutory mitigating factor the disparity in how he and Smallwood were treated. (Id. at 10.) Before resentencing Petitioner, the trial court considered the evidence introduced at trial, mitigation evidence from the first sentencing hearing, the mitigation evidence Petitioner presented at the resentencing hearing, and the presentence report and attachments. (Id. at 2.) The court ultimately determined that the mitigating circumstances were not sufficiently substantial to call for leniency and resentenced Petitioner to death. (Id. at 11.) In Gallegos II, the Arizona Supreme Court considered Petitioner's arguments that he was entitled to leniency based on each of his proven mitigating circumstances. 185 Ariz. at 344, 916 P.2d at 1060. The court affirmed the findings of the trial court. Id. at 347-48, 916 P.2d at 1063-64. Analysis A sentencing court is required to consider any mitigating information offered by a defendant, including non-statutory mitigation. See Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978); see Ceja v. Stewart, 97 F.3d 1246, 1251 (9th Cir.1996). In Lockett and Eddings v. Oklahoma, the Supreme Court held that under the Eighth and Fourteenth Amendments the sentencer must be allowed to consider, and may not refuse to consider, any constitutionally relevant mitigating evidence. Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). Constitutionally relevant mitigating evidence is "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." Lockett, 438 U.S. at 604, 98 S. Ct. 2954. However, while the sentencer must not be foreclosed from considering relevant mitigation, "it is free to assess how much weight to assign such evidence." Ortiz v. Stewart, 149 F.3d 923, 943 (9th Cir.1998); see Eddings, 455 U.S. at 114-15, 102 S. Ct. 869 ("The sentencer. . . may determine the weight to be given the relevant mitigating evidence."); see also State v. Newell, 212 Ariz. 389, 405,132 P.3d 833, 849 (2006) (mitigating evidence must be considered regardless of whether there is a "nexus" between the mitigating factor and the crime, but the lack of a causal connection may be considered in assessing the weight of the evidence). On habeas review, a federal court does not evaluate the substance of each piece of evidence submitted as mitigation. Instead, it reviews the state court record to ensure the state court allowed and considered all relevant mitigation. See Jeffers v. Lewis, 38 F.3d 411, 418 (9th Cir.1994) (en banc) (when it is evident that all mitigating evidence was considered, the trial court is not required to discuss each piece of evidence). As described above, the judge considered and made findings regarding the mitigating factors urged by Petitioner. (See ROA 163 at 5-10.) While Petitioner disagrees with these findings, the court considered the evidence, which is the constitutional issue. Moreover, the judge clearly articulated that he considered all the mitigation presented, nonstatutory as well as statutory, and found that it did not warrant leniency. See Parker v. Dugger, 498 U.S. 308, 314-15, 318, 111 S. Ct. 731, 112 L. Ed. 2d 812 (1991) (sentencing court properly considered all information, including nonstatutory mitigation, where court stated that it considered all the evidence and found no mitigating circumstances that outweighed the aggravating circumstances); Moormann v. Schriro, 426 F.3d 1044, 1055 (9th Cir.2005) ("the trial court need not exhaustively analyze each mitigating factor as long as a reviewing federal court can discern from the record that the state court did indeed consider all mitigating evidence offered by the defendant"). In sum, there is a distinction between "a failure to consider relevant evidence and a conclusion that such evidence was not mitigating." Williams v. Stewart, 441 F.3d 1030, 1057 (9th Cir.2006). Contrary to Petitioner's arguments, the latter determination does not implicate his federal constitutional rights. The fact that the court found the proffered mitigating evidence "inadequate to justify leniency . . . did not violate the Constitution." Ortiz, 149 F.3d at 943; Eddings, 455 U.S. at 114-15, 102 S. Ct. 869. Moreover, the Arizona Supreme Court independently reviewed the record and "conclude[d] that the mitigation is insufficiently substantial to call for leniency." Gallegos II, 185 Ariz. at 348, 916 P.2d at 1064. Even if the trial court had committed constitutional error at sentencing, a proper and independent review of the mitigation and aggravation by the Arizona Supreme Court cured any such defect. See Clemons v. Mississippi, 494 U.S. 738, 750, 754, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990) (holding that appellate courts are able to fully consider mitigating evidence and are constitutionally permitted to affirm a death sentence based on independent re-weighing despite any error at sentencing). Claims 12 through 18 will be denied. Claim 19 Erroneous jury instructions Petitioner alleges that his trial was rendered fundamentally unfair when the trial court provided erroneous jury instructions on the element of premeditation and the charge of sexual conduct with a minor. (Dkt. 74 at 114-21.) Premeditation instruction Petitioner contends that the premeditation jury instruction provided by the trial court relieved the State of proving the element of actual reflection necessary for first degree murder. (Id. at 114-17.) This allegation is both procedurally barred and meritless. He first raised the claim in his PCR petition. (PCR doc. 188 at 4.) The entirety of the claim was contained in a heading which cited an Arizona Court of Appeals case and made no allegation of a federal constitutional violation.[14] The PCR court rejected the claim, finding it "precluded pursuant to Rule 32.2(a)(3) (waived because not raised on appeal)" and "not colorable." (PR doc. 10 at 2.) In making this ruling, the Court invoked Arizona's adequate and independent state procedural bar. See Smith, 536 U.S. at 860, 122 S. Ct. 2578; Ortiz, 149 F.3d at 931-32. Petitioner alleges that the procedural default of this claim is excused by the ineffective performance of appellate counsel. (Dkt. 86 at 80.) As previously indicated, because Petitioner failed to exhaust an independent claim of ineffective assistance of appellate counsel, such an allegation cannot constitute cause for the procedural default of this claim. In addition, for the reasons set forth below, the claim is meritless. A challenge to jury instructions does not generally state a federal constitutional claim. See Engle v. Isaac, 456 U.S. 107, 119, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.1983). In order to warrant federal habeas relief, an error in jury instructions "cannot be merely `undesirable, erroneous, or even universally condemned,' but must violate some due process right guaranteed by the fourteenth amendment." Prantil v. State of California, 843 F.2d 314, 317 (9th Cir.1988) (quoting Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973)). To prevail on this claim, therefore, Petitioner must demonstrate that the instructions provided by the trial court "`so infected the entire trial that the resulting conviction violates due process.'" Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (quoting Cupp, 414 U.S. at 147, 94 S. Ct. 396); see also Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977). "It is well established that the instruction `may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72, 112 S. Ct. 475 (quoting Cupp, 414 U.S. at 147, 94 S. Ct. 396). In reviewing an ambiguous instruction, a reviewing court inquires "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution. Estelle, 502 U.S. at 72-73, 112 S. Ct. 475 (quoting Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990)). Harmless error analysis is ordinarily applied to trial errors, including an erroneous jury instruction. See Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999); Johnson v. United States, 520 U.S. 461, 468-69, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997). At the conclusion of the parties' closing arguments, the court instructed the jury that: "Premeditation" means that the defendant's knowledge existed before the killing long enough to permit reflection. However, the reflection differs from the knowledge that conduct will cause death. It may be as instantaneous as successive thoughts in the mind, and it may be proven by circumstantial evidence. It is this period of reflection, regardless of its length, which distinguishes first degree murder from knowing second degree murder. (RT 3/14/91 at 35; see ROA 117.) The court did not include the provision, set forth in A.R.S. 13-1101(1), that "[a]n act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion." (RT 3/14/91 at 35; see ROA 117.) Arguably, this omission, combined with the phrase "instantaneous as successive thoughts," rendered the instruction erroneous under state law. See State v. Ramirez, 190 Ariz. 65, 67-68, 945 P.2d 376, 378-79 (Ct.App.1997) (instruction that omitted the "balancing language" contained in the "instant effect" provision allowed the State to "mis-argue" that "an act can be both impulsive and premeditated"); State v. Thompson, 204 Ariz. 471, 479, 65 P.3d 420, 428 (2003) (discouraging use of "instantaneous as successive thoughts" phrase). Nonetheless, the court's instruction on premeditation did not render Petitioner's trial fundamentally unfair. The instruction does not, on its face, permit a finding of premeditation based solely on the passage of time, but specifically states that first degree murder requires a "period of reflection." Nothing in the prosecutor's argument or the remainder of the court's instructions inaccurately suggested that the State needed only to prove the time element of reflection in lieu of actual premeditation. In fact, in his closing argument the prosecutor characterized the question of premeditation in this case as "difficult," but emphasized, as opposed to the mere passage of time, Petitioner's "successive thoughts of the mind, that period of reflection, that awareness, that knowledge" that occurred prior to and during Petitioner's smothering of the victim. (RT 3/14/91 at 11.) In addition, the jury was instructed on both felony murder and premeditated murder theories of first degree murder. The jury convicted Petitioner of first degree murder, but its verdict was not unanimous as to whether Petitioner was guilty of premeditated murder or felony murder. (ROA 116.) The jury also convicted Petitioner of the predicate felony of sexual conduct with a minor. (ROA 115.) Given these circumstances, the fairness of Petitioner's trial was not affected by the premeditation instruction. The killing occurred in the course of the sexual assault, so the predicate for felony murder was met, notwithstanding any potential jury confusion regarding the premeditation theory of first degree murder. See Carriger v. Lewis, 971 F.2d 329, 335 (9th Cir.1992). Sexual conduct with a minor instruction The trial court provided the jury with written instructions on all of the counts, including the charges of sexual conduct with a minor and attempted sexual conduct with a minor. (ROA 117.) The instruction for sexual conduct stated: The crime of sexual conduct with a minor under age fifteen requires proof of the following two things: 1. The defendant knowingly penetrated the anus of another person with a part of his body; and 2. The other person had not reached her fifteenth birthday. (Id.) The instruction regarding attempted sexual conduct stated: The crime of Attempted Sexual Conduct with a Minor requires proof of one of the following: 1. The defendant intentionally engaged in conduct which would have been a crime if the circumstances relating to the crime were as the defendant believed them to be; or 2. The defendant intentionally committed any act which was a step in a course of conduct which the defendant planned would end or believed would end in the commission of a crime; or 3. The defendant engaged in conduct intended to aid another person to commit a crime, in a manner which would make the defendant an accomplice, had the crime been committed or attempted by the other person. (Id.) When the trial judge verbally instructed the jury on the latter count, he omitted the word "attempted" from the title of the offense. (RT 3/14/91 at 38.) However, his verbal instructions on the elements of the offense conformed to the written instructions and included the word "attempted." (Id.) The judge did not define either the term "accomplice" or the theory of accomplice liability. Defense counsel did not object to the instructions. Petitioner asserts that the verbal instructions might have confused the jury and caused it erroneously to convict him of sexual conduct with a minor rather than attempted sexual conduct with a minor. (Dkt. 74 at 118-21.) The Arizona Supreme Court rejected the allegation that Petitioner was prejudiced by any confusion caused by the trial court's verbal instructions. Gallegos I, 178 Ariz. at 10-11, 870 P.2d at 1106-07. The court reiterated that "a copy of the written instructions was given to the jury, was available during its deliberations, was correct, and properly included the word `attempted.'" Id. at 10, 870 P.2d at 1106. The court also noted that the jury was given separate verdict forms for the crimes of sexual conduct with a minor and attempted sexual conduct, and returned a guilty verdict on the former count. Id. The court further explained that there was no evidence suggesting that the jury was confused by the instructions, and concluded that "[m]ere speculation that the jury was confused is insufficient to establish actual jury confusion. We therefore find that, taking the instructions as a whole, the jury was adequately instructed and defendant suffered no prejudice from the omission of the word `attempted' in the verbal instructions." Id. at 10-11, 870 P.2d at 1106-07. In addition, the court held that "[o]verwhelming evidence in the record supports the jury's verdict" and therefore found "beyond a reasonable doubt that the error had no effect on the jury's verdict." Id. at 11, 870 P.2d at 1107. This decision is not an unreasonable application of clearly established federal law. In Petitioner's case, there was "uncontested" and "overwhelming" evidence, Neder, 527 U.S. at 17, 119 S. Ct. 1827, that he engaged in sexual conduct with the minor victim. In light of this evidence, and viewing the instructions as a whole, including the correct version of the written instructions, it is clear that the verdict would have been the same if the trial court's verbal instructions had not omitted the word "attempted" and if the instructions had provided a definition of accomplice. Id. Therefore, any error in the instructions was harmless, and Petitioner is not entitled to habeas relief. For the reasons set forth above, Claim 19 is denied. Claim 20 Insufficient evidence of sexual conduct with a minor As discussed above, Petitioner contends that there was insufficient evidence to support his conviction for sexual conduct with a minor because the victim was already dead at the time of the penetration, or Petitioner mistakenly believed that she was dead. (Dkt. 74 at 121-24.) The Arizona Supreme Court denied this claim, rejecting Petitioner's analysis of the mistake-of-fact issue: In reviewing the sufficiency of the evidence, we examine the evidence in the light most favorable to sustaining the verdict, and we resolve all reasonable inferences against defendant. Dr. Bolduc, the medical examiner who performed the autopsy, testified that the anal trauma occurred while the victim was alive. This uncontradicted expert testimony defeats the argument that the victim was not a person at the time of the sexual penetration. We likewise reject defendant's contention that he did not possess the mental state of "knowingly" because he believed that the victim was dead at the time of the sexual penetration. Sufficient evidence establishes that defendant formed the intent to sexually assault the victim before her death. Officer Saldate's testimony regarding defendant's confessions, although not entirely consistent with defendant's trial testimony, included the following additional details. Officer Saldate testified that defendant had discussed with George [Smallwood] his previous acts of sexual intercourse before entering the victim's room. Defendant further stated that he thought about fondling the victim's "ass." Defendant got the baby oil from the bathroom, which he eventually applied to his penis and the victim's anus to facilitate the penetration. Defendant also stated that once he and George thought that the victim was dead, they decided that they "might as well finish." . . . . We also repudiate defendant's argument for public policy reasons. We refuse to apply a strict, literal interpretation to Arizona's Criminal Code as defendant would have us do. If the criminal code is to have any meaning, we must fairly construe its provisions to promote justice and give effect to the objects of the law. This is not a case where defendant happened upon a dead body. Defendant beat and suffocated the victim in the course and furtherance of a sexual offense. We do nothing to promote justice by allowing a sex offender, who forcibly renders his victim unconscious before committing the sexual offense and ultimately kills her, to avoid conviction because he says that he mistakenly thought the victim was dead. Embracing such a concept would only encourage sex offenders to first kill their victims or render them unconscious before committing the sexual offense. Also, defendant contends that if a mistaken belief that the victim was over 18 years old is a defense to sexual conduct with a minor, A.R.S. 13-1407(B), then a mistake as to the victim's vitality likewise must constitute a defense. If the legislature had intended to establish such a defense, which we doubt for the reasons previously stated, then it could expressly have done so. Gallegos I, 178 Ariz. at 9-10, 870 P.2d at 1105-06 (citations and footnote omitted). Analysis In reviewing a claim of insufficient evidence to support a conviction, "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, 443 U.S. at 319, 99 S. Ct. 2781. In reaching its determination as to the sufficiency of the evidence, this Court may not substitute its determination of guilt for that of the factfinder and may not weigh the credibility of witnesses. See Herrera v. Collins, 506 U.S. 390, 401-402, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993); Jackson, 443 U.S. at 319 n. 13, 99 S. Ct. 2781. Moreover, a state court's construction of its own statute is binding on this court. Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) ("state courts are the ultimate expositors of state law"). "These factors combine to suggest that AEDPA deference may well be at its highest when a habeas petitioner challenges a state court's determination that the record evidence was sufficient to satisfy the state's own definition of a state law crime." Policano v. Herbert, 453 F.3d 79, 92 (2d Cir. 2006). It is plain that a rational factfinder could have determined that all of the elements of sexual conduct with a minor had been proved. The Arizona Supreme Court detailed the "overwhelming evidence" against Petitioner: Defendant confessed on two occasions and testified at trial that he sexually penetrated the victim's anus. The stained material on the victim's panties contained a DNA banding pattern that matched the banding pattern of defendant's blood. Defendant's fingerprint was lifted from the victim's room. In addition, no evidence was presented that George [Smallwood] or anyone else penetrated the victim's anus. Defendant's only defense was that the victim was dead. As defendant admits, Dr. Bolduc's uncontradicted testimony indicated that anal trauma occurred while the victim was alive. Gallegos 178 Ariz. at 11, 870 P.2d at 1107. This evidence, together with the court's interpretation of the relevant statute and its rejection of Petitioner's arguments about his state of mind and the timing of the victim's death, renders Claim 20 meritless. Claims 21-29 Death Penalty Challenges Petitioner challenges the constitutionality of the death penalty in general and Arizona's capital sentencing scheme in particular. (Dkt. 74 at 124-49.) He asserts that Arizona's death penalty statute suffers from the following constitutional infirmities: it does not adequately channel the sentencer's discretion (Claim 21); the Arizona Supreme Court abandoned the procedural safeguard of proportionality review (Claim 22); it fails to narrow the class of death eligible defendants (Claim 23); it establishes an unconstitutional burden of proof (Claim 24); it makes the death penalty mandatory and establishes a "presumption of death" (Claim 25); and the prosecutor has "unbridled" discretion to seek the death penalty (Claim 26). Petitioner also contends that the death penalty is not a deterrent (Claim 27) and is imposed in a discriminatory manner against poor minority males (Claim 28). Finally, he argues that Arizona's death penalty scheme violates his substantive due process rights (Claim 29). These claims are baseless, and the Arizona Supreme Court's rejection of them, Gallegos II, 185 Ariz. at 348, 916 P.2d at 1064, was neither contrary to nor an unreasonable application of clearly established federal law. Respondents contend that these claims have not been properly exhausted. As previously noted, pursuant to 28 U.S.C. 2254(b)(2), the Court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. at 277, 125 S. Ct. 1528. Analysis Rulings of both the Ninth Circuit and the United States Supreme Court have upheld Arizona's death penalty statute against allegations that particular aggravating factors do not adequately narrow the sentencer's discretion. See Jeffers, 497 U.S. at 774-77, 110 S. Ct. 3092; Walton, 497 U.S. at 649-56, 110 S. Ct. 3047; Woratzeck v. Stewart, 97 F.3d 329, 335 (9th Cir.1996). The Ninth Circuit has also explicitly rejected the contention that Arizona's death penalty statute is unconstitutional because it "does not properly narrow the class of death penalty recipients." Smith, 140 F.3d at 1272. As Petitioner acknowledges, there is no federal constitutional right to proportionality review of a death sentence, McCleskey v. Kemp, 481 U.S. 279, 306, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987) (citing Pulley v. Harris, 465 U.S. 37, 43-44, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984)), and the Arizona Supreme Court discontinued the practice in 1992, State v. Salazar, 173 Ariz. 399, 417, 844 P.2d 566, 584 (1992). The Ninth Circuit has explained that the interest implicated by proportionality review ÔÇö the "substantive right to be free from a disproportionate sentence" ÔÇö is protected by the application of "adequately narrowed aggravating circumstance[s]." Ceja, 97 F.3d at 1252. In Smith, the Ninth Circuit also disposed of the argument that Arizona's death penalty statute is constitutionally infirm because "the prosecutor can decide whether to seek the death penalty." 140 F.3d at 1272; see Gregg v. Georgia, 428 U.S. 153, 199, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (pre-sentencing decisions by actors in the criminal justice system that may remove an accused from consideration for the death penalty are not unconstitutional); Silagy v. Peters, 905 F.2d 986, 993 (7th Cir.1990) (holding that the decision to seek the death penalty is made by a separate branch of the government and is therefore not a cognizable federal issue). In Walton, the Supreme Court rejected the argument that "Arizona's allocation of the burdens of proof in a capital sentencing proceeding violates the Constitution." 497 U.S. at 651, 110 S. Ct. 3047; see Delo v. Lashley, 507 U.S. 272, 275, 113 S. Ct. 1222, 122 L. Ed. 2d 620 (1993) (per curiam) (stating that "we recently made clear that a State may require the defendant to bear the risk of nonpersuasion as to the existence of mitigating circumstances"). Walton also rejected the claim that Arizona's death penalty statute is impermissibly mandatory and creates a presumption in favor of the death penalty because it provides that the death penalty "shall" be imposed if one or more aggravating factors are found and mitigating circumstances are insufficient to call for leniency. 497 U.S. at 651-52, 110 S. Ct. 3047 (citing Blystone v. Pennsylvania, 494 U.S. 299, 110 S. Ct. 1078, 108 L. Ed. 2d 255 (1990); Boyde, 494 U.S. 370, 110 S. Ct. 1190, 108 L. Ed. 2d 316); see Kansas v. Marsh, 548 U.S. 163, 173-74, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006) (relying on Walton to uphold Kansas's death penalty statute, which directs imposition of the death penalty when the state has proved that mitigating factors do not outweigh aggravators); Smith, 140 F.3d at 1272 (summarily rejecting challenges to the "mandatory" quality of Arizona's death penalty statute and its failure to apply the beyond-a-reasonable-doubt standard). With respect to Petitioner's contention that the death penalty in Arizona is imposed in a discriminatory manner against poor males, clearly established federal law holds that "a defendant who alleges an equal protection violation has the burden of proving `the existence of purposeful discrimination'" and must demonstrate that the purposeful discrimination "had a discriminatory effect" on him. McCleskey v. Kemp, 481 U.S. at 292, 107 S. Ct. 1756 (quoting Whitus v. Georgia, 385 U.S. 545, 550, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967)). Therefore, to prevail on this claim Petitioner "must prove that the decisionmakers in his case acted with discriminatory purpose." Id. Petitioner does not attempt to meet this burden. He offers no evidence specific to his case that would support an inference that his sex or economic status played a part in his sentence. See Richmond v. Lewis, 948 F.2d 1473, 1490-91 (1990), vacated on other grounds, 986 F.2d 1583 (9th Cir.1993) (holding that statistical evidence that Arizona's death penalty is discriminatorily imposed based on race, sex, and socio-economic background is insufficient to prove that decisionmakers in petitioner's case acted with discriminatory purpose). Also unsupported by Supreme Court precedent is the claim that the death penalty is unconstitutional because it fails to serve as a deterrent to crime. In Gregg, 428 U.S. at 183, 96 S. Ct. 2909, the Court explained that the death penalty serves two potential functions, retribution and deterrence. Regarding deterrence as a justification for capital punishment, the Court, upholding Georgia's death penalty statute, observed: The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe. Id. at 186-87, 96 S. Ct. 2909 (citation omitted). Finally, there is no clearly established federal law holding that the death penalty violates substantive due process. The Unites States Supreme Court has never held that the death penalty per se is unconstitutional. See Gregg, 428 U.S. at 177, 186-87, 96 S. Ct. 2909; Roper v. Simmons, 543 U.S. 551, 568-69, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (noting that the death penalty is constitutional when applied to a narrow category of crimes and offenders); cf. Herrera, 506 U.S. at 398, 113 S. Ct. 853 (declining to hold that the execution of an innocent person would constitute an independent due process violation); see also United States v. Quinones, 313 F.3d 49, 61-70 (2d Cir.2002) (rejecting argument that death penalty is inherently unconstitutional); In re West, 119 F.3d 295, 296 (5th Cir.1997) (summarily rejecting argument that death penalty statutes violate substantive due process, because Supreme Court had previously decided that such statutes do not violate the Eighth Amendment). Petitioner is not entitled to relief on Claims 21 through 29. CONCLUSION The Court finds that Petitioner has failed to establish entitlement to habeas relief on any of his claims. Therefore, Petitioner's Amended Petition for Writ of Habeas Corpus will be denied and judgment entered accordingly. CERTIFICATE OF APPEALABILITY In the event Petitioner appeals from this Court's judgment, and in the interests of conserving scarce resources that might be consumed drafting and reviewing an application for a certificate of appealability (COA) to this Court, the Court on its own initiative has evaluated the claims within the petition for suitability for the issuance of a certificate of appealability. See 28 U.S.C. 2253(c); Turner v. Calderon, 281 F.3d at 864-65. Rule 22(b) of the Federal Rules of Appellate Procedure provides that when an appeal is taken by a petitioner, the district judge who rendered the judgment "shall" either issue a certificate of appealability ("COA") or state the reasons why such a certificate should not issue. Pursuant to 28 U.S.C. 2253(c)(2), a COA may issue only when the petitioner "has made a substantial showing of the denial of a constitutional right." This showing can be established by demonstrating that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner" or that the issues were "adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate (1) whether the petition states a valid claim of the denial of a constitutional right and (2) whether the court's procedural ruling was correct. Id. The Court finds that reasonable jurists could debate its resolution of the merits of Claim 9. For the reasons stated in this Order and in the Court's Order regarding Petitioner's request for evidentiary development filed on October 6, 2004 (Dkt.106), the Court declines to issue a COA with respect to any other claims. Accordingly, IT IS ORDERED that Petitioner's Amended Petition for Writ of Habeas Corpus (Dkt.74) is DENIED. The Clerk of Court shall enter judgment accordingly. IT IS FURTHER ORDERED that the stay of execution entered by this Court on October 16, 2001 (Dkt.5), is VACATED. IT IS FURTHER ORDERED that a Certificate of Appealability is GRANTED as to the following issues: Whether the Court erred in determining that Claim 9, alleging ineffective assistance of counsel at sentencing, lacked merit. IT IS FURTHER ORDERED that the Clerk of Court forward a copy of this Order to Rachelle M. Resnick, Clerk of the Arizona Supreme Court, 1501 W. Washington, Phoenix, AZ XXXXX-XXXX. NOTES [1] "Dkt." refers to the documents in this Court's case file. [2] Petitioner acknowledges that Claim 10 is moot. (Dkt. 86 at 60.) [3] Except where otherwise indicated, the following background is based upon the facts as found by the Arizona Supreme Court on direct appeal from Petitioner's conviction. State v. Gallegos, 178 Ariz. 1, 6-8, 870 P.2d 1097, 1102-04 (1994) (Gallegos I). [4] John Antieau represented Petitioner on appeal and at resentencing. Greg Clark represented Petitioner at trial and the initial sentencing. [5] "PCR doc." refers to documents filed in the state PCR proceedings (Case No. CR1990-3339). "PR doc." refers to documents filed with the Arizona Supreme Court in connection with Petitioner's petition for review from the denial of post-conviction relief (Case No. CR-01-0054-PC). "ROA" refers to the trial court record for Petitioner's direct appeal (Case No. CR-94-389-AP). "RT" refers to the reporter's transcripts and "ME" to the minute entries of the trial court. The original reporter's transcripts and certified copies of the trial and post-conviction records were provided to this Court by the Arizona Supreme Court. (Dkts.14, 18.) [6] Maricopa County Superior Court Judge Jeffrey A. Hotham presided over Petitioner's trial, both sentencing proceedings, and the PCR proceedings. [7] Petitioner filed a motion seeking to remove Judge Hotham from the PCR proceedings, alleging that he had an "interest or prejudice that prevented him from being fair and impartial in further proceedings." (PCR doc. 187 at 1.) The motion cited the judge's comments and rulings at resentencing. (Id. at 2-4.) Judge Reinstein, to whom the issue was assigned, denied the motion, writing: [T]he Court does not find the defendant's allegations to constitute a claim of interest or prejudice. . . . The sentencing judge did not refuse to apply the instructions from the opinion of the Arizona Supreme Court. His agreement with the dissenting opinion did not mean he would not consider the mitigating circumstances. In fact, it is clear that he did, but found the aggravating circumstances to outweigh all of the collective mitigation presented. As to the sentencing court's "apology" for the resentencing, while one could question the choice of words, in effect, the Court was apologizing as much for its failure to recognize the need to consider the defendant's impairment on the night of the homicide and the defendant's alcohol and drug history as non-statutory mitigating circumstances at the original sentencing. Contrary to the defendant's position, the sentencing court did reweigh the aggravating and mitigating circumstances. Of particular note is that the Supreme Court subsequently affirmed the defendant's death sentence. The sentencing judge afforded the defendant a full resentencing hearing. . . despite his explanation that the hearing was "simply a legal exercise, technicality type situation." While these remarks and others made may have been ill-advised, they do not constitute a showing of interest or prejudice such that a fair and impartial hearing cannot be had in the defendant's Rule 32 proceedings. (PCR doc. 192 at 1-2.) [8] The fact that Judge Hotham alternatively discussed the merits of the claim does not affect the application of Rule 32.2(a)(3) because the judge "explicitly invoke[d] a state procedural bar as a separate basis for decision." Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989). [9] The applicable statute, A.R.S. 13-1405(A), provides: "A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age." As discussed in Claim 20, the Arizona Supreme Court rejected Petitioner's theory in Gallegos I on "public policy" and other grounds. 178 Ariz. at 8-10, 870 P.2d at 1104-06. [10] This language reflects the statutory mitigating factor set forth in A.R.S. 13-703 (G)(1). [11] Mr. Antieau, Petitioner's counsel on appeal and at resentencing, had passed away prior to the evidentiary hearing. (See RT 12/1/00 at 90.) [12] This information is contained in the report of Nancy Cowardin (Dkt.92, Ex. 1), one of the documents as to which the Court denied Petitioner's motion to expand the record (Dkt. 78; see Dkt. 106). [13] Petitioner also asserts that application of this factor was invalid under Ring. (Dkt. 74 at 90-93.) As explained above in Claim 1, the holding in Ring does not apply retroactively so this allegation is meritless. [14] Claim VIII, as set forth in the initial PCR petition, consisted of the following heading: "THE JURY WAS IMPROPERLY INSTRUCTED REGARDING PREMEDITATION (ACTUAL REFLECTION NOT REQUIRED; STATE v. RAMIREZ, 249 Ariz. Adv. Rpt. 16, 190 Ariz. 65, 945 P.2d 376) AND THEREFORE THE CONVICTION SHOULD BE SET ASIDE. (NO ARGUMENT SUPPLIED BECAUSE OF TIME CONSTRAINTS)." (PCR doc. 188 at 4.)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499362/	(2008) Nabih BEDEWI, Petitioner, v. UNITED STATES of America, Respondent. Criminal Action No. 05-101(RWR). United States District Court, District of Columbia. October 16, 2008. MEMORANDUM OPINION RICHARD W. ROBERTS, District Judge. Pro se petitioner Nabih Bedewi has moved under 28 U.S.C. § 2255 to vacate his sentence, arguing that his restitution order should be reduced because of subsequent recoveries by the victim, that the sentence exceeds the applicable range under the Sentencing Guidelines, and that he is entitled to leniency because of family hardship and because of the shorter guidelines sentencing range that was previously applicable to his offense. The government opposes Bedewi's motion, insisting that his claims are procedurally barred, baseless, and beyond the scope of § 2255. Bedewi's § 2255 motion will be denied because Bedewi fails to show good cause for not raising his challenges by direct appeal, most courts bar using a § 2255 motion to challenge a restitution order, he agreed in his binding plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) to the sentencing range applied, and his plea for leniency is not a ground for relief under § 2255. Bedewi has also moved for leave to conduct discovery related to his various challenges to his sentence under Rule 6 of the Rules Governing Section 2255 Proceedings for the United States District Courts. This motion will be denied for lack of good cause shown. BACKGROUND In 2005, Bedewi pled guilty to a one-count information charging him with theft concerning programs receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(A). Bedewi agreed under oath to the following facts. Bedewi was a Professor at George Washington University's ("GWU's") School of Engineering and Applied Science and the Director of GWU's National Crash Analysis Center ("NCAC"), a research and resource center for transportation safety studies on vehicles and highways. NCAC received approximately 80 percent of its funding from the U.S. Department of Transportation ("DOT") through reimbursements of incurred expenses. Bedewi also acted as the principal investigator on NCAC's cooperative agreements with DOT and was responsible for requesting and approving research, work orders, and equipment purchases. Although Bedewi was prohibhited from owning and controlling NCAC subcontractors and vendors and from expending NCAC funds to such entities, he actually owned and controlled International Transportation Safety Corporation ("ITSC") and EBI, Inc. and had an ownership interest in New Generation Motors Corporation ("NGM")all subcontractors or vendors of the NCAC. Bedewi caused (1) the NCAC to pay fraudulently inflated invoices from ITSC, EBI, and NGM; (2) two unauthorized graduate student stipends to be set up for a family member and the spouse of an NGM employee based on false representations that they would be working on NCAC projects; and (3) an unauthorized and fraudulent tuition scholarship to be set up for the spouse of a GWU employee and NGM consultant. Bedewi stipulated that the losses from his criminal activity totaled $991,909.31, including $797,784 that DOT paid in reimbursements to NCAC, and $194,125.31 paid by NCAC. He entered into the plea agreement under Rule 11(c)(1)(C), agreeing to a Sentencing Guidelines calculation[1] that resulted in a sentencing range of 37 to 46 months in prison. (See Plea Agreement ¶¶ 2-3.) On June 29, 2005, Bedewi was sentenced to serve 38 months in prison and three years on supervised release, perform 50 hours of community service, and pay restitution in the amount of $872,220.99 and a $100 special assessment. Bedewi did not seek direct appellate review of either his guilty plea or his sentence. Instead, he filed the instant pro se § 2255 motion[2] on October 31, 2005, which the government opposes. He then filed a motion for leave to conduct discovery under Rule 6 of the Rules Governing Section 2255 Proceedings. DISCUSSION Section 2255 authorizes "[a] prisoner in custody ... claiming the right to be released" to move the sentencing court to "vacate, set aside or correct" a defendant's sentence if the sentence was "imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]" 28 U.S.C. § 2255. "[T]he petitioner seeking to vacate his sentence shoulders the burden of sustaining his contentions by a preponderance of the evidence." Winchester v. United States, 477 F. Supp. 2d 81, 83 (D.D.C.2007) (citing United States v. Simpson, 475 F.2d 934, 935 (D.C.Cir. 1973)). Specifically, he "must show `a fundamental defect, which inherently results in a complete miscarriage of justice' or `an omission inconsistent with the rudimentary demands of fair procedure.'" United States v. Weaver, 112 F. Supp. 2d 1, 6 (D.D.C.2000) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962)). "Because of the premium placed on the finality of judgments, there are limited circumstances under which a court should grant a Section 2255 motion. Collateral attack is not appropriate where a prisoner had the opportunity to raise his objections to his conviction and sentence... on direct appeal and failed to do so." United States v. Wilson, Criminal Action No. 96-319-01(CKK), 2005 U.S. Dist. LEXIS 20113, at 9-10 (D.D.C. Sept. 12, 2005) (citing United States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982)). Accordingly, "[w]hen a petitioner fails to raise an argument on direct appeal, he may raise his claim collaterally (that is, pursuant to § 2255) only if he can show cause and prejudice." Winchester, 477 F.Supp.2d at 84 (citing Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003)). "To show cause and prejudice for the procedural default, the petitioner must (1) demonstrate good cause for his failure to raise the issue on appeal,[3] and (2) show that the issue he is raising caused actual prejudice." Winchester, 477 F.Supp.2d at 84 (citing Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998); United States v. Kleinbart, 27 F.3d 586, 590 (D.C.Cir.1994)). I. RESTITUTION Bedewi claims that the restitution portion of his sentence should be reduced because of the government's alleged breach of the plea agreement. (See Petr.'s Mot. for Correction or Reduction of Sentence ("Petr.'s Mot.") at 2 ("While the Plea Agreement explicitly implied that ... the restitution would be paid to DOT and the balance to GWU, the prosecutor requested from the sentencing court to make the entire amount payable to GWU. Given that this was not agreed upon in the plea agreement, it is the petitioner's opinion that this is in violation of the plea agreement.").) This claim could have been raised on direct appeal, and Bedewi wholly fails to show causelet alone good cause for his failure to raise this issue on appeal. As a result, this claim is procedurally barred. In his reply brief, Bedewi appears to concede that his claim regarding the restitution is procedurally barred, and instead argues that his restitution amount should be reduced because after he was sentenced, GWU received more funds from third parties (who had received a portion of the criminal proceeds) than were originally accounted for at the sentencing hearing. Bedewi insists that his "knowledge of this information came months after the sentencing hearing and therefore well outside the allowable period for appeal[.]" (Petr.'s Reply ¶ 4.) The timing of Bedewi becoming aware of this information is of little import, however. The text of § 2255 in the main provides a method for prisoners to challenge collaterally the legality of their custody and to seek release, not to challenge the restitution order. Indeed, although the D.C. Circuit does not appear to have addressed the issue, "[n]early every circuit to consider the issue has concluded that an order of restitution may be not attacked in a § 2255 petition[.]" Kaminski v. United States, 339 F.3d 84, 88 (2d Cir.2003); see also United States v. Bernard, 351 F.3d 360, 361 (8th Cir.2003) (collecting cases) (holding that "a federal prisoner cannot challenge the restitution portion of his sentence using 28 U.S.C. § 2255"); Townsend v. United States, Criminal Action No. 88-254-03(TFH), 2000 U.S. Dist. LEXIS 12705, at 14 (D.D.C. Aug. 28, 2000) (collecting cases). Even if a challenge to a restitution order were appropriate under § 2255, Bedewi has shown neither a fundamental defect in the imposition of the order nor good cause for his failure to challenge the order by direct appeal. II. GUIDELINES CALCULATION Bedewi claims that his sentence was imposed using a guidelines range inapplicable to his conviction. (See Petr.'s Mot. at 2-3). Specifically, he contends that the loss calculation utilized in the plea agreement and ultimately adopted at sentencing was the gain to himself, which U.S.S.G. § 2B1.1 directs is to be used only if the victim's loss cannot be accurately determined. See U.S.S.G. § 2B1.1 (b)(1), cmt. n. 3(B) (2004) ("The court shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined."). This claim fails for several reasons. Bedewi could have raised the claim on direct appeal, and he again does not show any cause for his failure to do so. As a result, the claim is procedurally barred. Bedewi's claim also fails on the merits because he agreed in the binding plea agreement which he signed and reaffirmed during his plea colloquy "that a sentencing range of 37 to 46 months ... is the appropriate sentence for the offense to which [he] is pleading guilty." (Plea Agreement SI 4.) Even if a different loss calculation was warranted and would have yielded a different sentencing range, the law in this circuit is that Rule 11(c)(1)(C) "countenances agreed-upon sentences falling outside of the otherwise applicable Guidelines range [,]" United States v. Goodall, 236 F.3d 700, 705 (D.C.Cir.2001), and "[o]nce parties reach a binding plea agreement specifying that a specific sentencing range is the appropriate disposition of the case, the court is bound by the plea agreement after it accepts it." Winchester, 477 F.Supp.2d at 85 (citing Fed.R.Crim.P. 11(c)(1)(C) and United States v. Heard, 359 F.3d 544, 548 (D.C.Cir.2004)); see also Nelson v. United States, 406 F. Supp. 2d 73, 76 n. 1 (D.D.C.2005). Moreover, where, as here, a petitioner agrees in a plea agreement to a particular sentence, he fails to demonstrate the requisite prejudice if he received a sentence consistent with the terms of the plea agreement. See Winchester, 477 F.Supp.2d at 86 ("As the petitioner here agreed that 144 months was an appropriate sentence, he fails to demonstrate prejudice."); Molina v. United States, Civil No. 04-1828, 2006 WL 1997384, at 3 (D.P.R. July 14, 2006) (finding that "petitioner has failed to demonstrate a specific showing of prejudice" where he was sentenced consistent with the terms of a plea agreement).[4] Bedewi appears to concede these points in his reply brief, and instead argues that his term of incarceration should be reduced because GWU received more fundsafter Bedewi was sentencedfrom third parties than were originally accounted for at the sentencing hearing. He insists that he learned this information months after the sentencing hearing, and that if the adjusted loss to GWU were taken into account, his sentencing range would be 18 to 24 months, rather than 37 to 46 months. (See Petr.'s Reply at 2.) Again, Bedewi's argument is unavailing because whether GWU was compensated by third parties after sentencing does not render the sentence itself illegal. See, e.g., United States v. Fisher, 150 Fed.Appx. 860, 862 (10th Cir.2005) (affirming a district court's denial of petitioner's § 2255 motion by explaining that "the fact that a victim has recovered part of its loss after discovery of a fraud does not diminish a defendant's culpability for purposes of sentencing" (internal quotations and citation omitted)). III. REQUEST FOR LENIENCY Bedewi urges that his sentence should be reduced in light of the great hardship that his incarceration and restitution have caused his family, and because of the more lenient guidelines that were previously applicable to his offense. (See Petr.'s Mot. at 3.) Under § 2255, however, a court may vacate, set aside, or correct a sentence only "if it determines that the sentence was illegal." United States v. Hughes, Criminal Action No. 04-445(CKK), 2006 WL 2092634, at 5 (D.D.C. July 27, 2006) (citing United States v. Addonizio, 442 U.S. 178, 185, 99 S. Ct. 2235, 60 L. Ed. 2d 805 (1979)). In other words, "[a] petitioner can collaterally attack his sentence under section 2255 where the sentencing judge made an `objectively ascertainable error.'" Id. (quoting Baylor v. United States, 314 F. Supp. 2d 47, 50 (D.D.C.2004)). Bedewi's requests for leniency are in no way challenges to the legality of his sentence, nor do they entail any claim of error. They therefore are not cognizable under § 2255.[5]See, e.g., United States v. Silva, 76 F.3d 390, 1996 WL 30270, at 2 (9th Cir.1996) (unpublished table opinion) (stating that "a plea for leniency based on factors other than those contemplated by section 2255 ... is not cognizable under section 2255"); United States v. Somers, 552 F.2d 108, 114 (3d Cir.1977) (explaining that a post-sentencing plea for leniency based on family hardship is not a proper grounds for a § 2255 proceeding); Hughes, 2006 WL 2092634, at 5 (finding that a petitioner's plea for leniency based on family hardship "is outside the scope of Section 2255"); Williams v. United States, No. 3:07-1038, 2008 WL 2704423, at 2 (M.D.Tenn. July 3, 2008) (holding that "section 2255 is inapplicable" to a petitioner's plea for leniency based on the "severe [h]ardship, due to the current health crisis in his immediate [f]amily"); Hamilton v. United States, No. 06-CR-179, 2008 WL 189933, at 3 (N.D.N.Y. Jan. 18, 2008) (same). IV. RULE 6 MOTION FOR DISCOVERY Finally, Bedewi has also moved under Rule 6 of the Rules Governing Section 2255 Proceedings for leave to seek discovery from the government to support his § 2255 motion.[6] Rule 6(a) instructs that a district court may authorize a party to conduct discovery upon a showing of "good cause," and good cause exists "`where specific allegations before the court show reason to believe that the petitioner may, if facts are fully developed, be able to demonstrate that he is ... entitled to relief[.]'" Bracy v. Gramley, 520 U.S. 899, 908-09, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997) (quoting Harris v. Nelson, 394 U.S. 286, 300, 89 S. Ct. 1082, 22 L. Ed. 2d 281 (1969)). None of the reasons provided by Bedewi in his Rule 6 motion constitutes such good cause. Bedewi insists that discovery is necessary to obtain information regarding the "true loss" to GWU. Again, Bedewi appears to rely on what GWU later received from "other parties which counts against the defendant's restitution[,]" and the fact that "[t]he `loss calculation' derived by the Government was based on the gain to the defendant" as the primary bases for his request. (See Petr.'s Mot. for Leave to Conduct Discovery ("Petr.'s Discovery Mot."), Ex. B (First Request for Admissions) ¶¶ 9-10.) As is discussed above, neither subsequent payments to GWU by third parties nor the loss calculation utilized constitutes grounds for granting petitioner's § 2255 motion. Thus, discovery on these issues is unnecessary and they do not provide good cause. Bedewi's discovery motion includes allegations that there were "widespread accounting improprieties in the university's research grants and contracts, some of which are illegal and fraudulent, and which would have resulted in a university[-]wide federal investigation." (Petr.'s Discovery Mot. at 5.) Even if these allegations were true, Bedewi fails to explain how such improprieties would alter his own culpability, and this failure renders discovery on such allegations similarly unnecessary and unwarranted. Bedewi insists that discovery would reveal that GWU knew of his "activities" with NGM and ITSC, and therefore he could not have been acting in a "`position of trust' as defined in the sentencing guidelines." (Id.) Even assuming that GWU did know of some of his activities with these companies, Bedewi fails to explain how such knowledge would negate his status as one in a position of trust as defined by § 3B1.3 of the Sentencing Guidelines.[7] He therefore fails to provide good cause for his discovery request on the issue. Finally, Bedewi seeks discovery to show that "he was not the Director [of NCAC]" during the entirety of the government's investigation of his criminal activity. (Id.) Bedewi again fails to provide good cause for his request, since even if there was a period in which he was not the Director, he does not deny that he held the position of Principal Investigator during the relevant timeframe or deny engaging in the offense. Bedewi gives simply no explanation for how such discovery could alter the outcome of his § 2255 proceedings. Accordingly, Bedewi's Rule 6 motion will be denied for lack of good cause shown. CONCLUSION GWU's receipt of compensation after Bedewi's sentencing does not undermine the legality of the restitution order. Because (1) Bedewi fails to show good cause for not raising his challenges to the restitution order and guidelines calculations by pursuing a direct appeal, (2) a § 2255 motion here is inappropriate to challenge his restitution order, (3) he agreed to the sentencing guidelines calculations in his binding Rule 11(c)(1)(C) plea agreement, and (4) his plea for leniency is not a ground for relief under § 2255, Bedewi's § 2255 motion will be denied. Bedewi's discovery motion will be denied for failure to show good cause for the discovery requested. An appropriate Order accompanies this Memorandum Opinion. NOTES [1] The parties agreed to a total offense level of 24, derived from a base offense level of 6, a 14-point enhancement under § 2B1.1(b)(1) for a loss of more than $400,000; a 2-point enhancement under § 3B1.1(c) for Bedewi's role as organizer and leader; and a 2-point enhancement under § 3B1.3 for abusing a position of trust. (See Plea Agreement ¶ 3.) [2] Bedewi originally filed his motion as a "Part 18 Rule 35 Motion for Correction or Reduction of Sentence[,]" but he later requested and was granted permission to have the motion recharacterized as a § 2255 motion. (See February 1, 2008 Order.) [3] The "cause and prejudice" standard applies whether a defendant has failed to raise a particular claim on appeal or has failed to appeal at all. See, e.g., Winchester, 477 F.Supp.2d at 84 (applying the standard to a petitioner's § 2255 motion where petitioner did not previously appeal his sentence). [4] Bedewi notes that he agreed to the Guidelines range calculation reflected in the plea agreement, in part, because of his reliance on the erroneous advice of his counsel. (See Petr.'s Mot. at 2.) While "ineffective assistance of counsel may demonstrate cause and prejudice," Cassell v. United States, Criminal Action No. 00-270(RMU), 2006 WL 2051371, at *4 n. 2 (D.D.C. July 19, 2006), Bedewi does not contend that his counsel's alleged ineffective assistance was the cause for his failure to raise his claims regarding the sentencing range calculation on direct appeal. Furthermore, although "the claim of ineffective assistance is not itself forfeited if not raised during appeal[,]" id., Bedewi's allegations do not amount to an ineffective assistance claim because he does not allege that "but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." United States v. Streater, 70 F.3d 1314, 1318 (D.C.Cir.1995). [5] Moreover, Bedewi's family circumstances were among the factors considered at sentencing. [6] He also originally asked to seek similar discovery from GWU, but later withdrew that request in his reply brief in support of his § 2255 motion. (See Petr.'s Reply ¶ 6 ("Petitioner... requests that the discovery be served upon the Government only.").) [7] "[T]rust refers to a position of ... trust characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference). Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature.... [T]he position of ... trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e.g., by making the detection of the offense or the defendant's responsibility for the offense more difficult)." U.S.S.G. § 3B1.3 application n. 1.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499363/	275 P.3d 959 (2012) 2012 OK CIV APP 28 Ike BARRETT and Oleta Barrett, Plaintiffs/Appellees, v. Bobby Joe HUMPHREY and Pearl Humphrey, Defendants/Appellants. No. 108,030. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2. Court of Civil Appeals of Oklahoma, Division No. 2. February 14, 2012. 960 Lloyd E. Cole, Jr., Stilwell, Oklahoma, for Plaintiffs/Appellees. William K. Orendorff, Matthew R. Orendorff, Sallisaw, Oklahoma, for Defendants/Appellants. JANE P. WISEMAN, Judge. ¶ 1 Bobby Joe Humphrey and Pearl Humphrey appeal an order of the trial court finding them negligent and awarding damages to Ike Barrett and Oleta Barrett in this action to recover for damage to a bridge on a road located on property owned by the Humphreys but used for ingress and egress by the Barretts. On appeal, we consider the issue of whether the trial court properly found (1) that the Barretts proved that they possessed an easement on the Humphreys' property and (2) that the Humphreys unreasonably interfered with that property right through their negligence. Having reviewed the record and applicable law, we conclude that the trial court's judgment that the Barretts had previously established their right to an easement on the Humphreys' property is not supported by the evidence.[1] Because the trial court erred in determining the issue of whether an easement had been established, the Humphreys' motion to reconsider should have been granted. We therefore reverse the order of the trial court and remand for further proceedings. FACTS AND PROCEDURAL BACKGROUND ¶ 2 The Barretts filed a petition for trespass and damages against the Humphreys claiming that they are the "owners of a utility easement and ingress-egress easement that traverses upon and adjoins real property owned by the [Humphreys]." The Barretts did not include a detailed property description of their property, the property over which they claim an easement, or the easement itself. The Barretts alleged the Humphreys "have obstructed the right of ways of the aforesaid easements by placing thereon various and sundry items of useless and deteriorated property best defined as `junk' and has [sic] also diverted surface water upon the aforesaid easements to the detriment and damage of the [Barretts]." The Barretts also alleged the Humphreys constructed a pipe which diverted water onto the easement. The Barretts sought damages as well as a permanent injunction. The Humphreys then asserted a counterclaim against the Barretts for trespass. ¶ 3 A non-jury trial was held on October 30, 2009. The trial in this case was consolidated with the trial of another case, CV-2007-414, 961 Bob Humphrey, et al. v. Kenneth Martindale, a case involving the Humphreys' claim of a right to use a portion of the road at issue in this case that traverses Martindale's property. ¶ 4 At trial, J.B. Thomas testified that the road was still being used as a public road in 1980 or 1985 but is no longer used as a public road. Judy Barrett, Ike's former wife, testified that the road goes through her property and ends at Ike's property. She stated Bob Humphrey consistently used the road from 1982 through 1993. ¶ 5 Bob Humphrey testified that although he acquired his property in 1966, he had used the roadway in question all his life (at the time of trial he was 78 years old). He never asked anyone permission to use the road because it was a county road. After he bought additional property in 1977, he started using the road more in order to access his barn. He once put a gate across the road at the entrance to his property, but he removed it after a county commissioner told him to do so. He continued to use the road from 1997 through 2007. In May 2007, however, the Martindales placed a cable across the road to deny him access, but they did not deny Ike Barrett access. Bob Humphrey asked the court to determine that he has a prescriptive easement as to the portion of the road across the Martindale property. ¶ 6 Before the Martindales owned their property, E.C. Stewart and D.C. Stewart sued both Humphrey and Ike Barrett after Humphrey placed a gate across the road (Case no. C-82-16). The trial judge in the present case stated that the journal entry in the 1982 case gave "Mr. Barrett and Mr. Humphrey both access to their properties through the use of that road, but nobody else." ¶ 7 Humphrey testified that he has equipment on his property on the north side of the road. Some of the equipment has been there for 10 or 15 years, but other pieces have been there only two or three years. He placed the equipment and barrels on the property because he was selling them as part of his business. Humphrey further testified that the barrels he sold did not have lids. ¶ 8 Kenneth Martindale testified he put a cable across the road because there was too much traffic on it and Bob Humphrey claimed he had a right to use the road to cross Martindale's property. ¶ 9 Ike Barrett testified that he lives one-half mile northwest of where the road in question intersects the county road. He claims the road is primarily for his and his family's use and that Bob never objected to his use of the road, which traverses Bob's property. Ike claims he has maintained the road from 1974 to the present at his own expense and that he gave Bob permission to use the road for fire control purposes. ¶ 10 Although the road crosses Bob's property, Ike claims that he rescinded permission for Bob to use the road. However, Ike acknowledged that he had nothing in writing from Bob to evidence an easement in Ike's favor over the property, that he had never sued Bob for use of the road, and that he had never made or had determined any claim to a prescriptive easement to the road across Bob's land. Ike's only claim to the road, beside his use of it, came from the decision in the Stewarts' lawsuit against Bob and Ike. He further testified that no one has ever questioned his right to use the road and that he has performed all of the upkeep on the road. ¶ 11 In 1982, the Barretts constructed an earthen bridge on the roadway as it crosses the creek. Pictures introduced into evidence show a series of six large pipes in the stream at the point where the road crosses the creek. The dirt road travels over the pipes. The road and the bridge at this location are on the Humphreys' property. ¶ 12 John Dillard, a dirt contractor who builds road pads, testified on behalf of the Barretts. Ike formerly worked for Dillard as an employee and had previously performed work on the road in question. There was a rainstorm of approximately 5.8 inches during the night of April 8-9, 2008. Dillard testified that Ike called him in April 2008 after the rainstorm and told him the road had washed out. Dillard went out to look at the road and saw a lot of erosion damage at the place where the pipes had been placed to facilitate the flow of creek water under the 962 road. He testified there were some items on the Humphreys' property that obstructed the flow of water including two lawn mowers, some concrete, and a brush hog. As to the equipment along the road, Dillard stated, "Most of them weren't hurting anything." But the two lawnmowers located in the overflow drainage were "causing a problem." Dillard estimated the cost to repair the bridge at $4,875. ¶ 13 On cross-examination, Dillard agreed that he could not say with a reasonable degree of certainty that the lawnmowers caused the erosion. Dillard has no training in road engineering. He did state that a six-inch pipe placed in the ditch by the Humphreys along the road west of the bridge was responsible for the road erosion. He also stated that the other items placed by the road on the Humphreys' property just slowed the overflow of water and caused it to back up in the road. Dillard agreed that the equipment, the barrels, and "everything else out there, has no significance to this lawsuit," saying that some equipment slowed the water, but he could not conclude that these caused the erosion and damage to the road and bridge. He concluded, "[T]here's no doubt about it, it's obvious that [the six-inch pipe] could not handle the water and it come out into the road and caused that erosion." ¶ 14 According to Ike, Bob started storing things on his property after Ike was listed as a witness against Bob in another lawsuit. Ike claims the barrels Bob placed on the property would blow into the road. Ike notified Bob that the items on the property were interfering with Ike's use of the road and that there was a problem with the six-inch pipe not being big enough to handle the water in the ditch. ¶ 15 There have been no modifications to the bridge since it was constructed in 1982. Ike testified there have been 2 or 3 previous rains of 5.2 inches or so and there has never been a problem with the bridge pipes handling the water. In the more than 20 years Ike had observed the functioning of the spillway (the area along the road approaching the bridge), the water had on one occasion started into the spillway but had never been needed to handle the water because the pipes in the stream had always worked to carry the water volume. ¶ 16 Ike testified that with a forecast for heavy rain on April 9, 2008, he went to check on the bridge and found no debris around it. The next morning just after daylight, he went down and saw that several of Bob's barrels were gone as well as one of the lawnmowers. Ike testified that these items restricted the water, turning it down the road and creating extreme erosion. Ten days later, on April 19, 2008, Ike cleaned out the pipes in the stream under the road and found two barrel lids in front of two of the pipes. He testified that Bob had some barrels on his property with lids like the ones he found. However, the lids found in the pipes under the bridge were on the upstream side of the bridge, and the barrels on Bob's property had been on the lower, downstream side of the creek. The incident had eroded part of the roadway above the pipes. Ike testified he did not have any of those types of lids anywhere on his property. Ike told the court that the six-inch pipe and the "implements" caused all of the erosion problems, specifically the lids. He estimated it would cost $8,475 to fix the damage. ¶ 17 Jerry Clement, a resident engineer for the Oklahoma Department of Transportation with expertise in road construction, testified on behalf of the Humphreys. He performed a survey of the road in question, as well as a survey of the areas both upstream and downstream of the channel and a profile grade line of the road. Clement testified there are six pipes that are part of the bridge, but one is completely covered by a rock that caused erosion over it. The inlet in all of the pipes but one is lower than the outlet on the downstream side, a situation which restricts the area of the pipe for the water to pass through. He told the court that the erosion on the bridge was caused by excessive water speed which in turn was caused by the following circumstances: "One hundred feet upstream, the channel was a wide open with a gradual slope on the sides. At 25 and 50 feet upstream, the channel has been restricted on the east side. Yeah. The east corner. By approximately 45 percent, which is going to cause an increase in the 963 velocity." Clement stated that in a stream such as this one, "the velocity can be no greater than four feet per second before it begins causing erosion." He testified that the flood that caused the damage was a 25-year flood and the velocity would have been 9.46 feet per second. Clement gave the opinion that the pipes used to build the bridge were too small to handle the volume of water, causing water to back up over the roadway. ¶ 18 Clement stated the lawnmowers did not contribute to the erosion. As to the six-inch pipe that the Barretts alleged caused the erosion, Clement stated, "[t]he elevation of that pipe is approximately ten foot lower than the elevation of the roadway at the top of the crossing and approximately 450 feet away." Clement concluded the pipe "has absolutely no bearing on the crossing or the lower part of the road." Clement stated the pipe did not contribute to the road's erosion and there was no erosion near the road next to the six-inch pipe. Clement also said it would not have been possible for a person to place a barrel lid in front of the bridge pipes given the force of the flowing water. Clement said he did not see any equipment, barrels, rocks, or items belonging to the Humphreys that caused any of the road erosion and that he did not see any erosion outside of the crossing. ¶ 19 On cross-examination, Clement stated the water was three feet over the top of the roadway and there was "no possible way that it all went through those pipes." He said the barrel lids would have had no impact on the pipes being able to carry water. He attributed the water over the bridge to the channel being restricted, but testified the barrel lids would have restricted the flow only about ten percent and would have had no significant impact on the water flow. ¶ 20 According to Clement, his opinion that a person could not place the barrel lids in front of the pipes was based on the assumption that the water was flowing. However, before the rain, the lids could easily have been placed in front of the pipes. Clement stated that larger pipes could correct the problems with the bridge. As built, the bridge could not handle the water flow. ¶ 21 The trial court in its October 30, 2009, journal entry of judgment held that the Barretts have an easement on the Humphreys' property for ingress and egress "established by judicial decree in the District Court of Sequoyah County, Oklahoma, Case No. C-82-16, dated May 30, 1986." The court found that the Barretts had erected and maintained an earthen bridge on the roadway, a bridge used and maintained by the Barretts without incident until the Humphreys' actions caused damage to the bridge. The court found that on April 8, 2009, a five-inch rainfall caused the culverts to overflow damaging the bridge and eroding portions of the roadway. The court stated, "Among the items adjoining the private road were barrels [the Humphreys] kept for sale from which two (2) barrel lids were found obstructing the culverts. These lids directly attributed [sic] to erosion and damage to [the Barretts'] easement, and in particular, the bridge." The court found the Barretts sustained damages of $4,225 as a result of the Humphreys' negligent conduct and granted judgment in favor of the Barretts for this amount. The court enjoined the Humphreys from further obstructing or impeding the flow of surface water. The court also found that the Barretts were entitled to a reasonable attorney fee pursuant to 12 O.S. § 940A.[2] ¶ 22 The Humphreys filed a motion to reconsider within 10 days which the trial court denied. The Humphreys appeal. STANDARD OF REVIEW ¶ 23 "The denial or award of an easement is an exercise of the trial court's equitable cognizance, and its order will be affirmed on appeal unless it is found to be against the clear weight of the evidence or contrary to law or established principles of equity." Mainka v. Mitchusson, 2006 OK CIV APP 51, ¶ 11, 135 P.3d 842, 845. Because we regard the Humphreys' motion to reconsider as the legal equivalent of a motion for new trial, we will review the trial court's denial of the motion for abuse of discretion. See 964 Reeds v. Walker, 2006 OK 43, ¶ 9 & n. 4, 157 P.3d 100, 106-07. ANALYSIS ¶ 24 The Humphreys first assert that there is no evidence that the Barretts even had a property right to justify their claim. The trial court stated the Barretts have an easement for ingress and egress on the Humphreys' property. "[A] an easement `is the right of one person to go onto the land of another and make a limited use thereof.'" Mooney v. Mooney, 2003 OK 51, ¶ 17, 70 P.3d 872, 876 (quoting Story v. Hefner, 1975 OK 115, ¶ 13, 540 P.2d 562, 566). "Easements may be expressly created by deed, or by necessity, or prescriptive use, or implied in a deed." Id. ¶ 25 In Brown v. Mayfield, 1989 OK CIV APP 32, ¶ 38, 786 P.2d 708, 713-14, this Court held that an order purporting to grant an easement was "so vague as to be void for the reason that it contains no legal description of the easement or the land so burdened." Similarly, in James v. Board of County Commissioners of Muskogee, 1999 OK CIV APP 47, ¶ 14, 978 P.2d 1002, 1004, this Court held that the trial court erred in failing to determine the precise location and width of a road that was the subject of a prescriptive easement. The Court stated, "The trial court's order does not state with particularity the description or dimensions of the road. If a judgment purports to transfer real property, it must describe the particulars of that estate in sufficient detail that all will know its bounds." Id. (Emphasis added.) ¶ 26 Although the trial court in the present case found that an easement was established on property owned by the Humphreys in the order in Case no. C-82-16, neither the order in Case no. C-82-16 nor the order of the trial court here provides a legal description of the easement. The trial court order in this case merely states that the Barretts own property in "Section 8, Township 12 North, Range 25 East, of Sequoyah County, Oklahoma," and that the Humphreys own property in the same section that is subject to an easement. The order in Case no. C-82-16 does not contain any legal description of the easement or of the servient estate. ¶ 27 The evidence in the record is not sufficient to determine the nature of the claimed easement. Although the trial court relied solely on the order in Case no. C-82-16 to conclude that an easement had been established, the order in the previous case is too vague to support that conclusion. Although the Barretts may well have a valid claim and may be able to establish an easement, the trial court erred in deciding that the previous 1986 court order established the Barretts' right to an easement when the order relied on does not state with specificity any description of an ascertainable easement.[3] Reliance on the previous order to establish the easement was misplaced, and the trial court should independently have decided this issue. Given this mistaken reliance, it was error to overrule the Humphreys' motion to reconsider, which clearly asserted the invalidity of the easement as a basis for reconsideration. We reverse the decision of the trial court and remand for further consideration. ¶ 28 On reconsideration, if the Barretts are able to establish the nature and extent of their claimed easement, the trial court must also revisit its conclusion that the Barretts established the Humphreys were negligent. Negligence cannot be found without first determining the exact nature of the duty owed by the Humphreys to the Barretts. "Duty depends upon the relationship between the parties and the general risks involved in the undertaking; and, whether a defendant stands in such relationship that the law will impose upon the defendant an obligation to the plaintiff is a question of law." Bouziden v. Alfalfa Elec. Coop., 2000 OK 50, ¶ 14, 16 P.3d 450, 455-56. 965 ¶ 29 The trial court based its decision on King v. Cade, 1951 OK 344, 240 P.2d 88, in which a landowner built a dam along the line separating his property from his neighbor's property. The Court in King held, "a proprietor may divert [surface water], cast it back or pass it along to the next proprietor, provided he does so without injury to such adjoining proprietor." Id. at ¶ 0, 240 P.2d at 88-89 (syl. no. 2 by the Court). According to the rule pronounced by the King Court, "no one is permitted to sacrifice his neighbor's property in order to protect his own." Id. at ¶ 0, 240 P.2d at 89 (syl. no. 2 by the Court). ¶ 30 The King case is clearly inapplicable to this case: we are not concerned here with surface water draining from one owner's land to his neighbor's. The issue we confront is whether a landowner caused damage to a bridge on his own property that is allegedly subject to the easement of another. ¶ 31 The owner of a servient estate "`can fully exercise his rights of ownership in any manner and for any purpose not inconsistent with the easement and the dominant estate owner may not interfere with such use.'" Kirby-Smith Machinery, Inc. v. City of Oklahoma City, 2001 OK CIV APP 25, ¶ 4, 19 P.3d 331, 333 (quoting City of Elk City v. Coffey, 1977 OK CIV APP 5, ¶ 12, 562 P.2d 160, 163); see also Margerison v. Charter Oak Homeowners Ass'n, 2010 OK CIV APP 67, ¶ 10, 238 P.3d 973, 977 ("A servient tenant may make reasonable use of his property burdened by an easement, so long as such use is not inconsistent with the dominant tenant's rights under the easement."); Tidwell v. Bezner, 2010 OK CIV APP 143, ¶ 14, 245 P.3d 620, 623 ("[A] servient owner may use the land upon which an easement is imposed in any reasonable manner that does not unduly burden the use made by the easement owner or which is not contrary to the terms of the easement."). ¶ 32 According to the Tidwell Court, the question of what constitutes an "undue burden" must be determined by balancing the interests of the servient and dominant estate holders: What constitutes an undue burden depends upon the facts and circumstances of each case, and requires weighing the reasonableness of interference by the servient owner against the disadvantage to the easement holder. In doing so, a court must remember that some degree of inconvenience for both parties is to be expected and tolerated in weighing these overlapping rights, and the party seeking an injunction must establish the necessity thereof by clear and convincing proof. Tidwell, 2010 OK CIV APP 143 at ¶ 14, 245 P.3d at 623. We find the reasoning in Tidwell persuasive. ¶ 33 The general theme in these cases is that the Humphreys may use their land as they see fit provided that they do not unreasonably interfere with the Barretts' use of the road on which they claim an easement. However, this duty is not one-sided. The holder of an interest in a dominant estate also has a duty not to use the property in a manner that injures or damages the servient estate. Cities Serv. Gas Co. v. Christian, 1957 OK 247, ¶ 5, 316 P.2d 1113, 1115. There is also a general rule "that costs of repair and maintenance are the duty and right of the easement holder if there is no agreement to the contrary." Lindhorst v. Wright, 1980 OK CIV APP 42, ¶ 12, 616 P.2d 450, 454. It is clear that the duties between the servient and dominant estate holders run both ways. ¶ 34 If the Barretts do, in fact, have an easement for ingress and egress over the Humphreys' property, they are not prohibited from building a bridge to help ensure access to their property. This principle is stated in Hammond v. Hammond, 258 Pa. 51, 101 A. 855, 857 (1917), where the Pennsylvania Supreme Court stated: The grantee of the free and uninterrupted use of a private road may improve it in such manner as to make it fit for the purpose expressed in the grant, and in so doing may construct a bridge over a ravine or creek, if it be done in such way as to cause the least practicable damage to the owner of the servient tenement; however, ample room must be left for the natural flow of the water, even in time of flood, except it be so great as to be beyond ordinary human experience, when it is regarded 966 as an act of God, for which man cannot be held responsible. However, the Barretts' right to design and build a bridge must be balanced against the Humphreys' property rights and use of the servient estate. ¶ 35 We do not conclude that the Barretts may not seek redress from the Humphreys for alleged unreasonable interference with the easement. Just as "[t]he owner of an easement has a right of action for interference therewith against the owner of the servient estate," 28A C.J.S. Easements § 243, "[a]n easement owner may maintain an action at law for damages for interference with the easement by the owner of the servient estate, and the owner of the servient estate may sue the easement owner for damages resulting from an improper exercise of the right granted." 28A C.J.S. Easements § 250. ¶ 36 The Barretts' claim against the Humphreys is grounded in negligence, that is, "the failure to exercise ordinary care to avoid injury to another's person or property." Oklahoma Uniform Jury Instructions-Civil No. 9.2. Did the Humphreys fail to do something a reasonably careful person would do, or do something a reasonably careful person would not do under the circumstances? ¶ 37 The trial court concluded that two barrel lids blocked the pipes and caused the damage to the bridge and the easement. As the trial court stated, "Common sense tells me that two barrel lids are going to stop the flow of water through those pipes and that's going to result in an over topping of the road causing damage to the road." The trial court further stated: "I don't think you [Bob Humphrey] did it on purpose, but you've got barrels out there and those barrel lids caused damage to the road." In its order, the trial court found: "These lids directly attributed [sic] to erosion and damage to [the Barretts'] easement, and, in particular, the bridge." ¶ 38 Although the Barretts claim that Bob intentionally placed the barrel lids in front of the bridge pipes, there is no evidence to support this contention. The trial court did not agree with the Barretts on this point, specifically stating in its ruling that it could not believe that Bob Humphrey "went down and put two barrel lids in front of a culvert to flood his own property just so you would have a bad road. The same road that [Bob Humphrey] uses." ¶ 39 The trial court did not agree with the Barretts' witness, John Dillard, who stated that the six-inch pipe placed in the ditch by the Humphreys was responsible for the road erosion. Dillard also could not attribute the erosion to the items stored near the roadway, and the trial court did not find that any of the other equipment or items complained of by the Barretts damaged the bridge.[4] ¶ 40 The Humphreys assert on appeal that there is no evidence in the record to support the trial court's finding that the barrel lids came from the Humphreys' property. The Humphreys also take issue with the trial court's finding that the barrels were upstream from the bridge crossing. After examining the record, we agree that the record, without dispute, establishes that the barrels were downstream from the bridge. The ownership and mechanism of movement of the lids in question are issues to be addressed upon remand. ¶ 41 After determining the nature and extent, if any, of the Barretts' easement and the ownership and movement of the lids, the question before the trial court should have been whether Bob's location and use of the lids constituted negligence which unreasonably interfered with the easement. Bob testified that the barrels were used in his business. The fact that Bob had barrels on his property does not per se establish that he was negligent. Ike testified that for as long as he has lived on his property, during which Bob stored equipment and, for the last 2 or 3 years, stored barrels on his own property, water has never come over the spillway and the bridge functioned as designed. 967 ¶ 42 "A negligent or careless act is not necessarily actionable negligence." Dirickson v. Mings, 1996 OK 2, ¶ 8, 910 P.2d 1015, 1018. A plaintiff must establish the following three elements for a successful negligence claim: "(1) the existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) a violation of that duty; and (3) injury proximately resulting therefrom." Consolidated Grain & Barge Co. v. Structural Sys., Inc., 2009 OK 14, n. 8, 212 P.3d 1168. Negligence is not equivalent to strict liability. ¶ 43 If the Barretts establish their easement, then they must show the Humphreys negligently stored lids on their property which unreasonably caused damage to the bridge thus interfering with the Barretts' easement. In relying on the law of easements and the duties imposed on both the servient and dominant estate holders, the Barretts' showing that lids somehow appeared in the bridge pipes may not be enough to establish actionable negligence on the part of the Humphreys which unreasonably interfered with the Barretts' easement. CONCLUSION ¶ 44 The trial court's judgment of October 30, 2009, finding that the Barretts had established in a previous case that they had an easement on the Humphreys' property and granting relief to the Barretts is reversed. The trial court's order denying the Humphreys' motion to reconsider is therefore also reversed, and the case is remanded for further proceedings consistent with this Opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. FISCHER, C.J., and BARNES, P.J., concur. NOTES [1] We grant in part and deny in part the Humphreys' motion to supplement the record on appeal. The Humphreys sought to supplement the appellate record with three exhibits. One of the exhibits is the final judgment in Case no. C-82-16. The trial court clearly considered the final judgment in Case no. C-82-16 during the trial conducted in this case, as consolidated with CV-2007-414. Therefore, we find it is appropriate to include the final judgment from Case no. C-82-16 in the appellate record. We decline to allow the Humphreys to supplement the record with two other exhibits from the 1982 case (the petition filed January 20, 1982, and a partial journal entry of judgment from October 5, 1983) because there is no indication the trial court considered those documents in the case below. [2] By separate order nunc pro tunc on February 16, 2011, the trial court entered judgment for the Barretts on the Humphreys' counterclaim for trespass. This order has not been appealed. [3] Counsel for the Barretts, who was also defending Martindale against the Humphreys' claim, first pointed to this deficiency in his demurrer to the Humphreys' evidence against Martindale. He stated: "There is absolutely no legal description offered. No evidence admitted before this Court as to where this roadway is located. So therefore you can't quiet a title to a roadway that you don't have a legal description to." [4] The trial court's failure to find that either the six-inch pipe or the items, other than the lids, stored near the roadway caused the damage to the bridge was not appealed and is therefore not an issue before us in this appeal.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499384/	(2008) Ilene HAYS and Dey, L.P., Plaintiffs, v. Michael O. LEAVITT, Secretary of the United States Department of Health and Human Services, et al., Defendants. Civil Action No. 08-01032 (HHK). United States District Court, District of Columbia. October 16, 2008. MEMORANDUM OPINION HENRY H. KENNEDY, JR., District Judge. Ilene Hays ("Hays"), a Medicare beneficiary, and Dey, L.P. ("Dey"), a drug manufacturer (collectively, "plaintiffs"), bring this action against Michael O. Leavitt, Secretary of the United States Department of Health and Human Services (the "Secretary"), Kerry Weems, the Acting Administrator for the Centers for Medicare and Medicaid Services, each in their official capacity, and four Medicare administrative contractors, National Heritage Insurance Company, National Government Services, CIGNA Government Services, and Noridian Administrative Services (collectively, "defendants"). Plaintiffs allege that defendants unlawfully limited the reimbursement rate under the Medicare Act (the "Act") for the inhalation drug DuoNeb. Before the court are the parties' cross-motions for summary judgment [## 16, 17]. Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that plaintiffs' motion [# 16] must be granted and defendants' motion [# 17] must be denied. I. BACKGROUND Hays is eligible for benefits under Part B of the Medicare Program on the basis of her disability. She suffers from Chronic Obstructive Pulmonary Disease for which her doctor has prescribed DuoNeb, an inhalation drug manufactured by Dey that is taken through a nebulizer. DuoNeb provides a combination of albuterol and ipratropium bromide in one dose. The Secretary administers Part B of the Medicare program through Medicare contractors, who may issue local coverage determinations specifying whether a particular drug will be covered in their geographic area under the Medicare program. In this case, the four Medicare contractors named as defendants issued local coverage determinations for DuoNeb declaring that reimbursement for DuoNeb would be based not on the cost of DuoNeb, as it had in the past, but on the payment allowance for the least costly medically appropriate alternative, separate doses of albuterol and ipratropium bromide. Plaintiffs challenge these determinations. A. The Medicare Act and the Department of Health and Human Services Regulations The Act, codified at 42 U.S.C. § 1395, et seq., furnishes health benefits, including hospital services, medical devices and equipment and drugs, for the elderly and disabled. Medicare Part B authorizes payment for non-institutional services and items such as durable medical equipment, including nebulizers and the inhalation drugs used with nebulizers. Id. § 1395u(o)(1)(G)(ii); 1395x(n). The Act bars payment for items or services that are not "reasonable and necessary": "no payment may be made ... for any expenses incurred for items or services which ... are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member." 42 U.S.C. § 1395y(a)(1)(A). The Secretary may delegate her responsibilities under section 1395y(a) to Medicare contractors. 42 U.S.C. § 1395h. Medicare contractors may make determinations of what payments are barred under the "reasonable and necessary" standard in local coverage determinations. Local coverage determinations are defined as "determination[s] by a fiscal intermediary or a carrier under part A or part B of this subchapter, as applicable, respecting whether or not a particular item or service is covered ... in accordance with section 1395y(a)(1)(A)." Id. § 1395ff(f)(2)(B). In other words, Medicare contractors may apply the "reasonable and necessary" standard to specific payments by Medicare contractors through local coverage determinations. The Act further provides that if a beneficiary requests payment for an inhalation drug for which payment may be made (i.e. that is covered), the amount payable will be equal to the amount provided under section 1395w-3a of the Act. Id. § 1395u(o)(1)(G)(ii). Section 1395w-3a, in turn, states that subject to two exceptions, the amount of payment is 106 percent of an amount calculated based on the average sales prices of the inhalation drug. Id. § 1395w-3a(b)(1)(A). The Secretary has provided direction to Medicare contractors through regulations. By regulation, the Secretary has stated, "An LCD [local coverage determination] may provide that a service is not reasonable and necessary for certain diagnoses and/or for certain diagnostic codes. An LCD does not include a determination of which procedure code, if any, is assigned to a service or a determination with respect to the amount of payment to be made for the service." 42 C.F.R. § 400.202. B. The Least Costly Alternative Policy and the Local Coverage Determination for DuoNeb The least costly alternative policy at issue in this case is found in the Secretary's interpretive manuals. The Medicare Benefit Policy Manual states that for durable medical equipment "where there exists a reasonably feasible and medically appropriate alternative pattern of care which is less costly than the equipment furnished, the amount payable is based on the rate for the equipment or alternative treatment which meets the patient's medical needs." Def.'s Ex. 2 at 13-14. The reimbursement is thus based on the payment amount for the least costly alternative. The Medicare Program Integrity Manual extends this concept to non-durable medical equipment, mandating that contractors "shall implement the new Least Costly Alternative (LCA) determinations through an LCD. `Least Costly Alternative' is a national policy provision that shall be applied by contractors when determining payment for all durable medical equipment (DME). Contractors have the discretion to apply this principle to payment for non-DME services as well." Pl.'s Tab 2 at 13. Until recently, the inhalation drug Duo-Neb was covered under the Act according to the payment formula set out in section 1395w-3a of the Act based on the average sales price of DuoNeb. A.R. 97, 151. In 2006, three Program Safeguard Contractors[1] published draft local coverage determinations proposing revisions to the existing local coverage determinations for nebulizers. See id. at 100-21, 126-53, 158-79. Relevant to this case, the draft local coverage determinations stated that the medical necessity of administering albuterol and ipratropium bromide in a combined unit dose had not been established and proposed applying the "least costly alternative" policy to DuoNeb. See id. at 106, 131-32, 163. The Program Safeguard Contractors then initiated a public comment and response period. In April 2008, the four Medicare contractors in this case issued new local coverage determinations for nebulizers. These determinations stated: The medical necessity for administering an FDA-approved unit dose combination of albuterol and ipratropium (J7620) compared to the separate unit dose vials of albuterol and ipratropium has not been established. Therefore, effective for claims with dates of service on or after November 1, 2008, when one unit of service of code J7620 is billed, if coverage criteria are met, payment will be based on the allowance for the least costly medically appropriate alternative2.5 units of J7613 [albuterol] and 0.5 units of J7644 [ipratropium bromide]. Id. at 488, 514, 540, 566. Therefore, effective November 1, 2008, if a claim is filed for the reimbursement code assigned to DuoNeb, reimbursement will be based on the least costly alternativethe sum of the reimbursement amounts for separate doses of albuterol and ipratropium bromide. II. ANALYSIS This case comes before the court on the parties' cross-motions for summary judgment.[2] Plaintiffs contend that the least costly alternative policy is contrary to the plain language of section 1395y(a) of the Act because it unlawfully determines payment rates in a section that only authorizes the Secretary to determine coverage. Defendants rejoin that the broad term "reasonable and necessary," combined with the focus of section 1395y(a) on payment and expenses, does authorize the least costly alternative policy. Defendants further contend that plaintiffs' claims are not subject to this court's jurisdiction because plaintiffs raise factual issues that have not been exhausted in an administrative process, and that Dey lacks standing because it is not a Medicare beneficiary. Plaintiffs are correct and, for the reasons that will be explained in this opinion, the court's jurisdiction is not dependent upon plaintiffs' exhaustion of any administrative remedy. Defendants, however, are correct that Dey does not have standing under the Act. A. The Court Has Jurisdiction Over Plaintiffs' Claim, but Plaintiff Dey Does Not Have Standing to Sue. Before reaching the merits of the case, the court first must determine whether it has jurisdiction over the claim and whether the parties have standing to sue. 1. Jurisdiction Defendants contend that the court lacks jurisdiction over plaintiffs' claims because their claims do not fall within the limited exception in the Act to the requirement that plaintiffs exhaust administrative remedies before bringing an action in court. The limited exception, defendants argue, is for beneficiaries who challenge a local coverage determination on purely legal grounds and put no material facts into dispute. Defendants assert that plaintiffs have put material facts into dispute by questioning whether DuoNeb is therapeutically equivalent to separate doses of albuterol and ipratropium bromide and contending that defendants have failed to consider the effects on the market of their local coverage determinations. Plaintiffs rejoin that these factual disputes are irrelevant to the sole issue of law to be determined in this case. Plaintiffs are correct. The Act generally requires plaintiffs to exhaust administrative remedies before bringing a challenge in court, however the Act carves out a limited exception. Section 1395ff(f)(3) provides that in a challenge to a local coverage determination where "there are no material issues of fact in dispute, and the only issue of law is ... that a regulation, determination, or ruling by the Secretary is invalid, the moving party may seek review by a court of competent jurisdiction without ... exhausting... administrative remedies." 42 U.S.C. § 1395ff(f)(3). While plaintiffs do raise factual issues in their briefing, including whether DuoNeb is therapeutically equivalent to separate doses of its components, these factual issues are not material to plaintiffs' primary challenge: whether the Act grants the Secretary the authority to implement the least costly alternative policy under section 1395y(a) of the Act. This question is purely legal, regarding the interpretation of the authority granted in the Act, and any factual matters raised by plaintiffs are immaterial to its resolution. It is this narrow question to which the court's inquiry is limited. 2. Standing Defendants argue that Dey does not have standing to sue because the Act limits standing to challenge local coverage determinations to beneficiaries, and Dey is not a beneficiary. Plaintiffs rejoin that Dey has prudential standing because it has suffered a legal wrong due to the local coverage determinations and it falls within the zone of interests protected by the Act. Defendants are correct. The Act limits standing to challenge local coverage determinations to beneficiaries: "An action under this subsection seeking review of a ... local coverage determination may be initiated only by individuals ... enrolled under part B ... who are in need of the items or services that are the subject of the coverage determination." 42 U.S.C. § 1395ff(f)(5); see Bailey v. Mut. of Omaha Ins. Co., 534 F. Supp. 2d 43, 46 n. 2 (D.D.C.2008). This explicit direction by Congress supersedes any judicial determination of whether a party falls within the zone of interests test. See Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349, 104 S. Ct. 2450, 81 L. Ed. 2d 270 (1984) (holding that specific Congressional language overrides the presumption favoring judicial review). Because Dey, as a drug manufacturer, is not "in need of the items or services that are the subject of the coverage determination," Dey is denied standing by the Act. See 42 U.S.C. § 1395ff(f)(5). Plaintiffs' arguments that Dey falls within the zone of interests test are inapposite. Dey is therefore dismissed from this case. B. The Plain Language of the Medicare Act Precludes the Secretary's Authority to Implement the Least Costly Alternative Policy. Hays contends that the language of the Act unambiguously bars the Secretary from implementing the least costly alternative policy under section 1395y(a) because it runs contrary to the clear language of section 1395w-3a setting payment amounts for covered inhalation drugs. Defendants rejoin that the "reasonable and necessary" language of section 1395y(a) is ambiguous, conferring great discretion on the Secretary, and that the least costly alternative policy is a permissible construction of section 1395y(a) because that provision explicitly addresses payment and expenses. Further, defendants argue, section 1395y(a) operates "notwithstanding any other provision." Analyzing the parties' arguments under the Chevron standard, the court holds that the least costly alternative policy is not authorized by the Act. 1. The Chevron Standard Under the Administrative Procedure Act, a court must set aside agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;" "contrary to constitutional right, power, privilege, or immunity;" or "in excess of statutory .. . authority ... or short of statutory right." 5 U.S.C. § 706(2).[3] The Supreme Court in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984) set forth the applicable methodology for reviewing whether an agency's interpretation of a statute it administers is in accordance with law. Under Chevron, the court first must determine whether Congress has "directly spoken to the precise question at issue." Id. at 842, 104 S. Ct. 2778 ("If the intent of Congress is clear, that is the end of the matter ...."). If Congress has not directly spoken, then the court must defer to a "permissible" construction of the statute by the agency. Id. at 843, 104 S. Ct. 2778. In Medicare cases, the court must give additional deference to the Secretary's interpretation of the Act because of the "tremendous complexity" of the Medicare program. Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225, 1229 (D.C.Cir. 1994); see Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994). In determining whether Congress has directly spoken to the issue under the first step of the Chevron analysis, the court begins with the statutory language. Chevron, 467 U.S. at 842, 104 S. Ct. 2778. If the statute's text is plain and unambiguous, "the sole function of the courts is to enforce it according to its terms." United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S. Ct. 1026, 103 L. Ed. 2d 290 (1989) (internal citations omitted). The plainness or ambiguity of statutory language "is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S. Ct. 843, 136 L. Ed. 2d 808 (1997). If analysis of the statutory language and its context does not yield a plain meaning, the court may look to the statute's overall purpose and its legislative history to discern Congress's intent. See id. at 341, 117 S. Ct. 843 (interpreting an ambiguous statutory term in light of the statute's overall purpose); Chevron, 467 U.S. at 845-54, 104 S. Ct. 2778 (discussing at length the legislative history of the relevant statute after finding the statute's text an inadequate guide as to the meaning of the provision interpreted by the challenged regulations). 2. Application of the Chevron Standard The dispute in this case turns on the construction of the phrase, "no payment may be made ... for any expenses incurred for items and services ... which... are not reasonable and necessary" in section 1395y(a) of the Act. Section 1395y(a) provides: (a) Items or services specifically excludedNotwithstanding any other provision of this subchapter, no payment may be made under part A or part B of this subchapter for any expenses incurred for items or services (1)(A) which, except for items and services described in a succeeding subparagraph or additional preventive services (as described in section 1395x(ddd)(1) of this title), are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member. 42 U.S.C. § 1395y(a)(1)(A). Whether this provision authorizes the Secretary's least costly alternative policy, and in particular the construction of "reasonable and necessary," is at the heart of the dispute in this case. At step one of the Chevron analysis, the question before the court is whether, after looking at the language, context and legislative history of section 1395y(a), Congressional intent with respect to the language is clear. Based on an analysis of these sources of meaning, the court holds that Congressional intent is clear and section 1395y(a) does not authorize the Secretary to set a payment rate for an item or service that differs from the statutory formula in section 1395w-3a. a. Text Hays argues that "reasonable and necessary" modifies "items and services." Based on this reading, Hays contends that the Secretary must deny all coverage for an item or service that is not reasonable and necessary. Once the Secretary determines that an item or service is reasonable and necessary and therefore not barred by section 1395y(a), however, Hays contends that this section does not provide authorization to determine the payment rate for that item or service. Instead, Hays argues, the Act provides a very specific formula for reimbursement in section 1395w-3a. According to Hays, the Act leaves no gapsonce a coverage decision is made under 1395y(a), the Secretary must go directly to the reimbursement formula in section 1395w-3a to determine the amount of payment. The least costly alternative policy, which does not bar payment for an item or service, but instead determines the rate of payment for a covered item at the level of its least costly alternative, is therefore not authorized by section 1395y(a). Hays supports this reading of the Act with language from the Secretary's regulations governing the local coverage determination program: "An LCD does not include a determination ... with respect to the amount of payment to be made for the service." 42 C.F.R. § 400.202. Defendants rejoin that the term "reasonable and necessary" modifies "expenses." On this reading, the Secretary is authorized to find that certain expenses related to a covered item or service are not reasonable and necessary and determine that no payment will be made for those expenses. Citing Heckler and Good Samaritan Hospital v. Shalala, 508 U.S. 402, 113 S. Ct. 2151, 124 L. Ed. 2d 368 (1993), defendants emphasize that "reasonable and necessary" is a broad term, leaving great discretion to the Secretary. They further argue that section 1395y(a) does not contain any presumption of coverage or dictate that all items and services that are reasonable and necessary must be reimbursed for the full amount claimed. Defendants dispute the distinction Hays draws between coverage and reimbursement decisions. With respect to Hays' argument that the amount of payment for a covered item is set by section 1395w-3a, defendants rejoin that section 1395w-3a still sets the amount of reimbursement; the Secretary merely decides that a particular item or service will be reimbursed at the amount specified by 1395w-3a for its least costly alternative. Finally, defendants argue that Hays' interpretation of section 1395y(a) treats the statutory language "expenses incurred for" as mere surplusage.[4] Whether "reasonable and necessary" modifies "items or services" or "expenses" matters because defendants argue that their authority to set payment rates under section 1395y(a) derives from Congress's directive barring payments of unreasonable and unnecessary expenses. The most natural reading of section 1395y(a), however, is that "reasonable and necessary" modifies "items and services" and not "expenses" and so defendants construction does not stand and the Act does not authorize them to set payment rates through section 1395y(a). The Act bars payment for expenses incurred for items and services which "are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member." 42 U.S.C. § 1395y(a)(1)(A). A natural reading of the language links "reasonable and necessary for diagnosis or treatment" to the items or services that diagnose or treat. This is the way courts have read this clause. See, e.g., Heckler, 466 U.S. at 617, 104 S. Ct. 2013 (referring to the Secretary's decision under section 1395y(a) as "whether a particular medical service is `reasonable and necessary'") (emphasis added); United Seniors Ass'n, Inc. v. Shalala, 182 F.3d 965, 967 (D.C.Cir.1999) ("If a service is deemed not to have been reasonable and necessary, Medicare will not make a payment....") (emphasis added); Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190, 194 (D.D.C.2005) ("All Medicare coverage is limited to services that are medically `reasonable and necessary' for the diagnosis or treatment of illness.") (emphasis added). Moreover, section 1395ff(f)(2)(B), defining a local coverage determination, mandates a determination of whether or not a particular item or service is covered, and not whether a particular expense is covered. 42 U.S.C. § 1395ff(f)(2)(B) ("`local coverage determination' means a determination... respecting whether or not a particular item or service is covered ... in accordance with section 1395y(a)(1)(A)"). This natural reading is further supported by the rule of statutory construction whereby "[o]rdinarily, qualifying phrases are to be applied to the words or phrases immediately preceding and are not to be construed as extending to others more remote." United States v. Pritchett, 470 F.2d 455, 459 (D.C.Cir.1972). While this rule will give way where the context indicates otherwise, United States v. Barnes, 295 F.3d 1354, 1360 (D.C.Cir. 2002), as discussed below, the context in this case provides further support for construing "reasonable and necessary" to modify its immediate antecedent "items or services."[5] b. Context Hays contends that the context of section 1395y(a) within the Act demonstrates Congress's intent that decisions about payment rates may not be made under that section. Hays argues that the Act sets out a comprehensive scheme whereby coverage determinations are made under section 1395y(a) and reimbursement decisions are made under separate provisions, in this case section 1395w-3a, and argues that defendants' reading would render section 1395w-3a subordinate to section 1395y(a). Defendants rejoin that a fundamental prerequisite of section 1395w-3a is a finding that an item or service is "reasonable and necessary" under section 1395y(a) and that, under the least costly alternative policy, section 1395w-3a would still set the payment amount based on the average sales price of the least costly alternative. Hays' arguments are well taken. Section 1395y(a) bars payment for any expense incurred for items and services which are not reasonable and necessary under the entire Act. The Act then provides for the amount of payment for particular classes of items and services in numerous sections. In the case of the inhalation drugs at issue in this case, the section that prescribes payment is section 1395w-3a which specifies a reimbursement rate of 106 percent of the average sales price. 42 U.S.C. § 1395w-3a(b)(1)(A). In many other cases, reimbursement is set at the "reasonable cost" of the item or service. See, e.g., 42 U.S.C. § 1395f(b) ("The amount paid to any provider of services... with respect to services for which payment may be made under this part shall... be ... the lesser of (A) the reasonable cost of such services ... or (B) the customary charges with respect to such services."); see generally 42 U.S.C. § 1395x(v) (defining "reasonable costs" as "the cost actually incurred, excluding therefrom any part of the incurred cost found to be unnecessary in the efficient delivery of needed health services"). Defendants' reading of the provision as barring expenses that are not reasonable and necessary would give the Secretary enormous discretion under section 1395y(a) to determine the payment amount for every item and service covered under the Act without reference to the payment provisions of the Act. This flies in the face of the detailed statutory provisions, including section 1395w-3a, which set up explicit formulas for how much a beneficiary or provider will be paid for particular items and services. If the Secretary has broad discretion to determine what expenses are reasonable and necessary under section 1395y(a), the Secretary may re-write these formulas to her liking whenever she believes they provide for an unreasonable or unnecessary expense simply by stating that any payment of expenses above her desired payment amount are barred as unreasonable or unnecessary under section 1395y(a).[6] There is no indication that Congress intended to confer such broad authority through section 1395y(a); in fact the explicit language of section 1395w-3a and other reimbursement provisions indicates the contrary. Section 1395w-3a(b) states that the reimbursement rate for a covered multiple source drug, such as DuoNeb, is "106 percent of the amount determined under paragraph (6)." 42 U.S.C. § 1395w-3a(b)(1)(A). Paragraph six, in turn, sets out a calculation of the average sales price using volume-weighted average sales prices, and subsection (c)(3) sets out the requirement that the calculation of the average sales price must include all discounts or other price concessions made by the manufacturer. Id. § 1395w-3a(b)(6) & (c)(3). The section further creates two exceptions when the Secretary need not use this reimbursement methodology. Id. § 1395w-3a(d) & (e). This provision, dictating payment amounts for covered items and services, is extraordinarily detailed. It does not make sense to conclude that Congress, having minutely detailed the reimbursement rates for covered items and services, intended that the Secretary could ignore these formulas whenever she determined that the expense of an item or service was not reasonable or necessary. See Roselli v. Noel, 414 F. Supp. 417, 424 (D.R.I.1976) ("The comprehensiveness of this explicit statutory scheme belies the... assertion that it gives rise to an implicit delegation of virtually unlimited authority...."). Moreover, in the case of payment rates for items or services that are set in the Act at "reasonable cost," reading section 1395y(a) to bar the Secretary from payment of expenses that are not reasonable and necessary would be entirely duplicative. If the Secretary may not allow payment for an unreasonable or unnecessary expense under section 1395y(a), then the Act's direction that "reasonable costs" will be the costs actually incurred, excluding any part of the incurred cost found to be unnecessary in the efficient delivery of needed health service, would be duplicative and unnecessary. Any "incurred cost found to be unnecessary in the efficient delivery of needed health services," 42 U.S.C. § 1395x(v), would be barred under section 1395y(a). "Because the court's duty is to give meaning to each word of a statute, the court cannot properly treat one authorization ... as duplicative of another authorization....". Fin. Planning Ass'n v. S.E.C., 482 F.3d 481, 492 (D.C.Cir. 2007). c. Legislative History Hays contends that the legislative history makes clear that "reasonable and necessary" refers to a medical decision as to whether or not an item or service contributes meaningfully to treatment. Defendants rejoin that the limited legislative history hardly supports Hays' position that cost may not be considered in coverage determinations. The question of whether the Secretary may consider costs under the "reasonable and necessary" standard is irrelevant to this case. However, the legislative history does provide support for Hays' construction of the statutory text. The limited available legislative history supports reading the Act such that "reasonable and necessary" modifies "items and services." In its report, the Senate stated, "the bill would bar payment for health items or services that are not reasonable and necessary for the treatment of illness and injury...." S.Rep. No. 89-404, 1965 U.S. Code Cong. and Adm. News 1943, 1989. This language drops "expenses" altogether providing further support for the proposition that Congress intended "reasonable and necessary" to modify "items or services." Defendants argument that nothing in this section precludes the Secretary from interpreting the "reasonable and necessary" standard as permitting considerations of cost misses the point. The point in this case is not whether the Secretary may consider cost when determining whether an item or service is reasonable and necessary, but whether the Secretary, once she has decided that an item is reasonable or necessary and thus covered by the Act, may set the payment rate by deciding which expenses, associated with the covered item, are reasonable and necessary. III. CONCLUSION For the foregoing reasons, Hays' motion for summary judgment is granted with respect to the claim that the Secretary lacks authority under 42 U.S.C. § 1395y(a) to apply the least costly alternative policy to DuoNeb; defendants motion for summary judgment is denied; and plaintiff Dey is dismissed from this case. An appropriate order accompanies this memorandum opinion. NOTES [1] At that time, Program Safeguard Contractors assisted the Secretary by recommending local coverage determinations for adoption by Medicare contractors. [2] Summary judgment is an appropriate procedure for resolving a challenge to a federal agency action. The court does not employ the standard of review set forth in Federal Rule of Civil Procedure 56, however. Rather, the standard of review is prescribed by the relevant statute and the Administrative Procedure Act. Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C.1995). [3] Section 1395ff(b) specifies 42 U.S.C. § 405(g) as "the sole avenue for judicial review for all `claim[s] arising under' the Medicare Act." Heckler v. Ringer, 466 U.S. 602, 615, 104 S. Ct. 2013, 80 L. Ed. 2d 622 (1984); see 42 U.S.C. § 1395ff(b). The court reviews the Secretary's actions pursuant to section 405(g) where applicable; "where no provision of § 405(g) is on point, we apply the judicial review provisions of the APA." Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71, 78 (2d Cir.2006). [4] The parties also dispute whether the Secretary can take costs into account when determining whether an item or service is reasonable and necessary. Because Hays challenges whether the Secretary has the authority to dictate the payment rate, not whether the Secretary may take cost into account in determining whether an item or service is reasonable and necessary, this question is not necessary to the determination of this case and the court does not address it. [5] Defendants contend that the reading of the Act endorsed by the court today renders the term "expenses" mere surplusage. It does not. The use of "expenses incurred" may be understood to refer to the general scheme of the Act whereby beneficiaries and participating entities are reimbursed by Medicare for expenses incurred. See 42 U.S.C. § 1395l(a) ("there shall be paid from the Federal Supplementary Medical Insurance Trust Fund, in the case of each individual who is covered under the insurance program established by this part and incurs expenses for services with respect to which benefits are payable under this part...."); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 205, 109 S. Ct. 468, 102 L. Ed. 2d 493 (1988) ("Under the Medicare program, health care providers are reimbursed by the Government for expenses incurred in providing medical services to Medicare beneficiaries."). [6] While in this case defendants insist that the least costly alternative policy does not set the payment amount, which would still be set by section 1395w-3a based on the average sales price of albuterol and ipratropium bromide separately, it does set the payment rate and nothing in their reading of the statutory language as barring expenses that are not reasonable and necessary would limit their authority to set payment amounts under section 1395y(a).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499360/	(2008) Gregory NORWOOD, Plaintiff, v. Jeanne WOODFORD, et al., Defendants. No. 07cv57 WQH (JMA). United States District Court, S.D. California. September 5, 2008. ORDER HAYES, District Judge. The matters before the Court are the Motion to Dismiss Plaintiff's First Amended Complaint filed by Jeanne Woodford and Gerald Janda (Doc. # 33); the Motion to Dismiss Plaintiff's First Amended Complaint filed by Jeanne Woodford, Gerald Janda and M Bourland (Doc. #44); the Motion to Dismiss Plaintiff's First Amended Complaint filed by Jeanne Woodford, Gerald Janda, M Bourland, and J Giurbino (Doc. # 58); and the Report and Recommendation filed by Magistrate Judge Jan M. Adler (Doc. # 69). Background On January 8, 2007, Plaintiff Gregory Norwood, a state prisoner, initiated this action by filing a complaint (Doc. # 1). On April 16, 2007, Plaintiff filed the First Amended Complaint ("FAC") (Doc. # 12), which is the operative pleading in this case. The FAC alleges that Defendants Woodford, Janda, Bourland and Giurbino deprived Plaintiff of outdoor exercise from November 7, 2005 to December 16, 2006, a period of 39 days, in violation of his rights as protected by the Eighth Amendment of the United States Constitution. The FAC alleges that "Defendants motives were to use the deprivation period as a means to punish Plaintiff." FAC, p. 5. The FAC alleges that Woodford was the Director of California State Prisons at the time of the deprivation and that she "knew that plaintiffs period of deprivation existed. And this defendant approved of it." Id. The FAC alleges that Giurbino was Warden of Calipatria State Prison and "is responsible for plaintiffs custody treatment and discipline and had to approve the lockdown." Id. The FAC alleges that Bourland was Chief Deputy Warden of Calipatria State Prison and that Janda was Associate Warden. The FAC alleges that Bourland and Janda knew of Plaintiffs deprivation because they were served with an institutional grievance filed by Plaintiff, yet did not provide Plaintiff with any outdoor exercise opportunities. Id. at 6. The FAC also alleges that Defendants retaliated against him for asserting his protected right to be free from harm, in violation of his rights as protected by the First Amendment. On November 13, 2007, January 7, 2008 and March 27, 2008, Defendants filed Motions to Dismiss (Docs.# 33, 44, 58) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The grounds for dismissing the FAC are the same in each Motion to Dismiss. Specifically, Defendants move to dismiss the FAC on grounds that Plaintiff fails to state a claim for violation of the Eighth Amendment because Plaintiff "has not satisfied either the objective or subjective requirements of a claim for deprivation of outdoor exercise in that Plaintiff was not denied the minimal civilized measure of life's necessities, and there was no deliberate indifference" by any Defendant. (Docs. # 33, p. 3; 44, p. 4; 58, p. 4). Defendants also contend that they are entitled to qualified immunity. Plaintiff filed oppositions to the Motions to Dismiss (Docs.# 45, 61). On June 30, 2008, Magistrate Judge Jan M. Adler filed a Report and Recommendation ("R & R") recommending that the Court (1) deny the Motions to Dismiss the FAC, and (2) dismiss all claims against Defendant Sergeant Rutledge. The R & R concludes that Plaintiff has satisfied the objective requirement to state an Eighth Amendment claim because Plaintiff has alleged that he was denied outdoor exercise for 39 days, and "Plaintiffs alleged deprivation is sufficiently close in duration to the deprivations . . . that Eighth Amendment protection may be invoked." R & R, p. 1206. The R & R concludes that Plaintiff has satisfied the subjective requirement to state an Eighth Amendment claim on grounds that Plaintiff alleges that each Defendant acted with deliberate indifference because they knew that the lack of outdoor exercise presented a risk to Plaintiffs health and safety, yet either directed or approved of the deprivation. The R & R concludes that Plaintiff has sufficiently alleged the objective and subjective elements of an Eighth Amendment claim. The R & R further concludes that Defendants are not entitled to qualified immunity because Plaintiff has alleged an Eighth Amendment claim and "any reasonable official in Defendants' positions would have understood that the denial of outdoor exercise for an extended period of time was unconstitutional. The Eighth Amendment may be violated even in a lockdown situation." R & R, p. 1214. On July 17, 2008, Defendants filed objections to the R & R (Doc. # 72). On July 30, 2008, Plaintiff filed a response to Defendants' objections (Doc. # 77). Standard of Review A. Rule 72Review of a Report and Recommendation The duties of the district court in connection with the Report and Recommendation of a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b). The district judge "must make a de novo determination of those portions of the report... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b). B. Rule 12(b)(6)Motion to Dismiss for Failure to State a Claim A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the pleadings. See De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir.1978). A complaint may be dismissed for failure to state a claim under Rule 12(b)(6) where the factual allegations do not raise the right to relief above the speculative level. See Bell Atlantic v. Twombly, 550 U.S. 544, ___, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007). Conversely, a complaint may not be dismissed for failure to state a claim where the allegations plausibly show that the pleader is entitled to relief. See id. (citing Fed R. Civ. P. 8(a)(2)). In ruling on a motion pursuant to Rule 12(b)(6), a court must construe the pleadings in the light most favorable to the plaintiff, and must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn therefrom. See Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003); see also Chang v. Chen, 80 F.3d 1293 (9th Cir.1996). The court looks not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). Where a plaintiff appears pro se, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir.1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992). Analysis Defendants object to the R & R on three grounds. First, Defendants contend that the Magistrate Judge incorrectly concluded that the objective component of the Eighth Amendment claim had been met. Second, Defendants contend that the Magistrate Judge incorrectly concluded that the subjective component of the Eighth Amendment claim had been met. Third, Defendants contend that the Magistrate Judge incorrectly concluded that Defendants were not entitled to qualified immunity. "[R]egular outdoor exercise is extremely important to the psychological and physical well being of prison inmates. Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir.1979). Exercise is one of the basic human necessities protected by the Eighth Amendment of the United States Constitution. Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991). To assert an Eighth Amendment claim for deprivation of human necessities, a prisoner must satisfy two requirements, one of which is objective and the other of which is subjective. Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). "Under the objective requirement, the prison officer's acts or omissions must deprive an inmate of the minimal civilized measure of life's necessities." Allen v. Sakai, 48 F.3d 1082, 1088 (9th Cir.1995) (internal citations omitted). The subjective requirement, relating to the prison official's state of mind, requires "deliberate indifference." Id. at 1087. A. Objective Component of the Eighth Amendment Claim Defendants "object that in the R & R the Court declines to consider the difference in an emergency lockdown situation in deciding the objective component." Opposition, p. 2. Defendants state: [T]his case's 39-day deprivation of outdoor exercise falls between the 28-day deprivation allowed [in the Ninth Circuit] and the 42-day deprivation not allowed [in the Ninth Circuit]. The scales, however, should tip in favor of allowing the deprivation because this deprivation occurred in the context of a lockdown of the entire general population following an alleged assault by inmates on staff, as opposed to simply not making provisions for Administrative Segregation inmates to get exercise under normal prison conditions. Id. In Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir.1980), the Ninth Circuit held that a five-month lockdown and 28-day deprivation of outdoor exercise in response to a genuine emergency did not satisfy the objective element of the Eighth Amendment analysis. In so holding, the Ninth Circuit stated: "The present case ... confronts us with . . . unusual circumstances...; this lockdown was in response to a genuine emergency. The measure was temporary and plaintiffs here were allowed approximately the minimum exercise mandated in [Spain, 600 F.2d 189] within a month after the imposition of the lockdown." Hayward, 629 F.2d at 603. In Allen, the Ninth Circuit held that permitting a prisoner 45 minutes per week of outdoor recreation during a six-week period satisfied the objective element of the Eighth Amendment analysis. 43 F.3d at 1088. The Ninth Circuit stated that "defendants cannot legitimately claim that their duty to provide regular outdoor exercise to Smith was not clearly established. [Plaintiff] has met the objective requirement of the Eighth Amendment analysis by alleging the deprivation of what this court has defined as a basic human need." Id. Similarly, in Lopez v. Smith, 203 F.3d 1122, 1133 (9th Cir.2000), the Ninth Circuit held that the objective element of the Eighth Amendment analysis was satisfied by a prisoner who was denied all access to outdoor exercise during a six-and-one-half week period of time. The FAC alleges that the lockdown was implemented to punish Plaintiff and was "utilize[d] as a deterrent to future staff assaults by subjecting inmates to such extreme suffering[] that they would dread another lockdown." FAC, p. 5, 7. According to the FAC, Plaintiff was denied any outdoor exercise for 39 days. This is a longer period of time than the 28-day period held to be constitutionally permissible in Hayward. The amount of time during which Plaintiff was deprived of outdoor exercise is much closer to the periods of time held to satisfy the objective element in Lopez and Allen. Construing the allegations in the FAC in the light most favorable to Plaintiff, the Court concludes that dismissal of this action on grounds that the alleged 39-day deprivation of outdoor action does not satisfy the objective component of an Eighth Amendment claim is improper at this stage of the proceedings. B. Subjective Component of the Eighth Amendment Claim Defendants contend that the totality of the circumstances indicate that the deprivation of outdoor exercise was "not instituted simply to cause harm" because "Plaintiff's allegations and documents he attached to his First Amended Complaint" show that the lockdown was in response to incidents of attempted murder on prison staff by inmates other than Plaintiff, and that the decision regarding reinstatement of outdoor exercise was being reviewed on a daily basis. Objections, p. 3. Defendants contend that they do not argue that the subjective element is only satisfied if an inmate is specifically targeted. Rather, the lack of targeting an inmate (or a small well-defined group of inmates) is part of the totality of circumstances to consider, and shows, when coupled with other factors, the lack of maliciousnessi.e. that the deprivation was not instituted simply to cause harm. Objections, p. 3. Defendants contend that the documents attached to the Complaint, which demonstrate that the deprivation was in response to multiple attempted murders upon staff and that the prison was evaluating reinstatement of outdoor exercise on a daily basis, refute Plaintiffs "conclusory allegation that the deprivation of outdoor exercise served no security purpose but was simply instituted to cause extreme suffering." Id. at 4. The subjective element of the Eighth Amendment requires "deliberate indifference." Allen, 48 F.3d at 1087. Deliberate indifference is found when a prison official knows of and disregards an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837, 114 S. Ct. 1970. The FAC alleges "Defendants motives were to use the deprivation period as a means to punish Plaintiff." FAC, p. 5. With respect to Woodford and Giurbino, the FAC alleges that they were responsible for Plaintiff's deprivation because they knew that Plaintiff's period of deprivation existed and "had to approve the deprivation period." Id. at 2. With respect to Janda and Bourland, the FAC alleges that they were made aware of Plaintiffs deprivation through Plaintiffs institutional grievance, and that they could have therefore "prevented plaintiffs suffering by providing outdoor[] exercise opportunities." Id. at 6. Viewing the allegations in the light most favorable to Plaintiff, the Court concludes that the FAC alleges that Woodford and Giurbino acted with deliberate indifference because they knew of and approved of the deprivation period. The Court concludes that the FAC alleges that Janda and Bourland acted with deliberate indifference because they knew of the deprivation and could have prevented the deprivation by providing Plaintiff with outdoor exercise opportunities, but failed to do so. The Court concludes that dismissal on grounds that Plaintiff has failed to allege facts that satisfy the subjective requirement of the Eight Amendment analysis is improper at this stage of the proceedings. C. Qualified Immunity Defendants contend that "[g]iven the important reason the institution had for instituting the lockdown (i.e. the multiple attempted murder of staff by inmates), the unlawfulness of the 39-day deprivation under these facts would not have been clear to a reasonable officer." Opposition, p. 5. Defendants object to the R & R's conclusion that it was clearly established in 2005 that the denial of outdoor exercise for an extended period of time was unconstitutional. Id. The Supreme Court has articulated a two-part test for courts to apply in determining whether a government official is entitled to qualified immunity. "The threshold inquiry a court must undertake in a qualified immunity analysis is whether [the] plaintiffs allegations, if true, establish a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 736, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)). "[T]he next, sequential step is to ask whether the right was clearly established." Saucier, 533 U.S. at 201, 121 S. Ct. 2151. "If the law did not put the officer on notice that his conduct would be clearly unlawful," a finding of qualified immunity is proper. Id. It is not required that "courts must have agreed upon the precise formulation of the standard." Id. at 202, 121 S. Ct. 2151. An officer is not entitled to qualified immunity so long as courts have found that certain conduct constitutes a constitutional violation "under facts not distinguishable in a fair way from the facts presented in the case at hand." Id. at 202-203, 121 S. Ct. 2151. As discussed above, the Complaint adequately alleges an Eight Amendment claim against Defendants for denying Plaintiff any outdoor exercise for a period of 39 days. The Court further concludes that it was clearly established when Plaintiffs deprivation allegedly occurred that the denial of outdoor exercise for prison inmates for an extended period of time could constitute an Eighth Amendment violation, and that the Eight Amendment may be violated even in a lockdown situation. The Court concludes that Defendants are not entitled to qualified immunity with respect to Plaintiffs Eighth Amendment claims at this stage of the proceedings. D. Defendant Rutledge Neither party objected to the Magistrate Judge's conclusion that any claims against Rutledge be dismissed. The Court has reviewed this portion of the R & R and concludes that the Magistrate Judge's conclusion is correct. Conclusion IT IS HEREBY ORDERED that the Report and Recommendation (Doc. # 69) is ADOPTED. The Motion to Dismiss Plaintiffs First Amended Complaint filed by Jeanne Woodford and Gerald Janda (Doc. # 33); the Motion to Dismiss Plaintiffs First Amended Complaint filed by Jeanne Woodford, Gerald Janda and M Bourland (Doc. # 44); and the Motion to Dismiss Plaintiffs First Amended Complaint filed by Jeanne Woodford, Gerald Janda, M Bourland, and J Giurbino (Doc. #58) are DENIED. All claims against Sergeant Rutledge are DISMISSED. REPORT AND RECOMMENDATION RE (1) DENYING DEFENDANTS' MOTIONS TO DISMISS FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b) (6) AND (2) DISMISSAL OF CLAIMS AGAINST DEFENDANT RUTLEDGE JAN M. ADLER, United States Magistrate Judge. This matter comes before the Court on three Motions to Dismiss the First Amended Complaint ("FAC") brought by Defendants Jeanne Woodford ("Woodford") and J.A. Janda ("Janda") [Doc. No. 33], M.E. Bourland ("Bourland") [Doc. No. 44], and J.A. Giurbino ("Giurbino") [Doc. No. 58] pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court has considered the papers filed in support of and in opposition to Defendants' motions, as well as all relevant pleadings and documents in the Court's file.[1] For the following reasons, the Court recommends that Defendants' Motions to Dismiss be DENIED. I. FACTUAL BACKGROUND On August 18, 2005, Calipatria State Prison ("Calipatria") was placed on lockdown following an alleged assault involving Hispanic inmates and staff. FAC at 22.[2] On November 7, 2005, Plaintiff was transferred from California State Prison, Sacramento, to Calipatria. Id.[3] Upon Plaintiffs arrival, Calipatria remained on lockdown stemming from the August 18, 2005 incident. Id. Plaintiff alleges that as a result of the lockdown, he was confined to his cell for twenty-four hours a day, seven days a week, with the exception of brief shower periods. FAC at 3. Plaintiff, proceeding pro se, alleges that his Eighth Amendment right to be free from cruel and unusual punishment was violated when Defendants Woodford, Janda, Bourland, and Giurbino deprived him of outdoor exercise from November 7, 2005 to December 16, 2005, a period of 39 days. Id.[4] The deprivation of outdoor exercise allegedly caused Plaintiff to suffer headaches, muscle cramps, stress, anxiety, and depression. Id.[5] On November 21, 2005, Plaintiff filed a CDC Form 602 grievance on behalf of a group of inmates to request the provision of outdoor exercise. Id. at 21-23. The grievance was apparently denied by Defendant Janda, the then Associate Warden. FAC at 6.[6] Plaintiff then filed a Second Level Appeal, the denial of which was issued and signed by Defendant Bourland, the Chief Deputy Warden at the time. Id. at 24-25. Plaintiff's Director's Level Appeal was also denied. Id. at 26. The denials indicate that no recreational activities were permitted for general population inmates due to the State of Emergency instituted on August 18, 2005. Id. at 24, 26. The denials also indicate that the modified program and lockdown were initiated for reasons of security and safety, the continued suspension of yard privileges was necessary, and the decision regarding the reinstatement of yard privileges was being reviewed on a daily basis. FAC at 24-26. II. DEFENDANTS' FED. R. CIV. P. 12(b)(6) MOTION Defendants seek dismissal of Plaintiffs First Amended Complaint on the grounds that: (1) Plaintiff has failed to sufficiently allege an Eighth Amendment claim relating to the deprivation of outdoor exercise and (2) Defendants are entitled to qualified immunity. Defs.' Mem. (Woodford & Janda) at 8; (Giurbino) at 9; (Bourland) at 8. A. Standard of Review A motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim can only be dismissed if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); see also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). The court looks not at whether the plaintiff will "ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S. Ct. 3012, 82 L. Ed. 2d 139 (1984). Unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim, a complaint cannot be dismissed without leave to amend. Conley, 355 U.S. at 45-46, 78 S. Ct. 99; see also Lopez v. Smith, 203 F.3d 1122, 1129-30 (9th Cir.2000). Where a plaintiff appears pro se, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir.1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992); see also Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987) ("Presumably unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel."). In giving liberal interpretation to a pro se civil rights complaint, however, a court "may not supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.1984) (conclusory allegations unsupported by facts are insufficient to state a claim under section 1983). "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiffs claim." Jones, 733 F.2d at 649 (internal quotation omitted). B. Eighth AmendmentDeprivation of Outdoor Exercise "Whatever rights one may lose at the prison gates, . . . the full protections of the eighth amendment most certainly remain in force. The whole point of the amendment is to protect persons convicted of crimes." Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir.1979). The Eighth Amendment, however, is not a basis for broad prison reform. It requires neither that prisons be comfortable nor that they provide every amenity that one might find desirable. Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982) (citing Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981)). Rather, the Eighth Amendment proscribes the "unnecessary and wanton infliction of pain," which includes those sanctions that are "so totally without penological justification that it results in the gratuitous infliction of suffering." Gregg v. Georgia, 428 U.S. 153, 173, 183, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); see also Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). This includes not only physical torture, but any punishment incompatible with "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958); see also Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). In Spain, the court stated that "regular outdoor exercise is extremely important to the psychological and physical well being of the inmates." Spain, 600 F.2d at 199. Although courts have recognized that prison administrators may need, on occasion, to briefly deprive an inmate of outdoor exercise due to logistical problems, a longterm deprivation, even due to practical difficulties, may constitute cruel and unusual punishment under the Eighth Amendment. Allen v. Sakai, 48 F.3d 1082, 1088 (9th Cir.1995). To assert an Eighth Amendment claim for deprivation of humane conditions of confinement, a prisoner must satisfy two requirements, one of which is objective and the other of which is subjective. Farmer, 511 U.S. at 834, 114 S. Ct. 1970; Allen, 48 F.3d at 1087. "Under the objective requirement, the prison official's acts or omissions must deprive an inmate of `the minimal civilized measure of life's necessities.'" Allen, 48 F.3d at 1087 (citation omitted). A prisoner meets the objective requirement by alleging the deprivation of what courts have defined as a basic human need. Id. at 1088. The subjective requirement, relating to the prison official's state of mind, requires "deliberate indifference." Id. at 1087. "Deliberate indifference" exists when a prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837, 114 S. Ct. 1970. Finally, the court must analyze each claimed violation in light of these requirements, for Eighth Amendment violations may not be based on the "totality of conditions" at a prison. Hoptowit, 682 F.2d at 1246-47. 1. Objective Requirement Plaintiff contends that outdoor exercise constitutes "a basic human need" and Defendants, by denying him outdoor exercise for 39 days, deprived him of this need. FAC at 3. Defendants contend that Plaintiff has not sufficiently alleged the objective element of an Eighth Amendment claim because his alleged deprivation resulted from a lockdown of the entire general population triggered by multiple inmate attempted murders of prison staff. Defs.' Mem. (Woodford & Janda) at 10-13; (Bourland) at 11-13; (Giurbino) at 11-13. In Hayward v. Procunier, the case upon which Defendants primarily rely, the court acknowledged that when a lockdown is instituted in response to a genuine emergency, decisions regarding when and how to provide for outdoor exercise "are delicate ones, and those charged with them must be given reasonable leeway." Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980). Plaintiff, on the other hand, cites to, inter alia, Lopez v. Smith and Allen v. Sakai. In Lopez, the Ninth Circuit found that a complete denial of exercise lasting 6-1/2 weeks (i.e., 46 days) was sufficient to invoke Eighth Amendment protection. Lopez, 203 F.3d at 1133. In Allen, the Ninth Circuit found that permitting inmates only 45 minutes of outdoor exercise per week over a 6 week period (i.e., 42 days) was also sufficient to meet the objective element of an Eighth Amendment claim. Allen, 48 F.3d at 1086-87. In Defendants' view, cases which involve a lockdown situation should be distinguished from those which do not. Defendants accordingly ask the Court to disregard Allen and Lopez on the basis that the periods of deprivation of outdoor exercise in those cases did not arise in response to an emergency lockdown situation. Defs.' Mem. (Woodford & Janda) at 12; (Bourland) at 12; (Giurbino) at 13. The Court declines to do so. Defendants have cited no authority supporting their argument that an emergency lockdown situation excuses the deprivation of what the courts have found to be a "basic human need" under the objective component of an Eighth Amendment claim. See Allen, 48 F.3d at 1088. Although the Ninth Circuit found the 28 day deprivation in Hayward did not cross the Eighth Amendment line because of an emergency lockdown situation, the court did not make a finding that the claim did not meet the objective component. Hayward, 629 F.2d at 603. Moreover, Hayward is distinguishable as the plaintiffs in that case were permitted outdoor exercise within a month after the imposition of the lockdown. Id. The same is not true here, if Plaintiff's allegations are accepted as true. Plaintiff alleges a deprivation of outdoor exercise of 39 days. Though the 39 day deprivation is less than the 42 and 46 day deprivations found to invoke Eighth Amendment protection in Allen and Lopez, neither Allen, Lopez, nor any other case suggests that a 42 or 46 day deprivation constitutes the minimum amount of time required to invoke Eighth Amendment protection, and the Court declines to apply a bright line test requiring that minimum duration. The Court finds that Plaintiff's alleged deprivation is sufficiently close in duration to the deprivations in both Allen and Lopez that Eighth Amendment protection may be invoked. Accordingly, the Court concludes that Plaintiff has sufficiently alleged the objective element of an Eighth Amendment claim. 2. Subjective Requirement Defendants also argue that Plaintiff has not established the subjective component of an Eighth Amendment claim. As set forth above, the subjective component requires "deliberate indifference." Allen, 48 F.3d at 1087. Deliberate indifference is found when a prison official knows of and disregards an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837, 114 S. Ct. 1970. The Court shall discuss the subjective component as to each Defendant in turn. a. Defendant Woodford Plaintiff alleges that Defendant Woodford, as Director of California State Prisons during the relevant time period between November 7, 2005 and December 16, 2005, was responsible for Plaintiff's deprivation of outdoor exercise because "she had to approve the deprivation period." FAC at 2. Defendant Woodford argues that the subjective requirement is not satisfied because Plaintiff makes no allegations that the lockdown or deprivation was directed at him, or that she acted with deliberate indifference toward Plaintiff. Woodford contends instead that she acted in accordance with an emergency situation triggered by multiple attempted murders of staff by inmates. Defs.' Mem. (Woodford & Janda) at 14-15. Defendant Woodford fails to cite any authority supporting her position that the subjective element is only satisfied when the deprivation is targeted at a specific inmate, and the Court declines to draw this conclusion. The inquiry under the subjective requirement is whether the Defendant knew of and disregarded an excessive risk to Plaintiffs health or safety specifically, whether Defendant knew that the lack of outdoor exercise alleged by Plaintiff presented an excessive risk to Plaintiff's health or safety. Defendant Woodford's suggestion that the subjective element can only be met if the lockdown or deprivation was targeted at a specific inmate thus misses the point. Plaintiff need not allege that the deprivation was directed at him in order to satisfy the subjective requirement. Rather, he need only allege that Defendant acted with deliberate indifference. Turning to this issue, Defendant Woodford argues that because the lockdown was in response to investigating and preventing further potentially deadly prison violence, she cannot be found to have acted with the requisite state of mind. In support of her argument, Defendant Woodford cites to the cases of Hurd v. Garcia and Hayes v. Garcia, in which courts in this district found that 5 and 10 month deprivations of outdoor exercise did not meet the subjective component when the deprivations were initiated for the primary purpose of responding to, investigating and preventing prison violence. See Hayes v. Garcia, 461 F. Supp. 2d 1198, 1207-08 (S.D.Cal.2006); see also Hurd v. Garcia, 454 F. Supp. 2d 1032, 1044 (S.D.Cal. 2006). This Court recognizes that in some circumstances, an emergency lockdown situation may justify a deprivation of outdoor exercise and may lead to a finding that the subjective requirement of an Eighth Amendment claim has not been met. However, the courts in Hurd and Hayes made their findings on motions for summary judgment, and only after the plaintiffs failed to set forth evidence of deliberate indifference. Hurd, 454 F.Supp.2d at 1043; Hayes, 461, F.Supp.2d at 1207. On a motion to dismiss, the court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. NL Indus., 792 F.2d at 898; Parks Sch. of Bus., 51 F.3d at 1484. Here, Plaintiff alleges the lockdown was not in response to an emergency situation or for penological reasons, but rather was implemented to punish him and was "utilize[d] as a deterrent to future staff assaults by subjecting inmates to such extreme suffering[] that they would dread another lockdown." FAC at 5, 7. As to Defendant Woodford specifically, Plaintiff alleges that she, as Director of California State Prisons, approved the deprivation period. Reading the pleadings liberally, Plaintiff has adequately alleged that Defendant Woodford acted with deliberate indifference because she approved the deprivation period and knew that the lack of outdoor exercise presented a risk to Plaintiff's health and safety. Plaintiff is entitled to offer evidence to support his claims. b. Defendants Janda and Bourland Plaintiff alleges that Defendants Janda and Bourland, as Associate Warden and Chief Deputy Warden of Calipatria between November 7, 2005 and December 16, 2005, respectively, were responsible for Plaintiffs deprivation because both Defendants were made aware of the deprivation through his CDC Form 602 grievance, and because both Defendants could have provided him with outdoor exercise. FAC at 2. Defendants Janda and Bourland, like Defendant Woodford, contend that the subjective requirement cannot be established when the lockdown and resultant deprivation of outdoor exercise were instituted in response to an emergency situation. Defs.' Mem. (Woodford & Janda) at 16; (Bourland) at 13-16. As discussed above, the Court finds this argument unconvincing at this stage in the case. Defendants Janda and Bourland also argue that by Plaintiffs own pleading, they had no authority to override the state of emergency and provide Plaintiff with outdoor exercise opportunities since Defendant Woodford had to approve the lockdown. Defs.' Mem. (Woodford & Janda) at 16; (Bourland) at 13-16. Neither defendant, however, has established that Plaintiff, by his own pleading, concedes that Janda and Bourland had no authority to override the state of emergency and provide Plaintiff with outdoor exercise. Defs.' Mem. (Woodford & Janda) at 16; (Bourland) at 16. To the contrary, Plaintiff has specifically alleged that Defendants Janda and Bourland were both made aware of his deprivation of outdoor exercise through his CDC Form 602 grievance and that both defendants could have provided him with outdoor exercise opportunities. FAC at 2. Reading the pleadings liberally, the Court finds that Plaintiff has sufficiently alleged that Defendants Janda and Bourland acted with deliberate indifference because they knew of Plaintiffs deprivation of outdoor exercise and the risk the deprivation presented to Plaintiffs health and safety, and that they could have provided Plaintiff with outdoor exercise opportunities but failed to do so. c. Defendant Giurbino Plaintiff alleges that Defendant Giurbino, as Warden of Calipatria between November 7, 2005 and December 16, 2005, was responsible for Plaintiffs deprivation because he was responsible for Plaintiffs custody, treatment, and discipline, and because he had to approve the lockdown. FAC at 5. Like the other three defendants, Giurbino argues that the subjective component cannot be satisfied because the deprivation was in response to an emergency situation. The Court finds this argument unconvincing for the same reasons set forth above. Defendant Giurbino further argues that because the deprivation of outdoor exercise had to be approved by Defendant Woodford in her capacity as Director of Prisons, he cannot be found to have acted with the requisite state of mind, particularly because the lockdown was not instituted without oversight. Def.'s Mem. (Giurbino) at 14-16. Plaintiff has alleged, however, that Defendant Giurbino, in addition to Defendant Woodford, had to approve the lockdown and deprivation period. FAC at 5. Reading the pleadings liberally, the Court finds Plaintiff has adequately alleged that Defendant Giurbino acted with deliberate indifference because he approved of the lockdown, knew that the lack of outdoor exercise presented a risk to Plaintiffs health and safety, and could have provided Plaintiff with outdoor exercise opportunities, but failed to do so. The Court accordingly concludes that Plaintiff has made sufficient allegations to meet the subjective element of an Eighth Amendment claim as to all four defendants. C. Qualified Immunity Defendants further contend that they are entitled to dismissal pursuant to Fed.R.Civ.P. 12(b)(6) based on their qualified immunity. The entitlement to qualified immunity "is an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985) (emphasis omitted). "[Q]ualified immunity operates `to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.'" Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (citing Saucier v. Katz, 533 U.S. 194, 206, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)). The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). 1. Step OneConstitutional Violation The threshold question in a qualified immunity analysis is whether the plaintiffs allegations, if true, establish a constitutional violation. Saucier, 533 U.S. at 201, 121 S. Ct. 2151; Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir.2001); Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir.2003) (noting that because qualified immunity is "`an entitlement not to stand trial' ... courts, not juries, [must] settle the ultimate questions of qualified immunity") (quoting Mitchell, 472 U.S. at 526, 105 S. Ct. 2806). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201, 121 S. Ct. 2151; see also Haynie v. County of Los Angeles, 339 F.3d 1071, 1078 (9th Cir.2003). As discussed above, the Court has found, taking the facts alleged in the Complaint in the light most favorable to Plaintiff, that Plaintiff has adequately alleged an Eighth Amendment claim against Defendants for denying him any outdoor exercise for a period of 39 days. Accordingly, because Plaintiff's allegations survive the first prong of qualified immunity analysis, the Court must turn to the next inquiry. 2. Step TwoClearly Established Law If a constitutional violation could be made out on a favorable view of Plaintiffs allegations, "the next, sequential step is to ask whether the right was clearly established." Saucier, 533 U.S. at 201, 121 S. Ct. 2151. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S. Ct. 2151. "If the law did not put the officer on notice that his conduct would be clearly unlawful," a finding of qualified immunity is appropriate, as "qualified immunity protects `all but the plainly incompetent or those who knowingly violate the law'." Id. (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)). Here, Plaintiff alleges denial of any outdoor exercise for 39 days as a result of Defendants' conduct. Defendants argue that there is no clearly established right to outdoor exercise under the specific facts of this case. Defs.' Mem. (Woodford & Janda) at 16-18; (Giurbino) at 16-18; (Bourland) at 16-18. Specifically, Defendants contend that "the call is so close" as to whether a right to outdoor exercise existed under the facts of this case that it cannot be said to have been clearly established. Id. They also argue that there is a "void" in authority addressing the deprivation of outdoor exercise during a period between 28 and 42 days, and ask the Court to consider the difference between normal prison operations and an emergency lockdown situation. Id. Under Saucier, it is not required that "courts must have agreed upon the precise formulation of the standard." Saucier, 533 U.S. at 202, 121 S. Ct. 2151. Rather, so long as various courts have found that certain conduct is a constitutional violation "under facts not distinguishable in a fair way from the facts presented in the case at hand," an officer is not entitled to qualified immunity. Id. at 202-03, 121 S. Ct. 2151. See also Hope, 536 U.S. at 739, 122 S. Ct. 2508 ("This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful . . . but it is to say that in the light of pre-existing law the unlawfulness must be apparent[]" (citations omitted)). It is also recognized that officers may make reasonable mistakes as to the legal restraints on particular conduct. "If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense." Saucier, 533 U.S. at 205, 121 S. Ct. 2151. The critical inquiry here is whether reasonable prison officials in Defendants' positions would have believed that depriving Plaintiff of outdoor exercise for 39 days was constitutionally permissible. Stated differently, the Court must determine whether Defendants were on "fair warning" that their alleged treatment of Plaintiff was unconstitutional. See Hope, 536 U.S. at 741, 122 S. Ct. 2508. The Court finds that it was clearly established in 2005, when the deprivation allegedly occurred, that the denial of outdoor exercise for prison inmates for an extended period of time was a violation of the Eighth Amendment. See Spain, 600 F.2d at 199; Allen, 48 F.3d at 1088; Keenan v. Hall, 83 F.3d 1083, 1089-90. Although these cases do not involve precisely the same facts as those present here, they provided Defendants with fair warning concerning their conduct. "[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances." Hope, 536 U.S. at 741, 122 S. Ct. 2508. The Court concludes that, notwithstanding the lockdown, any reasonable official in Defendants' positions would have understood that the denial of outdoor exercise for an extended period of time was unconstitutional. The Eighth Amendment may be violated even in a lockdown situation. See, e.g., Hayward, 629 F.2d at 603 (examining conditions imposed during an emergency lockdown to determine whether they crossed the Eighth Amendment line). Furthermore, as discussed above, Plaintiff does not allege that the deprivation was a response to an emergency situation or that it was due to penological reasons. Rather, he alleges it was implemented to punish him and to inflict "extreme suffering" upon the inmates. FAC at 5, 7. Finally, although Defendants Janda and Bourland advance the additional argument that reasonable officers in their positions would not know they had a "duty to usurp the authority of the Director of California State Prisons, ignore the confines of the lockdown, and thereby provide inmates with outdoor exercise," they provide absolutely no authority supporting their position. For the foregoing reasons, the Court recommends that Defendants' Motion to Dismiss Plaintiff's First Amended Complaint on qualified immunity grounds be DENIED. III. DEFENDANT RUTLEDGE The original Complaint in this case set forth two claims: an Eighth Amendment claim against Woodford, Bourland, Giurbino and Janda, and a Fourteenth Amendment claim against Torres and Rutledge. Compl. [Doc. No. 1] at 1-2. After the Court dismissed Plaintiff's original complaint without prejudice (see Mar. 15, 2007 Order, Doc. No. 8), Plaintiff filed a First Amended Complaint, which is presently the operative pleading in this case. The First Amended Complaint sets forth two claims: again, an Eighth Amendment claim against Woodford, Bourland, Giurbino and Janda (referred to by Plaintiff in the FAC as "Ground One"), and a First Amendment claim against Torres (referred to by Plaintiff in the FAC as "Ground Two"). FAC at 1-14. Plaintiff explicitly states that he "names no other defendant as to Ground Two." Id. at 9. Although Plaintiff refers to Rutledge in the supporting facts relating to his First Amendment claim (see id. at 8, 10), it appears that Plaintiff did not intend that he be named as a defendant. The Court's March 15, 2007 order dismissing Plaintiff's original Complaint expressly warned Plaintiff that his First Amended Complaint "must be complete in itself without reference to the superseded pleading," and that "[defendants not named and all claims not re-alleged in the Amended Complaint will be deemed to have been waived." Mar. 15, 2007 Order at 9. Accordingly, because Defendant Rutledge is not named as a defendant in the FAC, the Court recommends that any claims against him be dismissed and that his status be reflected as "terminated" on the Court's docket. IV. CONCLUSION AND RECOMMENDATION For the reasons set forth above, this Court recommends that the District Judge issue an Order: 1. DENYING Defendants' Motions to Dismiss Plaintiff's Eighth Amendment claim; 2. DENYING Defendants' Motions to Dismiss on qualified immunity grounds; and 3. DISMISSING any claims against Defendant Rutledge. This report and recommendation will be submitted to the Honorable William Q. Hayes, United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any party may file written objections with the Court and serve a copy on all parties on or before July 18, 2008. The document should be captioned "Objections to Report and Recommendation." Any reply to the Objections shall be served and filed on or before August 8, 2008. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991). IT IS SO ORDERED. NOTES [1] Plaintiff filed oppositions to the motions brought by Defendants Woodford, Janda, and Giurbino, but did not file an opposition to the motion brought by Defendant Bourland. [2] Unless otherwise noted, page number references used by the Court herein refer to the numbers printed by the Court's docketing system, located at the top of each page. [3] Plaintiff has since been relocated again and is currently incarcerated at California State Prison, Corcoran. [4] Defendants note that according to the FAC, Plaintiff was transferred to the Administrative Segregation Unit on December 10, 2005, resulting in a deprivation of outdoor exercise of only 33 days which can be attributed to the lockdown. Defs.' Mem. (Woodford & Janda) at 6 n. 2; (Giurbino) at 7 n. 1; (Bourland) at 6 n. 2 (citing FAC at 8-11). However, because Plaintiff does not allege that the lockdown did not affect outdoor exercise in the Administrative Segregation Unit, this Court will conduct its analysis using the 39 day period alleged in the Complaint. [5] Plaintiff also alleges a separate claim for violation of his First Amendment rights against Defendant Torres. Defendant Torres has not yet been served. Thus, this Report and Recommendation does not address the claim against him. [6] Plaintiff has attached copies of his Appeal Form, Second Level Appeal Response, and Director's Level Appeal Decision to his FAC. See FAC at 21-26. Plaintiff has not attached a copy of the denial of his original Form 602 grievance.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501412/	270 F.Supp.2d 980 (2003) WAUSAU BENEFITS, et al., Plaintiffs, v. PROGRESSIVE INSURANCE COMPANY, et al., Defendants. No. CIV.A. 2:02-CV-107. United States District Court, S.D. Ohio, Eastern Division. July 9, 2003. 983 Daran P. Kiefer, Kreiner & Peters Co., Cleveland, OH, for Plaintiffs. Jeffrey J. Madrzykowski, Ted B. Riley, Manahan, Pietrykowski, Bamman & Delaney, Toledo, OH, Joel S. McPherson, Hyatt Legal Services, Springfield, OH, J. Richard Brown, Office of J. Richard Brown2, Dublin, OH, Rudy A. Bisciotti, Edward M. Ryder, Mazanec Raskin & Ryder Co. LPA, Columbus, OH, Steven D. Christopher, Findlay, OH, for Defendants. OPINION AND ORDER KING, United States Magistrate Judge. This is an action for a constructive trust and equitable lien to restore assets to the Kohl's Department Stores Employee Benefit Plan (hereinafter "Plan") in connection with benefits paid on behalf of the participant insureds, defendants Carrie and Bradford Miller (hereinafter "the Millers"), for injuries allegedly caused by defendant Driggers' negligence, for which defendant Progressive Insurance Company (hereinafter "Progressive") provided insurance coverage. Plaintiffs also seek subrogation 984 directly from defendant Driggers. With the consent of the parties, 28 U.S.C. § 636(c), this matter is before the Court on the various motions of the parties. I. Background Plaintiffs, Wausau Benefits and Kohl's Department Stores (hereinafter collectively "plaintiffs") are fiduciaries/ administrators of the Plan, a self-funded plan allegedly governed by the provisions of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq., (hereinafter "ERISA"). Complaint, at ¶¶ 1, 7. The Millers are covered by this Plan through Carrie Miller's employment at the Kohl's operations in Findlay, Ohio. Id., at ¶ 8. On June 1, 2001, the Millers were injured in an accident resulting from defendant Driggers' alleged negligent operation of a motor vehicle. Id., at ¶¶ 5, 10, 25. As a result of this accident, the Millers incurred medical expenses in excess of $735,000. Affidavit of Carrie Miller, at ¶ 6, attached as Exhibit A to Defendants' Reply and Motion for Summary Judgment. See also Complaint, at ¶ 10. Plaintiffs have paid $486,529.12 of the Millers' medical and hospital expenses. Id., at ¶¶ 11-12, 24. The Millers allege that they remain jointly liable for the amount of medical expenses not paid by the Plan. Affidavit of Carrie Miller, at ¶ 6. Progressive had issued an insurance policy to defendant Diggers, which provided for a maximum payout of $100,000 per person. Complaint, at ¶ 13. See also Affidavit of Carrie Miller, at ¶ 8. Two hundred thousand dollars ($200,000) is allegedly being held by defendants Driggers and Progressive in connection with Millers' claims against Driggers. Complaint, at ¶ 13; Affidavit of Carrie Miller, at ¶ 10. Plaintiffs allege that, at least a portion of the money held by defendants Driggers and Progressive relates to the medical and hospital expenses incurred by the Millers. Complaint, at ¶ 14. Plaintiffs argue that the Plan contains a subrogation clause which grants plaintiffs a priority interest in these funds. Id., at ¶¶ 15-20, 31-33. The Plan's subrogation clause provides: When an associate or dependent receives a benefit from the plan: (A) For an illness; and (B) Is entitled to recover payment from any party who may be obligated to pay for such Illness; then We are subrogated to all rights to recover: (A) Any payments which the associate or dependent or any other person or organization is entitled to on account of such Illness; and (B) To the extent that we paid a benefit. The associate or dependent or other person receiving such payment from us shall: (A) Sign and deliver all necessary papers; (B) Do whatever else is necessary to protect our rights; and (C) Shall not do anything before or after our payment which would prejudice our rights. Our rights of full recovery may be from a third party, any liability or other insurance covering a third party, the associate's or dependent's own uninsured motorist insurance, underinsured motorist insurance, any medical payments, no fault insurance or school insurance coverages that are paid or payable. Our right to subrogate will apply even if the associate or dependent has not been made whole for the loss. Our right of subrogation shall be, in first priority, to the extent of any and all benefits paid. We will not pay fees or costs associated with any claim/lawsuit without express 985 written consent. We reserve the right to independently pursue and recover paid benefits. Plan, at p. 37, attached as Exhibit 1 to Plaintiffs' Motion for a Determination of the Subrogation Priority of the Plaintiffs. For their part, the Millers argue that the money held by defendants Driggers and Progressive is insufficient to cover the medical expenses not paid by the Plan. See Affidavit of Carrie Miller, at ¶¶ 8-9. Additionally, the Millers allege that, as a result of the accident, Carrie Miller has been rendered totally and permanently disabled, resulting in an estimated $450,000 in lost wages. Id., at ¶¶ 4, 7. The Millers also allege that Bradford Miller has suffered lost wages in the amount of $19,000. Affidavit of Bradford Miller, at ¶ 4, attached as Exhibit F to Defendants' Reply and Motion for Summary Judgment. The Millers take the position that, because they have not been made whole, they have priority over the funds held by defendants Driggers and Progressive, therefore precluding any recovery by plaintiffs. II. Discussion A. Plaintiffs' Motion to Strike In a motion for summary judgment filed on November 13, 2002, the Millers argue, inter alia, that this Court is without jurisdiction to hear this case and that venue is improper. Plaintiffs moved to strike those portions of the Millers' motion for summary judgment, arguing that these arguments are untimely, see Preliminary Pretrial Order, at p. 2 (June 6, 2002), and that the Court has in fact already ruled on those issues. See Continued Preliminary Pretrial Order (September 13, 2002). Motions to strike are generally disfavored, and the resolution of such motions is reserved to the sound discretion of the trial court. Watkins & Son Pet Supplies v. Iams Co., 107 F.Supp.2d 883 (S.D.Ohio 1999). Moreover, with regard to subject matter jurisdiction, "[w]henever it that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed.R.Civ.P. 12(h)(3). The defense of lack of subject matter jurisdiction therefore cannot be waived. In the interest of justice, this Court will deny this portion of plaintiffs' motion to strike and will revisit the issue of subject matter jurisdiction. The defense of improper venue, on the other hand, can be waived if not timely asserted. See Fed.R.Civ.P. 12(h)(1). See also Centerville ALF, Inc. v. Balanced Care Corp., 197 F.Supp.2d 1039, 1047 (S.D.Ohio 2002). Motions regarding venue were to be filed no later than July 30, 2002. Preliminary Pretrial Order, at p. 2 (June 6, 2002). The Millers raised this issue for the first time in their November 13, 2002, motion for summary judgment. Defendants have thereby effectively waived the issue of venue. Therefore, to the extent that plaintiffs seek to strike those portions of the Millers' motion relating to venue, the motion to strike will be granted.[1] 986 B. Subject Matter Jurisdiction Plaintiffs allege that the Plan at issue in this case is governed by ERISA. Questions concerning the construction of ERISA qualified plans arise under the federal common law; federal courts therefore have jurisdiction to consider such claims pursuant to § 1331. Walbro Corp. v. Amensure Companies, 133 F.3d 961, 965-66 (6th Cir.1998). The Millers take the position, however, that plaintiffs have not established that the Plan is ERISA-qualified. In particular, the Millers argue that plaintiffs have failed to comply with 29 U.S.C. §§ 1022(a), 1023(a)(1)(A).[2] An "employee welfare benefit plan" is defined by ERISA as "any plan, fund, or program ... established or maintained by an employer ... for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment...." 29 U.S.C. § 1002(1). The United States Court of Appeals for the Sixth Circuit has developed a three-step factual analysis for determining whether a benefit plan satisfies the statutory definition set out in § 1002(1). Thompson v. American Home Assurance Co., 95 F.3d 429 (6th Cir.1996). See also Agrawal v. Paul Revere Life Ins. Co., 205 F.3d 297, 299-300 (6th Cir.2000). First, a court must apply the Department of Labor "safe harbor" regulations to determine whether the program is exempt from ERISA. Thompson, 95 F.3d at 434. Second, a court should determine whether, from the surrounding circumstances, a reasonable person could ascertain the intended benefits, the class of beneficiaries, the source of financing, and procedures for obtaining benefits. Id., at 435. Finally, a court should determine whether the employer established or maintained the plan with the intent of providing benefits to its employees. Id. First, it does not appear that the Plan is exempt under the Department of Labor's "safe harbor" regulations. The Department of Labor regulations provide that the term "employee welfare benefit plan" shall not include a group or group-type insurance program offered by an insurer to employees ... under which (1)No contributions are made by an employer or employee organization; (2)Participation in the program is completely voluntary for employees or members; (3) The sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs and to remit them to the insurer; and (4) The employer or employee organization receives no consideration in the form of cash or otherwise in connection the [sic] program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs. Fugarino v. Hartford Life and Accident Ins. Co., 969 F.2d 178, 184 (6th Cir.1992), 987 cert. denied, 507 U.S. 966, 113 S.Ct. 1401, 122 L.Ed.2d 774 (1993)(citing 29 C.F.R. § 2510.3-1(j) (1987)). A plan will be exempt from ERISA coverage only when all four of the "safe harbor" criteria are satisfied. Id. Both the first and the third criteria are lacking in this case. By express declaration, contributions to the Plan are made by both the participant and the employer. Plan, at p. 6. The third criterion requires that the employer not endorse the program and, "according to the Department of Labor, `mployer neutrality is the key to the rationale for not treating such a program ... as an employee benefit plan....'" Thompson, supra, 95 F.3d at 436 (citing 40 Fed.Reg. 34,526 (1975)). Where the employer is named as the plan administrator, a finding of endorsement may be appropriate. Id. In this case, the Plan specifically refers to Kohl's Department Stores, the employer, as the Plan Administrator. Plan, at p. 5. Thus, the Plan is not exempt from ERISA coverage by operation of the Department of Labor's "safe harbor" regulations. The second Thompson factor for determining whether a benefit plan meets the ERISA definition is also satisfied in this case. The Plan is described as a "welfare" plan and includes health and medical benefits. Id., at pp. 6, 15-33. The class of beneficiaries includes regular full-time associates working at least 36 hours per week after 60 days of continuous service and their dependents. Id., at pp. 4, 11-12. The Plan is financed by contributions from both participants and the employer. Id., at p. 6. In order to receive benefits, a participant must send to Wausau written proof of the nature and extent of the expenses. Id., at p. 9. Thus, a reasonable person could ascertain the intended benefits, the class of beneficiaries, the source of financing, and the procedures for receiving benefits. See Thompson, 95 F.3d at 435. The final factor under Thompson "requires an initial showing that the employer established a plan meeting the definition of an `employee benefit plan' and a showing that the employer established the plan with the intent of providing welfare benefits to the employees." Agrawal, 205 F.3d at 300. This factor closely tracks the statutory language of § 1002(1). Kohl's undeniably established or maintained its welfare benefit plan for the purpose of providing benefits to its employees. See Plan, at pp. 4-14. This Court therefore concludes that the Plan at issue in this case meets ERISA's definition of "employee welfare benefit plan" and is governed by ERISA. The Millers also argue that they never received a copy of the Plan and that the requirements of § 1022(a) have therefore not been met. While plaintiffs may be subject to liability for failing to comply with specific provisions of ERISA, i.e., §§ 1022(a)(1), 1023(a)(1)(A), such noncompliance does not necessarily disqualify the plan under ERISA. See 29 U.S.C. § 1132(c). In sum, this Court concludes that the Plan is ERISA-qualified and that this Court is vested with subject matter jurisdiction over the claims asserted herein pursuant to § 1331. See Walbro Corp., 133 F.3d at 965-66. C. Remaining Motions In a motion filed October 15, 2002, plaintiffs seek a determination of their subrogation priority rights under the Plan. In their motion for summary judgment filed November 13, 2002, the Millers seek to defeat plaintiffs' claim of priority by operation of several equitable defenses.[3] 988 Plaintiffs argue that the subrogation clause in the Plan grants to plaintiffs a priority claim superior to any that the Millers could assert with regard to funds held by defendants Driggers and Progressive. Plaintiffs seek to impose a constructive trust on those funds. The Millers argue in response that the Plan's subrogation clause does not apply to the particular facts in this case, and that the "makewhole" and "common-fund" doctrines, as well as other equitable doctrines, apply to defeat plaintiffs' priority. The fact that the Plan is governed by ERISA, as was discussed supra, influences whether the equitable defenses raised by defendants are cognizable. "One of the primary purposes of ERISA is to ensure the integrity and primacy of the written plans." Health Cost Controls v. Isbell, 139 F.3d 1070, 1072 (6th Cir.1997). Therefore, federal courts may not apply common law theories to alter the express terms of written benefit plans. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); Smith v. Wal-Mart Associates Group Health Plan, (unpublished) 2000 WL 1909387 (6th Cir. Dec. 27, 2000). 1. Applicability of Subrogation Clause First, the Millers argue that the Plan's subrogation clause applies only when an associate or dependent receives a benefit from the plan due to an "illness." See Plan, at p. 37. The Millers argue that, in this case, they sufferednot an "illness"but instead an "injury." This argument is without merit because the Plan specifically defines "illness" to include "[accidental bodily injury, sickness, or disease including pregnancy." Plan, at p. 52. 2. Make-Whole Defense Next, the Millers argue that, pursuant to the make-whole doctrine, until they are fully compensated for their damages, plaintiffs cannot seek reimbursement or subrogation. The make-whole rule of federal common law "provides that an insurer cannot enforce its subrogation rights unless and until the insured has been made whole by any recovery." Copeland Oaks v. Haupt, 209 F.3d 811, 813 (6th Cir.2000). However, the make-whole doctrine is to be applied only where plan language is ambiguous or silent on a given issue. See Community Health Plan of Ohio v. Mosser, (unpublished) 2001 WL 1681127 (S.D.Ohio Aug. 30, 2001). If an ERISA-qualified plan is "specific and clear in establishing both a priority to the funds recovered and a right to any full or partial recovery, the common law make-whole defense has no applicability." See Copeland Oaks, 209 F.3d at 813. See also Hiney Printing Co. v. Brantner, 243 F.3d 956, 959 (6th Cir.2001). The subrogation clause in the Plan at issue in this case specifically provides, "Our right to subrogate will apply even if the associate or dependent has not been made whole for the loss. Our right of subrogation shall be, in first priority, to the extent of any and all benefits paid." Plan, at p. 37. This clause is unambiguous in providing a subrogation right permitting the Plan to recover even if the associate or dependant is not made whole by any recovery and in granting to the Plan a priority interest in all funds recovered to the extent that the Plan has provided a benefit. This Court concludes, therefore, that the make-whole doctrine offers the Millers no defense to the plaintiffs' claims.[4] 989 3. Common Fund Defense The Millers also argue that, even if the Plan's subrogation clause does in fact grant plaintiffs a priority interest in any funds in the hands of defendants Driggers and Progressive, plaintiffs' recovery should be reduced to reflect the expenses incurred by the Millers in procuring that recovery. Specifically, the Millers argue that the equitable common fund doctrine should apply in this case. As was mentioned supra, the plain language of an ERISA-qualified plan must be given its literal and natural meaning. Isbell, 139 F.3d at 1072. However, the United States Court of Appeals for the Sixth Circuit has cautioned: "Equity dictates that the Plan's ability to obtain reimbursement from the Plan participant must be structured so as to take into account the actual amount of the payment the Plan participant received ...." Smith v. Wal-Mart Associates Group Health Plan, supra, 238 F.3d 424, 2000 WL 1909387, 4. Thus, to the extent possible, a court should take equity into account to complement, not contravene, the express language of the Plan. In Smith, the Plan authorized reimbursement to the Plan for "any payment resulting from a judgment or settlement...." 238 F.3d 424, 2000 WL 1909387, 4. However, the United States Court of Appeals for the Sixth Circuit equitably reduced the Plan's recovery from the participant by an amount equal to the fees charged by the plan participant's lawyer, concluding that such amount had not been "received" by the participant.[5]Id. In reaching this conclusion, the Sixth Circuit also noted that the Plan language did not specifically prohibit this adjustment. Id. Here, however, the Plan expressly provides, "We will not pay fees or costs associated with any claim/lawsuit without express written consent." Plan, at p. 37. It does not appear that any such consent was given in this case. The Plan in this case also specifically provides, "We are subrogated to all rights to recover ... [a]ny payments which the associate or dependent or any other person or organization is entitled to on account of such Illness...." Id. (emphasis added). The Plan's right to recover reimbursement also extends to "a third party, any liability or other insurance covering a third party...." Id. Thus, the Plan provides for recovery by the Plan not only of payments to which the participant and any other person is entitled, but also of funds held by a third party such as Driggers and his liability insurance carrier, ie., Progressive. Therefore, this Court concludes that, because the Plan language is unambiguous in this regard, the common fund defense is unavailable in this case. 4. Other Defenses The Millers also generally argue that their Answer contains various other equitable defenses that should apply in this case. However, the Millers have not specifically addressed any of those defenses and this Court is therefore unable to determine whether any of those equitable defenses apply in this case. The Court therefore declines to consider the applicability of any such equitable defense to this action. 990 The Millers also argue that a constructive trust is unavailable as a remedy in this case. However, this argument overlooks the fact that the remedy sought here, in essence specific performance of the Plan's subrogation clause, is an equitable remedy within the scope of § 1132(a)(3)(A). See Bunting Bearings Corp. v. Miller, 139 F.Supp.2d 858 (N.D.Ohio 2001). See also Pearlman v. Reliance Ins. Co., 371 U.S. 132, 137 n. 12, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962). The Millers cite FMC Medical Plan v. Owens, 122 F.3d 1258 (9th Cir.1997), in support of the position that the use of a constructive trust is limited to situations where there is "ill-gotten gain of another's property." Defendants' Reply and Motion for Summary Judgment, at p. 22. However, unlike the Plan at issue in this case, the plan in Owens did not contain an express subrogation clause. Owens, 122 F.3d at 1260. That court's consideration of the remedy of constructive trust is therefore inapplicable to this case. In any event, other circuits have disagreed with the limitation on the remedy of constructive trust noted in Owens. For example, the United States Court of Appeals for the Seventh Circuit held that, "while the Ninth Circuit appears to believe that the imposition of a constructive trust in an ERISA case is permissible only when there has been a breach of trust ... it has given no reason for this belief and there is no basis for it either in ERISA or in the principles of equity." Health Cost Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 711 (7th Cir.1999). See also Blue Cross & Blue Shield of Alabama v. Sanders, 138 F.3d 1347, 1353 (11th Cir. 1998)(the holding in Owens is "unduly narrow"). This Court is persuaded in this regard by the reasoning of the Seventh and Eleventh Circuits, and concludes that the relief sought in this action is authorized by § 1132(a)(3). WHEREUPON, the Millers' challenge to this Court's exercise of subject matter jurisdiction is rejected. Plaintiffs' motion to strike the Millers' challenge to venue is GRANTED. In any event, the Millers' motion to transfer venue is DENIED. Plaintiffs' motion for a determination of subrogation priority is GRANTED, and the Millers' motion for summary judgment is DENIED. This Court concludes that the Plan in this case is governed by ERISA; that this action was properly instituted under § 1132(a)(3); that the make-whole doctrine, the common fund doctrine, as well as any other equitable remedies contained within the Millers' Answer, do not apply in this action. Plaintiffs therefore have priority over the funds held by defendant Driggers and Progressive. NOTES [1] In any event, the Millers have failed to satisfy their burden of showing either that the proposed transferee court, the District Court for the Northern District of Ohio, is a court where this action could have been originally brought, or that the convenience of the parties and witnesses, and the interest of justice, strongly favor transfer. See 28 U.S.C. § 1404(a). While it appears that the District Court for the Northern District of Ohio would be an appropriate venue, the Millers have presented no evidence to support such a conclusion. The only argument presented by them is that "all of the relevant facts and parties to this case are located in the Northern District of Ohio." Defendants' Reply and Motion for Summary Judgment, at p. 16. This is insufficient to support a motion to transfer. [2] Section 1022 provides in relevant part, "A summary plan description of any employee benefit plan shall be furnished to participants and beneficiaries as provided in section 1024(b) of this tide." 29 U.S.C. § 1022(a). Section 1023 provides in relevant part, "An annual report shall be published with respect to every employee benefit plan .... Such report shall be filed with the Secretary in accordance with section 1024(a) of this title, and shall be made available and furnished to participants in accordance with section 1024(b) of this title." 29 U.S.C. § 1023(a)(1)(A). [3] Specifically, the Millers argued that (1) this Court lacks subject matter jurisdiction, (2) venue is improper, (3) the make-whole and common-fund rules apply to preclude plaintiffs from recovering any amount, (4) in any event, the subrogation clause does not apply because the Millers were not "Ill,"(5) equity precludes relief in this case, and (6) venue should be transferred to the Northern District of Ohio. Arguments 1, 2, and 6 have already been resolved by this Court. See supra. [4] In a motion filed November 29, 2002, plaintiffs asked the Court to stay determination of whether or not the Millers were made whole pending a determination of whether such a defense applies in this case. In light of this Court's conclusion that the make-whole doctrine does not apply in this case, plaintiffs' motion is now moot. [5] The Court of Appeals suggested, however, that the Plan could seek the remainder of its reimbursement from the participant's attorney. Smith, 238 F.3d 424, 2000 WL 1909387, 4 (quoting with approval Ward v. Wal-Mart Stores, Inc., 194 F.3d 1315, 1999 WL 801532, at 4 (6th Cir. Sept. 30, 1999)).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1821034/	468 So. 2d 253 (1985) Charles Ray JONES, Sr., Appellant, v. STATE of Florida, Appellee. No. 84-855. District Court of Appeal of Florida, Second District. February 22, 1985. James Marion Moorman, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant. Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee. SCHEB, Judge. Defendant Charles Ray Jones, Sr., appeals his convictions and sentences for three counts of grand theft. On April 2, 1984, at his sentencing hearing, the defendant pled nolo contendere to two charges of second-degree grand theft in Circuit Court Case No. 83-1375 and one 254 count of first-degree grand theft in Circuit Court Case No. 83-1385 without reserving the right to appeal. Before the hearing, defendant had signed a document captioned "Acknowledgment and Waiver of Rights." This document contained a clause stating defendant understood that by pleading no contest without expressly reserving the right to appeal he waived that right. The trial judge determined that defendant understood the document and freely and voluntarily signed it. Fla.R.Crim.P. 3.170(j). The defense attorney stipulated that there was a factual basis for the plea. The trial court sentenced defendant to four years imprisonment on all counts to run concurrently. On April 4, 1984, defendant, pro se, notified the trial court that he wished to appeal. On April 18 defendant, pro se, filed with the clerk of the circuit court a "request to appeal sentence." His attorney filed a timely notice of appeal on April 27, challenging defendant's conviction and sentence. On May 2, 1984, defendant filed two letters with the clerk of the circuit court asserting his plea was coerced. The trial judge treated these letters as motions for post-conviction relief. Fla.R.Crim.P. 3.850. He denied the motions on the ground that the trial court lacked jurisdiction, because a notice of appeal had already been filed with this court. Defendant's counsel, the public defender, filed an Anders brief with this court contending that there were no meritorious grounds for the appeal. He certified that he had sent a copy of this brief and the record to the defendant. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In its answer brief the state concurred with defense counsel's contention. As dictated by Anders, the public defender raised issues in his brief which he considered might arguably support the appeal. Following our practice, we notified defendant that he could file a supplemental brief within thirty days of our order dated December 12, 1984. We informed the defendant that he could bring to our attention any matters he felt should be considered in connection with his appeal, and that he should send a copy of his brief to the attorney general's office. Defendant did not file a supplemental brief. Since this court's role in reviewing Anders briefs has not recently been discussed in opinions, we take the occasion to do so now. Where an Anders brief is filed, we review the arguable points raised by defense counsel. In addition, we examine the record of the proceedings sent to us. Our review includes making a determination of whether the defendant was charged with an offense under Florida law, the trial court had jurisdiction over defendant, and the judgment and sentence conform to the requirements of law. If we agree with the public defender's analysis and the points raised are controlled by well settled principles, we usually enter a per curiam affirmance without opinion (PCA). The PCA device, as discussed in Whipple v. State, 431 So. 2d 1011 (Fla. 2d DCA 1983), expedites disposition of appeals and prevents repetition of well established principles of law. This, in turn, avoids the proliferation of duplicative opinions in the Southern Reporter and lessens the burden on attorneys in their research. As a result of our review in this case, we determined that the defendant did not file a proper motion to withdraw his plea before his appeal; therefore, there is no basis for appeal on the merits.[1]Robinson v. State, 373 So. 2d 898 (Fla. 1979); Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979). Moreover, defendant's right to review is limited to an appropriate collateral attack, because he did not reserve the right to appeal. See Fla.R.Crim.P. 3.172(c)(iv). If defense counsel had filed a statement of judicial acts to be reviewed informing this court that defendant had not moved to withdraw his plea, we would have dismissed 255 the appeal at an earlier stage without prejudice to defendant's seeking relief under a proper rule 3.850 motion. McGinty v. State, 463 So. 2d 495 (Fla. 2d DCA 1985). Accordingly, we dismiss defendant's appeal without prejudice to his seeking relief under a proper rule 3.850 motion. RYDER, C.J., and SCHOONOVER, J., concur. NOTES [1] Included in defendant's April 18 letter requesting to appeal his sentence was a statement that he wished to withdraw his plea. However, neither counsel nor the court treated this letter as a motion to withdraw the plea.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501347/	280 F. Supp. 2d 851 (2003) NATIONAL-BEN FRANKLIN INSURANCE COMPANY OF ILLINOIS, Plaintiff, v. Edward LEVERNIER, Lawrence Hoffman, Northern Insurance Company of New York, Darlene Rickert, Kenneth Pingel, Michael Pingel, Troy Plass and General Casualty Company of Illinois, Defendants. No. 01-C-1166. United States District Court, E.D. Wisconsin. March 28, 2003. 852 853 Barbara A. O'Brien, Attorney at Law, Borgelt Powell Peterson & Frauen, Milwaukee. Eric S. Darling, Attorney at Law, Schmidt Darling & Erwin, Milwaukee. Thomas R. Schrimpf, Attorney at Law, Hinshaw & Culbertson, Milwaukee. Terry E. Nilles, Beth J. Kushner, Attorneys at Law, von Briesen Purtell & Roper, Milwaukee. James E. Mercante, Attorney at Law, Rubin Florella Friedman, New York, NY. Michael S. Siddall, Attorney at Law, Herrling Clark Hartzheim & Siddall, Appleton. John T. Schomisch, Jr., Attorney at Law, Dilley & Schomisch, Appleton. Michael R. McCanna, Jarrod J. Papendorf, Attorneys at Law, McCanna Konz Dudas Kewley & Papendorf, Appleton. Thomas L. Williams, Attorney at Law, Gabert Williams & Farb, Appleton. Steven L. Wilson, Attorney at Law, Wilson Law Office, Appleton. Robert F. Johnson, Attorney at Law, Cook & Franke, Milwaukee. DECISION AND ORDER GORENCE, United States Magistrate Judge. NATURE OF THE CASE The plaintiff, National Ben-Franklin Insurance Company of Illinois (National Ben-Franklin), filed this action seeking a declaration that it does not owe a duty of indemnification or defense to its insured, defendant Edward Levernier. In the alternative, the plaintiff seeks a declaration that its policy is excess to that of defendants Northern Insurance Company of New York (Northern Insurance) and General 854 Casualty Company of Illinois (General Casualty). This action is based on admiralty and maritime jurisdiction. The court has jurisdiction over this action pursuant to 28 U.S.C. § 1333. Venue is proper under 28 U.S.C. § 1391. The case was assigned according to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72.1 (E.D.Wis.). The parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General Local Rule 73.1 (E.D.Wis.). On July 31, 2002, plaintiff National Ben-Franklin filed a motion for summary judgment. (Docket # 99). On the same date, defendant Northern Insurance moved for summary judgment. On August 1, 2002, defendant General Casualty filed its motion for summary judgment. These motions are fully briefed and will be addressed herein. STANDARD FOR SUMMARY JUDGMENT Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party 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, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); McNeal v. Macht, 763 F. Supp. 1458, 1460-61 (E.D.Wis.1991). "Material facts" are those facts that, under the applicable substantive law, "might affect the outcome of the suit." See Anderson, 477 U.S. at 248, 106 S. Ct. 2505. A dispute over "material facts" is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The burden of showing the needlessness of a trial-(1) the absence of a genuine issue of material fact and (2) an entitlement to judgment as a matter of law-is upon the movant. In determining whether a genuine issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Therefore, all inferences are taken in the light most favorable to the nonmoving party. Matter of Wade, 969 F.2d 241, 245 (7th Cir.1992). BACKGROUND INFORMATION[1] On June 25, 1999, a collision occurred between watercraft owned by Lawrence Hoffmann and Troy Plass. On December 14, 2001, Darlene Rickert, individually and as personal representative of the Estate of Mark Rickert, brought suit against Edward Levernier and others for injuries and damages arising out of the collision. This suit is styled Rickert v. Northern Insurance Company of New York, et al., Outagamie County Case No. 01-CV-1410. (Affidavit of Colleen M. Fleming [Fleming Aff.], Exh. A). Michael Pingel and Kenneth Pingel filed intervenor complaints in Outagamie County Case No. 01-CV-1410, alleging injuries and damages as a result of the collision. On June 17, 2002, Troy Plass and his wife, Anne Plass, filed suit against Levernier and others for injuries and damages arising out of the collision. This suit is styled Plass v. Northern Insurance Company of New York, et al., Outagamie County Case No. 02-CV-707. (Fleming Aff., Exh. D). 855 RELEVANT UNDISPUTED FACTS[2] During the fall of 1998, defendant Lawrence Hoffman (Hoffman) purchased a 37-foot Sea Ray yacht. Hoffman's boat had twin inboard engines with in excess of 50 horsepower. On June 25, 1999, defendant Edward Levernier (Levernier), Hoffman and four other passengers set out on Hoffman's boat for a trip on Lake Michigan from Racine, Wisconsin to Sturgeon Bay, Wisconsin. Hoffman's boat was a 37-foot Sea Ray 370 DA. Levernier arrived at the Racine marina about 10:00 a.m. and the group left aboard Hoffman's boat between 10:30 and 11:00 a.m. Levernier did not discuss the route or fuel supply with Hoffman, did not pay attention to the fuel gauges that day and did not discuss any planned stops along the way with Hoffman. The day before, on June 24, 1999, Hoffman charted the course from Racine to Sturgeon Bay. He entered the course to Sturgeon Bay on the boat's GPS, by setting waypoints with four legs for manual turns. Those legs included the mouth of the Racine Harbor to Wind Point, Wind Point to the right of the Sturgeon Bay channel entrance, Sturgeon Bay channel entrance to the break wall of Sturgeon Bay and the break wall to the harbor at Sturgeon Bay. Levernier did not discuss the planned route with Hoffman. Once the boat was underway on June 25, 1999, Hoffman engaged the automatic pilot on the boat just outside of the Racine harbor. In order to engage the automatic pilot on his boat, Hoffman had to enter waypoints obtained from an electronic chart and push the go button. Once the automatic pilot is engaged, the boat's steering wheel is ineffective until the automatic pilot is disengaged. Hoffman set the boat's speed. Hoffman had to set the engine speed manually and there were two throttles on his boat. Hoffman had set his boat's automatic pilot so that manual input to turn the boat was required. When the boat reached the first waypoint at Wind Point outside of Racine, the automatic pilot beeped and Hoffman manually turned the boat. The only discussion Hoffman had with Levernier about the operation of the boat was at the beginning of the cruise, when Levernier asked him how to turn off the automatic pilot. Hoffman also set the engine speed and testified that the operator of the boat has the responsibility to make sure that everything is "secure, safe." (Affidavit of Barbara A. O'Brien [O'Brien Aff.], ¶ 3, Exh. B, Deposition of Lawrence Hoffman [Hoffman Dep.] at 49, 133). As operator, according to Hoffman, it is necessary to put on the blowers, turn on the ignition and check the weather. Hoffman set the automatic pilot. However, he set it in such a way that any turns that were necessary would have to be done manually. Hoffman's boat had radar which would pick up objects within a certain distance of his boat. Hoffman normally set his radar for a distance of three miles. On June 25, 1999, Hoffman chose not to use radar. The radar most likely would have picked any other boat that was within a three-mile radius. Levernier did not know how to operate the radar. Hoffman's boat traveled uneventfully for the first four hours. During those four hours, Hoffman was the operator of the boat. As originally projected, the trip's waypoints were Wind Point, Sturgeon Bay channel entrance and the break wall at Sturgeon Bay. Hoffman became concerned 856 about the boat's fuel supply at about 2:25 or 2:30 p.m. when the boat was near Sheboygan, Wisconsin. Prior to that time, Hoffman could not recall if he had left the helm of the boat or asked anyone to watch over the boat for him. Because of his concern about fuel, Hoffman decided to head for Algoma, Wisconsin. He changed his boat's course, turned off the automatic pilot to change the waypoint to Algoma, and then re-engaged the automatic pilot. To his knowledge, no one else on the boat was aware of this course change. Hoffman turned the boat about eight degrees. No one else on the boat knew that the boat was now headed for Algoma. For about two to two and one half hours before the change in the waypoint to Algoma, Levernier had been up on the front bow of the boat, sleeping and resting. A few minutes after the change in direction of the boat, Levernier came off the bow and came up to where Hoffman was located at the helm and sat down. There may have been discussion at that point between Hoffman and Levernier concerning the fuel supply. Hoffman told Levernier that they were going to Algoma or Kewaunee, Wisconsin. Shortly after Levernier joined him, Hoffman left the helm to get a book showing the harbors of Lake Michigan. Hoffman did not alert Levernier to the fact that he was going to get the book. Without saying anything to Levernier, Hoffman stood up and passed in front of Levernier to go to the stairs leading below deck. Levernier had to stand up to let Hoffman pass. To retrieve the book, Hoffman was gone for only a "moment or so." (O'Brien Aff., Exh. B. Hoffman Dep. at 81). After returning to the helm with the book, Hoffman sat down next to Levernier and looked at the book for about five minutes. The two discussed whether to go to Algoma or Kewaunee. Hoffman decided to go to Algoma. Hoffman glanced at the book for a couple of minutes, closed the book, then got up and left the helm to return the book. Hoffman was gone for only moments to return the book. As Hoffman was returning to the helm after returning the book and was almost back up the stairs, he felt an impact. Hoffman stabilized himself and then he dove for the throttles on the boat and shut them down. After the impact, Levernier and Hoffman saw an upside-down boat behind Hoffman's boat. There were people swimming in the water near the boat. Upon observing a boat behind them and three people in the water, Hoffman put the transmission in neutral and tried to calm everyone. Hoffman called mayday on his boat's radio. After determining that it was safe to do so, Hoffman restarted his boat's engine and attempted to back his board toward the other boat and the people in the water. The Hoffman boat had collided with another boat. Hoffman's boat was in the waters off of Manitowoc/Two Rivers, Wisconsin when the accident occurred. The accident occurred approximately four hours after the boat had left Racine. Neither Hoffman nor Levernier ever saw the other boat prior to impact. Hoffman saw only three people in the water. After the collision, three people came aboard Hoffman's boat. As a result of the collision, one passenger on the other boat, Mark Rickert, drowned and the three passengers, Kenneth Pingel, Michael Pingel and Troy Plass allegedly were injured. On the day of the trip, Hoffman set the speed at which the boat was traveling at all times and set the direction of travel of the boat at all times during the course of the day. The navigation of the boat was controlled by the settings that Hoffman made relative to the speed and direction of 857 the boat. Hoffman had made the decision not to use the boat's radar because it was a clear day. At no time prior to impact did Hoffman ask Levernier to take over operation of the boat. Levernier never touched the throttles that day. Levernier never operated the steering wheel or steering mechanism that day. Levernier never touched the automatic pilot mechanism. At no time on June 25, 1999, did Levernier do anything to affect either the speed or direction of Hoffman's boat. Levernier did not touch the controls of the boat on that day, did not set up the automatic pilot and never touched the steering wheel. Hoffman can recall no specific act that Levernier did the entire time on the boat to manipulate or control the boat. National Ben-Franklin's Policy of Insurance Levernier had a Boat Saver policy of insurance with defendant National Ben-Franklin Insurance, Policy No. 1175170-99, which was effective from April 24, 1999, to April 24, 2000. The policy insured a 24-foot Sea Ray Cruiser owned by Levernier. Defendant National Ben-Franklin's policy provides in relevant part: Operating Other Boats We will provide this liability coverage to the named insured and his immediate family, subject to the other provisions of this policy, while operating another boat with the permission of its owner. However, we do not cover loss or damage to the other boat or its boating equipment. ([O'Brien Aff., ¶ 2, Exh. A, National Ben-Franklin Insurance Company of Illinois policy at 4). Defendant National Ben-Franklin's policy contained two "other insurance" provisions. The first provision which is under the section entitled, "Operating Other Boats," provides: If there is any other available insurance, we will provide coverage only as excess over such insurance. (O'Brien Aff., ¶ 2, Exh. A at 4). The second provision provides: Other Insurance If there is any other available insurance that would apply in the absence of this policy, this insurance shall apply as excess over the other insurance, but the combined amount shall not exceed the limits of this policy. (O'Brien Aff., ¶ 2, Exh. A at 8). Northern Insurance's Policy of Insurance Defendant Northern Insurance had in effect at the time of the collision a policy of insurance insuring Hoffman's boat. Northern Insurance Company Policy YT98551535 was in effect from October 1, 1998, to October 1, 1999, and identifies Lawrence P. Hoffman as the named insurer. Northern Insurance Policy YT98551535 defines the term "insured" in part: The term Insured whenever used in this policy includes the Named Insured specified on the Declarations page, members of the immediate family of the Named Insured, if residents of the same household, or any other person, firm, corporation or legal entity who may be operating the Yacht with the prior permission of the Named Insured as long as no charge is made. (Affidavit of Terry E. Nilles [Nilles Aff.], ¶ 4; Exh. C, Northern Insurance Company Policy YT98551535, at 1). The policy contains an "other insurance" clause which provides: Should there be other insurance in force at the time of a loss that would cover the loss in the absence of this policy, then coverage under this policy shall be excess 858 coverage over all other valid and collectible insurance. (Nilles Aff., ¶ 4, Exh. C at 2). General Casualty's Policy of Insurance Defendant General Casualty had a homeowner's policy with Levernier in effect at the time of the collision. Defendant General Casualty issued a Preferred Homeowners Policy of insurance to Levernier effective December 29, 1998 to December 29, 1999. The relevant provisions of this policy provide: SECTION II-LIABILITY COVERAGES COVERAGE E Personal Liability If a claim is made or a suit is brought against an "insured" for damages because of "bodily injury" or "property damage" caused by an "occurrence" to which this coverage applies, we will: 1. Pay up to our limit of liability for the damages for which the "insured" is legally liable. Damages include prejudgment interest awarded against the "insured;" and 2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or suit that we decide is appropriate. Our duty to settle or defend ends when the amount we pay for damages resulting from the "occurrence" equals our limit of liability. SECTION III-EXCLUSIONS 1. Coverage E-Personal Liability and Coverage F-Medical Payments to Others do not apply to "bodily injury" or "property damage:" * * * * * g. Arising out of: (1) The ownership, maintenance, use, loading or unloading of an excluded watercraft described below; * * * * * * Excluded watercraft are those that are principally designed to be propelled by engine power or electric motor or are sailing vessels, whether owned by or rented to an "insured." This exclusion does not apply to watercraft: (1) That are not sailing vessels and are powered by: * * * * * * (b) Inboard or inboard-outdrive engine or motor power of more than 50 horsepower not owned by or rented to an "insured;" . . . * * * * * * SECTION II CONDITIONS 8. Other Insurance Coverage E Personal Liability. This insurance is excess over other valid and collectible insurance except insurance written specifically to cover as excess over the limits of liability that apply in this policy. (Affidavit of Colleen M. Fleming, ¶ 6 [Fleming Aff.], Exh. E, General Casualty Company's Preferred Homeowners' Policy No. 2834351 at 10-12, 14). Defendant General Casualty issued a Personal Umbrella Liability endorsement to Levernier which did not become effective until September 29, 1999 and, therefore, does not provide coverage for said collision. (Fleming Aff., Exh. E, Personal Umbrella Liability Endorsement; Amended Declaration [issued November 4, 1999] at 1). 859 ANALYSIS Choice of Law The court must first determine whether to apply Wisconsin law or Illinois law to the parties' motions for summary judgment. Defendant National Ben-Franklin contends that the correct choice of law with respect to its motion is that of Illinois because the policy was issued in Illinois, citing Belland by Rosenberg v. Allstate Ins. Co., 140 Wis. 2d 391, 396, 410 N.W.2d 611 (Wis.Ct.App.1987). Defendant National Ben-Franklin concedes that Illinois law and Wisconsin law are similar so that application of either results in the same conclusion. Defendant Northern Insurance did not raise the choice of law issue. Rather, it analyzed its policy provisions pursuant to Wisconsin law. Defendant General Casualty contends that both Illinois and Wisconsin have significant contacts with the subject matter of this case and, thus, it does not contend that either Wisconsin law or Illinois law is applicable to the facts of this case. Rather, defendant General Casualty analyzes its motion under both Wisconsin and Illinois law stating that regardless of which law applies, it is entitled to the relief it seeks. Defendant Rickert contends that the court should apply Wisconsin law because: the boat was kept in Racine, Wisconsin; the boat originated in Wisconsin on the day of the accident; and the accident occurred in Wisconsin. Defendant Levernier contends that there is no conflict of law issue in this case because the result would be identical under either Wisconsin law or Illinois law. "Even in the absence of a `true conflict,' . . . [the federal court is] still obliged to choose the applicable law." Hystro Products, Inc. v. MNP Corp., 18 F.3d 1384, 1387 (7th Cir.1994) In determining the applicable law, the court looks to the choice of law rules of the state in which it sits. Id. (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 85 L. Ed. 1477 [1941]). "Which state's law applies under the conflict of law rules is a pure question of law." Schimpf v. Gerald, Inc., 52 F. Supp. 2d 976, 1001 (E.D.Wis.1999) (citing Kuehn v. Childrens Hosp., Los Angeles, 119 F.3d 1296, 1300 [7th Cir.1997]). Wisconsin courts apply a two-step analysis for choice of law decisions. Heath v. Zellmer, 35 Wis. 2d 578, 591, 151 N.W.2d 664, 669 (Wis.1967). The court first determines if a conflict exists between the laws of the representative states. Id. If a conflict exists, and it is outcome determinative, the court then looks at the contacts between the states. Id. However, if no such conflicts exists, the law of Wisconsin applies. Schimpf, 52 F.Supp.2d at 1002; see also, International Administrators, Inc. v. Life Ins. Co. of North America, 753 F.2d 1373, 1376 n. 4 (7th Cir.1985). The parties agree that no conflict exists between Wisconsin law and Illinois law. Accordingly, the court will apply Wisconsin law. Insurance Policy Construction The construction of an insurance policy is amenable to summary judgment because it presents a question of law. Rhein Bldg. Co. v. Gehrt, 21 F. Supp. 2d 896, 899 (E.D.Wis.1998); Heil Co. v. Hartford Acc. and Indem., Co., 937 F. Supp. 1355 (E.D.Wis.1996) (citing U.S. Fire Ins. Co. v. Good Humor Corp., 173 Wis. 2d 804, 819, 496 N.W.2d 730, 735 [1993]; Raby v. Moe, 153 Wis. 2d 101, 109, 450 N.W.2d 452 [Wis.1990]). Both the interpretation of words or clauses in an insurance policy and the determination of whether coverage exists under that policy are questions of law for the court. Doyle v. Engelke, 219 860 Wis.2d 277, 284, 580 N.W.2d 245, 248 (Wis. 1998) (citing Just v. Land Reclamation, Ltd., 155 Wis. 2d 737, 744, 157 Wis. 2d 507, 456 N.W.2d 570 [Wis.1990]; Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 810, 456 N.W.2d 597 [Wis.1990]). In a dispute about coverage, the insured has the burden of proving that coverage applies. Fernandez v. Strand, 63 F. Supp. 2d 949, 953 (E.D.Wis.1999) (citing Just v. Land Reclamation, Ltd., 151 Wis. 2d 593, 605, 445 N.W.2d 683 [Wis. Ct.App.1989], rev'd on other grounds, 155 Wis. 2d 737, 456 N.W.2d 570 [1999]). However, if the insurer relies on an exclusion to deny coverage, the insurer has the burden of demonstrating that the exclusion is applicable. Fernandez, 63 F.Supp.2d at 953. The interpretation of an insurance policy is governed by the same principles of construction which apply to contracts in general. Seats Inc. v. Nutmeg Ins. Co., 178 Wis. 2d 219, 223, 504 N.W.2d 613, 615 (Wis.Ct.App.1993). Where the policy terms are unambiguous, a court applies those terms to the facts rather than engage in construction. Id. "`A policy of insurance like any other contract is to be construed so as to give effect to the intention of the parties. In the case of an insurance contract, the words are to be construed in accordance with the principle that the test is not what the insurer intended the words to mean but what a reasonable person in the position of an insured would have understood the words to mean.'" School Dist. of Shorewood v. Wausau Ins. Companies, 170 Wis. 2d 347, 367, 488 N.W.2d 82, 88-89 (Wis.1992) (quoting Caporali v. Washington Nat. Ins. Co., 102 Wis. 2d 669, 675-76, 307 N.W.2d 218 [1981]). National Ben-Franklin Insurance Motion for Summary Judgment Defendant National Ben-Franklin filed a motion for summary judgment seeking a declaration that its policy of insurance does not provide coverage for the claims arising from the June 25, 1999, boating accident. In the alternative, defendant National Ben-Franklin seeks a declaration that its policy of insurance is excess to that of the other insurers. Defendant Levernier had a policy of insurance with plaintiff National Ben-Franklin insuring a boat he owned. The National Ben-Franklin policy contained the provision which provided in relevant part: Operating Other Boats We will provide this liability coverage to the named insured and his immediate family, subject to the other provisions of this policy, while operating another boat with the permission of its owner. However, we do not cover loss or damage to the other boat or its boating equipment. (O'Brien Aff. ¶ 2, Exh. A at 4). Thus, plaintiff National Ben-Franklin's policy of insurance provides coverage only if defendant Levernier was operating defendant Hoffman's boat at the time of the accident. The policy does not define "operate" or "operating." Plaintiff National Ben-Franklin contends that defendant Levernier was not operating the boat at the time of the accident. Plaintiff National Ben-Franklin contends that defendant Levernier could not have been operating the boat because: 1) at no time prior to the impact did defendant Hoffman ask defendant Levernier to take over operation of the boat; 2) defendant Levernier never touched the throttles that day; 3) defendant Levernier never operated the steering wheel or 861 steering mechanism that day; 4) defendant Levernier never touched the automatic pilot mechanism; and 5) defendant Hoffman could recall no specific act that defendant Levernier did the entire time on the boat to manipulate or control the boat. In response, defendant Darlene Rickert contends that in determining whether defendant Levernier was operating the boat, the court should look to the definitions of "operate" and "operator" in Wis. Stat. § 30.50. Defendant Rickert focuses on the definition of operator: "Operator means a person who is engaged in the operation of a motorboat, who is responsible for the operation of a motorboat or who is supervising the operation of a motorboat." Wis. Stat. § 30.50(8r). Defendant Rickert contends that the history of defendants Levernier and Hoffman's relationship, their mutual understanding of who would operate the boat and when, the facts of the situation and the relative spatial positions of the two at the time of the incident support her position that defendant Levernier was an operator. Also in response, defendant Levernier contends that there is no dispute that defendant Hoffman was operating the boat for an extended period of time prior to leaving the helm and going down below, even though during that time he was not required to touch any of the controls or do anything other than look out over the water. Defendant Levernier also contends that the injured claimants will argue that there is no less reason to assume that he was operating the boat while defendant Hoffman was down below even though he also was not required to actively touch the controls or do much of anything else absent an emergency. National Ben-Franklin's policy of insurance provides coverage for defendant Levernier "while operating another boat." Thus, contrary to defendant Rickert's assertions, the definition of "operator" is inapplicable to the facts of this case. The only definition that would be applicable is that of "operate." Wis. Stat. § 30.50(8) defines "operate" as "to navigate or otherwise employ." Defendant Levernier did not "navigate or otherwise employ" defendant Hoffman's boat. The undisputed facts establish that defendant Hoffman did not ask defendant Levernier to take over operation of the boat. They also establish that defendant Levernier never touched the throttles or controls of the boat that day, never touched the automatic pilot mechanism, never operated the steering wheel or steering mechanism, and did not do anything to affect either the speed or direction of defendant Hoffman's boat on June 25, 1999. When asked, defendant Hoffman could not recall any specific act that defendant Levernier did to manipulate or control the boat. Defendant Hoffman testified that he expected defendant Levernier to operate the boat while he was down below. However, defendant Hoffman's expectations do not establish that defendant Levernier actually was operating the boat at the time of the accident. Defendant Rickert contends that the Wisconsin courts have been liberal in defining what constitutes an "operator," citing Milwaukee County v. Proegler, 95 Wis. 2d 614, 291 N.W.2d 608 (Wis.Ct.App. 1980) and Village of Elkhart Lake v. Borzyskowski, 123 Wis. 2d 185, 366 N.W.2d 506 (Wis.Ct.App.1985). However, the facts of this case are distinguishable from the facts of the cited cases. As indicated by the plaintiff, in each of the cited cases, the person found to be the operator of the motor vehicle had exercised physical control or manipulation over the motor vehicle. In both cases, the person found to be the operator of the motor vehicle had started the car, driven the car, stopped the car, left the car running, and then fell 862 asleep. In this case, however, the undisputed facts establish that defendant Levernier did not exercise physical control or manipulation over Hoffman's boat on June 25, 1999. Thus, defendant Levernier was not operating Hoffman's boat as required by National Ben-Franklin's policy of insurance. Therefore, defendant National Ben-Franklin's motion for summary judgment seeking a declaration that its policy does not provide coverage to defendant Levernier is granted. Defendant National Ben-Franklin's motion for summary judgment also seeks a declaration that its policy provides coverage in excess to other applicable policies. Defendant Northern Insurance filed a response brief contending that National Ben-Franklin's coverage is not in excess to Northern's coverage. However, because the court has determined that defendant National Ben-Franklin's policy of insurance does not provide coverage to defendant Levernier, it is unnecessary to address whether National Ben-Franklin's coverage is in excess to other applicable policies. Northern Insurance Company's Motion for Summary Judgment Defendant Northern Insurance has filed a motion for summary judgment seeking a declaration that defendant Levernier is not an additional insured under its policy of insurance issued to defendant Hoffman. In the alternative, defendant Northern Insurance seeks a declaration that its policy of insurance is excess to the other insurance policies. Defendant Northern Insurance issued a policy of insurance for defendant Hoffman's boat. The policy defines "insured" to include the named insured, members of the named insured's immediate family and "any other person firm, corporation or legal entity who may be operating the yacht with the prior permission of the named insured as long as no charge is made." (Nilles Aff. ¶ 4, Exh. C at 1). Like defendant National Ben-Franklin's policy, the Northern Insurance policy does not define "operate" or "operating." Defendant Northern Insurance asserts that in construing the terms of the policy, the court should look to the dictionary definition of the term "operate," as well as the definitions of "operate" and "operation of a motorboat" found in Wis. Stat. §§ 30.50(8) and 30.50(8g) respectively. The dictionary defines the term "operate" as "to exert power over or influence; to produce an effect." Webster's Third New International Dictionary Unabridged (Merriam-Webster, Inc.1986). The portion of the Wisconsin statutes that regulates boating defines the term "operate" as "to navigate or otherwise employ," Wis. Stat. § 30.50(8), and defines the term "operation of a motorboat" to mean "controlling the speed or direction of a motorboat," Wis. Stat. § 30.50(8g). Defendant Northern Insurance contends that these definitions all involve the exertion or exercise of physical control over something. Defendant Northern Insurance further contends that the definitions are consistent with the use of the term by reasonable lay persons. Defendant Northern Insurance points out that defendant Levernier was not consulted about the route the boat would take or whether any stops would be taken along the way. Additionally, defendant Northern Insurance states that defendant Levernier was not consulted about the boat's fuel supply or whether the boat would need to take on additional fuel during the trip. Therefore, defendant Northern contends that defendant Levernier did not exert any power or influence over the boat or its course, did not navigate or otherwise employ the boat, and did not control the 863 speed or direction of the boat. Accordingly, defendant Northern maintains that defendant Levernier was not operating the boat and is not an additional insured under the terms of its policy of insurance. In response, defendant Rickert submitted a brief almost identical to the one she submitted in response to National Ben-Franklin's motion for summary judgment. Defendant Levernier submitted only one brief in response to all the motions for summary judgment. Thus, both defendant Rickert's and defendant Levernier's arguments are as set out with respect to defendant National Ben-Franklin's motion for summary judgment. The court's analysis of defendant Rickert's reliance on Wis. Stat. § 30.50(8r), defining "operator" is equally applicable when analyzing defendant Northern Insurance's motion for summary judgment. Moreover, the court's analysis of defendant Rickert's cited case law is also applicable when analyzing defendant Northern Insurance's motion for summary judgment. Contrary to defendant Rickert's and defendant Levernier's contentions, defendant Levernier's ability to exert or exercise physical control over the boat's speed or direction does not equate with operating the boat. Moreover, defendant Hoffman's assumption that, if he was momentarily distracted, defendant Levernier would take over the operation of the boat does not mean that defendant Levernier was operating the boat on June 25, 1999. In support of its motion for summary judgment, defendant Northern cites to the recent Wisconsin Supreme Court case of Burg v. Cincinnati Cas. Ins. Co., 254 Wis. 2d 36, 645 N.W.2d 880 (Wis.2002) to support its position. In Burg, the court construed the term "operate" in the context of a statute requiring a snowmobile's head and tail lamps to be illuminated when a snowmobile is operated at night. The portion of the Wisconsin statutes regulating snowmobiles defines "operate" as "the exercise of physical control over the speed or direction of a snowmobile or the physical manipulation or activation of the controls of a snowmobile necessary to put it in motion." Wis. Stat. § 350.01(9r). The court in Burg held that the act of sitting on a snowmobile with its engine off did not constitute the exercise of some form of control over a running vehicle. 645 N.W.2d at 886. The court also stated that the term "operate" involves the exercise of physical control over the speed or direction of the snowmobile and the physical manipulation or activation of the snowmobile's controls. Id. at 884-85. Defendant Northern Insurance asserts that defendant Levernier similarly did not exert or exercise any control over defendant Hoffman's boat. Defendant Northern Insurance also asserts that defendant Levernier did nothing to affect either the speed or direction of the boat. Rather, according to defendant Northern Insurance, defendant Levernier was a passenger on defendant Hoffman's boat and he never assumed operation of the boat or touched the wheel or any of its controls. In this case, the undisputed facts establish that defendant Levernier did not exercise physical control or manipulation over Hoffman's boat on June 25, 1999. Defendant Levernier did not "navigate or otherwise employ" defendant Hoffman's boat. The undisputed facts establish that defendant Hoffman did not ask defendant Levernier to take over operation of the boat. They also establish that defendant Levernier never touched the throttles or controls of the boat that day, never touched the automatic pilot mechanism, never operated the steering wheel or steering mechanism, and did not do anything to affect either the speed or direction of defendant Hoffman's boat on June 25, 864 1999. In fact, when asked, defendant Hoffman could not recall any specific act that defendant Levernier did to manipulate or control the boat. Defendant Hoffman testified that he expected defendant Levernier to operate the boat when he went down below. However, defendant Hoffman's expectations do not establish that defendant Levernier actually was operating the boat at the time of the accident. In light of the foregoing, the court concludes that defendant Levernier was not operating Hoffman's boat as required by Northern Insurance's policy of insurance. Therefore, defendant Northern Insurance's motion for summary judgment seeking a declaration that it's policy does not provide coverage to defendant Levernier is granted. Defendant Northern Insurance's motion for summary judgment also seeks a declaration that its policy provides coverage in excess to other applicable policies. Defendant National Ben-Franklin filed a response brief to defendant Northern Insurance's motion for summary judgment, but the brief did not address Northern Insurance's argument that its policy of insurance is excess to the other insurance policies. Nonetheless, because the court has determined that defendant Northern Insurance's policy of insurance does not provide coverage to defendant Levernier, it is unnecessary to address whether such coverage is in excess to other applicable policies. General Casualty's Motion for Summary Judgment Defendant General Casualty's motion for summary judgment seeks a declaration that it does not have a duty to defend or indemnify defendant Levernier. Defendant General Casualty also seeks a declaration that it is entitled to reimbursement of defense fees provided to defendant Levernier for defense of the underlying actions. In the alternative, defendant General Casualty seeks a declaration that its policy of insurance is excess over the other insurance policies. Defendant General Casualty issued a Preferred Homeowners Policy of insurance to defendant Levernier effective December 29, 1998 to December 29, 1999.[3] Defendant General Casualty's policy excludes coverage for "bodily injury" arising out of "the ownership, maintenance, use, loading or unloading of an excluded watercraft." "Excluded watercraft are those that are principally designed to be propelled by engine power or electric motor or are sailing vessels, whether owned by or rented to an `insured'." However, the exclusion does not apply to watercraft that are "not sailing vessels" and are powered by "Inboard or inboard-outdrive engine or motor engine or motor power of more than 50 horsepower not owned by or rented to an `insured'." The boat at issue in this case had twin inboard engines in excess of 50 horsepower. Thus, it was not an excluded watercraft under the policy. An insurer has the obligation to defend its insured against a lawsuit if the complaint "alleges facts which, if proven, would give rise to liability covered under the terms and conditions of the policy." Sola Basic Industries, Inc. v. U.S. Fidelity & Guaranty Co., 90 Wis. 2d 641, 646, 280 N.W.2d 211, 213-14 (Wis.1979). The existence of the duty to defend depends solely on the nature of the claims asserted in the complaint and has nothing to do with the merits of the claim. Radke v. Fireman's Fund Ins. Co., 217 Wis. 2d 39, 865 43, 577 N.W.2d 366 (Wis.Ct.App.1998). If the complaint contains allegations that, if proven, would be covered by the insurance policy, the insurer has a duty to defend. Grube v. Daun, 173 Wis. 2d 30, 72, 496 N.W.2d 106 (Wis.Ct.App.1992). The duty to defend is broader than the duty to indemnify because the duty to defend is triggered by arguable, as opposed to actual, coverage. General Cas. Co. of Wisconsin v. Hills, 209 Wis. 2d 167, 176 n. 11, 561 N.W.2d 718, 722 n. 11 (Wis. 1997). "If there is any doubt about the duty to defend, it must be resolved in favor of the insured." Elliott v. Donahue, 169 Wis. 2d 310, 321, 485 N.W.2d 403, 407 (Wis. 1992). However, "[t]he insurer is under an obligation to defend only if it could be held bound to indemnify the insured." Nichols v. American Employers Ins. Co., 140 Wis. 2d 743, 747, 412 N.W.2d 547, 549 (Wis.Ct.App.1987) (quoting Grieb v. Citizens Cas. Co. of New York, 33 Wis. 2d 552, 148 N.W.2d 103, 106 (Wis.1967)). Defendant General Casualty maintains that in order for the policy to provide coverage when the boat is not an excluded watercraft, the bodily injury must arise out of the ownership, maintenance, use, loading or unloading of the boat. Therefore, according to defendant General Casualty, the only question for the court is whether the bodily injuries alleged in the underlying complaints arose out of defendant Levernier's "use" of defendant Hoffman's boat. Defendant General Casualty contends that the following facts support its position that the bodily injuries at issue did not arise out of defendant Levernier's use of the boat: at no time prior to the accident did defendant Hoffman ask defendant Levernier to assume operation of his boat; defendant Levernier did nothing to affect either the direction or speed of the boat; defendant Levernier did not touch the controls of defendant Hoffman's boat or set up the automatic pilot; and defendant Levernier never touched the steering wheel. In response, defendant Levernier contends that the plain language of the General Casualty policy does not limit coverage to "bodily injury" arising out of the "ownership, maintenance, use, loading or unloading of a boat." Rather, defendant Levernier contends that because the boat at issue is not an excluded watercraft, the policy provides coverage regardless of whether the bodily injury arose out of his "use" of defendant Hoffman's boat. As previously indicated, defendant Rickert's responsive briefs to each of the motions for summary judgment are nearly identical. In response to defendant General Casualty's motion for summary judgment, defendant Rickert does directly address a case cited by General Casualty. Defendant Rickert asserts that the unpublished case cited by defendant General Casualty, Knoche v. Stracka, 120 Wis. 2d 669, 353 N.W.2d 842, 1984 WL 180258 (1984), provides no "authoritative precedent" and nonetheless, it is distinguishable because it involved a claim against a party not present on the boat at the time of the accident. General Casualty's policy of insurance only excludes coverage for "bodily injury" arising out of "[t]he ownership, maintenance, use, loading or unloading of an excluded watercraft." (Fleming Aff., ¶ 6, Exh. E at 10-12). Defendant Hoffman's boat is not an excluded watercraft because it was powered by inboard engines of more than 50 horsepower and was not owned or rented by defendant Levernier. The plain language of General Casualty's policy of insurance does not limit coverage for "bodily injury" to that arising out of the ownership, maintenance, use, loading or unloading when the boat is not an "excluded watercraft." Thus, whether defendant Levernier was "using" defendant 866 Hoffman's boat is immaterial. See Travelers Property Casualty Corp. v. Pendergraft, 1998 WL 856101, 1998 U.S. Dist. LEXIS 19813 (E.D.La.1998) (stating, in dicta, that "[t]he exclusion would not apply if the 85 horsepower inboard motor was not either owned by or rented to the insured, i.e., if the insured had borrowed the jetski from someone."). General Casualty's policy of insurance provides coverage to defendant Levernier for "bodily injury" resulting from the June 25, 1999, boating accident. Therefore, defendant General Casualty's motion for summary judgment seeking a declaration that it does not have a duty to defend or indemnify defendant Levernier is denied. Accordingly, defendant General Casualty's motion for summary judgment seeking a declaration that is entitled to reimbursement of defense fees provided to defendant Levernier is also denied. Defendant General Casualty's motion for summary judgment also seeks a declaration that its policy provides coverage in excess to other applicable policies. Defendant National Ben-Franklin filed a response brief to defendant General Casualty's motion for summary judgment. National Ben-Franklin's brief did not address General Casualty's argument that its policy of insurance is excess to the other insurance policies. Defendant Northern Insurance filed a response brief contending that General Casualty's coverage is not excess to Northern Insurance's coverage. Because the court determined that defendant National Ben-Franklin's policy of insurance and defendant Northern Insurance's policy of insurance do not provide coverage to defendant Levernier, it is unnecessary to address whether National Ben-Franklin's coverage is excess to other applicable policies. Based on the court's determination, it appears that all the issues in this action have been resolved. The parties are to notify the court in writing as to any remaining issues that need resolution in this case. Such notification must be provided within 15 days of the date of this order. In the absence of notification of remaining issues within 15 days, the court will enter judgment dismissing this action. ORDER NOW, THEREFORE, IT IS ORDERED that plaintiff National Ben-Franklin Insurance Company of Illinois' motion for summary judgment (Docket # 99) be and hereby is granted. IT IS FURTHER ORDERED that defendant Northern Insurance Company of New York's motion for summary judgment (Docket # 104) be and hereby is granted. IT IS ALSO ORDERED that defendant General Casualty Company of Illinois' motion for summary judgment (Docket # 108) be and hereby is denied. IT IS FURTHER ORDERED that the parties are to notify the court in writing within 15 days of the date of this order as to any remaining issues in this action. In the absence of notification of remaining issues within 15 days, the court will enter direct the entry of judgment dismissing this action. NOTES [1] This background information is taken from the proposed findings of fact of defendant General Casualty Company which are undisputed. [2] As a general matter, unless accompanied by citation, the relevant facts are taken from the parties' proposed findings of fact which are relevant to the issues before the court and which are not disputed. Citations to sources of quoted excerpts have been included, even when those excerpts are undisputed. [3] Defendant General Casualty also issued a Personal Umbrella Liability endorsement to defendant Levernier. The undisputed facts establish that the policy did not become effective until September 29, 1999, and, therefore, does not provide coverage for the collision.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/6364023/	Opinion by Judge Rogers, The Abington Education Association, a union of employes of the Abington School District, has appealed from an order of the Court of Common Pleas of Montgomery County granting equitable relief to the instant appellees, a group, of the Association’s members composed of special education teachers and home and school visitors of the School District. The appellees aver in their amended complaint, in which both the Association and the School District are 565named as defendants, that the Association was the collective bargaining representative for the employes of the School District, including the plaintiffs; that in the past the plaintiffs had received a salary premium because of their special responsibilities in teaching exceptional children; that the Association and School Board had negotiated a collective bargaining agreement voiding their salary premiums; that the elimination of their salary premiums was at the insistence of the Association; that the elimination of the premiums in this manner was a violation of the Public School Code of 1949 ;1 and that the actions of the Association in insisting in the course of bargaining with the School District on the elimination of their salary premiums was unfair. The relief sought was that the defendants be restrained from giving effect to the collective bargaining agreement and that the Association be directed to meet with the Board and agree to the inclusion of the accustomed premiums in the collective bargaining agreement. The Association filed preliminary objections which were overruled. The School Board filed an Answer. The Association filed an Answer, and an Amended Answer with New Matter. The plaintiffs filed a Reply to New Matter. Stipulations were filed of record, which provided that the plaintiffs would withdraw an application for a preliminary injunction and that the Association and School Board might execute the collective bargaining agreement and put it into effect without provision for the plaintiffs’ salary premiums, subject to reinstatement of the premiums if the case on the merits should be decided for the plaintiffs. After trial on the merits, the chancellor made the following findings of fact: 5665. The Special Education Teachers are engaged in the task of teaching and managing various levels of retarded children in order to prepare them for a place in society in keeping with their own potential. 6. The Home and School Visitors act as liasons between home and school and community in order to resolve those student problems wherein communication and cooperation between the three are helpful and necessary. 9. That after the passage of Act 195 [on July 23, 1970], the Abington Education Association was certified by the Pennsylvania Labor Relations Board as the professional employees bargaining representative which unit was comprised of all teachers, including Special Education Teachers and Home and School Visitors. 10. Until the school year 1973-1974, every annual agreement providing for compensation for the Special Education Teachers commencing with at least the 1963-1964 school year contained provision for a salary differential, in addition to the teacher’s base salary in recognition of this special assignment. 11. Since the school year of 1971-1972, the position differential increment for Special Education Teachers was five (5%) percent of their base salary. 12. Until the school year 1973-1974, every annual agreement providing for compensation for the Home and School Visitors commencing with the 1968-1969 school year contained provisions for a salary differential in addition to the teacher’s base salary in recognition of their special assignment. 56713. Since the school year of 1971-1972, the position differential increment for Home and School Visitors was three (3%) percent of their base salary. 14. That the 1973-74 Negotiated Contract did not provide for differential payments to Special Education Teachers nor to Home and School Visitors. 15. That the Association commenced negotiating for the 1973-74 school year in January, 1973. 16. That the Association did not present any negotiation proposal providing for differential payment to the Special Education Teachers and the Home and School Visitors; in fact, it insisted that salary premiums for the plaintiffs he omitted from such agreement. 17. The Board included said premiums in all offers made to the Association until the last day of said negotiations, at which time the Board agreed to delete said premiums at the Association’s insistence. 23. The Association admitted through the testimony of its chief negotiator, Mike Mecklowitz, that the Association had no intention to bargain for salary differentials for the plaintiffs, and in fact, on April 23, 1973, advised the Board who sought the continued inclusion of the differentials that the Association would strike if the Board did not drop the provisions. 24. That plaintiffs did not exceed seventeen in number, whereas, the remaining teachers numbered in excess of several hundred. 25. That the Association membership approved the proposed contract; first by voice vote, and then by standing vote on May 1, 1973. 56826. The Home and School Visitors and Special Educators registered their dissent by vote. 27. On June 6, 1973, plaintiffs made demand upon the Association and the Board to reinstate the salary differentials in the agreement to beeoirie effective July 1, 1973. 28. On June 8, 1973,- the Board expressed its willingness to reopen negotiations concerning the proposed agreement with the Association. 29. On June 12, 1973, the Board expressed its willingness to reinstate the salary premium in the proposed agreement without disturbing any of the other provisions of the agreement. 30. The Association refused further negotiations for the purpose of reinstating the salary differentials. 31. On April 23, 1973, the Board dropped its demand for inclusion in the agreement of Salary position differential for the plaintiffs only at the 11th hour bargaining sessions, when it became clear that an agreement could not be reached unless the Board gave in to the. Association. 32. The Board sent the proposed collective bargaining agreement to its solicitor for review and was informed by the solicitor that it would be illegal for the Board to execute the agreement without plaintiffs’ premiums included therein. 33. After the advice of its solicitor, the Board expressed its willingness to reopen negotiations' with Association concerning said premium; however, Association refused this offer. 34. The Board and' Association executed the- -1973-1974 collective bargaining agreement effective July 1, 1973, pursuant to a stipula569tion and an order of this court dated August 20, 1973, and pending the outcome of the merits of this case. 37. The plaintiffs did not give their consent to either the Association or the Board, to delete said differential salary from their employment contract. (Emphasis in original.) On the above findings, the court below concluded first, that the discontinuance of the appellees’ salary premiums were demotions made in violation of Section 1151 of the School Code, 24 P.S. §11-1151, and second, that the Association had not bargained in good faith on behalf of appellees. The court decreed the amendment of the collective bargaining agreement so as to include the 5% salary premiums for the special education teachers and the 3% salary premiums for the home and school visitors. The Association filed exceptions which were overruled and this appeal followed. The Board has not appealed and takes the position of a disinterested stakeholder willing to pay the percentage differentials if required by law. The Association contends that the court below was without power to give equitable relief because the appellees had an adequate statutory remedy for their assertedly improper demotions and that the court had no jurisdiction to decide whether the Association had engaged in bad faith bargaining, this subject being within the exclusive jurisdiction of the Pennsylvania Labor Belations Board. We agree on both points and therefore do not reach the Association’s alternative arguments that there had been neither a demotion within the meaning of the School Code nor an act of bad faith bargaining on the part of the Association. The Association properly notes with respect to the asserted demotions that Section 1151 of the School Code, 24 P.S. §11-1151, allows the same procedures for 570contesting a demotion as those provided for contesting a professional employee’s dismissal. Section 1127, 24 P.S. §11-1127, requires notice and school board hearing before dismissal, and Section 1131, 24 P.S. §11-1131, allows appeals from the school board’s action to the Secretary of Education with subsequent appeal to this Court in accordance with Section 403 (1) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. §211.403(1). See also, Department of Education v. Charleroi Area School District, 22 Pa. Commonwealth Ct. 56, 347 A.2d 736 (1975); Abington School Board v. Pittenger, 9 Pa. Commonwealth Ct. 62, 305 A.2d 382 (1973). These are clearly adequate statutory remedies.2 The Association next contends that the appellees’ charge that the Association has engaged in bad faith collective bargaining describes an unfair labor practice under Section 1201(b)(3) of the Public Employe Relations Act (PERA),3 43 P.S. §1101.1201(b) (3), which provides that: (b) Employe organizations, their agents, or representatives or public employes are prohibited from: (3) Refusing to bargain collectively in good faith with a public employer, if they have been 571designated in accordance with provisions of this act as the exclusive representative of employes in an appropriate unit. If the Association’s contention that its alleged conduct is an unfair labor practice is correct, the court below was without jurisdiction of this subject because Section 1301 of PERA, 43 P.S. §1101.1301, grants exclusive power to the Pennsylvania Labor Relations Board to restrain unfair labor practices. Harrisburg School District v. Harrisburg Education Association, 32 Pa. Commonwealth Ct. 348, 379 A.2d 893 (1977). The appellees contend that the obligation imposed upon the union by Section 1201(b)(3) refers only to a duty of the union to the employer and does not describe a duty of the union to its members. We disagree. Section 606 of PERA, 43 P.S. §1101.606 provides that: Representatives selected by public employes in a unit appropriate for collective bargaining purposes shall be the exclusive representative of all employes in such a unit to bargain on wages, hours, terms and conditions of employment. . . . Hence the Association in bargaining with the School District was obliged to represent the interests of all its members in good faith and without discrimination to any.4 The failure of the Association to perform 572this duty as to any of its members would constitute bad faith bargaining, made an unfair labor practice by Section 1201(b)(3). The PLRB has exclusive jurisdiction to abate all unfair labor practices and a court none.5 Harrisburg School District v. Harrisburg Education Association, supra. Order vacated. Order And Now, this 5th day of 'December, 1977, the order of the Court of Common Pleas of Montgomery County made July 29, 1976 is vacated. Act of March 10. 1919, P.L. 30. as amended, 24 P.S. §§1-101 et seq. The appellees also contend that the statutory procedures for contesting a demotion do not provide an adequate remedy at law because this- School Board is willing to pay the premiums but is prevented from doing so by the Association. Hence, they contend, a School Board hearing would be without meaning or effect. This argument is without merit. The statute says that only the School Board may demote a professional employee. Abington School Board v. Pittenger, supra. It is thus for the School Board, in the first instance, and the Secretary of Education on appeal, to determine the demotion issues. Act of July 23, 1970, P.L. 563, as amended. In determining whether there has been a breach of this duty, the fact-finder must keep in mind that: Any authority to negotiate derives its principal strength from a delegation to the negotiators of a discretion to make such concessions and accept such advantages as, in the light of all relevant considerations, they believe will best serve the interests of the parties represented. A major responsibility of negotiators is to weigh the relative advantages and disadvantages of differing proposals.... The bargaining representative, whoever it may be, is responsible to, and owes complete loyalty to, the interest of all whom it represents. . . . Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect *572individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion. Ford Motor Co. v. Huffman, 345 U.S. 330, 337-38 (1953). We are cognizant of the fact that the U.S. Supreme Court in Vaca v. Sipes, 386 U.S. 171 (1967), while treating a breach by a union of its duty of fair representation in bargaining as an unfair labor practice under Section 8 (b) (1) (A) of the NLRA, 29 U.S.C.Á. §158(b) (1) (A), refused to-grant exclusive jurisdiction over such matters to the NLRB. Federal decisions interpreting the NLRA, while .instructive, are not binding in our determinations under PERA. Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975). The Supreme Court’s major objection to deciding that the NLRB should have exclusive jurisdiction in cases in which members charge their union with unfair labor practices was the lack of assurance that the employes injured by the union’s conduct would obtain any review of their complaints because the NLRB’s General Counsel has uwreviewable discretion to refuse to institute an unfair labor practice complaint. 386 U.S. at 182-83. This objection is without force in the Pennsylvania public sector, because Section 1502 of PERA, 43 P.S. §1101.1502, provides for judicial review of all final PLRB orders, including orders refusing to bring a complaint. Pennsylvania Social Services Union, Local 668 v. Pemisylvasua Labor Relations Board, 27 Pa. Commonwealth Ct. 552, 367 A.2d 778 (1976).	01-03-2023	06-24-2022
https://www.courtlistener.com/api/rest/v3/opinions/2499408/	276 P.3d 838 (2012) STATE v. SMITH-ALLEGREE. No. 104846. 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/2499568/	120 F. Supp. 2d 1218 (2000) QAI, INC., Cheetah Communications, LLC, Plaintiffs, v. SPRINT COMMUNICATIONS, CO., Defendant. No. SA CV 00-958 AHS (EEx). United States District Court, C.D. California, Southern Division. November 14, 2000. David. A. Robinson, David Z. Ribakoff, Enterprise Counsel Group, Irvine, CA, for plaintiffs. John Lazar, Manatt, Phelps & Phillips, L.L.P., Los Angeles, CA, for defendant. OPINION ON ORDER DENYING PRELIMINARY INJUNCTION STOTLER, District Judge. I. INTRODUCTION Plaintiffs, Cheetah Communications ("Cheetah") and QAI, Inc. ("QAI"), moved 1219 for a preliminary injunction to enjoin defendant Sprint Communications Company ("Sprint") from terminating service during the period in which the parties would be resolving a billing dispute in an arbitration already filed with the American Arbitration Association and pending in Kansas City, Missouri. Plaintiffs' application for a preliminary injunction raised the question of whether a district court, located outside the situs in which the parties have agreed to arbitrate any disputes arising from the parties' contract, may exercise jurisdiction in order to maintain the "status quo" pending completion of the arbitration. The Court denied relief to plaintiffs on the ground that the parties' contract controlled their relations, since that document specified that all "disputes arising or relating" thereto shall be submitted to arbitration in Missouri, arbitration was already pending there, and the plaintiffs' remedy, if any, lay in the parties' chosen venue. II. FACTUAL AND PROCEDURAL HISTORY Cheetah is a "switchless reseller" of long distance service. Cheetah buys long distance from various suppliers, including Sprint on a wholesale basis. Cheetah, in turn, resells the long distance service to, among others, co-plaintiff QAI. Cheetah and Sprint entered into a service agreement in November 1997. By the terms of that agreement, the parties agreed to resolve by arbitration, via the services of the American Arbitration Association, any dispute arising out of or relating to the agreement. The contract designated Kansas City, Missouri as the location of arbitration proceedings. A choice of law provision in the agreement states that the parties' contract is governed by Kansas law. On May 25, 2000, Sprint filed a demand with the American Arbitration Association and initiated arbitration proceedings in Kansas City, Missouri. Before the arbitration panel had been selected, the billing dispute between Sprint and Cheetah escalated, and Sprint notified Cheetah of its intent to terminate service, under certain terms of the contract, if Cheetah failed to make certain payments that are the subject of the billing dispute. Sprint demanded that Cheetah make specified payments by October 4, 2000, or face termination of service. On October 3, 2000, Cheetah and QAI applied in the Central District of California for a temporary restraining order to prevent Sprint from terminating service on the date specified in Sprint's notice. The Court granted the plaintiffs' request, temporarily restraining Sprint from terminating Cheetah's long distance service. The Court ordered Sprint to show cause why Sprint should not be preliminarily enjoined from terminating Cheetah's long distance service pending final resolution of the ongoing billing dispute. On October 13, 2000, the Court heard oral argument on Cheetah's motion for a preliminary injunction. After having considered the moving, opposition and reply papers, the authorities cited, the declarations, exhibits, and oral arguments of counsel, the Court declined to reach the merits of plaintiffs' motion for injunctive relief. Rather, the Court found the Central District of California to be an improper venue for plaintiffs' motion to preliminarily enjoin defendant in light of the parties having begun, as contracted, arbitration proceedings in Kansas City, Missouri. Plaintiff QAI, the Court found, independent of Cheetah, had not been shown to have standing to enforce the contested contractual provisions or enjoin Sprint from terminating service. The order to show cause for issuance of a preliminary injunction was therefore discharged and denied without prejudice. The Court ordered the temporary restraining order to remain in effect for an additional ten days, through October 23, 2000, in order to permit plaintiffs to seek appellate review in an orderly fashion or file their request for injunctive relief elsewhere. 1220 On October 30, 2000, the Court issued its Findings of Fact and Conclusions of Law as required by Fed.R.Civ.P. 65. III. SUMMARY OF PARTIES' CONTENTIONS A. Plaintiffs' Motion for Preliminary Injunction Plaintiffs argue that this Court has the power to grant injunctive relief pending resolution of the Kansas City arbitration proceeding. Alternatively, plaintiffs argue that defendant's billing practices are tantamount to activities of unfair competition in violation of section 17200 of the California Business and Professions Code, and violation of that statutory scheme warrants injunctive relief pursuant to section 17203 of that code. Plaintiffs cite PMS Distrib. Co. v. Huber & Suhner, A.G., 863 F.2d 639 (9th Cir. 1988), for the proposition that the Court of Appeals for the Ninth Circuit, aligning itself with the Seventh, Second, and First Circuits, allows a district court to grant injunctive relief pending the outcome of arbitration. See Sauer-Getriebe KG v. White Hydraulics, Inc., 715 F.2d 348 (7th Cir.1983) (finding plaintiffs seeking injunctive relief to enforce the terms of a contract did not thereby waive their right to arbitrate the dispute); Roso-Lino Beverage Distrib. v. Coca-Cola Bottling Co., 749 F.2d 124 (2d Cir.1984) (finding that a district court had concurrent authority to order parties to arbitrate and issue a preliminary injunction pending the outcome). In PMS Distrib., the court was faced with an issue of first impression as to whether a district court's order to compel arbitration stripped that same district court of authority to subsequently issue provisional relief pending arbitration, namely, a writ of possession. The Ninth Circuit was persuaded by the reasoning of the First Circuit in Teradyne, Inc. v. Mostek Corp., 797 F.2d 43 (1st Cir.1986) which explained that "the Congressional desire to enforce arbitration agreements would frequently be frustrated if the courts were precluded from issuing preliminary injunctive relief to preserve the status quo pending arbitration and ipso facto, the meaningfulness of the arbitration process." PMS Distrib., 863 F.2d at 641-42 (quoting Teradyne, 797 F.2d at 51). Relying on PMS Distrib., plaintiffs proceed to present their likelihood of success on the merits of the billing dispute and the irreparable injury that would ensue absent injunctive relief. Despite their discussion of the merits, plaintiffs concede that the primary question is whether the dispute must be arbitrated before Sprint can proceed to terminate service. Plaintiffs premise their likely success both on the terms of the contract itself as well as Sprint's alleged violation of section 17200 of the California Business and Professions Code. B. Defendant's Opposition Defendant Sprint points to the language of Section 4 of the Federal Arbitration Act which directs parties to the appropriate district to which they are to petition for an order to compel arbitration. Section 4 provides that "the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed." Sprint relies primarily on the Seventh Circuit and its interpretation of section 4 to allow a district court to compel arbitration only if arbitration, as agreed by the parties, is to occur in that judicial district. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Lauer, 49 F.3d 323, 328 (7th Cir.1995). In Lauer, the plaintiff demanded arbitration in response to an investment dispute. See id. at 325. Plaintiff requested to arbitrate in Tampa, Florida before the National Association of Securities Dealers ("NASD"). The defendant consented 1221 to arbitration but requested that the arbitration occur in Illinois. Nevertheless, NASD selected Tampa, Florida as the arbitration site. Subsequently, defendant petitioned an Illinois District Court to compel arbitration in that district as well as dismiss certain claims that were subject to the Florida arbitration. See id. In response, the plaintiff moved in a Florida District Court to compel arbitration in Florida, as had been selected by NASD and was scheduled to proceed on a date certain. See id. at 326. The Seventh Circuit interpreted section 4 of the Federal Arbitration Act, 9 U.S.C. § 4, to "allow parties who feel that their case is not being arbitrated, or is being arbitrated improperly, to petition the Court for an order compelling arbitration." Id. at 326. In Lauer, the court specifically considered "whether the Northern District of Illinois court was an appropriate candidate for a § 4 motion in this dispute given the prearbitration proceedings that had already taken place in Florida." Id. at 326. Applying the language of section 4 of the Federal Arbitration Act to the facts of Lauer, the Seventh Circuit concluded that when the arbitration location has already been designated, the statute limits accordingly the judicial districts that can compel arbitration to those geographically linked to the location of arbitration. See id. at 327. In the event venue is proper, Sprint presents arguments disputing both Cheetah's likelihood of success and the irreparable harm that Cheetah allegedly would suffer absent issuance of injunctive relief. Further, Sprint contends that an injunction is not appropriate on California statutory grounds as plaintiffs have made an inadequate showing of Sprint's having engaged in unfair competition by means of its billing practices. C. Plaintiffs' Reply In response to defendant's assertions of improper venue, plaintiffs rely on the literal language of section 4 of the Federal Arbitration Act, 9 U.S.C. § 4. which states that [a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. 9 U.S.C. § 4 (emphasis added). However, that section goes on to state, as quoted earlier, that "[t]he hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing arbitration is filed." 9 U.S.C. § 4. Plaintiffs urge the Court to adopt the literal language of the first portion of the statute directing parties to petition any United States District Court for an order compelling arbitration. Further, discounting the Seventh Circuit interpretation of section 4 to require such an order to issue from the district where the arbitration is to occur (in light of the subsequent statutory language to that effect), plaintiffs conclude that, absent Ninth Circuit law on the construction of section 4, this district court has the authority to grant provisional relief. Finally, plaintiffs further assert that, independent of injunctive relief to preserve the parties' long distance service arrangement pending resolution of the disputed construction of the contract, the Court should grant injunctive relief to prevent Sprint from committing further violations of California's unfair competition laws. IV. DISCUSSION A. Contractual and Statutory Grounds for Injunction Are Subject to Arbitration In denying plaintiffs' requested preliminary injunction, the Court took the view 1222 that plaintiffs' statutory-based claim is subject to the arbitration, and hence any injunctive relief pertaining to that arbitrable matter may be addressed by the court located in the district of arbitration. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 625, 105 S. Ct. 3346, 3353, 87 L. Ed. 2d 444 (1985) (finding no "warrant in the Arbitration Act for implying in every contract within its ken a presumption against arbitration of statutory claims"); see also Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S. Ct. 927, 941, 74 L. Ed. 2d 765 (1983) (stating that "questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration"). Sprint and Cheetah agreed by the arbitration clause that "[a]ny dispute arising out of or relating to the Agreement will be finally settled by arbitration in accordance with the rules of the American Arbitration Association." In Alpert v. Alphagraphics Franchising, Inc., 731 F. Supp. 685, 687-88 (D.N.J.1990), the court found a similar contract instructing arbitration of claims "arising out of or relating to" the agreement to embrace statutory claims for violation of the New Jersey Consumer Fraud Act and the New Jersey Franchise Practices Act. Further, the Alpert court discounted plaintiff's argument that those statutes bar waiver of a judicial forum, recognizing that "a state statute that require[s] judicial resolution of a franchise contract, despite an arbitration clause, [is] inconsistent with the Federal Arbitration Act, and therefore violate[s] the Supremacy Clause." Id. at 688 (citing Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S. Ct. 852, 858, 79 L. Ed. 2d 1 (1984)); see also AT & T Corp. v. Vision One Sec. Sys., 914 F. Supp. 392, 398 (S.D.Cal.1995) (finding contract's arbitration policy language addressing all disputes "arising out of" and "related to" the agreement to create a broad arbitration clause) (citing Mediterranean Enter., Inc. v. Ssangyong, 708 F.2d 1458, 1464 (9th Cir.1983)). Plaintiffs' request for relief turns on whether Sprint must resolve the billing dispute in arbitration instead of invoking self-help by terminating service before arbitration is completed. Accordingly, the Court did not reach the merits of an alleged violation of California's unfair competition statutory scheme, but rather addressed whether this district was the proper venue to adjudicate the request for provisional relief. B. Order Compelling Arbitration Must Issue from District of Arbitration Situs The Seventh Circuit in Lauer, interpreting section 4 of the Federal Arbitration Act, clearly explains that there must exist a "geographic link between the site of the arbitration and the district which, by compelling arbitration or directing its scope, exercises preliminary control." Lauer, 49 F.3d at 327. Plaintiffs seek to rely on the introductory language of section 4 that purportedly allows parties to petition "any United States district court" to compel arbitration. Yet, the Lauer court notes that such an expansive allowance "quickly narrows" to require the arbitration proceedings to occur in the district where the petition for the order to compel is filed. See id. at 327 (citing 9 U.S.C. § 4). Conversely, the order should issue from the district where the arbitration is to occur. See Lauer, 49 F.3d at 327 (concluding that the "inescapable logical import" when the arbitration location is "preordained, is that the statute limits the fora in which § 4 motions can be brought") (citing Lawn v. Franklin, 328 F. Supp. 791, 793 (S.D.N.Y.1971) (finding that "[t]he proper District within which the petition for such order should be filed is the District where the `proceedings' by virtue of the contract of the parties are to take place")); see also Kim v. Colorall Tech., No. C-00-1959-VRW, 2000 WL 1262667, 1 n. 1 (N.D.Cal. Aug.18, 2000) (relying on the Seventh Circuit's opinion in Lauer in stating that a district court can only compel arbitration to occur in its own district). 1223 The geographic nexus limits a district court's authority to issue orders in arbitration proceedings occurring outside that district. For example, in Horizon Plastics v. Constance, No. Civ. A 99-6132, 2000 WL 1176543 (D.N.J. August 11, 2000), the plaintiff petitioned a New Jersey district court to enjoin arbitration proceedings initiated by defendant in New York. The court, in determining its authority to grant an injunction to stay arbitration proceedings, found an absence of any "principled distinction" between compelling arbitration and staying arbitration. See id. at 4. The court characterized both types of judicial actions as injunctive relief, specifically injunctive relief to have effect in another district where the arbitration is to occur. See id. The court concluded that venue in a New Jersey court was improper for the application to enjoin New York arbitration proceedings. See id. C. Injunctive Relief Pending Arbitration Should be Sought Elsewhere Plaintiffs' reliance on PMS Distrib.for the proposition that injunctive relief in the Central District is appropriate pending arbitration is misplaced. In PMS Distrib., plaintiff petitioned the Central District to compel arbitration. This district court granted the petition. See id. at 640. Five months later, defendants applied to the same district court for issuance of a writ of possession; the court granted that writ. See id. The Ninth Circuit relied on the First, Second, and Seventh circuit cases where parties sought injunctive relief pending arbitration. The court concluded that the district court's having ordered arbitration under section 4 of the Arbitration Act "does not strip it of authority to grant a writ of possession pending out-come of the arbitration ...." Id. at 642. Pursuant to that finding, the court found that while arbitration is pending, the parties could return to the district court to seek provisional relief after the court had ordered arbitration. See id. Notably, in two of the cases on which PMS Distrib. relies, the same court issued both the order to compel arbitration as well as ruled on the issuance of injunctive relief. See Roso-Lino, 749 F.2d at 125 (affirming the district court's order to arbitrate and reversing that court's denial of plaintiff's motion for preliminary injunction noting that "the district court believed its decision to refer the dispute to arbitration stripped the court of power to grant injunctive relief"); Teradyne, 797 F.2d at 51 (holding that the district court was not in error by issuing a preliminary injunction before ruling on arbitrability of the dispute). The court in PMS Distrib. also relied on the Seventh Circuit decision in Sauer-Getriebe KG which held that injunctive relief and the right to arbitrate are not incompatible and found the district court to have authority to issue injunctive relief while the matter awaited arbitration. See Sauer-Getriebe KG, 715 F.2d at 350. In that instance, the plaintiff had filed a complaint seeking injunctive relief. In its complaint, plaintiff noted that it intended to request arbitration pursuant to the agreement between the parties calling for arbitration by an International Commercial Contract ("ICC") court of arbitration. See id. at 350. The rules of the ICC court expressly allow a party to seek provisional relief before the matter is arbitrated. "Before the file is transmitted to the arbitrator, and in exceptional circumstances even thereafter, the parties shall be at liberty to apply to any competent judicial authority for interim or conservatory measures ...." Id. (quoting Article 8, Section 5 of the internal rules of the ICC court of arbitration). In Sauer-Getriebe the plaintiff applied to the court for injunctive relief before arbitration proceedings were even demanded. Further, due to the unique language of the arbitration rules of the ICC by which the parties agreed to be bound, interim relief was available before the matter went to the arbitrator; but even under the ICC rules, only exceptional circumstances warranted interim relief after 1224 the file was transmitted to the arbitrator. See id. The Seventh Circuit, as discussed supra, subsequently expanded its jurisprudence on the district court's role when arbitration is to proceed in a designated location, holding in Lauer that the proper court to compel arbitration is the court sitting where the arbitration is to occur. The Lauer court did cite one instance where a district court found it appropriate to grant provisional relief in a matter to be submitted to arbitration outside that district. See Bosworth v. Ehrenreich, 823 F. Supp. 1175 (D.N.J.1993). In Bosworth, the parties had contracted to arbitrate in New York. Plaintiff filed an application for preliminary injunction in a New Jersey district court. In response, defendant filed a motion to stay the action pending arbitration. The court found that it lacked the power to compel arbitration outside the District of New Jersey. By the same token, it granted a preliminary injunction but only pending the commencement of arbitration proceedings in New York. Then, the court transferred venue to the Southern District of New York. See id. at 1184. Bosworth purported to rely on Ortho Pharmaceutical Corp. v. Amgen, Inc., 882 F.2d 806 (3d Cir.1989), for the proposition that injunctive relief in the arbitrable matter was both warranted and could be issued from an outside district. However, Ortho Pharmaceutical, while permitting injunctive relief pending arbitration, does not squarely address the proper venue for issuance of such relief. Bosworth is further distinguishable from the instant case in that the parties had not begun arbitration and the injunctive relief issued by the New Jersey district court expired once the arbitration commenced. Several states' laws governing arbitration are consistent with the instant ruling by requiring provisional relief to issue from the county where the arbitration proceeding is pending. See, e.g., Cal. Civ. Code § 1281.8(b) ("A party to an arbitration agreement may file in the court in the county in which an arbitration proceeding is pending, or if an arbitration proceeding has not commenced, in any proper court, an application for a provisional remedy in connection with an arbitrable controversy, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief."); N.Y. C.P.L.R. 7502(c) ("The supreme court in the county in which an arbitration is pending, or, if not yet commenced, in a county specified in subdivision (a), may entertain an application for an order of attachment or for a preliminary injunction in connection with an arbitrable controversy, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief. ..."); GA.Code Ann. § 9-4-4(e) ("The superior court in the county in which an arbitration is pending, or, if not yet commenced, in a county specified in subsection (b) of this Code section, may entertain an application for an order of attachment or for a preliminary injunction in connection with an arbitrable controversy, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief."). The weight of authority holds that the proper venue for bringing an action seeking injunctive relief pending arbitration lies in the district where the arbitration proceedings are occurring. A policy of requiring injunctive relief to issue from the court where an arbitration is taking place also forecloses the possibility of forum shopping. In Lauer, the court noted that the Seventh and Eleventh circuits were split on whether the court or arbitrator resolved the allowance of particular claims pertaining to punitive damages and claims older than six years. See Lauer, 49 F.3d at 325-26. Compelling arbitration in Illinois instead of Florida would have made a significant impact on the resolution of the dispute, given the differing rulings between the relevant circuits. Hence, the 1225 Lauer court found the geographic link between the location of arbitration and the order compelling arbitration a necessary connection to prevent forum shopping. See id. at 330; see also Bao v. Gruntal & Co., 942 F. Supp. 978, 984 (D.N.J.1996) (finding that a "split among the Circuits with respect to the issue of who decides arbitrability under the six-year rule ... would encourage the forum shopping that § 4 was designed to prevent"). Moreover, the Lauer court, in finding Florida to be the proper venue for compelling arbitration and determining the arbitrability of certain issues, reasoned that application to an Illinois court added another "layer" of judicial involvement in contravention of judicial economy. See Lauer, 49 F.3d at 330. This Court may properly consider "forum shopping" in this case, because the Ninth Circuit in its PMS Distrib. case allows for injunctive relief pending arbitration, whereas, as defendant points out, the law of the Tenth Circuit, which governs Cheetah and Sprint's contracted location of arbitration, does not appear to allow injunctive relief. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Scott, No. 83-1480 (10th Cir. May 12, 1983) (vacating by order and without formal opinion a preliminary injunction that the district court had granted pending arbitration). Because the results may differ, depending on whether plaintiffs file in the Tenth versus the Ninth Circuit, the Court should, on that additional ground, deny plaintiffs' application for injunctive relief. V. CONCLUSION For the reasons set forth above, the Court holds that plaintiffs have applied to the wrong court for injunctive relief pending arbitration. The court retains the temporary restraining order an additional ten days, for the reasons above stated, after which the temporary restraining order is dissolved and the bond is exonerated. IT IS SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499573/	120 F. Supp. 2d 864 (2000) HOME DIAGNOSTICS INC., Plaintiff, v. LIFESCAN, INC., Defendant. No. C99-21269 JW. United States District Court, N.D. California, San Jose Division. October 26, 2000. Scott Mosko, Finnegan Henderson Farabow Garrett & Dunner, Palo Alto, CA, for plaintiff. David Eiseman, Quinn Emanuel Urquhart Oliver & Hedges, Palo Alto, CA, for defendant. 865 ORDER GRANTING-IN-PART AND DENYING-IN-PART HDI'S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT BASED ON COLLATERAL ESTOPPEL WARE, District Judge. I. INTRODUCTION This case concerns the application of the collateral estoppel doctrine in a second patent infringement case between the same parties that litigated a prior patent infringement case. Counterclaim I in this suit involves the same patent but a different accused product than the first case. Counterclaim II involves a different patent and different accused product. The Court finds that there is no legitimate dispute that the accused product in this case contains the identical structure as was previously litigated. The Court therefore applies the doctrine of collateral estoppel and grants summary judgment as to Counterclaim I. Summary judgment is denied as to Counterclaim II. II. BACKGROUND This is an action for declaratory judgment. Plaintiff, Home Diagnostics, Inc. ("HDI") filed this suit seeking judgment that the use of its new blood glucose monitoring systems, called the Prestige LX meter and the Prestige Smart Systems (collectively "the LX") does not infringe either LifeScan's U.S. Patent No. 5,049,487 (the "'487 patent") or LifeScan's U.S. Patent No. 5,849,692 (the '692 patent). The current suit arose in the context of multiple litigations between the parties. See Court's Order of June 19, 2000. Most pertinent to the current motion is a lawsuit filed in the United States District Court for the District of Delaware in December 1996, where LifeScan asserted that HDI's Prestige meter, a predecessor product to the LX product at issue in this suit, infringed the '487 patent ("the Delaware Action"). The Delaware Action was tried to a jury in March 1999, with Chief Judge Joseph Farnan, Jr. presiding. The jury rendered a verdict finding, inter alia, that use of two versions of HDI's Prestige blood glucose monitoring system does not literally infringe claim 1 of the '487 patent but does infringe under the doctrine of equivalents. On June 21, 2000, Judge Farnan overrode the jury verdict of infringement, granting HDI's motion for judgment of non-infringement as a matter of law ("JMOL"). After the jury finding of infringement but before issuance of the JMOL, LifeScan filed a preliminary injunction motion in this Court, seeking to enjoin HDI from selling both the Prestige and LX products, relying extensively on the jury finding. However, the JMOL issued in time for this Court to consider it in denying the preliminary injunction motion. HDI asserts collateral estoppel based upon Judge Farnan's JMOL and moves for summary judgment that the LX does not infringe the '487 patent. HDI also seeks summary judgment on that basis with respect to the '692 patent. HDI noticed the motion for hearing on September 25, 2000. The Court deems it appropriate to rule on the matter on the basis of the submitted papers and without oral argument pursuant to Civil Local Rule 7-1(b). The motion is GRANTED as to Counterclaim I and DENIED as to Counterclaim II. III. STANDARDS Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). The purpose of summary judgment "is to isolate and dispose of factually unsupported claims or defenses." Celotex v. Catrett, 477 U.S. 317, 323-324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying 866 those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S. Ct. 2548. If he meets this burden, the moving party is then entitled to judgment as a matter of law when the non-moving party fails to make a sufficient showing on an essential element of his case with respect to which he bears the burden of proof at trial. Id. at 322-23, 106 S. Ct. 2548. The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party cannot defeat the moving party's properly supported motion for summary judgment simply by alleging some factual dispute between the parties. To preclude the entry of summary judgment, the non-moving party must bring forth material facts, i.e., "facts that might affect the outcome of the suit under the governing law ... Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 588, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The court must draw all reasonable inferences in favor of the non-moving party, including questions of credibility and of the weight to be accorded particular evidence. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 111 S. Ct. 2419, 2434-35, 115 L. Ed. 2d 447 (1991) (citing Anderson, 477 U.S. at 255, 106 S. Ct. 2505); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 588, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 630 (9th Cir. 1987). It is the court's responsibility "to determine whether the `specific facts' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence." T.W. Elec. Service, 809 F.2d at 631. "[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, 477 U.S. at 248, 106 S. Ct. 2505. However, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S. Ct. 1348. The doctrine of collateral estoppel, also known as issue preclusion, conserves judicial resources by precluding relitigation of issues that have already been decided in a prior proceeding. See Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980), Molinaro v. Fannon/Courier Corp., 745 F.2d 651 (Fed.Cir. 1984), A.B. Dick Co. v. Burroughs Corp., 713 F.2d 700 (Fed.Cir.1983). For collateral estoppel to apply, the following requirements must be met: (1) the issue must be identical to one decided in the first action; (2) the issue must have been actually litigated in the first action; (3) resolution of the issue must have been essential to a final judgment in the first action; and (4) the party opposing application of collateral estoppel must have had a full and fair opportunity to litigate the issue in the first action. A.B. Dick, 713 F.2d at 702. IV. DISCUSSION As the basis of its collateral estoppel motion, HDI cites the JMOL, which held that HDI's "Prestige" model blood glucose monitor does not infringe claim 1 of the '487 patent. In overruling the jury's finding of infringement, the Delaware court found that the Prestige monitor does not satisfy element (e), the "predetermined time" element, of claim 1. Judge Farnan stated: [T]he Court concludes, as a matter of law, that insufficient evidence was presented 867 from which the jury could have concluded that step (e) was literally present in the Prestige meters. Although both of Plaintiff's liability experts, Dr. Smith and Mr. Kramer, testified about the operation of the Prestige meter, the Court finds their testimony to be conclusory and unclear on the issue of a predetermined time period.... Mr. Kramer's testimony undercut in some respects his opinion that the Prestige meter operates according to a predetermined time period. For example, Mr. Kramer testified: Q: And you agree that it is not known before the test begins with the Prestige device at which of these five second intervals the result will be displayed, correct? A: Are we still talking about the 070 version? Q: In either one. A: Either one? It is correct that the readings will be taken every five seconds, and we cannot determine which of those five seconds will produce the result that will be displayed to the user. (Tr. 950:7-18). To this extent, Mr. Kramer's testimony suggested that the Prestige meter does not use a time period determined in advance. LifeScan, Inc. v. Home Diagnostics, Inc., 103 F. Supp. 2d 345, 361 (D.Del.2000). Judge Farnan further held as a matter of law that the Prestige meter did not infringe the predetermined time element under the doctrine of equivalents. Id. at 361-62. Judge Farnan clearly adjudicated the specific issue of whether the Prestige method of taking reflectance readings every five seconds during the test meets the "predetermined time period" limitation. Judge Farnan determined as a matter of law that it does not.[1] HDI relies on the Delaware decision to challenge LifeScan's Contingent Counterclaims I and II. Even though Counterclaim I involves different products than the Delaware case, and Counterclaim II involves different products and a different patent than the Delaware case, HDI asserts that the identical issue resolved by the Delaware court is raised by the Counterclaims. A. Counterclaim I A central question in this motion is whether the JMOL estops LifeScan from asserting the same patent claim against different HDI products. HDI asserts that, although the Prestige and LX products have differences, the LX meters "share the operational features relevant to the `predetermined time period' claim limitation." (Opening Brief, 5:19-20). Specifically, HDI argues that the LX, like the Prestige, takes reflectance readings at five second intervals and that it is not known prior to the test which of the five second intervals will provide the final reading. (Opening Brief, 5:21-23). 1. Where Identical Issues Are Raised, Collateral Estoppel May Apply to a Product Not Previously Litigated. As a threshold matter, LifeScan argues that collateral estoppel may be applied "only if the accused device is the same as a device that was the subject of prior litigation." (Opposition, 14:4-6). LifeScan seems to argue that collateral estoppel is proper only where there is "overall identity" as opposed to "identity between relevant portions" of the accused product. (Opposition, 13:20-25). The Court disagrees. The Court is unpersuaded that the cases cited by LifeScan stand for this proposition. First, there is no clear support in Molinaro for LifeScan's assertion that Molinaro 868 concerns application of collateral estoppel where the second suit involves "the very same product" as the earlier suit. HDI has effectively questioned this proposition by submitting the Molinaro district court decision, in which the district court analogized the Molinaro case to a case where collateral estoppel was applied to a second accused device that was not the exact same device as was previously found noninfringing. Molinaro v. Fannon/Courier Corp., No. 74-1492, slip op. at 4-5 (D.N.J. December 14, 1983).[2] The district court's comparison of the two cases strongly suggests that the Federal Circuit Molinaro decision contemplated application of collateral estoppel to a nonidentical product. Del Mar presents a closer case. The Federal Circuit stated in Del Mar that "[a] device not previously before the court, and shown to differ from those structures previously litigated, requires determination on its own facts." Del Mar, 836 F.2d at 1324 (emphasis added). LifeScan interprets this comment to suggest that there must be complete identity between the products for collateral estoppel to apply. (Opposition, 14:6-8). This Court is reluctant to draw such an extreme conclusion, given that in Del Mar, the district court's refusal to apply collateral estoppel was predicated on its finding that the accused device used different circuitry than the previously litigated device. Id. The issue of whether that different circuitry infringed the patent had not previously been litigated. Therefore, Del Mar did not address the situation where an accused product, though different from a previously litigated product, contains a structure that is identical to a structure that was previously determined to be non-infringing. To adopt LifeScan's argument would undermine the principles of collateral estoppel by allowing relitigation of precisely the same issue, that of whether a particular structure within a product satisfies a particular element of the asserted patent claim. If a structure in a product is found to be identical to a structure in an otherwise different, previously litigated product, the judgment as to whether that structure meets the relevant claim element must apply to the later litigation to avoid repetitive litigation of the same issues. However, to prevail in the current context, HDI must establish that there is no genuine issue of disputed fact that the pertinent structures in the two devices are identical. 2. HDI Has Met Its Burden For Summary Judgment. HDI has met its initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S. Ct. 2548. HDI submitted the declaration of Paul Anderson to support the assertion that the pertinent structures in the Prestige and LX meters are identical. (Mosko Dec. Ex. H (Anderson Dec.) at ¶¶ 26, 33, 34). In addition, HDI cites several instances where LifeScan argued to the Court that there were no significant differences between the Prestige and LX meters. (Opening Br. at 6-7). LifeScan has failed to respond with specific facts to set forth a material issue in dispute. Most notably, LifeScan has not disputed HDI's assertion that the LX takes reflectance readings at five second intervals and that it is not known prior to the test which of the five second intervals will produce the result that will be displayed to the user. LifeScan attempts to 869 raise a material fact dispute by asserting that "it is apparent even from a lay person's review" that the computer program which operates the LX is different from the program that operates the Prestige, and that this difference suggests that the Prestige and LX systems operate in different ways. (Opposition, 13:8-20). However, LifeScan has failed to demonstrate the materiality of this difference in computer programs. In particular, LifeScan has not submitted any expert declaration stating that the differences in the computer programs reflect a difference in the way that the Prestige and LX take reflectance readings. Materiality cannot be established by mere assertions in legal memoranda. S.A. Empresa De Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235 (9th Cir.1982). Moreover, LifeScan previously submitted an expert declaration in support of its preliminary injunction motion, attesting that "[d]ifferences between the method of operation of the Prestige meter ... and the new Prestige LX ... art insignificant from the standpoint of comparing the methods to the patent claims referenced above." (Daley Dec. Ex. A (Smith Dec.) at ¶ 32). Absent any specific evidence supporting LifeScan's allegations of differences, and in view of the numerous legal and factual representations that LifeScan made to this Court contradicting its current position, LifeScan has failed to raise a material issue of fact. HDI has therefore met the summary judgment standard to establish that the Prestige and LX products are identical in the respect that both take reflectance readings at five second intervals and it is not known prior to the test of the blood glucose which of the five second intervals will produce the result that will be displayed to the user. To the extent that LifeScan now asserts that this method of operation meets the "predetermined time" element of claim 1 of the '487 patent, that issue is identical to the issue decided in the Delaware action. 3. The Circumstances Do Not Justify A Rule 56(f) Continuance. LifeScan urges denial of this motion based on a need for discovery pursuant to Fed.R.Civ.P. 56(f). However, LifeScan has failed to submit the requisite declarations stating specifically what information is sought, proffering sufficient facts to show that the evidence sought exists, and how that information would preclude summary judgment. See, Church of Scientology of San Francisco v. Internal Revenue Service, 991 F.2d 560 (9th Cir. 1993). Moreover, LifeScan's argument in its Opposition Brief that it has not been able retain a computer software expert to analyze the computer code contradicts a prior declaration made in support of LifeScan's motion for preliminary injunction. Specifically, the declaration of LifeScan's expert John Smith states: I examined and tested a Prestige LX meter and Prestige test strips, and identified the principles of operation of the Prestige LX system by examination of the computer code contained in the microprocessor and the constants contained in memory for the meter. ... Differences between the method of operation of the Prestige meter, that was the subject of the March 1999 trial, and the new Prestige LX (or Walgreen's Prestige Smart System) meter, are insignificant from the standpoint of comparing the methods to the patent claims referenced above. (Daley Dec. Ex. A (Smith Dec.) at ¶¶ 2, 32). LifeScan has already argued to this Court that it had the opportunity to examine the computer code, and its expert concluded that the Prestige and LX products had insignificant differences as to the elements pertinent to infringement of claim 1 of the '487 patent. The Court therefore reject's LifeScan's plea for further discovery prior to ruling on this matter. 870 4. HDI Has Met All Other Required Elements For Application of Collateral Estoppel to Counterclaim I. HDI has met its burden of establishing the additional elements of collateral estoppel. It is undisputed that the issue was actually litigated in the Delaware action, that issue was essential to the final judgment of non-infringement in that action, and that LifeScan had a full and fair opportunity to litigate the issue in the Delaware action. Therefore, the doctrine of collateral estoppel dictates the conclusion that LX's method of taking reflectance readings at five second intervals does not meet the predetermined time period element. Given that infringement requires satisfaction of every element of a patent claim (General Mills v. Hunt-Wesson, 103 F.3d 978, 981 (Fed.Cir.1997)), the LX systems do not infringe the '487 patent as a matter of law. B. Counterclaim II HDI urges the Court to apply collateral estoppel to LifeScan's Counterclaim II, which asserts infringement of the '692 patent. HDI downplays the difference in the claim language of the '487 and '692 patents. Although collateral estoppel may be used to apply the same claim scope to a previously construed claim term (See In re Freeman, 30 F.3d 1459, 1466 (Fed.Cir. 1994)), this Court declines to apply collateral estoppel to claim terms that have yet to be construed. HDI's motion as to Counterclaim II is therefore DENIED. V. CONCLUSION For the foregoing reasons, the Court GRANTS HDI's motion as to Counterclaim I and finds that the LX products do not infringe the '487 patent as a matter of law. The Court DENIES HDI's motion as to Counterclaim II. NOTES [1] A final judgment retains its preclusive effect despite pendency of an appeal. Pharmacia & Upjohn Co. v. Mylan Pharmaceuticals, Inc., 170 F.3d 1373, 1381 (Fed.Cir.1999). LifeScan has appealed Judge Farnan's decision to the Federal Circuit. If LifeScan prevails on its appeal, Lifescan may then move this Court to modify this judgment accordingly. Id. at 1382. [2] The Court stated: More recently, in a case closely analogous to the one at hand, the Western District of New York held that collateral estoppel may apply to a prior holding of noninfringement even if the second accused device is `[not] the exact same device as was previously found noninfringing.' Overhead Door Corp. v. Whiting Roll-up Door Manufacturing Corp., 215 U.S.P.Q. 428, 433 (W.D.N.Y. 1981). The court declared that the defendant would be allowed to successfully assert a defense of collateral estoppel if it could demonstrate that its devices differed from the patented devices in the same way or ways as the devices accused in the earlier action.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499570/	120 F. Supp. 2d 887 (2000) Tamara VALLIER, et al., Plaintiffs, v. JET PROPULSION LABORATORY; California Institute of Technology; United States of America, Defendants. No. CV 97-01171 CAS. United States District Court, C.D. California, Western Division. August 2, 2000. 888 889 Clifford H. Pearson, Wasserman Comden & Casselman, Tarzana, CA, Stan Blumenfeld, Gordon E. Krischer, James R. Asperger, O'Melveny & Myers, Thomas V. Girardi, Girardi & Keese, Los Angeles, CA, for Plaintiffs. 890 Stan Blumenfeld, Gordon E. Krischer, James R. Asperger, O'Melveny & Myers, Gwendolyn Millicent Gamble, Nora M. Manella, Asst. U.S. Attorney, Office of U.S. Attorney Civil Div., Los Angeles, CA, J. Patrick Glynn, Department of Justice Civil Division, Washington, DC, David S. Fishback, Steven Talson, Department of Justice Civil Division, Washington, DC, for Defendants. ORDER DENYING CALIFORNIA INSTITUTE OF TECHNOLOGY'S PETITION FOR CERTIFICATION AND GRANTING UNITED STATES' MOTION FOR SUMMARY JUDGMENT SNYDER, District Judge. I. INTRODUCTION Plaintiffs[1] filed this action against defendant and third-party plaintiff Jet Propulsion Laboratory ("JPL"), and defendant California Institute of Technology ("Caltech") on January 10, 1997 in Los Angeles County Superior Court. Thereafter, Caltech filed a third party claim against the United States that is described below. On February 24, 1997, Caltech removed this action to this Court pursuant to 28 U.S.C. งง 1331, 1441, 1442, and 2679. II. PROCEDURAL HISTORY Caltech, which operates JPL, filed its third-party complaint for indemnity and declaratory relief against the United States under the Federal Torts Claims Act ("FTCA").[2] The third-party complaint alleges four claims for relief: (1) comparative equitable indemnity (proximate cause); (2) comparative equitable indemnity (vicarious liability); (3) implied contractual indemnity; and (4) declaratory relief. On December 24, 1997, following removal of this action to this Court, the United States filed a motion to dismiss Caltech's claims pursuant to Fed.R.Civ.P. 12(b)(1) or, in the alternative, for summary judgment, based upon its defense of governmental immunity. On February 17, 1998, Caltech filed a motion pursuant to Fed. R.Civ.P. 56(f) seeking deferral of consideration 891 of the government's motion until such time as further discovery could be conducted. Thereafter, on April 17, 1998, plaintiffs filed the Second Amended Complaint against Caltech and the United States. By order dated April 20, 1998, the Court granted in part Caltech's Rule 56(f) motion, providing the parties additional time to conduct discovery relevant to the United States' claim of governmental immunity. On July 10, 1998, the United States filed a motion to dismiss plaintiffs' claims pursuant to Fed.R.Civ.P. 12(b)(1) or, in the alternative, for summary judgment. The parties thereafter stipulated to have this motion heard concurrently with the United States' motion to dismiss or for summary judgment with regard to Caltech's claims. Plaintiffs filed the Third Amended Complaint ("TAC") against Caltech and the United States on December 14, 1998. The TAC alleges claims for: (1) battery; (2) wrongful death; (3) survival action; (4) negligence; (5) strict liability; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; and (8) public nuisance against all defendants. On April 30, 1999, Caltech filed a Motion to Estop the Government from Denying Extensive Supervision and Control over JPL Facilities. Also on April 30, 1999, Caltech filed a Petition for certification as a government employee pursuant to 28 U.S.C. ง 2679(d). On May 3, 1999, the government renoticed its motions to dismiss or for summary judgment against plaintiffs and Caltech. On August 13, 1999, the parties presented oral argument on all three pending motions, i.e., Caltech's motion to estop, Caltech's petition for certification, and the United States' motion to dismiss or for summary judgment. Following oral argument, these motions were taken under submission to enable the Court to consider the voluminous record presented by the parties. By order dated August 18, 1999, the Court denied Caltech's motion to estop. Because the jurisdictional issues in this case involve consideration of evidentiary materials going beyond the face of the pleadings, the Court finds the government's motion appropriate for decision on summary judgment. See, e.g., Redmon By and Through Redmon v. United States, 934 F.2d 1151 (10th Cir.1991). Moreover, at the August 13, 1999 hearing, the parties stipulated that the Court should treat the motion to dismiss as one for summary judgment pursuant to Fed.R.Civ.P. 56. The parties further stipulated at the August 18, 1999 hearing that Caltech's petition for certification should be decided on the record before the Court without further evidentiary hearings or trial. III. BACKGROUND FACTS JPL is a research and development facility located on 176 acres in Pasadena, California. United States Appendix, p. 1.[3] JPL is presently owned by the United States, under sponsorship by NASA, and operated by Caltech. Id.; Caltech Appendix, Exh. 24, pp. 1165-66.[4] Since its inception, JPL has performed research and development in aeronautics, space technology and space transportation. U.S.App., pp. 37, 78, 304-08. Since 1959, JPL has been designated as a federally funded research and development center ("FFRDC") as defined in 41 U.S.C. ง 405(a), 48 C.F.R. ง 35.017, and Federal Acquisition Regulation ("FAR") ง 35.017. Caltech App., Exh. 892 24, p. 1165. FAR ง 35.017(a)(2) defines the role of an FFRDC as follows: "FFRDC's enable agencies to use private sector resources to accomplish tasks that are integral to the mission and operation of the sponsoring agency." Id. JPL began as a privately-funded facility testing rocket engines in 1936.[5] Caltech App., Exh. 1, pp. 12-13; U.S.App., p. 2. In 1939, shortly after the outbreak of World War II, the United States Army Air Corps became interested in JPL's rocket research and decided to sponsor military research contracts at JPL. Caltech App., Exh. 1, p. 18, Exh. 9, pp. 434-436; U.S.App., pp. 2, 24. Thereafter, the Army Ordnance Department took over the role of sponsoring military research at JPL. Caltech App., Exh. 9, pp. 446-450; U.S.App., pp. 2-3. On June 22, 1944, Caltech and the Army Ordnance Department entered into Letter Order Contract No. W-04-200-Ord-455, an agreement to execute a contract for the research and development of rocket missile and launching equipment. Caltech App., Exh. 9, p. 447, Exh. 11, pp. 501-03; U.S.App. p. 248. The terms of that contract are contained in Supplement No. 9 to the Letter Order, entered into on January 15, 1945. Caltech App., Exh. 11, pp. 525-569; U.S.App., 249-251. Pursuant to the terms of Supplement No. 9, Caltech agreed to provide scientific, technical, engineering and other personnel, labor and services for the management and operation of JPL. Id.; U.S.App., pp. 79, 249-251. Caltech remained under contract with the Army to operate JPL until January 1, 1959. At that time, NASA succeeded to ownership of JPL, and JPL's mission changed from weapons development to space exploration. Caltech App., Exh. 20, pp. 1072-73; U.S.App., pp. 27-30, 79. Despite the transfer of ownership of JPL, Caltech remained under contract with the Army, and NASA administered the contracts. In 1961, NASA initiated its own new contract with Caltech.[6] This contract between Caltech and NASA has been renewed periodically since 1961. U.S.App., p. 38. IV. EVIDENTIARY OBJECTIONS Caltech has raised evidentiary objections to certain evidence submitted by the United States and by plaintiffs in conjunction with the United States' present motions. Similarly, plaintiffs have objected to certain evidence submitted by Caltech and the United States. Because this Court does not rely on the specific evidence objected to in rendering its decision herein, it does not deem it necessary to address these objections in this order. Furthermore, plaintiffs object to the evidentiary appendices submitted by Caltech and the United States in connection with the reply briefs supporting their respective motions, as being beyond the scope of those motions in violation of Local Rule 6.2. The Court, however, declines to exercise its discretion to strike these appendices, which appear to be supplemental and explanatory of the government's and Caltech's respective positions set forth in their moving papers. V. PETITION FOR CERTIFICATION Caltech seeks certification as a government employee pursuant to 28 U.S.C. ง 2679(d)(3). The United States and plaintiffs oppose the petition, claiming that Caltech does not qualify as a government employee but, rather, is an independent contractor. It is thus apparent that plaintiffs do not seek to hold the government liable for any conduct allegedly done by Caltech. 893 A. Standard for Certification A party may bring a suit against the federal government only to the extent that the government waives its sovereign immunity. United States v. Orleans, 425 U.S. 807, 814, 96 S. Ct. 1971, 48 L. Ed. 2d 390 (1976). The FTCA waives sovereign immunity for some tort claims arising out of the conduct of government employees acting within the scope of their employment. The FTCA also provides that the United States shall, under certain limited circumstances, defend suits brought against its employees. More specifically, ง 2679 of the FTCA provides that "[t]he Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate" for damage or injury resulting from the negligence of a government employee acting within the scope of his office or employment. 28 U.S.C. ง 2679(c). A party named as a defendant in a lawsuit may petition the Attorney General for certification that he was an employee "acting within the scope of his office or employment at the time of the incident out of which the claim arose[.]" 28 U.S.C. ง 2679(d)(1). If the Attorney General denies the petition, the party defendant may petition the court to "find and certify that the employee was acting within the scope of his office or employment." 28 U.S.C. ง 2679(d)(3). Upon certification by the court, the United States is substituted as the party defendant. Id. "Employee of the government" is defined as "officers or employees of any federal agency ... and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States[.]" 28 U.S.C. ง 2671. "`Federal agency' includes ... military departments ... and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States." Id. Caltech, having been denied certification as a government employee by the Attorney General,[7] has petitioned this Court for certification. The Army, a military department of the United States government, is a federal agency pursuant to ง 2671. If Caltech acted as an agency of the Army, or if Caltech employees acted "on behalf of" the Army, then Caltech fits within ง 2671's definition of an employee. If Caltech also satisfies the "scope of employment" element, it may be certified under ง 2679. Caltech bears the burden of proving by a preponderance of the evidence that it is entitled to certification pursuant to ง 2679(d)(3). See Green v. Hall, 8 F.3d 695, 698 (9th Cir.1993). B. Certification of Entities The government argues that certification is only appropriate for natural persons and that entities may not be certified as government employees. The government bases its argument on the language of ง 2679, which uses the pronouns "him" and "his" in reference to an employee of the government, but does not include any reference to "it." See, e.g., 28 U.S.C. ง 2679(b)(1) ("any employee of the Government ... acting within the scope of his office or employment") (emphasis added); 28 U.S.C. ง 2679(c) ("[t]he Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate," "[t]he employee ... shall deliver ... all process served upon him ... to his immediate superior ....") (emphasis added). Additionally, the government contends that certifying corporate entities would be contrary to the purpose of ง 2679, which was passed to immunize federal employees from "personal" liability 894 for acts committed within the scope of their employment. 134 Congr. Rec. S15596-06, ง 2(b) (1988) (emphasis supplied). While such references to "him" "his" or "personal" liability exhibit Congress' intention to indemnify natural persons who are governmental employees, nothing in the text of ง 2679 expressly confines certification to natural persons. The definitional section of the FTCA, 28 U.S.C. ง 2671, does not use the pronouns "him" or "his" in the definition of "employee of the government." Rather, that section includes within the scope of the definition of an employee "persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation." (emphasis supplied.) Moreover, the word "person," when used in the United States Code, is expressly defined to include corporate entities. 1 U.S.C. ง 1. Furthermore, entities have been certified as employees of the government, both by the courts and by the Attorney General. In B & A Marine Co. v. American Foreign Shipping Co., 23 F.3d 709 (2d Cir.1994), the court certified an entity as an employee of the government under 28 U.S.C. ง 2679. Similarly, in Pervez v. United States, 1991 WL 53852 (E.D.Pa. April 9, 1991), the United States was substituted as sole defendant after the Attorney General certified named defendant Carpenter Technology as an employee of the government.[8] In addition, in both Ferguson v. United States, 712 F. Supp. 775 (N.D.Cal. 1989), and Scallorn v. United States, 1996 WL 478973 (N.D.Cal. August 13, 1996), the courts found that defendant Sandia National Laboratories was an employee of the government and an agent of the government, respectively, pursuant to ง 2671. The government has failed to cite any authority to support its position that an entity may not be certified. Moreover, its attempts to distinguish the above-mentioned cases are unavailing. The government argues, for example, that Ferguson and Scallorn are distinguishable, in that the courts there addressed the status of individual employees working for the government rather than the contractors' relationship with the government agency. However, the court in Ferguson explicitly held that "Sandia acts on behalf of the DOE[,]" 712 F.Supp. at 782, while the court in Scallorn found that "Sandia functioned as an agent of the DOE[.]" 1996 WL 478973, 6. Furthermore, the court in B & A Marine held that the defendant's relationship with the government was the critical issue. 23 F.3d at 713. Thus, because it appears that entities may be certified pursuant to ง 2679, the Court will address the merits of Caltech's petition for certification. C. Employee or Independent Contractor The parties disagree regarding the standard applicable to the determination of whether Caltech was as an "employee of the government" during the relevant time period. The Supreme Court in Logue v. United States set forth the required analysis: [T]he `contractor with the United States' language of ง 2671 adopts the traditional distinction between employees of the principal and employees of an independent contractor with the principal, and ... the critical factor in making this determination is the authority of the principal to control the detailed physical performance of the contractor. 412 U.S. 521, 527-28, 93 S. Ct. 2215, 37 L. Ed. 2d 121 (1973). Three years later, in United States v. Orleans, the Supreme 895 Court reiterated this standard: "[a] critical element in distinguishing an agency from a contractor is the power of the Federal Government `to control the detailed physical performance of the contractor.'" 425 U.S. 807, 814, 96 S. Ct. 1971, 48 L. Ed. 2d 390 (1976) quoting Logue, 412 U.S. at 528, 93 S. Ct. 2215. The court added that "the question here is ... whether [the contractor's] day-to-day operations are supervised by the federal government." Id. at 815, 96 S. Ct. 1971. The government and plaintiffs assert that the precise question to be answered is whether the government actually exercised control over the detailed physical performance of Caltech's services. Caltech, however, contends that it need not show actual supervision and control and that the correct standard is whether the government had the right to supervise and control Caltech, even if the government did not exercise that right.[9] A review of the Ninth Circuit case law interpreting Logue and Orleans supports application of the "actual control" standard proffered by the government and plaintiffs. The Ninth Circuit has articulated this standard as requiring substantial supervision and control over the detailed physical performance and day-to-day operations of the contractor. See Hines v. United States, 60 F.3d 1442, 1446-47 (9th Cir.1995) ("critical question is whether the government supervises and controls the day-to-day operations"); Laurence v. Department of the Navy, 59 F.3d 112, 114 (9th Cir.1995) (finding independent contractor relationship based on government's failure to "exercise[] the requisite `substantial supervision' by controlling the detailed physical performance and day-to-day work of [the contractor]"); Letnes v. United States, 820 F.2d 1517, 1519 (9th Cir. 1987) ("there must be substantial supervision over the day-to-day operations of the contractor in order to find that the individual was acting as a government employee"). Although the Ninth Circuit in Ducey v. United States expressed the standard in terms of the government's right to control, the court there found that the government did not possess the requisite authority to control the contractor's physical performance of its duties. 713 F.2d 504, 516-17 (9th Cir.1983). Accordingly, it was not necessary for the court to address whether the government's actual exercise of a right to control would be required to establish that the contractor was a governmental employee. Ducey therefore did not decide that the government's unexercised right to control would suffice. Caltech's citation to Scallorn and Ferguson, as well as Bird v. United States, 949 F.2d 1079 (10th Cir. 1991) and Lewis v. Constitution Life Co., 96 Cal. App. 2d 191, 215 P.2d 55 (1950) is also unavailing. None of these cases is controlling authority, and they are not persuasive here in light of recent Ninth Circuit law explicitly endorsing the actual control test. Consequently, in order to determine whether Caltech was a government employee, rather than an independent contractor, the Court must inquire whether the United States possessed and exercised substantial day-to-day control over Caltech's waste disposal operations. See Hines, 60 F.3d at 1446-47; Laurence, 59 F.3d at 114. D. Caltech's Contentions Caltech contends that the government operated JPL as a government employee for purposes of facilities and waste disposal during the Army years. An entity may be an employee or agent of the government for some purposes and an independent contractor for other purposes. Ferguson v. United States, 712 F. Supp. 775, 782 (N.D.Cal.1989). Therefore, Caltech claims, based on the evidence of what occurred 896 during the Army years, that the Court should grant Caltech's petition for certification with respect to facilities and waste disposal. Caltech suggests that the following facts demonstrate the government's actual day-to-day supervision and control over waste disposal operations at JPL.[10] 1. Planning and Selection Caltech claims that the government planned and selected the waste disposal system at JPL through a Master Planning Board ("the Board"), appointed to oversee certain aspects of planning and management of JPL facilities.[11] Caltech App., Exh. 84, p. 2835. The original Board, appointed in 1949, was made up of three individuals: two military members โ the chairman, Army Col. Broberg, and a representative from the Army Corps of Engineers, W.H. Spear; and the director of JPL, Dr. Louis H. Dunn. Id. By 1957, the Board was made up of eight military and six JPL personnel. Caltech App., Exh. 84, p. 2847. Caltech contends that the government used the Board to control the development, funding, design and construction of facilities at JPL. For example, retired Col. Paul Scordas, Commanding Officer of the Army's Los Angeles Ordnance District ("LAOD") from 1957 to early 1961, was made the chairman of JPL's Board. Scordas Decl., ถ 14. He explains that the Board directed and supervised the development of JPL property, including acquisition of land, siting of facilities, and the design and construction of these facilities, including buildings, test areas, and utilities. Id. Caltech contends that the Board frequently held meetings to address facilities issues at JPL. The Board considered, among other things, land and building surveys, funding for proposed facilities, Army Corps data collection for use in designing and constructing the facilities, and compliance with Army safety regulations. As support Caltech has submitted the declaration of Robert J. Huguenard who worked for the LAOD Corps of Engineers from 1954 to 1959. Huguenard Decl., ถ 1. Huguenard, however, states that he has no recollection of being a member of JPL Board, and although he remembers attending some Board meetings with JPL personnel, he does not remember the substance of those meetings. Id., ถ 18. Scordas specifically recalls JPL Board meetings, wherein the Board discussed the need to expand JPL property because new facilities and personnel raised concerns about safety. Scordas Decl., ถ 15. Specifically, the Board was concerned with the quantity and placement of the storage of hazardous materials. Id. In addition, Dalton Bergan, a JPL employee from 1946 to 1951, supervised design and construction of a wind tunnel and acted as a liaison between JPL and the Army Corps of Engineers. Bergan Decl., ถถ 1-2. Bergan returned to JPL from 1956 to 1973 as the Project Engineer for new construction in plant services, and acted as a liaison with the Army Corps of Engineers in constructing two JPL buildings. Id., ถถ 2-3. Beginning in 1956, he was appointed to the Board. He also worked as Manager of JPL's Facilities and Plant Engineering Division. Bergan states that once the Board discussed a particular facilities issue, the Army would 897 decide how to resolve that issue. Id., ถถ 12-13. Bergan states further that he recalls several occasions when the Army chose not to address waste disposal issues raised by JPL. Id., ถ 14. In particular, Caltech contends that its personnel requested that the Army expand a small sewer system at JPL in the 1950's, but that the Army elected not to do so. Bergan Decl., ถ 14. Caltech also relies on a transcript from the County case[12], wherein Col. Broberg testified that "[t]here wasn't one thing [Dr. Dunn] asked for that wasn't changed either to comply with [Army] regulations or comply with the funds that we thought might be made available for the purpose." Tr., 145. Col. Broberg also testified that changes required so far as construction of the buildings was concerned were "strictly in accordance with the Engineer Corps specifications." Tr., 152.[13] In further support of its contention that the United States controlled JPL's waste disposal facilities through the Board, Caltech claims that the Board was responsible for the funding and management of utilities at JPL. For example, Scordas states in his declaration that the Board reviewed Land Use Plans for JPL which included utilities requirements. Scordas Decl., ถ 14. Caltech also contends that the Army Corps of Engineers directly received construction bids, had the sole discretion as to whom they would select, and then entered into a contract directly with the selected contractor. Caltech App., Exh. 99, p. 3183. In addition, Bergan explains that "the Army controlled the management of utilities on JPL site, including the waste disposal system. If changes to the utilities were needed, it was the Army Corps that would decide whether to make the change." Bergan Decl., ถ 14. Caltech further argues that the government controlled all phases of construction at JPL, including waste disposal facilities. Bergan explained that the Army followed established procedures for developing construction projects and that JPL's participation was limited to providing general and technical information. Bergan Decl., ถถ 8-11. Furthermore, Huguenard outlined the normal process for the construction of an approved project: the military would prepare the draft plans and specifications for the facility, then an outside architect hired by the Army would prepare the final plans and specifications. The LAOD would closely supervise the outside architect's work. The Army's construction division would then accept bids from private contractors for construction of the facility, and construction division inspectors would supervise the work. Huguenard Decl., ถถ 7-10. Caltech asserts that the Army required its contractors to follow detailed specifications and drawings with regard to materials, plumbing and hardware, and also furnished materials for construction by contractors. Huguenard Decl., ถ 10; Exh. 100, pp. XXXX-XXXX. In addition, Caltech contends that upon transfer of ownership of JPL from the Army to NASA in 1959, NASA followed a similar procedure for designing and constructing JPL facilities. Bergan Decl., ถถ 17-21. 2. Design and Construction Caltech claims that the United States' alleged design and construction of the 898 waste disposal system at JPL is "the most critical fact demonstrating the government's control of waste disposal at JPL." Caltech Reply, p. 13. a. Cesspool System Caltech contends that, in the 1940's and 1950's, the government decided to dispose of waste at JPL through a cesspool system, which included the use of cesspools, acid drain pits, and dry wells. According to Caltech, this system was designed and built pursuant to detailed government regulations and specifications, under the direction of government personnel, and was used with the government's full knowledge, participation, and approval.[14] Caltech sets forth Army regulations which, Caltech contends, governed all aspects of the design and construction of JPL facilities, including its waste disposal facilities. Section Five of the Safety Manual, entitled "Construction and Utilities" provides: "Each new operating and auxiliary building, and each new utility pertaining thereto, at any Ordnance establishment, shall comply with the mandatory provisions of this Section and other Department of the Army regulations concerning safety." Caltech App., Exh. 38, p. 1360 (emphasis in original). Furthermore, Robert Bailey and Norris Bachtell, Ordnance inspectors in Indiana during the 1950's, stated in their declarations that all Ordnance installations were governed by the rules contained in the Safety Manual. Bailey Decl., ถ 4; Bachtell Decl., ถ 4. One provision within Section Five on "Drains and Sumps" explains that sumps are required for drains handling explosive waste and provides details as to the design and placement of drains and sumps. Id., p. 1366. In addition, the Safety Manual contains a Section on the Collection and Destruction of Explosives and Ammunition. This Section provides specific means for disposing of industrial waste, such as sump pumps, settling beds, leaching pits, and closed containers. Caltech App., Exh. 38, pp. 1633-34. Caltech next sets forth various Army Corps of Engineers specifications which allegedly demonstrate that the government controlled construction of the cesspool system at JPL. The Army Corps of Engineers solicited bids for various construction projects at JPL in 1947, 1951, 1952, and 1956. The Corps provided specifications for these projects which include detailed requirements for the materials and design of cesspools, acid drain pits, dry wells, and floor drains. Caltech App., Exh. 108, pp. 3773, 3783-84, Exh. 110, pp. 3791, 3809-10, 3813, Exh. 112, pp. 3862, 3871, Exh. 113, pp. 3876, 3879, Exh. 115, pp. 3911, 3921, Exh. 116, pp. 3938, 4006. In addition, Caltech contends that Army inspections at JPL demonstrate the government's control over the design and construction of the cesspool system. Caltech asserts that during routine inspections, government inspectors focused on โ and issued specific orders aboutโwaste disposal. Bachtell, in his declaration, explains that he conducted an inspection of JPL in 1955. He inspected the acid storage dock and fuel storage dock and noted that neither was equipped with drains connected to sumps or with dykes, and he directed that these systems be installed in compliance with the Ordnance Safety Manual. Bachtell Decl., ถ 7, Exh. A. b. Delaying Construction of Sewer System Caltech next argues that the government failed to install a sewer system at JPL for seven years after Caltech requested one, thus underscoring the government's control over JPL. The City of Pasadena expressed concerns to JPL regarding groundwater contamination to JPL in 899 1948, and explained that the only solution to prevent contamination was to connect JPL to the City of Pasadena's sewer system. Caltech App., Exh. 121, p. 4117. Caltech asserts that it advised the Army of the City's concerns in early 1949, and requested funding for the installation of a sewer system. Caltech App., Exh. 126, p. 4157. The Army did not receive final approval to build a sewer system at JPL until 1955. After receiving final approval, Caltech argues, the Army designed the sewer system, entered into a construction contract with its contractors, and monitored and supervised the construction of the sewer system. Caltech App., Exh. 139, pp. 4364-66, 4400. Caltech further notes that the Army, and later NASA rather than Caltech, negotiated sewage service contracts with the City of Pasadena. Exh. 140, pp. 4470-74, Exh. 146, pp. 4502-02, Exh. 147, pp. 4550-4565. 3. Supervision and Direction of Waste Disposal Caltech further argues that the government supervised and directed waste disposal at JPL through stringent regulations, by constant monitoring and inspection of the facilities, and by direct participation in on-site and off-site waste disposal. a. Regulations Caltech contends that portions of the Army Ordnance Safety Manual demonstrate governmental control over waste disposal at JPL. In support of this position, Caltech sets forth provisions of the Safety Manual pertaining to the disposal of hazardous waste.[15] Caltech App., Exh. 38. As explained above, Bailey and Bachtell state in their declarations that facilities at Ordnance installations were governed by the Ordnance Safety Manual. Bailey Decl., ถ 5; Bachtell Decl., ถ 5. Further, Section 27 of the Safety Manual is devoted to the "Collection and Destruction of Explosives and Ammunition." It contains provisions regulating, for example, the "Collection of Contaminated Industrial Wastes," the Destruction of Collected Solid Waste, "Containers for Waste Explosives," and "Dumping at Sea." Caltech App., Exh. 38, pp. 1633-46. Caltech claims that, by means of government regulations, the government controlled waste disposal at the most minute level of detail. For instance, the Safety Manual contains a provision relating to "Housekeeping" which directs that: In explosives areas waste materials such as oily rags, combustible and explosive scrap and paper shall be kept separate from each other. Such waste should be placed in approved marked containers for each, preferably located outside the buildings. Scrap explosives shall be removed from operating buildings at least once every shift.... Spillage of explosives and other hazardous materials shall be prevented so far as practicable[.] Caltech App., Exh. 38, pp. 1529-30. b. Supervision Caltech further argues that close government supervision of waste handling and disposal at JPL demonstrates that the government controlled waste disposal there. During regular inspections, Caltech argues, the government examined the storage, handling and disposal of chemicals, solvents, and hazardous materials at JPL to determine compliance with Army regulations. Caltech relies on the testimony 900 of Col. Scordas who, at his deposition, was asked, "[w]hat did you do, if anything, to prevent pollution of the underground water supply with hazardous chemicals?" Scordas Depo., p. 35. Scordas responded that "[t]here are written procedures for the disposal of chemicals, and the District insisted that they comply with those procedures." Id. As further support, Caltech relies on the declarations of Bachtell and Bailey. Bachtell refers to a letter describing an inspection he conducted at JPL. Bachtell Decl., ถ 7, Exh. A. The letter explains, among other things, that Bachtell inspected acid and fuel storage docks, and concluded that they were not equipped with proper drains in compliance with the Safety Manual. Id. Caltech contends that only Army personnel were responsible for implementing Army recommendations about corrective or future actions. The Safety Manual requires that the commanding officer of an "Ordnance establishment" enforce the Manual's mandatory provisions and be guided by its advisory provisions.[16] Caltech App., Exh. 38, p. 1343. Caltech also sets forth various government reports on inspections at JPL and related documents which, Caltech asserts, show the government's level of control over waste disposal at JPL. This evidence includes: (1) a 1949 safety inspection report noting a potential hazard created by the draining of liquid propellants into a common pump, Caltech App., Exh. 148, p. 4568; (2) a 1949 inspection report noting that certain storage containers were equipped with a common drain which might allow propellants to mix and cause a fire of explosion, Id., Exh. 44, p.2094; (3) a letter from JPL to the Army Ordnance District, concerning a 1953 safety inspection report addressing JPL's burning of scrap propellant, Id., Exh. 149, p. 4572-73; (4) a letter from JPL to the Army Ordnance District, concerning a 1954 safety inspection report requesting that three "carboys of Ska-Sol" be moved from the fuel dock, Id., Exh. 150, p. 4575; (5) a letter from JPL to the Army Ordnance District explaining that weep holes had been installed in the mixing kettles in accordance with a 1955 safety inspection report, and proposing use of a portable lamp in the paint shop, Id., Exh. 152, p. 4579; (6) a 1955 safety inspection report noting that acid and fuel storage docks were not equipped with proper drains in compliance with the Safety Manual, Id., Exh. 153, p. XXXXXX-XXXX; Bachtell Decl., ถ 7; (7) a 1956 safety inspection report recommending color-coding of government-owned compressed gas cylinders, Caltech App., Exh. 154, p. 4587; (8) a 1957 inspection report directing the installation of separate sumps for fuels and oxidizers as well as floor drains for the sumps, Id., Exh. 155, pp. 4588-89; (9) a 1958 inspection report indicating that a regular program of cleaning and disposal should be conducted daily at the waste propellant collection station, Id., Exh. 156, p. 4595; (10) a 1959 safety inspection report recommending that certain hazardous materials be stored separately in accordance with the Safety Manual, Id., Exh. 157, p. 4598-99. c. Participation and Direction Caltech also contends that the government controlled waste disposal at JPL by participating in day-to-day waste disposal practices and decisions. Caltech claims that government employees worked alongside JPL employees and directly participated in the handling and use of chemicals, the construction of test motors, and the firing of propellant into water channels for torpedo research. Russell Byers, a JPL employee, testified at his deposition that he worked alongside approximately ten military personnel who participated in the grinding mixing, casting and curing of propellant. 901 Caltech. App., Exh. 220, pp. 5455-57. In addition, Caltech sets forth various photographs depicting individuals in military and civilian dress working together on missiles and other projects. Caltech App., Exh. 4, pp. 212-264. All of these activities, Caltech argues, necessarily would have included waste disposal. Furthermore, Caltech argues that government employees directed on-site and off-site waste disposal activities at JPL. A 1945 map of JPL entitled "Military Construction, Roads, Plot Plan, R1" depicts two "waste areas" and states that "wasting of material in waste areas is to be done under direction of contracting officer." Caltech App., Exh. 234.[17] Caltech also asserts that the government directed day-to-day waste disposal at JPL by requiring Caltech to comply with detailed procedures governing the disposal of government property.[18] Supplement No. 9 of the initial Letter Order Contract between the government and Caltech contains a provision governing "Disposition of Government-owned Property." Id., Exh. 11, p. 568. This provision describes government-owned property as including "scrap and waste materials" and indicates that "[w]ith the approval in writing of the Contracting Officer ... the Contractor may transfer or otherwise dispose of such Government-owned property to such parties and upon such terms and conditions as the Contracting Officer may approve or ratify[.]" Id. Furthermore, a 1951 supplement to a subsequent Letter Order between the government and Caltech contains an identical provision entitled "Sale of Government-owned Property." Id., Exh. 14, p. 814.[19] In addition, Caltech submits several documents attached to the declaration of Paul DiPong, an Assistant Property Disposal Officer with the Los Angeles Ordnance District from 1953-1964,. These documents outline governmental procedures for the control of surplus government property. Section VII of Armed Services Procurement Regulations ("ASPR") establishes procedures for control of government property upon termination of a contract with a contractor. DiPong Decl., Exh. C. Appendix C to the ASPR is a Manual for Control of Government Property in Possession of Nonprofit Research and Development Contractors. This manual explains that "[p]rocedures for the control of scrap and salvage materials shall not be required unless the Property Administrator determines that the scrap or salvage is substantial in amount and that the Government is not receiving sufficient benefits from the use or disposal thereof[.]" DiPong Decl., Exh. D. DiPong explains in his declaration that Section VIII and Appendix C of the ASPR required JPL to follow specific procedures in the event that it was in possession of government property that exceeded what JPL needed under one of its contracts. DiPong Decl., ถ 9. Under these circumstances, JPL was required to notify the Contracting Officer of the surplus material, request disposition instructions, and complete inventory sheets listing the surplus materials. Id. A specific form was also required for excess chemicals. Id., ถ 10. If the surplus materials could not be 902 utilized by the government, JPL was required to attempt to sell the materials with the approval of the Contracting Officer. Id., ถ 12. If such a sale was not possible, Section VIII provided that the Contracting Officer could direct JPL to destroy or abandon the surplus materials. Id., ถ 13. The Contracting Officer would then direct JPL to dispose of surplus material by burning, dumping or burying it, or by some other method. Id. Caltech sets forth three such requests from JPL, along with the Army responses thereto. A 1949 letter from JPL requests that the Army make arrangements for the disposal of chemical waste. Caltech App., Exh. 163, p. 4681. The Army agreed to do so. Id., p. 4682. A 1950 letter from JPL seeks the Army's permission to sell perchlorate dust to a specified vendor at a specified price. Id., Exh. 164, pp. 4683. The Army approved the sale. Id., p. 4684. A 1952 letter from JPL requests that the Army grant JPL authority to sell surplus nitric acid. Id., Exh. 165, p. 4685. The Army approved the sale. Id., p. 4686. In addition, a 1954 letter from the Los Angeles Ordnance District authorized a request made by JPL to abandon or destroy surplus chemicals since efforts to sell the materials had been unavailing. Caltech App., Exh. 166, p. 4688. Caltech also contends that these practices continued in the years following the transfer of JPL to NASA. A 1960 letter from JPL to NASA seeks assistance in arranging the disposal of hazardous waste. Id., Exh. 167, pp. 4689-90. Caltech further contends that the government controlled off-site disposal of hazardous waste. The Army Ordnance Safety Manual provides that "[d]isposition instructions [for dumping at sea] are to be requested through the Chief of Ordnance from the Chief of Transportation, who has sole responsibility in the Department of the Army for selection of sites and methods of operation." Caltech App., Exh. 38, p. 1649. In addition, on three occasions in 1949, 1950 and 1955, JPL sought the Army's assistance in off-site disposal of hazardous waste. Caltech App., Exh. 168, pp. 4964-65, Exh. 169, pp. 4697-98, Exh. 170, pp. 4700-01; DiPong Decl., ถถ 21-22. 4. FFRDC Status Caltech asserts that, unlike ordinary commercial contractors, JPL's status as a non-profit FFRDC supports a finding that the United States exercised day-to-day control over the waste disposal facilities at JPL.[20] FAR ง 35.017(a)(2) provides that FFRDC's "accomplish tasks that are integral to the mission and operation of the sponsoring agency." Caltech notes that FAR ง 35.017(a)(2) also establishes that an FFRDC must have a sponsoring agency that "manages, administers, monitors, funds and is responsible for the overall use of" the FFRDC. Id. However, Caltech fails to mention the remainder of FAR ง 35.017(a)(2), which provides that an FFRDC is operated by a sponsoring agency "as an autonomous organization or as an identifiable separate operating unit of a parent organization." Id. 5. Control Over Daily Administration Caltech argues that the United States exercised substantial control over the daily administration of JPL, including personnel decisions and technical issues. For example, Caltech asserts that, during the Army years, all prospective employees at JPL had to be approved by the government for security purposes. Caltech submits a series of correspondence between the Army and JPL discussing the Army's security clearance of particular JPL employees, as well as lists of JPL personnel indicating their level of security clearance. Caltech App., Exh. 221, pp. 5460-5484. Col. Scordas 903 also states in his declaration that "JPL was treated like any Army installation when it came to security." Scordas Decl., ถ 17. In addition, Caltech contends that the government paid the salaries of JPL personnel and distributed payment for vacation, sick leave, and non-salary employee benefits. Supplement No. 9 provides that "the Contractor shall be reimbursed" for a variety of costs, including "the cost to the Contractor of all direct labor and services required in the performance of this contract." Caltech App., Exh. 11, p. 549. That provision further describes "direct labor and services" as including "salaries and wages" and "Federal and State Social Security taxes." Id. Other contracts in effect between the Army and Caltech contained similar provisions. See Caltech App., Exh. 14, p. 777; Exh. 179, p. 4797. Furthermore, Caltech asserts that the Army โ Caltech contracts permitted the government to make unilateral personnel decisions. For example, Article 35 of Supplement No. 9 permitted the Army to dismiss any JPL employees who were incompetent or "whose retention [was] deemed to be not in the public interest." Caltech App., Exh. 180, p. 4844. Article 15(j) of Supplement No. 9 also permitted the Army to "suspend from access to work under [the] contract any officer or employee whose continued employment [was] deemed ... to endanger the security of the war effort." Id., p. 4825. 6. Restatement of Agency Factors Courts also consider other factors, such as those listed in Section 220 of the Restatement (Second) of Agency, in determining whether one is an employee as defined by ง 2671. See Logue, 412 U.S. 521, 527, 93 S. Ct. 2215, 37 L. Ed. 2d 121 (1973); Slagle v. United States, 612 F.2d 1157, 1160 (9th Cir.1980). Caltech claims that the following Restatement factors support a finding that it operated as an employee, rather than an independent contractor, with respect to waste disposal at JPL: (1) Instrumentalities, Tools and Place of Work: Caltech contends that the government provided it with the land, facilities and equipment necessary for carrying out its research and testing activities. Furthermore, Caltech claims that the government provided the waste disposal system. (2) Method of Payment: Caltech claims that it received no profit during the Army years. (3) Length of Employment: Caltech maintains that the government supervised and controlled JPL for decades. (4) Specialized Skills: According to Caltech, it possessed highly specialized skills necessary to perform its scientific work, but no such specialized skills were required to operate the waste disposal facilities at JPL. Moreover, Caltech contends, the Army Corps of Engineers specializes in facility design, construction and management. (5) Extent of Control under Contracts: Caltech contends that, pursuant to its contracts with the government as well as governmental regulations, the government exercised supervision and control over JPL. (6) Parties' Beliefs: Caltech submits the government's position in the County case as evidence that the parties believed Caltech to be an employee rather than an independent contractor. E. The United States' Contentions The United States asserts that Caltech operated as an independent contractor, not as an employee of the government as defined by ง 2671, because the government did not control or supervise the detailed day-to-day waste disposal practices at JPL. Rather, the government argues, Caltech's "massive" JPL workforce was responsible for waste disposal. 1. Insistence on Treatment as an Independent Contractor In opposing certification, the United States contends that the evidence assembled by the parties during discovery demonstrates that Caltech was an independent contractor, in that throughout the history of JPL, Caltech insisted on being treated 904 as such. For example, the government submits a letter dated December 18, 1953, to the Army's Chief of Ordnance, wherein Caltech's president, Dr. Lee DuBridge, opposed the Army's appointment of a commanding officer for JPL. U.S.App., pp. 771-74. In the letter, Dr. DuBridge characterized the nature of the relationship between the Army and JPL: Though the nature of the projects is subject to joint agreement between [Caltech] and the government agency concerned, the performance under the contract is the responsibility of [Caltech]. Subsequent to such joint agreements the government does not attempt to instruct [Caltech] as to its utilization of personnel and equipment in carrying out its work.... It is true that all lands, buildings and equipment comprising [JPL] are owned by the government, as is certain equipment located on the [Caltech] campus which was purchased with government funds. The land and buildings of [JPL] are made available to [Caltech] under a lease dated December 5, 1950 between [Caltech] and [the Army].... [Caltech] is bound, under this lease and the contract, to take reasonable care of government-owned property but it is felt that [Caltech's] judgment must be final in determining how such property shall best be used to forward the research activities for which [Caltech] is responsible. Id., p. 771. General E.L. Cummings of the Army Ordnance Department responded by letter dated December 25, 1953, wherein he attempted to ease Dr. DuBridge's "undue apprehension." U.S.App. pp. 779-80. He explained: It has never been the wish or intent of Ordnance to exercise control of how the contractor goes about fulfilling his contract; i.e., to place Ordnance military or civilian personnel in supervision of JPL's work. . . . . . Your letter indicates undue apprehension with regard to Ordnance policies (which have been long established and which I do not intend to change), and as to their consequences. Ordnance believes in contracting for as large a single responsibility as practicable, and in holding the contractor responsible for results, with a minimum of direction on how he achieves those results. Id., p. 779. The government also relies on comments made by Dr. DuBridge during a February 11, 1974 interview for a JPL-Caltech oral history program. U.S.App., pp. 753-766. When asked about a provision of the contract between JPL and NASA, Dr. DuBridge responded: It was clear that in our discussions with NASA we emphasized that we were still a private institution, that we were not a government agency nor a civil service laboratory, that it was of value for us and them to maintain independence[.] . . . . . The NASA administration had a little difficulty in reconciling the independent nature of JPL with the more restricted nature of the other NASA laboratories. Every now and then they would send out a directive to all NASA laboratories. JPL would get one and we would write back and say we assume that this doesn't apply to JPL since this involves a variation of our agreement about JPL's independence to pursue its own administrative and other policies. Usually that worked out, but it did involve some discomfort and difficulty in the NASA administration, to have one lab standing out as an independent contract operated lab while the others were more specifically under detailed NASA control. Id., pp. 758-59. 2. Regulations and Inspections In addition, the United States contends that its imposition of governmental regulations 905 and periodic inspections does not amount to the detailed day-to-day governmental supervision of the waste disposal operations. To the contrary, it argues, Caltech contractually obligated itself to comply with applicable safety and security regulations. For example, Supplement No. 9 to the initial Letter Order contract between the United States and Caltech, No. W-04-200-Ord-455, includes Article 15 governing Plant Protection. Article 15 explains: "The Contractor shall at all times comply with all applicable local, State and Federal laws[.]" U.S.App., p. 251. In addition, under Article 35, which outlines "General Requirements," Caltech agreed to: Procure all necessary permits and licenses; obey and abide by all applicable laws, regulations, and ordinances, and other rules of the United States of America, of the State, territory or subdivision thereof wherein the work is done, or of any other duly constituted authority. U.S.App., 252. Therefore, the United States' contends, its imposition of regulations and conducting of inspections merely constituted monitoring of Caltech's contractual compliance and reflected the government's control over its real property. The United States also argues that its ability to compel compliance with governmental regulations does not, as a matter of law, constitute detailed control over JPL's waste disposal operations. 3. Testimony Indicating that the United States Did Not Control Waste Disposal at JPL As further evidence that it did not control JPL's day-to-day waste disposal operations, the United States relies on statements made by Army Ordnance inspector Norris Bachtell during his deposition. When asked whether he ever directed anyone at JPL in the disposal of hazardous waste, Bachtell responded "[n]o." U.S.App. p. 988. In addition, Bachtell was asked: "[i]s it a fair statement that when your office inspected a government-owned contractor-operated facility, that if you saw something that you thought needed correction or change, you would make a recommendation to the contractor, but you would not issue instructions to the contractor?" He answered: "[t]hat's correct, we didn't." Id., p. 989. Bachtell was also questioned about the Ordnance Safety Manual. He was asked: "[i]f you found that a government-owned contractor-operated facility had not complied with the rules in the Ordnance Safety Manual, what was your procedure and policy?" Bachtell responded: Our policy was to discuss the violation with the people at the facility that were responsible for operating the facility, get back to the office that I worked for and write a written report stating the condition and that action should be taken to correct it. We did not tell them how to correct it. Id., p. 991. The United States also relies on the deposition of retired Col. Paul Scordas, Commanding Officer of the Army's Los Angeles Ordnance District. During his deposition, Scordas addressed the government's monitoring of JPL. When asked whether he agreed with the statement of Dr. William Pickering, JPL's former director, that the Army never directed Caltech's day-to-day operations of JPL, Scordas testified: The directions that we gave to JPL were only what was outlined in the contract, and we wanted to be sure as to safety, operational. And ... as long as they complied with the contract, we had no problems. U.S.App., p. 1060. Furthermore, the government submits the deposition of Paul DiPong, an Assistant Property Disposal Officer with the Los Angeles Ordnance District from 1953-1964. DiPong testified at his deposition that neither he, nor anyone at the Los Angeles Ordnance District supervised the activities of any JPL employees, and that 906 he was not authorized to give orders or instructions to any JPL employees. U.S.App., 951-52. In addition, DiPong testified that his job responsibilities did not include the handling or disposal of chemical waste. Id., p. 952. The United states also relies on the deposition testimony of Dalton Bergan, who worked as Manager of JPL's Facilities and Plant Engineering Division. Bergan testified that no member of the Army ever supervised his day-to-day activities or those of anyone he worked with. U.S.App., pp. 884-84. He also explained that, when hiring employees, he did not need government approval. Id., p. 885. 4. Evidence of Caltech's Control of Waste Disposal Facilities The United States contends that Caltech, rather than the government, actually controlled waste disposal operations at JPL. As support, the government submits certain letters to and from JPL, as well as internal JPL memoranda, which allegedly demonstrate that JPL employees routinely responded to inquiries from local and state agencies concerning waste use and disposal. For example, a letter dated May 27, 1946, from L.G. Fenner of Caltech to a plumbing inspector for the City of Pasadena provided a report on the nature and amount of chemicals present in waste water at JPL. U.S.App., p. 417. The letter further explained that: [I]n practice [the chemicals] are rejected to the stream bed and diluted with large quantities of wash-down water. It is the opinion of all concerned, for what it is worth, that in no case could the waste serve as a means of contamination of the water supply. U.S.App., 417. In addition, V.C. Larsen, JPL Administrator, sent a letter dated May 24, 1951, to the County Engineer's Industrial Waste Division. Id., pp. 259-61. The letter, in response to a request for a report on "waste disposal methods employed at [JPL]," provided details about existing and proposed waste disposal facilities, chemical waste disposal, and solid propellant waste disposal. Id. Larsen sent another letter dated October 4, 1951, to the City of Pasadena Water Department, requesting permission to dispose of certain chemical waste in the Arroyo Seco. Id., p. 429. Furthermore, a letter dated March 16, 1961, from the Pasadena Water Department's Chief Engineer to JPL, expressed appreciation for JPL's "willingness to cooperate in the elimination of waste products considered to be harmful to the quality of the ground waters" and offered several "suggestions" to serve "as a guide in establishing future waste disposal policies as far as the elimination of potential contamination or pollution of the underground water[.]" Id., pp. 446-47. An internal JPL Safety Office memorandum dated August 17, 1961, concerned storm drains and sewers. Id., p. 451. Addressed to senior staff, section chiefs and managers, group supervisors and safety coordinators, the memorandum directed that storm drains should receive only water free from pollutants and contaminants. It further explained that certain materials, such as oil, grease and unneutralized acids were not to be discharged into the sewer system. Id. The government also relies on statements made by Dr. William H. Pickering in a declaration filed with this Court in Suzanne Savary, et al. v. United States of America, No. CV 95-7752-E (C.D.Cal. Feb. 14, 1998). In that declaration, Dr. Pickering stated that Caltech employees were responsible for day-to-day waste disposal at JPL, and that the Army did not supervise or control the Caltech workers who were responsible for waste disposal. Dr. Pickering declared: The Army never directed Caltech's day-to-day operations at JPL. Caltech was responsible for directing the day-to-day operations at the JPL, and managing the scientific and engineering projects carried out at the JPL. Although the physical plant was owned by the Army at the time, Caltech 907 was responsible under the contract for maintenance and repair of the facilities so as to perform the work described in the contract. Caltech supplied the managerial and supervisory personnel necessary to control the day-to-day operations of the facility. Army employees did not conduct or supervise any of the day-to-day work under the contract.... To the best of my knowledge, during the period of 1941 to 1958, Caltech employees were responsible for day-to-day waste disposal at the JPL. To my knowledge, the Army did not have any employees at JPL who were responsible for waste disposal and did not supervise or control the Caltech workers who were responsible for waste disposal. U.S.App., pp. 4-5.[21] F. Plaintiffs' Contentions In opposing Caltech's petition for certification, plaintiffs essentially join the United States' position, as plaintiffs' contentions mirror those of the government. In addition, plaintiffs contest Caltech's argument that the Restatement factors support a finding that Caltech operated as a government employee. G. Analysis As outlined above, Caltech bears the burden of proving, by a preponderance of the evidence, that it is entitled to certification under ง 2679. In an effort to fulfill that burden, Caltech has submitted voluminous evidence to support its argument that it functioned as an employee of the United States with respect to waste disposal at JPL. The Court finds, however, that Caltech has not met its burden of demonstrating by a preponderance of the evidence that the United States exercised substantial supervision and control over JPL's day-to-day waste disposal operations. Rather, the evidence leads the Court to find that Caltech operated JPL's 908 waste disposal facilities as an independent contractor. Initially, it must be noted that Caltech's substantial reliance on governmental regulations and inspections is misplaced. The Ninth Circuit has explained that "detailed regulations and inspections are no longer evidence of an employee relationship.... [T]he ability to compel compliance with federal regulations does not change a contractor's personnel into federal employees." Letnes, 820 F.2d at 1519 (citations omitted). In Letnes, for example, the court found that "restrictive" governmental regulations and inspection procedures, which were designed to secure the safety of Forest Service airplanes, rather than control their detailed physical operation, did not convert pilots under contract with the Forest Service into government employees. Id. Similarly, the court in Ducey held that contractual provisions requiring a National Park Service concessioner to comply with detailed rules and regulations designed to secure federal objectives, despite their restrictive effect on the contracting party, did not convert an independent entrepreneur into an agent of the federal government. 713 F.2d at 516. These contractual provisions, moreover, left the concessioner free, in large part, to select the day-to-day means of implementing the contractual requirements. Id. As in Letnes and Ducey, the governmental regulations and inspections relied upon by Caltech do not convert Caltech into an employee of the government. The Army Ordnance Safety Manual is designed to secure the safety of those guided by its provisions. The regulations and inspections at issue here do not contain specific provisions controlling Caltech's day-to-day waste disposal activities. In addition, Army inspections of JPL, however frequent and detailed, ensured Caltech's compliance with its contractual obligations and safety procedures. The Army's planning, selection, design and construction of JPL's waste disposal system also does not constitute day-to-day control over Caltech's waste disposal activities. Nothing in the relevant case authority suggests that the Army's design of JPL's waste disposal system equates to the detailed level of control over day-to-day waste disposal activities necessary for a finding that Caltech was a government employee for purposes of waste disposal. Although Caltech argues that those provisions of the Comprehensive Environmental Responses, Compensation Liability Act ("CERCLA"), 42 U.S.C. ง 9607, establishing government liability for environmental contamination caused by contractors, provide an analogy for the present case, the Court does not find this argument persuasive. CERCLA imposes strict liability upon operators, as defined by the statute, for violations thereof, and involves environmental policy considerations entirely distinct from those presented by the present case. 42 U.S.C. ง 9607 (imposing strict liability for operators of facilities that dispose of hazardous waste); In re Jensen, 995 F.2d 925, 927 (9th Cir.1993) (CERCLA seeks to protect public health and the environment). Furthermore, JPL's status as an FFRDC does not convert Caltech into a government employee. Caltech relies on two cases from the Northern District of California, Ferguson v. United States, 712 F. Supp. 775 (N.D.Cal.1989), and Scallorn v. United States, 1996 WL 478973 (N.D.Cal.1996), to support this argument. However, Ferguson and Scallorn are distinguishable. Both Ferguson and Scallorn involved claims that Sandia National Laboratories ("Sandia"), an FFRDC, was acting as a government employee within the meaning of the FTCA in connection with Sandia's maintenance and security operations. Ferguson, 712 F. Supp. 775; Scallorn, 1996 WL 478973. The relevant contracts at issue in those cases specifically provided that Sandia would act as the Department of Energy's ("DOE") agent for certain purposes, including property maintenance and security, and that all work performed 909 by Sandia would be under the direct control of the DOE. Ferguson, 712 F.Supp. at 782; Scallorn, 1996 WL 478973 at 5-6. Both courts gave these contractual provisions great weight and, based on additional evidence concerning the actual relationships between the parties, found Sandia to be an employee of the government for purposes of conducting maintenance and security operations. Id.[22] Unlike Ferguson and Scallorn, the contracts at issue in the present case consistently provide that Caltech is a contractor. Nowhere do the contracts provide that Caltech is a government agent. Moreover, as explained above, regardless of the language of the Caltech-government contracts, the evidence submitted by Caltech does not demonstrate that the government actually supervised and controlled the day-to-day waste disposal operations at JPL. The Restatement factors argued by Caltech in support of certification similarly do not change this result. Caltech's argument merely recharacterizes its previous factual assertions under the framework of the Restatement. Without more, reliance on the Restatement factors is insufficient to show that Caltech was an employee of the government. Accordingly, the Court determines that Caltech has failed to demonstrate by a preponderance of the evidence that the United States supervised and controlled the day-to-day waste disposal operations at JPL. The Court thus finds and concludes that Caltech is an independent contractor, rather than an employee of the government, and therefore Caltech's petition for certification must be denied. VI. MOTION FOR SUMMARY JUDGMENT A. Standard for Summary Judgment Summary judgment is appropriate where "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each cause of action upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the moving party bears the burden of proof at trial, "the moving party must make a showing sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Gipson v. Kajima Eng'g & Constr., Inc., 972 F. Supp. 537 (C.D.Cal.1997). If the moving party has sustained its burden, the nonmoving party must then identify specific facts, drawn from materials on file, that demonstrate that there is a dispute as to material facts on the elements that the moving party has contested. See Fed.R.Civ.P. 56(c). The nonmoving party must not simply rely on the pleadings and must do more than make "conclusory allegations [in] an affidavit." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). See also Celotex Corp., 477 U.S. at 324, 106 S. Ct. 2548. Summary judgment must be granted for the moving party if the nonmoving party "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." Id. at 322, 106 S. Ct. 2548. See also Abromson v. American Pac. Corp., 114 F.3d 898, 902 (9th Cir.1997). In light of the facts presented by the nonmoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment 910 as a matter of law. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 & n. 3 (9th Cir.1987). When deciding a motion for summary judgment, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citation omitted); Valley Nat'l Bank of Ariz. v. A.E. Rouse & Co., 121 F.3d 1332, 1335 (9th Cir.1997). Summary judgment for the moving party in proper when a rational trier of fact would not be able to find for the nonmoving party on the claims at issue. See Matsushita, 475 U.S. at 587, 106 S. Ct. 1348. B. Independent Contractor Exception Under the "independent contractor" exception to the FTCA's waiver of governmental immunity, the government is not liable for the negligence of its contractors. See United States v. Orleans, 425 U.S. 807, 813, 96 S. Ct. 1971, 48 L. Ed. 2d 390 (1976). As stated above, unless the claims and relationship of the parties falls within that covered by the FTCA, this Court lacks subject matter jurisdiction to hear claims under that Act. Borquez v. United States, 773 F.2d 1050 (9th Cir. 1985). The FTCA subjects the United States to tort liability for the tortious conduct of an independent contractor "only if it can be shown that the government had authority to control the detailed physical performance of the contractor and exercised substantial supervision over its day-to-day activities." Laurence v. Department of Navy, 59 F.3d 112, 113 (9th Cir. 1995). The United States contends that it may not be held liable for Caltech's allegedly negligent conduct because Caltech operated JPL's waste disposal facilities as an independent contractor. As explained above, the Court finds that the United States did not exercise day-to-day control over waste disposal operations at JPL. Accordingly, the United States may not be sued for the negligence of its independent contractor, and this Court lacks jurisdiction to hear plaintiffs' tort claims and Caltech's claims for indemnification against the United States. The United States is thus entitled to summary judgment of those claims. Plaintiffs do not claim that the United States is vicariously liable for Caltech's misconduct alleged in the Third Amended Complaint. Plaintiffs, nonetheless, would be estopped from asserting any such claims, in that plaintiffs contend that Caltech is an independent contractor of the government. Having determined that the United States is not vicariously liable for the conduct of its independent contractor, the Court next addresses whether the discretionary function exception to the FTCA immunizes the government from liability for its own alleged misconduct. C. Discretionary Function Exception The United States contends that it is also insulated from plaintiffs' and Caltech's claims by virtue of the discretionary function exception to the FTCA. Plaintiffs contend that the discretionary function exception does not apply here.[23] As explained above, the FTCA provides a limited waiver of sovereign immunity for suits against the United States. Section 2680(a) of the Act, known as the "discretionary function exception" circumscribes potential liability against the United States in order to protect it from "liability that would seriously handicap efficient government operations." See 28 U.S.C. ง 2680(a); United States v. S.A. Empresa 911 de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984) (citation omitted). Section 2680(a) provides, in relevant part, that suits against the government are barred when they are "based upon the exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. ง 2680(a). The discretionary function exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." Varig, 467 U.S. at 808, 104 S. Ct. 2755. In addition, negligence is irrelevant to a discretionary function inquiry. Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1029 (9th Cir.1989). A two step test exists to determine the applicability of the discretionary function exception. First, a court must examine the challenged conduct to determine whether it is discretionary โ namely, "whether it involves an element of judgment or choice." Berkovitz v. United States, 486 U.S. 531, 536, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988). "Thus, the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Id. (citations omitted). Such a statute, regulation or policy must be both specific and mandatory. United States v. Gaubert, 499 U.S. 315, 322, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991); Starrett v. United States, 847 F.2d 539, 541-42 (9th Cir.1988). "In this event, the employee has no rightful option but to adhere to the directive. And if the employee's conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect." Berkovitz, 486 U.S. at 536, 108 S. Ct. 1954. Once the court has concluded that the challenged conduct is discretionary in nature, it must next determine "whether that judgment is of the kind that the discretionary function exception was designed to shield." Id. The exception "protects only governmental actions and decisions based on considerations of public policy." Id. at 537, 108 S. Ct. 1954 (citing Dalehite v. United States, 346 U.S. 15, 36, 73 S. Ct. 956, 97 L. Ed. 1427 (1953) ("Where there is room for policy judgment and decision there is discretion")). However, "the decision need not be actually grounded in policy considerations, but must be, by its nature, susceptible to a policy analysis. Where the government agent is exercising discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Miller v. United States, 163 F.3d 591, 593-94 (9th Cir.1998) (citations and quotation omitted). While plaintiffs bear the burden of "persuading the court that it has subject matter jurisdiction under the FTCA's general waiver of immunity," the government bears the ultimate burden of establishing the applicability of the discretionary function exception. Prescott v. United States, 973 F.2d 696, 701-02 (9th Cir.1992). An analysis of the government conduct challenged by plaintiffs in this action establishes the applicability of the discretionary function exception. Plaintiffs essentially challenge: (1) the disposal of toxic waste; (2) the design of the waste disposal system; (3) the delegation of waste disposal duties to Caltech; (4) negligent supervision; and (5) failure to warn. 1. Disposal of Toxic Waste Plaintiffs make sweeping arguments that three federal statutes, enacted years after the FTCA, (the Clean Water Act, 33 U.S.C. ง 1251 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. ง 1641 et seq., and CERCLA, 42 U.S.C. ง 9601 et seq.), as well as various Executive Orders, required the government to comply with specific mandatory federal, 912 state and local pollution regulations, thereby removing any governmental discretion. However, the government delegated responsibility for waste disposal at JPL, including compliance with federal, state and local laws, to its contractor, Caltech. On June 22, 1944, the government and Caltech entered into an agreement in connection with the development of Long Range Rocket Missile and Launching Equipment, Contract No. W-04-200-Ord-455. Government App., 248. Supplement No. 9 to this contract, which appears to contain the full terms of the agreement, includes Article 15 governing Plant Protection. Article 15 explains: "The Contractor shall at all times comply with all applicable local State and Federal laws[.]" Id. at 251. In addition, under Article 35, which outlines "General Requirements," Caltech agreed to: Procure all necessary permits and licenses; obey and abide by all applicable laws, regulations and ordinances and other rules of the United States of America, of the State, territory or subdivision thereof wherein the work is done, or of any other duly constituted authority. Id., p. 252. Thus, if the operations at JPL violated any of the statutes, regulations and Executive Orders set forth by plaintiffs, Caltech, rather than the government, was responsible for such conduct. Moreover, none of these statutes, regulations or orders prevented the government from delegating compliance therewith to its contractor, Caltech. Any government liability concerning the dumping of toxic waste would thus be either vicarious liability for Caltech's actions, or tort liability for negligent supervision.[24] The FTCA, however, does not waive sovereign immunity for claims based on strict liability. See Laird v. Nelms, 406 U.S. 797, 802, 92 S. Ct. 1899, 32 L. Ed. 2d 499 (1972). Moreover, the supervision of a contractor, even if negligent, is a discretionary function. See section B.4, infra. 2. Design of Waste Disposal System The Ninth Circuit has repeatedly found claims based upon design choice to be barred by the discretionary function exception. See Kennewick Irrigation Dist. v. United States, 880 F.2d 1018 (9th Cir. 1989) (government's negligent design of irrigation canal); ARA Leisure Servs. v. United States, 831 F.2d 193, 195 (9th Cir. 1987) (government's design and construction of road without guardrails); see also Suzanne Savary, et al. v. United States of America, No. CV 95-7752-(E) 20 (C.D.Cal. Feb. 14, 1998) (Memorandum Opinion and Order Granting Summary Judgment),[25]aff'd, 205 F.3d 1352 (9th Cir. 1999) (unpublished table disposition), (discretionary function exception shielded the government from liability for plaintiffs' wrongful death claim arising from contaminated soil and water at JPL, specifically finding that design of JPL's waste disposal system was a discretionary function). Plaintiffs contend that the discretionary function exception is not applicable to the government's design of JPL's waste 913 disposal system. Plaintiffs allege that the government allowed cesspools to be built with unmortared brick in violation of specific and mandatory Army specifications. See Plaintiffs' Exh. 58, p. 1471. However, the specification cited by plaintiffs does not appear to require that all cesspools be constructed entirely of mortared brick. It provides for mortared horizontal joints but also for what appear to be unmortared "open joints." Id. This specification thus is not specific and mandatory. Plaintiffs also argue that the government violated the mandatory "General Safety Requirements" Army manual with respect to the handling, storage and disposal of harmful substances. Plaintiff's Exh. 50, p. 1292. Yet these "general" safety requirements also were not mandatory. "[W]here literal application of the requirement to a specific job ha[d] impractical aspects" the Army was "authorized to approve an adaptation which meets the obvious intent of the requirement." Id. Such a decision necessarily involves judgment and choice. See Kennewick, 880 F.2d at 1027 (manual's directives on designing canals not specific and mandatory, thus design decisions were discretionary); United States v. Ure, 225 F.2d 709 (9th Cir.1955) (design of canal project involved discretionary decisions within the discretionary function exception). 3. Delegation of Duties In addition, the Court has found that Caltech, rather than the government, managed waste disposal operations at JPL. Plaintiffs ask the Court to take judicial notice of an Army "Manual for Control of Government Property in Possession of Non-Profit Research and Development Contractors," attached as an exhibit to the Declaration of Paul DiPong in support of Caltech's Petition for Certification. Plaintiffs claim that, according to this manual, the Government Contract Administrator was required to ensure that JPL complied with state, federal and local laws. However, no applicable statute, regulation or policy prevented the government from delegating waste disposal duties to Caltech. "The law is clear that the government may delegate its safety responsibilities to independent contractors in the absence of federal laws or policies restricting it from doing so." Andrews v. United States, 121 F.3d 1430, 1440 (11th Cir.1997); see also Varig, 467 U.S. at 820, 104 S. Ct. 2755; Savary, No. CV 95-7752-E at 20. Such a decision to delegate is both discretionary and susceptible of policy analysis. Savary, No. CV 95-7752-E at 20. 4. Failure to Supervise Plaintiffs further argue that the government failed to enforce JPL's compliance with safety regulations. Plaintiffs cite several cases in support of this argument. These cases are distinguishable, however, in that each involved the government's failure to comply with specific directives or requirements. For instance, the court in McMichael v. United States, 751 F.2d 303, 306-07 (8th Cir.1985), found that government inspectors were not performing a discretionary function when they performed highly detailed fifty-one point inspections of a government contractor's compliance with safety procedures. Similarly, the court in Aslakson v. United States, 790 F.2d 688 (8th Cir.1986), found that the government agency's own safety policy expressly required it to adjust electrical power lines if they constituted a safety hazard, thereby removing the agency's discretion in acting or failing to act. No such precise directive required the government to supervise JPL's compliance with safety regulations. The Army "Manual for Control of Government Property in Possession of Non-Profit Research and Development Contractors," provided only general guidelines explaining that the Government Contract Administrator "shall require contractor[s] to exercise reasonable care and proper usage of all government property" and "shall require the contractor to correct all deficiencies in complying 914 with" its contract and the manual. DiPong Decl., Exh. E. Furthermore, plaintiffs' claim that the government failed to ensure JPL's compliance with safety regulations is essentially a claim for negligent supervision. However, the government delegated to Caltech the responsibility for waste disposal. Any alleged government failure to supervise properly Caltech's waste disposal activities was held to be a discretionary function in Savary. Savary, No. CV 95-7752-E at 21-22. Moreover, many courts have found that the government's negligent supervision or even total failure to supervise are discretionary decisions protected by the discretionary function exception. See, e.g., Varig, 467 U.S. at 819-20, 104 S. Ct. 2755 ("When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind."); In re Consolidated United States Atmospheric Testing Litig., 820 F.2d 982, 995-96 (9th Cir.1987) (negligent failure to supervise contractor's compliance with safety procedures falls within discretionary function exception); Kirchmann v. United States, 8 F.3d 1273, 1276-77 (8th Cir.1993) (government's alleged failure adequately to supervise contractor's disposal of hazardous waste was policy consideration protected by the discretionary function exception); Layton v. United States, 984 F.2d 1496, 1502-03 (Forest Service's alleged failure adequately to supervise contractor was policy judgment protected by discretionary function exception); Harper v. Lockheed Martin Energy Systems, Inc., 73 F. Supp. 2d 917, 921 (E.D.Tenn.1999) (exception applied to government's allegedly negligent supervision of contractor's safety procedures). 5. Failure to Warn Plaintiffs also contend that the government failed to warn JPL's neighbors that drinking water from the Arroyo was unsafe for human consumption. However, plaintiffs point to no directive requiring such a warning. Plaintiffs instead argue that the failure to warn is not the type of policy decision that the discretionary function exception was designed to shield.[26] Relevant case law, however, contradicts plaintiffs' argument. The court in Savary found that the government was immune from liability for its alleged failure to warn the public of the contaminated groundwater and soil around JPL. Savary, No. CV 95-7752-E at 24. The court based its decision, in part, on In re Consolidated Litig., supra, 820 F.2d 982, 997, where the Ninth Circuit noted that such a warning program requires "difficult judgments balancing the magnitude of the risk from radiation exposure โ of which there was only fragmentary knowledge โ against the risks and burdens of a public program." The court in Savary found that similar concerns applied to the government's decisions regarding "whether to warn, when to warn, of what possible dangers to warn, whom to warn, in what manner to warn, and what to advise in any such warning[.]" Savary, No. CV 95-7752-E at 24. The same policy concerns are involved in the present case, thereby rendering the government immune from suit for its alleged failure to warn. Id.; see also Faber v. United States, 56 F.3d 1122, (9th Cir.1995) (explaining that in safety related cases where the government allegedly failed to warn, the use of the discretionary function is limited to situations where the government was required to engage in broad policy-making judgments related to safety); Begay v. United States, 768 F.2d 1059, 1064-66 (9th Cir.1985) (discretionary function exception applied to decision not to warn uranium miners of radiation hazards associated with their work); Maas v. United States, 94 F.3d 291, 297 (7th Cir. 915 1996) (whether to warn military servicemen of exposure to radiation was discretionary decision); Hagy v. United States, 976 F. Supp. 1373, 1379 (W.D.Wash.1997) (decision not to warn of drug's dangers involves balancing of the importance of the activity against the risks posed by failing to warn). Plaintiffs cite seven cases which, they argue, demonstrate that a failure to warn is not a policy decision. However, those cases are factually distinguishable. For instance, in Summers v. United States, 905 F.2d 1212 (9th Cir.1990), the court found that the National Park Service ("NPS") was not aware of the danger which caused plaintiff's injury. The court found that, because the NPS did not know of the hazard, it could not have engaged in "a judgment based on competing policy considerations." Id. at 1217. The court thus found the discretionary function exception inapplicable. Id. In contrast, in the present case, plaintiffs have submitted what they contend is "substantial evidence" to show that the government knew that the drinking water at the Arroyo was unsafe for human consumption. In addition, the court in Sutton v. United States, 26 F.3d 903 (9th Cir.1994), held that the discretionary function exception did not apply to the Navy's failure to post adequate speed limits in an area where it had placed partially submerged obstructions to navigation. The court found that "a decision not to warn of a specific, known hazard for which the acting agency is responsible is not the kind of broader social, economic or political policy decision that the discretionary function exception is intended to protect." Id. at 910. Here, however, the government does not bear responsibility for warning of the potentially dangerous properties of drinking water. Moreover, the decision whether to warn the general public of contaminated water involves a balancing of public safety concerns not present in the simple decision of whether to post adequate speed limit signs. For the reasons stated herein, the Court finds that the discretionary function exception to the government's waiver of immunity shields the government from liability for plaintiffs' tort claims based on the government's own alleged conduct. This Court, therefore, lacks subject matter jurisdiction to entertain plaintiffs' tort claims against the United States arising from the conduct, and the United States is entitled to summary judgment as to those claims. D. REMAINING CLAIMS Caltech also brings claims against the United States for "implied contractual indemnity," and for declaratory relief with respect to the underlying plaintiffs' claims. 1. Implied Contractual Indemnity Caltech's claim for implied contractual indemnity alleges that, pursuant to the contracts in effect between 1940 and the present, the government controlled waste disposal operations at JPL. Third Party Complaint ("TPC"), ถถ 30-31. It further alleges that, if the allegations of plaintiffs' complaint are true, then the United States negligently breached its obligations to Caltech under those contracts. Id., ถถ 32-33. Based upon this negligent breach, Caltech seeks indemnification from the United States for any liability Caltech may incur as a result of plaintiffs' claims. Id., ถถ 34-36. The United States contends that the Court lacks subject matter jurisdiction over Caltech's claim for implied contractual indemnity. The government argues that Caltech asserts a contract claim which is governed by the Tucker Act. The Tucker Act waives the government's sovereign immunity for "any claim against the United States founded ... upon any express or implied contract with the United States[.]" 28 U.S.C. ง 1491(a)(1). In addition, the Tucker Act invests the Court of Federal Claims with exclusive jurisdiction to hear contract claims against the United States. 28 U.S.C. ง 1491. District courts are divested *916 of jurisdiction for contract claims against the United States exceeding $10,000. 28 U.S.C. ง 1346(a); North Star Alaska v. United States, 14 F.3d 36, 37 (9th Cir.1994). Caltech requests that the Court defer ruling on this claim as irrelevant to a determination of Caltech's petition for certification. Alternatively, Caltech briefly argues that its claim for implied contractual indemnity seeks indemnification for the government's negligent performance of its contractual obligations and thus sounds in tort, not contract, and is properly brought under the FTCA. At the present stage in this litigation, however, there has been no finding that Caltech is liable to plaintiffs. Caltech's claim for contractual indemnity is therefore premature and not ripe for adjudication. See Clinton v. Acequia, 94 F.3d 568, 572 (9th Cir.1996) ("a case is not ripe where the existence of the dispute itself hangs on future contingencies that may or may not occur"). Accordingly, the Court dismisses that claim without prejudice. 2. Declaratory Relief Caltech's claim for declaratory relief seeks: a judicial determination of the respective rights and duties of Caltech and the United States with respect to the damages claimed in the Complaint of Plaintiffs herein. In particular, Caltech desires a declaration of the comparative liability of Caltech and the United States for these damages, and a declaration of the United States' responsibility for indemnity or contribution to Caltech for any sums that Caltech may be compelled to pay and for which the United States is determined responsible, entirely or in part. TPC, ถ 39. The United States contends that the FTCA does not waive sovereign immunity for claims seeking declaratory relief, and that Caltech is not entitled to indemnification from the government. Caltech again requests that the Court defer ruling on this claim as irrelevant to Caltech's petition for certification. Caltech also argues that it may bring a claim under the FTCA for declaratory relief incidental to a tort claim for which the government has waived sovereign immunity. As explained above, Caltech has not been found liable to plaintiffs on any of their claims. In general, "declaratory judgment actions are justiciable if there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Eureka Federal Sav. and Loan Association v. American Cas. Co., 873 F.2d 229, 231 (9th Cir.1989) (quotation omitted). The Court finds that no justiciable case or controversy presently exists with respect to Caltech's claim for declaratory relief. Accordingly, the Court dismisses that claim without prejudice. VII. CONCLUSION For all the reasons stated herein, Caltech's petition for certification is denied, and the United States' motion for summary judgment of plaintiffs' and Caltech's claims is granted. As a result, only plaintiffs' state law claims against Caltech remain in this action. There being no other basis for federal jurisdiction, the Court declines to exercise its discretion to exercise supplemental jurisdiction over those claims. Plaintiffs' claims against Caltech are therefore remanded to Los Angeles County Superior Court. NOTES [1] Plaintiffs are Tamara Vallier; Ramona Higley; Anita Salvo as representative of the Estate of Francesca Salvo; Dennis Adams; Jill Bauman; Cathy Ellis; Kristen Espenscheid; Jonathan Espenscheid; Peter Joseph Haring; James Hill, Jacqueline Ellis, and Cathy Ellis as representatives of the Estate of Mary Hill; Pam McVay; Laura Ofer, Michael Ofer, Pamela Ofer Knox, and Kelly Ofer as representatives of the Estate of William Ofer; Erik Wood; Rick Meyers; Francis Brooks; Francis Brooks as representative of the Estate of Oscar Brooks; Janet Tenney, Jack Carson Tenney, and Max Patrick Tenney as representatives of the Estate of Patrick Tenney; Merle Warren as representative of the Estate of Gerard Peters; John Wilcox; James Jones; Katherine Anderson as representative of the Estate of Daniel Anderson; Michael Harris; Fred Engler; Stephen Saylor; Scott Farrell; Malcolm Clement, and Stanley Clement as representatives of Estate of Frances Clement; Olga Chestang as representative of the Estate of Charles Chestang; Mary Mix as representative of the Estate of John Mix; Betty Barr as representative of the Estate of Earl Barr; Garland Morris, Michael Morris, and Tama Germain as representative of the Pearl Morris; Dorothy Kimbell, Terrence Morgan Kimbell, Blair Marie Kimbell, and Jennifer Kimbell as representative of the Estate of Vincent Kimbell; Matt Lasky; Denise Bickerstaff; Roxanna Bickerstaff; Ruth Bickerstaff; Dinoe Burns, Jonnelle Summervilles, and Eric Burns as representatives of the Estate of Beverly Burns; Robert Cunningham; Shirley Fisher; Shirley Ganther; Judith Shoji; Cheree Brack, and Philip Georgiades II as representatives of the Estate of Philip Georgiades I; Edna Hudson; Terry King; Tim Ray; Emma Smith; Carlton Spencer; Elonte Dominick Vaughn; Carolyn Verheyen; William Schaff; Beverly L. Lewis, and Donald E. Lewis as representatives of the Estate of Carol Lewis; Beatrice Stubblefield, and Elmo Stubblefield as representatives of the Estate of Dana Stubblefield; Sylvia Smiley as representative of the Estate of Leroy Smiley; and, John Scroggins; George Moore; and Barbara Silcott and Glenn Silcott as representatives of the Estate of Amy Silcott. A related case, Cunningham v. United States, No. CV 98-5365-CAS, involves different plaintiffs but similar claims for relief. [2] JPL is owned by the United States under the sponsorship of the National Aeronautics and Space Administration ("NASA"). [3] The United States has submitted an extensive appendix in support of its motion to dismiss or, alternatively, for summary judgment, and in opposition to Caltech's petition for certification. In this Order the Court refers to the United States' appendix as "U.S.App.", with pages numbers indicated where appropriate. [4] Caltech also has submitted a comprehensive appendix in support of its petition for certification and in opposition to the United States motion for to dismiss or, alternatively, for summary judgment. The Court refers to Caltech's appendix as "Caltech App.", with page number indicated where appropriate. [5] In the early years, JPL was known as the Guggenheim Aeronautical Laboratory ("GAL"). For purposes of this order, the term "JPL" includes GAL. [6] The period from 1939 through 1961, during which Caltech contracted with the Army to operate JPL, is referred to herein as the "Army years," and includes the period from 1959 to 1961, when NASA owned JPL and administered the Army-Caltech contracts. [7] Caltech presented a claim for certification to the Attorney General in a letter dated July 23, 1998. This claim was denied in a letter dated October 28, 1998, signed by the Director of the Torts Branch, Civil Division, of the United States Department of Justice, acting pursuant to authority delegated by the Attorney General. See 28 C.F.R. Part 15. [8] Pervez appears to be the only case in which the government itself sought certification of a corporate defendant pursuant to ง 2679. The government, however, asserts that it erroneously certified the corporate defendant in Pervez. See Transcript of August 13, 1999 Hearing, pp. 46, 49. [9] Caltech nonetheless contends that the government did, in fact, extensively supervise and control all aspects of waste disposal at JPL. See, e.g., Caltech's Reply Brief in Support of Petition for Certification, p. 26. [10] Caltech also submits substantial evidence concerning the general operations at JPL which Caltech asserts demonstrates the government's day-to-day supervision and control of JPL. However, because the present discussion is directed to the question of whether the government exercised day-to-day supervision and control over JPL's waste disposal operations, the Court considers this more general evidence only to the extent it is probative of the more specific question, concerning waste disposal operations, presently before the Court. [11] The United States claims that government participation in the Master Planning Board cannot be equated to detailed control over the JPL workforce's daily activities. [12] California Institute of Technology v. County of Los Angeles, No. 614847, filed in the Los Angeles County Superior Court in June 1953, by Caltech against the County of Los Angeles seeking to recover property tax payments. The United States intervened as a plaintiff in the suit, asserting that it had an interest in the outcome of the case, based on its relationship with Caltech. The Court has previously held that the government is not judicially estopped from denying that Caltech is an employee because the issues litigated in that case differ significantly from those presented by the instant case. [13] The United States claims that, contrary to Caltech's assertions, a review of the transcript in the County case reveals that the government maintained the right to direct and inspect work at JPL in a general sense and that Caltech was an independent contractor for purposes of waste disposal. [14] The United States disputes Caltech's assertion that the government designed and constructed all the waste disposal facilities at JPL. Rather, the government contends that Caltech was deeply involved with the design and construction of the facilities at JPL prior to 1946. [15] Caltech also relies on other provisions of the Army Ordnance Safety Manual pertaining to the handling, storage and processing of hazardous waste. Caltech App., Exh. 38. For example, Section 13 covering "Specific Chemicals" contains sections on "Building Construction for Acids," "Acid Storage," and "Handling Acids and Shipment of Dangerous Chemicals." Id., pp. 1479-80. Section 15 on "Long Range Rockets and Guided Missiles" similarly contains sections pertaining to the "Unloading and Handling" of chemical products used for propelling rockets and guided missiles, and requiring the "Main Storage Areas" and "Test Areas" to conform with location requirements. Id., pp. 1507-09. [16] Nothing in the manual prevents the Army from delegating responsibility for compliance with the Safety Manual or other regulations. The United States contends that Caltech, rather than the Chief of Ordnance, was responsible for complying with applicable safety regulations, including those set forth in the Safety Manual. [17] The map appears to address the construction of roads at JPL and was prepared under the direction of Col. Rufus W. Putnam, a Los Angeles Ordnance District Engineer. However, nothing in the map indicates that its provision regarding waste disposal applies to waste disposal other than that associated with the road construction project. Caltech App., Exh. 234. [18] The United States argues that the evidence relied upon by Caltech to demonstrate the government's control over waste disposal procedures relates to government regulation of surplus property, including chemicals, and does not equate to involvement in the day-to-day use and disposal of chemicals. [19] These contractual provisions appear to address Caltech's sale or transfer of government-owned property rather than the disposal of waste and, in any event, do not expressly prohibit the disposal of waste absent government approval. [20] The United States agrees that JPL became an FFRDC, but notes that JPL was not designated as an FFRDC until after the Army contracts had ended. Furthermore, the government contends that Caltech actually benefitted greatly from its long-term contractual relationship with the government. [21] In this case, however, Dr. Pickering has submitted a supplemental declaration in which he claims that statements made in his prior declaration regarding control over JPL's waste disposal operations were not based on his personal knowledge but, rather, were his assumptions. He now states as follows: Throughout my tenure at JPL, I primarily was involved with the technical and scientific aspects of JPL's operations.... I was not directly involved with the design, construction, or management of JPL's facilities or waste disposal system or practices. Therefore, I do not know the government's role in the design, construction, or management of JPL's facilities or its waste disposal system. Nor do I have specific knowledge about JPL's waste disposal practices or the extent to which the government participated in JPL's waste disposal activities. Issues concerning facilities and waste disposal were delegated to and handled by others[.] In or around March 1996, I reviewed and signed a declaration in the lawsuit of Savary v. United States. In that declaration, I provided a general description of the relationship between JPL and the government during my tenure at JPL.... I also described my general understanding of the working relationship between JPL and the government (first the Army and later NASA) throughout that period. I did not, however, provide specific information about JPL's facilities or its waste disposal practices because I do not have personal knowledge about those areas. In paragraph 13, I stated that, "[t]he Army never directed Caltech's day-to-day operations at the JPL," but crossed out the words "including waste disposal operations" because I do not have knowledge about this subject. In paragraph 19 I stated that "[t]o the best of my knowledge, Caltech employees were responsible for day-to-day waste disposal at the JPL" and that "to my knowledge, the Army did not have any employees who were responsible for waste disposal and did not supervise or control the Caltech workers who were responsible for waste disposal." Those statements accurately reflected my assumptions about JPL's waste disposal activities; they are not, however, based upon any personal knowledge or specific information in my possession. Caltech App., Exh. 301, pp. 6573-76 (emphasis in original). The Court notes that Dr. Pickering was the Director of JPL from 1954 to 1976, and was affiliated with JPL for many years prior thereto. Nonetheless, in light of his new declaration, the Court has determined not to consider his prior declaration in reaching its decision on the present motions. [22] In addition, the court in Scallorn applied the right to control, rather than actual control, standard for determining whether Sandia operated as an employee or an independent contractor. This Court, however, applies the actual control standard in light of explicit Ninth Circuit authority so providing. See Section V.C., supra. [23] Caltech does not address the merits of the government's discretionary function argument. Instead, Caltech contends that the Court should not decide the discretionary function issue until it decides the independent contractor and employee certification issues. Having decided those issues, the Court proceeds to determine the applicability of the discretionary function exception. [24] Plaintiffs also contend that Congress waived governmental immunity for violations of the Clean Water Act. Regardless of the accuracy of this assertion, however, the United States delegated responsibility for waste disposal to Caltech. Thus, any potential waiver of immunity for violations of the Clean Water Act is not relevant to the present analysis. [25] Plaintiffs filed their opposition to the government's motion for summary judgment prior to the Ninth Circuit's ruling affirming the lower court's grant of summary judgment in Savary. In their opposition to the government's motion for summary judgment, plaintiffs contend that Ninth Circuit Rule 36-3 prohibits this Court from considering the Magistrate Judge's memorandum opinion in Savary. However, nothing in Rule 36-3 prevents this Court from considering the Magistrate Judge's unpublished opinion in Savary. In addition, plaintiffs argue that the Court may not properly consider the Magistrate Judge's opinion in Savary, because the plaintiffs in that case did not identify violations of any federal statute, regulation, ordinance or manual. The Court, however, recognizes that the present case must be determined on its own record, and has done so in this case. [26] This appears to be the only one of plaintiffs' claims as to which plaintiffs argue the second factor of the discretionary function test is not satisfied. Plaintiffs contest the applicability of the discretionary function exception to their other claims based on the first factor of the test.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499533/	276 P.3d 1088 (2012) 2012 OK CIV APP 41 In the Matter of L.M., an alleged Deprived Child. Rebecca Mireles and James Moody, Appellants, v. The State of Oklahoma, Appellee. No. 109,290. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. Court of Civil Appeals of Oklahoma, Division No. 3. March 30, 2012. 1093 D. Michael Haggerty, II, Haggerty Law Office, PLLC, Durant, Oklahoma, for Appellant, Rebecca Mireles. Whitney Paige Kerr, Durant, Oklahoma, for Appellant, James Moody. Julie Cuesta Naifeh, District Attorney's Office, Durant, Oklahoma, for Appellee. Mary Kay Nabors, Durant, Oklahoma, for Minor Child. WM. C. HETHERINGTON, JR., Judge. ¶ 1 In this consolidated appeal, the biological parents of L.M. appeal a trial court judgment terminating their parental rights based on separate jury verdicts finding: (1) Rebecca Mireles (Mother) has a mental illness, and (2) both James Moody (Father) and Mother have failed to correct the condition which led to L.M.'s deprived status. The termination order as to Mother is REVERSED and REMANDED for a new trial. Because the order is supported by clear and convincing evidence, it is AFFIRMED as to Father, but REMANDED to correct a deficiency in the termination order. STANDARD OF REVIEW ¶ 2 "In parental termination cases, the State must show by clear and convincing evidence that the child's best interest is served by the termination of parental rights." In re C.D.P.F, 2010 OK 81, ¶ 5, 243 P.3d 21, 23. This standard of proof "balances the parents' fundamental freedom from family disruption with the state's duty to protect children within its borders." Id. Our review must find the presence of clear and convincing evidence to support the trial court's decision, which requires we canvass the record[1] to determine if the evidence is such that a fact finder could reasonably form a firm belief or conviction that the grounds for termination were proven. Id. FACTS Pre-Deprived Adjudication ¶ 3 According to testimony at trial, Mother and Father had been in an off and on relationship for numerous years when L.M. was born August 8, 2005. They continued that relationship until June 1, 2007, when the trial court granted a protective order for Mother and L.M. and ordered Father "to have no contact . . . either in person or by telephone" with them until June 1, 2010. On July 5, 2007, the Department of Human Services (DHS) received its first referral of Mother's alleged substance abuse and slapping of L.M., who was almost two years old. After investigating, DHS recommended only preventative services for Mother because she and L.M. were living with the maternal grandmother. ¶ 4 On July 29, 2007, Mother, who had since moved with L.M. into a rental home, called the City of Durant Police Department to report a footprint inside her refrigerator. Upon arrival, the police found an unsanitary home with narrow trails between piles of trash and clothing, utilities shutoff from non-payment, spoiled food, cockroaches, and L.M. playing in the floor. When the Police Chief told Mother the suspected footprint was just a stain which needed to be cleaned like the rest of house, she became angry and "almost explosive." At that point, the Police Chief told Mother he was making a report to the DHS, and both officers left. 1094 ¶ 5 Later that day, a DHS investigator and caseworker went to Mother's home to initiate preventative services. They confirmed the home's condition, found some canned goods but no clean food preparation surface, and reported Mother looked ill, appeared to be over-medicated, and demonstrated "paranoid erratic behaviors." During the visit, Mother told the caseworker to leave, so she did. The investigator tried unsuccessfully to reason with Mother, concluded the child was not safe, and went outside to have the caseworker call authorities. Mother grabbed L.M. and tried to leave with him but her car stalled. When the police arrived, Mother handed L.M. to the caseworker and walked away. Because Father was currently in the Johnston County Jail, DHS obtained emergency custody of L.M. ¶ 6 On August 6, 2007, the Bryan County District Attorney filed a petition on behalf of the State of Oklahoma (State) against both parents, alleging L.M. was a deprived child because he "has been exposed to inadequate and dangerous shelter and has not been provided with adequate nutrition. That the mother's paranoid erratic behaviors is also placing the child is (sic) at risk of harm." One month later, DHS created an Individualized Service Plan (ISP or treatment plan), signed by both parents and filed in the deprived child proceeding October 2, 2007. ¶ 7 The "Condition(s) to be corrected" identified in the ISP were "[Father] and [Mother] mental stability and responsibility to maintain a safe and stable living environment. Both parents will address erratic and dangerous behaviors including domestic violence, and behavior outburst when they are frustrate[d]." The ISP list of "To Do's" ("ISP requirements") for Mother included: Complete mental health and substance abuse assessments, follow all recommendations for those services including individual, group and recovery counseling; Address coping skills, anger, outbursts, and L.M.'s emotional difficulty directly related to his high level of anxiety; Maintain sobriety, complete random drug screening; Seek medical attention from one service provider to verify Mother's need for numerous medications; Keep a safe home without physical or verbal fights when child is present, attend family violence counseling, parenting skills training, and provide a stable and safe home with working utilities, adequate space and food; Meet L.M.'s daily and basic needs while remaining mentally stable and no exposure to anyone abusing mood altering substances. Father's ISP requirements were identical except for the one physician limitation and he needed to "follow through with services . . . in criminal court case" and "seek and maintain legal employment as needed to pay for fines and court cost[s]." The ISP allowed the parents bi-monthly visitation with L.M. ¶ 8 Each parent had court-appointed counsel on October 9, 2007, when they stipulated to the allegations in the deprived child petition.[2] An Adjudication and Disposition Order filed October 24, 2007, found L.M. was deprived because he lacked proper parental care and guardianship, lived in an unfit home, was exposed to inadequate and dangerous shelter, had not been provided adequate nutrition and "the mother's paranoid erratic behaviors had also placed him at risk of harm." The trial court ordered the parents to correct those conditions by following the treatment plan it expressly adopted as to each parent and warned their failure to correct the conditions may result in termination of their parental rights. Post-adjudication Parents' First Progress Report ¶ 9 The ISP progress report submitted January 2008 stated Mother was making reasonable 1095 efforts to address her treatment plan and maintaining frequent contact with the child welfare worker. It also reported she has "numerous disabilities such as arthritis, bipolar disorder, post traumatic stress disorder and major depression," was now seeing only one physician, but had denied "having another domestic violence altercation with [Father]" which "can be verified [she] had [him] arrested at Shekinah Counseling Agency." The report stated Father had initiated counseling services, but was arrested November 20, 2007 and currently in Bryan County Jail "after being sentenced . . . for Domestic Violence involving [Mother], and would be transported to Lexington in custody of Department of Corrections (DOC)." It also reported Father "currently is not receiving services" because he was in jail, and "visitation has been ceased as a result of a standing court ordered (sic) not allowing contact until 2010." ¶ 10 Two letters from Shekinah Counseling Agency, both dated September 14, 2007, were part of the first ISP Progress Report. Father's evaluation disclosed anger management and substantial drug and alcohol abuse for which out-patient group counseling and parenting skills were recommended twice weekly for a minimum of 16 weeks. Mother's evaluation yielded moderate drug and alcohol abuse and positive tests for several prescription drugs with out-patient group counseling once weekly for sixteen weeks and random urinalysis testing recommended. ¶ 11 The parents appeared with their court-appointed counsel at the January 2008 Review Hearing. The trial court accepted DHS recommendations and report and in the "Additional Orders" section of its form order, wrote "[Father's counsel] moves for visitation w[ith] Father and a treatment plan to work while incarcerated. St[ate] objects. Request for visitation Denied. Exception allowed. Counsel Discharged." Parents' Status March 2008March 2009 ¶ 12 Mother's mental instability was the sole issue affecting her ability to make reasonable efforts between March 2008 to March 2009,[3] in which report, DHS found "Efforts to reunite has (sic) failed and [it] will be seeking termination." The reports for the same period noted Father is incarcerated and "not receiving services" and that L.M. was a happy toddler with the same foster family since October 2007, his language had improved, and Mother displayed him love and attention at the DHS-monitored weekly visitations. The status quo was maintained at each review hearing, none of which Mother missed. Parents' Status May 2009October 2010 ¶ 13 Father was released from prison May 9, 2009 and two days later reported to DHS, where his caseworker copied the treatment plan and "went through it with him step by step," explaining he "needed to begin it as soon as possible" because L.M. had been out of the home for a total of 22 months and DHS "was looking at termination." Father reported he was residing with L.M.'s maternal grandmother. ¶ 14 The June 2009 ISP Progress Report noted Father was "Non-compliant" under each plan requirement, "had failed to begin any services since his release" and "would not be able to see the child because a protective order is in effect until June 1, 2010 for [L.M.] and [Mother]." It further noted "Mother [is] still attempting to address issues on her court ordered ISP, but her mental stability would be very detrimental to the child if we were to place [L.M.] in her home" and "Efforts to Reunite Failed." ¶ 15 In September 2009, DHS requested termination of rights to both parents, explaining "[Mother] has several mental health issues that need to be addressed which is a major concern in her parenting abilities. As for [Father], he has not completed any services on the Court Ordered ISP plan."[4] At 1096 a review hearing, the trial court found that "reasonable efforts to reunite have failed" for both parents. ¶ 16 In November 2009, DHS reasserted its prior recommendation and requested no visitation with the parents, because (1) "[n]either parent has corrected the conditions which led to L.M.'s removal from their care and custody"; (2) Mother's "several mental health issues . . . is a concern in her parenting abilities"; and (3) Father "has not completed any services on the ISP plan." The report added "[Mother] has not completed services on her ISP at this [time] due to her mental health status" and Father was not living in an appropriate home for L.M. and still had not attended any domestic violence, parent or substance abuse services. The trial court agreed with DHS at the review hearing and ceased visitation. He also sua sponte reappointed L.M.'s former CASA (court appointed special advocate) and the former attorneys for Mother and Father and confirmed its previous "failed efforts to reunite" finding. ¶ 17 The December 2009 review hearing was continued until January 2010, and one was held every sixty days thereafter through October 2010. All of the ISP progress reports indicated little change to Mother's mental status and that Father had made progress with some ISP requirements but none with others. Termination Proceedings ¶ 18 State filed separate "Applications to Terminate" the parental rights to L.M. November 3, 2010. Its Application against Mother was based on "10A O.S. § 1-4-904(B)(5)," i.e., she had "failed to correct the conditions that led to the finding of deprivation" although given over three months to do so, and "10A O.S. § 1-4-904(B)(13)," i.e., she "has a diagnosed behavioral health condition which renders her incapable of adequately and appropriately exercising her parental rights, duties and responsibilities." Finally, the Application alleged "10A O.S. § 1-4-902(A)(1)," i.e., "[t]he child has been in foster care for 15 of the last 22 months." Only § 1-4-904(B)(5) and § 1-4-902(A)(1) were alleged against Father. ¶ 19 At the review hearing held in November 2010, Mother and Father appeared with counsel and requested a jury trial, which was set for January 27, 2011. Three weeks before trial, Father's counsel filed numerous motions. The motion filed January 5, 2011 sought recusal of the assigned judge after Father's in camera request to disqualify had been declined. Father alleged the same judge presided and sentenced him to serve three years for violating the conditions of his four-year suspended sentence in CF-2006-6 (Domestic Abuse/Assault and Battery) by committing a second offense of domestic abuse, CF-2006-863, and other violations. The recusal motion further alleged "the listed witnesses in [Father's criminal] case . . . [and] . . . the facts in the criminal case will be a part of [State]'s case in chief in the case at bar." According to the record, the judge denied Father's motion the same day explaining he would not be the fact-finder because the case was set for jury trial. ¶ 20 On January 11, 2011, Father filed an appeal of the denial of his recusal motion to the Chief Judge of Bryan County and a motion to strike certain allegations within State's Application to Terminate. In the latter, Father argued, due to legislative amendments in 2009, § 1-4-904(B)(5) no longer required a finding that the condition which led to the adjudication of the child as deprived "is caused by or contributed to by acts or omissions of the parent," and the "ground to terminate" based on a child's foster care placement for 15 of the most recent 22 months had been deleted from § 1-4-904(B). ¶ 21 Father's recusal appeal was denied by order filed January 12, 2011. The next day Father's counsel moved to sever the parents' jury trial, arguing he and Mother had mutually antagonistic defenses and he might be 1097 double-teamed by her and State at a joint trial. At the January 25, 2011 hearing on Father's motions to strike and to sever the trial, State agreed to make Father's requested changes to the termination applications, counsel for both parents indicated they would not contest the amendments, and Father's severance request was denied. Parents' Jury Trial ¶ 22 Two days before trial, State filed separate amended applications to terminate the parental rights of Mother and Father, making the agreed upon changes. The jury trial was held over two days, January 27-28, 2011, during which State presented testimony from 14 witnesses, including the police who made the July 2007 referral, DHS investigators and caseworkers, licensed professional counselors, L.M.'s maternal grandmother and his foster parents. All but one of State's exhibits were admitted into evidence, including the parents' ISP, the October 2007 Adjudication/Disposition Order, two letters from Mother's counselor, and one letter from Father's counselor. ¶ 23 The caseworkers all testified both parents had failed to correct the conditions during the separate periods they each were assigned to L.M.'s deprived child case. The testimony of the first caseworker who prepared the parents' treatment plan gave a very general description of Mother's condition, i.e. anxiety or a breakdown, "not focused on her getting better" and taking "numerous medications for health issues." ¶ 24 The second caseworker twice testified Mother "initiated services" on her treatment plan "but never completed [any] due to her mental state" and "due to her mental capabilities she could not finish." She further testified based on her own observations, Mother "wasn't able to care for herself soshe wouldn't be able to care for her child." Her reason for recommending termination was, "It was 2009. The ISP plan was not getting done. Her mental stability, she couldn't even put a finger on her mental stabilityof her problems that she needed to look at." This testimony was confirmed by the third caseworker, who testified "[w]ith Mother, there was a lot of mental health issues. Lots of reports of mental health concerns with her" and "notes of delusional thoughts." ¶ 25 Mother's counselor from April 2009 to mid-January 2010 testified Mother was currently suffering from back and heart problems and her "significant mood disorder with active symptoms" compromises her ability to care adequately for herself and her child and poses a risk of harm for herself and her child.[5] The counselor testified Mother had disclosed she was diagnosed with bipolar disorder as a teenager and that her recent psychological evaluation "presents a somewhat similar picture of bipolar I disorder with psychotic features." Father's counselor opined Father did not "show progress or commitment to change his life from before" and did not complete the anger management and substance abuse requirements.[6] ¶ 26 After State rested its case, each parent moved for directed verdict, both of which the trial court overruled. Counsel for the parents each gave a brief opening statement, and then rested. The child's attorney also rested. Following instructions to the jury and closing statements, the issues were submitted for decision by the jury. 1098 ¶ 27 By separate verdict forms, a unanimous jury found "by clear and convincing evidence" Mother's parental rights to L.M. should be terminated (1) "on the statutory ground that the parent failed to correct the conditions which led to the adjudication of the minor child even though she has been given over three months to do so" and (2) "on the statutory ground that the parent has a mental illness or mental deficiency." The unanimous jury's verdict against Father also found "by clear and convincing evidence" that his parental rights to L.M. should be terminated "on the statutory ground that the parent has not corrected the conditions which led to the adjudication of the minor child even though he has been given over three months to do so." ¶ 28 The trial court's "Journal Entry of Judgment Terminating The Parental Rights of Respondent Parents" filed March 22, 2011 states the jury returned its verdicts on January 28, 2011, and after quoting verbatim the three verdicts, ordered "the parental rights of [Mother] and [Father] be terminated as to [L.M.]" who is to remain in DHS custody. The parents[7] filed separate appeals from the trial court's judgment based on the jury's verdicts. By Order filed April 26, 2011, the Supreme Court consolidated their appeals pursuant to Okla.Sup.Ct.R. 1.27(d). Assignment to this Court followed. ANALYSIS Mother's Appeal ¶ 29 For reversal, Mother argues the trial court's failure to properly address her motion to proceed pro se violated her constitutional right to represent herself at the parental rights termination trial and there was insufficient evidence presented to the jury to justify termination of her parental rights. Because we agree with Mother's latter argument as discussed below, we need not reach her constitutional argument. In the Matter of J.N.M., 1982 OK 153, ¶ 1, 655 P.2d 1032, 1033.[8] Insufficiency of the Evidence ¶ 30 According to Mother, there is no evidence that allowing her "to retain her parental rights" would result in harm or threatened harm to L.M. After admitting "State did offer evidence showing a danger of harm to L.M.," she clarifies that "State's evidence, tracking the statutory language of 10A O.S. § 1-4-904(B)(13), only showed a danger to L.M. if he were returned to Mother's custody." (Emphasis in original.) She contends State did not prove or even allege L.M. was being harmed or in danger of harm "if the status quo were to remain in place or if Mother were granted visitation." ¶ 31 State argues it presented clear and convincing evidence of harm to L.M., noting also the § 1-4-904(B)(13) element is the only one with which Mother takes issue. Mother contends State's response ignores Matter of Sherol A.S., 1978 OK 103, 581 P.2d 884, and other Oklahoma cases she cited for holding harm to the child must be proven to justify State's interference with a parent-child relationship. She argues, "given the constitutional nature of this requirement" that "the legislature is incapable of removing or modifying it by statutory enactment" and her directed verdict motion should have been sustained because "State made no effort to prove L.M. would ever be harmed by the status quo." Preliminary Issues ¶ 32 The problem revealed by the record and not acknowledged by either party is that the jury was not instructed on the amended statute, § 1-4-904(B)(13). Instead, the instruction sets out verbatim the elements of its predecessor, 10 O.S.2001 § 7006-1.1(A)(13), which was amended and renumbered to § 1-4-904(B)(13) as part of 1099 the Legislature's substantial amendments to Title 10 and recodification of the Oklahoma Children's Code (OCC) under Title 10A, effective May 21, 2009.[9] ¶ 33 Mother's insufficiency of the evidence argument on appeal does not directly raise any error with the jury instruction as given. Nor did she challenge State's termination petition based on § 1-4-904, even after Father's motion to strike allegations from State's petition specifically addressed the amendments. At trial, Mother only challenged the sufficiency of the evidence for § 1-4-904(B)(13)[10] and she did not object to the "proposed jury instructions," as corrected, or later to the trial court's "No. 18."[11] We find no on-the-record discussion about a sua sponte change to that instruction in the trial transcripts. ¶ 34 The trial court's duty is to state the law correctly. Sellars v. McCullough, 1989 OK 155, ¶ 9, 784 P.2d 1060, 1062. It is the parties' duty to assure that the instructions given accurately reflect the issues tendered by the evidence adduced at trial, and if not, make an objection complying with 12 O.S.2001 § 578. Id. Appellate courts may, however, review a jury instruction that was neither properly preserved below nor addressed on appeal for "fundamental errors of law." Sullivan v. Forty-Second West Corp., 1998 OK 48, ¶¶ 3-4, 961 P.2d 801, 802-803. Fundamental error "compromises the integrity of the proceeding to such a degree that the [jury instruction] has a substantial effect on the rights of one or more of the parties." (Emphasis added.) Id., ¶ 7; see also Quarles v. Panchal, 2011 OK 13, ¶ 7, 250 P.3d 320, 322. ¶ 35 Jury Instruction No. 18, on its face, correctly states the law prior to May 21, 2009, i.e., § 7006-1.1(A)(13), which authorized a termination of parental rights to a child upon "[a] finding that all of the following exist": (a) the child has been adjudicated deprived; and (b) custody of the child has been placed outside the home of a natural or adoptive parent, guardian or extended family member; and (c) the parent whose rights are sought to be terminated has a mental illness or mental deficiency, as defined by [43A O.S. § 6-201],[12] which renders the parent 1100 incapable of adequately and appropriately exercising parental rights, duties and responsibilities; and (d) the continuation of parental rights would result in harm or threatened harm to the child; and (e) the mental illness or mental deficiency of the parent is such that it will not respond to treatment, therapy or medication and, based on competent medical opinion, the condition will not substantially improve; and (f) termination of parental rights is in the best interests of the child. Provided, a finding that a parent has a mental illness or mental deficiency shall not in and of itself deprive the parent of his or her parental rights. ¶ 36 State moved to terminate Mother's parental rights based on § 1-4-904(B)(13), which, since May 21, 2009, requires "[a] finding that all of the following exist": a. the parent has a diagnosed cognitive disorder, an extreme physical incapacity, or a medical condition, including behavioral health which renders the parent incapable of adequately and appropriately exercising parental rights, duties, and responsibilities within a reasonable time considering the age of the child, and b. allowing the parent to have custody would cause the child actual harm or harm in the near future. A parent's refusal or pattern of noncompliance of treatment, therapy, medication or assistance from outside the home can be used as evidence that the parent is incapable of adequately and appropriately exercising parental rights, duties, and responsibilities. A finding that a parent has a diagnosed cognitive disorder, an extreme physical incapacity, or a medical condition, including behavioral health or substance dependency shall not in and of itself deprive the parent of parental rights. In addition, two § 7006-1.1(A)(13) elements,[13]i.e., "the child has been adjudicated deprived either prior to or concurrently with a proceeding to terminate parental rights," and "termination is in the best interest of the child," apply to § 1-4-904(B)(13) and all other termination grounds under § 1-4-904(B).[14] See 10A O.S.2011 § 1-4-904(A)(1)-(2). ¶ 37 Although § 7006-1.1(A)(13) was in effect when State commenced its deprived child proceeding against Mother in 2007, it had been superceded by § 1-4-904(B)(13) well over a year before the Application to terminate was filed November 3, 2010. Statutory amendments to other termination grounds, prior to and after the State had moved to terminate parental rights, have been addressed by five Oklahoma Court of Civil Appeals cases with varying results. ¶ 38 By published opinion, the Court in Matter of J.C., 2010 OK CIV APP 138, n. 2, 244 P.3d 793, 794, disagreed with the mother's argument her pre-May 21, 2009 stipulation to the deprived child petition required application of the former "failure to correct" ground, 10 O.S.2001 § 7006-1.1(A)(5), finding the second amended petition to terminate her parental rights "was filed June 10, 2009, which is subsequent to the effective date of Title 10A [May 21, 2009]." The Oklahoma Court of Civil Appeals in the Matter of T.M., A.M. & A.M., 2000 OK CIV APP 65, 6 P.3d 1087, and Matter of A.G. & E.G., 2000 OK CIV APP 12, 996 P.2d 494, affirmed or found no fundamental error with the trial court's application of 10 O.S. Supp.1998 § 7006-1.1(A)(15),[15] which newly enacted ground 1101 went into effect after the deprived child adjudications and before the motions to terminate were filed in each case. ¶ 39 The basis for Matter of T.M. and Matter of A.G., id., was the Legislature's express provision for retroactive application of that ground, the same interpretation reached by the Oklahoma Court of Civil Appeals in the Matter of M.C. and N.C., 1999 OK CIV APP 128, 993 P.2d 137. Notwithstanding this interpretation, the latter Court reversed the termination order, finding § 7006-1.1(A)(15), as applied to its facts, had "a type of ex post facto effect forbidden by the Oklahoma Constitution [Art. 2, § 15]," i.e., a "punitive consequence that did not exist either at the time State initiated the deprived proceedings, or when State began its quest to terminate" and had changed the father's obligations and liabilities.[16]Id., ¶ 7-8. ¶ 40 Recently, another division of the Oklahoma Court of Civil Appeals in a published opinion, Matter of P.W.W., L.M.W., N.W. & S.W., 2012 OK CIV APP 18, 273 P.3d 83, (2012), addressed the Legislature's "repeal"[17] of § 7006-1.1(A)(15), which became effective May 21, 2009, i.e., after the 2007 adjudication order and prior to the November 2009 motion to terminate which had alleged two grounds, § 7006-1.1(A)(15) and § 7006-1.1(A)(5). The trial court instructed the jury solely on § 7006-1.1(A)(15), with no objection by Mother, so the Court in P.W.W. reviewed the instruction for fundamental error. Interpreting Art. 5, § 54, Okl. Const., which provides the "repeal of a statute shall not . . . affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute," the Court in Matter of P.W.W. found the termination proceeding was the "proceedings begun" by virtue of the repealed statute. Because State's motion to terminate was filed after § 7006-1.1(A)(15)'s repeal, the Court found fundamental error based on the trial court's lack of authority to terminate parental rights on the repealed ground. The Court reversed the termination order for failure to give an instruction for the order's remaining basis, § 7006-1.1(A)(5). ¶ 41 The trial court here did not instruct on either a new or amended termination ground, but instead on the former version. Whether such action constitutes fundamental error is dependent on the same issue addressed in all five caseswhich version governed State's termination proceeding. This question of law is reviewed de novo, without deference to the trial court's conclusion. In re Adoption of Baby A., 2006 OK CIV APP 24, ¶ 7, 131 P.3d 153, 155. ¶ 42 The general rule in Oklahoma is that statutes and amendments are to be construed to operate only prospectively unless the Legislature clearly expresses a contrary intent. Welch v. Armer, 1989 OK 117, ¶ 27, 776 P.2d 847, 850. Remedial or procedural statutes "which do not create, enlarge, diminish, or destroy accrued or contractual rightsare generally held to operate retroactively and apply to pending proceedings (unless their operation would affect substantive rights)." Cole v. Silverado Foods, Inc., 2003 OK 81, ¶ 8, 78 P.3d 542, 546. (Emphasis added.) ¶ 43 Unlike the termination ground considered in Matter of T.M., Matter of A.G., and 1102 Matter of M.C., supra, we find no legislative intent, express or necessarily implied, for retroactive application of § 1-4-904(B)(13). Under the general rule, operation of the amended statute would be prospective only, unless one of its exceptions applies. This determination requires a comparison of both versions to identify any changes to existing law, and if so, whether the changes are purely remedial or procedural, in which case the amended statute would operate retroactively. American Airlines Inc. v. Crabb, 2009 OK 68, ¶ 14-16, 221 P.3d 1289, 1292-93; Welch, 1989 OK 117, ¶¶ 21-26, 776 P.2d 847. If the changes are substantive, its operation is prospective only. Id. ¶ 44 Comparing § 7006-1.1(A)(13) to § 1-4-904(B)(13), we conclude there are significant changes in the amended version other than the broadening of its scope, i.e., cognitive disorders, extreme physical incapacities and "medical conditions, including behavioral health"[18] (collectively, "conditions"). Relating to Mother's insufficiency of the evidence argument is the change in the element addressing the potential for "harm" to the child. Section 1-4-904(B)(13)(b) now provides "allowing the parent to have custody would cause the child actual harm or harm in the near future," but before May 21, 2009, § 7006-1.1(A)(13)(d) required "the continuation of parental rights would result in harm or threatened harm to the child."[19] (Emphasis added.) ¶ 45 Another significant change is the Legislature's deletion of § 7006-1.1(A)(13)(e), which required testimony or evidence from a physician, psychiatrist/psychologist, counselor or other qualified person that the parent's mental illness or deficiency "is such that it will not respond to treatment, therapy or medication and, based upon competent medical opinion, the condition will not substantially improve." This latter section was merged with § 7006-1.1(A)(13)(c), from which the statutory definition of mental illness or mental deficiency was deleted, into a single element, § 1-4-904(B)(13)(a). That section now requires a "diagnosis" for the listed conditions, without regard to the parent's prognosis, short-term or long-term. Like § 7006-1.1(A)(13)(c), the conditions listed in § 1-4-904(B)(13)(a) must still "render the parent incapable of adequately and appropriately exercising parental rights, duties and responsibilities." However, while this finding has an added qualification, "within a reasonable time considering the age of the child," it can now be proven with evidence of a parent's "refusal or pattern of non-compliance of treatment, therapy, medication or assistance from outside the home."[20] As a result, § 1-4-904(B)(13) provides a lesser evidentiary burden that is more subjective than its predecessor. ¶ 46 The history of § 7006-1.1(A)(13) demonstrates the significance of the changes to its elements, which are identical to those in 10 O.S. Supp.1988 § 1130(8)the first termination ground specific to parents with mental illness or deficiency.[21] The Legislature enacted § 1130(8) in response to Matter of J.N.M., 1982 OK 153, 655 P.2d 1032, in which the Supreme Court reversed a termination order finding the 1981 version of § 1130 did 1103 not expressly provide for parental rights termination of mentally ill parents and proof of mental illness alone was inadequate to terminate parental rights. As enacted, § 1130(8) addressed all of the Court's concerns, e.g., no evidence on whether the parents' mental illness posed harm to the children or whether the mental illness was not treatable and long-term which would justify termination. ¶ 47 "Termination of parental rights is purely a creature of statute." Matter of Christopher H., 1978 OK 50, ¶ 7, 577 P.2d 1292, 1293. A "statute of creation" is one creating a right previously unknown to both common law as well as statutory law. Trinity Broadcasting Corp. v. Leeco Oil Co., 1984 OK 80, ¶ 9, n. 8, 692 P.2d 1364, 1367. Section 1130(8), later renumbered to § 7006-1.1(A)(13) without any modifications to the six elements or the proviso, clearly meets that definition. While this new ground gave State the right or authority to terminate the parental rights of parents with a mental illness or deficiency upon the requisite proof of all of its elements, it also provided statutory protection for the parental rights of the same parents.[22] A statute of creation affects substantive rights and any amendment to such only operates prospectively.[23]Trinity, 1984 OK 80, ¶ 9, 692 P.2d 1364. ¶ 48 We find no Oklahoma parental termination cases deciding whether substantive rights are affected by an amended ground's changes to the prior version's elements. However, we find two worker's compensation court cases instructive on this issue. In American Airlines Inc. v. Crabb, 2009 OK 68, ¶ 14-16, 221 P.3d 1289, 1292-93, the Court found the addition of the phrase "major cause of the injury" in the amended statutory definition of "compensable injury" added a new element to the claim, intruded on substantive rights, and could not be applied retroactively. After-enacted legislation that "alters the elements of a claim or defense by imposition of new conditions affects the parties' substantive rights and liabilities." King Manufacturing v. Meadows, 2005 OK 78, ¶ 19, 127 P.3d 584, 590; Welch, 1989 OK 117, ¶¶ 27-28, 776 P.2d 847. ¶ 49 The Court in Cole v. Silverado Foods Inc., 2003 OK 81, ¶ 13, 78 P.3d 542, 548, similarly held the retroactive application of an amended statute of limitations affected the substantive rights of both parties in two ways. First, it made the employer's defense "much more extensive than it stood at the time the claim was brought." Second it affected the merits or "grounds or elements" of the employee's claim, since she would have to confront a "different defense." Id., ¶ 14, n. 27. Because the amended statute operated on "rights in existence," the Court in Cole held "its terms are subject solely to prospective application." Id. Similar conclusions were reached about an amended adoption without consent statute in Adoption of W.C., 189 Ohio App. 3d 386, 938 N.E.2d 1052 (Ohio Ct.App. 12 Dst.2010) and VanBremen v. Geer, 187 Ohio App. 3d 221, 931 N.E.2d 650 (Ohio Ct.App. 5 Dst.2010).[24] ¶ 50 As in Crabb, § 1-4-904(B)(13) adds new elements and its application to Mother's termination proceeding would have 1104 had the same effect as discussed in Cole, i.e., it would have placed a lesser evidentiary burden on State to terminate Mother's parental rights and a higher burden on Mother in opposing termination, thereby affecting the parties' substantive rights. A substantive change which "alters the rights or obligations of a party cannot be viewed as solely a remedial or procedural change and cannot be retrospectively applied." Sudbury v. Deterding, 2001 OK 10, ¶ 19, 19 P.3d 856, 860. Therefore, as applied to this case, § 1-4-904(B)(13)'s operation is prospective only. ¶ 51 We also agree with the Court's decision in Matter of P.W.W. that "Art. 5, § 54, is controlling" here on the issue before us. "Proceedings begun" under the meaning of Art. 5, § 54 "refers to essential steps or measures to invoke, establish or vindicate a right." Cole v. Silverado Foods, Inc., 2003 OK 81, ¶ 8, 78 P.3d 542, 546. This constitutional provision applies to repealed or amended statutes. Cole, ¶ 14; Matter of A.W. & M.W., 2011 OK CIV APP 27, ¶ 9, n. 5, 250 P.3d 343, 347.[25] "Proceedings begun" in Art. 5, § 54 "embraces all of the statutory steps required by law for the establishment and foreclosure of a statutory lien claim" and "the timely filing of a lien statement is a condition precedent to a foreclosure." First National Bank of Pauls Valley v. Crudup, 1982 OK 132, ¶ 6, 656 P.2d 914, 916. Relying on Crudup, the Court in Cole held the timely filing of a workers' compensation claim "establishes an initial step with the meaning of `proceedings begun' in Art. 5, § 54, [and] the terms of the statute in effect at the time the claim was filed are constitutionally shielded from invasion by after-enacted legislation." 2003 OK 81, ¶ 14, 78 P.3d 542. ¶ 52 The point at which we depart from Matter of P.W.W. is its assumption the Legislature intended the "repeal" of the statutory ground to be applied retroactively to the pending deprived child action and that for purposes of Art. 5, § 54, "proceedings begun" is State's filing of a motion or petition to terminate. Even if we were to agree the Legislature so intended (either expressly or impliedly), we conclude the filing of a petition to adjudicate a child as deprived is the initial and critical step within the meaning of "proceedings begun" in Art. 5, § 54. Like the filing of a workers' compensation claim in Cole, a petition for adjudication commences State's right to intervene in a family unit to protect a child from harm and seek relief, e.g., adjudication of the child as deprived, termination of parental rights, as permitted by 10A O.S.2011 § 1-4-301(A)(2)(g), [formerly 10 O.S.2001 § 7003-3.1(A)(2)(g)]. ¶ 53 A deprived child petition filed by State is also a condition precedent (together with proof of harm to the child or a stipulation by the parents) to an order adjudicating the child as deprived. Thereafter, if reunification of the family is successful, State may dismiss the deprived action. However, if reunification of the family fails or is not an option, State's decision to pursue its remedy of terminating parental rights is dependent, under either § 7006-1.1(A)(13) or § 1-4-904(B)(13), on a prior deprived child adjudication. In that event, State's petition or motion to terminate parental rights is given the same case number as the deprived action, hence its description as "ancillary" to the deprived action, see In re C.L.M., 2001 OK CIV APP 3, ¶ 12, 19 P.3d 888, 891, or one of its three "stages," see In re G.G., 2004 OK CIV APP 71, ¶ 15, 97 P.3d 1155, 1156. The "[e]ntire proceeding from the filing of a petition to adjudicate deprived until the matter has been completed, either by termination of parental rights or by dismissal of the action constitutes a deprived action." Matter of T.M., A.M. & A.M., 2000 OK CIV APP 65, ¶ 11, 6 P.3d 1087, 1092. Applying Cole and Crudup, we conclude "proceedings begun" under the facts of this case refers to the initial filing of State's petition to adjudicate L.M. as deprived. All of the subsequent statutory steps in a deprived child proceeding, 1105 including the petition or motion to terminate, are part of and ancillary to the deprived child proceeding. Under our interpretation, because § 7006-1.1(A)(13) was in effect at the time the petition to adjudicate was filed based on Mother's mental illness, its terms at that time are applicable to the subsequent termination proceeding and are unaffected by the intervening legislative amendment. ¶ 54 A parent's right to his child and family integrity is a fundamental constitutionally protected liberty interest that must be accorded the full panoply of procedural protections, as well as substantive protection under the due process clauses. In re A.M. & R.W., 2000 OK 82, ¶ 8, 13 P.3d 484, 487; Matter of J.N.M., 1982 OK 153, ¶ 9, 655 P.2d 1032, 1036; and In re M.C. and N.C., 1999 OK CIV APP 128, ¶ 9, 993 P.2d 137, 140. We are also aware that Oklahoma courts have long held in deprived child proceedings that parental rights are not absolute, but are qualified by considerations affecting the welfare of children. In re Harris, 1966 OK 253, ¶ 0, 434 P.2d 477, 478; In re Pulliam, 1962 OK 56, ¶ 0, 369 P.2d 646, 647; McNatt v. State, 1958 OK 235, ¶ 0, 330 P.2d 600; In re J.C., 2007 OK CIV APP 77, ¶ 5, 168 P.3d 784, 785. Therefore, the parents' rights must be balanced against the State's right to protect the rights of children who have an equally important right to a wholesome and safe environment. In re J.C., 2007 OK CIV APP 77, 168 P.3d 784. However, the "paramount consideration in all proceedings within the [OCC] is the best interests of the child." 10 O.S.2001 § 7001-1.2(B), now 10A O.S.2011 § 1-1-102. This goal is best served by full compliance with the law. A.E. v. State, 1987 OK 76, ¶ 22, 743 P.2d 1041, 1048. ¶ 55 Keeping these principles in mind, § 7006-1.1(A)(13)'s statutory protection for a special class of parents with mental illness or mental deficiency applies here. This "protected condition" triggered L.M.'s removal from Mother's custody and his adjudication as a deprived child. Mother's mental illness remained the sole basis for the pending deprived action and was relied upon in State's application to terminate her parental rights. Because this statutory protection existed when the deprived action proceedings were begun, § 7006-1.1(A)(13)'s application is protected from extinguishment by the Legislature's 2009 amendments under Art. 5, § 54 of the Oklahoma Constitution. Accordingly, we find no fundamental error with the trial court's instruction based on § 7006-1.1(A)(13). Sufficiency of the Evidence Termination Under § 7006-1.1(A)(13) ¶ 56 Having found § 7006-1.1(A)(13) governs Mother's termination proceedings, we next address her insufficiency of the evidence argument as it relates to harm to the child. Under this version, the question is whether there is clear and convincing evidence the "continuation of [Mother's] parental rights would result in harm or threatened harm to the child." We agree with Mother all of the evidence State presented demonstrated harm or threatened harm to L.M. if he were returned to her physical custody, and there is no dispute the evidence presented to the jury showed Mother's mental illness met the statutory definition as required by § 7006-1.1(A)(13)(c). However, whether there is clear and convincing evidence that continuance of her parental rights would result in harm or threatened harm to L.M., under the specific facts of this case, cannot properly be evaluated or understood without first determining whether State carried its requisite burden to show Mother's condition was long-term and not treatable, as essentially required under § 7006-1.1(A)(13)(e). ¶ 57 While performing our appellate duty to "canvass the record to determine whether the evidence is such that a fact-finder could reasonably form a firm belief or conviction that the grounds for termination were proven," we find clear and convincing evidence of Mother's "history of severe mental illness" and of her disclosure she had been diagnosed with "bi-polar disorder as a teenager." There is also testimony Mother "agreed to and signed the treatment plan that lists her diagnosis as schizophrenia," has current symptoms of depression and anxiety, inter alia, and she had yet to resolve any of the originally identified risk factors through counseling with three counselors since 2007. 1106 ¶ 58 However, review of the entire record reveals there is no testimony or evidence Mother's mental illness will not respond to medication or other treatment or therapy. More importantly, the record lacks competent medical opinion that Mother's mental illness will not substantially improve. Without clear and convincing evidence for all six of § 7006-1.1(A)(13)'s findings, the judgment terminating Mother's parental rights based on this statutory ground must be reversed. Sufficiency of the Evidence for Termination Under § 7006-1.1(A)(5) ¶ 59 Because the jury also found Mother's parental rights should be terminated based on her failure to correct the conditions which led to L.M.'s deprived child status, our remaining duty is to decide whether there is clear and convincing evidence to support the trial court's judgment based on this ground. Like the mental illness instruction, the jury was not instructed on the amended ground, 10A O.S. Supp.2009 § 1-4-904(B)(5), but instead its predecessor, 10 Ohio St. 2001 § 7006-1.1(A)(5) which, prior to May 21, 2009, allowed a trial court to terminate the rights of a parent to a child based on "[a] finding that": (a) the child has been adjudicated to be deprived, and (b) such condition is caused by or contributed to by acts or omissions of the parent, and (c) termination of parental rights is in the best interests of the child, and (d) the parent has failed to show that the condition which led to the adjudication of a child deprived has been corrected although the parent has been given not less than the time specified by [§ ]7003-5.5 of this title to correct the condition.[26] The "uncorrected condition" to which § 7006-1.1(A)(5)(d) refers necessarily means a condition the nature of which is subject to correction by the parent's efforts, see In re C.R.T., 2003 OK CIV APP 29, ¶ 16, 66 P.3d 1004, 1009, and without any change to this element in § 1-4-904(B)(5), that interpretation is unaffected. Consequently, we need not address which version governs here, because neither are applicable. ¶ 60 The Court of Civil Appeals in C.R.T. reversed an order terminating parental rights, finding the jury should not have been instructed under both § 7006-1.1(A)(5) and § 7006-1.1(A)(13), because the latter termination ground applies to a specific condition and controls over the more general ground. Id., ¶ 18. The Court found § 7006-1.1(A)(13) "deals with a different form of `condition,' one requiring medical, psychiatric and psychological intervention, or a combination thereof, because the condition is essentially outside the control of the parent." (Emphasis added.) Id., ¶ 18. Under its interpretation, the Court further found § 7006-1.1(A)(13) "contemplates a person's inability to correct the condition" because its language deals "with contingencies where the condition does not respond to treatment through no fault of the person and medical opinion concludes that the condition will not substantially improve." (Emphasis added.) Id. ¶ 61 As in C.R.T., there is no dispute in this case: (a) Mother suffers from a mental condition of the nature contemplated by § 7006-1.1(A)(13); (b) the condition to be corrected is mental illness, which was the basis for the deprived child adjudication and remained Mother's problem to the time of trial; (c) the record as a whole and the evidence at trial shows the alleged failure to correct the mental condition "follows and flows directly from the condition itself"; and (d) the deprived child case "began and was handled as a mental health problem and remained so through trial." More importantly, this record has no evidence or testimony from which a jury could find Mother failed to correct a condition which was in her ability to control. 1107 ¶ 62 Like the Court in C.R.T., we conclude § 7006-1.1(A)(13) applied to the specific facts of this case and the trial court erred in allowing the State to also proceed to terminate Mother's parental rights under § 7006-1.1(A)(5) and to instruct the jury on that same ground. The trial court's order terminating Mother's parental rights is REVERSED and REMANDED for a new trial. Father's Appeal ¶ 63 For reversal, Father alleges three errors with trial court's pretrial rulings, i.e., denying his request for court-appointed counsel, refusing to recuse, and denying severance of the parents' jury trials. The errors he claims were made during the trial include admitting prejudicial evidence, rejecting his proposed jury instructions, and failing to direct a verdict in his favor because there was insufficient evidence presented to the jury to support termination of his parental rights. Lastly, Father argues he had ineffective assistance of counsel. Pretrial Rulings Father's Requests for Court Appointed Counsel ¶ 64 Father contends the trial court did not afford him his constitutional right to assistance of counsel by denying his three separate applications for re-appointment of court-appointed counsel and "despite knowing Father was having issues completing the ISP and receiving services" while incarcerated. He also argues the trial court's refusal to reappoint counsel "is particularly troubling in light of Father's inability to effectively read, write or communicate with others." ¶ 65 Father submitted his first "Application for Appointed Counsel and Affidavit of Inability to Employ Counsel" (Application of Counsel) dated January 10, 2008. During his incarceration, he submitted a second Application for Counsel dated May 19, 2008. A month after his release at the June 9, 2009 Review Hearing, Father submitted his third Application for Counsel. The trial court apparently denied all three of his Applications for Counsel.[27] ¶ 66 The first part of Father's argument fails to consider all three denials occurred after the deprived child adjudication in response to Applications filed one week before, during and one month after his incarceration. Despite earlier DHS findings and termination requests, that was not a possible remedy until the trial court finally ordered that "Reasonable efforts to reunite have failed" in September 2009. See 10 O.S. Supp.2007 § 7003-3.7(A). Two months later, the trial court sua sponte appointed Father and Mother counsel. As a result, he was represented a full year prior to the filing of State's application to terminate Father's parental rights in November 2010. ¶ 67 The record confirms the trial court denied Father's request for a treatment plan he could work while incarcerated, but he cites no authority holding such is required. Further, Father gives no record cite to support his allegations of the trial court's knowledge of his alleged issues with "receiving services" or communicating with DHS. Our review of the entire record reveals the trial court's first notice of Father's inability to read or write and his "limited capacity to communicate" was the ISP Progress Report filed by DHS October 8, 2010, at which time Father had been represented by counsel for 1108 11 months. Moreover, there is no indication any person, other than Father, completed and signed each "Application for Appointed Counsel and Affidavit of Inability to Employ Counsel." We conclude Father has not demonstrated any constitutional or statutory infirmities in this regard. See Matter of D.D.F., 1990 OK 89, 801 P.2d 703. Court's Refusal to Recuse ¶ 68 Father argues the trial judge was required to recuse under Rule 2.11(A)(6)(d) of the Code of Judicial Conduct,[28] claiming he could not be impartial because he had previously acted as the trial judge in two criminal cases with Father involving "a number of the same facts and witnesses" which State indicated might be called at the termination hearing. He claims the trial court's inability to "separate the cases appropriately in his own mind" is established by the trial court's entry of an order limiting the voir dire time of the parties at the termination trial which referred to Father as the "Defendant" three different times. ¶ 69 However, according to the order of the District Judge of the 19th Judicial District, the trial court's involvement with Father's criminal cases included accepting his waiver of preliminary hearing, his stipulation to the State's application to revoke, and sentencing Father pursuant to a negotiated plea agreement. We agree with the District Judge's opinion no reasonable person would question the trial judge's impartiality based on those actions.[29] Considering this, the timing of Father's motion to recuse, and that the jury would be the fact-finder at the termination hearing, we find Father's argument without merit. Trial Court's Denial of Father's motion to sever the trial ¶ 70 Father argues on appeal that he and Mother should have been granted separate trials, claiming they had opposing and inherently antagonistic defenses because he was sentenced to prison due to Mother's domestic abuse charges and the protective orders she was awarded against him. He further claims State's termination case against him went far beyond the allegations in the application to terminate his parental rights to L.M. ¶ 71 At the hearing, the trial court clarified with Father's counsel the basis of the severance motion as "the factual basis for criminal charges against your client . . . is, also, alleged as a basis for State's motion to terminate Father's parental rights." Thereafter, Father's counsel repeated his position that Mother may decide to assist the District Attorney and "double up" against his client. The trial court concluded the latter could occur whether the trials were separate or together, and because the jury would receive instructions and verdict forms, separate as to each parent and as to each ground alleged, he denied Father's motion, finding nothing prejudicial about a single trial for the parents. ¶ 72 According to the cases Father cites as authority, a defendant is "double teamed" or placed in a "two against one" situation to his detriment when court appointed counsel for a child victim actively participates in the trial beyond limits provided by statute,[30]i.e., taking an adversarial role against the defendant. Cooper v. State, 1996 OK CR 38, 922 P.2d 1217; In re J.D.D., 2010 OK CIV APP 102, 241 P.3d 691. "Mutually antagonistic defenses occur when each defendant attempts to exculpate himself and 1109 inculpate the co-defendant." Spunaugle v. State, 1997 OK CR 47, ¶ 23, 946 P.2d 246, 251(overruled on other grounds). Defenses are antagonistic when "to believe one is to disbelieve the other." Id. "Severance is also required when the State introduces the confession of a non-testifying co-defendant which inculpates another co-defendant." Id., ¶ 25. The decision to sever a trial between co-defendants or a trial between parties in a civil action is left to the sound discretion of the trial court. Id; Herbert v. Wagg, 1910 OK 334, ¶ 4, 117 P. 209, 212. ¶ 73 Father's arguments fails for two reasons. First, his "double teaming" argument in favor of severance addresses Mother's court appointed attorney in this proceeding, not L.M.'s attorney. Second, Father's alleged failure to correct the condition which led to L.M.'s adjudication is the sole ground for termination of his parental rights. Father has failed to demonstrate not only the potential for a "two against one" situation but also how Mother's potential testimony at a termination trial, joint or severed, about the domestic violence criminal charges she filed against him could inculpate Father on that termination ground, the successful completion for which he is solely responsible. Equally important, Father has failed to show any prejudice or injustice resulting from the joinder of the parents' trial. See 12 O.S. Supp.2004 § 2020(D); All American Bus Lines v. Saxon, 1946 OK 199, ¶ 23, 172 P.2d 424, 428; Spunaugle, ¶ 22. We find no abuse of discretion with the denial of Father's motion to sever. Rulings During Trial Preliminary Issue ¶ 74 State moved for termination of Father's parental rights to L.M. based solely on his failure to correct the conditions which led to L.M.'s deprived status adjudication, relying on 10A O.S. Supp.2009 § 1-4-904(B)(5). However, the trial court's jury instruction listed the elements of its predecessor, 10 O.S.2001 § 7006-1.1(A)(5). To avoid repetition, we find applicable here our analysis under Mother's appeal concerning fundamental error and retroactive application of amended statutory grounds in deprived child proceedings. Based on our review of § 1-4-904(B)(5) we conclude it also affects the parties' substantive rights. ¶ 75 Prior to May 21, 2009, § 7006-1.1(A)(5) required "[a] finding that: (a) the child has been adjudicated to be deprived, (b) such condition is caused by or contributed to by acts or omissions of the parent, (c) termination of parental rights is in the best interests of the child, and (d) the parent has failed to show that the condition which led to the adjudication of a child deprived has been corrected although the parent has been given not less than three months."[31] This clear and unambiguous ground for termination has been interpreted by Oklahoma courts for decades. ¶ 76 On and after May 21, 2009, § 1-4-904(B)(5) requires "[a] finding that: (a) the parent has failed to correct the condition which led to the deprived adjudication of the child, and (b) the parent has been given at least three (3) months to correct the condition."[32] Absent from § 1-4-904(B)(5) is the element, "such condition is caused by or contributed to by acts or omissions of the parent," which was added by the Legislature in 1977 and authorized termination of parental rights only if a parent has failed to correct the particular condition(s) for which that parent's acts or omissions was either the sole cause or a contributing cause. (Emphasis added.) In re L.G., 1993 OK CIV APP 162, ¶ 7, 864 P.2d 1301, 1303. ¶ 77 Deleting this element removed a statutory protection afforded to Father which existed when the deprived child proceeding 1110 was initiated against him. Had amended § 1-4-904(B)(5) been applied, State's evidentiary burden would have been decreased and Father's defense in opposing termination would have been increased, thereby affecting the parties' substantive rights. As a result, § 7006-1.1(A)(5)'s application is protected by Art. 5, § 54, the jury was so instructed, and we conclude the trial court correctly applied this version of the termination ground to the facts of this case. Sufficiency of the Evidence Supporting Termination Under 10 O.S.2001 § 7006-1.1(A)(5) ¶ 78 Father cites to three Oklahoma cases for the proposition that without proof of actual or imminent harm to the child, there is no justification for permanent severance of the parent's rights based on: (1) a parent's inability to have physical custody of a child, Matter of Baby Girl Williams, 1979 OK 150, ¶ 10, 602 P.2d 1036; (2) poor, uneducated parents with a dirty house and dirty children, Matter of Sherol A.S., 1978 OK 103, 581 P.2d 884, and (3) incarceration of a parent, Matter of A.K., 2008 OK CIV APP 104, 198 P.3d 415. ¶ 79 According to Father, there was "insufficient evidence" to justify termination of his parental rights, because there was no testimony or evidence of any harm to L.M. at the time he was removed from Mother's custody. He contends State's evidence only established Mother's house was dirty and there was no obvious food, while the only other witness who saw the child testified the child appeared dirty but not malnourished. ¶ 80 The record confirms Father's argument the scant testimony about L.M.'s lethargy and medical issues did not arise until several months after the child had been removed from the parent's care. However, this does not mean there was no evidence of harm or threatened harm, especially considering the undisputed evidence that L.M. was developmentally behind for his age. ¶ 81 Father also contends State's witnesses all confirmed Father was an inmate in the Johnston County Jail when L.M. was removed from Mother's home and there is no testimony Father knew about the conditions of her home or failed to act on the conditions leading to the deprived finding. Taken as a whole, Father's argument questions whether State carried its burden to prove by clear and convincing evidence that Father's acts or omissions caused or contributed to the conditions leading to L.M.'s adjudication. ¶ 82 Our research yields only one Oklahoma case applying this element to similar facts. The Court in In re L.G., 1993 OK CIV APP 162, 864 P.2d 1301, held termination of Mr. Garrion's parental rights was not justified under the circumstances or authorized by 10 Ohio St. 1991 § 1130 (§ 7006-1.1(A)(5)'s predecessor). The Court observed it was undisputed that the child had been removed from the home and custody of the mother due to her neglect and abuse and that Mr. Garrion did not reside there. As pertinent here, the Court found "[t]he only detrimental condition caused by or contributed to by Mr. Garrion that formed the basis of the `deprived adjudication' was domestic violence against the natural mother in the presence of the child." (Emphasis in original.) Id., ¶ 7. Because it was undisputed no further violence between the parents had occurred in the child's presence after the State's intervention, the Court concluded "[T]he correction of this sole detrimental condition was achieved. By the express provisions of 10 O.S.1991 § 1130(A)(3), termination was authorized only in the event Mr. Garrion failed to correct this particular condition and contributing cause of W.G.'s deprived status." (Emphasis added.) ¶ 83 It is undisputed in this record that prior to the first DHS referral, Mother had obtained the 2007 Protective Order against Father and that he was incarcerated for unknown reasons when L.M. was removed from Mother's home. State presented no evidence Father had been living in Mother's home or had visited there any time prior to the adjudication, or that he knew about Mother's past or current mental health issues and the effect of the numerous prescriptions she was taking for physical and mental conditions. Similar to L.G., Father here was not residing with Mother and L.M. at the time he was removed from the home due to Father's domestic violence against Mother. "Domestic violence" 1111 was clearly identified as one of the conditions to be corrected on the treatment plan he signed in October 2007. Unlike in L.G. where the correction of the condition had been achieved, there was another incident of domestic violence in November 2007 between Father and Mother at counseling they were both attending, which was a partial cause for his subsequent three-year incarceration. The jury also heard several caseworkers and Father's counselor testify he had not corrected his anger and domestic abuse issues since his release from jail. ¶ 84 This same evidence defeats Father's remaining argument that the testimony established, even though he did not complete the plan, he made sincere and exhaustive efforts to do so, relying on Matter of J.L., 1978 OK 37, 578 P.2d 349. The Supreme Court in J.L. reversed the termination order where the evidence "as a whole" showed "sincere and extensive efforts to change the conditions leading to the child's adjudication." Id. at ¶ 16. The evidence in this case clearly does not make the same showing. ¶ 85 There is clear and convincing evidence to support the judgment that Father failed to correct the conditions which led to the deprived adjudication. However, the judgment fails to make the required finding under § 7006-1.1(A)(5) that "termination of parental rights is in the best interests of the child." Because the jury was clearly instructed on that element, we presume the jury properly followed the instructions as a whole and its verdict terminating Father's parental rights necessarily embodied that finding. Matter of T.R.W., 1985 OK 99, 722 P.2d 1197, 1203. However, given this "fundamental deficiency," the judgment must be remanded to the trial court, not for a new trial, but with instructions to enter a proper final order correcting the error. Matter of Children M.B., 2010 OK CIV APP 41, ¶ 11, 232 P.3d 927, 931 and Matter of E.G., 2010 OK CIV APP 34, ¶ 11, 231 P.3d 785, 789. Evidentiary and Other Rulings ¶ 86 Father alleges the trial court erred by admitting State's Exhibit No. 7, a copy of the 2007 Protective Order against him and "allowing discussion of the permanent protective order entered in Case No. PO-2010-106" (2010 Protective Order).[33] We find no error with either of the rulings. ¶ 87 Error may not be predicated upon a ruling which admits evidence unless a substantial right of a party is affected and a timely objection appears of record, stating the specific ground of objection if such ground was not apparent from the context. 12 O.S.2011 § 2104(A)(1). When the trial court asked if there were any objections to admissions of State's Exhibits No. 6 or 7, Father responded, "[n]o objection to 6. On 7, subject to our previous arguments." ¶ 88 The trial transcript reveals the "previous arguments" involved the 2010 Protective Order, which is not part of Exhibit No. 7. Only the 2007 Protective Order is marked "Exhibit No. 7," to which there was no specific objection. Without such, Father has failed to preserve for our review any error with the admission of State's Exhibit No. 7.[34]Matter of A.W. and M.W., 2011 OK CIV APP 27, 250 P.3d 343. ¶ 89 The "previous arguments" occurred on the second day of trial, beginning with Father's objection to State's proposed admission of "a certified copy of the 2010 Protective Order," which Father explained to the trial court had been granted by another trial judge under the Protection From Domestic Abuse Act, 22 O.S. § 60 et seq. After arguing that judge lacked jurisdiction over the child due to the pending termination action and the protective order lacked an expiration date as required by statute, Father stated his 1112 objection "would go to the enforceability of the order." ¶ 90 A lengthy discussion of his objections followed, revealing Father had filed a "motion to recall or dismiss" the 2010 Protective Order "as to the child" which motion was still pending with the other judge. The trial court agreed with State that the protective order was "still in effect" and refused "to rule on whether [that protective order] was void or not," explaining Father could either accept State's proffered stipulation or the 2010 Protective Order would be admitted. In lieu of the admission of the certified copy, Father stipulated to State's announcement the 2010 Protective Order "was filed by [Mother] on behalf of herself and [L.M.] on July 12, 2010," and "on July 30, 2010 a final order of protection [was] entered and remains in place at this point in time." After presenting additional witnesses, State moved to admit "Exhibit No. 7" and announced the parties' stipulation regarding the 2010 Protective Order. Father responded as described above, Mother's counsel approved, and the trial court admitted the exhibit and also accepted the parties' stipulation. ¶ 91 On appeal, Father does not contend State's "discussion" of the 2010 Protective Order went beyond the parties' stipulation. Instead, he argues (1) the same objections regarding "enforceability" he raised below and (2) the "discussion" about the 2010 Protective Order was not relevant to State's application to terminate his rights and its "usefulness . . . clearly did not outweigh the prejudicial impact on [his] case." ¶ 92 The trial transcript discloses Father did not object to that order based on irrelevancy or, even if relevant, that its probative value would be outweighed by the danger of unfair prejudice. Consequently, he failed to preserve this argument concerning the 2010 Protective Order. Interest of A.W. and M.W., id. ¶ 93 Father did, however, preserve his "enforceability" argument which the trial court declined to decide. He argues the 2010 Protective Order should not have been admitted because (1) the trial judge lacked jurisdiction since the juvenile court already had custody of the child and (2) the order is contrary to several statutes. ¶ 94 The statutes he relied upon at trial are part of the Protection from Domestic Abuse Act (the Act), specifically 22 O.S. Supp.2009 § 60.4(I)(1) and § 60.4(G)(1).[35] Section 60.4(I)(1) of the Act unambiguously precludes a protective order issued under the Act from affecting "title to real property or purport to grant the parties a divorce or otherwise purport to determine" numerous issues, including visitation and child custody or "any other like relief obtainable under Title 43." Title 43 has no application to the proceedings brought under the OCC. ¶ 95 Father also argues the 2010 Protective Order was filed "without an expiration date" contrary to § 60.4(G). This section mandates that a protective order issued under the Act "shall be for a fixed period not to exceed a period of three (3) years unless extended, modified, vacated or rescinded upon motion by either party." Nothing in the record establishes this deficiency, since Father agreed to the specific oral stipulation, which provides only the date the protective order was issued. He did not make an offer of proof regarding the expiration date, and absent a record showing otherwise, this court presumes the trial court did not err. Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496. ¶ 96 Concerning the trial court's refusal to decide if the protective order was void, § 60.4(G)(3) of the Act provides "[u]pon the filing of a motion by either party to modify, extend, or vacate a protective order, a hearing shall be scheduled and notice given to the parties. At the hearing, the issuing court may take such action as is necessary under the circumstances." (Emphasis added.) Clearly, only the judge who issued the 2010 Protective Order had authority to decide its validity. We find no error with the trial court's acceptance of the parties' stipulation 1113 that the 2010 Protective Order "remains in place." Jury Instructions ¶ 97 It is the trial court's duty to instruct upon the decisive issues of the case as supported by the pleadings and evidence introduced. Matter of S.C., 1992 OK CIV APP 40, ¶ 5, 830 P.2d 200, 202. The tests on review of instructions given or refused are whether there is a probability that the jurors were misled and reached a different conclusion than they would have reached but for the questioned instruction, or whether there was excluded from consideration a proper issue of the case. Id. ¶ 98 Father alleges the trial court erred by rejecting three of his proposed jury instructions, the first two of which are addressed together. Father's proposed instruction No. 16 would have informed the jury that parents should not be held to the same standard of proof as that carried by State. His proposed instruction No. 17 would have informed the jury they were not required to terminate his parental rights if they found he had made sincere and extensive efforts and had shown substantial changes concerning the conditions creating L.M.'s deprived status. ¶ 99 Father's argument fails to consider after State rested and the trial court denied the parents' demurrers, he also rested. By doing so, he voluntarily chose to allow the jury to hear only State's evidence, thereby taking a risk as to whether the jury believed State met its burden of proof by clear and convincing evidence. Had Father testified or presented witnesses and/or evidence about his alleged sincere efforts and substantial changes toward correcting the condition, we would agree both proposed instructions should have been given. However, having previously concluded State proved by clear and convincing evidence that he failed to correct the condition, we find no error with the rejection of Father's proposed instructions. See Matter of M.A., 1992 OK CIV APP 61, ¶ 24, 832 P.2d 437. ¶ 100 Father's proposed instruction No. 4 would have informed the jury they should not terminate the parental rights of a parent unless there were specific standards clearly prescribed for the parent and the parent was given a reasonable opportunity to comply with the prescribed standards. This argument fails to consider the jury was given State's Exhibit No. 2, a copy of the treatment plan detailing the conditions to be corrected and his requirements DHS believed would help him to correct the conditions, which he signed in October 2007. One of the caseworkers testified treatment plans are written at a first grade level while another testified he had explained it to him again when he was released from prison in May 2009. We find no error with the trial court's refusal to give Father's proposed instruction No. 4. Ineffective Assistance of Counsel ¶ 101 To prove ineffective assistance of counsel in termination proceedings, a parent must show the attorney's performance was deficient and prejudiced the parent's defense. Matter of S.S., 2004 OK CIV APP 33, ¶ 11, 90 P.3d 571, 575. "The reviewing court must look at the proceedings as a whole, and `there is a strong presumption that counsel's performance falls within the wide range of professional assistance.'" Id. (quoting In re R.S., 2002 OK CIV APP 90, ¶ 16, 56 P.3d 381, 384). ¶ 102 Father's first argument is premised on his court-appointed counsel's failure to file a discovery request, resulting in State's "surprise" introduction of the 2007 Protective Order and the discussion of the 2010 Protective Order. He claims such failure prevented an opportunity (1) to pursue a motion in limine or other motion to block "the original, wrongfully-entered order" from being presented or discussed at the jury trial, and/or (2) to have the "wrongfully-entered order" vacated. ¶ 103 We first note Father's "wrongfully-entered order" argument, both below and on appeal, was limited to the 2010 Protective Order, about which the record establishes only that his counsel's motion to vacate had been pending with the issuing judge for some unknown time before the termination hearing. Thus, at least to the 2010 Protective Order, the record does not establish any surprise of its existence. However, even if 1114 Father's counsel had made a discovery request, learned State intended to admit it, and thereafter filed a pre-trial in limine or other motion to block its admission, there is no guarantee the trial court would have sustained the motion, considering its potential relevancy to Father's failure to correct the condition of domestic violence against Mother. Moreover, even if the trial court had denied the pre-trial motion, such ruling is preliminary only. Father has not demonstrated his trial attorney's alleged failure to discover prejudiced his defense. ¶ 104 Father's second argument is premised on his court-appointed counsel's failure to object at the trial to the admission of the 2007 Protective Order for lack of relevance. "A trial court has discretion in deciding whether proffered evidence is relevant and, if so, whether it should be admitted." Myers v. Missouri Pacific R. Co., 2002 OK 60, ¶ 36, 52 P.3d 1014, 1033. We assume the trial court's acceptance of the parties' stipulation implies it had decided even the limited discussion of the 2010 Protective Order was relevant to the issue on continued domestic abuse. Therefore, it seems evident the 2007 Protective Order would have been admitted even if Father's trial counsel had made a timely relevancy objection. "While it may have been better practice for [Father's] trial counsel to have raised the objection in controversy, we do not find that failure affected the outcome of the proceedings." In re R.S., 2002 OK CIV APP 90, ¶ 20, 56 P.3d 381, 384. The finding in R.S. clearly applies here. CONCLUSION ¶ 105 The order terminating Mother's parental rights is REVERSED AND REMANDED FOR A NEW TRIAL. This opinion does not affect DHS foster care placement, which is its sole purview and responsibility. As to Father, the order of termination is AFFIRMED, but REMANDED to correct a deficiency in the termination order. BELL, P.J., and MITCHELL, J., concur. NOTES [1] We did not review Petitioner's Exhibit No. 1, included in the exhibit envelope from the January 27-28, 2011 jury trial, because its admission was rejected. [2] After L.M. was removed from Mother's custody in July, his first foster family kept him for two months. The record includes a two-page letter filed October 9, 2007, which Mother, Father and L.M.'s paternal and maternal grandmothers had signed on September 14, 2007, complaining that during their August visit, L.M. had a burn on his wrist, a bruise on his cheek, did not appear to be eating, and had been placed on a "nerve depressant." L.M. was subsequently transferred to a second foster family with whom he resided throughout these proceedings. At trial his foster mother testified L.M. "was a little bit withdrawn" upon his arrival, a month later they weaned him off of the medication and "he came alive." [3] In each report, DHS requested longer periods between reviews to allow her "to gain mental stability," described as "confused thinking and depression . . . verbally and emotionally overwhelmed. . . at times she demonstrates delusional situations." [4] The report stated Mother "continues delusional thinking," was still "on medication for several different disabilities and her mental health," she "truly loves her child but is unable to meet his needs due to her mental health issues," and a new psychological evaluation had identified "sixteen risk factors," e.g., due to "severity of [Mother's] mental health she continues to pose a risk of harm to herself and her child." The report noted Father and several others still lived together, he had only two mental health appointments since his release, he canceled his follow-up appointment "due to not having a ride," and had "not worked any domestic violence, parenting or substance abuse services." [5] State's Exhibits included two letters from Mother's counselor. The May 29, 2009 letter explained she had been working with Mother since April 24, 2009 and from five sessions reported Mother was not addressing the risks outlined in her psychological evaluation, not developing coping skills, and her moods vacillated between depressed and manic states with no awareness of the change. In her opinion "[Mother] has a history of severe mental illness with sustained paranoid ideation, flight of ideas, poor emotional regulation, depression, anxiety, unpredictable behavior, lack of ability to establish appropriate boundaries, and feelings of insecurity. She continues to pose a risk of harm to herself and her child if he should be returned to the home." The September 9, 2009 letter was identical except for her report that Mother "has shown an increased pattern of instability." [6] State admitted a letter from Father's counselor dated June 7, 2010, reporting he had a low level of drug abuse, signs of definite alcoholism, anger issues and high hostility level, limited capacity to communicate and an impaired reasoning ability. The counselor opined Father is not capable of maintaining any kind safe environment or care for a child, is not self-sufficient, and has not been able to abstain from alcohol. [7] Father's appellate court-appointed attorney did not represent him below. [8] "When, as here, legal relief clearly is affordable upon alternative grounds, consideration of constitutional challenges is inappropriate in light of [this Court's] self-erected `prudential bar' of restraint. Constitutional questions should not be reached in advance of strict necessity." Reimers v. State ex rel. Department of Corrections, 2011 OK CIV APP 83, ¶ 29, 257 P.3d 416, 421 (quoting Russell v. Board of County Commissioners of Carter County, Oklahoma, 1997 OK 80, ¶ 32, 952 P.2d 492, 504). [9] As relevant here, the Legislature deleted one of § 7006-1.1(A)'s fifteen grounds for termination and moved the amended fourteen "legal grounds" to a newly added section B. Section 1-4-904(A) now provides "[a] court shall not terminate the rights of a parent to a child unless: (1) the child has been adjudicated to be deprived either prior to or concurrently with a proceeding to terminate parental rights; and (2) termination of parental rights is in the best interest of the child." (Emphasis added.) [10] When moving for directed verdict at the close of State's case in chief, Mother's counsel referred to "the statute which appears in the amended complaint" and "10A, [§] 1-4-904" when arguing there was no evidence "Mother had been diagnosed with a cognitive disorder" and that "actual harm or harm would occur in the near future if her parental rights were not terminated." [11] The transcripts reveal each parent's counsel and State acknowledged receipt of copies of the trial court's "proposed instructions" and after agreeing to some minor changes, no further objections were made. In the presence of the parties, the trial court numbered the instructions, announcing each corresponding Oklahoma Uniform Jury Instruction (OUJI) number, and relevant here, he stated "Number 18 is [OUJI] 3.18." Our research shows "OUJI No. 3.18" is from the "Oklahoma Jury Instructions-Juvenile" approved March 28, 2005, which lists the elements of § 7006-1.1(A)(13). See In re Oklahoma Uniform Jury Instructions for Juvenile Cases, 2005 OK 12, 116 P.3d 119, 153 ("Mental Illness or Mental Deficiency"). New jury instructions based on the 2009 amendments to § 1-4-904 were approved by the OUJI-Juvenile committee March 19, 2010, modified several times with final modification January 21, 2011, and adopted by the Supreme Court April 18, 2011. See http:// www.oscn.net/forms/lawlibrary/Juvenile-2011/ adobe/Chapter03.pdf. Therefore, when the jury trial in this case was held January 27-28, 2011, the available OUJI-juvenile for termination proceedings still had the § 7006-1.1(A) termination grounds. We assume 12 O.S.2011 § 577.2's requirement to use OUJI when applicable in civil cases "giving due consideration to the facts and the prevailing law" would also apply to the special statutory proceeding involved here. [12] 43A O.S. Supp.2005 § 6-201(f) and (g) provides: "Mental illness" shall mean mental disease to such extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of others, or of the community. "Mental deficiency" shall mean mental deficiency as defined by appropriate clinical authorities to such extent that a person so afflicted is incapable of managing himself and his affairs, but shall not include mental illness as defined herein. We note for the record the jury was also given an instruction with these definitions. [13] The same elements were previously found under § 7006-1.1(A)(5), failure to correct the conditions, and § 7006-1.1(A)(12), incarceration of a parent. [14] The current OUJI-Juvenile, Chapter 3, Grounds for TerminationIntroductory Note, explains these two elements have been added to all grounds § 1-4-904(B). [15] Section 7006-1.1(A)(15) authorized termination when the child has been in foster care for 15 out of the most recent 22 months. When the Legislature amended § 7006-1.1, effective May 21, 2009, § 7006-1.1(A)(15)'s text was deleted and replaced with the new text now found in § 1-4-904(B)(14). [16] The Court in T.M. found the facts in Matter of M.C. and N.C. distinguishable. First, § 7006-1.1(A)(15) became effective after the filing of the first termination petition for failure to correct, the trial of which ended in a mistrial, and the father had only two weeks notice before the retrial that the new ground had been added. Second, when the father asserted his right to a jury trial, his children had only been in foster care 12 months and the only reason the requisite 15 months under the new ground was satisfied was due to the court's delay in scheduling his trial. The Court in T.M. found the mother was given reasonable notice and that her children had been in foster care 15 months prior to the motion to terminate so her asserted right to a jury trial did not contribute to satisfaction of the statutory period in foster care. [17] We find no express repeal of § 7006-1.1(A)(15). However, the Legislature's amendment of § 7006-1.1(A) and renumbering it as § 1-4-904(B), as part of its recodification of the OCC, without § 7006-1.1(A)(15) included as a legal ground, may be viewed as an implied repeal by an amendatory act. Hendrick v. Walters, 1993 OK 162, ¶ 13, 865 P.2d 1232, 1240; Lankford v. Menefee, 1914 OK 651, ¶ 3-4, 145 P. 375, 376-377. [18] Only the term "behavioral health" is defined by 10A O.S. Supp.2009 § 1-1-105(6). When used in OCC, the term means "mental health, substance abuse or co-occurring mental health and substance abuse diagnoses, and the continuum of mental health, substance abuse or co-occurring mental health and substance abuse treatment." [19] "Custody" is not specifically defined under the OCC, but 10A O.S.2011 § 1-4-906(A) and its predecessors have long identified the "right to custody" as just one of several, specific "parental rights" in an existing parent-child relationship. See also Matter of Catlett, 1975 OK 161, ¶ 4, 543 P.2d 552, 554. [20] It is clear from the newly-added paragraph and the statutory definition of "behavioral health" that § 1-4-904(B)(13) resulted from the Legislature's merger of § 7006-1.1(A)(13) with § 7006-1.1(A)(14), which allowed termination based on a parent's resisted treatment for their abusive and chronic use of drugs or alcohol. [21] Matter of L.S., 1990 OK CIV APP 94, 805 P.2d 120; see also Matter of C.R.T., 2003 OK CIV APP 29, ¶ 30, 66 P.3d 1004, 1010 (holding "the Legislature singled out the mental health `condition' for special treatment in [§ 7006-1.1(A)(13)]" and "has thereby created a special provision controlling over the more general provision of [10 O.S. Supp.2000 § 7006-1.1(A)(5)]," i.e., failure to correct conditions leading to a deprived adjudication). [22] The Legislature's authority to protect parents with mental illnesses or deficiencies evolves from the same doctrine most generally applied to Oklahoma children, i.e., the doctrine of parens patriae. This doctrine is defined as "the inherent power and authority of a Legislature of a state to provide protection of the person and property of persons non sui juris such as minors, insane and incompetent persons." Matter of Baby Girl L., 2002 OK 9, n. 8, 51 P.3d 544, 562. [23] When a statutory "requirement reflects an important state policy . . . the express recognition of that policy cannot be considered procedural rather than substantive." In re Eden F., 741 A.2d 873, 887 (Conn. 1999) (the Court held the amended statute affected substantive rights of the parties by providing additional statutory protection for any parent contesting a parental rights termination action and placing the burden on the state to take appropriate measures designed to secure reunification of parent and child.) [24] The Court in Adoption of W.C. adopted the analysis of the Court in VanBremen which relied on Ohio's constitutional retroactivity clause and held the revised adoption without consent statute was substantive and did not operate retroactively, because the state's legislative body did not expressly provide for such and it "places a lesser burden on the petitioner who seeks to adopt the child without the consent of the natural parent and conversely places a higher burden on the natural parent who opposes the petition." [25] The Court in Matter of A.W. explained in fn. 5 that § 1-4-904 had gone into effect after the jury trial began but nevertheless considered Art. 5, § 54 and found the changes in the law did not affect the pending proceeding, the "failure to correct" ground upon which the jury based its verdict was available under the superceded and the amended version, and there was "no fundamental error in the district court's instruction of the jury based on the law in effect at the time the trial proceedings began (§ 7006-1.1(A))." [26] Section 7003-5.5(I)(1) provided, "If reasonable efforts are required for the return of the child to the child's home, the court shall allow the parent of the child not less than three (3) months to correct conditions which led to the adjudication of the child as a deprived child prior to terminating the parental rights of the parent." This provision is now found at 10A O.S.2011 § 1-4-707(C)(2). [27] We say "apparently" because Father's 1/10/08 Application has on top of the first page a handwritten note, "D. Mike Haggerty, I already appointed" and underneath it, "Discharged 1/8/08" and "Jail 1/16/08." Similarly, the 5/19/08 Application has only a handwritten note, "Jail 5/20/08" and "Not eligible at this time, case set for review only 5/20/08," and the handwritten note at the top of the 6/09/09 Application says, "Nothing pending 7-9-09." The notes on these Applications are neither signed nor initialed, and the record reflects no minute or order denying the requests. Because State does not dispute Father's claims in his Brief in Chief that the trial court denied the Applications, we treat their admissions as curing a deficient appellate record. House of Realty, Inc. v. City of Midwest City, 2004 OK 97, ¶ 6, 109 P.3d 314, 317. We note for the record all three Applications are listed in the Amended Index as "Not Filed." Father did not file a designation of record, and neither Mother nor State designated the Applications for inclusion, so it is unclear why they are part of the appellate record certified by the Bryan County Court Clerk. However, we may review facts appearing of record which are certified by the clerk of the tribunal below. Id. [28] Rule 2.11(A)(6)(d) provides a trial judge should disqualify if he or she "previously presided as a judge over the matter in another court or in any adjudicatory capacity." [29] The District Judge opined "even assuming the facts of either of [Father's] cases are partly the basis for the termination proceeding in the instant case . . . no reasonable person can suggest that [Judge Powers'] impartiality might reasonably be questioned based on his acceptance of a stipulation to the State's application to revoke suspended sentence and based on his imposition of a sentence pursuant to a negotiated plea agreement." [30] The language limiting the participation of court appointed counsel for a child victim in a criminal case, 21 O.S. Supp.1992 § 846(G)(1), was discussed in Cooper. As noted by the Court in J.D.D., the identical statutory language was later adopted under the OCC as 10 O.S. Supp. 1998 § 7003-3.7 and is now found at 10A O.S. 2011 § 1-4-306(A)(2)(c). [31] Because Father chose not to present any of his own evidence or testimony after State rested, we need not decide here whether the Legislature's 2009 amendment to § 1-4-904(B)(5), now requiring a finding "the parent has failed to correct the condition" changes the long-standing shifting of the burden of evidence or persuasion that originated with pre-1975 versions of 10 O.S. § 1130(c). Section 1130(c), which applied to "a parent who is entitled to custody" . . . [and] "has failed to show that the condition . . . has been corrected," was unchanged until the Legislature's amendment to § 7006-1.1(A)(5). (Emphasis added.) [32] See fn 9 for the two § 1-4-904(A) elements. [33] Father also refers to the 2010 Protective Order as the "permanent protective order." [34] Even if Father's specific objections regarding the 2010 Protective Order could somehow be construed to also apply to the 2007 Protective Order, this court would find no error with its admission. The jury heard considerable testimony about the 2007 Protective Order the first day of trial, without objection by Father, and some of the testimony was elicited by Father's counsel during cross-examination. A party may not complain about admission of evidence over his objection, where other evidence of the same tenor was admitted without objection. In re F.B., 1999 OK CIV APP 96, 990 P.2d 309. [35] The other statutes Father raises for the first time do not support his argument. Title 10A O.S.2011 § 1-4-706(A)(3) simply allows a juvenile court during the pendency of a deprived action to modify any order regarding child support, visitation or legal custody in any other administrative or district court proceeding.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499539/	275 P.3d 567 (2012) Bobby McKINLEY, Appellant, v. STATE of Alaska, Appellee. No. A-10790. Court of Appeals of Alaska. May 4, 2012. Andrew Steiner, Bend, Oregon, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges. MANNHEIMER, Judge. Under AS 12.55.025(c), a sentencing judge must give a defendant credit against their sentence for time spent in custody pending their trial, sentencing, or appeal. In Nygren v. State, 658 P.2d 141 (Alaska App.1983), we interpreted this statute as requiring a court to give a defendant credit for time spent in non-prison residential treatment, if the defendant "is subjected to restrictions approximating those experienced by one who is incarcerated." Id. at 146. We also set forth the criteria that a court should consider when assessing whether a defendant's residence at a facility qualified as "custody" for purposes of AS 12.55.025(c). Ibid. The Nygren line of cases governed this aspect of Alaska law for close to a quartercentury. Then, in 2007, the legislature enacted a new statute, AS 12.55.027, that defines the situations in which defendants are entitled to credit against their sentences for time spent in these non-prison residential settings. The question presented in this appeal is whether this statute should be interpreted in accordance with its wording, or whether the statute should be interpreted more broadly than its wording suggests, so that defendants would continue to receive credit against their sentences under the more liberal rule established in the Nygren line of cases. For the reasons explained here, we conclude that the statute should be interpreted 568 in accordance with its wording, even though the statute may impose a more restrictive rule than is found in the Nygren line of cases. Underlying facts The defendant in this case, Bobby McKinley, was charged with first-degree vehicle theft and second-degree theft. While he was awaiting trial on these charges, as a condition of McKinley's bail, the superior court required him to enter a residential treatment facilitythe Salvation Army's adult rehabilitation program. McKinley entered the Salvation Army program on December 4, 2008, and he stayed there for five months, until he was discharged on May 3, 2009. In April of the following year (2010), McKinley's criminal case was resolved: he pleaded guilty to the vehicle theft charge, and he received a sentence of 60 months' imprisonment with 42 months suspended (i.e., 18 months to serve). On the same day that he received this sentence, McKinley filed a motion asking the superior court to give him 5 months' credit against this sentence for the time he spent in the Salvation Army residential program. Superior Court Judge Jack W. Smith concluded that McKinley's motion was governed by the provisions of AS 12.55.027, and that the question of whether McKinley was entitled to credit against his sentence hinged on whether the Salvation Army treatment program satisfied the requirements set forth in AS 12.55.027(c). During the litigation of this question, the primary issue was whether the Salvation Army program met the requirement set forth in subsection (c)(2) of the statutethat participants in the program "be confined at all times to the grounds of the facility[,] or be in the physical custody of an employee of the facility, except for court appearances, meetings with counsel, and work required by the treatment program and approved in advance by the court". The Salvation Army's director of rehabilitation services, Dean Bundy, submitted a lengthy letter describing the program, and he later supplemented this description with testimony. Based on Mr. Bundy's description of the operation of the program, Judge Smith concluded that McKinley was entitled to only 30 days' credit against his sentence, not 5 months. According to Bundy's letter and testimony, the Salvation Army program has six phases of treatment, each with differing levels of restriction on the activities of the participants. During the first phase of treatment, participants are essentially forbidden from leaving the facility. However, beginning with the second phase, participants are allowed more freedom. In particular, second-phase participants can be granted "therapeutic" passes to attend outside treatment and counseling sessions such as those offered by AA or NA (Narcotics Anonymous). In fact, the Salvation Army requires participants to attend AA / NA community-based sessions, a minimum of twice per week. In addition, beginning with the second phase, participants can receive "buddy" passes that allow them to leave the facility for up to three hours (on weekends, up to six hours) in the company of another, more senior program participant. Beginning with the fourth phase, participants are eligible for overnight family visit passes twice per month. And in the sixth phase, participants are eligible for 24-hour therapeutic sponsor passes or family passes, up to twice per month on alternate weekends. Based on the fact that participants in the Salvation Army program are permitted to leave the facility without staff supervision beginning with the second phase of their treatment, Judge Smith concluded that only the first phase of the Salvation Army's program satisfied the requirements of AS 12.55.027(c)(2). Accordingly, he gave McKinley credit against his sentence for this first phase onlya total of 30 days. Judge Smith noted that the requirements of subsection 027(c)(2) were more restrictive than the Nygren line of cases. Under Nygren, a defendant might receive credit against their sentence even though the defendant's treatment program granted participants unsupervised absencesas long as those absences were of specified duration and for specified purposes. See Nygren v. 569 State, 658 P.2d 141, 146 (Alaska App.1983) (stating that one of the criteria of a qualifying residential program was that "any periods during which residents [are] permitted to leave the facility [must be] expressly limited, both as to time and purpose"). (We applied this rule in Potter v. State, unpublished, Alaska App. Memorandum Opinion 4569 (May 1, 2002), 2002 WL 818059. In Potter, we held that the defendant was entitled to credit against his sentence for time spent at the Cordova Community Residential Center, even though he was permitted various unsupervised absences from the facility. We noted that Potter "could leave the facility only with authorization", and that he "was required to travel directly to and from an approved location." Id. at 2.) Judge Smith also indicated that he believed that AS 12.55.027(c) was so restrictive that it defeated some of the policies it was intended to promote. The judge explained: The Court: [O]ne of the underlying goals of incarceration is rehabilitation, [and] it is essential to foster a system that provides opportunities for drug and alcohol treatment, life skills training, and education. The reality is that the prisons and jails... provide few opportunities for inmates to better themselves and their future quality of life. [On the other hand], programs such as [the Salvation Army program], Akeela House, etc., are designed to provide treatment and support for every step of the rehabilitation process. [Because AS 12.55.027(c) forces] defendants to choose between [staying in] prison and receiving credit for time served, and going to a treatment program where they will not receive credit, [this] creates a disincentive for seeking necessary treatment. ... [A]lthough [the Salvation Army program allows] opportunities for unsupervised leave, it also imposes rigid restrictions on participants: hourly bed checks, significant time confined to the facility, daily drug tests, hours of required classes[.] [It also offers] programs including, but not limited to, drug and alcohol treatment, GED, fatherhood [training], anger management, and spirituality training. Nevertheless, Judge Smith concluded that he was required to apply the statute as written, and that McKinley was therefore not entitled to credit against his sentence for the second and subsequent phases of his residence at the Salvation Army programbecause, during those phases of his treatment, McKinley was granted unsupervised absences from the facility for various purposes. Accordingly, Judge Smith granted McKinley credit against his sentence for the 30 days he spent in the first phase of the Salvation Army's program, but the judge denied McKinley credit for the second and subsequent phases (the remaining 121 days). The legislative history of AS 12.55.027 AS 12.55.027 began life as section 6 of the House Judiciary Committee's Substitute for House Bill 90 (25th Legislature). Although this bill was sponsored by Representative Ralph Samuels, portions of the bill were drafted by the Department of Law.[1] Rep. Samuels introduced a representative of the Department, Assistant Attorney General Anne Carpeneti, who proceeded to describe the proposed bill section by section.[2] In her remarks to the Committee, Ms. Carpeneti explained that section 6 of the billthe portion that ultimately became AS 12.55.027"would enact standards that the courts must follow [when] deciding ... whether to give credit against a term of imprisonment for time spent in a treatment facility".[3] According to Carpeneti, the standards proposed in section 6 of the bill "follow[ed] decisional law to a great degree".[4] Carpeneti explained that the Department of Law's rationale for proposing this statute was to make sure that "judges throughout the state [were] reasonably consistent when 570 granting credit against a term of imprisonment".[5] According to Carpeneti, the standards set forth in section 6 "pretty much mirror[ed] what the courts have [already] set out in Nygren".[6] However, under the version of the bill that the Department of Law was proposing, a defendant would not receive credit against their sentence for participation in a residential treatment program unless the defendant was "confined at all times to the grounds of the facility or [was] in the physical custody of an employee of the facility".[7] As we explain later in this opinion, this provision was more restrictive than the Nygren line of cases. When Committee Chair Jay Ramras suggested that the bill's criteria for treatment programs were "too specific", given the treatment programs currently available, Ms. Carpeneti responded that the proposed bill would not limit a sentencing court's authority to "fashion the [defendant's] sentence based on a particular program".[8] This response was technically true, but not responsive to Representative Ramras's concerns. The proposed bill did not deal with a judge's sentencing authority. Rather, it dealt with the question of whether defendants would receive credit against their sentences for the time they spent at a residential treatment program to which they were committed as a condition of release. When Rep. Ramras continued to express reservations about the content of the proposal, Carpeneti assured him that the proposed statute "merely reflect[ed] past court rulings".[9] Steve Christopher, chief operations manager of Alaska Monitoring Services, suggested that the wording of subsection (c)(2) would be counter-productive, because it would require the employees of a treatment program to personally escort defendants whenever they left the facility for any purpose.[10] Mr. Christopher noted that many treatment programs currently allowed defendants to work in the community without an escort.[11] Rep. Samuels responded that, according to the statistics he had seen, treatment programs made no difference to recidivism ratesand he observed that "[people] who are in jail are not committing crimes while [they are] there".[12] Rep. Ramras then asked Christopher if the language of subsection (c)(2)that is, the requirement that program participants never leave the grounds of the facility unless they were personally supervised by a staff memberwould affect the operation of the halfway house in Fairbanks. Christopher said that he did not know, but he pointed out that the halfway house currently did not have enough staff to escort all of its clients whenever they went out into the community, as would be required by subsection (c)(2).[13] Quinlan Steiner, the Director of the Public Defender Agency, added that subsection (c)(2)the requirement that a defendant be in the physical custody of a staff member whenever the defendant was not within the grounds of the facilitymight make it unreasonably difficult for a defendant to visit their attorney or attend court hearings, due to a lack of sufficient staff.[14] Joshua Fink, the Director of the Office of Public Advocacy, added that subsection (c)(2) would create a similar difficulty for participants in the Salvation Army's treatment program, because that program required participants to have a job.[15] He urged the Committee to contact the various treatment providers to find out what types of out-of-facility activities were required by their treatment programs.[16] 571 Three days later, during the Judiciary Committee's continued hearing on HB 90, Rep. Samuels offered an amendment to subsection (c)(2) which made exceptions to the rule that defendants had to be personally supervised by staff whenever they left the grounds of the facility. Under this amendment, defendants would have to be "confined at all times to the grounds of the facility or be in the physical custody of an employee of the facility, except for court appearances or meetings with counsel".[17] This amendment was approved without objection.[18] Apparently prompted by this amendment to subsection (c)(2), Rep. Ramras offered an additional amendment that would allow a treatment program to qualify for later credit against a defendant's sentence even if the defendant was allowed to leave the facility grounds unsupervised, as long as the absence was for the purpose of "work or traveling to or from work".[19] Rep. Ramras explained that his amendment was intended to cover defendants who participated in treatment programs that required their participants to work as part of the treatment.[20] Ms. Carpeneti spoke against this proposed amendment. She told the Committee that the Department of Law's position was that Nygren credit (i.e., credit against a defendant's sentence of imprisonment) was supposed to be awarded only for treatment programs that were similar to incarceration and that any treatment program which allowed participants to leave the facility, unsupervised, in order to work was not "similar to incarceration". Thus, Carpeneti argued, defendants should not receive credit against their sentences for time spent at a treatment program if that program allowed them to leave the facility grounds, unsupervised, to engage in employment.[21] Although Carpeneti's remarks may have accurately reflected the Department of Law's position on this issue, Carpeneti failed to explain that the Department's position was at odds with the existing Nygren case law. In State v. Fortuny, 42 P.3d 1147, 1150-52 (Alaska App.2002), this Court rejected the State's argument that a defendant should be deemed ineligible for Nygren credit because his residential treatment program allowed him to be absent from the facility, sometimes for up to fifty hours a week, to engage in employment. In Fortuny, we noted that the clinical staff at the defendant's treatment program "view[ed] work release as part of the treatment regimen", id. at 1151, and we held that the defendant "should receive full credit for the days he resided at [the residential treatment program] under court order, even [though] he was authorized to spend many hours away from the treatment facility on work release." Id. at 1152. After Carpeneti spoke against giving Nygren credit to defendants whose treatment programs allowed them to leave the facility to engage in employment, Representative Max Gruenberg offered a compromise amendment. Under Rep. Gruenberg's proposal, a treatment program would qualify for credit against a defendant's sentence, even if defendants were allowed unsupervised absences from the facility grounds for employment purposes, but only if the defendant's work "[was] part of the treatment program and [was] specifically approved by the court."[22] Rep. Ramras then repeated his support for this concept. He told the Committee that he knew of a situation where a young offender attended and successfully completed a treatment program, and he wondered what the young offender would have done if the treatment program had contained a work componentspecifically, what the young offender would have done if she had known that, by complying with the work component of the program, she would thereby forfeit the credit against her sentence. Rep. Ramras urged the Committee not to "restrict [treatment 572 alternatives] that will help people become productive members of society".[23] Shortly afterwards, Representative Lindsey Holmes told the Committee that Mr. Steiner had handed her proposed wording for a revised subsection (c)(2).[24] Under this proposal, (c)(2) would state that defendants participating in qualifying treatment programs must be confined at all times to the grounds of the facility or be in the physical custody of an employee of the facility, except for court appearances, meetings with counsel, and for work as required by the treatment program[.][25] Rep. Samuels spoke in opposition to this proposal. Echoing Carpeneti's earlier comments, Rep. Samuels argued that if a person was able to work off-site while attending a treatment program, this "[was] not like being in jail", and people in this situation should not receive credit against their sentence.[26] Rep. Gruenberg then renewed his proposal for the compromise language, "unless the person is at work or traveling to or from work as required by the treatment program and as specifically approved by the court".[27] There was no objection to Rep. Gruenberg's proposal, and it was adopted.[28] A few minutes later, House Bill 90 (as just amended) was passed out of the Judiciary Committee.[29] Section 6 of this billthe provision that engendered so much debatewas ultimately enacted as SLA 2007, chapter 24, § 20, and it became AS 12.55.027. The final version of AS 12.55.027(c)(2) contains the language that was hammered out in the House Judiciary Committee: (c) To qualify for credit against a sentence of imprisonment for time spent in a treatment program, the treatment program... must impose ... restrictions on a person's liberty [which include] the requirement that a participant in the program ... (2) must be confined at all times to the grounds of the facility[,] or be in the physical custody of an employee of the facility, except for court appearances, meetings with counsel, and work required by the treatment program and approved in advance by the court[.] Now that we have described this legislative history, we turn to McKinley's argument on appeal. McKinley's argument on appeal Although McKinley asked Judge Smith to give him credit against his sentence for the 151 days he spent in the Salvation Army's residential treatment program, Judge Smith gave McKinley only 30 days' creditthe 30 days that McKinley spent in phase one of the Salvation Army program. As we have explained, Judge Smith's decision was based on the wording of AS 12.55.027(c)(2). Under this subsection of the statute, a treatment program does not qualify for sentencing credit if the program allows unsupervised absences from the facility for any purpose except the three purposes specified: "court appearances, meetings with counsel, and work required by the treatment program and approved in advance by the court". McKinley argues that, despite its wording, subsection (c)(2) was intended to allow other types of unsupervised absences. McKinley points out that Assistant Attorney General Carpeneti repeatedly told the House Judiciary Committee that the statute was intended to codify the Nygren line of casesthat the standards set forth in the statute "pretty much mirror[ed] what the courts have [already] set out in Nygren", and that the statute "merely reflect[ed] past court rulings". 573 As we explained earlier, under the Nygren line of cases, a treatment program will qualify for Nygren credit even if program residents are allowed to leave the facility without immediate personal supervision, so long as "[the] periods during which residents [are] permitted to leave the facility are expressly limited, both as to time and purpose". Nygren, 658 P.2d at 146; see also Fortuny, 42 P.3d at 1151-52. Based on this, McKinley suggests that we should interpret subsection (c)(2), not according to its wording, but according to the Nygren rule. But even if the Department of Law was mistaken in telling the House Judiciary Committee that their proposed statute was simply a codification of the Nygren rule, this does not mean that we can disregard the wording of the statute and continue to apply the Nygren rule. The true question here is whether that the Department of Law's description of the proposed statute misled the Committee as to the meaning of the language contained in subsection (c)(2) of the statute. And the record of the proceedings in front of the Judiciary Committeein particular, the debate over the precise wording of subsection (c)(2)demonstrates that the Committee members fully understood the restrictions they were placing on the types of treatment programs that would qualify for sentencing credit. As we have explained, the Department of Law's original proposal was that no unsupervised absences would be allowedand everyone understood the provision to mean exactly that. Various members of the Judiciary Committee, as well as various people testifying in front of the Committee, criticized this approach on the ground that (1) there were valid reasons for allowing program participants to leave the grounds of the treatment facility, and (2) treatment programs simply did not have sufficient numbers of staff to satisfy the requirement that every off-facility activity be personally supervised by a staff member. To answer these concerns, the Committee first amended the Department of Law's wording to allow unsupervised absences for court hearings and meetings with attorneys. Then some Committee members argued in favor of expanding the language again, this time to include absences for off-site work, because many treatment programs had work components. The Committee finally reached a compromise solution on this issueallowing unsupervised absences for work, but only if the treatment program required the work, and only if the sentencing court approved it. In other words, even though the final version of subsection (c)(2) is more restrictive than the Nygren rule it superseded, and even though the Committee members might not have understood that they were changing the law, it is clear that the Committee members understood the meaning of subsection (c)(2)specifically, that unsupervised absences from treatment programs would be strictly limited to the three purposes specified in the statute. As Judge Smith noted when he issued his decision, there may be good reasons to allow other types of unsupervised absences from treatment programs. As the judge observed, one of the underlying goals of penal administration is the rehabilitation of offenders and, to achieve this, goal, it would doubtless be better to foster opportunities for drug and alcohol treatment, education, and training in life skills. It is unrealistic to expect that every treatment program will have the funding and the trained personnel to offer all of these opportunities to its residents. And it may be unrealistic to expect that every treatment program will be able to hire a sufficient number of staff to personally supervise every resident who wishes to take advantage of off-site opportunities for treatment, education, and training. But whether to expand the scope of allowed unsupervised absences under AS 12.55.027(c)(2) is a matter of policyand, therefore, the decision is up to the legislature, not the judiciary. It was Judge Smith's duty to apply the statute as the legislature intended. And the legislative history of AS 12.55.027 makes it clear that the rule intended by the legislature is not as broad as the rule contained in the Nygren line of cases. 574 Conclusion The judgement of the superior court is AFFIRMED. NOTES [1] Minutes of the House Judiciary Committee for April 10, 2007 @ 1:13:33. [2] Minutes, House Judiciary Committee, April 10, 2007 @ 1:11:26. [3] Id. @ 1:26:34. [4] Ibid. [5] Ibid. [6] Ibid. [7] Ibid. [8] Ibid. [9] Id. @ 1:33:11. [10] Id. @ 2:17:46. [11] Ibid. [12] Ibid. [13] Ibid. [14] Id. @ 2:41:36. [15] Id. @ 2:57:24. [16] Ibid. [17] Minutes of the House Judiciary Committee for April 13, 2007 @ 2:19:00. [18] Ibid. [19] Id. @ 2:23:08. [20] Ibid. [21] Ibid. [22] Id. @ 2:27:28. [23] Ibid. [24] Id. @ 2:30:39. [25] Ibid. [26] Ibid. [27] Ibid. [28] Ibid. [29] Id. @ 2:37:56.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499549/	120 F. Supp. 2d 672 (1999) James COWAN, et. al. v. TREETOP ENTERPRISES, INC. et al., No. 3:98-0623. United States District Court, M.D. Tennessee. Nashville Division. August 27, 1999. 673 674 Trevor Wayne Howell, R. Scott Jackson, Jr., Howell & Jackson, PLLC, Nashville, TN, for plaintiffs. Hugh C. Howser, Jr., Charles Eric Stevens, Kara E. Shea, Miller & Martin, LLP, Nashville, TN, for defendants. MEMORANDUM HIGGINS, District Judge. The plaintiffs, James Cowan, Andrew McMahan, Timothy Harper and Patricia Morton, filed this action under the Fair Labor Standards Act, 29 U.S.C. § 216(b), on behalf of themselves and all others similarly situated,[1] against the defendants: Treetop Enterprises, Inc., their current or former employer; and James L. Shaub, II, and William (Billy) E. Ezell, III, officers and stockholders of Treetop.[2] In essence, the plaintiffs allege that as current or former unit managers at Treetop's restaurants, the defendants have deemed them bona fide executive employees who are exempt from FLSA's overtime pay requirements. The plaintiffs assert that in actuality, the primary duty of the unit manager is being a grill operator or cook on the first shift and that in fact, unit managers are regular employees and entitled to overtime for the substantial number of hours worked each week beyond FLSA's 40-hour limit without overtime compensation. Pending before the Court are the following motions filed January 11, 1999:(1) the plaintiffs' motion for partial summary judgment (Docket Entry No. 168); (2) the defendants' motion for summary judgment (Docket Entry No. 174); and (3) the defendant Treetop's motion for oral argument (Docket Entry No. 178); as well as the plaintiffs' motion (filed February 1, 1999; Docket Entry No. 180) to strike the defendants' expert report and the defendants' motion (filed March 12, 1999; Docket Entry No. 201) to supplement the record. For the reasons stated below, the plaintiffs' motion to strike shall be granted. 675 The defendants' motion to supplement the record shall granted. The defendant Treetop's motion for oral argument shall be denied as moot. The plaintiffs' motion for partial summary judgment and the defendants' motion for summary judgment shall be granted in part and denied in part. I. Under a franchise agreement with Waffle House, Inc., Treetop owns and operates 103 Waffle House restaurants, some of which are in Tennessee, Alabama, Mississippi and Kentucky. Each restaurant unit is a separate facility of 1,750 square feet and seats approximately 33 to 46 customers. Plaintiffs' response (filed February 1, 1999; Docket Entry No. 184) to defendants' statement of undisputed facts, ¶¶ 6-8. The restaurants have three shifts: 7:00 a.m. to 2:00 p.m., 2:00 p.m. to 9:00 p.m. and 9:00 p.m. to 7:00 a.m.; but the first shift is the busiest and most profitable and yields 50 percent of all sales in the restaurants. Affidavit of William E. Ezell, III (filed January 11, 1999; Docket Entry No. 175) ¶ 12.[3] Under its organizational structure, Treetop assigns a unit manager to each restaurant. Each unit manager is supported by a district relief manager who substitutes for the unit manager on the unit manager's days off. Id., ¶ 10. The parties agree that the duties and responsibilities of unit managers and district relief managers are identical. Plaintiffs' response (Docket Entry No. 184) ¶ 9. The unit managers report directly to a district manager who usually has responsibility for three restaurant units in a defined geographical area. Treetop currently has 30 district managers who supervise unit managers and workers in the restaurants. Ezell affidavit (Docket Entry No. 175) ¶ 10. A district manager reports to a division manager who has responsibility for nine restaurants generally in three districts. Treetop currently has twelve division managers. Plaintiffs' response (Docket Entry No. 184) ¶ 13, 14. A division manager, in turn, reports to a regional manager, who generally has responsibility for 25 to 30 restaurants in a defined geographical area. Plaintiffs' response (Docket Entry No. 184) ¶ 15. However, currently Treetop has only one regional manager who is responsible for 15 restaurants, and the remaining restaurants do not have regional managers. Plaintiffs' notice (Docket Entry No. 173), James Shaub deposition at 82-83; plaintiffs' notice (Docket Entry No. 172), Deposition Exhibit 54. The regional managers report to area managers who report directly to the president and chief operating officer of Treetop. Plaintiffs' response (Docket Entry No. 184) ¶ 16. At some point in their employment with Treetop, the plaintiffs have worked or are currently working as unit managers and/or district relief managers. Id., ¶ 3. Treetop has classified its unit managers and district relief managers as exempt "executives" under the FLSA. Plaintiffs' response (Docket Entry No. 184) ¶ 2. Each restaurant is staffed by 15 to 20 hourly employees who generally serve in two distinct categories, grill operators ("cooks") and sales persons ("waitresses"). Id., ¶ 18. In theory, Treetop considers its unit managers to be responsible for "organizing all resources necessary in servicing the customer and seeing that service actually happens as contemplated. The key ingredient to service is personnel." Ezell affidavit (Docket Entry No. 175) ¶ 24. The unit manager's job description in Waffle House Way, an operational manual prepared and distributed to franchises by Waffle House, reflects that the unit manager's job includes staffing as does the 676 district manager's job. Plaintiffs' notice (Docket Entry No. 172), Deposition Exhibit 99. Yet in practice, staffing is the district manager's job. The three main components of the position of district manager is sales, profit and people. Providing proper staffing plays a major role in sales and profit. Plaintiffs' notice (Docket Entry No. 173), Donnie Bean deposition at 144-150. As to their individual restaurant activities, because the first shift is the busiest, the unit manager is usually the grill operator or cook for that shift. Plaintiffs' notice (Docket Entry No. 173), Jeanie Dixon deposition at 19. In fact, Treetop's "Production Training Unit" manual for unit manager trainees states The primary objective at the Production Training Unit is to become a proficient grill operator. A second objective is to gain exposure to the daily management duties and responsibilities.... Plaintiffs' notice (Docket Entry No. 172), Deposition Exhibit 117 at 2 (emphasis added). Unit managers also wait on tables for absent waitresses.[4] Plaintiffs' notice (Docket Entry No. 173), Dixon deposition at 37. For other shifts, if an employee is absent, until a replacement employee arrives, the unit manager performs the functions of the absent employee's position. Plaintiffs' response (Docket Entry No. 184) ¶ 27. A "very common" practice at Treetop restaurants is for hourly employees, who are cooks or grill operators on other shifts, to fill in for and perform the jobs of the unit manager when a unit manager is sick and the designated district relief manager is unavailable to cook. Plaintiffs' notice (Docket Entry No. 173), Bean deposition at 211-12, Timothy Harper deposition at 144-45. The defendants do not maintain time records for unit managers as to scheduling time or the total hours these managers are at work. There is not any periodic survey or analysis of the amounts or percentages of time spent by unit managers on particular tasks. Defendants' motion (Docket Entry No. 174) for summary judgment, Exhibit I, defendants' answers to plaintiffs' first set of interrogatories, ¶¶ 1, 2 & 9. The only time analysis of the unit managers' actual activities on a weekly basis was provided by the plaintiffs who have worked in 31 different restaurants in 13 different cities/towns, and three different states. Plaintiffs' notice (Docket Entry No. 174), Exhibits D-G. It is undisputed that all of these affiants have performed the multiple employee tasks at the Treetop restaurants at issue, including waiting on tables. Defendants' response (Docket Entry No. 188) ¶ 128. Based on the time analyses performed by the unit managers who submitted affidavits, the average number of hours they worked per week while employed by Treetop ranged from 87.32 to 90.76 hours. Some unit managers sometimes worked "triple shifts," or 24 hours straight in the restaurants and sometimes slept in the restaurants. Affidavit of Domingo Meza (filed August 17, 1999; Docket Entry No. 41) ¶¶ 38-39; see also, affidavit of Marc Cooper (Docket Entry No. 42) ¶¶ 37, 43 and affidavit of Robert Parsons (Docket Entry No. 43) ¶ 36. Aside from total hours worked, several plaintiffs have filed affidavits estimating the percentages of time performing their different functions as unit managers. The range is from 83 percent to 93 percent of their time being involved in cooking, food preparation, washing dishes, waiting on tables, unloading trucks, pulling out stock and delivering money to the bank. Defendants' 677 motion (Docket Entry No. 174) for summary judgment, Exhibit G, Riddle affidavit, ¶¶ 21, 21, 32-36; Exhibit E, McMahan affidavit, ¶¶ 33-37 and affidavit of Ronnie T.J. Richards (Docket Entry No. 45), ¶¶ 33-37. Almost 100 percent of the unit manager's time is spent as a cook on the first shift. Of the total amount of functions, considering work on other shifts, cooking time for a workweek varies, ranging from approximately 36.02 percent to 71.34 percent. Mr. Jay Ezell, Treetop's vice president of operations, found from his review of nine district relief managers, that on the average they spend 49 percent of their time as grill operators. He also found that one manager spent 75 percent of his time as a grill operator. See plaintiffs' notice (Docket Entry No. 172), Deposition Exhibits 64 and 69. One of the unit managers who is not a plaintiff in this lawsuit testified that the unit manager is cooking orders almost constantly during the first shift. Plaintiffs' notice (Docket Entry No. 173), Earl Barbour deposition at 13-16. Donnie Bean, who has worked for Treetop as a division manager, unit manager and district manager, describes food preparation as a unit manager's primary function because when a decision on a promotion to unit manager arises, the critical question is, "Can she [or he] cook that volume?" Plaintiffs' notice (Docket Entry No. 173), Bean deposition at 8, 13, 14, 206-07. Additionally, the grill operator during the other two shifts is the "shift manager," who also fills in for the unit manager or the district relief manager when neither are available. In contrast, as to management duties, i.e., staff changing, scheduling, interviewing, hiring, training, and terminating employees, time expended by unit managers ranges from approximately 3.55 percent to 10.07 percent.[5] Defendants' motion (Docket Entry No. 174) for summary judgment, Exhibit D, Cowan affidavit, ¶ 33-35; Exhibit E, McMahan affidavit, ¶ 35-37; Exhibit F, Harper affidavit, ¶ 33-35 and Exhibit G, Riddle affidavit, ¶ 36; Meza affidavit (Docket Entry No. 41) ¶ 34-37; Cooper affidavit (Docket Entry No. 42) ¶¶ 33-36; Parsons affidavit (Docket Entry No. 43) ¶ 32-35; Richards affidavit (Docket Entry No. 45) ¶¶ 34-37. The unit managers do some recruiting and interviewing of applicants, hiring, training, disciplining, firing and managing of hourly employees and have the authority to recommend advancement or promotion. Defendants' motion (Docket Entry No. 174) for summary judgment, Exhibit G, Riddle affidavit, ¶ 30; Ezell affidavit (Docket Entry No. 175) ¶¶ 25-28; plaintiffs' response (Docket Entry No. 184) ¶ 22. Yet, in practice, a unit manager spends little time on such matters, and other employees perform the unit manager's managerial duties. The unit manager normally does not monitor waitresses in performing their jobs on the first shift, and other hourly employees do not require much supervision.[6] Defendants' motion (Docket Entry No. 174) for summary judgment, Exhibit G, Riddle affidavit, ¶¶ 30, 38-40; plaintiffs' notice (Docket Entry No. 173), Patricia Morton deposition at 56-57, 132-133. On the first shift, the unit manager is at the grill cooking with his or her back to the restaurant. Plaintiffs' notice (Docket Entry No. 173) Morton deposition at 134-136, 291-294 and Jamie Cantrell deposition at 90; see also, defendants' motion (Docket Entry No. 174) for summary judgment, 678 Exhibit G, Riddle affidavit, ¶ 40 and Exhibit D, Cowan affidavit, ¶ 39.[7] The unit manager also records sales figures, reports the amounts to the home office, maintains time and payroll information, deposits sales receipts after the first shift and changes the cash drawers at shift change. See defendants' motion (Docket Entry No. 174) for summary judgment, Exhibit G, Riddle affidavit, ¶¶ 12, 20, 21 and 23; Howser affidavit (Docket Entry No. 202), Exhibit A. Yet, available hourly employees are also designated as "shift managers" to perform these duties. Plaintiffs' notice (Docket Entry No. 173), Nicholson deposition at 124-125, 128-129; Barbour deposition at 19-21; Ewell deposition at 40-41. The proof reflects as to employee management that the district managers are actually responsible for directing co-employees. Treetop district managers do not have offices, and they spend their time each week in the three restaurants in their districts. See Plaintiffs' notice (Docket Entry No. 173), Paul Nicholson deposition at 129-130, Dixon deposition at 5-7, Barbour deposition at 56-57 and Kurtiss Ewell deposition at 56-57. The district managers are also responsible for sales and profits in the restaurants in their district. Plaintiffs' notice (Docket Entry No. 172), Deposition Exhibit 99. Mr. Bean, a former manager at all three levels, stated in his deposition that even "simple decisions" concerning the restaurants are made by the district manager, not the unit manager. Plaintiffs' notice (Docket Entry No. 173), Bean deposition at 36. The district manager performs many of the duties formally assigned to the unit manager. A district manager recruits and hires employees and maintains written records (called "Recruiting Tracking Charts") of their recruitment efforts. Id., Bean deposition, at 37, 61-62, 73-74, 76, 102, 144-145, 150, 164-166 and Cantrell deposition at 20-21; plaintiffs' notice (Docket Entry No. 172), Deposition Exhibits 99 and 104. The district manager is also responsible for finding replacements for hourly employees who fail to appear for work. Plaintiffs' notice (Docket Entry No. 173), Bean deposition at 43, 57-58, 85-86; McMahan deposition at 81-82, 94-95. Although district managers also train employees at the restaurants, hourly "waitress trainers" or "unit trainers" are utilized to train hourly waitresses/servers.[8]Id., (Bean deposition at 144-150), Teresa Berner deposition at 53; plaintiffs' notice (Docket Entry No. 172), Deposition Exhibit 99. The district manager must approve and sometimes withholds approval of employees recommended for hiring by the unit manager. Any "rehires" of ex-Treetop employees must be approved by the district manager. Plaintiffs' notice (Docket Entry No. 173), Bean deposition at 153-158, 37, and 101-102 and Nicholson deposition at 57-58; plaintiffs' notice (Docket Entry No. 172), (Deposition Exhibits 100 and 101). The district manager also approves the unit manager's decisions to terminate hourly employees, and any terminations without such approval are reversed. 679 Id., Cowan deposition at 68, 73, 138; Morton deposition at 89, 90, 143, 319, 320; Harper deposition at 64, 80, 89-90, 92, 97, 98, 100, 108, 112-113; Ewell deposition at 55; Nicholson deposition at 59, 60, 62; McMahan deposition at 65-67, 75. During his visits to the restaurants in his district, the district manager corrects any improper work in the restaurants. Id., Nicholson deposition at 129-130; Dixon deposition at 5-7; Barbour deposition at 56-57; Ewell deposition at 56. The district manager periodically assigns the unit manager and the hourly employees a list of cleaning duties before their shift ends. Id., Nicholson deposition at 116-117. After the first shift, a district manager does the stock pull from inventory. Id., Dixon deposition at 20; see also plaintiffs' notice (filed January 11, 1999; Docket Entry No. 173) of filing deposition excerpts, Donnie Bean deposition at 40-41. District managers approve any staffing schedules. Id., Bean deposition at 41, 49, 52, 56, 61-62, 145, 150; Cantrell deposition at 20, 21; Harper deposition at 69, 73 and plaintiffs' notice (Docket Entry No. 172), Deposition Exhibit 84. Some district managers rearrange shifts of hourly employees in restaurants. Plaintiffs' notice (Docket Entry No. 173), Bean deposition at 172. District managers schedule all in-restaurant meetings with hourly employees, sometimes without the unit manager; and division and district managers meet weekly concerning the restaurants without the unit managers. Plaintiffs' notice (Docket Entry No. 173), Bean deposition at 26, 52-53; Harper deposition at 92. District managers also hear employee grievances at the restaurants Id., Morton deposition at 260; Nicholson deposition at 88. The district manager investigates shift-thefts at the restaurants. Id., Bean deposition at 68; McMahan deposition at 106-107; Morton deposition at 143. A memorandum, dated March 23, 1998, from a Treetop representative directs district and division managers to "physically direct traffic during the shift change" in the restaurant and to take note of employees on the first shift who "lay out or are late" and "put them on a shift where they can be on time and make it to work." Plaintiffs' notice (Docket Entry No. 172), Deposition Exhibit 107. Gene Ingram, a vice president of operations and area manager at Treetop who is responsible for 36 restaurants, described some of the restaurant responsibilities and active supervisory involvement of the district managers in a handwritten note, that reads in pertinent part, as follows: Trainingdistrict mgrs. are in charge of training all shifts. Meet each employee by name, work all shifts. Observe the shift. You set standardsuniforms, cost control, greeting, everything they do. . . . . . Staffing is part of your pay! . . . . . Dorecruit weekly, show concern, go to unit and roll up sleeves and go to work. Stay out of back room. Most problems [arise] out front. . . . . . District [Manager] job!! (1) Sales (2) Profit (3) People ... Staff them and they will come. Staffing is the job of the District [Manager]. Plaintiffs' notice (Docket Entry No. 172), Deposition Exhibit 99, 1,2 and 3 (emphasis in original in part and added in part). In a memorandum of May 28, 1998, the defendant, James Shaub, described in detail a four-step system by which the district manager, division manager, and area manager are to plan the number of employees who are to be scheduled in each restaurant during each week, anticipate increased sales on weekends and special events and make sure that the weekly schedule posted in the restaurants complies with the scientific staffing guidelines. Also, district managers are to correct any errors, call the unit managers in 680 the restaurants within 30 minutes after each shift begins to determine whether the restaurant is staffed with employees in accordance with the scientific staffing guidelines, and take steps to evaluate and correct any deficiencies in staffing in the restaurants. Plaintiffs' notice (Docket Entry No. 172), Deposition Exhibit 84. On its "People Quota Sheet," Treetop clearly states that if a restaurant becomes short-staffed, the district manager bears the actual responsibility for taking the necessary steps to increase the number of hourly employees: 1. The District Manager is responsible for bringing the unit "in bounds." 2. Using this form, the District Manager will determine exactly how many salespeople and cooks the unit is short. The District Manger should then call the Division Manager by Thursday with these numbers. 3. District Manager will organize a Stop & Hire campaign conducted daily until the unit is "in bounds." Id. at Deposition Exhibit 86 (emphasis added). In theory, unit managers are to order "food from the company commissary and local vendors once or twice a week." Ezell affidavit (Docket Entry No. 175) ¶ 29. In fact, the unit manager pulls food items from the cooler/commissary to maintain the stock at certain levels. Defendants' motion (Docket Entry No. 174), Exhibit G, Riddle affidavit, ¶ 20. The unit manager has the authority to refuse unsatisfactory food orders from vendors. Plaintiffs' response (Docket Entry No. 184) to defendants' statement of undisputed facts, ¶ 30. Yet, it is undisputed for the purpose of ruling on defendants' motion for summary judgment that the order for supplies is actually determined by the district manager. Plaintiffs' notice (Docket Entry No. 173), Riddle deposition at 132-133, 155; Bean deposition at 49, 52.[9] Although the unit manager is responsible for insuring that the environment both inside and outside the restaurant, is safe, clean, appealing and inviting, Ezell affidavit (Docket Entry No. 175) ¶ 23, the district manager shares in the efforts to ensure cleanliness in the restaurant. (Docket Entry No. 173), Nicholson deposition at 116, 117; Dixon deposition at 6-7; Cantrell deposition at 25-26. The defendants claim that unit managers are responsible for handling customer complaints and responding to calls at home during the second and third shifts. Defendants' statement (filed January 11, 1999; Docket Entry No. 177) of undisputed facts ¶¶ 39-40. Although the plaintiffs agree that unit managers do receive calls at home about problems at their unit, they claim that waitresses handle many of the customer complaints and that the unit manager's involvement is infrequent. Plaintiffs' response (Docket Entry No. 184) ¶¶ 39 and 40. District managers instruct unit managers to report any "serious matters" to them. Plaintiffs' notice (Docket Entry No. 173), Morton deposition at 260. For legal problems, the unit manager has access to a book known as the Waffle House Way that contains a "legal section" which includes "a general list of legal, employment, and labor issues available for the unit manager to review in the event a particular situation or problem occurs." Ezell affidavit (Docket Entry No. 175) ¶ 22. Sexual harassment complaints are reported initially to the unit manager, then to the district manager, who comes to the restaurant to confront and meet with the accused to remedy the problem. Plaintiffs' notice 681 (Docket Entry No. 173), Nicholson deposition at 88-89. A 1-800 hotline number is posted in all of Treetop's restaurants for employees to call to complain of sexual harassment. Id. at 90-91. II. The Court addresses first the plaintiffs' motion to strike and the defendants' motion to supplement the record, as those motions go to the scope of the proof to be considered on the parties' cross-motions for summary judgment. Plaintiffs' Motion to Strike The defendants submitted the expert report of Dr. Deivanayagami which states that the unit manager position in Treetop's restaurants is a management position in conception, perception and practice (Docket Entry No. 195). In Dr. Deivanayagami's opinion, the unit manager is the person in charge of the unit with responsibility for the day-to-day operations of the restaurant as a profit-making entity. Affidavit of Dr. Deivanayagam (filed February 11, 1999; Docket Entry No. 195) ¶ 9. The plaintiffs' motion to strike the defendants' expert report argues that the expert's report is unsigned, his methodology is unreliable, and his opinion addresses the ultimate legal issue for which an expert opinion is unnecessary. In their response, the defendants argue that the expert's subsequent affidavit cures his prior unsigned report, that the expert relies upon expert reports admitted in Waffle House's prior FLSA action and that an expert's expression of opinion on the ultimate issue is permissible. The report at issue by Dr. Deivanayagam, who is a professor of industrial engineering at Tennessee Tech University, involves the findings from four interviews with Treetop unit or district relief managers and a review of Treetop's policies, as well as the reports of the two experts in a prior 1983 FLSA action against Waffle House restaurants.[10] Affidavit of Dr. Deivanayagam (filed February 11, 1999; Docket Entry No. 195). Dr. Deivanayagam's report reflects that as an industrial engineer, he analyzes jobs, such as that of Treetop's unit managers, and evaluates the "conception, perception and practice" of those jobs. Id., ¶ 7. Dr. Deivanayagam opines that upon his review, the unit manager at a Treetop restaurant is "primarily responsible for the profitable operation of the restaurant." Id., ¶ 9. This part of his opinion is based on a documentary review of job titles, the Dictionary of Occupational Titles, Treetop's organizational charts, and interviews. As to perception, Dr. Deivanayagam interviewed four unit or district relief managers and quotes their anecdotal comments from his interviews. Based on these reviews and interviews, Dr. Deivanayagam believes that these employees perform the management functions cited by Treetop. The admission of expert testimony is governed by Federal Rules of Evidence: Rule 702. Testimony by Experts 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. Rule 703. Basis of Opinion Testimony by Experts 682 The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Moreover, under Federal Rule of Evidence 104(a), the Court must make a threshold determination as to whether the expert's opinion should be admitted. Likewise, Federal Rule of Civil Procedure 56(e) only permits consideration of evidence admissible under the Federal Rules of Evidence. The United States Court of Appeals for the Sixth Circuit has observed that "close judicial analysis of such technical and specialized matter is necessary not only because of the likelihood of juror misunderstanding, but also because expert witnesses are not necessarily always unbiased scientists. They are paid by one side for their testimony." Turpin v. Merrell Dow Pharm., Inc., 959 F.2d 1349, 1352 (6th Cir.1992). "If an opinion is fundamentally unsupported, then it offers no expert assistance to the jury. Furthermore, its lack of reliable support may render it more prejudicial than probative, making it inadmissible ...." Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir.1987) (citations omitted); Robinson v. Union Carbide Corp., 805 F. Supp. 514, 523 (E.D.Tenn.1991). The Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), imposed a gate-keeping role upon the district courts for expert opinion testimony based on scientific knowledge. Daubert requires that "in order to qualify as `scientific knowledge,' an inference or assertion must be derived by the scientific method", i.e., "a grounding in the methods and procedures of science ... [that] connotes more than subjective belief or unsupported speculation" and that "applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds." Id., 509 U.S. at 590, 113 S. Ct. at 2795, 125 L.Ed.2d at 481 (quoting in part Webster's Third New International Dictionary, 1252 (1986)). The requirement that an expert's testimony pertain to "scientific knowledge" utilizes a standard of evidentiary reliability. Id. In a footnote, the Court emphasized that, "our reference here is to evidentiary reliability that is, trustworthiness." Id. at 590 n. 9, 113 S. Ct. at 2795 n. 9, 125 L. Ed. 2d at 481 n. 9 (emphasis in original) (citations omitted). Further, the Court emphasized that "[t]he focus, of course, must be solely upon principles and methodology, not on the conclusions that they generate." Id. at 595, 113 S. Ct. at 2797, 125 L.Ed.2d at 484. In Daubert, the Court listed the following factors for consideration of whether the opinion testimony involves scientific knowledge. [W]hether [the theory or technique] can be (and has been) tested.... [W]hether the theory or technique has been subjected to peer review and publication ..... [I]n the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error,.... . . . . . Widespread acceptance can be an important factor in ruling particular evidence admissible, and "a known technique 683 which has been able to attract only minimal support within the community," ... may properly be viewed with skepticism. Id. at 593-94, 113 S. Ct. at 2796-97, 125 L.Ed.2d at 482-83 (citations omitted). These principles apply also to non-scientific expert opinions. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). Another consideration is the "fit" or "whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." United States v. Downing, 753 F.2d 1224, 1242 (3d Cir.1985), accord United States v. Bonds, 12 F.3d 540, 557 (6th Cir.1993). As this Court noted, there are additional questions and factors that can be asked in evaluating expert testimony: (5) Are the underlying data untrustworthy for hearsay or other reasons? (6) Does the underlying data exclude other causes to a reasonable confident level? (7) What do the leading professional societies say about this specialty or this type of testimony? (8) How much of the technique is based on the subjective analysis or interpretation of the alleged "expert?" (9) The judge's experience and common sense. Hein v. Merck & Co., 868 F. Supp. 230, 231 (M.D.Tenn.1994) (emphasis added). The Ninth Circuit in the remand of Daubert added yet another factor, i.e., whether the expert's opinion is a product of independent research or whether the opinion was formulated for the litigation. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1317 (9th Cir.1995), cert. denied, 516 U.S. 869, 116 S. Ct. 189, 133 L. Ed. 2d 126 (1995). As to the admissibility of similar expert reports in the prior FLSA action involving Waffle House, Donovan v. Waffle House, Inc., No. C81-609A, 1983 WL 2108 (N.D.Ga. Sept.26, 1983), the district court admitted expert testimony of industrial engineers on the work of unit managers at Waffle House's restaurants. On this issue the Court stated: The court finds that on the basis of the activity analysis conducted by the defendants' expert with some adjustment based on Dr. Dean's study, the usual or typical unit manager for Waffle House spends 57% of his time in activities which are neither managerial nor closely and directly related to his management responsibilities. Drs. Lehrer and Fyffe from Georgia Tech provided expert testimony for the defendants from the perspective of a "responsibilities" or operations analysis and testified that in their opinion, utilizing accepted industrial engineering management concepts, theories and considerations, the unit manager would be considered in charge of, and responsible for, the unit in the sense in which that term is ordinarily understood by industrial engineering experts. The court credits their testimony. The court is influenced not only by the opinion of these professionals, but also by the tests or analyses performed, which Dr. Lehrer referred to as the PAO (Position Analysis Questionnaire). These tests, which were administered in order to evaluate the responsibilities of unit managers against responsibilities for decision making, communications and general responsibility of others in American industry, found that the unit manager's quotient of responsibility was 893, whereas the grill cook's was 509, suggest[ing] a fairly substantial spread in management responsibilities between these two employee groups.... Id. at 4 (emphasis added). Here, the Court concludes that the plaintiffs' motion to strike should be granted. First, the methodology of the experts in the prior Waffle House action was based in significant part upon extensive statistical and empirical analyses. Dr. Deivanayagam's recent report does not reflect such underlying analyses, and accordingly, his 684 methodology leaves the Court unconvinced as to the reliability of his findings. Moreover, the Court is concerned that Dr. Deivanayagam's opinion is expressed in terms that the unit manager is primarily responsible for the profitable operation of the restaurant. The term "primary responsibility" has a distinct legal meaning under FLSA regulations. See 29 C.F.R. § 541.1. In the Sixth Circuit, while an expert can render an opinion on the ultimate issue, the expert cannot opine on a legal issue. Berry v. City of Detroit, 25 F.3d 1342, 1350 (6th Cir.1994). "The best resolution of this type of problem is to determine whether the terms used by the witness have a separate, distinct and specialized meaning in the law different from that present in the vernacular. If they do, exclusion is appropriate ...." Torres v. County of Oakland, 758 F.2d 147, 151 (6th Cir.1985) (emphasis added) (citations omitted). Here, Dr. Deivanayagam's opinion about the unit manager's "primary responsibility" utilizes a distinct legal concept and should be excluded under Berry and Torres. The Court concludes that in accordance with Daubert this expert report lacks the reliability necessary for its admission. Moreover, whether the unit managers' duties are primarily managerial as in the precise wording of the FLSA regulations is a matter for the Court to decide. Finally, given the state of the factual record, the Court finds that admission of this expert's opinions would not alter the conclusions reached herein. Defendants' Motion to Supplement In this motion, the defendants seek to supplement their statement of undisputed facts, citing a memorandum opinion in Mertz v. Treetop Enterprises, Inc., No. CV 96-B-1208-S (N.D.Ala. March 3, 1999), making findings about the functions of Waffle House unit managers in Alabama. These "findings" in the second FLSA action against Treetop were, in pertinent part, as follows: One unit manager is assigned to each restaurant in each district. This individual unit manager, under Treetop's Policy and Procedures, is responsible for hiring, training, disciplining, and firing of employees, as well as setting the work schedules for the hourly employees. The unit manager is responsible for answering employee questions concerning Treetop's pay policies and resolving payroll related problems for hourly employees. The individual unit manager assigned to each unit is charged with the responsibility in that unit of insuring that payroll and record keeping are in compliance with the FLSA. Although Treetop has enacted uniform pay policies applicable to all hourly employees, each unit manager is afforded a certain amount of discretion in administering these policies within his or her area of responsibility. Affidavit of Hugh C. Howser, Jr. (filed March 12, 1999; Docket Entry No. 202), Exhibit A at 3. In response, the plaintiffs submit an affidavit of W. Lewis Garrison, counsel for the plaintiffs in Mertz, who asserts that the findings of fact in the cited memorandum are based upon stipulations entered into at the request of defendants' counsel. Mr. Garrison asserts that these findings were not based upon or tested in discovery. In addition, Mr. Garrison notes that Treetop's findings were adopted verbatim by the Court. Declaration of W. Lewis Garrison, Jr. (filed March 30, 1999; Docket Entry No. 207). This Court notes that the ruling in Mertz was upon a motion to reconsider a denial of those plaintiffs' motion to amend, as well as their motion to proceed as a collective action. Usually courts do not make findings of fact as to the legal sufficiency of a proposed amendment to a complaint because such motions go to the legal sufficiency of the allegations, as well as other factors, but not factual findings on the merits of claims. 685 Under Federal Rule of Civil Procedure 15(a), amendments to a complaint are permitted as a matter of right prior to the filing of an answer and thereafter are to be freely granted. The standard for determining whether to allow any amendment to a complaint was articulated by the Supreme Court in Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962), where the Court explained: If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reasonsuch as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of an amendment, etc.the leave sought should, as the rules require be "freely given." Id., 371 U.S. at 182, 83 S. Ct. at 230, 9 L.Ed.2d at 226. See also Schiavone v. Fortune, 477 U.S. 21, 29-30, 106 S. Ct. 2379, 2384, 91 L. Ed. 2d 18, 27-28 (1986). "[T]he thrust of Rule 15 is to reinforce the principle that cases `should be tried on the merits rather than the technicalities of pleadings.'" Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir.1986), citing Tefft v. Seward, 689 F.2d 637, 639 (6th Cir.1982). Under these precedents, findings of facts on a motion to amend seem inappropriate. Moreover, both the Supreme Court and the Sixth Circuit have expressed disapproval of a court's verbatim adoption of findings of fact submitted by counsel. Anderson v. City of Bessemer, 470 U.S. 564, 572, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985) ("We, too have criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citations to the record."); Kilburn v. United States, 938 F.2d 666, 671 (6th Cir.1991) ("Appellate courts generally frown on the wholesale adoption of findings of fact and conclusions of law submitted by one of the parties"). The "concern is ... with the adequacy of the findings." Kilburn, 938 F.2d at 672 (quoting Andre v. Bendix, 774 F.2d 786, 800 (7th Cir.1985) (emphasis in original)). Yet, the findings are to be respected unless clearly erroneous. Anderson, 470 U.S. at 572, 105 S. Ct. at 1510-11, 84 L.Ed.2d at 527; Kilburn, 938 F.2d at 677. Here, the factual findings in Mertz were based upon a stipulation of the parties about Treetop's operations. Although, the legal context in which these findings were made raises concerns about the adequacy of these findings, these concerns go to the weight of these factual findings, not to their admissibility. Thus, the defendants' motion to supplement its statement of undisputed facts shall be granted. However, the probative value of how Waffle House unit managers operate in the restaurants in the prior action is marginally relevant to these plaintiffs' claims of Treetop's method of operation at the restaurants at which plaintiffs work or worked as unit managers. III. The Court shall now address the parties' cross-motions for summary judgment.[11] As provided by Federal Rule of Civil Procedure 56(c), summary judgment "shall be rendered forthwith if 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 the moving party is entitled to a judgment as a matter 686 of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202, 211 (1986). In its consideration of the evidence, the Court must view all facts and inferences to be drawn therefrom in the light most favorable to the non-moving party. Davidson & Jones Dev. Co. v. Elmore Dev. Co., 921 F.2d 1343, 1349 (6th Cir.1991). In order to prevail on a summary judgment motion, the moving party bears the burden of proving the absence of a genuine issue of material fact concerning an essential element of the opposing party's action. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265, 274 (1986); Davidson & Jones Dev. Co., 921 F.2d at 1349; Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). A dispute about the material fact must be genuine, that is, "the evidence is such that a reasonable jury could return a verdict for the non-moving party."[12]Liberty Lobby, 477 U.S. at 248, 106 S. Ct. at 2510, 91 L.Ed.2d at 211-12. Since the preponderance of the evidence standard is used in this determination, more than a mere scintilla of evidence in support of the plaintiff's position is required. Id. at 252, 106 S. Ct. at 2512, 91 L.Ed.2d at 214. Once a motion for summary judgment has been made, "the non-moving party bears the responsibility to demonstrate that summary judgment is inappropriate under Rule 56(e)." Davidson & Jones Dev. Co., 921 F.2d at 1349. The nonmoving party may not merely rest on conclusory allegations contained in the complaint, but must respond with affirmative evidence supporting its claims and establishing the existence of a genuine issue of material fact. Celotex, 477 U.S. at 324, 106 S. Ct. at 2553, 91 L.Ed.2d at 274; Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.1989). While the disputed issue does not have to be resolved conclusively in favor of the nonmoving party to defeat summary judgment, "sufficient evidence supporting the claimed factual dispute" must be shown, thereby requiring resolution of the parties' differing versions of the truth by a jury or judge. Liberty Lobby, 477 U.S. at 249, 106 S. Ct. at 2510, 91 L.Ed.2d at 212; First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88 S. Ct. 1575, 1592, 20 L. Ed. 2d 569, 592 (1968). In their motion for partial summary judgment, the plaintiffs contend that they are entitled to summary judgment on the defendants' liability[13] on their FLSA claims because (1) the defendants cannot meet the required burden of proof to demonstrate their executive employees' exempt status under the FLSA; (2) the undisputed facts show that the plaintiffs' primary duty as unit managers is being grill operators or cooks on the first shift; (3) a mere documentary listing of supervisory duties of a unit manager cannot carry the defendants' burden of proof on this exemption; and (4) the plaintiffs' extraordinary percentage of time spent as unit managers on non-management work, coupled with the substantial supervisory duties shared with district managers and co-employees at each restaurant, preclude a finding that the unit managers' primary duties are managerial. 687 In their motion for summary judgment, the defendants argue[14] in essence that (1) a prior federal court decision under the FLSA found Waffle House's unit managers to be exempt executive employees and that holding is supported by other court decisions;[15] (2) the unit managers at these restaurants perform a variety of duties that are primarily managerial; (3) the percentage of time factor on non-management work is not controlling on the primary duty question and (4) as the sole employee in charge of the restaurant, the unit manager is an exempt employee under the FLSA. The plaintiffs allege that they should have been paid overtime for hours they worked in excess of 40 per week and cite the FLSA, which provides in pertinent part as follows: No employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. 29 U.S.C. § 207(a). The defendants claim that the plaintiffs are exempt from the above requirement because they are "employed in a bona fide executive capacity." 29 U.S.C. § 213(a)(1). As to the substantive law, exemptions from FLSA coverage are to be narrowly construed. Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290, 296 n. 13, 105 S. Ct. 1953 n. 13, 85 L. Ed. 2d 278 n. 13 (1985); Brock v. National Health Corp., 667 F. Supp. 557, 28 W.H. Cases 342, 348 (M.D.Tenn.1987). Treetop, as an employer, must prove that each employee is exempted by plain and unmistakable evidence. Hodgson v. The Klages Coal and Ice Company, 435 F.2d 377, 382 (6th Cir.1970) cert. denied, 402 U.S. 973, 91 S. Ct. 1660, 29 L. Ed. 2d 137 (1971); Marshall v. Hendersonville Bowling Ctr., 483 F. Supp. 510, 517 (M.D.Tenn.1980) aff'd, without op., 672 F.2d 917 (6th Cir.1981). The employer also must show that each employee meets each and every requirement for the exemption. Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 86 S. Ct. 737, 15 L. Ed. 2d 694 (1966) reh. den. 383 U.S. 963, 86 S. Ct. 1219, 16 L. Ed. 2d 305 (1966); Pezzillo v. General Tel. & Electron, Information Sys., Inc., 414 F. Supp. 1257, 1268 (M.D.Tenn.1976), aff'd 572 F.2d 1189 (6th Cir.1978). Proof of representative workers and their recollections can establish the claims of all workers, Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 685 66 S. Ct. 1187, 90 L. Ed. 1515 (1946), particularly where the employer did not maintain records of the uncompensated work. Martin v. Deiriggi, 985 F.2d 129, 132 (4th Cir.1992). In addition to the Act, the Administrator of the United States Department of Labor, Wage and Hour Division, has promulgated regulations under the FLSA that are given "the force and effect of law." Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S. Ct. 2399, 2405 n. 9, 53 L. Ed. 2d 448, 456 n. 9 (1977). These regulations are accorded great weight by the courts in applying the FLSA. Walling v. Wall Wire Products, 161 F.2d 470, 475 (6th Cir.1947), cert. denied, 331 U.S. 828, 67 S. Ct. 1351, 91 L. Ed. 1843 (1947). In Walling, the Court noted "the persuasiveness ... of the view of those experienced in the administration of the Act." Id. See also, Hodgson v. Barge, Waggoner & Summer, 377 F. Supp. 842, 844 (M.D.Tenn.1972), aff'd, 477 F.2d 598 (6th Cir.1973). 688 The decisional law and FLSA regulations provide that the employer-employee relationship is based upon the "economic reality" test, considering all of the circumstances of the employment relationship rather than its "technical concepts" to determine whether an employee is subject to the terms of the Act. Tony and Susan Alamo Foundation, 471 U.S. at 301, 105 S. Ct. at 1961, 85 L.Ed.2d at 288; Justice v. Metropolitan Gov't of Nashville Davidson County, 4 F.3d 1387, 1392 (6th Cir. 1993); 29 C.F.R. § 779.19. The crucial issue here is whether the plaintiffs were or are bona fide executive employees exempt from FLSA's overtime provisions under 29 U.S.C. § 213(a)(1). The resolution of the issue turns on a two-fold analysis of the unit manager job description and actual job duties, as well as the relevant legal principles. As to whether an employee is a "bona fide executive" within the meaning of § 213(a)(1) of the FLSA, and thereby exempt from FLSA overtime requirements, the Sixth Circuit has succinctly defined a bona fide executive "as an employee with supervisory duties who is paid on a salary basis." Michigan Supervisors' Office and Prof'l Employees Int'l Union v. Michigan Dept. of Corrections, Nos. 94-1203, 94-1264, 1995 WL 418069, at 7 (6th Cir. July 13, 1995), (quoting Michigan Assn. of Govt'l Employees v. Michigan Dept. of Corrections, 992 F.2d 82, 83 (6th Cir.1993)) (per curiam). To qualify the "employee must have both supervisory duties and be paid on a salaried basis." Id. The Administrator has delineated the following factors to determine whether the employee is a "bona fide executive," i.e., an employee (a) Whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department [or] subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretionary powers; and (e) Who does not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent, of his hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (d) of this section: Provided, That this paragraph shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment, or who owns at least a 20-percent interest in the enterprise in which he is employed; and (f) Who is compensated for his services on a salary basis at a rate of not less than $155 per week (or $130 per week, if employed by other than the Federal Government in Puerto Rico, the Virgin Islands, or American Samoa), exclusive of board, lodging, or other facilities: Provided, That an employee who is compensated on a salary basis at a rate of not less than $250 per week (or $200 per week, if employed by other than the Federal Government in Puerto Rico, the Virgin Islands or American Samoa), exclusive of board, lodging, or other facilities, and whose primary duty consist[s] of the management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees 689 therein, shall be deemed to meet all the requirements of this section. 29 C.F.R. § 541.1. (emphasis added) (italics in original). These factors are divided into two tests, the "long test" and the "short test," to determine whether or not an employee is exempt as an executive. The long test is applied to an employee whose salary basis is "at a rate of not less than $155 nor more than $249 per week" and "factors (a) through (e) must be considered in making the critical determination. If, however, the employee is paid a salary of `not less than $250 per week,' then the `short test' may be applied, and the court need only consider two factors: (i) whether the employee's primary duties are management of the enterprise or a subdivision thereof, and (ii) whether the employee regularly and customarily directs the work of two or more other employees ...." Meyer, 881 F.Supp. at 1018 (citation omitted); see also, Stein v. J.C. Penney Co., 557 F. Supp. 398, 402, 403, n. 4 (W.D.Tenn.1983). As applied here, in his affidavit, Mr. William Ezell states that district relief managers earn a salary of $250.00 per week or greater and are eligible for bonuses. The beginning salary for unit managers is "$850.00 per period" (4 weeks) which averages out to $212.50 per week. They are eligible for bonuses, but also for adjustments for lost sales.[16] Ezell affidavit (Docket Entry No. 175) ¶ 34. Accordingly, the Court must apply both the long and the short tests to the plaintiffs' claims. 1. The long test a. "Primary duty consists of the management of the enterprise ... or ... a customarily recognized ... division thereof" As to what is considered management in a firm, the FLSA regulations read as follows: (a) In the usual situation the determination of whether a particular kind of work is exempt or nonexempt in nature is not difficult. In the vast majority of cases the bona fide executive employee performs managerial and supervisory functions which are easily recognized as within the scope of the exemption. (b) For example, it is generally clear that work such as the following is exempt work when it is performed by an employee in the management of his department or the supervision of the employees under him: Interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing their work; maintaining their production or sales records for use in supervision or control; appraising their productivity and efficiency for the purposes of recommending promotions or other changes in their status; handling their complaints 690 and grievances and disciplining them when necessary; planning the work; determining the techniques to be used; apportioning the work among the workers; determining the type of materials, supplies, machinery or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety of the man and the property. 29 C.F.R. § 541.102(a) and (b) (emphasis added). The FLSA regulations provide that whether "management is the primary duty of the employee" is "based on all the facts of a particular case." 29 C.F.R. § 541.103. The Department of Labor utilizes a 50 percent rule of thumb, i.e., whether 50 percent of the employee's duties are primarily managerial. Id. See Jones v. ENSR Corp., No. 96-3836, 1997 WL 369440, at 3 (6th Cir.1997). Of particular note here is a series of FLSA decisions on franchises and their lower level managers who perform management as well as other functions and whether such managers are exempt from FLSA. Murray v. Stuckey's, Inc., 50 F.3d 564 (8th Cir.1995), cert. denied, 516 U.S. 863, 116 S. Ct. 174, 133 L. Ed. 2d 114 (1995) (Murray II); Murray v. Stuckey's Inc., 939 F.2d 614 (8th Cir.1991), cert. denied, 502 U.S. 1073, 112 S. Ct. 970, 117 L. Ed. 2d 135 (1992); Donovan v. Burger King Corp., 675 F.2d 516 (2d Cir.1982) (Burger King II); Donovan v. Burger King Corp., 672 F.2d 221 (1st Cir.1982) (Burger King I); Waffle House, 1983 WL 2108; Glefke v. K.F.C. Take Home Food Co., No. 92-74371, 1993 WL 521993 (E.D.Mich. Aug.27, 1993). Although these authorities, particularly Waffle House, are relevant, the FLSA regulations make it clear that the issue of whether a particular employee or group of employees has management functions as a primary duty, "must be based on all the facts in a particular case." 29 C.F.R. § 541.103. In any event, certain principles are readily discernible from these decisions: (1) "the need to obtain the [higher] manager's approval to fire an employee [or to make other decisions] ..." is alone insufficient to disestablish exempt status, Murray II, 50 F.3d at 569; (2) "[t]he mere fact that a superior comes in for a one- or two-day visit" is likewise insufficient, Murray I, 939 F.2d at 619 (quoting Waffle House, 1983 WL 2108, at 10); (3) a franchise's well-defined policies and insistence upon "adherence to `the book'" yielding detailed routine from some of its lower level managers will not cause a loss of exempt status, Donovan II, 675 F.2d at 521-22; see also, Donovan I, 672 F.2d at 226; and (4) the "percentage of time [spent in performing management functions] is not determinative of the primary duty question," Glefke, 1993 WL 521993, at 5. As reflected by Glefke, the primary duty question requires consideration of multiple factors listed in § 541.1. Here, as to the primary duty factor in § 541.1(a), the Waffle House restaurants are distinct entities or divisions of Treetop. Although there are common methods of operation, with its profit based method of compensation for its managers by unit sales, each unit or restaurant is distinctive. Ezell affidavit (Docket Entry No. 175) ¶ 34. The key issue is determining the primary duty of the unit managers. On the "primary" duty issue, under the FLSA [t]he amount of time spent in the performance of the managerial duties is a useful guide in determining whether management is the primary duty of an employee. In the ordinary case it may be taken as a good rule of thumb that primary duty means the major part, or over 50 percent of the employee's time.... Time alone, however, is not the sole test, and in situations where the employee does not spend over 50 percent of his time in managerial duties, he might nevertheless have management as his primary duty if the 691 other pertinent factors support such a conclusion. Some of these pertinent factors are [1] the relative importance of the managerial duties as compared with other types of duties, [2] the frequency with which the employee exercises discretionary powers, [3] his relative freedom from supervision, and [4] the relationship between his salary and the wages paid other employees for the kind of nonexempt work performed by the supervisor. 29 C.F.R. § 541.103. See also, defendants' motion (Docket Entry No. 174) for summary judgment, Exhibit J, Department of Labor, Wage & Hour Division's Field Operations Handbook. A critical source of information for this factor is Treetop's corporate documents that characterize the "primary" nature of the training for a unit manager's job. Its "Production Training Unit" manual for unit manager trainees states: The primary objective at the Production Training Unit is to become a proficient grill operator. A second objective is to gain exposure to the daily management duties and responsibilities. Plaintiffs' notice (Docket Entry No. 172), Deposition Exhibit 117 (emphasis added). Another critical factor is the structure of Treetop's restaurant operations that underscores the "primary objective" of the unit manager's training. The parties agree that the first shift from 7:00 a.m. to 2:00 p.m. generates most of the sales for Treetop's restaurants and that the unit managers are designated to be the grill operators for this shift and then the backup grill operators for the other shifts. Ezell affidavit (Docket Entry No. 175) ¶¶ 24d and 24e. As stated earlier, Mr. Bean cites food preparation as a unit manager's primary function because the critical determination for being placed in this position is the volume of food the applicant is able to cook. Additionally, the grill operator for the other two shifts is the "shift manager," who also fills in for the unit manager or the district relief manager if they are unavailable. As to the management of others on the first shift, it is undisputed that when the unit manager is serving as grill operator, his or her back is turned away from the waitresses and customers. Given the physical position of the unit manager and the need to focus attention on the key ingredient of the business, i.e., the food to be prepared and served, a reasonable inference is that significant supervision by the unit manager on the first shift is highly unlikely. As to all shifts, the unit managers' time analysis reflects that unit managers spend 88 percent to 93 percent of their time on non-management functions. As discussed in more detail, infra, the close involvement of the district manager in the details of the restaurant operation, including recruiting and approving hiring, as well as discharges and staffing, undermines the frequency of the unit managers' exercise of these functions. Of course, the unit managers in Treetop's restaurants attribute 5 to 6 percent of their time as being expended on managerial assignments. As discussed previously, the unit manager is assigned "responsibility" for a number of managerial functions. Yet, these various aspects of the business for which the unit manager is "responsible" must be considered in context with what the unit manager actually does. Otherwise, the employer's handbook on job descriptions on what the unit manager is "responsible for" would be controlling. Such a limited review is contrary to the "economic reality" test for exemptions under the FLSA. Although some courts have found exempt status where the time percentages of employees' non-managerial duties were as high as 90 percent, the Court concludes from the facts in this case that the critical function in Treetop's business is cooking, which is assigned to the unit manager on the first shift, and the unit manager is "primarily" trained to perform that job. The fact that the unit manager or the 692 relief district manager must substitute as the cook on other shifts in the restaurant also emphasizes the primacy of this job function. In their absence, a cook from another shift assumes cooking and managerial duties for the restaurant. These collective facts demonstrate that the primary duty of the unit manager's job is to cook. Accordingly, the Court finds that the first factor under the bona fide executive exemption is not satisfied. b. "[C]ustomarily and regularly directs the work of two or more other employees ..." As to this factor, the numerical requirement is met as each restaurant has 15 to 20 employees to cover the three shifts. Ezell affidavit (Docket Entry No. 175) ¶ 11. However, due to the cooking functions of the position, the unit manager, in all likelihood, is too busy on the first shift to direct any employee's activities. Although the unit manager's work with the second and third shift employees could satisfy this component, many of the unit manager's management duties are actually shared with other employees at the restaurant and with the district manager. Therefore, the "customarily and regularly" requirement is lacking. Accordingly, the Court finds that the second factor under the bona fide executive exemption is not satisfied. c. "[H]as authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing ... advancement and promotion or any other change of status ... will be given particular weight" In his affidavit, Mr. William Ezell, III, states that hiring and firing of employees is a responsibility of the unit manager and that "[n]ew prospective employees are interviewed by the unit manager who will either hire or recommend such employee for hire without consultation with any other superior Treetop personnel"; that "[u]nit managers have the responsibility of terminating employees who violate company policies"; but that "Treetop does have a policy which restricts unit managers from rehiring former employee[s] of the company without checking with a higher management official or supervisor." Ezell affidavit (Docket Entry No. 175) ¶¶ 24j and 25. Mr. Bean, as a unit manager, and Mr. Nicholson, as a district manager, testified in their depositions that hiring and firing are among the duties of unit managers, but that Treetop utilizes an "It Takes Two" policy, where both the unit manager and either a district or divisional manager sign off on any decision concerning hiring or firing of employees. Plaintiffs' notice (Docket Entry No. 173), Bean deposition at 37, 101-102; Nicholson deposition at 57-58. There are no statistics to show how many employees recommended for hiring or firing by the unit manager are actually adopted by the district manager. It is significant to note, however, that, as previously mentioned, the district managers actively recruit and document their recruitment efforts on their recruiting tracking charts. Even though unit managers share in the responsibility of firing employees with district managers, a district manager has refused to allow a unit manager to terminate an hourly employee and has reversed the unit manager's termination of an hourly employee by allowing the terminated hourly employee to return to the restaurant. With regard to dealing with discrimination or sexual harassment complaints, Mr. Nicholson stated in his deposition that when he was a unit manager, he reported such complaints to the district manager, who handled the complaints directly and never reported back to him. Plaintiffs' notice (Docket Entry No. 173), Nicholson deposition at 88-89. A memorandum faxed from Gene Ingram's office concerning a district manager's responsibilities indicates that district managers are responsible for sales, profits and employees, as well as everything done in the restaurants 693 in their district. Plaintiffs' notice (Docket Entry No. 172), Deposition Exhibit 99. These collective facts undermine the role of the unit managers as primarily responsible for hiring, firing and disciplining Treetop's employees. The Court concludes that the proof shows that the unit manager actually shares the authority to hire, fire or discipline with the district and/or division manager and, therefore, the third factor is not satisfied. d. "Who customarily and regularly exercises discretionary powers" As to the discretionary functions beyond those previously discussed, the remaining areas appear to be staffing, ordering food, and the extent to which the unit manager customarily directs the workers at his restaurant. In his deposition, Mr. Bean, who has worked as a manager at all three levels, states that even "simple decisions" concerning the restaurants are made by the district manager, not the unit manager. Plaintiffs' notice (Docket Entry No. 173), Bean deposition at 36. The defendants admit that hourly employees are scheduled to work as cooks and grill operators during the second and third shifts and that unit managers and district relief managers are scheduled to cook on the first shift, as well as fill in for cooks who do not show up for the second and third shifts. Hourly employees who officially hold the position of cook and grill operator on the second and third shifts are also scheduled as substitutes on the first shift to perform the cooking duties, should the unit manager need their assistance. Defendants' answer (filed November 17, 1998; Docket Entry No. 132) to amended complaint, ¶ 22; Ezell affidavit (Docket Entry No. 175) ¶ 24(d). Ms. Riddle states in her affidavit that as unit manager, she served as cook and worked six days straight followed by two days off. On her days off, the district relief manager performed her duties. Defendants' motion (Docket Entry No. 174) for summary judgment, Exhibit G, Riddle affidavit, ¶¶ 9 and 10; plaintiffs' notice (Docket Entry No. 172), Deposition Exhibits 34, 90, 91, and 92. Accordingly, company policy sets the significant scheduling and staffing arrangements for all practical purposes. As noted earlier, the unit manager, whose back is to the employees and the dining area, works mainly as a cook during the first shift and therefore has little time or opportunity to perform any supervisory functions or have any discretionary authority. The unit manager's job is to cook, and he or she is tied to the grill during the busiest shift of the restaurant. Even with regard to the unit manager's discretionary authority during other shifts, it is essentially the district manager who controls what goes on in the restaurants in a particular district. A memorandum from a representative of Treetop to all district managers dated March 23, 1998, instructs district and division managers to "physically direct traffic during the shift change" in the restaurant and to take note of employees on first shift who "lay out or are late ..." and to put them on a shift "where they can be on time and make it to work." Plaintiffs' notice (Docket Entry No. 172), Deposition Exhibit 107. As to this factor, the plaintiffs contend that given their duties and activities at the restaurants, district managers are, in fact, directing employees. The district manager periodically schedules "in-unit meetings" at the restaurants in his or her district to discuss with the hourly employees what needs to be done in the restaurants. The unit managers do not schedule such meetings. In fact, sometimes the district manager meets with the employees in the restaurant without the presence and participation of the unit manager, who is on the grill cooking. Plaintiffs' notice (Docket Entry No. 173), Bean deposition at 26, 52-53; Harper deposition at 92-94. In addition, each restaurant has a "unit trainer" or "waitress trainer" who is an hourly waitress/server who is responsible 694 for training all of the new waitresses, which constitute the vast majority of newly hired employees. Id., Berner deposition at 53; Barbour deposition at 32-35. The district manager sets the "par level" for ordering food products which establishes the amount of food that is to be ordered in each restaurant in his or her district, anticipating any special events that may occur which would require a deviation from the amount of food normally ordered. Plaintiffs' notice (Docket Entry No. 173), Bean deposition at 49-52; Riddle deposition at 132-133, 155. When products such as eggs, milk and produce are delivered, usually a waitress checks in the products, signs the invoices for the products, and pays the vendors who bring the products, and many times the unit manager does not even know that the products have been delivered. Id., Riddle deposition at 116-119; Morton deposition at 183. In Treetop's restaurants, an hourly cook/grill operator is given a special designation as "shift manager" and is allowed to oversee the staff change between second and third shift on certain nights of the week. Id., Barbour deposition at 19-20, 22; Morton deposition at 175; Nicholson deposition at 128-129. The hourly shift manager is allowed to count down the cash registers, is given a key to the commissary and is allowed to pull out stock from the commissary, all of which are the duties of the unit manager and district relief manager when they are on duty. Id., Bean deposition at 211-212; Harper deposition at 144-145. Treetop's own written memoranda indicate that if a maintenance problem arises in a particular restaurant, the division manager is the one responsible for calling Treetop's maintenance department to coordinate the needed repairs, and the unit manager is not allowed to contact the maintenance department directly. Plaintiffs' notice (Docket Entry No. 172), Deposition Exhibits 101 and 77. As for managerial duties, the unit manager receives telephone calls at home for matters, such as no-shows for work, thefts and consumer complaints, Ezell affidavit (Docket Entry No. 175) ¶ 24(i); shares in profits, subject to deductions,[17] and shares in employment decisions with the district and/or division manager. Defendants' motion (Docket Entry No. 174), Exhibit G, Riddle affidavit, ¶¶ 50-53. Yet, under these facts and Treetop's documents, it is the district manager who regularly exercises discretion, particularly given the undisputed facts that at Treetop's restaurants, unit managers expend only 6 to 17 percent of their time on management matters. Accordingly, this element has not been satisfied, as well. e. "[A]n employee who is in sole charge of an independent establishment ..." As the defendants note, the Waffle House court held as follows: The court finds ... that unit managers spend in excess of 40% of their time, however, in activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (d) of part 541.1 of the regulations, and, therefore, to the extent that they are not paid $250 a week, they would be entitled to overtime and records should be kept, unless the unit managers were entitled to the "sole charge" exception to the 40% limitation contained in the activities test. Waffle House, 1983 WL 2108 9. Therefore the question remaining under the "primary duty" issue is whether a unit manager is in "sole" charge of the restaurant. For an employee who does not expend 40 percent of his or her time on management matters, as outlined above, another factor to be considered is whether this 695 employee may nonetheless be exempt by virtue of the fact that the employee is also the sole person in charge of an independent establishment. 29 C.F.R. § 541.1(e). Other regulations define this "sole person in charge factor": (e) In order to qualify for the exception the employee must ordinarily be in charge of all of the company activities at the location where he is employed. If he is in charge of only a portion of the company's activities at his location, then he cannot be said to be in sole charge of an independent establishment or a physically separated branch establishment .... 29 C.F.R. § 541.113(e) (emphasis added). According to the Wage and Hour Division's Field Operations Handbook, such employees must receive substantially higher wages: [M]anagement personnel in small retail or service establishments who are in charge of the establishment during their tour of duty and are paid substantially higher wages than their subordinates will typically meet the primary duty test. Defendants' motion (Docket Entry No. 174) for summary judgment, Exhibit J, Field Operations Handbook at 13. Without restating again the full scope of the district manager's duties at the restaurant,[18] and based upon the testimony of former division managers, district managers and unit managers, the Court concludes that the unit manager is not actually in charge of "all" of the on-site activities of the restaurant he or she manages. Therefore, the unit managers are not in "sole charge" of the restaurant they manage. Accordingly, the "sole charge" element has not been satisfied. f. "Who is compensated for his services on a salary basis at a rate of not less than $155 per week" As established under (a)-(e), the Court has concluded that unit managers are not shown to have management as their primary duty. The Court has also concluded that the rate of the salary unit managers make is based on a rate of $212.50 per week, which is subject to additions and deductions for losses. Based upon the hours they have expended, there is proof that at least some unit managers have been paid just above minimum wage. Contrary to the sole employee factor, these unit managers effectively have not been paid substantially higher salaries. The Court has found that the "primary duty" of unit managers is not managerial, but rather to be cooks/grill operators on the first shift and that managerial duties are shared with other employees and mainly district managers, and all are supervised closely by district managers. Therefore, the question of whether or not the rate of their weekly salary is not less than $155.00 or not greater than $249.00 is irrelevant at this point. The parties agree that the main determination is whether the primary duty of the plaintiffs as unit managers is managerial. Accordingly, the plaintiffs' motion for summary judgment should be granted as to those employees for which the long test applies. 2. The short test "An employee who is compensated on a salary basis at a rate of not less than $250 per week ..., and whose primary duty consist of the management of the enterprise in which the employee is employed ... and includes the customary and regular direction of 696 the work of two or more other employees therein, ...." Under the short test for an employee to be a bona fide executive capacity, the employee must be paid on a "salary basis." 29 C.F.R. § 541.1(f). For salary basis compensation, the FLSA regulation provides: (a) An employee will be considered to be paid "on a salary basis" within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent, basis a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided below, the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked.... 29 C.F.R. § 541.118(a) (emphasis added). The defendants allege that "[a]ll district relief managers and approximately fifty percent of all unit managers were paid $250.00/week or more in salary during the entire three year time period prior to the filing of the instant lawsuit." Defendants' memorandum (Docket Entry No. 176) in support of motion for summary judgment at 14 (citation omitted). The plaintiffs allege that "when the actual amount of their pay that they received each week is divided by the number of hours they actually worked, they made barely over minimum wage and less per hour than the hourly cooks/grill operators in the restaurants, who make between $7.00 and $9.00 per hour." Plaintiffs' memorandum in response (Docket Entry No. 183) at 10 (citation omitted). The parties have agreed that the district relief managers are paid at a rate based on $250.00 per week, but that the unit managers are paid at a rate based on $850.00 per 4 week period or $212.50 per week. These rates are also subject to change based on bonuses for the district relief managers and bonuses, as well as deductions for losses, for the unit managers. Even if any of the unit and/or relief district managers make at least $250.00 a week, the Court has already determined that their primary duty is not managerial. The Court has found that the primary duty of the unit and district relief managers is being a cook on the first shift and substitute cook on the other shifts. Accordingly, the defendants fail to satisfy the short test for these employees. IV. In their motion for partial summary judgment, the plaintiffs contend that the defendant, James Shaub, is liable with Treetop and Mr. Ezell as their employer under the FLSA. The plaintiffs allege that Mr. Shaub has been the president and chief operating officer at Treetop since November of 1996, and a shareholder since 1993. They further allege that he has control over the day-to-day operations of the company and the authority to make any changes necessary to correct any problems. As to whether Mr. Shaub is an employer under the FLSA, under 29 U.S.C. § 203(d), the FLSA defines an "employer" to include "any person acting directly or indirectly in the interest of an employer in relation to an employee." In Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965 (6th Cir.1991), this Circuit utilized the "economic reality" test on whether a party is an employer: "a corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages." Id. (quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir.1983)); see also, Fegley v. Higgins, 19 F.3d 1126, 1131 (6th Cir. 1994), cert. denied, 513 U.S. 875, 115 S. Ct. 203, 130 L. Ed. 2d 134 (1994). Unlike the corporate president in Dole, who was a co-owner, Mr. Shaub is a minority 697 stockholder who owns no more than 2 percent of Treetop's stock. Defendants' motion (Docket Entry No. 174), Shaub deposition at 27-30. Under Dole, the individual officer must have "a significant ownership interest in the corporation, and [] control over significant aspects of the corporation's day-to-day functions, including determining employee salaries." Dole, 942 F.2d at 965. Even if the Court accepts the plaintiffs' contention that Mr. Shaub has a leadership role in the day-to-day operation of Treetop, Mr. Shaub lacks the "significant ownership interest" in Treetop to be liable for the alleged FLSA violations. Therefore, Mr. Shaub shall be dismissed as a defendant in this action. V. The defendants allege a good faith defense under 29 U.S.C. § 260. They first state that under the Portal-to-Portal Act, 29 U.S.C. § 255, "any action under FLSA for unpaid overtime compensation must `be commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.'" Defendants' memorandum (Docket Entry No. 176) at 22. The defendants further allege that even if the Court finds they violated FLSA, such violation was not willful and the statute of limitations is two years. Id. Lastly, the defendants state that the good faith defense under 29 U.S.C. § 260 removes liability for liquidated damages. The defendants contend that should the Court "find that Defendant[s] [have] misinterpreted the requirements of the FLSA, it should find that the mistake was reasonable considering the Donovan v. Waffle House decision," barring the plaintiffs from liquidated damages. Id. The plaintiffs allege that "the fact that Treetop was aware that its corporate franchisor had narrowly escaped liability on this same issue in 1983 makes Defendants' conduct in stepping over any boundaries set up by the Waffle House court all the more willful and in bad faith." Plaintiffs' memorandum (Docket Entry No. 183) at 24. The plaintiffs allege that since the 1983 action the defendants have developed a system that goes beyond the conduct approved on the issues of sole charge and primary duty. They further allege that liquidated damages are mandatory unless the defendants carry the substantial burden of proving they acted in good faith. Id. As to the defendants' good faith defense under 29 U.S.C. § 260 to bar plaintiffs' claims for liquidated damages, the Court agrees that an award of liquidated damages is inappropriate. In light of the district court's decision in Waffle House, as well as other court decisions involving similar employees in similar settings, as previously enumerated, the Court concludes that any recovery by the plaintiffs must be limited to the two-year period immediately preceding their filing of this action. VI. The Court concludes that the plaintiffs' motion for partial summary judgment as to the liability of Treetop and Mr. William Ezell for FLSA violations should be granted, but denied as to Mr. Shaub's liability as an employer under the FLSA. The defendants' motion for summary judgment should be denied, except as to Mr. Shaub, who is not liable for these violations, and as to their good faith defense barring liquidated damages and limiting recovery to the two-year period before filing suit. The Court concludes that oral argument is unnecessary and Treetop's motion shall be denied. The plaintiffs' motion to strike shall be granted. The defendants' motion to supplement its statement of undisputed facts shall be granted. NOTES [1] After issuance of a court-approved notice, 123 additional former and current employees of the defendant Treetop opted into this action and each filed a consent to become a party plaintiff. [2] Mr. Ezell is chairman of the board of directors and CEO of Treetop and owns approximately 83 percent of the stock. Mr. Shaub, II, is the COO of Treetop and owns approximately 1½ to 2 percent of the company's stock. Defendants' memorandum (Docket Entry No. 176) in support of their motion for summary judgment at 9. [3] Treetop's objective is for each Waffle House restaurant to be standardized because "the customer[s] appreciate[] the predictability of consistency in the restaurants, the fact they know if they eat at one of our restaurants in Tennessee they should expect the same quality of food, service, cleanliness, and attention to detail when eating at one of our restaurants in Alabama, Kentucky, or Mississippi." Id., ¶ 23. [4] The Court notes that in his affidavit Mr. Cowan states that it is a standard practice at Treetop for unit managers to turn into Treetop any tips they make while waiting on tables. He states that when he was unit manager, he was not permitted to keep any tips he received from customers but was required to treat them as sales. Defendants' motion (Docket Entry No. 174) for summary judgment, Exhibit D, Cowan affidavit, ¶ 47. [5] Some unit managers frequently move among restaurants but are responsible for only one restaurant at a time. Defendant's motion (Docket Entry No. 174) for summary judgment, Exhibit G, Riddle affidavit, ¶ 4; Exhibit E, McMahan affidavit, ¶ 3; and Exhibit F, Harper affidavit, ¶ 3. [6] Ms. Riddle's affidavit is cited as representative since each of the plaintiffs' affidavits are, for all practical purposes, consistent with the other affidavits of Messrs. Cowan, McMahan, and Harper. See defendants' motion (Docket Entry No. 174) for summary judgment, Exhibits D, E, and F. [7] The waitress delivers the customers' orders to the unit manager (or hourly cook/grill operator) by approaching the grill from either side and calling out the order to the unit manager. (Docket Entry No. 173,). After delivering the order to the unit manager, the waitress watches the unit manager to make sure that he pulls out the correct food for the order, and corrects the unit manager if a mistake is made, waiting by the grill until the unit manager corrects the mistake. Id. Unit managers cook almost constantly during the first shift. Plaintiffs' notice (Docket Entry No. 173), Cantrell deposition at 90-91 and Barbour deposition at 13-16. [8] Each restaurant has a "unit trainer" or "waitress trainer" who is an hourly waitress/server and is responsible for training all of the waitresses, who make up the vast majority of newly hired employees. Plaintiffs' notice (Docket Entry No. 173), Berner deposition at 53 and Earl Barbour deposition at 32-35. [9] Moreover, an hourly employee is sometimes designated as "shift manager" with a key to the commissary to pull stock from the commissary. An hourly waitress also handles deliveries of stock items to the store, such as bread, eggs, and milk, and sometimes pays the vendors, gets receipts and places them in the cash register. Id., Morton deposition at 175; Nicholson deposition at 128, 129; Barbour deposition at 19, 22; Ewell deposition at 40; McMahan deposition at 59, 61; Riddle deposition at 116, 119. [10] The Secretary of Labor filed another action against the prior franchiser, Waffle House, Inc., alleging similar violations of the minimum wage, overtime and record keeping provisions of the FLSA for its unit managers. In 1983, the United States District Court for the Northern District of Georgia held that the Waffle House employees known as unit managers were "bona fide executive employees" under the FLSA and, thus, exempt from the payment of overtime compensation. Donovan v. Waffle House, Inc., No. C81-609A, 1983 WL 2108 (N.D.Ga. Sept.26, 1983). The plaintiffs do not challenge the court's holding based upon the work of the unit managers in 1983 as developed in that record. They contend that the facts in this action are materially different. [11] Upon review of the parties' responses to each other's statements of undisputed facts (Docket Entry Nos. 184, 188, and 198), most of the material facts on the issue of liability are not disputed. Disputes arise from the parties' characterization of facts and legal precedents. Other factual disputes are not material under the applicable law. [12] The Supreme Court further explained that a court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. at 2512, 91 L. Ed. 2d at 214. [13] Treetop and William E. Ezell, III, have admitted their status as employers under FLSA. However, in their motion for partial summary judgment, the plaintiffs also allege liability on the part of James Shaub, a corporate officer and shareholder at Treetop, for FLSA violations as an "employer" under 29 U.S.C. § 203(d), which is disputed by the defendants. Plaintiffs' memorandum (filed January 11, 1999; Docket Entry No. 169) in support of their motion for partial summary judgment at 23; defendants' memorandum (filed January 11, 1999; Docket Entry No. 176) in support of their motion for summary judgment at 23. [14] The defendants also put forth a good faith defense under the Portal-to-Portal Act, 29 U.S.C. § 255, and allege that 29 U.S.C. § 260 removes liability for liquidated damages. [15] See Waffle House, 1983 WL 2108, Murray v. Stuckey's, Inc., 939 F.2d 614 (8th Cir.1991), cert. denied, 502 U.S. 1073, 112 S. Ct. 970, 117 L. Ed. 2d 135 (1992), Meyer v. Worsley Companies, 881 F. Supp. 1014, 1020 (E.D.N.C.1994). [16] The parties do not dispute that the unit managers are paid a salary and are eligible for a number of bonuses which are related to the net profits of their assigned restaurant. Defendant's motion (Docket Entry No. 174) for summary judgment, Exhibit G, affidavit of Pam Riddle, ¶ 53. The defendants effectively admit that unit managers are not uniformly paid a beginning salary of $250.00 a week, but that all district relief managers are paid a salary of at least $250.00 a week. Ezell affidavit (Docket Entry No. 175) at 34. Although unit managers are paid a set salary, their salaries are subject to reduction for any casualty losses sustained by the restaurant, including any returned checks of customers. Defendants' motion (Docket Entry No. 174) Exhibit G, Riddle affidavit, ¶¶ 48-51. Treetop is also passing along its legal costs in this action to its unit managers and district relief managers by docking their pay for these costs. Plaintiffs' notice (Docket Entry No. 172), Deposition Exhibit 111. A unit manager's median compensation is $35,000.00. Ezell affidavit (Docket Entry No. 175) ¶ 34. Yet, several unit managers state that their paychecks have been routinely docked hundreds of dollars and that based upon the total number of hours that they work during a certain period of time, their actual compensation is little more than payment of the minimum wage. Defendants' motion (Docket Entry No. 174) Exhibit G, Riddle affidavit, ¶ 51; Exhibit F, Harper affidavit, ¶ 43; Exhibit D, Cowan affidavit, ¶ 53. [17] These deductions may result in a loss of the unit managers' exempt status, Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997), but this issue was not briefed by the parties. [18] Even if the Court were to adopt Treetop's argument on this factor, the determination is not conclusive of the issue. The law in this Circuit is that the employer must show "plain and unmistakable evidence" for "each employee" that its operations satisfies all of the factors in § 541.1(e), see Pezzillo, 414 F.Supp. at 1268 (quoting Hodgson v. The Klages Coal & Ice Co., 435 F.2d 377, 382 (6th Cir.1970)). Even if Treetop were correct on § 541.1(e), it failed to meet its burden regarding the other factors under § 541.1(a)-(d).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1726346/	970 So. 2d 842 (2008) BENEDETTO v. STATE. No. 4D07-4052. District Court of Appeal of Florida, Fourth District. January 11, 2008. Decision without published opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/102517/	296 U.S. 300 (1935) HULBURD v. COMMISSIONER OF INTERNAL REVENUE. No. 39. Supreme Court of United States. Argued November 14, 1935. Decided December 9, 1935. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. 301 Mr. John E. Hughes, with whom Mr. Henry A. Gardner and Alfred T. Carton were on the brief, for petitioner. 302 Mr. N.A. Townsend, with whom Solicitor General Reed, Assistant Attorney General Wideman, and Messrs. James W. Morris and Maurice J. Mahoney were on the brief, for respondent. MR. JUSTICE CARDOZO delivered the opinion of the Court. The controversy is one as to the liability of the executor and legatee of a shareholder in a dissolved corporation for a deficiency of income and profits taxes assessed against the company. In September, 1919, the Van Sicklen Company, an Illinois corporation, sold all its assets to a Delaware corporation, the Van Sicklen Speedometer Company, and was thereupon dissolved. In consideration of the sale it received $250,000 in cash and 5,000 shares in the new company, which it distributed forthwith among its own shareholders. One of these shareholders was Charles H. Hulburd. His distributive portion on the dissolution of the company was $8,000 in cash and 160 shares of no-par stock. He died on January 14, 1924, leaving a will by which his son, De Forest Hulburd, and Hugh McBirney Johnston were appointed executors. The son, who is the petitioner in this court, was also a legatee and devise. The coexecutor, Johnston, is dead. In December, 1919, the Van Sicklen Company filed a corporation income and profits tax return for the fiscal year ending September 30, 1919. The return, however, was inadequate. Accordingly, on November 17, 1924, the Commissioner of Internal Revenue made an additional assessment in the sum of $227,872.06, with penalties in the sum of $113,936.03. Unable to collect this deficiency from the company after the distribution of its assets, he turned to the shareholders. On October 27, 1926, he mailed a letter to the "Estate of Charles H. 303 Hulburd, c/o De Forest Hulburd, 86 East Randolph Street, Chicago, Illinois." In this he gave notice of a proposed assessment "against the estate" by reason of its liability as transferee of the assets of the Illinois corporation. The amount of that liability was stated to be $24,000, but was afterwards reduced to $8,000, the cash received by the testator. In announcing this assessment, the Commissioner acted in reliance on § 280 of the Revenue Act of 1926 (26 U.S.C. App. § 1069), which permits an assessment against the transferee of a taxpayer upon the taxpayer's default. Before the passage of that act shareholders who had received the assets of a dissolved corporation might be compelled to discharge unpaid corporate taxes, but only by bill in equity or action at law. Phillips v. Commissioner, 283 U.S. 589, 592, 593. A summary procedure was added by the statute. Phillips v. Commissioner, supra. Upon the default of the taxpayer, the Commissioner is to apportion the deficiency among the transferees of the property and to give notice accordingly. Revenue Act of 1926, § 274. If the transferee is dissatisfied, he may petition the Board of Tax Appeals to redetermine the existence of liability and its proper distribution. On October 27, 1926, when notice of the proposed assessment was sent to the petitioner, the estate of Charles H. Hulburd had been settled, the assets distributed and the executors discharged.[1] The discharged executors submitted 304 to the Board of Tax Appeals a petition for review disclaiming liability. They stated in effect that they were the persons who had been appointed executors by the will of Charles H. Hulburd, but that their responsibilities as such were ended. Enumerating their objections to the assessment they alleged that the action of the Commissioner was erroneous for the reason that the estate had been "wholly distributed and settled and your petitioners duly discharged as executors thereof." Thus, as early as December, 1926 (when the petition for review was filed) and before the period of limitation under the statute had run against a new assessment against legatees or devisees (Revenue Act of 1926, § 280 (b) (2)), the Commissioner was put upon notice that the deficiency had been assessed against persons no longer liable and was given the opportunity to impose it upon others. Instead of doing this he stood his ground and prayed for an order that his determination be confirmed. The Board of Tax Appeals held that "at the time the notice was mailed there was no liability of the estate or of the petitioners as executors." It put aside the consideration of a possible "liability of any of the beneficiaries 305 under the will or the distributees of the assets of the estate" on the ground that no such question was in the case. 27 B.T.A. 1123; cf. 21 B.T.A. 23. The decision of the Board was reviewed by the Circuit Court of Appeals for the Seventh Circuit. That court decided that the executors were liable de bonis testatoris because they had failed to give notice to the Commissioner that their fiduciary capacity had terminated. Revenue Act of 1926, § 281 (b). Besides this, the court held that De Forest Hulburd was liable individually to the extent of $4,000 because in the record there was evidence, not confirmed by any finding, that as legatee under the will he had received half of the $8,000 paid to his father on the dissolution of the company. The order of the Board was accordingly reversed, and the cause remanded for proceedings to conform to the opinion. 76 F. (2d) 736. The power was thus assumed to change a deficiency assessed against the executors of an estate into a deficiency to be assessed against a legatee who had shared in the estate. To determine the validity of that assumption and to settle other questions of statutory construction, a writ of certiorari was granted by this court. First: The petitioner is not chargeable in this proceeding with liability as legatee under the will of a deceased shareholder in the taxpayer, a corporation now dissolved. The Act of 1926 (c. 27, 44 Stat. 9, § 280; 26 U.S.C. App. § 1069), in supplementing by a summary procedure the cumbrous remedy of suit, laid the duty of assessment upon the Commissioner of Internal Revenue. "The liability, at law or in equity, of a transferee of property of a taxpayer" was to be "assessed, collected, and paid in the same manner and subject to the same provisions and limitations" as in the case of any other tax deficiency. Ibid. § 280 (a) (1). Pursuant to this mandate the Commissioner did assess a liability and gave notice to the transferee accordingly. He assessed it to the estate represented 306 by executors, and not to any one else. "As provided by Section 280 of the Revenue Act of 1926, there is proposed for assessment against the estate the sum of $24,000 constituting its liability as a transferee of the assets of the Van Sicklen Company, Elgin, Illinois." The Board of Tax Appeals upon petition for review had power to redetermine the deficiency thus charged to the estate (Revenue Act of 1926, § 274), but not to charge it to another. Cf. 26 U.S.C. (1934 ed.) §§ 600, 601, 619; Williamsport Wire Rope Co. v. United States, 277 U.S. 551, 562, 564. If some one else was to be charged, there would be need of a new assessment, which the Commissioner might make at any time within a year after the enactment of the statute. Revenue Act of 1926, § 280 (b) (2). In making it he would consider any facts material and relevant for arriving at a just apportionment of benefits and burdens. The duty to inquire and determine was imposed by the statute upon him and not upon an agency of government established for the purpose of revising his decision. These restraints upon jurisdiction were duly heeded by the Board. It disclaimed the power or the purpose to pass upon the liability of legatees or devisees or to assess a tax against them. The same restraints upon jurisdiction were binding upon the Court of Appeals in reviewing the action of the Board, and binding with greater emphasis, for the court was without power to choose between conflicting inferences unless only one was possible, or to try the case de novo. Helvering v. Rankin, 295 U.S. 123. The adjudication of liability as to Hulburd individually was made in seeming forgetfulness of these jurisdictional restrictions. It was error to ignore them. In so holding we are not unmindful of the argument for the respondent that the form of the petition to review the action of the Commissioner was effective in some way to enlarge the scope of the proceeding and to subject the 307 legatee to a new and different assessment. The argument will not stand. There is nothing in the petition submitted to the Board whereby power was extended beyond the statutory limits, if we assume provisionally that consent might be effective, at least in certain circumstances, to bring that result about. The petitioners, having been discharged as executors, were unwilling to describe themselves as if they were still acting in that capacity. What they did was to state the facts and ask the judgment of the Board thereon. Far from conceding that the assessment ran against either of them personally, they protested that in form and in purpose it was an assessment against the estate and hence was of no validity after the estate had been settled and the executors discharged. The meaning of their protest was not subject to misconstruction, nor in fact was it misconstrued, as the opinion of the Board shows, if the fact might otherwise be doubtful. When the protest had been made, the remedy available to the Commissioner was obvious and ample. He had time even then as we have already pointed out, to announce a new assessment, which would have brought up the question whether the liability once resting on the executors had devolved upon another. For reasons not disclosed he determined not to do so. In such circumstances the cases cited by the government, where a formal defect has been ignored in circumstances tending toward an inference of waiver or estoppel,[2] have no relation to the case at hand. We are not required at 308 this time to approve or disapprove them. In this case there was neither waiver nor estoppel, but a steady insistence that the deficiency had been assessed against the estate and no one else, and that the liability of the estate had ended. To hold that by consent, either tacit or express, the proceeding had been turned into one to review the validity of a different assessment, and one never in fact made, would be a perversion of the record. Second: The estate having been settled and the executors discharged, the petitioner was functus officio under the law of Illinois, and was no longer subject to an assessment in his representative capacity. The Court of Appeals in upholding the liability of the executors as such put its ruling upon the ground that they had failed to give notice to the Commissioner of the termination by decree or otherwise of their fiduciary capacity. The notice was thought to be requisite under § 281 (b) of the Revenue Act of 1926, which is quoted in the margin.[3] But the Revenue Act of 1926 became a law in February of that year (§ 286; 26 U.S.C. § 931), and the executors were discharged in February, 1925. If their liability as executors was ended at that time, the statute will not be read as attempting to revive it. White v. United States, 191 U.S. 545; Winfree v. Northern Pacific Ry. Co., 227 U.S. 296; Union Pacific R. Co. v. Laramie Stock Yards, 231 U.S. 190, 199; Shwab v. Doyle, 258 U.S. 529; Liberman's Committee v. Commissioner, 54 F. (2d) 527. 309 Section 281 (b) being found to be inapplicable, we have still to determine whether executors who have been discharged after a full settlement of the estate are subject by the law of Illinois to assessment or suit in their representative capacity. By the common law of England an executor was deemed to carry forward the persona of the testator. Holmes, The Common Law, pp. 344, 345; Holdsworth's History of English Law, vol. 3, pp. 563, 573, 574, 583; Littleton's Tenures, § 337; Co. Litt. 209, a, b; Mechanics' Savings Bank v. Waite, 150 Mass. 234, 235; 22 N.E. 915; Chipman v. Manufacturers' National Bank, 156 Mass. 147, 149; 30 N.E. 610. Unless the appointment was qualified in respect of time, it continued during life. Williams, Executors, 12th ed., vol. 1, pp. 131, 147, 342. There was no such thing as a discharge upon a showing of plene administravit. There was no such thing as a resignation because of mere unwillingness to go on. Rogers v. Frank, 1 Younge and Jervis 409, 414; In the Goods of Heslop, 1 Robertson's Ecclesiastical Rep. 457, 458; In the Goods of Veiga, 3 Swabey & Tristram 13, 15. The power to act might be suspended or revoked through the appointment of a committee or a receiver if the executor was found to be physically or mentally incapable. In the Goods of Binckes, 1 Curteis 286; In the Goods of Newton, 3 Curteis 428; In the Goods of Cooke, [1895] P.D. 68; In the Goods of Goldschmidt, 78 L.T. (N.S.) 763; In the Estate of Shaw, [1905] P.D. 92. There might be like relief if he had become insolvent after probate or had disappeared or had misappropriated the assets or otherwise abused his trust. In the Goods of Covell, [1889] 15 P.D. 8; Estate of Thomas, [1912] P.D. 177; Utterson v. Mair, 2 Ves. Jr. 95, 97, 98; In the Goods of Loveday, [1900] P.D. 154, 156; Oldfield v. Cobbett, 4 L.J. (N.S.) (Chan.) 271, 272; Richards v. Perkins, 8 L.J. (N.S.) (Ex. Eq.) 57, 58. 310 Nothing short of clear necessity would cause him to be ousted. In the absence of peril to the estate, responsibility and power were not to be renounced when once they had been assumed. So the law of England continues even now.[4] The common-law rule is preserved in some of our states today, but in many has been abandoned, at times as the result of statute, at times through the combined force of statute and decision. The diversity of doctrine is surprising, and so, often, is its obscurity. The commentators tell us, however, and, as the cases show, correctly, that the growing tendency in this country is away from the English rule.[5] Some states, though they make provision for an accounting, make none for a discharge, and hold the executor suable after the estate has been distributed, upon the chance that other property may be discovered later on. The judgment will be collectible out of assets in futuro, or quando acciderint, as was said in early days. Williams, supra, vol. 2, p. 1253; Mary Shipley's Case, 4 Coke, Part 8, p. 408; Noell v. Nelson, 2 Saund. 226. This in effect is the practice in New York (Mahoney v. Bernhard, 45 A.D. 499, 501; 63 N.Y.S. 642; aff'd, 169 N.Y. 589; 62 N.E. 1097; Willets v. Haines, 96 A.D. 5, 7; 88 N.Y.S. 1018; Rosen v. Ward, 96 A.D. 262, 266; 89 N.Y.S. 148; Pearse v. National Lead Co., 162 A.D. 766, 769; 147 N.Y.S. 989; Paff v. Kinney, 1 Bradf. 1, 9), where a judicial settlement of accounts is conclusive as to the past, but is never ultimate in the sense that it relieves the fiduciary from liability for the future. See also Hazlett v. Estate of 311 Blakely, 70 Neb. 613, 617; 97 N.W. 808; Weyer v. Watt, 48 Ohio St. 545, 551; 28 N.E. 670. On the other hand, there are states where by express provision of the statutes the executor is to be discharged upon a showing of full administration, and others where the requirement of a discharge has been read into the statutes by a process of construction.[6] The courts of Illinois, as we interpret their opinions, maintain a middle ground, which is neither that of the common law on the one side nor its opposite on the other. This is not to say that there is any case in that state so like in its essential features to the one for decision here as to make the Illinois position certain. On the contrary, 312 support will be found for the strict rule of the common law if what has been said in some of the opinions is taken from its framework and considered without reference to what was actually decided. See, e.g., Starr v. Willoughby, 218 Ill. 485, 493; 75 N.E. 1029. The aspect becomes different, however, when attention is directed to the setting of the facts and to the provisions and implications of the applicable statutes. What emerges, it would seem, is this: A discharge upon an accounting will be vacated in a direct proceeding if it appears that there were assets, not inventoried by the executor nor included in his report, for which, when the decree was passed, he was properly accountable (Fraser v. Fraser, 149 Ill. App. 186, 187, 195, 196; cf. Musick v. Beebe, 17 Kan. 47, 53, 54): in the absence of such a showing, the discharge when decreed upon a finding of full administration will relieve the executor for the future of responsibility and power. Cf. Reizer v. Mertz, 223 Ill. 555, 562, 564; 79 N.E. 283; Robinson v. Robinson, 214 Ill. App. 262, 268, 269.[7] 313 Whatever doubt may survive a reading of the cases is dispelled or greatly attenuated when we pass to an examination of the statutes and the plan that they reveal. First in order of importance is the statute regulating the settlement of accounts.[8] An executor is required to exhibit a report of his administration within thirty days after the expiration of one year from the date of his letters. That being done, he must exhibit a report thereafter, whenever required by the court, "until the duties of administration are fully completed." He may from time to time at his own volition file "a final report of his administration to a specified date," which, even if approved, will not terminate his office. He may also make a final report "at the conclusion of administration."[9] Such a report, if approved upon notice to all parties in interest, shall be binding upon them "in the absence of fraud, accident or mistake." A final report "at the conclusion of administration" assumes that there is a stage when administration is over. The executor is functus officio when discharged by the court after that stage has been attained. Another statute of high significance is one that makes provision for an appraisal of the assets.[10] If the executor discovers after the making of an inventory and appraisal that the assets of the estate do not exceed the amount of the widow's allowance, after deducting necessary expenses, he is to report the facts to the court. Thereupon the court, if it finds the report to be true, shall order the assets to be delivered to the widow, "and discharge the executor 314 or administrator from further duty." Plainly such a discharge is equivalent to a termination of the office. There is not only exoneration for the past, but absolution for the future.[11] The decree of the Probate Court discharging this executor must be read against the background of this statutory scheme. It is too precise in its terms to be dismissed as amounting to nothing more than a confirmation of the report as submitted for approval. If words can express an intention to declare administration ended, the expression is not lacking here. We may not put all this aside as surplusage. If there was no power in the Illinois court to give relief so comprehensive, the defect should be very clear before a federal court will undertake to wrest the words of the decree from their natural and ordinary meaning or hold them to be futile. Especially is that so in view of the growing tendency of probate courts throughout the land to break the shackles of the ancient rule. Weighty considerations of expediency and justice explain this tendency and support it. In the thought of many judges, an executor discharged after a full and fair accounting is no longer to be vexed by the annoyance and expense of defending fruitless suits with assets no longer available for reimbursement or indemnity. If suitors or tax-gatherers wish to go against the estate or against those who have shared in it, they must either vacate the decree upon a showing of assets unaccounted for, or procure upon a showing of necessity the appointment of an administrator, or pass over the estate and its representatives and pursue the legatees to the extent of benefits received. There was no attempt to tread those paths, though the last at all events was open. *315 The controversy in this aspect is one of local law, which, once it is ascertained, must be accepted as controlling. Security Trust Co. v. Black River National Bank, supra; Forrest v. Jack, 294 U.S. 158; Seabury v. Green, 294 U.S. 165. The decree discharging the executors amounts to a construction of the Illinois statute by a court of the state, and a court of special competence and experience in disposing of such questions. There being no satisfactory showing that the decision overpasses the bounds of jurisdiction, we yield to its authority. The decree of the Circuit Court of Appeals is reversed and the order of the Board of Tax Appeals affirmed. Reversed. NOTES [1] The decree of the Probate Court of Cook County, Illinois, the place of administration, was made on February 26, 1925, and, the text being important, is quoted in full: "IN THE MATTER OF THE ESTATE OF CHARLES H. HULBURD, DECEASED. "This day came Hugh McBirney Johnston and DeForest Hulburd, executors of the last will and testament of Charles H. Hulburd, deceased, and presented to the court and filed herein their final account with the estate of said decedent, showing that said estate has been fully administered. "And it now appearing to the court that more than one year has elapsed since the granting of letters testamentary herein; that due notice has been given to all of the heirs at law, legatees and beneficiaries; that all assets of said estate have been collected; that no claims have been filed against said estate; that specific legacies have been paid; that the inheritance tax, federal estate tax, income tax, court costs and all other costs and expenses of administration herein have been paid, and that the balance of said estate has been distributed according to the last will and testament of said decedent, and guardian ad litem consenting to the approval of said final account. "It is therefore ordered by the court that said final account be approved and recorded, that the estate be and it is declared settled and that the executors be and they are hereby discharged." [2] Commissioner v. New York Trust Co., 54 F. (2d) 463; Haag v. Commissioner, 59 F. (2d) 516; Burnet v. San Joaquin Fruit & Investment Co., 52 F. (2d) 123; Warner Collieries Co. v. United States, 63 F. (2d) 34; American Equitable Assurance Co. v. Helvering, 68 F. (2d) 46; Continental Products Co. v. Commissioner, 66 F. (2d) 434; Buzard v. Helvering, 64 App. D.C. 268; 77 F. (2d) 391; Commissioner v. Nichols & Cox Lumber Co., 65 F. (2d) 1009; Pittsburgh Terminal Coal Corp. v. Heiner, 56 F. (2d) 1072. [3] "Upon notice to the Commissioner that any person is acting in a fiduciary capacity for a person subject to the liability specified in section 280, the fiduciary shall assume, on behalf of such person, the powers, rights, duties, and privileges of such person under such section (except that the liability shall be collected from the estate of such person), until notice is given that the fiduciary capacity has terminated." [4] Cf. 14 Halsbury, Laws of England, 2d ed., pp. 171, 269, 287, 288, and cases cited. [5] See Woerner, The American Law of Administration, 3d ed., vol. 3, §§ 571, 572, 573, where the cases are brought together. [6] Minnesota: Security Trust Co. v. Black River National Bank, 187 U.S. 211, 234, reviewing the state decisions; State ex rel. Matteson v. Probate Court, 84 Minn. 289, 293; 87 N.W. 783 (Since 1903 the right to a discharge has been reinforced by statute. Acts of 1903, c. 195; 1 Mason's Stats., 1927, § 8886.); Missouri: Grayson v. Weddle, 63 Mo. 523, 539, 540; State ex rel. Stotts v. Kenrick, 159 Mo. 631; 60 S.W. 1063; In re Estate of Rooney, 163 Mo. App. 389, 394; 143 S.W. 888; cf. Kentucky: U.S. Fidelity & Guaranty Co. v. Martin, 143 Ky. 241, 242, 243; 136 S.W. 200; West Virginia: Downey v. Kearney, 81 W. Va. 422, 426; 94 S.E. 509. See also, Alabama: Modawell v. Holmes, 40 Ala. 391, 404; Hicky v. Stallworth, 143 Ala. 535, 540; 39 So. 267; Code, 1928, § 5962; California: Willis v. Farley, 24 Cal. 490, 502; In re Clary, 112 Cal. 292, 294; 44 P. 569; Probate Code, 1933, § 1066; Georgia: Carter v. Anderson, 4 Ga. 516; Groce v. Field, 13 Ga. 24, 30; Code, 1933, § 113-2302; Iowa: Diehl v. Miller, 56 Iowa 313; 9 N.W. 240; Code, 1931, § 12052; Kansas: Musick v. Beebe, 17 Kan. 47, 53, 54; Proctor v. Dicklow, 57 Kan. 119, 125; Rev. Stats., 1923, § 22-931; Montana: State ex rel. Petters & Co. v. District Court, 76 Mont. 143, 148; 245 P. 529; Rev. Code, 1921, §§ 10311, 10331; Pennsylvania: Vandever's Appeal, 42 Pa. 74; Estate of John Wiseman, 12 Phila. 11; 20 Purdon's Stats., § 911; South Carolina: Seabury v. Green, 294 U.S. 165, 169; Quick v. Campbell, 44 S.C. 386, 392; 22 S.E. 479; McNair v. Howle, 123 S.C. 252, 266; 116 S.E. 279; Code, 1932, § 9024. [7] Leading cases in Illinois are brought together in this note for the purpose of distinguishing dictum from decision: Blanchard v. Williamson, 70 Ill. 647, 650, holds that a discharge of an administrator will be treated as a nullity if made while the estate is in course of administration; Diversey v. Johnson, 93 Ill. 547, 558, holds that a discharge is of no effect if obtained by the administrator with notice of an outstanding claim and in fraud of the rights of the adverse claimant (cf. People v. Rardin, 171 Ill. App. 226, 230); Bayless v. People, 56 Ill. App. 55, 58, holds that a surety is liable on an executor's bond where a balance available for creditors was wrongfully distributed; Starr v. Willoughby, 218 Ill. 485, 492; 75 N.E. 1029, holds that a power in trust, unrelated to the office of executor, will survive a decree which purports to discharge him; and Maguire v. City of Macomb, 293 Ill. 441, 453; 127 N.E. 682, is substantially to the same effect. No case has been found where an executor whose discharge had been decreed after a full and fair accounting has been held suable thereafter in his representative capacity. [8] Laws of 1872, p. 77, at pp. 105, 106, § 112; amended by Laws of 1919, p. 1, at p. 3; Laws of 1931, p. 6; Laws of 1933, p. 3, at p. 6; now Revised Statutes, 1935, c. 3, § 114. [9] See Laws of 1931, p. 6. [10] Laws of 1872, p. 77, at p. 92, § 59; Laws of 1919, p. 1, at p. 2; now Revised Statutes, 1935, c. 3, § 60. [11] Still another inroad upon the common-law rule is made by a statute allowing an executor to resign whenever it appears to the court that a resignation is proper. Laws of 1872, p. 77, at p. 88, § 40; now Revised Statutes, 1935, c. 3, § 41.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/2499582/	120 F. Supp. 2d 503 (2000) UNITED STATES of America, Plaintiff, v. Marvin PESSES, et al., Defendants. No. Civ.A. 90-654. United States District Court, W.D. Pennsylvania. March 21, 2000. Robert L. Eberhardt, United States Attorney's Office, Pittsburgh, PA, Robert C. Goodman, United States Department of Justice, Environment & Natural Resources Division, Carl Strass, United States Department of Justice, Patricia Ross McCubbin, United States Department of Justice, Environmental Defense Section, Washington, DC, for U.S. Anthony P. Picadio, Picadio, McCall, Kane & Norton, Pittsburgh, PA, for Marvin Pesses. Joseph V. Bullano, New Castle, PA, for Lawrence County Industrial Development Authority. 504 Andrew M. Stone, Stone & Stone, Pittsburgh, PA, Laura B. Ahearn, James R. Wrathall, Wilmer, Cutler & Pickering, Washington, DC, for AVCO Corp., Sherritt Gordon Mines, Ltd. Thomas C. Reed, Buchanan Ingersoll, Pittsburgh, PA, for CKE, Inc. William M. Dallas, Jr., Sullivan & Cromwell, New York, NY, Antoinette R. Stone, Raymond McGarry, Richard W. Hayden, Buchanan Ingersoll, Philadelphia, PA, for Climax Performance Materials, Inc. Joseph A. Tate, Alison M. Benders, Stephen A. Brown, Dechert, Price & Rhoads, Philadelphia, PA, David A Sudbury, James L. Aubuchon, Dallas, TX, for Commercial Metals Co. Ronald L. Hicks, P. Christian Hague, Meyer, Unkovic & Scott, Pittsburgh, PA, Martha Koster, Lee Glickenhaus, Jeffrey R. Porter, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, Boston, MA, for Dana Corp. Michael R. Turoff, Arnstein & Lehr, Chicago, IL, for Dreyfuss Metal Co. Joseph R. Brendel, David G. Ries, Thorp, Reed & Armstrong, Pittsburgh, PA, for Flowline Corp. Robert A. Emmett, Reed, Smith, Shaw & McClay, Washington, DC, for G. O. Carlson, Inc., Intra-American Metals, Inc., J. M. Cousins, Co., Thalheimer Bros., Inc. Michael A. Centanni, Gould Inc., Eastlake, OH, for Gould, Inc. Joseph S.D. Christof, II, Peter T. Stinson, Dickie, McCamey & Chilcote, Pittsburgh, PA, for Luntz Corp. William M. Wycoff, Randolph T. Struk, Thorp, Reed & Armstrong, Pittsburgh, PA, Lois Ellen Gold, UNOCAL, Los Angeles, CA, for Molycorp, Inc. Curtis A. Westfall, Hill, Farrer & Burrill, Los Angeles, CA, for Monico Alloys, Inc. Jeffrey J. Harmon, Cors & Bassett, Cincinnati, OH, for Moskowitz Brothers, Inc. Richard Henderson, Motorola Law Dept., Washington, DC, Christopher P. Davis, Goodwin, Prother & Hoar, Boston, MA, for Motorola, Inc. Patrick M. Raher, David F. Grady, Stephen G. Vaskov, Washington, DC, for Frank H. Nott, Inc. Daniel I. Sheridan, Shanley & Fisher, Morristown, NJ, Schaff, Motiuk, Cladstone & Reed, Flemington, NJ, Craig S. Provorny, Herold & Haines, Warren, NJ, for Omnitek, Inc. Philip G. Spellane, Harris, Beach & Wilcox, Rochester, NY, for Rochester Smelting and Refining Co., Inc. Howard J. Wein, Michael J. Manzo, Klett, Lieber, Rooney & Schorling, Pittsburgh, PA, for Segel & Son, Inc. Richard T. Buchanan, Patrick T. Ryan, Gary D. Ammon, Bonnie Allyn Barnett, Adam M. Kushner, Michael K. Sullivan, Drinker, Biddle & Reath, Philadelphia, PA, for Union Carbide Corporation. Brenda J. Joyce, Jaeckle, Fleischmann & Mugel, Buffalo, NY, Paul Falick, ICC Industries, Inc., New York, NY, for ICC Industries, Inc. Charles C. Casalnova, John R. O'Keefe, Jr., Kincaid, McGrath & O'Keefe, Pittsburgh, PA, R. Bradford Fawley, Alfred E. Smith, Jr., Michael Petropoulos, Michael J. Donnelly, Murtha, Cullina, Richter & Pinney, Hartford, CT, for Suisman and Blumenthal. John A. Scaldara, Wright, Constable & Skeen, Baltimore, MD, John A. Scaldara, Donald J. Walsh, Scaldara & Potler, Baltimore, MD, for Locust Industries Ltd. John Michael Slogar, Gillis & Slogar, Houston, TX, for Minor Metals, Inc. John Stanley Hoffman, David B. Wrinkle, Sheffer Hoffman, Henderson, KY, for Tungco Co. 505 FINDINGS OF FACT AND CONCLUSIONS OF LAW ZIEGLER, Chief Judge. (1) This is a civil action for money damages and equitable relief filed by the United States against 28 defendants for the recovery of costs and expenses related to the treatment, removal and disposal of hazardous substances at the Metcoa Radiation Site located at Pulaski, Pennsylvania. (2) Jurisdiction is based on 42 U.S.C. §§ 9607 and 9613(b), and 28 U.S.C. §§ 1331, 1345 and 1367. Venue is appropriate in this court based on 28 U.S.C. § 1391(b). (3) At all relevant times, Marvin Pesses was a major shareholder of Metcoa, Inc. Pesses was an operator of the site within the meaning of Section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2), due to his substantial ownership of Metcoa and because he exercised control over the operations of the company. (4) The site was used by Metcoa between 1975 and 1983 to process scrap metal, waste sludge, radioactive materials and nickel cadmium batteries. Various metals were then removed from these materials, and hazardous substances were stored at the site before and after the materials were processed by Metcoa. (5) In 1986, the Environmental Protection Agency determined that approximately three thousand 55-gallon drums containing hazardous substances, many leaking and deteriorating, were at the site. These hazardous substances included cadmium, chromium, copper, lead, magnesium, mercury, nickel, thorium and zinc, some of which had been released into the air, soil and water. The site also contained elevated levels of radiation. (6) The United States incurred substantial response costs and expended funds to investigate, stage, sample, stabilize and secure the site. The instant civil action was filed by the United States asserting that the defendants were jointly and severally liable for the costs pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a). Defendants then filed original and amended third party complaints against 195 third party defendants. (7) After extensive settlement negotiations, the United States reached a settlement with various defendants and a consent decree was signed by the court on June 19, 1997. Thereafter, the parties were realigned, "cash out" parties were dismissed, and the Settling Parties filed an amended complaint. (8) The Settling Parties asserted various claims for contribution against the non-settling parties based on CERCLA, the Pennsylvania Hazardous Sites Clean-Up Act, 35 P.S. § 6020.101, and common law. On August 31, 1998, the district court granted partial summary judgment for the Settling Parties at Count II, based on Section 113 of CERCLA, on the issue of liability against third party defendants, Bay Metal, Inc., ICC Industries, Inc., Lake City, Inc., M. Berkowitz & Co., Inc., Molycorp, Inc., and Oregon Metallurgical, Inc. The motions of the third party defendants for judgment were granted against the Settling Parties at Counts I, III, V and VI of the amended complaint. (9) The Settling Parties reached an amicable settlement with the above third party defendants, with the exception of Bay Metal, Inc. The action for contribution by the Settling Parties proceeded to trial against Bay Metal before this member of the court. (10) In this civil action for contribution based on Section 113 of CERCLA, each of the Settling Parties bear the burden of establishing a reasonable basis for apportioning liability upon Bay Metal, Inc., and the third party plaintiffs bear the burden of proving the elements of their claims, including causation, by a preponderance of the evidence. United States v. Alcan Aluminum Corp., 964 F.2d 252, 270 n. 29 (3d Cir.1992). 506 (11) The evidence preponderates that the Settling Parties incurred $10,023,015.36 in site investigation and removal (response) costs, which we find are recoverable, reasonable and consistent with the National Contingency Plan and CERCLA, 42 U.S.C. § 9613. (12) The settlement of claims embodied in the Consent Decree was based primarily on the weight of the materials, toxicity and contribution to the harm at the site. The settlement is fair, reasonable and consistent with the public interest. (13) The response costs incurred at the site arose in response to and were caused by the processing of materials by Metcoa which produced the commingled waste materials at the site. The response actions were required and the evidence preponderates that the response costs incurred cannot be apportioned separately based on a particular type of metal. (14) Various hazardous substances located at the site were present due to the processing of materials by the Pesses Company and Metcoa, and were purchased from sources which included Bay Metal. U.S. v. Pesses, 794 F. Supp. 151, 154 (W.D.Pa.1992). (15) Hazardous substances at the site were metals entrained in slag and dust which were discarded waste products of smelting operations conducted by Metcoa. No discrete materials were identified as belonging separately to any of the parties to this civil action during the site investigation, studies and removal activities. The slag and dust at the site after Metcoa's processing were commingled into an indivisible mass of waste materials. (16) Metcoa originally possessed a license from the Nuclear Regulatory Commission to handle radioactive materials during the time of the transactions with Bay Metal and the license was a public record. (17) Pursuant to an administrative order issued by the EPA in 1990, some of the Settling Parties performed site investigation and removal activities with respect to the hazardous substances present at the site, while other Settling Parties performed additional site stabilization in 1989 pursuant to an administrative order on consent. (18) The Settling Parties performed additional site investigation and removal actions at the site pursuant to the Consent Decree entered into with the United States and approved by this Court in an order dated June 19, 1997. (19) Pursuant to the Consent Decree, the Settling Parties participated in removal of contaminants at the site and reimbursed the United States for $1.95 million in past costs and reimbursed other parties who performed the work. (20) The costs incurred by the Settling Parties, which are recoverable under CERCLA, are reasonable and consistent with the National Contingency Plan. The recoverable costs are as follows, preceded by the type: (a) Reimbursement of EPA past costs pursuant to the Consent Decree $1,950,000; (b) Administrative Order GSX Laid-law $3,408,749.13; (c) Administrative Order ENSR Constructors $97,672.93; (d) Administrative Order de maximus $417,232.55; (e) Consent Decree CEC Consultants $2,022,468.07; (f) Consent Decree OHM Consultants $1,925,331.28; and (g) Consent Decree WCX Consultants $201,543.40. (21) The evidence preponderates that the expenses total $10,023,015.36 (22) In its evaluation of the remediation requirements at the site, the EPA considered the number of metals, including metals which may have originated from materials sent to the site by Bay Metal. 507 (23) The metals targeted by the EPA for site investigation and for clean-up included nickel, which was sold by Bay Metal to Metcoa. (24) The evidence preponderates that, during the period of operation of the site by Metcoa, Bay Metal was a substantial contributor of metals leading to the classification of Bay Metal as the sixth largest contributor (by weight) to the site of the parties to this litigation. (25) Other parties were found liable by the court although they did not contribute nickel, cadmium or thorium to the site. (26) Pursuant to a court sanctioned allocation development process, TLI Systems, Inc. was retained to compile a database, which included sales orders, purchase sheets, gate log entries, material types, and assumed weights of materials. The assumptions were based on the history and usage by companies involved at the site. (27) Bay Metal did not dispute the weights or assumptions used in the TLI database. (28) TLI's database considered allocation factors which are known as Gore Factors such as volume (by weight), site conditions and toxicity of materials. The database reflects volumes (by weight) of materials transported to the site. The database became the basis of a settlement among the parties. (29) Matthew Low prepared a database which considered the relative contributions (by weight), and the fact that the removal was performed due to the generation and commingling of waste materials while Metcoa was processing the metals at the site. He concluded that the database was a reasonable basis for the allocation of the costs. (30) The evidence preponderates that Bay Metal declined to participate in any remediation work at the site, objected to the entry of the Consent Decree by which other parties performed remediation response actions at the site, and declined to participate in the Consent Decree after the court determined that Bay Metal was a liable party under CERCLA. (31) Bay Metal failed to perform any due diligence with respect to the operations of the Metcoa site such as (a) a representative of Bay Metal only visited the site five years after the transactions began; (b) Bay Metal never toured the site, (c) Bay Metal failed to review or request information regarding the Nuclear Regulatory Commission license; (d) Bay Metal failed to contact either the Pennsylvania Department of Environmental Protection, or the Department of Health concerning the site; and (e) Bay Metal had no knowledge of the environmental compliance reputation of the facility. (32) Patrick O'Hara, an expert witness for Bay Metal, acknowledged that materials at the site were commingled and physically indivisible, thereby agreeing with the testimony for the Settling Parties regarding the lack of divisibility and the extensive commingling of hazardous substances present on the site. In fact, Mr. O'Hara testified that he was unaware of any materials removed from the site which did not include a mixture of a variety of metals. (33) In response to the testimony of Settling Parties' witnesses Matthew Low and Kenneth Miller, Bay Metal presented Patrick O'Hara and Kenneth Wise. Mr. O'Hara's testimony regarding both site conditions and division of costs, included the following: (a) Hazardous substances were commingled at the site and could not be physically divided. (b) In its orders and assessment of health risks at the site, the EPA did not identify any risk based upon whether a material was a "Hazardous Waste," the disposal of which is governed by the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et. seq., but rather evaluated the risks associated with the exposure to numerous substances at the site. *508 (c) During its evaluations, the EPA identified numerous metals which were classified as hazardous substances under CERCLA and reviewed exposure scenarios associated with those metals in assessing the risks at the site. (d) Mr. O'Hara did not review, in connection with his opinion: (i) The EPA's past costs; (ii) The costs incurred by some of the Settling Parties to comply with the 1990 administrative order; and/or (iii) Study and testing costs. (34) Dr. Wise relied upon Mr. O'Hara's testimony regarding disposal costs in developing a percentage of costs assignable to Bay Metal. His opinion: (a) Failed to refute or dispute either the weights assigned to any parties in TLI's database or Mr. Low's testimony; (b) Failed to include a financial review of the EPA costs or the costs incurred by some Settling Parties with respect to the 1990 administrative order; (c) Failed to consider any of the contributions of any other parties at the site other than Bay Metal and the alleged thorium contributors; (d) Failed to consider the increase in volume of wastes due to commingling; (e) Did not consider the fact that the EPA added nickel and cadmium to develop the health risk level; (f) Did not review other companies' contributions as to category of costs that fit within in his calculation of a share for the so-called "nickel parties"; (g) Was based in economic theory and not on any of the Gore factors; and (h) Advanced a theory that has not been judicially accepted in any other CERCLA action. (35) The burden of showing the divisibility of costs in a CERCLA action is upon the party asserting a defense to liability. United States v. Rohm and Haas Co., 2 F.3d 1265, 1280 (3d Cir.1993). Bay Metal has failed to sustain its burden by a preponderance of the evidence. (36) The evidence preponderates that the response costs incurred at the site arose in connection with the processing of materials by the Pesses Company (Metcoa), which led to the commingled waste materials at the site. The response actions were necessary and the response costs are incapable of separate apportionment by party based on a particular metal type. (37) Bay Metal's proposed allocation is neither consistent with its treatment of the parties nor reasonable because it advocates an assessment for metal types, but does not consider the fact that the materials were commingled and incapable of segregation. (38) Bay Metal's proposed allocation is unreasonable because it fails to consider the material types transported by other companies, in spite of the fact that Bay Metal advocates that allocation shares should be based on metal types. (39) The evidence preponderates that, using the so-called Gore factors of contribution to the harm, toxicity of the waste volume (by weight), and cooperation with the government by the Settling Parties, judgment must be entered against Bay Metal in the amount of $1,495,267, with interest commencing on the date of this judgment.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499578/	120 F. Supp. 2d 635 (1999) UNITED STATES of America, Plaintiff, v. Robert W. MEYER, Jr., Defendant. No. 1:97-CV-526. United States District Court, W.D. Michigan, Southern Division. August 26, 1999. 636 Kurt N. Lindland, W. Francesca Ferguson, Asst. U.S. Attorney, U.S. Attorney's Office, Grand Rapids, MI, Elliot M. Rockler, Bruce S. Gelber, Randall M. Stone, U.S. Department of Justice Environment & Natural Resources Division, Washington, DC, for Plaintiff. John D. Dunn, Dean Sean Schindler, Warner Norcross & Judd, LLP, Grand Rapids, MI, Richard J. Quist, Grand Rapids, MI, T. Michael Doyle, Doyle Group Attorneys, PC, Lansing, MI, Richard J. Quist, Richard J. Quist Law Office, Lowell, MI, for Defendant. OPINION ENSLEN, Chief Judge. In this action under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq., the United States seeks to 637 recover its response costs for containment and remediation actions at a contaminated site in Cadillac, Michigan. Both the United States and Defendant Robert W. Meyer, Jr. have filed motions for summary judgment. After considering the issues, the Court will grant the United States' Motion for Partial Summary Judgment and deny Meyer's motion. FACTS This case involves a Superfund site located in Cadillac, Michigan. The property in question ("the Property") was owned by R.W. Meyer, Inc. at all times relevant to this litigation. Robert W. Meyer, Jr. was an officer and shareholder of R.W. Meyer, Inc., a family-owned business, between 1964 and 1982. He was also an employee of a second family business, R.W. Meyer Construction Company. R.W. Meyer, Inc. intended to develop the Property as a mini-industrial park. To that end and to service an existing tenant, R.W. Meyer Construction Company built a private sewer line along the perimeter of the property ("the perimeter sewer line"), which connected with the municipal sewer system. Meyer supervised and assisted with the construction of the perimeter sewer line. Because the grade at the site did not allow complete drainage of the perimeter sewer line to the municipal sewer, some of the waste water in the perimeter sewer line routinely leaked into the ground through joints loosely sealed with Oakum, a tar substance. Meyer was aware that this would occur. In the early 1970s, the Cadillac Chamber of Commerce approached Meyer regarding leasing a portion of the Property to Northernaire Plating Company ("Northernaire"), an electroplating business. Meyer, on behalf of R.W. Meyer, Inc., negotiated a lease with Northernaire. Under the lease, R.W. Meyer, Inc. agreed to construct a building on the Property for Northernaire's use and to provide the water, sewer, plumbing and heating for the building. R.W. Meyer, Inc. contracted with Meyer Construction to perform this task.[1] Meyer was an employee, shareholder and member of the Board of Directors for Meyer Construction Company and supervised the construction of the Northernaire building and a sewer line connecting sinks and a bathroom within the building ("the eastern sewer line") to the perimeter sewer line. In addition, floor drains were installed in the building, which drained directly into the ground, and, at some later point, a second sewer line ("the northern sewer line") was extended from the area around the floor drains to the perimeter sewer line. Meyer denies installing either of these drainage systems, although he admits that the floor drains were in place when he poured the concrete floor in the Northernaire building. Northernaire used the floor drains and the northern sewer line to dispose of waste water from the electroplating process. The United States asserts that Northernaire told Meyer it intended to dispose of rinse water through the floor drains and into the sewer; Meyer states that Northernaire promised to dispose of all industrial wastes offsite. Throughout the period of the lease, Meyer maintained and repaired the eastern and perimeter sewer lines and, at some point, built a manhole at the intersection of the eastern sewer line and the perimeter sewer line to facilitate these services. At the request of Donald Rennie, the Supervisor of the City of Cadillac's Wastewater Treatment Plant, Meyer installed a sampling manhole on the perimeter sewer line. Meyer was also the primary contact for Northernaire and visited the site approximately six times throughout the course of the lease. In 1975 or 1976, the contaminant levels in the effluent from the Northernaire facility became unacceptably high. Rennie informed Meyer of the violations no later than 1978. Later that year, the City of 638 Cadillac barred Northernaire from using the municipal sewer system and plugged the connection between the Northernaire building and the municipal sewer. By 1981, Northernaire was out of business. In 1982, the Michigan Department of Environmental Quality ("MDEQ") began investigating the Property and, in 1983, the United States Environmental Protection Agency ("USEPA") joined the investigation. MDEQ found elevated levels of cyanide, lead, nickel, chromium, copper and zinc in the soil. These hazardous materials are commonly associated with the electroplating industry. USEPA found elevated levels of chromium and cadmium in the soil surrounding the northern sewer line and in sediment in the sewer manholes and elevated levels of hexavalent chromium in the groundwater under the Property. In 1983, USEPA placed the Property on the National Priorities List and took various removal and clean up actions in response to the contamination on the Property. Subsequently, the United States filed a cost recovery action against various parties, including R.W. Meyer, Inc. Judgment was eventually entered against R.W. Meyer, Inc. The United States then filed a second suit which named Meyer individually among the defendants. The other defendants to this suit entered into a Consent Decree with USEPA on September 4, 1998. The United States and Meyer have filed cross-motions for summary judgment on liability. STANDARD OF REVIEW A court may grant a motion for summary judgment if "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." City Management Corp. v. U.S. Chemical Co., Inc., 43 F.3d 244, 250 (6th Cir.1994). The court must view the facts presented in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), and draw all reasonable inferences in the nonmovant's favor, Rakoczy v. Traveler's Insurance Co., 959 F. Supp. 777, 781 (E.D.Mich.1997). A party seeking summary judgment must specify the basis upon which judgment should be granted and identify that portion of the record which demonstrates the absence of a genuine issue of material fact. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). If this burden is met, the non-moving party must provide facts, supported by evidence in the record, "upon which a reasonable jury could find there to be a genuine fact issue for trial." Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d 201, 205 (6th Cir.1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). DISCUSSION To demonstrate Meyer's liability under CERCLA, the United States must show that there has been a release or threatened release of a hazardous substance from a facility which caused the United States to incur response costs and that Meyer meets the definition of a potentially responsible party ("PRP"). Kalamazoo River Study Group v. Rockwell Int'l Corp., 171 F.3d 1065, 1068 (6th Cir.1999). The United States asserts that hazardous substances were released from the sewer lines on the Property, which constitute a facility separate from the Northernaire plant, and that Meyer qualifies as a PRP because he was the former operator of the sewer lines. CERCLA defines both facility and release broadly. A facility is defined, in part, as "any site or area where a hazardous substance has been deposited, stored, disposed of or placed, or otherwise come to be located...." 42 U.S.C. § 9601(9). Courts have interpreted this language to 639 mean that "facility" includes "every conceivable place where hazardous substances come to be located." Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1151 (1st Cir.1989). Because hazardous substances may come to be located in several discrete locations in a given case, there may be several "facilities" related to a single hazardous waste discharge or disposal. Brookfield-North Riverside Water Commission v. Martin Oil Marketing, Ltd., No. 90 C 5884, 1992 WL 63274, 5 (N.D.Ill. March 12, 1992). The undisputed facts show that, between 1972 and 1978, Northernaire discharged waste waters containing hazardous substances into at least one of the sewer lines exiting its building and that those hazardous substances were deposited in the adjoining sewer lines. Accordingly, the sewer lines, collectively and individually, qualify as a CERCLA "facility." A release is defined as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment ...." 42 U.S.C. § 9607(22). Sampling conducted by and for USEPA and MDEQ showed contaminated soils along both the eastern and northern sewer lines and in the vicinity of the floor drains and elevated chromium levels in sewer sediments. In addition, effluent sampling conducted in the perimeter sewer line, which was not properly sealed to prevent leaks, recorded elevated levels of chromium and other hazardous materials. Taken together, these facts demonstrate a release from the northern and eastern sewer lines and the floor drains and a likely release from the perimeter sewer line. The United States has also provided ample evidence that it incurred response costs as a result of these releases or threatened releases. Among other things, the United States removed the northern sewer line and floor drains, excavated and disposed of contaminated soils surrounding the excavations and contaminated sewer sediments, and implemented a groundwater extraction and treatment system. Determining whether Meyer can be considered an operator is more complicated. CERCLA extends liability to former owners and operators, defined as "any person[s] who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of." 42 U.S.C. § 9607(a)(2). Operator liability under CERCLA "is concerned primarily with direct liability for one's own actions," United States v. Bestfoods, 524 U.S. 51, 118 S. Ct. 1876, 1886, 141 L. Ed. 2d 43 (1998), and extends to any person who "directs the workings of, manages, or conducts the affairs of a facility," id. at 1887. Because of CERCLA's concern with environmental contamination, this authority must relate to "operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations." Id. However, a party need not exercise complete control over all decisions in the chain of events which results in a release to incur operator liability. Rather, where the party's operational decisions, in conjunction with surrounding circumstances, contribute to a release, operator liability may attach. See Westfarm Associates v. Washington Suburban Sanitary Comm'n, 66 F.3d 669, 680-81 (4th Cir.1995). Applying that principal, courts have found that the operation and management of municipal sewer lines may create owner/operator liability under CERCLA. See id.; Lincoln Properties, Ltd. v. Higgins, 823 F. Supp. 1528, 1535-36 (E.D.Cal.1992). In Westfarm, the Fourth Circuit found that the Washington Suburban Sanitary Sewer Commission ("WSSC") was liable under CERCLA for the release of toxic substances deposited in the municipal sewer system and released through leaky joints and cracks in the sewer pipes. Westfarm, 66 F.3d at 680-81. The Court noted that CERCLA does not take a simplistic view of who is and is not a `polluter,' 640 id. at 681, and found that, although the WSSC did not make the decision to release toxic substances to the sewer, its control over and failure to adequately maintain the municipal sewer line "earned it some responsibility for the contamination," id. This reasoning is also applicable to the owner/operator of a private sewer system, such as the sewer system constructed by Meyer. Because the United States seeks to establish Meyer's personal liability, it must also show either that the corporate veil should be pierced or that Meyer was personally involved or "intimate[ly] participat[ed]" in the operation of the sewer system. Carter-Jones Lumber Co. v. Dixie Distributing Co., 166 F.3d 840, 846 (6th Cir.1999). The latter inquiry must focus on Meyer's actual exercise of control over the operation of the sewer system, rather than his capacity to do so. Bestfoods, 118 S.Ct. at 1889. The United States invokes the second prong of this test, providing undisputed evidence that Meyer was heavily and personally involved in the construction and maintenance of the eastern and perimeter sewer lines. Based on Meyer's role as the party directing the construction, alteration and repair of these lines, the Court finds that Meyer operated the eastern and perimeter sewer lines. Hazardous wastes were deposited in [both the eastern and perimeter sewer lines] and were released from these lines. Accordingly, the Court finds that Meyer qualifies as an operator of the eastern and perimeter sewer lines for CERCLA purposes.[2]See Bestfoods, 118 S.Ct. at 1887; Lincoln Properties v. Higgins, 823 F. Supp. 1528, 1534-35 (E.D.Cal.1992); K.C.1986 Limited Partnership v. Reade Manufacturing, 33 F. Supp. 2d 1143, 1153 (W.D.Mo.1998). In his opposition, Meyer argues that he should not be held liable for the toxic substances generated by Northernaire, because he was unaware of their generation or disposal. In essence, Meyer is arguing for the "innocent landowner" or "third party" defense. CERCLA provides a limited defense where the defendant can prove: (1) that another party was the `sole cause' of the release of hazardous substances and the damages caused thereby; (2) that the other, responsible party did not cause the release in connection with a contractual, employment or agency relationship with the defendant; and (3) that the defendant exercised due care and guarded against the foreseeable acts or omissions of the responsible party. Westfarm, 66 F.3d at 682. In prior litigation related to this site, this defense was held to be inapplicable to R.W. Meyer, Inc., because it had entered into a lease with Northernaire. United States v. Northernaire Plating Co., 670 F. Supp. 742, 748 (W.D.Mich.1987). Even assuming that this contractual relationship cannot be attributed to Meyer himself, the defense is unavailable. A party may meet the first element of the defense by demonstrating that he or she was not the "proximate cause" of the release. Lincoln Properties, 823 F.Supp. at 1540-42. A party was not a proximate cause of a release, if the release was unforeseeable and its own conduct was an "indirect and insubstantial" link in the chain of events leading to the release. Lincoln Properties, 823 F.Supp. at 1543. To meet the third element, a party must demonstrate that he or she "exercised due care with respect to the hazardous substances concerned and ... took precautions against foreseeable acts or omissions of any ... third party." Westfarm, 66 F.3d at 682 (internal citations omitted). *641 The undisputed facts in this case show that Northernaire's releases were foreseeable and that Meyer did not exercise due care to prevent these releases. When first building the perimeter sewer line, Meyer knew that the Property would be used as an industrial park whose residents would probably generate industrial waste water, but he did not build the perimeter sewer line to accommodate such wastes. Meyer also knew that Northernaire would generate hazardous wastes and that the City of Cadillac intended to sample sewer effluent from the Northernaire plant to monitor for hazardous wastes, but took no action to prevent the release of such wastes. Although Meyer asserts that Northernaire promised to dispose of all hazardous wastes off-site, he did not incorporate this understanding into the lease agreement negotiated with Northernaire or otherwise limit the wastes Northernaire could release to the eastern or perimeter sewer lines. Meyer made no effort to monitor Northernaire's releases himself or to review the sampling conducted by the City of Cadillac. Meyer took no action when Rennie informed him that Northernaire's sewer effluents included hazardous substances, either to prevent Northernaire from releasing these substances to the eastern and perimeter sewer lines, remove Northernaire from the Property or prevent leaking or leaching from the sewer lines. Accordingly, Meyer is not protected from liability by the "innocent landowner" or "third party" defense. CONCLUSION For the reasons given above, this Court finds that Meyer is personally liable under CERCLA as the operator of the eastern and perimeter sewer lines. Accordingly, the United States' Motion for Partial Summary Judgment is granted. In light of this decision, Meyer's Motion for Summary Judgment is denied. NOTES [1] Meyer Construction was a second family-held construction company which was created when R.W. Meyer Construction, Inc. dissolved. [2] Meyer repeatedly asserts that he cannot be liable, because he did not construct the northern sewer line or the floor drains. However, because the eastern and perimeter sewer lines also qualify as CERCLA facilities from which releases were made, Meyer cannot defeat liability simply by showing that he was not involved with or aware of the northern sewer line.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499874/	257 F. Supp. 2d 1330 (2003) Victoria S. HILLMAN, Plaintiff, v. UNITED STATES POSTAL SERVICE, William F. Henderson, Postmaster General, Defendant. No. 97-4041-SAC. United States District Court, D. Kansas. March 19, 2003. 1332 Ira Dennis Hawver, Ozawkie, KS, for Plaintiff. D. Brad Bailey, Nancy Landis Caplinger, Topeka, KS, for Defendants. MEMORANDUM AND ORDER CROW, Senior District Judge. This case comes before the court on defendant's motion for order of satisfaction 1333 of judgment, apparently filed pursuant to Fed.R.Civ.P. 60(b)(5), (Dk. 263), and on plaintiffs motion for demand of judgment (Dk. 265). This case is no stranger to the court, as the parties have come before the court numerous times both before and after plaintiff, acting pro se, won a victory on her Title VII retaliation claim, but lost on her discrimination claim. The court initially reinstated plaintiff, but was later convinced by both parties that such relief was indeed unworkable, and amended its judgment to money damages in lieu of reinstatement. This litigation has been marked by an unusual degree of animosity, which is reflected in the current motions showing distrust as well as disagreement with the other party's calculations of interest and other accounting matters relating to the court's award of monetary damages. The court is convinced, based upon specific representations in the current pleadings and the overriding disputatious tenor of the course of the proceedings to date, that the parties are and will remain unable to resolve these issues absent intervention by the court. Calculations of this sort are usually jointly determined by the parties after reviewing the orders in the case, applying the employer's standard procedures and accounting programs, and engaging in reasonable negotiations between the parties. This normal course of achieving finality has been complicated in this case not only by plaintiffs pro se status, but also by inconsistent positions or expressions of position by the USPS payroll center in Eagan, Minnesota. Added to that mix is the complex procedural history of the case itself, both as reflected in and flowing from the court's prior orders relating to plaintiffs relief, producing a true Gordian knot. Facts The procedural history of the case will not be repeated herein. Suffice it to say that USPS has already paid to plaintiff amounts in excess of $546,000.00 in satisfaction of the judgment, representing front pay, back pay, compensatory damages, benefits, and interest. See Dk. 263 Exhibits. Plaintiff contends[1] the following amounts remain unpaid and are owed:[2] Back pay interest $34,694.30 Compensatory damage interest $214.01 Front pay interest $4,606.98 Bonus reimbursement $184.52 Annual leave $596.55 Sick leave $16,555.45 Overpaid taxes and interest $14,763.31 Thrift Savings Program $26,377.84 Mileage $5,399.80 Total $103,392.76 In its pleadings relative to this issue,[3] the government agrees to pay to plaintiff the following amounts, some of which it concedes are properly owed to plaintiff, and some of which it merely agrees to pay to resolve the issues: Compensatory damage interest $135.79 Bonus reimbursement $184.52 Annual leave $596.55 Interest on front pay award $3,001.31 Total $3,918.17 Thus plaintiff and defendant are at least $99,474.59 apart. Rule 60(b) Standards Rule 60 of the Federal Rules of Civil Procedure has been called the "grand 1334 reservoir of equitable power to do justice in a particular case." F.D.I.C. v. United Pacific Ins. Co., 152 F.3d 1266, 1272 (10th Cir.1998) (quotation omitted). Accordingly, the district court retains substantial discretion "to grant relief as justice requires under Rule 60(b), yet such relief is extraordinary and may only be granted in exceptional circumstances." Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.2000). "A litigant shows exceptional circumstances by satisfying one or more of Rule 60(b)'s six grounds." Van Skiver v. United States, 952 F.2d 1241, 1243-44 (10th Cir.1991), cert. denied, 506 U.S. 828, 113 S. Ct. 89, 121 L. Ed. 2d 51 (1992). Rule 60(b) provides in relevant part: On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... (5) the judgment has been satisfied, released, or discharged ... USPS has paid a substantial amount to plaintiff in satisfaction of the judgment to date. Yet by its own admissions, it continues to owe plaintiff certain sums. Thus the judgment has not been satisfied, and USPS's motion for an order of satisfaction of judgment shall be denied as premature. To the extent that plaintiffs motion seeks amounts in addition to those already awarded by the court, her motion would more properly be styled as a motion to alter or amend. The court examines plaintiffs claims, in the order they were summarized above. Back Pay Interest Plaintiff contends that defendant owes her $34,694.30 in interest on her back pay award. The parties agree defendant paid plaintiff $89,934.62 on April 30, 2002, as interest on plaintiffs back pay award. Plaintiff contends that this amount was improper, challenging the amount of gross back pay, the amount of adjusted gross pay on which interest was calculated, and the computer programs used by the USPS to calculate interest on the adjusted gross pay. The court previously reviewed and rejected certain claims of error from plaintiff regarding back pay interest, and will not reexamine that holding. See Dk. 257. Plaintiff now contends that the amount of gross back pay should include payment for overtime that she would have worked, "absent the unlawful discrimination." (Dk. 269, p. 10). This claim is meritless, as plaintiff failed on her discrimination claim. Even had plaintiff won on that claim, however, the back pay award on her discrimination claim would not have been calculated any differently regarding overtime than the back pay award on her retaliation claim. The court's award of back pay simply does not encompass any payment for overtime not actually worked, in the absence of a showing that the employer's usual policy required such payment. As no such showing has been made here, no payment for overtime is owed. Plaintiff additionally challenges the amount of adjusted back pay, and the fact that USPS calculated interest on her adjusted backpay, instead of on her gross backpay. Although USPS's recent pleadings give rise to some confusion regarding the amount of adjusted gross backpay,[4]1335 USPS shows the court that the deductions it made from plaintiffs gross pay to reach an adjusted backpay figure are deductions routinely taken, including items such as federal and state taxes, FICA, and Medicare. See Dk. 268, p. 6-8. The court agrees with USPS's position that because plaintiff would not have had these funds to invest had she been in pay status during the back pay period, she is not entitled to interest on such funds. See Greene v. Safeway Stores, Inc., 210 F.3d 1237, 1247 (10th Cir.2000) (the purpose of prejudgment interest is to compensate the wronged party for being deprived of the monetary value of her loss from the time of the loss to the payment of the judgment). Plaintiff additionally alleges that in calculating the back pay award and/or interest thereon, USPS erroneously deducted as "outside earnings" amounts she never earned during the times stated. (Dk. 267, p. 7.) Plaintiff alludes to a conversation she had with USPS employee Schuler, but fails to show the court any evidentiary support for her claim, and the court admits some lack of understanding as to the nature of this claim. Plaintiff states that USPS deducted $31.80 in outside earnings per pay period from September 1993 through September of 2001, then increased that deduction to $70.02 per pay period. It is unclear to the court whether the amount deducted by USPS is alleged to reflect plaintiffs actual earnings as a USPS employee while a rural carrier in and after 1998, spread over earlier dates, or reflects assumed interest earnings, or something else. Because plaintiff has neither explained this claim of error to the court, nor shown any evidence in support of it, and does not include any amount for this alleged error in her summary of money owed, (Dk. 269, p. 22), the court finds no basis for finding that any additional interest should be paid to plaintiff. Plaintiff also complains that USPS calculated simple interest, not compound interest, on the backpay award. USPS contends that only simple interest is owed on the back pay award, relying upon the general principle of law that in the absence of a contract or a statute specifically providing for compound interest, compound interest is not to be computed on a debt. See Cherokee Nation v. United States, 270 U.S. 476, 490, 46 S. Ct. 428, 70 L. Ed. 694 (1926); Quinlan v. Koch Oil Co., a Div. of Koch Industries, Inc., 25 F.3d 936, 941 (10th Cir.1994). USPS additionally states that the computer program it uses compounds interest by "accounting periods," (Dk. 268, p. 2), but nowhere reports what the length or scope of its accounting periods are. Prejudgment interest is not mandatory. Greene, 210 F.3d at 1247. Its purpose "is to compensate the wronged party for being deprived of the monetary value of his loss from the time of the loss to the payment of the judgment." Id. (quotation omitted). Similarly, the rate of prejudgment interest on a back pay award is a matter of the court's discretion. Kleier Advertising, Inc. v. Premier Pontiac, Inc., 921 F.2d 1036, 1042 (10th Cir.1990) ("Because there is no federal statutory interest rate on prejudgment interest, the rate imposed will be left to the trial court's discretion.") In its discretion, this court established the rate of 10% per annum for its award of prejudgment interest on plaintiffs back pay award. Hillman v. U.S. Postal Service, 2002 WL 598341, 4 (D.Kan.2002). The court did not require the prejudgment interest on that back pay 1336 award to be compounded, and does not do so now. Instead, it finds that the rate of 10% (rather than the 2.9% permitted as the post-judgment rate), is sufficiently high that no compounding is warranted. Accordingly, no further interest payments are owed plaintiff on her backpay award. Compensatory Damage Interest The parties agree that plaintiff received $859.94 from defendant on October 8, 2002, representing interest on the compensatory damages award of $80,000 from September 14, 2001 through February 15, 2001, at the rate ordered by the court. Plaintiff contends an additional $214.01 is owed, while the government contends the amount still owed is $135.79. Plaintiff contends that interest was calculated only from September 22, 2001 through February 8, 2002, that the interest should have been calculated through the date she received the interest check, and that the interest should be compounded annually. The court has previously rejected plaintiffs claim that the interest is owed to the date plaintiff received the interest check, rather than to the date USPS placed plaintiffs check in the mail. See Hillman, 2002 WL 598341, 5 n. 13 (D.Kan.2002); 28 U.S.C. '1961 (requiring interest "to the date of payment," not to the date payment is received). Plaintiff now contends that interest should be extended to run through October 8, 2002, the date USPS paid her $859.94 as interest on the compensatory damages award. In seeking an award for not having received her interest payment sooner, plaintiff demonstrates a misunderstanding of the nature of post-judgment interest. The purpose of post-judgment interest "is to compensate the successful plaintiff for being deprived of compensation for the loss from the time between the ascertainment of the damages and the payment by defendant." Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835-36, 110 S. Ct. 1570, 108 L. Ed. 2d 842 (1990). The "payment by defendant" alluded to is the payment of the underlying damage award, not the interest thereon. USPS's payment of interest in October for the time plaintiff had no use of her compensatory damages award accomplished the intended purpose of post-judgment interest. The court understands plaintiffs position that she lost interest earnings, but given the course of motions regarding this issue, see e.g., Dk. 226 (granting motion to enforce judgment of interest on compensatory damages by plaintiff), and the stays entered by the court on defendant's payment of money judgments during two intervening appeals, the court finds no unreasonable delay by USPS in its failure to pay interest to plaintiff for approximately six months. Plaintiffs loss, if any, is insignificant. Plaintiff is not entitled to an additional amount to compensate her for any delay in USPS's payment of interest on her compensatory damages award, during a period of time after she had received the compensatory damages payment and could have earned interest on it. Plaintiff additionally contends that USPS used a computer program which calculated simple interest on her compensatory damages award, rather than compounded interest, as ordered by the court for post-judgment interest. USPS has satisfied the court that although it initially used such a computer program for this calculation, it has since manually calculated interest on plaintiffs compensatory damages award in accordance with the formula required by law. Therefore, USPS shall pay to plaintiff the amount of $135.79 as additional interest on the compensatory damages award, and plaintiffs claim for a greater amount is denied. 1337 Front Pay Interest Plaintiff claims entitlement to $4,606.98 in interest on her front pay award. USPS admits that plaintiff is owed $3,001.31 as unpaid interest on her award of front pay, representing interest from the date the judgment was altered and amended, January 30, 2002, to the date the front pay award was paid by USPS, at the statutory rate of 2.95%, as ordered by the court. Plaintiff believes that front pay interest should be calculated from September 14, 2001, the date the court ordered reinstatement, instead of January 30, 2002, the date the court altered its order of reinstatement and ordered front pay in lieu thereof. The court has reviewed the parties' pleadings, and finds that the dates used by the government are proper. No interest on front pay is owed during the period of time that plaintiff was reinstated and working instead of receiving front pay. Plaintiff additionally contends that USPS used a computer program which calculated simple interest, rather than compounded interest, on her front pay award. USPS has satisfied the court that although it initially used such a computer program, it has since manually calculated interest on plaintiffs front pay award in accordance with the formula required by law. Accordingly, USPS shall pay to plaintiff the amount of $3,001.31 as interest on the front pay award, and plaintiffs claim for a greater amount is denied. Bonus Reimbursement Plaintiff claims that USPS incorrectly withheld $184.52, attributable to a retroactive union contract salary increase, as an offset against another amount it believed plaintiff owed USPS. USPS agrees. Accordingly, USPS shall pay to plaintiff the amount of $184.52 as bonus reimbursement. Annual Leave Plaintiff seeks $596.55 as compensation for 50 hours of annual leave USPS owes her. USPS agrees that this amount is owed for unpaid annual leave, thus USPS shall pay to plaintiff the amount of $596.55 as compensation for annual leave. Sick Leave Plaintiff claims that she is entitled to receive payment for 798.78 hours of unused sick leave because the court's prior order included "attendant benefits." Assuming arguendo that the court's prior order so stated, and that plaintiff accumulated the requested number of hours of sick leave during her employment, no basis for payment for unused sick leave has been shown. Sick leave is permissible time off from work when an employee is ill, not something that accrues a dollar value if an employee is well. In the absence of proof that the employer's policy is to pay employees for their accrued, unused sick leave upon termination from employment, no sick leave payment is owed. The law requires employers to honor their existing policies, but does not require them to go beyond them in determining the appropriate benefits to be paid upon an employee's separation from employment, even when an employee has some measure of success under Title VII. No evidence has shown the court that USPS has any policy which would entitle plaintiff to payment for any unused sick leave. Accordingly, plaintiffs claim for sick leave in the amount of $16,555.45 is denied. Overpaid Taxes Plaintiff contends that USPS withheld $13,894.63 too much in federal and state taxes, and owes her interest on that wrongfully withheld amount as well. (Dk. 267, p. 14.) Plaintiff elsewhere contends 1338 that incorrect amounts of taxable income, including her thrift savings plan, were reported on her W-2 form by defendant for her earnings in 2002, resulting in her being overtaxed for federal taxes in the amount of $5,190.93, and state taxes in the amount of $749.80. (Dk. 269, p. 12). Defendant does not deny this assertion, but claims that even assuming the truth thereof, plaintiffs battle on this issue is exclusively between her and the IRS. The court has no need to determine whether plaintiffs non-taxable income was or was not included in her statement of income on her 2002 W-2 form, as this matter is one between the employer, the employee, and the IRS. Additionally, neither party has submitted a copy of defendant's W-2 form for 2002, nor could the court determine from the total amount of income reflected on a W-2 whether that total erroneously included TSP contributions.[5] The court notes solely that defendant's assertion that it has no further duty to plaintiff is not necessarily correct. See Clemens v. USV Pharmaceutical, A Div. of Revlon, Inc., 838 F.2d 1389, 1395 (5th Cir.1988) (permitting tort claim against ex-employer and holding that "persons who undertake the duty of filing information returns concerning their employees and ex-employees have a duty to act with reasonable promptness to correct erroneous information they have sent to the IRS when such errors come to their attention.") TSP Plaintiff contends that the full amount of her thrift savings plan contributions, i.e., $20,902.55, should have been included in her back pay award. Defendant counters that, by law, TSP contributions cannot exceed a certain amount or percentage of an employee's salary, per year. Accordingly, USPS paid plaintiff $5,714.52 in TSP contributions in April of 2002, and agreed to pay the remainder of plaintiffs thrift savings contributions over the next two years, on a schedule shown to the court. See Dk. 268, p. 7-8, n. 6. The court finds defendant's statement of the law to be correct, and approves of its payout of TSP contributions over time, rather than in one year. Plaintiff also seeks a total of $42,509.08, rather than $20,902.55 in thrift savings program contributions from 1994 to September 14, 2001. Plaintiffs challenge to the total amount of TSP is based upon her assertion that TSP is to accrue interest at the rate of no less than 10%, and be compounded monthly from the date which it should have been placed in the TSP fund, i.e., September 18, 1994, through September 14, 2001. (Dk. 264, p. 17; Dk. 269, p. 11).[6] Plaintiff fails to substantiate her assertion that TSP interest is compounded monthly or accrues at the rate of 10% according to current USPS practice. Although plaintiff couches her claim as one for interest earnings, plaintiffs claim is essentially for an award of prejudgment interest on her TSP contributions. See Greene, 210 F.3d at 1247 (stating the purpose of prejudgment interest is to compensate the wronged party for being deprived of the monetary value of his loss from the time of the loss to the payment of the judgment.) The court has never awarded prejudgment interest on this amount, or other amounts not included in its previous orders, and shall not do so now. Accordingly, plaintiffs claim for interest or interest earnings on her TSP contributions, or for a TSP contribution greater than $20,902.55, is denied. 1339 Mileage Plaintiff seeks an award of mileage for having driven to and from work while employed by the defendant between December 10, 2002, and July 30, 2002, during periods of her court-ordered reinstatement. In the absence of a showing that the employer's policy is to pay an employee for their mileage to and from work during employment, no payment for mileage is owed. Plaintiff has failed to show the court any evidence that defendant has any policy which would entitle plaintiff to payment for mileage. This is true even accepting, arguendo, plaintiffs claim that the location of her work was beyond the 30 mile radius ordered by the court. Accordingly, plaintiffs claim for mileage in the amount of $5,399.80 is denied. Conclusion Untangling the Gordian knot of damages is not a simple task, but the court has attempted to give a fair reading to each issue raised in the parties' multiple pleadings. Having done so, the court will not look with favor upon any motion to reexamine these issues or to examine additional damages issues, being convinced that the interest of finality outweighs either party's interest in having the court conduct additional proceedings in this case. Once USPS has paid plaintiff the remaining amount owed, which this court hereby determines to be $3,918.17, plaintiff will have been fully and fairly compensated in every respect for the retaliation she suffered by USPS. The parties remain free, of course, to appeal this order. IT IS THEREFORE ORDERED that defendant's motion for satisfaction of judgment (Dk. 263) is denied, and that plaintiffs motion for judgment (Dk. 265) is denied. IT IS FURTHER ORDERED that USPS shall pay to plaintiff within 30 days of this order the amount of $3,918.17, without interest, in full satisfaction of plaintiffs judgment in this case. NOTES [1] See Dies. 264, 265, 267, and 269. [2] The court understands plaintiffs contention that USPS continues to owe her post-judgment interest to date, and recognizes that the totals set forth above do not include any amounts of interest accruing after plaintiff's pleadings were filed. [3] See Dks. 263, 266, and 268. [4] USPS states in one pleading that plaintiff's adjusted gross should have been $217,681.68, and that it had erred in calculating that figure, upon which the interest calculations for back pay were based. Dk. 266, p. 5-6. Defendant's most recent pleading relies upon an adjusted gross back pay amount of $214,038.57, Dk. 268, p. 6, and clarifies that its previous reference to $217,681.68 was incorrect. (Dk. 268, p. 5, n. 2.) [5] The government has submitted copies of defendant's W-2 forms for the years 1998-2001, see Dk. 268, Exh. 2, but neither party has submitted one for the year 2002. [6] Plaintiff admits that USPS has agreed to pay interest on the TSP account from April 25, 2002. (Dk. 264, p. 17.)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499886/	445 F. Supp. 2d 1104 (2006) VISTO CORPORATION, Plaintiff, v. SPROQIT TECHNOLOGIES, INC., Defendant. No. C-04-0651 EMC. (Docket Nos. 166, 168, and 177). United States District Court, N.D. California. August 4, 2006. 1105 Ronald S. Katz, Greg Travis Warder, Robert D. Becker, Shawn G. Hansen, Eugene L. Hahm, Manatt, Phelps & Phillips LLP, Palo Alto, CA, for Plaintiff. Theresa K. Hankes, Sri K. Sankaran, Dorsey & Whitney LLP, San Francisco, CA, Bart Torvik, Devan Padmanabham, George Eck, Gerald H. Sullivan, Paul Robbennolt, Todd R. Trumpold, Dorsey & Whitney LLP, Minneapolis, MN, for Defendant. ORDER RE CLAIM CONSTRUTION"WORKSPACE ELMENT" AND "INDEPENDENTLY MODIFIABLE COPY" CHEN, United States Magistrate Judge. Plaintiff Visto Corporation has sued Defendant Sproqit Technologies, Inc. for infringement of the '192, '708, '131, and '221 patents. The parties submitted ten terms or phrases to the Court for claim construction. A claim construction hearing was held on July 6, 2006. Having considered the parties briefs and accompanying submissions, the Court hereby issues this opinion to address the phrase "an independently modifiable copy of the first workspace element." While the Court provides a construction for the term "independently modifiable copy," for the reasons explained below, it rejects each party's proposed construction for the term "workspace element," provides a tentative construction to the parties, and orders the parties to further meet and confer to determine whether they can agree on the tentative construction or another similar construction. The Court shall subsequently issue an order addressing the remaining claim terms and phrases. I. FACTUAL BACKGROUND The four patents at issue are all related to data synchronization systems and methods. A. '192 Patent The '192 patent is titled "System and Method for Securely Synchronizing Multiple Copies of a Workspace Element in a Network." The application for the '192 patent was filed on April 11, 1997. The '192 patent was issued on July 4, 2000. B. '708 Patent The '708 patent is titled "System and Method for Using a Global Translator to Synchronize Workspace Elements Across a Network." The application for the '708 patent was filed on May 29, 1997. The '708 patent was issued on February 8, 2000. The '708 patent states that it is related to and incorporates by reference the application for the '192 patent. 1106 C. '131 Patent The '131 patent has the same title as the '192 patenti.e., "System and Method for Securely Synchronizing Multiple Copies of a Workspace Element in a Network." The application for the '131 patent was filed on October 26, 1998. The '131 patent was issued on October 19, 1999. The '131 patent states that it is a continuation of and incorporates by reference the application for the '192 patent. D. '221 Patent The '221 patent is titled "System and Method for Globally and Securely Accessing Unified Information in a Computer Network." The application for the '221 patent was filed on September 20, 2000. The '221 patent was issued on March 16, 2004. The '221 patent states that it is a continuation of and incorporates by reference another patent application, which is a continuation of several patent applications, including the application for the '192 patent and the application for the '708 patent. II. DISCUSSION A. Legal Standard "It is a `bedrock principle' of patent law that the claims of a patent define the invention to which the patentee is entitled the right to exclude.'" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir. 2005). "[T]he words of a claim `are generally given their ordinary and customary meaning"that is, the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application.'" Id. Because the meaning of a claim term as understood by persons of skill in the art is often not immediately apparent, and because patentees frequently use erms idiosyncratically, the court looks to "those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean." Those sources include "the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art." Id. at 1314. The language of the claims, the specification, and the prosecution history are all considered intrinsic evidence. With respect to the specification, the Federal Circuit has warned that limitations from the specification should not be imported into the claims. See id. at 1323 (discussing "avoid[ing] importing limitations from the specification into the claims"). Even so, the court has also recently reiterated that "the specification is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term." Phillips, 415 F.3d at 1315 (internal quotation marks omitted; emphasis added); see also id. at 1317 (stating that it is "entirely appropriate for a court, when conducting claim construction, to rely heavily on the written description for guidance as to the meaning of the claims"). While the distinction between using the specification to interpret the meaning of a claim and importing limitations from the specification into the claim can be a difficult one to apply in practice . . . the line between construing terms and importing limitations can be discerned with reasonable certainty and predictability if the court's focus remains on understanding how a person of ordinary skill in the art would understand the claim terms. Id. at 1323. As for extrinsic evidence, while it "can shed useful light on the relevant art, . . . it is less significant than the intrinsic record 1107 in determining the legally operative meaning of claim language." Id. at 1317 (internal quotation marks omitted). Notably, the Federal Circuit has stated that dictionaries "are often useful to assist in understanding the commonly understood meaning of words," id. at 1322, but that they should not be elevated to prominence particularly with respect to the specificationbecause they "focus[] the inquiry on the abstract meaning of words rather than on the meaning of claim terms within the context of the patent." Id. at 1321. Consistent with the above, the parties agreed that they would rely on intrinsic evidence to construe the claims and that the only extrinsic evidence to be supplied to the Court would be dictionaries and comparable sources. B. Legal Issues Before construing any of the terms or phrases of the patents at issue, the Court addresses two legal issues that are pertinent to this claim construction: (1) whether the Court should defer to the claim construction of Judge T. John Ward of the Eastern District of Texas; and (2) whether the specification for the '708 patent can be used to construe the claims of the '192 and '131 patents. 1. Judge Ward's Claim Construction Order Visto brought suit against Seven Networks, Inc. in the Eastern District of Texas for infringement of the same four patents at issue in the instant case. On April 20, 2005, Judge Ward issued a claim construction ruling which addressed many of the same terms and phrases at issue in the instant case. Visto argues that, although Judge Ward's order is not binding on Sproqit because it was not a party in the Texas litigation, the Court should nevertheless adopt the definitions of the terms and phrases construed by Judge Ward. See Op. Br. at 5. Visto suggests that this approach is appropriate under stare decisis and for reasons of judicial efficiency. Stare decisis, of course, does not literally apply. This Court is not bound to follow the decision of another district court. See Texas Instruments, Inc. v. Linear Techs. Corp., 182 F. Supp. 2d 580, 589 (E.D.Tex. 2002) (stating that stare decisis "does not precisely apply"). However, according to Visto, the Supreme Court in Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S. Ct. 1384, 134 L.E d.2d 577 (1996), "noted that stare decisis favors promoting uniformity in claim construction." Op. Br. at 5. Visto's characterization of Markman is not entirely accurate. In Markman, the Supreme Court's concern was whether claim construction should be within the province of a jury or within the province of a judge. The Supreme Court provided several reasons as to why claim construction should be a matter for a judge, one of them being "the importance of uniformity in the treatment of a given patent." Markman, 517 U.S. at 390, 116 S. Ct. 1384. The Supreme Court explained: Uniformity would . . . be ill served by submitting issues of document construction to juries. Making them jury issues would not, to be sure, necessarily leave evidentiary questions of meaning wide open in every new court in which a patent might be litigated, for principles of issue preclusion would ordinarily foster uniformity. But whereas issue preclusion could not be asserted against new and independent infringement defendants even within a given jurisdiction, treating interpretive issues as purely legal will promote (though it will not guarantee) intrajurisdictional certainty through the application of stare decisis on those questions not yet subject to interjurisdictional uniformity under the authority of the single appeals court. 1108 Id. at 391, 116 S. Ct. 1384 (emphasis added). In other words, while Visto is correct that the Supreme Court took note of the importance of uniformity of claim construction, Visto ignores the fact that the Supreme Court also made a distinction between intrajurisdictional uniformity and interjurisdictional uniformity. In the instant case, there is no issue of intrajurisdictional uniformity because Judge Ward's opinion issued from a different district court. See Verizon Cal. Inc. v. Ronald A. Katz Tech. Licensing, L.P., 326 F. Supp. 2d 1060, 1069 (C.D.Cal.2003) ("Furthermore, the AT & T Order has limited stare decisis effect, given that it emanates from a Federal District Court in a separate jurisdiction."); Texas Instruments, 182 F.Supp.2d at 588 (noting that the Supreme Court in Markman praised "`intrajurisdictional' harmony"). As for interjurisdictional uniformity, there is no indication that Judge Ward's opinion has been appealed and, even if so, that the Federal Circuit has made any decision as to the appropriateness of his claim construction. As for the other authorities cited by Visto in support of its position, it is largely distinguishable or, as above, of limited support. For example, in Zoltar Satellite Systems, Inc. v. LG Elecs. Mobile Communications Co., 402 F. Supp. 2d 731 (E.D.Tex. 2005), the court did say that "inconsistent claim constructions of the same claims by different courts can create serious problems," which "especially deserve consideration when the same patent is simultaneously being litigated in another district." Id. at 737. However, the court in Zoltar made this statement in connection with its decision as to whether the case before it should be transferred to another district where a judge had already done substantial work on a patent infringement case involving many of the same patents. In Atmel Corp. v. Silicon Storage Tech., Inc., No. C 96-0089 SC, 2001 U.S. Dist. LEXIS 25641 (N.D. Cal. June 20, 2001), the court did rely on a claim construction ruling that issued from the plaintiff's lawsuit against another party but that claim construction ruling had issued from another court in the same district. In other words, intrajurisdictional uniformity was at issue. Moreover, the court indicated that it was appropriate to rely on the claim construction ruling because the defendant in the case at bar had called that claim construction ruling well reasoned and correct and even sought to have it adopted in litigation before the U.S. International Trade Commission. See id. at 22. Finally, in KX Indus., L.P. v. PUR Water Purification Prods., Inc., 108 F. Supp. 2d 380 (D.Del. 2000), the court did make note of deference to a previous claim construction ruling but that was a ruling that had issued from the very same judge. Moreover, the court highlighted that it would defer to the prior ruling only "to the extent the parties do not raise new arguments," id. at 387, and the court actually revisited at least one of its earlier constructions and corrected it. See id. at 389 ("After reviewing Degen and the specification of the '311 patent, the court finds that its earlier opinion . . . about the scope of Koslow's disclaimer was wrong."). Taking into account all of the above, the Court concludes that it will take into consideration Judge Ward's claim construction order as, per Markman, uniformity in claim construction is important. However, because Judge Ward's order is outside of this jurisdiction, this Court has discretion in determining the degree of deference accorded his order. The Court concludes that order such as Judge Ward's is entitled to "reasoned deference," with such deference turning on the persuasiveness of the order; "in the end, [however, the Court] will render its own independent claim construction." Innovations, L.P. v. Intel Corp., No. 2:04-CV-450, 2006 WL 1109 1751779, at 4, 2006 U.S. Dist. LEXIS 41453, at 13 (E.D. Tex. June 21, 2006) (stating that claim construction ruling from outside the jurisdiction would be taken into account "as a thoughtful and thorough analysis of the parties' arguments involving the same patent and the same claim" but that court would "in the end . . . render its own independent claim construction"); see also Wilson Sporting Goods Co. v. Hillerich & Bradsby Co., 2003 WL 21911241, at 3, 2003 U.S. Dist. LEXIS 13900, at 8-9 (N.D.Ill. Aug. 8, 2003) (stating that, even though claim construction order from outside the jurisdiction was "persuasive," at times, the court might "not agree with that court and Markman . . . is not to the contrary"). 2. Use of '708 Specification to Interpret '192 and '131 Claims In its claim construction brief, Sproqit contends that the specification for the '708 patent cannot be used to construe the claims of the '192 and '131 patents. In response, Visto argues that Sproqit's argument has no merit because the '708 patent is related to the '192 and '131 patents. See Reply Br. at 4. The '708 patent states that it is related to and incorporates by reference the '192 patent. The '131 patent in turn is a continuation of the '192 patent. In addition, the specification for the '708 patent has a great deal of overlap with the specifications for the '192 and '131 patents (which are identical). There is no doubt that the three patents are all related in some fashion. Moreover, Sproqit probably would not contest the use of the '192 and '131 specifications to construe the claims of the '708 patent because the '708 patent specifically states that it is related to the application for the '192 patent and the specification for the '131 patent is identical to that for the '192 patent. But the issue presents the conversei.e., whether the specification for the '708 patent can be used to construe the claims of the '192 and '131 patents. In Goldenberg v. Cytogen, Inc., 373 F.3d 1158 (Fed.Cir.2004), the Federal Circuit stated that, "[i]n the absence of an incorporation into the intrinsic evidence, this court's precedent takes a narrow view on when a related patent or its prosecution history is available to construe the claims of a patent at issue and draws a distinct line between patents that have a familial relationship and those that do not." Id. at 1167. In the instant case, although the '708 patent incorporates by reference the application for the '192 patent, neither the '192 patent nor the '131 patent makes any reference to the '708 patent or its application. Moreover, the '708 patent was not part of the parentage or the prosecution history of the '192 or '131 patents. See id. at 1168 (examining whether there was a "formal relationship" between two patents or whether one patent incorporated the other during prosecution). In fact, (1) the application for the '708 patent was not filed until after the application for the '192 patent and (2) the specification for the '708 patent contains new matter not contained in the specification for the '192 patent (and therefore the identical specification for the '131 patent).[1] In Goldenberg, the Federal Circuit addressed the issue of subsequently added new matter. The patent at issue was the '559 patent. The '559 patent issued from the '662 patent application, which was a 1110 continuation of the '261 patent application. At the time the patent holder filed the '261 patent application, it also filed the '262 patent application. The '262 patent application led to the '729 patent application, which then resulted in the '744 patent. In short: '261 patent application -> '662 patent application (continuation) -> '559 patent '262 patent application -> '729 patent application (continuation in part) -> '774 patent See id. at 1161. Notably, after the patent holder filed the '261 and '262 patent applications, the PTOin a first office action rejected certain claims of the '261 patent application on the grounds of double patenting over the '262 patent application. See id. One of the issues in Goldenberg was whether the district court erred in relying on the '744 patent and its prosecution history when construing the claims of the patent at issue, i.e., the '559 patent. The Federal Circuit said both "yes" and "no." According to the court, it was proper for the district court to rely on the '262 patent application as it existed when the patent holder distinguished the '262 application from the '261 application in response to the PTO's office action. This was because the response "constitutes part of the prosecution history of the '261 application, which is a parent application to the '559 patent, and therefore part of the '559 patent's prosecution history." Id. at 1167 (emphasis in original). However, the district court erred in relying on the specification of the '744 patent to construe the claims of the '559 patent because [t]he relevant passages from the '744 patent . . . were added during a continuation-in-part of the '262 application. These passages are therefore new matter added to the content of the '262 application subsequent to when it was distinguished in the [patent holder's] office action response. While the content of the '262 application at the time it was distinguished from the '261 application constitutes part of the prosecution history of the '559 patent, subsequently added new matter is not similarly incorporated. Id. (emphasis added). In the case at bar, no part of the '708 patent or its prosecution history is part of the '192 or '131 prosecution history. Under Goldenberg, the '708 patent would, in the first instance, have no bearing on the construction of the '192 or '131 patents. To be sure, there may be narrow circumstances where a later patent may be looked to in construing an earlier subject patent even where it is not part of the subject patent's prosecution history. In Microsoft Corp. v. Multi-Tech Systems, Inc., 357 F.3d 1340 (Fed.Cir.2004), the Federal Circuit concluded that it was permissible for a court to rely on the prosecution history of a sibling patent to construe the claims of another patent even though the subject patent was issued earlier and its prosecution history did not reference the sibling patent. However, in that case, the specifications for the two patents were exactly the same, and it was the accused infringer who was trying to use the later-issued sibling patent to limit the scope of the earlier-issued patent. Evidently, when identical language is used and there is no new matter, the identical nature of the specification provides a basis for seeking parallel constructions. However, particularly in connection with the phrase at issue in this Order, the specifications for the '192 and '708 patents differ in material respects. The '708 addresses translation across formats; the '192 does not. Moreover, unlike Microsoft, in the instant case, it is Visto as the patent holder, not the accused infringer, who is trying to use the 1111 later-filed '708 patent to expand the scope of the earlier-filed '192 patent. C. Construction of "an independently modifiable copy of the first workspace element"[2] Having addressed the legal issues above, the Court now turns to construction of the claim phrase "an independently modifiable copy of the first workspace element." Claim 1 of the 192 patent is a representative claim with respect to the use of this phrase. It provides as follows: 1. A computer-based method comprising the steps of: (a) establishing a communications channel through a firewall using an HTTP port or an SSL port; (b) generating first examination results from the first version information which indicates whether a first workspace element stored at a first store within the firewall has been modified (c) generating second examination results from second version information which indicates whether an independently-modifiable copy of the first workspace element has been modified, the copy being stored at a second store on a smart phone outside the firewall; (d) initiating steps (b) and (c) from within the firewall through the communications channel when predetermined criteria have been satisfied; (e) generating a preferred version from the first workspace element and from the copy based on the first and second examination results, wherein if only one of the first workspace element and the copy has been modified, then the step of generating includes selecting the one as the preferred version; and (f) storing the preferred version at the first store and at the second store. Khaliq Decl., Ex. K ('192 patent reexamination certificate, cols. 2-3) (emphasis added). Like the parties, the Court shall address the claim phrase in two parts: (a) workspace element and (b) independently modifiable copy. a. "workspace element" "[T]he person of ordinary skill in the art is deemed to read [a] claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification." Phillips, 415 F.3d at 1313. Here, with respect to the claim term "workspace element," the specifications for the '192 and '131 patents state: It will be further appreciated that the email data 165, file data 170, calendar data 175 and user data 180 are exemplary and collectively referred to herein as "workspace data" 185. Those skilled in the art will recognize that "workspace data" may include other types of data such as application programs. It will be further appreciated that the e-mail data 165, file data 170, calendar data 175 and user data 180 may each be divided into workspace elements, wherein each workspace element is identified by particular version information 255. . . . Accordingly, each e-mail, file, calendar, etc. may be referred to as "a workspace element in workspace data." '192 patent, Col. 3; '131 patent, col. 3. The specification for the '708 patent is similar, stating: 1112 It will be appreciated that the e-mail folder 138, file folder 142, calendar folder 140 and bookmark folder 144 or portions thereof may be stored at different locations such as on the desktop computer 134. The e-mail folder 138, file folder 142, calendar folder 140 and bookmark folder 144 are exemplary, grouped by like information and are collectively referred to herein as "workspace data" 136. Those skilled in the art will recognize that the workspace data 136 may include other types of data such as an application program such as Microsoft Work 6.0.1 TM word processor and the documents created using them. It will be further appreciated that the e-mail folder 138, file folder 142, calendar folder 140 and bookmark folder 144 may each be divided into workspace elements, wherein each workspace element folder or each workspace element individually is identified by particular version information 255. . . . Accordingly, each e-mail or e-mail folder, file or file folder, calendar or calendar folder, bookmark or bookmark folder, document or document folder, etc. may be referred to as "a workspace element." 708 patent, col. 3. The parties agree that, per the specifications, a workspace element can be an email, a file, a calendar, and so forth. For the '708 patent, a workspace element can also be an e-mail folder, a file folder, a calendar folder, and so forth. The parties disagree, however, as to whether a portion of an e-mail (or file, calendar, etc.) can be a workspace element. According to Sproqit, a workspace element must be, e.g., the entire e-mail, that is, each and every field making up the e-mail. According to Visto, a workspace element can be any part of an e-mail, even a single field of an e-mail. Visto relies on Judge Ward's order to support its position, see Ward Order at 22 (defining the term "workspace element" as "a subset of workspace data such as an e-mail, file, bookmark, calendar, or applications program which may include version information") (emphasis added), as well as a dictionary definition for the term "element." See Op. Br. at 10 (noting that Merriam-Webster's Collegiate Dictionary (10th ed.1993) defines "element" as "simply `a constituent part'"). As the Court previously indicated in its order denying Visto's motion for a preliminary injunction, each party has taken an extreme position. Visto's claim that any part of an e-mail (or file, calendar, etc.) can be a workspace element is untenable. First, Visto's reliance on a dictionary definition for the term "element" is not appropriate. The problem with Visto's approach is that it "focuses the inquiry on the abstract meaning of [a] word[ ] rather than on the meaning of [a] claim term[ ] within the context of the patent." Phillips, 415 F.3d at 1321. Visto would have the Court look at the term "element" in isolation but the actual term to be construed is "workspace element." Second, Visto's reliance on Judge Ward's order is unavailing because Judge Ward's construction of the term "workspace element" was not intended tonor did it addressthe specific issue here, i.e., whether a portion of an e-mail can be a workspace element. Furthermore, Visto's preferred construction of the term "workspace element" is not supported by the specifications of the patents at issue. Nowhere in the specifications is it suggested that a portion of an e-mail can be considered a workspace element. Simply because the specifications state that workspace data may be divided into workspace elements does not mean that a workspace element may be divided into bits. In discussing a workspace element, the specifications repeatedly refer to the largerand completedata structure of an e-mail. 1113 "[E]ach e-mail, file, calendar entry, etc. may be referred to as `a workspace element in workspace data,'"`192 patent, col. 3 (emphasis added); '131 patent, col. 3 (emphasis added). "[E]ach e-mail or e-mail folder, file or file folder, calendar or calendar folder, bookmark or bookmark folder, document or document folder, etc. may be referred to as `a workspace element.'" '708 patent, col. 3 (emphasis added). "Therefore, a system and method are needed for providing users with data consistency, and more particularly for synchronizing multiple copies of a workspace element such as a document in the secure network environment."'192 patent, col. 1 (emphasis added); '131 patent, col. 1 (emphasis added); '708 patent, col. 1 (emphasis added). Cf. Honeywell Internat'l, Inc. v. ITT Indus., Inc., 452 F.3d 1312, 1317 (Fed.Cir. 2006) (concluding that claim term "fuel injection system component" was limited to a fuel filter in light of the specification, which referred to the fuel filter at least four times as "`this invention' or the present invention'"; adding that the fuel filter was not "merely a preferred embodiment" as it "was the only component of an EFI system that the written description disclosed as having a polymer housing with electrically conductive fibers interlaced therein"). Moreover, given the nature of the inventions claimed in the '192, '131, and '708 patents, it is implausible that any subpart or element (including, e.g., a single e-mail field) that is insufficiently complete to make the invention useful could itself be a workspace element. As indicated above, all three patents are designed to address the problem of data inconsistency, more specifically, when multiple copies of "a document" are maintained at different network locations. See '192 patent, col. 1 ("[W]hen maintaining multiple independently-modifiable copies of a document, a user risks using an outdated version . [¶] The problem of data inconsistency is exacerbated when multiple copies of a document are maintained at different network locations."); '131 patent, col. 1 (same); '708 patent, col. 1 (same). As Sproqit argues, "[t]he copies are intelligible and can be independently accessed and modified because they are complete and are not simply data fragments." Resp. Br. at 8 (emphasis added); see also Honeywell, 452 F.3d 1312, 1317 (noting that "[t]he written description's detailed discussion of the prior art problem addressed by the patented invention, viz., leakage of non-metal fuel filters," supported limitation of the claim term "fuel injection system component" to a fuel filter). The nature of the invention as described in the specifications clearly contemplates that a workspace element be sufficiently complete and independently coherent so that there is utility to the synchronization of the workspace elements contemplated by the patents. On the other hand, Sproqit's argumenti.e., that anything less than an email complete with all its fields and ancillary data is not a workspace elementis equally unpersuasive. Under Sproqit's reasoning, if an e-mail were missing just one field, no matter how insignificant relative to all the other information, the e-mail could not be a "workspace element." Again, the nature of the invention revealed by the specifications is not necessarily be defeated simply because a single field is not synchronized and replicated as between a remote device such as a smart phone and a local area network. As Visto pointed out at the hearing, a local area network is likely to have a much larger capacity (and thus is capable of accommodating more fields) than a remote device. For the foregoing reasons, the Court rejects both extreme positions taken by 1114 Visto and Sproqit. Moreover, as noted above, the Court does not adopt Judge Ward's construction of the term "workspace element" because his construction does not address the issue at bar. In addition, under Judge Ward's construction, a workspace element could be an application program even though the specifications for the '192, '131, and '708 identify an application program as a type of workspace data, not a type of workspace element. As for Judge Ward's construction that a workspace element "may include version information," the Court shall address the relationship between a workspace element and version information when it construes the term "version information." Accordingly, for the '192, '131, and '708 patents, the Court is inclined to construe the term consistent with this Court's order denying the preliminary injunction (and along the lines implicitly recognized by Visto's expert Dr. Head who stated that "the term `e-mail' refers to the message headers, the message body, [and] status indicators (such as opened/unopened, deleted/undeleted, and other parameters such as urgency, and other message or system dependent parameters, etc.)"). Head Decl. ¶ 28 (located at Docket No. 100). For the '192 and '131 patents, the tentative construction for the term "workspace element" is as follows: A basic unit of workspace data such as an e-mail, file, bookmark, or calendar. While a portion of a basic unit is not necessarily a workspace element, a basic unit is still a workspace element so long as all significant or important components of that unit are present. For example, a single field of an e-mail is not a workspace element, but an e-mail is still a workspace element even if it does not contain each and every field present; in other words, an e-mail is still a workspace element so long as all significant or important fields are present. For the '708 patent, the tentative construction is as follows: A basic unit of workspace data such as an e-mail or e-mail folder, file or file folder, calendar or calendar folder, or bookmark or bookmark folder. While a portion of a basic unit is not necessarily a workspace element, a basic unit is still a workspace element so long as all significant or important components of that unit are present. For example, a single field of an e-mail is not a workspace element, but an e-mail is still a workspace element even if it does not contain each and every field present; in other words, an e-mail is still a workspace element so long as all significant or important fields are present. The Court orders the parties to meet and confer regarding the above tentative constructions to determine whether they can agree on those constructions or on other similar constructions. If the parties are able to come to an agreement, then they should file a joint letter by August 14, 2006, stating what the agreement is. If the parties cannot come to an agreement, then each party should provide a brief (no longer than 5 pages) which (1) states whether the party will agree to the tentative constructions; (2) if not, provides comments on the tentative constructions; and (3) submits alternative constructions. Each brief should also comment on the alternative constructions (if any) proposed by the opposing party. (Such alternative constructions should be discussed at the meet and confer.) The briefs should be filed by August 14, 2006. b. "independently modifiable copy" Visto contends that Judge Ward's construction of the term "independently modifiable copy" should be adopted. According to Judge Ward, the term "independently 1115 modifiable copy" means "[a] copy of a workspace element capable of being modified independent of the workspace element. The copy of the workspace element does not have to be in the same format as the workspace element." While Sproqit proposes a construction different from that of Judge Ward, it does not dispute the accuracy of his construction. Instead, Sproqit's main argument is that, even if the copy of the workspace element does not have to be in the same format as the workspace element, the copy is otherwise an exact copy of the workspace element. Visto argues to the contrary, even though Judge Ward expressed concern with that very argument. See Ward Order at 16-17 (rejecting Visto's claim that a copy does not have to be an exact copy). The patents at issue do not explicitly define the term "copy." However, as pointed out by Sproqit, the specifications for the '192 and '131 patents do give context to the word, stating that [a]n independently modifiable copy of the workspace data 185, referred to herein as workspace data 123, is stored on the global server 120 for easy access by a user from the remote terminal 105. Being a copy, the workspace data includes independently modifiable copies of each workspace element in workspace data and an independently modifiable copy of version information 255 . . ., referred to herein as version information. '192 patent, col. 3; '131 patent, col. 3 (emphasis added). The '708 specification contains similar language. See '708 patent, col. 3 ("[T]he workspace data 120 includes an independently modifiable copy of each workspace element in the selected portions of the workspace data 136 and 116 and an independently-modifiable copy of each corresponding version information 255 . . . and 150.") (emphasis added). If a "copy" of workspace data must contain each workspace element making up the workspace data, then it logically follows that a "copy" of a workspace element must contain each subpart making up the workspace elementin other words, a copy must replicate all the information that comprises the workspace element. Visto contends still that there is support for its position in the specification for the '708 patent. However, as discussed above, the specification for the '708 patent should not be used to construe the claims of the '192 and '131 patents, at least with respect to new matter contained in the '708 specification. Visto relies on that part of the '708 specification that constitutes new matter. As noted above, the '708 patent addresses translation across different formats, thus potentially adding a new dimension to "copy" not addressed by the '192 and '131 patents. Even if the Court could consider the new matter in the '708 specification, Visto's argument is not convincing. The part of the '708 specification on which Visto relies states as follows: FIG. 6 illustrates an example bookmark workspace element in the global format. The global translator 122 incorporates all the information needed by both formats (Format A and Format B) to create the Global Format. For example, if a bookmark in Format A needs elements X, Y and Z and a bookmark in Format B needs elements W, X and Y, the global translator 122 incorporates elements W, X, Y and Z to create a bookmark in the Global Format. Further, the global translator 122 incorporates the information which is needed by the synchronization means such as the last modified date. Accordingly, a bookmark in the Global Format includes a user identification (ID) 605, an entry ID 610, a parent ID 615, a folder ID flag 620, a name 625, a description 630, the Uniform Resource Locator (URL) 635, the position 640, a *1116 deleted ID flag 645, a last modified date 650, a created date 655 and a separation ID flag 660. '708 patent, col. 8. According to Visto, the above statement "clearly illustrates that an independently modifiable copy of a workspace element need not include the same fields of the original workspace element." Op. Br. at 9. The problem for Visto is that the statement above concerns differences due to different formats. In other words, as argued by Sproqit, there may be differences between the copy and the original workspace element because the applications have different formats, but, if the applications are the same, then the copy should be a complete copy of the original workspace element. Accordingly, for the '192 and '131 patents, the Court adopts the following construction for the term "independently modifiable copy": A copy of a workspace element capable of being modified independent of the workspace element. A copy of a workspace element is a complete replication of all the information comprising the workspace element. For the '708 patent, the Court adopts the following construction: A copy of a workspace element capable of being modified independent of the workspace element. A copy of a workspace element is a complete replication of all the information comprising the workspace element unless the copy and workspace element are in different formats. In that case, there may be some differences between the copy and workspace element, but those differences are due to formatting only. III. CONCLUSION Accordingly, the parties shall by August 14, 2006, submit either a stipulated construction of "workspace element" or briefs addressing respective proposed constructions consistent with this order. IT IS SO ORDERED. NOTES [1] For purposes of convenience, for the remainder of this section, the Court focuses on the relationship between the '708 patent and the '192 patent only. The '131 patent does not need to be discussed because it, as noted above, is a continuation of the '192 patent and has the same specification as the '192 patent. Therefore, it should not matter that the '708 patent came before the '131 patent. [2] See claims 1, 31-33, 35, and 36 of the '131 patent; claims 1, 6-8, 10, 11, and 22 of the '192 patent; and claims 1 and 17 of the '708 patent.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499884/	445 F. Supp. 2d 98 (2006) John A. TAYLOR, individually and p/p/a W.C.T.S., Plaintiff, v. Susanne G. SWARTWOUT et al., Defendants. Civil Action No. 03-10157-NMG. United States District Court, D. Massachusetts. July 24, 2006. 99 100 John A. Taylor, Bristol, NH, pro se. Sara M. Webster, Mellon, Webster & Shelly, P.C., Doylestown, PA, for Plaintiff and Defendants. Alanna G. Cline, Brighton, MA, John P. Ryan, Ross A. Kimball, Sloane & Walsh, Nur-Ul Haq, Gary C. Crossen, Rubin and Rudman, LLP, Boston, MA, for Defendants. MEMORANDUM & ORDER GORTON, District Judge. In the instant dispute, plaintiff John Taylor ("Taylor") alleges that his former girlfriend, Susanne Swartwout ("Swartwout"), committed a series of torts against him. Swartwout moves for summary judgment on all claims against her. I. Background A. Factual History The facts of this protracted and bitter dispute were laid out in great detail in the Court's Memorandum and Order of February 27, 2006. See Taylor v. Swartwout, 429 F. Supp. 2d 209, 210-12 (D.Mass.2006). To briefly summarize, Taylor and Swartwout became romantically involved in 1995. Taylor alleges that Swartwout quickly developed an "unnatural and obsessive" fixation on him, which he contends is ongoing. Although this is new biology to the Court, he also asserts that Swartwout's alleged fixation led her to become pregnant through misrepresentations regarding her use of birth control. Swartwout gave birth to the couple's son in February, 1996. Taylor alleges that Swartwout engaged in a pattern of stalking, harassment and assault during the following seven years. 101 He also asserts that Swartwout engaged in a series of attempts to portray him as a criminal involved with the narcotics trade. According to Taylor, Swartwout sought to substantiate those allegations with three documents which surfaced during litigation in the Massachusetts Probate Court between Taylor and Swartwout over custody of their son ("the custody litigation"). Taylor claims one of those documents was stolen from his home and was used in connection with the other documents to depict him as a drug user, drug smuggler and money launderer. He claims that Swartwout and other persons working on her behalf during the custody litigation repeatedly "published" those documents, to his great embarrassment and humiliation. Taylor asserts that the documents used to portray him as a criminal are fraudulent and that Swartwout's persistent assaults on his character, particularly her suggestions that he was involved with the drug trade, caused him mental and emotional anguish which, in turn, led him to suffer a household accident and sustain further physical injury. B. Procedural History Taylor brought several claims against Swartwout and various attorneys and private investigators who assisted her in the custody litigation. Those defendants moved separately for summary judgment with respect to the claims against them and this Court allowed their motions in a Memorandum and Order dated February 27, 2006. Following, that Order, only Taylor's claims against Swartwout remain. Those claims include: 1) stalking, 2) invasion of privacy, 3) defamation, 4) fraud/misrepresentation, 5) abuse of process 6) negligent and intentional infliction of emotional distress, 7) "conspiracy", 8) civil RICO and 9) negligence. Swartwout filed her own motion for summary judgment on April 19, 2006. In his opposition, Taylor states that he is prepared to abandon some of his claims against Swartwout. Nevertheless, he also argues that his claims for 1) invasion of privacy, 2) defamation, 3) abuse of process and 4) negligent and intentional infliction of emotional distress should not be dismissed on summary judgment. Moreover, he proposes that opposing counsel should be sanctioned for failing to cooperate with him regarding a stipulation of dismissal with respect to his claims. II. Motion for Voluntary Dismissal In his opposition, Taylor declares he no longer plans to pursue his claims for 1) stalking, 2) fraud/misrepresentation, 3) conspiracy, 4) civil RICO and 5) negligence. Once an answer or a motion for summary judgment is filed, voluntary dismissal of a claim is prohibited without leave of court. See Fed.R.Civ.P. 41(a)(1). A dismissal with leave of court is allowed only on such terms and conditions as the Court deems proper. See Fed.R.Civ.P. 41(a)(2). The Court will consider Taylor's statement as a Motion for Voluntary Dismissal pursuant to Fed.R.Civ.P. 41 and will allow that motion. Accordingly, Taylor's stalking, fraud, conspiracy, civil RICO and negligence claims are dismissed without prejudice. III. Motion for Summary Judgment A. Legal Standard The role of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991)(quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990)). The burden is upon the moving party to show, 102 based upon the pleadings, discovery and affidavits, "that 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). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Id. A genuine issue of material fact exists where the evidence with respect to the material fact in dispute "is such that a reasonable jury could return a verdict for the nonmoving party." Id. Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The Court must view the entire record in the light most hospitable to the non-moving party and indulge all reasonable inferences in that party's favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir.1993). If, after viewing the record in the nonmoving party's favor, the Court determines that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. B. Specific Claims 1. Defamation In order to prove defamation, the plaintiff must demonstrate 1) a false and defamatory communication 2) of and concerning the plaintiff which is 3) published or shown to a third party. Dorn v. Astra USA, 975 F. Supp. 388, 396 (D.Mass.1997). The lodestar of Massachusetts defamation law is the axiom that truth is an absolute defense to defamation. See Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 42 (1st Cir.1998). A statement cannot be defamatory if it is substantially true. Reilly v. Associated Press, 59 Mass.App.Ct. 764, 770, 797 N.E.2d 1204 (2003)("when a statement is substantially true, a minor inaccuracy will not support a defamation claim"). Swartwout invokes the so-called litigation privilege. That absolute privilege protects statements made "in the institution or conduct of litigation or in conferences and other communications preliminary to litigation." Sriberg v. Raymond, 370 Mass. 105, 109, 345 N.E.2d 882 (1976). The privilege may not be exploited as an opportunity to defame with impunity and "unnecessary or unreasonable publication" to parties outside the litigation can result in the loss of the litigation privilege. See Milford Power Ltd. P'ship v. New England Power Co., 918 F. Supp. 471, 485-486 (D.Mass.1996)(quoting Sullivan v. Birmingham 11 Mass.App.Ct. 359, 362, 416 N.E.2d 528 (1981)). Taylor asserts that he personally observed Swartwout's publication of the documents to members of her family, other attorneys and state and federal politicians who were not involved with the custody litigation in any official capacity. If true, such an act would constitute unreasonable or unnecessary publication and defeat the privilege. Moreover, a genuine issue of material fact exists with respect to the origin of the documents Swartwout allegedly used for defamatory purposes. Taylor alleges that Swartwout and other persons assisting her in the custody litigation forged or misappropriated the documents later used to portray him as a drug user and smuggler. Swartwout denies that allegation and states that the documents were obtained by private investigators originally working on another case. Accordingly, this issue is 103 properly left to the jury for determination of credibility. 2. Invasion of Privacy To recover in an action for invasion of privacy pursuant to M.G.L. c. 214, § 1B for dissemination of private information, "a plaintiff must establish that the disclosure was both unreasonable and either substantial or serious." Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 382, 822 N.E.2d 667 (2005). To fall under the protection of the statute, the disclosed facts must be of a "highly personal or intimate nature." Bratt v. Int'l Bus. Machs. Corp., 392 Mass. 508, 518, 467 N.E.2d 126 (1984). However, there can be no invasion of privacy where the facts, though highly personal, are already in the public domain. See Brown v. Hearst Corp., 862 F. Supp. 622, 631 (D.Mass.1994). Moreover, "[w]hen the subject matter of the publicity is of public concern . . . there is no invasion of privacy." Ayash, 443 Mass. at 382, 822 N.E.2d 667 (quoting Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 612, 737 N.E.2d 859 (2000)). Here, Taylor's invasion of privacy claim relates most directly to Swartwout's 1) alleged public revelation of information related to Taylor's participation in a sealed federal grand jury proceeding in the early 1990s and 2) alleged dissemination of a highly-privileged letter that Taylor transmitted to his then co-counsel regarding their respective roles in representing a client in a criminal defense matter. Swartwout alleges her invasion of Taylor's privacy was neither unreasonable nor serious and, in any event, the information disclosed was a matter of public concern. Taylor contends that 1) those documents contain information about himself that he did not want exposed to the public eye and 2) Swartwout used those documents to support false allegations concerning his involvement with drug trafficking. Those false allegations were purportedly made part of the public record in the custody litigation. If the allegation that Swartwout used the relevant documents in the custody litigation to portray Taylor as a drug user, drug smuggler and money launderer is proved, Taylor can establish that the disclosure was "unreasonable and either substantial or serious". Moreover, a reasonable jury could find that those documents contained private information of a "highly personal or intimate nature" which was not a matter of public concern, especially with respect to the sealed grand jury proceedings. See Dasey v. Anderson, 304 F.3d 148, 154 n. 5 (1st Cir.2002). Again, Swartwout argues that the litigation privilege makes summary judgment appropriate. The Probate Court in the custody litigation found that Swartwout's allegations, which were based on the documents at issue, were indeed false and were made as part of a malicious attack on Taylor's character. Nevertheless, the litigation privilege is absolute and "provides a complete defense even if the offensive statements are uttered maliciously or in bad faith." Doe v. Nutter, McClennen & Fish, 41 Mass.App.Ct. 137, 140, 668 N.E.2d 1329 (1996). However, just as this Court noted with respect to its discussion of Taylor's defamation claim, unnecessary or unreasonable publication to parties outside the litigation can result in the loss of the litigation privilege. Here, Taylor alleges that Swartwout repeatedly published the relevant documents to parties outside the litigation. If he can prove that, Swartwout is not entitled to invoke the privilege. Swartwout also attempts to raise, in support of her motion, the statute of limitations. Specifically, she claims that it 104 bars Taylor's invasion of privacy claim because he avers that she broke into his residence to steal confidential files in 1999. If material, that event would fall outside the three-year scope of the statute of limitations imposed on tort actions in the Commonwealth of Massachusetts. See M.G.L. c. 260, § 2A. However, that incident is not the basis of Taylor's claim. A claim for invasion of privacy is based on the disclosure of sensitive, private information, not the tortious or illegal acquisition thereof. Ayash, 443 Mass. at 382, 822 N.E.2d 667. Taylor claims that, between 2000 and 2003, Swartwout disseminated private information in the documents at issue. Because Taylor's complaint was filed on January 23, 2003, the statute of limitations does not bar his claim. In any event, an extremely convoluted and contentious dispute of material fact exists concerning the origin, legitimacy and purpose of the private documents Swartwout allegedly disseminated in an attempt to harm Taylor. The existence of such a dispute alone precludes summary judgment on this claim. 3. Abuse of Process The elements of an abuse of process claim under Massachusetts law are that 1) a process was used 2) for an ulterior or illegitimate purpose 3) that results in damage. Gutierrez v. Mass. Bay Transp. Auth., 437 Mass. 396, 407, 772 N.E.2d 552 (2002). The Supreme Judicial Court has held that it is the "subsequent misuse of the process, though properly obtained, [which] constitutes the conduct for which the liability is imposed." Quaranto v. Silverman, 345 Mass. 423, 426, 187 N.E.2d 859 (1963). Swartwout appears to presume that Taylor's claim for abuse of process is based on her misconduct during the custody litigation. She argues accordingly that no abuse of process occurred because it was Taylor who initiated the custody litigation and he was not an unwilling or coerced participant in those proceedings. However, Taylor has referenced several other legal proceedings initiated against him by Swartwout. They include 1) a criminal complaint for assault and battery, 2) criminal complaints for child abuse, 3) civil complaints for contempt of court and 4) proceedings under M.G.L. c. 209A to obtain restraining orders and for alleged violations thereof. Swartwout initiated all the above proceedings and has offered no argument whatsoever in her motion for summary judgment addressing why she is entitled to summary judgment with respect to those alleged abuses of process. Taylor has included multiple state court findings in which Swartwout was found to have engaged in a series of baseless and abusive filings. He also avers that all the complaints initiated by Swartwout to date were calculated attempts to obtain an advantage in unrelated litigation and have been resolved in his favor, albeit at "considerable expense". Taylor's claim for abuse of process is, therefore, plainly sufficient to survive summary judgment. 4. Infliction of Emotional Distress Count VI of Taylor's complaint asserts that Swartwout has "engaged in various acts to tortiously inflict emotional distress and mental suffering, whether through negligent or intentional design". Given that Taylor has hedged his bet as to whether his emotional distress was caused by an intentional or negligent tort, the Court will analyze his claim, and Swartwout's motion for summary judgment on that claim, under both rubrics. a. Intentional Infliction To sustain a claim for intentional infliction of emotional distress, Taylor 105 must prove that 1) Swartwout intended to inflict emotional distress or knew, or should have known, emotional distress was likely to ensue from her behavior, 2) her behavior was extreme, outrageous and beyond all possible bounds of decency, 3) her actions caused him distress and 4) his emotional distress was so severe that no reasonable man could be expected to endure it. See Gouin v. Gouin, 249 F. Supp. 2d 62, 73-74 (D.Mass.2003)(citing Agis v. Howard Johnson Co., 371 Mass. 140, 144-45, 355 N.E.2d 315 (1976)). Swartwout does not address this claim in her motion for summary judgment. Nevertheless, Taylor's claim would survive summary judgment even if she had addressed it. Specifically, a defendant's extreme and outrageous conduct "may be found in the totality of the circumstances." Id. (citing Boyle v. Wenk, 378 Mass. 592, 595, 392 N.E.2d 1053 (1979)). Taylor alleges that Swartwout has initiated close to 100 motions and/or post-judgment actions against him following the resolution of the custody dispute, all of which have been resolved in his favor. Many of those claims were found to be baseless by various state courts. Devoting one's time to the prosecution of a fusillade of baseless and malicious legal actions would, if proved, fall outside the bounds of decency and be considered utterly intolerable in a civilized community. Such a pattern of conduct is sufficient to sustain a claim for intentional infliction of emotional distress. b. Negligent Infliction In a claim for negligent infliction of emotional distress, Taylor must demonstrate 1) negligence, 2) emotional distress, 3) causation, 4) physical harm manifested by objective symptomatology and 5) that a reasonable person would have suffered emotional distress under the circumstances. Conley v. Romeri, 60 Mass.App. Ct. 799, 801, 806 N.E.2d 933 (2004). Swartwout argues that Taylor has failed to sustain the negligence element of this claim in that he has not averred that Swartwout owed any duty to him. Where there is no duty, Swartwout contends, there can be no negligence. Her argument is unpersuasive. She relies on what is, at most, a technical deficiency in Taylor's complaint, alleging that she is entitled to summary judgment because he did not explicitly invoke a commonly understood duty of care owed as a general matter to all persons. See id. The notion that one owes a duty to refrain from filing multiple baseless legal actions against another is an accepted tenet. The fact that it was an unstated assumption in Taylor's complaint does not warrant summary judgment against him. However, a more serious problem exists with the element of causation and injury. Taylor admits in his complaint and opposition that he was careless in securing a ladder used for household chores but claims that his carelessness occurred because he was so distraught and anxious about Swartwout's inappropriate and illegal conduct. Intervening causes will insulate a tortfeasor from liability when they are not foreseeable consequences of a party's original negligence. Russo v. Baxter Healthcare Corp., 140 F.3d 6, 11 (1st Cir.1998). In determining whether an intervening cause is sufficient to negate proximate causation on the part of the primary tortfeasor, the Restatement (Second) of Torts § 442 directs courts to consider, inter alia, whether the intervening cause: 1) created harm different in kind from that which would have otherwise resulted from the actor's negligence; 106 2) appeared, after the event, to be extraordinary rather than normal in view of the circumstances; 3) operated independently of any situation created by the actor's negligence, or was not a normal result of such a situation; or 4) arose from an act of a third party or that party's failure to act. See id. Taylor's behavior in carelessly setting up a ladder, while allegedly influenced by severe anxiety and suicidal ideation, is not a foreseeable consequence of Swartwout's alleged negligent conduct. Taylor's conduct resulted in bodily injuries substantially different in kind from those which could have been reasonably anticipated by Swartwout's conduct. His carelessness operated independently of Swartwout and he cannot, therefore, establish a link of causation between his injuries and Swartwout's alleged negligence. While questions of causation with respect to intervening and proximate cause are usually reserved for the jury, summary judgment is appropriate when the evidence, and all reasonable inferences derived therefrom, can lead to only one conclusion. Staelens v. Dobert, 318 F.3d 77, 79 (1st Cir.2003). This is such a case. Accordingly, Swartwout is entitled to summary judgment on Taylor's claim for negligent infliction of emotional distress. ORDER In accordance with the foregoing, Defendant's Motion for Summary Judgment (Docket No. 106) is, with respect to Plaintiff's claim for negligent infliction of emotional distress, ALLOWED, but is, in all other respects, DENIED. Plaintiff's request for sanctions against Defendant's Counsel is DENIED. So ordered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499893/	445 F. Supp. 2d 305 (2006) Amil DINSIO, Plaintiff, v. The FEDERAL BUREAU OF INVESTGATION, the United States Department of Justice, the United States Attorney General, Defendants. No. 05-CV-6159L. United States District Court, W.D. New York. August 21, 2006. 306 307 Amil Dinsio, Alden, NY, Pro se. Christopher V. Taffe, U.S. Attorney's Office, Rochester, NY, for Defendants. DECISION AND ORDER LARIMER, District Judge. Plaintiff, Amil Dinsio ("Dinsio"), appearing pro se, filed the complaint in this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the Federal Bureau of Investigation ("FBI"), the United States Department of Justice ("DOJ"), and the Attorney General of the United States. He seeks an order directing defendants to release certain records that plaintiff alleges defendants have wrongfully withheld from him.[1] Defendants have moved for summary judgment. Plaintiff has cross-moved for partial summary judgment and has filed a number of other motions seeking various relief. BACKGROUND Dinsio filed a FOIA request with the FBI in 1974, seeking records that the FBI had compiled concerning plaintiff. At the time, plaintiff was serving a federal sentence for conspiracy to burglarize a bank and for bank larceny.[2] The FBI released 308 numerous documents to plaintiff in 1977. Complaint ¶ 2. In 1994, Dinsio filed another FOIA request with the FBI, seeking records that would "show that FBI agents burglarized" Dinsio's garage at his home in Ohio in 1972. Dkt. # 15-4 at 3. Dinsio alleges that his daughter (who is an attorney) had discovered evidence of such a burglary when in late 1993 she reviewed the records that plaintiff had received through his 1974 FOIA request. Complaint ¶¶ 7, 8. Dinsio's 1994 request related to his attempt to establish that his conviction had been unconstitutionally obtained through the unlawful actions of the FBI agents. Dkt. # 15-4 at 2. On December 3, 1999, the FBI informed Dinsio that "[t]he only records located by searches of the indices to [the] Central Records System at FBI Headquarters were [Dinsio's] previous Freedom of Information-Privacy Acts requests and [the FBI's] responses." Id. at 17. Plaintiff contends that he attempted to administratively appeal this decision, but got no response. Complaint ¶¶ 18-20. In February 2005, Dinsio filed a third FOIA request with the FBI, seeking "any and all records complied [sic] on [him] from the year 1980 to the present date." Complaint Ex. G. On May 9, 2005, the FBI informed Dinsio by letter that it had "located material which appeared] to be responsive to [Dinsio's] request," and advising him that "regulations require us to notify requesters when anticipated charges may exceed $25." Dkt. # 15-4 at 25. The letter asked Dinsio whether he would agree to pay the fees, or if he wanted to narrow the scope of his request to reduce the amount of the fee. The letter concluded, "If you fail to respond within thirty days from the date of this letter, your request will be considered closed administratively." Defendant contends, and Dinsio does not appear to deny, that he never responded to this letter. Plaintiff commenced this action in April 2005. He seeks judicial review of the FBI's alleged withholding of the records that plaintiff believes exist concerning the alleged burglary and other misconduct by FBI agents in connection with the investigation and prosecution of plaintiff for the 1972 bank burglary and larceny. There are two causes of action in the complaint, the first relating to Dinsio's 1994 FOIA request, and the second to his 2005 request. DISCUSSION I. General Principles "FOIA requires that `each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules . . ., shall make the records promptly available to any person.'" Halpern v. F.B.I., 181 F.3d 279, 286 (2d Cir.1999) (quoting 5 U.S.C. § 552(a)(3) (1994)). "FOIA requires the fullest possible public disclosure of government-kept records, but at the same time maintains the confidentiality of some information based on narrowly tailored exemptions intended to protect certain interests." Peltier v. F.B.I., No. 03-CV-9055, 2005 WL 735964, at 3 (W.D.N.Y. Mar. 31, 2005). "FOIA clearly contemplates judicial review of agency decisions to withhold information and provides that a reviewing court `shall determine the matter de novo [. . .], and the burden is on the agency to sustain its action.'" Halpern, 181 F.3d at 287 (quoting 5 U.S.C. § 552(a)(4)(B)). To prevail on a motion for summary judgment in a FOIA case, the agency must show that its search for the requested materials was adequate and that any documents withheld fall within an exemption to FOIA. Carney 309 v. United States Dep't of Justice, 19 F.3d 807, 812 (2d Cir.) cert. denied, 513 U.S. 823, 115 S. Ct. 86, 130 L. Ed. 2d 38 (1994). "Affidavits or declarations supplying facts indicating that the agency has conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden." Id. There is a presumption of good faith regarding affidavits submitted by a government agency, which "cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.'" Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir.1999) (quoting SafeCard Servs., Inc., v. Security and Exchange Comm'n, 926 F.2d 1197, 1200 (D.C.Cir.1991)). Therefore, the court may award summary judgment if the agency's affidavits are "adequate on their face." Carney, 19 F.3d at 812. Unlike "the usual question raised in FOIA litigation," i.e., "whether the information withheld properly falls within the scope of the exemptions," Halpern, 181 F.3d at 287, the issue here is whether any information actually was withheld from plaintiff. Defendants contend that the FBI conducted an adequate search but that, in response to plaintiff's 1994 request for records pertaining to the alleged burglary of his home by FBI agents, the FBI found no records other than those that had already been produced in response to his first request twenty years earlier. Plaintiff, on the other hand, alleges that there are other pertinent records in the FBI's possession, and that defendants have simply refused to disclose them or acknowledge their existence.[3] II. Exhaustion of Administrative Remedies Before turning to the merits of plaintiff's claims, the Court must address defendants' assertion that Dinsio is barred from seeking relief under FOIA because he has failed to exhaust his administrative remedies. Specifically, defendants contend that there is no record that plaintiff ever administratively appealed the FBI's 1999 determination on his 1994 request, and that plaintiff never responded to the FBI's letter concerning payment of a copying fee on his 2005 request. FOIA provides that request denials may be appealed to the heads of agencies, 5 U.S.C. § 552(a)(6)(A)(I), and individuals are required to exhaust this administrative remedy before filing suit. In the FOIA context, the exhaustion requirement is not jurisdictional, but is a "jurisprudential doctrine [that] precludes judicial review if the purposes of exhaustion' and the `particular administrative scheme' support such a bar." Hidalgo v. F.B.I., 344 F.3d 1256, 1258-59 (D.C.Cir.2003) (quoting Oglesby v. United States Dep't of the Army, 920 F.2d 57, 61 (D.C.Cir.1990)); accord Kennedy v. United States Dep't of Homeland Security, No. 03-CV-6076, 2004 WL 2285058, at 4 (W.D.N.Y. Oct. 8, 2004). In addition, a plaintiff may be deemed to have constructively exhausted his remedies if the agency fails to make a timely response to the initial request. See Ruotolo v. Department of Justice, Tax 310 Div., 53 F.3d 4, 8 (2d Cir.1995); see also 5 U.S.C. § 552(a)(6)(A)(I) (providing that agencies shall respond to FOIA requests within twenty working days). Here, it appears that the FBI did not even acknowledge receiving plaintiffs 1994 FOIA request until three years after it was filed. See Declaration of David M. Hardy (Dkt.# 15-3) ¶¶ 16, 7 and Exs. A and B. It took almost another three years for the FBI to inform Dinsio that it had found no records in addition to those that had been produced in 1977, and that it was closing his request. Hardy Decl. ¶ 12 and Ex. G. Courts have held, however, that "[i]f the agency responds to the request after the twenty-day statutory window, but before the requester files suit, the administrative exhaustion requirement still applies." Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C.Cir.2003); Oglesby, 920 F.2d at 61-62; Kennedy v. United States Dep't of Homeland Security, No. 03-C6076, 2004 WL 2285058, at 4 (W.D.N.Y. Oct. 8, 2004). Here, plaintiff did not file the complaint in this action until 2005, years after the FBI's December 1999 letter advising him that it had unearthed no records within the scope of his request that had not already been turned over to him. There is an additional problem with that letter, however: it did not advise plaintiff of his right to appeal. FOIA provides that the agency responding to a FOIA request must "notify the person making such request of the right of such person to appeal to the head of the agency any adverse determination. . . ." 5 U.S.C. § 552(a)(6)(A)(I). Where the agency's response does not include notification of the right to appeal, constructive exhaustion may also be found. See Ruotolo, 53 F.3d at 9 ("The Tax Division's response to the Ruotolos did not include notification of the right to appeal and, consequently, there was no timely determination of the request. Accordingly, the Ruotolos are deemed to have exhausted their administrative remedies") (citing Oglesby, 920 F.2d at 67). From the wording of the statute, it is not obvious whether the agency's response must always contain notice of the right to appeal, or only if the determination is "adverse." In other words, it is not clear whether the phrase "any adverse determination" is simply part of what must be included in the notice (e.g., "You have the right to appeal any adverse determination"), or whether it is a condition that triggers the notice requirement. The question is not entirely an academic one, since it is debatablefrom the FBI's standpoint, at leastwhether its December 1999 determination was in fact "adverse" to plaintiff. Again, from the FBI's standpoint, that agency already had given plaintiff all the records within its possession that fell within the scope of his request. The FBI had not found any records in addition to those, but it was not withholding any records either. Although plaintiffs first FOIA request, filed in 1974, does not appear to be in the record, it does seem that in his 1994 request Dinsio was looking for more than what he had gotten through the 1974 request. Dinsio's 1994 request stated that he believed that his "convictions [we]re . unconstitutional because the government committed a burglary at [plaintiffs] home in 1972" and that "[t]he agents committed perjury and fabricated FBI laboratory reports." Dkt. # 15-4 at 2. He added that "[t]his request is not for a general review of my files" but was "a specific request for only" certain specified documents, such as laboratory reports that Dinsio believed 311 had been referencedbut not provided to himin the records turned over to plaintiff in 1977. Id. at 3. Given the wording of the 1994 request, I believe that the FBI's determination that it had found no additional records and was closing plaintiff's request was "adverse" to plaintiff, and that the letter advising him of that determination should therefore have included notice of plaintiff's appeal rights. See Oglesby, 920 F.2d at 67 (agency's letter constituted an "adverse determination" because plaintiff did not receive the documents he requested; "The agency has a duty to notify appellant `of the right . . . to appeal to the head of the agency,' in cases where no records are found in its response as well as those in which specific records are denied") (quoting 5 U.S.C. § 552(a)(6)(A)(I)). Accordingly, plaintiff is deemed to have exhausted his administrative remedies with respect to the 1994 request. Ruotolo, 53 F.3d at 9.[4] I reach a different conclusion as to plaintiff's 2005 request, however. Plaintiff does not appear to deny that he never responded to the FBI's request that he agree to pay copying fees. FOIA requires the requester to follow each agency's rules for requesting, reviewing and paying for documents. See 5 U.S.C. § 552(a)(3)(B) (conditioning the agency's obligation to make records "promptly available" upon the requester abiding by "published rules stating the time, place, fees (if any), and procedures to be followed"). "The constructive exhaustion provision . . . did not relieve [plaintiff] of his statutory obligation to pay any and all fees which the agency was authorized to collect." Pollack v. Department of Justice, 49 F.3d 115, 119 (4th Cir.), cert. denied, 516 U.S. 843, 116 S. Ct. 130, 133 L. Ed. 2d 78 (1995); Oglesby, 920 F.2d at 66 (requester does not exhaust his administrative remedies "until the required fees are paid or an appeal is taken from the refusal to waive fees"); Trueblood v. United States Dep't of Treasury, I.R.S., 943 F. Supp. 64, 68-69 (D.D.C.1996) ("Regardless of whether the plaintiff `filed' suit before or after receiving a request for payment, the plaintiff has an obligation to pay for the reasonable copying and search fees assessed by the defendant"). Plaintiff is therefore barred from seeking judicial review under FOIA with respect to his 2005 request. III. Defendants' Motion for Summary Judgment In support of their motion, defendants have submitted declarations of David M. 312 Hardy, the Section Chief of the FBI's Record/Information Dissemination Section, Records Management Division, and of Priscilla A. Jones, the Chief of DOJ's Administrative Staff in the Office of Information and Privacy. Hardy states that he is "aware of the treatment that has been afforded" to plaintiff's 1994 and 2005 FOIA requests. Dkt. # 15-3 ¶ 3. He recites the chronology of events concerning the filing and processing of those requests, and states that "[b]y letter dated December 3, 1999, the FBI advised plaintiff that the only records located by searches of the indices to our Central Records System at FBIHQ were his previous FOIPA requests and our responses. Plaintiff was advised that FOIPA request number 383642-1 was being closed." Id. ¶ 12. Jones's declaration relates only to whether plaintiff appealed from the FBI's decision on his 1994 FOIA request. In my view, Hardy's declaration is not sufficiently detailed to entitle defendants to summary judgment. To meet their burden, defendants must submit "[a]ffidavits or declarations supplying facts indicating that the agency has conducted a thorough search. . . ." Carney, 19 F.3d at 812. The search "need not, and indeed could not be perfect," Jones-Edwards v. Appeal Bd. of Nat'l Security Agency Central Security Agency, 352 F. Supp. 2d 420, 423 (S.D.N.Y.2005) (quoting Garcia v. United States Dep't of Justice, Office of Information, 181 F. Supp. 2d 356, 366 (S.D.N.Y.2002)), but must be "reasonably designed to identify and locate responsive documents." Garcia, 181 F.Supp.2d at 368; see also Jackson v. United States Attorney's Office, 362 F. Supp. 2d 39, 41 (D.D.C.2005) ("When a plaintiff challenges the adequacy of the FOIA search conducted by an agency, the government is entitled to summary judgment only if it shows that the search conducted was `reasonably calculated to uncover all relevant documents' ") (quoting Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983)). "A reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment." Oglesby, 920 F.2d at 68. Such an affidavit "should, at a minimum, describe in reasonable detail the scope and method by which the search was conducted." Maynard v. C.I.A., 986 F.2d 547, 559 (1st Cir.1993). "An agency's affidavits will be inadequate, however, if they are conclusory and not relatively detailed." Katzman v. C.I.A., 903 F. Supp. 434, 438 (E.D.N.Y. 1995) (citing Weisberg, 627 F.2d at 370). "Accordingly, the affidavits should `identify the searched files and describe at least generally the structure of the agency's file system' which renders any further search unlikely to disclose additional relevant information." Katzman, 903 F.Supp. at 438 (quoting Church of Scientology v. I.R.S., 792 F.2d 146, 151 (D.C.Cir.1986), aff'd, 484 U.S. 9, 108 S. Ct. 271, 98 L. Ed. 2d 228 (1987)). Here, Hardy has done little more than recite what is obvious from the correspondence between plaintiff and the FBI: that Dinsio filed a FOIA request for certain types of documents and that several years later the FBI told him that it had not found any documents beyond those provided to him in 1977. There is no explanation of what records were searched, or what search terms or methods were employed. Hardy's declaration thus "falls well short of the required specificity," *313 and "the absence of any description in [Hardy's] declaration of the scope and nature of the search . . . makes it impossible for the Court to determine on this record as a matter of law that [the] search was reasonably calculated to recover all relevant documents." Tamilo v. United States Dep't of Defense, 170 F. Supp. 2d 271, 275 (D.Conn.2001). The presumption of good faith that attaches to declarations submitted by a government agency is no substitute for the "reasonable detail" that those declarations must contain. "Where, as here, an agency fails to establish through sufficiently detailed affidavits that its search was reasonable, and the FOIA requester shows that the agency might have discovered a responsive document had the agency conducted a reasonable search, summary judgment should be denied." Id. Although I am not convinced that plaintiff has established that any responsive, but as yet-undisclosed documents do exist, I conclude that this result is mandated here. I therefore deny defendants' motion as to the documents sought in plaintiff's 1994 request, but without prejudice. Defendants may renew their motion, and may be entitled to summary judgment, provided that they submit affidavits or declarations that meet the standards recited above. See Katzman, 903 F.Supp. at 439 (directing agency to submit more detailed affidavits). IV. Plaintiffs Motions Plaintiff has filed a number of motions, including a motion for partial summary judgment, two motions for sanctions, and a motion to strike Hardy's and Jones's declarations, all based in large part on plaintiff's contention that the documents that he seeks do exist and that defendants are lying when they say that they have not located any additional records. These motions are all denied. Plaintiff has not established that these alleged documents exist, that they are in defendants' possession, or that defendants are aware of their existence, nor has he shown that the FBI's search was inadequate. Plaintiff's motions for sanctions are also denied, both because of plaintiff's failure to comply with the "safe harbor" provision of Rule 11, see Fed.R.Civ.P. 11(c)(1)(A), and because the record does not show that defendants or their attorney have engaged in sanctionable conduct.[5] CONCLUSION Defendants' motion for summary judgment (Dkt.# 15) is granted in part and denied in part. Plaintiffs second cause of action is dismissed. In all other respects, the motion is denied. Plaintiffs motion for partial summary judgment (Dkt.# 23), motions for sanctions (Dkt. # 18 and # 26), and motion to strike (Dkt.# 19) are denied. Plaintiffs motion for the Court to expedite its decision on defendants' motion for summary judgment (Dkt.# 28) is denied as moot. IT IS SO ORDERED. NOTES [1] To the extent that plaintiff seeks records containing personal information about himself, his complaint could also be construed to assert a claim under the Privacy Act, 5 U.S.C. § 552a. See Bechhoefer v. United States Dep't of Justice, Drug Enforcement Admin., 209 F.3d 57, 62 (2d Cir.2000). Although there are some differences between FOIA and the Privacy Act, see, e.g., Louis v. United States Dep't of Labor, 419 F.3d 970, 978 n. 7 (9th Cir. 2005) (differences in scope of certain exemptions); MacPherson v. I.R.S., 803 F.2d 479, 482 (9th Cir.1986) (noting different purposes of the two acts), none of them have any bearing on the issues presented in this action, so the Court will generally discuss only FOIA. See Hill v. United States Air Force, 795 F.2d 1067, 1069 n. 4 (D.C.Cir.1986) (search standard same for both FOIA and Privacy Act). [2] The facts concerning the 1972 bank burglary (which involved blowing a hole through the roof of the bank building) and the investigation that led to Dinsio's arrest are set forth in United States v. Mulligan, 488 F.2d 732 (9th Cir.1973), and United States v. Barber, 495 F.2d 327, 328 (9th Cir.1974). Plaintiff is currently serving a sentence for a New York conviction of robbery in the second degree, criminal use of a firearm in the first degree, and kidnapping in the second degree. See People v. Dinsio, 286 A.D.2d 517, 729 N.Y.S.2d 208 (3d Dep't 2001), leave to appeal denied, 97 N.Y.2d 703, 739 N.Y.S.2d 104, 765 N.E.2d 307, cert. denied, 536 U.S. 942, 122 S. Ct. 2626, 153 L. Ed. 2d 808 (2002). [3] Defendants also contend that the FBI did find some records in response to plaintiff's 2005 request for "any and all records" compiled on Dinsio since 1980, but that plaintiff never responded to the FBI's letter about duplication fees. Plaintiff's only response appears to be his seemingly inexplicable assertion that "the defendants' May 9, 2005 letter had nothing to do with the plaintiff's February 14, 2005 request for records." Dkt. # 19 ¶ 8. That letter clearly does relate to Dinsio's February 14 request, though, as it bears the number assigned to that request. See Dkt. # 15-4 at 23, 25. [4] Defendants contend that "[n]o record of an administrative appeal of the FBI response (continued . . .) from plaintiff was located during a search of the Department of Justice, Office of Information and Privacy [`OIP'] records." Hardy Decl. at 5 n. 1. See also Declaration of Priscilla A. Jones (Dkt.# 17) ¶ 2 ("There is no record of OIP receiving an administrative appeal from Amil Dinsio concerning the denial of [his 1994 request] from the action of the Federal Bureau of Investigation"). In their answer, however, defendants admitted plaintiff's allegations in the complaint that "[b]y letter dated December 23, 1999, the plaintiff appealed to the FOIPA [Freedom of Information and Privacy Acts] appeal section for the records" he had sought in his 1994 request and that "[o]ne year later, after receiving no reply to the appeal, on December 21, 2000, the plaintiff mailed a follow up appeal letter." Complaint ¶¶ 18, 19; see also Complaint Exs. E and F; Defendants' Answer (Dkt.# 7) ¶ 1. Although it is arguably not inconsistent to agree that plaintiff appealed to the FBI's FOPA appeals section, yet maintain that no record of an appeal has been found in DOJ's records, defendants' admission of the complaint's allegations in this regard certainly also weighs against a finding of non-exhaustion. See Gibbs ex rel. Estate of Gibbs v. CIGNA Corp., 440 F.3d 571, 578 (2d Cir.2006) ("Facts admitted in an answer, as in any pleading, are judicial admissions that bind the defendant throughout this litigation"). [5] As an aside, I note that it is difficult to see what use plaintiff could make of the requested documents, even if they do exist and are produced, since he has apparently served his federal sentence in its entirety. In addition, it appears that plaintiff has already litigated Bivens claims in other district courts arising out of the alleged 1974 burglary of his garage by FBI agents, and that those claims have been dismissed, partly on the ground that the statute of limitations has expired. See Dkt. # 15-5 at 5-7; Dkt. # 15-8 at 6; Dinsio v. Chamberlain, 1997 WL 634547 (D.C.Cir. Sept. 8, 1997).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499895/	445 F. Supp. 2d 82 (2006) UNITED STATES of America, v. Michael VACCARO, Defendant. Criminal No. 05-10135-NMG. United States District Court, D. Massachusetts. July 13, 2006. 83 Donald L. Cabell, United States Attorney's Office, William H. Connolly, United States Attorney's Office, John Joseph Moakley, Federal Courthouse, Boston, MA, for United States of America. R. Bradford Bailey, Jeffrey A. Denner, Gary G. Pelletier, Denner Associates, P.C, Roberto M. Braceras, Goodwin Procter LLP, Boston, MA, for Defendant. MEMORANDUM & ORDER GORTON, District Judge. On June 1, 2005, the government brought an indictment against the defendant, Michael Vaccaro ("Vaccaro"), which charged him with arson and possession of an unregistered firearm. Defendant moves to dismiss the indictment and suppress various pieces of evidence from the investigation. I. Background As background, on Friday, October 1, 2004, at approximately 10:37 p.m., an explosion occurred at 47-49 Chapel Street, Lowell, Massachusetts ("the Building"). The Building is located in a residential neighborhood and is a two-story apartment building containing four rental units. The right-side entry door is identified as 47 Chapel Street and the left-side entry door is identified as 49 Chapel Street. The Lowell Fire Department responded to the scene and found an extinguished fire with a strong odor of gasoline and visible fire damage to the entryway. Fire investigators found a burned newspaper in the front yard of the building as well as small glass fragments, paper and red plastic littered across the sidewalk and street. Samples of glass, burned paper, gasoline and paper were collected from the scene 84 and submitted to the State Police Crime Laboratory which confirmed the presence of gasoline and pyrotechnic powder in the samples. Fire investigators concluded the cause of the explosion was a hand-delivered, improvised explosive device consisting of a glass jar, gasoline and an explosive initiating device placed on the hinge side of the front door to 47 Chapel Street. The ATF has determined that the device recovered from the building constitutes a destructive device under the U.S.Code. Through interviews with residents of 47 Chapel Street, investigators learned that a female resident of that apartment, Anissa Willette ("Willette"), had a disagreement with a male visitor earlier in the evening on October 1, 2004. Willette was engaged in prostitution and allegedly met Vaccaro earlier that day when he propositioned her for oral sex while he was operating his pick-up truck in an area of Lowell where she was working. Willette allegedly entered his truck and they both drove to 47 Chapel Street. When Vaccaro allegedly arrived at the residence with Willette, they were admitted by Thomas Mascaro. Mascaro is a friend of Willette and he lives at 47 Chapel Street with Willette and his son, Mark, who was also home at the time. At some point during the tryst, there was an argument about price and Vaccaro allegedly got very aggressive with Willette. She left the apartment and, shortly thereafter, the man alleged to be Vaccaro was escorted from the apartment by Mark Mascaro. He claims that Vaccaro told him that Willette had ripped him off but that he remembered the address and would be back. The man then walked toward a black pickup truck. A few hours later, Thomas Mascaro heard an explosion in his apartment and saw flames coming from the hallway near the front entry door. He was able to extinguish the flames with several buckets of water. One eyewitness claims that just before the explosion he saw a man fitting Vaccaro's physical description carrying a container which the man placed on the hinge side of the front door of 47 Chapel Street before walking back to a black pickup truck. Investigators soon began to focus their attention on Vaccaro as a suspect. On October 14, 2004, and October 22, 2004, investigators interviewed four different witnesses and showed them an array of eight photographs, which included a photo of Vaccaro. All four witnesses (Willette, Thomas and Mark Mascaro and Antonio DeFreitas) positively identified Vaccaro's photo as the man who entered the apartment with Willette on October 1, 2004. As the investigation continued in October, 2004, Vaccaro told one of the investigators, Brian Keefe ("Keefe"), a patrolman with the Lowell Police Department, that he would not speak to him or any other investigator without his lawyer present. Notwithstanding that warning, several weeks later Keefe and his partner in the investigation, ATF Agent Konstantinos Balos ("Balos"), went to Vaccaro's home, purportedly to speak with defendant's wife, not to Vaccaro. Defendant refused to let his wife speak to the investigators alone but then sent her upstairs and told the officers that he would answer their questions. At that point, Keefe and Balos reminded Vaccaro of his priory instruction regarding counsel but Vaccaro told them he was willing to speak to them in his garage. The investigators gave Vaccaro a Miranda warning and he responded that, although he understood his rights, he would not sign a written acknowledgment of waiver. Vaccaro then proceeded to speak with the officers and addressed their questions. Keefe noted on the Miranda waiver form 85 "verbal waiver, refused to sign". According to the investigators, Vaccaro made various statements regarding his truck and his actions around the time of the arson. Vaccaro's wife then reappeared and the agents attempted to ask her a question but defendant loudly ordered her not to answer and the investigators suspended the interview and left the premises. II. Pending Motions Defendant now moves 1) to dismiss the indictment, 2) to suppress identification evidence and 3) to suppress statements he made to the police in the course of the investigation. The government opposes those motions. Having considered the memoranda in support of and opposition to the pending motions and after conducting an evidentiary hearing with respect to those motions, the Court resolves them as follows. A. Motion to Dismiss Indictment Vaccaro moves to dismiss the indictment because the government called witnesses before the grand jury who had ingested heroin a few hours prior to their testimony. Vaccaro claims those actions fatally prejudiced the indictment process and violated fundamental fairness. During questioning before the grand jury, the three witnesses (Willette, Thomas Mascaro and Mark Mascaro) admitted to ingesting heroin on the morning of their scheduled testimony but also testified that such drug use 1) took place several hours before their appearances, 2) did not interfere with their recollections as to events concerning the investigation and 3) did not cause them to be high at the time of their testimony. The government contends that the witnesses were honest with the grand jurors in admitting to their heroin use and that their testimony was reliable and competent. Moreover, even after the grand jurors became aware of the witnesses' heroin use, they proceeded to indict Vaccaro on the strength of the evidence presented to them. The Supreme Court has held that an indictment returned by a legally constituted and unbiased grand jury "is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence." United States v. Calandra, 414 U.S. 338, 345, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974); United States v. Latorre, 922 F.2d 1, 7 (1st Cir.1990). The government's position is further bolstered by the fact that there is not a single legal precedent supporting the dismissal of an indictment under similar circumstances. The witnesses' drug use is fair game for cross examination at trial but it does not justify the extraordinary remedy of dismissing the indictment that is now proposed by defendant. Thus, defendant's motion will be denied. B. Motion to Suppress Identification Evidence Vaccaro claims that the photo array identifications by the four witnesses should be excluded because the array was unduly suggestive and the government took no precautions to ensure that the witnesses did not discuss it with one another. The government responds that the array was not unduly suggestive and was reliable. The Court is mindful that it is only in extraordinary cases that identification evidence should be withheld from the jury. United States v. de Jesus-Rios, 990 F.2d 672, 677 (1st Cir.1993) (citations and quotation marks omitted). Such an extraordinary case would exist if "there was a very substantial likelihood of irreparable misidentification." Id. (citation omitted). The First Circuit Court of Appeals has held that when a defendant seeks to suppress 86 identification evidence, the courts must employ a two-pronged analysis. United States v. Henderson, 320 F.3d 92, 100 (1st Cir.2003). The first prong requires the reviewing court to determine if the identification procedure employed was impermissibly suggestive. Id. If, and only if, the court so finds, then it must address whether "the identification itself was reliable under the totality of the circumstances, notwithstanding the suggestive procedure." Id. (citation omitted). Here, officers conducting the investigation took the necessary steps to ensure the absence of suggestiveness in the photo array at issue. The officers' photo array included eight photos, one of the defendant and seven other photos of men who share the same physical characteristics of the defendant (e.g., race, age, hair color and facial hair (mustache)). The photos were arranged four on top and four on the bottom. No picture was emphasized more than the others and several photos were cropped for purposes of creating uniformity in photo size. All photos were presented in black-and-white. The officers conducted the identification procedure with each witness separately. They read detailed instructions to each witness prior to showing them the array. Those instructions noted that 1) the suspect's photo was not necessarily included in the array and 2) the witness was not required, nor should feel an obligation, to choose any of the photos in the array. Based on those procedures, the officers avoided creating an impermissibly suggestive array. Certainly, they could have avoided any claim of suggestiveness by simply re-arranging the order and positions of the eight photos within the array after each interview, especially given the fact that the investigating officers knew that the prospective witnesses were acquainted with (and/or related to) one another. Nevertheless, the officers' photo array met the constitutional requirement and was not unduly suggestive. The Court, therefore, need not reach the issue of the reliability of the identifications and that evidence will not be suppressed. C. Motion to Suppress Statements Vaccaro moves to suppress the statements he made to law enforcement officers at his home on January 6, 2005, pursuant to the Fifth and Sixth Amendments because, he alleges, the government obtained them in flagrant disregard of his right to counsel. Although Vaccaro's motion is premised on the Fifth and Sixth Amendments, his supporting memorandum is focused exclusively on the Sixth Amendment issue, therefore, it will be the Court's primary focus. The Sixth Amendment becomes applicable only when the government's role shifts from investigation to accusation. Roberts v. Maine, 48 F.3d 1287, 1290 (1st Cir.1995) (citations and quotation marks omitted). The Supreme Court and the First Circuit Court of Appeals have made it clear that the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant. See United States v. Gouveia, 467 U.S. 180, 187, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984); Roberts, 48 F.3d at 1290; Judd v. Vose, 813 F.2d 494, 496-97 (1st Cir.1987). The initiation of such proceedings is normally by way of a formal charge, preliminary hearing, indictment, information or arraignment, Roberts, 48 F.3d at 1290, none of which had occurred when the officers spoke with Vaccaro and his wife at their home on January 6, 2005. Defendant contends that the Supreme Court in Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985), left open the door for the right to counsel to attach before the initiation of formal *87 charges. The First Circuit has also recognized such a scenario where the government crosses the constitutionally significant divide from fact-finder to adversary. Roberts, 48 F.3d at 1291 (citation omitted). Nevertheless, such circumstances "must be extremely limited", such as when the government intentionally delays formal charges for the purpose of holding a lineup outside the presence of counsel. Id. Such a scenario is a far cry from the facts presented by the instant case where the visiting officers remained ensconced in their role as investigators, not accusers. Even if this Court were to analyze the suppression motion under the rubric of the Fifth Amendment, defendant's position would fare no better. First, the police are compelled to give a Miranda warning only when a reasonable person would believe he is "in custody" under the circumstances. United States v. Ventura, 85 F.3d 708, 711 (1st Cir.1996). See also United States v. Nishnianidze, 342 F.3d 6, 13 (1st Cir.2003)(delineating the factors for consideration of whether a defendant is "in custody"). Here, despite the fact that the investigatory officers, Keefe and Balos, read Vaccaro the Miranda warning as a precaution, it is highly unlikely they were required to do so under the circumstances because, applying the relevant factors, he was not "in custody". Second, even if Vaccaro was "in custody", the evidence indicates that he waived his rights to silence and assistance of counsel despite his refusal to sign the waiver form. See United States v. Speaks, 453 F.2d 966, 968-69 (1st Cir.1972)(finding defendant's waiver of his rights to remain silent and to counsel was intelligently made, even though he refused to sign the waiver form, where he stated that he understood his rights and wanted to speak with the investigating officer). Thus, Vaccaro's statements will not be suppressed. ORDER In accordance with the foregoing, Defendant's Motions to Dismiss the Indictment (Docket No. 29), to Suppress Identification Evidence (Docket No. 27) and to Suppress Statements (Docket No. 31) are DENIED. So ordered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499888/	445 F. Supp. 2d 779 (2006) NATIONAL SURETY CORPORATION, Plaintiff v. HARTFORD CASUALTY INSURANCE COMPANY, Defendant. Civil Action No. 3:05-CV-119-S. United States District Court, W.D. Kentucky, at Louisville. August 18, 2006. 780 Barry Miller, Elizabeth S. Feamster, Timothy Armstrong West, Fowler, Measle & Bell, LLP, Lexington, KY, for Plaintiff. Douglas L. Hoots, Tyler Griffin Smith, Landrum & Shouse, LLP, Lexington, KY, for Defendant. MEMORANDUM OPINION SIMPSON, District Judge. This matter is before the court on the motion to dismiss by the defendant, the Hartford Casualty Insurance Company ("Hartford"). This case involves the plaintiffs claims for breach of contract and for common law bad faith, under theories of conventional and equitable subrogation. For the reasons set forth below, the court will GRANT the defendant's motion to dismiss. FACTS Hartford insured Sufix, USA ("Sufix"), a company that manufactured a trimmer head for weed eaters. The plaintiff, National Surety Corporation ("National Surety"), was Sufix's excess carrier. A consumer who suffered an injury while using the weed eater filed suit against Sufix for defective design. The jury awarded the consumer $5,783,815 in damages. Hartford provided the legal defense for Sufix during the trial. Hartford, the primary insurer, paid its $1,000,000 policy limit, leaving National Surety to satisfy the remainder of the judgment. National Surety assumed the legal defense at this point and unsuccessfully appealed the verdict. It then paid the balance of the judgment, including interest. National Surety now seeks reimbursement from Hartford. National Surety has asserted two claims against Hartford. First, it alleges that Hartford breached its contract with National Surety by failing to perform an adequate investigation, provide competent defense and settle within policy limits. Second, National Surety alleges that Hartford breached its common law duty 781 of good faith owed to Sufix. National Surety asserts both claims as Sufix's subrogee. Hartford has now filed a motion to dismiss all claims against it, arguing that Kentucky law does not recognize an excess carrier's right to proceed against a primary insurer via subrogation. DISCUSSION When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court "must accept all well-pleaded factual allegations of the complaint as true and construe the complaint in the light most favorable to the plaintiff." Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.2002). The court should grant the motion to dismiss the complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984). The parties agree that Kentucky case law does not address the specific question presented at bar; namely, whether an excess carrier, as subrogee to its insured, can assert breach of contract and common law bad faith claims against the insured's primary carrier. Regarding such issues of first impression, we are charged with making the "best prediction, even in the absence of direct state court precedent, of what the Kentucky Supreme Court would do if it were confronted with th[e] question." Managed Health Care Assocs., Inc. v. Kethan, 209 F.3d 923, 927 (6th Cir.2000) (citation omitted). A. Equitable Subrogation While the Kentucky Supreme Court has not spoken on the precise issue at bar, the Kentucky Court of Appeals refused to recognize the theory of equitable subrogation in a similar situation. See American Continental Ins. Co. v. Weber & Rose, 997 S.W.2d 12 (Ky.1998). The underlying facts of Weber & Rose are similar to those at bar. An individual who was injured on the premises of N.K.C. Hospital, Inc. ("NKC"), filed a negligence action against NKC. The jury returned a verdict of $2,900,000. NKC was self-insured for the first $2,000,000; but its excess insurer, American Continental Insurance Company ("ACIC"), refused to satisfy the remainder of the judgment and filed suit, seeking a declaration that there was no coverage under its policy. Weber & Rose, the law firm which had represented NKC in the underlying tort action, intervened in the subsequent action seeking a declaration that it could not be liable to ACIC for malpractice. ACIC then filed a cross-claim against Weber & Rose, alleging that the firm had committed malpractice. The trial court granted summary judgment in favor of Weber & Rose and dismissed ACIC's cross-claim. The Kentucky Court of Appeals affirmed. Though it acknowledged "that some courts permit excess insurers to proceed against primary insurers for negligence and bad faith," the Kentucky Court of Appeals was "not persuaded that Kentucky should adopt such a course." Id. at 13. The opinion focused on the courts'"duty to protect and preserve th[e attorney-client] relationship for the benefit of the general public" when it held that "ACIC was not entitled to maintain an action for malpractice against Weber & Rose based upon a theory that ACIC was subrogated to NKC's right to maintain such an action." Id. The Weber & Rose opinion is the strongest indicator of how the Kentucky courts would rule in the case at bar. In fact, the Weber & Rose court cited two cases relied upon by National Surety in its brief. See Hartford Accident and Indemnity Co. v. Michigan Mutual Ins. Co., 61 N.Y.2d 569, 475 N.Y.S.2d 267, 463 N.E.2d 608 (1984) 782 and Ranger Ins. Co. v. Travelers Indemnity Co., 389 So. 2d 272 (Fla.App.1980). Despite the fact that these cases recognize an excess insurer's claim against a primary insurer based upon a theory of equitable subrogation, the Kentucky Court of Appeals adapted an alternative approach. We predict that the Kentucky courts would apply the same analysis to the situation at bar. The Weber & Rose court reasoned that recognizing the cause of action would, inter alia,. "encourage excess insurers to sue defense attorneys for malpractice whenever they are disgruntled by having to pay within the limits of policies to which they contracted and for which they received premiums." Id. at 14 (quoting American Employers' Ins. Co. v. Medical Protective Co., 165 Mich.App. 657, 419 N.W.2d 447 (Mich.App.1987)).[1] Similarly, recognizing the instant causes of action for breach of contract and bad faith, under a theory of equitable subrogation, would encourage excess insurers to sue primary carriers "whenever they are disgruntled by having to pay within the limits of policies to which they contracted and for which they received premiums." Id. Both situations threaten the integrity of the settlement process by allowing the excess carriers, who were not involved in those underlying negotiations, to second-guess the judgment of the primary insurer's representatives. Allowing excess carriers to sue counsel for the primary would suggest that counsel owed a duty to represent, not only its client, but a third party. The Kentucky Court of Appeals rejected such an outcome in Weber & Rose. It follows that Kentucky would not recognize a cause of action that expands the duty owed by the primary insurer to, not only its insured, but a third party, particularly when that third party has been paid under a contract for assuming the risk of an excess judgment. National Surety informs the court that a "majority of jurisdictions allows an excess carrier to sue a primary based on the equitable subrogation doctrine." Defendant's Brief (DN 13), p. 13. An examination of the opinions from these jurisdictions reveals that this "majority rule" is motivated by certain policy-driven concerns. The courts acknowledge that, in recognizing a cause of action under the doctrine of equitable subrogation, they are creating a remedy in favor of excess insurers.[2] We decline to fashion a remedy for 783 what we perceive as a nonexistent injury. The excess insurers, who have received premiums in exchange for assuming the risk of an excess judgment, have suffered no wrong for which we can justify creating a remedy out of whole cloth. Furthermore, there, are "no shoes" for National Surety "to step into" because Sufix, who has been fully indemnified, has suffered no loss. See also Federal In. Co. v. Travelers Casualty & Surety Co., 843 So. 2d 140, 144 (Ala.2002) ("it is also well-settled that a bad-faith-failure-to-settle claim does not exist where the insured is subject to no personal loss from a final judgment"). Our position may best be illustrated by examining the hypothetical situations which have motivated the other jurisdictions to adopt an alternate approach. For instance, in Employers National Ins. Corp. v. General Accident Ins. Co., 857 F. Supp. 549, 551 (S.D.Tex.1994), the court stated: [I]f an insurer with a policy limit of $1,000,000 believes that there is only a five percent chance that it will win at trial, it might refuse a settlement offer of $950,000 because it would at most be risking $50,000 if a jury found for the plaintiff, even if the verdict was $5,000,000. Because it is the insured's or an excess carrier's money that is at risk above the primary policy's limits, the primary carrier must have a duty to handle the claim with the insured's best interest in mind as well as its own. The least duty would be the level of care one would exercise if the whole liability were for the account of one party. Id. at 552. This example fails to take into consideration the practical realities facing an insurer during the litigation process. An insurer who has estimated its success potential at trial to be a mere five percent is unlikely to willingly incur the substantial transaction costs of litigation involved in defending a lawsuit it is almost certain to lose. The Seventh Circuit Court of Appeals also justified its adoption of the "majority approach" by way of an economic hypothetical. See Twin City Fire Ins. Co. v. Country Mutual Ins. Co., 23 F.3d 1175, 1179 (7th Cir.1994): Suppose the claim was for $2 million, the policy limit was $1 million, the plaintiff was willing to settle for this amount, but the defendant's insurer believed that if the case was tried the plaintiff would have a 50 percent chance of winning $2 million and a 50 percent chance of losing. The insure's incentive would be to refuse to settle, since if it lost the trial it would be no worse off than if it settled in either case it would have to pay $1 millionbut if it won it would have saved itself $1 million. It is in order to quench this type of temptation that the liability insurer's duty to settle in good faith was read into liability insurance contracts. When by virtue of an excess insurance policy, the victim of the behavior that we have described is the excess insurer rather than the insured, the former is permitted to step into the shoes of the latter and assert the latter's implied contractual right against the misbehaving insurer. Id. at 1179. Under this hypothetical, the cost of the insurer's economic risk is $500,000, since it has a policy limit of $1,000,000 and a 50% chance of winning a defense verdict. The opinion correctly recognizes that because of the liability insurer's duty to settle in good faith, which is read into its insurance contract with the insured, the liability insurer is not permitted to act only in accordance with its own economic best interests, but must act in 784 accordance with its duty to protect the insured from an excess judgment. See id. Of course, the insurer has received a premium which would be generally based, inter alia, on the recognition that the insurer would, on occasion, have to pay more than the cost of its own economic risk by reason of the good faith duty to settle. But where the hypothetical goes astray is when it observes that where there is excess insurance, the excess carrier is the "victim" if the primary insurer is only willing to pay the cost of its own selfish economic risk; that is, $500,000. See id. In fact, there is no "victim," because if there is excess insurance, the excess carrier is situated in exactly the same position as the primary carrier, and has received a premium for assuming such position. The difference is that the primary insurer has no contractual relationship with the excess insurer, and owes it no duty of good faith, contractually or otherwise. Where the excess insurer has charged and received a premium for assuming its position, it is not entitled to good faith treatment by the primary insurer because it is a stranger to the contractual relationship between the primary carrier and the insured. A return to the hypothetical illustrates the situation. Assuming there is excess insurance covering the full amount of the $2,000,000 claim, then the primary insurer and the excess insurer each face the possibility of paying $1,000,000 and a 50% chance of paying nothing. Each faces a claim with an economic risk cost of $500,000. Each owes a good faith duty to its insured to settle within policy limits. Under such a scenario, the primary carrier will pay the cost of its economic risk ($500,000) and the excess carrier will pay the cost of its economic risk ($500,000); and the $1,000,000 settlement demand will be achieved. Moreover, equilibrium will result because each insurer will have paid the economic price of its own individualized risk. The problem with the result reached in the Twin City Fire Ins. Co. opinion is that, by judicial fiat, the cost of the excess carrier's economic risk is shifted to the primary carrier as if the insured had no excess insurance, as if the primary carrier owed to the excess carrier a good faith duty to settle, and as if the excess carrier had not received a premium for the risk it assumed in providing excess insurance. This results in the primary insurance carrier paying the cost of the excess insurance carrier's economic risk, not as a result of any contractual obligation, but because of judicial imposition. In fact, the opinion in Twin City Fire Ins. Co. recognizes that the harm of an excess verdict to an insured with no excess coverage is considerably different from the harm to an excess insurer whose business it is to cover such a risk. See id. But the opinion proposes that the excess insurer is nonetheless "hurt" because if the primary insurer refuses to pay the $1,000,000 in settlement, its actions would convert a zero probability of liability to the excess insurer into a 50% probability that the excess insurer would lose $1,000,000. See id. Of course, it is certainly correct that if the primary insurer pays the cost of the excess carrier's economic risk ($500,000), in addition to its own $500,000 risk, the case can be settled for $1,000,000 and the excess insurer will pay nothing. So the real question devolves into whether the excess insurer is entitled to "a zero probability of liability" under circumstances where it has sold its insured an excess policy, received premiums for the policy, and is fully able to settle its own risk exposure in the same manner that the primary insurance carrier can settle its risk exposure. 785 The bottom line here is that there is no economic rationale for favoring the excess carrier at the expense of the primary carrier by forcing the latter to purchase the former's economic risk. Twin City Fire Ins. Co., and other cases along the same line, simply' permit an excess carrier to step into the shoes, not of its insured, but into the shoes of an imaginary insured who had no excess insurance. Such a result has no basis in reality, and artificially allocates costs. The courts subscribing to this view apparently feel compelled to fashion a remedy for excess carriers when primary carriers "expose" them to risk,[3] because such a remedy would "serve the public interest." See Employers National, 857 F.Supp. at 552. Specifically, several courts have expressed concern that excess insurers may raise premiums if courts do not recognize the excess carrier's right to subrogation. See, e.g., Peter v. Travelers Ins. Co., 375 F. Supp. 1347, 1350-51 (C.D.Cal.1974) ("If the primary carrier is relieved of its duty to accept reasonable offers by the existence of excess insurers, it would put an additional financial liability on the excess carrier which would be reflected in increased premiums."); Employers National, 857 F.Supp. at 552 ("[U]nreasonable economic behavior by the primary carrier results in economic waste through increased costs for the same protection, unproductively raising premiums for excess insurance."). Applying the same logic, if we were to recognize the instant causes of action via equitable subrogation, it is just as likely that the primary insurer would raise its premiums because it would face assuming and paying the cost of an excess insurer's economic risk. While there might also be a corresponding decrease in excess insurance premiums, the increasing cost of primary insurance would nonetheless be passed on to the many insureds who do not have excess coverage. It is not within the province of the courts to determine which parties would best bear these types of burdens. Rather, the costs are best allocated via the marketplace, in accord with fairly distributed risks. Many courts have also concluded that recognizing equitable subrogation in this context comports with the idea that reasonable settlements should be favored. See, e.g., Employers National, 857 F.Supp. at 552. We note, however, that it remains questionable whether pressuring primary insurers to settle for policy limits and bear the cost of economic risk which is properly that of another, differently situated, carrier furthers the goal of achieving reasonable settlement. We also fail to see how the above hypotheticals "distribute losses between the primary and excess segments of the insurance policy according to the additional cost the particular segment causes by its own choice of behavior." Id. In fact, encouraging the primary insurer to settle for its policy limits and assume the cost of the excess carrier's economic risk or, in the alternative, end up reimbursing the excess carrier for payment of the excess judgment, actually distributes the costs unfairly. B. Conventional Subrogation National Surety plead its breach of contract claims on alternative bases: conventional and equitable subrogation. See Complaint, ¶¶ 21, 25. Conventional subrogation is "founded upon contract or agreement, as distinguished from `legal' [or equitable] subrogation, which is founded on equitable principles of restitution *786 and unjust enrichment." Dodson v. Key, 508 S.W.2d 586, 589 (Ky.App.1974). National Surety maintains that even if the court dismisses the equitable claims, its conventional claims may survive. We disagree. The language relied upon by National Surety is contained in its insurance contract with Sufix: "If any insured has rights to recover all or part of any payment, [National Surety] make[s] under this policy, those rights are transferred to [National Surety]." Plaintiffs Exhibit A, p. 15, ¶ Q.1. Sufix's purported right to recover payment is predicated on a theory that Hartford breached its contract with Sufix by failing to perform an adequate investigation, provide competent defense and settle within policy limits. However, Sufix sustained no injury as a result of Hartford's handling of the claim and failure to settle within its, policy limits. Sufix stands fully indemnified. Hartford paid the limits of its policy and National Surety fulfilled its contractual obligation to satisfy the excess judgment. Sufix made no payment. Under the terms of the insurance contract itself, therefore, National Surety has no right to subrogation because its insured has suffered no injury and has no claim. For the reasons stated above, we reject the rationale of those courts which permit an excess carrier to pursue subrogation against a primary carrier by allowing the excess carrier to step into the shoes, not of its insured, but of an imaginary insured who was bereft of excess insurance. We predict that the Kentucky courts would agree. Accordingly, we will grant the defendant's motion to dismiss all claims in this case. A separate order will be entered herein this date in accordance with this opinion. NOTES [1] While the American Employers court refused to allow an excess insurer to sue the primary insurer's attorney via equitable subrogation, the Michigan state courts have permitted an excess carrier to sue a primary insurer for bad faith failure to defend or failure to settle within policy limits. See Commercial Union Ins. Co. v. Medical Protective Co., 426 Mich. 109, 393 N.W.2d 479 (1986). We reject such a distinction, however, and find the rationale from American Employers persuasive in our determination that the Kentucky courts would refuse to recognize the instant cause of action against Hartford. [2] See, e.g., COUCH ON INSURANCE 3D 222:18 ("The underlying rationale for applying the doctrine of equitable subrogation in favor of excess liability insurers, and against primary liability insurers, is because the excess insurer, rather than the insured, bears the cost of the verdict or settlement in excess of the amount of the primary insurance policy when the insured had excess insurance"); Employers National Ins. Corp. v. General Accident Ins. Co., 857 F. Supp. 549, 551 (S.D.Tex.1994) ("Without this remedy, the primary insurer would have no incentiveother than spontaneous integrityto work to settle within the limits of the primary policy when it is reasonably clear that the primary level will be consumed . . ."); Twin City Fire Ins. Co. v. Country Mutual Ins. Co., 23 F.3d 1175, 1179 (7th Cir.1994) ("Were it not for [the duty of good faith], a duty fairly implied in the insurance contract, in a case in which a claim could be settled at or near the policy limit, yet there was a good although not certain chance that it could be beaten at trial, the insurance company would be sorely tempted to take the case to trial."). [3] We note that this is a risk "to which they contracted and for which they received premiums." Weber & Rose, 997 S.W.2d at 14.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2500002/	445 F.Supp.2d 661 (2006) William G. MEREDITH, Plaintiff, v. HONEYWELL INTERNATIONAL, INC., Defendant. No. CIV.A. 3:06CV148HEH. United States District Court, E.D. Virginia, Richmond Division. August 23, 2006. David Lewis Epperly, Jr., Epperly, Follis & Schork, P.C., Richmond, VA, for Plaintiff. 662 Alexandra Brisky Cunningham, John D. Epps, Hunton & Williams LLP, Richmond, VA, for Defendant. MEMORANDUM OPINION (Granting Defendant's Rule 12(b)(1)Motion to Dismiss) HUDSON, District Judge. This matter is before the Court on Defendant Honeywell International, Inc.'s ("Honeywell") Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Procedure. Both parties have filed memoranda of law in support of their respective positions. The Court will dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court, and argument would not aid in the decisional process. Finding that no material jurisdictional facts are in dispute and for the reasons stated herein, the Court will grant Defendant's motion. I. Background Plaintiff William G. Meredith ("Meredith") brought this tort action against Honeywell for alleged injuries resulting from a July 27, 2003 fall at a Honeywell facility. Meredith fell when a chair on which he was attempting to sit broke. In addition to worker's compensation benefits that Meredith obtained through his direct employer, Oakley Tank Services ("Oakley"), Meredith seeks $10,000,000 in damages from Honeywell for failure to maintain its premises in a safe condition. Honeywell filed the present Motion to Dismiss asserting that Meredith's exclusive remedy is through the Virginia Workers' Compensation Act. At the time of the injury, Oakley employed Meredith as a tanker truck driver. Oakley had contracted with Honeywell to transport caprolactam, a chemical intermediate used in the manufacture of nylon, from a Honeywell facility located in Hopewell, Virginia ("Hopewell Plant") to another Honeywell facility located in Irmo, South Carolina ("Irmo Plant"). Pursuant to the contract, Meredith hauled caprolactam along this routeMeredith's only route during his employment with Oakley from February 2003 until the time of the injurythree or four times a week, for which Oakley paid Meredith $200 per load. The contract provided that Oakley was an "independent contractor and neither [Oakley] nor any of its employees shall be considered an employee of Honeywell." Further, the contract required Oakley to maintain worker's compensation insurance for its employees. Honeywella multinational company involved in the production and manufacture of various products, chemicals, and materialsmanufactured caprolactam at its Hopewell Plant. Honeywell required this caprolactam to be transported to other facilities, including the Irmo Plant, for use in the manufacture of nylon fiber. Honeywell contracted with Oakley and other companies to transport caprolactam from the Hopewell Plant to the Irmo Plant. After delivering caprolactam to the Irmo Plant, a driver would return to the Hopewell Plant, occasionally carrying a load of "wash water" from which Honeywell would recover additional caprolactam. Honeywell also directly employed its own truck drivers across the country, and in particular, to transport caprolactam from the Hopewell Plant to a Honeywell nylon fiber plant located in Chesterfield, Virginia ("Chesterfield Plant"). In July 2003, Honeywell drivers were hauling approximately twenty loads of caprolactam from the Hopewell Plant to the Chesterfield Plant daily using trucks owned by Honeywell. Honeywell, however, did not directly 663 employ drivers to transport caprolactam from the Hopewell Plant to the Irmo Plant or any other out-of-state facility. Honeywell drivers and contracted drivers followed the same procedures when loading caprolactam at the Hopewell Plant. A driver would park his truck at a loading station, place his keys in a lock box to prevent an accidental drive-off during loading, and provide paperwork to a Honeywell control operator located in a control room. The driver could then wait in the control room while the control operator loaded the truck with caprolactam. Upon loading the truck and providing the driver with completed documentation, the control operator would unlock the lock box, allowing the driver to take back his keys and drive his truck out of the plant. The total loading time takes approximately 25 minutes. On July 27, 2003, Meredith followed these procedures, parking his truck in the loading bay, locking his keys in the lock box, and proceeding to the control room to provide the control operator with the paperwork. After presenting his paperwork to the control operator, Meredith attempt ed to sit in a chair in the control room and fell when the chair allegedly collapsed beneath him. Meredith did not immediately experience any pain and was able to drive his truck out of the plant to get weighed. After the weighing, Meredith returned to the Hopewell Plant to present his final weight documentation and obtain final approval to leave the Hopewell Plant. Upon his return, Meredith began experiencing back pain, and Honeywell's emergency medical personnel transported him to the hospital. Although the hospital released Meredith the same day, Meredith has had multiple surgical procedures and has not worked since the accident. On July 25, 2005, Meredith filed an action against Honeywell in the Circuit Court for the City of Hopewell, and on February 28, 2006, Honeywell removed the action to this Court. Honeywell subsequently filed the present Motion to Dismiss, arguing that Honeywell is not liable to Meredith as a matter of law and his claims in tort are barred because, under the Virginia Workers' Compensation Act, Honeywell was a "statutory employer" of Meredith. Meredith disagrees, arguing that Honeywell was an "other party" under the Act and not his statutory employer. II. Standard of Review On a motion to dismiss pursuant to Rule 12(b)(1), the party asserting jurisdiction, the plaintiff in this case, has the burden of proving subject matter jurisdiction. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991). "In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Id. "[T]he nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists." Id. "The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. III. Analysis The Virginia Workers' Compensation Act, Code § 65.2-100 et seq. ("the Act") sets forth the statutory framework whereby employees may receive compensation from employers for personal injury claims arising out of and in the course of the employment. See Va.Code Ann. § 65.2-300. Employers' obligations extend to workers immediately employed by the employers and, in certain cases, to workers employed indirectly through subcontractors. 664 See Va.Code Ann. § 65.2-302(A)(C). Section 65.2-302(A) of the Act provides: When any person (referred to in this section as "owner") undertakes to perform or execute any work which is part of his trade, business or occupation and contracts with any other person (referred to in this section as "subcontractor") for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner; the owner shall be liable to pay to any worker employed in the work any compensation under this title which he would have been liable to pay if the worker had been immediately employed by him. Va.Code Ann. § 65.2-302(A). In other words, an entity is considered to be a "statutory employer" of a worker employed by a subcontractor when the worker is performing work that is part of the entity's "trade, business or occupation." Id. The same provision also applies when the subcontractor in turn contracts with another subcontractor, thus making the entity a statutory employer of a worker employed by the second subcontractor. See Va.Code Ann. § 65.2-302(C). With few exceptions not applicable here, employers are required to compensate injured employees under the Act, notwithstanding any contract or agreement to the contrary. See Va.Code Ann. § 65.2-300(A). The Act excludes all other rights and remedies of such employees, at common law or otherwise, on account of such injury. See Va.Code Ann. § 65.2-307. The Act, however, does allow an action to be maintained against an "other party." Clean Sweep Profl Parking Lot Maint., Inc. v. Talley, 267 Va. 210, 213, 591 S.E.2d 79, 81 (2004). "[T]o be an `other party,' a defendant must have been a stranger to the trade, occupation, or business in which the employee was engaged when he was injured.'" Id. (alteration in original) (quoting Peck v. Safway Steel Prods., Inc., 262 Va. 522, 525, 551 S.E.2d 328, 329 (2001)). The question presented here is whether Honeywell was a "statutory employer" of Merediththus barring Meredith's suitor an "other party"thus allowing Meredith's suit to proceed. Honeywell takes the position that Meredith was performing an integral part of Honeywell's business, hauling a chemical intermediate manufactured by Honeywell from one Honeywell facility to another Honeywell facility where the material was used by Honeywell in the manufacture of an end product. Necessary to hauling the material was loading the truck. Meredith was injured while on Honeywell's premises during the loading of his truck. Thus, Honeywell argues, Meredith was engaging in Honeywell's trade, business, or occupation, making Honeywell a statutory employer of Meredith. The Court agrees. Honeywell undertook to perform work that was part of its trade, business, or occupationthe manufacture of caprolactam and nylon fiberand contracted with Oakley on a long-term basis to perform a part of that workthe transport of caprolactam, a chemical intermediate used in the manufacture of nylon, between Honeywell plants. An Oakley employee, Meredith, was injured on Honeywell's premises while Honeywell was loading his truck with caprolactam, a necessary step in the transport process. Thus, under the plain language of the Act, Honeywell was a statutory employer of Meredith during the time of his injury. Meredith argues, however, that he was not engaged in Honeywell's trade, business, or occupation because (1) he was merely sitting in a chair at the time of the 665 injury, not participating in the loading process for which Honeywell maintained sole responsibility, and (2) he was engaged in interstate trucking, a job not normally done by Honeywell drivers, who only hauled caprolactam intrastate. Meredith also argues that Honeywell was not his statutory employer because the contract between Honeywell and Oakley specifically stated that Oakley employees were not to be considered employees of Honeywell and required Oakley to maintain workers' compensation insurance for its employees. These arguments are unpersuasive. In Clean Sweep Professional Parking Lot Maintenance, Inc. v. Talley, 267 Va. 210, 591 S.E.2d 79 (2004), Virginia Paving Company was responsible under a contract with the Virginia Department of Transportation for all aspects of repaving a roadway, including "milling the existing road surface, removing the milled asphalt, . . . and repaving the roadway with fresh asphalt." Id. at 212, 591 S.E.2d at 80. Virginia Paving hired a trucking company to haul asphalt between Virginia Paving's asphalt plant and the worksite and to load asphalt into a paving machine at the worksite. Id. A driver employed by the trucking company was injured while he was at the worksite investigating a disabled vehicle owned by the trucking company. Id. The Supreme Court of Virginia held that the driver was engaged in Virginia Paving's trade, business, or occupation because the trucking company was not a "stranger to the work" of Virginia Paving, but rather was engaged in an essential part of the work that Virginia Paving was required to perform under its contract. See id. at 217, 591 S.E.2d at 83. The Court specifically distinguished the case from those where a trucking company was "merely delivering its own independently manufactured parts." Id. at 217, 591 S.E.2d at 83. The Court also rejected the driver's claim that his investigation of the vehicle was a "discrete activity" removed from the road construction process. See id. Similarly, Meredith was engaged in an essential part of the work that Honeywell performed in the manufacture and processing of caprolactamtransporting the caprolactam between Honeywell's Hopewell and Irmo Plants. Meredith and Oakley were no "strangers to the work" of Honeywell, particularly given that the route between Honeywell's Hopewell and Irmo Plants was Meredith's only route while employed by Oakley. Further, Meredith was hauling material manufactured by Honeywell between Honeywell facilities, not independently manufactured products from a third party.[1] Finally, the act of sitting in a chair was not a "discrete activity" removed from the loading process. Meredith presented documentation to the control operator, a required step in the loading process, and then attempted to sit down in the chair. This Court finds that the act of sitting did not remove Meredith's 666 activity from the trade, business, or occupation of Honeywell. In Smith v. Horn, 232 Va. 302, 351 S.E.2d 14 (1986), Knox Creek Coal Corporation was in the business of mining, processing, and selling coal. Id. at 305, 351 S.E.2d at 17. Knox Creek hired a mining company to mine coal on land owned or leased by Knox Creek and to deliver the coal to a Knox Creek coal processing plant. Id. at 305, 351 S.E.2d at 15. A driver employed by the mining company was injured while delivering a load of coal to the Knox Creek plant. Id. at 307, 351 S.E.2d at 17. The Supreme Court of Virginia held that the driver was engaged in the trade, business, or occupation of Knox Creek, thus making Knox Creek a statutory employer of the driver. See id. The Court reasoned that the driver, by mining and hauling coal to Knox Creek's plant, was performing a "subcontracted fraction" of Knox Creek's main business concern the mining, processing, and selling of coal. See id. at 308, 351 S.E.2d at 17-18. Under the reasoning followed in Smith, Meredith was performing a "subcontracted fraction" of Honeywell's main business concern when hauling caprolactam to the Irmo Plant. Meredith argues, however, that unlike the drivers in Clean Sweep and Smith who were loading or mining the product in addition to hauling the product, he was merely hauling product. The Supreme Court of Virginia, in Conlin v. Turner's Express, Inc., 229 Va. 557, 331 S.E.2d 453 (1985), found this distinction to be irrelevant. See id. at 560, 331 S.E.2d at 455. In Conlin, Ford Motor Company contracted with Turner's Express, Inc. to "haul Ford's machinery and parts between its plants." Id. at 557, 331 S.E.2d at 454. Under the agreement, Ford was responsible for the loading and unloading of the cargo, not the Turner's Express driver. Id. at 557, 331 S.E.2d at 455. A Ford employee was injured during the loading of a Turner's Express trailer when the forklift she was operating fell through the floor of the trailer. Id. at 557, 331 S.E.2d at 454. The Supreme Court of Virginia held that Turner's Express was engaged in Ford's trade, business, or occupation, thus barring the employee's tort action against Turner's Express and the Turner's Express driver of the tractor-trailer. Id. at 559, 331 S.E.2d at 455. The Court reasoned that "Turner's Express was not merely delivering merchandise to a job site but was transporting cargo between Ford's assembly plants, an essential part of Ford's business." Id. at 560, 331 S.E.2d at 456. In its analysis, the Supreme Court of Virginia found but one distinction between Conlin and an earlier case, Floyd v. Mitchell, 203 Va. 269, 123 S.E.2d 369 (1962)the truck driver in Floyd assisted the manufacturer in the loading of the material to be delivered,[2] however, the "Turner's Express' driver did not assist in the loading operation." Conlin, 229 Va. at 560, 331 S.E.2d at 455. The Court concluded that "the distinction makes no difference" in whether Turner's Express was engaged in Ford's trade, business, or occupation. Id. Accordingly, this Court finds that Meredith's limited or lack of involvement in the loading process makes no difference in this case as to whether Meredith 667 or Oakley was engaged in Honeywell's trade, business, or occupation. Meredith was not merely delivering merchandise to a job site, but was transporting caprolactam between Honeywell's manufacturing plants, an essential part of Honeywell's business, on an ongoing basis. Although Meredith's participation in the loading process was limited, Honeywell prescribed the loading procedures that Meredith was required to follow, including where and how to park his truck, where to place his keys, what paperwork to provide and where to take it, and where he may wait during the loading. Honeywell drivers normally followed the same loading procedures followed by Meredith the day of the injury and normally transported caprolactam between Honeywell's manufacturing plants. While Meredith attempts to distinguish between intrastate and interstate hauling, this Court finds the intrastate-interstate distinction to be irrelevant based on the facts in this case. This Court also finds the contract between Honeywell and Oakley to be irrelevant to the extent that it deems Oakley to be an independent contractor, demands that neither Oakley nor its employees be considered employees of Honeywell, and requires Oakley to obtain workers' compensation insurance for its employees. The Act explicitly provides that "no contract or agreement, written or implied, . . . shall in any manner operate to relieve any employer in whole or in part of any obligation created by this title." Va.Code Ann. § 65.2-300(A). Thus, these provisions in the contract have no legal effect on relieving Honeywell's obligations arising under the Act or making it an "other party." Meredith nonetheless argues that, based on the contract, he has the same status as the plaintiff in Intermodal Services, Inc. v. Smith, 234 Va. 596, 364 S.E.2d 221 (1988). In that case, the plaintiff was a self-employed truck driver who leased his tractor to a transportation company for local and interstate hauling. Id. at 598, 364 S.E.2d at 222. Intermodal Services hired the plaintiff, through a dispatcher at the transportation company, for a portion of one day to transfer trailers between two trailer yards at a flat rate of $10 to $12 per trailer moved. Id. at 599, 364 S.E.2d at 223. The plaintiff was subsequently injured during a transfer while in one of the yards and received workers' compensation from the transportation company. Id. The plaintiff then brought a personal injury action against Intermodal Services, however, the Supreme Court of Virginia held that Intermodal Services was not the plaintiffs statutory employer because the plaintiff was a self-employed independent contractor and not an employee of a subcontractor, as required under the Act. See id. at 603-04, 364 S.E.2d at 225-26. This case is distinguished from Intermodal Services because Meredith was an employee of a Oakley at the time of the injury, and not a self-employed independent contractor like the plaintiff in that case. Therefore, this Court finds that Meredith was engaged in Honeywell's trade, business, or occupation, making Honeywell a statutory employer of Meredith, and thus, Meredith's remedy under the Virginia Workers' Compensation Act excludes all others against Honeywell. IV. Conclusion For the reasons stated above, Defendant's 12(b)(1) Motion to Dismiss is granted. An appropriate Order will accompany this Memorandum Opinion. ORDER (Granting Defendant's Rule 12(b)(1)Motion to Dismiss) THIS MATTER is before the Court on Defendant's Motion to Dismiss for Lack of *668 Subject Matter Jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Procedure. For the reasons stated in the accompanying Memorandum Opinion, Defendant's Motion to Dismiss is GRANTED. Defendant's Motion to Exclude Inadmissible Hearsay is HEREBY MOOT. The Clerk is directed to send a copy of this Order and the accompanying Memorandum Opinion to all counsel of record. It is SO ORDERED. NOTES [1] In his memorandum, Meredith relies on several cases that are distinguished from this case because they each involved injuries that occurred during third-party deliveries of independently manufactured products. See, e.g., Rice v. VVP Am., Inc., 137 F.Supp.2d 658 (E.D.Va.2001) (involving injury to an employee of an auto supply business delivering product to an auto glass installer); Stevens v. Ford Motor Co., 226 Va. 415, 309 S.E.2d 319 (1983) (involving injury to an employee of a truck company delivering third-party auto parts to an automobile manufacturer); Burroughs v. Walmont, Inc., 210 Va. 98, 168 S.E.2d 107 (1969) (involving injury to an employee of a truck company delivering sheetrock from a sheetrock supplier to a general contractor); Buffalo Shook Co. v. Barksdale, 206 Va. 45, 141 S.E.2d 738 (1965) (involving injury to an employee of a sawmill operator delivering lumber to a hogshead and pallet manufacturing company). [2] In Floyd, the Supreme Court of Virginia held that a contract carrier's driver was engaged in a manufacturer's trade, business, or occupation where the driver, pursuant to a contract between the contract carrier and the manufacture, delivered the manufacturer's goods to a third parties and participated in the loading process. See Floyd, 203 Va. at 270-71, 274, 123 S.E.2d at 370, 372.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2500016/	445 F.Supp.2d 1285 (2006) STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation, Plaintiff, v. Kelly DOWDY, Individually and as Parent and Next Friend of Lauren DOWDY, a minor, Defendants. No. 04-CV-138-TCK/SAJ. United States District Court, N.D. Oklahoma. July 20, 2006. 1286 Frances Jean Armstrong, Joseph Thomas Acquaviva, Jr., Amy Lynn Loughridge, Wilson Cain & Acquaviva, Oklahoma City, OK, for Plaintiff. George Michael Miles, Steven R. Hickman, Frasier Frasier & Hickman, Harold L. Holtmann, Holtman Law Ofc. PC, Tulsa, OK, for Defendants. OPINION AND ORDER JOYNER, United States Magistrate Judge. Comes on for determination Motion of Plaintiff State Farm Mutual Automobile Insurance Company to Require Defendant to Select Role of Attorney Holtmann as Either an Advocate or Witness, But Not Both [Dkt. # 59], and the Court, having considered the argument and authority presented, finds a hearing is not necessary and accordingly enters the following order. Background Counsel of record for Defendants in this action are George Michael Miles and Steven Hickman, Frazier, Frazier & Hickman and Harold L. Holtmann, Holtmann Law Office, P.C. Holtmann is also listed by Defendants as a witness to testify on behalf of Defendants at trial. Plaintiff took the deposition of Holtmann, during which inquiry was made regarding which role he intended to play in the trial. Objections were lodged and Plaintiff thereafter filed this motion seeking an order from the Court to require Holtmann to elect to proceed as either fact witness or counsel, but not both, and to require him to withdraw from one or the other role. Plaintiff cites to Rule 3.7, Oklahoma Rules of Professional Conduct, which provides: Lawyer as Witness (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.[1] 5 O.S.App. 3-A, Rule 3.7. Oklahoma Rules of Professional Conduct. 1287 Plaintiff asserts none of the four exceptions apply to the facts of this case. As further support, Plaintiff cites to the Comments to Rule 3.7. Plaintiff concedes Rule 3.7 does not render a lawyer incompetent to testify, citing Crussel v. Kirk, 894 P.2d 1116 (Okla.1995), in which the Oklahoma Supreme Court found the rule invests the trial court with discretion to determine whether a party's "advocate at trial" may testify. Plaintiff urges the trial court must consider the underlying rationale of Rule 3.7, which includes elimination of the possibility that the lawyer would not be an objective witness, reducing the risk that the jury would confuse the roles of witness and advocate, and a broad concern that judicial process not only be fair but appear fair. Defendants object, asserting that Holtmann has represented Kelly Dowdy in various matters for almost a decade. In particular, Holtmann represented Ms. Dowdy with regard to severe injuries she received in a 1998 automotive accident, which resulted in litigation with Plaintiff. He was then hired to represent her in regard to the January 28, 2003 accident which is the subject of this litigation, in which she was also injured. In this case, there are two causes of action, the first for her personal injuries, the second for bad faith in the claims adjustment process. Defendants assert Holtmann had extensive contact with Ms. Dowdy concerning her physical condition, serving as her sole counsel through the claims processes. As a result, Defendants claim Holtmann has knowledge not available to the Dowdys from any other source, of the injuries she sustained from the two incidents and how they compare to each other, and of the course of dealing by Plaintiff prior to this action being filed. Ms. Dowdy is now deceased. Defendants urge if Holtmann is not allowed to testify as a witness, Defendants would be deprived of the ability to present vital evidence relative to both causes of action which cannot be effectively duplicated any other way. Defendants have described in great detail the importance of Holtmann as a fact witness, suggesting that he is the only witness to certain essential facts. Holtmann's affidavit indicates his intricate knowledge of the facts has benefited not only co-counsel for Defendants, but Plaintiff's counsel as well. Clearly, Defendants view Holtmann as a necessary witness. At the same time, Defendants assert that because Holtmann has represented Ms. Dowdy throughout this matter, his knowledge of and experience with the facts, as counsel, are likewise, not capable of being substituted at trial. Defendants state it is not their intent to have Holtmann participate at trial by way of making arguments to the court or jury or questioning witnesses. It is their intent that he be a witness on the witness stand and sit at counsel table as "second chair" to trial counsel. Defendants urge Holtmann's dual role is justified under the exception to Rule 3.7 in that his disqualification would work substantial hardship on the client. Defendants urge this distinguishes this case from the holding in Crussel. Plaintiff filed reply brief in which it urges Defendants intent to sit at counsel table and appear as a witness would confuse the jury and prejudice the Plaintiff. Plaintiff asserts this is exactly the type of conduct which Rule 3.7 is designed to prohibit, citing Lowe v. Experian, 328 F.Supp.2d 1122 (D.Kan.2004) in support of the court's inherent power to disqualify counsel "where necessary to preserve the integrity of the adversary process." Courts must carefully balance the interest in protecting the integrity of the judicial process with the right of a party to have counsel of its choice. Review of the 1288 applicable case law leads this Court to conclude those interests are best served in this matter by barring Holtmann from appearing in both capacities. The Court finds Crussel is distinguishable. Crussel was a medical malpractice case brought by plaintiff against her doctor following thirteen unsatisfactory breast reconstruction surgeries. The law firm of Malloy & Malloy represented plaintiff. Prior to suit being filed, Pat Malloy, Jr., referred Crussel to Dr. Howard, a plastic surgeon, for evaluation of the merits of the claim. Dr. Howard advised Malloy, Jr., that Dr. Kirk was "involved in something that he did not fully understand" but that Dr. Howard would not testify against Dr. Kirk. Malloy, Jr., then sent Crussel to Dr. Salomon, who became the expert witness in the case. After the case was filed, Malloy, Jr., learned Dr. Howard was listed as a defense witness and realized he might have to be a witness in the case, depending upon Dr. Howard's testimony. Pat Malloy, III., son and law partner of Malloy, Jr., thereafter entered an appearance in the case on behalf of plaintiff, along with Leslie Williams. The pretrial order listed Dr. Howard as a witness for defendant but did not list Malloy, Jr. At trial, Malloy, III., and Williams served as counsel. Malloy, Jr., did not, although he never withdrew as counsel of record. Defendant called Dr. Howard as the only expert in plastic surgery. Malloy, III., cross examined Dr. Howard, ending with questions directed to what Dr. Howard had told Malloy, Jr. Dr. Howard denied having made the asserted statements to Malloy, Jr. Malloy, III., then called Malloy, Jr., to testify about the prior statement. The trial court excluded Malloy, Jr.'s testimony. The Oklahoma Supreme Court reversed the trial court's exclusion of the testimony of Pat Malloy, Jr., finding he should be allowed to testify. The court noted Malloy, Jr., never acted as an advocate at trial, did not present arguments nor examine any witnesses. Malloy, Jr., was found to have taken prophylactic steps sufficient to satisfy the rational of Rule 3.7. Under the circumstances of the case, the Court found the exclusion of his testimony was patently erroneous. There is no indication in Crussel that Malloy, Jr., sat at counsel table or actively participated in any way in the trial until he was called as a rebuttal witness. The role of a rebuttal witness is markedly different from the role of a witness who is called to establish a case-in-chief. It was not until Dr. Howard denied the conversation that Malloy, Jr.'s testimony was needed. The probability of his being called was uncertain. In this case, there appears to be little, if any, possibility that Holtmann will not only testify, but may be the most important witness through which Defendants intend to build their case. Nor will Defendants be prejudiced or suffer a substantial hardship by Holtmann's removal as advocate. Defendants are represented by one of the most successful plaintiffs' law firms in the state which regularly practices in this area of the law. Co-counsel are certainly capable of absorbing the factual knowledge needed to present this case without the presence of Holtmann at counsel table, particularly in light of the fact they have been counsel of record in the matter from the first pleading filed. This Court relies in part upon the mandatorily language found in Rule 3.7 in deciding this issue. The Court concludes, as did the Lowe court, that so long as Holtmann intends to testify at trial, he is prohibited from sitting at counsel table during the trial. Further, the Court will allow Plaintiff to invoke the rule prohibiting witnesses from being present in the court-room 1289 during the testimony of other witnesses ("the Rule") against Holtmann. This result is necessary to avoid the confusion at trial Rule 3.7 was enacted, in part, to avoid. If Holtmann was allowed to sit at counsel table, he would be introduced as counsel for the Defendants as part of voir dire. Additionally, the Court notes that it is a standard jury instruction in this district, read by the presiding judge and then sent in written form into the jury room, that the statements of counsel are not to be considered as evidence. Finally, it would be fundamentally unfair to allow Defendants to have a fact witness who is able to hear the testimony of all other fact witnesses and consult with counsel regarding their examination and/or cross examination if Plaintiff were not given the same opportunity. The Rule was developed to level the playing field. Defendants' position would effectively add a twelfth man to Defendants' team. The Court's decision does not bar Holtmann from acting as Defendants' counsel all together. He may serve as an advocate in pretrial motions and appeals from orders arising therefrom not involving appearance before a jury, non-evidentiary hearings and conferences. However, he may not appear as counsel at any depositions and any depositions previously taken should be redacted to remove any reference to Holtmann serving as counsel in this action before being submitted as evidence in the trial. As in Lowe, Holtmann's name should be redacted from any pleadings on which Holtmann appears as counsel if the pleadings will be introduced as evidence that will be viewed by the jury. He will not be required to withdraw as counsel. Defendants make an additional argument that the motion as filed is directed not at Holtmann but at Defendants, who are not bound by Rule 3.7. The Court finds this argument to be disingenuous, meriting no further discussion. Finally, the Court declines to rule on Plaintiff's prayer that the court grant Plaintiff leave to conduct discovery as to Holtmann's expertise. This request raises issues more appropriately presented by motion in limine. This Order is conditional. Should Holtmann elect to proceed as counsel rather than witness, such election must be filed with the Court within 10 days of this Order, which election would render this Order moot. Should the election be made, however, Holtmann will not be allowed to testify, either in the case-in-chief or in rebuttal. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Motion of Plaintiff State Farm Mutual Automobile Insurance Company to Require Defendant to Select Role of Attorney Holtmann as Either an Advocate or Witness, But Not Both [Dkt. # 59] is granted in part and denied in part as set forth herein. NOTES [1] These are inapplicable as they relate to conflict of interest between counsel and client.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499959/	445 F.Supp.2d 443 (2006) INGENIO, FILIALE DE LOTO-QUEBEC, INC., Plaintiff, v. GAMELOGIC, INC., Defendant. No. CIV.A. 04-1532-KAJ. United States District Court, D. Delaware. July 21, 2006. 444 445 Edmond D. Johnson, Esq. The Bayard Firm, Wilmington, DE, Of Counsel: Rodger L. Tate, Esq., Brian M. Buroker, Esq., Christopher L. Cuneo, Esq., Hunton & Williams LLP, Washington, DC, for Plaintiff. Richard L. Horwitz, Esq., David E. Moore, Esq., Potter Anderson & Corroon LLP, Wilmington, DE, Of Counsel: Gary M. Hnath, Esq., Susan Baker Manning, Esq., Goutam Patnalk, Esq., Timothy A. Molino, Esq., Bingham McCutchen LLP, Washington, DC, for Defendants. MEMORANDUM OPINION JORDAN, District Judge. I. INTRODUCTION This is a patent infringement case. Ingenio Filiale De Loto-Quebec, Inc. ("Ingenio") has sued GameLogic, Inc. ("GameLogic"), alleging infringement of two patents: U.S. Patent Nos. 5,569,082 (issued Oct. 29, 1996) (the "'082 patent") and 5,709,603 (issued Jan. 20, 1998) (the "'603 patent"). Before me are the parties' requests for construction of the disputed claim language in those two patents, as well as two summary judgment motions. Ingenio has filed a Motion for Partial Summary Judgment of Infringement and Validity (Docket Item ["D.I."] 112) and GameLogic has filed a Motion for Summary Judgment of NonInfringement (D.I. 115). Jurisdiction is appropriate under 28 U.S.C. §§ 1331 and 1338. For the reasons that follow, including my decision on claim construction, I will grant Ingenio's Motion for Partial Summary Judgment of Infringement (D.I. 112) as to Ingenio's claim that GameLogic infringes claim 1 of the '082 patent, and I will accordingly deny GameLogic's Motion for Summary Judgment of NonInfringement (D.I. 115). I will also grant Ingenio's Motion for Partial Summary Judgment (D.I. 112) as to GameLogic's lack-of-enablement defense. I will deny Ingenio's Motion for Partial Summary Judgment of Infringement (D.I. 112) as to Ingenio's claim that GameLogic infringes claim 1 of the '603 patent. II. BACKGROUND A. Procedural Background Ingenio filed its patent infringement complaint against GameLogic on December 20, 2004, alleging that GameLogic has willfully infringed the '082 and '603 patents. (D.I. 1.) Ingenio is asserting claims 1, 4, 6, 8-10, 13, 15 and 16 of the '082 patent, and claim 1 of the '603 patent.[1]446 (D.I. 117 at 2.) In its answer on January 24, 2005, GameLogic asserted that the '082 and '603 patents are invalid and unenforceable based on Inequitable conduct committed during the prosecution of the '082 patent. (D.I. 11 at ¶¶ 36-38, 40-41.) The parties are scheduled to try this case to a jury beginning on November 6, 2006. The '603 patent is a continuation-in-part of the '082 patent, and it is undisputed that there is substantial overlap in the specifications of the '603 and '082 patents. (See D.I. 117 at 1 n. 2; D.I. 113 at 13 n. 2.) B. The Disclosed Technology The two patents in suit disclose "[a] method and system for playing a . . . lottery type game." ('082 patent Abstract; '603 patent Abstract.) Independent claims 1 of the '082 patent and of the '603 patent each disclose a method for playing a lottery game, comprising particular steps, and independent claim 10 of the '082 patent discloses a lottery game itself. ('082 patent at 10:66-12:18; '603 patent at 15:64-16:13.) As an example, independent claim 1 of the '082 patent claims: A method for playing a player lottery game comprising the step of: acquiring by a player a game piece, the gaming piece including a code which includes data indicating whether the player wins or loses the lottery game and an amusement game, the data being unrecognizable to the player, such that the player does not know whether the player will win or lose the game prior to play of the amusement game; entering the code by the player into a processor prior to amusement game play; the processor generating the amusement game on a display for play by the player, the player controlling game play by inputting game parameters to the processor; the processor controlling whether the player will win or lose the amusement game based upon the code entered by the player; and providing on a display an indication to the player of the amusement game win or loss based upon the code. ('082 patent at 10:65-11:16.) The '082 patent thus requires a player to enter a provided code into a processor. By contrast, claim 1 of the '603 patent provides that the processor reads the code from a game piece at the outset of play. ('603 patent at 15:64-16:13.) C. The Accused Product The operation of GameLogic's accused HomePlay LotteryTM ("HomePlay") is largely undisputed. (Markman Hearing Transcript, D.I. 132 at 4:3-9.) To begin playing HomePlay, a player purchases a paper ticket from a lottery vendor. (May 1, 2005 Declaration of Dow K. Hardy (Hardy Declaration 1),[2] D.I. 116, Ex. 1 at ¶ 10.) The player then uses his personal computer to log on to the HomePlay website, using the sixteen character access code printed on the ticket. (Id. at ¶¶ 10, 13.) REDACTED (Id. at ¶¶ 14, 16.) Next, the player selects one of the interactive games available for play, such as Prize Reel Blackjack.[3] (Id. at ¶ 10.) In Prize 447 Reel Blackjack, the player is given the opportunity to play a traditional game of blackjack, REDACTED REDACTED If the player wins the hand of blackjack, the player is given a token to use in the prize reel round. (Id. at ¶ 38.) Each token won in the blackjack round can be used for one spin in the prize reel round; REDACTED (Id. at ¶¶ 40, 57.) The result of the lottery is revealed after the player exchanges his tokens for spins on the prize reel. (See id. at ¶ 55.) REDACTED III. APPLICABLE LAW/STANDARD OF REVIEW A. Patent Infringement A patent infringement analysis involves two steps: claim construction and then the application of the construed claim to the accused process or product. Markman, 52 F.3d at 976. The first step, claim construction, has been held to be purely a matter of law. Cybor, 138 F.3d at 1454-56. The second step, application of the claim to the accused product, is a fact-specific inquiry. See Kustom Signals, Inc. v. Applied Concepts, Inc., 264 F.3d 1326, 1332 (Fed.Cir.2001) (Patent infringement, "whether literal or under the doctrine of equivalents, is a question of fact."). The patent owner has the burden of proving infringement by a preponderance of the evidence. Envirotech Corp. v. Al George, Inc., 730 F.2d 753, 758 (Fed.Cir.1984) (citing Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1361 (Fed.Cir.1983)). Summary judgment is appropriate in patent infringement suits when it is apparent that only one conclusion regarding infringement could be reached by a reasonable jury. See Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1323 (Fed. Cir.2001). B. Claim Construction Patent claims are construed as a matter of law. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454-56 (Fed.Cir.1998) (en banc). "[T]he words of a claim `are generally given their ordinary and customary meaning.'" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005) (en bane) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir. 1996)). That ordinary meaning "is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention." Id. at 1313. To determine the ordinary meaning of a term, the court should review "the same resources as would" the person of ordinary skill in the art. Multiform Desicants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed.Cir.1998). Those resources include "the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art." Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed.Cir.2004). "[T]he claims themselves provide substantial guidance as to the meaning of particular claim terms." Phillips, 415 F.3d at 1314. Both "the context in which a term is used in the asserted claim" and the "[o]ther claims of the patent in question" are useful for understanding the ordinary meaning. Id. "[T]he specification `is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.'" Id. at 1315 (quoting Vitronics, 90 F.3d at 1582). In short, the claims "must be read in view of the specification, of which they are a part." Markman 448 v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Thus, "[t]he construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction." Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed.Cir.1998). On occasion, "the specification may reveal a special definition given to a claim term . . . that differs from the meaning it would otherwise possess. In such cases, the inventor's lexicography governs." Phillips, 415 F.3d at 1316 (citing CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.Cir.2002)). The specification may also "reveal an intentional disclaimer, or disavowal, of claim scope by the inventor . . . [, which] is regarded as dispositive." Id. (citing SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1343-44 (Fed.Cir. 2001)). The court "should also consider the patent's prosecution history." Markman, 52 F.3d at 980. "Like the specification, the prosecution history provides evidence of how the [Patent and Trademark Office] and the inventor understood the patent." Phillips, 415 F.3d at 1317 (citing Lemelson v. Gen. Mills, Inc., 968 F.2d 1202, 1206 (Fed.Cir.1992)). The court may rely on extrinsic evidence, which is "all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Markman, 52 F.3d at 980. In particular, "dictionaries, and especially technical dictionaries, . . . have been properly recognized as among the many tools that can assist the court in determining the meaning of particular terminology." Phillips, 415 F.3d at 1318 (citing Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed.Cir.2002)). However, extrinsic evidence is "less significant than the intrinsic record in determining the legally operative meaning of claim language." C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed.Cir.2004) (quoting Vanderlande Indus. Nederland BV v. Int'l Trade Comm'n, 366 F.3d 1311, 1318 (Fed.Cir.2004)). During claim construction, "[t]he sequence of steps used by the judge in consulting various sources is not important; what matters is for the court to attach the appropriate weight to be assigned to those sources in light of the statutes and policies that inform patent law." Phillips, 415 F.3d at 1324. C. Summary Judgment Pursuant to Federal Rule of Civil Procedure 56(c), a party is entitled to summary judgment if a court determines from its examination of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). In determining whether there is a genuine issue of material fact, a court must review the evidence and construe all inferences in the light most favorable to the non-moving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976). However, a court should not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). To defeat a motion for summary judgment, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (Internal 449 citation omitted). The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(c). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (internal citation omitted). Accordingly, a mere scintilla of evidence in support of the non-moving party is insufficient for a court to deny summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). IV. DISCUSSION A. Claim Construction Each of the disputed claim terms below appear in claims 1 and 10 of the '082 patent, and in claim 1 of the '603 patent, with the exception of the term "reading," which appears only in the '603 patent. 1. "code which includes data indicating whether the player wins or loses" a. The Parties' Proposed Constructions The parties' dispute over this claim term centers on the meaning of the term "indicating." (D.I. 113 at 14-16; D.I. 117 at 9-15.) Ingenio asserts that "indicating" should be construed to mean "points to," in accordance with its ordinary meaning. (D.I. 113 at 14.) In support of its proposed construction, Ingenio cites two dictionary definitions of the word "indicating," which define that term as "shows the way to, points to, or makes clear in another way." (Id.) GameLogic, on the other hand, asserts that "`indicating' connotes that the data itself states the win/loss outcome." (D.I. 117 at 9.) GameLogic relies heavily on the specification, including the preferred embodiments, and the prosecution history of the patent to support its assertion. (Id. at 10-15.) Specifically, GameLogic asserts preferred embodiments in the patent state that all of the win/loss data is stored in the code itself, without referencing additional information. (Id. at 11-12.) To further support its argument, GameLogic also relies on the inventor's statements during prosecution that the "code determines whether you win or lose the game," and on the fact that a particular prior art reference was distinguished. (Id. at 12-15.) b. The Court's Construction No where in its briefing does GameLogic argue that the ordinary meaning of "indicating" does not include "shows the way to, points to, or makes clear in another way," as Ingenio contends. However, GameLogic asserts that in the context of the patent, including the specification and the prosecution history, Ingenio has limited the term "indicating" to mean that the code itself must Include or store the relevant win/loss data. (D.I. 117 at 9-15.) In support of its argument, GameLogic points to several preferred embodiments, which state that "the outcome of the game is stored in the Destiny Code,"[4] ('082 patent at 6:28-29), or that the "primary function [of the Destiny Codes] is to store the outcome of the game of chance," (Id. at 2:58-59). However, GameLogic ignores the embodiment of the patent that states that "[t]he outcome may be determined, for example, by comparing the Destiny Code to a lookup table to determine if the number is a loser or a winner and the size of the prize, if any." ('082 patent at 9:63-66.) That embodiment allows for the code to point to something else, e.g., a lookup table, to determine the outcome of the game. Thus, the specification of the '082 450 patent does not limit the meaning of "indicating" as GameLogic argues. GameLogic also cites to the prosecution history of the '082 patent to support its argument that "indicating" must mean that the data is stored in the code itself. (D.I. 117 at 12-15.) During the prosecution of the '082 patent, the applicant distinguished the invention in U.S. Patent No. 5,377,975 issued to Clapper, Jr. ("Clapper, Jr.") from the invention of the '082 patent. In a January 31, 1996 office action, the examiner, reviewing the application for the '082 patent, rejected claims 18 and 20-21 as anticipated by Clapper, Jr., and claims 1 and 10, as well as several dependent claims, as obvious over Clapper, Jr. in combination with two other references. (D.I. 114, Ex. C at IN1409-10.) In responding to that office action, the applicant stated: None of the cited references disclose or suggest a game or method of playing a game in which a code entered by the player prior to game play controls the outcome, win or loss, of the game. The Clapper, Jr. reference discloses the use of a bar code which merely identifies indicia printed on a strip. The bar code is used to display the strip indicia to a game player. The printed indicia on the strip determines whether the player wins or loses the game, and not the code. (Id. at IN1406.) GameLogic argues that by this statement, the applicant disclaimed a product where the data containing the win or loss information is not in the code itself, but is located elsewhere. I do not read the applicant's statements, or the Clapper, Jr. reference, in the way that GameLogic does. In Clapper, Jr., a strip of paper containing indicia, or symbols, such as lemons or cherries, is dispensed to a game player. (Clapper, Jr., D.I. 116, Ex. 5 at GL00334.) A duplicate strip containing the same indicia is stored in the machine. (Id.) On the back of the duplicate strip, a printed bar code is scanned by the machine to display the same indicia printed on the strip on an electronic display. (Id.) Thus, the bar code in Clapper, Jr. is used to display the same indicia that a player has on his or her game piece on the machine. The applicant's statements in distinguishing Clapper, Jr. do not give up a method of playing a game where the code requires a processor to go to a lookup table to determine the win or loss result. Therefore, I will construe "indicating," in the context of "code which includes data indicating whether the player wins or loses," in accordance with its ordinary meaning to mean that the code "shows the way to, points out, or makes clear in another way." 2. "lottery game and an amusement game" a. The Parties' Proposed Constructions The parties have two disputes regarding this claim term. First, they dispute whether a lottery game requires payment. The parties agree that a lottery game requires participation in a chance to win, a result based on chance, and a prize awarded to the winner. (D.I. 113 at 16-17; D.I. 117 at 18.) Ingenio argues, however, that payment must also be associated with participation in a chance to win. (D.I. 113 at 16.) Ingenio argues that payment is part of the ordinary meaning of "lottery game," and that the specification supports its definition. (Id. at 16-17.) GameLogic asserts, on the other hand, that nothing in the claims or the specifications of either the '082 or '603 patents requires payment, and that thus, payment should not be a part of the definition of "lottery game." (D.I. 117 at 18-19.) 451 The parties' second dispute revolves around the definition of "amusement game," and specifically whether the amusement game must be separate from the lottery game. Ingenio argues that "amusement game" should be construed to mean "a game that amuses the player." (D.I. 113 at 17-18.) Ingenio relies both on the plain language of the claim, and on the preferred embodiments of the patent to support its construction. (Id.) It asserts that some embodiments provide for two games, one which is purely for fun, i.e. the "amusement game", and one "actualization game" which displays the result of the lottery. (Id.) Other embodiments, however, allow for the amusement and actualization games to be combined into a single game, according to Ingenio. (Id.) GameLogic argues, however, that Ingenio's proposed construction "provides no real definition at all, relying on subjective assessments, leaving the term ambiguous and vain." (D.I. 117 at 19.) According to Gamelogic, the amusement game and the actualization game must always be separate. (Id. at 19-23.) GameLogic bases its argument on the preferred embodiments in the '082 patent, and on that patent's prosecution history. (Id.) GameLogic asserts that during prosecution, when the words "lottery game and amusement game" were added to the patent, Ingenio gave up a reading of the patent in which there was only a single game. (Id.) b. The Court's Construction The plain meaning of the term "lottery game" involves payment. See Merriam-Webster's Collegiate Dictionary 688 (10th ed.2002) ("a drawing of lots in which prizes are distributed to the winners among persons buying a chance").[5] The specification of the patent also supports a definition of "lottery game" which includes payment. (See '082 patent, 2:39-41 ("FIG. 4 illustrates a sales device used to purchase game media for the self-contained embodiment of the present game"); id. at 4:40-44 ("player wishing to purchase . . . [m]oney is put into the bill validater").) GameLogic's arguments to the contrary are unavailing, as the plain meaning of the term "lottery game," supported by the specification of the '082 patent, controls. I will therefore construe the term "lottery game" to mean "a game based on three basic principles: payment associated with participation in a chance to win; a result based on chance; and a prize awarded to the winner(s)." As to whether the amusement game and the actualization game must be separate games, rather than a single game, the preferred embodiments of the patent shed considerable light on the question. The '082 patent contains a number of preferred embodiments, several of which have two separate games, namely a game that "is purely for player enjoyment, and is used to give the feel of a completely random game of chance," and another game which "display[s], in a pleasing fashion, the actual prize that is stored in the Destiny Code and . . . display[s] the game results." ('082 patent at 3:25-46.) In another embodiment, the two games "can be run as one system, such as a poker game." (Id. at 4:6-21.) Thus, the preferred embodiments of the patent indicate that the amusement and actualization games can be run separately, or as one system. GameLogic argues, however, that Ingenio gave up the latter preferred embodiment during prosecution when it changed the claim language from "the 452 game" to "the lottery game and an amusement game." (D.I. 117 at 19-23.) That argument is unpersuasive. Construction of a disputed term such that "a preferred . . . embodiment in the specification would not fall within the scope of the patent claim . . . is rarely, if ever, correct and would require highly persuasive evidentiary support[.]" Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed.Cir. 1996). Indeed, the Federal Circuit has found that such a construction is proper only in "the rare case in which such an interpretation is compelled" by the prosecution history. Elekta Instrument S.A. v. O.U.R. Scientific Int'l, Inc., 214 F.3d 1302, 1308 (Fed.Cir.2000). The prosecution history here does not provide compelling evidence that Ingenio intended to disclaim a preferred embodiment by adding to the patent the phrase, "the lottery game and an amusement game." After the examiner issued an office action rejecting the claims of the '082 patent application as anticipated, Indefinite, and obvious, (D.I. 114, Ex. C at IN1409-12), the applicant amended claims 1 and 10 of the patent (Id. at IN1401-03). However, claims 1 and 10 of that patent still included the language "the game," and did not contain the language "the lottery game and an amusement game." (Id. at IN1401.) After three interviews with the examiner, the examiner issued an examiner's amendment which changed "the game" to "the lottery game and an amusement game." (Id. at 1393-94.) The only reasoning offered for that amendment was documented by the examiner as follows: Proposed and discussed claim language to overcome 112(2) issues and prior art and to further clarify/define novel and non-obvious features of instant invention. Agreement was reached to amend claims 1, 5-6, 10-17 and to cancel claims 18-21. (Id. at IN1398.) This statement offers no explanation for why the phrase "lottery game and an amusement game" was added to the patent. In the absence of clear evidence, I will not construe this term to exclude a preferred embodiment set out in the patent. An amendment that adds something more to the claim than simply a reference to "the game" does not, without more, require that a lottery game cannot be amusing. Therefore, I will construe the term "amusement game" in the context of the phrase "the lottery game and an amusement game" to mean "a game which amuses the player, which can be combined with or be separate from the `actualization' game which reveals the result of the lottery game." 3. "data being unrecognizable to the player" a. The Parties' Proposed Constructions Ingenio claims that this phrase should be construed in accordance with its plain and ordinary meaning, to mean that "the player is not able to recognize from the data whether the player wins or loses the lottery game and amusement game prior to play of the amusement game." (D.I. 113 at 18-21.) Ingenio cites to the language of the claim itself, and various examples in the specification of different methods for making the data unrecognizable. (Id. at 19.) GameLogic argues, however, that this phrase should be construed to require that the "win/loss data is encoded and encrypted." (D.I. 114 at 4.) Game-Logic particularly asserts that a proper construction of the term "unrecognizable" must mean that the code must be encrypted, citing both the specification of the patent, as well as the statements of one of Ingenio's experts and the statements of the inventor to support its construction. (Id. at 15-17.) 453 b. The Court's Construction Claims 1 and 10 of the '082 patent, and claim 1 of the '603 patent each use the following language: "data being unrecognizable to the player, such that the player does not know whether the player will win or lose the game[s][6] prior to play of the amusement game." ('082 patent at 11:3-6; id. at 12:7-10; '603 patent at 16:2-5.) The plain meaning of this term on its face would allow for the data to be made unrecognizable in any manner, so long as a player could not determine whether he or she would win or lose prior to playing the amusement game. The specification confirms this reading of the claim language. Although GameLogic is correct in pointing out that many of the embodiments of the patent talk about "decrypting and decoding" the data, (see, e.g., '082 patent at 3:20-21), the patent also offers other ways of obscuring the data to make it unrecognizable to a player. For example, in addition to describing the codes as encrypted and encoded, the specification talks about "comparing the Destiny Code to a lookup table to determine if the number is a loser or a winner and the size of the prize, if any." ('082 patent at 9:64-66.) Furthermore, contrary to GameLogic's argument that, to be unrecognizable, the code must be encrypted, the specification also states that "[i]f the player knew the procedure to decode the Destiny Code, the player would be able to determine if the Destiny Code contained a winning chance or a losing chance." (Id. at 2:64-67.) Thus, there are references in the patent to various ways of making the code unrecognizable, and there is nothing in the specification or prosecution history that indicates the patentee intended to give up any of the scope of the word "unrecognizable." I will therefore construe the phrase "data being unrecognizable to the player" to mean "the player is not able to recognize from the data whether the player wins or loses the lottery game and amusement game." 4. "a processor" a. The Parties' Proposed Constructions Ingenio asserts that "a processor" should be construed to mean "one or more processors are present." (D.I. 113 at 22-23.) Ingenio argues that even though "a processor" is followed by claim language referring to "the processor" or "said processor," the term should not be limited to a single processor because it is in a claim using "comprising" claim language. (Id. at 22-23.) GameLogic asserts, to the contrary, that the language used in the asserted claims and the specifications of the '082 and '603 patents clearly limited this term to a single processor in a single location. b. The Court's Construction The dispute between the parties centers around the meaning of the term "a" In the context of the claim language. The United States Court of Appeals for the Federal Circuit "has repeatedly emphasized that an indefinite article `a' or `an' in patent parlance carries the meaning `one or more' in open-ended claims containing the transitional phrase `comprising.'" KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed.Cir.2000). Furthermore, that Court has held that "[u]nless the claim is specific as to the number of elements, the article `a' receives a singular interpretation only in rare circumstances when the patentee evinces a clear intent to so limit the article." Id. This is true even where the patentee refers to "a" widget, and later 454 refers to "the" or "said" widget. See id. at 1353, 1356-57 (finding that "a . . . continuous . . . chamber" was not limited to a single chamber, even where the claim language later referred to "said chamber"); Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 977 (Fed.Cir.1999) (holding that term "a . . . feed tube" was not necessarily limited to a single feed tube by later claim language "said feed tube," but that the prosecution history of the patent did so limit the claim).[7] GameLogic's only argument that "a processor" should be limited to a single processor in a single device is the later claim language referring to "the processor" or "said processor." Notably, GameLogic has not cited a single case in support of its position. Because the Federal Circuit has previously held that such language does not evince a clear intent by the patentee to limit the claim to a single device, I will not so limit the claim language here. Thus, I will construe "a processor" to mean "one or more processors." 5. "reading the code by a processor" a. The Parties' Proposed Constructions The only asserted claim that contains the term "reading the code by a processor" is claim 1 of the '603 patent. ('603 patent at 16:6.) Ingenio asserts that the term "reading" in the context of the phrase "reading the code by a processor" means "to receive input of the code (a system of symbols that represent an assigned and secret meaning) from some source. That source may thus include a computer program/software source." (D.I. 113 at 22.) Ingenio relies on the ordinary meaning of the term "read," as well as the specification to support its proposed construction. (Id. at 21-22.) GameLogic asserts, however, that "reading" should be construed to mean "actively examine and grasp the meaning of the code." (D.I. 117 at 29.) In support of its proposed construction, GameLogic cites the specification of the '603 patent and the testimony of one of Ingenio's experts. (Id. at 29-30.) b. The Court's Construction The ordinary meaning of the term "read," in the context of a computer processor, is, as Ingenio asserts, "to input data from a storage device, a data medium, or any other source." See Computer User's High-Tech Dictionary, http://wwvv.computeruser.com/re-sources/dictionary/dictionary.html (cited by Ingenio at D.I. 113 at 21). The specification of the '603 patent confirms that this is the proper definition of the term "reading". 455 (See '603 patent at 2:20-22 (the "code is stored on the gaming piece in a memory device. . . . The code is read by a processor.").) Nothing in the portions of the specification cited by GameLogic indicates that a different definition of "read" should be used. See Id. at 11:13-16 (describing an embodiment "using gaming pieces in the form of casino chips or tokens containing Destiny Codes to allow a player to simulate wagering games with cash"); id. at 12:1-7 ("the amusement + actualization game system reads the Destiny Code contained on the gaming piece. The reading operation takes place by a processor which reads the Destiny Code stored in the memory device contained on the gaming piece.") Therefore, the term "reading" in the context of the phrase "reading the code by a processor" will be construed to mean "receiving input of the code from some source, which may include a computer program/software source." 6. "processor within a computing device" and "processor includes a computing device" a. The Parties' Proposed Constructions The parties also dispute the terms "processor within a computing device," found in dependent claim 8 of the '082 patent, and "processor includes a computing device," found in dependent claim 16 of the '082 patent. Ingenio asserts that "processor within a computing device" means "the processor is a component of a computing device," citing to the specification of the patent where examples of computing devices are given. (D.I. 113 at 23.) GameLogic asserts, on the other hand, that this term should be construed to be synonymous with the term "processor" as set forth in claim 1, as the processor of claim 1 must be in a computing device to perform its claimed functions. (D.I. 117 at 26.) GameLogic further claims that any other construction of the term "processor within a computing device" would make claim 1 indefinite. (Id.) As to "processor includes a computing device," Ingenio asserts that this term should be construed to mean that the processor "has a component device that can perform computations." (D.I. 113 at 24-25.) Ingenio cites to the portions of the specification of the patent that disclose that a home computer could be implemented to access the system, and states that, "at the time of the invention, home computers were known to include . . . software that could perform computations." (Id. at 24.) GameLogic, on the other hand, argues that the term should be construed to mean that "the processor, such as a microchip, contains within it a personal computer." (D.I. 116 at 28.) GameLogic also contends that this claim term is unclear. b. The Court's Construction The ordinary meaning of the term processor is "[a] device that performs one or many functions, usually a central processing unit"[8] or "[a] program that transforms some input into some output, such as an assembler, compiler, or linkage editor." McGrawHill Dictionary of Scientific and Technical Terms 1676 (6th ed.2003).[9] Thus, a processor can either be circuitry or it can be a program in a computer that performs a particular function. Computer circuitry or a computer 456 program, standing alone, cannot perform the functions of the patent, such as allowing the player to "enter[ ] the code . . . into a processor." That function, and others required by the patent, can be performed by the processor only where the processor is part of a computing device. For that reason, the term "a processor" in claim 1 of the '082 patent must be construed such that the processor of claim 1 is within a computing device. As a result, "processor within a computing device" will be construed to mean the same thing as "a processor." The language "within a computing device" adds no additional limitation to the term "a processor," as a processor must be within a computing device to perform the functions it is required to perform in claim 1 of the '082 patent. The term "processor includes a computing device" is indecipherable. As Ingenio points out, the patent describes "a home computer or an interactive TV system" as examples of "a computing device." ('082 patent at 5:60; see also id. at Fig. 6.) Because a processor itself must be a part of a computing device to function, it cannot also include "a computing device," as that terminology is used in the patent. Ingenio attempts to avoid this conclusion by arguing that the computing device in this claim is simply "a component device that can perform computations." (D.I. 113 at 24-25.) The patent's own description of what a "computing device" is, as cited by Ingenio, does not comport with this construction. Therefore, I find that the term "processor includes a computing device" is indecipherable in the context of this patent. 7. Remaining Terms The parties also dispute the meaning of a remaining term in dependent claim 9 of the '082 patent. Because I have construed the disputed terms in the independent claim and, by that construction, will grant summary judgment of infringement to Ingenio, construction of the remaining disputed term is not material to the outcome of the case, as it goes only to infringement of that dependent claim.[10] (D.I. 113 at 23-24; D.I. 117 at 26-28.) There is only one accused product at issue, and the only relief Ingenio has requested is an injunction, as it is undisputed that GameLogic has not yet made any sales of the accused product. Thus, GameLogic would be enjoined from commercializing its accused product or further practicing the patented invention, regardless of whether Gamelogic infringes one claim or more than one claim of the '082 patent. B. Summary Judgment Motions 1. Infringement The parties have cross-moved for summary judgment on infringement. (D.I. 112, 115.) Each party, of course, relies heavily on its own claim construction position in support of its own motion. In light of my claim construction rulings, Ingenio's Motion for Summary Judgment of Infringement (D.I. 112) will be granted as to claim 1 of the '082 patent,[11] and GameLogic's Motion for Summary Judgment of Non-Infringement (D.I. 115) will be denied. GameLogic's HomePlay game meets each element of claim 1 of the '082 457 patent. HomePlay is "a method for playing a player lottery game comprising the step of: acquiring by a player a game piece," because a potential player buys a paper ticket from a state lottery agency, (Hardy Declaration, D.I. 116, Ex. 1 at ¶ 10), and the ticket serves the function ascribed to a "game piece," namely providing a code that will ultimately lead to a win or loss for the player. The game fits within the definition of lottery game as I have construed it here, see supra Section IV.A.2.b., as it has "payment associated with participation in a chance to win; a result based on chance; and a prize awarded to the winner(s)." Thus, HomePlay meets the first limitations of claim 1 of the '082 patent. Likewise, HomePlay meets the claim limitation of "the gaming piece including a code which includes data indicating whether the player wins or loses the lottery game and an amusement game." First, with respect to "indicating," I have construed that term to mean only that the access code must show the way to, point out, or make clear in another way the result of the lottery game and amusement game. See supra Section IV.A.1.b. REDACTED (Hardy Declaration, D.I. 116, Ex. 1 at ¶¶ 10, 46-48.) Thus, the access code in HomePlay determines the ultimate result of the lottery game within the meaning of claim 1 of the '082 patent. In further support of its argument that it does not infringe the '082 patent, REDACTED (Id.) GameLogic's argument is flawed because its assertion that it is practicing the prior art is not a viable defense to infringement. See Nazomi Communications, Inc. v. Arm Holdings, PLC, 403 F.3d 1364, 1371 (Fed.Cir.2005) ("this court cautions against the nonviable `practicing the prior art' defense that the district court may have found appealing in reaching its result"). Indeed, a patentee does not have to prove that the patent is valid, but only that the accused device embodies every element of the claimed invention. Baxter Healthcare Corp. v. Spectramed, Inc., 49 F.3d 1575, 1583 (Fed. Cir.1995) ("Literal infringement exists if each of the limitations of the asserted claim(s) read on, that is, are found in, the accused device. Questions of obviousness in light of the prior art go to validity of the claims, not to whether an accused device infringes."). Thus, GameLogic's arguments based on Cohen may go to invalidity arguments it wishes to make, but not to its non-infringement position. Second, with respect to the amusement game, I have construed that term to require only "a game which amuses the player," and have determined that it can be either separate from or combined with the "actualization" game which displays the result of the lottery. See supra Section IV. A.2.b. Although GameLogic asserts that the amusement game in Prize Reel Blackjack is only the blackjack portion of the game, it concedes that the prize reel portion of that game is designed to be amusing to the player. (See Markman Hearing Transcript, D.I. 132 at 51:15-17.) REDACTED (Hardy Declaration, D.I. 116, Ex. 1 at ¶¶ 143-58.) Thus, the accused HomePlay meets the claim limitation "the gaming piece including a code which includes data indicating whether the player wins or loses the lottery game and an amusement game." HomePlay's access codes are "unrecognizable to the player" within the meaning of the '082 patent, because I have construed that term such that it does not require the code to be encrypted. See supra Section IV.A.3.b. REDACTED (See Hardy Declaration, D.I. 116, Ex. 1 at ¶¶ 13, 46-48.) In fact, GameLogic's argument that the HomePlay 458 access code is not "unrecognizable" is based on its claim construction of that term, which requires that "unrecognizable" means encrypted. (D.I. 123 at 22-23.) The HomePlay access codes are, however, "unrecognizable" within my construction of that term. Finally, it is clear that, in playing Prize Reel Blackjack, the following steps take place: "entering the code by the player into a processor prior to amusement game play," (Hardy Declaration, D.I. 116, Ex. 1 at ¶ 10), "the processor generating the amusement game on a display for play by the player, the player controlling game play by inputting game parameters to the processor" (id. at ¶¶ 34-58), "the processor controlling whether the player will win or lose the amusement game based upon the code entered by the player," (id. at ¶¶ 40-58), and "providing on a display an indication to the player of the amusement game win or loss based upon the code," (id. at 1155). GameLogic argues that it does not meet any of these limitations because "a processor," as described in the patents-insuit, must be construed to mean only one processor, REDACTED (D.I. 123 at 26; see also Hardy Declaration 2, D.I. 113, Ex. 1 at ¶¶ 18-20.) However, I have construed the term "a processor" to mean "one or more processors," and GameLogic's system accordingly meets this limitation. GameLogic's accused HomePlay system thus meets every limitation of claim 1 of the '082 patent, and summary judgment of infringement will be granted to Ingenio.[12] For the same reasons, GameLogic's Motion for Summary Judgment of Non-Infringement will be denied. Because neither party discussed infringement of claim 1 of the '603 patent in their summary judgment briefing, summary judgment as to that claim is denied. 2. Validity Ingenio has moved for partial summary judgment of validity on GameLogic's claim that the asserted claims of the patent are invalid because they are not enabled. (D.I. 112.) Specifically, GameLogic has asserted that, under its construction of "unrecognizable," the claims of the patent require encryption, and are not enabled because they fall to teach an encryption technique. (D.I. 123 at 27; D.I. 113 at 28.) GameLogic's sole argument on this point focuses on its claim construction of "unrecognizable." (D.I. 123 at 27.) Because encryption is not required under the definition of the term "unrecognizable" that I have adopted, GameLogic's lack-of-enablement argument fails. Thus, summary judgment as to that defense will be granted to Ingenio. V. CONCLUSION Accordingly, for the foregoing reasons, the disputed claim terms will be construed as follows: Claim Term The Court's Construction "code which includes data indicating whether The court construes construe "indicating" in the player wins or loses" the context of "code which includes data indicating whether the player wins or loses" to mean that the code "shows the way to, points out, or makes clear in another way." 459 "lottery game" The court construes "lottery game" to mean "a game based on three basic principles: payment associated with participation in a chance to win; a result based on chance; and a prize awarded to the winner(s)." "amusement game" The court construes "amusement game" in the context of the phrase "the lottery game and an amusement game" to mean "a game which amuses the player, which can be combined with or separate from the `actualization' game which reveals the result of the. lottery game." "data being unrecognizable to the player" The court construes the phrase "data being unrecognizable to the player" to mean "the player is not able to recognize from the data whether the player wins or loses the lottery game and amusement game." "a processor" The court construes "a processor" to mean "one or more processors." "reading the code by a processor" The court construes "reading" in the context of the phrase "reading the code by a processor" will be construed to mean "receiving input of the code from some source, which may include a computer program/software source." "processor within a computing device" The court construes the term "processor within a computing device" to be synonymous with the term "processor" as it is used in claim 1 of the '082 patent. "processor includes a computing device" The term "processor includes a computing device" is indecipherable. Additionally, Ingenio's Motion for Partial Summary Judgment of Infringement (D.I. 112) will be granted as to Ingenio's claim that GameLogic infringes claim 1 of the '082 patent, and its Motion for Partial Summary Judgment of Validity (D.I. 112) will be granted as to GameLogic's lack-of-enablement defense. Ingenio's Motion for Summary Judgment that GameLogic infringes claim 1 of the '603 patent (D.I. 112) will, be denied. GameLogic's Motion for Summary Judgment of Non-Infringement (D.I. 115) will be denied. An appropriate order will follow. ORDER For the reasons set forth in the Memorandum Opinion issued today, IT IS HEREBY ORDERED that the following disputed claim terms of U.S. Patent No. 5,569,082 (issued October 29, 1996) and U.S. Patent No. 5,709,603 (issued January 29, 1998) are construed as follows: Claim Term The Court's Construction "code which includes data indicating whether The court construes construe "indicating" in the player wins or loses" the context of. "code which includes data indicating whether the player wins or loses" to mean that the code "shows the way to, points out, or makes clear in another way." "lottery game" The court construes "lottery game" to mean "a game based on three basic principles: *460 payment associated with participation in a chance to win; a result based on chance; and a prize awarded to the winner(s)." "amusement game" The court construes "amusement game" in the context of the phrase "the lottery game and an amusement game" to mean "a game which amuses the player, which can be combined with or separate from the `actualization' game which reveals the result of the lottery game." "data being unrecognizable to the player" The court construes the phrase "data being unrecognizable to the player" to mean "the player is not able to recognize from the data whether the player wins or loses the lottery game and amusement game." "a processor" The court construes "a processor" to mean "one or more processors." "reading the code by a processor" The court construes "reading" in the context of the phrase "reading the code by a processor" will be construed to mean "receiving input of the code from some source, which may include a computer program/software source." "processor within a computing device" The court construes the term "processor within a computing device" to be synonymous with the term "processor" as it is used in claim 1 of the '082 patent. "processor includes a computing device" The term "processor includes a computing device" is indecipherable. IT IS FURTHER ORDERED that the Motion for Partial Summary Judgment of Infringement and Validity filed by plaintiff Ingenio, Filiale de Loto-Quebec, Inc. (D.I. 112) is GRANTED as to Ingenio's claim that GameLogic infringes claim 1 of the '082 patent, and as to GameLogic's lack-of-enablement defense. IT IS FURTHER ORDERED that the Motion for Partial Summary Judgment of Infringement and Validity filed by plaintiff Ingenio, Filiale de Loto-Quebec, Inc. (D.I. 112) is DENIED as to Ingenio's claim that GameLogic infringes claim 1 of the '603 patent. IT IS FURTHER ORDERED that the Motion for Summary Judgment of Non-Infringement filed by GameLogic, Inc. is DENIED. NOTES [1] Claims 4, 6, 8, and 9 of the '082 patent depend from claim 1, and claims 13, 15, and 16 depend from claim 10. [2] Dow K. Hardy is Senior Vice President of Technology for GameLogic. (March 8, 2005 Declaration of Dow K. Hardy (Hardy Declaration 2), D.I. 113, Ex. 1 at ¶ 3.) [3] The parties have agreed, for purposes of this lawsuit, to use Prize Reel Blackjack as an example of the interactive games available for play on HomePlay's website. (D.I. 116, Ex. 6.) [4] The "Destiny Code," or access code, is a "symbolic code[] that signf[ies] the outcome of the particular game of chance to be played by the player." ('082 patent at 2:66-67.) [5] No one contends that the meaning of "lottery" has changed between the time the patents issued and today. [6] The '603 patent uses the term "games," while the '082 patent uses the term "game. ('082 patent at 11:3-6; Id. at 12:7-10; '603 patent at 16:2-5.) [7] To determine whether "a" means only one or one or more than one, the Federal Circuit looks to the language of the patent claims and specification. In both Abtox, Inc. v. Exitron Corp., 122 F.3d 1019 (Fed.Cir.1997) and North Am. Vaccine, Inc. v. Am. Cyanamid Co., 7 F.3d 1571 (Fed.Cir.1993), the Court held that the language of the patent indicated that "a" meant only one. See Abtox, 122 F.3d at 1023-24; North Am. Vaccine, 7 F.3d at 1575-76. In Abtox, the Court found that where the claim referred to "a chamber," but later repeatedly referred to "said chamber," "only one chamber is in question." Abtox, 122 F.3d at 1024. Similarly, in North Am. Vaccine, the court found that where a claim referred to linkage at "a terminal aldehyde group," but the specification referred to "the terminal aldehyde group," that there was only one linkage. North Am. Vaccine, 7 F.3d at 1576. Although the Federal Circuit interprets the term "a" in light of the claims and specification, the Court recently has more commonly held that "a" in patent parlance, means one or more than one, even where later claim language refers to "the" or "said." See KCJ Corp., 223 F.3d at 1356 (holding that the article "a" would only be limited to its singular meaning when the inventor evinced a clear intent to so limit it). In light of the decisions in Phillips and KCJ Corp., I have construed "a processor" to mean "one or more processors." [8] A central processing unit is "Mlle part of a computer containing the circuits required to interpret and execute the instructions." McGrawHill Dictionary of Scientific and Technical Terms 356 (6th ed.2003) [9] No one contends that the ordinary meaning of "processor" in the context of computer science has changed between the time the patents issued and today. [10] The only asserted claim of the '603 patent is claim 1, an independent claim. (D.I. 117 at 2.) All of the disputed terms in that claim have been construed. [11] In its summary judgment briefing, Ingenio only argues that claim 1 of the '082 patent has been infringed. (See D.I. 113 at 26-28.) Ingenio makes no mention of the additional limitation "reading" in claim 1 of the '603 patent, and thus summary judgment of infringement as to that patent must be denied. [12] For the reasons discussed above, supra note 11 and Section IV.A.7., I will not address infringement of any of the other claims.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499960/	445 F.Supp.2d 1063 (2006) UNITED STATES of America for the use of NORTH STAR TERMINAL & STEVEDORE COMPANY, d/b/a Northern Stevedoring & Handling, and North Star Terminal & Stevedore Company, d/b/a Northern Stevedoring & Handling, on its own behalf, Plaintiffs, and United States of America for the use of Shoreside Petroleum, Inc., d/b/a Marathon Fuel Service, and Shoreside Petroleum, Inc., d/b/a Marathon Fuel Service, on its own behalf, Intervening Plaintiffs, and Metco, Inc. Intervening Plaintiff, v. NUGGET CONSTRUCTION, INC., Spencer Rock Products, Inc., United States Fidelity and Guaranty Company, and Robert A. Lapore, Defendants. No. 3:98-CV-9 TMB. United States District Court, D. Alaska. July 28, 2006. 1064 1065 1066 1067 David W. Pease, Michael W. Sweright, Burr Pease & Kurtx, Anchorage, AK, for Plaintiffs. Steven J. Shamburek, Law Office of Steve J. Shamburek, Anchorage, AK, for Intervenor Plaintiff. Thomas R. Krider, Oles Morrison Rinker & Baker, LLP, Seattle, WA, Traeger Machetanz, Oles Morrison Rinker & Baker LLP, Anchorage, AK, C. Patrick Stoll, Herrig, Vogt & Stoll, Granite Bay, CA, Paul D. Stockler, Law Office of Paul D. Stockler, Herbert A. Viergutz, Barokas Martin & Tomlinson, William K. Renno, Oles Morrison & Rinker, Anchorage, AK, for Defendants. ORDER DISPOSING OF PARTIES' STATE LAW SUMMARY JUDGMENT MOTIONS BURGESS, District Judge. Motions Presented Defendants Nugget Construction, Inc. ("Nugget") and United States Fidelity & Guaranty Company ("USF & G") have moved for summary judgment on the state law claims asserted by Plaintiffs North Star Terminal & Stevedore Company ("North Star"), Shoreside Petroleum, Inc. ("Shoreside") and Metco, Inc. ("Metco").[1] Each Plaintiff has opposed.[2] Defendants have replied.[3] North Star has cross-moved for summary judgment on some of its state law claims.[4] Defendants have opposed.[5] North Star has replied.[6] Shoreside and Metco have moved for what appears to be summary judgment on all their claims.[7] North Star has joined that motion.[8] Defendants have opposed.[9]1068 Plaintiffs have replied.[10] North Star, joined by Shoreside and Metco, has also moved for summary judgment against Defendants on the issue of contract by agency.[11] Defendants have opposed.[12] Plaintiffs have replied.[13] USF & G has requested oral argument on this summary judgment motion[14] North Star has requested that, if oral argument is granted on this motion, issues raised in the numerous other motions filed by the parties be heard at the same time.[15] Shoreside and Metco have separately requested that oral argument be heard on all issues raised in the parties' many motions.[16] Applicable Standard Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party always bears the burden of demonstrating the absence of a material issue of fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party need not present evidence; it need only point out the lack of any genuine dispute as to material fact. Id. at 323-325, 106 S.Ct. 2548. Once the moving party meets this burden, the non-moving party must set forth evidence of specific facts showing the existence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All evidence presented by the non-movant must be believed for purposes of summary judgment, and all justifiable inferences must be drawn in favor of the non-movant. Id. When the parties submit cross-motions for summary judgment on the same claim, the court must consider the appropriate evidentiary material identified and submitted in support of both motions, and in opposition to both motions, before ruling on each of them. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir.2001). Facts The facts underlying this protracted litigation are thoroughly laid out in this Court's prior summary judgment order at Docket No. 310 and in North Star Terminal & Stevedore, Co. et al. v. Nugget Construction, Inc. et al., 126 Fed.Appx. 348, 351, 2005 WL 487313 (9th Cir.2005) (the "Ninth Circuit Opinion"). Briefly, the following facts relative to these motions are undisputed: On or about September 28, 1996, Nugget contracted with the U.S. Army Corps of Engineers to extend a rock revetment along the Homer Spit Road in Homer, Alaska. On or about September 28, 1996, USF & G executed and delivered to the United States a Miller Act bond for the protection of all persons and companies supplying labor and materials in connection with the Homer Spit project. On or about January 15, 1997, Nugget entered into a contract with Spencer to provide stone material for the project. In the winter of 1996/97, Spencer entered into (i) a contract with North Star to perform stevedoring operations in loading the rock onto Nugget's barges and (ii) a contract with Shoreside 1069 to provide fuel and lubricant for Spencer's quarrying operation. In May 1997 Spencer entered into a contract with Metco to assist with unloading and stacking the rock at the dock so that North Star could load it onto the barges. On or about April 23, 1997, Nugget and Spencer entered into a support agreement wherein Nugget agreed to provide labor and equipment to Spencer to assist Spencer in meeting its obligations under its original contract with Nugget in exchange for monetary deductions from amounts Nugget owed Spencer for performance under the original contract. Nugget instructed Spencer to keep the support agreement secret, and North Star, Shoreside and Metco were not told about its existence. Nugget's employee, Lynn D. Randolph, directed the loading of rock onto Nugget's barges. Nugget also started performing some of Spencer's functions in operating Spencer's quarry. Spencer was not paid for any services to Nugget after April 19, 1997. Nugget withheld payments from Spencer in order to pay itself under the support agreement (these withholdings are known as "back charges"). Spencer did not pay North Star, Shoreside or Metco for the material and labor they supplied on the Homer Spit project. Nugget did not pay North Star, Shoreside or Metco for the material and labor they supplied on the Homer Spit project. Facts concerning the extent to which Nugget interacted directly with the Plaintiffs and the extent to which Nugget took over the operations of the Spencer quarry are disputed. The Ninth Circuit has ruled that the facts in dispute prevent summary judgment on Plaintiffs' Miller Act claims. Ninth Circuit Opinion at 6. Discussion The Court addresses below (i) Defendants' motion for summary judgment on Plaintiffs' state law causes of action; (ii) North Star's cross-motion for summary judgment on its unjust enrichment, quasicontract and quantum meruit claims; (iii) Plaintiffs' motion for summary judgment on their contract by agency claim; and (iv) Plaintiffs' motion for summary judgment on all claims. Express Contract: Plaintiffs contend that an express contractual relationship existed between them and Nugget because of Nugget's alleged take-over of Spencer, with which Plaintiffs contracted.[17] Plaintiffs make this argument in a number of different pleadings. They move for summary judgment based on contract by agency[18] and oppose Defendants' motion for summary judgment on their agency and express contract claims.[19] Defendants' principal argument in support of their motion for summary judgment is that the Ninth Circuit has held that Plaintiffs "never entered into express contracts with Nugget." Ninth Circuit Opinion at 4.[20] Defendants make their argument in a number of pleadings. They themselves move for summary judgment on Plaintiffs' 1070 express contract and agency claims[21] and oppose Plaintiffs' separate contract by agency summary judgment motion.[22] When read in context, the Ninth Circuit holding upon which Defendants' rely is simply that Plaintiffs never expressly contracted directly with Nugget. Plaintiffs' contention, however, is that Spencer became an agent or extension of Nugget, and thus assumed Spencer's express contractual obligations to third parties, including to Plaintiffs. Although the issue appears not to have been directly addressed by the Alaska Supreme Court, Alaska law, following the Restatement (Second) of Agency, holds that an undisclosed principal is generally liable to third parties with which its agent contracts.[23] Thus, the viability of Plaintiffs express contract claim against Nugget depends upon Nugget's relationship with Spencer. "[I]n order for an agency relationship to exist, an agent must have a power to alter the legal relations between the principal and third parties. The principal, in turn, must have the right to control 1071 the conduct of the agent with respect to matters entrusted to him." Manes v. Coats, 941 P.2d 120, 123 (Alaska 1997) (citations and quotations omitted). "Under Alaska law, an agency relation exists only if there has been a manifestation of the principal to the agent that the agent may act on his account and consent by the agent to so act." Harris v. Keys, 948 P.2d 460, 464 (Alaska 1997). The question of whether an agency relationship exists is a question of fact. Id. at 465; Manes, 941 P.2d at 123. Here, material facts necessary to determine the existence of an agency relationship, namely the extent to which Nugget assumed control over Spencer, are in dispute. See, Ninth Circuit Opinion at 6. Summary judgment is thus precluded.[24] Implied-in-Fact Contract: Plaintiffs contend that an implied-in-fact contract exists between them and Nugget, either because of their direct interactions with Nugget or through Nugget's alleged take-over of Spencer, which had explicit contracts with each of the plaintiffs.[25] Defendants' principal argument in support of their motion for summary judgment is that Plaintiffs cannot show that there was a meeting of the minds between the parties sufficient to infer an implied-in-fact contract.[26] Under Alaska law, "[a]n `implied in fact' contract is grounded on the intention of the parties to form a contract; the parties' assent thereto, although unarticulated, is inferred from the surrounding facts and circumstances." Nordin Cont. Co. v. City of Nome, 489 P.2d 455, 464 (Alaska 1971); see also, Reeves v. Alyeska Pipeline Service Company; 926 P.2d 1130, 1140 (Alaska 1996). Mutual assent is a requirement for a binding contract, however, a party "cannot rely on its subjective intent to defeat the existence of a contract if its words and actions objectively and reasonably led another to believe a contract had been entered." Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1281 (Alaska 1985). Material issues of fact remain in dispute as to (i) the collusion between Nugget and Spencer and (ii) Nugget's direct interactions with Plaintiffs. See, Ninth Circuit Opinion at 6. Whether or not Nugget's (or Spencer's) words and actions created an implied-in-fact contract between Nugget and the Plaintiffs depends on these hotly disputed issues of material fact. Summary judgment is thus precluded. Promissory Estoppel: Plaintiffs base their promissory estoppel claim against Defendants upon Nugget's conduct, which induced them to supply material and labor during the course the Homer Spit project.[27] Plaintiffs identify as promises inducing their reliance: (i) Nugget's non-disclosure of its support agreement with Spencer and (ii) Nugget's direction of the loading of its barges (through Mr. Randolph).[28] Defendants' 1072 principal argument in support of their motion for summary judgment is that Plaintiffs have not adduced" any evidence that Nugget made an actual promise to Plaintiffs which could have induced reliance.[29] "Under Alaska law, a promissory estoppel claim has four requirements: (1) The action induced amounts to a substantial change of position; (2) it was either actually foreseen or reasonably foreseeable by the promisor; (3) an actual promise was made and itself induced the action or forbearance in reliance thereon; and (4) enforcement is necessary in the interest of justice." Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1142 (Alaska 1996). Unlike some other jurisdictions, Alaska requires that the "actual promise made" by the party sought to be estopped be "very clear" and "precise". Simpson v. Murkowski, 129 P.3d 435, 442-444 (Alaska 2006); see also, Brady v. State, 965 P.2d 1, 11 (Alaska 1998); Eufemio v. Kodiak Island Hosp., 837 P.2d 95, 103 (Alaska 1992). Where the alleged promise is not expressed in sufficiently precise language, the promissory estoppel claim fails. Id. In opposition to Defendants' motion, Plaintiffs first argue that Nugget's requirement that Spencer keep the support agreement secret constitutes a promise to the Plaintiffs that induced them to continue to supply material and labor to Spencer.[30] Nowhere does Plaintiff explain how the suppression of the support agreement, or the subterfuge between Nugget and Spencer, constitutes a promise, either as to the relationship between Nugget and Spencer or as to payment and coverage under the Miller Act bond. Absent coherent explanation by Plaintiffs, it is not clear to this Court how Nugget's actions can constitute a promise giving rise to a promissory estoppel claim under Alaska law. Nugget's actions with respect to Spencer may give rise to other causes of action, but, absent a clear and precise promise to Plaintiffs, they do not give rise to a cause of action for promissory estoppel. Plaintiffs next argue that the statements and actions of Mr. Randolph constitute a promise which induced their actions.[31] The evidence to which Plaintiffs point, however, fails to show any "actual promise" to Plaintiffs: North Star shows that Mr. Randolph informed North Star when the Nugget barge would arrive, instructed North Star when to load the barge, and oversaw and directed the loading of the barge. There is no evidence showing that Mr. Randolph ever promised anything to North Star through these actions, however.[32] Shoreside adduces evidence that it delivered gas and lubricant to Spencer on three separate occasions-in February, April and May of 1997. Shoreside interacted with Mr. Randolph, but Mr. Randolph never promised that Nugget would pay for the deliveries Shoreside made to Spencer.[33] Nevertheless, Shoreside 1073 thought that it was covered under the Miller Act bond and that, should Spencer fail to pay, it would have recourse to Nugget or the payment bond. Metco adduces evidence that it assisted in unloading rock at the Alaska Railroad dock during May and June 1997, for which it billed Spencer. Metco also interacted with Mr. Randolph, who encouraged Metco to continue providing services to Spencer. However, Mr. Randolph never promised that Nugget would pay for the services Metco was providing to Spencer. Nevertheless, Metco also thought that it was covered under the Miller Act bond and that, should Spencer fail to pay, it would have recourse to Nugget or the payment bond. Plaintiffs' evidence shows only that they believed that they would be paid by Nugget or Spencer, and that they would be protected by the Miller Act bond. It does not show that Defendants made any representation or promise of such payment or coverage. In the absence of such a promise, this evidence does not adequately support Plaintiffs' promissory estoppel claim. Summary judgment in favor of Defendants is thus appropriate. Detrimental Reliance: Plaintiffs base their detrimental reliance claim against Defendants upon the same conduct upon which they base their promissory estoppel claim.[34] Defendants' principal argument in support of their motion for summary judgment is that Plaintiffs have not adduced any evidence that Nugget made any promises to Plaintiffs.[35] The elements of a detrimental reliance/equitable estoppel claim are "(1) assertion of a position by conduct or word, (2) reasonable reliance thereon, and (3) resulting prejudice." Ogar v. City of Haines, 51 P.3d 333, 335 (Alaska 2002); see also, Marathon Oil Co. v. ARCO Alaska, Inc., 972 P.2d 595, 604 (Alaska 1999); Municipality of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska 1984). The estoppel will be enforced only to the extent that justice requires. Id. The Alaska Supreme Court has explained that: The primary difference between promissory and equitable estoppels is that the former is offensive, and can be used for affirmative enforcement of a promise, whereas the latter is defensive, and can be used only for preventing the opposing party from raising a particular claim or defense. Despite this important difference, relevant analogies can be drawn between the two doctrines, since equitable estoppel involves proof of elements similar to the elements of a promissory estoppel claim. James v. State, 815 P.2d 352, 356 (Alaska 1991); see also, Simpson, 129 P.3d at 440, n. 18. Plaintiffs' claim for detrimental reliance/equitable estoppel appears to be the flip side of their promissory estoppel claim-the later seeks to enforce an alleged promise by Defendants that Plaintiffs would be paid, the former to prevent Defendants from now claiming that they are not required to pay Plaintiffs. As discussed above, Plaintiffs have failed to raise issues of material fact that Defendants asserted a position by conduct or words.[36] Nugget's visible involvement in the Homer Spit project-its direction of the loading of its barge and its activities at the Spencer quarry-do not, without more, indicate a 1074 promise that Nugget would pay Plaintiffs for their materials and labor or that Plaintiffs were covered under the Miller Act bond. Summary judgment for Defendants is appropriate on Plaintiffs detrimental reliance/equitable estoppel claim. Misrepresentation and Non-Disclosure: Plaintiffs base their misrepresentation and non-disclosure claims on Nugget's failure to disclose the support agreement, the details of its relationship with Spencer, the reach of the payment bond, and Nugget's back charges to Spencer.[37] Defendants' argue in support of their summary judgment motion that they were under no duty to disclose the existence of the support agreement or the back charges they made to Spencer, and therefore cannot be liable for misrepresentation or non-disclosure.[38] The elements of a cause of action for knowing misrepresentation under Alaska law, are a false representation of fact, scienter, intention to induce reliance, justifiable reliance, and damages. Barber v. National Bank of Alaska, 815 P.2d 857, 862 (Alaska 1991) (citing Restatement (Second) of Torts); Anchorage Chrysler Center, Inc. v. DaimlerChrysler Corp., 129 P.3d 905, 914 (Alaska 2006). The elements of negligent misrepresentation under Alaska law are that "(1) the party accused of the misrepresentation must have made the statement in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, (2) the representation must supply false information, (3) there must be justifiable reliance on the false information supplied, and (4) the accused party must have failed to exercise reasonable care or competence in obtaining or communicating the information." Reeves v. Alyeska Pipeline Service Co., 56 P.3d 660, 670-71 (Alaska 2002) (citations and quotations omitted). An omission can constitute a false statement where there is a duty to disclose. Hagans, Brown & Gibbs v. First Nat. Bank of Anchorage, 810 P.2d 1015, 1019 (Alaska 1991). A duty to disclose may, as Plaintiffs contend, arise "when facts are concealed or unlikely to be discovered because of the special relationship between the parties, the course of their dealings, or the nature of the fact itself." Id.[39] As discussed above in connection with Plaintiffs' promissory estoppel and detrimental reliance/equitable estoppel claims, Plaintiffs have failed to present any evidence that Defendants made affirmative false representations of fact. Plaintiffs instead 1075 argue that Defendants' omissions constitute false statements, because Defendants had a duty to disclose the relationship between Nugget and Spencer, including the support agreement and the back charges. That alleged duty stems from the fact that the relationship between the two was unlikely to be discovered because of (i) Plaintiffs' special relationship with Nugget, (ii) their prior course of dealing with Nugget, or (iii) the nature of the fact itself. First, Plaintiffs and Nugget did not share a special relationship. They were parties dealing at arms length in a business transaction. "A duty to disclose is rarely imposed where the parties deal at arm's length." Matthews v. Kincaid, 746 P.2d 470, 472 (Alaska 1987) (citing Restatement (Second) of Torts); Valdez Fisheries Development Ass'n, Inc. v. Alyeska Pipeline Service Co., 45 P.3d 657, 672 (Alaska 2002). Second, Plaintiffs have failed to show that the parties' prior course of dealing created a duty to disclose. Third, Plaintiffs fail to articulate how the nature of the fact withheld, namely the extent of Nugget's interaction with Spencer, itself created a duty to disclose, nor do they cite authority suggesting that Alaska would impose such a duty here. Since Plaintiffs have failed to identify a false or misleading representation by Nugget, and have failed to identify a duty to disclose the extent of the interactions between Nugget and Spencer, summary judgment for Defendants on Plaintiffs' misrepresentation claim is appropriate. Negligence: Plaintiffs claim that Defendants' owed them a duty of care, which they breached by entering into the support agreement and taking over Spencer and by failing to disclose those actions to Plaintiffs.[40] Defendants argue in support of their summary judgment motion that they do not owe Plaintiffs a duty of care, because their relationship to Plaintiffs is that of a prime contractor to second-tier vendors.[41] "The initial step in deciding whether an action for negligence can be maintained is to consider whether a duty exists." Mesiar v. Heckman, 964 P.2d 445, 448 (Alaska 1998). The Alaska Supreme Court has stated that "[i]n deciding whether a defendant owes a plaintiff a duty of reasonable care, we first determine whether a duty is imposed by statute, regulation, contract, undertaking, the parties' preexisting relationship, or existing case law." McGrew v. State Dept. of Health and Social Services, Div. of Family and Youth Services, 106 P.3d 319, 322 (Alaska 2005). If these sources do not resolve the issue, Alaska applies a multi-factor approach to determine whether an actionable duty of care exists. Id.; see, Kooly v. State of Alaska, 958 P.2d 1106, 1108 (Alaska 1998). These factors are: "[1] The foreseeability of harm to the plaintiff, [2] the degree of certainty that the plaintiff suffered injury, [3] the closeness of the connection between the defendant's conduct and the injury suffered, [4] the moral blame attached to the defendant's conduct, [5] the policy of preventing future harm, [6] the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and [7] the availability, cost and prevalence of insurance for the risk involved." Kooly, 958 P.2d at 1108. Defendants argue that they did not owe Plaintiffs a duty of care. In response, Plaintiffs have failed to identify any statute or case law that imposes upon Nugget a duty of care toward them. 1076 Plaintiffs present no authority for their argument that Defendants' potential liability under the Miller Act or the federal Prompt Pay Act itself gives rise to an Alaska state law cause of action in negligence-the cases Plaintiffs cite stand only for the proposition that these federal claims do not preclude state law claims. See K-W Industries v. National Surety Corporation, 855 F.2d 640, 642-43 (9th Cir.1988). Plaintiffs also fail to identify any Alaska case law creating a duty in this situation.[42] Finally, the Court is not convinced that Alaska courts would impose a duty of care in the situation presented here. The relationships between the parties here are governed, at bottom, by contract. Nugget's liability to Plaintiffs, if any, arises from Spencer's contracts with Plaintiffs. Nugget may be liable to Plaintiffs under those contracts because it made Spencer its agent or strawman. Plaintiffs' evidence of the subterfuge and collusion between Nugget and Spencer goes toward whether Spencer did, in fact, become and agent or strawman. As the Alaska Supreme Court has stated, "[p]romises set forth in a contract must be enforced by an action on that contract." Alaska Pacific Assur. Co. v. Collins, 794 P.2d 936, 946-947 (Alaska 1990). Absent their contracts with Spencer, and Nugget's alleged take-over of Spencer, Plaintiffs would not have cause to seek recovery from Nugget. Because Plaintiffs have failed to show that Nugget owed them a duty of care in tort, summary judgment for Defendants on Plaintiffs' negligence claim is appropriate. This Court has held by separate decision and order that USF & G acted reasonably in denying Plaintiffs' claims for payment under the Miller Act bond. Summary judgment for USF & G on Plaintiffs' negligence claim is thus also appropriate. Tortious Interference Plaintiff North Star alleges that Nugget tortiously interfered with its contract with Spencer by taking over control of Spencer and back charging the company.[43] In support of their summary judgment motion, Defendants' argue that North Star has failed to adduce evidence to support its tortious interference claim.[44] The elements of the tort of intentional interference with contractual relations are: "Proof that (1) a contract existed, (2) the defendant knew of the contract and intended to induce a breach, (3) the contract was breached, (4) defendant's wrongful conduct engendered the breach, (5) the breach caused the plaintiffs damages, and (6) the defendant's conduct was not privileged or justified. The fourth, fifth, and sixth elements also apply to the related tort of intentional interference with prospective economic advantage." RAN Corp. v. Hudesman, 823 P.2d 646, 648 (Alaska 1991) (citations and quotations omitted). The sixth element of tortious 1077 interference has been defined in Alaska as follows: "where an actor has a direct financial interest, he is privileged to interfere with a contract for economic reasons, but not where he is motivated by spite, malice, or some other improper objective." Id. It is undisputed that a contract existed between Spencer and North Star, that Nugget knew about the contract, that the contract was breached, and that the breach damaged North Star. Material issues of fact surround the remaining two elements of North Star's tortious interference claim, namely whether Nugget's conduct caused Spencer's breach and whether Nugget's actions were privileged or justified. Ninth Circuit Opinion at 6. Both of these elements depend upon the extent of the alleged subterfuge and collusion between Nugget and Spencer. Summary judgment is thus precluded. Unjust Enrichment, Quasi-Contract and Quantum Meruit Claims Plaintiffs assert claims of unjust enrichment, quasi-contract and quantum meruit against Defendants.[45] Defendants have moved for summary judgment, arguing that Plaintiffs have not presented any evidence in support of their claims.[46] Plaintiff North Star has cross-moved for summary judgment.[47] The parties agree that Alaska law treats claims of unjust enrichment, quasicontract and quantum meruit claims similarly. Alaska Sales & Service, Inc. v. Millet, 735 P.2d 743, 746 n. 6 (Alaska 1987). The parties also agree on the elements of these claims: (1) a benefit conferred to defendant, (2) appreciation by defendant of that benefit; and (3) inequity of allowing defendant to retain the benefit without paying value therefor. Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1143 (Alaska 1996). Disputed material facts preclude summary judgment for either Defendants or North Star on Plaintiffs' claims of unjust enrichment, quasi-contract and quantum meruit claims. Each of the elements that make up the claims-Nugget's receipt of a benefit, Nugget's appreciation of that benefit, and the inequity of allowing Nugget to retain the benefit-depend upon the relationship between Nugget and Spencer. The nature of that relationship, in turn, depends upon the extent of the alleged subterfuge and collusion between Nugget and Spencer. Those facts are in dispute. Ninth Circuit Opinion at 6. Consequently, summary judgment is unavailable. Equitable Subordination and Constructive Trust: Plaintiffs assert claims of equitable subordination and constructive trust.[48] Defendants have moved for summary judgment, arguing that Plaintiffs have not presented any evidence in support of their claims.[49] Equitable subordination, whereby a court alters the pre-existing priorities among creditors, has been recognized in Alaska to apply outside of the bankruptcy context in situations of "fraud, unfairness, or breach of the rules of `fair play.'" Nerox Power Systems, Inc. v. M-B Contracting Co., Inc., 54 P.3d 791, 795 (Alaska 1078 2002). "In Alaska a constructive trust is appropriate to prevent unjust enrichment, defined as the retention of property through unjust, unconscionable, or unlawful means." Rausch v. Devine, 80 P.3d 733, 744 (Alaska 2003); State Farm Auto. Ins. Co. v. Raymer, 977 P.2d 706, 712 (Alaska 1999). Disputed issues of material fact preclude summary judgment for Defendants on Plaintiffs' claims of equitable subordination and constructive trust. Resolution of the claims depends upon the disputed material issues of fact surrounding the extent of the alleged subterfuge and collusion between Nugget and Spencer. Summary judgment is not available. Agency Defendant has moved for summary judgment on Plaintiffs' agency claims; North Star has cross-moved, and all Plaintiffs have filed a separate summary judgment motion on the issue.[50] As discussed above, disputed material issues of fact preclude summary judgment for either party. Punitive Damages: Plaintiffs assert claims for punitive damages in an amount of $1,000,000.[51] Defendants move for summary judgment on Plaintiffs' punitive damage claims, arguing that Plaintiffs have not put forth any factual allegations to support their punitive damages claims.[52] Under Alaska law, a plaintiff seeking punitive damages must "prove by clear and convincing evidence that the defendant's conduct was outrageous, such as acts done with malice, bad motive, or reckless indifference to the interest of another." Lee Houston & Assocs. v. Racine, 806 P.2d 848, 856 (Alaska 1991). As Defendants' themselves acknowledge in their briefing, "whether malice is present is a question of fact, and the trier of fact is given broad discretion to grant or withhold punitive damages." Docket No. 489 at 46; Haskins v. Shelden, 558 P.2d 487, 494 (Alaska 1976). The Alaska Supreme Court has consistently held that punitive damages are not recoverable for breach of contract unless the conduct constituting the breach constitutes an independent tort. Lee Houston & Associates, Ltd. v. Racine, 806 P.2d 848, 856 (Alaska 1991) (citing ARCO Alaska, Inc. v. Akers, 753 P.2d 1150, 1153 (Alaska 1988)). Plaintiffs advance three separate tort claims, namely negligence, misrepresentation and tortious interference.[53] The Court herein grants summary judgment in favor of Defendants on Plaintiffs' negligence and misrepresentation claims. North Star's tortious interference claim against Nugget, however, cannot be disposed of on summary judgment. Whether Nugget's conduct was sufficiently outrageous or malicious to warrant punitive damages depends upon material issues of fact that remain in dispute-namely on the extent of the subterfuge and collusion between Nugget and Spencer. Summary judgment on North Star's punitive damages claim is thus precluded. Summary judgment on Metco and Shoreside's punitive damages claims is appropriate. Plaintiffs' Motion For Summary Judgment Plaintiffs have made a separate motion that appears to request summary judgment 1079 on their state law and Miller Act claims.[54] With respect to Plaintiffs' state law claims, Plaintiffs' motion is denied for the reasons articulated above. With respect to Plaintiffs' Miller Act claims, summary judgment is precluded by the previous Ninth Circuit opinions in this case and the fact that Plaintiffs have presented no new evidence in support of their summary judgment motion. Conclusion For the foregoing reasons, (i) Defendants' motions for summary judgment on Plaintiffs' state law claims (Docket Nos. 476, 480 and 488) are DENIED IN PART and GRANTED IN PART; (ii) North Star's summary judgment cross-motion (Docket Nos. 534 and 537) is DENIED; (iii) Plaintiffs' motions for summary judgment on the issue of contract by agency (Docket Nos. 504 and 552) are DENIED; (iv) Plaintiffs' motions for summary judgment on all their claims (Docket Nos. 507, 518 and 521) are DENIED; and (v) the parties various motions for oral argument (Docket Nos. 529, 531, 533, 553) are DENIED. Plaintiffs' remaining state law claims are: (i) express contract; (ii) implied-in-fact contract; (iii) unjust enrichment, quasi-contract and quantum meruit; (iv) equitable subordination and constructive trust; and (v) North Star's tortious interference claim. NOTES [1] Docket Nos. 476, 480, 488. [2] Docket Nos. 535, 525. [3] Docket Nos. 603, 558. [4] Docket No. 534 and 537. [5] Docket No. 603. [6] Docket No. 614. [7] Docket No. 507. [8] Docket No. 518, 521. [9] Docket No. 538. [10] Docket No. 583. [11] Docket Nos. 504 (North Star's motion), 552 (Shoreside and Metco's joinder). [12] Docket No. 544. [13] Docket No. 605. [14] Docket No. 529, 531. [15] Docket No. 533. [16] Docket No. 553. [17] Docket Nos. 406 at 12, 407 at 11-12, 409 at 13-14; Docket Nos. 535 at 14, 525 at 24-25, 504 at 3. [18] Docket Nos. 504, 552. [19] Docket Nos. 525, 535. [20] Docket Nos. 477 at 15, 481 at 17, 489 at 18. Defendants also argue that no express contract could have been formed because there was never a meeting of the minds between Nugget and Plaintiffs. However, it is undisputed that Spencer and Plaintiffs entered into contracts. As discussed herein, if there is an express contract between Nugget and Plaintiffs, it is because of the contracts between Plaintiffs and Spencer. [21] Docket Nos. 476, 480, 488. [22] Docket No. 544. [23] The parties make much of footnote 38 of this Court's Order at Docket No. 310, wherein the Court, in analyzing Plaintiffs' Miller Act claim, stated that while it was "inclined under the circumstances to find that a principal/agent relationship existed between Nugget and Spencer by virtue of the support agreement and Nugget's subsequent control over Spencer, the court is not convinced that deeming Nugget a principal establishes a direct contractual relationship between it and Spencer's suppliers." Docket No. 310 at 24 n. 38. This was because Wilder Alaska law . . . contracts entered into by an agent cannot be construed as binding an undisclosed principal." Id. (emphasis supplied) Ultimately, the Court concluded that "those questions remain unanswered," and declined to rule on Plaintiffs' agency by control claim. Id. Defendants argue that these statements preclude Plaintiffs' argument that Defendants are liable for Spencer's contractual obligations to them. Defendants' argument is unavailing. This Court previously left the issue undecided. Alaska courts appear not to have directly addressed the issue of whether an undisclosed principal is liable to third parties with which its agent contracts. Defendants cite two cases in support of their contention that the Alaska rule is that undisclosed principals are not liable to third parties with whom their agents contract. Jensen v. Alaska Valuation Service, Inc., 688 P.2d 161, 163 (Alaska 1984) ("An agent who makes a contact for an undisclosed or partially disclosed principal will be liable as a party to the contract"); Vienna v. Scott Wetzel Servs., Inc., 740 P.2d 447, 452 (Alaska 1987) (agent is not contractually liable to third parties when principal is disclosed). Vienna is inapposite, and Jensen holds only that an agent is liable to third parties when acting on behalf of an undisclosed principal. Neither case holds that the undisclosed principal is not liable to the third party. Defendants have not pointed to any authority, other than this Court's statement in its Order at Docket No. 310, for their contention that undisclosed principals are insulated from liability to third parties with which their agents contract. The Alaska Supreme Court appears to follow the Restatement (Second) of Agency. See, e.g., Manes, 941 P.2d at 124; Harris, 948 P.2d at 464; Cummins, Inc. v. Nelson, 115 P.3d 536, 542 (Alaska 2005). The Restatement takes the position that "an undisclosed principal is bound by contracts and conveyances made on his account by an agent acting within his authority, except that the principal is not bound by a contract which is under seal or which is negotiable, or upon a contract which excludes him." Restatement (Second) of Agency § 186; see also, Restatement (Second) of Agency § 322, comment a ("an undisclosed principal as well as the agent, is liable upon a contract made on his account by an agent acting within his powers . . ."). This Court anticipates that, if faced with the issue, the Alaska Supreme Court would hold an undisclosed principal liable upon contracts made on its account by its agent. The undisputed fact that Nugget's relationship to Spencer was undisclosed to Plaintiffs thus does not, by itself, defeat Plaintiffs' express contract through agency claim against Nugget. [24] For the reasons articulated above, Plaintiffs' motion for summary judgment on their agency by control claims are also denied. North Star's additional motion for summary judgment based on the theory that Nugget acted as Spencer's agent in directing the loading of its barges, made at Docket No. 535 at 47, is also denied, because material issues of fact preclude summary judgment on this claim, as well. [25] Docket Nos. 406 at 12, 407 at 11-12, 409 at 13-14 (complaints); Docket Nos. 535 at 14-16, 525 at 24-25 (briefs). [26] Docket Nos. Nos. 477 at 15-19, 481 at 17-21, 489 at 21, 603 at 12. [27] Docket Nos. 406 at 13; 407 at 12; 409 at 15. [28] Docket Nos. 535 at 18-21; 525 at 25-26. [29] Docket Nos. 477 at 19-26, 481 at 21-28, 489 at 23-25. [30] Docket No. 535 at 18-20. [31] Docket No. 535 at 20-21. [32] In addition, North Star adduces evidence that Mr. Randolph instructed it to send its invoices to Spencer. Docket No. 491, Ex. 1, Tr. p. 55. North Star followed those instructions and sent the invoices to "Nugget Construction Barge & Owners, c/o Spencer Rock Products, Inc." Docket No. 75, Ex. 6. Nugget's instruction to North Star to send invoices to Spencer does not constitute a "very clear" or "precise" promise of Nugget's and Spencer's relationship, payment by Nugget or coverage under the Miller Act bond. [33] In June, 1997, after the three deliveries at issue, Nugget contacted Shoreside and told Shoreside that Nugget, not Shoreside, would accept delivery of and pay for future deliveries by Shoreside. Those subsequent deliveries are not in dispute here. [34] Docket Nos. 406 at 14; 407 at 114-15; 409 at 17-18; 525 at 26; 535 at 21-23. [35] Docket Nos. Nos. 477 at 19-26, 481 at 21-28, 489 at 24-30; 603 at 16-17. [36] Plaintiffs have not provided any authority suggesting that the promise required for an equitable estoppel/detrimental reliance claim need be any less precise or clear than that required for a promissory estoppel claim. [37] Docket No. 406 at 16-17; Docket No. 407 at 16; Docket No. 409 at 20 [BRIEFS]. [38] Docket Nos. 477 at 19-26, 481 at 21-28, 489 at 25-29; 603 at 16-17. [39] "The Restatement (Second) of Torts suggests that a duty to disclose will arise in five situations. Section 551(2) provides: One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated, (a) matters known to him that the other is entitled to know because of a fiduciary or other similar relation of trust and confidence between them; and (b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and (c) subsequently acquired information that he knows will make untrue or misleading a previous representation that when made was true or believed to be so; and (d) the falsity of a representation not made with the expectation that it would be acted upon, if he subsequently learns that the other is about to act in reliance upon it in a transaction with him; and (e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts." Matthews, 746 P.2d at 472. [40] Docket No. 406 at 17; Docket No. 407 at 16; Docket No. 409 at 21. [41] Docket Nos. 477 at 26-32, 481 at 29-35, 489 at 30-35. [42] Plaintiffs cite to Mattingly v. Sheldon Jackson College, 743 P.2d 356, 360 (Alaska 1987), which held that a "defendant owes a duty of care to take reasonable measures to avoid the risk of causing economic damages, aside from physical injury or property damage, to particular plaintiffs or plaintiffs comprising an identifiable class with respect to whom defendant knows or has reason to know are likely to suffer such damages from its conduct. A defendant failing to adhere to this duty of care may be found liable for such economic damages proximately caused by its breach of duty." Mattingly v. Sheldon Jackson College, 743 P.2d 356, 360 (Alaska 1987). Mattingly, however, stands for the proposition that a party that is only economically injured can nonetheless sue for negligence, so long as a duty exists. It defines the parameters of an existing duty and does not, as Plaintiffs imply, impose a new duty where there otherwise would be none. [43] Docket No. 409 at 21-22. [44] Docket No. 603 at 33-36. [45] Docket Nos. 406 at 13, 15-16; 407 at 13-16; 409 at 16, 18-20. [46] Docket Nos. 477 at 32-35; 481 at 34-37489 at 35-38. [47] Docket No. 535 at 37-41. [48] Docket Nos. 406 at 17-19; 407 at 17-18; 409 at 22-24. [49] Docket Nos. 477 at 32-35; 481 at 34-37, 489 at 35-38. [50] Docket Nos. 489 at 39-44, 535 at 43-47, 504. [51] Docket Nos. 406 at 19-20; 407 at 19; 409 at 24. [52] Docket Nos. 477 at 41-45, 481 at 44-48, 489 at 44-47. [53] See, also, Docket No. 535 at 46 n. 39 (Plaintiffs limit punitive damages claims to their tort claims). [54] Docket No. 507.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499980/	445 F.Supp.2d 288 (2006) Darcia S. DIOGUARDI, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. No. 04-CV-6237L. United States District Court, W.D. New York. August 11, 2006. 289 290 Paul M. Ryther, East Bloomfield, NY, for Plaintiff. Christopher V. Taffe, U.S. Attorney's Office, Rochester, NY, for Defendant. DECISION AND ORDER LARIMER, District Judge. INTRODUCTION This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("the Commissioner") that Darcia S. DioGuardi ("plaintiff') is not disabled under the Social Security Act ("the Act") and, therefore, is not entitled to Disability Insurance Benefits. The Commissioner moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), and seeks an affirmance of her final decision. (Dkt.# 3). Plaintiff also moves for judgment on the pleadings but seeks reversal of the Commissioner's decision with an award of benefits, or in the alternative, a remand for a new hearing. (Dkt.# 5). For the reasons discussed below, the Commissioner's motion is denied, plaintiff s motion is granted in part, and the case is reversed and remanded for further administrative proceedings, pursuant to the fourth sentence of 42 U.S.C. § 405(g). BACKGROUND When plaintiff first applied for Social Security benefits, plaintiff had a 12th grade education with some additional vocational training. (T. 393).[1] In December of 2001 she graduated from Genesee Community College with an associate's degree. (T. 453). Her work history includes positions as a direct care aide, a teacher's aide, a home health aide, and a cashier. (T. 388). Plaintiff was assaulted at work by a mentally retarded client on September 21, 1996. (T. 291, 552). The client grabbed plaintiff's hair from behind, and aggressively pulled her back over a seat. (T. 22, 554, 569). Plaintiff landed on her head and lost consciousness briefly. (T. 575, 630). Plaintiff first applied for Social Security benefits under Title II of the Act on March 17, 1997, alleging September 21, 1996the day she was attackedas an onset date. (T. 244-247). She described her disabling injuries to be "muscle or soft tissue damage to neck [and] upper back," and "[t]hroat problem[,] had trouble swallowingpain in front of throat and back of neck, even when just swallowing liquids." (T. 289, 297). Plaintiff's application was denied both initially and upon reconsideration. (T. 98-100, 103-105). Plaintiff requested a hearing before an Administrative Law Judge ("ALP), and on September 2, 1998 a hearing was held before ALJ Nancy Lee Gregg. (T. 999). Plaintiff appeared at the hearing with a representative from the law firm of Sciarrino & Sciarrino, LLP. (T. 1001). In a partially favorable decision dated May 3, 1999, the ALJ found that plaintiff was disabled within the meaning of the Act for a period beginning September 21, 1996 and ending January 31, 1998. (T. 74-87). Plaintiff submitted a Request for Review 291 of Hearing Decision to the Commissioner's Appeals Council on June 10, 1999. (T. 143-145). In that request, plaintiff raised concerns of bias by the ALJ, and asked that on remand a new ALJ be assigned to further develop the record through vocational expert testimony. (T. 143-145).[2] Plaintiff applied for Social Security benefits a second time on or about July 23, 1999, alleging an onset date of either September 21, 1996, or April 1, 1998. (T. 257, 387, 395). The onset date was later amended to February 1, 1998. (T. 1036-1037). Plaintiffs second application was denied initially and upon reconsideration. (T. 151-154, 158-160). Plaintiff requested another hearing before an ALJ on or about March 7, 2000. (T. 164-166). Before the hearing on the second application, the Appeals Council granted plaintiff s June 10, 1999 Request for Review of Hearing Decision. (T.180). In so doing, the Appeals Council vacated ALJ Gregg's May 3, 1999 decision, and remanded the case. (T. 180). Specifically, the Appeals Council found that ALJ Gregg erroneously "considered the fact that the claimant is attending college as evidence that she has attained medical improvement," a consideration precluded by 20 C.F.R. § 404.1586(g). The Appeals Council did not order that a new ALJ be assigned upon remand, nor did it order that expert vocational testimony be taken. (T. 180-181). Plaintiffs two pending applications were consolidated on January 14, 2002, at a second hearing before ALJ Gregg. (T. 1032-1068). At the outset of the hearing, the ALJ asked plaintiff whether her earlier request for the ALJ to recuse herself still stood. (T. 1035) After a brief discussion with plaintiff's representative, plaintiff did not seek recusal. (T. 1036). The ALJ then made clear that because plaintiffs appeal resulted in the ALJ's original decision being vacated, the entire period of disability was being reconsidered, not only the period beginning February 1, 1998. (T. 1036-1038).[3] Testimony from a vocational expert was not taken at the second hearing. On May 7, 2002, ALJ Gregg continued the hearing, at which testimony from a 292 vocational expert was taken. (T. 1069-1093). During this proceeding, the ALJ was questioned by plaintiff's representative about the basis for one of the hypothetical questions posed to the expert. (T. 1086-1088). On May 21, 2002, four years after plaintiff first appeared before ALJ Gregg for a hearing, the ALJ requested that plaintiff be referred to a clinical psychologist for an examination to consider whether plaintiff had "a possible somatoform and/or factitous (sic) disorder, and rule out malingering, if possible." (T. 469). Plaintiff's counsel responded to that request by writing a second letter of complaint to the Office of Hearings and Appeals on July 31, 2002. (T. 223-225). The gravamen of the complaint was, "With the extreme backload of hearing level cases, Judge Gregg's style of processing cases seems extremely time consuming, costly, and unjust to the claimant's (sic) who are assigned to her and to those claimant's (sic) who are waiting a year or more after filing a hearing request to have a hearing scheduled." (T. 225). On August 6, 2002, the ALJ wrote to plaintiff and stated that she would withdraw her request for psychological examination and testing based upon the July 31st letter, because it included a statement that plaintiff was "not arguing that she [had] a severe mental impairment (only mild depression) . ." (T. 242). On November 22, 2002, ALJ Gregg issued a secondless favorabledecision, this time finding that plaintiff was not disabled under the Act at any time during the entire period beginning September 21, 1996. (T. 17-69). The ALJ determined that although plaintiff cannot perform her past relevant work, she can perform other work in the national economy, and, therefore, is not disabled. The ALJ's decision is an exhaustive, 53 page, single-spaced document that painstakingly reviews all of the evidence in the lengthy record. The ALJ's decision became the final decision of the Commissioner when, on March 26, 2004, the Appeals Council denied plaintiffs request for review. (T. 8-11). The instant action followed. DISCUSSION I. Standards for Determining Disability A person is considered disabled when she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment (or combination of impairments) is disabling if it is of such severity that a person "is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . ." 42 U.S.C. § 423(d)(2)(A). To determine whether a person is disabled within the meaning of the Act, the ALJ proceeds through a five-step sequential evaluation.[4]Bowen v. City of New 293 York, 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986) (citations omitted); Tejada, 167 F.3d at 774. Once a claimant has proven steps one through four, the burden then shifts to the Commissioner to show that the claimant retains a residual functional capacity ("RFC") to perform other substantial gainful work which exists in the national economy. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999) (quoting Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986)). II. Standard of Review The Commissioner's decision that plaintiff is not disabled must be affirmed if it is supported by substantial evidence, and if the All applied the correct legal standards. 42 U.S.C. § 405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). Substantial evidence is defined as "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The court carefully considers the whole record, examining evidence from both sides "`because an analysis of the substantiality of the evidence must also include that which detracts from its weight.'" Tejada, 167 F.3d at 774 (citing Quinones v. Chater, 117 F.3d 29, 33 (2d Cir.1997)) (quoting Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.1988)). Still, "it is not the function of a reviewing court to decide de novo whether a claimant was disabled." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). "Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, [this Court] will not substitute our judgment for that of the Commissioner." Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002). Such a deferential standard, however, is not applied to the Commissioner's conclusions of law. Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984); accord Tejada, 167 F.3d at 773. This Court must independently determine if the Commissioner's decision applied the correct legal standards in determining that the plaintiff was not disabled. "Failure to apply the correct legal standards is grounds for reversal." Townley, 748 F.2d at 112. Therefore, this Court is to first review the legal standards applied, and then, if the standards were correctly applied, consider the substantiality of the evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987); see also Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.1998) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles." (quoting Johnson, 817 F.2d at 986)). 294 Here, the Commissioner argues that substantial evidence in the record exists to support the ALJ's decision. Plaintiff, on the other hand, asserts that the ALJ's decision is not supported by substantial evidence and is based upon errors of law. I find that the ALJ in this case committed multiple errors of law, and that remand is required. III. The ALJ's Decision Applying the five-step disability evaluation, ALJ Gregg first found that plaintiff had not engaged in substantial gainful activity since her alleged onset date, September 21, 1996. (T. 22). At step two, the ALJ found that plaintiff had impairments that were "severe" within the meaning of the Act. (T. 67). More specifically, the ALJ found that plaintiff had "a cervical trapezius interscapular muscle strain," and as of December 26, 2001, "small uncovertebral joint spurs at the C3-C4 level, without any impingement; a small focal central disc protrusion at C4-5, with uncovertebral joint spurs, without any impingement; a central disc bulge at C5-C6 with small uncovertebral joint spurs bilaterally, without any impingement; some degree of degenerative disc disease of the lumbar and lumbosacral spine, with most severe changes seen at L3-4 and L5-S1; small endplate Schmorl's nodes along the interior endplate of T12; and a focal right paracentral disc protrusion at L5-S1 that was confined to the anterior epidural fat abutting, but not impinging, the right S1 nerve root." (T. 67). At step two the ALJ also found that plaintiff had mild depression resulting "in mild restriction of her activities of daily living . ." (T. 67). At step three, the ALJ concluded that plaintiff's impairments did not meet or equal any of the listed impairments set forth at 20 C.F.R. Part 404, Subpart P, Appendix 1. (T. 67). At step four, the ALJ determined that plaintiff did not retain the residual functional capacity ("RFC") to perform her past relevant work, which the ALJ identified as skilled, medium work. (T. 68). The ALJ's RFC assessment is as follows: [Plaintiff] retained the residual functional capacity to: lift, carry, push and/or pull up to 20 pounds occasionally and ten pounds frequently (although the [plaintiff] cannot use her upper extremities repetitively for such activities, she is physically capable of using them occasionally for up to 20 pounds and more frequently for ten pounds or less); sit for about six hours in an eight-hour workday, with normal breaks; stand and/or walk for about six hours in an eight-hour work day, with normal breaks; and perform a combination of sitting, standing, and walking to complete an eight-hour workday on a regular and continuing basis; occasionally reach, but not reach above shoulder level; frequently balance; occasionally climb stairs or ramps, but never climb ropes, ladders or scaffolds; occasionally stoop, kneel and crawl; and at least occasionally handle, finger and feel. However, she should avoid operating machinery or heavy equipment, temperature extremes (cold), vibrations, and should not move her neck in a repetitive, rapid manner. As of about March 2001, the [plaintiff]'s ability to lift, carry, push, and/or pull was between ten and 20 pounds occasionally and ten pounds frequently, but not repetitively; her other abilities and limitations remained the same. [Plaintiff] does not have any significant mental limitations. At step five the ALJ used the medical-vocational grids as "a framework" for her decision; she considered plaintiff's age, education, past relevant work experience, her RFC, and testimony from a vocational expert and concluded that plaintiff could perform jobs found in significant numbers in the national economy. These included a 295 registration clerk, usher/lobby attendant, counter clerk (photofinishing), survey worker, and case aide. (T. 69). She thus concluded that plaintiff was not "disabled" under the meaning of the Act on any date through August 5, 2002, the date the record was closed. (T. 69). IV. ALJ Decision: Reversal Required The Commissioner's decision that plaintiff is not disabled must be reversed because the ALJ failed to apply the proper legal standards at the fourth and fifth steps of her analysis. In this case, the ALJ failed to properly identify the weight given to the opinion of a treating physician, she failed to resolve discrepancies between her RFC and the medical source statements that she purportedly assigned "very great weight," and she failed to establish that plaintiff can perform work available in significant numbers in the national economy. A. The ALJ failed to explain the weight, if any, that was given to the opinion of a treating source. The ALJ committed legal error when she failed to assign any weight, or explain the weight she assigned, to the opinion of orthopedic surgeon Gerald A. Coniglio, M.D. "Unless the treating source's opinion is given controlling weight, the administrative law judge must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant or other program physician or psychologist, as the administrative law judge must do for any opinions from treating sources, nontreating sources, and other nonexamining sources who do not work for us." 20 C.F.R. § 404.1527(f)(2)(ii). In this case, ALJ Gregg did not assign controlling weight to the opinion of plaintiffs original treating physician, Jeffrey Hanson, M.D., and plaintiff does not take issue with that decision.[5] (T. 54). In light of that determination, however, Dr. Coniglio's opinion takes on particular significance. Dr. Coniglio examined and/or treated plaintiff on at least six occasions during the period beginning December 11, 2000 and ending March 29, 2001. (T. 803, 833, 836, 837, 840, 847, 848, 851). The record includes pages from six of Dr. Coniglio's examination reports, (T. 803, 833, 836, 840, 848, 851), two complete operative reports, (T. 837, 847), his statement assessing the plaintiffs limitations and the medical findings supporting those assessments. (T. 805-806). He also submitted a letter that further explains his assessment of plaintiff's limitations.[6] (T. 838). 296 The ALJ was well-aware of Dr. Coniglio's opinions, as her decision referenced his findings no less than ten times. (T. 22, 24, 33, 36, 40, 41, 46, 47, 55, 60). In fact, the ALJ refers to Dr. Coniglio as a "treating physician," (T. 60). As such, his medical opinions were entitled to controlling weight under the laws of this Circuit and the Commissioner's own rules. Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003) (the opinion of a treating physician is given controlling weight if it is well-supported by medical findings and not inconsistent with other substantial evidence); see also 20 C.F.R. § 404.1527(d)(2). Despite the repeated references to Dr. Coniglio's opinions in the ALJ's decision, she adopted no part of his medical source statement for use in her RFC assessment. The ALJ was required to explain what weight, if any, she assigned to Dr. Coniglio's opinions. "By not doing so, the ALJ deviated from one of the legal standards she was required to apply to [her] evaluation of the evidence and, at the same time, failed to set forth a crucial issue 'with sufficient specificity to enable [this Court] to decide whether the determination is supported by substantial evidence.'" Torres v. Barnhart, No. CV-01-6051, 2005 WL 147412, at 5, 2005 U.S. Dist. LEXIS 937, at 19 (E.D.N.Y. Jan. 24, 2005) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984)). Failure to explain the weight assigned to Dr. Coniglio's opinions was not harmless. Dr. Coniglio's medical source statement identified significant limitations in plaintiffs ability to lift or carry items weighing even less than ten pounds, an opinion consistent with that of Charles R. Reina, M.D. (T. 805, 924). Dr. Coniglio's statement also identified significant limitations in plaintiffs ability to stand or walk for any longer than one hour during an eight-hour workday. (T. 805). His statement further assessed plaintiffs ability to sit at less than one hour without interruption. (T. 805). Those restrictions could substantially limit plaintiffs ability to perform a full range of sedentary work, and may prevent her from performing any work in the national economy.[7]See 20 C.F.R. § 404.1527(d)(2); Soc. Sec. Ruling 96-9p (1996). Plaintiff was entitled to an express recognition from the Commissioner of the existence 297 of Dr. Conigli's favorable medical source statement and, if the ALJ declined to accept it, the reasons for not doing so. Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999). That is particularly true here because Dr. Coniglio's medical source statement conflicts with the ALJ's RFC assessment. B. The ALJ failed to reconcile discrepancies between her RFC assessment and medical source statements. The ALJ committed legal error when she created, without explanation, a RFC assessment that conflicts with substantial portions of the medical source statements from not only Dr. Coniglio, but also from Dr. Reina and neurologist Seth Zeidman, M.D. The ALJ assigned the medical source statements of Drs. Reina and Zeidman "very great weight," (T. 37, 50), but selectively adopted only the portions of each statement that were least supportive of plaintiff's application for benefits. Under the Commissioner's own rules, if the ALJ's "RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Soc. Sec. Ruling 96-8p (1996). "While the ALJ is not obligated to 'reconcile explicitly every conflicting shred of medical testimony,' [s]he cannot simply selectively choose evidence in the record that supports [her] conclusions." Gecevic v. Secretary of Health & Human Servs., 882 F.Supp. 278, 286 (E.D.N.Y.1995) (quoting Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir.1983)). The plaintiff here is entitled to know why the ALJ chose to disregard the portions of the medical opinions that were beneficial to her application for benefits. Torres, 2005 WL 147412, at 7, 2005 U.S. Dist. LEXIS 937, at 19-20 (citing Gecevic, 882 F.Supp. at 285-286). The ALJ was further required to explain why Dr. Coniglio's opinion was not adopted, since his medical opinion conflicts with the ALJ's RFC assessment. Dr. Reina is a one-time examining physician who saw plaintiff on July 20, 1999. (T. 924). ALJ Gregg assigned Dr. Reina's opinion "very great weight" based in part upon his "thorough and objective review of the [plaintiff]' s complaints . . . as well as his findings upon examination." (T. 50). Dr. Reina's report states that the basis for his opinion is grounded more in symptoms than it is in objective findings, but nonetheless concludes that plaintiff should "avoid lifting with the right upper extremity anything greater than 5-10 lbs. I would avoid reaching above the shoulder level or carrying any object weighing greater than 10 lbs. passively at her side below her waist." (T. 925). The ALJ adopted only that portion of Dr. Reina's statement that restricts plaintiff from reaching above shoulder level. (T. 40, 67-69). She disregarded the lifting/carrying restrictions, and she did so without explanation. (T. 40, 67-69). That was error. Dr. Zeidman examined plaintiff on at least two occasions, once in July 2001, and again in January 2002. (T. 884, 954). He completed a medical source statement on September 14, 2001, before he saw plaintiff a second time. (T. 877-880). ALJ Gregg assigned Dr. Zeidman's opinion "very great weight." (T. 37). Dr. Zeidman stated that plaintiff could lift or carry up to 20 pounds occasionally, and 10 pounds frequently. (T. 877). He further found that plaintiff could stand and/or walk "at least 2 hours in an 8-hour workday," and that she could sit "less than about 6 hours in an 8hour workday." Here, again, the ALJ only adopted the less favorable portions of the doctor's statement when constructing her RFC assessment. In this instance, the ALJ adopted only Dr. Zeidman's 298 weight restrictions, which are inconsistent with the restrictions set by Drs. Reina and Coniglio.[8] The ALJ disregarded Dr. Zeidman's statements pertaining to plaintiff's ability to stand, walk, and sit. Instead, she adopted less restrictive opinions from two review physicians, Janis Dale, M.D. and Charles Oh, M.D. In doing so, the ALJ created another discrepancy between her RFC assessment and the medical source statement of a physician whose opinion was given "very great weight." (T. 37). The ALJ committed legal error when she bypassed the Commissioner's own rules regarding the evaluation of opinion evidence. 20 C.F.R. § 404.1527(d)(1) states, "Generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you." Once again, the ALJ erroneously offered no explanation for her choices. With no explanation provided, it is not possible for the Court to know why, when faced with differing but equally-weighted opinions from two physicians, the ALJ chose to disregard the evidence that was more favorable to plaintiff's claim. Her failure to reconcile the RFC assessment with medical source statements was error, and based upon the testimony given by the vocational expert, the failure was not harmless. C. The Commissioner failed to meet her burden of proof that plaintiff can perform work available in the national economy. I find that the ALJ's hypothetical questions to the vocational expert disregarded the functional limitations found by a physician whose opinion was given "very great weight." Thus, her decision must be reversed. The ALJ erroneously failed to address a number of specific functional limitations as stated by physicians whose opinions were given great weightwhen she posed hypotheticals to the vocational expert. For example, the ALJ's findings of fact include mild depression resulting in mild difficulties maintaining concentration, persistence or pace. (T. 67). The ALJ spends a great deal of time in her decision justifying the additional finding that plaintiff s mental impairments are not "severe" as defined under the Act. Whether or not plaintiff's mental impairments are "severe" or not, however, does not decide the question of whether the impairments are considered when assessing a person's RFC. "In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not 'severe.' While a `not severe' impairment(s) standing alone may not significantly limit an individual's ability to do basic work activities, it may when considered with limitations or restrictions due to other impairmentsbe critical to the outcome of a claim." Soc. Sec. Ruling 96-8p (1996). Other ignored limitations, such as the weight restrictions stated by Dr. Reina, are discussed supra. "It is bedrock Social Security law that the responses of a vocational expert are relevant only to the extent offered in response to hypotheticals that correspond to medical evidence of record." Hall v. Barnhart, No. 03-299-P-C, 2004 WL 1896969, at* 2, 2004 U.S. Dist. LEXIS 16928, at 6 (D.Me. Aug.25, 2004) (citing 299 Arocho v. Secretary of Health & Human Servs., 670 F.2d 374, 375 (1st Cir.1982)). "In order for a vocational expert's answer to a hypothetical question to be relevant, the inputs into that hypothetical must correspond to conclusions that are supported by the outputs from the medical authorities. To guarantee that correspondence, the Administrative Law Judge must both clarify the outputs (deciding what testimony will be credited and resolving ambiguities), and accurately transmit the clarified output to the expert in the form of assumptions." Arocho, 670 F.2d at 375. Portions of the vocational expert's testimony that the ALJ adopted in her decision do not provide substantial evidence that plaintiff can perform work in the national economy. This is because the ALJ did not address substantial functional impairments identified by physicians whose opinions were given great weight when she posed hypothetical questions to the vocational expert. Horbock v. Barnhart, 210 F.Supp.2d 125, 134 (D.Conn. 2002) ("in order for the testimony of a vocational expert to be considered reliable, the hypothetical posed must include all of the claimant's functional limitations, both physical and mental supported by the record.") (quoting Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir.1995)). Having failed to produce reliable evidence, the Commissioner failed to meet her burden at step five of the sequential analysis. Rosa, 168 F.3d at 77. The only question left is whether the Court should order reversal and remand for the immediate calculation of benefits, or for further administrative proceedings. V. Reversal and Remand for Further Administrative Proceedings Under 42 U.S.C. § 405(g), the Court has the authority to affirm, reverse, or modify a final decision of the Commissioner, with or without remand. See Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2004). Although the ALJ erred in each of her two decisions leading to the final decision of the Commissioner, and despite the fact that plaintiffs application languished before the Commissioner for seven years before reaching this Court, this is not a case "[w]here the existing record contains persuasive proof of disability and a remand for further proceedings would serve no purpose." Martinez v. Comm'r, 262 F.Supp.2d 40, 49 (W.D.N.Y.2003) (citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir.1980)). Here, the extent of plaintiffs limitations are not obvious because the record contains numerous conflicting medical source statements. Moreover, even if the Court could discern plaintiffs RFC from the record, this case would still have to be remanded for further administrative proceedings to determine whether plaintiff could perform jobs available in the national economy based upon the new RFC. "`Where there are gaps in the administrative record or the ALJ has applied an improper legal standard, we have, on numerous occasions, remanded to the [Commissioner] for further development of the evidence.'" Rosa, 168 F.3d at 82-83 (quoting Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.1996)). This is a case where a remand to the Commissioner for factual determinations and proper application of the correct legal standards is required. See Pratts, 94 F.3d at 39. On remand, the Commissioner needs to first make factual findings regarding how much weight to assign Dr. Coniglio's opinion, then reassess plaintiffs RFC with citations to the specific medical source statements upon which each of the RFC findings are based. If the Commissioner chooses to incorporate parts of medical source statements into the RFC that are 300 unfavorable to plaintiffparticularly when the inclusion of other statements that have been assigned equal or greater weight would be favorable to plaintiffthe ALJ must explain her decision.[9]See Torres, 2005 WL 147412, at 7-8, 2005 U.S. Dist. LEXIS 937, at 19-20; see also Soc. Sec. Ruling 96-8p (1996). Although ALJ Gregg took great effort to detail the evidence in the record and explain what weight she gave most opinions of record, her RFC assessment is inconsistent with her own explanations. On remand, the discrepancies discussed in the body of this decision should be reconciled. The Commissioner also needs to properly analyze step five in light of the RFC findings made upon remand. Any vocational expert testimony should be based on hypothetical questions that accurately state plaintiffs limitations and RFC. Although a remand here will regrettably cause more delay, the determinations needed at steps four and five cannot be made by this Court, given its limited jurisdiction under 42 U.S.C. § 405(g). Finally, the Appeals Council should consider carefully whether to assign this case to a different ALJ on remand, for several reasons. First, there is evidence in the record of hostility between ALJ Gregg and plaintiffs representative. In several instances during the three different hearings, and in an exchange of letters, there is clear animosity between the ALJ and the representative. (T. 223-25; 242; 469;1085-1088; see also n. 2, supra). Ocasio v. Barnhart, No. 00-6277, 2002 WL 485691, at 10 (E.D.N.Y. Mar.28, 2002) (animosity between plaintiffs attorney and original ALJ warranted remand to a new ALJ). Second, ALJ Gregg has failed twice to apply the correct legal standards in this case. Kolodnay v. Schweiker, 680 F.2d 878, 879-80 (2d Cir.1982) (upholding remand to a new ALJ after the first ALJ did not consider the entire medical record); Ortiz v. Chater, No. 95 CV 3126, 1997 WL 50217, at 3, n. 1 (E.D.N.Y. Jan.30, 1997) ("rather than have the same ALJ review the claims a third time, a fresh look by another ALJ would be beneficial."). Third, throughout her decision, ALJ Gregg makes it clear that she finds plaintiff to be incredible. She also has expressed concerns that plaintiff may suffer from a mental impairment that causes her to lie about or falsely believe that she has pain and other physical impairments (see, e.g., T. 469). This suggests that the ALJ may have formed opinions about the claimant that could possibly prevent an objective review of the evidence and a fair rehearing. See Sutherland v. Barnhart, 322 F.Supp.2d 282, 292 (E.D.N.Y.2004) (noting that the impartiality of an ALJ is "integral" to the disability review process and that "remand to new ALJ will be necessary in those situations which compromise that integrity."). In light of the history of this case, I have concerns about whether the integrity of the proceedings would be compromised by remanding this case to ALJ Gregg for a third time. Although in certain circumstances the Court may order the Commissioner to assign a different ALJ on remand, see Kolodnay, 680 F.2d at 879-80; Sutherland, 322 F.Supp.2d at 292-93, plaintiff has not asked the Court for such relief. The Commissioner, however, should consider in her discretion whether 301 the case warrants a "fresh look" by a new ALJ. See Nunez v. Barnhart, No. 01 CV 5714, 2002 WL 31010291 (E.D.N.Y. Sept.9, 2002) (leaving the decision to assign a new ALJ on remand "to the sound discretion of the Commissioner."); Hartnett v. Apfel, 21 F.Supp.2d 217, 222 (E.D.N.Y.1998) (whether to assign a new ALJ on remand is generally a determination for the Commissioner); see also 20 C.F.R. § 404.940. CONCLUSION The Commissioner's motion for judgment on the pleadings (Dkt.# 3) is denied. Plaintiffs motion for judgment on the pleadings (Dkt.# 5) is granted, in part. The case is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Decision and Order. IT IS SO ORDERED. NOTES [1] "T." refers to the page of the administrative transcript filed by the Commissioner. [2] It appears that the claim of bias was based on the fact that, eight months after the first hearing, attorney Raymond P. Sciarrino wrote to ALJ Eric L. Glazer at the Office of Hearings and Appeals because Mr. Sciarrino was concerned by the length of time it was taking for ALJ Gregg to issue a decision. (T. 127-128). On April 13, 1999, ALJ Gregg responded to Mr. Sciarrino's letter to All Glazer by writing, "You have not alienated me, but I wish you had been more thoughtful, courteous, and given more thought to this situation and written to me directly. . . . Nevertheless, I will address the contentions in your letter as objectively as possible." (T. 132). The ALJ then addressed Mr. Sciarrino's "contentions," and also accused plaintiff of inappropriately calling the ALJ on multiple occasions. (T. 132-136). Mr. Sciarrino responded to All Gregg with a letter clarifying his concerns and stating that plaintiff had not, in fact, called the ALJ. (T. 138-139). The ALJ subsequently wrote to plaintiff that a "correct, appropriate, and fair decision in [her] case" would be issued, and apologized if plaintiff was upset by any misunderstanding the ALJ may have had regarding calls made to the All. (T. 141). [3] In plaintiff's Request for Review of Hearing Decision dated January 9, 2003, counsel, took issue with the ALJ's decision to review her former favorable decision without giving notice to plaintiff that she would do so. The Court notes that the plain language of 20 C.F.R. § 404.946 provides that the All need not give notice prior to the hearing. 20 C.F.R. § 404.946 (". . . if evidence presented before or during the hearing causes the administrative law judge to question a fully favorable determination, [she] will notify you and will consider it an issue at the hearing"); see also McCarthy v. Apfel, 221 F.3d 1119 (9th Cir.2000). [4] The Second Circuit has described the five-step process as follows: First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1. If the claimant has a listed impairment, the Commissioner will consider the claimant disabled without considering vocational factors such as age, education, and work experience; the Commissioner presumes that a claimant who is afflicted with a listed impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform. Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir.1999). [5] The record contains evidence that Dr. Hanson served as plaintiff's primary care physician through at least March 23, 2001, and that he was replaced by Jane L. Kjoller, M.D., on or about April 4, 2001. (T. 890, 992-993). "Although the treating physician rule generally requires deference to the medical opinion of a claimant's treating physician, e.g., [Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993)], the opinion of the treating physician is not afforded controlling weight where, as here, the treating physician issued opinions that are not consistent with other substantial evidence in the record, such as the opinions of other medical experts. See Veino, 312 F.3d at 588 (treating physician's opinion is not controlling when contradicted 'by other substantial evidence in the record'); 20 C.F.R. § 404.1527(d)(2)." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004). In the instant case, the medical opinions submitted by Dr. Hanson to the ALJ were internally inconsistent. (T. 842, 918). Moreover, the record contains a note written by Dr. Hanson to VESID offering to change plaintiff's weight lifting restriction if it would help plaintiff get assistance from VESID. (T. 940). Thus, Dr. Hanson's opinion as the treating physician is not entitled to controlling weight. [6] "The better an explanation a source provides for an opinion, the more weight we will give that opinion." 20 C.F.R. § 404.1527(d)(3). Here, Dr. Coniglio stated that plaintiff's back pain and limitations were attributed to her "injured/inflamed/deranged lumber (sic) disc." He explained that: Such a disc produces pain maximally when one sits, and when one lifts. This is because the disc is maximally bio-mechanically loaded when one sits or when one lifts. It matters not if one lifts a weight. Therefore, lifting, or bending forward, is a particular problem, even without the lifting of weights. Anyone with an injured disc who rides in a car can tell you this, and any house wife can also tell you this as the back pain is acutely exacerbated by making beds, sweeping, etc. Therefore such a patient, without demonstrated and/or documented evidence otherwise, should not be made to lift at all, or sit for any period longer than approximately 15-30 minutes. They should not be made to bend at all. They should be allowed to move about at will, because walking actually relieves the mechanical stress on the disc, and movement relieves the pain and stiffness due to inflammation. The objective findings that [plaintiff] has are tenderness in the lower back, pain and limitation of movement with forward flexion and backward extension, weakness of dorsiflexors and plantarflexors of the feet, positive straight leg raising on the right and left, and sensory changes in the lower extremeties. She also has a suggestion of a positive MRI at L5-S1. The only way this can be confirmed (or negated) is by discography. (T. 838). [7] On May 7, 2002, a vocational expert testified that a weight limitation of eight pounds would restrict plaintiff to less than sedentary work, and that would result in her inability to "perform any work." (T. 1083). [8] Dr. Reina stated that plaintiff should "avoid lifting with the right upper extremity anything greater than 5-10 lbs. I would avoid . . . carrying any object weighing greater than 10 lbs. passively at her side below her waist." (T. 925). Dr. Coniglio stated that plaintiff could lift 10 pounds at one time, five pounds occasionally, and should not lift any amount of weight "frequently," meaning for two-thirds of an 8-hour workday. (T. 805). [9] On remand, the Commissioner must assign weight to the medical source statements of every physician in the record without ignoring either the statements that would be favorable to plaintiff's application or unfavorable statements that might be incorporated into the RFC. 20 C.F.R. § 404.1527(f)(2)(ii).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499995/	445 F. Supp. 2d 267 (2006) Joseph D. ULRICH, Petitioner, v. James BERBARY, Superintendent, Collins Correctional Facility, Respondent. No. 03-CV-0328(VEB). United States District Court, W.D. New York. August 10, 2006. 268 269 Howard Broder, Esq., Rochester, NY, for Petitioner. DECISION AND ORDER BIANCHINI, United States Magistrate Judge. INTRODUCTION Petitioner Joseph D. Ulrich ("Ulrich"), represented by attorney Howard K. Broder, Esq., has brought a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1986 conviction in Cattaraugus County Court on one count of second degree murder (N.Y. Penal Law § 125.25(1)). The parties have consented to final 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 Ulrich's alleged responsibility for the murder of Jack Smith ("Smith"), the fiancé of Ulrich's former girlfriend, Pamela Fisher ("Fisher"). On the evening of June 8, 1984, Smith was shot in the back of the head with a shotgun while sitting in the living-room of the house he shared with Fisher. The murderer apparently fired the shotgun through the window screen, hitting Smith, who was seated in a chair several feet away, in the back of the head. Because of Ulrich's previous involvement with Fisher, he became a suspect in the murder investigation. He was arrested on June 9, 1984, waived his Miranda rights, and gave an exculpatory statement to the police. Several items, including a .12-gauge shotgun and a box of # 6-shot shells, were seized from Ulrich's property with his consent. The New York State Police performed limited testing on the shotgun found on Ulrich's property, determining merely that it was operational. Any further ballistics testing on the shotgun, a pre-World War II, smoothbore model, was not possible because no expended shell cartridges were found at the crime scene. E.g., R.991, 993-94.[1] 270 The Trial Ulrich was tried before a jury in Cattaraugus County Court (Kelly, J.). On January 27, 1986, just prior to opening statements, defense counsel moved in limine to preclude the prosecutor from introducing or making any reference to the shotgun found at Ulrich's residence, arguing that there was "no forensic, scientific, nor ballistic connection between Mr. Ulrich's weapon and the weapon that was used to kill Jack Smith." R.837. The prosecution argued that the evidence would show that the murder weapon was long-barreled and fully choked (as Ulrich's shotgun was) and that this was significant because a shotgun of this type would keep the pellets in a close pattern, as they were when they struck the victim. R.842. At the prosecutor's request, Judge Kelly granted a continuance for the prosecutor to do further research and present additional argument. During this time, the prosecutor contacted Investigator Charles Boone ("Boone") of the New York State Police to ascertain whether any testing could be done to tie the shotgun more closely to the murder, and in particular asked him to determine at what distance did pellet-spread begin to occur. Boone fired the shotgun three times at a paper target from three different distances and measured the gun's pellet spread. On January 28, 1986, at oral argument, the prosecutor asserted that the "firing pattern on this weapon [wa]s consistent with the firing pattern that killed Jack Smith." R.870. Judge Kelly disagreed that the prosecutor had made enough of a showing to admit the shotgun into evidence, noting that it was a "real conjectural connection . . . on what we have got here." R.882. The following day, on January 29, 1986, Judge Kelly altered his initial ruling to the extent that he agreed to entertain an offer of proof, upon the prosecutor's timing, as to whether testimony about the shotgun and the shells should be introduced. Judge Kelly denied defense counsel's request to preclude the prosecutor from commenting about the shotgun and the shells during his opening statement. R.886-87. On February 3, 1986, defense counsel again argued that any proof concerning Ulrich's shotgun should not be admissible because there was no connection between the crime and the shotgun. Judge Kelly indicated that his "understanding . . . was that the connection as to the shotgun and as to the testimony would be there would be a reasonable connection made between the events and the shotgun. All we have now is an event that shows the results of a shotgun and a defendant that owns a shotgun. I thought there was going to be more of a connection demonstrated." The prosecutor responded that Boone would testify concerning the firing pattern of defendant's shotgun and that his testimony would demonstrate that the firing pattern observed on the deceased was "consistent with this particular weapon delivering the fatal shot." Judge Kelly reiterated his original ruling concerning the admission of the actual shotgun and ammunition but allowed testimony about those items. At the jury trial, Fisher testified that she had dated Ulrich for about nine months. After she ended the relationship in 1983, Ulrich was very unhappy about the outcome and continued to leave notes for Fisher at her residence, call her frequently, and drive by her house. R.1471-72. In December of 1983, Fisher related that she began dating Smith; he moved in with her at the end of April or early May in 1984. Ulrich informed Fisher that he did not like Smith and did not want her living with Smith. R.1474. The trial court allowed Fisher to testify that, on one occasion, 271 Ulrich telephoned Fisher and informed her that he had an extra tire for her car if she ever needed one; a week or two later, Fisher discovered that the tires on her car had been slashed. R.1472. Fisher recalled that a week after replacing the tires, she found that the valve stems had been tampered with. R.1473. Several days later, Fisher's car was burned. R.1474. After the incident involving the car fire, Fisher and Smith decided that Smith would move out since both believed that his presence was precipitating these acts of vandalism. R.1476. Fisher testified that she was frightened and therefore asked Ulrich to stay with her for a few days. Id. According to Fisher, however, the arrangement did not work out, and she asked Ulrich to leave. Ulrich did so, and Fisher then reunited with Smith. On May 17, 1984, the two moved to 150 Chestnut Street in the Village of Gowanda. R.1476-77. Three days later, on Fisher's birthday, they became engaged. R.1477-78. On June 4, 1984, Fisher testified that she went to Ulrich's house to retrieve some of her personal items. R.1484. At that time, Fisher told Ulrich of her engagement to Smith; Ulrich said that she was "dumb" for getting engaged to Smith and asked her to stay with him. Id. As she was leaving, Fisher recalled that Ulrich said that if anything happened to Smith, or between her and Smith, Ulrich would always be there for her. R.1485. Fisher's sister, Wanda Gearman ("Gearman"), testified for the prosecution that she still spoken often with Ulrich, even after Fisher and he broke up. When Gearman saw Ulrich, he would often be on the verge of tears. R.1080. Ulrich frequently called Gearman and told her that his break-up with Fisher was "tearing him to pieces." Id. Ulrich expressed his dislike of Smith to Gearman on several occasions, saying that Smith was a "snake." Ulrich said that he had hated Smith since high school and that Smith would get what he deserved. R.1081. Gearman related that Ulrich repeatedly asked her for the address where Fisher and Smith were living. In June of 1984, Gearman relented and gave Ulrich the address. R.1081-82. Robert Ellis ("Ellis"), the president of a realty company in the village of Springville, where Ulrich resided, testified about a visit he received from Ulrich on June 7, 1984. R.1012. That day, Ulrich asked Ellis to come appraise his farm because Ulrich wanted to sell it. Id. According to Ellis, Ulrich said that he did not have the "heart or the will to continue farming" because he was so upset that his girlfriend had left him. R.1012. Ellis described Ulrich as "somewhat emotionally distraught" at the time. R.1013. To rebut Ellis's testimony as to why Ulrich was interested in selling the farm, defense counsel attempted to show that Ulrich had told Ellis that he had a bad back. R.1019. Ellis testified that, at one time, Ulrich had said that he was having trouble doing the work required to keep the farm going due to his back problems. R.1020. Betty Swanson ("Swanson"), a salesperson at Ellis's agency, testified that later during Ulrich's visit, he said to her, "[W]hat you see here is a broken man." R.1026. According to Swanson, Ulrich said that he had purchased the farm for himself and Fisher, and that he loved Fisher but she did not want anything to do with him so he was going to sell the farm and move to Florida. R.1026-27. Swanson characterized Ulrich as "upset" at the time. R.1027. Marsha Tierney ("Tierney"), Fisher's neighbor, testified for the prosecution that she lived at 120 Chestnut Street (Fisher 272 and Smith lived in the first floor of a two-family duplex at 150 Chestnut Street, which was located on a corner lot. Tierney's house was the seventh house from the corner. R.1042-43.) Tierney testified that on June 7, 1984 (the night before Smith was killed), she arrived home from bingo at around 10:00 p.m. R.1043. At about 11:00 p.m., she looked out her side-door to make sure she had turned the car headlights off, and was startled to see a man walking up her driveway. R.1043-44. Tierney described the man as 5'11", huskily built, weighing about 200 pounds, wearing a dark-colored coveralls, and carrying what appeared to be a motorcycle helmet. Id. Tierney thought that the man had brown hair and might have had a moustache. R.1045. After being seen by Tierney, the man turned around and walked out of the driveway, went up Chestnut Street in the direction of Fisher's residence, and then went down two houses and disappeared between the houses. R.1045-46. Tierney noticed a red or orange motorcycle parked in the street. R.1046. About thirty minutes later, Tierney heard the motorcycle start up and saw it go up to Jamestown Street,[2] make a U-turn and head back down Chestnut Street. R.1047-48. Tierney testified that she believed that the motorcycle had an electric starter. Fisher also had gone to bingo on the evening of June 7th while Smith remained at home to baby-sit Jeremy, her son from a previous marriage, and Charlie, Smith's nephew. T.708. Fisher returned home at about ten minutes to eleven o'clock, and she and Smith watched the news on television before going to bed. Id. Milford Fuller ("Fuller") testified that he rented the lower half of a two-family dwelling from Ulrich, who lived upstairs. R.1135-36. Fuller related that he was "very good" friends with Ulrich and liked him "a lot." R.1168. Fuller testified that he worked the 3:00 to 11:00 p.m. shift at the Quaker State gas station in Springville. He described the routine that he followed virtually every night: read the pumps, count the money, drop the money off at his supervisor's house, stop for something to eat, and go home. R.1142. Ulrich was familiar with Fuller's nightly routine Id. On June 7, the night before the murder, Fuller arrived home between 11:45 p.m. and midnight, at which time he saw Ulrich drive his motorcycle onto the far end of the lawn, drive around behind a building, and come up between the barn and a trailer that was on the premises. R.1136-37. Fuller observed that Ulrich was wearing "close to a greenish color pair of coveralls" and was driving a red Honda motorcycle with silver fenders. R.1137-38. Fuller knew that the motorcycle was unregistered. R.1141. Fuller and Ulrich conversed briefly; Ulrich mentioned that he had taken the motorcycle out for a drive. R.1151. The following night, June 8th, Ulrich visited Fuller at the gas station at about 6:00 or 6:30 p.m., and again at 8:30 or 8:45 p.m. Both times, Ulrich drove his El Camino to the station, which was 2.3 miles from the duplex he shared with Fuller. R.1138-41. Fuller related that Ulrich usually drove his El Camino to the gas station when he would stop by to visit. R.1141. Fisher testified that on the night of June 8th, she ate dinner with Smith and her son, Jeremy, between 5:00 and 6:00 p.m. R.1478-79. They had planned to go fishing afterwards, but Jeremy fell asleep on the 273 living room floor while they were getting ready, so they decided to go the following morning. R.1480-81. At around 10:20 or 10:25 p.m., Fisher went to the store to buy beer and milk. R.1482. When she returned about ten or fifteen minutes later, she observed Smith in the chair by the window, apparently asleep. R.1483. As she got closer, she realized that Smith was seriously injured, and she called for emergency help. R.1483-84. Meanwhile, at about 10:15 p.m. on June 8th, George Hager ("Hager") and Arnold Samuelson ("Samuelson") were sitting on the front porch of Samuelson's house, which was next-door to Fisher's house at 150 Chestnut Street. R.1061. A motorcycle turned onto Chestnut Street from Jamestown Street and parked next to the curb about four houses away from Samuelson's. R.1061. The driver dismounted, removed his helmet, and walked toward the two men. R.1062. When he reached Hager's residence, which was two doors down from Samuelson's house, the driver walked down Hager's driveway. R.1061-62 Hager was unable to see precisely what the driver was wearing but could see that it was loose-fitting. R.1064. Hager described the driver as about 5'10" and 180 pounds. R.1069. Hager then walked over to his house and checked his driveway and backyard, but saw nothing. R.1063. At 10:25 p.m., as Hager left to pick up his grandson, he observed that the man's motorcycle was red with silver fenders. Id. Hager observed no other motorcycles on the street at that time. Samuelson, who had been sitting with Hager, also saw the motorcycle drive by. After Hager left, Samuelson went inside his house. Shortly thereafter, he heard a loud explosion. R.1072. About a minute later, he turned on the front light and opened the screen door. Id. He saw a man about 5'9" or 5'10" and weighing about 190 pounds walking briskly by the house; the man slowed his pace when the light went on. According to Samuelson, the man was wearing a motorcycle helmet, some type of jacket, and baggy pants; it appeared to Samuelson that the man was "rather heavily dressed" for a "pretty warm night." R.1073. After the man went by, Samuelson heard the motorcycle start up and drive away down Chestnut Street. Id. Meanwhile, at his apartment across the street from the Quaker State gas station, John Buetler ("Buetler") was sitting outside on his porch enjoying a few beers. T.338. Shortly before 11:00 p.m., Buetler went inside to get a beer. When he returned to the porch, a motorcycle[3] had parked in the parking lot next door. A man who appeared to have a mustache, in his late 20s or early 30s, threw some things on the ground, and walked across the street and into the gas station. R.1109-10. After a few minutes, he walked back to his motorcycle, picked something up off the ground, and drove away. Id. The motorcyclist did not drive in front of the gas station but went out through the large parking lot onto Route 39. R.1110. According to Buetler, the man appeared to be wearing a heavy winter jacket. Id. Fuller, the Quaker State employee, testified that Ulrich appeared back at the gas station between 10:45 and 11:00 p.m. R.1139. This time, Fuller did not observe that Ulrich had a vehicle with him; he noted that this fact was unusual since Ulrich usually drove his El Camino. R.1141. 274 Ulrich bought a candy bar and briefly conversed with Fuller about Ulrich's watch and the fact that it was running ten minutes off. R.1140. Fuller confirmed that no one else came into the gas station while Ulrich was there and no one else came in after he left. R.1141. Ulrich stayed for only a few minutes and left just before Fuller closed the station at 11:00 p.m. R.1140-41. Shortly after 11:00 p.m. on the night of June 8th, Robert Botsford ("Botsford") was sitting in his backyard when he saw a fast-moving motorcycle turn off North Street into one of the driveways in the trailer park where Botsford lived. Botsford testified that the motorcycle moved rapidly through the trailer park, drove up onto the old railroad bed, and then the ignition was cut off. R.1176. The motorcycle did not come back into view. Botsford remained outside until 2:00 or 2:30 a.m. Id. Botsford's wife, Betty, also heard the motorcycle and caught a glimpse of it before it drove up onto the railroad bed. R.1185-86. She testified that it was a street motorcycle, not a dirt bike, and that the driver was wearing a helmet. R.1186-87. Mrs. Botsford testified that the railroad bed was so grown over that it looked like a "jungle" and that she had never seen a motorcycle on it. R.1176-77.[4] Between 11:45 p.m. and midnight, Fuller arrived home, as per his usual custom. R.1142. Ulrich, freshly showered and shaved, was sitting on the porch of the duplex that he and Fuller shared. He engaged Fuller in a brief conversation before Fuller went inside his house. R.1142-44. The next day, June 9th, Ulrich called his employee, Michael Masterson ("Masterson"), and asked him to continue cultivating the potato field. R.1410-11. He instructed Masterson to pick up where he had left off the previous day. R.1412. Masterson began at noon and worked for three hours, cultivating approximately thirty rows in an area which stretched from the rear of Ulrich's residence to the back of the potato field. R.1399. When members of the Town of Gowanda Police Department arrived at the scene, they found Smith seated in the chair in the living room, bleeding profusely from the back of the head and probably already dead. It was apparent that he had been shot through the screen window as he sat in the chair. Smith was rushed to the hospital by ambulance and pronounced dead on arrival. The scene was secured until State Police investigators arrived. Investigator Terrance Roland of the State Police removed the window screen from the window directly adjacent to the chair in which Smith's body had been found. There was a hole in the screen indicating that the screen had been pushed in from the outside. Gowanda Officer Thomas Howard estimated that the window from which Investigator Roland removed the screen was three to four feet from where the victim's body was discovered[5] and that there was a hole in the screen 275 giving the appearance that a shotgun had been fired through it. R.290-91. When the police were shown where the red motorcycle had been parked, they observed an imprint the motorcycle tire had made. This area was secured until a plaster-of-paris moulage of the tire print could be made. R.1360-61. Laurence Murphy, a forensic scientist with the State Police, testified that the tread design of the moulage was consistent with tread of the tires on Ulrich's motorcycle. R. 1459-60. In the area where Buetler had seen the motorcyclist park before going into the Quaker State station, the police recovered a pair of green coveralls but forensic testing did not link them conclusively to any individual. On June 9th, the day after the murder, State Police Investigators Leonard Kwilos and Timothy Howard visited Ulrich's residence. They advised Ulrich of his Miranda rights, and he agreed to speak with them. R.1209-11. Ulrich's statements to the investigators were generally exculpatory. He admitted visiting the Quaker State gas station on June 8th, the night of the murder, but stated that he drove his El Camino there. R.1213-14. He said that he had driven his motorcycle on June 7th, but denied riding it at all on June 8th. R.1212. He explained that he had recently used his .12-gauge shotgun to shoot pigeons on his farm because he had been having a problem with them. R.1214. The .12-gauge shotgun owned by Ulrich was a "Victor Ejector" model made by the Crescent Firearms Company. R.1428. The officers found it in one of Ulrich's outbuildings and took possession of it with Ulrich's consent. R.1320. The weapon could be quickly broken down into three pieces. R.1238, 1429. Ulrich also showed the police his Honda 750 motorcycle, which was red with silver fenders, and permitted the officers to photograph it. R.1236-37. Ulrich also allowed them to take a picture of him.[6] In addition, Ulrich surrendered a quantity of ammunition, including a Remington .12-gauge shotgun shell containing # 6-shot. R.1321-22. During the interview with the police, Ulrich spoke of his love for Fisher, saying that "everything he did was for her." R.1239-40. Ulrich became teary-eyed and emotional when speaking of her. He stated that he had seen her on June 4th and had "begged" her to come back to him; that is when she told him that she was engaged to Smith. Id. Investigator Kwilos, who grew up on a farm, saw no evidence of pigeons on Ulrich's farm and did not observe any spent shotgun casings to indicate that a shotgun recently had been fired on the premises. R.1239. Investigator Forster, who also had familiarity with pigeons, saw no indication of a pigeon problem on Ulrich's farm. R.1367-68. Masterson, who had worked for Ulrich for several summers, never saw Ulrich shoot a shotgun on the farm, never personally observed any indication of a pigeon problem, and was never told of any such problem by Ulrich. R.1396-97. Becky Zittle, who worked for Ulrich in 1983, testified that she never saw any pigeons on the farm and never saw Ulrich fire a shotgun around the premises. R.1504-05. 276 Pathologist Dr. Jose Galindo performed the autopsy and determined that Smith had been killed by a shotgun blast to the back of his head. Dr. Galindo observed an "irregular hole in the back of the head . . . measuring about three by two inches." R.1038. The autopsy revealed the following items embedded in Smith's head: a piece of plastic shotgun wadding known as a "power piston" and 200 shotgun pellets and lead fragments. Id. Investigator Boone, a firearms examiner with the State Police, determined that Smith had been killed with a pre-World War II, smoothbore, .12-gauge Remington shotgun cartridge loaded with # 6-shot pellets. R.1433-34. As discussed above, Boone initially tested the weapon on June 26, 1984.[7] He was unable to give an opinion as to whether the shotgun was in fact the murder weapon; in order to place a particular shotgun a the crime scene, he would have needed the expended cartridge casing. However, no spent casings or spent shells were recovered at the crime scene; the perpetrator either picked up any shell fragments or never ejected the shell in the first place. Investigator Boone summarized the results of his shot pattern testing performed on January 28, 1986: he obtained a hole measuring approximately 1 1/4" by 1 1/4" at four feet; 1 1/2" by 1 1/2" at five feet, and 1 3/4" by 1 3/4" at six feet. Investigator Boone did not fire his shots through a window screen. Defense counsel questioned Boone about the fact that at four feet all of the shot pellets fired from the shell were contained within the shot pattern but did not question him about the results of his tests at either five or six feet. The jury returned a verdict convicting Ulrich as charged in the indictment. Ulrich was sentenced to an indeterminate term of fifteen years to life in prison. Direct Appeal Represented by new counsel on direct appeal, Ulrich argued (1) that the evidence against him was legally insufficient; (2) that the prosecutor improperly was permitted to introduce testimony that (a) petitioner possessed a .12-gauge shotgun and one Remington # 6-shot shell (although the gun and shell were not introduced into evidence), (b) petitioner allegedly acted strangely toward Fisher the day before trial;[8] (c) Fisher's tires were slashed after petitioner had called her and questioned her about her tires, and (d) the tire impression in the vicinity of the homicide was made by the motorcycle driven by the murderer; and (3) the jury instruction on circumstantial evidence was erroneous. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed Ulrich's conviction. People v. Ulrich, 152 A.D.2d 993, 543 N.Y.S.2d 798 (App.Div. 4th Dept.1989). The Court of Appeals denied leave to appeal, People v. Ulrich, 74 N.Y.2d 952, 550 N.Y.S.2d 287, 549 N.E.2d 489 (N.Y.1989), and denied petitioner's motion for reconsideration, People v. Ulrich, 75 N.Y.2d 818, 552 N.Y.S.2d 569, 551 N.E.2d 1247 (N.Y. 1990). 277 First C.P.L. § 440.10 Motion On August 3, 1995, Ulrich collaterally attacked his conviction by means of a pro se motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440. 10, alleging that the prosecutor had violated its obligation under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to turn over certain allegedly exculpatory material to defense counselnamely, Investigator Boone's notes regarding his shot pattern testing on January 28, 1986, of the shotgun found at Ulrich's farm.[9]See R.164 (Boone's notes). Ulrich argued that "had the undisclosed shot pattern report been given to the defense,[10] the shot pattern report would have indicated that the .12 gauge shotgun was not consistant [sic ] with that of having been a 'three to four feet muzzle to target distances [sic] shot that killed Mr. Smith[.]" Defendant's Affidavit in Support of First C.P.L. § 440.10 Motion at pg. 9 (Respondent's Answer, Exhibit B). Ulrich stated that he had hired his own firearms expert, Richard J. Janelli, who reportedly had obtained a shot pattern from the shotgun found at Ulrich's residence that was inconsistent with the diameter of the wound pattern in the victim's head. Id.; see also June 30, 1993 Report submitted by Richard Janelli as an exhibit to the First C.P.L. § 440.10 Motion, R.411-14 ("I am unable to reproduce a hole to the measurements given by the Medical Examiner without a hole being caused by the [.12-gauge plastic] wad with the use of this shotgun."). The County Court (Nenno, J.) denied the motion, holding that Ulrich had failed to show a "reasonable possibility that such information [i.e., Boone's notes] available at the time of trial would have brought about a different result." January 29, 1997 County Court Order Denying First C.P.L. § 440.10 Motion at 2 (citing People v. Vilardi, 76 N.Y.2d 67, 555 N.E.2d 915, 556 N.Y.S.2d 518 (N.Y.1990)) (Respondent's Answer, Exhibit B). Initially, Judge Nenno denied an evidentiary hearing. However, he later changed his mind and appointed Donald Thompson, Esq. to represent Ulrich and ordered an evidentiary hearing pursuant to C.P.L. § 440.30. Now represented by attorney Thompson, Ulrich filed a re-worked C.P.L. § 440.10 motion, alleging the same "Brady/Rosario"[11] claim with respect to the one 278 page of notes made by Boone during his January 28, 1986 re-test of the shotgun that. The County Court (DiTullio, J.) presided over the evidentiary hearing, which was held on August 11, 1997; October 10, 1997; and December 12, 1997. Defense counsel Joel Daniels ("Daniels") testified that if he had been provided with Boone's notes prior to trial, it "may have helped . . . considerably towards obtaining a more favorable verdict" because Boone's notes "show that the shot pattern testing may be inconsistent with the width of the wound that was demonstrated on the back of [the victim's] head." Hl. 16.[12] Daniels testified that if he had the notes, he "may have" questioned Boone about the shot pattern distance at six feet because that "would also have showed a narrow shot pattern and that would have been helpful to the defense," since the "shot pattern was narrower than the wound on the back of the victim's head." H1.17. On the issue of whether he had received the notes, attorney Daniels stated on cross-examination that he had "no present recollection of receiving" them but that it was "possible that [the prosecutor] may have" given him a copy. H1.22. Attorney Daniels conceded that when he was cross-examining Boone, he asked Boone about the barrel size, which was one of the items mentioned on the notes, and Boone indicated that he had obtained a measurement of .690 inch.[13] H1.23. Boone also said, "Yes, I have that here." Attorney Daniels conceded that Boone "may have" been referring to notes that he had with him. Id. In addition, Daniels admitted that "the shot pattern [at] four and five and six feet . . . was made out on direct examination[.]" H1.24. When asked which items in Boone's notes were not brought out during Boone's testimony, attorney Daniels stated that he did not "recall specifically." H1.25. He conceded that after hearing Boone's testimony, he did not ask for a continuance. Id. The prosecutor who handled Ulrich's case, Larry Himelein ("Himelein"), had become a County Court Judge at the time of the C.P.L. § 440.10 hearing. He testified that he asked Boone to do some additional testing on the shotgun to "[t]ie it enough so that Judge Kelly would . . . admit it into evidence[.]" H2.47. He did not recall asking for any specific tests to be performed, and did not know the particulars of the tests Boone performed (i.e., whether he fired the gun through a window screen). Himelein testified that Boone did not send him a copy of the report of the re-test since it was in the "days before fax machines;" rather, he brought the original with him to trial. H1.32. Himelein's "recollection [wa]s that he brought his original with him and that Mr. Daniels not only saw it, but had it in his hands at one point as he was . . . questioning Mr. Boone." H1.32-33; 34.[14] Investigator Boone could 279 not recall whether he provided the notes to the prosecutor or whether trial counsel had the testing notes during his cross examination. H3.40. In response to one of defense counsel's questions, Investigator Boone stated, "Yes, I have that here," and he assumed that by "it" he was referring to his notes. H3.81. Petitioner's firearms expert, Richard Janelli, testified that the hole in the window screen at the victim's residence was not made by a shotgun, although it is conceded that the victim's fatal wound was caused by a shotgun.[15] Investigator Boone testified that he did not give an opinion at trial as to whether Ulrich's shotgun was the murder weapon; he explained that there was no way to determine what weapon was used to murder Smith because there were no expended cartridge casings or shells found at the scene. H3.37. Investigator Boone testified that his purpose, during the re-test, was to determine at what distance the shotgun pattern started to present a pellet spread. H3.43. Investigator Boone testified that he did not fire the shotgun through a window screen during any of this test shots. H3.55. Dr. Fazlollah Loghmanee, the Associate Chief Medical Examiner for Erie County, testified as a rebuttal witness for the prosecution. Dr. Loghmanee testified as to the "billiard ball effect ricochet" which occurs when shotgun pellets hit the back of a human skull, which is spherical and covered with skin; the pellets in front are stopped by the skull or skin, and the ones traveling behind hit the ones stopped in front and disperse. H3.86. This causes a hole that is larger than what one would expect if one were to shoot the shotgun through a different medium. Id. Dr. Loghmanee testified that the irregularity of the wound's shape suggested that there was a reentry, meaning that the pellets went through an obstacle before hitting the victim's skull. H3.98. In a written decision dated May 3, 1998, Judge DiTullio reversed Ulrich's conviction, finding as a matter of fact that the prosecution had not turned over Boone's notes to the defense. R.14-17. Judge Di-Tullio commented that Janelli's hearing testimony was "`indeed significant because it tend[ed] to establish that the defendant's shotgun, a lynchpin in the People's circumstantial case, was not the murder weapon.' " R.17-18 (emphasis in original). On October 1, 1999, The Appellate Division, Fourth Department, of New York State Supreme Court, reversed Judge Di-Tullio on the law and the facts, holding that while Judge DiTullio's determination was "entitled to great weight," her "finding that the People failed to provide defense counsel with a copy of the notes of a witness who testified at trial [was] against the weight of the evidence." People v. Ulrich, 265 A.D.2d 884, 697 N.Y.S.2d 410 (App.Div. 4th Dept.1999) (internal citations omitted). The Appellate Division went on to hold that, even if defense counsel had not been provided with the notes, the evidence was "insufficient to support the determination to vacate the judgment of conviction." Id. at 885, 697 N.Y.S.2d 410. Pursuant to C.P.L. § 440.10(1)(f), a hearing court is authorized to vacate a judgment of conviction upon proof that "[i]mproper and prejudicial conduct not appearing in the record occurred" during the trial, "which conduct, if it had appeared 280 in the record, would have required a reversal of the judgment upon an appeal therefrom[.]" Id. (quoting N.Y.Crim. Proc. Law § 440.10(1)(f)). The Appellate Division noted that a defendant bears a more stringent burden on collateral review and, in order to justify a reversal based on a Rosario violation, must demonstrate "prejudicemeaning a reasonable possibility that the prosecution's failure to make Rosario disclosure materially contributed to the verdict[.]" Id. (quotation omitted). The Appellate Division held that the evidence at the hearing [was] legally insufficient to support the court's conclusion that the alleged failure to furnish the one-page notes of the firearms examiner deprived defendant of effective cross-examination and the opportunity to engage his own firearms examiner. With the exception of a single parenthetical phrase, the notes were identical to the trial testimony of the firearms examiner concerning the shot pattern tests that he performed on defendant's shotgun after trial had commenced.[16] Both the testimony and the notes reflected that the testing resulted in shot patterns that were smaller in circumference than the wound in the victim's skull, thus suggesting that defendant's shotgun was not the murder weapon. The parenthetical notation "pellets starting to spread" after the result of the six-foot shot pattern test provides no material information beyond that provided by the witness's testimony. Therefore, it cannot reasonably be concluded that the failure to disclose the notes affected the cross-examination of that witness by defendant's trial counsel or his decision not to retain his own firearms expert. Thus, notwithstanding the court's determination that the notes were not furnished, the motion should have been denied based on defendant's failure to establish a reasonable possibility that the alleged Rosario violation materially contributed to the verdict. Id. Second C.P.L. § 440.10 Motion Now represented by his current attorney, Howard K. Broder ("Broder"), Ulrich filed a second motion pursuant to C.P.L. § 440. 10, alleging that trial counsel Daniels was ineffective in failing to "take measures to adduce affirmative proof that the recovered shotgun was not the murder weapon once counsel was provided with [Boone's] notes and other evidence suggesting that the shotgun was not the murder weapon." Petitioner's Brief on Appeal of Denial of Second C.P.L. § 440.10 Motion at 31 (Respondent's Exhibit C). Although on his first C.P.L. § 440.10 motion Ulrich claimed that trial counsel had not been furnished with Boone's notes, he changed tack following the Appellate Division's order reversing Judge DiTullio's findings, and argued on the second C.P.L. § 440.10 motion that Daniels did have the notes all along, and that he should have sought further testing of the shotgun based on them. On October 19, 2000, the County Court (Martoche, J.) denied the motion on procedural grounds, noting that the claim of ineffective assistance of counsel could have been raised on direct appeal but unjustifiably was not. See N.Y.Crim. Proc. Law § 440.10(2)(c), (3)(c). The Appellate Division (Hurlbutt, J.) granted leave to appeal on March 22, 2001, but then summarily 281 affirmed Judge Martoche's decision based on the reasons set forth in the order appealed from. The Habeas Petition This timely habeas petition followed in which Ulrich raises the following grounds for relief: (1) the prosecution violated its Brady obligations by failing to disclose Investigator Boone's notes; (2) trial counsel was ineffective in failing to retain a firearms expert to affirmatively disprove that Ulrich's .12-gauge shotgun could have been the murder weapon; and (3) appellate counsel was ineffective in failing to argue that trial counsel rendered constitutionally inadequate assistance. For the reasons set forth below, the petition is denied. DISCUSSION Standard of Review and Procedural Default The filing of Ulrich's petition post-dates the enactment the Anti-terrorism and Effective Death Penalty Act ("AEDPA")[17] on April 24, 1996, which mandates that the federal courts give considerably more deference to the state courts' adjudications of habeas petitioners' constitutional claims. AEDPA's revisions of the federal habeas statute, codified at 28 U.S.C. § 2254, govern the disposition of Ulrich's petition. Pursuant to AEDPA, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication on the merits 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). Respondent has raised the defense of procedural default with respect to Ulrich's ineffective assistance of trial counsel claim and Brady claim, but concedes that with respect to the ineffective assistance claim, this is a situation "in which the merits of petitioner's claims ought to be addressed first." Respondent's Memorandum of Law at 16 (Docket # 8) (citing Dunham v. Travis, 313 F.3d 724, 729-30 (2d Cir.2002) (holding that hurdling the procedural default issue to reach the merits of a habeas petition is justified where the underlying issue is easily resolvable against the petitioner while the procedural bar issue involves complicated issues of state law)). Respondent then goes on to argue the substance of Ulrich's ineffective assistance of trial counsel claim. Similarly, with respect to the Brady claim, respondent also argues that the claim substantively is without merit. Because it is more efficient to resolve Ulrich's claims on the merits, and because respondent has addressed the merits of the claims in his pleadings, the Court, in the interest of fairness and judicial economy, will address both of these claims on the merits. See Dunham, 313 F.3d at 729-30. Respondent has not raised the defenses of procedural default or non-exhaustion with respect to the ineffective assistance of appellate counsel claim. Indeed, this claim appears to be fully exhausted and properly before this Court. Merits of the Petition 1. Brady Claim "To the extent that the prosecutor knows of material evidence favorable to 282 the defendant in a criminal prosecution, the government has a due process obligation to disclose that evidence to the defendant." United States v. Avellino, 136 F.3d 249, 255 (2d Cir.1998) (citing Kyles v. Whitley, 514 U.S. 419, 431, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)); Brady v. Maryland, 373 U.S. at 87, 83 S. Ct. 1194 (holding suppression by the prosecution of evidence favorable to the accused "violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution")). Information coming within the scope of this principle includes not only evidence that is exculpatory (i.e., going "to the heart of the defendant's guilt or innocence"), but also evidence that is useful for impeachment because it has "the potential to alter the jury's assessment of the credibility of a significant prosecution witness." Id. (citing Giglio v. United States, 405 U.S. 150, 154-55, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) ("When the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule.") (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)). As the Supreme Court has explained, there are three components to a true Brady violation: "(1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). The Appellate Division found, as a fact, that the defense was provided with the notes made by Boone, the firearms examiner, during his re-test of the shotgun. See People v. Ulrich, 265 A.D.2d at 884, 697 N.Y.S.2d 410, supra. Pursuant to AEDPA, federal habeas courts are required to give special deference to state courts' factual findings, and must presume them to be correct unless the petitioner adduces "clear and convincing evidence" to rebut that presumption. 28 U.S.C. § 2254(e)(1). In finding that the prosecution had not "suppressed" Boone's notes, the Appellate Division stated, At the CPL 440.10 hearing, defendant's trial counsel testified only that he had no recollection of receiving a copy of the witness's notes, which consisted of a single page. He further stated that "the reason I don't believe I got a copy is that when I looked through my file specifically looking for the notes, I could not find them." On the other hand, the trial prosecutor testified to his specific recollection that defendant's trial counsel had been furnished with the notes and had used them in cross-examining the witness at issue, a State Police firearms examiner. Most significantly, the trial record reflects that, in response to a question on cross-examination, the firearms examiner responded: "Yes. I have that here", and then furnished the diameter of defendant's shotgun muzzle, a measurement found in no other document save the notes at issue. Despite a consistent pattern of inquiring of the trial witnesses whether they had any notes or memoranda concerning their testimony, defendant's trial counsel did not so inquire of the firearms examiner, thus supporting the inference that he had already been furnished with the notes of that witness. We conclude, therefore, that defendant failed to meet his burden of establishing by a preponderance of the evidence that defense counsel was not furnished with the notes of the firearms examiner Id. at 884-85, 697 N.Y.S.2d 410 (citation omitted). Ulrich has offered nothing to rebut the presumption of correctness that 283 must be accorded to the state court's factual findings detailed above. Indeed, the Appellate Division's finding is fairly supported by the record of the C.P.L. § 440.10 hearing and trial. Moreover, as the Appellate Division found, all of the essential information in Boone's notes was disclosed to the jury either during his direct examination or cross-examination: With the exception of a single parenthetical phrase, the notes were identical to the trial testimony of the firearms examiner concerning the shot pattern tests that he performed on defendant's shotgun after trial had commenced. Both the testimony and the notes reflected that the testing resulted in shot patterns that were smaller in circumference than the wound in the victim's skull, thus suggesting that defendant's shotgun was not the murder weapon. The parenthetical notation "pellets starting to spread" after the result of the six-foot shot pattern test provides no material information beyond that provided by the witness's testimony. Therefore, it cannot reasonably be concluded that the failure to disclose the notes affected the cross-examination of that witness by defendant's trial counsel or his decision not to retain his own firearms expert. Thus, notwithstanding the court's determination that the notes were not furnished, the motion should have been denied based on defendant's failure to establish a reasonable possibility that the alleged Rosario violation materially contributed to the verdict. Id. (emphasis supplied). "`Evidence is not "suppressed" if the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence.'" United States v. Zackson, 6 F.3d 911, 918 (2d Cir.1993) (quoting United States v. LeRoy, 687 F.2d 610, 618 (2d Cir.1982), cert. denied, 459 U.S. 1174, 103 S. Ct. 823, 74 L. Ed. 2d 1019 (1983) (citations omitted in original)); accord, e.g., Davis v. United States, Nos. 98-CV-0541E(F), 92-CR157E, 1999 WL 1067575, at 10 (W.D.N.Y. Nov.17, 1999) (rejecting Brady claim based on the government's failure to disclose items relating to the plea agreement made with the petitioner's co-defendant because the information was not "suppressed" since "during the examination of the co-defendant at trial, the petitioner's attorney elicited a response that clearly indicated a plea agreement had been entered into with the prosecution"). As the Appellate Division found, trial counsel had all of the "essential facts" necessary for him to take advantage of this allegedly exculpatory material as it came out both on direct and cross-examination of Investigator Boone. Moreover, even if there was a failure to disclose, which this Court does not find to be the case, Ulrich was not prejudiced because the jury had before it testimony to the effect that the size of the entry hole in the back of the victim's head was larger than any of the holes that resulted when Investigator Boone test-fired the shotgun. (The autopsy showed that the fatal wound in the victim's skull was an irregularly shaped hole about 3" by 2" while the shot patterns fired by Investigator Boone at distances of four, five and six feet produced circular holes with diameters of approximately 1-1/4", 1-1/2", and 1-3/4", respectively.) Thus, the factual basis for the inferences that Ulrich wished the jury to drawthat the shotgun found on his property could not cause the size hole found in the victim's head or the screen and therefore was not the murder weaponswas already present on the record. Indeed, this is what trial counsel argued during summation. For the foregoing reasons, the Court cannot find that there was "suppression" of the notes and therefore Ulrich 284 is unable to make out a viable Brady claim. See Strickler v. Greene, supra. 2. Ineffective Assistance of Trial Counsel a. Legal standard In order to prevail on a claim of ineffective assistance of counsel within the framework established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a habeas petitioner must satisfy a two-part test. First, a petitioner must demonstrate that counsel's performance was so deficient that counsel was not functioning as "counsel" within the meaning of the Sixth Amendment to the Constitution. Id. at 688, 104 S. Ct. 2052. In other words, a petitioner must show that his attorney's performance "fell below an objective standard of reasonableness." Id. Second, a petitioner must show that counsel's deficient performance prejudiced him. Id. at 694, 104 S. Ct. 2052. To establish the "prejudice" prong of the Strickland test, a petitioner must show that a "reasonable probability" exists that, but for counsel's error, the outcome of the trial would have been different. Id. at 694, 104 S. Ct. 2052. The issue of prejudice need not be addressed, however, if a petitioner is unable to demonstrate first that his counsel's performance was inadequate. "[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697, 104 S. Ct. 2052. b. Basis for Finding Ineffectiveness Ulrich contends that trial counsel was ineffective in failing to conduct independent testing of the shotgun recovered on Ulrich's property to demonstrate affirmatively that it was not the murder weapon. At the C.P.L. § 440.10 hearing before Judge DiTullio on the Brady /Rosario issue, trial counsel Daniels testified that he did not see the need for independent testing because his strategy had been to argue that the shotgun should not be admitted because the prosecution could not demonstrate that it was connected to the murder. No one seriously disputes that ballistics testing at the microscopic level was not possible on Ulrich's very old, smoothbore shotgun. Rather, Ulrich contends that trial counsel should have found an expert that would have ruled out the shotgun as the murder weapon based on shot-pattern testingthat is, testing to show the differences between the diameter of the wound to the victim's head and of the hole in the window screen as compared to the diameters of the holes made when the gun was test-fired. Ulrich points to the results of Investigator Boone's shot-pattern testing which, for the purpose of his ineffective assistance claim, he contends that trial counsel did have available to him, and asserts that these notes definitely should have prompted trial counsel to request a continuance of the trial after Investigator Boone's testimony and to arrange for further testing of the shotgun. Because, in connection with his post-conviction collateral attacks, Ulrich did retain a firearms expert (i.e., Janelli) to perform additional testing on the shotgun, the Court is in the position to evaluate whether Ulrich was prejudiced by trial counsel's failure to retain this expert during trial. The part of Janelli's opinion testimony of most interest to Ulrich is Janelli's conclusion that the hole in the window screen at the victim's residence was not "consistent with that of having been made by" Ulrich's, or any other, shotgun. H2.46-47, 58-59, 69. He based this conclusion on the fact that he was unable to produce a hole of the same diameter with no separate pellet holes at distances of less than eight 285 feet with Ulrich's shotgun. H2.44-48. He also said that he was unable to reproduce a shot pattern of 3" by 2" (the size of the victim's wound), with the plastic wadding still contained in the shot pattern. It should be noted that Janelli used a Homasote® board for his target because he found that it "best" simulated a human skull. H2.51, 56. As an initial matter, the Court finds is significant that Janelli admitted on direct examination a shotgun's "shot patterns will vary from round to round." H2.53. He also conceded that his test results were similar to Investigator Boone's at distances of four and five feet. H2.61. Janelli also admitted that, looking at Investigator Boone's test results, he would not be able to tell what type of shotgun created those shot patterns. H2.63. Janelli's testing methods were problematic in that he did not take into account a number of variables. First, Janelli did not verify that the window screen through which he fired his test shots was of the same type and tension, or was supported in the same way as the one that was on the victim's house; furthermore, Janelli's screen was brand new, while the one in question was relatively old. Janelli fired his shotgun perpendicularly to the screen; there is no way of knowing whether the murderer fired in the same manner. Janelli stated that he "wish[ed]" he had seen the window screen through which the fatal shot was fired. H2.70. Janelli conceded that shot patterns can be affected by the condition of the pellets in each of the shotgun shells. Janelli believed that in factory-loaded # 6-shot there are 225 pellets; however, it is possible that the murderer loaded his own shells with fewer pellets. In fact, only 200 pellets were extracted from the victim's head, and no other pellets or slugs were found at the murder scene. Janelli also conceded that the gun's cylinder bore could affect the shot pattern. He did not measure the inside diameter of the bore and assumed it to be .729; Investigator Boone did measure the bore and determined that it actually was .690. For several test rounds, Janelli fired multiple shots through the same screen; the killer only fired one shot through the screen. These are some of the variables in Janelli's methodology which could account for his reported inability to reproduce the same size hole in the screen. Moreover, Janelli contended that there was no difference between the Homasote® board into which he fired his test shots and a human skull. H2.71. He was unfamiliar with the phenomenon known as the "billiard ball effect ricochet," H2.72, to which Dr. Loghmanee testified at the C.P.L. § 440.10 hearing. The billiard ball effect occurs with shotgun pellets rather than with slugs. Upon hitting the skull, the first pellets are stopped and then struck by the pellets coming from behind. The result is dispersal of the pellets which in turn creates a larger hole than if one were to fire the shotgun through a medium such as a screen or a board. The billiard ball effect also causes irregularly shaped wounds. According to Dr. Loghmanee, because the tension of the skin over the skull is tighter than it is in other areas of the body, there will be a larger hole than one would expect from the size of the projectile, and the pellets will spread over a larger area. Also, Dr. Loghmanee explained, an intermediate obstacle (such as a window screen) could cause the shotgun pellets to cause a large hole in the final target surface. As discussed above, Janelli's methodology had a number of flaws, and he failed to account for certain important variables this consequently weakened the strength of his conclusions. Moreover, his opinion that the hole in the window screen was not 286 "consistent with" being caused by a shotgun was rather incredible; that would imply that the killer made a hole in the window screen and then fired the shotgun through it, or that there was a pre-existing hole through which the killer placed the muzzle of the gun. Neither of these assertions is supported by logic or the physical evidence. Rather, the undisputed proof was that shotgun pellets and a plastic shotgun wadding were found in the victim's head. Finally, Janelli was unaware of the "billiard ball effect ricochet," which the jury easily could have found accounted for the discrepancy between the size of the holes in his test-firings and the size of the hole in the victim's skull. It must be remembered that throughout the state court proceedings, both sides have not disputed that the type of ballistics testing that can be done with pistols and revolvers is not possible to do with shotguns because shotgun barrels do not have "rifling" marks. These rifling marks, i.e., grooves (spaces that are cut out) and lands (the resulting ridges), are imprinted into the bearing surface of the projectile and leave microscopic toolmarks which can be utilized to identify a projectile to a specific revolver. Most shotgunsand the shotgun at issue hereare smooth-bored weapons, making shotgun ammunition nearly impossible to identify to a specific weapon. Indeed, attorney Daniels was aware of this fact and testified at the C.P.L. § 440.10 hearing that was why he initially did not have the shotgun testedbecause a microscopic rifling comparison would not be possible. Moreover, there were no expended shotshells or other fragments left behind at the crime scene that could be utilized for comparison. As discussed above, the only type of testing that was possible in this situation, shot pattern testing, would have involved too many variables for a firearms examiner to replicate the fatal shot exactly. Indeed, the results of petitioner's own expert testing were greatly weakened due to his failure to account for these variables. To this Court's mind, it appears that it would not be possible for anyone, regardless of how thorough his methods, to adequately account for all of the variables involved in shot pattern testing. The Court thus has grave doubts that any firearms expert would have been able to "affirmatively" prove that the shotgun found in Ulrich's outbuilding was not the murder weapon. For all of the foregoing reasons, the Court cannot find that there was any "reasonable probability" that Ulrich was prejudiced by defense counsel's failure to have the shotgun tested further. In addition, the Court finds that defense counsel had a calculated and reasonable strategy regarding the shotgun, which was to move to preclude the prosecution from introducing the shotgun into evidence. The Court notes that he was successful at keeping the actual gun and shotgun shells out of evidence. Trial counsel presented a strong defense; he vigorously cross-examined the prosecution's witnesses and sought to show that there were a number of other individuals who bore grudges against the victims and thus had plausible motives for murder. On summation, trial counsel cogently argued that issue of the shotgun and highlighted the prosecution's failure to present any proof to link it to the murder: Now, the gun was taken, there is no question about it but let's talk about that second step that you draw whether or not that, in fact, was the gun that was used to kill Jack Smith. The first thing they did with that gun [is] they tested [it]. The State Police lab fellows took it and they went through that gun with a fine-tooth comb. They got experts over 287 there in Albany, believe me, they've got machines and tests. Now, you all got common sense. You think if there was one thing on that gun that connected it to this killing[,] why you would have heard itthey would have had a brass band come in here and play it for you . . . he took one of those 80 power microscopes with a big light on it and he went through it and he looked for it and he couldn't find any aluminum on it at all. They couldn't find any residue of gun powder. They couldn't find anything to connect that weapon with the shooting of Jack Smith. R.1583-84. Trial counsel also alluded to the disparity between the size of the shot patterns and the size of the wound in the victim's head: "[Boone] told . . . us, that regardless of the type of barrel that would e used[,] because the distances were so small, 4, 5 and 6 feet, the chances are that you're going to get a tight pattern regardless, so any type of barrel could have caused that pattern in the back of Smith's head." R.1586. Ulrich cannot show that trial counsel rendered professionally unreasonable representation, let alone that he was prejudiced by trial counsel's failure to retain a firearms expert to perform shot pattern testing. Therefore, he is unable to show that trial counsel failed to provide effective representation, as guaranteed by the Sixth Amendment. Accordingly, this claim provides no basis for habeas relief. 3. Ineffective assistance of appellate counsel The two-pronged standard set forth in Strickland, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, supra, applies equally to claims of ineffective assistance of appellate counsel. E.g., Claudio v. Scully, 982 F.2d 798, 803 (2d Cir.1992) (holding that in order to prevail on an ineffective assistance of appellate counsel claim, appellant must show first that his counsel's performance was deficient and second that the deficiency caused actual prejudice to his defense), cert. denied, 508 U.S. 912, 113 S. Ct. 2347, 124 L. Ed. 2d 256 (1993). In attempting to establish that appellate counsel's failure to raise a claim on appeal constitutes deficient performance, it is insufficient for the petitioner to show "merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made." Id. (citing Jones v. Barnes, 463 U.S. 745, 754, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983)). Whether the neglected appellate issue is based on federal or state law, the burden rests on petitioner to show "that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Id. In assessing appellate counsel's performance, the Court must judge the conduct at issue on the basis of the facts of the particular case, viewed as of the time that counsel was preparing the appeal. Strickland, 466 U.S. at 690, 104 S. Ct. 2052. As discussed above, Ulrich did not have a meritorious claim that trial counsel was constitutionally ineffective. Given that this argument, which Ulrich identifies as erroneously omitted on appeal, is without merit, he is unable to prove prejudice since omission of insignificant claims that will likely be unsuccessful does not prejudice a defendant. See Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir.1994) ("To establish prejudice in the appellate context, a petitioner must demonstrate that 'there was a "reasonable probability" that [his] claim would have been successful. . . .'") (alteration in original) (quoting Claudio v. Scully, 982 F.2d at 803); see also Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir.1994) ("[T]he failure to raise nonmeritorious issues does not constitute 288 ineffective assistance."). Because Ulrich cannot prove prejudice, it is unnecessary to address whether appellate counsel's performance was deficient. Strickland, 466 U.S. at 697, 104 S. Ct. 2052 ("[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one."). Accordingly, this claim does not warrant federal habeas relief. CONCLUSION For the reasons stated above, petitioner Joseph Ulrich's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253. IT IS SO ORDERED NOTES [1] Citations to "R.__" refer to the state court Record on Appeal, submitted to this Court as part of respondent's Exhibit B to its Answer to Ulrich's habeas Petition. [2] Fisher's house at 150 Chestnut Street was on the corner of Chestnut, Jamestown, and Torrance Streets. [3] Under the mercury vapor light, the motorcycle appeared to Buetler to be greenish in color. R.1123. Later in the investigation, the police parked a red automobile in the same location and observed that it, too, appeared green under the mercury vapor light. R. 1377. [4] According to the police, their investigation revealed a trail from the railroad bed right-of-way onto Ulrich's potato field. R.1370. A small part of the right-of-way was kept mowed; other than that, it was not maintained, and contained such heavy brush and undergrowth that it was impassible even on foot. R.1370-75. The only place a motorcycle could go after driving through the trailer park and crossing the right-of-way was Ulrich's potato field; there were no other trails off of the right-of-way. R.1375. [5] It appears that no exact measurement was ever made of the distance between the chair where the deceased was sitting and the window, most likely because this measurement did not become an issue until the parties began attempting to use shot pattern testing in order to identify or exclude the shotgun as the murder weapon. Photographs were taken of the crime scene, however, and were provided to the jury as exhibits. [6] The search warrant application described Ulrich as 5'11" with a medium build, weighing about 190 pounds, and having brown hair, blue eyes, and a mustache. Investigator Gerald Forster testified that, at the time of trial, Ulrich's appearance had changed in that he had shaved his mustache and lost some weight. [7] Boone's June 26, 1984 report indicated that "[d]ue to the lack of gunpowder or residue on the evidence, number 7, window screen, no determination of muzzle-to-target distance could be made; however, the hole in the screen exhibits a stellate or star-shaped pattern which is indicative of a contact or near contact blast." [8] Fisher testified that she was sitting near the window at a coffee shop in Springville and Ulrich drove by and saw her. According to Fisher, Ulrich "kept riding by" and appeared to be "trying to survey" her. R. 1488. Defense counsel did not object to any of this testimony. [9] In his sur-reply, the prosecutor explained Sergeant Boone tested the shotgun and issued his initial report dated June 26, 1984, which the defense acknowledged receiving on August 31, 1984. In the "Remarks" section, Sergeant Boone noted that "[d]ue to a lack of gunpowder residue on the evidence # 7 window screen, no determination of muzzle-to-target distance can be made; however, the hole in the screen exhibits a stellate or star-shaped pattern which is indicative of a contact or near contact blast." People's Affidavit, ¶¶ 6-7. The prosecutor noted that prior to trial, the defense did not seek to have the weapon tested by an expert. Id. About five days after trial had commenced, and before calling Investigator Boone to testify, the district attorney requested that Investigator Boone re-test the weapon. On January 28, 1986, Investigator Boone did so, and the results confirmed those in his original report; consequently, he did not issue a new report. [10] Ulrich contended that his C.P.L. § 440.10 motion followed "a well-documented ongoing six-year attempt to obtain the notes in question." The prosecution has queried several times in its motion papers how Ulrich "managed to spend six years seeking something that he claims to have been unaware of." People's Reply Brief to Second C.P.L. § 440.10 Motion at 3 (Respondent's Exhibit C). [11] Pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the prosecution is obligated to disclose all evidence favorable to the accused, either because it is exculpatory, or because it is impeaching. People v. Rosario, 9 N.Y.2d 286, 290, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961), expanded the requirements defined in Brady and its progeny, holding that the prosecution must disclose any prior statement of its witness, regardless of whether it is favorable to the accused. [12] Citations to "H1.___" refer to the transcript of the August 1 1 th hearing; citations to "H2.__" refer to the October 10th hearing; and citations to "H3.__" refer to the December 12th hearing. [13] As the prosecution pointed out in its response to Ulrich's second C.P.L. § 440.10 motion, only Boone's notes mentioned the muzzle diameter measurement of .690 inch, which strongly implies that attorney Daniels had the notes while he was cross-examining Boone. [14] Apparently, the original report was never located. Respondent has suggested that this is because Daniels-intentionally or inadvertentlynever returned the original to the prosecutor and put it in his file, which later was provided to Ulrich in connection with preparing his direct appeal. [15] As noted supra in this opinion, 200 # 6shot shotgun pellets and plastic shotgun wadding were recovered from the wound in the victim's head. Janelli's testimony is discussed in further detail infra in the context of Ulrich's claim of ineffective assistance of trial counsel. [16] Investigator Boone's notes consisted of one-half of a handwritten page and read as follows: "shot pattern testing @ Academy # 6 shotgun and lab stock ammo (Rem.# 6): 4' = 1 1/4" circular hole 5' = 1 1/2" [circular hole] 6' = 1 3/4" [circular hole] (pellets starting to spread) # 6 shotgun-30" bbl.muzzle diam..690"full choke." R.164. [17] Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1219.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2500001/	275 P.3d 974 (2012) 249 Or. App. 50 In the Matter of the MARRIAGE OF Pearl Yvonne SPILLANE, aka Pearl Yvonne Chilcoat, Petitioner-Appellant, and Maurice Delane Spillane, Respondent-Respondent. 0204655CV; A142043. Court of Appeals of Oregon. Argued and Submitted March 8, 2011. Decided March 28, 2012. 975 George W. Kelly, Eugene, argued the cause and filed the briefs for appellant. Rebecca Whitney-Smith, Klamath Falls, argued the cause and filed the brief for respondent. Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge. HASELTON, P.J. Wife appeals a supplemental judgment terminating an earlier award of indefinite maintenance spousal support, ORS 107.135. She argues that the trial court erred in terminating support because husband failed to establish that a current, substantial, and unanticipated change in his circumstances warrants termination. Husband contends that his declining health, the loss of a business relationship, and the economic downturn have decreased his income and earning ability so that the termination of spousal support is just and equitable under the circumstances. On de novo review, ORS 19.415(3) (2007),[1] we conclude that husband failed to demonstrate a sufficient change in his circumstances as required by ORS 107.135. Accordingly, we reverse. When the parties dissolved their 28-year marriage in 2005, wife was 61 and husband was 62 years old. Wife lived in a small one-bedroom apartment while husband remained in the marital home with his new partner. Wife is a certified nursing assistant (CNA). Her gross annual income in 2003 was $21,388. Husband is a self-employed trucker and hobby farmer with a variable annual income. In 2003, husband's hobby farm operated at a loss and his before-tax trucking income was $77,459, primarily from hauling milk and hay for a local dairy. At dissolution, husband argued that the court should deny wife's request for spousal support based on wife's relative independence, husband's advancing years, his poor health, and the physical nature of his work. The court awarded wife spousal support, explaining: "The following factors warrant an award of indefinite maintenance spousal support in the amount of $1,000.00 per month[:] Wife's age, her limited earning capacity, and the de minimis value of her retirement. Additionally, Wife's limited income has prevented her from enjoying the standard of living enjoyed during the marriage, while Husband has been able to do so. " * * [Wife] has very limited disposable income. In contrast, Husband has been able to enjoy the family home and to have his companion and his daughter and grandchildren reside with him. His companion is employed and can contribute to household expenses. Husband's present income from the dairy is well in excess of Wife's, and it is likely that will continue into the foreseeable future. Husband has had sufficient income to acquire collector cars, purchase new farming equipment and, by and large, enjoy the standard of living the parties had during the marriage." (Footnote omitted.) Approximately three years later, in April 2008, husband moved to terminate or reduce his spousal support obligation pursuant to ORS 107.135(3)(a), which provides, in part: "(3) In a proceeding under this section to reconsider the spousal or child support provisions of the judgment, the following provisions apply: "(a) A substantial change in economic circumstances of a party, which may include, but is not limited to, a substantial change in the cost of reasonable and necessary expenses to either party, is sufficient for the court to reconsider its order of support, except that an order of compensatory spousal support may only be modified upon a showing of an involuntary, extraordinary and unanticipated change in circumstances that reduces the earning capacity of the paying spouse." Husband asserted three changes in his economic circumstances from the time of dissolution. 976 First, his declining health had impaired his ability to truck and farm. Second, his primary source of income was lost when the local dairy closed in October 2007. Third, the economic downturn had negatively affected his ability to generate alternative income or liquidate his property. Husband's accountant and healthcare practitioner both testified on his behalf. That testimony is described below. The trial court terminated spousal support, reasoning: "Based upon the evidence at trial, it is clear that there has been a substantial and unanticipated change in [husband's] economic circumstances. This is due in part as a result of the current economic times and in part due to his failing health. A close reading of [the dissolution] opinion does not convince me that [the dissolution judge] made her decision anticipating his health would decline to such a degree that he could no longer work to the same degree he was at the time of the dissolution trial. The evidence in regard to his failing ability to work goes far beyond the testimony of [husband's healthcare practitioner]. It was clear based upon both [husband's] and his current wife's testimony that he is no longer physically able to work to his previous level. "Therefore, his ability to continue paying spousal support in the amount as previously ordered is clearly compromised by the two changes in his circumstances. "The stated order was to allow [wife] to enjoy the standard of living she enjoyed during the marriage. Currently, [husband] is no longer able to enjoy the standard of living he enjoyed during the marriage. The Court's obligation is to do what is just and equitable under the circumstances, which is to terminate the spousal support." Wife appeals the resulting supplemental judgment. "[T]he party requesting the modification of an award of spousal support has the burden of demonstrating a change in circumstances, unanticipated at the time of the dissolution, in the one spouse's ability to pay and/or in the other's need therefor." Pratt and Pratt, 29 Or.App. 115, 117, 562 P.2d 984 (1977); see also Haley and Haley, 228 Or. App. 731, 736, 208 P.3d 1006 (2009). Wife contends that husband failed to meet his burden to prove a current, substantial, and unanticipated change in circumstances; rather, wife argues, husband's assertions and supporting evidence merely pertain to speculative, future occurrences that may decrease his income and affect his ability to pay spousal support. Conversely, wife emphasizes that her economic circumstances have not changed because she has the same job that she had at the time of the dissolution and her earning capacity has not substantially increased; nor have her expenses decreased. Wife contends that husband is currently able to pay spousal support based on his business income and property he acquired after the dissolution, supplemented by social security and his new wife's contribution to the household. Wife posits that, even if husband's income has decreased, and he is unable to pay his other obligations on recently incurred debt, it is not just and equitable that she should be made to suffer for his choices. Finally, wife argues in the alternative that spousal support should be decreased rather than terminated. Husband remonstrates that he has experienced an unanticipated and substantial change in circumstances that warrants termination. On de novo review, we evaluate the parties' contentions and supporting evidence to determine whether husband has established the requisite substantial change in circumstances justifying the termination of his support obligation. We conclude that he has not for the reasons explained below. Husband asserts that two main health problems have decreased his earning ability: chronic obstructive pulmonary disease (COPD) and hearing loss. Husband's COPD, caused by smoking, has decreased his lung capacity, which impairs his ability to exchange oxygen and carbon dioxide. Husband suffers shortness of breath and fatigue when walking short distances and he has trouble sleeping. COPD makes it difficult for husband to perform trucking tasks such as placing tire chains, climbing on his truck, 977 and moving milk hoses. Nevertheless, husband has continued to perform his work and testified that he had hauled milk every day for three weeks preceding the modification trial. Husband is also unable to do some activities on the farm because, as a result of his COPD, he is susceptible to bronchial infections from exposure to cold air, dust, and fumes. However, husband testified that he is able to do some work on the farm, avoiding irritants by remaining in his truck or his enclosed tractor cab. Since August 2008, husband has worn oxygen at night and when he is idle at home. Husband has an oxygen tank on wheels, but he has not attempted to use it while walking. Husband had recorded hearing loss in 2000, and he is "near deaf" in his left ear. He does not wear the doctor-recommended hearing aids because he is unwilling to purchase them and he believes that his left ear cannot be helped. However, husband ultimately testified that his hearing loss does not currently affect his ability to work. In addition to the physical limitations caused by his health problems, husband could lose his commercial driver's license if he fails the physical examination, which, by law, he is required to take every two years and which, among other things, tests pulmonary function and hearing ability. 49 CFR 391.41. Husband was scheduled to have such an examination two weeks after the modification hearing. Husband's healthcare practitionerwho would administer the examtestified that husband would probably not pass the exam in his current state, but that, with the assistance of mobile oxygen and hearing devices, husband may be able to maintain his commercial driver's license and continue to perform trucking tasks. Husband testified that, if faced with losing his license, he is willing to utilize medical devices that could help him continue to work. Albrich and Albrich, 162 Or.App. 30, 987 P.2d 542 (1999), informs our analysis of whether husband's health problems constitute a substantial change in circumstances. In Albrich, we determined that the husband had experienced a substantial change in circumstances sufficient to warrant a reduction in the husband's spousal support obligation where "[p]resently, husband no longer works as an oncologist because he suffers from a neurological disorder that causes uncontrollable neck spasms and cognitive problems that prevent him from effectively working with patients." Id. at 32, 987 P.2d 542 (emphasis added). On de novo review, we found that the "husband's economic circumstances [had] changed substantially in that his medical condition [had] caused his unanticipated retirement from medical practice[,]" so that it was "`just and equitable' to reduce [the] husband's spousal support obligation based on his loss of employment income." Id. at 37, 987 P.2d 542. Husband's health situation is distinguishable from Albrich, where the husband was presently physically incapable of performing his job. We credit husband's testimony that he gets tired and out of breath and that it takes him longer to do things; however, husband failed to demonstrate a current inability to earn a wage sufficient to support his own standard of living and pay spousal support. Husband was working at the time of trial, and he had not yet completedmuch less failedthe physical exam required to maintain his commercial driver's license. See Curran and Curran, 100 Or.App. 330, 333, 786 P.2d 205 (1990) ("[M]odifications of spousal support are properly based only on evidence of a party's present or future ascertainable ability to pay, not on speculative or uncertain future events."). Unlike the husband in Albrich, husband's inability to work due to his health remains speculative at this time and, thus, does not warrant termination. Moreover, husband failed to show that his decline in health was unanticipated. Husband's COPD and hearing loss are degenerative conditions that predated the parties' dissolution, and husband had initially argued against the award of spousal support based on his advancing years and declining health in light of the physical nature of his work. In awarding support, the trial court implicitly rejected those arguments. Husband's healthcare practitioner testified that, from the time that he began treating husband in 2000, "[husband] has had a fully progressive disease and * * * over the last nine years, of course, he has progressed in his disease." 978 The practitioner testified that there is "[n]othing new, other than it is a progressive disease[,]" and husband's advancing age contributes to the deterioration of this health. We conclude that husband failed to prove that his health problems constitute an unanticipated change in circumstances. We do not mean to indicate that the decline in a person's health due to a degenerative disease can never constitute a change in circumstances. Here, the dissolution court was aware that husband had worsening health problems, and the court was also aware of the physical nature of his work. That awareness leads us to conclude that the dissolution court anticipated husband's decline in health when it awarded indefinite maintenance spousal support. Unlike husband's decline in health, the closure of the local dairy is a change that was unanticipated at the time of the award. From 1997 to 2007, husband's primary source of income was from hauling hay and milk for the dairy. The dissolution court observed that "Husband's present income from the dairy is well in excess of Wife's, and it is likely that will continue into the foreseeable future." In 2003, husband's income was $77,459 after expenses and before taxes.[2] In the following years,[3] husband's respective after-expense and before-tax income was $87,980 in 2005; $100,759 in 2006; and $56,102 in 2007. After the dairy closed, husband began hauling milk for a different company every other day instead of every day as he had for the local dairy. Husband's 2008 gross trucking income was $99,838. Despite his earnings, husband claimed that he was financially unable to pay support and offered the testimony of his accountant to support his claim. The accountant estimated that, as a result of the dairy closure, husband's trucking income would decrease dramatically while husband's trucking expenses would remain constant, resulting in an overall loss of $5,000 in 2008. When the accountant testified, in March 2009, he had not received husband's self-employed trucking and farming business records for 2008. The accountant's projections were based on husband's business records from 2007, other information that husband had provided, and the accountant's own assumptions about 2008. The accountant apparently assumed that husband would not obtain additional work beyond hauling every other day. In fact, the record shows that husband has taken additional short-term jobs to replace his income from the dairy closure. For example, during the three weeks preceding the modification proceeding, husband hauled for the dairy every day on a short-term agreement precipitated by an abnormally abundant milk supply. Additionally, husband has purchased a dump truck in an attempt to diversify his hauling ability, although he reports that he has been unable to find gravel hauling work because new construction is down in the area. Husband's prior annual expenses were $39,706 in 2003; $67,995 in 2005; $119,236 in 2006; and $176,511 in 2007. Assuming that the farm operated at a loss and that husband's trucking costs exceeded his trucking income, it is conceivable that he actually experienced a loss in 2008. However, husband failed to provide evidence of his expenses in 2008 beyond the accountant's estimation, which is insufficient proof that husband in fact experienced a substantial decrease in income warranting termination of spousal support. In all events, as wife observes, even if husband had proved a substantial decline in his income, we have held that a dramatic 979 decrease in income is insufficient to justify modification of spousal support where, depending on the totality of the circumstances, the obligor spouse has not experienced a corresponding decline in his or her standard of living. Miller and Miller, 207 Or.App. 198, 208, 140 P.3d 1172, adh'd to as modified on recons., 208 Or.App. 483, 144 P.3d 1061 (2006). Here, husband currently enjoys a standard of living substantially similar to the time of dissolution. Husband continues to live in the spacious marital home along with his new wife and grandson. The house, which sits on nearly 100 acres, is approximately 3,500 square feet and has six bedrooms and four bathrooms. At the time of dissolution, 2005, the market value of that house and acreage was $500,000, with a debt of $236,000. Husband refinanced the property in 2005, in part, to pay the equalizing judgment to wife.[4] His current monthly mortgage payment on that property is $2,535 and he testified that he owes over $400,000 on the refinance. In 2007, husband purchased another house and five acres adjacent to the original property for $235,000, for which husband currently owes $200,000 with a monthly mortgage payment of $1,400.[5] In addition to the post-dissolution acquisition of real property, husband and his new wife also purchased personal vehicles and equipment totaling $288,000. Husband made many of those purchases on credit. Despite the substantial real and personal property in his possession, husband claims a current inability to pay spousal support. That is so, he argues, because, due to the economic downturn, the value of his property has decreased and there is no current market for his real property or equipment.[6] However, husband offered no disinterested or expert testimony pertaining to the current market value of husband's real property, substantiating his assertion that his debt actually exceeds his equity in those properties. Further, although husband contends that there is no market for the equipment that he owns, the record discloses only minimal efforts on husband's part in that regard. We emphasize againand finallythat, as the proponent of modification and termination, husband had the burden of persuasively demonstrating an unanticipated change of circumstances precluding him from meeting his support obligations to wife, whose needs and modest circumstances have remained unchanged. On de novo review, we conclude, for the foregoing reasons, that husband failed in his burden of proof. Accordingly, the trial court erred in terminating husband's spousal support obligation. Reversed. NOTES [1] This appeal was filed before the June 4, 2009, effective date of the 2009 amendments to ORS 19.415(3), which made de novo review discretionary with the Court of Appeals. Or. Laws 2009, ch. 231, §§ 2, 3. [2] Husband's hobby farm generally operates at a loss, and he reports his trucking and farming businesses together for tax purposes. Husband takes accelerated depreciation for purchases of large equipment, which allows for a deduction against gross income. 26 USC § 179 (2010). If the deduction, counted as a loss, is greater than the income, then the tax form will show an overall loss. However, a tax loss on paper may or may not mean that a business, or an individual, actually lost money. Equipment that is purchased in one year and used over many years may be fully deducted in the first year; similarly, purchases on credit may be fully deducted in the same year, which can result in after-tax income that does not accurately represent an individual's ability to pay. For those reasons, we recount husband's after-expense and before-tax income, as did the dissolution court. [3] Husband did not provide information for 2004. [4] The parties had previously jointly refinanced the property in 1997. [5] Husband intends to rent that property, but it is presently damaged and uninhabitable with a pending property insurance claim. Husband's new wife opined that the second property is worth no more than $80,000 in its current condition. [6] Husband does not claim, nor has he shown, that his post-dissolution purchases were "reasonable and necessary expenses." ORS 107.135(3)(a).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2499982/	274 P.3d 375 (2012) 167 Wn. App. 242 EVERGREEN MONEYSOURCE MORTGAGE COMPANY d/b/a Evergreen Home Loans, a Washington Corporation, Appellant, v. Larry SHANNON and Jane Doe Shannon, husband and wife; and Guild Mortgage Company, a California Corporation, Respondents. No. 29766-7-III. Court of Appeals of Washington, Division 3. February 16, 2012. Reconsideration Denied May 3, 2012. 378 Lindsey Truscott, Jordan M. Hecker, Attorneys at Law, Seattle, WA, for Appellant. David E. Sonn, Jeffers Danielson Sonn & Aylward PS, Michelle A. Green, Attorney at Law, Wenatchee, WA, Leslie Richard Weatherhead, Attorney at Law, Matthew William Daley, Witherspoon, Kelley, Davenport & Toole, Spokane, WA, for Respondents. KULIK, C.J. ¶ 1 Beginning in 1997, Larry Shannon operated a real estate lending office in Moses Lake, Washington. Over the years, the office served as a branch office for six different residential lenders. From March 2007 through April 2009, the office was affiliated with Evergreen Moneysource Mortgage Company (Evergreen). On April 30, 2009, this relationship ended and, the next day, the entire Moses Lake branch became affiliated with Guild Mortgage (Guild). Evergreen filed this action, alleging breach of contract and breach of the duty of loyalty by Mr. Shannon; tortious interference with business expectancy and contractual relations by Mr. Shannon and Guild; and a violation of the Consumer Protection Act (CPA), chapter 19.86 RCW, by Mr. Shannon and Guild. The court dismissed these claims and denied Evergreen's motion for leave to amend to add a claim based on Washington's Uniform Trade Secrets Act (LTTSA), chapter 19.108 RCW. We affirm the trial court's dismissal of the breach of contract, tortious interference, and CPA claims. We also affirm the denial of the motion to amend. We conclude that the wrongful disclosure claim was not set forth in the complaint. We reverse the dismissal of the breach of duty of loyalty claim related to employee solicitation. FACTS ¶ 2 In 1997, Larry Shannon opened an office in Moses Lake to obtain loans for homebuyers. From 1997 until 2007, the Moses Lake office was affiliated with six different lenders. On March 28, 2007, Mr. Shannon became employed with Evergreen. As part of his employment with Evergreen, Mr. Shannon signed a branch manager agreement. ¶ 3 Beginning in November 2008, Evergreen, at times, was unable to fund or timely fund a number of loans that the Moses Lake office was ready to close. This situation continued into the spring of 2009. Mr. Shannon discussed this matter with Evergreen's president, Keith Frachiseur, on several occasions. On April 10, 2009, Mr. Frachiseur came to the Moses Lake office and spoke to all of the employees. He made promises concerning how Evergreen would fund loans in the future. He also promised a retention bonus for each employee who remained with Evergreen. ¶ 4 Evergreen and the Moses Lake branch concluded their relationship on April 30, 2009. Mr. Shannon and the Moses Lake branch affiliated with Guild, effective May 1. ¶ 5 Charles Nay, regional vice president for Guild, was responsible for recruitment. In February 2009, he approached Mr. Shannon about moving his mortgage origination branch to Guild. ¶ 6 Before Guild extended an offer to the Moses Lake branch, Mr. Shannon gave Mr. Nay (1) Evergreen's profit and loss statement, (2) Evergreen's rate list, and (3) Evergreen's loan originator agreement. Evergreen alleges that this information was confidential and that Guild was on notice of Evergreen's claims of ownership and confidentiality, or, alternatively, Evergreen's claim of a trade secret. ¶ 7 Mr. Nay stated he was unaware that any of this information belonged to Evergreen or that it was confidential. Mr. Nay believed that Mr. Shannon was providing his own internal branch information and that Mr. Shannon had a right to do so. Mr. Nay stated that Guild did not look at the price sheet because Guild's loan pricing is set by market forces and with reference to Guild's internal cost structure. Evergreen's rate list would not apply to Guild. ¶ 8 Mr. Shannon points out that during the time his office was affiliated with Evergreen, the information contained in the rate sheet was not confidential and could be located on 379 the Internet. Mr. Nay asked Mr. Shannon to provide the loan officers' compensation plan so that he could compare it to Guild's standard terms to see if Guild's standard terms would accommodate the Moses Lake branch's desire to become affiliated with Guild. Mr. Nay maintains that he did not use the sample loan officer agreement to sculpt or otherwise determine the terms of the compensation agreement offered by Guild. ¶ 9 The final piece of information provided by Mr. Shannon to Mr. Nay was the profit and loss statement. Guild maintains that Evergreen offers no evidence showing that the profit and loss statement was confidential or that Mr. Nay was aware of Evergreen's claim of confidentiality. ¶ 10 Evergreen maintains that Mr. Nay used Evergreen's profit and loss information to prepare two pro forma reports. These reports show that the Moses Lake branch would make approximately $3.1 to $3.33 million in the first month with Guild. Mr. Frachiseur states that he reviewed the two pro formas created for the Moses Lake branch and the projections for the first month's gross income$3.1 to $3.33 millioncould not be accomplished unless Evergreen's existing customer base or loans were moved to Guild. ¶ 11 Guild denies using the profit and loss information provided by Mr. Shannon for any purpose. Guild believed that Mr. Shannon had the right to share the information. Guild agrees that it created a pro forma analysis showing projections as to how Mr. Shannon's branch would perform if affiliated with Guild. Guild contends that Evergreen failed to present evidence showing that the profit and loss information was confidential or that Guild was aware the information was confidential. ¶ 12 Mr. Shannon and the Moses Lake branch terminated their affiliation with Evergreen, and the branch became affiliated with Guild on May 1, 2009. Evergreen contends Mr. Shannon agreed that up until this date, all customers coming in the door would belong to Evergreen. In Evergreen's view, Mr. Shannon and his office also agreed to close as many loans as possible in Evergreen's pipeline before May 1. After that date, Evergreen personnel would close any remaining unclosed loans. ¶ 13 Evergreen contends that despite these promises, Mr. Shannon worked to divert loans from Evergreen to Guild, prior to May 1. Specifically, Evergreen asserts that after Mr. Shannon and the Moses Lake branch became affiliated with Guild, Mr. Shannon moved 17 Evergreen customers to Guild. ¶ 14 Evergreen filed suit against Mr. Shannon and Guild. Evergreen's complaint was based on three sets of allegations; (1) that in March 2009, Mr. Shannon began originating loans for Guild, (2) that Mr. Shannon originated fictitious loans,[1] and (3) that Mr. Shannon solicited Evergreen employees to work for Guild. Based on these allegations, Evergreen alleged five causes of action: breach of contract, breach of duty of loyalty, tortious interference with business expectancy, tortious interference with contractual relations, and violation of the CPA. ¶ 15 Evergreen filed a motion for partial summary judgment. As part of this motion, Evergreen asserted that Mr. Shannon breached his contract with Evergreen by disclosing Evergreen's profit and loss sheet, rate sheet, and loan originator agreement. ¶ 16 On November 15, 2010, Mr. Shannon filed a motion for summary judgment. Guild joined in this motion. On November 17, six months after the deadline to amend pleadings, Evergreen sought leave to amend its complaint. In its motion, Evergreen sought to include a claim based on the UTSA. On January 10, 2011, the court denied the motion to amend. On February 8, the court granted summary judgment in favor of Mr. Shannon and Guild, dismissing all of Evergreen's claims. Mr. Shannon was awarded his attorney fees and costs based on the branch manager agreement between Mr. Shannon and Evergreen. ¶ 17 Evergreen appeals, alleging the court erred by dismissing the breach of contract claim and the breach of duty of loyalty claim made against Mr. Shannon, and the CPA 380 claims and tortious inference claims against Mr. Shannon and Guild. Evergreen also seeks the reversal of the award of $97,755.33 in attorney fees awarded to Mr. Shannon. Mr. Shannon and Evergreen seek attorney fees on appeal. Evergreen also challenges the court's decision to deny the motion for leave to amend. ANALYSIS ¶ 18 Summary judgment is proper when the pleadings and the evidence 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. CR 56(c). Once the moving party has made and supported his or her motion, the nonmoving party must come forward with specific facts showing that a genuine issue of fact exists for trial. CR 56(e). When reviewing a summary judgment, the appellate court must consider the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). ¶ 19 If the moving party is the defendant, who meets his or her showing, the inquiry shifts to the plaintiff. At that point, the plaintiff must make a showing sufficient to establish the existence of each essential element to that plaintiff's case in order to defeat summary judgment. Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). ¶ 20 Throughout its briefs, Evergreen repeatedly argues that its complaint impliedly states a wrongful disclosure claim against Mr. Shannon and Guild. According to Evergreen, Guild and Mr. Shannon used Evergreen's confidential information to lure the entire Moses Lake branch over to Guild. Evergreen uses this same argument to support its request to amend its complaint in order to add a UTSA claim. I. BREACH OF CONTRACT CLAIM AND BREACH OF DUTY OF LOYALTY CLAIM AGAINST MR. SHANNON ¶ 21 Improper Solicitation of Evergreen's Employees. Paragraph 7 of the branch manager agreement reads, in part; After Agent leaves Evergreen's employment, Agent shall not, on his/her own behalf or on behalf of any third party, directly or indirectly, solicit or aid anyone in the solicitation of any employees of Evergreen. Clerk's Papers (CP) at 555 (emphasis added). Evergreen contends the court erred by dismissing its breach of contract and breach of duty of loyalty claims against Mr. Shannon. Evergreen asserts that Mr. Shannon violated the branch manager agreement with Evergreen and his duty of loyalty to Evergreen by (1) improperly soliciting Evergreen's employees, (2) improperly soliciting Evergreen's customers, and (3) improperly disclosing Evergreen's confidential and proprietary information to Guild. ¶ 22 During the period of employment, an employee has a duty to refrain from soliciting customers for a rival business or to act in direct competition with his or her employer's business. Kieburtz & Assocs., Inc. v. Rehn, 68 Wash.App. 260, 265, 842 P.2d 985 (1992) (quoting RESTATEMENT (SECOND) OF AGENCY § 393 cmt. e (1958)). ¶ 23 Mr. Shannon contacted Guild in February 2009. Evergreen and the Moses Lake branch concluded their relationship on April 30, 2009. The Moses Lake branch affiliated with Guild, effective May 1. Any solicitation of employees by Mr. Shannon occurred before the Moses Lake branch left their at-will employment with Evergreen. Hence, Evergreen presents no evidence that Mr. Shannon breached paragraph 7 of the contract. ¶ 24 But there is a question as to whether Mr. Shannon breached his duty of loyalty to Evergreen by soliciting employees during the last few months he worked for Evergreen. Mr. Shannon contends there is no evidence to support Evergreen's employee solicitation claim. ¶ 25 However, Rita Nicholas testified that Mr. Shannon wanted her to move with him to Guild and that the move was discussed in terms of the whole group of employees going to Guild. Significantly, Ms. Nicholas testified that she had no independent contact with 381 Guild other than through Mr. Shannon. Ms. Nicholas stated: Q. So, in other words, at some point in time it became clear that like the medical benefits available at Guild were a little more expensive than the medical benefits at Evergreen; is that fair to say? A. Yes. . . . . Q. At some point in time, did somebody tell you there would be additional compensation from Guild to make up the difference in benefits? A. Yes. Q. And who told you that? A. Larry. CP at 546. At his deposition, Mr. Nay testified that the objective was to bring over the whole packageall of the employees. ¶ 26 Based on this testimony, there is a question of material fact as to whether Mr. Shannon breached his duty of loyalty by soliciting Evergreen's employees before he left Evergreen's employment. ¶ 27 Mr. Shannon argues that Evergreen's solicitation claim was properly dismissed because Evergreen failed to provide evidence as to damages. When asked to list any and all damage Evergreen sustained because of Mr. Shannon's alleged solicitation of Moses Lake employees, Evergreen's representative testified that there was none. However, Mr. Frachiseur, while not providing a dollar amount, did provide information concerning the lost loans, commission expense, and bonuses, which could be used when calculating damages. ¶ 28 The court erred by dismissing Evergreen's breach of loyalty employee solicitation claim against Mr. Shannon. ¶ 29 Improper Solicitation of Evergreen's Customers. Paragraph 6 of the agreement provides, in part: Non-independently developed contacts, clients or customers shall remain the property of Evergreen. Upon termination of this Agreement, Agent shall deliver and surrender all documents and loan information to Evergreen. Agent acknowledges and agrees that the business opportunities and relationships reflected in all documents are Evergreen's sole and exclusive property. Once processing on any customer or borrower's application has commenced by Evergreen, Agent shall not remove any file or any documents from such file. CP at 554. ¶ 30 Evergreen asserts that at least 17 of Evergreen's customers ended up closing loans with Guild rather than Evergreen. Mr. Shannon refers to these loans as the lost loans. Evergreen bases this conclusion on the pipeline reports prepared for each company. In Evergreen's view, once a borrower's name appeared on Evergreen's pipeline report, the individual was then considered to be an Evergreen customer. ¶ 31 While Evergreen bases its lost loans claim on the matching names found in Evergreen's and Guild's pipeline reports, Guild looks at the matter differently. Guild refers to a document it prepared that summarizes various declarations and other evidence. Guild's document establishes the date a person becomes a customer by using the date of the relevant purchase and sales agreement. Guild argues that Evergreen cannot show that it would have closed any of the lost loans. ¶ 32 Specifically, the document prepared by Guild shows: Loans released by Evergreen to Guild 3 Loans failing to meet Evergreen's standards 2 Loans not closed by Evergreen or Guild 2 Loan application started after 4/30/09 5 Purchase and sale agreements signed & loan applications started after 4/30/09 5 ___ TOTAL 17 See CP 961-63. ¶ 33 In her declaration, Anne Fisher explains that she was the loan originator on 9 of the 17 loans. She states that on each of the loans she originated, the individual contacted 382 her after May 1, 2009, and asked her to obtain the loan through Guild. ¶ 34 Evergreen focuses on three particular loan applications for borrower "G.L.,"[2] borrower "D.T.," and borrower "T.C." Each of these borrowers appeared on the pipeline reports for both Evergreen and Guild. However, each of these borrowers told Mr. Shannon that they wanted to stay with his office. ¶ 35 Evergreen uses these three declarations to support its argument. But these declarations favor Mr. Shannon, not Evergreen. ¶ 36 Evergreen relies on an e-mail dated April 22, 2009, from Mr. Shannon to Guild. This e-mail reads; Currently we have about 50 or 60 files that we need to get into the system. We need to close between 25 and 30 of these files in May. We are starting to have issues with borrowers and realtors and need to move forward as soon as we can. CP at 618. ¶ 37 However, Evergreen makes no effort to explain this e-mail in terms of the numbers appearing on the pipeline reports. ¶ 38 Here, Guild presented evidence demonstrating why borrowers named in Evergreen's pipeline report elected to finish their loans with Guild. Evergreen makes no effort to counter this evidence. ¶ 39 The court did not err by granting summary judgment in favor of Mr. Shannon and Guild with regard to the lost loans claim. ¶ 40 Improper Disclosure of Confidential and Proprietary Information. Evergreen contends that a claim for improper disclosure of confidential and proprietary information was pleaded in the complaint. Alternatively, Evergreen argues that an improper disclosure claim is implicit in the complaint and that the court erred by dismissing it. Evergreen contends that this claim is different than the cause of action for violation of the UTSA that Evergreen sought to add in its motion for leave to amend. ¶ 41 Evergreen asserts that the improper disclosure claim in its complaint is based on paragraph 6 of the agreement. Paragraph 6 provides that Mr. Shannon cannot disclose Evergreen's proprietary information. ¶ 42 Evergreen maintains that Mr. Shannon violated the agreement by disclosing Evergreen's confidential and proprietary information to Guild. Specifically, Evergreen contends that Mr. Shannon breached his obligation to Evergreen by disclosing Evergreen's (1) profit and loss sheet, (2) rate list, and (3) loan originator agreement. ¶ 43 CR 8 provides: A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which he deems himself entitled. ¶ 44 "[P]leadings are primarily intended to give notice to the court and the opponent of the general nature of the claim asserted." Lightner v. Balow, 59 Wash.2d 856, 858, 370 P.2d 982 (1962). A complaint must state the nature of a plaintiff's claims and the legal theories upon which the claims rest. Molloy v. City of Bellevue, 71 Wash. App. 382, 385, 859 P.2d 613 (1993). "[P]leadings are to be liberally construed; their purpose is to facilitate proper decision on the merits, not to erect formal and burdensome impediments to the litigation process." State v. Adams, 107 Wash.2d 611, 620, 732 P.2d 149 (1987) (citing Caruso v. Local Union No. 690 of Int'l Bhd. of Teamsters, 100 Wash.2d 343, 349, 670 P.2d 240 (1983)). ¶ 45 "[I]nitial pleadings which may be unclear may be clarified during the course of summary judgment proceedings." Id. However, while inexpert pleading is permitted, insufficient pleading is not. Dewey v. Tacoma Sch. Dist. No. 10, 95 Wash.App. 18, 23, 974 P.2d 847 (1999). "`A pleading is insufficient when it does not give the opposing party fair notice of what the claim is and the ground upon which it rests.'" Id. (quoting Lewis v. Bell, 45 Wash.App. 192, 197, 724 383 P.2d 425 (1986)). "A party who does not plead a cause of action or theory of recovery cannot finesse the issue by later inserting the theory into trial briefs and contending it was in the case all along." Id. at 26, 974 P.2d 847. ¶ 46 Evergreen contends that a claim for improper disclosure of confidential and proprietary information was pleaded in the complaint as part of its claim for the improper closing of Evergreen's customer's loans. Evergreen points to the following language in the complaint: [T]he Agreement provided that all contracts, clients or customers developed during [Mr.] Shannon's employment with Evergreen belonged to Evergreen. . . . . 3.2 Pursuant to the Agreement, [Mr.] Shannon promised, amongst other things, to use his best and exclusive efforts to originate loans for Evergreen, acknowledged that all clients and files for loans originated during his employment belonged to Evergreen, and agreed not to solicit Evergreen employees and input false information into Evergreen's files. 3.3 [Mr.] Shannon failed to honor his obligations under the Agreement. CP at 5, 7. ¶ 47 In its prayer for relief, Evergreen asks "[f]or an Order that [Mr.] Shannon and Guild return all client files to Evergreen, which were originated during [Mr.] Shannon's employment." CP at 10-11. ¶ 48 This language is insufficient to put Mr. Shannon on notice that Evergreen intended to plead a claim for improper disclosure of confidential and proprietary information, Evergreen failed to give Mr. Shannon fair notice of the disclosure claim or the grounds upon which it rested. ¶ 49 Evergreen next contends that the improper disclosure claim was pleaded through discovery. In Adams, the court concluded that "initial pleadings which may be unclear may be clarified during the course of summary judgment proceedings." Adams, 107 Wash.2d at 620, 732 P.2d 149. Here, the complaint is not unclear; a wrongful disclosure claim is simply not made. ¶ 50 Evergreen supports its argument by relying on documents and deposition testimony. The references to pages in the depositions of Mr. Shannon and Mr. Nay do not contain questions or answers that clearly indicate that Evergreen was pursuing an improper disclosure claim. ¶ 51 Given that the complaint does not contain even an unclear reference to an improper disclosure claim, later statements by Mr. Frachiseur did not clarify the complaint. Evergreen did not plead a claim of improper disclosure of confidential and proprietary information in its complaint. ¶ 52 The court erred by dismissing the breach of duty of loyalty claim against Mr. Shannon relating to the employee solicitation. The court did not err by dismissing the breach of contract claims or by refusing to consider the improper disclosure of confidential and proprietary information claim. II. TORTIOUS INTERFERENCE ¶ 53 A defendant is liable for tortious interference with a contractual or business expectancy when (1) there exists a valid contractual relationship or business expectancy, (2) the defendant had knowledge of the same, (3) the defendant's intentional interference induced or caused a breach or termination of the relationship or expectancy, (4) the defendant's interference was for an improper purpose or by improper means, and (5) the plaintiff suffered damage as a result. Pleas v. City of Seattle, 112 Wash.2d 794, 800-05, 774 P.2d 1158 (1989). ¶ 54 Tortious Interference with Employees. Evergreen first argues that Mr. Shannon and Guild tortiously interfered with its contractual and business expectancies with its employees. ¶ 55 To prove these claims, Evergreen had to prove that it had a valid expectancy in the continued employment of the Moses Lake branch employees. See Woody v. Stapp, 146 Wash.App. 16, 24, 189 P.3d 807 (2008). The employees of the Moses Lake branch were at-will employees. Importantly, "at-will employees do not have a business expectancy in continued employment." Id. 384 ¶ 56 Evergreen relies on Calbom v. Knudtzon, 65 Wash.2d 157, 396 P.2d 148 (1964). In Calbom, the trial court made a finding concerning the existence of an attorney-client relationship, whereby the plaintiff attorney was engaged to undertake the long-term probate of an estate. Id. at 163, 396 P.2d 148. The defendants argued that the attorney was only engaged to perform services for the limited purpose of admitting the will to probate and securing an order authorizing continuation of the business. Id. Examining the evidence as a whole, the appellate court concluded that even though the attorney-client relationship was terminable at will, the evidence and reasonable inferences supported the trial court's finding of an existing attorney-client privilege that the attorney had every right to anticipate would continue. Id. at 164, 396 P.2d 148. ¶ 57 Here, Evergreen has provided no circumstances showing an employer-employee relationship with Moses Lake employees that was anything other than an at-will relationship. ¶ 58 Tortious Interference with Evergreen's Customers. Evergreen next argues that Mr. Shannon and Guild tortiously interfered with Evergreen's business expectation that its customers would close their loans with Evergreen. Evergreen asserts that Guild interfered with Evergreen's expectation by assisting Mr. Shannon in diverting Evergreen's customers' loans to Guild. The evidence Evergreen offered to support these claims is the list of 17 borrowers' names that appeared on both Evergreen's pipeline reports and Guild's pipeline reports. ¶ 59 In response to this list of names, Mr. Shannon and Guild offered a summary detailing the evidence for each loan. This summary shows that none of the borrowers were taken from Evergreen. As noted earlier, in response to this evidence, Evergreen had to come forward with evidence showing it had an expectancy interest in at least one of the loans. It did not. Evergreen failed to raise a question of material fact as to the interference with business expectancy and contractual relations claims. Evergreen also asserts that, examining the projected income on Guild pro forma reports for the first month, it is obvious that Guild was planning the transfer of Evergreen's customers' loans to Guild. This argument is not persuasive. ¶ 60 Evergreen has failed to put forward sufficient facts to raise a question of material fact with respect to its claim of tortious interference based on the solicitation of the lost borrowers. The court did not err by dismissing the tortious inference claim against Mr. Shannon and Guild. III. CONSUMER PROTECTION ACT ¶ 61 Under Washington's CPA, a defendant violates the CPA when its (1) unfair or deceptive act, (2) occurred in commerce, (3) affected the public interest, (4) and proximately caused, (5) damage to the plaintiff's business or property. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 784-85, 719 P.2d 531 (1986). Evergreen does not allege any per se violation of the CPA. To establish a claim under the CPA, Evergreen must demonstrate that the alleged misconduct impacted public interest. ¶ 62 "The [first] two elements may be established by a showing that (1) an act or practice which has a capacity to deceive a substantial portion of the public (2) has occurred in the conduct of any trade or commerce." Id. at 785-86, 719 P.2d 531. Under the first element, the plaintiff must prove either that a per se unfair trade practice exists, or that the act in question "`had the capacity to deceive a substantial portion of the public.'" Brown v. Brown, 157 Wash. App. 803, 816, 239 P.3d 602 (2010) (quoting Hangman Ridge, 105 Wash.2d at 785, 719 P.2d 531). ¶ 63 Evergreen also does not allege a per se unfair trade practice. Additionally, Evergreen failed to allege any specific deception or deceptive acts. In short, Evergreen failed to create a question of material fact as to whether the conduct alleged would have the capacity to deceive anyone, much less a substantial portion of the public. ¶ 64 The purpose section of the CPA, RCW 19.86.920, demonstrates "a clear 385 intent to protect the general public by means of the CPA as a whole." Hangman Ridge, 105 Wash.2d at 788, 719 P.2d 531. The public interest element of the Hangman Ridge test may be established in one of two different ways. Id. at 789, 719 P.2d 531. Specifically, (1) through a per se claim, or (2) by the plaintiff satisfying a factor derived from the Hangman Ridge case. Id. at 789-90, 719 P.2d 531. Evergreen has not pleaded or asserted a per se claim; consequently, Evergreen had to offer evidence to satisfy a Hangman Ridge factor. ¶ 65 "[I]t is the likelihood that additional plaintiffs have been or will be injured in exactly the same fashion that changes a factual pattern from a private dispute to one that affects the public interest." Id. at 790, 719 P.2d 531. Significantly, conduct that is not directed at the public, but, rather, at a competitor, lacks the capacity to impact the public in general. Goodyear Tire & Rubber Co. v. Whiteman Tire, Inc., 86 Wash.App. 732, 744, 935 P.2d 628 (1997) (public interest not affected despite tire dealers tactics to secure dealership expansions). ¶ 66 Because this is a private dispute, the facts that determine whether there is an impact on public interest are: (i) whether the acts were committed in the course of defendant's business; (ii) whether the defendant actively advertised to the public in general; (iii) whether the defendant actively solicited this particular plaintiff, indicating potential solicitation of others; and (iv) whether the plaintiff and defendant occupy unequal bargaining positions. Hangman Ridge, 105 Wash.2d at 790-91, 719 P.2d 531. ¶ 67 Here, Evergreen cannot show that Guild's and Mr. Shannon's conduct was directed at the public. Evergreen contends that Guild's use of Evergreen's confidential and proprietary information constituted anti-competitive actions that affected the public. But this claim is not before the court because it was not pleaded in the complaint. ¶ 68 Taking the facts in the light most favorable to Evergreen, Evergreen has failed to meet the public interest element of the Hangman Ridge test. ¶ 69 The court did not err by dismissing Evergreen's claims against Guild and Mr. Shannon based on a violation of the CPA. IV. MOTION TO AMEND ¶ 70 Evergreen contends the trial court abused its discretion by denying Evergreen's motion for leave to amend its complaint. Evergreen seeks to amend its complaint to add a claim based on the UTSA. ¶ 71 On July 15, 2009, Evergreen filed its complaint. This complaint asserted five causes of action; breach of contract, breach of a duty of loyalty, tortious interference with a business relationship, tortious interference with contractual relations, and violation of the CPA. These claims were based on allegations that (1) in March 2009, Mr. Shannon began originating loans for Guild, (2) Mr. Shannon apparently "originated fictitious loans for Evergreen," and (3) Mr. Shannon also "solicited Evergreen employees to work for Guild." CP at 6. ¶ 72 On February 5, 2010, Guild supplied Evergreen with the three documents that serve as the basis for its motion for leave to amend. These documents are (1) an Evergreen profit and loss statement, (2) an Evergreen loan originator agreement, and (3) an Evergreen rate list. See Resp't Larry Shannon's Br. at 27. ¶ 73 In its scheduling order, the trial court established May 18, 2010, as the last day to amend pleadings. The cutoff for discovery was October 20. When Evergreen brought its motion for leave to amend on November 17, the case had not been set for trial. On January 10, 2011, the trial court denied Evergreen's motion for leave to amend. On February 8, the court granted summary judgment, dismissing all claims against Mr. Shannon and Guild. ¶ 74 When amendment of a complaint must be accomplished by leave of the court, leave to amend shall "be freely given when justice so requires." CR 15(a). The amendment of pleadings is within the discretion of the trial court and its ruling will not be reversed absent an abuse of discretion. Walla v. Johnson, 50 Wash.App. 879, 882, 751 P.2d 334 (1988). Discretion is abused *386 when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971). ¶ 75 "Although undue delay is a legitimate ground for denying leave to amend the pleadings, such delay must be accompanied by prejudice to the nonmoving party." Walla, 50 Wash.App. at 883, 751 P.2d 334. "The touchstone for denial of an amendment is the prejudice such amendment would cause." Caruso, 100 Wash.2d at 350, 670 P.2d 240. ¶ 76 Mr. Shannon and Guild argue that they were prejudiced by Evergreen's undue delay in filing its motion for leave to amend. Mr. Shannon and Guild assert that the amendment will require the parties to complete additional discovery and to repeat already conducted discovery. For example, according to them, discovery must be undertaken to investigate the basis for Evergreen's claim that the three items qualify as trade secrets and to determine whether there was misappropriation, improper means, independent economic value, and whether efforts were undertaken to maintain the documents' secrecy. The trial court heard the arguments of counsel and reviewed the pleadings and the documents listed in Exhibit A of the order denying the motion to amend. These documents included schedules, orders, numerous declarations, and memoranda. It is doubtful that these documents and files constitute trade secrets. ¶ 77 We conclude that the trial court did not abuse its discretion by denying the motion to amend. V. ATTORNEY FEES ¶ 78 Mr. Shannon was awarded attorney fees of $97,755.33 by the trial court. An award of attorney fees is allowed if authorized by law. RAP 18.1. A contractual provision that allows for attorney fees and costs is authority to grant such fees and costs on appeal to the prevailing party. Farm Credit Bank of Spokane v. Tucker, 62 Wash. App. 196, 207, 813 P.2d 619 (1991). The branch manager agreement contains a fee provision that entitles the prevailing party to its reasonable attorney fees and costs. ¶ 79 Mr. Shannon seeks an award of fees on appeal. Pursuant to RAP 18.1(i), we refer the award of attorney fees on appeal to the trial court following remand. VI. CONCLUSION ¶ 80 We affirm the dismissal of the breach of contract claim. We affirm the court's dismissal of CPA claims. We affirm the dismissal of the motion to amend. We affirm the dismissal of the tortious interference claims. We conclude that the wrongful disclosure claim was not set forth in the complaint. We reverse the dismissal of the breach of duty of loyalty claim related to employee solicitation. We remand to the trial court for trial and determination of attorney fees at trial and on appeal. WE CONCUR: KORSMO and SIDDOWAY, JJ. NOTES [1] This claim was dismissed by the trial court and is not mentioned in Evergreen's briefs. [2] Borrowers are listed in Evergreen's and Guild's pipeline reports with their last name first. This convention is adopted here.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2658103/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1878 MARCELO BLADIMIR SOL-FLORES, Petitioner, v. ERIC H. HOLDER, JR., U. S. Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: March 18, 2014 Decided: March 27, 2014 Before NIEMEYER, MOTZ, and THACKER, Circuit Judges. Petition denied by unpublished per curiam opinion. Amanda Bethea Keaveny, THE LAW OFFICE OF AMANDA BETHEA KEAVENY, Charleston, South Carolina, for Petitioner. Stuart F. Delery, Assistant Attorney General, Cindy Ferrier, Assistant Director, Tracie N. Jones, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marcelo Bladimir Sol-Flores, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals (“Board”) dismissing his appeal from the immigration judge’s denial of his requests for asylum, withholding of removal, and protection under the Convention Against Torture. * We have thoroughly reviewed the record, including the transcript of Sol-Flores’ merits hearing and all supporting evidence. We conclude that the record evidence does not compel a ruling contrary to any of the administrative factual findings, see 8 U.S.C. § 1252(b)(4)(B) (2012), and that substantial evidence supports the Board’s decision. See INS v. Elias–Zacarias, 502 U.S. 478, 481 (1992). Accordingly, we deny the petition for review for the reasons stated by the Board. See In re: Sol-Flores (B.I.A. June 13, 2013). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. PETITION DENIED * Sol-Flores has failed to raise any challenges to the denial of his request for protection under the Convention Against Torture. He has therefore waived appellate review of this claim. See Ngarurih v. Ashcroft, 371 F.3d 182, 189 n.7 (4th Cir. 2004). 2	01-03-2023	03-28-2014
https://www.courtlistener.com/api/rest/v3/opinions/709855/	72 F.3d 132NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. James W. EDGIN, Plaintiff-Appellant,v.Dr. Robert PORTER, Lake County Sheriff, Jail Warden, et al.,Defendants-Appellees. No. 94-2376. United States Court of Appeals, Seventh Circuit. Submitted Nov. 19, 1995.Decided Dec. 1, 1995. Before FLAUM, MANION, and Diane P. WOOD, Circuit Judges. ORDER 1 From October 25, 1993 to October 29, 1993, James W. Edgin was held at the Lake County Jail in Lake County, Indiana, to attend a post-conviction proceeding. He filed a civil rights suit pursuant to 42 U.S.C. Secs. 1981, 1983, 1985, 1986 and 1988, against jail officials on the grounds that they violated his Eighth Amendment rights by depriving him of his nitroglycerin pills, which he needed due to his heart condition.1 The district court granted summary judgment to the defendants and entered a separate final judgment.2 We affirm. 2 Along with the motion for summary judgment, the defendants filed an affidavit by J. Michael Pancini, the Assistant Director of the Health Services Division of the Lake County Jail. Pancini stated in his affidavit that at an unspecified date, Edgin's pills were temporarily taken away because of a policy against allowing prisoners to keep glass bottles. According to the affidavit, when Edgin informed Pancini and others of his condition, "Dr. Porte" [sic] was consulted. The doctor instructed them to give the prisoner two nitroglycerin pills in an envelope to carry with him and to renew the procedure each day as necessary. The progress notes, written physician's orders and nurse's notes for October 25 and 26, 1993 corroborate these assertions. The progress notes refer to Edgin's heart medications on October 25, 1993, and to his concerns about his glass bottle of nitroglycerin the next day. After each reference, the progress notes say "see order." According to the physician's orders, the physician prescribed "Nitrobid"3 from Edgin's own supply on the first day and "nitroglycerin" from that supply on the second day. The nurse's notes for October 25 indicate that after conferring with the "FNP on call," the inmate was given his "bottle" of nitroglycerin. 3 Edgin must show that the prison officials acted with deliberate indifference to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104-05 & n. 10 (1976); see Farmer v. Brennan, 114 S.Ct. 1970, 1977 (1994) (stating elements of Eighth Amendment violation). "Deliberate indifference" means that the prison officials knew of and disregarded a risk of serious harm. Del Raine v. Williford, 32 F.3d 1024, 1032 (7th Cir.1994). In response to the motion for summary judgment, which was supported by an affidavit and hospital records, Edgin needed to supply some evidence demonstrating the existence of a genuine issue of material fact. Fed.R.Civ.P. 56(e). Furthermore, the defendants moved for summary judgment on the basis of the lack of evidence of deliberate indifference. Thus even if they failed to supply evidence, Edgin, who would bear the burden of proof at trial, was required to supply sufficient evidence to establish the existence of that element. Celotex Corp., 477 U.S. at 324-25. 4 However, Edgin supplied no evidence of his own in response. Instead, he claimed that Pancini's affidavit should be disregarded because it referred to an "envelope" and a policy against permitting glass bottles, while the nurse's notes state that a "bottle" was returned. On appeal, Edgin simply asserts that the defendants lied and that they never returned his medication until the end of his stay. The references to delivering the medication in an envelope or a bottle, albeit a factual conflict, do not create a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The medical records indicate that after a consultation, he received nitroglycerin on the day of his arrival and that more was prescribed for him on the following day. Given the absence of evidence to demonstrate deliberate indifference, summary judgment was proper. 5 As for the denial of the request for appointed counsel, Edgin attempted to show that he had tried to obtain counsel by providing letters that he had sent to attorneys concerning some other matter years before he even visited the Lake County Jail. The district court properly refused on the grounds that Edgin failed to make the threshold showing that he had first attempted to obtain counsel on his own. Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir.1995). Finally, the district court did not abuse its discretion by not waiting to hold an evidentiary hearing before ruling on the motion for summary judgment. Edgin neither asserted in his response the need for additional discovery, nor included a supporting affidavit demonstrating that need. Fed.R.Civ.P. 56(f); see Wallace v. Tilley, 41 F.3d 296, 303 (7th Cir.1994); King v. Cooke, 26 F.3d 720, 725-26 (7th Cir.1994), cert. denied, 115 S.Ct. 1373 (1995). 6 AFFIRMED. After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Cir.R. 34(f). No such statement having been filed, the appeal is submitted on the briefs and the record 1 Edgin has not cited Secs. 1981, 1985, 1986 and 1988 since he mentioned them in the jurisdictional portion of his pre-printed Sec. 1983 form. Neither the complaint, nor the record support them. Thus, we will not address them separately We also note that the Lake County Sheriff has failed to file an Appellee's Brief. The defendants-appellees were ordered to show cause by May 26, 1995, for why this case should not be decided without the filing of a brief and without oral argument pursuant to Circuit Rule 31(d). The order to show cause was suspended when the other defendants-appellees responded, although the sheriff did not. He has neither filed a brief, nor indicated any desire to do so after the issuance of the Rule 34(f) notice. We are proceeding without the benefit of his brief. Cf. Cir.R. 31(d). 2 Although the Lake County Sheriff did not move for summary judgment, the district court could grant summary judgment to him because the other defendants' arguments applied equally well to him and Edgin had an opportunity to argue in opposition. Kennedy v. Children's Serv. Society of Wisconsin, 17 F.3d 980, 983 n. 1 (7th Cir.1994); see Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) 3 "Nitrobid" is a brand name for nitroglycerin. The PDR Family Guide to Prescription Drugs at 459-60 (2d Ed.1994); see Mukesh Mehta, PDR Guide to Drug Interactions, Side Effects, Indications, at 717 (49th Ed.1995)	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/2500738/	333 F.Supp.2d 28 (2004) Everton NOTICE, Plaintiff, v. CHANLER LEWIS, INC., Defendant. No. 3:02CV1599(RNC). United States District Court, D. Connecticut. September 8, 2004. 29 W. Martyn Philpot, Jr., Law Offices Of W. Martyn Philpot, Jr., LLC, New Haven, CT, for Plaintiff. Alan I. Scheer, Diane C. Mokriski, O'Connell, Flaherty & Attmore, Hartford, CT, Mary Jane Ryan, Summa & Ryan, P.C., Waterbury, CT, for Defendant. RULING AND ORDER CHATIGNY, District Judge. Plaintiff Everton Notice, an African-American of Jamaican descent, brings this action pursuant to 42 U.S.C. §§ 1981 and 2000e, alleging that he was terminated from his employment because of his race and national origin, and retaliated against by his former employer, defendant Chanler Lewis, Inc., for filing a civil rights complaint in connection with his termination. He also brings state law claims for wrongful discharge and intentional and negligent infliction of emotional distress. Defendant has filed a motion for summary judgment on the wrongful discharge claim contending that it is preempted by § 301 of the Labor-Management Relations Act and that any claim under § 301 is barred by the applicable six-month statute of limitations. I agree and therefore grant the motion. BACKGROUND The following facts are undisputed. In 1997, plaintiff began working for defendant as a production worker. On Friday, May 12, 2001, he was sent home early. He returned to work the following Monday, but was told at the end of his shift that his employment was terminated. Plaintiff alleges that although it was defendant's custom and practice to give three warnings before terminating an employee, he received no warning, verbal or written. At the time plaintiff's employment was terminated, defendant was a party to a collective bargaining agreement with Carpenters Local Union 24 of the United Brotherhood of Carpenters and Joiners of America. Plaintiff contacted his union representative, who filed a grievance protesting the termination. Plaintiff was later told that, as a result of the grievance, defendant had agreed to offer him the next available production class position. Plaintiff denies that he assented to the terms of the settlement agreement. In September 2001, plaintiff filed an unfair labor practices charge with the National Labor Relations Board against the union, alleging that the union had failed to properly represent him and process his grievance against the defendant. The charge was later withdrawn. DISCUSSION Section 301 provides for federal jurisdiction over "suits for violation of contracts between an employer and a labor organization representing employees." 29 U.S.C. § 185(a). This text "has been read to pre-empt state-court resolution of disputes turning on the rights of parties under collective-bargaining agreements." Livadas v. Bradshaw, 512 U.S. 107, 114-15, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994). Section 301 preemption aims to ensure that common terms in labor agreements do not receive differing interpretations. Id. at 122, 114 S.Ct. 2068. It does not attempt to regulate the "substantive rights a State may provide to workers when adjudication of those rights does not depend upon the interpretation of such agreements." Lingle v. Norge Div. of Magic Chef, Inc., 486 30 U.S. 399, 409, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Thus, "it is the legal character of a claim, as `independent' of rights under a collective-bargaining agreement ... that decides whether a state cause of action may go forward ... [and] when the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished...." Livadas, 512 U.S. at 123-24, 114 S.Ct. 2068; see also Foy v. Pratt & Whitney Group, 127 F.3d 229, 233 (2d Cir.1997). Defendant contends that plaintiff's wrongful discharge claim is preempted by § 301 because it cannot be adjudicated without interpreting the collective bargaining agreement. I agree. To prevail on this claim, plaintiff must prove that defendant undertook a "form of actual contract commitment to him under which he could not be terminated without just cause." Torosyan v. Boehringer Ingelheim Pharms., Inc., 234 Conn. 1, 15, 662 A.2d 89 (1995). The collective bargaining agreement does not contain a just cause provision, but it does provide for a grievance and arbitration process, which might support a reasonable inference that plaintiff could not be terminated without just cause. See, e.g., SFIC Props., Inc. v. International Ass'n of Mach. & Aerospace Workers, 103 F.3d 923, 926 (9th Cir.1996); Smith v. Kerrville Bus Co., 709 F.2d 914, 917 (5th Cir.1983). Whether such a requirement should be inferred requires interpretation of the collective bargaining agreement. Therefore, plaintiff's wrongful discharge claim is preempted by § 301. When a state law claim if found to be preempted by § 301, the claim "must either be treated as a § 301 claim or dismissed as pre-empted by federal labor-contract law." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) (citation omitted). Actions brought pursuant to § 301 must be "[s]uits for violation of contracts between an employer and a labor organization." 29 U.S.C. § 185(a). Accordingly, plaintiff's wrongful discharge claim must be construed as a § 301 claim for violation of the collective bargaining agreement. Defendant contends that plaintiff's cause of action, as thus construed, is governed by the six month statute of limitations for "hybrid claims" in § 10(b) of the National Labor Relations Act. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 172, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). A hybrid claim is one in which "an employee has a cause of action against both the employer and the union, where the two claims are inextricably linked, and where the case to be proved is the same against both." McKee v. Transco Products, Inc., 874 F.2d 83, 86 (2d Cir.1989). A claim may be hybrid in nature even though only the employer is named as a defendant. Id. A plaintiff "cannot circumvent the six-month limitations period for hybrid actions by choosing to sue only [his] employer." Id. In McKee, the plaintiffs were fired for failing to leave their work site after completing an assignment. Id. at 84. Dissatisfied with the union's processing of their grievance, they filed an unfair labor practice charge against the union with the NLRB, but then withdrew it. Id. at 84-85. They later brought suit against the employer only. Id. at 85. The Court of Appeals held that the claim was a hybrid one subject to the six month statute of limitations. Id. at 84, 87. Given the basic similarity between this case and McKee, I conclude that the six-month limitation applies to plaintiff's wrongful discharge claim. The claim was *31 filed on September 10, 2002, almost sixteen months after the discharge. Thus, the claim is time-barred. CONCLUSION For the foregoing reasons, defendant's motion for summary judgment [Doc. # 25] on the third count of the complaint is hereby granted. So ordered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2500654/	333 F. Supp. 2d 229 (2004) CREDIT SUISSE FIRST BOSTON, LLC, Petitioner, v. Thomas W.S. GROVES, Respondent. No. 04 Civ. 6585(LLS). United States District Court, S.D. New York. September 9, 2004. 230 Quinn, Emanuel, UrQuhart, Oliver & Hedges, LLP, Michael B. Carlinsky, Kevin S. Reed, of counsel, New York City, for Petitioner. Lax Law Firm, Barry R. Lax, of counsel, New York City, Law Offices of Brian J. Neville, P.C., Brian J. Neville, of counsel, New York City, For Respondent. Opinion and Order STANTON, District Judge. Petitioner Credit Suisse First Boston, LLC ("Credit Suisse") seeks to compel one of its former employees, respondent Thomas W.S. Groves ("Groves"), to arbitrate a dispute between the parties under the auspices of Judicial Arbitration and Mediation Services, Inc. ("JAMS"), and to discontinue the New York Stock Exchange ("NYSE") arbitration Groves initiated. Groves opposes the petition and makes a reciprocal application to compel the NYSE arbitration and enjoin the JAMS arbitration. A temporary restraining order staying the NYSE arbitration was granted on August 17, 2004, and at the August 25 oral argument both parties were stayed from proceeding with either arbitration pending this decision. The court has subject matter jurisdiction under 28 U.S.C. § 1332 because there is complete diversity between the parties and the amount in controversy exceeds $75,000. Discussion Credit Suisse employed respondent Groves as an investment banker from July 1990 until December 2003, when his employment was terminated. On July 6, 2004, Groves initiated an arbitration against Credit Suisse in the NYSE Department of Arbitration. On August 12, 2004, Credit Suisse in turn initiated an arbitration against Groves before JAMS. Both arbitration proceedings involve the same claims growing out of Groves's employment and its termination. The issue is which arbitral forum is the proper one. 1. The NYSE Arbitration Provision Credit Suisse, as a member organization of the NYSE, is subject to the NYSE's Rule 347 requiring it to arbitrate, "at the instance of any such party," employment controversies with its registered representatives. Groves, as an employee of Credit Suisse, signed a Form U-4 Uniform Application for Securities Industry Registration or Transfer, which entitles and requires him to arbitrate employment-related disputes under the rules of the NYSE at his 231 own or the employer's instance. Rule 347 of the NYSE states that: [A]ny controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration, at the instance of any such party, in accordance with the arbitration procedure prescribed elsewhere in these rules. 2. The Credit Suisse Arbitration Provision Groves, as an employee of Credit Suisse, was also subject to Credit Suisse's Employment Dispute Resolution Program ("EDRP"). That is an internal program for the resolution of employment-related disputes, consisting of three steps: an internal grievance procedure, mediation, and arbitration. It contains an arbitration forum selection clause which states, "All arbitrations under the Program will be conducted by a single arbitrator supplied by JAMS, the American Arbitration Association, or the Center for Public Resources (CPR) Institute for Dispute Resolution (`Service Providers') ... The party that first requests an arbitration will choose which of the three Service Providers will be used for the proceeding." No one disputes that the subject-matter of Groves's claims is covered by the EDRP. If it applies, under its forum selection clause NYSE arbitration is not an option. The EDRP provides for conflicts between a forum designated in the EDRP's arbitration forum selection clause and a forum designated in some other arbitration agreement between the parties (such as the NYSE rule) by giving priority to the EDRP forum unless the other forum is legally required "to the exclusion of all other rules and forums", in which case that other forum will take precedence. The EDRP states: An employee who is (or is required to be) a registered representative shall be subject to the arbitration provisions of the Program with regard to an Employment-Related Claim asserted by him or her except to the extent he or she is legally required to arbitrate such Employment-Related Claim pursuant to particular rules or in a particular forum (for example, pursuant to the rules of or at a stock exchange or the National Association of Securities Dealers) to the exclusion of all other rules and forums. If such a requirement applies, it will take precedence over the arbitration procedure described in Step Three of the Program. Groves argues that under Rule 347, he is "legally required" to arbitrate before the NYSE, and that his NYSE arbitration therefore takes precedence over any forum designated in the EDRP. Credit Suisse argues that NYSE arbitration is not "legally required" but is invoked at the election of the employee or member firm, and therefore does not take precedence. 3. The Padilla Case Judge Stein of this court recently adjudicated this precise issue in Credit Suisse First Boston, LLC v. Padilla, 326 F. Supp. 2d 508 (S.D.N.Y.2004). He held that an employee's right to demand NYSE arbitration was elective and could be waived. He held that the execution of the EDRP by a Credit Suisse employee was such a waiver, and that the NYSE arbitration Gonzales Padilla initiated after executing the EDRP was therefore a nullity. Judge Stein stated: Rule 347 of the Exchange details when registered representatives are obligated to arbitrate before the Exchange. The Securities and Exchange 232 Commission has explained that "Rule 347 requires arbitration of claims `at the instance' of either party, and therefore may be waived, allowing the entire case to be heard in court." Self Regulatory Organizations; Order Approving Proposed Rule Change by the New York Stock Exchange, Inc. Relating to Arbitration Rules, 1998 WL 907943 (S.E.C. Release No. 40858). Accordingly, neither party to this action becomes "legally required," pursuant to the EDRP, to arbitrate within the Exchange unless and until one party initiates such a proceeding. Because Gonzalez explicitly agreed in the EDRP not to demand arbitration before the Exchange unless he were legally required to do so, his very act of seeking arbitration before the Exchange despite being free of any legal requirement to do so was in the first place a violation of the EDRP and nothing more than an attempt to bootstrap his way into meeting the "legally required" exception to the EDRP. The parties agreed to arbitrate pursuant to the EDRP unless "legally required" to arbitrate elsewhere; because neither party's circumstance met the EDRP exception, Gonzalez may not pursue his claims in the Exchange. Id. at 512-13. The language of Rule 347 does not bind Groves to a NYSE arbitration, but merely states that a NYSE arbitration will be employed "at the instance of any such party." Therefore the "legally required" exception does not apply to him. When Groves became a party to the EDRP which provides for arbitration before a non-NYSE forum, he waived the right to elect a NYSE forum. Groves points to a New York state case, Credit Suisse First Boston v. Pitofsky, 2 A.D.3d 6, 768 N.Y.S.2d 436 (1st Dept.2003), stayed, and leave to appeal granted, 2004 N.Y. LEXIS 1696, 3 N.Y.3d 635 (N.Y. June 29, 2004), which held otherwise. Judge Stein correctly followed the Federal Arbitration Act, rather than Pitofsky. See Padilla, 326 F.Supp.2d at 512. I also decline to follow Pitofsky because it did not address the significance of the language in Rule 347 stating that arbitration will be "at the instance of any such party", which eviscerates the notion that NYSE arbitration is "legally required." 4. The EDRP's Forum Selection Clause and Public Policy Groves further argues that the EDRP's arbitration forum selection clause is void because it violates public policy. Thomas James Assocs., Inc. v. Jameson, 102 F.3d 60 (2nd Cir.1996) held that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (1988), embodies a strong federal policy favoring arbitration, which overcame an employment agreement purporting to waive the right to arbitration. See 102 F.3d at 66-67. The employer in Jameson required employees to waive "all rights to arbitration which may be provided by any federal, state or self-regulatory organization rule or regulation". Id. at 63. The court held the waiver of the right to arbitrate could not stand. But nothing in Jameson or in the law extends the public policy favoring arbitration to the point of favoring a particular arbitral forum, or one forum over another. Public policy has no concern with whether any particular arbitration is conducted by the NYSE, or by JAMS, or by some other facility such as the American Arbitration Association. That is a matter left to individual agreements. See Merrill Lynch, Pierce, Fenner, & Smith Inc. v. Georgiadis, 903 F.2d 109, 111 (2nd Cir.1990), holding that "the arbitration provision of the AMEX Constitution may be superseded by 233 a more specific customer agreement" and that where "the parties have agreed explicitly to settle their disputes only before particular arbitration fora, that agreement controls." Id. at 112-13. The EDRP does not waive, but protects, the right to arbitrate. There is no reason why a selection of one arbitral forum cannot be waived, and another substituted. Conclusion For the foregoing reasons, the petition is granted, and Groves's application to compel NYSE arbitration and enjoin JAMS arbitration is denied. Groves's NYSE arbitration is stayed; the stay of the JAMS arbitration is vacated; and Groves is directed to arbitrate his claims against Credit Suisse under the JAMS procedures. The Clerk will enter judgment accordingly. So ordered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2500655/	275 P.3d 285 (2012) 2012 UT App 93 Larry Ross HARMON, Petitioner, v. UTAH BOARD OF PARDONS, Respondent. No. 20120074-CA. Court of Appeals of Utah. March 29, 2012. Larry Ross Harmon, Gunnison, Petitioner Pro Se. Mark L. Shurtleff and Brent A. Burnett, Salt Lake City, for Respondent. Before Judges McHUGH, DAVIS, and CHRISTIANSEN. DECISION PER CURIAM: ¶ 1 Petitioner Larry Ross Harmon filed this petition for extraordinary relief seeking a writ directing the Utah Board of Pardons to hold an immediate reconsideration hearing and to grant him release on parole based upon the recommended matrix guidelines for the time to be served on his convictions. Because we conclude that Harmon has not demonstrated that it was impractical or inappropriate to file the petition in the district court, we dismiss the petition without prejudice to the filing of a petition under rule 65B(d) of the Utah Rules of Civil Procedure in the appropriate district court. ¶ 2 A petition for an extraordinary writ referred to in rule 65B of the Utah Rules of Civil Procedure and filed in an appellate court shall "[e]xcept in cases where the writ is directed to a district court," contain "a statement explaining why it is impractical or inappropriate to file the petition for a writ in *286 the district court." Utah R.App. P. 19(b)(5). In his petition, Harmon stated, The writ does not question the validity of the district court conviction or sentence, but is rather of an appeals nature of unlawful actions by an agency of the executive branch of the Utah government. It is therefore impractical and inappropriate for a district court, in its lower stature, to decide this matter. Furthermore, the issues of this writ are in the realm of a first degree felony, over which the Utah Supreme Court has jurisdiction. ¶ 3 This statement is not sufficient to demonstrate that it was either impractical or inappropriate to file the petition in the district court. The petition is not directed to a district court or district court judge and instead addresses actions of the Utah Board of Pardons. See Utah R. Civ. P. 65B(a) (stating that where no other plain, speedy and adequate remedy is available, a person may petition the court for extraordinary relief "involving... actions by the Board of Pardons and Parole"). The district court, as the court of general jurisdiction, routinely considers and determines petitions filed under rule 65B(d) of the Utah Rules of Civil Procedure and directed to the Utah Board of Pardons. If a petitioner is unsuccessful in the district court, an appeal of that decision may be filed in the appropriate appellate court. See, e.g., Renn v. Board of Pardons, 904 P.2d 677 (Utah 1995) (reviewing on certiorari a court of appeals' decision reversing the district court's dismissal of a rule 65B petition); Lancaster v. Board of Pardons, 869 P.2d 945 (Utah 1994) (appealing a district court dismissal of a rule 65B petition seeking extraordinary relief); Labrum v. Board of Pardons, 870 P.2d 902 (Utah 1993) (same). Harmon has demonstrated no adequate factual basis for his assertion that the petition could not and should not have been filed in the district court in the first instance. ¶ 4 Accordingly, we dismiss the petition for extraordinary relief without prejudice to a petition filed pursuant to rule 65B(d) of the Utah Rules of Civil Procedure in the appropriate district court. Our disposition makes it unnecessary to consider the merits of the arguments made by Harmon and the Utah Board of Pardons.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2500661/	276 P.3d 1123 (2012) 351 Or. 675 STATE v. CARNES. (S060023). Supreme Court of Oregon. March 22, 2012. Petition for Review Allowed Denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2500666/	274 P.3d 1233 (2012) In re Linda WILLHITE and Rex Willhite, Plaintiffs v. Paulo RODRIGUEZ-CERA and Juan Torres, Defendants. No. 11SA250. Supreme Court of Colorado, En Banc. April 23, 2012. 1234 Bendinelli Law Firm, P.C., Marco F. Bendinelli, Blaine L. Milne, Westminster, Colorado, Attorneys for Plaintiff Rex Willhite. Senter Golfarb & Rice, L.L.C., Arthur J. Kutzer, Joel A. Palmer, Denver, Colorado, Attorneys for Defendant Paulo Rodriguez-Cera. No Appearance by or on behalf of Linda Willhite and Juan Torres. Justice BOATRIGHT delivered the Opinion of the Court. ¶ 1 In this original proceeding under C.A.R. 21, we review the trial court's order quashing service on Paulo Rodriguez-Cera, who resides in Mexico, but was served by substituted service in Colorado. After previously granting substituted service under C.R.C.P. 4(f), the trial court determined that C.R.C.P. 4(d) mandated that service on a defendant located in a foreign country be made according to international agreement, if any. Because Mexico and the United States 1235 are both parties to the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), 20 U.S.T. 361, the trial court concluded that Plaintiff Rex Willhite must serve Rodriguez-Cera via the Hague Service Convention. As a result, the trial court quashed the substituted service. ¶ 2 We hold that C.R.C.P. 4(d) does not establish service according to international agreement as the exclusive means of serving a defendant located in a foreign country. Under C.R.C.P. 4(d), service according to international agreement is just one method for effecting service in a foreign country. Further, C.R.C.P. 4(d) does not require that service on a defendant located in a foreign country actually occur abroad and nothing in Rule 4(d) prohibits a plaintiff from serving a defendant within the United States if otherwise authorized. We hold that substituted service under C.R.C.P. 4(f) provides a valid alternative to service abroad. We acknowledge that the Hague Service Convention is implicated when the law of the forum state requires the transmittal of documents abroad in order to effectuate service. However, we conclude that the transmittal of documents abroad is not required to effectuate service under C.R.C.P. 4(f) and therefore the Hague Service Convention is not implicated by substituted service within the United States under Colorado's Rules of Civil Procedure. We make the rule absolute and remand to the trial court for further proceedings consistent with this opinion. I. Factual Background and Procedural History ¶ 3 In his personal injury complaint, Willhite alleged that Rodriguez-Cera rear-ended the vehicle Willhite was driving.[1] Willhite filed suit against Rodriguez-Cera and Juan Torres, the owner of the vehicle Rodriguez-Cera was driving, for damages for the injuries he suffered in the accident. Willhite attempted to serve Rodriguez-Cera personally in Colorado but was unable to locate him. While attempting service, the process server learned that Rodriguez-Cera was residing in Mexico. The process server also learned that Rodriguez-Cera was in regular contact with his sister, Lydia Torres-Bravo, who was married to co-defendant Juan Torres and was living in Colorado. ¶ 4 After learning that Rodriguez-Cera was living in Mexico, Willhite filed a motion for substituted service pursuant to C.R.C.P. 4(f), asking the trial court to permit substituted service on Rodriguez-Cera's sister. Unconvinced that Willhite had made sufficient effort to serve Rodriguez-Cera personally as required by C.R.C.P. 4(f), the trial court denied the motion. The court, however, granted Willhite's motion to conduct early discovery to assist in determining the location of Rodriguez-Cera's workplace or residence. In the course of early discovery, Willhite deposed Ms. Torres-Bravo and learned that Rodriguez-Cera was living with their parents in a small town in Chihuahua, Mexico and was in regular contact with his sister through her phone calls to their parents. Ms. Torres-Bravo could not provide an address for her parents' home and believed that the homes in that small town did not have numbers. Willhite filed a renewed motion for substituted service. The trial court denied the motion, noting that Willhite had not described any diligent efforts to follow the international service requirements of C.R.C.P. 4(d), and directed Willhite to proceed with service on Rodriguez-Cera pursuant to the Hague Service Convention. ¶ 5 Six months later, Willhite filed a second renewed motion for substituted service. He reported that he undertook efforts to serve Rodriguez-Cera through the Mexican central authority, in accordance with the Hague Service Convention, but was hindered by numerous obstacles and bureaucratic challenges.[2]1236 The trial court granted Willhite's second renewed motion for substituted service and authorized substituted service pursuant to C.R.C.P. 4(f). ¶ 6 The next day, Willhite served Rodriguez-Cera by substituted service on his sister, Ms. Torres-Bravo. By special appearance, Rodriguez-Cera filed a motion to quash the substituted service. He argued that C.R.C.P. 4(d) mandates adherence to international treaty, in this case, the Hague Service Convention. He also argued that substituted service is not allowed when a plaintiff is obligated to serve a defendant outside the United States pursuant to C.R.C.P. 4(d). The trial court interpreted C.R.C.P. 4(d) to require a plaintiff to serve a defendant located in another country in accordance with international agreement and determined that, in the case of Mexico, that international agreement was the Hague Service Convention. The trial court ruled that Willhite must serve Rodriguez-Cera via the Hague Service Convention and granted the motion to quash. ¶ 7 Willhite filed a C.A.R. 21 petition seeking review of the trial court's order quashing service. We issued a rule to show cause to determine whether C.R.C.P. 4(d) mandates service by international agreement as the exclusive means of serving a defendant located in a foreign country and, if not, whether substituted service within the United States provides a valid alternative to service abroad. II. Jurisdiction ¶ 8 C.A.R. 21 authorizes this court to review a trial court's order if a remedy on appeal would not be adequate. C.A.R 21(a)(1). An order quashing service is not a final order that is immediately appealable. Hoen v. Dist. Court, 159 Colo. 451, 455, 412 P.2d 428, 430 (1966) (holding that an order quashing service was not a final appealable order and was therefore proper for an original proceeding). But in this case, if Willhite is unable to serve Rodriguez-Cera in Mexico pursuant to the Hague Service Convention and cannot appeal the order quashing the substituted service, then his attempt to bring suit would be frustrated by procedure and not adjudicated on the merits. We conclude that relief under C.A.R. 21 is appropriate in these circumstances. III. Standard of Review ¶ 9 The United States Supreme Court is the final authority on matters of federal constitutional law, and we are bound by its interpretations of international treaties. Am. Fed'n of Labor v. Reilly, 113 Colo. 90, 96, 155 P.2d 145, 148 (1945); see also U.S. Const. art. VI, cl. 2 (Supremacy Clause). However, this court is the final authority on questions of Colorado law. We interpret our rules of civil procedure de novo and apply principles of statutory construction. Garrigan v. Bowen, 243 P.3d 231, 235 (Colo.2010). "Accordingly, we give effect to the express language of the rule, considering the rule as a whole and giving consistent effect to all of its parts." Id. IV. Analysis ¶ 10 This case raises questions regarding the possible methods of serving a defendant located in a foreign country. To resolve these questions in this case, which involves a defendant residing in a country that is party to the Hague Service Convention, we must examine the Hague Service Convention as well as Colorado's rules governing service of process. ¶ 11 The Hague Service Convention is a multilateral treaty addressing service of process in foreign countries. See 20 U.S.T. 361. Because the United States and Mexico are both parties to the Convention, it is of potential applicability to this case. See id. (United States); Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 2117 U.N.T.S. 318 (accession of Mexico entered into force June 1, 2000). We therefore begin by reviewing the scope of the Hague Service Convention. The United States Supreme Court has held that the Convention is implicated when the laws of the forum state require the transmittal of documents abroad in order to effectuate service. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 108 S. Ct. 2104, 100 L. Ed. 2d 722 (1988). 1237 Because the applicability of the Hague Service Convention depends on the law of the forum state, we turn to Colorado's rules governing service of process. ¶ 12 C.R.C.P. 4(d) addresses process served in a foreign country. It provides for service according to international agreement as one method of serving a defendant in a foreign country. However, service according to international agreement is not the exclusive means of effecting service in a foreign country under C.R.C.P. 4(d). Moreover, C.R.C.P. 4(d) does not require that service on a defendant located in a foreign country actually occur abroad and nothing in Rule 4(d) prohibits a plaintiff from serving a defendant within the United States, if otherwise authorized. We conclude that substituted service under C.R.C.P. 4(f) provides a valid alternative to service abroad. Because C.R.C.P. 4(f) does not require the transmittal of documents abroad in order to effectuate service, the Hague Service Convention is not implicated. Accordingly, we make the rule absolute and remand to the trial court for further proceedings consistent with this opinion. A. The Scope of the Hague Service Convention ¶ 13 The Hague Service Convention is a multilateral treaty formulated in 1964 by the Tenth Session of the Hague Conference of Private International Law. See Volkswagenwerk, 486 U.S. at 698, 108 S. Ct. 2104 (describing the history of the treaty). It revised parts of the Hague Conventions on Civil Procedure of 1905 and 1954. The revision was intended "to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit." Id. To this end, the Convention requires each country to establish a central authority to receive requests for service of documents from litigants in other countries. 20 U.S.T. 361. Upon request, that central authority must serve the document in accordance with the internal law of its country, or by a method designated by the requester if it is compatible with the internal law. Id. A country may consent to other methods of service within its boundaries other than by request to the central authority. Id. Mexico has objected to all alternative methods of service and only consents to requests to its central authority. 2117 U.N.T.S. 318. Accordingly, service via Mexico's central authority is the exclusive means of serving a defendant within Mexico if service is effectuated in Mexico. ¶ 14 Article 1 of the Hague Service Convention dictates that it "shall apply in all cases . . . where there is occasion to transmit a judicial or extrajudicial document for service abroad." 20 U.S.T. at 361. In Volkswagenwerk, the United States Supreme Court considered whether substituted service within the United States was compatible with the Hague Service Convention. 486 U.S. at 696, 108 S. Ct. 2104. To determine the scope of the Convention, the Supreme Court construed the phrases "occasion to transmit" and "for service abroad." Id. at 700, 108 S. Ct. 2104. The Court noted that "[t]he Convention does not specify the circumstances in which there is `occasion to transmit' a complaint `for service abroad'" but "the term `service of process' has a well-established technical meaning," which the Court described as "a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action." Id. Because the Convention did not prescribe a standard by which to measure the legal sufficiency of the delivery of documents, the Supreme Court referred to the law of the forum state for that standard. Id. ¶ 15 The Court concluded that, if the forum state "defines the applicable method of serving process as requiring the transmittal of documents abroad, then the Hague Service Convention applies." Id. However, after reviewing the negotiating history of the Convention, the Court distinguished the mere "delivery" of documents abroad from the transmission of documents "for service abroad." Id. at 700-01, 108 S. Ct. 2104. The Court found that the Convention applies "only when there is both transmission of a document . . . , and service upon the person for whom it is intended." Id. at 701, 108 S. Ct. 2104. Thus, "the only transmittal to which the Convention applies is a transmittal abroad that is required as a necessary part of service." Id. at 707, 108 S. Ct. 2104. The 1238 Court indicated that, "where service . . . is valid and complete under both state law and the Due Process Clause, [the] inquiry ends and the Convention has no further implication." Id. Because the applicability of the Hague Service Convention is determined by the law of the forum state, we turn to Colorado's rules governing service of process.[3] B. C.R.C.P. 4(d) Does Not Mandate Service Abroad ¶ 16 We begin with C.R.C.P. 4(d), which provides four methods for serving process in a foreign country. Rule 4(d) states, in pertinent part, Process served in a foreign country shall be according to any internationally agreed means reasonably calculated to give notice, the law of the foreign country, or as directed by the foreign authority or the court if not otherwise prohibited by international agreement. Notably, the Rule uses the phrase "in a foreign country" and does not use the phrase "on a defendant located in a foreign country." We conclude that, by its plain language, Rule 4(d) applies only to service that occurs in a foreign country and does not apply to service that occurs in the United States, even if the defendant upon whom service is effectuated is located abroad at the time. ¶ 17 C.R.C.P. 4(d) goes on to state that process served in a foreign country "shall be according to" the means listed. The word "shall" connotes a mandatory requirement. People v. Dist. Court, 713 P.2d 918, 921 (Colo.1986). Because the Rule provides that service in a foreign country "shall be" according to one of the methods provided, any method not listed in C.R.C.P. 4(d) is implicitly prohibited. Rule 4(d) thus dictates the only means of effectuating service in a foreign country that are authorized by Colorado's Rules of Civil Procedure. ¶ 18 Finally, Rule 4(d) describes four methods of effecting service in a foreign country: (1) service in accordance with any internationally agreed means reasonably calculated to give notice; (2) service in accordance with the law of the foreign country; (3) service as directed by the foreign authority if not otherwise prohibited by international agreement; or (4) service as directed by the court if not otherwise prohibited by international agreement. Nothing in Rule 4(d) suggests that one of these methods is preferred over another. In fact, the use of the disjunctive "or" reflects a choice of equally acceptable alternatives. See Webster's Third New International Dictionary 1585 (2002) (defining "or" as indicating "a choice between alternative things, states, or courses"); see also Denver Horse Imp. Co. v. Schafer, 58 Colo. 376, 384, 147 P. 367, 370 (1915) (relying on Webster to define "or" as "[a] co-ordinating particle that marks an alternativeas you may read or may write, that is, you may do one of the things at your pleasure, but not both[and that] often connects a series of words or positions, presenting a choice of either"). Thus, while service "according to any internationally agreed means" is one alternative, service "according to the law of the foreign country," and service "as directed by the foreign authority or the court, if not otherwise prohibited by international agreement," are equally acceptable methods of service. ¶ 19 In defining the four exclusive means of effecting service in a foreign country, C.R.C.P. 4(d) says nothing about effecting 1239 service within the United States on a defendant located in a foreign country. The Rule addresses only how service shall be effectuated if it occurs in a foreign country. Rule 4(d) does not mandate that service occur abroad and does not prohibit another form of service within the United States if otherwise authorized. We consider whether substituted service under C.R.C.P. 4(f) is a valid alternative to service abroad. C. C.R.C.P. 4(f) is a Valid Alternative to Service Abroad ¶ 20 C.R.C.P. 4(f) provides for substituted service as an alternative to personal service when a plaintiff[4] has attempted, but is unable to accomplish, personal service. See C.R.C.P. 4(f). The plaintiff must file a motion, supported by an affidavit of the person attempting service, describing the efforts the plaintiff has made to obtain personal service and the reasons that personal service failed. Id. In the motion, the plaintiff must also provide the identity of the substituted person to whom the plaintiff proposes to deliver process and the address, if known, of the defendant. Id. If the court is satisfied that the plaintiff has used due diligence in attempting personal service, that further attempts to obtain personal service would be to no avail, and that the person to whom delivery of the process is proposed "is appropriate under the circumstances and reasonably calculated to give actual notice to the [defendant]," the court must order substituted service. Id. In ordering substituted service, the court authorizes delivery of process to the substituted person and orders process mailed to the address of the defendant. Id. C.R.C.P. 4(f) also provides that service is complete on the date of delivery to the substituted person. Id. ¶ 21 C.R.C.P. 4(f) provides, in its entirety: In the event that a party attempting service of process by personal service under section (e) is unable to accomplish service,. . . the party may file a motion supported by an affidavit of the person attempting service, for an order for substituted service. The motion shall state (1) the efforts made to obtain personal service and the reason that personal service could not be obtained, (2) the identity of the person to whom the party wishes to deliver the process, and (3) the address, or last known address of the workplace and residence, if known, of the party upon whom service is to be effected. If the court is satisfied that due diligence has been used to attempt personal service under section (e), that further attempts to obtain service under section (e) would be to no avail, and that the person to whom delivery of the process is appropriate under the circumstances and reasonably calculated to give actual notice to the party upon whom service is to be effective, it shall (1) authorize delivery to be made to the person deemed appropriate for service, and (2) order the process to be mailed to the address(es) of the party to be served by substituted service, as set forth in the motion, on or before the date of delivery. Service shall be complete on the date of delivery to the person deemed appropriate for service. ¶ 22 Because substituted service is an alternative to personal service, a plaintiff must first attempt personal service before recurring to the court for an order for substituted service. Whether a plaintiff may attempt personal service on a defendant who is located abroad is a case-specific inquiry. If that defendant comes to the United States, there may be an opportunity for personal service within the United States in accordance with C.R.C.P. 4(e). However, if that defendant does not come to the United States, a plaintiff must proceed pursuant to C.R.C.P. 4(d), which provides the exclusive means for effecting service in a foreign country. See supra. Accordingly, whether a plaintiff may attempt personal service in a foreign country will depend on whether any applicable international agreement, the law of the foreign 1240 country, or the other means authorized by C.R.C.P. 4(d), allow for personal service. See, Nuance Commc'ns, Inc. v. Abbyy Software House, 626 F.3d 1222, 1238 (Fed.Cir. 2010) (noting cases upholding personal service in a foreign country when in accord with foreign law). A plaintiff who accordingly attempts personal service but is unable to accomplish it, may seek an order for substituted service from the court pursuant to C.R.C.P. 4(f). We conclude that, when the requirements of C.R.C.P. 4(f) are satisfied, Colorado's Rules of Civil Procedure provide for substituted service within the United States as a valid alternative to service abroad. D. C.R.C.P. 4(f) Does Not Implicate the Hague Service Convention ¶ 23 In ordering substituted service, C.R.C.P. 4(f) directs the court to authorize delivery to the substituted person and to order that process be mailed to the address of the defendant. In cases involving a defendant located in a foreign country, Rule 4(f)'s mailing requirement implies the transmittal of documents abroad, which implicates the Hague Service Convention if the transmission is necessary to effectuate service. Volkswagenwerk, 486 U.S. at 700, 108 S. Ct. 2104. However, "where service . . . is valid and complete under both state law and the Due Process Clause, [the] inquiry ends and the Convention has no further implications." In determining whether substituted service under C.R.C.P. 4(f) is "valid and complete" without the mailing, we are guided by the text of C.R.C.P. 4 and the due process principles that underlie service of process. ¶ 24 By its plain language, C.R.C.P. 4(f) indicates that service is "complete on the date of delivery to the [substituted person]." Because process must be mailed to the defendant "on or before the date of delivery" to the substituted person, procedurally, the mailing, if it occurs, must occur before the date that process is deemed complete. However, the completion and validity of service is linked to the delivery of process to the substituted person and not to the mailing of process to the defendant. If process is never delivered to the substituted person, service can never be valid and complete under C.R.C.P. 4(f). By contrast, service can be valid and complete without the mailing. For example, Rule 4(f) requires a plaintiff's motion for substituted service to include "the address, or last known address of the workplace and residence, if known, of the [defendant]." C.R.C.P. 4(f). By acknowledging that a defendant's address may not be known, C.R.C.P. 4(f) contemplates circumstances in which substituted service is available, even when it is not possible to mail process to a defendant. Although the Rule directs the court to order that process by mailed to the defendant, and failure to comply with a court order may result in sanctions, the mailing is not required to complete service.[5] We conclude that substituted service is valid and complete under Colorado law without the transmittal of documents abroad. ¶ 25 Service also must be valid and complete under the Due Process Clause. See Volkswagenwerk, 486 U.S. at 707, 108 S. Ct. 2104. This requires "notice reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950). ¶ 26 A due process guarantee is built in to the concept of substituted service in Colorado. Before authorizing substituted service, a Colorado court must consider 1241 whether delivery of process to the substituted person "is appropriate under the circumstances and reasonably calculated to give actual notice to the [defendant]." C.R.C.P. 4(f). Only after determining that due process is satisfied and substituted service appropriate, does a court order that a copy of process be mailed to the defendant. Accordingly, in Colorado, substituted service on the substituted person satisfies due process without mailing a copy of process to the defendant abroad. We hold that substituted service under C.R.C.P. 4(f) does not require the transmittal of documents for service abroad and therefore the Hague Service Convention is not implicated.[6] ¶ 27 Rodriguez-Cera suggests that allowing substituted service under C.R.C.P. 4(f) as an alternative to service abroad circumvents the Hague Service Convention. As described above, the 1964 revision to the Convention was intended "to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit." Volkswagenwerk, 486 U.S. at 698, 108 S. Ct. 2104. Nothing in the text of the Hague Service Convention or the Supreme Court's opinion in Volkswagenwerk, suggests that the Convention was meant as the exclusive means of initiating suit against a defendant in a foreign country or as an absolute bar to suing such a defendant if the Convention's methods of service were not used. Article 1 clearly states that the Convention applies only when "there is occasion to transmit a judicial or extrajudicial document for service abroad." 20 U.S.T. 361. ¶ 28 Because C.R.C.P. 4(f) requires that substituted service be "reasonably calculated to give actual notice to the party upon whom service is to be effective," substituted service under Rule 4(f) is consistent with the purpose of the Convention. We do not believe that either the language of Article 1 or the Supreme Court's interpretation of the Convention in Volkswagenwerk intended to elevate form over substance, by discouraging an interpretation of forum law that is consistent with the purpose of the Convention and protective of a defendant's due process rights, only because it operates to provide a method of service alternative to the Hague Service Convention.[7] ¶ 29 We now consider whether Willhite could avail himself of substituted service under C.R.C.P. 4(f) in this case. V. Application ¶ 30 Willhite initially attempted to serve Rodriguez-Cera personally at his last known address in Colorado. While attempting personal service, he learned that Rodriguez-Cera was residing in Mexico. At that point, Willhite could no longer attempt to serve Rodriguez-Cera pursuant to C.R.C.P. 4(e) because C.R.C.P. 4(d) provides the exclusive means of effectuating service in a foreign country. Because Mexico has objected to all alternative methods of service and only consents to service requests to its central authority, personal service was not available to serve Rodriguez-Cera in Mexico. Thus, "further attempts to obtain service under 1242 section (e) would be to no avail." C.R.C.P. 4(f). Because Willhite attempted personal service under C.R.C.P. 4(e) and further attempts at personal service under C.R.C.P. 4(e) would be to no avail, substituted service was available as a valid alternative means of serving Rodriguez-Cera. We therefore make the rule absolute and reverse the trial court's order quashing substituted service.[8] VI. Conclusion ¶ 31 For the foregoing reasons, we make the rule absolute and remand to the trial court for further proceedings consistent with this opinion. Justice COATS dissents, and Justice EID joins in the dissent. Justice EID dissents, and Justice COATS joins in the dissent. Justice COATS, dissenting. ¶ 32 I agree with Justice Eid that the mailing requirement of our own Rule 4(f) is, in and of itself, sufficient to make the Hague Convention applicable, and I share her concern that the majority rationale risks abrogating that requirement of our substituted service rule altogether. Even if the mailing requirement were not so express, however, I question whether Rule 4(f) would constitute an adequate substitute, as contemplated by the Supreme Court, for the transmittal of documents abroad. ¶ 33 I do not disagree that in Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 108 S. Ct. 2104, 100 L. Ed. 2d 722 (1988), the United States Supreme Court construed the Hague Convention to apply only when the home state defines the applicable method of serving process as not requiring transmittal of documents abroad; and further, that it found the Convention inapplicable in that case, where it went unchallenged that an Illinois long-arm statute permitted service on a wholly owned domestic subsidiary in the state, as the involuntary agent for the defendant foreign corporation. Because the Court was not directly faced with the question, however, it had no occasion to explain in greater detail what it intended by either "the applicable method of service of process" or "substituted service," but the case in which it ruled clearly involved no more than a statute authorizing in-state service on an agent instead of, and as the equivalent of, service on the parent corporation in Germany. ¶ 34 Although Colorado has a similar long-arm statute, see § 13-1-125, C.R.S. (2011), mandating that service of process on corporations outside the state be accomplished by serving their agent within the state in the manner permitted by Rule 4 of the Colorado Rules of Civil Procedure, and Rule 4 similarly classifies service on a designated agent as an accepted method of effecting "personal service," see C.R.C.P. 4(e), the method of service at issue in this case is not similarly an alternative and equivalent form of personal service at all. Rather, it is a secondary and less reliable method of service, hopefully complying with the requirements of due process in any particular case, permitted in this jurisdiction only as a last resort, when personal service cannot be accomplished. We know this to be the case, not because the alternative methods of effecting service in a foreign country described in Rule 4(d) are prioritized in some way, but because Rule 4(f) itself subordinates "substituted service" to "personal service," rather than providing an alternate method for effecting "personal service." ¶ 35 Since service by mail or publication alone in a case of this nature would clearly be inadequate, unless the plaintiffs can establish both that they have been unable, despite their due diligence, to effect personal service and that any further attempts to do so would 1243 be of no avail, Rule 4 therefore requires that defendant Rodriguez-Cera be personally served. See C.R.C.P. 4(d), (e), (f). If the Hague Convention applies, it is indisputably an international agreement prohibiting a district court of this state from directing an alternate form of service, according to Rule 4(d), and therefore it must be complied with. Furthermore, if the Hague Convention applies, it prescribes the use of a "central authority" method of service in the contracting foreign country, and by its own terms leaves to the contracting country the choice whether to permit any alternative methods of service, like mailing or service by other competent persons. The question in this case, unlike Volkswagenwerk, is therefore whether a local rule that actually requires personal service according to the central authority method of the Hague Convention, unless that method has proven unsuccessful and further attempts would be to no avail, effectively relieves a plaintiff of any obligation to serve a defendant in the foreign country where he is known to reside and, by doing so, renders the Convention inapplicable from the outset. ¶ 36 I understand the majority to hold precisely that. I am reluctant to join this expansive interpretation of Volkswagenwerk, in part because it so obviously circumvents a specific compromise of the Convention, to leave the choice of accepting alternate methods of service to each contracting country; but even more importantly, because it renders nugatory any binding effect of an international treaty. There is no suggestion here, as in some cases, that the signatory country refuses to comply with its treaty obligations. See, e.g., Nuance Commc'ns, Inc. v. Abbyy Software House, 626 F.3d 1222, 1239 (Fed. Cir.2010) (acknowledging Advisory Committee Note to Fed.R.Civ.P. 4, explaining that service under 4(f)(3) might be justified when a foreign country's central authority "refuses to serve a complaint seeking punitive damages or to enforce the antitrust laws of the United States"). If the Convention were held not to apply whenever a forum state concluded, as the district court is being asked to do in this case, that it would simply be too burdensome for the plaintiff to comply, the Convention would be virtually meaningless, or at most optional. By leaving to the receiving country the determination whether to allow alternatives to the central authority method of service, I believe the Convention necessarily leaves to that same receiving country the determination whether, upon the request of another country, service by the central authority method can be satisfactorily accomplished. ¶ 37 Finally, I appreciate the fact that the majority does not actually sanction substitute service in this case, see maj. op. at ¶ 30 n. 8, but merely disapproves the district court's determination that it was barred from considering such substitute service and remands for further consideration. In reaching even this result, however, the majority accepts the intermediate proposition that in light of Rule 4(f), personal service in Mexico is not required, and therefore the Hague Convention does not apply. Because I believe Rule 4(f) does not provide a complete or equivalent substitute for personal service in a foreign signatory country, and instead merely provides a last resort alternative when personal service, as otherwise required, cannot be successfully effected, I would agree with the conclusion of the district court that the Hague Convention applies in this situation and must be complied with. ¶ 38 Because I would therefore discharge the rule, I respectfully dissent. I am authorized to state that Justice EID joins in this dissent. Justice EID, dissenting. ¶ 39 I join Justice Coats' dissent. I write separately to address the majority's conclusion that "mailing [to the defendant] is not required to complete service" under Rule 4(f), and that therefore the Hague Convention does not apply to this case. Maj. op. at ¶ 24. Under the plain language of Rule 4(f)(2), the court "shall . . . order the process to be mailed to the address(es) of [the defendant]. . . on or before the date of delivery" of process to the substitute party. C.R.C.P. 4(f)(2) (emphasis added). Thus, service is complete only after the process has been mailed to the defendant and delivered to the substituted party. Because service is complete under our rule only after the process 1244 has been mailed to the defendantwho, in this case, is located abroadour rule "defines the applicable method of serving process as requiring the transmittal of documents abroad," and the Hague Convention applies. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 108 S. Ct. 2104, 100 L. Ed. 2d 722 (1988). I therefore respectfully dissent from the majority's opinion concluding otherwise. ¶ 40 When a defendant's address is known,[1] Rule 4(f)(2) requires the plaintiff to mail the process to the defendant. Specifically, if the court finds substituted service is appropriate, the court "shall . . . order the process to be mailed" to the defendant. C.R.C.P. 4(f)(2). Further, in order to prove that substituted service was provided, Rule 4(h) requires a plaintiff to provide "a duly acknowledged statement as to the date, place, and manner of [substitute] service, accompanied by an affidavit that the process was also mailed to the [defendant], setting forth the address(es) where the process was mailed." C.R.C.P. 4(h)(6) (emphasis added). In short, if the plaintiff does not mail the process to the defendant, Rule 4 explicitly prevents him from proving service. ¶ 41 The majority makes two arguments that service is complete without the mailing. First, it argues that the rule's statement that service is "complete on the date of delivery to the [substituted person]" shows the mailing is unnecessary. Maj. op. at ¶ 24. But the rule requires that the mailing to the defendant occur "on or before the date of delivery." C.R.C.P. 4(f)(2) (emphasis added). So the statement that service is "complete on the date of delivery to the [substituted person]" means nothing more than that service is complete after both delivery and mailing. ¶ 42 Second, the majority argues that the rule only requires mailing when the address is known. Thus, when the defendant's address is unknown, service must be complete when the process is delivered to the substituted person. Consequently, the majority concludes, service is complete when the process is delivered to the substituted person, even when the defendant's address is known. Maj. op. at ¶ 24. But this is a leap of logic that goes too far. Simply because there may be circumstances under which a defendant's address is not known does not excuse the rule's requirement that mailing occur when the address is known.[2] Such a conclusion violates the plain language of the rule. C.R.C.P. 4(f)(2) (the court "shall . . . order the process to be mailed" (emphasis added)). Moreover, the due process implications of the two situations are quite different. See Mullane v. Cent. Hanover Bank & Trust, 339 U.S. 306, 317-18, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (allowing service, under the Due Process Clause, by publication to those parties whose addresses were unknown, but requiring mailing to those whose addresses were known). By requiring that the process be mailed to the defendant in addition to being delivered to the substituted party, the rule furthers due process by ensuring that notice of the action will reach the defendant. See Richard P. Holme, 2006 Amendments to the Civil Rules: Modernization, New Math, and Polishing, 35 Colo. Law. 21, 24 (2006); see also Wuchter v. Pizzutti, 276 U.S. 13, 19, 48 S. Ct. 259, 72 L. Ed. 446 (1928) (holding that, without a requirement that the state official mail the process to the defendant, a statute allowing substituted service on a state official violated the Due Process Clause). ¶ 43 We have narrowly construed rules allowing substituted service. See, e.g., ReMine 1245 v. Dist. Court, 709 P.2d 1379, 1382 (Colo.1985) ("[S]tatutes or rules providing for substituted service are in derogation of common law and must be strictly construed and followed. . . ."); Ernst v. Colburn, 84 Colo. 170, 173, 268 P. 576, 577 (Colo.1928) (holding that, where the rule allowed substituted service on a family member at the defendant's residence "between the hours of eight in the morning and six in the evening," service at 6:20 p.m. was invalid). I would do the same here and hold that, when a defendant's address is known, service under Rule 4(f) is not complete until the plaintiff mails the process to the defendant as required by Rule 4(f)(2). ¶ 44 As applied here, Rule 4(f)(2) requires the plaintiffs to mail the process to the defendant, who is located abroad, "on or before" the date the process is delivered to the substituted party. The rule therefore requires "the transmittal of documents abroad," and the Hague Service Convention applies. Volkswagenwerk, 486 U.S. at 700, 108 S. Ct. 2104. ¶ 45 When confronted with similar state mailing procedures, a host of federal courts have come to the same conclusion. See, e.g., Vega Glen v. Club Méditerranée S.A., 359 F. Supp. 2d 1352, 1355-56 (S.D.Fla.2005) (Florida statutes allowed substituted service through the secretary of state, but also required the mailing of process to the defendant, which triggered the Hague Service Convention); In re Hayes Lemmerz Intern., Inc., 271 F. Supp. 2d 1007, 1030-33 (E.D.Mich. 2003) (Delaware statute allowed service on the resident agent of a nonresident company, but also required process to be mailed to the company, which triggered the Hague Service Convention); Davies v. Jobs & Adverts Online, Gmbh, 94 F. Supp. 2d 719, 721-22 (E.D.Va.2000) (Virginia statutes allowed substituted service on state clerk for foreign corporations transacting business in-state, but the clerk was required to mail the process to the defendant, which triggered the Hague Service Convention); McClenon v. Nissan Motor Corp., 726 F. Supp. 822, 824-25 (N.D.Fla.1989) (same as Vega Glen). Cf. Melia v. Les Grands Chais de France, 135 F.R.D. 28, 32 (D.R.I.1991) (where the statute required the secretary of state, not the plaintiff, to mail the process to the defendant, the Hague Service Convention was not triggered). I fail to see how this case differs from the federal cases. The majority tries to distinguish the federal cases because Rule 4(f), before authorizing service, requires a court to determine that the substituted service is reasonably calculated to give actual notice to the defendant. Maj. op. at ¶ 26 n. 7. While that fact may play into a due process analysis, it makes no difference in interpreting the plain language of the rule, which, on its face, requires mailing. ¶ 46 The underlying justification for today's decision appears to be that it is difficult to comply with the Hague Convention in this case. Maj. op. at ¶ 5 n. 2 (cataloging the "obstacles and bureaucratic challenges" facing the plaintiffs in attempting service of process in Mexico in accordance with the Hague Convention). But significantly, the majority's interpretation of the language of Rule 4(f) applies to both domestic and international service. As a result, the effect of the majority's decision is to read the mailing requirement entirely out of Rule 4(f). Because such diminishment of the mailing requirement is inconsistent with the rule's plain language, I respectfully dissent. I am authorized to state that Justice COATS joins in this dissent. NOTES [1] Willhite and his wife, who was a passenger in the vehicle Willhite was driving, filed suit together. His wife is no longer a party to this action. [2] According to Willhite, he was hindered by the Mexican central authority's refusal to communicate with Fed-Ex; Mexico's requirement that all documents be translated by a translator licensed in Mexico and the delay and high fees associated with those translations; the need for a Mexican court with jurisdiction where the Mexican national resides to approve service by the Mexican central authority; and a shortage of local counsel available to seek approval from that court due to drug wars and violence against attorneys in the area. [3] Article 1 also provides that the Convention "shall not apply where the address of the person to be served with the document is not known." 20 U.S.T. at 361. The record in this case suggests that the Hague Service Convention may be inapplicable due to the lack of an address for Rodriguez-Cera. In her deposition, Ms. Torres-Bravo could not provide a mailing address for Rodriguez-Cera and expressed her belief that the homes in her parents' town did not have numbers. Although Willhite's counsel later suggested in a brief that Ms. Torres-Bravo provided a mailing address for Rodriguez-Cera, the assertion was not supported by reference to evidence in the record. A mailing address for Rodriguez-Cera does not appear anywhere in the record and the only evidence of any information provided by Ms. Torres-Bravo is the transcript from her deposition testimony, mentioned above. We conclude that there is insufficient evidence in the record to determine whether a street address exists for the home in Mexico where Rodriguez-Cera resides. Accordingly, we do not decide whether Article 1 limits the applicability of the Hague Service Convention when the whereabouts of a defendant are known but a specific street address is not available. [4] Rule 4 refers to the "party attempting service" and the "party to be served." While acknowledging that third party complaints and service of documents other than process can affect who is "attempting" service and who is "being served," we refer to "plaintiff" and "defendant" here for simplicity. [5] By comparison, C.R.C.P. 4(g) also directs the court to order that process be mailed to the defendant when authorizing service by mail in proceedings in rem. Under Rule 4(g) the court must order the plaintiff "to send by registered or certified mail a copy of the process addressed to [the defendant], requesting return receipt signed by the addressee only." In contrast to Rule 4(f), Rule 4(g) specifically provides that service is not complete until the filing of the proof of mailing "together with such return receipt attached thereto signed by [the defendant]." C.R.C.P. 4(g). Rule 4(g) reveals that the Rules Committee knows how to adopt language that makes the completion of service dependent on mailing process to the defendant. The Rules Committee did not do that in C.R.C.P. 4(f). [6] Numerous state and federal courts have considered similar mailing provisions and concluded that those provisions do require the transmittal of documents abroad and, therefore, do implicate the Hague Service Convention. These statutes, which involve the appointment of an involuntary agent to accept service of process on behalf of certain types of defendants and do not require court approval prior to serving the state agent, are distinguishable from C.R.C.P. 4(f), which requires the court to determine that substituted service is reasonably calculated to give actual notice to the defendant before authorizing such service. See, e.g., In re Hayes Lemmerz Int'l, Inc., 271 F. Supp. 2d 1007 (E.D.Mich.2003) (involuntary agent for nonresident transacting business); Curcuruto v. Cheshire, 864 F. Supp. 1410 (S.D.Ga. 1994) (involuntary agent for nonresident vehicle owner). [7] We note that federal courts regularly authorize substituted service within the United States pursuant to F.R.C.P. 4(f)(3), which authorizes a court to order alternative forms of service on a defendant located abroad, so long as the method is not prohibited by international agreement and comports with due process. See, e.g., Nuance Commc'ns, 626 F.3d at 1240. Rather than treating substituted service under F.R.C.P. 4(f)(3) as a means of circumventing the Hague Service Convention, federal courts conclude that substituted service is available because it is not prohibited by the Convention. See, e.g., Dyer v. Can-Truck, Inc., No. 3:10 CV 1072, 2011 WL 2532871, at *2 (N.D.Ohio June 24, 2011); FMAC Loan Receivables v. Dagra, 228 F.R.D. 531, 534-35 (E.D.Va. 2005). [8] In his response to our rule to show cause, Rodriguez-Cera argued that Willhite's motion for substituted service was defective because he did not supply an affidavit by the person attempting service as required by C.R.C.P. 4(f). This issue is not before us. Although Rodriguez-Cera raised the issue to the trial court in his motion to quash, the trial court did not reach the issue because it found that service under the Hague Service Convention was mandatory. On remand the trial court may consider whether Willhite has complied with the affidavit requirements of C.R.C.P. 4(f) and may hold additional hearings as it deems necessary to determine whether Willhite has satisfied the requirements for substituted service. [1] The majority notes that when Ms. Torres-Bravo, the substituted person, was deposed, she "could not provide an address for her parents' home and believed that the homes in that small town did not have numbers." Maj. op. at ¶ 4. But the plaintiffs, at some point in time, acquired the address from Ms. Torres-Bravo. See Response to Defendant Paulo Rodriguez-Cera's Motion for Enlargement of Time to File Answer or Otherwise Respond to Plaintiffs' Amended Complaint, p. 3 n. 2, July 22, 2010 ("Defendant Paulo's sister, Lydia Torres-Bravo, provided both a cell phone and a mailing address for her parents. Defendant Paulo is now living under his parents' care, so Defendant Paulo's counsel is virtually assured of contacting Defendant Paulo through his parents."). [2] It is likely that the defendant's address would be known in most cases. Rule 4(f) states that the court must be satisfied that the plaintiff used "due diligence" to attempt personal service. In completing due diligence, the plaintiff is likely to learn the defendant's address, as occurred in this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2500729/	274 P.3d 599 (2012) 293 Kan. 1057 STATE of Kansas, Appellee, v. Kameron KING, Appellant. No. 99,478. Supreme Court of Kansas. August 14, 2009. March 9, 2012. 601 Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant. Jennifer S. Tatum, assistant district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Steve Six, attorney general, were with her on the brief for appellee. The opinion of the court was delivered by ROSEN, J.: After a jury trial, Kameron King was convicted of possession of cocaine and failure to display a drug tax stamp. He was sentenced to 34 months' imprisonment. The Court of Appeals affirmed. This court granted review 602 of (1) whether the arrest was lawful, (2) whether the trial court's exclusion of three witnesses prevented King from presenting his theory of defense, and (3) whether his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). FACTUAL BACKGROUND On June 2, 2005, Officer Stanturf attempted to stop a vehicle driving without its headlights on, but when the vehicle stopped the occupants fled on foot. From previous encounters, Stanturf recognized the driver as Kameron King. Stanturf was unable to apprehend King that day, but he issued tickets for driving without headlights, driving while suspended, and obstructing justice for running from the scene of the stop. The tickets included a misdemeanor summons for King that Stanturf kept on the clipboard in his patrol car, expecting he would come into contact with King again. On June 17, 2005, Stanturf, along with other officers, responded to a disturbance call at a private residence. The officers gave varied testimony on the location of the individuals involved in the disturbance, but generally placed King, Sean Velasquez, and Amanda Velasquez in the yard or on a screened-in porch in the front of the house. Stanturf ordered King to come to the doorway of the porch, and King complied. Stanturf arrested King for the misdemeanors committed on June 2, 2005. When Stanturf searched King before placing him in the patrol car, the officer found a baggie of cocaine and a large sum of cash in his pants pocket. Over $700 in cash and the baggie of cocaine were admitted as evidence at trial. King and two witnesses on his behalf gave a markedly different version of the night's events. All three testified that six or seven adults were peacefully enjoying the evening on the porch after a family-friendly barbeque while their children played inside the house. The adults had watched several police vehicles pass the house and assumed the police were searching for someone. Seemingly without explanation, several officers burst onto the porch and arrested King. Ryan Hudnall, a long-time friend and current employer of King, testified that he had paid King $2,400 in cash earlier that day for a 3-week siding project that he had just finished. Hudnall testified that the arresting officer pulled something from his own pocket before searching King, with the suggestion that Stanturf planted the cocaine on King during the search. Both Hudnall and Shana Howard testified that Stanturf said something to the effect that King would "be better off with a bullet in [his] head." King testified that Hudnall paid him $2,400 before his arrest, which he put in his pants pocket. King described a family barbeque that included at least six other adults and their children. The adults were sitting on the screened-in porch, drinking beer and smoking. They saw the police cruising the neighborhood and wondered what was going on. According to King, the police ran up on the porch, pushed him against the house, and arrested him. King testified that Stanturf removed $2,400 from his pocket and placed it on the hood of the police car. King said that Stanturf also produced a baggie of cocaine and put it on the hood of the police car. King denied that the cocaine was his, both at the time of his arrest and in his trial testimony. King proffered three additional witnesses to testify to the events before and after his arrest on June 17, 2005. These witnesses supported King's theory that the south patrol division was, for lack of a better term, out to get him. These witnesses would have testified to a pattern of harassment and evidence fabrication against King. The trial court did not permit the three witnesses to testify. The specifics of their proffered testimony are discussed more thoroughly below. King was charged with possession of cocaine and possession of a controlled substance without a tax stamp. A jury found King guilty on both counts. King was sentenced to 34 months' imprisonment for possession of cocaine and 6 months' imprisonment for possession of a controlled substance without a tax stamp, to run concurrent with the first count. In a divided opinion, the Court of Appeals affirmed. State v. King, No. 99,478, ___ Kan.App. ___, 213 P.3d 447, 603 2009 WL 2499243 (Kan.App.2009) (unpublished opinion) LAWFUL ARREST Stanturf allegedly found the cocaine that provided the basis for the charges in this case in a search incident to King's arrest. King argues that (1) the officer had no authority to arrest him for a misdemeanor committed 2 weeks before, and (2) the officer had no authority to arrest him because King was in an enclosed porch that was part of his home. Standard of Review "On a motion to suppress evidence, this court generally reviews the factual findings underlying the district court's suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by a de novo standard. The court does not reweigh the evidence. When the parties do not dispute the material facts, however, the suppression question is solely one of law." State v. Coleman, 292 Kan. 813, Syl. ¶ 3, 257 P.3d 320 (2011). This case also requires the court to interpret K.S.A. 22-2401. Statutory interpretation is a question of law, and this court's review is unlimited. If the statute is plain and unambiguous, we rely on the plain language of the statute. State v. McDaniel, 292 Kan. 443, 444-45, 254 P.3d 534 (2011). Authority to Arrest for a Misdemeanor King argues that his arrest was not proper under K.S.A. 22-2401(d) because Stanturf based the arrest on a misdemeanor that occurred 2 weeks prior to the arrest. K.S.A. 22-2401(d) allows a law enforcement officer to arrest a person when "[a]ny crime, except a traffic infraction or a cigarette or tobacco infraction, has been or is being committed by the person in the officer's view." King argues that because Stanturf did not arrest him at the time the officer saw King commit the misdemeanor, the officer only had probable cause to believe that King had committed the misdemeanor. Therefore, the arrest would only be proper under K.S.A. 22-2401(c)(2) if Stanturf also had probable cause to believe that "(A) [t]he person will not be apprehended or evidence of the crime will be irretrievably lost unless the person is immediately arrested; (B) the person may cause injury to self or others or damage to property unless immediately arrested; or (C) the person has intentionally inflicted bodily harm to another person." K.S.A. 22-2401(c)(2). The trial court's memorandum decision states: "It is clear to this Court that the officer does have the authority to make a valid arrest. K.S.A. 22-2401, makes it clear that a police officer has probable cause for an arrest on a misdemeanor if he observes the defendant commit the misdemeanor in his presence. This is clearly the case in this situation." The Court of Appeals concluded that the trial court erroneously incorporated the K.S.A. 22-2401(c) probable cause requirement into K.S.A. 22-2401(d). King, 2009 WL 2499243, at 2. But the Court of Appeals held that the trial court was right for the wrong reason in that Stanturf lawfully arrested King on June 17, 2005, for three misdemeanors he saw King commit on June 2, 2005. This conclusion follows the plain language of K.S.A. 22-2401(d), which does not place any time requirement on the time of the arrest relative to the time the officer witnesses the crime. We agree with this reasoning. K.S.A. 22-2401(d) allows a law enforcement officer to arrest a person when a crime "has been or is being committed by the person in the officer's view." The plain language of the statute does not require that the arrest occur at any particular time. Authority to Arrest on Screened-in Porch King also argues that Stanturf violated his rights under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights by arresting King in his home or its curtilage absent exigent circumstances. King contends that because a screened-in porch is part of the dwelling for the purposes of the 604 burglary statute, such a porch is an extension of the home. Recognizing that warrantless arrests in the home are generally unconstitutional, we have held that a warrantless arrest is constitutional when the defendant steps outside the home, even at the request of police officers. State v. Riddle, 246 Kan. 277, 281, 788 P.2d 266 (1990). In State v. Orr, No. 96,790, ___ Kan.App.2d ___, 179 P.3d 1163, 2008 WL 940778, at 3 (Kan.App.2008) (unpublished opinion), the Court of Appeals extended Riddle to a glassed-in porch. In Orr, the court found that a glassed-in front porch was not a part of the house for Fourth Amendment purposes based on the following factors: "(1) [T]he door to the porch was a storm door mostly made of glass and without a solid door behind it; (2) the porch protruded from the house and had windows completely along the two free-standing sides; (3) the furniture inside the porchwhich included plastic chairs commonly used as lawn furniturewas consistent with the area being a porch; (4) the defendant testified that she does not allow smoking in her home, but that she and her roommate commonly smoke on the porch; (5) anyone sitting on the porch would be visible from mid-torso up, and anyone standing on the porch would be visible from the waist up; and (6) to the right of the inner door was a porch light fixture." Orr, 2008 WL 940778, at 3. In Orr, the Court of Appeals reviewed the trial court's findings and concluded that the defendant had no reasonable expectation of privacy in the glassed-in porch because the area was simply an enclosed porch that was used as the entryway to the front door of the home. Orr, 2008 WL 940778, at 4. The United States Supreme Court outlined four factors that must be considered to determine the extent of a home's curtilage: "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). The trial court considered the porch area in this case, finding that (1) the porch area was only partially screened, (2) the door to the porch area was not locked, (3) a person approaching the house would go onto the screened-in porch to knock on the door to the main part of the house, (4) people on the porch were clearly visible to anyone in the front yard, and (5) it was possible to hear, see, and talk with anyone on the porch from the front yard. The trial court described the photographs of the porch and house to make these findings. As the Court of Appeals held, the record supports these factual findings. The trial court concluded that there was no reasonable expectation of privacy in the porch; therefore, it was appropriate for the officer to ask King to step outside the porch and to arrest him. We agree with the analysis by the trial court and the Court of Appeals. The area in question was a semi-enclosed, screened-in front porch that allowed access to the front door. Although enclosed, it was not private, not a part of the home or its curtilage. Stanturf therefore had the authority to arrest King on the porch or to ask him to step off the porch before arresting him. COMPLETE DEFENSE Before King presented his defense, the State questioned the relevance of witnesses who were not present on June 17, 2005. King's attorney ultimately made a proffer of the evidence three witnesses would provide, and the trial court excluded this evidence. King claims this exclusion violated his right to present his defense and his right to a fair trial. "Under the state and federal Constitutions, a defendant is entitled to present his or her theory of defense. This right is subject to statutory rules and case law interpretations of the rules of evidence and procedure. A defendant's fundamental right to a fair trial is violated only when the trial court excludes relevant, admissible, and noncumulative evidence that is an integral part of the defense theory." State 605 v. Lawrence, 281 Kan. 1081, Syl. ¶ 1, 135 P.3d 1211 (2006). We review whether the trial court excluded relevant, admissible, and noncumulative evidence that was an integral part of the defendant's theory of defense. If it was error for the trial court to exclude this evidence, we must also consider whether this error was harmless. See K.S.A. 60-261. Standard of Review "We have held that a defendant is entitled to present his or her defense, and a defendant's fundamental right to a fair trial is violated if evidence that is an integral part of that theory is excluded. [Citation omitted.] However, that right is not unlimited. `[T]he right to present a defense is subject to statutory rules and case law interpretation of the rules of evidence and procedure.' [Citation omitted.]" State v. Houston, 289 Kan. 252, 261, 213 P.3d 728 (2009). In Houston, the court was reviewing whether evidence of the victim's prior violent acts was relevant to the defendant's state of mind as it related to his claim of self-defense. Discussing the defendant's claim that the Court of Appeals erroneously applied an abuse of discretion standard rather than a de novo standard of review, we concluded: "However, to establish relevance, i.e., probativity, there must be some logical connection between the asserted facts and the inference or result they are intended to establish. [Citation omitted.] In Reid, we explained that the definition of `relevance' as described in K.S.A. 60-401(b) (`"Relevant evidence" means evidence having any tendency in reason to prove any material fact.'), like Federal Rule of Evidence 401, contains both a probative element and a materiality element. There we held that we review trial court determinations of the probativity prong of relevance for an abuse of discretion, and determinations of materiality are reviewed de novo. [Citation omitted.] We therefore expressly reject Houston's general assertion that relevance is reviewed de novo." Houston, 289 Kan. at 261-62, 213 P.3d 728. In Mitchell v. Gibson, 262 F.3d 1036 (10th Cir.2001), the Tenth Circuit Court of Appeals provided the following test for whether excluded testimony denied a defendant their constitutional right to present their defense: "`In order to declare a denial of [fundamental fairness] we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial. It is the materiality of the excluded evidence to the presentation of the defense that determines whether a petitioner has been deprived of a fundamentally fair trial. Evidence is material if its suppression might have affected the trial's outcome. In other words, material evidence is that which is exculpatoryevidence that if admitted would create reasonable doubt that did not exist without the evidence.'" Gibson, 262 F.3d at 1054 (quoting Richmond v. Embry, 122 F.3d 866, 872 [10th Cir. 1997]). Rebecca Vernon King's counsel made the following proffer regarding Rebecca Vernon's testimony: "Because of the recent case law, I'm a little leery of making proffers. But I think that I can state with confidence that Rebecca Vernon, V-e-r-n-o-n, will testify that Stanturf has made a habit of following Kameron, of parking in front of his house, of following him down the street while he's walking, just general harassment. "And that that has occurred since the arrest in this case." We agree with the Court of Appeals that this evidence was relevant to the bias and interest of Stanturf. As the Court of Appeals stated: "Evidence of bias, interest, or improper motives of a witness is always relevant in order to place the witness' testimony in proper perspective. A party should have wide latitude in establishing partiality, bias, motive, or interest of a witness." King, 2009 WL 2499243, at 5. This evidence was specifically relevant to King's defense because it provides a reason or motive for Stanturf to plant evidence to frame King for this crime. 606 To the extent that Stanturf's conduct in stalking and harassing King could be viewed as a statement, the officer was available for cross-examination, eliminating any hearsay problems with this testimony. See K.S.A. 60-460(a). Although King did testify about some instances of Stanturf's stalking and harassment, Vernon could have testified about different instances. This evidence was not unduly repetitious or cumulative. Rules of evidence and procedure do not bar this testimony. Further, this testimony was an integral part of King's defense. It is not enough that King was allowed to identify his theory of defense, i.e., to tell the jury the drugs were planted by Stanturf during the arrest, without explaining why Stanturf might act with such disregard for the law and his duty as a law enforcement officer. Stanturf's motive and his alleged grudge against King were an essential part of King's defense. Because this was relevant, admissible, and noncumulative evidence that was integral to King's defense, it was error to exclude this evidence. Ivan King King's counsel proffered the following with regard to the testimony of Ivan King: "Ivan King would testify that on a recent occasion three members of the south patrol division came up to his house in a pickup truck, off duty, to come to his party that he was giving and ask about noise with their pistols drawn. "That he was eventually arrested, was taken, not to the jail here, but to the south patrol office where the arresting officer shined a flashlight on his face while members of south patrol came out. And it was announced, `This is Ivan King, he's the brother of Kameron King, you know, that POS that's given us so much trouble.'" The Court of Appeals majority rejected King's argument that the attitude of the south patrol division was relevant to the actions of Stanturf and the other four officers present during King's arrest on June 17, 2005. The majority found that Ivan King's testimony, even if accepted as true, was of minimal probative value and may have been more damaging to King than helpful. King, 2009 WL 2499243, at 6. We disagree and come to the same conclusion as Judge Leben in his well-reasoned dissent. Evidence that the south patrol division had a vendetta against King or a negative attitude toward him provides, at least by inference, a motive for Stanturf to plant drugs on King during his arrest. This evidence was relevant. The trial court ruled this was inadmissible hearsay unless the officers involved were available for cross-examination. Again, we disagree. A statement that is not offered to prove the truth of the matter asserted is not inadmissible hearsay. Boldridge v. State, 289 Kan. 618, 635, 215 P.3d 585 (2009). This testimony was not offered to prove that King was a "POS that's given [the south patrol division] so much trouble," but to show that an officer with the south patrol division had made the statement. As such, this evidence was not inadmissible hearsay. Nor was this evidence cumulative. This evidence was also an integral part of King's defense. To support his theory that Stanturf planted drugs on him, King would have to show that Stanturf had some motive to do so. The jury might question why other officers present on the night of King's arrest did not object to Stanturf's conduct. The making of a statement reflecting a pervasive antagonistic attitude toward King in the south patrol division would explain such inaction. Because this was relevant, admissible, and noncumulative evidence that was integral to King's defense, it was error to exclude this evidence. Claudia King King's counsel proffered the following with regard to the testimony of Claudia King: "Claudia King, I think, given the ruling that you've already made, she would just proffer that there was an incident where Kameron was accused and eventually convicted of car theft. 607 "The officers involved were Jeff Hamilton, who you probably have heard of or know of, and Jason Sutton. And they came into her house, said they thought they had seen Kameron driving a stolen car. They knew it was either him or Curtis Hall. They couldn't be sure. "This was like 11:30 at night, no warrant, no nothing, just came into the house. And then went into court and testified they were sure it was Kameron King. Then Jeff Hamilton called after all was said and done, and [said], `Sorry, we had to lie in court.' And that would be the evidence." The trial court and Court of Appeals majority rejected this evidence because it would have informed the jury of King's prior, unrelated car theft conviction. In presenting his defense to the jury, a defendant may open the door to otherwise inadmissible evidence that is prejudicial to his case. For example, if a defendant introduces evidence solely for the purpose of supporting his or her credibility, the defendant may be cross-examined about prior convictions involving dishonesty or false statements. State v. Johnson, 21 Kan.App.2d 576, 579, 907 P.2d 144, rev. denied 258 Kan. 861 (1995) (citing State v. DeLespine, 201 Kan. 348, 350, 440 P.2d 572 (1968)). Simply telling his version of events, a defendant may admit to other crimes or conduct a jury might find objectionable. The negative implications of a defendant's theory of defense are things that the defendant, with counsel, should consider when deciding how to pursue his or her defense. See State v. Betts, 272 Kan. 369, 387-91, 33 P.3d 575 (2001), overruled on other grounds by State v. Davis, 283 Kan. 569, 575, 158 P.3d 317 (2006) (trial counsel's strategic decisions on which witnesses to call to present defendant's theory of defense may not establish ineffective assistance of counsel). The potential prejudice of this evidence, when offered by King, was not enough to rule the evidence was inadmissible. The officer's statement in Claudia King's testimony would have been offered to prove that the officer admitted to lying in court in another case in order to obtain a conviction. But an admission of perjury is a statement against interest that is admissible under K.S.A. 60-460(j). This evidence was not inadmissible hearsay. Like the testimony of Ivan King, this evidence was relevant to show that the attitude of officers in the south patrol division would have allowed and even encouraged Stanturf to plant drugs on King. Likewise, the evidence was integral to King's defense. And this evidence was not cumulative. Because this was relevant, admissible, and noncumulative evidence that was integral to King's defense, it was error to exclude this evidence. Harmless Error Because it was error to exclude the testimony of these three witnesses, we must consider whether that error was harmless. Our decision in State v. Ward, 292 Kan. 541, 556-65, 256 P.3d 801 (2011), synthesized and clarified our case law on the definition and application of the harmless error standard applied to claims of constitutional error, concluding: "[B]efore a Kansas court can declare an error harmless it must determine the error did not affect a party's substantial rights, meaning it will not or did not affect the trial's outcome. The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vary depending on whether the error implicates a right guaranteed by the United States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e., there is no reasonable possibility that the error contributed to the verdict. If a right guaranteed by the United States Constitution is not implicated, a Kansas court must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial." Ward, 292 Kan. at 565, 256 P.3d 801. The State, as the party benefitting from the error, has the burden of proving the error was harmless. "`A constitutional error may be declared harmless where the [party benefitting from the error] proves beyond a reasonable doubt that the error complained of did 608 not [affect substantial rights, meaning it did not] contribute to the verdict obtained.' [State v.] Kleypas, 272 Kan. [894] at 1084 [40 P.3d 139 (2001)] (citing Chapman [v. California], 386 U.S. [18] at 24 [87 S.Ct. 824, 17 L.Ed.2d 705 (1967)])." Ward, 292 Kan. at 568-69, 256 P.3d 801. The evidence in this case comes purely from witness testimony. Stanturf and another officer testified that the cocaine came from King's pants pocket. King and Hudnall testified that Stanturf planted the cocaine found in this case. No physical evidence linked the bag of cocaine to King and there was no video of the arrest or subsequent search. Stanturf testified that he had no strong personal feelings against King, other than some frustration from the incident on June 2, 2005, when King fled the scene. King testified that Stanturf harassed him, pulled him over frequently, and had told King of his personal dislike of King. Stanturf testified that he knew of no ongoing vendetta between King and the officers of the south patrol division. But King was not allowed to present evidence of the south patrol division's alleged hostile attitude toward him. The prosecutor's closing argument seized upon the absence of this evidence and ridiculed King's defense, saying: "It is not reasonable to believe that Officer Stanturf and the entire Kansas City, Kansas, Police Department have it in for Kameron King, that they're going to risk their jobs, and judges and cops and forensic chemists are going to corroborate him. I think you all know that Wyandotte County has more problems than that." The prosecutor's closing argument highlights the fact that King was allowed to present the "what" of his defensei.e., the drugs had been planted, but he was not allowed to present the "why" of his defensei.e., the bias of Officer Stanturf and the south patrol division. Although King was allowed to present his defense that the drugs were planted through his own testimony and that of one other witness, the trial court denied King the opportunity to present relevant, admissible, and noncumulative evidence that was integral to his defense. Evidence that Stanturf continued to harass King after the arrest supports King's theory that Stanturf had a grudge against him that caused the officer to plant drugs to frame him for this crime. Evidence that officers in the south patrol division made disparaging comments about King to his family and perjured themselves to obtain a conviction further supports King's theory of defense. As Judge Leben pointed out in his dissent, it may well be that a jury would give little weight to the proffered testimony, but it is not our job on appeal to determine its believability. The evidence offered was relevant, material, and not subject to any sustainable hearsay objections. The State, as the party benefitting from the error, has the burden of proving that the exclusion of this evidence was harmless. Ward, 292 Kan. at 568-69, 256 P.3d 801. The State, therefore, needed to prove "beyond a reasonable doubt that there was no impact on the trial's outcome, i.e., there is no reasonable possibility that the error contributed to the verdict." Ward, 292 Kan. at 565, 256 P.3d 801. The State failed to meet its burden in this case. The exclusion of this evidence prevented King from presenting a complete defense. There is a reasonable possibility that the exclusion of this evidence contributed to the verdict. Because this evidence was integral to King's defense theory, we are not persuaded beyond a reasonable doubt that the error did not impact the outcome of the trial, so we must reverse his convictions and remand for a new trial. SENTENCING King argues that because his prior convictions were not included in the complaint or proved to a jury beyond a reasonable doubt, the use of his criminal history score in sentencing violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). King acknowledges that this court has previously decided this issue, but seeks to preserve it for federal review. See State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002). Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district *609 court is affirmed in part, reversed in part, and remanded for a new trial.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2500931/	716 S.E.2d 802 (2011) 311 Ga. App. 713 DOZIER v. The STATE. No. A11A1085. Court of Appeals of Georgia. September 19, 2011. Stephen Alan Shea, for appellant. Robert D. James, Jr., Dist. Atty., Deborah D. Wellborn, Asst. Dist. Atty., for appellee. BARNES, Presiding Judge. A jury convicted Wendell William Dozier of rape, aggravated sodomy, aggravated child molestation, child molestation, and incest, and he was sentenced to multiple life sentences. He argues on appeal that the trial court erred in allowing the State to impeach his testimony with a prior aggravated assault conviction, and that this error was harmful. For the reasons that follow, we find no error and thus affirm. Dozier's victim was his then-14-year-old daughter, who testified in graphic detail about numerous occasions when Dozier forced her to have sexual intercourse with him. She also testified that Dozier made her perform and receive oral sex during these 803 occasions, which took place at her house and in other places to which Dozier drove her. Dozier did not live with the victim. He retrieved her from school several times and drove his car behind a commercial building, where he made the victim get out and have sex with him at the back of his car. Other times he came over to her house and into her bedroom when her mother was at work, locked the door, and forced her to perform sexual acts. On one of those occasions, the victim's two-year-old brother was crying and trying to get into the victim's bedroom, so Dozier let him in, and then had sex with the victim. The victim testified that she did not want Dozier to perform the sexual acts but did not fight back because she was afraid he would "body slam" and choke her. She did not tell anyone about the abuse right away because Dozier said if she did, she would get in trouble and "it all [would] come back on [her]" because no one would believe her. She also did not want to make her mother feel bad or be angry with her for not disclosing the abuse sooner. The victim finally made an outcry to her boyfriend, who told the victim's cousin. The cousin told her mother, who was the victim's aunt, and the aunt drove the two girls to pick up the victim's mother. In the car on the way back to the aunt's house, the victim told her mother what had been happening with Dozier. The mother was upset but not angry at the victim, and took her to the police station immediately to make a report. Investigation and prosecution ensued. In addition to the victim, her boyfriend, cousin, and mother all testified about the outcry. An expert in child sexual abuse examinations testified that she had examined the victim, who reported a year-long history of penile-vaginal penetration and oral sex that began the day before her fourteenth birthday. The victim's gynecological examination was essentially normal, which the expert explained did not rule out sexual abuse because the tissue in that area tended to heal quickly. An expert in forensic interviews of sexually abused children testified that she was the director of the non-profit Georgia Center for Child Advocacy, which works closely with the police and the Department of Family and Children Services. The center's staff are specially trained to talk to children in a non-leading, non-suggestive way to obtain information when someone suspects that a child has been abused or can provide information about child abuse. The expert explained that children who are abused by someone within their social or family circle often disclose the abuse more slowly than if the abuser were a stranger. When the abuser is someone in a position of authority in a child's life, the expert said, the child may be used to obeying that person's commands, such as "clean your room" or "eat your supper," and thus obey the command not to tell anyone what is happening to them. Children also commonly fear that no one will believe them, that they are responsible for the abuse, and that they will be punished or be the cause of someone else's punishment if discovered. Sometimes an abused child reveals no outward change in her demeanor, but once the abuse is disclosed the child may reveal more information as time passes and she assesses the reaction to her disclosure. A detective who works in a special victims' unit for crimes against women and children testified that he watched the forensic interview of the victim to observe her demeanor and to obtain basic background information about the incidents she had disclosed. She was "humble," the detective said, showing neither sorrow nor happiness. The detective interviewed Dozier twice, at Dozier's residence and then at the police station, and the State played recordings of both interviews during trial. The detective testified that he thought it was strange that Dozier remembered small details about a shopping trip with the victim but could not remember whether or not he had driven his car behind the building, where the victim said one of the assaults occurred. Dozier testified and denied abusing the victim. He also testified on direct examination that he "took a plea bargain" on an aggravated assault charge in 1993 and spent time in prison. During cross-examination, Dozier admitted writing a letter to someone 804 in which he said, "Please help me change her testimony," but said he was referring to his ex-girlfriend, not to the victim. For impeachment purposes, the State entered into evidence a certified copy of Dozier's aggravated assault conviction. The jury subsequently convicted Dozier of all four felony charges. Dozier filed a motion for new trial, which was denied, and this appeal followed Dozier contends on appeal that the trial court failed to apply the proper statutory standard in determining whether his aggravated assault conviction was admissible to impeach his testimony. Before Dozier testified, the trial court considered outside the jury's presence whether the State could use evidence of Dozier's prior aggravated assault conviction to impeach his testimony. Dozier was confined until 1998, and because his release occurred more than ten years before the trial, under OCGA § 24-9-84.1(b) the trial court was required to consider whether the probative value of the evidence, as supported by specific facts and circumstances, substantially outweighed its prejudicial effect. The court asked the State why the evidence was compelling enough to overcome the prejudicial effect of its admission. The State responded that Dozier had been charged with three counts of aggravated assault in 1993, and initially told the police that he and the other three men involved had engaged in mutual combat. The evidence eventually revealed that after Dozier had an altercation with the men, he "went after" them and pistol-whipped one of them. He then returned to the scene and removed the gun to hide the evidence. Dozier pled guilty to one count of aggravated assault and two counts of misdemeanor reckless conduct. The State argued that it should be allowed to impeach Dozier's veracity with evidence of the aggravated assault conviction because Dozier was initially untruthful to the police about the circumstances surrounding the fight and because he tried to hide the evidence. The trial court granted the State's request to admit the prior conviction for impeachment purposes. The court reasoned that, because the crimes for which Dozier was being tried were "crimes of credibility," with an alleged victim saying something happened and Dozier saying nothing happened, evidence of the prior conviction was probative enough on the issue of Dozier's veracity and credibility to outweigh the potential prejudicial effect of admitting evidence of the conviction. Additionally, the court noted, evidence Dozier committed a violent act was relevant to the victim's testimony that she did not disclose the crimes immediately for fear Dozier would hurt her. The court then commented: The jury is going to decide who to believe and I think it's important for them to haveif he wishes to testify, he has the right to testify, but I have never understood the artificial boundaries between other witnesses and parties in the case. I don't understand that. It just doesn't make any sense to me. That's one of the requests to charge which you have made, which is he gets examined like everybody else, he gets sworn like everyone else. As far as I'm concerned, defendants ought to be subject to impeachment just like everybody else. So that's the reason why I'm [allowing the State to impeach Dozier with the prior conviction]. Dozier argues that these comments show that the trial court failed to apply the proper test for determining whether an older conviction is admissible to impeach a defendant as opposed to a witness, which Dozier argues is illustrated by the difference between OCGA § 24-9-84.1(a)(1) and (a)(2). We review a trial court's determination regarding impeachment of a defendant for abuse of discretion. Quiroz v. State, 291 Ga.App. 423, 429(4), 662 S.E.2d 235 (2008). OCGA § 24-9-84.1(a)(2) establishes a stricter standard for weighing the admissibility of a conviction less than ten years old when it is offered to impeach a defendant instead of an ordinary witness. If offered against a defendant, the statute requires that the probative value of the conviction substantially outweigh its prejudicial effect, and the trial court is "not authorized to admit evidence using a more liberal standard than that provided by OCGA § 24-9-84.1(a)(2)." (Citation and punctuation omitted.) Lawrence *805 v. State, 305 Ga.App. 199, 203(3), 699 S.E.2d 406 (2010). Under OCGA § 24-9-84.1(b), however, if more than ten years has passed since the conviction or the release from confinement imposed for that conviction, the standard used to balance the probative value of evidence against its prejudicial effect is the same for defendants and witnesses. In either case, the court must find that the probative value of the conviction "supported by specific facts and circumstances substantially outweighs its prejudicial effect." OCGA § 24-9-84.1(b); Quiroz, 291 Ga.App. at 429(4), 662 S.E.2d 235. The trial court must make express findings regarding the relevant factors when balancing the probative value of the impeachment evidence against its prejudicial effect under OCGA § 24-9-84.1(a) or (b), which include the kind of crime involved, the date of the conviction, and the importance of the witness's credibility. Abercrombie v. State, 297 Ga.App. 522, 524(1), 677 S.E.2d 719 (2009) (conviction reversed because trial court failed to list any factors and simply found that the evidence of three-year-old conviction would have probative value and thus was admissible under OCGA § 24-9-84.1(a)(2)). Dozier argues that, because the statute establishes a stricter standard to admit a conviction less than ten years old against a defendant rather than a witness, it must also require that the trial court apply a stricter standard to admit an older conviction against a defendant. He further argues that the trial court's statement quoted above shows that the court "expressly failed to distinguish between the higher threshold required of a testifying defendant as compared to another witness, so there is no way that it could correctly weigh the necessary factors if the threshold for an over-age conviction is higher still." We disagree that the trial court's observations questioning the reasons for having different impeachment standards for defendants and other witnesses negate its analysis or establish that the trial court "fails to grasp [the] difference," as Dozier argues. In the first place, the statute itself contains no distinction between defendants and witnesses when more than ten years has passed since the applicable conviction or release. Secondly, the trial court properly considered the specific facts and circumstances of Dozier's prior aggravated assault conviction, as required by OCGA § 24-9-84.1(b), before concluding that the probative value of evidence of the conviction substantially outweighed its prejudicial effect. The trial court specifically addressed the relevant factors, including "the kind of felony involved, the date of the conviction, and the importance of the witness's credibility." Quiroz, 291 Ga.App. at 428, 662 S.E.2d 235. Accordingly, the trial court did not abuse its discretion in allowing the State to introduce evidence of Dozier's prior aggravated assault conviction in this case involving rape, aggravated sodomy, aggravated child molestation, child molestation, and incest. Judgment affirmed. ADAMS and BLACKWELL, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2500973/	61 F. Supp. 2d 813 (1999) William D. HAHN, Plaintiff, v. McKENZIE CHECK ADVANCE OF ILLINOIS, LLC, doing business as National Cash Advance, and John Does 1-10, Defendants. No. 99-3103. United States District Court, C.D. Illinois, Springfield Division. August 25, 1999. Daniel A. Edelman, Cathleen M. Combs, Edelman & Combs, Chicago, IL, Philip Milsk, Springfield, IL, for William D. Hahn, plaintiff. Almon A. Manson, Brown Hay & Stephens, Springfield, IL, Daniel P. Shapiro, David J. Chizewer, Goldberg Kohn Bell Black Rosenbloom & Moritz Ltd, Chicago, IL, Charles A. Zdebski, Tracey A. Drohan, Troutman Sanders LLP, Washington, DC, Claudia Callaway, Paul Hastings Janofsky & Walker LLP, Washington, DC, for McKenzie Check Advance of Illinois, LLC, defendant. 814 OPINION RICHARD MILLS, District Judge. The dispositive issue in this Truth in Lending Act case relates to whether, under Illinois law, a post-dated check can be used to secure repayment of a "payday loan." In short, the answer is "yes." Motion to Dismiss allowed. I. Facts alleged in the complaint A. General allegations Defendant National Cash Advance ("NCA") operates "payday loan" establishments throughout various locations in the Central District of Illinois. "Payday loans" are short term, high interest rate loans, that are typically two weeks in duration and carry annual percentage rates of over 500 percent. At the end of the two week term, the customer has the option of continuing the loan for an additional period by paying the interest. During the year prior to the filing of this action, Plaintiff William D. Hahn obtained three payday loans from NCA for nonbusiness purposes. On September 25 and October 8, 1998, Hahn borrowed $200.00 on each occasion by paying $44.00 as a finance charge on each of the loans. In addition, on November 2, 1998, Hahn borrowed $175.00 by paying $39.00 as a finance charge. On each occasion, he wrote a post-dated check in the amount of the loan and the financing charge. In addition, he signed a "Consumer Loan Agreement" which included the following statement: "[y]our post-dated check is security for this loan." Hahn alleges that the above statement stands for the proposition that the "borrower is giving a security interest in the post-dated check." Hahn also alleges that, under Illinois law, an ordinary check does not operate as an assignment of the underlying bank account, and thus, it does not create any sort of meaningful security interest. Thus, he argues that NCA's security interest disclosure violates the Truth in Lending Act, 15 U.S.C. § 1601 et seq. ("TILA"), and Regulation Z, 12 C.F.R. §§ 226.17 and 226.18. B. Counts Count I of the Complaint is a class action claim against NCA for a violation of TILA via Hahn's November 2, 1998 loan. Count II is an individual claim for a TILA violation based on Hahn's September and October "payday loan" transactions. Count III is a class action claim for unconscionability against all Defendants. Lastly, Count IV is a class action claim under the Illinois Consumer Fraud Act, 815 ILCS 505/2, against all Defendants. Defendants move to dismiss all counts. II. Legal Standard for Motion to Dismiss In ruling on a motion to dismiss, the Court must accept well pleaded allegations of the complaint as true. See Hishon v. King & Spalding, 467 U.S. 69, 104 S. Ct. 2229, 2233, 81 L. Ed. 2d 59 (1984); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1104 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S. Ct. 1758, 84 L. Ed. 2d 821 (1985). Although a complaint is not required to contain a detailed outline of the claim's basis, it nevertheless must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. Car Carriers, 745 F.2d at 1106. Mere conclusions, without supporting factual allegations, are insufficient to support a claim for relief. Cohen v. Illinois Inst. of Tech., 581 F.2d 658, 663 (7th Cir.1978). Dismissal should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). III. Discussion A. TILA claims The Truth in Lending Act was designed to protect consumers from misleading or untruthful credit terms. See 15 U.S.C. 815 § 1601; Brown v. Marquette Sav. and Loan Ass'n, 686 F.2d 608, 613 (7th Cir. 1982). In essence, a creditor is liable under TILA if the disclosure of the credit terms is inaccurate or misleading. According to the Complaint, the misleading disclosure in this case relates to the statement, "Your post-dated check is security for this loan." Defendants first argue that Counts I and II must be dismissed because NCA did not state that it held the post-dated check as a "security interest," but merely as a "security" for the loan. In the alternative, Defendants argue that even if NCA represented that it received a security interest in a post-dated check, NCA's representations were not misleading because the applicable law allows a party to receive a security interest in the post-dated check, and the representation in the Consumer Loan Application is in compliance with TILA. In contrast, Plaintiff argues that, as a matter of law, a post-dated check cannot create a security interest as defined by Regulation Z, 12 C.F.R. § 226.18. Mainly, he argues that a check cannot be a "security interest" because the check itself has no "intrinsic value and [it] does not create a security interest in the underlying bank account." In other words, Plaintiff alleges that this statement is misleading because under Illinois law, a post-dated check cannot serve as a collateral for the very loan that it is intended to pay. Alternatively, Plaintiff argues that if Defendants did not intend to disclose a security interest by using the word "security" in the federal box, they still violated TILA because the statute also prohibits a creditor from including information that is not related to the required disclosures. In other words, Plaintiff argues that the word "security" must mean "security interest" or it violates TILA, because the word "security" is not related to any required disclosures, e.g, the security interest disclosures. Initially, the Court finds that as a matter of law, there is no meaningful distinction between the term "security interest" and "security" in the context of this case. See e.g, 12 C.F.R. pt. 226 Supp. I ¶ 18(m)6 ("Terms in disclosure. No specific terminology is required in disclosing a security interest. Although the disclosure may, at the creditor's option, use the term `security interest,' the creditor may designate its interest by using, for example, `pledge,' `lien,' or `mortgage.'") Thus, according to the Federal Reserve Board's interpretation of Regulation Z, Defendants could have used a term that was similar to the word "security interest" to denote its interest in the collateral, such as the word "security." Since the Federal Reserve Board is in charge of regulating truth in lending issues, the Court finds the Board's liberal interpretation of Regulation Z to be very persuasive. Notwithstanding the argument that a post-dated check cannot serve as a security interest as a matter of law, the Court rejects Plaintiff's argument that the mere inclusion of the word "security" in the federal box constitutes a violation of TILA. As noted before, NCA was permitted to use similar terms, such as the word "security," to describe its security interest without violating Regulation Z. In addition, the Court rejects Defendants' attempt at drawing a distinction between the words "security" and "security interest." The plain reading of the phrase "your post-dated check is security for this loan" does not support an alternative meaning except for creating a "security interest" in a collateral the check itself. Having so decided, the sole remaining issue with regard to the TILA claims is whether, under Illinois law, a party can hold a post-dated check as a security interest to the underlying "payday loan." Regulation Z defines "security interest" as "an interest in property that secures performance of a consumer credit obligation and that is recognized by state or federal law." 12 C.F.R. § 226.2(a)(25). 816 With regard to the applicable state law, the parties, along with the Court, agree that the Illinois law controls this case. Plaintiff argues that a post-dated check cannot be a basis for a "security interest" because under 810 ILCS 5/3-408,[1] a check does not automatically operate as an assignment of the bank funds. Thus, he argues, the underlying bank funds cannot be collateral for the loan. Moreover, he argues that since the post-dated check provides no additional value and is merely a "customer's promise or direction to pay her own funds to the lender[,]" it too cannot be "security" for the loan. Our sister court in the Northern District of Illinois rejected similar arguments and held that the post-dated check can be security for a "payday loan." See Smith v. The Cash Store Management, Inc., No. 99-c-1726, 1999 WL 412447, at 1 (N.D.Ill. June 8, 1999). The Court agrees with the conclusion reached by the Smith court for several reasons: First, NCA does not state that it has a "security interest" in the underlying funds in Plaintiff's bank account. NCA states that it is holding the check as "security." Thus, Section 5/3-408 has no bearing on this issue. Second, the Illinois version of Article 9 of the U.C.C. suggests that a party may acquire a security interest in a negotiable instrument, such as a check. See 810 ILCS 5/9-305 ("A security in ... negotiable instruments ... may be perfected by the secured party's taking possession of the collateral.") Moreover, the Court finds nothing in Illinois law that prevents a party from taking a security interest in a post-dated check. See, e.g., Smith, 1999 WL 412447, at * 4. Contrary to what Plaintiff suggests, the Court finds that a post-dated check does have intrinsic value its negotiability.[2] Furthermore, due to its negotiability, the check itself is "property that secures performance of a credit obligation" as defined by Regulation Z. For example, if NCA wanted to secure payment of the loan, it can negotiate the check to a third party, thereby receiving performance on the loan. In other words, contrary to what Plaintiff argues, the post-dated check provides additional rights apart from the promissory note, and is more than just an additional promise by the consumer to pay back the loan. Therefore, the Court finds that Defendants can receive a security interest in a post-dated check. In turn, the Court finds that as a matter of law, the statement "Your post-dated check is security for this loan" is an accurate statement which discloses NCA's security interest for TILA purposes. Accordingly, the Court finds that there is no set of facts which can support Plaintiff's TILA claims. Counts I and II of Plaintiff's complaint are hereby dismissed. B. State law claims Hahn's federal claims are dismissed. As to the remaining state law claims, e.g., claim for unconscionability and Illinois Consumer Fraud Act, the Court finds that it has no independent jurisdiction over them. The Court also declines to exercise jurisdiction over these claims. Accordingly, the Court dismisses the remaining state law claims for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1367(c)(3). Ergo, Defendants' Motion to Dismiss is ALLOWED. The Court finds that the phrase "Your check is security for this loan" creates a valid security interest in the negotiable, post-dated check, and, therefore, is a truthful TILA disclosure as a matter of law. Thus, Counts I and II are dismissed with prejudice. The remaining *817 counts are dismissed for lack of subject matter jurisdiction. NOTES [1] That section states, "A check or other draft does not of itself operate as an assignment of funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until the drawee accepts it." 810 ILCS 5/3-408. [2] Even Plaintiff concedes that some negotiable instruments have value as security. See Plaintiff's Memorandum in Opposition, p. 8.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2500992/	61 F. Supp. 2d 1165 (1999) Patrick WEMPE, an individual, Plaintiff, v. SUNRISE MEDICAL HHG, INC., a California corporation; Mechanical Application Designs, Inc., a Texas corporation; and Dalva Alexander, an individual, Defendants. No. 99-4041-SAC. United States District Court, D. Kansas. August 26, 1999. 1166 Ron C. Campbell, Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, KS, William E. Corum, Blackwell Sanders Peper Martin LLP, Overland Park, KS, Philip J Giacinti, Jr, Procopio, Cory, Hagreaves & Savitch LLP, San Diego, CA, David B. Raymond, Blackwell Sanders Peper Martin LLP, Overland Park, KS, for defendant. Gary E. Laughlin, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, KS, for plaintiff. MEMORANDUM AND ORDER CROW, Senior District Judge. The case comes before the court on a motion to dismiss for improper venue or, in the alternative, to transfer for improper venue, 28 U.S.C. § 1406(a), or, in the alternative, to transfer for convenience of the parties and witnesses, 28 U.S.C. § 1404(a), filed by the defendant Sunrise Medical HHG, Inc. ("Sunrise") (D.Kan.6), and a motion to dismiss for lack of personal jurisdiction or for failure to state claim filed by the defendants Mechanical Application Design, Inc. ("MAD") and Dalva Alexander ("Alexander") (D.Kan.16). The plaintiff Patrick Wempe ("Wempe") opposes both filed motions. Wempe brings this action asserting claims under both federal law (Lanham Act and Patent Act) and state law (Uniform Trade Secrets Act of Kansas and state common law) against the defendants Sunrise, MAD, and Alexander. Common to his different claims are the following allegations. Wempe invented and built a Sliding Tilt Mechanism for use with a power wheelchair frame. Wempe went to Texas and displayed his invention in confidence 1167 to the defendants MAD and Alexander. Instead of entering into a licensing agreement with Wempe, the defendants MAD and Alexander misappropriated his invention, filed patent applications on it without identifying Wempe as the inventor, and manufactured and sold a wheelchair seating system that incorporated Wempe's invention. The defendant Sunrise subsequently acquired all operating assets of MAD, including the rights to this seating system and the pending patent applications on it. The defendant Sunrise is now manufacturing and selling the seating system which incorporates the proprietary Sliding Tilt Mechanism design of Wempe. As set forth in his complaint, the plaintiff alleges that the defendant Sunrise is a California corporation with its principal place of business in Longmont, Colorado. The defendant MAD is a Texas corporation with its principal place of business at Katy, Texas, and the defendant Alexander is an individual residing in Katy, Texas. The plaintiff further alleges in his complaint that venue in the District of Kansas is proper "pursuant to 28 U.S.C. §§ 1391 and 1400(a)." The plaintiff alleges the following six causes of action: (1) false designation of origin in violation of the Lanham Act, 15 U.S.C. § 1125(a); (2) correction of inventorship pursuant to federal patent law, 35 U.S.C. § 116; (3) misappropriation of trade secrets in violation of the Uniform Trade Secrets Act of Kansas, K.S.A. 60-3320, et seq.; (4) common-law breach of contract; (5) common-law unfair competition; and (6) common-law fraud. The court will follow the logical progression of deciding the personal jurisdiction challenges first, the venue issues second, and the other issues last. See Leroy v. Great Western United Corp., 443 U.S. 173, 180, 99 S. Ct. 2710, 61 L. Ed. 2d 464 (1979). Issue I: Whether sufficient minimum contacts with Kansas exist so as to exercise personal jurisdiction over the defendant Alexander? The burden rests with the plaintiff to prove personal jurisdiction over the defendant Alexander. Taylor v. Phelan, 912 F.2d 429, 431 (10th Cir.1990), cert. denied, 498 U.S. 1068, 111 S. Ct. 786, 112 L. Ed. 2d 849 (1991). Discretion resides with the district court to choose the appropriate procedure for deciding a motion to dismiss for lack of personal jurisdiction. A court may decide these jurisdictional issues by reference to affidavits, after a pretrial evidentiary hearing, or at trial if the issues are intertwined with the merits of the suit. Federal Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir.1992). When opposing a motion to dismiss supported by affidavits and other written materials, the plaintiff need only make a prima facie showing and may rely on the "well pled facts" of the complaint. Id. at 174. Well-pled facts, as opposed to conclusory allegations, are accepted as true if uncontroverted by the defendant's affidavits. Wenz v. Memery Crystal, 55 F.3d 1503, 1508-09 (10th Cir.1995). Factual disputes created by conflicting affidavits are resolved in the plaintiff's favor, Oaklawn Apartments, 959 F.2d at 174, "and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party," Behagen v. Amateur Basketball Ass'n of U.S.A., 744 F.2d 731, 733 (10th Cir.1984) (citation omitted), cert. denied, 471 U.S. 1010, 105 S. Ct. 1879, 85 L. Ed. 2d 171 (1985). To overcome a prima facie showing, the "defendant must present a compelling case demonstrating `that the presence of some other considerations would render jurisdiction unreasonable.'" OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)). If the factual disputes require an evidentiary hearing or must await a trial on the merits, the plaintiff must then prove the critical jurisdictional facts by a preponderance of the evidence. Oaklawn Apartments, 959 F.2d at 174. "`Because the Kansas long-arm statute is construed liberally so as to allow jurisdiction to the full extent permitted by the due process clause, we proceed directly 1168 to the constitutional issue.'" OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d at 1090 (quoting Federated Rural Electric Ins. Corp. v. Kootenai Electric Coop., 17 F.3d 1302, 1305 (10th Cir.1994)) (internal citation omitted) (citing Volt Delta Resources, Inc. v. Devine, 241 Kan. 775, 777, 740 P.2d 1089 (1987)). Because this case also arises under federal question jurisdiction, the court examines due process under the Fifth Amendment's filter which is the same as the Fourteenth Amendment analysis. Packerware Corp. v. B & R Plastics, Inc., 15 F. Supp. 2d 1074, 1077 (D.Kan.1998). Under the Fourteenth Amendment, a "court may exercise personal jurisdiction over a nonresident defendant only so long as there exist `minimum contacts' between the defendant and the forum state." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980). In OMI Holdings, the Tenth Circuit summarized the two-fold inquiry involved with an assertion of specific jurisdiction: First, we must determine whether the defendant has such minimum contacts with the forum state "that he should reasonably anticipate being haled into court there." World-Wide Volkswagen, 444 U.S. at 297, 100 S. Ct. 559. Within this inquiry we must determine whether the defendant purposefully directed its activities at residents of the forum, Burger King, 471 U.S. at 472, 105 S. Ct. 2174 and whether the plaintiff's claim arises out of or results from "actions by the defendant himself that create a substantial connection with the forum state." Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 109, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987) (internal quotations omitted) (emphasis in the original). Second, if the defendant's actions create sufficient minimum contacts, we must then consider whether the exercise of personal jurisdiction over the defendant offends "traditional notions of fair play and substantial justice." Id. at 113, 107 S. Ct. 1026. This latter inquiry requires a determination of whether a district court's exercise of personal jurisdiction over a defendant with minimum contacts is "reasonable" in light of the circumstances surrounding the case. See id. 149 F.3d at 1091. These two components of the due process inquiry "`are related' having `both originated' in the idea that a court cannot subject a person to its authority where the maintenance of the suit would offend `traditional notions of fair play and substantial justice.'" OMI Holdings, 149 F.3d at 1091 (quoting Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)), cert. denied, 519 U.S. 1006, 117 S. Ct. 508, 136 L. Ed. 2d 398 (1996)). There is an "interplay" between them, "such that, `depending on the strength of the defendant's contacts with the forum state, the reasonableness component of the constitutional test may have a greater or lesser effect on the outcome of the due process inquiry.'" Id. The factors may bolster the reasonableness of exercising jurisdiction where there has been "a lesser showing of minimum contacts," and the factors "may be so weak" as to render the exercise of jurisdiction a violation of due process. Id. Relying on J.E.M. Corp. v. McClellan, 462 F. Supp. 1246 (D.Kan.1978), Wempe argues that Alexander's fraudulent statements during telephone conversations with Wempe in Kansas satisfies due process requirements. In J.E.M. Corp., the defendant's contact with the forum was limited to a single telephone call initiated by the plaintiff concerning a matter with which the defendant was familiar. Judge Theis there held that "[t]he intentional tortious act here causing injury to a resident in this forum in and of itself satisfies the criteria of International Shoe on a claim for damages arising from that act." 462 F. Supp. at 1255. Neither party devotes much effort to researching the current Tenth Circuit law on this issue or to applying the law to the facts here. The plaintiff Wempe avers that the defendant Alexander initiated two telephone 1169 calls to Topeka, Kansas. In the first conversation, Alexander said he was interested in Wempe's invention and invited Wempe to bring his prototype to Texas and discuss a potential agreement whereby MAD would manufacture and use Wempe's invention. According to Wempe, the second call occurred several days after his visit to Texas. Alexander telephoned Wempe saying that he and MAD had no further commercial interest in his invention. The plaintiff asserts personal jurisdiction over Alexander exists solely based on these two telephone calls. "It is well-established that phone calls and letters are not necessarily sufficient in themselves to establish minimum contacts." Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1077 (10th Cir.1995) (citations omitted). The facts facing the Tenth Circuit in that case are relevant to consider here. The plaintiff Far West Capital ("FWC"), a Utah corporation, was interested in developing land in Nevada that was owned by the defendant Towne, a Nevada resident. The parties conducted extensive negotiations in Nevada, but the parties also exchanged phone calls and Towne sent approximately twelve faxes to FWC in Utah regarding changes in the leases. Towne also hired a consultant who was a Utah resident and who occasionally retrieved materials from FWC in Utah. The negotiations resulted in a leasing agreement that included a provision establishing that Nevada law would govern it. FWC established an escrow account in Utah. When FWC began negotiating with third parties for financing the construction of a power plant, the defendant refused to cooperate with FWC and allegedly interfered intentionally with FWC's contractual relations. FWC brought a diversity action in the United States District Court for the District of Utah, alleging breach of contract and several business torts, including intentional interference with contractual relations, economic duress, and bad faith breach of contract. The district court granted Towne's motion to dismiss for lack of personal jurisdiction. Id. at 1073-74. On appeal, the Tenth Circuit affirmed holding, inter alia, that FWC unilaterally chose the location of the escrow account, that Towne's solicitation in Utah was remote in time from the negotiations leading to agreement, that Towne's agent in Utah was not enough to create personal jurisdiction, and that the telecommunications and correspondence were insufficient. Id. at 1076-77. The Tenth Circuit also rejected FWC's argument that Towne committed an intentional tort that subjected Towne to personal jurisdiction under Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984)[1]: Our review of these post-Calder decisions indicates that the mere allegation 1170 that an out-of-state defendant has tortiously interfered with contractual rights or has committed other business torts that have allegedly injured a forum resident does not necessarily establish that the defendant possesses the constitutionally required minimum contacts. Instead, in order to resolve the jurisdictional question, a court must undertake a particularized inquiry as to the extent to which the defendant has purposefully availed itself of the benefits of the forum's laws. The Supreme Court's observations in Burger King, although specifically addressed to a breach of contract claim, provide a useful framework. See Burger King, 471 U.S. at 478-79, 105 S. Ct. 2174. We therefore examine "prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing." Id. at 479, 105 S. Ct. 2174. In addition, we examine the contacts created by the out-of-state defendant in committing the alleged tort. (citations omitted). ... Unlike Calder, where the defendant's actions "were expressly aimed at" the forum jurisdiction and the forum jurisdiction was "the focal point" of the tort and its harm, the focal point of this relationship was Nevada rather than Utah. Calder, 465 U.S. at 789, 104 S. Ct. 1482. In short, there is no indication that Utah had anything but a fortuitous role in the parties' past dealing or would have any role in their continuing relationship. 46 F.3d at 1079-80. The plaintiff has made a prima facie showing that Alexander purposefully directed his activities at a resident of Kansas and that the plaintiff's claim arises out of or results from the defendant's contacts with this forum. "Even a single purposeful contact may be sufficient to meet the minimum contacts standard when the underlying proceeding is directly related to that contact. See McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957)." Application to Enforce Administrative Subpoenas Duces Tecum of S.E.C. v. Knowles, 87 F.3d 413, 419 (10th Cir.1996). The defendant Alexander purposefully solicited and induced the plaintiff to rely on certain representations made during their telephone conversations. See Rambo v. American S. Ins. Co., 839 F.2d 1415, 1418 (10th Cir.1988) (telephone calls and letters may provide sufficient contacts to satisfy due process); Continental American Corp. v. Camera Controls Corp., 692 F.2d 1309, 1314 (10th Cir.1982) ("We recognize that modern commercial transactions often involve little contact with the forum beyond that of mail and telephone communications."). Alexander initiated the first telephone call to Kansas for the purpose of soliciting Wempe into revealing his proprietary design known as the Sliding Tilt Mechanism. In that call, Alexander represented that he was interested in manufacturing wheelchairs that incorporated Wempe's invented design. Alexander also invited Wempe to bring his prototype to Texas for a demonstration and for a discussion of a potential agreement. In reliance on Alexander's representations, Wempe took his prototype to Texas and demonstrated it to Alexander. As alleged and averred by Wempe, Alexander then called Kansas again and told Wempe that he and MAD were not interested in the Sliding Tilt Mechanism. Wempe alleges that Alexander in the second call fraudulently concealed his plans and intentions to misappropriate his proprietary design. Through these phone calls made to Wempe in Kansas, Alexander purposely directed his activities at Kansas allegedly 1171 to gain access to a proprietary design developed here, kept in confidence here, and protected here; to misrepresent his intentions for wanting a demonstration of the Sliding Tilt Mechanism; and to conceal his unlawful intentions once he gained access to this proprietary design. The record is undisputed that Wempe suffered financial effects in Kansas as a result of this intentional tortious activity which Alexander directed at Kansas. Nor is there a dispute that the defendant necessarily knew that the plaintiff, as an individual inventor residing in Kansas, would suffer the brunt of this financial harm where he resides, does his work, and conducts his business. This simply is not a case where Kansas played only a fortuitous role in the parties' relationship or where the connection to Kansas is limited to it being the plaintiff's domicile. Thus, under the narrow construction of the Calder effects test, the court finds that the plaintiff has made a prima facie showing that the defendant Alexander has such minimum contacts with Kansas that he should reasonably anticipate being haled into court here.[2] The next inquiry is whether the exercise of personal jurisdiction is reasonable under the circumstances particular to this case, considering: "(1) the burden on the defendant, (2) the forum state's interest in resolving the dispute, (3) the plaintiff's interest in receiving convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies." OMI Holdings, 149 F.3d at 1095 (citing Asahi, 480 U.S. at 113, 107 S. Ct. 1026). "[W]here a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Burger King Corp., 471 U.S. at 477, 105 S. Ct. 2174. The defendant Alexander argues three of these factors, but he does not present a compelling case. Other than noting his residency in Texas and his lack of other contacts with Kansas, the defendant Alexander does not demonstrate the burden he would suffer in defending this suit in Kansas. The record shows Alexander to be represented by the same counsel as MAD and his position and interests in this litigation to be aligned with MAD. Considering the apparent and ongoing relationship between Alexander and MAD, the court will not presume an undue burden on Alexander without specific evidence. Finally, this factor is not particularly noteworthy here, because this case carries no hint of being an instance where the plaintiff files vexatious claims in a distant forum where the burden of appearance is onerous to the defendant. See OMI Holdings, 149 F.3d at 1096. 1172 "States have an important interest in providing a forum in which their residents can seek redress for injuries caused by out-of-state actors." OMI Holdings, 149 F.3d at 1096 (citation omitted). A forum state's interest is also implicated when the dispute entails the application of that state's laws. See Asahi, 480 U.S. at 115, 107 S. Ct. 1026. The plaintiff is a Kansas resident, and several of his claims involve the application of Kansas law.[3] This factor clearly and heavily weighs in favor of the plaintiff. The plaintiff's chances for obtaining convenient and effective relief against Alexander would be diminished if he were forced to litigate his claims separately in another forum. Kansas is clearly the forum that offers plaintiff the most effective and convenient relief. In short, the court finds that the plaintiff has made a prima facie showing that Alexander has sufficient ties with Kansas as to permit the constitutional exercise of personal jurisdiction over him. Though having made this showing, the plaintiff eventually must establish jurisdiction by a preponderance of the evidence either at a pretrial hearing or at trial. The court denies the Alexander's pretrial motion to dismiss for lack of personal jurisdiction. Issue II: Whether Kansas is a proper venue, and if not, whether the case should be dismissed or transferred to another district? When a defendant challenges venue, the plaintiff must establish that venue is proper in the forum state. M.K.C. Equipment Co. v. M.A.I.L.Code, Inc., 843 F. Supp. 679, 682 (D.Kan.1994). The plaintiff's burden is to show "that venue is proper as to each claim." Gwynn v. Transcor America, Inc., 26 F. Supp. 2d 1256, 1261 (D.Colo.1998) (and "as to each defendant") (citation omitted); see Rothstein v. Carriere, 41 F. Supp. 2d 381, 386 (E.D.N.Y.1999); Monarch Normandy Square Partners v. Normandy Square Associates Ltd., 817 F. Supp. 899, 903 (D.Kan. 1993). Because improper venue is a defense personal to each defendant, a defendant "may not challenge venue on the ground that it is improper as to a co-defendant." Pratt v. Rowland, 769 F. Supp. 1128, 1132 (N.D.Cal.1991) (citing in part Camp v. Gress, 250 U.S. 308, 316, 39 S. Ct. 478, 63 L. Ed. 997 (1919)). The procedure governing a motion to dismiss for improper venue is basically the same as that used in deciding a motion to dismiss for lack of personal jurisdiction. Hudye Soil Services, Inc. v. Tyler, 46 F. Supp. 2d 1157, 1161 (D.Kan.1999). The defendant Sunrise argues this action should be dismissed for lack of venue. In his complaint, the plaintiff asserts Kansas is a proper venue under 28 U.S.C. §§ 1391 and 1400(a). (D.Kan. 1, ¶ 3). Looking first at the plaintiff's patent claim, venue under § 1400 is based on "where the defendant resides." This necessarily "`includes any district where there would be personal jurisdiction over the corporate defendant at the time the 1173 action is commenced.'" Snyder Industries, Inc. v. Clawson Container Co., 991 F. Supp. 1279, 1292-83 (D.Kan.1998) (quoting VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1583 (Fed. Cir.1990), cert. denied, 499 U.S. 922, 111 S. Ct. 1315, 113 L. Ed. 2d 248 (1991)); see Hoover Group, Inc. v. Custom Metalcraft, Inc., 84 F.3d 1408, 1410 (Fed.Cir.1996); Morrison Co., Inc. v. WCCO Belting, Inc., 35 F. Supp. 2d 1293, 1296-97 (D.Kan.1999). Having admitted that this court has personal jurisdiction over it, the defendant Sunrise essentially concedes Kansas is a proper venue for the plaintiff's patent claim. In a civil action where jurisdiction is not founded solely on diversity, venue is proper in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated." 28 U.S.C. § 1391(b); See Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir.1995) ("The Lanham Act has no special venue provision and thus the general venue statute [28 U.S.C. § 1391(b)] is applicable.") Thus, venue is proper in this district only if a substantial part of the events giving rise to plaintiff's claim occurred in Kansas. "A substantial part of the events" may have occurred in more than one district, and venue may be proper even if contacts with another district were more substantial. See Andrean v. Secretary of the United States Army, 840 F. Supp. 1414, 1422-23 (D.Kan.1993); Merchants Nat. Bank v. SafraBank, 776 F. Supp. 538, 541 (D.Kan.1991). Put another way, "[t]he statute does not posit a single appropriate district for venue; venue may be proper in any of a number of districts, provided only that a substantial part of the events giving rise to the claim occurred there." Woodke v. Dahm, 70 F.3d at 985 (citation omitted). "[T]he appropriate forum for a case is any forum in which a substantial part of the events or omissions giving rise to the claim occurred." First of Michigan Corp. v. Bramlet, 141 F.3d 260, 264 (6th Cir.1998). "The court must decide whether the forum activities played a substantial role in the circumstances leading up to the plaintiff's claim." Andrean, 840 F.Supp. at 1422. "The forum activities must have been events significant to the plaintiff's claims." Hudye Soil Services, Inc. v. Tyler, 46 F.Supp.2d at 1163; see Hansen-Moor Associates v. Allied B/J Trust, 1992 WL 190714, at 4 (D.Kan. July 17, 1992). The court concludes a substantial part of the events giving rise to plaintiff's claims occurred in Kansas. The defendants approached Wempe in Kansas in order to gain access to his proprietary design, including the prototype taken to Texas, which was conceived, developed, and secured in Kansas. See J & J Mfg., Inc. v. Logan, 24 F. Supp. 2d 692, 702 (E.D.Tex.1998); Merchants Nat. Bank v. SafraBank (California), 776 F. Supp. 538, 541 (D.Kan.1991). As discussed under the personal jurisdiction issue, the defendants targeted their misrepresentations at the plaintiff in Kansas. As a result of those misrepresentations, he disclosed his prototype to the defendants and then was mislead into believing that they were not interested in using his design. See Kelly v. MD Buyline, Inc., 2 F. Supp. 2d 420, 440 (S.D.N.Y.1998). The plaintiff suffered all of his injuries in Kansas. See Rothstein v. Carriere, 41 F.Supp.2d at 387 ("The place where the harm occurred is ... relevant for venue purposes." (citation omitted)); see Dakota Industries, Inc. v. Dakota Sportswear, 946 F.2d 1384, 1388-89 (8th Cir.1991); but see Woodke v. Dahm, 70 F.3d at 985. As for the Lanham Act claim, "[t]he place where the alleged passing off occurred ... provides an obviously correct venue." Woodke v. Dahm, 70 F.3d at 985; see Cottman Transmission Systems, Inc. v. Martino, 36 F.3d 291, 294-95 (3rd Cir. 1994). The plaintiff submits an affidavit showing that the Sunrise's product incorporating the plaintiff's design has been sold in Kansas. The court finds that venue is proper in Kansas, even though the defendant's activities in Texas may have been more substantial. 1174 Issue III: Whether Kansas is a convenient forum or should the case be transferred pursuant to 28 U.S.C. § 1404(a)? As an alternative to it motions to dismiss for improper venue, the defendant Sunrise moves to transfer this case to Colorado. The governing statute, 28 U.S.C. § 1404(a), provides in pertinent part: "For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Section 1404(a) affords the district court broad discretion to adjudicate motions to transfer based upon a case-by-case review of convenience and fairness. Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir.1991); see Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S. Ct. 2239, 101 L. Ed. 2d 22 (1988). "The party moving to transfer a case pursuant to § 1404(a) bears the burden of establishing that the existing forum is inconvenient." Chrysler Credit Corp., at 1515. "[U]nless the balance is strong in favor of the movant the plaintiff's choice of forum should rarely be disturbed." Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir.1992) (quoting William A. Smith Contracting Co., Inc. v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir.1972)). The court must consider the following factors in determining whether to transfer a case: the plaintiff's choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the possibility of the existence of questions arising in the area of conflict of laws; the advantage of having a local court determine questions of local law; and, all other considerations of a practical nature that make a trial easy, expeditious and economical. Chrysler Credit Corp., 928 F.2d at 1516. To prevail, the defendant must show that the balance of factors weighs heavily in favor of transfer. Scheidt v. Klein, 956 F.2d at 965. To support its contention, the defendant Sunrise asserts that most factual witnesses reside either in Colorado or Texas, that the alleged infringing product is manufactured and installed in Colorado and Texas, and that it promptly filed first a declaratory judgment action in the United States District Court for the District of Colorado.[4] In response, the plaintiff points out that his choice of forum should be given considerable weight, since he is a resident of the chosen forum. The plaintiff's counsel avers that the plaintiff would call ten witnesses from Kansas, none of whom are his employees and none of whom would be within the subpoena power of a Colorado court. The plaintiff argues a transfer would simply shift the burden from the defendant to him. The defendant Sunrise has not established that the present forum is inconvenient and that a transfer is warranted here. The court is unpersuaded by the defendant's conclusory claim that a transfer of venue is warranted in this action. There has been no showing that litigation in Kansas will impose a disproportionate burden on the defendant. In this modem age of technology, many court appearances may take place over the telephone; thus, the burden of litigation imposed upon nonresidents is greatly decreased. The defendant has not come forth with sufficient evidence to establish that the inconvenience of a trial in Kansas outweighs the inconvenience that would be visited on the plaintiff if the case were transferred to Colorado. 1175 Consequently, because a venue transfer here apparently would succeed only in shifting the inconvenience to plaintiff, the court will not disturb plaintiff's legitimate choice of forum, which is entitled to great weight. See Heating & Cooling Master Marketers Network, Inc. v. Contractor Success Group, Inc., 935 F. Supp. 1167, 1172 (D.Kan.1996); Pehr v. Sunbeam Plastics Corp., 874 F. Supp. 317, 321 (D.Kan.1995). Accordingly, defendants' motion to transfer venue is denied. Issue IV: Whether the plaintiff has stated claims upon which relief can be granted against the defendants Alexander and MAD? A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal 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." 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)). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993); see Hospice of Metro Denver, Inc. v. Group Health Ins. of Oklahoma, 944 F.2d 752, 753 (10th Cir.1991) ("Dismissal of a case pursuant to Fed.R.Civ.P. 12(b)(6) requires the legal determination that the plaintiff can prove no set of facts in support of his claim to entitle him to relief.") (citations omitted); Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472 (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."). The Tenth Circuit has observed that the federal rules "`erect a powerful presumption against rejecting pleadings for failure to state a claim.'" Maez v. Mountain States Tel. and Tel., Inc., 54 F.3d 1488, 1496 (10th Cir.1995) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986)). A court judges the sufficiency of the complaint accepting as true the well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiff. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987). It is not the court's function "to weigh potential evidence that the parties might present at trial." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S. Ct. 897, 74 L. Ed. 2d 723 (1983) (footnote omitted). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir.1989). The defendant Alexander contends that the complaint fails to state any claim against him in his individual capacity as he was acting at all times in his capacity as a corporate officer. Alexander relies on the general rule in Texas that "a corporate officer's acts on the corporation's behalf are deemed corporate acts" for which the defendant officer is not held personally liable unless the plaintiff shows "that the officer acted in a manner so contrary to the corporation's best interests that his or her actions could only have been motivated by personal interest." ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 432 (1997) (citing Holloway v. Skinner, 898 S.W.2d 793, 796 (1995)). The plaintiff responds that the self-dealing exception applies here as Alexander acted contrary to MAD's best interests in misappropriating the plaintiff's proprietary design, causing MAD to manufacture it, and then listing 1176 himself as the inventor on the patent application. Under either Kansas or Texas law, a director or officer of a corporation may be individually liable for torts that he committed or in which he participated. Kerns v. G.A.C., Inc., 255 Kan. 264, 273, 875 P.2d 949 (1994); Kollision King, Inc. v. Calderon, 968 S.W.2d 20, 25 (Tex.App. 1998). The plaintiff's complaint does allege Alexander's commission and/or participation in the different tortious acts. Construing the breach of contract claim in the light most favorable to the plaintiff, Alexander individually agreed that the plaintiff's prototype would be kept in confidence and that he would not use or exploit the plaintiff's proprietary design without a license or assignment. The defendant Alexander is not entitled to Rule 12(b)(6) relief on the basis of this argument. The defendants Alexander and Map also specifically attack five of the six pleaded claims. They first argue that the plaintiff's Lanham Act claim, 15 U.S.C. § 1125, is founded solely on a false designation of inventorship and is not actionable by reason of the holding in Pro-Mold and Tool Co., Inc. v. Great Lakes Plastics, Inc., 75 F.3d 1568 (Fed.Cir.1996). The plaintiff distinguishes Pro-Mold on the facts as not even involving a claim of misappropriation like here but rather was an effort to invalidate a patent on equitable grounds. In reply, the defendants maintain Pro-Mold stands as a limitation on Lanham Act claims based on false designations of inventorship because of the availability of other adequate remedies to address this inequitable conduct. The defendants overstate the holding in Pro-Mold and oversimplify the unique facts addressed there. If the defendants genuinely believe that Pro-Mold essentially forecloses all false designation of inventorship claims under the Lanham Act, then they should brief the matter more fully in their summary judgment motions. From what has been argued and presented to court, it seems an implausible stretch to read Pro-Mold in this way. The misappropriation of a proprietary design and a false designation of inventorship in promotional literature appears to be far more than "inequitable conduct in the prosecution of a patent." See 75 F.3d at 1574. As pleaded, this claim is not limited to Alexander's actions taken in an effort to obtain a patent. Moreover, the plaintiff's Lanham Act claim appears to be concerned with redressing far more than the patent application or the alleged misrepresentations made there. "[T]here has been no conclusive statement that the Federal Circuit would limit the scope of the Lanham Act such that it could not provide a remedy for misrepresentations to the public as opposed to inequitable conduct before the Patent and Trademark Office." Spotless Enterprises, Inc. v. Carlisle Plastics, Inc., 56 F. Supp. 2d 274 (E.D.N.Y. 1999). The defendants' attacks on the other claims are likewise lacking in merit. The plaintiff's complaint sufficiently alleges that the prototype was a trade secret, in that, it was "confidentially presented" to the defendants. (D.Kan.1, ¶ 13). The complaint alleges an implied agreement that the prototype was being disclosed in confidence and that the defendants would use this proprietary design only after compensating the plaintiff either through a license or assignment. The court is not persuaded that the Pro-Mold holding forecloses the plaintiff's common-law claims of unfair competition or fraud. Finally, the plaintiff's allegations of fraud satisfy Rule 9(b). IT IS THEREFORE ORDERED that the defendant Sunrise's motion (D.Kan.6) to dismiss for improper venue or, in the alternative, to transfer for improper venue, 28 U.S.C. § 1406(a), or, in the alternative, to transfer for convenience of the parties and witnesses, 28 U.S.C. § 1404(a), is denied; IT IS FURTHER ORDERED that MAD's and Alexander's motion (D.Kan.16) *1177 to dismiss for lack of personal jurisdiction or for failure to state claim is denied. NOTES [1] In Calder, an entertainer claiming defamation sued in California the author and editor of an article that appeared in the National Enquirer. The reporter did most of his research in Florida but telephoned California. The editor had no such contacts with California, other than reviewing and approving the article. The Court upheld the exercise of personal jurisdiction: The allegedly libelous story concerned the California activities of a California resident. It impugned the professionalism of an entertainer whose television career was centered in California. The article was drawn from California sources, and the brunt of the harm, in terms of both respondent's emotional distress and the injury to her professional reputation, was suffered in California. In sum, California is the focal point both of the story and of the harm suffered. Jurisdiction over petitioners is therefore proper in California based on the "effects" of their Florida conduct in California. (citations omitted) .... ... [T]heir intentional, and allegedly tortious, actions were expressly aimed at California. Petitioner South wrote and petitioner Calder edited an article that they knew would have a potentially devastating impact upon respondent. And they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation. Under the circumstances, petitioners must "reasonably anticipate being haled into court there" to answer for the truth of the statements made in their article. (citations omitted). An individual injured in California need not go to Florida to seek redress from persons who, though remaining in Florida, knowingly cause the injury in California. 465 U.S. at 788-90. Drawing from this passage, the courts have articulated what is known as the "Calder `effects test.'" IMO Industries, Inc. v. Kiekert AG, 155 F.3d 254, 261 (3rd Cir.1998). "The majority of ... circuits [including the Tenth Circuit] that have considered the application of Calder to business torts have adopted a narrow construction." Id. [2] Alexander devotes a single paragraph and cites a single case to the argument that his telephone calls to Kansas were done in his capacity as an officer of MAD and that such contacts do not provide personal jurisdiction over him in his individual capacity. The court summarily rejects this argument on the weight of the Tenth Circuit's holding in Application to Enforce Administrative Subpoenas Duces Tecum of S.E.C. v. Knowles, 87 F.3d 413, 418 (10th Cir.1996): "Knowles, however, contends that the contacts of the two corporations cannot be factored into the analysis of whether he has minimum contacts with the United States. His argument is that the jurisdiction of the district court based upon these corporate contacts does not extend to him. Knowles is mistaken. As the Supreme Court held in Calder v. Jones, employees of a corporation that is subject to the personal jurisdiction of the courts of the forum may themselves be subject to jurisdiction if those employees were primary participants in the activities forming the basis of jurisdiction over the corporation. Calder v. Jones, 465 U.S. 783, 790, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984). That the subpoenas were served on Knowles without explicit reference to his former capacity as president of the two corporations has no bearing on whether the district court has jurisdiction over him with regard to the corporate activities in which Knowles was a primary participant. Personal jurisdiction over him would extend at least as far as matters relating to the activities of the two corporations in the forum in which he was a primary participant." [3] In Kansas, tort actions are governed by the lex loci delicti doctrine, that is, the substantive law of the state where the tort occurred applies. Ling v. Jan's Liquors, 237 Kan. 629, 634, 703 P.2d 731 (1985). Under this doctrine, "the situs of the injury determines the governing law," even if the tortious act occurred in another state. Id. "Under this rule, the tort is deemed to have occurred where the wrong was felt." St. Paul Furniture Mfg. Co. v. Bergman, 935 F. Supp. 1180, 1187 (D.Kan. 1996). Having alleged a financial injury and residing in Kansas, the plaintiff's financial injury was necessarily felt in Kansas. Altrutech, Inc. v. Hooper Holmes, Inc., 6 F. Supp. 2d 1269, 1276 (D.Kan.1998); see Thomas v. Talbott Recovery Systems, Inc., 982 F. Supp. 794, 798 (D.Kan.1997) ("Because plaintiff alleges financial injury in this case, he felt the wrong in Kansas, where he is a resident."). Thus, Kansas law governs the plaintiff's claims for misappropriation under the Kansas Uniform Trade Secrets Act, for common-law unfair competition, and common-law fraud. The parties agree that federal law governs the plaintiff's claims under the Lanham Act and federal patent law. As for the plaintiff's breach of contract claim, the court will reserve its ruling until the matter is more fully briefed and the facts regarding this claim are better presented. [4] The court recently inquired of the Clerk of the Court in the District of Colorado as to the status of Sunrise Medical HHG, Inc. v. Patrick Wempe, et al., No. 99-307 (D.Colo). The court was surprised to learn that the parties by agreement had dismissed that case without prejudice.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2515440/	71 F.Supp.2d 730 (1999) Russell Thomas ANDERSON, Plaintiff, v. THE CHARTER TOWNSHIP OF YPSILANTI, Defendant. No. CIV. A. 94-70047. United States District Court, E.D. Michigan, Southern Division. November 9, 1999. Peter A. Davis, Davis & Fajen, Ann Arbor, Gerard V. Mantese, E. Powell Miller, John J. Conway, Mantese, Miller, Troy, MI, for Russell Anderson, plaintiff. 731 James E. Tamm, O'Connor, DeGrazia, Bloomfield Hills, MI, for Ypsilanti Township, Charter of defendant. ORDER OF DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO THE ROOKER-FELDMAN DOCTRINE GADOLA, District Judge. On June 22, 1999, plaintiff Russell Thomas Anderson filed a motion to lift the stay currently in place in the above-entitled action, as well as a motion for summary judgment. The instant case involves plaintiff's claim that defendant, The Charter Township of Ypsilanti (hereinafter "Ypsilanti Township"), engaged in an unconstitutional taking of plaintiff's property in violation of both the Michigan Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiff initially filed his complaint in the Washtenaw County Circuit Court, State of Michigan, on November 5, 1988. The case eventually was removed by defendant to this Court on January 6, 1994. In an order entered March 3, 1994, this Court remanded plaintiff's state law claims and stayed any further federal court action pending adjudication of the state law claims. Plaintiff now requests that the stay of the federal court action be lifted and that summary judgment be granted in his favor. Defendant Ypsilanti submitted its response in opposition to plaintiff's motions on June 10, 1999. On July 13, 1999, plaintiff filed his reply brief. For the reasons stated hereinbelow, this Court holds that it lacks subject-matter jurisdiction to hear plaintiff's federal claims pursuant to the Rooker-Feldman doctrine. That doctrine, discussed at length infra, provides that "federal district courts lack subject matter jurisdiction to review final adjudications of a state's highest court or to evaluate constitutional claims that are `inextricably intertwined with the state court's [decision] in a judicial proceeding.'" Blake v. Papadakos, 953 F.2d 68, 71 (3d Cir.1992)(citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 n. 16, 103 S.Ct. 1303, 1315, n. 16, 75 L.Ed.2d 206 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923))(emphasis added). Applying the Rooker-Feldman doctrine, the Court must abstain from ruling on plaintiff's motion for summary judgment.[1] I. FACTUAL BACKGROUND Plaintiff's claims arise out of the refusal of the defendant, Ypsilanti Township, to rezone certain real property owned by plaintiff. The following factual background is derived in part from this Court's previous order issued March 4, 1993 remanding state law claims and staying further federal court action. Plaintiff owns a vacant parcel of land encompassing 15.19 acres. Current zoning of the property is I-1, light industrial use. To the east of the property lies a vacant 8.15-acre parcel zoned RM-2 for multifamily residential use and a 20-acre parcel occupied by an apartment complex. Both of these parcels are owned by plaintiff. These properties are bordered on the south and southeast by a fully developed single family residential subdivision. To the north of the property is a railroad crossing. To the west is a small light industrial development. On March 16, 1988, plaintiff applied to Ypsilanti Township for a rezoning of his 15.19-acre parcel from I-1, light industrial, to RM-1, which would permit plaintiff to use the 15.19-acre parcel in the same manner as he uses his 20-acre parcel. Plaintiff seeks the change in zoning so that he may build additional apartments. 732 On May 10, 1988, the Ypsilanti Planning Commission held a public meeting to consider plaintiff's rezoning request. On August 18, 1988, the Township's planner, Charles Leman, recommended that plaintiff's request be granted. Thereafter, both the Ypsilanti Planning Commission and the Washtenaw County Metropolitan Planning Commission recommended to the Township of Ypsilanti that plaintiff's request be granted. Despite these recommendations, the Ypsilanti Board of Trustees voted 4 to 3 on October 18, 1988 to deny plaintiff's request for rezoning. Plaintiff filed a lawsuit against defendant Ypsilanti Township on November 5, 1988 in Washtenaw County Circuit Court, State of Michigan (Case No. 88-36085-CZ). On December 21, 1990, the state court granted defendant's motion for summary judgment. On July 23, 1993, the Michigan Court of Appeals reversed the trial court's decision and remanded the case for further proceedings. On December 15, 1993, plaintiff filed a second amended complaint, alleging three counts. Defendant then filed a notice of removal on January 6, 1994. Count I of plaintiff's second amended complaint alleges an unlawful taking of his property in violation of the Fifth Amendment to the United States Constitution and in violation of the Michigan Constitution. Court II alleges an unlawful exercise of police power in violation of the Fourteenth Amendment to the United States Constitution and in violation of the Michigan Constitution. Count III alleges a violation of 42 U.S.C. § 1983. In an order filed March 3, 1994, this Court refused to exercise pendent jurisdiction over plaintiff's state law claims pursuant to 28 U.S.C. § 1367. This Court remanded plaintiff's state law claims and stayed further proceedings in the federal court action pending disposition of plaintiff's state court case. After the partial remand, a bench trial was held in the state court, the Honorable Kurtis T. Wilder, presiding. The trial concluded in December of 1994. Although the parties had submitted proposed findings of fact and conclusions of law in December of 1994, a decision was not forthcoming from the state court until May 7, 1998.[2] In April of 1998, plaintiff filed a complaint for superintending control in the Michigan Court of Appeals, seeking a decision from Judge Wilder. On May 7, 1998, as mentioned above, Judge Wilder issued an opinion and order finding that plaintiff had failed to prove his claims by a preponderance of the evidence and ruling in favor of defendant Ypsilanti Township. Plaintiff now complains that the May 7, 1998 opinion and order was untimely filed and the decision unfair. Specifically, plaintiff asserts that Judge Wilder's opinion was issued in retaliation for plaintiff's filing his complaint for superintending control. See plaintiff's brief in support of motion to lift stay and for summary judgment, p. 6. II. ANALYSIS As a threshold issue, this Court must first determine whether it has subject-matter jurisdiction over the claims presented by plaintiff. It is well-settled that subject-matter jurisdiction is an issue which must be raised sua sponte by a federal court where appropriate and can be raised at any time. See Mickler v. Nimishillen & Tuscarawas Ry. Co., 13 F.3d 184, 189 (6th Cir.1993), cert. denied, 511 U.S. 1084, 114 S.Ct. 1835, 128 L.Ed.2d 463 (1994). For the reasons stated below, 733 the Court concludes that subject-matter jurisdiction is lacking in the case at bar. Plaintiff seeks a ruling from this Court that the state court's three and one-half years of delay in issuing the opinion and order denied plaintiff his Fourteenth Amendment right to a fair hearing. See plaintiff's brief, p. 9. Plaintiff further asserts that the trial court's actions were a "travesty" prompting the need for immediate federal relief. Plaintiff attempts to analogize the instant case to Green v. Ameritech Corp., 12 F.Supp.2d 662 (E.D.Mich.1998)(Gadola, J.), a case wherein this Court held that an arbitrator had exceeded his authority by issuing a conclusory opinion in violation of the parties' arbitration agreement. Id. at 665. In response, defendant argues that plaintiff is, in effect, seeking appellate review of a state court decision. Such appellate review by a federal court is prohibited by the Rooker-Feldman doctrine. See defendant's brief in response, pp. 19-20. Moreover, with respect to plaintiff's claim that his procedural due process rights were violated by the state court's delay in issuing its May 7, 1998 opinion, defendant cites Bigelow v. Michigan Dep't of Natural Resources, 970 F.2d 154 (6th Cir.1992), for the proposition that a plaintiff's procedural due process claims were not ripe where they were ancillary to the main issues involved in the case. See id. at 159 (citing Harris v. Riverside County, 904 F.2d 497, 500 (9th Cir.1990)) ("`[p]rocedural due process claims arising from an alleged taking may be subject to the same ripeness requirements as the taking claim itself depending on the circumstances of the case'"). In Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), the plaintiff brought suit in a federal district court seeking review of a state court judgment. Plaintiff claimed that an Indiana state statute violated the contract clause of the United States Constitution, Article 1, § 10, cl. 1, as well as due process and equal protection. Id. at 414, 44 S.Ct. 149. The United States Supreme Court in Rooker affirmed the district court's dismissal of the action for lack of subject-matter jurisdiction, stating that no court of the United States other than this court [i.e., the United States Supreme Court] could entertain a proceeding to reverse or modify the judgment [of a state court] for errors.... To do so would be an exercise of appellate jurisdiction. The jurisdiction possessed by the District Courts is strictly original. Id. at 416, 44 S.Ct. 149. More recently, in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), plaintiff was denied the right to sit for the District of Columbia bar examination because he had not graduated from an approved law school. After the District of Columbia Court of Appeals denied plaintiff's petition for admission, plaintiff brought an action in federal district court alleging that he had a right to take the examination pursuant to the Fifth Amendment. The Supreme Court held that a "United States District Court is without authority to review final determinations of the District of Columbia Court of Appeals in judicial proceedings." Id. at 476, 103 S.Ct. 1303. "Review of such determinations can be obtained only in [the United States Supreme Court]." Id. The Court further commented as follows: "[i]f the constitutional claims presented to a United States District Court are inextricably intertwined with the state court's denial in a judicial proceeding of a particular plaintiff's [state law claims], then the District Court is in essence being called upon to review the state court decision. This the District Court may not do." Id. at 483, n. 16, 103 S.Ct. 1303. Subsequent to the two decisions discussed above, courts expressly recognized the so-called Rooker-Feldman doctrine prohibiting appellate review of state court judgments by federal district courts. See, e.g., Blake v. Papadakos, 953 F.2d 68 (3d 734 Cir.1992); Strauss v. Drew, 739 F.Supp. 1231 (N.D.Ill.1990); Lemon v. Tucker, 664 F.Supp. 1143 (N.D.Ill.1987). In Lemon, the doctrine was articulated as follows: The Rooker-Feldman doctrine holds that federal appellate review of judgments rendered by state courts can only occur in the Supreme Court, by appeal or by writ of certiorari. Feldman, 460 U.S. at 482, 103 S.Ct. at 1314-15; Rooker, 263 U.S. at 416, 44 S.Ct. at 150. Under this doctrine, a federal district court challenge to the correctness of a state court judgment must be dismissed for lack of subject matter jurisdiction. This doctrine applies even where the federal action seeks to challenge the procedures by which the state court rendered its judgment, so long as the constitutional claims presented to the federal court are "inextricably intertwined" with the merits of the state court judgment. Feldman, 460 U.S. at 483-84 n. 16, 103 S.Ct. at 1315 n. 16. In such a case, the federal district court is in essence being called upon to review a state court judgment. "This it may not do." Id. Lemon, 664 at 1148. After duly reviewing the pleadings of the parties in the case at bar, as well as the applicable law discussed above, this Court finds that it is without jurisdiction to entertain plaintiff's claims. In essence, plaintiff is seeking reversal of the May 7, 1998 opinion and order issued by the state court. Plaintiff's motion for summary judgment effectively asks this Court to adjudicate issues which are inextricably intertwined with those issues already decided upon by the state court. Specifically, if this Court were to find a violation of substantive due process, it would necessarily be required to find, contrary to Judge Wilder, that defendant Ypsilanti Township acted arbitrarily, capriciously, and in derogation of its authority. In addition, a finding by this Court that plaintiff's property lacked any economic viability due to the rezoning denial would be directly contrary to Judge Wilder's finding that the property had value as zoned. The Rooker-Feldman doctrine prevents a federal district court from ruling on issues which are "inextricably intertwined" with claims decided in state court proceedings. Keene Corp. v. Cass, 908 F.2d 293, 296 (8th Cir.1990). It is well-established that "[u]nder the Feldman doctrine, [a] federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it." Id. at 296-97 (emphasis added). "Where federal relief can only be predicated upon a conviction that the state court was wrong, it is difficult to conceive the federal proceeding as, in substance, anything other than a prohibited appeal of the state-court judgment." Id. (quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107 S.Ct. 1519, 1533, 95 L.Ed.2d 1 (1987)(Marshall, J., concurring)). Since plaintiff's federal claims depend on factual issues inextricably intertwined with the state court's determination, this Court is prohibited from exercising its jurisdiction. As an additional point, plaintiff's reliance on this Court's prior decision in Green v. Ameritech Corp., 12 F.Supp.2d 662 (E.D.Mich.1998) is wholly misplaced. In Green, plaintiff appealed an arbitration opinion. According to the parties' arbitration agreement, the arbitrator was to issue a decision within twenty-one days following the submission of briefs. Id. at 663. A decision was not issued for more than one year. Despite the delay, this Court nevertheless found "the untimeliness objection unavailing because plaintiff ha[d] not demonstrated any prejudice from the arbitrator's late filing of his decision." Id. at 665. Instead, this Court vacated the arbitration award due to the arbitrator's failure to issue an opinion adequately explaining the arbitrator's decision with respect to each theory advanced by each plaintiff. Id. Green is readily distinguishable from the case at bar. First, the instant case involves 735 a state court's determination of crucial factual issues also before this Court, and not the propriety of an arbitrator's decision. Jurisdiction to decide an appeal of an arbitrator's decision was not in question. See Section 10(a) of the Federal Arbitration Act, 9 U.S.C. § 10(a). Second, as just discussed, this Court's ruling in Green was not premised upon the untimeliness of the arbitrator's decision, but rather upon its conclusory nature. At the end of its reply brief, plaintiff cites several cases in an attempt to show that the instant case is not barred by the Rooker-Feldman doctrine. See Catz v. Chalker, 142 F.3d 279, 294 (6th Cir.1998); Gash Assocs. v. Village of Rosemont, 1991 WL 111148 (N.D.Ill.1991); Acierno v. New Castle County, 1996 WL 190005 (D.Del. 1996); Marks v. Stinson, 19 F.3d 873 (3d Cir.1994); England v. La. State Bd. of Medical, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); and Bradley v. Pittsburgh Bd. of Ed., 913 F.2d 1064, 1071 (3d Cir.1990). Unfortunately, none of these cases is controlling over the particular circumstances found in the case at bar. In Catz v. Chalker, supra, for example, plaintiff brought a civil rights action against his former wife and her attorneys, alleging that procedures in a state divorce trial violated his due process rights. The Sixth Circuit found that "the district court erred in holding that [plaintiff's] lawsuit... [was] inextricably intertwined with the Arizona divorce judgment." Id. at 293. The appellate court reasoned that "federal relief [in Catz]...need not be `predicated upon a conviction that the state court was wrong' on the merits." Id. at 294. By contrast, in the case at bar, a ruling in favor of plaintiff by this Court would require the conclusion that the state court was wrong on the merits. Similarly, in Gash Assocs. v. Village of Rosemont, supra, in an unpublished opinion, the federal district court found defendant's claim of lack of subject-matter jurisdiction to be without merit. Plaintiff brought a due process "taking" claim in federal court following a state court proceeding. The Gash court noted that "[the] issue litigated and decided in state court was the propriety of a judicial foreclosure sale and sale confirmation." Id., 1991 WL 111148, 4. The claim brought in the federal court was "a constitutional claim for just compensation." Id. The federal court rejected defendant's assertion that the two proceedings were "inextricably intertwined" so as to implicate the Rooker-Feldman doctrine. In contrast to the instant case, the prior state proceeding herein did not merely involve a determination of the propriety of a judicial foreclosure sale and sale confirmation. Instead, as discussed, the state proceeding in the present case involved identical factual issues as are found in the federal case. In Acierno v. New Castle County, supra, another unpublished decision, plaintiff brought an action in federal court seeking injunctive relief relating to defendant-county's continuing conduct in denying him a building permit. Id., 1996 WL 190005, 1. Thereafter, the defendant filed a complaint in the Court of Chancery of the State of Delaware seeking a declaration that plaintiff "does not have a right to proceed with commercial development plans" on the property in question. Id. In finding that the Rooker-Feldman doctrine did not bar plaintiff's federal claims, the court emphasized the fact that the state court in that case "contain[ed] no substantive holding" and "did not review the merits of the administrative agency's decision." Id. at 5. It is apparent that plaintiff cannot utilize Acierno to resist application of the Rooker-Feldman doctrine due to the fact that Judge Wilder's opinion and order was substantive and did review the merits of the Ypsilanti Board's decision. Plaintiff next cites Marks v. Stinson, supra, wherein a losing state senate candidate, among others, brought an action against the winning candidate, the candidate's campaign, and the Board of Elections, alleging violations of the Voting Rights Act and Civil Rights Act in connection *736 with an election. In rejecting application of the Rooker-Feldman doctrine, the Third Circuit held that "the [district] court was not barred under Rooker-Feldman from hearing the constitutional and fraud claims of [plaintiffs] because [their] claims had not been determined by the state court, nor were they inextricably intertwined with a prior state court decision." Id. at 885, n. 11. Marks is clearly distinguishable from the present case where the issues to be adjudicated are "inextricably intertwined" with the prior state court findings. Nor are the last two cases cited helpful to plaintiff's position. In England v. La. State Bd. of Medical, supra, the court did not even deal with the Rooker-Feldman doctrine, but rather principles of abstention generally. In England, the court held that because plaintiffs were under a mistaken view that they were "required to litigate their federal claims in state courts," plaintiffs' claims should not have been dismissed by the federal court under the abstention doctrine. Id. at 422, 84 S.Ct. 461. Likewise, in Bradley v. Pittsburgh Bd. of Ed., supra, the court also did not consider the Rooker-Feldman doctrine. Instead, the court considered the preclusive effects of prior state proceedings where a teacher had brought a § 1983 action in federal court prior to termination. See id. at 1070. In light of the foregoing, this Court holds that it lacks subject-matter jurisdiction to hear plaintiff's federal claims pursuant to the Rooker-Feldman doctrine. As discussed, plaintiff's motion for summary judgment effectively asks this Court to adjudicate issues inextricably intertwined with issues already determined by the state court. Plaintiff has come forward with no persuasive authority to demonstrate that the Rooker-Feldman doctrine is not applicable herein. Accordingly, the Court will dismiss the instant federal action for lack of subject-matter jurisdiction. NOW, THEREFORE, IT IS HEREBY ORDERED that the above-entitled action be DISMISSED for lack of subject-matter jurisdiction for the reasons as set forth in the above opinion; IT IS HEREBY ORDERED that the hearing previously scheduled for November 10, 1999 is CANCELED. SO ORDERED. NOTES [1] Oral argument will not significantly aid in the disposition of the issues presented in the parties' briefs. Accordingly, pursuant to E.D. Mich. L.R. 7.1(e)(2), the hearing previously scheduled for November 10, 1999 will be canceled. [2] Judge Wilder communicated with the parties on two occasions. On September 22, 1995, the judge wrote to counsel explaining that a personal matter relating to his wife's pregnancy had delayed the opinion and that he intended to issue the opinion by October 31, 1995. See Exh. 16 to plaintiff's brief in support of motion to lift stay and for summary judgment. On January 29, 1996, Judge Wilder issued a notice of intent to issue a decision on or before March 31, 1996. See Exh. 17 to plaintiff's brief. Despite these indications, the opinion and order was not entered until May of 1998.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2515442/	71 F.Supp.2d 1379 (1999) UNITED STATES of America, v. Dennis Pierre JOHNSON, Defendant. No. 7:99-CR-12(WDO). United States District Court, M.D. Georgia, Valdosta Division. November 17, 1999. 1380 James Wilson Smith, Athens, GA, for Dennis Pierre Johnson, defendant. Donald Lamont Johstono, Albany, for U.S. ORDER OWENS, District Judge. Before the court is defendant Johnson's Motion to Suppress [Tab # 21] evidence discovered during a search of the tractor-trailer he was driving on March 10, 1999. Having carefully considered the evidence in the file, the evidence presented at the suppression hearing (held on September 23, 1999), and any and all other evidence and legal principles pertaining to this case, the court issues the following order. I. Facts On March 10, 1999, at approximately 3:15 p.m., Lowndes County Deputies Brian Flemming and B. Benefield stopped the defendant for not maintaining a readable valid county sticker on his license tag, in violation of O.C.G.A. § 40-2-8(c), and for driving an unsafe and improperly equipped vehicle in violation of O.C.G.A. § 40-8-7. Specifically, Officer Flemming testified that he stopped defendant because, as he approached defendant (who was also traveling Northbound on I-75) from the rear, Flemming noticed that the county sticker on the tractor-trailer's license tag was not readable. Additionally, as Flemming progressed forward on the vehicle, he noticed that the air hose line between the tractor and the trailer, which was intertwined with a "heavy-duty" set of jumper cables, was swinging back and forth across the trailer deck. Flemming deemed the cable situation hazardous and a violation of Georgia traffic laws. As a result, Flemming and Benefield stopped the defendant in order to issue him citations or warnings. As Flemming processed warning citations for the traffic violations, he noticed the following suspicious circumstances: 1) a passenger was present in the vehicle (which Flemming found unusual for a commercial tractor-trailer); 2) defendant was hauling produce which is a common cover for drug trafficking; 3) defendant was missing certain logbook entries; 4) defendant talked incessantly about irrelevant and random topics; 5) the truck that the defendant was driving was labeled D & C trucking (names indicated by initials are easily transferred and common to smugglers); and 6) defendant was traveling on what is known as the drug pipeline. Based on his suspicion, Flemming asked defendant if he had any illegal drugs or large amounts of currency in the truck. Johnson stated that he had neither. Flemming then asked if he could search the vehicle that the defendant was driving. Defendant stated, "let me get the keys." The search uncovered $43,980 in U.S. currency concealed inside a box located under the sleeper of the tractor. Both Johnson and Skelton (his passenger) denied any knowledge of the money. Based on the above-listed factors as well as the large cache of cash, the officers detained the individuals in order to conduct a more thorough search of the vehicle. The vehicle was transported (via private 1381 tow truck), along with the defendants (in separate police cars), to a bottling company, which had refrigeration facilities (to protect the produce), in order to search the contents of the vehicle. Three point two (3.2) kilograms of cocaine was then discovered in a plastic bag under a speaker box that was located under the sleeper. II. Discussion A. Stop Defendant Johnson argues that the evidence should be suppressed because Deputies Benefield and Flemming did not have probable cause for the initial stop. Johnson submits that Benefield and Flemming first noticed him as the officers were traveling South on I-75 and he was traveling North. Johnson argues that the officers then crossed the median in order to engage the defendant[1]. Flemming testified that they did not cross the median for this purpose. Flemming stated that it was his regular practice to periodically enter the flow of traffic for several miles then return to his stationery point. Flemming states that the first time he observed defendant was as Flemming approached defendant from the rear. Flemming testified that this is when he noticed that the county sticker was not readable. As Benefield and Flemming proceeded closer toward the cab of the rig, he noticed that the air hose line was intertwined with a large set of jumper cables and the combination was swinging across the trailer deck. Flemming deemed the combination a hazard to defendant and others. Flemming also testified that, from his vantage point, he could not ascertain the identity of the driver until after the stop (in contradiction with defendant's allegation of racial targeting). Regardless of Deputy Flemming's or Deputy Benefield's motive, all evidence indicates that the officers had probable cause to believe the defendant was in violation of Georgia traffic laws: O.C.G.A. 40-2-8(c) and O.C.G.A. 40-8-7(a). In Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 1772-1777, 135 L.Ed.2d 89 (1996), the Supreme Court held that the temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment's prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective. In this case, the initial stop was supported by probable cause that Johnson was violating this state's traffic laws by not maintaining a readable county sticker and having dangerous equipment (air hose/jumper cable combination swinging across the deck of the tractor), regardless of any ulterior motive. Accordingly, Johnson's motion to suppress should be denied on this basis. B. Detention Johnson also argues that the evidence should be suppressed because, assuming the initial stop was lawful, the defendant was unreasonably detained and interrogated in connection with the traffic violations. A police officer may briefly detain an individual for investigative attention if the officer has a reasonable suspicion based on articulable facts that criminal activity is taking place. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "Even when officers have no basis for suspecting a particular individual, they may generally ask questions ... as long as the police do not convey a message that compliance with their requests is required." Quinn v. The State, 268 Ga. 70, 72, 485 S.E.2d 483 (1997)(quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991)). Furthermore, it is lawful to ask for consent 1382 to search while completing paperwork for traffic violations. See Ohio v. Robinette, 519 U.S. 33, 35-36, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); United States v. Simmons, 172 F.3d 775, 778 (11th Cir.1999)(Officers may ask for consent to search a vehicle once the vehicle is validly stopped and the citations are being processed.) Based on the following factors: 1) a passenger was present in the vehicle; 2) defendant was hauling produce; 3) defendant was missing certain logbook entries; 4) defendant talked incessantly about irrelevant and random topics; 5) the truck was labeled D & C Trucking (names indicated by initials are easily transferred and common to smugglers); and 6) defendant was traveling on what is known as the drug pipeline, Deputies Benefield and Flemming had reasonable suspicion to detain the defendant for further investigation and request consent to search the vehicle. Further, the short period of detention and interrogation following the initial stop was entirely reasonable based on the circumstances (approximately twenty minutes elapsed between the time the vehicles stopped and the cash was discovered). C. Consent Defendant also argues that the extent of the search exceeded the scope of his consent. Defendant argues that he did not consent to a full search of his tractor and trailer. The government contends that the defendant did consent to a full search of the vehicle. According to the opinion of the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 249-50, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) an examining court should apply a totality of the circumstances test when deciding the voluntariness of a defendant's consent to search. Pursuant to this analysis, the Government must prove that a defendant freely and voluntarily consented to a search. United States v. Hidalgo, 7 F.3d 1566, 1571 (11th Cir.1993). Johnson willingly consented to the search of the tractor-trailer. Further, based on the court's review of the videotape and the testimony at the suppression hearing, defendant placed no restrictions or conditions on his consent. After the Deputies gave Johnson warning tickets for the traffic violations, the following dialogue took place: Deputy: Were you there when they loaded the truck? Johnson: Yes. Deputy: There's nothing illegal in the trailer then? Johnson: No. Deputy: There's nothing illegal in the tractor? Johnson: No. Deputy: No firearms, no alcohol, no drugs, no large amounts of cash over $10,000? Johnson: None of that. Deputy: Well then do you mind if we search the truck? Johnson: Let me get the keys. Based on the Court's review of the videotape and the testimony at trial, it does not appear that Defendant Johnson imposed any restraints or conditions on the search. Further, based on the totality of the circumstances, defendant Johnson voluntarily consented to the search. D. Arrest Defendant Johnson also argues that his arrest was illegal because it was not based on probable cause to arrest. Specifically, Johnson argues that he was placed under arrest after the officers discovered the money and before they discovered the alleged narcotics. Johnson argues that the officers did not have probable cause for arrest based simply on the finding of the money. Officer Flemming testified at the Motion to Suppress hearing that they did not place defendant under arrest before they transferred him away from the interstate. 1383 Flemming stated that they were simply transporting him to fill out paperwork in conjunction with his expired medical certificate. Flemming was only to be arrested if they discovered more incriminating contraband during a further search. A seizure within the context of the Fourth Amendment occurs only when "by means of physical force or a show of authority... a reasonable person would have believed that he [or she] was not free to leave." United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1876-77, 64 L.Ed.2d 497 (1980). This Court agrees with the defendant that, under the circumstances, a reasonable person would have believed that he or she was under arrest. Upon discovery of the cash, the defendants were immediately told to place their hands on the police car. Then they were told to get on the ground and were handcuffed by the officers and told they would be read their rights later. Shortly thereafter, the defendants were read their rights and placed in separate police cars in order to be transferred to the station. A reasonable person in either of the defendants positions would certainly not have believed that they were free to leave. On the contrary, a reasonable person would have believed that he/ she was under arrest. Since, the defendants were under arrest at this point, the Court must determine if probable cause existed at that point warranting an arrest. Discovery of a large, unexplained sum of money, standing alone, does not constitute articulable suspicion of criminal activity which would justify seizure of an individual. Quinn v. The State, 268 Ga. 70, 71, 485 S.E.2d 483 (1997). Thus, while the presence of the currency is insufficient by itself to demonstrate a connection to illegal activity, such evidence, together with other evidence of criminal activity, may provide a reasonable basis for the belief that the currency is substantially connected to an illegal exchange of drugs. Id. at 72, 485 S.E.2d 483. Accordingly, the court must determine if the arrest was supported by probable cause. While large sums of currency cannot justify an arrest standing alone, the officers in this case had other suspicious circumstances (passenger present, cargo of produce, missing logbook entries, nervous behavior, trucking company with two initials, traveling on drug pipeline) which, combined with the cash ($43,980) and the defendant's denial of having any large amounts of cash, constituted probable cause necessary to seize the defendants. Accordingly, having found no basis for the suppression of the contraband, defendant Johnson's Motion to Suppress is HEREBY DENIED. NOTES [1] While defendant cites Exhibit A to their Memorandum as support for his allegation that Benefield and Flemming crossed the median in order to engage defendant, Exhibit A does not contain this information. Further, the court found no other evidence in support of defendant's theory that the officers crossed the median in order to engage him. The officer testified that he crossed the median periodically in order to observe traffic. Flemming stated that he did not notice defendant until they approached him from the rear.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2515445/	71 F.Supp.2d 464 (1999) Joseph HALSTEAD v. MOTORCYCLE SAFETY FOUNDATION INC., et. al. No. Civ.A. 99-CV-2199. United States District Court, E.D. Pennsylvania. October 29, 1999. 465 466 William W. Spalding, Abraham Bauer & Spauldindg P.C., Philadelphia, PA, for plaintiff. Paul C. Vitrano, Ross, Dixon & Bell, L.L.P., Washington, DC, for defendants. Claudia M. Tesoro, Office of Attorney General, Philadelphia, PA, for defendants. MEMORANDUM AND ORDER JOYNER, District Judge. This civil action has been brought before the Court again by the Commonwealth of Pennsylvania, Department of Transportation ("PennDot") and its three employees, Stephen Madrak, Michael Kistler and Rebecca Bickley, all of whom Plaintiff sued in their individual and official capacities. Specifically, PennDot, Madrak, Kistler and Bickley seek to dismiss the Amended Complaint against them with prejudice for failure to state a claim upon which relief may be granted and for want of sufficient subject matter jurisdiction. For the reasons set forth below, PennDot's motion shall be granted in its entirety and the motion of the individual defendants granted in part. History of the Case As previously noted in our Memorandum and Order of October 8, 1999 disposing of the motion to dismiss of defendant Motorcycle Safety Foundation, Plaintiff's claims emanate from a written contract between PennDot and the Motorcycle 467 Safety Foundation ("MSF"), a private corporation. Under that contract, MSF was to take over the implementation and oversight of a Motorcycle Safety Program for PennDot from Millersville University. Plaintiff Halstead contends that as part of the bid which MSF submitted to obtain the PennDot contract, his name, personal qualifications and resume were used in that MSF represented that Plaintiff's qualifications would be the minimum qualification for the position of State Coordinator and that the position of State Coordinator would be offered to him first. The position would only be offered to another candidate if the plaintiff refused to accept the job offer. According to the Amended Complaint, despite these representations, MSF did not offer Plaintiff the position of State Coordinator for the Motorcycle Safety Program ostensibly because of an interview which he gave to a publication known as the Citizen's Voice on August 13, 1998 and because he informed Defendants that MSF's Proposal Project Director, Roberta Carlson, the former State Coordinator for the Pennsylvania Motorcycle Safety Program when it was being overseen by Millersville University, was inappropriately using insider information gathered while she was a Millersville employee for the benefit of MSF. Plaintiff thereafter instituted this suit seeking damages for breach of contract, invasion of privacy, defamation, tortious interference with third party and prospective contractual relations, punitive damages and for violations of his civil rights under 42 U.S.C. § 1983 and the Pennsylvania Whistleblower Law, 43 P.S. § 1421, et. seq. Through these motions, PennDot, Madrak, Kistler and Bickley seek to dismiss the Amended Complaint against them in its entirety, with prejudice. Standards Governing Motions to Dismiss The rules governing the pleading of cases in the district courts are clear. Under Fed.R.Civ.P. 8(a), "A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded." It is equally clear that the issue of the sufficiency of a pleading may be raised by the filing of a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) or through a motion for a more definite statement under Rule 12(e). In resolving a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir. 1990). In so doing, the court must accept as true the facts alleged in the complaint, together with all reasonable inferences that can be drawn therefrom and construe them in the light most favorable to the plaintiff. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir.1990); Hough/Loew Associates, Inc. v. CLX Realty Co., 760 F.Supp. 1141 (E.D.Pa.1991). The court's inquiry is directed to whether the allegations constitute a statement of a claim under Rule 8(a) and whether the plaintiff has a right to any relief based upon the facts pled. Dismissal under Rule 12(b)(6) for failure to state a claim is therefore limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved. Ransom v. Marrazzo, 848 F.2d 398, 401 (3rd Cir.1988); Angelastro v. Prudential-Bache 468 Securities, Inc., 764 F.2d 939, 944 (3rd Cir.1985), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985). Subject matter jurisdiction, on the other hand, may be challenged by filing a motion pursuant to Fed.R.Civ.P. 12(b)(1). A district court can grant a Rule 12(b)(1) motion based on the legal insufficiency of the claim but dismissal is proper only when the claim appears to be immaterial and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial or frivolous. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3rd Cir.1991). See Also: Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 776, 39 L.Ed.2d 73 (1974). Unlike a motion to dismiss for failure to state a claim under Rule 12(b)(6) where the plaintiff is entitled to have all reasonable inferences drawn in his favor, when jurisdiction is challenged under Rule 12(b)(1), the burden is on the plaintiff to prove that jurisdiction exists and the courts are not limited in their review to the allegations of the complaint. Doe v. William Shapiro, Esquire, P.C., 852 F.Supp. 1246, 1249 (E.D.Pa.1994). Similarly, any evidence may be reviewed and any factual disputes resolved regarding the allegations giving rise to jurisdiction, since it is for the Court to resolve all factual disputes involving the existence of jurisdiction. Sitkoff v. BMW of North America, Inc., 846 F.Supp. 380, 383 (E.D.Pa.1994). In contrast, if the attack to jurisdiction is facial, that is, to the allegations of jurisdiction stated in the complaint, the factual allegations of the complaint are presumed to be true and the complaint is reviewed to ensure that each element necessary for jurisdiction is present. Id. If jurisdiction is based on a federal question, the pleader claiming federal jurisdiction must show that the federal claim is not frivolous. Radeschi v. Commonwealth of Pennsylvania, 846 F.Supp. 416, 419 (W.D.Pa.1993), citing Bartholomew v. Librandi, 737 F.Supp. 22 (E.D.Pa.), aff'd, 919 F.2d 133 (3rd Cir. 1990). Only if it appears to a certainty that the pleader will not be able to assert a colorable claim of subject matter jurisdiction may the complaint be dismissed. Kronmuller v. West End Fire Co. No. 3, 123 F.R.D. 170, 172 (E.D.Pa.1988). See. Also: Mortensen v. First Federal Savings and Loan Ass'n., 549 F.2d 884, 891 (3rd Cir.1977). Discussion A. Eleventh Amendment Immunity. Defendants first argue that this Court lacks subject matter jurisdiction over Plaintiff's claims against them by virtue of the Eleventh Amendment to the U.S. Constitution.[1] That Amendment states that: The Judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against any one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. The Amendment has been interpreted to protect an "unconsenting state from suit in federal court by its own citizens as well as those of another state." Blanciak, 77 F.3d at 694, quoting Pennhurst State School v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907-908, 79 L.Ed.2d 67 (1984). The burden of proving entitlement to Eleventh Amendment immunity falls upon the party[2] asserting it. Christy v. Pennsylvania 469 Turnpike Commission, 54 F.3d 1140, 1144 (3rd Cir.1995). There are, however, certain well-established exceptions to the reach of the Eleventh Amendment. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). If a state waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action. Blanciak, 77 F.3d at 694, citing, Atascadero, 473 U.S. at 234, 105 S.Ct. at 3142 and Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 883, 27 L.Ed. 780 (1883). Alternatively, in appropriate circumstances and with respect to the rights guaranteed under the Fourteenth Amendment, Congress has the power to abrogate a state's Eleventh Amendment immunity. Pennhurst, 465 U.S. at 99, 104 S.Ct. at 907; Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360-61, 39 L.Ed.2d 662 (1974). For either of these exceptions to apply, however, there must be an unequivocal expression of either a state's consent or of the congressional intent to overturn the constitutionally guaranteed immunity of the several States. Pennhurst, 465 U.S. at 100, 104 S.Ct. at 907, citing, Edelman, 415 U.S. at 673, 94 S.Ct. at 1360-61 and Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision. Blanciak, 77 F.3d at 694, citing United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). Hence, a general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 56, 116 S.Ct. 1114, 1123, 134 L.Ed.2d 252 (1996). In this case, plaintiff invokes 42 U.S.C. § 1983, which 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, suit in equity, or other proper proceeding for redress ... In analyzing this statute in an effort to determine whether a cause of action under it may lie against a State, the Supreme Court has repeatedly concluded that while municipal corporations and similar governmental entities are "persons" subject to suit, a State is not a "person" within the meaning of § 1983. See: Howlett v. Rose, 496 U.S. 356, 377, 110 S.Ct. 2430, 2443, 110 L.Ed.2d 332 (1990); Will v. Michigan Department of State Police, 491 U.S. 58, 65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989); Quern v. Jordan, 440 U.S. 332, 343-344, 99 S.Ct. 1139, 1146-1147, 59 L.Ed.2d 358 (1979); Monell v. New York City Dept. of Social Services, 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). There thus being no Congressional abrogation of the States' Eleventh Amendment immunity in Section 1983, we look next to Pennsylvania state law to see if the Commonwealth[3]470 has voluntarily waived this immunity. In so doing, we find that 42 Pa.C.S. § 8521 answers this question in the negative. Specifically, that Statute states: § 8521. Sovereign immunity generally (a) General rule.Except as otherwise provided in this subchapter, no provision of this title shall constitute a waiver of sovereign immunity for the purpose of 1 Pa.C.S. § 2310 (relating to sovereign immunity reaffirmed; specific waiver) or otherwise. (b) Federal courts.Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States. As this statute makes clear, Pennsylvania has explicitly reserved its right to immunity from suit in federal court and we therefore conclude that PennDot and its three employees acting in their official capacities are immune from the plaintiff's § 1983 claims. See: Fitzpatrick v. Pennsylvania Department of Transportation, 40 F.Supp.2d 631, 634 (E.D.Pa.1999). Count V of the Amended Complaint shall be dismissed with prejudice. B. Plaintiff's State Law Claims Against PennDot. There is a distinction between sovereign immunity under the Eleventh Amendment and sovereign immunity with respect to state law claims. The Commonwealth of Pennsylvania has enacted a statute specifically preserving its sovereign immunity subject to certain statutorily enumerated exceptions. Indeed, under 1 Pa.C.S. § 2310, ... it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. When the General Assembly specifically waives sovereign immunity, a claim against the Commonwealth and its officials and employees shall be brought only in such manner and in such courts and in such cases as directed by the provisions of Title 42 (relating to judiciary and judicial procedure) or 62 (relating to procurement) unless otherwise specifically authorized by statute. As regards Commonwealth parties such as PennDot[4], the General Assembly has specifically waived its immunity from suit with respect to actions in nine distinct categories "for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person having available the defense of sovereign immunity." 42 Pa.C.S. § 8522(a). Specifically, the categories for which immunity has been waived are: (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous 471 conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. 42 Pa.C.S. § 8522(b)(1)-(9). Plaintiff here is advancing claims under state law against the Department of Transportation for defamation, tortious interference with third party and prospective contractual relations and for violation of the Pennsylvania Whistleblower Law, 43 P.S. § 1421, et. seq. None of these claims, of course, involve negligence or fall within the menu of claims for which sovereign immunity has been waived under Section 8522(b) and we therefore shall dismiss Counts V and VI with prejudice. We reach the same conclusion as to Plaintiff's Whistleblower Law claim, although for a slightly different reason. It is clear that the Whistleblower Law applies only to public employees who are discharged or otherwise discriminated or retaliated against by governmental entities. See: Clark v. Modern Group, Ltd., 9 F.3d 321, 326, n. 4 (3rd Cir.1993); Holewinski v. Children's Hospital of Pittsburgh, 437 Pa.Super. 174, 649 A.2d 712, 715 (1994); Krajsa v. Keypunch, Inc., 424 Pa.Super. 230, 622 A.2d 355, 359-360 (1993). Specifically, Section 1423 of the Pennsylvania Whistleblower Law provides: (a) Persons not to be discharged. No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee's compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste. (b) Discrimination prohibited.No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee's compensation, terms, conditions, location or privileges of employment because the employee is requested by an appropriate authority to participate in an investigation, hearing or inquiry held by an appropriate authority or in a court action. Under the Definitions portion of the statute, 43 P.S. § 1422, "employee" is defined as "[a] person who performs a service for wages or other remuneration under a contract of hire, written or oral, express or implied, for a public body." "Employer," in turn, is "[a] person supervising one or more employees, including the employee in question; a superior of that supervisor; or an agent of a public body." A "public body" is defined to include all of the following: (1) A state officer, agency, department, division, bureau, board, commission, council, authority or other body in the executive branch of State government. (2) A county, city, township, regional governing body, council, school district, special district or municipal corporation, or a board, department, commission, council or agency. (3) Any other body which is created by Commonwealth or political subdivision authority or which is funded in any amount by or through Commonwealth or political subdivision authority or a member or employee of that body. The language "funded in any amount by or through Commonwealth or political subdivision authority or a member or employee of that body" has been held to have been intended by the legislature to be limited to monies which were appropriated by the legislature for the purpose of aiding "public bodies" in pursuit of their public goals and was obviously not intended to make an individual or corporation a "public body" solely on the basis that monies were received by it from the state as reimbursement for services rendered. Cohen v. Salick Health Care, Inc., 772 F.Supp. 1521, 1527 (E.D.Pa.1991); Riggio v. Burns, ___ Pa.Super. ___, 711 A.2d 497 (1998), appeal granted, ___ Pa. ___, 739 A.2d 167 (1998). Thus, it is clear that the Pennsylvania 472 legislature effectively abrogated the Commonwealth's sovereign immunity when it enacted the Whistleblower Law and PennDot is therefore not immune from Whistleblower Act claims. Nevertheless, we find the plaintiff's Amended Complaint insufficient to state a Whistleblower cause of action against the Department of Transportation given Mr. Halstead's failure to allege that he was ever an employee of either MSF or PennDot. Rather, in Count XI of the Amended Complaint, Mr. Halstead contends that he was an employee of the Pennsylvania Motorcycle Safety Program then being run by Millersville University. In the absence of an employment relationship, no cause of action can lie here as between the plaintiff and the Department of Transportation. Accordingly, the Defendant's motion to dismiss shall be granted with respect to Count XI as well. Plaintiff's final claim against PennDot is lodged in Count XII and is for punitive damages. In Pennsylvania, punitive damages are an element of damages arising out of an initial cause of action for compensatory damages. Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800, 802 (1989), citing Hilbert v. Roth, 395 Pa. 270, 149 A.2d 648 (1959). Hence, if no underlying cause of action exists, there is no independent action for a claim for punitive damages. Id. Moreover, under 42 Pa. C.S. § 8528(c), damages from Commonwealth entities are recoverable only for past and future loss of earnings and earning capacity, pain and suffering, medical and dental expenses, loss of consortium and property losses. In view of this limitation and our determination that all of the plaintiff's compensatory damages claims against PennDot are properly dismissed, his claim for punitives must fall as well. See Also: Feingold v. Southeastern Pennsylvania Transportation Authority, 339 Pa.Super. 15, 488 A.2d 284, aff'd, 512 Pa. 567, 517 A.2d 1270 (1986). Count XII is likewise dismissed with respect to the Department of Transportation. C. Plaintiff's Claims Against Stephen Madrak, Rebecca Bickley and Michael Kistler. The Eleventh Amendment does not bar § 1983 personal capacity suits against state officials in federal court. Hafer v. Melo, 502 U.S. at 22, 112 S.Ct. at 360. We therefore next consider whether Plaintiff's claims under Section 1983 against PennDot employees Madrak, Kistler and Bickley in their personal capacities may go forward. The courts have repeatedly held that the purpose of § 1983 is to provide a civil cause of action to protect persons against the misuse of power possessed by virtue of state law and made possible because the defendant was cloaked with the authority of the state. Del Signore v. McKeesport, 680 F.Supp. 200, 203 (W.D.Pa.1988). See Also: West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988). Section 1983 does not create a cause of action in and of itself; rather it provides redress for certain violations of rights arising under the federal constitution or laws of the United States which are caused by persons acting under color of state law. Lee v. Gateway Institute & Clinic, Inc., 732 F.Supp. 572, 575 (W.D.Pa.1989), citing Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). To make out a claim under § 1983, a plaintiff must demonstrate that the conduct of which he is complaining has been committed under color of state or territorial law and that it operated to deny him a right or rights secured by the Constitution or laws of the United States. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980); Abdul-Akbar v. Watson, 901 F.2d 329, 332 (3rd Cir.1990), cert. denied, 498 U.S. 806, 111 S.Ct. 237, 112 L.Ed.2d 196 (1990). Naturally, the plaintiff must also show that it was the defendant who subjected him to this deprivation of his rights or caused him 473 to be subjected to the deprivation. Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980); Signore, supra, 680 F.Supp. at 203. See Also: Rizzo v. Goode, 423 U.S. 362, 370-371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976); Duchesne v. Sugarman, 566 F.2d 817, 831 (2nd Cir. 1977). State officials, sued in their individual capacities are "persons" within the meaning of § 1983 and are not absolutely immune from personal liability thereunder solely by virtue of the "official" nature of their acts. Hafer v. Melo, 502 U.S. at 31, 112 S.Ct. at 365. Although a § 1983 complaint is not held to a heightened pleading standard, to withstand a motion to dismiss it must still satisfy the requirements of Fed. R.Civ.P. 8(a) of "a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993); Frederick v. Southeastern Pennsylvania Transportation Authority, 892 F.Supp. 122, 125 (E.D.Pa.1995). The complaint should therefore state facts such as the time and place of the deprivation and the persons responsible so as to both show the elements of the cause of action and to provide defendants with adequate notice to frame an answer. Youse v. Carlucci, 867 F.Supp. 317, 319 (E.D.Pa.1994), citing Frazier v. SEPTA, 785 F.2d 65, 67 (3rd Cir.1986) and Rode v. Dellarciprete, 845 F.2d 1195, 1207-1208 (3rd Cir.1988). See Also: Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 1596-97, 140 L.Ed.2d 759 (1998); Agresta v. Goode, 797 F.Supp. 399 (E.D.Pa.1992). Again, the plaintiff here has invoked § 1983 as a remedy for what he alleges was retaliation for his exercising his First Amendment right to freedom of speech by giving an interview which was reported in an article in the Citizen's Voice entitled "Officials Fighting to Keep Motorcycle Safety Program in State." It is now clear that under Supreme Court precedent, public employees are afforded some protection against adverse employment actions based on their expressive activity but only when two conditions are satisfied. Azzaro v. County of Allegheny, 110 F.3d 968, 976 (3rd Cir.1997), citing, Connick v. Myers, 461 U.S. 138, 143-44, 103 S.Ct. 1684, 1688, 75 L.Ed.2d 708 (1983). See Also: Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). First, the employee's conduct must address "a matter of public concern" which is to be determined by the "content, form, and context of a given statement, as revealed by the whole record." Id.,citing Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. Second, the value of that expression must outweigh the government's interest in the effective and efficient fulfillment of its responsibilities to the public. A discharged public employee is entitled to no redress if her expression is not related to a matter of public concern or, even if it is so related, its value is outweighed by the value of permitting the government to take action promoting efficiency and effectiveness. Id. Whether speech touches on a matter of public concern is a legal question to be determined by the court, not the finder of fact. Fogarty v. Boles, 938 F.Supp. 292, 298 (E.D.Pa.1996). An employee's speech addresses a matter of public concern when it can be "fairly considered as relating to any matter of political, social, or other concern to the community." Id.,quoting Pro v. Donatucci, 81 F.3d 1283, 1288 (3rd Cir.1996) and Watters v. City of Philadelphia, 55 F.3d 886, 892 (3rd Cir.1995). These protections have since been extended to instances where government retaliates against a contractor, or a regular provider of services for the exercise of its rights of political association or freedom of speech. O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 116 474 S.Ct. 2353, 135 L.Ed.2d 874 (1996); Board of County Commissioners v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). Where, however, there is no such ongoing commercial relationship, there is no First Amendment protection and thus in the absence of such a relationship, a cause of action is not recognized for failure to award a contract in retaliation for exercise of one's First Amendment rights. McClintock v. Eichelberger, 169 F.3d 812, 817 (3rd Cir.1999). In applying these principles to this case, the gravamen of Plaintiff's § 1983 claim against the individual PennDot defendants is contained in Count VII at Paragraph 61 of the Amended Complaint: Upon information and belief, the decision of defendant MSF not to hire Plaintiff was based upon the decisions, requests or actions of Madrak, Kistler and/or Bickley as a result of Plaintiff exercising his First Amendment right to freedom of speech in an interview he gave which was reported in the press in the Citizen's Voice on August 13, 1998 entitled "Officials Fighting to Keep Motorcycle Safety Program in State." As a threshold matter, it is impossible to determine from the Amended Complaint which of these three defendants took which action or how their decisions, requests or actions influenced MSF. We thus find that the amended complaint falls short of giving the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Additionally and as has previously been discussed, Mr. Halstead was never an employee of PennDot or MSF and there are no facts which would suggest that MSF had a prior or ongoing commercial or independent contractor relationship with PennDot. Indeed, Plaintiff does not complain that he was not awarded the PennDot contract but rather his complaint is that he was not offered a job by a prospective employer. Thus, even assuming that the matters which Plaintiff discussed with the Citizen's Voice reporter were matters of public interest, we find that he has failed to plead a § 1983 cause of action against the individual defendants for violations of his First Amendment rights to free speech and freedom of expression. Count VII is therefore dismissed in its entirety. We do, however, find that Plaintiff's claims against the individual defendants for defamation and tortious interference with contractual relations have been pled sufficiently to permit them to proceed further. To be sure, sovereign immunity extends only to Commonwealth employees acting within the scope of their duties. Fitzpatrick v. Pennsylvania Department of Transportation, supra, 40 F.Supp.2d at 636; 1 Pa.C.S. § 2310; 42 Pa.C.S. § 8501. Inasmuch as Plaintiff has alleged that Madrak, Kistler and Bickley were acting both in their individual and their official capacities and we cannot make a conclusive determination at this time as to whether anything that any of these three defendants may have said or did was defamatory or in interference with Plaintiff's relationship with MSF, nor can we determine the capacity in which these defendants may have been acting, we shall give the parties the opportunity to take discovery on these claims. If appropriate, of course, these arguments may be revisited on summary judgment. For all of the reasons outlined above, we shall grant PennDot's motion to dismiss in its entirety and grant in part[5] the motion *475 of Defendants Madrak, Kistler and Bickley in accordance with the attached order. AND NOW, this 29th day of October, 1999, upon consideration of the Motions of the Commonwealth of Pennsylvania, Department of Transportation and Stephen Madrak, Michael Kistler and Rebecca Bickley to Dismiss the Plaintiff's Amended Complaint, and Plaintiff's Responses thereto, it is hereby ORDERED that the Motion of the Commonwealth of Pennsylvania, Department of Transportation is GRANTED and all claims against the Department of Transportation are DISMISSED with prejudice. IT IS FURTHER ORDERED that the Motion of Defendants Madrak, Kistler and Bickley is GRANTED IN PART and DENIED IN PART and Counts VII and XII are DISMISSED in their entirety from the Amended Complaint with prejudice. NOTES [1] The Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction and therefore a motion raising Eleventh Amendment immunity may properly be considered a motion to dismiss the complaint for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693, n. 2 (3rd Cir.1996). [2] It should be noted that official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent and it is for this reason that suits against state officials in their official capacity are to be treated as suits against the State. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 361, 116 L.Ed.2d 301 (1991); Kentucky v. Graham, 473 U.S. 159, 165-166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). For the same reason, the only immunities available to the defendant in an official-capacity action are those that the governmental entity possesses. Hafer, 502 U.S. at 25, 112 S.Ct. at 362. Thus, our discussion and analysis of the plaintiff's claims against PennDot here applies with equal force to Mr. Halstead's claims against the defendant employees, Madrak, Kistler and Bickley in their official capacities and we shall analyze the liability of defendants Madrak, Kistler and Bickley in their individual capacities under Section 1983 infra. [3] The Pennsylvania Department of Transportation has been held to be "an executive agency of the state, controlled by the Commonwealth and acts as its `alter ego' in accomplishing a public purpose which is in part to construct and maintain the state roadways using state tax revenues and employing state agencies under the control of the state executive branch." PennDot is therefore generally immune from suit in federal court under the Eleventh Amendment. See: Holdampf v. Fidelity & Casualty Company of New York, 793 F.Supp. 111, 115 (W.D.Pa.1992); Goad v. Pennsylvania Department of Transportation, 530 F.Supp. 342, 344 (W.D.Pa.1981); Savory v. Kawasaki Motor Corp., U.S.A., 472 F.Supp. 1216, 1218 (E.D.Pa.1979). See Also: 42 Pa. C.S. § 8501. [4] Under 42 Pa.C.S. § 8501, "Commonwealth Party" is defined as "[a] Commonwealth agency and any employee thereof, but only with respect to an act within the scope of his office or employment." [5] As was our ruling with respect to the motion to dismiss of Defendant MSF, we cannot find any allegations or other potential facts which would evince that the individual defendants acted with such evil motive or reckless indifference to Mr. Halstead's rights that would support a claim for punitive damages against them. See: Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984); Doe v. William Shapiro, Esquire, 852 F.Supp. 1246, 1255 (E.D.Pa.1994). Count XII shall therefore be dismissed in its entirety and with respect to all of the defendants.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501017/	61 F. Supp. 2d 1255 (1999) Thomas MISTRETTA, Plaintiff, v. VOLUSIA COUNTY DEPARTMENT OF CORRECTIONS, Francis T. Moore, in his official capacity and individually, Marilyn C. Ford, in her official capacity and individually, Glenda L. Powell, in her official capacity and individually, Lowette Henderson, in her official capacity and individually, Lester Neel, in his official capacity and individually, and Ken Modzelewski, in his official capacity and individually, Defendants. No. 97-1050CIV-ORL-18A. United States District Court, M.D. Florida, Orlando Division. February 1, 1999. 1256 1257 Charles V. Choyce of the Law Firm of Bogin Munns & Munns, Orlando, FL, for plaintiff. David V. Kornreich and Benton N. Wood, of the Law Firm of Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.A., Orlando, FL, for defendants. ORDER G. KENDALL SHARP, District Judge. Plaintiff Thomas Mistretta ("Mistretta") brings the instant action against defendants Volusia County Department of Corrections ("the County"), and Francis T. Moore ("Moore"), Marilyn C. Ford ("Ford"), Glenda L. Powell ("Powell"), Lowette Henderson ("Henderson"), Lester Neel ("Neel"), and Ken Modzelewski ("Modzelewski"), in their individual and official capacities, alleging violations of the Family Medical Leave Act of 1993, 29 U.S.C. §§ 2612, 2614 ("FMLA"); the Americans with Disabilities Act, 42 U.S.C. § 12112 ("ADA"); and the Rehabilitation Act of 1973, 29 U.S.C. §§ 706, 794 ("the Rehabilitation Act"). The plaintiff also alleges claims under Florida law for false imprisonment, assault, intentional infliction of emotional distress, and negligent infliction of emotional distress. The case is presently before the court on the defendants' motion for summary judgment, to which the plaintiff has responded in opposition, and the defendants' motion to strike. Following a review of the case file 1258 and relevant law, the court concludes that the defendants' motion for summary judgment should be granted and their motion to strike should be denied. I. Factual Background On January 16, 1984 Mistretta was hired by Volusia County as a Corrections Officer in the Department of Corrections. In 1986 he was promoted to Sergeant and in 1988 he was transferred to the Program Services Division to work as a Case Management Counselor. Mistretta was promoted to Case Management Coordinator in October of 1991. Beginning in 1991, Mistretta received medical treatment for severe anxiety panic disorder. In order to control his panic disorder, Mistretta took medication on a daily basis. Without the medication, the plaintiff claims that he would not be able to perform his job as Case Management Counselor. In a letter dated August 24, 1992, Mistretta requested that he be demoted from Case Management Coordinator to Case Management Counselor. He asked that he not receive a reduction in salary and his request was granted. During this same time, Mistretta also requested a three week medical leave of absence. Mistretta submitted a note from Dr. Bruce Rankin, who is Board Certified in Family Practice but is not a psychiatrist or psychologist. Although the note did not state that the plaintiff had a mental disability, Mistretta claims that his supervisors, Moore and Ford, were aware that he suffered from a panic disorder. Moore, the Public Protection Services Center Director, granted Mistretta's request for a three week leave of absence. In September of 1993, the plaintiff requested another three week medical leave of absence. Mistretta again submitted a note from Dr. Rankin which stated that the plaintiff was suffering from chest pains. Plaintiff's request was granted. During 1993, the plaintiff missed eight and a half weeks of work due to sick leave, personal time, vacation time, and medical leave. In 1994, the plaintiff requested and was granted four weeks of paid leave under the FMLA for the birth of his child. During 1994, the plaintiff missed twelve and a quarter weeks of work due to use of sick leave, personal time, vacation time, and FMLA leave. In 1995, there occurred a series of incidents which led to the plaintiff's discharge. On June 2, 1995 the plaintiff received of "Letter of Caution" in response to a complaint that he had lost his temper while initiating a confrontation with an inmate. Mistretta attended a meeting with Henderson, the Senior Case Management Counselor, and Powell, the Case Management Coordinator, to discuss the incident. During the meeting, the plaintiff suffered a panic attack and asked to leave the room. The plaintiff contends that Powell initially refused to let him leave the room and when he was allowed to leave, Powell struck him, causing a back injury. On June 22, 1995, the plaintiff received a "Letter of Reprimand" for violating proper procedures with respect to computing sentences for inmates. Plaintiff requested a meeting with Moore to discuss the "Letter of Reprimand" and "Letter of Caution." On July 19, 1995, Moore met with Mistretta and then-Assistant Director Daniel Cassidy, whom the plaintiff had selected as a witness for the meeting. During the meeting, the plaintiff suffered a panic attack. As a result of the plaintiff's actions and statements during the meeting, Moore referred him to a qualified professional to determine his fitness for duty. On September 27, 1995 the plaintiff was notified that he was being placed on a medical leave of absence until it was determined that he was psychologically fit to return to work. The plaintiff met with Dr. Riaz Mazcuri who certified plaintiff as psychologically fit for duty without limitation or need for accommodation. This marked the first time that the plaintiff was ever treated by a psychologist. Upon receipt of verification from Dr. Mazcuri, Moore authorized 1259 the plaintiff to return to work. The plaintiff was paid for all of the time that he missed while he was out on medical leave. On approximately December 4, 1995, a number of County corrections officers complained that the plaintiff had been calling them at their homes. Each of the officers had unlisted numbers and they wanted to know how Mistretta had obtained their private phone numbers. Plaintiff was aware that pursuant to Florida statutes, it is a violation of state law to publish a correction officer's home phone number without permission. A meeting was held with Mistretta, Captain Bruce Bolton, and Modzelewski, a law enforcement officer assigned to the Department of Corrections, to discuss the complaints. Plaintiff refused to provide any information as to how he obtained the corrections officers' phone numbers and stated that he wished to invoke his Fifth Amendment privilege against self-incrimination. Plaintiff was informed that he would be charged with insubordination unless he provided the information, but he refused. On December 8, 1995, at a meeting with Moore, Neel, Modzelewski, and Captain Bolton. Mistretta received a "Notice of Intent to Terminate." Mistretta was advised that his employment would be terminated unless he answered the question as to how he got the telephone numbers. After Mistretta refused to answer, Neel stepped forward to take his identification badge. Plaintiff responded by drawing back into a karate stance, at which point Moore gave instructions to have the plaintiff escorted out of the jail. Three days later, the plaintiff's employment was terminated for failure to provide the names of all individuals who gave him the phone numbers and for insubordination in the December 8th meeting with Moore. Plaintiff alleges that he did provide, through his attorney, an explanation as to how he obtained the numbers and he was not insubordinate in the meeting with Moore. Plaintiff appealed his termination to the Volusia County Personnel Board and a hearing was held on January 30, 1996. The Personnel Board unanimously upheld the finding of insubordination and the decision to terminate the plaintiff's employment. The plaintiff exhausted all of his administrative remedies and this present suit followed. II. Legal Discussion A. Summary Judgment Standards Summary judgment is authorized if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S. Ct. 2505. "[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S. Ct. 2505. The moving party bears the burden of proving that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In determining whether the moving party has satisfied the burden, the court considers all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolves all reasonable doubts against the moving party. See Anderson, 477 U.S. at 255, 106 S. Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The moving party may rely solely on his pleadings to satisfy this burden. See Celotex, 477 U.S. at 323-24, 106 S. Ct. 2548; Fed.R.Civ.P. 56(c). 1260 "[A]ll that is required [to proceed to trial] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." Anderson, 477 U.S. at 249, 106 S. Ct. 2505 (quoting First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968)). Summary judgment is mandated, however, "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." Celotex, 477 U.S. at 322, 106 S. Ct. 2548. B. Motion to Strike On December 3, 1998, the defendants filed a motion to strike portions of the plaintiff's opposition to summary judgment. In their motion, the defendants argue that plaintiff's retaliation claim under the FMLA should not be considered by the court because it was not pled in the complaint. The court, however, finds that the plaintiff's complaint was sufficient to give notice to the defendants that retaliation under the FMLA was a possible legal theory. See The City of Gainesville v. Florida Power & Light Co., 488 F. Supp. 1258, 1263 (S.D.Fla.1980) ("As long as the pleadings `give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests,' the theory of notice pleading has been satisfied.") (citation omitted). Thus, the retaliation claim will not be stricken. The defendants also argue that portions of plaintiff's opposition to summary judgment mischaracterize plaintiff's deposition testimony. The court, however, can make its own determination as to whether there is a genuine issue for trial after evaluating all the evidence in the record. Therefore, the defendants' motion to strike will be denied. C. The Merits of Defendants' Motion for Summary Judgment In his complaint, the plaintiff alleges that he was retaliated against for exercising his rights under the FMLA (Count I); he was subjected to unlawful discrimination in violation of the ADA (Count II); he was discriminated against in violation of the Rehabilitation Act (Count III); and he was subjected to false imprisonment (Count IV), assault (Count V), intentional infliction of emotional distress (Count VI), and negligent infliction of emotional distress (Count VII). The court will address each claim in its respective order. 1) Count I FMLA Claim Plaintiff alleges that he was retaliated against for exercising his rights under the FMLA. Specifically, the plaintiff claims that Ford verbally reprimanded him and threatened him with termination for taking FMLA leave in connection with the birth of his child. In order to establish a prima facie case of retaliation under the FMLA, the plaintiff must show that: (1) he availed himself of a protected right under the FMLA; (2) he was subjected to an adverse employment action; and (3) a causal link exists between (1) and (2). See Fleming v. Boeing Co., 120 F.3d 242, 248 (11th Cir. 1997); Cross v. Southwest Recreational Industries, Inc., 17 F. Supp. 2d 1362, 1371 (N.D.Ga.1998). Plaintiff's retaliation claim fails because he cannot satisfy the second prong of the prima facie case. Verbal reprimands and threats of termination do not constitute adverse employment actions. See Benningfield v. City of Houston, 157 F.3d 369, 377 (5th Cir.1998) (holding that verbal reprimands do not constitute adverse employment actions); Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir.1998) ("Mere threats and harsh words are insufficient" to constitute an adverse employment action.); Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir.), cert. denied, ___ U.S. ___, 118 S. Ct. 336, 139 L. Ed. 2d 260 (1997) (holding that threats of discharge are not adverse employment actions); Smiley v. Jekyll Island 1261 State Park Authority, 12 F. Supp. 2d 1377, 1382 (S.D.Ga.1998) (finding that plaintiff's allegations that his supervisor slapped him, verbally abused him and criticized his job performance do not establish adverse employment action). While the Eleventh Circuit has held that formal reprimands can constitute adverse employment actions, the plaintiff has not shown that Ford's reprimands were anything more than mere criticisms. See McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir. 1994). Plaintiff also suggests that he was terminated in retaliation for exercising his rights under the FMLA. While termination does satisfy the second prong of the test, the plaintiff has not offered any evidence of a causal link between his FMLA leave and his termination. The plaintiff took his FMLA leave over a year before he was discharged, thus the plaintiff cannot rely on temporal proximity to establish an inference of causation. Because the plaintiff cannot establish a prima facie case of retaliation, summary judgment in favor of the defendants will be granted as to Count I. 2) Count II ADA Claim a. Failure to Accommodate The plaintiff claims that the defendants discriminated against him because of his disability in violation of the ADA. The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The ADA defines "disability" as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment. Id. at § 12102(2). To establish a prima facie case under the ADA, the plaintiff must show that (1) he has a disability; (2) he is a qualified individual; and (3) he was discriminated against because of his disability. See Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir.1996); see also 42 U.S.C. § 12132. Mistretta contends that he meets the ADA's definition of disability in two ways. First, he claims that his panic disorder, when not treated with medication, substantially limits one or more of his major life activities. Second, even if his panic disorder does not qualify as a disability, he argues that he satisfies the first prong of the prima facie case because the defendants regarded him as having such an impairment, as provided by § 12102(2)(C). In order to show that he is disabled for purposes of the ADA, the plaintiff argues that his anxiety disorder, when left untreated by medication, substantially limits his major life activities of working, caring for himself, and communicating with others. In Harris v. H & W Contracting Co., 102 F.3d 516 (11th Cir.1996), the Eleventh Circuit held that "[t]he determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices." Id. at 520 (quoting 29 C.F.R. app. § 1630.2(j) (1996)). Other federal circuit courts agree that ameliorative measures should not be considered when determining whether an impairment substantially limits major life activities. See Doane v. City of Omaha, 115 F.3d 624, 627-28 (8th Cir.), cert. denied, 520 U.S. 1162, 118 S. Ct. 693, 139 L. Ed. 2d 638 (1998); Arnold v. United Parcel Service, Inc., 136 F.3d 854, 866 (1st Cir.1998); Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.), cert. denied, 520 U.S. 1162, 117 S. Ct. 1349, 137 L. Ed. 2d 506 (1997); Matczak v. Frankford Candy & Chocolate 1262 Co., 136 F.3d 933, 937 (3d Cir.1997); Roth v. Lutheran General Hospital, 57 F.3d 1446, 1454 (7th Cir.1995). Therefore, the court must determine whether the plaintiff's panic disorder, when not treated with medication, substantially limits his major life activities. The defendants argue that the plaintiff's panic disorder does not substantially limit any of his major life activities, including his ability to work. However, the defendants do not address the effects of his disorder when left untreated by medication. In his deposition, the plaintiff testified that without his medication he would not be able to work. (Doc. 36, Ex. B, Mistretta Depo. at 138-39). Furthermore, Dr. Riaz Rahman, a psychiatrist who treated the plaintiff after he was terminated by the defendant, stated in his affidavit that the plaintiff's panic disorder, when left untreated by medication, would render the plaintiff incapable of performing most jobs, interacting and communicating with others, caring for himself, and controlling his emotions. (Doc. 36, Ex. I, Rahman Aff. at 2). Dr. Brent Schlapper, who treated plaintiff during his employment with the County, stated in his deposition that the plaintiff told him that without his daily dose of Xanax and Paxil he would not be able to function. (Doc. 27, Ex. 5, Schlapper Depo. at 13). Therefore, there is a question of fact as to whether the plaintiff's panic disorder, when not controlled by medication, substantially limits his major life activities.[1]See e.g., Pritchard, 92 F.3d at 1133 (finding that plaintiff's depression could limit major life activities when not controlled by medication.). The second prong of the prima facie case is whether the plaintiff is "otherwise qualified" for the position in question. The defendants do not contest that the plaintiff is a qualified individual and therefore, the court will assume that the plaintiff satisfies this prong. Finally, in order to make out a prima facie case, the plaintiff must show that he was discriminated against because of his disability. The plaintiff argues that the defendants' failure to provide him with reasonable accommodation for his disability is discrimination in violation of the ADA. Specifically, the plaintiff states that: (1) he requested fewer reassignments; (2) he asked for assistance in receiving psychiatric counseling; and (3) he requested a transfer to another Volusia County agency. The plaintiff argues that the defendants' denial of these requests for accommodation constitutes disability discrimination. The plaintiff's argument fails, however, because he cannot show that the defendants were aware that he had limitations resulting from his alleged disability which needed reasonable accommodation. See Morisky v. Broward County, 80 F.3d 445 (11th Cir.1996) (holding that the plaintiff must show that the employer had notice of her disability in order to make out a prima facie case); Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 164 (5th Cir. 1996) (holding that in order to prove discrimination, plaintiff must show that the employer knew of his substantial physical or mental limitation). The interpretative appendix to the regulations under the ADA state that: Employers are obligated to make reasonable accommodation only to physical or mental limitations resulting from the disability of a qualified individual with a disability that is known to the employer. Thus, an employer would not be expected to accommodate disabilities of which it is unaware.... [I]t is the responsibility of the individual with a disability to inform the employer that an accommodation is needed. When the need for an accommodation is not obvious, an employer, before providing a reasonable accommodation, may require that the individual with a disability provide documentation of the need for accommodation. 1263 29 C.F.R. Pt. 1630, App. Therefore, in order to survive summary judgment, the plaintiff must adduce evidence which would show that the defendants were aware that he had physical or mental limitations arising out of his alleged disability. See Taylor, 93 F.3d at 164 ("[T]he ADA does not require an employer to assume that an employee with a disability suffers from a limitation."). In the instant case, Mistretta has not shown that the defendants were aware that he had any limitations as a result of his panic disorder. In his deposition, the plaintiff testified that he never told his supervisors he was incapable of performing the essential functions of his job. (Doc. 36, Ex. B, Mistretta Depo. at 138). Furthermore, the evidence shows that all of the medical personnel who treated the plaintiff when he was employed by the defendant County concluded that his panic disorder did not substantially limit his major life activities. None of the doctors indicated that Mistretta had any mental limitation which needed accommodation. See id. at 167 ("When dealing in the amorphous world of mental disability, we conclude that health-care providers are best positioned to diagnose an employee's disabilities, limitations, and possible accommodations."). While the defendants may have been aware that the plaintiff suffered from emotional problems and stress, there is no evidence that they knew that the plaintiff had limitations from a recognized mental disorder which needed treatment and reasonable accommodation in order for him to perform on a daily basis. See e.g. Miller v. National Casualty Co., 61 F.3d 627, 629-30 (8th Cir.1995) (finding that the employer was not aware of the plaintiff's disability even when the plaintiff had told her employer that she couldn't handle the stress of her job; a nurse practitioner told the employer that the plaintiff had "situational stress reaction," and the plaintiff's sister told the employer on two different occasions that the plaintiff was "mentally falling apart.") In support of his argument that he requested accommodation for his disability, the plaintiff cites to excerpts from his deposition testimony. However, those excerpts do not show that the plaintiff requested accommodation because of his limitations from his panic disorder. The plaintiff testified that he was tired of changing jobs, but he never stated that he requested fewer reassignments because of his disability. (Doc. 36, Ex. B, Mistretta Depo. at 240). The evidence shows that none of plaintiff's requests constituted a formal request for accommodation under the ADA. In fact, the testimony that the plaintiff cites to indicates that he did not have a conversation with Ford requesting he not be reassigned,[2] he was happy with the assignment he was given,[3] and he received an assignment that resulted in a reduction in workload.[4] Plaintiff also states that he asked the defendants to pay for him to get psychiatric treatment from Dr. Mazcuri. However, the plaintiff has not shown that it would have been a reasonable accommodation for the defendants to pay the full cost of psychiatric counseling from a doctor who had certified the plaintiff as psychologically fit for duty. Furthermore, in contrast to his arguments that he requested accommodation, Mistretta admitted in his deposition that he did not ask for special accommodations because he did not know he had a constitutional right to them. (Doc. 27, Ex. 1. Mistretta Depo. at 381). Summary judgment, 1264 therefore, is appropriate on the basis of Mistretta's failure to request reasonable accommodation for the limitations from his mental disability. b. Hostile Work Environment Plaintiff contends that he was subjected to disability-based harassment by his supervisors and co-workers sufficient to create a hostile work environment in violation of the ADA. ADA hostile environment claims are analyzed under the Title VII standards for sexual harassment claims. See Rio v. Runyon, 972 F. Supp. 1446, 1459 (S.D.Fla.1997). In order to establish a hostile environment claim, the plaintiff must show that: (1) he is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his disability; (4) the harassment was severe and pervasive enough to affect a term, condition, or privilege of employment; and (5) the actions of the supervisors and co-workers can be imputed to the defendant County. See id. (citing Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir.1982)). The plaintiff claims that he was given "punishment" workloads, his supervisors instructed his co-workers not to associate with him, he was kept in a locked room while having an anxiety attack, he was suspended without pay and ordered to submit to a Fitness for Duty Examination, and he was verbally abused by his supervisors and co-workers. The standard for determining whether conduct is sufficiently severe and pervasive is whether it was physically threatening or humiliating and whether it unreasonably interferes with a person's job performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993); see also 29 C.F.R. § 1609.1(b)(1)(ii) and (iii). If the plaintiff can show that the discriminatory conduct was severe and pervasive he must still show that the harassment was because of his disability. See Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1108 (S.D.Ga. 1995) ("No matter how severe the abuse, [the employer] is only liable under the ADA if the harassment was because of [the employee's] disability."). The court finds that Mistretta has not created a question of fact as to whether he was subjected to severe and pervasive disability-based harassment. Although Mistretta complained about being assigned to "punishment" workstations and "punishment" workloads, so did his non-disabled co-workers. (Doc. 27, Def's Facts at ¶¶ 14-18). The evidence shows that the majority of the other Counselors complained about excessive workloads, frequent reassignments, and undesirable workstations. Similarly, other Counselors were given instructions not to discuss non-work related matters with co-workers on County time. Because much of the treatment that Mistretta claims was harassment was experienced by his non-disabled coworkers, it cannot be considered discriminatory. Moreover, the plaintiff has offered no evidence showing a causal relationship between these allegations of harassment and his disability. Plaintiff also alleges that Henderson and Powell kept him "in a locked room while he was having an anxiety attack and refused to let him leave despite his pleas to do so." (Doc. 36 Pl's Opp. at 12-13). However, the plaintiff has offered no evidence to show that he was kept in Henderson's office because of his disability. The meeting was held to discuss the plaintiff's unprofessional behavior with an inmate. The court does not find it to be abusive or hostile for such a meeting to occur behind closed doors. Furthermore, the plaintiff did not testify that the door was locked and he stated that he was allowed to leave after he refused to sit down and discuss the complaint. (Doc. 36, Ex. B, Mistretta Depo. at 403, 416, 428). Similarly, it was not abusive for Moore to order the plaintiff to submit to a Fitness for Duty Examination. Moore's request was prompted by the plaintiff's actions during a meeting in July of 1995. Plaintiff admits that during the meeting he suffered from an anxiety attack. Therefore, Moore 1265 had good cause for requesting the examination. Once the plaintiff was certified as psychologically fit for duty, he returned to work and was paid for all the time that he missed while he was out on leave. This leaves only plaintiffs allegations that Ford and several correctional officers ridiculed him and mimicked his anxiety attacks. However, there was no evidence presented that anyone mimicked the plaintiff's anxiety attacks. Furthermore, much of Ford's criticism that plaintiff complains about was attributable to his work performance and violation of County procedures, not to his disability. As for the other employees' offensive comments, the court finds that although they may have been inappropriate, they were not sufficiently severe or pervasive to create the type of "hellish" environment that is prohibited by the ADA. See Rio, 972 F.Supp. at 1460 (stating that occasional adolescent, rude, or insensitive comments are not actionable); Mannell v. American Tobacco Co., 871 F. Supp. 854, 861 n. 5 (E.D.Va.1994) (finding that conclusory statement that plaintiff's supervisor acted hostile towards her is insufficient to survive summary judgment). Therefore, summary judgment in favor of the defendants will be granted on Count II.[5] 3) Count III Rehabilitation Act Claim Plaintiff states in his opposition to summary judgment that he "does not intend to pursue [this] claim and the complaint can be amended accordingly." (Doc. 36, Pl's Opp. at 2 n. 1). Therefore, judgment as a matter of law will be granted in favor of the defendants on Count III. 4) Counts IV - VII State Law Claims[6] a. False Imprisonment Plaintiff alleges that he was falsely imprisoned by defendants Powell and Henderson on June 2, 1995 and by defendant Moore on July 19, 1995. In order to establish a claim of false imprisonment, the plaintiff must show that (1) he was restrained against his will; and (2) "the detention was unreasonable and unwarranted under the circumstances." Resley v. Ritz-Carlton Hotel Co., 989 F. Supp. 1442, 1449 (M.D.Fla.1997) (citing Rivers v. Dillards Dep't Store, Inc., 698 So. 2d 1328, 1331 (Fla. 1st DCA 1997)). The plaintiff's claim fails because he cannot show that the detentions were unreasonable. Both of the plaintiff's allegations of false imprisonment occurred during meetings with his supervisors to discuss workplace problems involving the plaintiff. Although the doors were closed during the sessions, there is no evidence that they were locked. The court does not find it unreasonable to hold meetings regarding workplace disciplinary actions behind closed doors. Furthermore, the plaintiff requested the July 1995 meeting with Moore and had a witness present who he selected. Even though the plaintiff states that he repeatedly asked to leave the meetings, the evidence shows that he was only in the meetings for a brief period of time and he eventually left each session on his own accord. Therefore, because the plaintiff has not shown that it was unreasonable for his superiors to meet with him in private to discuss disciplinary actions, he cannot succeed on his claims for false imprisonment. b. Negligent Infliction of Emotional Distress The plaintiff also claims that he suffered emotional distress as a result of the defendants' negligence. In order to recover on a negligent infliction of emotional distress claim, Mistretta must show *1266 that he suffered emotional distress caused by a physical impact which manifested itself into some physical injury resulting from another's negligence. See Reynolds v. State Farm Mutual Automobile Ins. Co., 611 So. 2d 1294, 1296 (Fla. 4th DCA 1992), rev. denied, 623 So. 2d 494 (Fla. 1993). Plaintiff claims that he suffered a physical impact when Powell pushed herself against him in an attempt to prevent him from leaving the June 2, 1995 meeting with Henderson. Even if this incident constitutes a physical impact, the plaintiff cannot succeed on his claim because there was no demonstrable physical injury. See Landry v. Florida Power & Light Corp., 799 F. Supp. 94, 96 (S.D.Fla.1992) (stating that physical injury is a predicate to recovery for negligent infliction of emotional distress and psychological trauma alone is not sufficient). Plaintiff's claim that he suffered a back injury as a result of the impact is unsubstantiated. Dr. Rankin had a session with the plaintiff ten days after the incident, but did not treat him for back or neck pain. Furthermore, he did not prescribe any medication for back pain and he did not notice that the plaintiff was having any problems with his back or neck. (Doc. 28, Ex. 4, Rankin Depo. at 36-37). Because a claim for emotional distress is intrinsically speculative and difficult to determine, the requirements of physical impact and physical injury are essential to succeed on a cause of action for negligent infliction of emotional distress. The plaintiff has offered no evidence showing a physical injury as a result of his collision with Powell. Therefore, summary judgment in favor of the defendants on Count VII is warranted. III. Conclusion For all of the reasons set forth above, the court finds that the plaintiff failed to establish retaliation in violation of the FMLA and discrimination in violation of the ADA. Furthermore, the plaintiff has not shown a violation of the Rehabilitation Act, false imprisonment, assault, intentional infliction of emotional distress or negligent infliction of emotional distress. There being no issue of material fact which prevents the entry of judgment, the court GRANTS the defendants' motion for summary judgment (Doc. 27) on all of the plaintiff's claims. Additionally, the court DENIES defendants' motion to strike (Doc. 37). The court directs the clerk of court to enter the appropriate judgment and to close the case. NOTES [1] Because there is a question of fact as to whether the plaintiff is disabled, the court will not consider his second argument as to the defendants' perception of him as disabled. [2] Did you have any conversation with Marilyn Ford about your first choice to be left alone and stay in the west wing of the corrections facility? A: I don't recall having a conversation with her about that, no. (Doc. 36, Ex. B. Mistretta Depo. at 250) [3] You don't object to the fact that in July of 1983, that your A: That they left me exactly where I was? Q: Yeah. A: No, not at all. Id. at 239. [4] So this was a reduction in your workload. A: Absolutely. Id. at 260. [5] Because there is no individual liability under the ADA, defendants Moore, Ford, Powell, Henderson, Neel, and Modzelewski are entitled to judgment as a matter of law on Count II. See Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.1996). [6] The plaintiff has decided not to pursue his claims for assault (Count V) and intentional infliction of emotional distress (Count VI), thus the court will grant summary judgment in favor of the defendants on those counts.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501050/	61 F. Supp. 2d 661 (1999) Donna Anne REEVES, Petitioner, v. Janet RENO and Carol Jenifer, Respondent. No. 97-76083. United States District Court, E.D. Michigan, Southern Division. August 20, 1999. 662 William W. Swor, Detroit, MI, for plaintiff. Elizabeth J. Larin, Asst. U.S. Atty., Detroit, MI, for defendant. OPINION AND ORDER GRANTING WRIT OF HABEAS CORPUS[1] TARNOW, District Judge. I. Introduction Petitioner Donna Anne Reeves ("Reeves" or "Petitioner") is a legal permanent resident of the United States who has been ordered deported because she had been convicted of eight counts of violating the controlled substances laws of Michigan. The Board of Immigration Appeals ("BIA") determined that she was statutorily ineligible for § 212(c) discretionary relief from deportation pursuant to an amendment to § 212(c) effectuated by § 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-32, Tit. IV, Subtit. D, § 440(d), 110 Stat. 1214, 1277 (Apr. 24, 1996). Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on the ground that Congress did not intend § 440(d) of the AEDPA to apply retroactively to aliens in pending deportation proceedings at the time of its enactment. For the reasons set forth below, the Court grants Petitioner a writ of habeas corpus under 28 U.S.C. § 2241. II. Facts and Procedural History Reeves, a native and citizen of Great Britain, emigrated to the United States on August 17, 1974, as the child of an alien, who was admitted as a fiancee of an American citizen. She became a lawful permanent resident in the United States on October 663 25, 1974 and has resided in the United States continuously since that date. Reeves has been married to and divorced from an American citizen. She has three minor children who are American citizens and with whom she currently resides in the City of Detroit. Reeves is employed as a restaurant manager in Novi, Michigan. On January 21, 1986, Reeves was convicted in Recorder's Court for the City of Detroit of possession of codeine and sentenced to ten days of community service. On April 11, 1988, Reeves was convicted of eight counts of violating the controlled substances laws of Michigan in Recorder's Court. She appealed the conviction. On June 25, 1992, after remand from the Court of Appeals, she was sentenced to three to thirty years in prison. Reeves was paroled in 1994 and released from parole on June 7, 1996. On May 26, 1988, based upon her January 21, 1986 conviction, the INS commenced deportation proceedings against Reeves, pursuant to Section 241(a)(11) of the Immigration and Nationality Act ("INA"). On or about March 13, 1989, Reeves's counsel filed a request for a waiver pursuant to § 212(c) of the INA. The deportation proceedings were administratively closed on February 5, 1992 without adjudication to await a decision in Reeves's appeal of her state court criminal convictions. On October 20, 1992, the INS filed additional charges of deportability, alleging that Reeves had been convicted of eight counts of violating the controlled substances laws of Michigan. On December 21, 1995, the INS moved to recalendar the matter. On December 5, 1996, a hearing was conducted before an Immigration Judge. At the hearing, Reeves admitted the factual allegations and conceded the grounds for deportation, but requested the opportunity to pursue her application for relief under INA § 212(c). The Immigration Judge found Reeves deportable and further found that, based upon the AEDPA, Reeves was not entitled to seek § 212(c) relief. On September 18, 1997, the BIA affirmed the decision of the Immigration Judge. On November 3, 1997, the INS issued a letter to Reeves requiring her to report for deportation to England on January 6, 1998. Reeves filed the pending application for a writ of habeas corpus on December 15, 1997. On that same date, Reeves also filed an Emergency Motion for Temporary Restraining Order to prevent Respondents from executing their deportation order against Reeves. On December 30, 1997, a hearing was held before this Court regarding the Emergency Motion.[2] Following the hearing, this Court issued an Order for Temporary Stay of Proceedings and for Temporary Injunction granting a stay of the proceedings for ninety days and a ninety-day temporary injunction during which the INS was enjoined from deporting Reeves and from taking her into custody. On January 5, 1999, this Court issued an Order Regarding Jurisdiction and Order to Show Cause, holding that this Court has subject matter jurisdiction over this matter and ordering Respondents to show cause why a writ should not issue in this matter. The Court also ordered that, until further Order of this Court, Respondents and the agents and employees of the INS under their authority are restrained and enjoined from deporting Petitioner. On March 23, 1999, the Court issued an Order to File Supplemental Briefs requiring the parties to file supplemental briefs addressing the impact, if any, of the significant body of case law regarding the retroactivity of § 440(d) that has developed since the parties last filed briefs in this 664 matter on Petitioner's eligibility for § 212(c) discretionary relief. Respondents filed their supplemental brief on May 24, 1999. Although the date set by the Court to do so has long since expired, Petitioner has not yet filed a supplemental brief. However, because the Court determines that such a brief is not necessary to adjudicate this matter, the Court will proceed to the merits of the Petition. III. Discussion A. Retroactivity of AEDPA § 440(d) Under the INA, any alien convicted of an aggravated felony or an offense related to controlled substances is subject to deportation. 8 U.S.C. §§ 1227(a)(2)(A)(iii) & (a)(2)(B)(i). Prior to the passage of AEDPA § 440(d), an alien who was a lawful permanent resident of the United States who was subject to deportation because of a criminal conviction could apply to the Attorney General for discretionary relief from deportation under INA § 212(c) if the lawful permanent resident had not been "convicted of one or more aggravated felonies" for which he or she had served "a term of imprisonment of at least 5 years." 8 U.S.C. § 1182(c) (1995) (repealed).[3] AEDPA § 440(d) amended INA § 212(c) to categorically bar aliens convicted of certain crimes, including Reeves's, from obtaining a § 212(c) waiver.[4] The BIA denied Petitioner's application for § 212(c) discretionary relief because it held that the amended § 212(c) rendered her ineligible for such relief. Petitioner claims that the BIA's denial violated her due process rights because it was an impermissible retroactive application of § 440(d) and violates the Equal Protection Clause. The Sixth Circuit has not yet addressed this issue, but the overwhelming majority of its sister circuits that have addressed the issue have held that § 440(d) does not apply retroactively. See Mayers v. INA, 175 F.3d 1289 (11th Cir. 1999); Sandoval v. Reno, 166 F.3d 225 (3rd Cir.1999); Goncalves v. Reno, 144 F.3d 110 (1st Cir.1998); Henderson v. INS, 157 F.3d 106 (2nd Cir.1998). For the reasons set forth below, the Court concurs with the majority view that § 440(d) does not apply retroactively. The Board of Immigration Appeals based its decision that § 440(d) applied retroactively to bar Reeves from § 212(c) relief on the Attorney General's opinion in Matter of Soriano, in which the Attorney General determined that AEDPA § 440(d) was to be applied retroactively to all pending cases regardless of the date of the § 212(c) waiver application. See Matter of Soriano, Int. Dec. No. 3289 (Op. Att'y Gen. Feb. 21, 1997). Respondent argues that the Attorney General's decision in Soriano is entitled to deference pursuant to Chevron, U.S.A., Inc., v. Natural Resources 665 Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Therefore, the first question the Court must address is whether the Court is bound to defer to the Attorney General's Soriano opinion. In Chevron, the Supreme Court established a two-step analysis to determine whether deference should be afforded an administrative agency's interpretation of a statute it administers. Id. at 842-43, 104 S. Ct. 2778. First, a court must determine whether "the intent of Congress is clear" as to "the precise question at issue." Id. at 842, 104 S. Ct. 2778. "If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Id. n. 9. If, however, "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S. Ct. 2778. As explained infra, applying "traditional tools of statutory construction," this Court determines that Congress clearly did not intend AEDPA § 440(d) to apply retroactively to an alien in Reeves's circumstances. Accordingly, "that is the end of the matter" and this Court therefore owes no deference to the Attorney General's opinion in Soriano. Id. ("If the intent of Congress is clear, that is the end of the matter ..."). The Supreme Court's decision in Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994), that a presumption exists against retroactive application informs the Court's inquiry into Congress's intent as to the temporal application of § 440(d). "[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence" because "[e]lementary concerns 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." Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994). The Supreme Court in Landgraf established the analytical framework for determining whether Congress intended a newly enacted statutory provision to apply retroactively: When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches us that it does not govern absent clear congressional intent favoring such a result. Id. at 280, 114 S. Ct. 1483. To determine whether Congress intended § 440(d) to apply retroactively, the Court is guided by "traditional tools of statutory construction" which include examination of the statutory "language itself, the specific context in which the language is used, and the broader context of the statute as a whole," Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S. Ct. 843, 136 L. Ed. 2d 808 (1997), as well as the statute's legislative history. See Mayers v. INS, 175 F.3d 1289 (11th Cir.1999). Using these methods of statutory construction, the Court concludes that Congress clearly did not intend § 440(d) to apply retroactively. Accord Mayers, 175 F.3d 1289; Sandoval v. Reno, 166 F.3d 225 (3rd Cir. 1999); Goncalves v. Reno, 144 F.3d 110 (1st Cir.1998); Henderson v. INS, 157 F.3d 106 (2nd Cir.1998); Farquharson v. INS, 31 F. Supp. 2d 403 (D.N.J.1999); Mathews v. Reno, 52 F. Supp. 2d 195 (D.Mass.1999); Gutierrez-Perez v. Fasano, 666 37 F. Supp. 2d 1166 (S.D.Cal.1999); Homayun v. Cravener, 39 F. Supp. 2d 837 (S.D.Tex.1999). In Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997), the Supreme Court applied the Landgraf framework to determine whether a different provision of the AEDPA applied retroactively. The Supreme Court, in Lindh, addressed the question whether the AEDPA provision heightening the standards for granting § 2254 habeas corpus relief in noncapital cases applied retroactively. In holding that the heightened standards of review did not apply retroactively, the Court stated that to determine "a statute's temporal reach generally, our normal rules of construction apply." Id. at 326, 117 S. Ct. 2059. Notably, encompassed within these normal rules of statutory construction was the rule of negative implication. That is, "where Congress expressly provided for retroactive application in one provision of AEDPA, the Court determined that silence in another provision created `negative implication' that Congress intended prospective application when it had not expressly provided for retroactive application." Mayers v. United States Department of INS, 175 F.3d 1289, 1302 (11th Cir.1999) (citing Lindh, 521 U.S. at 330-38, 117 S. Ct. 2059). "More specifically, the Court found that Congress did not intend AEDPA §§ 101-06 to be applied retroactively not because the statute expressly so stated, but because Congress deliberately omitted retroactive language from those sections while including it in other sections ..." Farquharson v. INS, 31 F. Supp. 2d 403, 415 (D.N.J.1999). Application of the negative implication doctrine to the pending case reveals that Congress did not intend § 440(d) to apply retroactively. Several of AEDPA's immigration provisions contain explicit retroactivity language. For example, AEDPA § 413, which makes alien terrorists ineligible for several different forms of relief from deportation, includes a specific provision making it applicable to "applications filed before, on, or after [the date of enactment] if final action has not been taken on them before such date." AEDPA § 413; see also Goncalves, 144 F.3d at 128. Additionally, AEDPA § 401(f) is expressly retroactive. As the First Circuit observed: If Congress thought that such restrictions would as a matter of course be applied to pending cases, ... then [the provisions explicitly providing for retroactive application] would have accomplished nothing. In Bennett v. Spear, 520 U.S. 154, 117 S. Ct. 1154, 137 L. Ed. 2d 281 (1997) the Court noted "the cardinal principle of statutory construction that it is our duty to give effect, if possible, to every word of a statute." Id. at 173, 117 S. Ct. at 1166 ... This is particularly true when there is a contrast in language between two sections of the same statute. Goncalves, 144 F.3d at 129. Given the negative implication analysis applied by the Supreme Court in Lindh and the inclusion of express retroactive mandates in other AEDPA sections dealing with aliens' rights, the Court joins the majority of its sister circuits that have addressed the issue in determining that the text of AEDPA demonstrates that Congress did not intend § 440(d) to apply retroactively to persons in Petitioner's position. The legislative history supports the Court's conclusion that Congress did not intend AEDPA's § 440(d) to apply retroactively. Respondents argue that the legislative history supports the contrary conclusion. As support for this argument, Respondents quote a speech preceding passage of the Senate version of the bill in which Senator Abraham stated, in part: These expedited deportation procedures will apply to the almost half a million aliens currently residing in this country who are deportable because they have been convicted of committing serious felonies. 667 Respondents' Supplemental Brief at p. 6, citing 141 Cong.Rec. S7822-23, 1995 WL 338025 (June 7, 1995). Respondents, however, fail to recognize that the Senate version of the bill was not the version ultimately passed by Congress. In Goncalves v. Reno, the First Circuit details the relevant legislative history of the AEDPA generally and § 440(d) specifically, 144 F.3d 110, 131-33 (1st Cir.1998), cert. denied ___ U.S. ___, 119 S. Ct. 1140, 143 L. Ed. 2d 208 (1999). The legislative history confirms this Court's conclusion that Congress did not intend § 440(d) to be applied retroactively. The Senate's version of AEDPA § 440(d) had a provision which expressly made the amended INA § 212(c) applicable to pending cases.[5] The comparable section of the House version of the bill did not contain any "effective date" for the amendment regarding § 212(c) relief. The House version did, however, contain explicit "effective date" subsections in its provisions limiting relief for alien terrorists which made those restrictions retroactive. Goncalves, 144 F.3d at 132 (citing H.R. 2703 §§ 611(b), 612(f), at 142 Cong.Rec. H2293, H2294 (daily ed. Mar. 14, 1996)). Following a bipartisan conference to reconcile the competing versions of the bill, a committee version of the bill was passed which notably did not contain the Senate bill's original language making the restrictions on § 212(c) relief retroactive. Id. As the Supreme Court has stated, "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." INS v. Cardoza-Fonseca, 480 U.S. 421, 432, 107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987) (citations omitted). Thus, the legislative history confirms this Court's conclusion that Congress did not intend § 440(d) to apply retroactively to persons in Petitioner's position. B. Equal Protection Claim Because the Court concludes that § 440(d) does not apply retroactively to bar Reeves from applying for a § 212(c) discretionary waiver, the Court does not reach the merits of her equal protection claim. C. Attorney's Fees In her petition, Reeves asks the Court to grant her attorney's fees and costs. Although Reeves fails to provide any statutory support for her request for attorney's fees, the Court will presume that she makes the request under the Equal Access to Justice Act ("EAJA"). 28 U.S.C. § 2412(d)(1)(A), which provides limited exceptions to the federal government's sovereign immunity in certain civil litigations. The EAJA allows a court to award fees and costs to a prevailing party in civil litigation against the United States or one of its agencies if the court finds that the government's position was not "substantially justified." 28 U.S.C. § 2412(d)(1)(A). The government's position is "substantially justified" if it "has a reasonable basis in law and fact." Pierce v. Underwood, 487 U.S. 552, 566, n. 2, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988). This Court holds that although the government's position was incorrect it was not unjustified. As the government pointed out in its Supplemental Brief, the Sixth Circuit has not yet ruled on the issue of whether § 440(d) is retroactive, the Seventh Circuit has decided the issue in accord with the position espoused by the government in this case, and the Attorney General's decision in Matter of Soriano supports the government's position. See LaGuerre v. Reno, 164 F.3d 1035 (7th *668 Cir.1988). Accordingly, Petitioner is not entitled to attorney's fees and costs. IV. Conclusion For the foregoing reasons, the Court GRANTS Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 to the extent that Petitioner is allowed to apply for relief from deportation under INA § 212(c), without regard to the effect of AEDPA on § 212(c). The Court's stay of deportation is CONTINUED until Petitioner receives her § 212(c) hearing, at which time the stay will be vacated. NOTES [1] Staff Attorney Mary Beth Collery provided quality research assistance. [2] The Honorable Paul D. Borman presided over the hearing. Pursuant to Administrative Order No. 98-AO-023, this matter has been reassigned to The Honorable Arthur J. Tarnow. [3] Before amendment by AEDPA § 440(d), INA § 212(c) provided: Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General ... [Eligibility for such discretionary relief] shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years. 8 U.S.C. § 1182(c) (1995) (repealed). Although this provision specifically refers only to aliens in exclusion proceedings, courts universally have held it likewise applicable to permanent resident aliens facing deportation. See, e.g., Hussein v. INS, 61 F.3d 377, 379 (5th Cir.1995). [4] Section 212(c), as amended by AEDPA § 440(d), provides, in pertinent part: Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General ... This subsection shall not apply to an alien who is deportable by reason of having committed [certain classes of criminal offenses, including that committed by Petitioner] ... 8 U.S.C. § 1182(c). [5] The "effective date" provision contained in the Senate version of the bill stated: The amendments made by this section [i.e., § 303 of the Senate bill, which became § 440(d) ] shall take effect on the date of the enactment of this Act and shall apply to cases pending before, on, or after such date of enactment. Goncalves, 144 F.3d at 131-32 (quoting 144 Cong.Rec. S7559 (daily ed. May 25, 1995)).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501047/	61 F. Supp. 2d 307 (1999) Rahn J. FARRIS, Plaintiff, v. COUNTY OF CAMDEN, Camden County Democratic Committee, George E. Norcross, III, Louis Bezich, Joseph Benton, Thomas Mitchell, John Adler, Jack Gallagher, Gallagher Associates, Inc., Judy Palombi and Phyllis Pearl, Defendants. No. CIV. A. 97-5069. United States District Court, D. New Jersey. August 20, 1999. 308 309 310 Jerald R. Cureton, Darryl S. Caplan, Anthony Valenti, Cureton, Caplan & Clark, Mt. Laurel, NJ, for Plaintiff, Rahn J. Farris. Walter F. Timpone, John T. Coyne, McElroy, Deutsch & Mulvaney, Morristown, NJ, for Defendant, County of Camden. William M. Tambussi, Brown & Connery, Westmont, NJ, for Defendants, the Camden County Democratic Committee and George E. Norcross, III. Anthony J. Zarrillo, Jr., Zarrillo & Zappacosta, Cherry Hill, NJ, for Defendant Louis Bezich. William A. Garrigle, Garrigle, Palm & Thomasson, Cherry Hill, NJ, for Defendant, Thomas A. Mitchell. Scott A. Krasny, John Stuart Furlong, Furlong & Krasny, West Trenton, NJ, for Defendant, Judy Palombi. John B. Kearney, Kearney, Castillo & Blake, P.C., Haddon Heights, NJ, for Defendant, Phyllis Pearl. 311 OPINION ORLOFSKY, District Judge. TABLE OF CONTENTS I. INTRODUCTION .......................................................................... 311 II. BACKGROUND .......................................................................... 313 III. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT ............................... 320 IV. DISCUSSION ........................................................................... 321 A. Defendants' Motions for Summary Judgment ......................................... 321 1. Norcross's and the CCDC's Motion for Summary Judgment and Application of the Coconspirator Exception to the Hearsay Rule set forth in Rule 801(d)(2)(E) of the Federal Rules of Evidence .......................... 321 a. Counts IX and X, Tortious Interference ..................................... 321 b. Counts XII and XIV, Conspiracy to Tortiously Interfere .................... 328 c. Count XIII, Conspiracy to Defraud ......................................... 330 d. Counts XV, XVI, XVII, XVIII, and XIX Conspiracy to Extort, Blackmail and Deprive Farris of his Real Property........................ 331 e. The Motion for Sanctions Pursuant to 28 U.S.C. § 1927 and the Court's Inherent Power .................................................. 331 2. Camden County's Motion for Summary Judgment ................................. 335 a. Count I, Rescission or Reformation on the basis of Economic Duress ............................................................ 335 b. Count II, Rescission or Reformation on the Basis of Fraud and Misrepresentation .................................................. 339 c. Count III, Rescission or Reformation on the Basis of Unconscionability... 341 d. Count IV, Breach of the Original 1300 Building lease ..................... 343 e. Count V, Breach of the Original 1350 Building Lease ...................... 344 f. Count VI, Common Law Fraud ............................................... 345 g. Count VII, Breach of Contract/Conversion ................................. 346 h. Count XI, Breach of Duty of Good Faith and Fair Dealing .................. 347 i. Count XIII, Conspiracy to Defraud ........................................ 349 j. Counts XVII and XIX, Conspiracy to Extort, Blackmail and Deprive Farris of his Real Property ........................................... 349 3. Mitchell's Motion for Summary Judgment ..................................... 350 a. Count VI, Common Law Fraud .............................................. 350 b. Count VIII, Tortious Interference with Contract and Prospective Economic Advantage ..................................................... 351 c. Count XII, Conspiracy to Tortiously Interfere and Defraud ............... 354 d. Counts XV and XVIII, Conspiracy to Extort, Blackmail and Deprive Farris of his Real Property ............................................ 354 V. CONCLUSION ............................................................................. 355 I. INTRODUCTION This diversity case presents novel issues of law arising out of the application of the Federal Rules of Evidence to state law causes of action at the summary judgment stage of the litigation. Specifically, in determining whether Plaintiff, Rahn J. Farris, has produced enough evidence to avoid the entry of summary judgment for Defendants, George E. Norcross, III, and the Camden County Democratic Committee, I must rule on the admissibility of hearsay statements under the coconspirator exception to the hearsay rule set forth in Rule 801(d)(2)(E) of the Federal Rules of Evidence. The application of the coconspirator exception in this case is further complicated by the denial by the alleged declarants, Defendants, Thomas A. Mitchell, Judith Palombi, and Phyllis Pearl, that they made the statements Plaintiff seeks to introduce against Norcross and the Camden County Democratic 312 Committee. Because this Court's determination of the admissibility of these alleged coconspirators' statements turns on the credibility of the declarants and the witnesses offering their alleged statements, I hold that, prior to resolving the motion for summary judgment, I must conduct a hearing pursuant to Rule 104(a) of the Federal Rules of Evidence,[1] to take testimony and to assess the credibility of the witnesses. This case also presents a novel issue of New Jersey state law involving whether a chairman of a county political committee can, as a matter of law, conspire with the county political committee, a legal entity which is a creature of New Jersey statute. For the reasons that follow, I hold that just as an authorized agent of a private corporation cannot conspire with the corporation that employs him, so too, a chairman of a county political committee cannot conspire with the county political committee itself. On October 6, 1997, Plaintiff, Rahn J. Farris, filed a thirty-five count civil complaint in this Court alleging federal and pendent state law claims against Defendants, County of Camden, Camden County Democratic Committee, George E. Norcross, III, Louis Bezich, Joseph Benton, Thomas Mitchell, John Adler, Jack Gallagher, Gallagher Associates, Inc., Judy Palombi and Phyllis Pearl. On December 8, 1998, Defendants, Norcross and the Camden County Democratic Committee, moved for the imposition of sanctions and attorneys' fees against counsel for Plaintiff, pursuant to 28 U.S.C. § 1927 and the Court's inherent powers. Curiously, no such relief was sought pursuant to Rule 11 of the Federal Rules of Civil Procedure. Shortly thereafter, on February 5, 1999, Norcross and the Camden County Democratic Committee moved for summary judgment on all claims. Similarly on April 30, 1999, and May 10, 1999, respectively, Defendants, the County of Camden and Thomas A. Mitchell, moved for summary judgment on all claims asserted against them. Because Plaintiff voluntarily dismissed his federal causes of action on December 14, 1998, this Court's jurisdiction is based upon 28 U.S.C. §§ 1332 and 1367.[2] For the reasons set forth below, I shall deny the motion of Defendants, Norcross and the Camden County Democratic Committee, for sanctions and attorneys' fees because they have failed to make the requisite showing that counsel for Plaintiff acted in bad faith in filing the Complaint and in conducting discovery. I shall, however, grant the motion of Norcross and the Camden County Democratic Committee for summary judgment on Plaintiff's claims for civil conspiracy to defraud, extort political contributions, blackmail, and to tortiously interfere with Plaintiff's real property. Insofar as Norcross and the Democratic Committee seek summary judgment on Plaintiff's claims for tortious interference with Plaintiff's contract and prospective economic advantage, and for civil conspiracy to so tortiously interfere and to defraud, I shall deny the motion for summary judgment without prejudice to 313 the right of Norcross and the Committee to renew this motion at the conclusion of a pre-trial hearing conducted pursuant to Rule 104(a) to determine the admissibility of the alleged coconspirator statements under Rule 801(d)(2)(E) of the Federal Rules of Evidence. In addition, I shall deny the motion for summary judgment of the County of Camden on Plaintiff's claims for: (1) rescission or reformation of the renegotiated leases between Plaintiff and the County of Camden on the basis of economic duress, equitable fraud, and unconscionability; (2) breach of the original lease covering Plaintiff's building located at 1300 Admiral Wilson Boulevard; and (3) breach of the covenant of good faith and fair dealing. I shall grant the County of Camden's motion for summary judgment on Plaintiff's claims for breach of the original lease covering Plaintiff's property located at 1350 Admiral Wilson Boulevard, common law fraud, and civil conspiracy. Finally, I shall deny the motion for summary judgment of Defendant, Thomas A. Mitchell, on Plaintiff's claims for common law fraud and civil conspiracy to defraud. I shall, however, grant Mitchell's motion for summary judgment on Plaintiff's claims for tortious interference with Plaintiff's contract and prospective economic advantage, and civil conspiracy. II. BACKGROUND Plaintiff, Rahn J. Farris ("Farris"), a citizen of the Commonwealth of Pennsylvania, was the owner of two commercial buildings located at 1300 and 1350 Admiral Wilson Boulevard, Camden, New Jersey (hereinafter the "1300 Building," and the "1350 Building," respectively). See Local Rule 56.1 Statement of Material Facts of George E. Norcross, III, and the Camden County Democratic Committee (filed Feb. 5, 1999), ¶ 3 (hereinafter, "CCDC's R. 56.1"); see also Complaint, ¶ 18; Deposition of Rahn J. Farris (dated Aug. 4, 1998) at 15, 90. In August, 1989, the County of Camden (the "County" or "Camden County") leased 20,000 square feet of the 1300 Building from Farris for the purpose of operating and housing the County's Reach Program, which was operated by an employee of the County, William Maguire ("Maguire"). See Farris Dep. (Aug. 4, 1998) at 219-20, 222-23. The lease term on the 1300 Building was from October 1, 1989, to July 31, 1992, with monthly rental payments of $25,000, resulting in an annual rental payment of $300,000. See Plaintiff's Exhibits in Opposition of Motion for Sanctions (filed Jan. 20, 1998) ("Pl. Sanction Opp."), Exh. 8 (1300 Building Lease). In March, 1990, the County leased an additional 7500 square feet in the 1300 Building from Farris for the purpose of operating the County's Division for Children. See Pl. Sanctions Opp., Exh. 9 (Additional 1300 Building Leases); see also Farris Dep. (Aug. 4, 1998) at 223. These additional leases provided for monthly rental payments at a rate of $12 per square foot. See Sanctions Opp., Exh. 9. Defendant, Judith Palombi ("Palombi"), was the director of the County's Division for Children, and her office was located in the 1300 Building. See Palombi's Local Rule 56.1 Statement of Material Fact (filed Apr. 30, 1999), ¶ 4. In December, 1989, the County leased 20,000 square feet in the 1350 Building in order to house the County's Business Incubator Program. See Certification of Anthony Valenti, Esq. (filed Apr. 30, 1999), Exh. 12 (Internal County Memorandum from Thomas A. Mitchell to Stephen R. Sasala (dated June 6, 1991)). The 1350 Building lease called for a rental payment of $12.00 per square foot, which corresponded to a $20,000 per month rental payment, or an annual rental payment of $240,000. See id. The term of the 1350 Building lease ran from December 1, 1989, to November 30, 1992. See id. The County and Farris dispute whether or not the County officially took possession of the 1350 Building because, although the director of the Business Incubator program, Ben Smallwood, had entered the premises, 314 the County had terminated the funding for the program before it officially began to operate. See id.; see also Farris Dep. (Aug. 4, 1998) at 227-30. In October, 1991, Farris and the County entered into a new lease on the 1350 Building which superceded the original lease executed in December, 1989. See Valenti Cert., (1999), Exh. 13 (1350 Building Lease (dated Oct. 10, 1991)). In December, 1991, Defendant, Thomas Mitchell ("Mitchell"), Assistant County Counsel, assured Farris that, notwithstanding the termination of Ben Smallwood's program, the County intended to reenter the premises in January, 1991. See Farris Dep. (Aug. 4, 1998) at 230; See Deposition of Thomas A. Mitchell (dated Dec. 10, 1998) at 204. Farris hired Mark Willis ("Willis") as building manager for both the 1300 and the 1350 Buildings. See Deposition of Mark Willis (dated Sept. 17, 1998) at 58. Farris gave Willis "full responsibility for the day to day operations of the buildings[,] and [Willis] was responsible for such items as collecting rent, paying expenses, maintenance and receiving the mail." See Plaintiff's Local Rule 56.1 Statement of Material Facts (filed Feb. 5, 1999) at 9; Willis Dep. (Sept. 17, 1998) at 11-12. In the fall of 1991, "Farris was mailed 10 tickets to a political fundraiser [sic]" which requested that he make a $10,000 political contribution. See Farris Dep. (Aug. 4, 1998) at 196-99; see also Pl. R. 56.1 at 9. The parties dispute whether the political fund-raiser was for the benefit of Congressman Robert Andrews' re-election campaign. Farris disregarded the solicitation. About a month later, Farris received a similar solicitation in the mail. See Pl. R. 56.1 at 9. Farris testified at his August 12, 1998, deposition that Maguire told him the tickets were sent by Defendant, George E. Norcross, III ("Norcross"), the Chairman of Defendant, Camden County Democratic Committee (the "CCDC"). See Farris Dep. (Aug. 4, 1998) at 195. Farris testified that, in September or October, 1991, Maguire "advised [him] that Norcross wanted to meet him and [Maguire] set up a meeting with Norcross for the next day[.]" See Farris Dep. at 190; see also CCDC R. 56.1, ¶ 5. Farris testified that, "[a]t the meeting, Norcross discussed the tickets and questioned how he could get Farris to be a team player." See Pl. R. 56.1 at 10. Specifically, Farris testified: I walked in his office ... And he said to me, something to the point of "How do I get you to be a team player?" . . . . . I said, "If you're talking about the tickets, I'd love to be a team player, but I can't afford the tickets at this point in time." He told me how important it was that tickets be sold to get their candidate wherever that candidate is going ... And I told him, "I put too much money in my building and I really couldn't afford it." He said, "How much do you owe on your building?" Somehow a number, seven-fifty, seven hundred thousand came up ... And his remark to me was, "I'll buy your building for seven hundred thousand." I said, "I can't sell you the building. I have more [in] liens [than] ... that. I couldn't sell it, and I'm not here to sell the building." At that point in time, he just put his hands on his desk. He said, "This meeting's over." See Farris Dep. (Aug. 4, 1998) at 191-92. When Farris returned to his office at the 1300 Building after his meeting with Norcross, "Maguire was already there waiting." See Pl. R. 56.1 at 10; see also Farris Dep. (Aug. 4, 1998) at 193. Willis arrived at Farris's office also. See Willis Dep. (Sept. 24, 1998) at 146. Farris and Willis testified that Maguire was aware of the outcome of Farris's meeting with Norcross, even without having been told by Farris. See Farris Dep. (Aug. 4, 1998) at 193; Willis Dep. (Sept. 24, 1998) at 146. Willis further testified that Maguire stated that Farris "was going to start having 315 trouble with [Norcross.]" See Willis Dep. (Sept. 24, 1998) at 153. Willis also testified that Palombi "was aware of [Farris's] meeting with Norcross and what had transpired." See Pl. R. 56.1 at 11; see also Willis Dep. (Sept. 24, 1998) at 115. According to Willis, Palombi also stated that she had a letter from Norcross stating that if Farris did not make the requested political contributions the County was going to move out of the 1300 Building. See Willis Dep. (Sept. 24, 1998) at 116-22. Palombi testified that she did have conversations with Willis and Farris regarding political fund-raisers. See Deposition of Judith Palombi (dated Dec. 28, 1998) at 86-87. Palombi, however, denied receiving a letter from Norcross about Farris's failure to make political contributions. See id. at 117. Palombi testified: I know there was no letter, absolutely no letter. I have no idea what Mark Willis is talking about when he mentions a letter regarding Mr. Norcross. I have never had ... a letter from George Norcross involving any fund-raising requesting that I have anything to do with Rahn Farris or Mark Willis, never. Id. Willis testified that shortly after Farris's meeting with Norcross the County began to withhold rent due under the 1300 and the 1350 Building leases. See Willis Dep. (Sept. 24, 1998) at 39-40. Willis further testified that Maguire stated that "Norcross had directed the rents be held up...." See Pl. R. 56.1 at 11; Willis Dep. (Sept. 24, 1998) at 155. Stephen R. Sasala ("Sasala"), the County Administrator for Camden County from April 1, 1991, to March 31, 1994, testified that, in 1991, the Board of Chosen Freeholders decided to renegotiate a number of the County's leases. See Deposition of Stephen R. Sasala (dated Nov. 13, 1998) at 20, 22. Sasala, who had been appointed County Administrator by the Board when it was controlled by the Republican Party, testified: [The decision to renegotiate Farris's leases was made] in 1991 when the Republicans controlled the freeholder board, but it certainly carried over into 1992 [after the Democrats gained control of the Board]. Id. at 22. Sasala further testified: Q. [By Mr. Zarrillo] And the reason that you understood why the Republican administration wanted to renegotiate the leases was? A. To consolidate county office space. Q. Was there anything about the amounts of money being paid on those leases that was a motivating factor, as far you know? A. I believe there was also at the time an understanding that the leases were excessive, and that they wanted to cut the amount on a per square foot basis. Q. In 1992 there was a transition to a Democratic freeholder board. Correct? A. Correct . . . . . Q. Were you aware of the rationale as to why the freeholder board wanted to continue the process of renegotiating leases that was begun in the Republican administration ...? A. Basically because they were inflated leases, they were very expensive ... Id. at 22-23. Sasala testified that Mitchell and Defendant, Joseph Benton ("Benton"), were directed to conduct the actual renegotiations with Farris. See id. at 25. In March, 1992, Benton "contacted Farris and advised him that he had to renegotiate all of his leases with the County[.]" See Pl. R. 56.1 at 12; see also Farris Dep. (Aug. 12, 1998) at 331-32; Deposition of Joseph Benton (Dec. 9, 1998) at 70-73, 106. Farris testified that Benton stated that "[i]t was in [his] best interest ... to renegotiate with the County, or they're [sic] going to move, and [Farris was] going to be out a 316 lot of money." See Farris Dep. (Aug. 12, 1998) at 332. Farris further testified that Benton offered him "five dollars a square foot." Id. at 331. Benton, however, testified that he offered Farris four to five dollars less per square foot than the existing rental rate. See Benton Dep. at 70-73, 106. After speaking with Benton, Farris contacted Mitchell. See Farris Dep. (Aug. 12, 1998) at 332. Farris testified: Tom Mitchell got back to me in a couple of days. He said, "They want to renegotiate with you." I said, "Why?" He said, "Because that's what George [Norcross] wants to do." Id. Mitchell testified, however, that he did not tell Farris that Norcross directed that Farris's leases be renegotiated. See Mitchell Dep. at 103-04. Regarding the renegotiations, Sasala testified that Farris complained to him that he thought that his leases with the County were being renegotiated because he had failed to make political contributions. See Sasala Dep. at 26-28. Sasala further testified: [Farris] called me and pleaded with me and said he could not get [the rent] paid and was there anything I could do about it. . . . . . I recall having a conversation with [Defendant, Louis Bezich ("Bezich")]. And his response was "I'll take care of it." . . . . . Q. [By Mr. Zarrillo] ... During the course of this conversation with Mr. Bezich, do you recall him saying to you that the checks were on his desk for Mr. Farris? A. That sounds familiar. I think so ... I believe the checks were cut[.] Id. at 29-31. Through the renegotiations with Farris, the County was seeking the inclusion of two specific terms in the renegotiated lease for the 1300 Building. First, the County was seeking a downward-spiraling, reduced rental rate. See Sasala Dep. at 24. Sasala testified that the rental provision, which reduced the rent per square foot by $.25 each year for the first three years of the lease, was his idea. See id. at 95-96. Second, the County was seeking a clause in the renegotiated leases that permitted the County to terminate the lease on thirty-days notice to Farris. See Mitchell Dep. at 222. Sasala testified that the thirty-day termination provision "was tied into the county having maximum flexibility, because there was some discussion [about consolidating office space] in the RCA building[,]" located in Camden, New Jersey. See Sasala Dep. at 98-99. During the renegotiations of Farris's leases with the County, Farris testified that the County was withholding rent due under the original 1350 Building lease. See Farris Dep. (Aug. 4, 1998) at 231; Willis Dep. (Sept. 22, 1998) at 146-47. Farris further testified that Mitchell and Benton represented to him that, if he did not agree to the County's terms in the renegotiated leases, the County would vacate the 1300 Building, immediately relocate to the RCA building, and withhold the back rent indefinitely. Specifically, Farris testified: My leases were not up in the [1300] building until August[, 1992]. I was renegotiated in March and April[, 1992]. And as far as I was concerned, I was forced to sign that lease, "Or we're moving to the RCA Building and you will not get your money." See Farris Dep. (Aug. 12, 1998) at 335. Sasala testified that the County could not immediately relocate its offices to the RCA building in April, 1992. See Sasala Dep. at 64-66. Farris testified that after he agreed to the County's terms in the renegotiated 1300 Building leases, Mitchell apologized to him for misleading him about the availability of the RCA building. See Farris Dep. (Aug. 4, 1998) at 30-32. 317 Mitchell denied making any such apology. See Mitchell Dep. at 211. While Farris and the County were renegotiating the 1300 Building lease, Farris was being solicited for political contributions. Willis testified that he "received a phone call from Defendant, Phyllis Pearl [(`Pearl')]." See Pl. R. 56.1 at 15. "Pearl advised that she was from Jack Gallagher Associates and was calling on behalf of Rob Andrews for Congress." Id. Willis testified that "Pearl referenced the tickets that were mailed to Farris and his `conflict with the County.'" Id. (quoting Willis Dep. (Sept. 24, 1998) at 92-95). "Pearl requested that Farris make a $3,000 contribution and advised if she got a check for $3,000 that day, she could have Farris's rent paid by the end of the day." Id. Willis testified that "Pearl followed up a couple days later in person." Id. Farris did not make the contribution. See id. Pearl testified at her February 25, 1999, deposition that she did make fund-raising calls for the CCDC, but that she did not solicit a $3000 contribution from Farris, promising to have his overdue rent paid. See Deposition of Phyllis Pearl (dated Feb. 25, 1999) at 66, 84, 90. Specifically, Pearl testified: Q. [By Mr. Valenti] Do you know if you ever spoke to Mark Willis on the phone? A. I have no idea. I'd say no. I mean, he never identified himself. You know, I call an office. I don't know who I'm talking to. I ask for the person I need to speak to, they say, they're not here. I hang up. Q. Do you have any specific recollection of speaking to anyone at Admiral Wilson Boulevard in response to a call that you were placing for the CCDC? A. No. . . . . . Q. You've never said to anyone that their contribution would be noticed by the party? A.... I would probably say to somebody, I'm sure people will notice if you're helpful. That's probably the words I would use . . . . . Q. [Did you ever speak] with Judy Palombi concerning any rent issues with Admiral Wilson Boulevard? A. No. Id. at 66-67, 88-90. Pearl further testified that she did not "fund-raise" on behalf of Congressman Andrews. See id. at 103. In February, 1992, Farris made a $1,500 contribution to the CCDC. See Exhibits in Support of Brief of Summary Judgment on Behalf of Norcross and the CCDC, Exh. R, (Check (dated Feb. 25, 1992)). Farris testified that Theresa Kirby, a loan officer at Commerce Bank, had convinced him to make the contribution. See Farris Dep. (Aug. 12, 1998) at 499. The contribution was for the purchase of three tickets to a roast held by the CCDC in Norcross's honor. See id.; see also Exhibits in Support of Brief of Summary Judgment on Behalf of Norcross and the CCDC, Exh. R, (Check (dated Feb. 25, 1992)). Farris and Willis testified that, even after Farris agreed to the renegotiated lease terms for the 1300 Building, "the County continued to withhold the rent that it owed Farris" on the 1350 Building. See Pl. R. 56.1 at 15. Both Farris and Willis repeatedly telephoned Bezich, the Chief Operating Officer and Treasurer of Camden County, inquiring about the overdue rent. See id. at 15-16; see also See Deposition of Louis Bezich (dated Feb. 23, 1999) at 35-38. Bezich testified that he had no recollection of receiving any such calls. See Bezich Dep. at 66. Willis also repeatedly called Mitchell to inquire about the rent. See id. at 16. Willis secretly tape recorded a number of his telephone conversations with Mitchell. See id.; see also Pl. Sanctions Opp. Exh. 13 (Transcript of Tape Recorded Conversations). On April 1, 1992, at the same time that Farris and the County were renegotiating the 1300 Building lease, Mitchell, on behalf 318 of the County, informed Farris by letter that the County was terminating the 1350 Building lease. See Valenti Cert., Exh. 15 (Letter to Farris from Mitchell (dated Apr. 1, 1992)). At the time, the County was withholding the rent due for the months of January, February, and March, 1992. See Farris Dep. (Aug. 12, 1998) at 361, 392. All of Farris's leases with the County contained a provision entitled "Obligation Subject to the Availability and Appropriation of Funds." See Valenti Cert., Exh. 13, ¶ 27. The provision provided, in relevant part: "[I]t is mutually understood and agreed between the parties that all financial obligations undertaken by the [County] under [the 1350 Building] lease including, but not limited to rent, are made subject to the availability and appropriation of sufficient funds by the by the Board of Chosen Freeholders ..." Id. Exercising this provision, the County terminated the 1350 Building lease, effective May 31, 1992. See Valenti Cert., Exh. 14; see also Certification of John T. Coyne, Esq. (filed Apr. 30, 1999), Exh. E. In April, 1992, the County remitted to Farris the rent due under the 1350 Building lease for the months of January, February, and March, 1992. See Compl., ¶ 62. In November, 1992, Farris and the County entered into another lease for the 1350 Building. See Valenti Cert., Exh, 17. The renegotiated 1350 Building lease contained the reduced rental rate and thirty-day termination provisions that the County had required in the renegotiation of the 1300 Building lease. See id. Farris testified that, prior to entering into the renegotiated 1350 Building lease, "[i]n the fall of 1992, [he] was visited by Stephen Umbrell, the Executive Vice President of Commerce Bank." See Pl. R. 56.1 at 19; see also Valenti Cert., Exh. 16 (Certification of Rahn J. Farris (dated Jan. 29, 1999), ¶ 3). At the time, Commerce Bank held notes secured by mortgages on the 1300 and 1350 Buildings. See, e.g., Farris Dep. (Aug. 12, 1998) at 387. "Mr. Umbrell requested that Farris execute an assignment of lease payments for the 1350 Building in favor of Commerce Bank." See Pl. R. 56.1 at 19. "Farris advised Umbrell that Camden County had vacated the building and that there was no longer a tenant in the 1350 building." Id. Umbrell insisted, and Farris acquiesced in executing an assignment of rents in favor of Commerce Bank. See id. The County, after entering into the renegotiated lease with Farris, made its rental payments "directly to Commerce Bank" under the assignment of lease payments. Id. On February 2, 1994, unable to make the payments on the mortgages covering the 1300 and 1350 Buildings, as well as the commercial loans Farris had obtained for unrelated business ventures, and judgment liens filed by numerous creditors, Farris filed for bankruptcy. See Valenti Cert., Exh. 14 (Discharge of Debtor (dated June 2, 1997)). On June 2, 1997, Farris's debts were discharged by order of the United States Bankruptcy Court for the Eastern District of Pennsylvania. See id.; see also County of Camden v. Rahn J. Farris, Civil Action No. 97-3297(SMO), unpubl. slip op. (D.N.J. Jun. 29, 1998). On October 6, 1997, Farris filed a thirty-five count Complaint[3] in this Court alleging both federal and pendent state law causes of action against Defendants, Camden County, Norcross, the CCDC, Louis Bezich, Thomas Mitchell, Judy Palombi, and Phyllis Pearl. See Compl., ¶¶ 6-17.[4]319 On December 14, 1998, Magistrate Judge Joel B. Rosen granted Farris's motion to voluntarily dismiss Counts XX through XXXV of the Complaint, namely, Farris's claims for violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962, and its New Jersey analogue, N.J. Stat. Ann. § 2C:41-2. See Order of Mag. Judge Rosen (filed Dec. 14, 1998). Farris's remaining counts include claims for: (1) rescission or reformation of the renegotiated 1300 and 1350 Building leases on the basis of economic duress, fraud, misrepresentation, and unconscionability, Counts I-III; (2) breach of the original 1300 and 1350 Building leases, as well as the renegotiated 1300 Building lease, Counts IV-V, VII, XI; (3) common law fraud against the County, Bezich, Mitchell, and Palombi, Count VI; (4) tortious interference with contract and prospective economic advantage against Bezich, Mitchell, and Palombi, Count VIII; (5) tortious interference with contract and prospective economic advantage against Norcross and the CCDC, Counts IX-X; (6) civil conspiracy to tortiously interfere and defraud against Norcross, the CCDC, Bezich, Mitchell, and Palombi, Count XII; (7) civil conspiracy to defraud against Camden County, Norcross, and the CCDC, Count XIII; (8) civil conspiracy to tortiously interfere against Norcross, the CCDC, and Pearl, Count XIV; and (9) civil conspiracy to extort political contributions and to deprive Farris of his real property against Norcross, the CCDC, Bezich, Mitchell, Palombi, Pearl, and the County, Counts XV-XIX. See Compl, Count I-XIX. On December 8, 1998, Norcross and the CCDC moved, pursuant to 28 U.S.C. § 1927 and the Court's inherent powers, for the imposition of sanctions and attorneys' fees against counsel for Farris, contending that Farris's claims against Norcross and the CCDC lacked an arguable basis in law and fact, and that counsel for Farris had misrepresented the facts of the case in Farris's Rule 26 initial disclosures. See Notice of Motion (filed Dec. 8, 1998). While that motion was pending, on February 5, 1999, Norcross and the CCDC also moved for summary judgment on all claims asserted against them. See Notice of Motion (filed Feb. 5, 1999). Farris opposed the motion on the merits and filed an application pursuant to Rule 56(f) to adjourn Norcross's and the CCDC's motion until the conclusion of discovery.[5]See Rule 56(f) Certification of Jerald R. Cureton, Esq. (filed Feb. 5, 1999). After the close of discovery, on April 22, 1999, Mitchell filed a Notice of Intent to submit a dispositive motion. See Notice of Intent (filed Apr. 22, 1999). Subsequently, on May 10, 1999, Mitchell filed a motion for summary judgment on all claims. See Notice of Motion (filed May 10, 1999). Likewise, on April 30, 1999, Camden County filed a motion for summary judgment on all claims asserted against it.[6]See Camden 320 County's Notice of Motion (filed Apr. 30, 1999). Farris opposed both motions contending that genuine disputed issues of material fact exist, precluding the entry of summary judgment in favor of Mitchell and the County. III. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT "On a motion for summary judgment, the court must determine whether the evidence shows 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.'" Abraham v. Raso, 183 F.3d 279, 287 (3d Cir.1999) (citing Fed.R.Civ.P. 56(c)). "Any factual dispute invoked by the nonmoving party to resist summary judgment must be both material in the sense of bearing on an essential element of the plaintiff's claim and genuine in the sense that a reasonable jury could find in favor of the nonmoving party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-251, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). In opposing summary judgment, a party "must do more than simply show that there is some metaphysical doubt as to 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), but a court should not prevent a case from reaching a jury simply because the court favors one of several reasonable views of the evidence. Abraham, 183 F.3d at 287. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S. Ct. 2505; see also Abraham, 183 F.3d at 287. "Thus, while the nonmoving party must present enough evidence to demonstrate a dispute is genuine, all inferences in interpreting the evidence presented by the parties should be drawn in favor of the nonmoving party." Abraham, 183 F.3d at 287 (citing Boyle v. County of Allegheny Pa., 139 F.3d 386, 393 (3d Cir.1998)). "Cases that turn crucially on the credibility of witnesses' testimony in particular should not be resolved on summary judgment." Id. If the nonmoving party fails to oppose the motion by written objection, memorandum, affidavits and other evidence, the Court "will accept as true all material facts set forth by the moving party with appropriate record support." Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir.1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir.1989)). Even where the non-moving party has failed to establish a triable issue of fact, summary judgment will not be granted unless "appropriate." Fed. R.Civ.P. 56(e); see Anchorage Assocs., 922 F.2d at 175. Rule 56(e) of the Federal 321 Rules of Civil Procedure requires that the case be evaluated on its merits, with summary judgment being granted for the movant only if they are entitled to a judgment as a matter of law. See Anchorage Assocs., 922 F.2d at 175. IV. DISCUSSION A. Defendants' Motions for Summary Judgment 1. Norcross's and the CCDC's Motion for Summary Judgment and Application of the Coconspirator Exception to the Hearsay Rule set forth in Rule 801(d)(2)(E) of the Federal Rules of Evidence a. Counts IX and X, Tortious Interference In Count IX of the Complaint, Farris alleges that Norcross "directed, encouraged, and otherwise caused Defendant Camden County to breach its lease agreements with Plaintiff by failing to make rent payments for months at a time and by vacating the 1350 Building prior to the end of the 1350 Building Lease." See Compl., ¶ 139. Farris also alleges in Count IX that Norcross "directed, encouraged, and otherwise caused Defendant Camden County to engage in coercive and fraudulent tactics so as to cause Plaintiff to enter the [renegotiated leases]." Id., ¶ 140. Farris alleges that the "actions of Norcross were intentional and malicious and were engaged in for various reasons including to facilitate a scheme to acquire Plaintiff's 1300 Building, to coerce and encourage Plaintiff into making political contributions, and to retaliate against Plaintiff's prior failures to make contributions ..." Id., ¶ 141. In Count X, Farris makes the same allegations against the CCDC. See id., Count X. In support of their motion for summary judgment, both Norcross and the CCDC contend that "plaintiff has no evidence whatsoever that Norcross or the [CCDC] interfered in any way with [Farris's] lease agreements with the County of Camden." See Norcross's and the CCDC's Brief in Support of Motion for Summary Judgment (filed Feb. 5, 1999) ("CCDC's Brief") at 19. In addition, in response to Farris's contention that the hearsay statements of County employees are sufficient to create a dispute of material fact, Norcross and the CCDC contend that these statements are inadmissible to prove that Norcross and the CCDC tortiously interfered with Farris's leases with the County. See Reply Brief of Norcross and the CCDC (filed Feb. 5, 1999) at 6-11. Under New Jersey law, "[t]o state a claim for tortious interference with business relationships, a plaintiff must allege that: (1) it had a continuing or prospective economic relationship or reasonable expectation of economic advantage; (2) the defendant knew of such relationship of expectancy; (3) the interference and harm inflicted were done intentionally and with "malice" in the sense of conduct that is wrongful and without justification or excuse; (4) if not for the interference, it was reasonably probable that plaintiff would have realized its economic advantage; and (5) the plaintiff was injured as a result of defendant's conduct." Eli Lilly and Co. v. Roussel Corp., 23 F. Supp. 2d 460, 493-94 (D.N.J.1998) (citing Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 186 (3d Cir.1992)); see Varrallo v. Hammond, Inc., 94 F.3d 842, 848 (3d Cir.1996); Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 751-52, 563 A.2d 31 (1989); see also Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1167 (3d Cir.1993); Lithuanian Commerce Corp. v. Sara Lee Hosiery, 179 F.R.D. 450, 482-83 (D.N.J.1998). Norcross and the CCDC concede for the purposes of this motion that "plaintiff's leases with the County of Camden created a reasonable expectation on the part of plaintiff that he would be paid some amount of rent to the end of [the] term." See CCDC's Brief at 19. These defendants, however, contend that Farris has 322 failed to produce any admissible evidence of the remaining elements of a claim for tortious interference. See id. In response to this contention, Farris contends that the statements of Mitchell, Palombi, Maguire and Pearl, are admissible to prove that Norcross and the CCDC tortiously interfered with Farris's leases with the County. See Plaintiff's Brief in Opposition to Norcross's and the CCDC's Motion for Summary Judgment (filed Feb. 5, 1999) at 30-31, 33-34. Specifically, Farris contends that "[t]he testimony of Willis and Farris is that they were informed by Maguire, Palombi[,] and Mitchell, on various occasions that the withholding of rents and the renegotiation of [Farris's] leases [were] at the direction of Norcross because Farris failed to make the [political] contributions requested of him." Id. at 31. Norcross and the CCDC contend to the contrary that the statements of Palombi, Mitchell, and Maguire, are inadmissible hearsay. See Reply Brief of Norcross and the CCDC at 6-11. It is well settled that, in opposing a motion for summary judgment, "[a] plaintiff ... must point to admissible evidence that would be sufficient to show all elements of a prima facie case under applicable substantive law." Clark v. Modern Group Ltd., 9 F.3d 321, 326 (3d Cir.1993) (citation omitted). Consistent with this well settled principle of law, in Philbin v. Trans. Union Corp., 101 F.3d 957 (3d Cir. 1996), the Third Circuit noted that "a hearsay statement that is not capable of being admissible at trial should not be considered on a summary judgment motion[.]" Blackburn v. United Parcel Service, Inc., 179 F.3d 81, 95 (3d Cir.1999) (construing Philbin, 101 F.3d at 961 n. 1). When a party seeking to avoid summary judgment has pointed to arguably hearsay evidence in the record, a District Court "must first determine whether any [of the non-moving party's] evidence ... is admissible, based as it is on hearsay and, in some instances, multiple hearsay." Blackburn, 179 F.3d at 95 (citing Philbin, 101 F.3d at 961 n. 1). "Then, [a District Court] must determine whether the hearsay evidence that might be admissible at trial is sufficient to defeat [the moving party's] summary judgment motion or whether judgment [should] properly [be] entered in favor of [the moving party]." Id. (citation omitted). As a preliminary matter, I note that Farris contends that any statements made by Palombi, Mitchell, and Maguire, made within the scope of their employment, are admissible against the County as admissions by a party opponent under Rule 801(d)(2)(D) of the Federal Rules of Evidence. See Plaintiff's Brief in Opposition to Norcross's and the CCDC's Motion for Summary Judgment (filed Feb. 5, 1999) at 33. Building on this contention, Farris argues that these statements are also admissible against Norcross and the CCDC under Rule 801(d)(2)(E) because he has alleged that Norcross, the CCDC, and the County are coconspirators. Id. These contentions are without merit in light of this Court's conclusion that as a matter of law the County cannot conspire with Norcross and the CCDC to tortiously interfere with Farris's leases, to extort political contributions, to interfere with Farris's real property, or to defraud. See § IV.A.2.f-j infra. Therefore, because Rule 801(d)(2)(D) cannot serve as a basis for the admissibility of Mitchell's, Palombi's and Maguire's statements against Norcross and the CCDC, Farris must demonstrate that these statements satisfy the requirements of Rule 801(d)(2)(E),[7] independent of the County's alleged role as a coconspirator. 323 In addition, because Farris has not alleged that Maguire was a party to the civil conspiracy to tortiously interfere with his contractual and prospective contractual relationship with the County, Rule 801(d)(2)(E) cannot serve as the basis for the admissibility of Maguire's hearsay statements.[8] Farris has failed to assert an alternative basis for the admissibility of Maguire's statements, either under Rule 801, as non-hearsay, or the exceptions to the hearsay rule in Rules 803 and 804. See note 6 and accompanying text. Therefore, because Maguire's statements are clearly hearsay "that is not capable of being admissible at trial, [his alleged statements shall] not be considered [in resolving this] ... summary judgment motion[.]" Blackburn, 179 F.3d at 95 (citing Philbin, 101 F.3d at 961 n. 1). Turning to the alleged statements of Palombi and Mitchell, Farris contends that these statements, as well as those of Phyllis Pearl, are admissible under Rule 801(d)(2)(E) of the Federal Rules of Evidence. The specific statements at issue are set forth below. Willis testified at his September 22, 1998, deposition that: Late, I believe in '91ish, certainly early '92ish[, Farris received tickets to a political fund raiser]. [When] all that had started to surface, [Palombi] came in and made a representation that certainly it would be in our best interest to buy tickets. She had a letter that ... she read ... to me. She said it was from the chairman. And I joked with her, Frank Sinatra, and she said, "No George Norcross." . . . . . She basically said they were going to move from the facility ... It was basically that, she read the letter, that they would virtually move from the building ... if Rahn didn't contribute. [After] she read it, she folded the letter up, I remember she put it inside a day planner. We sat there and talked. . . . . . She basically made it very clear. The only time she used [Norcross's] name was for that particular letter. She's been to headquarters, they're expecting Rahn to put out, it was kind of unavoidable. She was making it very clear that those tickets on Rahn's desk weren't going to go away, I mean they just weren't going to go away ... In terms of the tickets she made it very clear that it was in Rahn's interest just to buy them. Q. [By Mr. Timpone] She said it was in Rahn's best interest to buy the tickets? A. [By Mr. Willis] Yes. Q. Did she link the continuing idea of the County vacating? A. Right.... . . . . . Q. Did she explain to you how your contributions to the fund ... would stop [her] Program from moving out? A. She just basically made it very clear at that point in time we'd be on-board.... . . . . . Q. Did she say if you don't buy these tickets, [her program] would move [out of the 1300 Building]? A. Yes.... See Willis Dep. (Sept. 22, 1998) at 116-126. At his September 24, 1998, deposition, Willis testified that he received, on behalf of Farris, a telephone solicitation for political 324 contributions from Pearl. See Willis Dep. (Sept. 24, 1998) at 94. Willis testified: Q. [By Mr. Tambussi] Tell me what Phyllis Pearl said? A. [By Mr. Willis] Regarding the collection of our rent, that $3000 could facilitate the rent ... Q. When did Phyllis Pearl tell you? A. Early '92. Q. In person or on the telephone? A. Once in person, once on the phone. . . . . . Q. What did she say to you? A. It was a follow-up of our conversation on the phone regarding the $3000. Q. So she called you first? A. It was a solicitation on the phone first ... Basically identified who she was, where she was from. [She said she was Phyllis Pearl] [f]rom Jack Gallagher Associates. And she was calling on behalf of Rob Andrews for Congress ... She basically was aware of the tickets that were mailed to us ... . . . . . I don't remember the exact pitch. She caught me off guard ... She was aware ... or our difficulty [in collecting the money owed from the County]. . . . . . And she immediately solicited, ... "Would it be possible to get a check made out on behalf of Rob Andrews[.]" . . . . . She basically said to me, "If I get the $3000 today, I could get your rent by the end of the day[.]" ... That was as best I could tell you the statement she made to me. . . . . . Q. Do you have any facts that George Norcross directed her to make that call? A. No. Q. Do you have any facts ... that any member of the [CCDC] directed Phyllis Pearl to make that call? A.... No. See id. at 90-103. Willis further testified that Pearl met him at his office a short time after her telephone solicitation to see "if [Farris had] decided[ ] he would give the $3000 for support of Rob Andrews[.]" Id. at 106. In addition, Farris testified that Mitchell stated that Norcross was behind the County's failure to pay his overdue rent. See Farris Dep. (Sept. 16, 1998) at 52-53. Specifically, Farris testified: Q. [By Mr. Zarrillo] Did anyone tell you that Mr. Bezich was not signing your [rent] checks because of your failure to make political contributions? A. Yes Q. Who? A. Tom Mitchell. . . . . . Q. Tell me the exact details of that conversation with Mr. Mitchell? . . . . . A. I said, "What does [Sasala] mean it's a political thing?" And [Mitchell] said to me, "Number 1, Lou Bezich doesn't have enough brains to not sign your check on his own, he got that from Mr. Norcross ... [M]aybe the next time they want you to give it might be easier to give." ... Q. And he attributed the failure to make the check payment to Mr. Norcross? A. Correct. See Id. Farris also testified that Mitchell stated to him that Norcross had directed the County to renegotiate Farris's leases. See Farris Dep. (Aug. 12, 1998) at 332. In their deposition testimony, Mitchell, Palombi, and Pearl each denied having made the statements Farris and Willis attribute to them. See § I supra. Norcross 325 testified at his deposition that he did not direct County officials to withhold Farris's rent payments, to renegotiate Farris's leases, or coerce Farris into making political contributions. See Norcross Dep. at 115-17, 121-22, 149-54, 155. Before I can consider whether this conflicting deposition testimony constitutes a genuine disputed issue of material fact, sufficient to warrant the denial of Norcross's and the CCDC's motion for summary judgment, I must first determine whether the statements attributable to Palombi, Pearl, and Mitchell are admissible under the Federal Rules of Evidence. Blackburn, 179 F.3d at 95. Farris contends that these statements are admissible under Rule 801(d)(2)(E) of the Federal Rules of Evidence, as "statement[s] by a coconspirator of a party during the course and in furtherance of the conspiracy[.]" See Fed. R. Ev. 801(d)(2)(E). Rule 801(d)(2)(E) provides, in relevant part: A statement is not hearsay if ... [t]he statement is offered against a party and is ... (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish ... the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). See Fed. R. Ev. 801(d)(2)(E). The current rule is the result of an amendment in 1997 adopted to conform the rule to the United States Supreme Court's decision in Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987). See Fed. R. Ev. 801, Advisory Committee Note to 1997 Amendment. The Advisory Committee Note to the 1997 Amendment states: First, the amendment codifies the holding in Bourjaily by stating expressly that a court shall consider the contents of a coconspirator's statement in determining "the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered." According to Bourjaily, Rule 104(a) requires these preliminary questions to be established by a preponderance of the evidence. Second, the amendment resolves an issue on which the Court had reserved decision. It provides that the contents of the declarant's statement do not alone suffice to establish a conspiracy in which the declarant and the defendant participated. The court must consider in addition the circumstances surrounding the statement, such as the identity of the speaker, the context in which the statement was made, or evidence corroborating the contents of the statement in making its determination as to each preliminary question. See id. In United States v. Ellis, 156 F.3d 493 (3d Cir.1998), the Third Circuit discussed the requirements for satisfying Rule 801(d)(2)(E). See id. at 496. The Third Circuit held: [Rule] 801(d)(2)(E) excepts from the definition of hearsay a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. In order for an out-of-court statement to be admissible pursuant to Rule 801(d)(2)(E), the district court must find by a preponderance of the evidence that: (1) a conspiracy existed; (2) the declarant and the party against whom the statement is offered were members of the conspiracy; (3) the statement was made in the course of the conspiracy; and (4) the statement was made in furtherance of the conspiracy. Where the district court finds that a conspiracy existed, we review the district court's findings as to these elements for clear error. Id. (citing United States v. McGlory, 968 F.2d 309, 333-34 (3d Cir.1992); United States v. Cruz, 910 F.2d 1072, 1081 n. 11 (3d Cir.1990)). 326 A District Court "must be able to find these requirements by a preponderance of the evidence." McGlory, 968 F.2d at 333 (citing Bourjaily, 483 U.S. at 175, 107 S. Ct. 2775); see also United States v. Gambino, 926 F.2d 1355, 1361 (3d Cir. 1991); see Fed. R. Ev. 801, Advisory Committee Note to 1997 Amendment. "Sufficient proof of the existence of the conspiracy and defendant's membership in it may include hearsay statements and other independent evidence." See 5 Jack B. Weinstein & Margaret A Berger, Weinstein' Federal Evidence, § 801.33[1] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed.1997) (citations omitted). As discussed in the Advisory Committee Note to the 1997 Amendment to Rule 801, the Bourjaily court held that preliminary questions regarding the admissibility of coconspirators' statements under Rule 801(d)(2)(E) are to be made by the Court pursuant to Rule 104(a) of the Federal Rules of Evidence. Bourjaily, 483 U.S. at 175, 107 S. Ct. 2775. The Supreme Court specifically held: Before admitting a co-conspirator's statement over an objection that it does not qualify under Rule 801(d)(2)(E), a court must be satisfied that the statement actually falls within the definition of the Rule. There must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made "during the course and in furtherance of the conspiracy." Federal Rule of Evidence 104(a) provides: "Preliminary questions concerning ... the admissibility of evidence shall be determined by the court." Petitioner and the Government agree that the existence of a conspiracy and petitioner's involvement in it are preliminary questions of fact that, under Rule 104, must be resolved by the court. Id. On the issue of the Court's preliminary determination, Judge Weinstein's often-cited treatise provides: "In determining whether the proponent of the co-conspirator statements has made a sufficient showing to satisfy the preponderance of the evidence standard, the trial court must weigh the credibility and reliability of the evidence, including the hearsay statements themselves." See 1 Weinstein's Federal Evidence, § 104.16[4][b] (citing Precision Piping & Instruments, Inc. v. E.I. du Pont de Nemours & Co., 951 F.2d 613, 621 (4th Cir.1991); Earle v. Benoit, 850 F.2d 836, 842 (1st Cir.1988)). Because the declarants of the hearsay statements, Mitchell, Palombi, and Pearl, deny that they made the statements attributed to them, this case presents an interesting issue of law involving the interaction of Rules 104(a) and 801(d)(2)(E). The only evidence Farris has produced in opposition to Norcross's and the CCDC's motion for summary judgment on his substantive claims for tortious interference, are the hearsay statements of Mitchell, Pearl, and Palombi, which he claims are admissible under the coconspirator exception of Rule 801(d)(2)(E). As the rule and the case law require, to admit these statements into evidence, Farris must first prove by a preponderance of the evidence that a conspiracy existed and that the declarant and the party against whom the statements are to be used were members of the conspiracy. In this case, however, Mitchell, Pearl, and Palombi, deny making the statements attributed to them by Farris and Willis. In addition, as a matter of state law, Mitchell cannot conspire with Norcross or the CCDC to interfere with the County's contractual and prospective contractual relationships with Farris. See § IV.A.3.b infra. This evidentiary question is further complicated because the alleged "conspiracy" is a civil conspiracy, which under New Jersey law is not an independent cause of action, but rather a "liability expanding mechanism" which exists only if Farris can prove the underlying "independent wrong," here, tortious interference. Eli Lilly and Co., 23 F.Supp.2d at 497; see § IV.A.1.b supra. Thus, because I must determine the admissibility of the statements before reaching 327 the issue of whether Farris has presented enough evidence to avoid summary judgment, Blackburn, 179 F.3d at 95, I must find that Farris has proved by a preponderance of the evidence that a civil conspiracy, involving Norcross or the CCDC, to tortiously interfere with his leases with the County existed, recognizing that proof of such a conspiracy is dependent upon whether one of the alleged conspirators did actually interfere with Farris's leases. See Eli Lilly and Co., 23 F.Supp.2d at 497. Curiously, this requires that I determine whether Farris can ultimately prove his case against Norcross and the CCDC before determining whether Farris is entitled to present this same case to a jury. After reviewing the evidence in the summary judgment record, I conclude that I cannot determine whether Farris has proven by a preponderance of the evidence the existence of a civil conspiracy involving Norcross or the CCDC, Pearl and Palombi. Although I am not bound by the rules of evidence in making an admissibility determination under Rule 104(a), see Fed. R. Ev. 104(a), and may consider Mitchell's hearsay statements as evidence aliunde, i.e., in addition to the statements of Pearl and Palombi, I conclude that, given that the declarants have denied making the statements at issue, I must take testimony at a Rule 104 hearing to assess the credibility of Farris, Willis, Mitchell, Palombi and Pearl. See Earle v. Benoit, 850 F.2d 836, 841-43 (1st Cir.1988); James R. Snyder Co., Inc. v. Assoc. General Contractors of America, 677 F.2d 1111, 1117-18 (6th Cir.1982). Only after I have had the opportunity to assess the credibility of these witnesses will I be able to determine the admissibility of the hearsay statements of Palombi and Pearl, and thus be able to consider Norcross's and the CCDC's motion for summary judgment on Counts IX and X of the Complaint. Farris contends that the testimony of Joseph F. Carroll, a former Camden County Freeholder from January 1, 1983, through December 31, 1990, and William R. Bostic, Esq., Adjuster for the County of Camden from April, 1984, through December, 1993, see Certification of Joseph F. Carroll (dated Jan. 11, 1999); Deposition of Joseph F. Carroll (dated Oct. 1, 1998); see also Certification of William R. Bostic, Esq. (dated Jan. 6, 1999), that Norcross and the CCDC have in the past exerted pressure to the point of coercing County employees and persons doing business with the County to make and solicit political contributions, is sufficient independent evidence to support a finding by the Court that a conspiracy involving Norcross or the CCDC to tortiously interfere with Farris's leases existed.[9]See Plaintiff's Brief in Opposition to Norcross's and the CCDC's Motion for Summary Judgment (filed Feb. 5, 1999) at 34-36. First, while I may 328 consider this evidence in making my Rule 104 admissibility determination, the testimony of Carroll and Bostic is of dubious relevance to this case, given that both have testified that they have no knowledge of the events forming the basis of this lawsuit. See Bostic Cert., ¶ 18; Carroll Cert., ¶ 24. Second, the testimony of Carroll and Bostic is disputed. Norcross disputes Carroll's and Bostic's characterization of his influence over the affairs of Camden County. See Norcross Dep. at 147 ("I ... read [Bostic's] certification, and he is a liar, and it is false."); see id. at 123-27. And the very people from whom Bostic claims to have solicited political contributions, testified that they were in no way coerced or compelled to make contributions to the CCDC, or Norcross. See Reply Brief in Support of Motion of Norcross and the CCDC for Sanctions (filed Jan. 22, 1999), Exh. Exh. D (Certifications of Frank A. Desmoni, Neal A. Loebel, Jack N. Hill, Gerald P. Burke, Robert Ellis, Robert Durand, Mary Dugdale, Arnold Sussman). Therefore, because the determination of whether Farris has proven the existence of a civil conspiracy by a preponderance of the evidence depends on an evaluation of the credibility of Farris and the declarants, Mitchell, Palombi, and Pearl, I shall conduct a Rule 104 hearing to take testimony and other evidence to determine the preliminary factual questions surrounding the admissibility of Palombi's and Pearl's alleged statements. Blackburn, 179 F.3d at 95; see also Earle, 850 F.2d at 841-43. Accordingly, at this time, I shall deny the motion of Norcross and the CCDC for summary judgment on Counts IX and X of the Complaint, without prejudice to their right to renew the motion at the conclusion of the Rule 104 hearing.[10] b. Counts XII and XIV, Conspiracy to Tortiously Interfere In Count XII of the Complaint, Farris alleges that Norcross and the CCDC conspired with Bezich, Mitchell, and Palombi to tortiously interfere with Farris's leases with the County.[11]See Compl., Count XII. Similarly, in Count XIV of the Complaint, Farris alleges that Norcross and the CCDC conspired with Pearl to tortiously interfere with Farris's leases. See id., Count XIV. Considering Norcross's position as Chairman of the CCDC, and the CCDC's status as a legal entity, I conclude as a matter of law that, just as an authorized agent of a corporation cannot conspire with the corporation as an entity, Norcross cannot conspire with the CCDC. This conclusion, however, does not entitle Norcross and the CCDC to summary judgment on Counts XII and XIV. In the Complaint, Farris alleges that the CCDC is a corporation organized under the laws of the State of New Jersey, and that Norcross, "at all times relevant to this Complaint, was Chairman" of the CCDC. See Compl., ¶ 8. In New Jersey, it is well settled that "a corporation which acts through authorized agents and employees ... cannot conspire with itself." Tynan v. General Motors Corp., 248 N.J.Super. 654, 329 668, 591 A.2d 1024 (App.Div.1991), rev'd in part on other grounds, 127 N.J. 269, 604 A.2d 99 (1992) (citing Exxon Corp. v. Wagner, 154 N.J.Super. 538, 545, 382 A.2d 45 (App.Div.1977)). Thus, under the rule of Tynan and Exxon Corp., it would seem clear that Norcross as the Chairman of the CCDC could not conspire with the CCDC to achieve common unlawful objectives, namely, the extortion of political contributions and the interference with Farris's real property. Farris's allegation of the CCDC's legal status, however, is inaccurate. See Answer of the CCDC and Norcross (filed Feb. 6, 1998). The CCDC is not a corporation, but rather a county political committee organized under N.J. Stat. Ann. § 19:5-3 (West 1999).[12]See Answer of the CCDC and Norcross (filed Feb. 6, 1998). After reviewing the rationale supporting the rule enunciated in Tynan and Exxon Corp., I conclude that there is no basis to distinguish a county political committee from a corporation in this context. A private corporation, incorporated under the New Jersey Business Corporation Act ("NJBCA"), N.J. Stat. Ann. § 14A:1-1 et seq., is a legal fiction, governed by a board of directors elected by its shareholders, and which may only act through its employees or authorized agents. See N.J. Stat. Ann. §§ 14A:3-1 et seq.; 14A:7-1 et seq. Similarly, a county political committee, organized under the N.J. Stat. Ann. § 19:5-3, is a legal entity, governed by officers elected by members of the party, which also may only act through its officers, employees and authorized agents. Thus, both a corporation and a county political committee may only act through natural persons authorized to do so. It is clear that a director or officer of a private corporation cannot conspire to achieve an 330 unlawful purpose with the fictitious entity that is the corporation because a corporation "cannot conspire with itself." Tynan, 248 N.J.Super. at 668, 591 A.2d 1024. Equally so, an officer of a county political committee, like Norcross, cannot conspire with the CCDC, as an entity, to tortiously interfere with Farris's contractual relationships because, essentially, the CCDC would be conspiring with itself. Applying the rule of Tynan and Exxon Corp. to county political committees, organized pursuant to N.J. Stat. Ann. § 19:5-3, however, does not entitle Norcross and the CCDC to summary judgment on Counts IX and X of the Complaint. Construing the allegations in the Complaint in the light most favorable to Farris, cf. Abraham, 183 F.3d 279, I shall consider Farris's claims for civil conspiracy to tortiously interfere, Counts XII and XIV, as alleging two separate conspiracies: one involving Norcross and the other named coconspirators, not including the CCDC; and the other involving the CCDC and the other named coconspirators, not including Norcross. In Eli Lilly and Co. v. Roussel Corp., 23 F. Supp. 2d 460 (D.N.J.1998), Judge Green-away discussed the essential elements of a claim for civil conspiracy under New Jersey law. See id. at 496-97. Judge Green-away wrote: In New Jersey, the essential elements of a civil conspiracy are: (1)[a] combination of two or more persons; (2) a real agreement or confederation with a common design; (3) the existence of an unlawful purpose to be achieved by unlawful means; and (4) special damages. However, a plaintiff need not prove that the unlawful agreement was express or that each participant in the conspiracy knew the exact limits of the illegal plan or the identity of all participants, as long as plaintiff alleges that each participant shared in the general conspiratorial objective. The plaintiff need not provide direct evidence of the agreement between the conspirators; it is enough that it could be circumstantially inferred from the facts that the conspirators had reached an understanding. A civil action for conspiracy is essentially a tort action. Therefore, to maintain an action for civil conspiracy, a plaintiff must also point to (1) an overt act of one or more of the conspirators in furtherance of the conspiracy; and (2) consequential damage to the rights of another, of which the overt act is the proximate cause. Plaintiff cannot bring an action alleging civil conspiracy unless defendants committed an act which would be actionable even without the conspiracy. Thus, the conspiracy is not the gravamen of the charge, but merely a matter of aggravation, enabling the plaintiff to recover against all the defendants as joint tortfeasors. The actionable element is the tort which the defendants agreed to perpetrate and which they actually committed ... A conspiracy is not actionable absent an independent wrong[.] Id. (citations, internal quotations and footnote omitted); see also Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J.Super. 337, 365, 633 A.2d 985(App.Div.1993); Tynan, 248 N.J.Super. at 654, 591 A.2d 1024. Because Farris's claims for civil conspiracy to tortiously interfere are dependent upon the viability of Farris's substantive claims for tortious interference against Norcross and the CCDC, set forth in Counts IX and X of the Complaint, for the reasons discussed above in section IV. A.1.a, I shall deny Norcross's and the CCDC's motion for summary judgment on Counts XII and XIV of the Complaint, without prejudice to their right to renew this motion at the conclusion of the Rule 104 hearing. c. Count XIII, Conspiracy to Defraud In Count XIII of the Complaint, Farris alleges that Camden County conspired with Norcross and the CCDC to "coerce and defraud Plaintiff into entering into [the renegotiated leases]." See Compl., 331 ¶ 161. In support of their motion for summary judgment, Norcross and the CCDC contend that Farris has failed to allege an independent actionable wrong committed by Norcross or the CCDC which would support his claim for civil conspiracy. I agree. For the reasons set forth in section IV. A.2.f infra, the County, as a matter of law, cannot form the requisite intent to defraud. Thus, for Farris's claim for civil conspiracy to survive, Farris must allege some wrongdoing on the part of Norcross or the CCDC amounting to common law fraud. Farris, however, has made no allegation that Norcross or the CCDC attempted to, or succeeded in defrauding him by inducing him to accept the reduced rental rate, or the thirty-day termination clause. See Compl. In Count XIII, Farris merely alleges that the County, through its employees and agents, "conspired with Defendants Norcross and the [CCDC] ..." See Compl., ¶ 160. Farris does not allege that Norcross or the CCDC "committed an act which would be actionable even without the conspiracy." Eli Lilly and Co., 23 F.Supp.2d at 497. Accordingly, because Farris has failed to allege "an independent wrong" attributable to Norcross and the CCDC amounting to common law fraud, id., I conclude that Norcross and the CCDC are entitled to summary judgment on Count XIII of the Complaint. d. Counts XV, XVI, XVII, XVIII, and XIX Conspiracy to Extort, Blackmail and Deprive Farris of his Real Property In Counts XV, XVI, XVII, XVIII, and XIX of the Complaint, Farris alleges that Norcross and the CCDC conspired with other defendants to extort political contributions from Farris, and that these defendants conspired to deprive Farris of his real property. See Compl., Counts XV, XVI and XVIII. For the reasons set forth in section IV.A.2.j infra, I shall grant Norcross's and the CCDC's motion for summary judgment on Counts XV, XVI, XVII, XVIII, and XIX of the Complaint because Farris has failed to allege an actionable independent wrong. See Eli Lilly and Co., 23 F.Supp.2d at 497. e. The Motion for Sanctions Pursuant to 28 U.S.C. § 1927 and the Court's Inherent Power William M. Tambussi, Esq., counsel for Defendants, Norcross and the CCDC, has moved for sanctions in the form of attorneys' fees and costs against Jerald R. Cureton, Esq., Darryl S. Caplan, Esq., and Anthony Valenti, Esq., counsel for Farris, pursuant to 28 U.S.C. § 1927 and the Court's inherent powers.[13]See Notice of Motion (filed Dec. 8, 1998).[14] Specifically, these Defendants contend that Plaintiff's counsel asserted claims against them which counsel knew or should have known lacked an arguable basis in law and fact. Curiously, Norcross and the CCDC do not bring their motion for the imposition of sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. See Letter to the Court from William M. Tambussi, Esq. (dated Jan. 11, 1999). Yet, Norcross and the CCDC do request that the Court sua sponte sanction counsel for Farris pursuant to Rule 11(c)(1)(B). See id. In their motion for sanctions and attorneys' fees, counsel for Norcross and the 332 CCDC contend that counsel for Farris have "intentionally advance[d] ... baseless contention[s] ... for an ulterior purpose, such as harassment or delay[.]" See Brief in Support of Motion for Sanctions (filed Dec. 8, 1998) at 17 (citing Ford v. Temple Hosp., 790 F.2d 342, 347 (3d Cir.1986)). Specifically, Norcross and the CCDC contend that they put counsel for Farris on notice of the baselessness of Farris's claims as early as November, 1997, and notified counsel for Farris of their intention to seek sanctions in February, 1998.[15]See id. at 6. Norcross and the CCDC further contend that counsel for Farris misrepresented the knowledge of Sasala, Maguire, and Joseph Carroll, a former Camden County Freeholder, in their Rule 26 Initial Disclosures, and that the baselessness of Farris's factual allegations was borne out time and again during the course of discovery. See id. at 5-13, 17-18. In opposing the motion for sanctions and attorneys' fees, counsel for Farris contend that "[t]he timing of Defendants' motion and the predicates upon which it is based discloses [sic] Defendants' real purpose, an attempt to intimidate Plaintiff into withdrawing his claims and preventing Plaintiff from obtaining the discovery he has sought." See Plaintiff's Brief in Opposition to Motion for Sanctions (Jan. 20, 1999) at 20. Counsel for Farris further contends that any finding of bad faith by the Court should be directed at counsel for Norcross and the CCDC because: Defendants' ... pursuit of this motion is ... a transparent attempt to avoid the procedural provisions of Fed.R.Civ.P. 11. Indeed, Defendants failed to comply with the procedural requirements of Rule 11 by filing their original motion directly with the Court. The motion was picked up by [a local newspaper] which ran an article in January[, 1999,] in which Defendants' counsel trumpet [the] motion for sanctions in an attempt to embarrass and humiliate Plaintiff and his counsel. Id. at 21. The acrimony between counsel continued even after the motion for sanctions and attorneys' fees was filed on December 8, 1998. On December 17, 1998, Mr. Tambussi, counsel for Norcross and the CCDC, sent a letter to Mr. Valenti, counsel for Farris, hand delivering a copy to the Court. See Letter from Mr. Tambussi to Mr. Valenti (dated Dec. 17, 1998). The purpose of the letter was to inform Mr. Valenti that Norcross and the CCDC 333 would not consent to an extension of time for counsel for Farris to oppose the motion for sanctions. See id. Before delivering this simple message, Mr. Tambussi wrote: As your office is well aware, numerous requests have been made dating back to November 1997 that the claims against Mr. Norcross and the Democrat [sic] Committee be dismissed in their entirety with prejudice and without condition. Significantly, when I met with Mr. Cureton, Mr. Caplan and you in your office on September 18, 1998, we discussed the factual basis of the claims (or lack thereof) and I specifically requested a dismissal with prejudice and without condition of the claims prior to the scheduled depositions of Teresa Kirby, William Maguire, Joseph Carroll and Stephen Sasala. Your office refused to provide such a dismissal with prejudice and without condition. Only after the time, effort and expenses were incurred to continue discovery, complete depositions and conduct further investigation confirming that your office knew there was no factual basis for the claims prior to filing and serving plaintiff's Initial Disclosures and Civil RICO Case Statement did your office offer to dismiss the claims against Mr. Norcross and the Democrat [sic] Committee, but on the condition that all claims for fees, costs and sanctions against plaintiff and your firm be released and discharged. The offer of dismissal subject to the conditions was declined. Id. As a result of Mr. Tambussi's December 17, 1998, letter, the Court received a plaintive missal from Mr. Valenti, requesting an adjournment of the return date of the motion. See Letter to the Court from Mr. Valenti (dated Dec. 18, 1998). In his letter, Mr. Valenti complained: [I]t is this firm's position that the motion filed by Mr. Tambussi is without merit and has been filed for an improper purpose. The motion includes a request for relief pursuant to Fed.R.Civ.P. 11 and it is this firm's contention that Mr. Tambussi utterly failed to comply with the "safe harbor" provisions of that rule. Further it is our position that the motion has been filed for the improper purpose of intimidating Plaintiff and as an attempt to force Plaintiff's counsel to reveal attorney-client privileges and work-product during the course of an ongoing litigation. Id. I subsequently granted the requested extension, and adjourned the return date of the motion until January 29, 1999. See Letter of the Court to all Counsel of Record (dated Dec. 18, 1998). Much to the Court's dismay, the "informal letter briefing" did not end with Mr. Valenti's letter of December 18, 1998. On January 11, 1999, although the opposing papers of counsel for Farris were not due until January 15, 1999, see L. Civ. R. 7.1, I received a letter from Mr. Tambussi informing me that "no opposition to the motion [for sanctions] ha[d] been received." See Letter to the Court from Mr. Tambussi (dated Jan. 11, 1999). Mr. Tambussi further wrote: [D]efendants respectfully advise the Court that the Fed.R.Civ.P. 11 request for sanctions is withdrawn without prejudice. Defendants do not withdraw the request for relief made pursuant to 28 U.S.C. § 1927 and the inherent power of the Court. Defendants respectfully submit that the Court has the authority pursuant to Fed.R.Civ.P. 11(c)(1)(B) to address the specific conduct of plaintiff and plaintiff's counsel as set forth in the record provided to the Court and therefore obviate any protestations by plaintiff's counsel that adequate notice has not been provided and service was somehow defective under the circumstances. Id.[16] Against this backdrop of trench warfare, I must consider Mr. Tambussi's motion for 334 sanctions. "Before a court can order the imposition of attorneys' fees under § 1927, it must find wilful bad faith on the part of the offending attorney." Thomason v. Norman E. Lehrer, P.C., 182 F.R.D. 121, 132 (D.N.J.1998) (quoting Williams v. Giant Eagle Markets, Inc., 883 F.2d 1184, 1191 (3d Cir.1989)). "Sanctions under section 1927 should only be imposed `in instances of a serious and studied disregard for the orderly process of justice.'" Thomason, 182 F.R.D. at 132 (quoting Williams, 883 F.2d at 1191). Similarly, before a court can impose the sanction of attorneys' fees against an opposing attorney, pursuant to the Court's inherent powers, the Court must find that opposing counsel "acted in bad faith." Angelico v. Lehigh Valley Hosp., 184 F.3d 268, 279 (3d Cir.1999) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 45, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991)). In addition, before the Court may resort to exercising its inherent power to sanction an offending attorney or party for bad faith conduct, the Court must first must look to the Federal Rules of Civil Procedure and applicable statutes to "ensure that the sanction is tailored to address the harm identified." Klein v. Stahl GMBH & Co., 185 F.3d 98, 111 (3d Cir.1999) (quoting Republic of the Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 73 (3d Cir.1994)). The crux of Mr. Tambussi's motion for sanctions is that the allegations against Defendants, Norcross and the CCDC, contained in the Complaint lack evidentiary support, even after conducting significant discovery. See Brief in Support of Motion for Sanctions at 17-18. Although this contention may state a colorable claim for violation of Rule 11(b) of the Federal Rules of Civil Procedure, Mr. Tambussi has specifically stated that the motion for sanctions is brought under § 1927, and not Rule 11. See Letter to the Court from Mr. Tambussi (dated Jan. 11, 1999). I decline Mr. Tambussi's invitation to sanction counsel for Farris "sua sponte," pursuant to Rule 11(c)(1)(B). See id. To do so would allow Mr. Tambussi to circumvent the "safe harbor" requirement of the Rule. See Fed.R.Civ.P. 11(c); See Barber v. Miller, 146 F.3d 707 (9th Cir.1998) (holding that defendant's failure to comply with Rule 11's "safe harbor" provision barred award of sanctions); Elliott v. Tilton, 64 F.3d 213, 216 (5th Cir.1995) (same); Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1328 (2d Cir.1995) (same). While Farris has surely pleaded his claims against Norcross and the CCDC in a fractured and confusing manner, see Compl.; see also § IV.A.1.a-d supra, the allegations of the Complaint do not constitute a "`serious and studied disregard for the orderly process of justice.'" Thomason, 182 F.R.D. at 132 (quoting Williams, 883 F.2d at 1191). In addition, as the Court has previously discussed, whether 335 Farris has produced admissible evidence in support of his claims against Norcross and the CCDC depends upon the complicated application of the Federal Rules of Evidence, which will turn on the credibility of the witnesses. See § II.A.1.a supra. While Farris and his counsel have certainly failed to produce an overwhelming body of evidence to support their claims against Norcross and the CCDC, an examination of the factual record in this case does not warrant the conclusion that counsel for Farris "intentionally advance[d] ... baseless contention[s] ... for an ulterior purpose, such as harassment or delay[.]" Ford v. Temple Hosp., 790 F.2d at 347; see also Ellison v. Shenango Inc. Pension Bd., 956 F.2d 1268, 1276 (3d. Cir.1992). To be sure, the inartful and confusing pleading of Farris's claims will not win any prizes for legal advocacy. Moreover, the "checkered" pedigree of Farris's evidence may ultimately require this Court to grant Norcross and the CCDC summary judgment; but Farris's claims advanced by his counsel do not constitute bad faith, within the meaning of § 1927. Accordingly, because I find that counsel for Norcross and the CCDC have failed to demonstrate that Farris's attorneys acted in bad faith, the motion for sanctions, attorneys' fees and costs, pursuant to 28 U.S.C. § 1927, shall be denied. Similarly, the finding of a lack of bad faith by Farris's counsel precludes this Court from considering whether counsel for Farris should be sanctioned pursuant to the Court's inherent powers, Klein, 185 F.3d at 111; Angelico, 184 F.3d at 279. Accordingly, I shall deny the motion for sanctions brought pursuant to this Court's inherent powers. 2. Camden County's Motion for Summary Judgment Camden County contends that it is entitled to "summary judgment dismissing all claims against it." See Notice of Motion (Apr. 3, 1999). Farris has alleged eleven causes of action against Camden County, specifically: (1) Count I, rescission or reformation of the renegotiated leases on the basis of economic duress; (2) Count II, rescission or reformation of the renegotiated leases on the basis of fraud and fraudulent misrepresentation; (3) Count III, rescission or reformation of the renegotiated leases on the basis of unconscionability; (4) Counts IV and V, breach of the original leases; (5) Count VI, common law fraud; (6) Count VII, breach of contract and conversion arising out of the assignment of rents to Commerce Bank; (7) Count XI, breach of the duty of good faith and fair dealing; (8) Count XIII, civil conspiracy to defraud Plaintiff; (9) Count XVII, civil conspiracy to extort political contributions from Plaintiff; and (10) Count XIX, civil conspiracy to deprive Plaintiff of his real property. See Compl. In resolving the County's motion for summary judgment, I will consider these claims in seriatim. a. Count I, Rescission or Reformation on the basis of Economic Duress In Count I of the Complaint, Farris alleges that Camden County engaged in "coercive and oppressive tactics" in renegotiating the leases "as to cause Plaintiff to do what his free will would have otherwise refused and enter into the renegotiated [leases]." See Compl., ¶¶ 77, 79. Farris alleges that Camden County's coercive and oppressive tactics included: (1) withholding rent due under the original leases; (2) requiring Farris to accept a reduced rental rate and a thirty-day termination provision in the renegotiated leases as a condition of receiving rent due under the original leases; and (3) threatening, during renegotiations, to vacate the 1300 Building immediately and to relocate its operations to the RCA building, even though the County knew that the RCA building could not accommodate the County in April, 1992. See Compl., ¶¶ 42-53. Farris further alleges that, because he entered into the renegotiated leases under duress, he is entitled to rescission or reformation of the leases, receiving as damages "the difference between what [he] received pursuant to the renegotiated 1300 Building 336 lease and that which [he] would have received for the remaining term of the original 1300 Building [l]eases, plus what plaintiff would have received for the remaining term of the [r]enegotiated [l]ease under lease terms that were the same as the original 1300 Building [L]eases." See Compl., ¶ 83. In addition, Farris claims that he "is entitled to the difference between what [he] received pursuant to the [renegotiated] 1350 Building [l]ease ... and the fair rental value [of the property]." Id., ¶ 82. In support of its motion for summary judgment, Camden County contends that the evidence in the summary judgment record demonstrates that Farris cannot establish that he was acting under economic duress at the time he entered into the renegotiated leases. See County of Camden's Brief in Support of Motion for Summary Judgment (filed Apr. 30, 1999), at 16-18 ("County's Brief"). The County further contends that Farris's claims for rescission and reformation of the renegotiated leases, and for breach of the original leases are barred by the doctrines of waiver and equitable estoppel. See id. at 18-20. Rescission and reformation are equitable remedies designed "to restore the parties to the status quo ante and prevent the party who is responsible for the [wrongdoing] from gaining a benefit." Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 612, 560 A.2d 655 (1989) (citing Enright v. Lubow, 202 N.J.Super. 58, 72, 493 A.2d 1288 (App.Div.1985)). "To qualify for the equitable relief sought, the party must show special circumstances justifying a departure from the generally controlling principle that parties are bound by the contracts they make for themselves." Intertech Assocs., Inc. v. City of Paterson, 255 N.J.Super. 52, 59-60, 604 A.2d 628 (App.Div.1992) (citations and internal alterations omitted). "Ordinarily, contracts may only be rescinded [or reformed] where there is original invalidity, fraud, failure of consideration or a material breach." Notch View Assocs., A.D.S. v. Smith, 260 N.J.Super. 190, 197, 615 A.2d 676 (Law Div.1992) (citations omitted); see Bonnco Petrol, 115 N.J. at 611, 560 A.2d 655 (stating that a court must choose between rescission and reformation). "[E]ven where the grounds for rescission [or reformation] exist, the remedy is discretionary and will not be granted where the claimant has not acted within a reasonable time or where there has been substantial performance." Notch View Assocs., 260 N.J.Super. at 198, 615 A.2d 676 (citations omitted). "Although ... not an absolute requirement," Id. at 198, 615 A.2d 676, "the court must be able to return the parties to their original position." Id. at 197, 615 A.2d 676. A plaintiff seeking rescission or reformation must prove by clear and convincing evidence his right to the equitable remedy. See Esoldi v. Esoldi, 930 F. Supp. 1015, 1021 (D.N.J.1996) (Bassler, J.). In Count I, Farris claims that the renegotiated leases were invalid at the time of their formation due to economic duress. See Compl., Count I. Under New Jersey law, "an otherwise enforceable contract may be invalidated on the ground that it was entered into under `economic duress.'" Glenfed Financial Corp. v. Penick Corp., 276 N.J.Super. 163, 172, 647 A.2d 852 (App.Div.1994) (citing Continental Bank v. Barclay Riding Academy, Inc., 93 N.J. 153, 175, 459 A.2d 1163 (1983)). "[E]conomic duress requires an assent by one party to an improper or wrongful demand by another under circumstances in which the former has little choice but to accede to the demand, i.e., to do what he otherwise would not have done." Continental Bank, 93 N.J. at 176, 459 A.2d 1163 (internal quotations and citation omitted). "[T]he `decisive factor' is the wrongfulness of the pressure exerted." Id. at 177, 459 A.2d 1163. "The term `wrongful' in this context encompasses more than criminal or tortious acts, for conduct may be legal but still oppressive[;] ... acts and threats ... are wrongful, [although] not necessarily 337 in a legal, but in a moral or equitable sense." Id. (quoting Wolf v. Marlton Corp., 57 N.J.Super. 278, 287, 154 A.2d 625 (1959) (internal quotations omitted)). In Continental Bank, the New Jersey Supreme Court analyzed the doctrine of economic duress as follows: Each case must be examined to determine if the threatening party acted wrongfully. The situations are so varied that one cannot be sure of a simple formula.... One point has tended to become more certain: Where there is adequacy of consideration, there is generally not duress. Whenever a party to a contract seeks the best possible terms, there can be no rescission merely upon the grounds of "driving a hard bargain." Merely taking advantage of another's financial difficulty is not duress. Rather, the person alleging financial difficulty must allege that it was contributed to or caused by the one accused of coercion. Under this rule the party exerting pressure is scored only for that for which he alone is responsible. Continental Bank, 93 N.J. at 177, 459 A.2d 1163 (citing 13 Williston, Contracts, § 1617 at 708 (3d ed.1970)) (internal quotations and additional citations omitted). Consistent with this case-by-case analysis, the existence of "duress is ... one of fact in the particular case, to be determined on consideration of the surrounding circumstances, such as age, sex, capacity, state of health, temperament, situation and relation of parties[.]" McBride v. Atlantic City, 146 N.J.Super. 498, 506, 370 A.2d 69 (Law Div.1974), aff'd, 146 N.J.Super. 406, 370 A.2d 20 (App.Div. 1975), aff'd 72 N.J. 201, 370 A.2d 1 (1976). In addition, "basic to the legal concept of duress, proceeding as it does from the unreality of the apparent consent, the controlling factor is the condition, at the time, of the mind of the person subjected to the alleged coercive measures, rather than the means by which the given state of mind was induced, and thus the test is essentially subjective." McBride, 146 N.J.Super. at 503, 370 A.2d 69 (citing Rubenstein v. Rubenstein, 20 N.J. 359, 120 A.2d 11 (1956)); see also Shanley & Fisher v. Sisselman, 215 N.J.Super. 200, 212, 521 A.2d 872 (App.Div.1987) (discussing fact sensitive analysis of duress and stating that "the court should be particularly hesitant in granting summary judgment where questions dealing with subjective elements such as ... duress are involved"); accord Abraham, 183 F.3d at 287 ("Cases that turn crucially on the credibility of witnesses' testimony in particular should not be resolved on summary judgment."). Camden County contends that, because the renegotiated leases were supported by consideration, namely an initial rental term of $9.00 per square foot, "[i]t is ... apparent as a matter of law that ... economic duress cannot be a defense to enforcement [of the renegotiated leases]." See County's Brief at 18 (citation omitted). The County's contention is without merit. While the Continental Bank court did discuss the adequacy of consideration as a factor to be considered in determining the existence of economic duress, 93 N.J. at 177, 459 A.2d 1163, the adequacy of the consideration is not the decisive factor. Rather, the decisive factor is the wrongfulness of the pressure exerted. Id. In other words, the key inquiry is whether the County "contributed to or caused" Farris's financial difficulty. Id. (citations omitted). In this case, there is disputed evidence in the summary judgment record that the County was withholding rent due under the original leases to force Farris to agree to the reduced rental rate and the thirty-day termination provision in the renegotiated leases. See Farris Dep. (Aug. 12, 1998) at 335; Valenti Cert., Exh. 13 at 70-71. While the County's withholding of rents was not the only cause of Farris's financial distress, see County's Brief at 10-11 (listing the judgments obtained by Farris's creditors), it certainly "contributed to" his financial difficulties. Continental Bank, 93 N.J. at 177, 459 A.2d 1163. The 338 disputed issues of material fact surrounding the County's purpose in withholding the rent due on the 1300 and 1350 Buildings, as well as the credibility of Farris's testimony that he was coerced into renegotiating the original leases, see Farris Dep. (Aug. 12, 1998) at 335; see also Sasala Dep. at 29-31, cannot be resolved on a motion for summary judgment. See Abraham, 183 F.3d at 287; Shanley & Fisher, 215 N.J.Super. at 212, 521 A.2d 872. Because claims for rescission and reformation are equitable remedies, these issues of fact must be resolved, not by a jury, but by the Court, sitting in equity, after a trial on the merits of Farris's claim for rescission or reformation of the renegotiated leases. The County contends, in the alternative, that by entering into the renegotiated leases, Farris waived his right to seek rescission or reformation of the renegotiated leases on the basis of duress. See County Brief at 18-19. The County further contends that Farris should be equitably estopped from seeking reformation or rescission because he has taken a position which is materially different from the position he took in entering into the renegotiated leases. See County's Brief at 20. Both of these contentions are without merit. Under New Jersey law: Waiver is the intentional relinquishment of a known right. It implies an election by a party to forego some advantage which he might have otherwise demanded. It presupposes full knowledge of the right and an intentional surrender, and it cannot be predicated on consent given under a mistake of fact. However, an intention to waive need not be manifested expressly but may be spelled out from a state of facts exhibiting full knowledge of the circumstances producing a right and continuing indifference to exercise of that right. Judicial estoppel is a preclusion by law against the taking of a position inconsistent with that previously assumed and intended to influence the conduct of another, if such repudiation would not be responsive to the demands of justice and good conscience and would work prejudice and injury to another. It differs from a waiver in that waiver operates unilaterally without regard to the rights of others or to reliance by others. Belfer v. Merling, 322 N.J.Super. 124, 139, 730 A.2d 434 (App.Div.1999) (citations and internal quotations omitted). Because waiver involves the subjective intention of a party to relinquish a known right, Shanley & Fisher, 215 N.J.Super. at 212, 521 A.2d 872, "waiver is basically a question of intention, and usually a matter for the trier of fact." Garden State Buildings, L.P. v. First Fidelity Bank, N.A., 305 N.J.Super. 510, 524, 702 A.2d 1315 (App.Div.1997) (citations omitted). Essentially, the County asks this Court to find that Farris waived his right to seek reformation or rescission of contracts which he alleges that he entered into under duress. Applying the County's logic, all claims challenging the validity of a contract would be waived upon execution of the allegedly invalid contract. Such a rule of law would preclude a party coerced into agreeing to a contract from asserting a claim for its rescission or reformation. "The mere statement of such a proposition is its own refutation." RTC Mortgage Trust 1994 N-1 v. Fidelity National Title Ins. Co., 58 F. Supp. 2d 503, 523 (D.N.J. 1999) (Orlofsky, J.). In addition, Farris repeatedly testified that he felt that he "was forced to sign th[e renegotiated] lease[s.]" See Farris Dep. (Aug. 12, 1998) at 335. Thus, there is clearly conflicting evidence in the summary judgment record on the issue of whether Farris "elect[ed] ... to forego some advantage which he might have otherwise demanded[,]" namely, the right to sue for rescission or reformation on the basis of duress. Belfer, 322 N.J.Super. at 139, 730 A.2d 434. Whether or not Farris intended to waive his legal remedies is an issue that goes to the credibility of Farris's testimony; as such, it is a question which 339 must be resolved at trial, and not on a motion for summary judgment. See Abraham, 183 F.3d at 287; Shanley & Fisher, 215 N.J.Super. at 212, 521 A.2d 872. Similarly, it would be unreasonable to find Farris's claim for rescission or reformation on the basis of duress barred by the doctrine of equitable estoppel. The County contends that it reasonably and justifiably relied on the fruits of its allegedly coercive and oppressive conduct. See County's Brief at 20. As Farris correctly points out, "[a] prerequisite of equitable estoppel is the good faith reliance by one party on the conduct of another to the detriment of the relying party." See Plaintiff's Brief in Opposition to County of Camden's Motion for Summary Judgment (filed Apr. 30, 1999) at 38 ("Pl. County Brief") (citing Lizak v. Faria, 96 N.J. 482, 499, 476 A.2d 1189 (1984)); see also Hakimoglu v. Trump Taj Mahal Assocs., 876 F. Supp. 625, 638 (D.N.J.1994) (Simandle, J.), aff'd 70 F.3d 291 (3d Cir.1995) ("Estoppel ... is designed to prevent an injustice where an innocent party has relied upon a misrepresentation to his detriment[;] ... [s]ubstantial, detrimental reliance is not enough[,] only justified and reasonable reliance warrant application of equitable estoppel") (citations and internal quotations omitted); Plemmons v. New Jersey Auto. Full Ins. Underwriting Ass'n, 263 N.J.Super. 151, 160, 622 A.2d 275 (App.Div.1993); Lehen v. Atlantic Highlands Zoning Bd. Of Adjustment, 252 N.J.Super. 392, 400, 599 A.2d 1283 (App.Div.1991). Clearly, one cannot reasonably rely in good faith on a benefit wrongfully obtained. Therefore, I conclude that genuine disputed issues of material fact exist as to whether Farris entered into the renegotiated leases under economic duress. Accordingly, I shall deny Camden County's motion for summary judgment on Count I of the Complaint. b. Count II, Rescission or Reformation on the Basis of Fraud and Misrepresentation In Count II of the Complaint, Farris alleges that employees of the County, namely, Benton and Mitchell, made fraudulent misrepresentations during the renegotiations of the leases, to induce Farris to accept the reduced rental rate and the thirty-day termination provision. See Compl., Count II. Specifically, Farris contends that Benton and Mitchell made the following fraudulent misrepresentations: (1) "that there was space available in the RCA Building which Camden County could move into virtually rent free ..."; (2) that the County "would vacate the Plaintiff's premises unless Plaintiff agreed to the County's terms[;]" and (3) "that the terms Camden County was demanding in connection with the [renegotiated leases], including the downward spiraling rental rates and the 30 day termination clause ... [were] required by and in accordance with new guidelines and requirements established by Camden County...." See Compl., ¶¶ 85-87. Based on these allegations, Farris claims that he is entitled to rescission or reformation of the renegotiated leases. See id., Count II. In support of its motion for summary judgment, the County contends that Farris "labors under the misimpression that the County's statements[, that it was exploring the possibility of consolidating all operations in the former RCA building,] were false." See County's Brief at 13. Camden County contends that the evidence in the summary judgment record establishes that "[t]he County's interest in the RCA building unquestionably was genuine and persisted well beyond the date when the renegotiated lease was executed." Id. at 14 (citations omitted). "Both rescission and reformation are available remedies in an action for equitable fraud." Esoldi, 930 F.Supp. at 1021. "Fraud in the equitable sense differs from fraud in the legal sense because it does not require proof of scienter." Id. In Bonnco Petrol, the New Jersey Supreme Court discussed the difference between legal and equitable fraud, stating: 340 A misrepresentation amounting to legal fraud consists of a material representation of a presently existing or past fact, made with knowledge of its falsity and with the intention that the other party rely thereon, resulting in reliance by that party to his detriment. The elements of scienter, that is, knowledge of the falsity and an intention to obtain an undue advantage therefrom, are not essential if plaintiff seeks to prove that a misrepresentation constituted only equitable fraud. Thus whatever would be fraudulent at law will be so in equity; but the equitable doctrine goes farther and includes instances of fraudulent misrepresentations which do not exist in the law. Bonnco Petrol, 115 N.J. at 609, 560 A.2d 655 (internal quotations and citations omitted); see also Esoldi, 930 F.Supp. at 1021. "In New Jersey, the five elements of common-law fraud are: (1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Lithuanian Commerce Corp., 179 F.R.D. at 475-76 (quoting Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610, 691 A.2d 350 (1997) (citing Jewish Center of Sussex County v. Whale, 86 N.J. 619, 624-25, 432 A.2d 521 (1981))) (internal quotations omitted). Thus, to state a claim for rescission or reformation on the basis of equitable fraud, "it is not necessary for [Farris] to establish that [the County and its agents] had an intent to defraud." Esoldi, 930 F.Supp. at 1021. Applying this standard, it is clear that genuine issues of material fact exist precluding the entry of summary judgment on Count II of the Complaint. As the County correctly points out, Mitchell testified that he was directed to renegotiate Farris's leases to include a thirty-day termination clause to enable the County to relocate its operations in the RCA building, when that space became available in early to mid 1992. See Mitchell Dep. at 62-63, 70; see also Coyne Cert., Exh. F (Camden County Internal Memorandum (dated June 16, 1992) (discussing County's prospective purchase of the RCA building)); Benton Dep. at 118. In addition, in Mitchell's surreptitiously taped telephone conversations with Willis, Mitchell informed Willis that the County was seriously considering relocating to the RCA building, but that it was unlikely that any move would happen quickly given that the RCA building would require substantial renovation. See Valenti Cert., Exh. 15 (Transcript at 19-22). Moreover, Sasala testified that, in 1991, it was the County's intention to consolidate office space in the RCA building. See Sasala Dep. at 18-20. Thus, the County correctly contends that the undisputed evidence in the summary judgment record demonstrates that the County had a genuine interest in relocating its operations to the RCA building. This evidence, however, is not dispositive of Farris's claim for equitable fraud. The fraud of which Farris complains is that Benton and Mitchell, on behalf of the County, represented that if he did not agree to the more onerous terms of the renegotiated leases, the County would immediately move out of the 1300 Building and into the RCA building. See Farris Dep. (Aug. 12, 1998) at 331-34. Specifically, Farris testified: Q: [By Mr. Tambussi] Do you know whether or not in late '91 or early '92 the County could have moved into the old RCA Building? A: [By Farris] It was my understanding from Tom Mitchell that they could not. When it was all over after the leases were signed, [Mitchell] said to me, "They couldn't have moved in there, because there was a certain stipulation with the RCA Building that they didn't want" and I'll just put in parentheses "that kind, the kind of traffic that 341 my building was getting in the RCA Building." . . . . . Q: Now, you understand that in the event that you didn't sign the [renegotiated] lease, it was your understanding that the County would leave, correct? A: That's correct. See id. at 334, 339; see also Coyne Cert., Exh. F (Camden County Internal Memorandum (dated June 16, 1992) (discussing use restrictions on RCA building due to environmental concerns)); Sasala Dep. at 66 (testifying that the RCA building "was not habitable for which the County wanted to use it for at that time"). Farris also testified: A: [By Farris] [Benton] told me, he said, "Are you aware that the County can move into the old RCA building?" ... And [Benton also] said, "It was in your best interest ... to renegotiate with the County, or they're going to move, and you're going to be out a lot of money." See Farris Dep. (Aug. 12, 1998) at 332. In his deposition, Benton denied making any such statements to Farris. See Benton Dep. at 118-19. Benton further testified that he was not aware of whether the RCA building was available for the County to move its offices in the spring of 1992. See id. at 119. Thus, while the evidence in the summary judgment record establishes that the County was genuinely interested in moving its offices from the 1300 Building to the RCA building, there are disputed issues of material fact as to whether the County represented to Farris that it would move or could move its operations to the RCA Building immediately, i.e., in April, 1992, if Farris did not execute the renegotiated lease. See Sasala Dep. at 64-66 (testifying that the RCA Building was "not a viable alternative" for the County). Therefore, although this Court sits in equity in resolving Farris's claim for rescission or reformation on the basis of fraud, given these factual disputes, I cannot determine, without taking testimony and assessing the credibility of the witnesses, whether Benton and/or Mitchell made material misrepresentations of a presently existing fact, specifically, the immediate availability of the RCA building. Accordingly, I shall deny Camden County's motion for summary judgment on Count II of the Complaint. c. Count III, Rescission or Reformation on the Basis of Unconscionability In Count III of the Complaint, Farris alleges that the renegotiated lease, containing the reduced rental rate and the thirty-day termination provision, was unconscionable. See Compl., Count III. In a parenthetical to its Reply Brief, the County states in a most conclusory fashion that "the lease terms were not manifestly unfair or oppressive." See Reply Brief of County in Support of Motion for Summary Judgment (filed Apr. 30, 1999) at 4 ("County's Reply Brief") (citing Howard v. Diolosa, 241 N.J.Super. 222, 230, 574 A.2d 995 (App.Div.1990)). "A contract is unenforceable [as unconscionable] if its terms are manifestly unfair or oppressive and are dictated by a dominant party." Howard, 241 N.J.Super. at 230, 574 A.2d 995 (citation omitted). A "[p]laintiff must demonstrate unconscionability by showing some overreaching or imposition resulting from a bargaining disparity between the parties, or such patent unfairness in the contract that no reasonable person not acting under compulsion or out of necessity would accept its terms." Id. (citations omitted). In Lithuanian Commerce Corp., I noted that "[d]espite the passage of years, courts in New Jersey remain unable to decide whether the existence of substantially equal bargaining power is a question of law for the court or a question of fact for the jury." See Lithuanian Commerce Corp., 179 F.R.D. at 475 n. 13 (citations omitted). I did not have to resolve this issue in Lithuanian Commerce Corp. because 342 I concluded that no material facts were in dispute. In this case, I also need not resolve the issue, but for a different reason. Farris's allegation of unconscionable contract terms is made in the context of a claim for rescission or reformation of the renegotiated leases. See Compl., Count III. Because the Court sits in equity in considering this claim, Bonnco Petrol, 115 N.J. at 612, 560 A.2d 655, the ultimate resolution of both questions of fact and law posed by Farris's allegation of unconscionability must be resolved by the Court. Viewed in a vacuum, the reduced rental rate and the thirty-day termination clause contained in the renegotiated leases are not patently unfair. Clearly, the renegotiated leases were supported by consideration, specifically, an initial rental rate of $9.00 per square foot. In addition, the thirty-day termination clause, while only providing for a brief notice period did not render the contract illusory. Cf. Linan-Faye Construction Co., Inc. v. Housing Authority of the City of Camden, 49 F.3d 915, 924 (3d Cir.1995) (discussing illusory nature of termination provisions in government contracts); cf. also Evans v. London Assur. Corp., 107 N.J.L. 183, 186, 151 A. 613 (1930) (discussing the requirement of mutuality of obligations in real property contracts). Considering these terms in context with the entire renegotiation transaction, however, I conclude that I cannot resolve this claim on a motion for summary judgment because disputed issues of material fact remain. The record contains evidence that, during the renegotiation of the 1300 Building lease, the County originally offered Farris five dollars a square foot as the rental rate, see Farris Dep. (Aug. 12, 1998) at 331, and that Farris rejected the offer. See id. This "negotiating" suggests that genuine bargaining over the terms of the renegotiated lease took place. The summary judgment record, however, also contains evidence that Bezich, Mitchell, and Sasala unilaterally determined the downward spiraling rental rate would be $9.00, $8.75, and $8.50, see Mitchell Dep. at 150, 151-57; Sasala Dep. at 96, and that this rental term was "dictated" to Farris by the County as nonnegotiable during the renegotiation transaction. See Mitchell Dep. at 160 ("take it or leave it"). In addition, with regard to the thirty-day termination clause, Mitchell testified that he believed that the clause made the renegotiated lease worthless to Farris given his financial difficulties. Specifically, Mitchell testified: [I]f you were a landlord and you're holding a lease of mine that, number one, says that it's a five year lease, but every year the freeholder board comes through ... saying to Mr. Landlord, we're not going to appropriate and make available those funds, we're cutting this program all out, you don't have a lease even though it says five years on the paper. And even more so, if you have the lease that has a 30-day out clause in it, if you try to take that lease to a bank to get financing on your property, the bank's going to laugh at you. So what I said in [the tape recorded telephone call with Willis], that basically what the landlord is holding is shit, in a way it's true. They have a non-bankable lease. See Mitchell Dep. at 223-24. Mitchell also testified that the County was in a superior bargaining position during the renegotiations. He stated: The county was in a particular position with [the] Admiral Wilson Boulevard [properties] ... We were the majority of the tenants of those spaces. As a result, obviously Mr. Farris ... wanted the county to continue to rent space in those facilities ... Once we got done speaking with Mr. Farris and he was thinking about whether he was going to accept the lower rents, I received a call from both Bezich and also from Sasala telling me that I had to get back in touch with Mr. Farris and advise him that there 343 had to be a 30-day out clause in the new lease. See id. at 221-22 (emphasis added). This evidence of superior bargaining power is contradicted by other portions of Mitchell's deposition testimony. Mitchell testified that when he informed Willis of the County's requirement that the renegotiated 1300 Building lease contain a thirty-day termination clause, Willis, on behalf of Farris, demanded that the clause be reciprocal. See Mitchell Dep. at 222-23. This was a demand to which Bezich, on behalf of the County, acceded. See id. at 223. Thus, given the conflicting evidence in the summary judgment record regarding the renegotiations involving the reduced rental rate and the thirty-day termination clause, I conclude that the Court cannot resolve Farris's claim for rescission or reformation of the renegotiated leases on the basis of unconscionability on a motion for summary judgment. In addition, considering this conflicting evidence in the summary judgment record, as well as the disputed issues of material fact involving the County's alleged conduct in contributing to Farris's economic duress, see § IV.A.2.a supra, and alleged fraudulent misrepresentations during the renegotiation process, see § IV.A.2.b supra, it is clear that Count III must be tried before me so that the Court can take evidence, hear testimony, and assess the credibility of the witnesses first hand on the issue of unequal bargaining power. See Abraham, 183 F.3d at 287. Accordingly, I shall deny the County's motion for summary judgment on Count III of the Complaint. d. Count IV, Breach of the Original 1300 Building lease Farris alleges in Count IV of the Complaint that "[b]y failing to comply with the original 1300 Building Lease, and coercing and frauding [sic] Plaintiff into entering into the [r]enegotiated 1300 Building Lease, Defendant Camden County breached the original 1300 Building Leases thereby causing Plaintiff to sustain damages." See Compl., ¶ 106. Farris further alleges that "Camden County further breached the 1300 Building Leases by consistently failing to pay rent when it became due." Id., ¶ 107. In support of its motion for summary judgment, Camden County does not specifically address Farris's claim for breach of the original 1300 Building leases. Obliquely, in its memorandum of law in support of its motion for summary judgment, the County contends that there was nothing wrongful in seeking to renegotiate its leases with Farris prior to their expiration. See County's Brief at 12. The County, however, does not address Farris's allegation that its persistent failure to pay rent when due constituted a breach of the 1300 Buildings leases. See Compl., ¶ 107. The County does contend that Farris's "assent to the renegotiated lease certainly amounts to an intentional waiver of any rights derived from the original leases[,] i.e., a waiver of any claim for breach of the original 1300 Building lease". See County Brief at 19. In addition, the County contends that Farris should be equitably estopped from asserting any claims under the original 1300 Building leases. See id. at 20. Whether or not Farris waived his rights to sue for breach of the original 1300 Building leases, or should be estopped from doing so, depends on the propriety of the renegotiations of those leases. If, as he alleges, Farris entered into the renegotiated leases due to economic duress and fraud, see § IV.A.2.a supra, then clearly Farris did not waive his rights under the original leases, and Farris was not estopped from asserting a claim for breach because the County could not reasonably rely on the renegotiated leases. See id. Thus, for the reasons set forth in section IV.A.2.a supra, I conclude that the following disputed issues of material fact exist precluding the entry of summary judgment on Count IV of the Complaint: (1) whether Farris waived his rights under the original leases by entering into the 344 renegotiated leases; and (2) whether the County relied in good faith on the renegotiated leases such that Farris should be estopped from asserting a claim for breach of the original 1300 Building lease. See Abraham, 183 F.3d at 287; Shanley & Fisher, 215 N.J.Super. at 212, 521 A.2d 872; see also Hakimoglu, 876 F.Supp. at 638. Accordingly, I shall deny Camden County's motion for summary judgment on Count IV of the Complaint. e. Count V, Breach of the Original 1350 Building Lease In Count V of the Complaint, Farris alleges a claim for breach of the original 1350 Building lease, entered into in October, 1991. See Compl., Count V. Specifically, Farris alleges that "[b]y vacating the premises prior to the end of the lease term and failing to make lease payments pursuant to the 1350 Building Lease as they became due, Camden County breached the 1350 Building Lease constituting a breach of contract by reason of which Plaintiff sustained damage." See id., ¶ 112. Camden County contends that Farris waived any claim he had for breach of the 1350 Building lease "[b]y accepting the settlement in April of 1992 and executing [another] lease [for the 1350 Building] in November of 1992[.]" See County's Reply Brief at 6. The County further contends that its failure to pay rent on the 1350 Building was justified by the terms of the lease, which provided that it was "mutually understood and agreed between the parties that all financial obligations undertaken by the [County] under [the 1350 Building] lease including, but not limited to rent, [were] subject to the availability and appropriation of sufficient funds by the by the Board of Chosen Freeholders ..." See id. at 5; see also Valenti Cert., Exh. 13 (1350 Building Lease (dated Oct. 10, 1991), ¶ 27). On April 1, 1992, the County informed Farris by letter that "[t]he Board of Chosen Freeholders of the County of Camden in its adoption of the 1992 Temporary Budget and its proposed 1992 Permanent Budget failed to make available or appropriate funds for the rental of 1350 Admiral Wilson Boulevard for the year 1992." See Valenti Cert., Exh. 14 (Letter to Rahn J. Farris from Thomas A. Mitchell (dated Apr. 1, 1992)). The April 1, 1992, letter further informed Farris that, due to the unavailability of appropriated funds, the County was terminating the 1350 Building lease. See id. In addition, Farris admits in his Complaint that "on April 30, 1992, the three months [rent due] on the 1350 Building [was] paid." See Compl., ¶ 62; see also Valenti Cert., Exh. 15 (Transcript at 24, 30); Coyne Cert., Exh. E (Memorandum from Louis S. Bezich to Jeffrey L. Nash and James Beach (dated April 2, 1992)); Bezich Dep. at 80-90. A close reading of Count V reveals that Farris's specific claim for breach is limited to the County's failure to pay rent as it became due in January, February, and March, 1992, and the County's decision to vacate the premises prior to the expiration of the lease term. See Compl., ¶ 112. Given the undisputed evidence in the summary judgment record, I conclude that the County did not breach the 1350 Building lease in the manner alleged by Farris in Count V of the Complaint.[17] The undisputed evidence in the summary judgment record establishes: (1) that the County had the right to terminate the 1350 Building lease if the funds for rental payments were not appropriated by the Board of Chosen Freeholders, see Valenti Cert., Exh. 13, ¶ 27; (2) the County gave Farris notice of the unavailability of funds, as well as notice of its decision to terminate the lease pursuant to paragraph 27, see id., Exh. 14; and (3) the County paid Farris the rent due for the months of January, February, and March, 1992. See Compl., ¶ 62. 345 Therefore, because the undisputed facts in the summary judgment record establish that the County did fulfill its rental obligations under the original 1350 Building lease for the months of January, February, and March, 1992, and that paragraph 27 of the lease agreement gave the County the right to terminate the lease for unavailability of appropriated funds, I conclude that the County did not breach the 1350 Building lease in the manner alleged in Count V of the Complaint. Accordingly, I shall grant Camden County's motion for summary judgment on Count V of the Complaint. f. Count VI, Common Law Fraud Farris's claim for common law fraud against the County is premised upon the same alleged fraudulent conduct as his claim for rescission and reformation of the renegotiated lease on the basis of equitable fraud, set forth in Count II of the Complaint, namely, that the County was prepared to vacate Farris's buildings immediately and relocate its offices to the RCA building. Compare Compl., Count VI, with Compl., Count II; see § IV.A.2.b supra. The same facts disputed with reference to Farris's claim for equitable fraud are similarly disputed in relation to Farris's claim for common law fraud. See § IV.A.2.b supra. These factual disputes, however, do not presage the denial of the County's motion for summary judgment on Count VI of the Complaint. Unlike equitable fraud, as I discussed previously in section IV.A.2.b supra, a claim for common law fraud requires Farris to establish that the County acted with scienter. Bonnco Petrol, 115 N.J. at 609, 560 A.2d 655; Esoldi, 930 F.Supp. at 1021. The elements of scienter are: (1) knowledge of the falsity of the representation; and (2) "an intention to obtain an undue advantage therefrom[.]" Bonnco Petrol, 115 N.J. at 609, 560 A.2d 655 (quoting Jewish Center of Sussex County v. Whale, 86 N.J. 619, 624-25, 432 A.2d 521 (1981)) (additional citations omitted); see also Esoldi, 930 F.Supp. at 1021. Even assuming that Farris has placed sufficient evidence in the summary judgment record demonstrating a triable issue of fact about whether the County had knowledge of the falsity of the representations alleged to have been made by Benton and Mitchell during the renegotiation transactions, I conclude that the County is entitled to summary judgment on Count VI of the Complaint. In the Complaint, Farris alleges that Camden County "is a County located in the State of New Jersey and a political subdivision thereof." See Compl., ¶ 7. The New Jersey Tort Claims Act ("NJTCA"), N.J. Stat. Ann. § 59:2-10 (West 1998), provides that "[a] public entity is not liable for the acts or omissions of a public employee constituting a crime, actual fraud, actual malice or willful misconduct." Id. The Comment to this section, which must be given "something close to binding effect[,]" Civalier by Civalier v. Estate of Trancucci, 138 N.J. 52, 67, 648 A.2d 705 (1994), "adopts the principle enunciated in O'Connor v. Harms, et al., 111 N.J.Super. 22, 26-27, 266 A.2d 605 (App.Div.1970) that: `a public corporation, such as a city or other public body, by reason of its being an artificial legal entity created by law to perform limited governmental functions, cannot entertain malice, as a public corporation.'" ABB Daimler-Benz Transp. Inc. v. National Railroad Passenger Corp., 14 F. Supp. 2d 75, 90 (D.D.C.1998) (applying New Jersey law, and holding that NJTCA bars claims for fraud, conspiracy to defraud and tortious interference, asserted against a municipal corporation); see also Martin v. Township of Rochelle Park, 144 N.J.Super. 216, 222, 365 A.2d 197 (App.Div.1976); accord Lohman v. Township of Oxford, 1992 WL 95914, at 5 (E.D.Pa. Apr.22, 1992) (applying New Jersey law); 45 Am.Jur.2d Interference § 7 (1999). Although the O'Connor court stated that the NJTCA barred claims against municipal entities where "`malice' is an essential 346 ingredient of the tort[,]" O'Connor, 111 N.J.Super. at 27, 266 A.2d 605, the principle applies with equal force to tort claims where scienter is an element of the cause of action. See ABB Daimler-Benz Transp., 14 F.Supp.2d at 90. "Malice," in the context of a tort claim, "is defined to mean that the harm was inflicted intentionally and without justification or excuse." Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 751, 563 A.2d 31 (1989) (citations omitted). Similarly, to establish scienter, in the context of a claim for common law fraud, a plaintiff must show that the defendant had an intention to obtain an undue advantage from the alleged false representation. Bonnco Petrol, 115 N.J. at 609, 560 A.2d 655. In other words, to show scienter, a plaintiff must produce evidence that the defendant acted with the intention of causing the plaintiff harm. See Esoldi, 930 F.Supp. at 1021 (equating scienter with "an intent to defraud"). Thus, the question of whether a public corporation can form the tortious intent of malice is functionally the same as whether a public corporation can form an intent to defraud. Therefore, because the NJTCA provides that a public corporation cannot, as a matter of law, entertain the tortious intent of malice, I conclude, as a matter of law, that Farris cannot assert a claim for common law fraud against the County, because the County, as a public corporation, cannot form the tortious intent of scienter. ABB Daimler-Benz Transp., 14 F.Supp.2d at 90. Accordingly, I shall grant Camden County's motion for summary judgment on Count VI of the Complaint. g. Count VII, Breach of Contract/Conversion In Count VII of the Complaint, Farris alleges a claim for breach of contract and/or conversion against the County. Specifically, Farris alleges: In or about March of 1994, [Camden County] paid various lease payments that were due Plaintiff on the Renegotiated 1300 Building lease totaling 53,740.00 directly to Commerce Bank. No assignment of lease payments for the Renegotiated 1300 lease payments [sic] there [sic] any other authorization to pay such monies directly to Commerce Bank existed and such monies rightfully belonged to Plaintiff. See Compl., ¶¶ 123-24.[18] As a preliminary matter, "[u]nder New Jersey law, a `dispute [that] clearly arises out of and relates to [a] contract and its breach' sounds in contract and not in tort." See Stewart Title Guar. Co. v. Greenlands Realty Co., 58 F. Supp. 2d 370, 386 (D.N.J.1999) (quoting Wasserstein v. Kovatch, 261 N.J.Super. 277, 286, 618 A.2d 886 (N.J.Super.Ct.App.Div.1993)). Therefore, to the extent that Count VII alleges a cause of action, if any, that cause of action is for breach of contract and not the tort of conversion. See id. The County, in support of its motion for summary judgment, does not address Count VII of the Complaint. See County's Brief; see also County's Reply Brief. "[A] party seeking summary judgment ... bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S. Ct. 2548 (citing Fed. R.Civ.P. 56(c)). Thus, the County had the initial burden to bring a properly supported motion for summary judgment on Count VII of the Complaint. It has failed to do so. 347 In addition, the contract defenses that the County does assert, namely, waiver and estoppel, cannot apply to this claim for breach of contract because the County's contentions are that, by executing the renegotiated leases, Farris waived, or should be estopped from pursuing, any claims for breach of the original leases. Surely, by executing the renegotiated 1300 Building lease in April, 1992, Farris did not waive any claims based on the County's March, 1994, breach of that lease. Therefore, I conclude that the County has failed to support properly its motion for summary judgment on Count VII of the Complaint. See Celotex Corp., 477 U.S. at 323, 106 S. Ct. 2548. Accordingly, I shall deny the County's motion for summary judgment on Count VI of the Complaint. h. Count XI, Breach of Duty of Good Faith and Fair Dealing In Count XI of the Complaint, Farris alleges that "[e]ach of the lease agreements entered into between Plaintiff and Camden County contained an implied covenant of good faith and fair dealing." See Compl., ¶ 149. Farris further alleges that the County breached this implied duty by renegotiating the 1300 Building and 1350 Building leases in bad faith, i.e., allegedly contributing to and taking advantage of Farris's economic duress, and allegedly making fraudulent misrepresentations about the immediate availability of the RCA building. See Compl., Count XI (incorporating Farris's previous allegations by reference); see also § IV.A.2.a-b. The County contends that it is entitled to summary judgment on Count XI of the Complaint because Farris waived any claims for breach of the 1300 Building and 1350 Building leases by entering into the renegotiated leases in April and November, 1992, respectively. See County Brief at 18-19; see also County's Reply Brief at 6 ("The waiver ... extends to claims of breach of contract and claims for breach of the implied covenant of good faith and fair dealing"). "The obligation to perform in good faith exists in every contract, including those contracts that contain express and unambiguous provisions permitting either party to terminate the contract without cause." Stewart Title, 58 F.Supp.2d at 385 (quoting Sons of Thunder v. Borden, Inc., 148 N.J. 396, 421, 690 A.2d 575 (1997)); see also Lithuanian Commerce Corp. 179 F.R.D. at 482. "Good faith is defined as honesty in fact in the conduct or transaction concerned." Sons of Thunder, 148 N.J. at 421, 690 A.2d 575 (quoting N.J. Stat. Ann. § 12A:1-201(19)); see also Stewart Title, 58 F.Supp.2d at 385. "The implied covenant of good faith and fair dealing imposes duties that exist as part of every contract formed in New Jersey." Stewart Title, 58 F.Supp.2d at 385 (citing Sons of Thunder, 148 N.J. at 421, 690 A.2d 575). Because the summary judgment record contains disputed issues of material fact regarding whether the County renegotiated the 1300 Building and 1350 Building leases in good faith, Camden County's motion for summary judgment on Count XI of the plaint must be denied. First, to the extent that the County contends that Farris waived his claim for breach of the implied covenant of good faith and fair dealing, or should be estopped from asserting such a claim, see County's Brief at 18-20, because he entered into renegotiated leases with the County, I conclude, for the reasons set forth in section IV.A.2.a supra, that a jury must resolve the disputed issues of fact regarding whether Farris intended to waive this claim, or whether the renegotiated leases were the product of the County's equitable fraud and contribution to Farris's economic duress. Second, independent of the issue of waiver, as I discussed above in section IV.A.2.b-f supra, disputed issues of material fact exist as to whether the County misrepresented through Benton and Mitchell, County employees acting within the scope of their employment, the availability of the RCA building in an effort to 348 induce Farris to agree to the reduced rental rate and thirty-day termination clause contained in the renegotiated leases. See § IV.A.3.b infra. Given this dispute of material fact, I cannot determine as a matter of law whether Camden County, through its authorized agents, acted with "honesty in fact in the ... [renegotiation] transaction[.]" Sons of Thunder, 148 N.J. at 421, 690 A.2d 575. Third, while the County did not breach the 1350 Building lease by terminating it due to the unavailability of appropriated funds, see § IV.A.2.e supra, the question remains whether the County should have informed Farris prior to its April 1, 1992, letter that the Board of Chosen Freeholders had not appropriated the funds necessary to make the rental payments under the 1350 Building lease. See Sons of Thunder, 148 N.J. at 421, 690 A.2d 575 (stating that a party with the right to terminate the contract must do so in compliance with the duty of good faith and fair dealing); see also Valenti Cert., Exh. 14; Coyne Cert. Exh. E; Mitchell Dep. at 146-47. In a memorandum to the Board of Chosen Freeholders, dated April 2, 1992, Bezich informed the Freeholders that the 1350 Building had been "unoccupied since January 1, 1992[,]" and that Bezich was directing Mitchell "to immediately notify [ ] Farris that [the County was] exercising the no-funding provision in the lease...." See Coyne Cert., Exh. E. Mitchell had personally delivered such a letter to Farris the day before on April 1, 1992. See Valenti Cert., Exh. 14. At his deposition, Mitchell testified that "in the beginning of 1992 [the Board of Chosen Freeholders determined] that they did not want to take occupancy of the 1350 building." See Mitchell Dep. at 200. Mitchell further testified: [In December, 1991, the County determined] that [it] definitely wanted to continue [Farris's] lease for [the] 1350 [Building] ... Unfortunately, when I determined that the funds were not available to pay Farris for the [1350 Building lease], that was complicated, because now I'm dealing with the new board and the Democrats have just taken over, a determination was made in early 1992 that the budget was not going to obtain funds in order to fund 1350; and obviously, if, in fact, the freeholder board did not appropriate and make available funds in the budget of '92 to fund the alleged lease for 1350, ... there would be no lease.... See Mitchell Dep. at 202-03. Mitchell, however, testified that in December, 1991: "I ... assured Farris ... that the fact that we were getting rid of [the County official whose program was to be housed in the 1350 Building] would in no way affect the lease of 1350." See id. at 204. Mitchell further testified that the decision to break off negotiations over the 1350 building in early 1992 was made by Bezich. See Mitchell Dep.2 at 98. Mitchell testified: Q: [By Mr. Cureton] Did you believe that the decision to not go into 1350 Admiral Wilson Boulevard was a unilateral decision made by Mr. Bezich? A. [By Mitchell] Yes. Q. What caused you to have that opinion? Did he tell you that? A. Yes. Q. When did you have this conversation with Mr. Bezich? A. I don't specifically recall. Q. Was it in or about the time that you were negotiating the lease renegotiations with Mr. Farris? A. Approximately the same time, correct. ... [A] deal, basically, was already cut for 1300 and 1350. I was advised by Lou Bezich that we were not going to occupy 1350, to cut that from the deal. See Mitchell Dep.2 at 98-101. Bezich, however, testified that he was not directly involved in the renegotiation of Farris's leases. See Bezich Dep. at 63-64, 349 67. Bezich further testified that Sasala was "handling" the renegotiation transaction. See id. at 67; see also Sasala Dep. at 22-25. Apparently contradicting himself, Bezich later testified that he did not dispute the contents of his April 2, 1992, memorandum, see Coyne Cert., Exh. E, in which he directed Mitchell to notify Farris that the County, after negotiating a continuation of the 1350 Building lease in October, 1991, was terminating the lease under paragraph 27, the unavailability of appropriated funds provision, in April, 1992. See Bezich Dep. at 89-90. In addition, Sasala testified that Bezich stated, in the context of the back rent due on the 1350 Building for the months of January, February, and March, 1992: "I'll take care of the transaction with Mr. Farris." Sasala Dep. at 30. Thus, I conclude that there are disputed material issues of fact regarding whether the County terminated the 1350 Building lease in good faith in April, 1992. There is conflicting testimony in the summary judgment record as to whether at the time that Mitchell and Sasala were renegotiating the 1300 Building lease with Farris, and notwithstanding Mitchell's assurances to the contrary, Bezich was deciding to terminate the 1350 Building lease under the unavailability of appropriated funds provision. Given these disputes of material fact, I cannot determine as a matter of law whether the County breached its duty of good faith and fair dealing in terminating the 1350 Building lease. Accordingly, I shall deny Camden County's motion for summary judgment on Count XI of the Complaint. i. Count XIII, Conspiracy to Defraud In Count XIII of the Complaint, Farris alleges a claim for civil conspiracy against the County. See Compl., Count XIII. Specifically, Farris alleges that Camden County conspired with Norcross and the CCDC to "coerce and defraud Plaintiff into entering into [the renegotiated leases]." See id., ¶ 161. In support of its motion for summary judgment, the County contends that, "[t]o support ... a claim [for civil conspiracy], plaintiff must allege some wrongdoing that would be actionable if committed by the County alone[; and] Plaintiff has failed to do so." See County's Reply Brief at 6. The County's contention that it is entitled to summary judgment is predicated upon the principle that "[a] conspiracy is not actionable absent an independent wrong[.]" Eli Lilly and Co., 23 F.Supp.2d at 497 (citing Tynan, 248 N.J.Super. at 668-69, 591 A.2d 1024); see also County's Reply Brief at 6. In section IV.A.2.f supra, I concluded that the NJTCA precludes Farris from alleging a claim for common law fraud against the County. Because a civil conspiracy is "not actionable absent an independent wrong," and because I have granted summary judgment in the County's favor on Farris's claim for common law fraud, so too I must grant summary judgment in favor of the County on Farris's claim for civil conspiracy to defraud. Eli Lilly and Co., 23 F.Supp.2d at 497. Accordingly, I shall grant the County's motion for summary judgment on Count XIII of the Complaint. j. Counts XVII and XIX, Conspiracy to Extort, Blackmail and Deprive Farris of his Real Property In Counts XVII and XIX of the Complaint, Farris seeks to allege two additional claims for civil conspiracy against Camden County. See Compl., Counts XVII, XIX. In each of these Counts, Farris alleges that the County conspired with Norcross and the CCDC to extort political contributions from Farris, and that these defendants conspired to deprive Farris of his real property, namely, the 1300 and 1350 Buildings. See id. In support of its motion for summary judgment, Camden County makes the same argument that it made with reference to Count XII, namely, that Farris has failed to "allege some wrongdoing that would be actionable if committed by the County alone." See 350 County's Reply Brief at 6. With regard to Counts XVII and XIX, I agree. As a preliminary matter, given that Farris alleges that the County conspired to commit intentional torts, extortion, blackmail and tortious interference with real property, for the reasons set forth in section IV.A.2.f supra, I conclude that the County could not form the requisite intent to conspire to commit the torts alleged in Counts XVII and XIX of the Complaint. Alternatively, similar to Count XIII, Farris's claims for civil conspiracy in Counts XVII and XIX do not allege "an act which would be actionable even without the conspiracy." Eli Lilly and Co., 23 F.Supp.2d at 497. Count XVII purports to allege a claim for civil conspiracy to extort and blackmail. This Court's research has uncovered no case in the State of New Jersey recognizing the tort of theft by extortion. Even if this Court were to consider Count XVII as alleging a claim for civil conspiracy based on the torts of conversion or trespass to chattels, Farris has failed to allege the essential elements of such claims. See Barco Auto Leasing Corp. v. Holt, 228 N.J.Super. 77, 83, 548 A.2d 1161 (App.Div.1988) ("[T]he tort of conversion ... is defined as an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's rights.") (citations and internal quotations omitted). In addition, Count XIX, Farris's claim for civil conspiracy to deprive Plaintiff of property, is, functionally, nothing more than a restatement of Farris's claims for tortious interference with contract and his prospective economic advantage. Compare Compl., Count XIX, with Compl., Counts VIII, IX, X, XII, and XIV. The only substantive difference being that Farris seeks to assert Count XIX against the County, one of the parties in this litigation against whom such a claim cannot be asserted. See Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 752, 563 A.2d 31 (1989) ("`[F]undamental' to a cause of action for tortious interference with a prospective economic relationship [is] that the claim be directed against defendants who are not parties to the relationship[;] ... [t]ortious interference was not meant to upset the rules governing the contractual relationship itself."). It is clear that the County cannot conspire to tortiously interfere with its own contractual or prospective contractual relationship with Farris. Thus, because the harm sought to be redressed in Count XIX flows from the existing and prospective contractual relationship between the County and Farris, any claim Farris has against the County, based on the allegations set forth in Count XIX, must sound in contract, and cannot serve as the basis of a claim for civil conspiracy against the County. Therefore, because Count XVII and Count XIX fail to allege acts which would be actionable under New Jersey law "even without a conspiracy[,]" Eli Lilly and Co., 23 F.Supp.2d at 497, I conclude that Camden County is entitled to a judgment as a matter of law on these counts. Accordingly, I shall grant the County's motion for summary judgment on Counts XVII and XIX of the Complaint. Furthermore, as with Count XIII, the remaining defendants named in Counts XVII and XIX, namely, Norcross and the CCDC, are also entitled to summary judgment. 3. Mitchell's Motion for Summary Judgment a. Count VI, Common Law Fraud In Count VI of the Complaint, Farris alleges that Mitchell "advised Plaintiff that unless he agreed to the terms required by Camden County ... [the County] would immediately vacate all premises owned by Plaintiff and would not pay any of the back rent due Plaintiff on any of the leases." See Compl., ¶ 117. Mitchell, in support of his motion for summary judgment, contends that "plaintiff simply has no competent evidence whatsoever which could act 351 as either a factual or legal basis for claims of [fraudulent] misrepresentation ..." See Mitchell's Brief in Support of Motion for Summary Judgment (filed May 10, 1999) ("Mitchell's Brief") at 13-14. As I stated previously, "the five elements of common law fraud are: (1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages." Lithuanian Commerce Corp., 179 F.R.D. at 475-76. In section IV.A.2.b supra, considering Farris's claim for rescission or reformation of the renegotiated leases on the basis of equitable fraud, I concluded that disputed material issues of fact exist as to whether Mitchell made a material misrepresentation to Farris that the RCA building was immediately available for the County's use. See § IV.A.2.b supra. This dispute of material fact likewise precludes the entry of summary judgment in Mitchell's favor on Count VI of the Complaint, Farris's claim for common law fraud. In addition, the summary judgment record contains evidence from which a reasonable jury could conclude that Mitchell intended to induce Farris to enter the renegotiated leases based on misrepresentations about the availability of the RCA building. Specifically, Farris testified that Mitchell represented to him that if he did not agree to the County's terms that the County would immediately relocate to the RCA building. See Farris Dep. (Aug. 12, 1998) at 333-39. Farris also testified that he relied on these representations in entering into the renegotiated leases. See id. Farris testified that Mitchell told him after the execution of renegotiated leases that the RCA building was not immediately available for the County's purposes. See Farris Dep. (Aug. 4, 1998) at 30-32; see also Mitchell Dep. at 210-11. Farris further testified that Mitchell's comments were made in the context of an apology for misleading Farris during the renegotiations. See Farris Dep. (Aug. 4, 1998) at 30-32. Mitchell testified, however, that his comment as to the unavailability of the RCA building "was only [his] opinion," and that he "had no authority" to comment on the County's intention to relocate its offices to the RCA building. See Mitchell Dep. at 211. Farris's testimony as to Mitchell's statements is admissible as non-hearsay pursuant to Federal Rule of Evidence 801(d)(2)(A), admission by a party opponent. See Fed. R. Ev. 801(d)(2)(A). A reasonable jury could infer from Farris's testimony that Mitchell's alleged apology to Farris was evidence of his intention to defraud Farris during the renegotiations. Thus, in addition to the dispute of material fact as to whether Mitchell misrepresented the availability of the RCA building during the renegotiation of Farris's leases, the summary judgment record contains conflicting admissible evidence on the issue of whether Mitchell intended to defraud Farris. Accordingly, given these disputes of material fact, I shall deny Mitchell's motion for summary judgment on Count VI of the Complaint. b. Count VIII, Tortious Interference with Contract and Prospective Economic Advantage In Count VIII of the Complaint, Farris alleges that Mitchell, Bezich, and Palombi, all employees of Camden County, tortiously and maliciously interfered with Farris's lease agreements with the County. See Compl., Count VII. Specifically, Farris alleges that Mitchell and the other defendants named in Count VIII tortiously interfered with his leases with the County and his prospective economic advantage by "causing Defendant Camden County to breach its lease agreements with Plaintiff by failing to pay rent when due and vacating the 1350 Building Lease prior to the end of its lease term." Id., ¶ 131. Farris 352 further alleges that Mitchell "coerced and defrauded" him into entering into the renegotiated leases, and that these actions were undertaken by Mitchell and the other defendants named in Count VII in order to "coerce Plaintiff into making political contributions and in retaliation of Plaintiff's failure to do so ..." Id., ¶¶ 129, 133. In support of his motion for summary judgment, Mitchell contends that he is entitled to summary judgment as a matter of law because Farris "has no competent evidence to prove, much less suggest, any malicious or intentional conduct on the part of Mr. Mitchell with respect to the renegotiation or the entering into leases with the County of Camden." See Mitchell's Brief in Support of Motion for Summary Judgment (filed May 10, 1999) ("Mitchell's Brief") at 8. Mitchell further contends that "the evidence is clear that [he] acted as any officer of the court would during the re-negotiation phases." Id. As I stated previously, in New Jersey the elements of a claim for tortious interference are: (1) plaintiff had a continuing or prospective economic relationship or reasonable expectation of economic advantage; (2) the defendant knew of such relationship of expectancy; (3) the interference and harm inflicted were done intentionally and with "malice;" (4) if not for the interference, it was reasonably probable that plaintiff would have realized its economic advantage; and (5) the plaintiff was injured as a result of defendant's conduct. Eli Lilly and Co., 23 F.Supp.2d at 493-94. In Printing Mart-Morristown, the New Jersey Supreme Court stated that "it is fundamental to a cause of action for tortious interference with a prospective economic relationship that the claim be directed against defendants who are not parties to the relationship." Printing Mart-Morristown, 116 N.J. at 752, 563 A.2d 31 (citations omitted). The Printing Mart-Morristown court further stated: Tortious interference developed under common law to protect parties to an existing or prospective contractual relationship from outside interference. However, the rule of tortious interference was not meant to upset the rules governing the contractual relationship itself. Where a person interferes with the performance of his or her own contract, the liability is governed by principles of contract law. Id. at 752-53, 563 A.2d 31 (citations omitted). In addition, the New Jersey Supreme Court discussed without deciding whether an employee of a contracting party can be found liable for tortiously interfering with their employer's contractual or prospective contractual relationship with a plaintiff. See id. at 761, 563 A.2d 31. In Hurley v. Atlantic City Police Department, 1995 WL 854478, at 14 (D.N.J. Aug.4, 1995), and Fioriglio v. City of Atlantic City, 996 F. Supp. 379, 392 (D.N.J.1998), Judge Irenas was required to determine whether an employee of a contracting party could be held liable for tortious interference. In Hurley, Judge Irenas observed: In discussing the issue, the [Printing Mart] court first noted that employees could "theoretically" be held liable for interfering with another's contract with the employer because the employee is not a party to the contract. Furthermore, employees generally are not relieved from individual tort liability simply because they act on behalf of the employer. On the other hand, the court noted that while the corporate entity may be the technical party to the employment contact, the corporation can act only through its agents and employees. Employees are also generally immune from tort liability where they exercise a privilege held by the employer. These principles would indicate that the action would not lie against employees ... PostPrinting Mart courts have generally found that agents of a corporation cannot be liable for malicious interference with another's contractual relations with the corporation. One court in this 353 district has also found that where co-employees act within the scope of their employment in harassing a plaintiff, they cannot be held liable for tortious interference with the plaintiff's employment contract. Obendorfer v. Gitano Group, Inc., 838 F. Supp. 950, 956 (D.N.J.1993). Hurley, 1995 WL 854478, at 14 (additional citations omitted). In Fioriglio, Judge Irenas revisited this issue, concluding that "employees cannot be liable for interfering with another's contract with their ... employer[,]" where the employees are acting "in the course of their employment." Fioriglio, 996 F.Supp. at 392-93; see also DeJoy v. Comcast Cable Communications, 941 F. Supp. 468, 477-78 (D.N.J.1996) (Lechner, J.). In opposing Mitchell's motion for summary judgment, Farris contends that Mitchell was acting outside the scope of his employment with the County in renegotiating the leases. See Plaintiff's Brief in Opposition to Mitchell's Motion for Summary Judgment (filed May 10, 1999) at 17-19. I disagree; the undisputed evidence in the summary judgment record establishes that Mitchell was acting "in the course of [his] employment" when he renegotiated the County's leases with Farris. Fioriglio, 996 F.Supp. at 392-93. Farris testified that his claims against Mitchell stem from Mitchell's involvement in the renegotiation of Farris's leases with the County. See Farris Dep. at 30-31. Farris testified: Q. [By Mr. Garrigle] Did Mr. Mitchell ever ask you for a political donation in order to get your rent paid? A. [By Farris] No, he did not. Q. Did Mr. Mitchell ever ask you for any money in order to get your rent paid? A. No, he did not. Q. What did Mr. Mitchell do that you allege gave you a basis for your claim against him? A. Mr. Mitchell was well aware of what I had gone through with Mr. Norcross ... And he was aware that Lou Bezich had a large amount of dollars sitting on his desk that was told to me straight out by Mr. Mitchell ... that it was all political ... The biggest problem I had with Mr. Mitchell is when I negotiated my rent and I was told that ... the County could move to the RCA building for virtually no rent at all. It was told to me by Mr. Mitchell after the leases were signed within a good month he virtually apologized that that was not true, that the RCA building did not want the same clientele in that building as I had in my building. And he apologized for misleading me. . . . . . Along with the fact on my lease they gave me a 30 day out clause. Mr. Mitchell indicated to me that all the leases throughout the County were all going to be changed to represent the same [rental rates]. Id.; see also id. at 34. Thus, the viability of Farris's claim for tortious interference against Mitchell depends on whether Mitchell's representations about the availability of the RCA building, the reduced rental rate, and the thirty-day termination provision, were made within the scope of his employment as an assistant county counsel. See Fioriglio, 996 F.Supp. at 392-93. After reviewing the evidence in the summary judgment record, it is clear that these representations were made in the course of Mitchell's employment with the County. First, Mitchell testified that he was directed by Bezich and Sasala, the County employees overseeing the renegotiations of Farris's leases, to "advise [Farris] that there had to be a 30-day out clause in the new lease." See Mitchell Dep. at 222; see also Sasala Dep. at 96-97. Sasala testified that inclusion of the thirty-day termination provision was consistent with "the direction the county was moving in[.]" See Sasala Dep. at 97. 354 Second, Mitchell also testified that he, Bezich, and Sasala, determined the appropriate rental rate for the renegotiated leases pursuant to a new policy of the Board of Chosen Freeholders "to lower the cost of county government as much as possible." See Mitchell Dep. at 150, 151-57; see also id. at 100. At his November 13, 1998, deposition, Sasala testified that the downward-spiraling, reduced rental rate "was [his] idea." See Sasala Dep. at 96. Third, as I discussed in section IV.A.2.b supra, it cannot reasonably be disputed that the County, in late 1991 and early 1992, was interested in consolidating office space in the RCA building. See § IV.A.2.b. supra. Sasala testified that the thirty-day termination clause "was tied into the county having maximum flexibility ... [in being able to] consolidat[e] office space down at [the RCA building]." Id. at 98-99; see Mitchell Dep. at 62-64. Thus, it is clear that Mitchell's representations, during the renegotiation of Farris's leases, about the reduced rental rate, the thirty-day termination provision, and the County's interest in the RCA building, were made in the course of his employment as assistant county counsel. Farris's contentions that Mitchell deliberately misrepresented the availability of the RCA building and the universal inclusion of the reduced rental rates and the thirty-day termination provision in all the County's leases goes to the question of whether Mitchell committed common law fraud, see § IV.A.2.a supra, and not to Farris's claim for tortious interference. Therefore, I conclude that the undisputed evidence in the summary judgment record establishes that Mitchell was acting within the scope of his employment during the renegotiations of Farris's leases with the County. Accordingly, because Mitchell, as an employee acting within the scope of his employment, cannot tortiously interfere with the contractual or prospective contractual relationship of his employer, the County, see Fioriglio, 996 F.Supp. at 392-93, I shall grant Mitchell's motion for summary judgment on Count VIII of the Complaint. c. Count XII, Conspiracy to Tortiously Interfere and Defraud In Count XII of the Complaint, Farris alleges that Mitchell conspired with Norcross, the CCDC, Bezich, and Palombi to "tortiously interfere with Plaintiff's leases with Camden County ..." See Compl., ¶ 157. As discussed in section IV.A.3.b supra, a county employee "cannot be liable for interfering with another's contract with [his] ... employer." Fioriglio, 996 F.Supp. at 392. Thus, I conclude that Farris has failed to allege that Mitchell "committed an act which would be actionable even without the conspiracy." Eli Lilly and Co., 23 F.Supp.2d at 497. Accordingly, I shall grant Mitchell's motion for summary judgment on Count XII of the Complaint, insofar as it alleges a claim for civil conspiracy to tortiously interfere. In Count XII, Farris also alleges that Mitchell conspired with Norcross, the CCDC, Bezich, and Palombi to defraud Farris in the manner set forth in sections IV.A.2.b-f and IV.A.3.a supra. For the reasons discussed in those sections, I shall deny Mitchell's motion for summary judgment on Count XII insofar as it alleges a claim for civil conspiracy to defraud. d. Counts XV and XVIII, Conspiracy to Extort, Blackmail and Deprive Farris of his Real Property In Counts XV and XVIII of the Complaint, Farris alleges that Mitchell conspired with Norcross, the CCDC, Bezich, and Palombi, to extort political contributions from Farris, and that these defendants conspired to deprive Farris of his real property, namely, the 1300 and 1350 Buildings. See id. For the reasons set forth in section IV.A.2.j supra, I shall grant Mitchell's motion for summary judgment on Counts XV and XVIII of the Complaint because Farris has failed to allege an actionable independent wrong. 355 See Eli Lilly and Co., 23 F.Supp.2d at 497; see also Fioriglio, 996 F.Supp. at 392. V. CONCLUSION For the reasons set forth in this opinion, I shall deny the motion of Defendants, Norcross and the Camden County Democratic Committee, for sanctions and attorneys' fees because they have failed to make the requisite showing that counsel for Plaintiff acted in bad faith in filing the Complaint and in conducting discovery. I shall, however, grant the motion of Norcross and the CCDC for summary judgment on Counts XIII, XV, XVI, XVII, XVIII, and XIX of the Complaint. Insofar as Norcross and the CCDC seek summary judgment on Counts IX, X, XII, and XIV, Plaintiff's claims for tortious interference with Plaintiff's contract and prospective economic advantage, and for civil conspiracy to so tortiously interfere and to defraud, I shall deny the motion for summary judgment without prejudice to the right of Norcross and the CCDC to renew this motion upon the conclusion of a Rule 104(a) hearing to determine the admissibility of alleged coconspirator statements, pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence. In addition, I shall deny the motion for summary judgment of the County of Camden as to Counts I, II, III, IV, VII, and XI of the Complaint. I shall grant the County of Camden's motion for summary judgment on Counts V, VI, XIII, XVII, and XIX of the Complaint. Finally, I shall deny the motion for summary judgment of Defendant, Thomas A. Mitchell, on Plaintiff's claim for common law fraud, Count VI, and civil conspiracy to defraud, Count XII. I shall, however, grant Mitchell's motion for summary judgment on Counts VIII, XV, XVIII, and Count XII of the Complaint to the extent it alleges a civil conspiracy to tortiously interfere. Thus, Farris's remaining claims against the County are: (1) rescission or reformation of the renegotiated leases on the basis of economic duress, equitable fraud, and unconscionability, Counts I-II, which will be tried to the Court, sitting in equity; (2) breach of the original 1300 Building lease, Count IV; (3) breach of the renegotiated 1300 Building lease; Count VII; and (4) breach of the duty of good faith and fair dealing. Farris's remaining claims against Mitchell are Count VI, common law fraud, and Count XII, conspiracy to defraud. Pending the determination of the admissibility of the alleged coconspirators statements at a Rule 104(a) hearing, Farris's remaining claims against Norcross and the CCDC are: (1) tortious interference with Farris's contract and prospective business advantage, Counts IX and X; (2) civil conspiracy to tortiously interfere and defraud, Counts XII and XIV of the Complaint. The Court will enter an appropriate order. ORDER This matter having come before the Court on the motions for summary judgment of Defendants, the County of Camden, Thomas A. Mitchell, George E. Norcross, III, and the Camden County Democratic Committee, and the motion for sanctions and attorneys' fees of Defendants, George E. Norcross, III, and the Camden County Democratic Committee, Walter F. Timpone, Esq., John T. Coyne, Esq., McElroy, Deutsch & Mulvaney, appearing on behalf of Defendant, the County of Camden, and William A. Garrigle, Esq., Garrigle, Palm & Thomasson, appearing on behalf of Defendant, Thomas A. Mitchell, and William M. Tambussi, Esq., Brown & Connery, LLP, appearing on behalf of Defendants, George E. Norcross, III, and the Camden County Democratic Committee, and Jerald R. Cureton, Esq., Darryl S. Caplan, Esq., and Anthony Valenti, Esq., Cureton, Caplan & Clark, P.C., appearing on behalf of Plaintiff, Rahn J. Farris; and, The Court having considered the submissions of the parties, for the reasons set forth in the OPINION filed concurrently with this ORDER; 356 IT IS, on this 20th day of August, 1999, hereby ORDERED that: (1) the motion of Defendants, George E. Norcross, III, and the Camden County Democratic Committee, for sanctions, attorneys fees' and costs is DENIED; (2) the motion of Defendants, George E. Norcross, III, and the Camden County Democratic Committee, for summary judgment on Counts XIII, XV, XVI, XVII, XVIII, and XIX of the Complaint is GRANTED; (3) the motion of Defendants, George E. Norcross, III, and the Camden County Democratic Committee, for summary judgment on Counts IX, X, XII, and XIV of the Complaint is DENIED without prejudice to their right to renew the motion at the conclusion of a hearing in this matter conducted pursuant to Rule 104(a) of the Federal Rules of Civil Procedure; (4) the motion of Defendant, the County of Camden, for summary judgment on Counts I, II, III, IV, and XI of the Complaint is DENIED; (5) the motion of Defendant, the County of Camden, for summary judgment on Counts V, VI, XIII, XVII, and XIX of the Complaint is GRANTED; (6) the motion of Defendant, Thomas A. Mitchell, for summary judgment on Count VI of the Complaint and Count XII to the extent it alleges a claim for civil conspiracy to defraud, is DENIED; (7) the motion of Defendant, Thomas A. Mitchell, for summary judgment on Counts VIII, XV, XVIII of the Complaint, and Count XII, to the extent it alleges a claim for civil conspiracy to tortiously interfere, is GRANTED; (8) the application of Plaintiff, Rahn F. Farris, to adjourn the resolution of the motion for summary judgment of Defendants, George E. Norcross, III, and the Camden County Democratic Committee, filed pursuant to Rule 56(f), is DISMISSED as moot; and, (9) the motion of Defendant, Judy Palombi, for summary judgment, filed April 30, 1999, is DISMISSED as untimely filed. NOTES [1] Rule 104(a) provides: Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court ... In making its determination it is not bound by the rules of evidence except those with respect to privileges. See Fed. R. Ev. 104(a). [2] Section 1332 provides, in relevant part: The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between (1) citizens of different States ... See 28 U.S.C. § 1332(a). Section 1367 provides, in relevant part: [I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. See 28 U.S.C. § 1367. [3] This case had originally been consolidated with County of Camden v. Rahn J. Farris, Civil Action No. 97-3297(SMO). On June 29, 1998, I granted Farris's motion for summary judgment on the County's claims for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of implied warranties, unjust enrichment, fraud, rescission, constructive trust and violations of the New Jersey Consumer Fraud Act, arising out of the renegotiated 1300 and 1350 Building leases. See County of Camden v. Rahn J. Farris, Civil Action No. 97-3297(SMO), unpubl. slip op. (D.N.J. Jun. 29, 1998). [4] Farris had also named as defendants, State Senator John Adler, Jack Gallagher, Gallagher Associates, Inc., and Joseph Benton. Farris voluntarily dismissed his claims against Senator Adler, and settled his claims with Benton, Gallagher, and Gallagher Associates, Inc. See Consent Order (filed Nov. 12, 1998); Stipulations of Dismissal (filed Feb. 4, and 11, 1999). [5] Discovery in this case closed on February 28, 1999. See Final Scheduling Order (filed Jan. 28, 1999). [6] On April 30, 1999, Palombi filed a motion for summary judgment without complying with the motion procedure set forth in Appendix N of the Local Civil Rules of this Court. See Palombi's Notice of Motion (filed Apr. 30, 1999). On January 28, 1999, Magistrate Judge Rosen filed the Final Scheduling Order in this case, ordering that dispositive motions be filed, pursuant to Appendix N, on or before May 1, 1999. See Final Scheduling Order (filed Jan. 28, 1999). Appendix N requires a moving party to send its notice of motion, brief, affidavits and other supporting documentation to all adversaries. See L. Civ. R.App. N. The non-moving party has ten days to prepare its opposition papers and to send such papers to the moving party. See id. The moving party thereafter has seven days to prepare its reply papers, if any. See id. "After the motion has been fully briefed and is ready for submission to the Court, [the entire motion packet] ... [is] sent to the Clerk" for filing. Id. On March 31, 1999, the Local Civil Rules of this Court were amended, making the Appendix N procedure the required, rather than the optional, procedure for filing dispositive motions. See Order of Chief Judge Anne E. Thompson (filed Mar. 31, 1999). Thus, under Appendix N, a moving party must serve its moving papers on its adversary, at least, seventeen days prior to the dispositive motion deadline set forth in the Scheduling Order. Here, Palombi filed her notice of motion with the Court on Friday, April 30, 1999. See Palombi's Notice of Motion (filed Apr. 30, 1999). In a cover letter to the Court, dated April 29, 1999, counsel for Palombi stated that he had sent a copy of the moving papers to counsel for Farris by overnight courier. See Letter to the Court from Scott A. Krasny, Esq. (dated Apr. 29, 1999). The cover letter, however, set forth no reason for counsel's failure to file his dispositive motion on behalf of Palombi before April 30, 1999. See id. Thus, counsel for Farris did not receive notice of Palombi's intent to file a motion for summary judgment until April 30, 1999, the day before the dispositive motion deadline. In addition, and most troubling, counsel for Palombi did not contact his adversary to seek the consent of [counsel for] Plaintiff prior to serving the motion. See Letter to the Court from Anthony Valenti, Esq. (dated May 6, 1999). Therefore, because counsel for Palombi failed to comply with the Final Scheduling Order, and has provided this Court with no good cause excusing the untimely filing of Palombi's motion for summary judgment, the Court shall not consider the motion, and it shall be dismissed as untimely filed. See Chiropractic Alliance v. Parisi, 164 F.R.D. 618 (D.N.J.1996) (holding that dispositive motions filed beyond the deadline set forth in the Court's Scheduling Order shall be dismissed). [7] Rule 801(d)(2)(E) provides, in relevant part: A statement is not hearsay if ... [t]he statement is offered against a party and is ... (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish ... the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). See Fed. R. Ev. 801(d)(2)(E). [8] Maguire is not a party to this action. See Compl. In response to a subpoena to testify at a discovery deposition, Maguire, through counsel, invoked his Fifth Amendment privilege and refused to be deposed. See Exhibits in Support of Brief of Summary Judgment of Norcross and the CCDC, Exh. O (Letter to William M. Tambussi, Esq., from Kathleen Kane, Esq. (dated Oct. 16, 1998)). Maguire's basis for invoking his Fifth Amendment privilege was that he "was the subject of a federal criminal investigation surrounding his employment with Camden County." Id. [9] Farris also contends that the testimony of Carroll and Bostic is admissible under Rules 404(b) and 406 of the Federal Rules of Evidence. See Farris's Brief in Opposition to Norcross's and the CCDC's Motion for Summary Judgment (filed Feb. 5, 1999) at 34-36. I note that this contention, like the evidence it champions, is particularly weak. Farris seeks to have this Court accept Carroll's and Bostic's testimony that Norcross has exerted substantial pressure over County employees in the past as evidence that he has a habit of tortiously interfering with the County's contracts, akin to "semi-automatic" acts like "going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn[.]" See Fed. R. Ev. 406, Advisory Committee Note. Such a contention borders on the frivolous. Similarly, this evidence does not fit within the Rule 404(b) "other acts" exception to the general rule that, in civil cases, character evidence "is not admissible for the purpose of proving action in conformity therewith on a particular occasion[.]" See Fed. R. Ev. 404(a); see also Rocky Mountain Helicopters, Inc. v. Bell Helicopters Textron, 805 F.2d 907, 917 (10th Cir.1986); Crowley v. Cooperstein, 1996 WL 524101, at 2 (E.D.Pa. Sept. 11, 1996); Fryou v. Gaspard, 1991 WL 68440, at 1 (E.D.La. Apr.25, 1991). It is clear that Farris seeks to use the testimony of Carroll and Bostic about Norcross's past conduct to prove that Norcross acted in the same way with Farris. This is inadmissible "propensity" evidence. [10] Because I have denied the motion of Norcross and the CCDC for summary judgment without prejudice to their right to renew the motion upon conclusion of the Rule 104 hearing, I need not consider Farris's Rule 56(f) application to continue the motion until the completion of discovery. I note that pre-trial factual discovery closed in this case on February 28, 1999, and that Farris shall have ample opportunity to defend against Norcross's and the CCDC's renewed motion for summary judgment, should any be filed. Accordingly, I shall dismiss the Rule 56(f) application as moot. [11] To the extent that Count XII seeks to allege a claim for civil conspiracy to defraud against Norcross and the CCDC, see § IV.A.3.c infra, the motion for summary judgment shall be denied for the reasons set forth in § IV.A.1.a supra. Unlike Farris's claims for tortious interference and civil conspiracy to tortiously interfere, Mitchell, as a matter of New Jersey law, is not precluded from conspiring to defraud. See § IV.A.3.c infra. Thus, if admissible, see § IV.A.1.a, these statements may be considered as admissions attributable to Norcross or the CCDC. See Fed. R. Ev. 801(d)(2)(E). [12] Section 19:5-3 provides, in relevant part: The members of the county committees of political parties shall be elected annually at the primary for the general election in the manner provided in this Title for the selection of party candidates to be voted for at the general election by voters of a municipality ... Members of the county committee shall actually reside in the districts or units which they respectively represent. The county committee shall determine by its bylaws the units into which the county shall be divided for purpose of representation in the county committee. The members of the county committee of each of the political parties shall take office on the first Saturday following their election, on which day the terms of all members of such committees theretofore elected shall terminate. The annual meeting of each county committee shall be held on the first Tuesday following the primary election, except that when such meeting day falls on a legal holiday then the said meeting shall be held on the day following, and when such meeting day falls on the day of a municipal runoff election within the county then said meeting may be held on the day following, at an hour and place to be designated in a notice in writing to be mailed by the chairman of the outgoing county committee to each member-elect, at which annual meeting the members of such committee shall elect some suitable person as chairman who shall be a resident of such county to hold office for 1 year, or until his successor is elected. The members shall also elect a vice-chairman of the opposite sex of the chairman to hold office for 1 year or until his or her successor is elected and the vice-chairman shall perform all duties required of him or her by law and the constitution and bylaws of such committee. Such committee shall have power to adopt a constitution and bylaws for its proper government. The chairman shall preside at all meetings of the committee and shall perform all duties required of him by law and the constitution and bylaws of such committee. When a member of a county committee ceases to be a resident of the district or unit from which elected, a vacancy on the county committee shall exist. A member of a county committee of any political party may resign his office to the committee of which he is a member, and upon acceptance thereof by the committee a vacancy shall exist. A vacancy in the office of a member of the county committee of any political party, caused by death, resignation, failure to elect or otherwise, shall be filled for the unexpired term by the municipal committee of the municipality wherein the vacancy occurs, if there is such committee, and if not, by the remaining members of the county committee of such political party representing the territory in the county in which such vacancy occurs. See N.J. Stat. Ann. § 19:5-3. [13] Section 1927 provides: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct. See 28 U.S.C. § 1927. [14] Neither the Notice of Motion, or the Form of Order submitted by Mr. Tambussi specifically state against whom Mr. Tambussi is seeking sanctions. See Notice of Motion (filed Dec. 8, 1998); Form of Order (submitted Dec. 8, 1998). Review of the brief in support of the motion, however, makes it abundantly clear that the motion for sanctions is directed against counsel for Farris. See Brief in Support of Motion for Sanctions (filed Dec. 8, 1998). [15] Recently, in Slater v. Skyhawk Transp., Inc., 187 F.R.D. 185, 200 (D.N.J.1999), I discussed the type of notice required by Rule 11 of the Federal Rules of Civil Procedure. I wrote: Rule 11, however, creates a "safe harbor" that requires a party moving for sanctions to offer the opposing party a chance to withdraw "the challenged paper, claim, defense, contention, allegation, or denial." Fed.R.Civ.P. 11(c)(1)(A); see also Hockley v. Shan Enters. Ltd. Partnership, 19 F. Supp. 2d 235, 240 (D.N.J.1998) (Brotman, J.) ("The `safe harbor' provision requires the party moving for sanctions to notify the party against which it seeks sanctions of its intention to move for sanctions"). "The express purpose of this amendment to the rule was to prevent abuses of Rule 11 sanctions by providing parties a `safe harbor' within which they will not be subject to sanctions unless they refuse to withdraw offending papers filed with the court." Hockley, 19 F.Supp.2d at 240. "To stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the revision provides that the `safe harbor' period begins to run only upon receipt of the motion." Fed.R.Civ.P. 11 advisory committee's note to 1993 Amendment; see also Piantone v. Sweeney, No. Civ. A. 94-7007, 1995 WL 691915, at 1 n. 1 (E.D.Pa. Nov.21, 1995). As a result, "[a]n informal notice, either by letter or other means, does not trigger the commencement of the 21 day period." Piantone, 1995 WL 691915, at 1 n. 1. "In most cases, however, counsel should be expected to give informal notice to the other party, whether in person or by a telephone call or letter, of a potential violation before proceeding to prepare and serve a Rule 11 motion." Fed.R.Civ.P. 11, advisory committee's notes to 1993 Amendment. Id. [16] Rule 11(c) of the Federal Rules of Civil Procedure provides, in relevant part: (c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. (1) How Initiated. (A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees. (B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto. See Fed.R.Civ.P. 11(c). [17] But see § IV.A.2.h infra. [18] The summary judgment record contains only one document entitled assignment of leases, entered into by Farris and Commerce Bank. See Coyne Cert., Exh. B (Assignment of Leases (dated Dec. 30, 1991)). This assignment of leases covers Farris's lease with the County for the 1350 Building, not the 1300 Building. See id.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501052/	61 F. Supp. 2d 1177 (1999) Anna NIETO, Betty Delossantos, Patrick Sanchez, Sally Netsch, Phyllis DeBaun, and Mary Gonzales, Plaintiffs, v. Qudrat KAPOOR, Defendant. No. CIV. 96-1225 MV/JHG. United States District Court, D. New Mexico. August 4, 1999. 1178 1179 Randy K. Clark, Roswell, NM, Kathryn A. Hammel, Cates & Hammel, PC, Los Lunas, NM, Tandy L. Hunt, Roswell, NM, 1180 for Anna Nieto, Betty Delosantos, Patrick Sanchez, Sally Netsch, Phyllis DeBaun, Mary Gonzales, plaintiffs. William C. Madison, Scott E. Turner, Madison, Harbour, Mroz & Brennan, PA, Albuquerque, NM, for Medical Protective Company, intervenors. Gerald G. Dixon, John Michael Roberts, Hatch, Allen & Shepherd, Albuquerque, NM, Mark D. Jarmie, Sharp, Jarmie & Scholl, Albuquerque, NM, for Quadrat Kapoor, defendant. W. Robert Lasater, Jr., Charles J. Vigil, Thomas L. Stahl, Jeffrey L. Lowry, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, NM, for Orson Treloar, Ron Shafer, James Knoble, Eastern New Mexico Medical Center, Jack Chubb, Keith MacKeller, defendants. MEMORANDUM OPINION AND ORDER VAZQUEZ, District Judge. THIS MATTER is before the Court on First Amended Motion to Intervene for Sole Purpose of Participating in Preparation of Jury Instructions, filed June 10, 1998 [Doc. No. 191], Defendant Kapoor's Motion for Summary Judgment Regarding Claims made by Plaintiff Nieto, filed August 17, 1998 [Doc. No. 197], Defendant Kapoor's Motion for Summary Judgment Regarding Claims made by Plaintiff Gonzales, filed August 17, 1998 [Doc. No. 199], Defendant Kapoor's Motion for Summary Judgment Regarding Claims made by Plaintiff DeBaun, filed August 17, 1998 [Doc. No. 201] Defendant Kapoor's Motion for Summary Judgment Regarding Claims made by Plaintiff Netsch, filed August 17, 1998 [Doc. No. 203], Defendant Kapoor's Motion for Summary Judgment Regarding Claims made by Plaintiff Sanchez, filed September 28, 1998 [Doc. No. 246], Defendant Kapoor's Motion for Summary Judgment Regarding Claims made by Plaintiff DeLosSantos, filed September 28, 1998 [Doc. No. 250],[1] and Defendant Kapoor's Motion to Strike "Plaintiff [sic] Response to Dr. Kapoor's Motion for Summary Judgment Regarding Claims made by Phyllis DeBaun", filed October 5, 1998 [Doc. No. 254]. The Court, having considered the pleadings, relevant law, and being otherwise fully informed, finds that the motion to intervene is not well taken and will be denied, the motion to strike is not well taken and will be denied, and that the motions for summary judgment are not well taken and will be denied in part. The Court will also sua sponte transfer case number CIV 96-1623 JC/DJS to the judge assigned to the present action. Background Plaintiffs originally brought a complaint in state court against Defendant Kapoor, a physician staffing the radiation oncology department at Eastern New Mexico Medical Center ("ENMMC") and various hospital defendants. In an amended complaint filed after Defendants removed the action to this Court, Plaintiffs, all former employees of the department, claim that for several years beginning in 1993 Defendant Kapoor subjected them to a hostile work environment. Specifically, Plaintiffs aver that Dr. Kapoor routinely made disparaging and offensive remarks pertaining to minorities and women, repeatedly used offensive inappropriate language regarding race and gender in public in the department, made physical contact of various degrees with Plaintiffs, and interfered with their employment duties. In short, Plaintiffs 1181 allege being subjected by Dr. Kapoor to substantial verbal, emotional, and physical abuse. Dr. Kapoor denies the allegations. Because the ENMMC Defendants no longer are a part of this action, the Court lists the charges in the amended complaint that are germane to claims brought against Dr. Kapoor. In Count II Plaintiffs have brought a § 1983 claim, focusing on Dr. Kapoor's alleged deprivation of their due process and equal protection rights. Plaintiffs also allege retaliation for protected First Amendment activity. Count III alleges that Dr. Kapoor conspired to deprive Plaintiffs of those rights, in violation of 42 U.S.C. § 1985. Counts IV through VII bring supplemental state law claims, setting forth causes of action sounding in negligence, intentional infliction of emotional distress, prima facie tort and breach of contract. The Court has previously dismissed the negligence and prima facie tort claims, and Plaintiffs now acknowledge withdrawing their contract claims. Accordingly, all that remains before the Court are allegations of § 1983 and § 1985 violations and claims for intentional infliction of emotional distress. In the six pending motions for summary judgment, Dr. Kapoor takes an identical approach. Dr. Kapoor first claims that the emotional distress claims do not show a sufficient factual basis to succeed as a matter of law. Then alleging being shielded by qualified immunity,[2] Dr. Kapoor goes on to argue that as a matter of law, Plaintiffs' First Amendment retaliation claims fail for lack of proof. Finally, Dr. Kapoor urges the Court to dismiss the § 1985 conspiracy count, claiming an absence of sufficient factual detail necessary to sustain a claim for relief. Dr. Kapoor's motion to strike has its roots in Plaintiffs' filing, without leave of the Court, an excess number of exhibit pages. Where Plaintiffs contend the filing arose out of concerns for efficiency, Dr. Kapoor focuses on its procedural deficiencies. Dr. Kapoor's medical malpractice liability carrier has filed the motion to intervene, and has also filed a declaratory action in this Court, number CIV 96-1623 JC/DJS. Essentially looking to defend its interests with respect to whether Dr. Kapoor was acting outside the scope of his policy's protection, Medical Protective Company ("Medical Protective") aims to participate in the jury instruction process. Discussion I. The motions for summary judgment Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed.R.Civ.P. 56(c). Under this standard, the moving party initially carries the burden of pointing out to the trial court that there is an absence of evidence to support the nonmoving party's case, although the moving party "need not affirmatively negate the nonmovant's claim in order to obtain summary judgment." Allen v. Muskogee, Oklahoma, 119 F.3d 837, 840 (10th Cir.1997), cert. denied, ___ U.S. ___, 118 S. Ct. 1165, 140 L. Ed. 2d 176 (1998), citing Celotex v. Catrett, 477 U.S. 317, 322-23, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The Court examines the factual record and all reasonable inferences therefrom in the light most favorable to the nonmoving party, Allen, 119 F.3d at 839-40, and materiality of facts in dispute, if any, is dependent upon the substantive law, id. at 839, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Once the movant has met this burden, Rule 56 requires the nonmovant to go beyond the pleadings and show, through affidavits, depositions, answers to interrogatories, and 1182 the like that there is a genuine issue for trial. Allen, 119 F.3d at 841, citing Celotex, 477 U.S. at 324, 106 S. Ct. 2548; see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Conclusory allegations are not enough, see Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-72 (10th Cir.1998), but summary judgment "is warranted only if the uncontroverted material facts establish that the moving party is entitled to judgment as a matter of law." David v. City and County of Denver, 101 F.3d 1344, 1355 (10th Cir. 1996). A. Intentional infliction of emotional distress The tort of intentional infliction of emotional distress first rose to prominence in New Mexico in Dominguez v. Stone, 97 N.M. 211, 638 P.2d 423 (N.M.App.1981). Quoting with approval from the Restatement (Second) of Torts, the Dominguez court stated that to be actionable, conduct must go beyond acting with an intent which may be tortious or even criminal, and must be "so outrageous in character, and so extreme in degree, to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id., 638 P.2d at 426; see also Jaynes v. Strong-Thorne Mortuary, Inc., 124 N.M. 613, 954 P.2d 45, 50, 1998-NMSC-004 at ¶¶ 12-14 (1997); UJI 13-1628 NMRA 1997. More recently, the court of appeals noted that, as part of the price of personal liberty, a free and democratic society must tolerate certain offensive conduct as well as some obnoxious or morally deviant behavior. Accordingly, the mere fact that an actor knows that his conduct is insulting, or will deeply hurt another's feelings is insufficient to establish liability. Padwa v. Hadley, 981 P.2d 1234 1999-NMCA-067 at ¶ 11 (N.M.App.1999). Courts initially must determine "whether the defendant's conduct may be regarded as so extreme and outrageous as to permit recovery." Salazar v. Furr's, Inc., 629 F. Supp. 1403, 1410 (D.N.M.1986); Padwa, 1999-NMCA-067 at ¶ 9. Where reasonable minds may differ a jury must decide whether the conduct at issue meets the requirements of the tort. Id. Applying these standards to the facts as alleged and supported by deposition testimony, the Court concludes that the jury in this case should properly decide whether the totality of Dr. Kapoor's conduct meets the requirements of the tort. In addition to allegations of strikingly insensitive conduct with respect to Plaintiffs' ethnicity, Plaintiffs have presented an overabundance of testimony so far to support their claims that Dr. Kapoor treated women employees poorly and was regularly abusive. From this evidence reasonable minds could conclude that Dr. Kapoor's conduct rises to the level of being outrageous. The Court, therefore, will allow the jury to decide whether the alleged conduct at issue is sufficiently severe to go "beyond the bounds of common decency and [be] atrocious and intolerable to the ordinary person." UJI 13-1628 NMRA 1991. For all Plaintiffs but Ms. Netsch, one of the principal claims against Dr. Kapoor is that, on repeated occasions, he denigrated their ethnicity and national origin, principally by referring to them both to their face and in front of patients and staff as "stupid and lazy Mexicans" and stating that the schedule at the oncology center could not be maintained because of "siestas" and "mañana, mañana, mañana." The record is replete with allegations, supported by deposition testimony and by a memorandum from the director at the ENMMC Cancer Treatment Center, of Dr. Kapoor's repeated use of those terms. In addition, more than one Plaintiff testified hearing Dr. Kapoor discuss acquiring some land and hiring workers from Mexico at low wages so that he could become rich. Depositions of Anna Nieto at 40-41; Betty DeLosSantos at 68-69; Patrick Sanchez at 56-57; DeBaun Deposition at 34. When ENMMC employee Frank Sanchez had 1183 not performed a task to Dr. Kapoor's satisfaction, Dr. Kapoor allegedly told Plaintiff Patrick Sanchez "when is that stupid Mexican going to learn how to do simulations? Why doesn't he go back where he came from?" Sanchez Deposition at 77. Patrick Sanchez also states that Dr. Kapoor, in complaining about a fellow doctor in Roswell, called him a stupid Mexican who performed inappropriate surgeries. Id. at 93-94. Mr. Sanchez stated that Dr. Kapoor spent more time with Anglo than with Hispanic patients. Id. at 59, 85. To Plaintiff DeLosSantos, Dr. Kapoor allegedly stated, in treating an African-American patient, that "[t]hey are like some of those Spanish people that don't clean up." DeLosSantos Deposition at 74. Betty DeLosSantos states that Dr. Kapoor told her not to associate with an Anglo technician, since she was not her kind. Id. at 123. Ms. DeLosSantos also alleges that Dr. Kapoor, commenting on her daughter's height, stated that she was abnormal and would always be a "short little Mexican." Id. at 72. In front of Plaintiff Gonzales Dr. Kapoor commented to an Anglo patient whose daughter married a Hispanic man that she had degraded herself by marrying down. Gonzales Deposition at 31-32. Nor did Dr. Kapoor spare Ms. Netsch's ethnic origins. Plaintiff Netsch alleges that Dr. Kapoor, in reminiscing about some time he had spent in Scotland, told her that "Scottish people had no work ethic because they were all standing at the gate before closing time waiting to go home." Netsch Deposition at 64-65. There are no shortage of supported allegations, then, that Dr. Kapoor freely distributed ethnic slurs to all the Plaintiffs. This slurring on ethnicity and national origin is precisely what created the circumstances through which the New Mexico Court of Appeals gave effect to the tort of intentional infliction of emotional distress. The plaintiff in Dominguez was a Mexican national who occupied a position funded by United States tax dollars. Dominguez, 638 P.2d at 424. The defendant questioned the expenditure of those dollars to fund a position for someone of the plaintiffs' alienage and ethnicity. Id. Discoursing on prejudice, stereotypes, and the disparagement of minorities, id. at 425, the Dominguez court found that an issue of fact existed with respect to the alleged tort. Id. at 427. This Court concludes likewise in this case. Contributing to creating a jury question for this cause of action are Plaintiffs' allegations of pervasive conduct that is belittling to women. A significant part of those allegations focuses on abusive comments Plaintiffs allege Dr. Kapoor routinely uttered. For example, Plaintiff Netsch alleges that Dr. Kapoor made statements that the only reason women get married was to get the men's money; that the only thing women are good for is, number one, to be your lover when they are young and then to provide you with children and then to take care of you in old age... He often thought women were stupid. He called us whiney and oversensitive, that we told stories [sic]. Netsch Deposition at 22; see also DeBaun Deposition at 98-100. Phyllis DeBaun stated in her deposition having heard Dr. Kapoor tell "patients that women served a purpose for men; that that was their job, that was their duty; that [she] was paid enough to do anything he told [her] to do, quote, unquote." Id. at 35. Sally Netsch also testified that Dr. Kapoor told her that she was abandoning her babies by working full time, Netsch Deposition at 65, 66, and commented to patients he thought it was appalling that Netsch was a working mother, also saying that women should be at home with their children. Id. at 67-68. Anna Nieto testified that Dr. Kapoor once inquired into her romantic life. Nieto Deposition at 21. Plaintiff DeLosSantos stated that Dr. Kapoor told her she should quit her job and go work in a nursing home, precipitating a visit to the emergency room when she experienced stress and chest pains. DeLosSantos Deposition at 101-05. Plaintiff Gonzales complained of a 1184 conversation that Dr. Kapoor had with a male patient in her presence, where Dr. Kapoor stated that "women were nothing but penis envy." Gonzales Deposition at 22-23. Ms. Netsch asserted that Dr. Kapoor would discuss his sexual activities with male patients in her presence. Netsch Deposition at 86-87. According to Ms. Gonzales, Dr. Kapoor also would disparage her in front of patients, one time saying: "look at her, she thinks she's a model," and telling her to stand like a nurse. Gonzales Deposition at 21. Dr. Kapoor argues, citing Obendorfer v. Gitano Group, Inc., 838 F. Supp. 950 (D.N.J.1993), that comments alone are not, as a matter of law, sufficient to support an intentional infliction of emotional distress action. Obendorfer does stand for this proposition, id. at 955, yet to stop there is to incompletely read this case. Obendorfer expressly recognizes that insults coupled with other conduct could be sufficient to support the tort. Id. Indeed, "in some situations degrading comments coupled with continued discriminatory and harassing conduct might be sufficiently outrageous to support a claim of intentional infliction of emotional distress." Id., citing Porta v. Rollins Environmental Services (NJ), Inc., 654 F. Supp. 1275 (D.N.J. 1987). In addition to the comments already recounted, Plaintiffs have testified in their depositions to conduct that reaches beyond mere words or insults. Anna Nieto stated that Dr. Kapoor once touched her lower back in a massaging fashion. Nieto Deposition at 22. Plaintiff DeBaun, with 14 years of experience in radiation therapy, testified that Dr. Kapoor would repeatedly go to men with lesser experience rather than discuss patients with her. DeBaun Deposition at 26-32, 112. Plaintiff Nieto also stated that Dr. Kapoor refused to let her perform her job, and insisted that a man be called in instead. Nieto Deposition at 49-59. All Plaintiffs testified to Dr. Kapoor's repeated physical contact with female staff, and Mr. Sanchez described one instance where Mr. Kapoor was physical with him. For example, Betty DeLosSantos stated that Dr. Kapoor would grab her and push her into a hallway or examining room when needing to see a patient. DeLosSantos Deposition at 81-82. Patrick Sanchez on more than one occasion saw Dr. Kapoor grab Plaintiffs DeBaun, Netsch, and DeLosSantos by the arm and move them down the hall. Sanchez Deposition at 108. Mr. Sanchez also testified that on one occasion Dr. Kapoor, displeased at his less than immediate response to a request to perform a certain task, "came roaring into [his] office, pulled [his] chair around, and told [him he] was going to take that contour right now." Sanchez Deposition at 100-101. Sally Netsch and Phyllis DeBaun also testified to being grabbed and pushed by Dr. Kapoor. Netsch Deposition at 24; DeBaun Deposition at 126. Dr. Kapoor threw patient charts and other objects at Plaintiffs. Gonzales Deposition at 24, 27-28, 42; DeBaun Deposition at 40; Netsch Deposition at 24; DeLosSantos Deposition at 83-85. Sally Netsch testified that Dr. Kapoor would not grab or push male staff members, while he did it to women. Netsch Deposition at 29.[3] Thus, Dr. Kapoor's contention that mere words are not actionable under the tort of intentional infliction of emotional distress stops well short of accounting for the evidence now before the Court. In sum, the Court finds that reasonable minds could differ on whether the described conduct is actionable. Dr. Kapoor's alleged repeated racial and genderbased slurs and derogatory comments, combined with his many physical contacts with the Plaintiffs, all are more than sufficient to create a jury question for this cause of action. 1185 B. Qualified immunity: the Equal Protection claims Although Plaintiffs at one time were asserting procedural due process violations, see Plaintiffs' Response to ENMMC Defendants' Motion for Partial Summary Judgment on Plaintiffs' Claims under 42 U.S.C. Section 1983 (First and Fourteenth Amendment Claims; Qualified Immunity), Plaintiffs implicitly admit that with the dismissal of their contract claims all that remains of their constitutional claims are alleged violations of the Fourteenth Amendment's Equal Protection Clause and of the First Amendment's free speech guarantees. See, e.g., Plaintiffs' Response to Dr. Kapoor's Motion for Summary Judgment Regarding Claims Made by Phyllis DeBaun at 2-3. Against these claims Dr. Kapoor has asserted qualified immunity, arguing that his conduct toward each of the Plaintiffs has not violated clearly established law. The doctrine of qualified immunity shields state actors "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Woodward v. City of Worland, 977 F.2d 1392, 1396 (10th Cir.1992), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Once a defendant adequately raises the defense, "the plaintiff must show that the law was clearly established when the alleged violation occurred and come forward with facts or allegations sufficient to show that the official violated clearly established law." Woodward, 977 F.2d at 1396. Generally, "for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). In assessing a qualified immunity defense, a court may not stop at generalized principles of law, but must instead consider factual settings sufficiently analogous to the case at bar. Id. at 1497. However, a plaintiff need not cite case law precisely on point to defeat the qualified immunity defense. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987); Chapman v. Nichols, 989 F.2d 393, 397 (10th Cir.1993). Clanton v. Cooper, 129 F.3d 1147 (10th Cir.1997), has cautioned that courts would be placing an impracticable burden on plaintiffs if [they] required them to cite a factually identical case before determining they showed the law was `clearly established' and cleared the qualified immunity hurdle. Clanton, 129 F.3d at 1156-57, quoting Lawmaster v. Ward, 125 F.3d 1341, 1351 (10th Cir.1997). Both Clanton and Lawmaster instead show that there must be some, but not precise factual correspondence from other case law when deciding a qualified immunity claim. Clanton, 129 F.3d at 1157. Under their overarching complaint of hostile work environment,[4] Plaintiffs essentially have brought two equal protection claims: one for gender discrimination and one for national origin discrimination. Dr. Kapoor does not argue, as he can not, that discrimination based on either gender or national origin is not actionable. Rather, Dr. Kapoor focuses on two arguments in claiming that he enjoys immunity. First, Dr. Kapoor claims that the facts as alleged do not show sufficient pervasiveness to meet the requirements of hostile environment law. Second, Dr. Kapoor asserts that certain alleged conduct, for example grabbing a nurse to hurry her down the hall or throwing objects, has not been shown to be a violation of clearly established law. 1186 Dr. Kapoor's parsing of the individual allegations Plaintiffs have brought is ineffective, for the Supreme Court has given clear guidance that whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993); see also Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir.1998). Thus, this Court may not merely decide whether grabbing a nurse to hurry her down the hall, or throwing charts at the staff, or discussing patient treatment with men rather than women nurses, are by themselves incidents of conduct on which the law has not heretofore given clear guidance. The Court must consider the allegations as a whole. Looking to the totality of the allegations in this case, it is clear that Dr. Kapoor is not entitled to qualified immunity. Plaintiffs' factual averments recited above, supported by deposition testimony, allege a patently offensive pattern of both direct and indirect abuse directed at Hispanics and women that more than meets the standard of pervasiveness the Tenth Circuit has established for hostile environment claims. See Bolden v. PRC, Inc., 43 F.3d 545 (10th Cir.1994). Such conduct, if true as alleged, was sufficiently severe to create a hostile or abusive work environment under the Harris factors and Tenth Circuit standards. Other evidence buttresses this conclusion. Certain Plaintiffs allege that Dr. Kapoor treated female patients differently than his male patients. Discriminatory treatment of Hispanic or women patients can contribute to a hostile work environment for Hispanic or women employees. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 65-66, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), citing Rogers v. E.E.O.C., 454 F.2d 234 (5th Cir.1971); Walker v. Ford Motor Co., 684 F.2d 1355, 1359 n. 2 (11th Cir.1982). Ms. DeBaun complains that Dr. Kapoor would let male staff place vaginal markers in female patients and not allow the radiation staff to bring in a female nurse. DeBaun Deposition at 27. Patrick Sanchez testified that Dr. Kapoor performed a full pelvic exam on a female patient, asking a man to hold one of the patient's legs. Sanchez Deposition at 59-62.[5] Mr. Sanchez also testified that when 1187 examining certain patients, Dr. Kapoor did so without any regard for their pain: [Mr. Sanchez]: We had a patient that had bone metastasis to her ribs, and we'd been treating her for quite awhile, maybe six months to a year. Finally, you know, it metastasized into the bone, and it was in her ribs, she was in tremendous pain. Dr. Kapoor, when he examined the area where she was having the pain in the ribs, poked this lady, like this (indicating), so hard that she almost jumped off the table. Q. Okay. A. And that was pretty common when it came to examinations like that type of women or Hispanics [sic], that was a very common process for him. Q. To physically touch the area? A. Physically touch the area in a very strong fashion, without any compassion for the person, without any compassion for the pain that the patient is already suffering sitting on that table. Sanchez Deposition at 64. Sally Netsch testified that Dr. Kapoor provided very little modesty to women patients when it came to physical exams, Netsch Deposition at 34, reprimanded female patients for the businesses they ran, id. at 35-36, spent more time with male patients than with female patients, id. at 64, and devoted little, if any, attention to Hispanic patients, id. at 35, and on one occasion harassed a female patient so badly that she left crying. Id. at 44. Betty DeLosSantos stated that Dr. Kapoor pinched or popped the nipples of female patients. DeLosSantos Deposition at 144. Ms. DeBaun corroborates Mr. Sanchez's claims, saying that when [Dr. Kapoor] examined female patients, he would bring men into the room. On radiated inflamed areas, such as a breast, he would yank and ask the patient if that hurt. They'd been receiving treatment for three to four weeks, they'd practically come off the table. DeBaun Deposition at 30. In sum, as in Rogers, the abusive treatment of the hospital's patients could contribute to the creation of a hostile environment for the hospital's employees. The Court recognizes a disparity in the amount of abuse some Plaintiffs have alleged with respect to others. For example, Mary Gonzales had the least complaints regarding Dr. Kapoor's behavior and did not claim that Dr. Kapoor grabbed her. Yet the Supreme Court has cautioned that examples of severely harassing conduct "do not mark the boundary of what is actionable." Harris, 510 U.S. at 22, 114 S. Ct. 367. Even Ms. Gonzales, who has the fewest claims among Plaintiffs here, has alleged sufficiently pervasive conduct that alters her conditions of employment to survive a qualified immunity motion. Some of the conduct Plaintiffs have described bears comparing to conduct depicted in Kopp v. Samaritan Health System, Inc., 13 F.3d 264 (8th Cir.1993). There a physician stood accused by a hospital employee of yelling and throwing his stethoscope at her, calling her a "stupid bitch," and angrily shaking her for approximately 30 seconds. Id. at 266. Other testimony alleged numerous instances of the doctor's "shouting at, swearing at, throwing objects at, using vulgar names to refer to, and shoving female employees." Id. at 267. Those circumstances in part led the appellate 1188 court to reverse a grant of summary judgment in favor of the hospital in this Title VII action. Similarly, Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900 (11th Cir. 1988), cited for an example of hostile environment by Gross v. Burggraf Const. Co., 53 F.3d 1531, 1545 (10th Cir.1995), discusses some of the same behavior with which Plaintiffs here have charged Dr. Kapoor. Contributing to the hostile environment in Huddleston were derogatory gender-based comments uttered in front of customers, Huddleston, 845 F.2d at 902, a supervisor's yelling at the plaintiff in front of other employees almost daily, id. at 903, and that same supervisor's grabbing the plaintiff by the arm and physically moving her a few feet, berating her for her performance. Id. at 904. This Court need look no further than Kopp and Huddleston in its qualified immunity analysis. A reasonable physician would have been on notice at least as early as 1993 that the conduct Plaintiffs have alleged in this action, if proven, could be sufficiently severe or pervasive as to be clearly against the law. C. Factual sufficiency of the First Amendment claims The arguments Dr. Kapoor presents in seeking to have the First Amendment retaliation claims dismissed are all rooted in a claimed failure of proof. For Plaintiffs DeLosSantos, Sanchez, Netsch, and DeBaun, Dr. Kapoor argues that the facts do not reflect a public complaint regarding mistreatment. Dr. Kapoor admits that Ms. Nieto complained, but states that this complaint did not involve allegations of gender or racial discrimination. For Ms. Gonzales, Dr. Kapoor acknowledges a complaint that touches on gender discrimination, but states, as with all Plaintiffs, that there is no evidence before the Court of his having retaliated against any Plaintiff for complaining of discrimination or harassment. The time is long past when a public employee had to choose between staying employed and enjoying First Amendment rights. See Connick v. Myers, 461 U.S. 138, 143-144, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983). Moreover, while a public employee's freedom of speech is not unlimited under modern jurisprudence, a public employee does not forfeit the protection of the First Amendment against governmental abridgment of freedom of speech if she decides to express her views privately rather than publicly. Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 414, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979). The Tenth Circuit has implied a broad definition of First Amendment retaliation, rejecting the notion that "only adverse employment decisions, such as termination, suspension, or transfer, in retaliation for constitutionally protected rights are illegal. Actions short of an actual or constructive employment decision can in some circumstances violate the First Amendment." Morfin v. Albuquerque Public Schools, 906 F.2d 1434, 1437 n. 3 (10th Cir.1990). The proof required for a First Amendment retaliation claim is in four parts, with the first two being legal rulings and the other two being factual findings. Wulf v. City of Wichita, 883 F.2d 842, 856-57 (10th Cir.1989); Dill v. City of Edmond, Okl., 155 F.3d 1193, 1201-02 (10th Cir. 1998). The questions of law are whether an employee's speech involves a matter of public concern, and if so, whether the employee's interests in commenting on such matters, balanced "against the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees," Dill, 155 F.3d at 1201, quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), outweigh the interests of the employer. Dill, 155 F.3d at 1201. If a court concludes that the employee's interests tip the balance, then a factfinder must consider whether a plaintiff has proven "that the speech was a substantial factor or a motivating factor in the detrimental employment decision." Dill, 155 F.3d at 1202, quoting Gardetto v. 1189 Mason, 100 F.3d 803, 811 (10th Cir.1996). If a plaintiff "makes such a showing, the employer may demonstrate that it would have taken the same action against the employee even in the absence of the protected speech." Dill, 155 F.3d at 1202, citing Gardetto, 100 F.3d at 811. The first step of an analysis is determining whether the speech at issue can be "fairly characterized as constituting speech on a matter of public concern." Connick, 461 U.S. at 146, 103 S. Ct. 1684; see also David, 101 F.3d at 1355. Considering an employee's motive in speaking out, courts must weigh the content, form and context of the speech in light of the whole record before them. David, 101 F.3d at 1355. At the outset the Court looks to the deposition testimony Plaintiffs have put forth to determine whether, as Dr. Kapoor suggests, Plaintiffs failed to complain regarding their work environment. Although the amount of protected speech in which each Plaintiff engaged varies, construing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party the Court finds that each and every Plaintiff has met the standard for showing that their speech involved a matter of public concern. Dr. Kapoor cannot seriously debate that Plaintiffs' complaints, while employment related, touch on matters of public concern, for "even speech that focuses on internal employment conditions and is made in the context of a personal dispute may be regarded as pertaining to a matter of public concern if it addresses important constitutional rights which society at large has an interest in protecting." Woodward v. City of Worland, 977 F.2d 1392, 1404 (10th Cir.1992). In this instance, the gravamen of Plaintiffs allegations is the pervasive atmosphere of gender and ethnic discrimination at the ENMMC Cancer Center, to which Dr. Kapoor subjected them over the course of some three years at ENMMC. "Allegations of sexual harassment have been found to involve matters of public concern," Wulf, 883 F.2d at 860, particularly if the allegations touch not solely on the complainant's own employment conditions, but also involve the harassment of other workers. See David, 101 F.3d at 1356-57. Likewise, speech disclosing racially discriminatory employment practices is a "matter of social concern to the community." Patrick v. Miller, 953 F.2d 1240, 1247 (10th Cir.1992); see also Langley v. Adams County, Colo., 987 F.2d 1473, 1479 (10th Cir.1993). All Plaintiffs testified that they complained at least to Wayne Stockburger, the director of the ENMMC Cancer Center, concerning Dr. Kapoor's treatment of Hispanics and women. Mr. Patrick Sanchez, perhaps the most vocal of the Plaintiffs, stated that he first complained to Dr. Kapoor, but that Dr. Kapoor would continue with his derogatory comments about Hispanics. Sanchez Deposition at 93. Mr. Sanchez also complained to Mr. Stockburger for over a year, sometimes on a daily basis. Id. at 96. Ms. DeBaun reported Dr. Kapoor's conduct to Mr. Stockburger many times. DeBaun Deposition at 30, 32. Ms. Nieto first complained to Ms. Sanchez, who was her supervisor, then gave a letter of grievance to the ENMMC management. Nieto Deposition at 25, 33-34, 45-46. Betty DeLosSantos also testified in her deposition to her multiple complaints to Mr. Stockburger, either by herself or as part of a group of employees, mentioning physical and verbal abuse as well has national origin discrimination. DeLosSantos Deposition at 141-42. Ms. Netsch complained to Mr. Stockburger some ten to twenty times during the nine months that she worked at ENMMC, Netsch Deposition at 33-34, and approached Ms. Susan Craig of ENMMC's personnel department five times. Id. at 40. Finally, Mary Gonzales twice complained in writing to Mr. Stockburger about Dr. Kapoor's conduct. Gonzales Deposition at 41. Plaintiffs have sufficiently shown protected speech to clear the first hurdle they face in their retaliation claim. 1190 Dr. Kapoor has made no argument with respect to the disruption to the workplace caused by Plaintiffs' speech. The Court, therefore, next considers whether factual issues exist with respect to retaliation for protected speech. While the degree of alleged retaliation varies and in some cases the issue of retaliation is a close call, all Plaintiffs have met their burden of showing, through deposition testimony, that triable issues exist which require their determination by a factfinder. Mr. Sanchez testified that following his complaints, Dr. Kapoor began insulting him directly where before his racial slurs, while targeting Hispanics, had not mentioned him by name. On one occasion following a complaint to Mr. Stockburger, Dr. Kapoor allegedly came into Mr. Sanchez's office, very mad, and called Mr. Sanchez a "stupid, lazy Mexican." Sanchez Deposition at 96-98.[6] While her testimony could have been more specific, Ms. DeBaun stated that Dr. Kapoor continually retaliated against her for her complaints to Mr. Stockburger. DeBaun Deposition at 30. Mrs. DeBaun also discusses being intimidated and harassed by Dr. Kapoor during meetings set up to resolve the conflicts he engendered. Id. at 32. Plaintiff Nieto clearly alleged retaliation when she testified that following her complaints Dr. Kapoor refused to have her present in her work area. Nieto Deposition at 50-52. Ms. DeLosSantos claimed that Dr. Kapoor threatened to fire her many times, DeLosSantos Deposition at 268, and explained her concern that he could influence the ENMMC administration to do so. Id. Ms. Netsch alleges that Dr. Kapoor specifically retaliated by being abusive on occasions when she would complain of his conduct. Netsch Deposition at 77. Lastly, Plaintiff Gonzales testified, as did Ms. Nieto, that Dr. Kapoor retaliated against her by preventing her from being in her work area and doing her job when he was present. Gonzales Deposition at 42-43. In sum, in one degree or another all Plaintiffs have shown a sufficient dispute of material fact on the issue of First Amendment retaliation to warrant the denial of summary judgment on that issue. D. The conspiracy claims Dr. Kapoor has alleged in pertinent part that Plaintiffs have not brought forth any facts that would support their theory that Dr. Kapoor conspired with others to deprive them of their civil rights. In response, Plaintiffs point to their responsive brief for another motion, The ENMMC Defendants' Motion to Dismiss or for Partial Summary Judgment on Plaintiffs' Claims under 42 U.S.C. § 1985, filed September 1, 1998 [Doc. No. 224].[7] In that brief Plaintiffs focus their arguments, addressing Defendants no longer before the Court, on a "conspiracy within the hospital to deprive [them] of their constitutional rights." Response at 4. With respect to Dr. Kapoor, however, Plaintiffs have failed to present sufficient facts to overcome a summary judgment motion for their conspiracy claims. The substantive law of § 1985(3) conspiracy states that "[t]he essential elements of a § 1985(3) claim are: (1) a conspiracy; (2) to deprive plaintiff[s] of equal protection or equal privileges and immunities; (3) an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting therefrom." Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993). Here, although Plaintiffs have alleged 1191 a conspiracy between hospital administrators and Dr. Kapoor, they have not shown evidence of a conspiracy or an act on the part of Dr. Kapoor that would be in furtherance of that conspiracy. The Court has gleaned no factual support for Plaintiffs in the deposition testimony they have submitted for the present motions. Indeed, the focus of that testimony is the conduct of Dr. Kapoor toward hospital staff and its impact on Plaintiffs. Likewise, nothing in the depositions and exhibits submitted with the ENMMC motion [Doc. No. 224] can suffice to meet Plaintiffs' burden here. For example, although Mr. Stockburger testified that administrator Chubb ordered him to "support Dr. Kapoor over the staff regardless of cost and to find a way to get Pat Sanchez out of the picture," Stockburger Deposition at 122; Plaintiffs' Exhibit 4, Plaintiffs have provided no documentation of an act Dr. Kapoor has taken or of conspiratorial agreement between Dr. Kapoor and others. Moreover, Plaintiffs' Exhibit 3 is a March 3, 1996 entry in what appears to be Mr. Stockburger's personal diary, where he recounts that "Mr. Chubb acknowledged that he had not met with Dr. Kapoor." In short, Plaintiffs have not presented evidence of an act on the part of Dr. Kapoor to conspire with hospital officials. Due to a lack of evidence which would show a genuine issue as to an essential material fact, then, the Court is compelled to dismiss the conspiracy charge brought pursuant to 42 U.S.C. § 1985. II. The motion to strike The sole basis for Dr. Kapoor's motion to strike Plaintiffs' response to his motion for summary judgment regarding Ms. DeBaun's claims is that Plaintiffs exceeded, without his concurrence or leave of the Court, the Court's page limitations for exhibits. See D.N.M.LR-Civ. 10.5. Plaintiffs respond that faced with duplicative motions by Dr. Kapoor, they consolidated their exhibits in one motion for the sake of convenience and economy. The Court does not condone the taking of liberties with respect to local rules. The appropriate action when faced with a large number of exhibit pages is to follow those rules. Yet, in this instance efficiency is served by denying the motion to strike. III. Medical Protective's motion to intervene Medical Protective is the professional liability insurer with whom Dr. Kapoor had a policy in force for the time period spanning Plaintiffs' claims. Medical Protective has filed a declaratory action in this District, seeking to be absolved of any liability to Dr. Kapoor. In that action, Medical Protective brought three arguments. First, it contended that the claims of Plaintiffs here do not fall within the coverage afforded by its policy because they are not based on the rendering of professional services. Second, Medical Protective asserted that the willful torts exclusions, sexual acts exclusions, and punitive damages exclusions of its policy prevent its being obligated to indemnify Dr. Kapoor under the policy. Finally Medical Protective, although it has so far provided a defense to Dr. Kapoor, claimed that it does not owe him a defense obligation. Dr. Kapoor moved to stay the declaratory action, and Chief Judge Conway, to whom the case was assigned, granted his request on August 11, 1997. Medical Protective Company v. Nieto, et al., No. CIV 96-1623 JC/DJS (D.N.M. Aug. 11, 1997) (order granting stay). As a basis for his ruling, Chief Judge Conway found that the facts alleged in the complaint here against Dr. Kapoor were not sufficiently clear and explicit to allow this Court as a matter of law to determine the scope of the insurance coverage. Following the stay imposed in its declaratory judgment action, Medical Protective moved to intervene here for the sole purpose of submitting jury instructions and special interrogatories to the jury. Medical Protective seeks both as-of-right and permissive intervention. Plaintiffs are silent on the issue of Medical Protective's intervention. 1192 Intervention under Rule 24 of the Federal Rules of Civil Procedure may, upon timely application, be either as of right or permissive. Fed.R.Civ.P. 24. When as of right, an intervenor must show in relevant part 1) that she has an interest relating to the property or transaction which is the subject of the action, 2) that she is so situated that the disposition of the action may as a practical matter impair or impede her ability to protect that interest, and 3) that existing parties do not adequately protect that interest. Fed. R.Civ.P. 24(a). For permissive intervention, a party may intervene when her "claim or defense and the main action have a question of law or fact in common," Fed.R.Civ.P. 24(b), with a court considering "whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Id. In this case, Dr. Kapoor does not deny that Medical Protective has acted in a timely manner. The Court focuses, therefore, on the other requirements of the rule. A. Intervention as of right The interest required for as-of-right intervention must be "direct, substantial, and legally protectable." Coalition of Arizona/New Mexico Counties v. Dept. of Interior, 100 F.3d 837, 840 (10th Cir.1996); City of Stilwell, Okl. v. Ozarks Rural Elec. Co-op. Corp., 79 F.3d 1038, 1042 (10th Cir.1996). Here Medical Protective contests both liability for indemnification and its duty to defend Dr. Kapoor. It is, however, providing a defense subject to an adjudication that it is not bound to do so. Medical Protective argues that its financial stake in the outcome of the case at bar creates a right which, for purposes of Rule 24, is direct and substantial right. The Court disagrees. Although the federal law on this issue is somewhat scant, it is sufficiently developed for this Court to make an informed ruling. Restor-A-Dent Dental Laboratories, Inc. v. Certified Alloy Products, Inc., 725 F.2d 871 (2nd Cir.1984), a case frequently cited on this issue, involved a contract and breach of warranty action where the defendant's insurer sought to intervene in the trial "for the limited purpose of submitting written interrogatories to the Court for submission to the jury, to be answered by the jury in the event that it returns a verdict awarding damages to [the] plaintiff." Id. at 873. The appellate court, in reviewing the lower's court's decision to deny intervention, reasoned that the insurer did not have an interest in the underlying contract dispute. Id. at 875. The court held that the interest the insurer asserted depended on two contingencies: a finding of liability in the contract action, and a finding that the insurer was not liable for indemnification. Id. As the Restor-A-Dent court took pains to explain, absent a subrogation interest the insurer's interest in the outcome of the litigation was too contingent to be given effect in a motion to intervene. The Restor-A-Dent court candidly noted that the precedents in support of its ruling were "less than overwhelming," id. at 876, and that it was resting its holding in part on practical considerations. Notably, the court commented that refusal to find a right under Rule 24(a) still [left] open a possibility in an appropriate case of permissive intervention by an insurer under Rule 24(b) for the purpose sought [in the case], while a contrary holding would open the door wider to such intervention regardless of any unfortunate effect on the course of the main action. Id. Concern for a proper balance between the two parts of Rule 24, then, also influenced the court's ruling. The underlying action in Travelers Indem. Co. v. Dingwell, 884 F.2d 629 (1st Cir.1989), was litigation to give effect to a settlement agreement addressing environmental liability. Id. at 631-32. Primary and excess insurers, who had reserved the right to deny coverage, sought intervention. Id. at 632. The court affirmed the denial of intervention, holding that the insurers' interest in minimizing its insured's 1193 liability was contingent, precisely because the insurers contested coverage. Id. at 638-39. In addition, the court cited the "well-established policy that an insurer who reserves the right to deny coverage cannot control the defense of the lawsuit brought against its insured by an insured party." Id. at 639. To permit intervention where coverage is in dispute would allow an insurer to "interfere with and in effect control the defense. Such intervention would unfairly restrict the insured, who faces the very real risk of an uninsured liability, and grant the insurer a `double bite at escaping liability.'" Id., quoting United Services Automobile Ass'n v. Morris, 154 Ariz. 113, 741 P.2d 246, 251 (1987).[8] Nor can an insurer intervene in order to establish that the policy in effect does not provide coverage. The insurer's interest in adjudicating coverage, like its interest in minimizing its insured's liability, has no bearing on the underlying action, which in Dingwell was the apportionment of tort liability. Dingwell, 884 F.2d at 640. Aligning itself with the Second Circuit, then, the First Circuit has refused to allow intervention when an insurer seeks to minimize its insured's liability or to adjudicate a coverage issue. The result may be different where an insurer requests a determination of its duty to defend. In addition to its Restor-A-Dent pronouncements, the Second Circuit visited insurer intervention in American Home Products Corp. v. Liberty Mutual Ins., 748 F.2d 760 (2nd Cir.1984), a case involving an insurer's duty to defend and indemnify a pharmaceutical company in 54 underlying product liability lawsuits. Id. at 761. Affirming the trial court's refusal to issue a declaratory judgment addressing those duties, id. at 766, the opinion distinguished Restor-A-Dent by noting that the issue there did not encompass a duty to defend. Liberty Mutual had argued that the court should have issued a declaratory judgment because it was precluded from intervening in the underlying litigation, citing Restor-A-Dent. Differentiating that case, the Liberty Mutual panel stated, in two conclusory sentences, that since Liberty's interest was not limited to indemnification liability but included its obligation to defend, it seemed highly unlikely that it would not be allowed to intervene in the underlying litigations. Id. at 766. The Second Circuit's position, then, appeared to be that an insurer meets the interest requirement of Rule 24(a) when it seeks to intervene for the purpose of contesting its duty to defend, as opposed to contesting indemnification. At least one other federal court has taken a similar approach, although it ultimately denied intervention as of right by finding a lack of impairment. Davila, 141 F.R.D. at 71-72. Davila involved patent infringement litigation against officers and shareholders of a corporation, where the corporation's insurers sought to intervene as of right. Id. at 69. When the defendants tendered their defense, the insurers refused to defend, citing a willful acts exclusion in their policies. Id. After surveying the case law on intervention as of right, the court focused on the insurers' interests, looking not just to indemnification but also to the issue of whether a duty to defend existed. Id. at 71. The existence of this duty and the perils that an insured could incur in either refusing to defend, reserving rights, or waiving reservations persuaded the court that the insurers had sufficient interest in intervention. Id. The court went on to note, however, that where state law requires a trial in a liability action before coverage can be adjudicated, an insurer who seeks to intervene in a dispute over coverage will not be estopped from raising noncoverage defenses in later proceedings. Id. at 72. Concluding from this lack of future preclusion that the intervenor thus could show no 1194 impairment, the court denied intervention as of right. Id. at 72-73.[9] Another case directly addressing the issue of intervention where an insurer contested both its duty to defend and policy coverage is Knapp v. Hankins, 106 F. Supp. 43 (E.D.Ill.1952), involving dram shop liability. The Knapp court, faced with the insurer's request to intervene as of right, reasoned that "it would be unfair to require defendant to defend that case at his own expense if the policy is valid, even though he might subsequently recover such expenses from the [insurance] Company; it would be equally unfair to require the Company to defend Hankins if the policy is void." Id. at 47. Looking to the facts of the tort action indicating significant financial exposure to the insurer, the court concluded that, as in instances where an indemnitor may intervene in an action against a principal debtor, so too should the insurer be able to intervene to contest its duty to defend and provide coverage. Id. Taken together, Liberty Mutual, Davila, and Knapp may suggest that the duty to defend interest is sufficiently direct to serve Rule 24(a) purposes. The holdings or the reasoning of those cases are not persuasive. The interests Medical Protective assert are contingent, as Restor-A-Dent and Dingwell convincingly reasoned. Against the holdings of those two cases, Medical Protective only has relied on the general intervention principle aimed at "disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process." Coalition, 100 F.3d at 841. Medical Protective has not cited a modern appellate case that would allow intervention under the facts before this Court. In addition, while Medical Protective has mentioned its duty to defend as an interest, it has not differentiated it from indemnification issues. As Dr. Kapoor correctly argues, whether Medical Protective owes Dr. Kapoor a duty to defend is not an issue in the present litigation. The duty to defend arises in part from allegations on the face of a complaint or from the known but unpleaded factual basis of a claim. American General Fire and Casualty Co. v. Progressive Cas. Co., 110 N.M. 741, 799 P.2d 1113, 1116 (1990). Here, while the ultimate facts of this case may have a bearing on indemnification, they are not the principal focus of the duty to defend. Even if Liberty Mutual, Davila, and Knapp can be read to provide firm support for Medical Protective's arguments, to allow Medical Protective to intervene here would strike at the heart of the prohibition outlined by the Dingwell court. Medical Protective has signaled, through its filing a declaratory action disputing coverage and its duty to defend, that its interests in this case are aligned with Plaintiffs. Moreover, some elements of Plaintiffs' claims, if proved, could favor Medical Protective. Plaintiffs are alleging intentional gender and race based discrimination actionable under § 1983, along with associated tort claims. An element of Plaintiffs' burden for their § 1983 claims is willful conduct. See Washington v. Davis, 426 U.S. 229, 238-41, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976). Prima facie tort also has an intent element. See UJI 13-1631 NMRA 1991. Medical Protective has alleged, in its complaint seeking declaratory judgment, the existence of a willful tort or sexual act exclusion in its professional liability policies. A finding of willful conduct could expose Dr. Kapoor both to liability in the primary action and to the loss of coverage. In seeking to intervene for purposes of the preparation of jury instructions, then, Medical Protective is seeking to control Dr. Kapoor's defense in an instance where it contests coverage, thus trying to obtain 1195 a double bite at escaping liability, an action which Dingwell appropriately recognizes places an unfair burden on an insured. See Dingwell, 884 F.2d at 639. The Court denies intervention as of right. B. Permissive intervention Because of the competing interests of Dr. Kapoor and Medical Protective, the Court will deny permissive intervention. Permissive intervention is possible when an applicant's claim or defense and the main action have a question of law or fact in common. Fed.R.Civ.P. 24(b). The very actions of which Plaintiffs complain, if proven, may lead to a determination that Dr. Kapoor has acted outside the scope of the protection afforded by his insurance policy. Thus, at least some common questions of fact exist which would support permissive intervention. In addition, though, under Rule 24(b) a court also must consider whether "the intervention would unduly delay or prejudice the adjudication of the rights of the original parties." The defendant's insurer in Plough, Inc. v. International Flavors and Fragrances, Inc., 96 F.R.D. 136 (W.D.Tenn.1982), obtained limited permissive intervention under procedural facts which closely parallel the ones of the case at bar. The insurer, refusing to defend except on a reservation of rights, brought a separate declaratory judgment action which the court stayed pending a resolution of the underlying litigation taking place in another forum. Id. at 136. Then going to the court adjudicating the primary action, the insurer sought both as of right and permissive intervention. Summarily denying as of right intervention, the court allowed permissive intervention "for the very limited purpose of submitting special interrogatories, at pretrial and trial, to the [c]ourt pursuant to Rule 49(a) and (b)." Id. at 137. The court, however, was ambivalent about the insurer's role in the case, reserving judgment on whether the interrogatories would reach the jury, and reserving ruling on whether if they did their answers would be considered advisory only in disputed issues between the insurer and the defendant. Id. While allowing permissive intervention, then, the court clearly was uncertain regarding the insurer's participation in the primary litigation. Despite Plough's illustrating an instance of permissive intervention by an insurer, this Court will deny Medical Protective Rule 24(b) intervention. As the Court already has explained, allowing Medical Protective to intervene where its interests are unquestionably antagonistic to Dr. Kapoor's will prejudice the adjudication of his rights. Not only will he have the burden of presenting a defense to Plaintiffs' accusations, but he will carry the additional burden of having his insurer interfere with his defense. Dingwell, 884 F.2d at 639. Because of the conflict between Dr. Kapoor and his insurer, the better course of action, rather than grant permissive intervention, is to allow the stayed declaratory action to resolve that conflict at the conclusion of the present litigation. IV. The transfer of case number CIV 96-1623 JC/DJS New Mexico law recognizes that factual questions surrounding coverage issues and an insurer's duty to defend are appropriately addressed in the primary litigation. Foundation Reserve Ins. Co. v. Mullenix, 97 N.M. 618, 642 P.2d 604, 606 (N.M 1982); Lopez v. New Mexico Public Schools Ins. Auth., 117 N.M. 207, 870 P.2d 745, 748-49 (1994). The case at bar is the primary litigation. An adjudication of the respective rights of Dr. Kapoor and Medical Protective will involve the same factual questions raised here. Thus, in the interests of efficiency the Court will transfer case number No. CIV 96-1623 JC/DJS, the declaratory judgment action, to the judge assigned to the primary litigation. THEREFORE, IT IS HEREBY ORDERED that the First Amended Motion to Intervene for Sole Purpose of Participating in Preparation of Jury Instructions, filed June 10, *1196 1998 [Doc. No. 191] be, and hereby is, denied. IT IS FURTHER ORDERED that Defendant Kapoor's Motion for Summary Judgment Regarding Claims made by Plaintiff Nieto, filed August 17, 1998 [Doc. No. 197], Defendant Kapoor's Motion for Summary Judgment Regarding Claims made by Plaintiff Gonzales, filed August 17, 1998 [Doc. No. 199], Defendant Kapoor's Motion for Summary Judgment Regarding Claims made by Plaintiff DeBaun, filed August 17, 1998 [Doc. No. 201] Defendant Kapoor's Motion for Summary Judgment Regarding Claims made by Plaintiff Netsch, filed August 17, 1998 [Doc. No. 203], Defendant Kapoor's Motion for Summary Judgment Regarding Claims made by Plaintiff Sanchez, filed September 28, 1998 [Doc. No. 246], Defendant Kapoor's Motion for Summary Judgment Regarding Claims made by Plaintiff DeLosSantos, filed September 28, 1998 [Doc. No. 250], and Defendant Kapoor's Motion to Strike "Plaintiff Response to Dr. Kapoor's Motion for Summary Judgment Regarding Claims made by Phyllis DeBaun", filed October 5, 1998 [Doc. No. 254] be, and hereby are, denied in part. IT IS FURTHER ORDERED that Count VII of Plaintiffs' First Amended Complaint be, and hereby is, dismissed. IT IS FURTHER ORDERED that case number CIV 96-1623 JC/DJS be, and hereby is, reassigned to Judge Martha Vázquez. NOTES [1] The two motions for summary judgment Defendants filed on September 28 were each served on August 25, some six weeks past the motion serving deadline the magistrate judge has imposed in this case. Although the parties dispute whether consent among themselves existed to serve these motions, even assuming consent, the motions were served without the Court's leave. Whatever the extent of an alleged agreement between the parties, it cannot change the deadline the Court has imposed. This deadline exists in part to help allocate scarce judicial resources. The parties are strongly cautioned, in light of the magistrate's recent order permitting the taking of an additional thirteen depositions and allowing Defendants to conclude discovery, that the Court will summarily strike any dispositive motions filed without leave indicating just cause. [2] The Court has held that Dr. Kapoor is a state actor for purposes of this litigation. See Nieto v. Kapoor, et al., No. CIV 96-1225 MV/ JHG, slip. op. at 5-6 (D.N.M. Sept. 18, 1998). [3] Patrick Sanchez, however, testified that Dr. Kapoor "would put his arm around me and make me run back towards wherever he wanted me to go at the time forcefully." Sanchez Deposition at 100. There is conflicting evidence, therefore, on the extent of Dr. Kapoor's physical contact with ENMMC staff. [4] Plaintiffs may assert a hostile environment claim while seeking redress for violations of the Equal Protection Clause under § 1983. See Jemmott v. Coughlin, 85 F.3d 61, 67 (2nd Cir.1996). The "elements of the substantive cause of action are the same under both statutes." Id.; see also Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir.1991). [5] Mr. Sanchez's complete testimony on this point more fully explains this conduct: [Mr. Sanchez] There was a patient a young female patient that we were treating for pelvic carcinoma, she was approximately in her thirties. Dr. Kapoor asked me to come in and take a look at her setup with him after treatment one day. So I came into the room with him, the patient was lying on the table, and she was draped in the proper, respectful manner that you would drape somebody that was being treated in the pelvic area. There was a tech by the name of Evan, there was Richard Garcia, myself. The very first thing he did was he grabbed the sheet that was covering this lady's pelvic area and just pulled it and threw it away to the side. This exposed her genital area. That was exposed with myself, Richard and Evan in the room. I had never seen that done before by a physician Q. Okay A. when they were checking a setup on the pelvic area. Q. Was there anyone else in the room besides those three or four people? A. Yes, I believe there was another tech by the name of Rita Anderson. So after we had checked the setup and for me, it was very difficult to check the setup because I knew this patient, we'd been treating her for about three or four weeks, Evan knew this patient, he'd been treating her for about three or four weeks; Richard knew the patient; and from the time he pulled the sheet off, she turned her head and she was just so embarrassed. Q. Okay. A. And then and then me and Evan, we were just looking at each other and we were shocked. Then he decided to do a full pelvic exam right on the table, right in front of our faces. So he and Richard it's a very difficult thing to lie on a table and have a pelvic exam a female pelvic exam on the table. He had Richard get him a glove to put on his finger, whatever. He had Richard hold her leg open on one side and he had Rita hold her leg open on the other side, and he proceeded to do a full vaginal exam right in front of our faces... So the exam was completed, and me and Evan went back into the room, and Evan had become very close to this patient and the doctor had left, Richard had left, Rita was still there, and the patient was crying, and she was so embarrassed. Sanchez Deposition at 60-62. [6] Mr. Sanchez also alleges having heard from Mr. Stockburger that Dr. Kapoor was influential in the elimination of his position and his eventual termination from ENMMC. While this may eventually be shown at trial, it is not the basis of the Court's ruling, for it is axiomatic that on a summary judgment a court must consider only admissible evidence. Gross, 53 F.3d at 1541 (10th Cir.1995); Thomas v. International Business Machines, 48 F.3d 478, 485 (10th Cir.1995). For this motion Mr. Sanchez has not shown how this evidence would avoid the hearsay bar to admissibility. [7] As a result of the dismissal of ENMMC Defendants, this motion is now moot. [8] As another court has put it, where a policy contains a willful conduct exclusion, "a conflict exists between the insurers who would be just as happy to see willful conduct proved, and the insured, who wants any liability to be covered by the policy." Davila v. Arlasky, 141 F.R.D. 68, 72 (N.D.Ill.1991). [9] The Court notes in passing that Davila's reasoning suffers from ambiguity. While deciding that an intervention interest exists when an insurer contests its duty to defend, the Davila court proceeds to an impairment analysis on the coverage issue. Those two issues are distinct, though they can be related, and the court transitions from one to the other without explaining the tie that binds them.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501053/	61 F. Supp. 2d 1335 (1999) ALLAPATTAH SERVICES, INC., et. al., Plaintiffs, v. EXXON CORPORATION, Defendant. No. 91-0986-Civ. United States District Court, S.D. Florida. July 28, 1999. 1336 Eugene Stearns, Miami, FL, Sidney Pertnoy, Gerald Bowen, McLean, VA, for plaintiffs. Larry Stewart, Miami, FL, Robert Abrams, Robert Brookheiser, Stuart Harris, Darren B. Bernhard, Robert Wallis, Exxon Company, U.S.A., Houston, TX, for defendant. OMNIBUS ORDER ON DAUBERT AND RELATED MATTERS GOLD, District Judge. I. INTRODUCTION. Exxon dealers [i.e. direct served branded dealers] have filed this class action against Exxon Corporation based on a claimed breach of Exxon's contractual obligation to its dealers, and the dealer class as a whole, to charge open wholesale gasoline prices in good faith after it implemented its Discount for Cash ("DFC") Program in 1982. By prior orders, the court has addressed various aspects of the controversy.[1] The current matter arises from numerous motions which essentially seek to exclude expert testimony on damages and related matters. To address these motions, the court has conducted an extensive Daubert[2] hearing over six days.[3] At the Daubert hearing; the court heard the direct testimony and cross-examination of the parties' expert witnesses. The Daubert hearing was the last step in a lengthy process established by prior court orders. The process sought to assure that each party would have a complete opportunity to establish, or not, the reliability of its expert witness' opinions on damages and related matters, as well as the lack of reliability of the opposing expert's opinions. 1337 II. PENDING MOTIONS AND GENERAL BACKGROUND. By order dated March 25, 1999, the parties were permitted until April 15, 1999 to file their expert reports. On that date, the Plaintiffs filed the expert report of Dr. Raymond P.J. Fishe. Exxon filed the expert report of Dr. Joseph P. Kalt. The parties then were permitted until May 3, 1999 to complete their final depositions of the opposing party's expert. Thereafter, each party was permitted to challenge the opposing party's expert by Daubert motions explaining: (i) why the expert is not qualified to testify competently regarding the matters he or she intends to address; (ii) which aspects of the expert's methodology is claimed to be unreliable as determined by the sort of inquiry mandated in Daubert, (iii) and why the testimony will not assist the trier of fact to understand the evidence or to determine a fact in issue. See Order on Status Conference, dated March 9, 1999 [D.E. # 972]. The responding party was then permitted to reply with its own memorandum and affidavits. Upon the completion of the depositions, Exxon moved to exclude the testimony of Dr. Raymond Fishe [D.E. # 1020]. In support, it filed an accompanying affidavit of Dr. Joseph Kalt, dated June 6, 1999. Exxon also filed a motion to preclude expert testimony on the amount and basis for damages [D.E. # 1028], and to strike Paragraph 5 of the May 17, 1999 affidavit of Dr. Raymond Fishe [D.E. # 1042]. In response, the Plaintiffs filed their own affidavits. The first affidavit was of Dr. Raymond Fishe, dated May 17, 1999. The second affidavit was of Dr. William D. Nordhaus, dated May 17, 1999. Exxon moved to dismiss the Nordhaus affidavit, but the court previously denied its motion by order dated July 1, 1999. [D.E. # 1125]. Plaintiffs then responded to Exxon's motion to exclude Dr. Fishe's expert testimony with a memorandum of law and a new 50 page affidavit of Dr. Fishe. This affidavit contained a number of new charts and exhibits to further explain or justify Dr. Fishe's April 15th report. It also responded to various attacks made by Exxon during Dr. Fishe's deposition, and by Dr. Kalt in his affidavit of June 6, 1999. Exxon then moved to preclude the testimony by Plaintiffs' expert on analysis not contained in his final report [D.E. # 1091]. Finally, Plaintiffs filed their motion to exclude or limit the testimony of Dr. Kalt [D.E. # 1018].[4] For reasons stated below, the parties' motions are denied. III. FEDERAL RULE OF EVIDENCE 702. Federal Rule of Evidence 702,[5] as explained by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 2794-95, 125 L. Ed. 2d 469 (1993), and in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), controls determinations regarding the admissibility of expert testimony. Expert testimony may be admitted into evidence if: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized 1338 expertise, to understand the evidence or to determine a fact in issue. See Fed. R.Evid. 702; Daubert, 113 S.Ct. at 2794 (holding that "under the [Federal] Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable"). Here, the court concludes that: (1) both experts are qualified to testify, and (2) that their testimony, through their specialized knowledge, would assist the trier of fact to determine whether the Plaintiffs are entitled to damages.[6] The sole remaining issue for determination is the second inquiry; that is, whether the methodologies by which Dr. Fishe and Dr. Kalt reached their respective conclusions are sufficiently reliable for consideration by the jury. Each party bears the burden of proof to demonstrate reliability by the preponderance of the evidence. Daubert, 113 S.Ct. at 2796 n. 10. As discussed more fully below, the reliability assessment entails preliminary consideration as to whether each expert's reasoning and methodology are sufficiently valid so as to be properly applied to the facts in issue. Id. at 113 S. Ct. at 2797. IV. RELIABILITY DETERMINATION. The Daubert Court noted that "[t]he inquiry envisioned by Rule 702 is, we emphasize, a flexible one." Daubert, 113 S.Ct. at 2797. Many factors will "bear on the inquiry [into whether an expert's reasoning or methodology is reliable], and we do not presume to set out a definitive checklist or test." Daubert, 113 S.Ct. at 2796. Nevertheless, the Court did identify certain factors that may be pertinent to such an inquiry. These factors include: "whether [the theory or technique at issue] can be (and has been) tested"; whether it "has been subjected to peer review and publication"; the "known or potential rate of error" of the technique, as well as the "existence and maintenance of standards controlling [its] operation"; and the degree to which the relevant scientific community accepts the theory or technique as reliable. Daubert, 113 S.Ct. at 2796-97. The district judge is assigned the task "... of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469. In Kumho, the Supreme Court held that Daubert's "gate-keeping" obligation, requiring the trial judge's inquiry into both the expert's relevance and reliability, applies not only to "scientific" testimony, but to all expert testimony. Kumho, 526 U.S. 137, ___, 119 S. Ct. 1167, 1174, 143 L. Ed. 2d 238; see also United States v. Paul, 175 F.3d 906, 910 (11th Cir.1999). The Supreme Court further noted that Federal Rules of Evidence 702 and 703 give all expert witnesses testimonial leeway unavailable to other witnesses on the presumption that the expert's opinion "will have a reliable basis in the knowledge and experience of his discipline." Kumho, 526 U.S. at ___, 119 S.Ct. at 1174 (citing Daubert, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469). Moreover, the Court held that a trial judge may consider one or more of the specific Daubert factors when doing so will help determine that expert's reliability. Kumho, 526 U.S. at ___, 119 S.Ct. at 1175. But, as the Court stated in Daubert, the test of reliability is a "flexible" one, and Daubert's list of specific factors neither necessarily nor solely applies to all experts or in every case. Kumho, 526 U.S. at ___, 119 S.Ct. at 1175 (citing Daubert, 113 S.Ct. at 2786).[7] Alternatively, 1339 Kumho provides that "the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Kumho, 526 U.S. at ___, 119 S.Ct. at 1171 (citing General Electric Co. v. Joiner, 522 U.S. 136, 143, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997)). Thus, the district court is required to exercise a special "gate-keeping" function to ensure that an opinion offered by an expert is reliable. Kumho, 526 U.S. at ___, 119 S.Ct. at 1176. Indeed, "where [expert] testimony's factual basis, data principles, methods, or their application are called sufficiently into question ... the trial judge must determine whether the testimony has a `reliable basis' in the knowledge and experience of [the relevant] discipline." Id. at 1175[8] (emphasis added). The "`gate-keeping' inquiry must be tied to the facts of a particular case." Id. Moreover, the testimony must be helpful or "fit" with the issues to be resolved in the case; that is, the district judge must also determine whether the expert's reasoning and methodology can be properly applied to the facts in issue. Daubert, 113 S.Ct. at 2796. The focus is not on the conclusions generated by the expert's methodology, but on the reasonableness of the expert's use of such an approach, together with his or her particular method of analyzing the data obtained, to draw a conclusion regarding the specific matter to which the expert testimony is directly relevant. Kumho, 526 U.S. at ___, 119 S.Ct. at 1177. The "overarching" goal of Daubert's gate-keeping requirement "... is to make certain that an expert, whether basing testimony 1340 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, 526 U.S. at ___, 119 S.Ct. at 1175. The expert's "self-proclaimed" accuracy is insufficient. "Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Kumho, 526 U.S. at ___, 119 S.Ct. at 1179 (citing General Electric Co. v. Joiner, 118 S.Ct. at 519). Instead, in terms of reliability, it is not the general acceptance of the methodology that is relevant. "[r]ather, it was the reasonableness of using such an approach, along with [the expert's] particular method of analyzing the data obtained, to draw a conclusion regarding the particular matter to which the expert testimony was directly relevant." Kumho, 526 U.S. at ___, 119 S.Ct. at 1177 (emphasis added). In Kumho, the district judge had excluded the expert's testimony because of doubts about reliability. Despite the expert's qualifications, the district judge determined that the expert's testimony "... fell outside the range where experts might reasonably differ, and where the jury must decide among the conflicting views of different experts, even though the evidence is `shaky.'" Kumho, 526 U.S. at ___, 119 S.Ct. at 1177 (citing Daubert, 509 U.S. at 596, 113 S. Ct. 2786) (emphasis added). It is also important that "the court, after looking for a defense of [the expert's] methodology as applied in these circumstances found no convincing defense. Rather, the district judge found (1) that none of the Daubert factors, including that of `general acceptance' in the relevant expert community, indicated the [the expert's] testimony was reliable ... (2) that his own analysis `revealed no countervailing factors operating in favor of admissibility which could outweigh those identified in Daubert ... and (3) the `parties identified no such factors in their briefs.'" Kumho, 526 U.S. at ___, 119 S.Ct. at 1178 (emphasis added). In applying the Daubert/Kumho tests, a district judge should be conscious of two guiding, and sometimes competing, principles. Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir.1999). On one hand, the court should be mindful that Rule 702 was intended to liberalize the introduction of relevant expert evidence. Id.; see also Cavallo v. Star Enter., 100 F.3d 1150, 1158-59 (4th Cir.1996). In this regard, the court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly correct. Id. As with all other admissible evidence, expert testimony is subject to being tested by "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof." Id.citing Daubert, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469. Moreover, "as circumstantial evidence, the [expert's] data and testimony need not prove the plaintiff's case by themselves; they must merely constitute one piece of the puzzle that the plaintiffs endeavor to assemble before the jury." City of Tuscaloosa, 158 F.3d at 565. On the other hand, the court must recognize that due to the difficulty of evaluating their testimony, expert witnesses have the potential to "be both powerful and quite misleading." Daubert, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469. Therefore, given the potential persuasiveness of expert testimony, proffered evidence that has a greater potential to mislead than to enlighten should be excluded. See United States v. Dorsey, 45 F.3d 809, 815-16 (4th Cir.1995). While the above statement of the law appears clear enough, its application to the case of "dueling, but well-qualified experts", each claiming that the other's methodology and use of data is "unscientific," is often troublesome, particularly when the disciplines involved are well-established, the general methodologies are well-known, and where there is no apparent 1341 "smoking gun" that can be characterized as "junk."[9] Merely because two qualified experts reach directly opposite conclusions using similar, if not identical, data bases, or disagree over which data to use or the manner in which the data should be evaluated, does not necessarily mean that, under Daubert, one opinion is per se unreliable. Daubert does not empower the district judge to simply "pick" one expert over the other, because that expert is more credible or convincing, under the guise of exercising the gate-keeping function. To do so would improperly usurp the jury's function. Circumstances may well dictate that both opposing experts' methodologies are sufficiently reliable to undergo further jury scrutiny.[10] Merely because it may be hard for the jury to understand the competing methodologies does not mean that the right to jury trial should be denied and the matter decide de facto by the court.[11] Lacking advice from its own court-appointed expert,[12] how should the district 1342 judge balance and apply these countervailing factors to the "dueling expert" situation in light of the Daubert/Kumho gate-keeping requirements? Otherwise stated, in a case such as this, where striking the expert's testimony would effectively end the case for the affected party, where is the balancing point after the court considers the relevant factors? Daubert/Kumho offer no brightline answer on where to strike the balance. But several guidelines are evident. Once the district judge considers the relevant Daubert factors, the court may strike that expert's opinion, data and methodology when the methodology or data used makes it more likely than not that (1) the research method was not a reliable indicator of the results to which the expert would testify; (2) where the opinion falls outside the range where experts might reasonably differ [and the jury should decide among the competing points of view of the differing experts]; and (3) where there are no convincing, countervailing "more flexible" factors which operate in favor of admission. While this list is not meant to be exhaustive, it does provide a benchmark on how to implement and decide what has become a complex mini-trial process.[13] V. THE EXPERTS' OPINIONS IN CONTEXT. The central damage issue in this case is whether, following the imposition of Exxon's 3% credit card recovery fee ("CCR fee") in August, 1982, Exxon reduced its wholesale prices for motor fuel by an amount, which, on average, across all of its markets, over course of the Discount for Cash Program, offset the CCR fee collected from its dealers? The time period for damages claimed by the Plaintiffs is from March 1983 through August 1994. During this time period, Plaintiffs claim that Exxon "took back" any reduction initially given, such that the entire CCR fee subsequently charged are its damages. In Plaintiffs view, the offset was entirely gone by March 1, 1983. Without dispute, the initial DFC adjustment factor was 1.7 cpg throughout the United States.[14] After that, Exxon adjusted the DFC offset factor three times. First, in 1986, Exxon changed the adjustment factor to 1.0 cpg. Second, in 1991, Exxon again changed the adjustment factor to 1.5 cpg. Then, in 1992, Exxon adjusted it to 1.3 cpg. Assuming these adjustments were actually given during the entire 12 years of DFC, the total wholesale price adjustments to Exxon dealers would have exceeded the CCR fees collected by Exxon by approximately 43 million dollars. Under these circumstances, Plaintiffs would not be entitled to damages. Thus, the ultimate question for the jury is whether Exxon initially gave, and then "took back" the adjustment in total as of March 1, 1983 through August, 1994?[15] In essence, this is an "all or nothing" case.[16] Either Exxon 1343 took back the DFC adjustments entirely or it did not. To explain Exxon's motivation, Plaintiffs opine that Exxon "took back" the offset to increase its profits. These profits, in turn, were invested by Exxon as capital expenditures to modernize certain of its dealers [the "keepers"] at the expense of other, less profitable dealers [the "non-keepers"]. Exxon identified the "keepers" as those stations which could best compete with other major dealers in changing markets. Plaintiffs characterize the economic conditions surrounding Exxon's exercise of its pricing discretion during the period of August 1983 to August 1994 as "not normal" such as to provide Exxon with the incentive to fail to provide the offset in wholesale prices. VI. THE EXPERT TESTIMONY SUBJECT TO CHALLENGE. A. The Need for Expert Testimony. The ultimate "take back" issue cannot directly be determined from Exxon's business records. Exxon did not establish or use a "mechanistic" or "formulaic" approach to automatically make adjustments throughout the DFC program. At best, Exxon's business records[17] provided information from which its managers could make wholesale pricing decisions over its many markets. Therefore, whether Exxon "took back" its wholesale price adjustment or not is a matter, in part,[18] of expert opinion based on extrapolation from various data bases. As noted in City of Tuscaloosa, 158 F.3d at 565, it is one piece, although here, an important piece, of the 1344 puzzle that the Plaintiffs [and Exxon] endeavor to assemble before the jury. In analyzing whether Exxon adjusted its wholesale prices, on average, over its markets, to offset the CCR fees collected from its dealers over the twelve years of the DFC program, both Dr. Fishe and Dr. Kalt start with Exxon's own explanation of what it did. This explanation is set out in what has been referred to as "Exxon's Answer to Interrogatory # 35." In this interrogatory, Exxon states that it utilized a pricing methodology that provided a wholesale price reduction to its dealers in an amount which, on average, offset the charge for credit to its dealers. At the outset of its Discount for Cash marketing program in 1982, Exxon reduced its prices 1.7 cpg throughout the United States. Thereafter, in order to continue to provide the wholesale gasoline price reduction and remain a cash seller, Exxon, as a regular part of its wholesale pricing methodology, took the prices of its credit competitors and subtracted from them the amount that Exxon determined would offset the revenues it received from the 3% credit card fee. Initially, this amount was 1.7 cpg ... As discussed elsewhere, Exxon also adjusted the wholesale prices of its competitors for other marketing programs. Exxon then calculated an average net cash price of its key competitors in each market. Exxon used that average net cash price as a target at which to set Exxon's price. In simple terms, before DFC, Exxon was including in its wholesale price to its dealers a factor for credit card processing. As such, it was a "credit based" major. Other majors which separately charged a credit card processing fee to its dealers [i.e., a non-bundled CCR fee] were known as "cash based majors." In its pricing system, known as the "Wholesale Price Development System" ("WPDS"),[19] Exxon adjusted its key competitor's wholesale prices in WPDS up by 1.7 cpg. After DFC, Exxon stopped adjusting the prices of its cash competitors up and began adjusting the prices of its credit competitors down in WPDS by 1.7 cpg. According to Exxon, it then calculated the average net wholesale price of its key competitors in each market. It then used the average net price amount as a target in setting its prices. Exxon's primary pricing parameter stated that it would seek to set its dealer wholesale prices competitive with the average of the net prices of its key competitors. According to Exxon, "because [it] set its prices on a net basis after subtracting the amount of the DFC adjustment (i.e. 1.7 cpg) from credit competitors prices, Exxon ensured that it priced in the cash market and that its dealers received the wholesale price reduction." Exxon Interrogatory # 35, page 10. Furthermore, 1345 Exxon said that its pricing system was not "formulaic," meaning that its wholesale prices may be above or below the average net wholesale prices of its key competitors on any given day. B. Dr. Fishe's Expert Opinions. Dr. Fishe reached three ultimate opinions which are summarized as follows: 1. Margin Analysis. Immediately following the imposition of the 3% credit cost recovery fee in August, 1982, Exxon reduced its wholesale prices for motor fuel by an amount which, after several months, was sufficient to provide a full, on average, offset to Exxon's 3% CCR fee. It took several months to achieve the full offset because of competitive responses at wholesale and retail and because Exxon introduced the CCR fee in the context of a falling market (i.e., all fuel prices were failing). Sometime between January 1983 and March, 1983, Exxon raised its wholesale prices to take away the offset and never provided it again for the duration of the DFC program. During the period from March 1983 until August 1994, Exxon did not offset the 3% fee, on average, with wholesale price reductions. The effect was that Exxon, on average, overcharged its dealers on a cents-per-gallon basis for motor fuel by an amount determined by dividing the total revenues collected through the 3% fee by the total volume of motor fuel sold to the dealers. 2. WPDS Analysis. Exxon's contention that it complied with the obligation to provide the offset through the DFC adjustment in its price monitor system ("WDPS") is not support by further analysis. 3. Exxon Business Plan Analysis. The economic conditions which surrounded Exxon's exercise of pricing discretion during the period of August 1983 until August 1994, were not normal and provided Exxon an incentive to fail to provide the offset in wholesale prices.[20] 1346 C. Application of Relevant Daubert Factors to Dr. Fishe's Opinions. As noted in City of Tuscaloosa, 158 F.3d at 566 n. 25, the proper inquiry regarding the reliability of the methodologies implemented by economic and statistical experts in this context is not whether other experts, faced with substantially similar facts, have repeatedly reached the same conclusions (because there will be few or no cases that have presented substantially similar facts). Instead, the proper inquiry is whether the techniques utilized by Dr. Fishe (and Dr. Kalt) are reliable in light of the factors (other than testibility) identified in Daubert and in light of other factors bearing on the reliability of the methodologies. Id. In this case, the two principal methodologies used to verify compliance are: (1) an analysis of the retail margins of Exxon dealers, and (2) a comparison of Exxon's wholesale prices to the net average wholesale prices of its key competitors. 1. Daubert Factors 2 and 5; Peer Review and General Acceptance a. Dr. Fishe's Margin Analysis. Dr. Fishe's opinion that Exxon failed to provide the DFC offset is based on the decline in Exxon dealer margins versus the margins of Exxon's competitors shortly after DFC was introduced. Exxon itself, in its answer to Interrogatory # 35, recognized that Exxon's wholesale price reduction to its dealers can be "objectively" verified by margin analysis.[21] Dr. Kalt evidently concurred. In an early affidavit (which Dr. Kalt now suggests was offered in a different context), he stated that if the alleged overcharge was borne by the Plaintiffs, "... the existence ... would be reflected in reduced dealer profitability, resulting from depressed margins and/or lost volume." Affidavit of Dr. Joseph Kalt, dated November 25, 1994.[22] Moreover, Exxon documents offered at the Daubert hearing show that Exxon managers did their own margin analysis to measure the effects of the DFC program on Exxon, its dealers, and on its dealers' key competitors. In effect, Dr. Fishe's margin analysis both utilized, and expanded upon, Exxon's own analyses, with results on a nationwide basis that were not significantly dissimilar.[23] Thus, while the margin 1347 analysis used would not ordinarily be the subject of peer review, publication or general acceptance in the scientific field, its use in the context of this case is appropriate in terms of general methodology. Whether margins increased, decreased, or stayed the same versus the margins of other majors before and after introduction of DFC may be measured objectively with data maintained by Exxon during the ordinary course of business. Of course, merely using an appropriate methodology does not ensure reliability in terms of its application. In fact, a considerable part of Exxon's challenge is to its application based on available data. Before discussing the approach and the challenge, however, it is important to note that both experts employed regression analysis as part of their methodology, although again, there is a dispute over whether the specific analysis used was appropriate to the data. Generally, econometric and regression analyses are considered reliable disciplines. City of Tuscaloosa, 158 F.3d at 566 (expert's compilation of data from business records and analysis with simple arithmetic, algebra, and multiple regression analysis is well-established as a reliable methodology); Askew v. City of Rome, 127 F.3d 1355, 1365 n. 2 (11th Cir. 1997) (in voting rights case, district court admitted expert statistical testimony based on part on multiple regression analysis); Petruzzi's IGA Supermarkets v. Darling-Delaware Co., 998 F.2d 1224, 1238 (3d Cir.) (finding use of multiple regression analysis reliable under Rule 702); see also, Daniel L. Rubinfield, Econometrics in the Courtroom, 85 COL.L.REV. 1084, (1985). Regression and statistical analysis also have been admitted in antitrust cases to prove injury and to determine damages. State of Colorado v. Goodell Bros. Inc., 1987 WL 6771 (D.Colo. Feb.17, 1987) (admitting one and excluding one of expert's econometric models estimating damages). b. Dr. Fishe's Rejection of Exxon's Contention that the DFC Adjustment in its Price Monitor System (WPDS) Caused Compliance with an Obligation to Offset the CCR Fee with Wholesale Price Reductions. The question at issue is whether available wholesale price comparisons establish that, on average, over the DFC period, across all grades of gasoline, and across all of the markets in which Exxon operates, Exxon's wholesale prices were below [or above] the average of its cash-basis competitors (i.e. prices charged by competitors that reflect the net prices paid by dealers when not utilizing credit card services). Each expert reaches directly opposite conclusions. From Dr. Fishe's standpoint, Exxon's internal business records contained errors and omissions in the process by which Exxon attempted to adjust competitors' posted wholesale prices to net prices. In his view, documented errors include relative rent adjustments, credit cost adjustments, and the improper categorization of one of Exxon's significant competitors as one which had offset credit cost recovery fees when Exxon knew that it had not. According to Dr. Fishe, Exxon's records also established that Exxon recognized brand value as an essential factor in motor fuel pricing and that Exxon's brand value varied significantly over markets and across time but that Exxon did not include brand value as one of the adjustments in its WPDS. Finally, he contends that Exxon's wholesale price prior to DFC was consistently reported by Exxon's pricing system to be lower than the wholesale price of its other major competitors. He concludes that during the pre-DFC period, 1348 when Exxon attempted to maintain prices which appeared to be equal to its competitors, it lost volume and market shares. This failure to take the "initial condition" into account through an adjustment in WPDS, in his view, created a bias in the comparison of wholesale prices after DFC. Thus, his premise is that because WPDS did not report accurate adjusted net prices which reflected the absolute relationship between the wholesale prices of Exxon and its competitors (and because Exxon destroyed the before and immediately after key competitor wholesale price data), comparison of the net wholesale prices does not provide an objective basis to measure whether Exxon provided the DFC offset. To determine whether Exxon actively managed the WPDS and set prices by targeting the average of the reported adjusted net wholesale prices of its key competitors so as to provide the offset over time, Dr. Fishe applied a "runs" testa standard statistical techniquetohe delta between Exxon's wholesale price and the average reported adjusted net price of its key competitors.[24] According to Dr. Fishe, the small number of "runs" in the deltas (evidencing lengthy periods of time in which Exxon was above or below the average adjusted net wholesale price of its key competitors) indicated that Exxon was not managing WPDS wholesale prices so as to provide the wholesale price offset. Dr. Fishe also concluded that the absence of key competitor data for the critical periods pre-dating and post-dating the introduction of DFC called into question the use of WPDS to establish compliance. The earliest WPDS electronic data for this time period was missing, as was the hard copy, until January of 1983. In Dr. Fishe's view, the absence of such data during this period precludes any scientific analysis by Exxon of whether it provided the wholesale price offset in accordance with the WPDS pricing methodology as presented in Interrogatory # 35. Accordingly, by using Exxon's internal business records as the source data, Dr. Fishe purported to "correct" the so-called WPDS errors on a cents-per-gallon basis by accounting for brand value studies, reclassifying Texaco as a credit price major, correcting for Shells' rents, and by making adjustments for competitors' proprietary credit card costs. He calculated the extent of the claimed errors and omissions at a positive 1.37 cents per gallon. He applied regression analysis to control for errors in the WPDS wholesale price delta series. He concluded, based on these statistical tests, that the biases in the system made Exxon's prices appear to be lower than they actually were relative to the prices of competitors. The economic and statistical tests applied by Dr. Fishe have standard acceptance in the relevant scientific community. He applied a standard regression model to control for anomalies in his corrected WPDS time series analysis. His "before and after" test and his "initial conditions" analysis are accepted economic analyses used to evaluate causes and effects associated with the introduction of new or extraneous market events or conditions. See In re Industrial Silicon Antitrust Litigation, 1998 WL 1031507 (W.D.Pa.1998) (in price-fixing suit, before and after models of pricing relationships satisfies Daubert requirements as analysis is generally accepted in field of economics). Dr. William Nordhaus, Plaintiffs' rebuttal witness, supports Dr. Fishe's approach and conclusions. c. Dr. Fishe's Opinions on Exxon's Business Plan. Dr. Fishe's third area of inquiry was whether there were economic circumstances that existed during 1982 through 1983 and thereafter that would, in a competitive market, cause Exxon to "take 1349 back" the DFC offset. In other words, from an economic standpoint, why would Exxon cause harm to its dealers? The Daubert factors do not readily apply to Dr. Fishe's opinions concerning Exxon's purported business plan or purpose to eliminate "non-keeper" dealers.[25] Nonetheless, Dr. Fishe's economic opinions are well-grounded on Exxon's own documents and actions.[26] Reliability is sufficiently established on that basis. Dr. Fishe has made permissible inferences from available documentation to support his ultimate conclusion. According to Dr. Fishe, in the 1970's, all major oil companies were reducing their dealer network due to a drop in demand in the United States market for gasoline. During that period, the number of Exxon store closings was below that of Exxon's major competitors. During the 1980's, however, Exxon changed its business strategy and implemented a higher rate of divestment. Its percentage of divestment went from the lowest to the highest among its major competitors starting at the time of DFC and thereafter throughout the 1980's. Obviously, Exxon's divestment rate may have been caused by numerous factors, exclusive of DFC, but it does constitute one piece of the puzzle of circumstantial evidence that Plaintiffs propose to offer to the jury. According to Dr. Fishe, by imposing an additional cost on its dealers the credit cost recovery fee Exxon could observe which outlets could survive economically with lower margins. Those that could survive with lower margins offered greater potential return to Exxon in the form of higher wholesale margins. Those dealers then became more viable candidates for the investments that Exxon had to make to modernize and implement its "pacesetter model."[27] The essence of his opinion is that the failure to offset the credit cost recovery fee was an economically rational decision given Exxon's goals at the time but that these circumstances, collectively, were not "normal" from an economic standpoint. 2. Daubert Factors (3) and (4): Known or potential rate of error and the existence of standards and controls. a. Margin Analysis. Dr. Fishe controlled for factors extraneous to the issue of DFC compliance by comparing Exxon dealer margins to the margins of other dealers in the industry for the same period.[28] Dr. Fishe also controlled 1350 for the potential bias which would be introduced by aggregating full-service and self-service margins into composite pool margins for the purposes of the relevant analysis.[29] Dr. Fishe than applied standard statistical regression models which confirmed with a high degree of statistical confidence that the change in the level of Exxon dealer margins, on both an absolute and relative basis, were statistically significant, thereby excluding other causes for the decline.[30] Although disputed by Exxon,[31] the methodology employed by Dr. Fishe, including the use of controls for extraneous causal factors, together with the application of regression analysis to test the validity of the relevant statistical hypothesis, were appropriate both in their theory and in their application and were of the type routinely utilized by economists and statisticians in conducting such inquires. Moreover, the results drawn from the margin tests were consistent with the various data sets and analyses including Exxon's own internal margin analyses. While Exxon, by cross-examination, and through Dr. Kalt, challenged Dr. Fishe's selection of data, choice of controls, and the like as being fatally flawed, the court respectfully disagrees and concludes that much of Exxon's attack goes more to weight rather than to reliability. b. Dr. Fishe's WPDS Analysis. Dr. Fishe has applied appropriate control mechanisms and standard statistical techniques as appropriate to his various analyses. The results of the "runs test" across all grades of Exxon motor fuel were 1351 consistent and statistically significant at a 99 % level of confidence. In addition, Dr. Fishe applied regression analysis to his corrected WPDS data series in concluding that wholesale prices are biased in Exxon's favor by 1.37 cents per gallon. The regression analysis was performed at a 99 % level of confidence. In response to Exxon's criticism that the data Dr. Fishe used as Exxon's initial condition versus its competitors was not representative, Dr. Fishe provided a matrix of all possible values for the pre-DFC period. The matrix, according to Dr. Fishe, establishes that 98.4 percent of all possible values show Exxon's pre-DFC wholesale price was below other majors, and that the average of all these values is -.9 cents, thereby, in his view, confirming the -.94 cent value from January to August 1982 which Dr. Fishe used as his "initial condition" benchmark. 3. Other Applicable Factors: Exxon's Own Documents. During the course of DFC, Exxon managers repriced motor fuel over 106,000 times. Yet, conspicuously absent from the Daubert hearing is any coherent paper trail showing how, and the manner in which, these pricing adjustments were implemented throughout the DFC period so as to document compliance with Exxon's DFC commitments.[32] While the absence of such records is certainly not determinative, considerable weight must be given to those Exxon business records which are available and are relevant to the questions posed. Dr. Fishe, in fact, considered such records, as produced in discovery, as part of his analysis.[33] The Exxon documents offered by Plaintiffs during the Daubert hearing measure the financial effects of the Discount for Cash Program to Exxon on both a short term basis and a long term basis. One possible interpretation of these documents is that Exxon had a business plan to eliminate the DFC adjustment[34] by 1985 as part of an effort to generate a total net financial effect of $85 million dollars at 75% dealer participation. Whether this was Exxon's intent must await further testimony at trial. But, it is fair game for an expert to consider such documents in conjunction with the application of his own methodologies, particularly where the opposing expert is contending that his opinions are unreliable. At a minimum, these 1352 documents suggest that Dr. Fishe's opinions are supported by more than unsupported speculation or subjective belief. Daubert, 113 S.Ct at 2795. D. Application of Daubert Factors to Dr. Kalt's Opinions. Dr. Kalt opines that economic evidence does not support Plaintiffs' theory that Exxon failed to effectuate cash base prices for its gasoline by removing from its wholesale gasoline price an amount sufficient to offset the cost of credit card processing. To the contrary, he asserts that wholesale price comparisons show that on average over the DFC period, across all grades of gasoline, and across all of the markets in which Exxon operated, its wholesale prices were below the average of its key cash-basis competitors. If Exxon took back the DFC offset, in his view, Exxon's prices would be at the level of its credit-basis competitors and, in fact, Exxon was .14 cents below the average cash basis price of its competitors and 1.52 cents per gallon below the average of its competitor's credit-basis prices. Moreover, he concludes that the comparison of Exxon's dealers' margins to the margins of Exxon's competitors' dealers show that, on average over the DFC period, across all grades of gasoline, and across all of the markets in which Exxon operated, Exxon dealers enjoyed generally higher gross margins than their competitors. Dr. Kalt further opines that during the time of the purported take back of the DFC reduction in price, Exxon's wholesale price actually fell in absolute terms and was essentially unchanged relative to its competitors prices. Finally, contrary to Dr. Fishe's conclusions, Dr. Kalt opines that basic economic principles indicate that it would not have been in Exxon's rational self-interest to fail to implement truly cash-basis pricing for its gasoline, or to take back such pricing after some period of initial implementation. Plaintiffs challenge four aspects of Dr. Kalt's opinions: (1) his "margin count" study for the period 1988-1994, both for all Exxon dealers and for the named Plaintiffs[35]; (2) his creation of wholesale pricing data which he refers to as the Lunberg adjusted data; (3) his "difference" analysis in which he reaches conclusions based upon a comparison of Exxon's wholesale prices as compared to the wholesale prices of Exxon's key competitors as reported in Exxon's WPDS system, and (4) his opinions based upon an aggregation of Exxon dealer margins on both a relative and absolute basis using "common weights" of full service and self service data into a composite pool. The court respectfully disagrees and concludes that Dr. Kalt's 1353 use of data and methodologies is sufficiently reliable for Daubert purposes. 1. Application of Relevant Daubert Factors to Dr. Kalt. In reviewing the Daubert factors as applied to Dr. Kalt's testimony, the court finds similar use of the data, methodologies and statistical techniques as those applied by Dr. Fishe. Obviously, each expert tested his hypotheses in different ways, but that does not mean that each approach was unreliable. What can be said about Defendant's attack of Dr. Fishe applies equally to Plaintiffs' of Dr. Kalt. It goes way beyond reliability and into weight. In the court's view, from a reliability standpoint, Dr. Kalt used reliable and scientifically supported data and implemented proper statistical controls to account for unrelated factors in reaching his conclusion. As such, he, like Dr. Fishe, may testify about his conclusions based on his various analyses. Ultimately, the jury will determine who is right or wrong by the preponderance of the credible evidence in the case. Dr. Kalt's pricing analysis is reasonably based on publicly available posted prices from Lundberg Inc. and from Exxon's WPDS internal pricing system. While Dr. Fishe challenges aspects of the WPDS data, the court concludes it is sufficiently reliable for Daubert purposes. Dr. Kalt's second and third regression tests examined the "but for" effect of changes in the adjustments used by Exxon in its wholesale pricing system on the actual prices that Exxon set over the DFC program and at the time of the DFC adjustment-line-item introduced in 1991. The methodology employed in reaching his conclusion is sufficiently reasonable. While Plaintiffs claim that Dr. Kalt's comparison of net wholesale prices during the period of the DFC program is unreliable because it fails to take account of the relative level of wholesale prices before the DFC program, the court concludes that this is a matter of weight, and that its omission, while certainly probative, does not make his analyses, methods, or conclusions sufficiently unreasonable as to be unreliable. Dr. Kalt adequately responds to the challenge raised by utilizing other tests to control for the prospect that wholesale price comparisons might be biased. The jury ultimately will consider the weight to be given to Dr. Kalt's failure to use an initial conditions benchmark. Dr. Kalt also did two types of analyses regarding dealer margins. First, he tested Plaintiffs' contention that Exxon dealer margins were squeezed by Exxon's purported take back of the DFC offset by the effects of low brand values. Second, he utilized dealer margins relative to competitor margins. Plaintiffs challenge Dr. Kalt's methodology on the grounds that they were not based on proper factual assumptions. The court concludes, however, that the assumptions made were sufficiently reliable for Daubert purposes. IV. CONCLUSION. After considering the relevant Daubert and other factors, I conclude, based on the preponderance of the evidence, that the expert testimony of both Dr. Fishe and Dr. Kalt is reliable and can properly be applied to the issues in this case. Each expert's approach to test his respective hypotheses was reasonable; that is, each expert's use of his particular approach, along with his particular method of analyzing the data to draw a conclusion, was reasonable and employed a high level of intellectual rigor that well characterized the discipline of econometrics. None of the methodologies employed, or choice of data utilized, was based solely on guesswork, speculation or conjecture. Dr. Fishe's reliability is further established when his opinions are reviewed in context with Exxon's own documents, and in the case of pre-or-early-DFC, the conspicuous absence of important Exxon documents. While the cross-examination, affidavits, and counter-testimony were significantly probing, and did in fact raise legitimate questions as to the weight to be given to each expert's methodology and data used, *1354 it is not a district judge's function at a Daubert hearing to determine that the expert's testimony was irrefutable or certainly correct.[36] It is sufficient that each expert's reasoning and methodology had a reliable foundation in the knowledge and experience of his discipline, regardless of claimed errors of interpretation. It is further significant that each expert has more than adequately responded to the opposing counter-attacks with convincing, countervailing factors which, on balance, operate in favor of admissibility. In sum, the opinions of both experts are well within the range where experts may honestly differ, and where the jury must decide among their competing points of view. WHEREFORE, its is ORDERED: 1. Exxon's Motion to Preclude Expert Testimony on the Amount and Basis for Damages [D.E. # 1028] is DENIED. 2. Exxon's Motion to Strike Paragraph 5 of the May 17, 1999 Affidavit of Dr. Raymond Fishe [D.E. 1042] is DENIED. 3. Exxon's Motion to Exclude Expert Testimony by Dr. Raymond Fishe [D.E. 1020] is DENIED. 4. Exxon's Motion to Preclude the Testimony by Plaintiffs' Expert on Analysis not contained in his Final Report [D.E. # 1091] is DENIED. 5. Plaintiffs' Motion to Exclude or Limit Testimony of Exxon's Expert Witness, Dr. Joseph P. Kalt [D.E. # 1018] is DENIED. 6. The Plaintiffs and Exxon are precluded from citing, quoting or referring to any matter in this order to the jury during the trial of the case. The jury shall not be advised, directly or indirectly, that the court has held a Daubert hearing, or has determined that either expert's testimony was found to be reliable. The court shall impose significant monetary sanctions against any attorney, and the respective party, in the event of a violation of this order. If either party seeks to impeach the opposing expert by statements made during the Daubert hearing, such party shall reference the source of the statement as having been made "at prior proceedings." NOTES [1] The court has entered a number of orders on recent pending motions and on pretrial procedures. The more substantive orders include those denying Exxon's Renewed Motion for Summary Judgment [D.E. # 1129]; denying Exxon's Corporation Motion in Limine to Exclude Extrinsic Evidence to Establish the Alleged Obligation under the Written Contracts [D.E. # 1119]; and denying Plaintiffs' Motion for Leave to Assert Claim for Punitive Damages [D.E. # 1156]. [2] See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) which established "gate-keeping" procedures under Fed.R.Evid. 702. [3] This case was filed in 1991 and assigned to the Judge Kehoe. He had set the case for trial in January, 1999. After Judge Kehoe's death, the undersigned, following consultation with the parties, reset the trial date for August 2, 1999. By agreement, the Daubert hearing was set for July, 1999. [4] The Plaintiffs also filed additional motions which are addressed by separate orders. These include Plaintiffs' motion to preclude the testimony of Avrom Landesman [D.E. # 1018]; Plaintiffs' motion for leave to assert claim for punitive damages against Exxon [D.E. # 1016], and Plaintiffs' motion to allow plaintiffs' expert, Dr. Raymond Fishe, to publish academic article regarding oil industry pricing [D.E. # 1013]. [5] Federal Rule of Evidence 702, Testimony by Experts, reads: "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." [6] Neither party challenges these conclusions. [7] In City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 566 n. 25 (11th Cir.1998), rehearing denied en banc, 172 F.3d 884, petition for certiorari filed May 10, 1999, 67 USLW 3717 (1999), the Eleventh Circuit, in a pre-Kumho case, discussed, in a footnote, the proper inquiry regarding the reliability of the methodologies implemented by economic and statistical experts in the Daubert context. The entire footnote is set forth because of its importance to this court's analysis: Twenty-nine states, along with the territories of Guam and Puerto Rico, have briefed this appeal as amici curiae in support of the appellant municipalities. The amici helpfully point out that, although "an important aspect of assessing scientific validity (and therefore evidentiary reliability) is the ability of other scientists to test or retest a proponent's theory," not every scientific or technical methodology applied by expert witnesses is susceptible to such an analysis. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 758 (3d Cir.1994), cert. denied sub nom. General Elec. Co. v. Ingram, 513 U.S. 1190, 115 S. Ct. 1253, 131 L. Ed. 2d 134 (1995). Economic or statistical analysis of markets alleged to be collusive, for instance, cannot readily be repeatedly tested, because each such case is widely different from other such cases and because such cases cannot be made the subject of repeated experiments. The proper inquiry regarding the reliability of the methodologies implemented by economic and statistical experts in this context is not whether other experts, faced with substantially similar facts, have repeatedly reached the same conclusions (because there will be few or no cases that have presented substantially similar facts). Instead, the proper inquiry is whether the techniques utilized by the experts are reliable in light of the factors (other than testability) identified in Daubert and in light of other factors bearing on the reliability of the methodologies. Id. note 16; see also, e.g., Ohio ex rel. Montgomery v. Louis Trauth Dairy, Inc., 925 F. Supp. 1247, 1252-53 (S.D.Ohio 1996) (noting that Daubert factors should be applied flexibly in determining admissibility of economic and statistical expert testimony); In re Aluminum Phosphide Antitrust Litig., 893 F. Supp. 1497, 1506 (D.Kan.1995) ("To the extent that Daubert factors are relevant to its determination [whether an economist's methodologies are reliable], the Court considers them along with any other relevant factors. ... The inquiry is a flexible one, with the overarching subject being the evidentiary relevance and reliability of the principles that underlie a proposed submission."). One factor left unenumerated by the Daubert Court is whether "the methods used by the expert to derive his opinion satisfy the standards for scientific methodology that his profession would require of his out-of-court research." People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 111 F.3d 528, 537 (7th Cir.1997). Taking this factor into account along with the factors identified in Daubert, we readily conclude that McClave's methodologies are quite reliable, with the small exception explained infra. [8] Proposed amendments to Rule 702 are currently under consideration. Should these amendments take effect, trial judges conducting the gate-keeping function will be required to undertake a threepart reliability inquiry in connection with all expert testimony. Gate-keeping judges must make certain that all expert testimony admitted at trial "is sufficiently based upon reliable facts or data" and "is the product of reliable principles and methods," and that "the witness has applied the principles and methods reliably to the facts of the case." Proposed Fed.R.Evid. 702, quoted in 67 U.S.L.W. 2588 (April 6, 1999), and referred to in United States v. Charley, 176 F.3d 1265, 1277 n. 15 (10th Cir.1999). [9] This is not a case of some "late arrival" expert who testifies without significant knowledge about the facts of the case based on some new, unproven, methodology. Here, both Dr. Fishe and Dr. Kalt are well-qualified in econometrics; each has substantial knowledge about the facts of the case based on extensive research and involvement over several years and, while the application of economic/statistical methodologies to the data are at issue, there is no "new" or "untested" methodology involved. [10] This case does not lack in analysis. As described above, by April 15, 1999, each expert filed extensive reports with accompanying exhibits. Initially, Dr. Fishe submitted an 80 page report explaining his conclusions, data and methodologies. Dr. Kalt was equally expansive with his 40 page report with detailed charts and exhibits. Dr. Fishe responded to Dr. Kalt with his affidavit of May 17, 1999. Dr. Fishe's methodologies was supported a 12 page affidavit from Dr. William D. Nordhaus, a professor of economics from Yale University. He also concluded that Dr. Kalt's statistical tests were unreliable. In turn, Dr. Kalt filed his detailed 34 page affidavit, with numerous exhibits, challenging Dr. Fishe's conclusions and methodologies. In response, Dr. Fishe filed a supplemental 50 page affidavit responding to Dr. Kalt. Finally, Dr. Nordhaus filed a second affidavit, dated June 11, 1999, critical of the methods in Dr. Kalt's affidavit of June 5th. All of these matters were again addressed during the court's six-day Daubert hearing. [11] Plaintiffs urge the court to consider decisions of the United States Supreme Court and the Eleventh Circuit that have repeatedly observed that wrongdoers may not argue that the plaintiff's damages methodology is speculative or uncertain, as long as it has a valid evidentiary basis. See Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S. Ct. 574, 90 L. Ed. 652 (1946); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S. Ct. 248, 75 L. Ed. 544 (1931); Eastman Kodak Co. of New York v. Southern Photo Materials, 273 U.S. 359, 47 S. Ct. 400, 405, 71 L. Ed. 684 (1927); United States v. Killough, 848 F.2d 1523, 1531 (11th Cir.1988); Ramada Inns, Inc. v. Gadsden Motel Company, 804 F.2d 1562, 1565 (11th Cir.1986). On the other hand, Exxon urges the court to consider those cases striking expert testimony when it is wholly deficient and fails to provide a just and reasonable basis for an award of damages. General Electric Company v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997) (nothing in the "Federal Rules of Evidence requires a district court to admit opinion evidence [where] ... there is simply too great an analytical gap between the data and the opinion proffered"); Navarro v. Fuji Heavy Indus., 117 F.3d 1027, 1031 (7th Cir.), cert. denied, ___ U.S. ___, 118 S. Ct. 600, 139 L. Ed. 2d 488 (1997) ("a conclusion without any support is not one based on expert knowledge and entitled to the dignity of evidence"); Joy v. Bell Helicopter Textron, 999 F.2d 549, 564 (D.C.Cir.1993) (expert testimony that was unsupported by record and based solely on guesswork, speculation and conjecture inadmissible); Viterbo v. Dow Chemical Co., 826 F.2d 420, 423 (5th Cir. 1987) (excluding expert opinion based on incomplete data); Handi Caddy, Inc. v. American Home Products Corp., 557 F.2d 136, 141 (8th Cir.1977) (vacating jury award where expert testimony relied on assumptions contradicted by the record). [12] In complicated cases such as this, a timely appointment of a court appointed expert to comment on the attacks and counter-attacks could help assist the district judge in understanding and analyzing the crucial differences between the experts, and the reasonableness of each expert's methodology, data and approach given the Daubert factors. See Fed. R.Evid. 706. [13] In their final arguments, and during the course of the six day Daubert hearing, each party raised innumerable challenges to validity of each expert's use of data, assumption and methodology. To listen to the parties, both experts, who have spent years preparing their testimony, did nothing reliable, credible or worthy of further review by the fact finder. While the court complements counsels' advocacy, it is self-evident that each party perceived Daubert as an opportunity to vitiate the other's case or defense. While this may be a function of Daubert, it is not, nor should it be, its intended purpose. [14] The methodology by which Exxon determined the initial 1.7 cpg is not disputed. [15] Plaintiffs do not claim, nor will there be any expert testimony to support, that Exxon incorrectly applied the adjustment factor on a year by year basis, such that the Plaintiffs' damages would equal the difference between the factor applied verses the factor that should have been applied. Plaintiffs' position is that no adjustment occurred after March 1, 1983, and that there were no "give backs" by virtue of later adjustments. [16] U.C.C. Section 1-106 specifies the measure of damages in a breach of contract action under the Code. It states: "The remedies provided by this code shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed but neither consequential or special nor penal damages may be had except as specifically provided in this code or by other rule of law." While Exxon argues that the use of on average nationwide data may mask the fact that some dealers may have post-DFC margins that are greater than pre-DFC margins, the court has previously held that Exxon's alleged good faith obligation is owed to each dealer, and to the class as a whole. Exxon's breach, if any, can be determined only by an "on average, over time, across all markets" analysis of Exxon relationship with all of its dealers. "Following such common proof of damages suffered by the class or by subclasses, the total recovery will then be allocated to individual members, a process that may be accomplished by various means, such as ... use of average damages formulae on a per capita basis .... Once the defendant's total damages liability has been determined, then the allocation of that aggregate sum among class members is an internal class action accounting question that does not directly concern the defendant...." Newberg on Class Actions at 4.26. Exxon's stated position does not seem to be inconsistent. The use of "average nationwide" data for damage purposes is supported by Exxon's own answers to interrogatories. As set forth in Exxon's Interrogatory Response 67 (7/29/96), "Exxon did not attempt to reduce each dealer's individual wholesale price by an amount which offset the amount of the credit card charges actually paid [sic] [by] each dealer." The Discount for Cash program did not contemplate any such reduction, and to do so would have made the program administratively impossible since it would require different reductions for each dealer based on that dealer's own individual retail prices and the percentage of gasoline the dealer sold on credit. Exxon dealers were informed, and should have understood, that the reduction would only be "on average" and that therefore the amount of their individual reduction in the wholesale prices would not necessarily offset the amount of the credit card processing charge each dealer individually paid. In some cases, the reduction in price would have exceeded the amount of an individual dealer's credit card charges. In other cases, the amount of the credit card charges would have exceeded the amount of an individual dealer's price reduction. (Emphasis added). [17] In its answer to Interrogatory # 35, Exxon states that "the fact that Exxon provided the wholesale price reduction can be objectively verified. The price reduction is clearly shown in Exxon's Wholesale Price Development System documents and data." While there is a "DFC" adjustment shown on what is known as "2s" and "5s" reports which were prepared each day for each market throughout the United States, both experts agree that this information, alone, does not answer the ultimate question presented. It merely provided Exxon managers information upon which to make adjustments to its wholesale prices and does not prove that the appropriate adjustments were actually made throughout the DFC program. [18] The Plaintiffs have submitted various Exxon documents to substantiate their claims. Dr. Fishe's opinion rests, in part, on these documents. [19] In an effort to create comparisons between its wholesale prices and the wholesale prices of its key competitors, Exxon, in early 1982, created what is called the Wholesale Price Data System. The objective of WPDS was to adjust key competitors' posted prices for differences known to Exxon so as to create comparable "net" or "adjusted" prices. The use of WPDS data has been a subject of significant debate between the two experts. For instance, Dr. Fishe argues that the data contains certain bias, while Dr. Kalt argues that its does not. Exxon challenges Dr. Fishe for using the WPDS data as part of his analysis notwithstanding the claimed bias. The court concludes that the use of the data by each expert, as part of their methodology, is sufficiently reliable. The weight to be given to the data, and its use by each expert, shall be left for the jury. The use of other data also was at issue between the parties. For the period January 1982 until sometime in 1988, Exxon maintained data reflecting both its and its competitor's retail prices in what it called its Retail Price Data System ("RPDS"). RPDS also was used by Exxon to record its dealer margins (the difference between Exxon's wholesale prices and its dealers' retail prices) and competitor dealers' margins (the difference between its competitors' "net" wholesale prices, as computed by WPDS, and the competitor dealers' retail prices). Exxon used RPDS data to periodically provide management reports reflecting the "delta" or difference between Exxon dealer margins and the dealer margins of its competitors. [20] In its Daubert memorandum, Exxon challenges the following opinions of Dr. Fishe: (1) Exxon did not reduce wholesale prices to dealers on average over time across all markets sufficient to provide an offset to the three percent credit cost recovery fee; (2) Exxon's DFC marketing program was used as a secret method by which to identify, segregate and eliminate inefficient dealers, creating an "abnormal" business environment and an incentive to overcharge dealers, and (3) Plaintiffs damages equal the total amount of credit card cost recovery fees collected by Exxon during the DFC marketing program. While Exxon does not challenge Dr. Fishe's qualification as an expert, it does raise innumerable challenges to the reliability of his analysis. Exxon claims that he used improper methods of analysis that failed to control for factors other than those Dr. Fishe sought to investigate; that Dr. Fishe's analysis assumes facts that are not supported or are contradicted by the record; and that Dr. Fishe used unreliable or unrepresentative data. Exxon also challenges Dr. Fishe because he formulated his opinions before conducting any meaningful work, and because he repeatedly changed the analyses on which he then relied to support those conclusions. The court respectfully disagrees and offers an initial observation. Dr. Fishe's opinions [as well as those of Dr. Kalt's] have evolved over the case as discovery has proceeded. Some of the discovery provided, particularly of the Exxon's electronic data base, was not in any clearly understandable form. Dr. Fishe has had to spend considerable time recasting the data into useable form for proper statistical analysis. The fact that his analysis evolved does not necessarily equate to unreliable. Importantly, the court has had an opportunity to evaluate Dr. Fishe's explanations during his cross-examination.. Contrary to Exxon's position, the court does not view Dr. Fishe as the "hired gun" called upon to speculate and hypothesize and "plug holes" in Plaintiffs case. Of course, Plaintiffs have raised such a charge against Dr. Kalt who has received approximately one million dollars from Exxon for his testimony in this case and who appears to testify regularly for Exxon in other cases, as well as for other major oil companies. Merely because Dr. Kalt was paid well for his time, however, does not necessarily mean that his work effort was unreliable. In this order, the court has endeavored to set forth the essential reasons for its conclusions rather than to address in detail each one of Exxon's [and the Plaintiffs'] innumerable challenges. This does not mean, however, that each such challenge was not considered and evaluated as part of this court's Daubert reliability analysis. The court has been fully briefed on each such challenge, has heard comprehensive final arguments, and has considered proposed orders from the parties. The court also has read the extensive expert reports, reply affidavits, and the legal memoranda of the parties. Time constraint, however, [given the start of this nine year old case on August 2, 1999] precludes the crafting of a more detailed order which addresses each specific challenge. [21] Exxon stated, "Margin data further demonstrate that Exxon provided the wholesale price reduction." [22] Dr. Kalt also stated in his affidavit: "I believe that if an overcharge or duplicative charge did occur as plaintiffs allege, properly applied economic analysis would distinguish the effect of the alleged overcharge or duplicative charge from other factors that might affect retailer profitability and margins. If dealer profitability and margins are found not to have been depressed by the alleged overcharge or duplicative charge, however characterized, that would, in my opinion, be substantial evidence that the behavior the plaintiffs charge did not occur." Id. at Paragraph 6. In his initial expert report, filed January 22, 1997, pages 13 through 14, Dr. Kalt reached a similar conclusion. He agreed that if the overcharge took place, it would be borne by the Exxon dealers and not their ultimate customers. He stated: "... if Exxon retailers were subjected to the alleged overcharge or duplicative charge, market-place forces would preclude the formulaic pass through of such an overcharge or duplicative charge and would cause Exxon's dealers margins to be reduced and the resulting economic burden of the alleged overcharges of duplicative charges to be borne all or in substantial part by Exxon retailers." Id. [23] Exxon's own margin analysis for the Gulf/East Coast region is instructive. While it represents only a margin sample between pre DFC and post DFC through the second half of 1984, it does document that the margins of other dealers either went up or stayed the same (relative to the margins of Exxon dealers) after Exxon adopted its DFC Program. It also demonstrates that after an initial reduction, Exxon's wholesale margin returned to pre-DFC levels, and that Exxon received, in addition, the income from the 3% CCR fee (called the "merchant's fee" on the chart). Finally, the chart shows that, while Exxon's wholesale margin together with the CCR fee increased relative to its competitor's wholesale margins, the margins of Exxon dealers were depressed following the imposition of the CCR fee. Thereafter, Exxon updated this chart with more current information which, according to Dr. Fishe, further establishes the existence of the overcharge; that is, the overcharge is reflected in Exxon dealer's "reduced" profitability resulting from depressed margins. [24] In scientific terms, a "runs" test is used to validate the operation of a process. In seeking to exclude Dr. Fishe's runs test, Exxon does not argue that this is not a scientifically valid analytical technique, but rather, that if it was consistently higher or consistently lower than the average it does mean very much as long as it was "close." The court finds this argument goes more to weight than reliability. [25] Dr. Fishe's conclusions in this area are not subject to peer review, a known or potential error rate, or the existence and maintenance of controlling standards. Rather, Dr. Fishe makes inferences from Exxon's own proprietary documents which remain under seal and which are not subject to peer review. Moreover, Dr. Fishe's opinions are not readily subject to standard economic methodologies, such as regression analysis. For this reason, the court has considered other factors in determining that these opinions are sufficiently reliable to be offered to the jury. The significant other factor are Exxon's own documents as well as Dr. Fishe's charts documenting trends that allow for permissible inferences. [26] In Dr. Fishe's April 15, 1999 report, he discusses Exxon documents that support the concept that Exxon was willing to impose a cost on its stores in order to identify its better performing dealers. Instead of DFC, Exxon was implementing a rebate program for its retail auto stores. The program was funded by increasing Exxon's wholesale prices, so that only some participating dealers received the rebate, while others had to face a higher cost of gasoline. [27] Dr. Fishe reports that Exxon's documents show that it used a "pacesetter outlet" as a model of the future. The model was shown to dealers and analyzed for internal planning purposes. Exxon's documents discuss the pacesetter goal and the difference between a pacesetter store and an Exxon outlet. [28] Because a variety of factors could affect dealer margins, Dr. Fishe sought to control those "other factors." He did so with this "before and after" comparison of Exxon dealer margins over time to the "before and after" margins of competitive dealers over time. One other factors was for the effect of inflation (nominal dollars versus inflation adjusted dollars) which he controlled by adjusting data to account for the changes in the value of money over time. Dr. Fishe also examined data on "absolute margins" over time to compare to the data reflecting changes in margins relative to competitors' margins. With respect to these data he performed a series of statistical tests using "regression analysis." [29] Another key issue in dispute concerns the aggregation of full service and self service data. Exxon's aggregation shows no significant change in dealers' margins. Dr. Fishe examined Exxon's aggregation methodology and concluded that no adjustment had been made by Exxon for differences between full service and self service ratios verses competitors. In Dr. Fishe's view, because Exxon's ratio of full service to self service sales was higher than the group to which margins were being compared [i.e. a larger percentage of Exxon's dealers' sales occurred at full station verses split island or self-service stations], it created a false impression that Exxon dealers' margins had remained flat in relationship to competitors. In his view, they dramatically declined in early 1983 [the period of the "take back"]. To address this issue, he prepared a statistical analysis in which the separate full service and self service margin deltas were aggregated. He observed a "statistically significant break" occurring prior to March of 1983, which appeared whether the series began in September, 1981, or in February, 1982, and continued throughout DFC. Based on this analysis, he concludes that there was no "give back" of the "take back." According to Dr. Fishe, a recovery of the magnitude of the "take back" would have been observable in both the relative and absolute dealer margin data, and no such recovery occurred. Dr. Fishe is critical of Dr. Kalt whose statistical analysis of Exxon's pricing data begins about the time of the claimed "take back." Plaintiffs support Dr. Fishe's position on margins with Exxon's internal management reports. For example, Plaintiffs rely on an Exxon management report in 1994 which observed that while its wholesale margins had dramatically increased in the 12 year DFC period, for the 10 year period, 1984 to 1994, its dealers' margins were "Flat; profits squeezed by cost pressures." Plaintiffs argue that Exxon's own internal records demonstrate that it focused on self service sales instead of "composite" margins which include the elements of full service. [30] Dr. Nordhaus concurred with Dr. Fishe that Dr. Kalt's aggregation of full and self serve margins where Exxon's full serve ratio is higher than its competitors would not constitute proper economic analysis. [31] Exxon argues that Dr. Fishe's opinions and testimony fail to satisfy the standards of relevancy and reliability required by Rule 702. Regarding the offset and damages, Exxon claims that Dr. Fishe's methodology is suspect because he failed to control for unrelated factors; relied on assumptions contrary to facts or where the facts were internally inconsistent; used arbitrary and unscientific data sets and time periods; failed to conduct independent research and reach independent conclusions, and in the case of his opinion regarding the business environment during DFC, lacked relevant expertise. The court respectfully disagrees. [32] There were no internal Exxon documents offered at the Daubert hearing that tracked Exxon's own methodology as set forth in its answer to Interrogatory # 35; that is, documenting how Exxon actually used and then implemented its key competitor's net average wholesale price as a target for its own wholesale price, on a regular basis. Dr. Fishe raises a fair question in his April 15, 1999 report. "How could Exxon be sure that it was in compliance over the twelve years of the DFC program if it did not make the average DTT delta calculation on a regular basis?" Of course, as noted above, even if Exxon mismanaged its own mechanism for the offset, the results still favor the dealers assuming the wholesale price adjustments were not taken back. [33] Another gap in Exxon's data pertains to the comparison of Exxon's prices to the prices of its key competitors for the period before and after introduction of discount for cash. Exxon's own electronic data base covered the period of January 28, 1983 through August 22, 1994. Discount for Cash started in August of 1982. Exxon did produce management reports for the period immediately before and after commencement of DFC which Dr. Fishe used in analyzing Exxon dealer margins on both a relative and absolute basis. [34] The 1982 Exxon management documents included a "DTW Reduction" in measuring the program's financial effects. The comparable 1985 documents did not include the DTW reduction. Dr. Kalt did not address these documents in his testimony. Obviously, the importance of these documents must be left to trial to be placed in context with the testimony of Exxon officials. Yet, for Daubert purposes, their existence adds a factor in support of the "reliability" of Dr. Fishe's expert testimony. For instance, one Exxon marketing department document, dated November 2, 1990, in discussing original DFC assumptions, refers to the "Elimination of the short-term requirement to reduce the DTT.." Another document, in discussing the long term effects of the DFC, allocates reductions in DTT to volume protection and dealer participation, and not to DFC wholesale price reduction. [35] In a prior motion, the Plaintiffs have sought to exclude various "individual" dealer margins, profits, and prices. Plaintiffs have argued that this evidence is irrelevant to the elements of a contractual duty and a breach of that duty relative to the class of dealers as a whole. Plaintiffs also contended that the evidence is prejudicial in that it may tend to mislead the jury to determine that, since certain of the dealers did not realize a substantial loss, if any, the class of dealers was not damaged by Exxon's breach of its class-wide obligations. At issue here is Dr. Kalt's margin analysis of the named Plaintiffs. By prior order, the court reserved ruling on the matter pending the completion of the Daubert hearing. After now hearing the matter in context, the court concludes that Dr. Kalt's margin analysis of the named Plaintiffs is relevant and, on balance, shall not be excluded under Fed.R.Evid. 403. The jury may hear that certain dealers benefitted from DFC and others did not "on average." Using the named Plaintiffs to make this point is "fair game." Plaintiffs, in turn, may request a limiting instruction when this evidence is offered, and may offer rebuttal evidence that other class dealers did not so benefit. In terms of this testimony, the court shall hold Exxon to Dr. Kalt's analysis of the named Plaintiffs. No additional witnesses may be called since such testimony would be cumulative. See Fed. R.Evid. 611(a) (the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence to avoid needless consumption of time). Under the same rule, the court shall limit the number of rebuttal witnesses, or rebuttal expert analysis of the margins of class members, to no more than 12 class members (i.e. the same number as the named Plaintiffs). [36] Each expert has sufficiently controlled for variables to establish his position on the existence, or lack of existence, of causal connections; each sufficiently has based his respective hypotheses on factual assumptions that are supported by Exxon documents, or other reliable data, although the interpretation and application of the data is in dispute, and each has presented to the court a sufficient explanation, founded on a scientific basis, consistent with the discipline involved, for the selection of the data and the time periods used.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501055/	61 F. Supp. 2d 1058 (1999) MODESTO IRRIGATION DISTRICT, Plaintiff, v. PACIFIC GAS & ELECTRIC COMPANY, and Dynergy Power Services, Inc., as successor to Destec Power Services, Inc., Defendants. No. C-98-3009 MHP. United States District Court, N.D. California. August 20, 1999. 1059 1060 Scott T. Steffen, Modesto Irrigation District, Modesto, CA, Maxwell M. Blecher, Blecher & Collins, PC, Los Angeles, CA, for plaintiff. Robert A. Mittelstaedt, Pillsbury Madison & Sutro LLP, San Francisco, Ca, for Destec Energy, Inc., defendant. Marie L. Fiala, Kirk G. Werner, M. Fehrenbacher Claire, Heller Ehrman White & McAuliffe, San Francisco, CA, for Pacific Gas & Elec. Co., defendant. MEMORANDUM AND ORDER PATEL, Chief Judge. On August 3, 1998, plaintiff Modesto Irrigation District, Inc. ("MID") filed this action alleging that defendants Pacific Gas & Electric Company ("PG & E") and Dynergy Power Services, Inc. ("DESTEC") refused to deliver wholesale electric power to NM in violation of federal and state antitrust laws and state tort laws. In particular, MID alleged (1) violations of section I of the Sherman Act, 15 U.S.C. § 1, and the Cartwright Act, Cal.Bus. & Prof.Code §§ 16720 et seq., California's antitrust statute by both PG & E and DESTEC; (2) tortious interference with contract and with prospective business relationship against PG & E alone; and, (3) breach of contract against DESTEC. The court dismissed MID's federal and state antitrust claims on February 2, 1999, on defendants' motion, but granted MID leave to amend its complaint. See Modesto Irrigation Dist. v. Pacific Gas & Elec., Case No. 98-3009 MHP, slip op. at 12-13 (N.D.Cal., Feb. 2, 1999) ("February order"). MID subsequently filed a first amended complaint ("FAC") on March 4, 1999, adding to the factual allegations in its original complaint and raising two additional causes of action: (1) violations of section 2 of the Sherman Act, 15 U.S.C. § 2, against PG & E and DESTEC, and (2) conspiracy to violate section 2 against PG & E and DESTEC. Again before the court is defendants' motion to dismiss MID's federal and state antitrust claims. Having considered the parties' arguments and submissions, the court enters the following memorandum and order. 1061 BACKGROUND Plaintiff MID is an irrigation district, a public agency created under the authority of the California Water Code, which owns and operates facilities for the generation, transmission and distribution of electric power. FAC, at ¶ 4. MID provides retail electric service in Stanislaus, Tuolumne, San Joaquin and Contra Costa counties, and wholesale electric service throughout the western United States. Id. Defendant PG & E is an investor-owned public utility engaged in the generation, transmission and distribution of electricity in northern and central California.[1] FAC, at ¶¶ 7, 10. PG & E sells and delivers electric power to both retail and wholesale consumers and separately sells transmission services to resellers of electric power. Id. at ¶¶ 9-10. As the predominant wholesaler and retailer of electric power in northern and central California, PG & E dominates and controls facilities for the transmission of electricity within its California service territory. Id. at ¶ 10. According to MID, PG & E and MID are in "actual and potential competition" to supply residential and industrial consumers with electric power. Id. at ¶ 12. Finally, DESTEC, a subsidiary of Dynergy Corporation of Houston, Texas, is a wholesaler of electric power, which is also referred to as a "power marketer." Id. at ¶¶ 6, 15. The events at issue in this action concern the purchase and use of a "substation" ("Praxair substation") originally owned by Praxair, Inc. ("Praxair"), a large industrial consumer of electricity located in Pittsburg, California, and a retail customer of PG & E. FAC at ¶ 17. A "substation" is a facility which receives electric power at high voltage and transforms the power into lower, usable voltages. Id. at ¶ 16. MID alleges that PG & E, as the sole supplier of retail electric power in the geographic market of Pittsburg, possessed monopoly power and could control prices or exclude competition from the Pittsburg retail electric power market. Id. at ¶ 19. MID further alleges that significant barriers allow PG & E to limit the access of competitors such as MID to the retail electric power market in the vicinity of Pittsburg. Id. at ¶ 20. Among these barriers include PG & E's ownership or control of all the transmission lines and services supplying wholesale and retail electric power to Pittsburg and the impracticability of duplicating PG & E's local transmission services because of cost and regulatory barriers. Id. at ¶¶ 21-22. Finally, as a result of the exclusion of MID from the retail electric power market in the vicinity of Pittsburg, MID alleges that Praxair and other residential and commercial consumers of retail electric power have been deprived of the benefits of low-cost electric power. Id. at ¶ 28. Prior to the events at issue in this action, DESTEC entered into a Control Area and Transmission Service Agreement ("CATSA") with PG & E which allowed DESTEC to utilize PG & E's electric transmission lines to deliver electric power to wholesale customers of DESTEC. FAC, at ¶ 15. DESTEC intended to use PG & E's transmission facilities to sell and deliver low-cost electric power purchased in the Pacific Northwest to California electricity consumers. Among other limitations, the CATSA prohibits DESTEC from using PG & E's transmission facilities to directly deliver electric power to end-user, or retail, customers of PG & E. Id. In accordance with the requirements of the Federal Power Act ("FPA"), 16 U.S.C. § 824d(c), and regulations promulgated thereunder, 18 C.F.R. § 35.1, the CATSA was submitted to the Federal Energy Regulatory Commission ("FERC") and became effective on April 14, 1995. Def. Request for Judicial Notice ("RJN"), Exh. 1 [Pacific Gas & Elec. Co., 71 F.E.R.C. ¶ 61,045 (April 14, 1995)]. As a result of the CATSA, DESTEC and PG & E were 1062 direct competitors in the sale of wholesale electric power, but were not competitors with respect to the retail sale of electric power. FAC, at ¶ 15. Because DESTEC was prohibited from selling electric power at retail under the CATSA, it determined that it could service the needs of retail power consumers and sell its low-cost electric power only if two critical elements could be satisfied. First, DESTEC would have to persuade a utility company permitted under state and federal law to sell electricity to retail consumers to purchase a substation. FAC, at ¶ 16. DESTEC could then supply its low-cost electric power on a wholesale basis to the utility company, which could then resell the electric power to retail electricity consumers via the substation. Id. at ¶¶ 16-17. Second, DESTEC would have to obtain PG & E's approval to allow DESTEC to deliver wholesale electric power to the substation under the terms of the CATSA. See id. at ¶ 23. To put its plan into motion, DESTEC approached MID with a proposal that MID buy the Praxair substation and supply retail electric power consumers, such as Praxair and other residential and commercial consumers in the Pittsburg area, with low-cost DESTEC-supplied electric power via the Praxair substation. FAC, at ¶ 17. On March 21, 1996, DESTEC entered into a written Power Sales Agreement with MID, in which MID agreed to purchase the Praxair substation and DESTEC agreed to deliver power to MID at the substation. Id. At the same time, MID and the City of Pittsburg ("Pittsburg") entered into a "Permission Agreement" under which Pittsburg agreed to allow MID to provide retail electric power to its residents and "to offer City residents an alternative for obtaining electricity at more competitive rates."[2]Id. MID and Praxair also entered into a "Equipment Sales Agreement" for the purchase of the Praxair substation that was expressly conditioned upon PG & E's approval of the substation as a valid "output point" for DESTEC under the CATSA. Id. at ¶ 18. By letter dated January 30, 1996, DESTEC sought PG & E's approval to provide the necessary transmission services needed to allow DESTEC to deliver wholesale electric power to the Praxair substation under the terms of the CATSA. FAC, at ¶¶ 23-24. MID also sought to enter into an "interconnection agreement" with PG & E setting forth the conditions under which PG & E would provide transmission services to MID at the Praxair substation. Id. at 24. On February 26, 1996, PG & E denied DESTEC's request that PG & E deliver power to the Praxair substation. Id. at ¶ 24. In its opposition, MID also asserts that PG & E refused to grant MID's request to enter into an interconnection agreement as well. P's Opp. at 4. MID alleges that PG & E agreed to an identical request for the provision of transmission service by DESTEC in order to sell electric power wholesale to the Port of Oakland for later resale to Port tenants at retail. FAC, at ¶ 24. Thereafter, DESTEC and PG & E commenced proceedings in several forums to resolve their dispute. DESTEC initiated an arbitration proceeding under the terms of the CATSA to compel PG & E to provide transmission service to the Praxair substation. FAC, at ¶ 25. PG & E filed suit in federal district court seeking to enjoin the arbitration, but no order issued. Id. PG & E also filed a petition with FERC to disallow the Praxair scheme, which was opposed by MID and DESTEC. See RJN, Exh. 3 [Petition for Declaratory Order filed September 28, 1996]; RJN, Exhs. 4-6. Prior to any resolution of these proceedings, DESTEC and PG & E entered into a settlement of their dispute, which included an amendment of the CATSA 1063 which, in effect, prohibits DESTEC from supplying energy transmitted through PG & E to "substations."[3] FAC, at ¶ 26. MID alleges that in particular PG & E and DESTEC jointly agreed that DESTEC would not supply wholesale electric power to MID via the Praxair substation using PG & E's transmission services. Id. To induce DESTEC to agree to the CATSA amendment, PG & E agreed to "functionally assign" to DESTEC certain wholesale power contracts permitting DESTEC to market its low-cost electric power at much higher rates negotiated and contracted for by PG & E. Id. On November 1, 1996, PG & E subsequently submitted the proposed amendment to the CATSA for approval and filing by FERC. FAC, at ¶ 27; RJN, Exh. 9 [PG & E's Application for Approval of Second Amendment to CATSA]. However, on December 12, 1996, PG & E and DESTEC jointly requested that FERC suspend consideration of the proposed amendment. Id.; RJN, Exh. 10 [Joint Req. of PG & E and DESTEC]. Although FERC has taken no action on either the application for approval or the subsequent request to suspend consideration, MID asserts that PG & E and DESTEC have abided by their agreement not to provide MID with electric power to the Praxair substation at wholesale prices. Id. As a result, MID alleges that as a result of the CATSA amendment PG & E has thwarted both the Power Sales Agreement between MID and DESTEC and the Equipment Sales Agreement between MID and Praxair. Id. Similarly, although the Power Sales Agreement required that both MID and DESTEC "use their respective good faith best efforts to timely negotiate and obtain the agreements and the regulatory approvals" necessary to implement the agreement, MID alleges that DESTEC abrogated the Power Sales Agreement. Id. at ¶ 28. These actions, taken together, frustrated its plans to sell electric power to Praxair and to numerous commercial and residential electricity consumers in Pittsburg. Id. at ¶¶ 27-28. MID first alleges that DESTEC and PG & E engaged in a "contract, combination and/or conspiracy" to unreasonably restrain competition in the wholesale and retail sale of electric power in PG & E's service area in northern and central California in violation of section I of the Sherman Act. FAC, at ¶ 29. According to MID, DESTEC and PG & E have entered into an agreement under which DESTEC will not sell electric power at wholesale for delivery to substations and will abandon its arbitration proceeding against PG & E in exchange for the assignment by PG & E of certain wholesale power contracts. Id. at ¶¶ 29-30. MID also alleges two claims based on section 2 of the Sherman Act: actual or attempted monopolization and conspiracy to monopolize. In Count Two, MID alleges that PG & E has attempted to monopolize and/or has monopolized the market for the retail distribution of electric power to Praxair and Pittsburg's electricity consumers. Id. at ¶ 36. Specifically, MID alleges that PG & E has refused to permit its transmission lines to be used by MID or DESTEC to supply wholesale electric power to the Praxair substation by improperly invoking various provisions of the CATSA agreement. Id. at ¶ 38. In doing so, MID asserts that PG & E has unlawfully exercised its monopoly power over its transmission lines. FAC at ¶ 40. In Count Three, MID also asserts that PG & E and DESTEC engaged in a conspiracy to monopolize the retail electric power market in the Pittsburg area. Id. at ¶ 48. LEGAL STANDARD A motion to dismiss for failure to state a claim will be denied unless it appears that the plaintiff can prove no set of facts which would entitle him or her to relief. Conley 1064 v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir. 1986), cert. denied, 479 U.S. 1064, 107 S. Ct. 949, 93 L. Ed. 2d 998 (1987). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). Although the court is generally confined to consideration of the allegations in the pleadings, when the complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in evaluating the merits of a Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987), cert. denied sub. nom., Wyoming Community Dev. Auth. v. Durning, 484 U.S. 944, 108 S. Ct. 330, 98 L. Ed. 2d 358 (1987). In the Ninth Circuit, "antitrust pleadings need not contain great factual specificity." Portland Retail Druggists Ass'n v. Kaiser Found. Health Plan, 662 F.2d 641, 648 (9th Cir.1981), cert. denied, 469 U.S. 1229, 105 S. Ct. 1230, 84 L. Ed. 2d 368 (1985). "There is no special rule requiring more factual specificity in antitrust pleadings." Hunt-Wesson Foods, Inc. v. Ragu Foods, Inc., 627 F.2d 919, 924 (9th Cir. 1980) (citing Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive Bd. of Culinary Workers, 542 F.2d 1076, 1082 (9th Cir.1976), cert. denied, 430 U.S. 940, 97 S. Ct. 1571, 51 L. Ed. 2d 787 (1977)). However, as noted by many courts, the court need not accept legal conclusions asserted in the complaint even if pled as "facts" or conclusory allegations without more. JM Computer Srvcs. Inc. v. Schlumberger Technologies, Inc., 1996 WL 241607, 2 (N.D.Cal. May 3, 1996) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). DISCUSSION I. Analytical Framework for the Sherman Act, Section 1 Section 1 of the Sherman Act makes unlawful "[e]very contract, combination ..., or conspiracy, in restraint of trade or commerce among the States." 15 U.S.C. § 1. To state a claim for a violation of section 1 of the Sherman Act, a plaintiff must establish (1) an agreement, conspiracy, or combination among two or more persons or distinct business entities; (2) which is intended to harm or unreasonably restrain competition under a per se or rule of reason analysis; and (3) which actually causes injury to competition, beyond the impact on the claimant, within a field of commerce in which the claimant is engaged (i.e. "antitrust injury"). McGlinchy v. Shell Chem. Co., 845 F.2d 802, 811 (9th Cir.1988); see also Rickards v. Canine Eye Registration Found., Inc., 704 F.2d 1449, 1453 (9th Cir.1983), cert. denied, 464 U.S. 994, 104 S. Ct. 488, 78 L. Ed. 2d 683 (1983) (plaintiff must show "contract, combination or conspiracy" under section 1 of the Sherman Act). "[M]ost antitrust claims are analyzed under a `rule of reason,' according to which the finder of fact must decide whether the questioned practice imposes an unreasonable restraint on competition, taking into account a variety of factors, including specific information about the relevant business, its condition before and after the restraint was imposed, and the restraint's history, nature, and effect." State Oil Co. v. Khan, 522 U.S. 3, 118 S. Ct. 275, 279, 139 L. Ed. 2d 199 (1997). However, some types of restraints are deemed unlawful per se if they have a "predictable and pernicious anticompetitive effect." Id. In noting that section 1 of the Sherman Act requires that there be a "contract, combination, ... or conspiracy," the Supreme Court observed that a business "generally has a right to deal, or refuse to deal, with whomever it likes, as long as it does so independently." Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761, 104 S. Ct. 1464, 79 L. Ed. 2d 775 (1984); Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 601 n. 27, 105 S. Ct. 2847, 86 L. Ed. 2d 467 (1985). Thus, section 1 does not proscribe "independent action." Id. However, "agreements not to 1065 compete, with the aim of preserving or extending a monopoly," are unlawful under the Sherman Act. Cf. Otter Tail Power Co. v. United States, 410 U.S. 366, 376, 93 S. Ct. 1022, 35 L. Ed. 2d 359 (1973) (citing Schine Chain Theatres v. U.S., 334 U.S. 110, 119, 68 S. Ct. 947, 92 L. Ed. 1245 (1948), overruled on other grounds Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771-72, 104 S. Ct. 2731, 81 L. Ed. 2d 628 (1984)). "A § 1 agreement may be found when `the conspirators had a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.'" Copperweld, 467 U.S. at 771, 104 S. Ct. 2731 (quoting American Tobacco Co. v. U.S., 328 U.S. 781, 810, 66 S. Ct. 1125, 90 L. Ed. 1575 (1946)). II. Analytical Framework for the Sherman Act, Section 2 In contrast to section I of the Sherman Act, "[s]ection 2 claims tend to encompass a narrower range of anticompetitive behaviors specifically defined as monopolization and attempts to monopolize." Amarel v. Connell, 102 F.3d 1494, 1521 (9th Cir.1996). Section 2 of the Sherman Act provides that "[e]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any person or persons, to monopolize ... trade shall be guilty" of an antitrust violation. 15 U.S.C. § 2. In essence, section 2 of the Sherman Act prohibits a monopolist's unilateral action, such as a unilateral refusal to deal, "if that conduct harms the competitive process in the absence of a legitimate business justification." Image Technical Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1209-10 (9th Cir.1997) (citations omitted), cert. denied, ___ U.S. ___, 118 S. Ct. 1560, 140 L. Ed. 2d 792 (1998). To state a claim for a section 2 monopolization violation MID must allege that PG & E: "(1) possessed monopoly power in the relevant market and (2) willfully acquired or maintained that power." See Image Tech., 125 F.3d at 1202. "`Willful acquisition' or `maintenance of monopoly power' involves `exclusionary conduct,' not power gained `from growth or development as a consequence of a superior product, business acumen, or historic accident.'" Id. at 1208 (quoting United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966)). In the case "of a regulated utility struggling with dual regulation, bearing in mind that the utility is entitled to recover its costs of service and to provide its investors with a reasonable rate of return," an antitrust plaintiff must also establish a specific intent by the monopoly to engage in monopolistic conduct through "the actions of the utility, taken as a whole." City of Anaheim v. Southern California Edison Co., 955 F.2d 1373, 1378 (9th Cir.1992) ("the requirement of specific intent is an appropriate way to erect a dike which is sufficient to prevent an untoward invasion of the land of legal monopolies by the sea of antitrust") (citing City of Mishawaka v. American Elec. Power Co., Inc., 616 F.2d 976, 985-86 (7th Cir.1980), cert. denied, 449 U.S. 1096, 101 S. Ct. 892, 66 L. Ed. 2d 824 (1981)). "The traditional claim for attempted monopolization arises when the danger of monopolization is clear and present, but before a full-blown monopolization has necessarily been accomplished." Alaska Airlines, Inc. v. United Airlines, Inc., 948 F.2d 536, 541 (9th Cir.1991), cert. denied, 503 U.S. 977, 112 S. Ct. 1603, 118 L. Ed. 2d 316 (1992). To prevail on a section 2 attempt claim, MID must establish: "`(1) a specific intent to control prices or destroy competition; (2) predatory or anticompetitive conduct directed at accomplishing that purpose; (3) a dangerous probability of achieving `monopoly power,' and (4) causal antitrust injury.'" See Image Tech., 125 F.3d at 1202 (quoting Rebel Oil Co., Inc. v. Atlantic Richfield, Co., 51 F.3d 1421, 1434 (9th Cir.)), cert. denied, 516 U.S. 987, 116 S. Ct. 515, 133 L. Ed. 2d 424 (1995). "The requirements of a § 2 monopolization claim are similar, differing primarily in the requisite intent and the necessary level of monopoly power." Id. (citing California Computer Products, Inc. 1066 v. International Business Machines Corp., 613 F.2d 727, 736-37 (9th Cir.1979)). Common to both the monopolization and attempt to monopolize claims, "[s]ection 2 plaintiffs must also establish antitrust injury." Id. (citing Cost Management Services, Inc. v. Washington Natural Gas Co., 99 F.3d 937, 949 (9th Cir.1996)). In order to survive a motion to dismiss under Rule 12(b)(6), an antitrust complaint "need only allege sufficient facts from which the court can discern the elements of an injury resulting from an act forbidden by the antitrust laws." Newman v. Universal Pictures, 813 F.2d 1519, 1522 (9th Cir.1987), cert. denied, 486 U.S. 1059, 108 S. Ct. 2831, 100 L. Ed. 2d 931 (1988). III. Analysis In support of its second motion to dismiss, defendants contend that (1) PG & E's unilateral refusal to provide transmission service to the Praxair substation is necessarily incidental to a valid petition to a federal agency immune from antitrust liability under the Noerr-Pennington[4] doctrine; (2) MID has failed to allege a sufficient "contract, combination or conspiracy" to state a claim for a section I of the Sherman Act violation or for a conspiracy to violate section 2 of the Sherman Act; (3) MID has failed to point to a cognizable theory under which to impose section 2 monopolization liability upon PG & E; and (4) that MID lacks standing because it has failed to plead a sufficient antitrust injury as a result of defendants' actions. Defendants finally ask the court to decline to exercise supplemental jurisdiction over MID's state law claims if MID's federal antitrust claims are dismissed. A. Judicial Notice Defendants again ask the court to take judicial notice of numerous documents which relate to either the CATSA or subsequent amendments to the CATSA and regulations and other regulatory decisions promulgated by FERC. "`[D]ocuments whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss.'" Fecht v. The Price Co., 70 F.3d 1078, 1080 n. 1 (9th Cir.1995), cert. denied, 517 U.S. 1136, 116 S. Ct. 1422, 134 L. Ed. 2d 547 (1996) (quoting Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.), cert. denied, 512 U.S. 1219, 114 S. Ct. 2704, 129 L. Ed. 2d 832 (1994)); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir.1988) (holding that a district court's taking notice of the "proceedings and determinations" of prior related litigation does not necessitate treating the Rule 12(b)(6) motion as one for summary judgment). The court can take judicial notice of facts beyond the complaint and matters of public records such as pleadings in another action and records and reports of administrative bodies. Anderson v. Calif. Republican Party, 1991 WL 472928, 2 (N.D.Cal., Nov.26, 1991), aff'd, 977 F.2d 587 (9th Cir.1992) (table). The court again finds that several of the documents submitted as part of PG & E's request for judicial notice are of the type capable of ready determination by resort to sources whose accuracy cannot be reasonably questioned. See Fed. R.Evid. 201(b). Of note is the "Joint Request of Pacific Gas and Electric Company and DESTEC Power Services, Inc. to Suspend Commission Consideration of Second Amendment to the Control Area and Transmission Service Agreement," RJN, Exh. 10 ["Joint Request"], and the PG & E Petition for Declaratory Order, RJN, Exh. 3. Both documents clearly show the datestamp of FERC and refers to the docket number under which the request is filed, and is readily accessible through the Internet. See RJN, Exhs. 3, 10. Finally, the court takes judicial notice of PG & E's submission to FERC for filing and acceptance of its "Second Amendment to the 1067 Control Area and Transmission Services Agreement" between DESTEC and PG & E for the same reasons as stated above. RJN, Exh. 9. B. Section 1 of the Sherman Act and Section 2 Conspiracy to Monopolize In its prior order, the court held that although MID attempted to characterize the events following PG & E's unilateral refusal to permit DESTEC to use its lines to supply wholesale electricity to the Praxair substation as some sort of "agreement" to engage in anticompetitive activity, it became clear at the hearing that defendants continue to operate under the CATSA and not as part of a speculative "agreement" intended to restrain trade. The court therefore finds that MID's allegations of an "agreement" fail to sufficiently describe an actionable "contract, combination, ..., or conspiracy" under section 1. February order, at 12. In giving MID leave to amend its complaint, the court in essence asked MID "to articulate with ... clarity the nature of [the alleged] agreement." Id. at 11. In again arguing that there could have been no section 1 violation because there was no agreement, defendants assert that MID has provided no new facts with which to support its claim that P G&E and DESTEC engaged in a conspiracy or concerted activity in violation of section 1.[5] MID, however, points to several allegations in its complaint which it maintains establish the existence of an agreement, combination or conspiracy. Plaintiff again initially points to its allegation that defendants: have been engaged in a continuing contract, combination and conspiracy to unreasonably restrain competition in interstate commerce in the wholesale and retail sale of electricity in PG & E's service area in Northern and Central California in violation of Section 1 of the Sherman Act. FAC, at ¶ 29; compare Compl., at ¶ 23 (stating identical allegation). MID again asserts that this allegation is sufficient to state a claim under section 1. However, as held in the February order, "although antitrust pleadings need not contain great factual specificity, the court need not accept conclusory allegations or legal conclusions couched as facts." See February order at 10. In subsequent paragraphs, however, MID alters somewhat the factual allegations forming the basis of its section 1 claims as alleged in its original complaint. Plaintiffs allege that: The aforesaid contract, combination and/or conspiracy have consisted of a continuing agreement among and between the named defendants that DESTEC will not sell electricity transmitted by defendant PG & E at wholesale for delivery at substations, including substations owned or to be acquired by plaintiff MID, and specifically including the Praxair substation in Pittsburg, California. Further, that DESTEC will forego its contention, set forth and presented in an arbitration proceeding that under the CATSA agreement, that PG & E was legally obligated to deliver power to DESTEC for resale to MID at the Praxair substation.[6] FAC at ¶ 30. As before, MID continues: In furtherance of and as part of that agreement and to induce and persuade 1068 DESTEC to abandon the arbitration proceeding and to renege its planned wholesale electric sales to MID at the Praxair substation, defendants have entered into an agreement under which PG & E functionally assigned to DESTEC certain wholesale customers at prices vastly in excess of the market price. In effect, PG & E bribed DESTEC to give up its efforts to carry out its obligations to MID under the Power Sales Agreement. This contract, combination and/or conspiracy not to provide electric power to MID for retail resale constitutes an unreasonable restraint of trade.[7] FAC at ¶ 31. In contrast to its earlier allegations, MID has now shifted its focus from the "Second Amendment" to the CATSA as part of the settlement of defendants' arbitration dispute, see Compl. at ¶ 21, to an agreement to abandon the arbitration proceeding initiated by DESTEC and to "give up its efforts to carry out its obligations to MID under the Power Sales Agreement." FAC at ¶ 31. For instance, MID again alleges that "[a]s arbitration was about to conclude ..., PG & E and DESTEC entered into a settlement wherein they jointly agreed DESTEC would not supply energy to MID ... They also formulated a formal proposed amendment of their CATSA agreement ..." FAC at ¶ 26; compare Compl., at ¶ 21. MID again alleges that PG & E submitted the proposed CATSA amendment to FERC, but that PG & E and DESTEC jointly requested that FERC suspend consideration of the proposed amendment. FAC at ¶ 27; compare Compl. at ¶ 21. MID finally concludes that "[a]lthough the FERC never ruled upon the proposed amendment, PG & E and DESTEC have nevertheless adhered to their explicit and/or implicit agreement not to supply power to plaintiff MID at the Praxair substation utilizing PG & E's transmission services." FAC at ¶ 27; compare P's Opp. to D's Mot. to Dismiss the Orig. Compl., at 15 (concluding that allegations in original complaint establish that "the intended goal of defendants' concerted conduct was nevertheless achieved, i.e., block MID from competing with PG & E" regardless of whether the CATSA amendment became effective). Despite this shift in focus, the only allegations of a "contract, combination, ..., or conspiracy" in restraint of trade made in connection with MID's section 1 claim as alleged in Count One of the FAC are those raised in paragraphs 29, 30 and 31 of the FAC. MID fails to incorporate by reference into Count One the paragraphs preceding Count One, including those paragraphs containing specific allegations providing greater detail of the transactions between PG & E, DESTEC and MID, including various agreements, attempted agreements and unilateral acts. Since none of these paragraphs are specifically incorporated or referred to in the first cause of action the court cannot tell whether any of these relate to the section 1 claim. Furthermore, the court must 1069 confine its inquiry of whether MID has sufficiently stated a section 1 claim to those allegations contained in paragraphs 29, 30, and 31. In light of the generalized allegations contained in these paragraphs regarding the nature of the contract, combination or conspiracy, it is clear that the agreement alleged in the FAC is no different and no more specific than that found by the court to fail to state a claim upon defendants' earlier motion. Nonetheless, although MID attempts to distinguish the factual allegations regarding the existence of an agreement in its original complaint from those newly asserted in the FAC, it is clear that MID reasserts the identical claim that PG & E and DESTEC "agreed" that DESTEC would not sell electric power at wholesale for delivery to substations and in exchange would acquire certain wholesale electric power contracts which permitted DESTEC to resell electricity at a substantial profit. Cf. U.S. v. American Radiator & Standard Sanitary Corp., 433 F.2d 174, 182 (3rd Cir.1970), cert. denied, 401 U.S. 948, 949, 91 S. Ct. 928, 28 L. Ed. 2d 231 (1970) ("no formal agreement is necessary to constitute an unlawful conspiracy; it is sufficient that a concert of action be contemplated and the defendants conform to the arrangement"). As this court held in the February order, the instant action at most involves a unilateral effort by PG & E to deny DESTEC's request that PG & E provide wholesale electric power to the Praxair substation. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767, 104 S. Ct. 2731, 81 L. Ed. 2d 628 (1984). In reaching its decision, the court again notes that MID has recourse to "other laws, for example, `unfair competition' laws, business tort laws, or regulatory laws, [which] provide remedies for various `competitive practices thought to be offensive to proper standards of business morality,'" such as the allegations of bribery contained in paragraph 30 of the FAC. See NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 119 S. Ct. 493, 498, 142 L. Ed. 2d 510 (1998) (quoting 3 P. Areeda & H. Hovenkamp, ANTITRUST LAW ¶ 651d, at 78 (1996)). MID's allegations are insufficient to state a section 1 claim that PG & E and DESTEC engaged in a "contract, combination, ..., or conspiracy" in restraint of trade. In contrast to its section 1 claim, MID in its third cause of action for conspiracy to monopolize under section 2 of the Sherman Act does incorporate by reference all preceding paragraphs and factual allegations. To state a conspiracy to monopolize claim under section 2, a plaintiff must set forth a specific intent to monopolize and the anticompetitive acts designed to effect that intent, "although in the conspiracy claim the act may be no more than the agreement itself." Hunt-Wesson Foods, Inc. v. Ragu Foods, Inc., 627 F.2d 919, 926 (9th Cir.1980), cert. denied, 450 U.S. 921, 101 S. Ct. 1369, 67 L. Ed. 2d 348 (1981). "[N]o particular level of market power or `dangerous probability of success' has to be alleged or proved in a conspiracy [to monopolize] claim where the specific intent to monopolize is otherwise apparent from the character of the actions taken." Id. Whereas MID's first cause of action fails to state a claim for being too generalized, its third cause of action fails for providing an excess of detail without pointing to the specific agreement that constitutes the basis of its conspiracy claim. In its FAC, MID points to a host of allegations specifying a number of agreements and activities but neglects to identify which of these run afoul of the antitrust laws and form the basis for this third claim. However, MID simply concludes that PG & E and DESTEC have "engaged in a continuing conspiracy to monopolize the market for the sale of retail electric power" without providing any direction as to the overt acts or agreements that constitute the conspiracy. See FAC, at ¶ 48. Furthermore, MID provides only a general allegation of antitrust injury arising from its section 2 conspiracy claim, but fails to point to how any of the overt acts or agreements alleged resulted in the antitrust injury asserted. A plaintiff must establish "the existence of antitrust injury, 1070 which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful." Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334, 110 S. Ct. 1884, 109 L. Ed. 2d 333 (1990) (citations and internal quotations omitted). That is, plaintiff must have suffered an injury which bears a causal connection to the alleged antitrust violation. Associated Gen. Contractors of Calif., Inc. v. Calif. Council of State Carpenters, 459 U.S. 519, 535, 103 S. Ct. 897, 74 L. Ed. 2d 723 (1983). MID alleges in paragraph 45 that "[a]s a direct and proximate result" of the alleged violations it will be "immediately and irreparably injured." FAC, at ¶ 45. However, MID's allegation of antitrust injury is conclusory and does not provide any causal relationship between its section 2 conspiracy claim and an antitrust injury. As such, the court dismisses both Counts One and Three of MID's FAC in their entirety. C. Noerr-Pennington Doctrine Defendants further argue that MID's antitrust claims are barred by the Noerr-Pennington doctrine because PG & E's refusal to wheel power to DESTEC was "necessarily incidental" to filing a FERC petition, which it contends constitutes a valid petitioning activity. Although defendants suggest that Noerr-Pennington immunity should extend to both MID's section 1 and section 2 claims, they direct their Noerr-Pennington argument primarily to MID's section 2 monopolization claim asserted in Count Two of the FAC. In Count Two, MID alleges that PG & E monopolized or attempted to monopolize the Pittsburg market for the retail distribution of electric power by unilaterally refusing to grant DESTEC's request for transmission services and by improperly invoking various provisions of the CATSA in doing so. See FAC at ¶ 38. As such, the court confines its analysis of Noerr-Pennington immunity to MID's section 2 claim based on PG & E's unilateral refusal to deal. In any event, the court need not consider PG & E's suggestion that Noerr-Pennington immunity attaches to Counts One or Three of the FAC since MID fails to allege a sufficient contract, combination or conspiracy in violation of section 1 of the Sherman Act. In opposition, MID maintains that the Noerr-Pennington doctrine is of no relevance to this action because it does not claim that defendants run afoul of the antitrust laws through their efforts to petition FERC, initiate litigation in the federal courts or to petition or solicit any other government agency or court. Rather, MID briefly argues that an alleged anticompetitive agreement between PG & E and DESTEC was not "incidental" to bringing a valid FERC petition because the agreement was solely the result of defendants' private actions, and not the result of any valid governmental action. In doing so, it wrongly asserts that Noerr stands for the proposition that Noerr-Pennington immunity attaches only where a restraint or monopolization is the result of valid government action, as opposed to private action. See Noerr, 365 U.S. at 136, 81 S. Ct. 523; compare Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 503-06, 108 S. Ct. 1931, 100 L. Ed. 2d 497 (1988) (citing Noerr, 365 U.S. at 143, 81 S. Ct. 523) (Noerr immunity extends to situations "where, independent of any government action, the anticompetitive restraint results directly from private action, the restraint cannot form the basis of antitrust liability if it is `incidental' to a valid effort to influence governmental action"). Moreover, MID misconstrues its own complaint in asserting that its section 2 claim and resultant antitrust injury arises out of an alleged agreement between PG & E and DESTEC not to supply power to the Praxair substation. See FAC at ¶¶ 36-43 & 45-6. Finally, in an important concession, MID maintains that because the Noerr-Pennington doctrine does not apply it need not plead facts to establish that defendants' conduct falls within the "sham exception" to the Noerr-Pennington doctrine. Cf. California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 511, 92 1071 S.Ct. 609, 30 L. Ed. 2d 642 (1972) (no Noerr immunity if petitioning activity is "mere sham to cover ... an attempt to interfere directly with the business relationships of a competitor"); Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc., 944 F.2d 1525, 1529 (9th Cir. 1991) ("the filing of a lawsuit is immune from the antitrust laws unless the suit is a sham"), aff'd, 508 U.S. 49, 113 S. Ct. 1920, 123 L. Ed. 2d 611 (1993). Under the Noerr-Pennington doctrine, one who files a lawsuit or otherwise petitions the government for redress is generally immune from antitrust liability unless such litigation or activity is a sham. Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 56, 113 S. Ct. 1920, 123 L. Ed. 2d 611 (1993); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 669-70, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965). In California Motor Transp., the Supreme Court adapted the Noerr doctrine to the judicial process in addressing the contention of the respondent out-of-state highway carriers that a group of in-state highway carriers conspired to monopolize the transportation of goods in California by instituting state and federal proceedings to resist and defeat applications by respondents to acquire operating rights within California. Id. at 509, 92 S. Ct. 609. In rejecting antitrust liability, the Court concluded that "it would be destructive ... to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors." Id. Defendants maintain that PG & E's refusal to grant DESTEC's request to provide transmission service to the Praxair substation should be considered to be "incidental" to its filing of a petition to FERC seeking a declaration that "PG & E is not obligated to interconnect and provide transmission service" in connection with the agreement between DESTEC and MID to provide electric power to Praxair and other retail consumers of Pittsburg. See D's Exh. 3 [PG & E FERC Petition dated Feb. 28, 1996]. According to MID's allegations, DESTEC requested that PG & E provide to the Praxair substation transmission service under the CATSA by letter dated January 30, 1996. FAC at ¶ 24. "Simultaneously," MID requested that PG & E enter into a separate interconnection agreement under which MID could receive interconnection service at the Praxair substation. Id. On February 26, 1996, PG & E denied DESTEC's request. Id. A flurry of activity ensued after PG & E's denial of DESTEC's request: DESTEC initiated private arbitration proceedings under the terms of the CATSA to direct PG & E to provide transmission service; and PG & E filed a lawsuit in the United States District for the Northern District of California seeking an order enjoining arbitration. FAC at ¶ 25. Importantly, on February 28, 1996, PG & E filed its FERC petition. D's Exh. 3 [PG & E FERC Petition dated Feb. 28, 1996]. In the petition, PG & E alleges, among other things, that the proposed transaction between DESTEC and MID is a "sham wholesale transaction under the Energy Policy Act of 1992 ["EPAct"]," Pub.L. No. 102-486, 106 Stat. 2776 (1992), and that the transaction would undermine a scheme devised by the California Public Utilities Commission ("CPUC") to open up the electric power industry to greater competition at the wholesale and retail levels. Id. at i & 2. On March 26, 1999, MID filed an application with FERC as well in which it sought an order requiring PG & E to interconnect its transmission system with the Praxair substation and to agree to an interconnection agreement. D's Exh. 6 [MID FERC Petition dated March 26, 1999]. In light of the proximity in time of PG & E's rejection of DESTEC's wheeling request and its filing of a FERC petition, defendants maintain that the propriety of DESTEC's 1072 request for transmission service to the Praxair substation was in dispute from the outset and that PG & E's refusal to wheel electric power was a "jurisprudential precondition" to PG & E's FERC petition. In support of its argument, defendants point to PrimeTime 24 Joint Venture v. National Broadcasting Co., Inc., 21 F. Supp. 2d 350, 358-59 (S.D.N.Y.1998), in which the court held that a decision by defendants "not to negotiate with or grant to plaintiff a copyright license amounted to the rejection of a settlement offer and could not form the basis of antitrust liability." The plaintiff asserted that defendants engaged in concerted action in violation of federal antitrust laws by encouraging numerous lawsuits against plaintiff alleging copyright infringement and by refusing to deal with plaintiff in its efforts to negotiate a copyright license. In rejecting plaintiff's arguments, the court noted that "conduct or communication which is incident to or attendant upon effective litigation should also receive Noerr immunity." Id. at 356 (citations omitted). It reasoned that "[b]ecause pre-litigation communications provide useful notice of potential liability and facilitate the settlement of controversies, it would be foolish to adopt antitrust rules encouraging suit before communication by penalizing the communication but not the suit." Id. at 357 (internal citations and quotations omitted). Importantly, the court also held that defendants' refusals to negotiate a licensing agreement should "receive Noerr immunity because if the defendants had accepted [plaintiffs] offer and agreed to license it, any infringement dispute would be moot." Id. at 359. The Ninth Circuit likewise has held that "[a] decision to accept or reject an offer of settlement is conduct incidental to the prosecution of [a lawsuit] and not a separate and distinct activity which might form the basis for antitrust liability." Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc., 944 F.2d 1525, 1528 (9th Cir.1991), aff'd, 508 U.S. 49, 113 S. Ct. 1920, 123 L. Ed. 2d 611 (1993). In Columbia Pictures the counterclaimants alleged that several movie studio counter-defendants had engaged in anticompetitive conduct by filing a copyright infringement action against the counterclaimants and by subsequently concertedly refusing to grant copyright licenses. Id. at 1528. In rejecting the counterclaimants antitrust claims, the court noted that the counterclaimants request for copyright licensing "amounted to an offer to settle the lawsuit" and that the lawsuit would have been mooted by any agreement to license the copyrights at issue. Id. Similarly, in Transphase Systems, Inc. v. Southern Calif. Edison Co., 839 F. Supp. 711, 716 (C.D.Cal.1993), plaintiff alleged that defendants violated section 1 by "appearing together before the CPUC to take positions that would disadvantage [plaintiff]" and by "speaking in unison before the CPUC to demand the fruits of their monopolies." Id. (internal quotations omitted). Plaintiff further alleged that defendants "maintained their monopoly power by `resisting meaningful changes'" through the public positions they took in the CPUC proceedings in violation of section 2. Id. The court rejected plaintiff's claims in holding that defendants' petitioning activity before the CPUC was clearly protected by the Noerr-Pennington doctrine. Id. In contrast, the Ninth Circuit has also held that "[a]pplying to an administrative agency for approval of an anticompetitive contract is not lobbying activity within the meaning of the Noerr-Pennington doctrine." Columbia Steel Casting Co., Inc. v. Portland General Electric Co., 111 F.3d 1427, 1445-46 (9th Cir.1996). In Columbia Steel, the plaintiff-consumer of electric power brought an antitrust action against two electric utilities, both of whom were competitors in the Portland-area electric power market, charging them with violations of sections 1 and 2 of the Sherman Act by entering into an agreement to divide the City of Portland into exclusive service territories. Id. at 1432-33. After the state public utility commission ("PUC") approved an agreement between the utilities to exchange certain property and customer accounts, but not an allocation *1073 of exclusive service territories, plaintiff sought to purchase electricity from the lower cost utility. Id. at 1435-36. The competitor utility, however, refused to wheel power from the lower cost utility to plaintiff's casting plant, asserting that it had an exclusive right to service plaintiff's plant because the plant fell within its service territory. Id. at 1436. In response to the plaintiff's antitrust claims, the defendant utility company asserted that it was entitled to Noerr-Pennington immunity because it had sought the approval of the state PUC for the anticompetitive agreement. In rejecting defendants' contention, the court noted that "in any event" the defendant utility company was being held liable for entering into an agreement with a competitor to replace competition with area monopolies, and not for the filing of an application with the state PUC. Id. at 1445-46. In essence, MID maintains that defendants' assertion of Noerr-Pennington immunity fails because PG & E's anticompetitive conduct was not "incidental" to bringing a valid FERC petition or other litigation. In doing so, it asserts that PG & E's refusal to wheel electric power to the Praxair substation occurred before it brought its FERC petition against DESTEC. It reasons that therefore PG & E's refusal was not "incidental" to its FERC petition and should not be accorded Noerr protection. However, it is clear that PG & E's refusal is akin to the refusals to negotiate or grant copyright licenses in Columbia Pictures and PrimeTime 24. PG & E's refusal to honor DESTEC's request to wheel power to the Praxair substation was clearly a precondition to its FERC petition seeking a declaration that the proposed transaction between DESTEC and MID was a sham wholesale transaction and any agreement to wheel power to the Praxair substation would have mooted PG & E's FERC petition. The court thus finds that PG & E's refusal to honor DESTEC's request was "incidental" to its FERC petition and therefore falls within the scope of Noerr-Pennington immunity. As such, the court dismisses in its entirety Count Two of the FAC. Finally, because MID alleges that its state law antitrust claims are bound up in the same conduct as and are ancillary to its federal antitrust claims, see FAC at ¶ 51, the court dismisses MID's Cartwright Act claim on parallel grounds. See Cal. Bus. & Prof.Code § 16720. Cf. Vinci v. Waste Management, Inc., 36 Cal. App. 4th 1811, 1814 n. 1, 43 Cal. Rptr. 2d 337 (1995); Cellular Plus, Inc. v. Superior Court (U.S. West Cellular), 14 Cal. App. 4th 1224, 1232 n. 2, 18 Cal. Rptr. 2d 308 (1993); Redwood Theatres, Inc. v. Festival Enterprises, Inc., 908 F.2d 477, 481-82 & n. 3 (9th Cir.1990). CONCLUSION For the reasons set forth above, the court hereby GRANTS defendants' motion to dismiss MID's federal antitrust and Cartwright Act claims against DESTEC and PG & E. Furthermore, because MID's counsel is an experienced antitrust lawyer who knows how to prepare a well-pleaded complaint and the court has already provided MID with the opportunity to amend its complaint, the court denies MID any further leave to amend its complaint. Finally, the court declines to exercise supplemental jurisdiction pursuant to section 1367(c)(3) over the remaining state law claims and DISMISSES these claims without prejudice. Under 28 U.S.C. section 1367(d), the statute of limitations on plaintiff's state law claims is tolled while claims are pending until thirty (30) days after an order of dismissal, thus allowing the plaintiff time for filing a new action in state court without a lapse of her rights. This order fully adjudicates the motion reflected at Docket # 37 and the Clerk of the Court shall remove it from the pending motions list. IT IS SO ORDERED. NOTES [1] "Generation" is the conversion of energy from fuel or other sources into electricity. "Transmission" refers to the transportation of electricity via high voltage lines from generation facilities to distribution areas. "Distribution" involves the delivery and sale of electricity to ultimate retail and wholesale consumers. FAC, at ¶ 7. [2] Under the Permission Agreement, approximately one-half of the capacity of the Praxair substation would have been devoted to serving Praxair. FAC, at ¶ 18. MID intended to deliver the remaining one-half of the Praxair substation capacity to commercial and residential accounts in Pittsburg which were at that time served almost entirely by PG & E. Id. at ¶¶ 18-19. [3] Likewise, PG & E and MID reached a settlement agreement under which MID agreed to withdraw its opposition to the proposed CATSA amendment and submitted this proposed agreement to the CPUC for approval. However, the CPUC declined to approve the settlement agreement. RJN, Exh. 11 [Re: Pacific Gas & Electric Co., No. 98-06-020 (June 4, 1998)]. [4] Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 669-70, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965) [5] Despite MID's protestations to the contrary, defendants again do not argue that the actions or regulatory authority of FERC or CPUC immunizes them from federal antitrust liability under the state action doctrine. See February order at 8 (noting cases holding that Federal Power Act ("FPA"), 16 U.S.C. § 824a(b), does not insulate electric power companies from operation of antitrust laws). [6] In paragraph 24 of its original complaint, MID stated: The aforesaid contract combination and conspiracy have consisted of a continuing agreement among and between the named defendants that defendant DESTEC will not sell electricity at wholesale for delivery at substations, including substations owned or to be acquired by plaintiff MID and specifically including the Linde substation in Pittsburg, California. Compl., at ¶ 24. It further added in its opposition that PG & E's refusal to deal with either DESTEC or MID with respect to the Praxair substation also constitutes a section 1 violation: PG & E "refused to enter into an interconnection agreement with ... MID (and refused DESTEC's request pursuant to the CATSA) which would have permitted MID to resell electric power from the Praxair substation to Praxair and customers in Pittsburg." P's Opp., at 14 (citing Compl., at ¶¶ 18-20). MID concludes that these allegations, taken together or individually, establish that "the intended goal of defendants' concerted conduct was nevertheless achieved, i.e., block MID from competing with PG & E" regardless of whether the CATSA amendment became effective. P's Opp., at 15. [7] In the parallel allegations in the original complaint, MID alleged that: In furtherance of and as part of that agreement: defendants have entered into an agreement under which PG & E functionally assigned to DESTEC certain wholesale power contracts, which will enable DESTEC to sell power to its wholesale customers at prices vastly in excess of the market price in exchange for DESTEC agreeing not to sell power for delivery at substations. Compl., at ¶¶ 18 & 25.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501075/	726 S.E.2d 673 (2012) 315 Ga. App. 183 WELLONS, INC. v. LANGBOARD, INC. No. A11A1519. Court of Appeals of Georgia. March 27, 2012. 675 Jeffrey Jerry Swart, Atlanta, Louis Boone Park, for Appellant. C. Scott Greene, Curtis James Romig, Matthew Justin Pearce, Jack G. Slover Jr., Eric Peter Schroeder, Atlanta, Jackson Ross Langdale, Valdosta, Vann Keith Parrott, Quitman, Thomas Michael Burke Jr., for Appellee. BLACKWELL, Judge. Wellons, Inc. and Langboard, Inc. entered into two contracts in which Wellons agreed to design and install a custom energy system for a Langboard facility in Quitman. A Brooks County jury found that Wellons breached both contracts, and it awarded more than $8.4 million to Langboard as damages. Wellons appeals from the judgment entered upon the verdict of the jury, claiming that the trial court erred in three respects. First, Wellons contends that Langboard failed to bring its claim for breach of the design contract soon enough and that the trial court should have awarded summary judgment to Wellons on that claim. Second, Wellons argues that the evidence cannot sustain the award of damages for breach of the installation contract and that the trial court should have entered judgment for Wellons on the installation contract claim or, at the least, should have granted Wellons a new trial on that claim. Finally, Wellons contends that the trial court erred when it admitted certain evidence that is, Wellons says, speculative and irrelevant. We find no merit in these claims of error, and we affirm the judgment below. 1. We first consider the contention that Wellons was entitled to summary judgment on the claim for breach of the design contract because Langboard failed to assert that claim soon enough. The design contract requires that any claim for its breach be brought "within one year after the cause of action occurs...." Before trial, Wellons moved for summary judgment on the design contract, arguing that Langboard waited more than a year after its claim accrued to file its complaint. Wellons explained in the trial court that the claim for breach of the design contract accrued at least by March 2006, when Langboard inquired of Wellons about replacing a superheater in the system, an inquiry that demonstrates, Wellons said, an awareness of the problems with the system. The trial court denied the motion for summary judgment, and the case proceeded to trial. We have some doubt about whether we properly can undertake to review the denial of the motion for summary judgment. As a general rule, "[a]fter verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case." Kicklighter v. Woodward, 267 Ga. 157, 162(4), 476 S.E.2d 248 (1996) (citation and punctuation omitted). Our Court has recognized a limited exception to this rule in cases in which "the legal issues raised and resolved in denying the motion for summary judgment were not considered at trial," Smith v. Saulsbury, 286 Ga.App. 322, 323(1)(a), 649 S.E.2d 344 (2007), and Wellons argues that this is such a case. But we note that Wellons repeatedly sought at trial to elicit testimony about the time that elapsed after Langboard discovered problems with the custom energy system, Wellons argued to the jury that Langboard failed to promptly address these problems, and the court charged the jury that "the limitation period ... begins to run at the time of the defendant's last successful repair attempt," an instruction to which Wellons did not object. Nevertheless, Langboard 676 seems to concede that the limitation issue was not raised at trial, and for that reason, we will assume that we properly can consider the question of summary judgment, notwithstanding our doubts. The standard for summary judgment is familiar and settled. "Summary judgment is warranted when any material fact is undisputed, as shown by the pleadings and record evidence, and this fact entitles the moving party to judgment as a matter of law." Strength v. Lovett, 311 Ga.App. 35, 39(2), 714 S.E.2d 723 (2011). "So, to prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law." Id. We review the denial of a motion for summary judgment de novo, Higginbotham v. Knight, 312 Ga.App. 525, 526, 719 S.E.2d 1 (2011), and we view the evidence in the same way as the trial court, that is, in the light most favorable to the nonmoving party. Saiia Constr. v. Terracon Consultants, 310 Ga. App. 713, 713, 714 S.E.2d 3 (2011). So viewed, the record shows that Wellons and Langboard entered into the design contract in October 2002. Pursuant to this contract, Langboard was to pay $13.7 million to Wellons, and Wellons was to design a custom energy system for the Langboard oriented strand board plant in Quitman. The parties agreed that the system would be designed to fulfill three essential purposes. First, the system would generate heat energy sufficient to power the production of oriented strand board. Second, the system would return any exhaust generated in the production process to the furnaces, where any pollutants would be incinerated, so that Langboard would not have to pay for additional pollution control equipment. Finally, the system would produce excess heat sufficient to power a boiler and turbine, which, in turn, would generate electricity that Langboard could use or sell. Wellons undertook to design the custom energy system, and in October 2003, Wellons and Langboard entered into a second contract, which provided for the installation of the system at the Quitman plant. By June 2005, the system installation was far enough along that Langboard was able to operate the parts of the system designed to power the production of oriented strand board and to incinerate pollutants. But Langboard presented evidence that, from the time it first began to operate the system, the system was unable to meet applicable emissions requirements. And when the portion of the system designed to produce electricity was finally activated in October 2005, Langboard found that it did not produce enough steam to generate electricity as the design contract required. For several months thereafter, Wellons attempted to repair the system to bring it into compliance with the emissions requirements and to increase its production of steam. By November 2006, the emissions were "under control," but the system remained unable to produce the required steam. In December 2006, a Wellons engineer spent five days at the Quitman plant to test the capacity of the system following additional repairs. The engineer concluded that he needed additional data to determine what modifications might enable the system to produce the necessary steam. At least through January 2007, Wellons employees remained at the facility, testing the system and attempting to determine why it was not producing steam sufficient to run the turbine and generate electricity. And as late as May 2007, Wellons continued to suggest modifications of the system, including the replacement of a superheater. Wellons apparently thought that, although a new superheater would not increase the amount of steam produced by the boiler, it would increase the thermal energy of the steam that was being produced and thereby improve the performance of the system. In May 2007, Langboard informed Wellons that it was not interested in a replacement superheater because it would not, Langboard had concluded in the meantime, solve the problem of inadequate steam production.[1] Langboard 677 filed its complaint against Wellons in October 2007. On appeal, Langboard argues that the system was substantially complete at least by October 2005, when Langboard attempted to use the system to generate electricity, relying on our decision in Smith v. Hilltop Pools & Spas, Inc., 306 Ga.App. 881, 703 S.E.2d 424 (2010). In Hilltop Pools, we said that a claim for breach of a construction contract ordinarily accrues "when construction was sufficiently completed ... so that the owner could occupy the project for the use for which it was intended," explaining that any defects in the construction usually are ascertainable by that time. 306 Ga.App. at 883(1), 703 S.E.2d 424. Assuming that the principle of substantial completion applies to a design contract, as opposed to installation or construction contract, there was evidence in this case, of course, that the system never produced steam sufficient to generate the electricity for which Langboard had contracted, an essential purpose of the system design. Moreover, there was evidence that Wellons continued to modify its design of the system long after October 2005. For these reasons, whether the system was substantially complete by October 2005 might well have involved genuine issues of disputed fact, which are, of course, not to be resolved on summary judgment and instead present questions for a jury. But in any event, the theory of substantial completion that Wellons now presses on appeal and the facts on which that theory is based are not the same as the theory and facts that Wellons raised in its motion for summary judgment below. In the trial court, Wellons pointed to March 2006 as the date by which a claim for breach of the design contract had accrued, and its arguments below seem to have been more about the actual discovery of defects in the design than about the date of substantial completion. Langboard argues that Wellons waived its argument about "substantial completion" by failing to raise that theory, and the facts that would support it, on its motion for summary judgment in the court below. We agree.[2] Appellate courts do not consider whether summary judgment should have been granted for a reason not raised below because, if they did, it "would be contrary to the line of cases holding [that a party] must stand or fall upon the position taken in the trial court." Pfeiffer v. Georgia Dept. of Transp., 275 Ga. 827, 829(2), 573 S.E.2d 389 (2002) (citation and punctuation omitted). It seems clear to us that Wellons did not, in fact, argue below that the design contract claim accrued upon substantial completion or that substantial completion occurred in October 2005. We are unwilling to say that the trial court erred when it failed to consider, in the context of a motion for summary judgment, a legal theory that no lawyer articulated and facts to which no lawyer pointed. For these reasons, we see no error in the denial of the motion for summary judgment.[3] See, e.g., Assn. Svcs., Inc. v. Smith, 249 Ga.App. 629, 632(1), 549 S.E.2d 454 (2001) ("[B]ecause ASI did not raise this argument in its motion for summary judgment, it is deemed waived."). 678 2. We next consider the contention that the evidence adduced at trial does not sustain a finding that Wellons breached the installation contract, much less a finding that any such breach caused Langboard to sustain $5 million in damages, the approximate amount that the jury awarded to Langboard on its installation contract claim.[4] In short, Wellons claims that the evidence shows that any problems with the system were a result of its design, not its installation, and Wellons argues that, even if there were installation problems, the damages attributable to any installation problems are far less than the amount awarded by the jury. For these reasons, Wellons contends, it was entitled to a judgment notwithstanding the verdict or, at the least, a new trial on the installation contract claim. When we review the denial of a motion for new trial or judgment notwithstanding the verdict, we must affirm the denial if there is any evidence to support the verdict. See First Southern Bank v. C & F Svcs., 290 Ga.App. 305, 306(2), 659 S.E.2d 707 (2008). We find such evidence in this case. The jury awarded $5,015,764 to Langboard on its claim for breach of the installation contract. Langboard presented evidence at trial of several elements of damage that were a result, the jury properly could have found, of improper installation. For instance, the jury heard evidence that Wellons installed carbon steel nuts in a portion of the energy system in which its design called for alloy materials and that the carbon steel nuts disintegrated when exposed to extremely high temperatures. The jury also heard evidence that Wellons misaligned the expansion joints in the primary air heater of the system, that this misalignment caused the system to leak thermal energy, and that the misalignment created enough force to shear bolts off the system, which, in turn, exacerbated the leakage of thermal energy. The evidence shows that the cost of repairing the nuts and bolts was approximately $140,000, and the cost of repairing the expansion joints was approximately $825,000. Evidence also was presented at trial from which a jury could have found that the leakage of thermal energy prevented the system from achieving a consistent level of heat, which, in turn, put additional thermal stress upon the system. And the additional thermal stress, a jury might properly have found, likely contributed to other problems that the system experienced, including the failure of tube sheets. Langboard presented evidence that put the cost of replacing the cracked tube sheets between $3 and $4 million. The range of damages proved by this evidence alone is nearly enough to justify the award of approximately $5 million for breach of the installation contract. There also is evidence of some other elements of damage, including that the installation contract required that acceptance "shall be achieved no later than August 2004[,]" but Langboard was not able to begin operating even the portion of the system designed to power the production of oriented strand board until June 2005. From that evidence, a jury might have found some damage for delay. Moreover, a jury properly could have found from the evidence that the leakage of thermal energy was never fully remedied, that this problem imposed additional, ongoing maintenance costs upon Langboard, and more importantly, that this problem contributed to the inability of the system to produce the amount of steam required to generate electricity. We cannot determine precisely how the jury calculated the damages that it awarded to Langboard for breach of the installation contract, but: [o]ur role is not to enter the jury box. The jury made its award in its enlightened conscience and based upon the evidence presented. Thus, as the trial court declined to disturb the jury's verdict, we likewise decline to find error. Turner Broadcasting, 303 Ga.App. at 612(4), 693 S.E.2d 873 (citation and punctuation omitted). The damages awarded were within the range, we think, that the evidence authorized, 679 and for that reason, we affirm the denial of the motion for judgment notwithstanding the verdict or for a new trial. 3. Finally, we consider the contention that the trial court erred when it admitted evidence that is, Wellons says, speculative and irrelevant. "Whether to admit evidence is a matter resting in the trial court's sound discretion," and we will reverse a decision to admit evidence only upon a showing that this discretion was abused. Morrison v. Morrison, 282 Ga. 866, 867(2), 655 S.E.2d 571 (2008). We see no abuse of discretion here. (a) First, Wellons complains that the evidence of the cost to repair the failed tube sheets was speculative. At trial, a lay witness, who has worked in the wood products industry since 1973 and runs a company that designs, constructs, and operates combustion energy systems, put this cost between $3 million and $4 million. This witness had been hired by Langboard to conduct inspections of its custom energy system, and his company made recommendations to Langboard about how it might repair the system. Wellons objected that the testimony of the witness about the cost of repairing the tube sheets was "just a guess." We have said before that an expert opinion that is "wholly speculative" has no probative value, Hawkins v. OB-GYN Assocs., 290 Ga.App. 892, 896(2)(b), 660 S.E.2d 835 (2008), and we have explained that damages cannot be established by "speculation, conjecture and guesswork." Song v. Brown, 255 Ga.App. 562, 564, 565 S.E.2d 884 (2002) (citation and punctuation omitted). But evidence that a cost cannot be fixed precisely but falls within a certain range is not necessarily speculative or "just a guess." A witness may know with certainty that the cost, in fact, falls within that range, but because of factors unknown to him or perhaps unknowable, he cannot more precisely fix the cost. "[T]he ability to estimate damages to a reasonable certainty is all that is required[,] and mere difficulty in fixing the exact amount will not be an obstacle to the award." Page v. Braddy, 255 Ga.App. 124, 126, 564 S.E.2d 538 (2002) (citation and punctuation omitted); see also Dossie v. Sherwood, 308 Ga.App. 185, 188, 707 S.E.2d 131 (2011) ("[t]he rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages.") (citation and punctuation omitted). It appears that the witness who estimated the costs of repairing the tube sheets had some basis for his estimate, and his testimony was not so uncertain, we think, as to prevent the jury from fixing the amount of damages with reasonable certainty. See John Thurmond & Assocs. v. Kennedy, 284 Ga. 469, 473(2), 668 S.E.2d 666 (2008). Moreover, as the trial court noted, that the witness was unable to fix the cost more precisely was something that Wellons could explore on cross-examination. For all these reasons, we conclude that the trial court did not abuse its discretion when it permitted the witness to testify about the cost of replacing the failed tube sheets, even though the witness was only able to provide a range of the amount it would cost to replace them. See generally Glen Oak v. Henderson, 258 Ga. 455, 459(2)(g), 369 S.E.2d 736 (1988) ("[A] jury can award what it pleases within the range of the evidence"). (b) Wellons also claims that the trial court erred when it failed to exclude evidence about the cost of adding an additional boiler to the system, approximately $12 million. This evidence was presented through testimony of the same lay witness who testified about the cost of replacing the tube sheets, and it related to a proposal submitted by the witness to Langboard in October 2008. That proposal suggested that the inadequate production of steam could be remedied by use of a standalone boiler, which would produce additional steam to power the existing turbine generator. The proposal itself was admitted into evidence over objection. Wellons claims on appeal that the cost of an additional boiler was irrelevant because the agreements between Wellons and Langboard did not provide for such a boiler, so that an additional boiler would put Langboard in a better position than it would have been had Wellons 680 fully performed under the contracts.[5] While Wellons is correct that "[d]amages are intended to place an injured party, as nearly as possible, in the same position they would have been if the injury had never occurred[,]" it also is true that, where a breach of contract results from defective construction, an injured party may recover damages based upon "the reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to the probable loss in value...." John Thurmond & Assocs., 284 Ga. at 469-470(1), 668 S.E.2d 666 (citation and punctuation omitted). Here, a rational jury could have found that the design contract required the energy system to produce an amount certain of steam and that the only way to achieve that result was to install an additional boiler. Even if the cost of an additional boiler made the costs of repair disproportionate to the loss in value of the system a finding that the evidence may permit, but does not seem to require that certain costs are not precisely the measure of damages does not mean that evidence of those costs are irrelevant to the existence and extent of damages. We have said before that juries are to be given "wide latitude in determining the amount of damages to be awarded based upon the unique facts of each case[,]" Turner Broadcasting System v. McDavid, 303 Ga.App. 593, 612(4), 693 S.E.2d 873 (2010) (citation and punctuation omitted), the court below did not abuse its discretion, we think, when it allowed Langboard to introduce evidence of the cost of the additional boiler, especially considering that it also allowed Wellons to provide evidence that the additional boiler would place Langboard in a better position than it would have been had the agreements been fully performed. We also note that, in any event, the jury did not award the full cost of an additional boiler to Langboard, so any harm in the admission of this evidence is not apparent. Compare Morehouse College v. McGaha, 277 Ga.App. 529, 534-535(2), 627 S.E.2d 39 (2005) (verdict was so flagrantly excessive that it must have resulted from a mistake). Judgment affirmed. BARNES, P.J., and ADAMS, J., concur. NOTES [1] Langboard presented evidence that, by the time Wellons offered to replace the superheater, "it had become obvious" to Langboard that the system was not large enough to produce the amount of steam necessary to produce electricity and that changes to the superheater would be "kind of like rearranging the deck chairs on the Titanic." [2] Wellons failed to include a transcript of the hearing on its motion for summary judgment in the record on appeal. But Wellons does not contend that it made any arguments about substantial completion at that hearing, and our review of the motion itself convinces us that Wellons never asked the court below to consider when the system was substantially completed. [3] In a footnote of its brief on appeal, Wellons says that, "[t]o the extent the Court allows Langboard's recovery under the [design contract], it must be offset by the retainage owed by Langboard to Wellons...." This apparently refers to a counterclaim asserted below, in which Wellons alleged that Langboard improperly withheld funds owed to Wellons as retainage under the design contract. But the jury did not award Wellons anything on its counterclaim, and Wellons says nothing in its enumeration of errors about the judgment in favor of Langboard on the counterclaim. Consequently, we do not consider whether the award of damages for breach of the design contract should be reduced by the amount of any retainage. See Felix v. State, 271 Ga. 534, 539, n. 6, 523 S.E.2d 1 (1999) ("[a]n appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors.") (citation omitted). [4] In response to this contention, Langboard argues, among other things, that the installation contract contains specifications for the performance of the system that are more stringent than those in the design contract and independently enforceable. In addressing this contention, we do not rely upon this argument and decline to find that the installation contract, in fact, contains such additional performance specifications. [5] In its reply brief, Wellons also claims that the testimony should have been excluded because it violated the terms of the trial court's order granting Wellons's motion in limine that "prohibited the witness from offering expert opinion testimony concerning the design of the energy system, its operation or its monetary value or other such opinions or conclusions." But the witness at issue did not provide expert testimony about such matters. Instead, the witness gave lay testimony about the proposal he submitted to provide a solution to the problems that Langboard was experiencing with the energy system.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501082/	710 S.E.2d 682 (2011) 309 Ga. App. 522 BROWN, v. LAWRENCEVILLE PROPERTIES, LLC. No. A11A0376. Court of Appeals of Georgia. May 6, 2011. 683 Michael J. Anderson, Lawrenceville, for appellant. Webb, Tanner, Powell, Mertz & Wilson, Melody Allen Glouton, Lawrenceville, Anthony O.L. Powell, for appellee. ANDREWS, Judge. Timothy Brown brings this appeal from the trial court's grant of partial summary judgment in the amount of $171,485.70 to the landlord Lawrenceville Properties concerning Brown's personal guarantee of a restaurant lease in default. Brown argues that various documents executed after the original lease amount to a novation such that his guarantee of LRG Group's nonperformance would be excused. We disagree and affirm. The undisputed facts are that on December 15, 2004, the restaurant tenant Lil' River Grill, Inc. entered into a five-year lease with Lawrenceville. Although the lease specified that its term lasted from April 2004 that is, before the execution of the document through March 2009, another part, initialed by agents for both sides, moved up the possession date, with Lil' River's option to terminate if not put into possession, from May 1, 2005 to June 1, 2005. The lease also required the parties to specify the actual commencement date of the lease, as follows: [Lil' River] agrees that, at the request of Landlord, [Lil' River] shall, following the Commencement Date, execute and deliver a recordable memorandum (Exhibit "E")... containing the basic provisions of this Lease, acknowledging that [Lil' River] has accepted possession of the Premises[,] and reciting the exact Commencement Date and termination date of the original Lease Term. ... The lease specified that Lil' River would first owe rent on the earliest of three dates: (i) ten days after the premises were "substantially complete and a Certificate of Occupancy is issued"; (ii) the first date on which Lil' River occupied the premises "for business"; or (iii) "78 days" after the execution of the lease, or March 3, 2005. Brown signed the lease with William Green as representatives of Lil' River, and the two also signed an unconditional guarantee of Lil' River's obligations under the lease. At or soon after the execution of the lease, Brown and Green also signed a document entitled "Exhibit E: Confirmation of Commencement Date." This version of Exhibit E bears neither an execution date nor a specific lease term. According to Todd Johnson, the principal of LRG, Brown and Green provided this document as an example of the one to be executed when the premises were ready for occupancy. A second version of Exhibit E, again signed only by Brown and Green, has lease term dates of May 15, 2004, to May 14, 2009. A third version of Exhibit E was executed in early 2006, after LRG had assumed the lease from Lil' River. This third version, still bearing the signatures of Brown and Green but also initialed by Johnson and Linda Campbell, a Lawrenceville representative, contains corrections of the previous dates to a lease term of May 15, 2005, to May 14, 2010. A certificate of occupancy for the premises did not issue until May 17, 2005. Lil' River took possession of the property on May 15. Lil' River began paying rent in August 2005, which was consistent with a May 2005 commencement date as well as a lease provision that the first three months of rent were waived. From May 15, 2005 to May 16, 2006, Lil' River paid rent of $72,250-that is, the lease's base rent for Year 1 of $102,000 less $29,750 of waived rent. On September 30, 2005, and with Lawrenceville's consent, Lil' River assigned the lease to LRG Group. In the assignment, Lil' River agreed "that the Landlord [Lawrenceville] and Assignee [LRG] may change, modify[,] or amend the Lease in any way, including the rental to be paid thereunder, and that further assignments may be made, without notice to or consent of Assignor [Lil' River]." Brown signed the assignment as both Lil' 684 River's representative and as the "Personal Guarantor" of "Assignor's obligations." On the same day, all three parties, including LRG as Lil' River's assignee, agreed to an amendment of the lease with new requirements including that Lil' River provide Lawrenceville with quarterly financial reports and a $500 late fee for rent paid after the fifth of each month. Brown also signed the amendment, which contained a provision that "Tim Brown will continue to personally guarantee the Lease until such time as other entities provide a personal guarantee of the Lease that meets the approval of [Lawrenceville]." LRG began falling behind in its payments in 2007 and defaulted in May 2008. Lawrenceville repossessed the property and sued Brown for damages and fees. In the course of discovery, Brown admitted that he had "unconditionally guaranteed the performance by LRG Group, Inc. of all of its obligations and liabilities under the Lease, [and] agreed to pay [Lawrenceville] the rent or any arrears thereof and all damages that may arise in consequence of any default by [LRG] under the Lease," including "reasonable attorney fees." After both parties moved for summary judgment, the trial court granted Lawrenceville's motion concerning Brown's affirmative defense of novation in the amount of $171,485.70, including $22,367.70 in attorney fees, but denied Lawrenceville's motion concerning its claim for stolen equipment in the amount of $70,245.21. 1. Brown first argues that the trial court erred when it concluded that the parties' various corrections of the lease term from May 2005 to May 2010 did not amount to a novation or otherwise invalidate his guarantee. We disagree. "`The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.' OCGA § 13-2-2(4)." Town Center Assoc. v. Workman, 227 Ga.App. 55, 57(1), 487 S.E.2d 624 (1997). Guarantees "are to be taken as strongly against the party giving the guarantee, as the sense of them will admit." (Citation and punctuation omitted.) Id. at 58(1), 487 S.E.2d 624; see also OCGA § 13-2-2(5). "In every novation there are four essential requisites: (1) a previous valid obligation, (2) the agreement of all the parties to the new contract, (3) the extinguishment of the old contract, [and] (4) the validity of the new one. If these essentials, or any one of them, are wanting, there can be no novation." (citation and punctuation omitted.) M.W. Buttrill, Inc. v. Air Conditioning Contractors, 158 Ga.App. 122, 124, 279 S.E.2d 296 (1981). Here, the trial court properly looked to evidence extrinsic to the December 2004 lease to reconcile the conflict between its apparent term (April 2004 to April 2009) and its simultaneous requirement that the parties execute Exhibit E in order to set not only the rent commencement date, but also "reciting the exact Commencement Date and termination date of the original Lease Term." (Emphasis supplied.) Brown's own evidence shows that his agent initialed the correction of the occupancy date to June 1, 2005, and it is clear from the conduct of the original parties through September of that year, including Lil' River's failure to insist on the completion of Exhibit E at any point before or after its first rent payment in August, that they had reached agreement concerning both the rent commencement date and the lease term. See C.L.D.F., Inc. v. The Aramore, LLC, 290 Ga.App. 271, 273(1), 659 S.E.2d 695 (2008) (trial court did not err in correcting an obvious contractual error and in enforcing a guaranty against the guarantor as a matter of law); M.W. Buttrill, 158 Ga.App. at 124(3)(a), 279 S.E.2d 296 (lack of evidence that original contract had been extinguished meant that novation could not have occurred). 2. Brown also argues that the assignment and amendment amounted to a novation such that he was released from his obligations. Again, we disagree. "Contemporaneous written agreements are perhaps one of the surest ways to establish the intent of the parties in entering into each of those agreements." C.L.D.F., 290 Ga.App. at 273(1), 659 S.E.2d 695. *685 In the assignment, Brown agreed that LRG and Lawrenceville were free to "change, modify[,] or amend the Lease in any way." Even assuming that the successor parties actually changed rather than clarified the lease term in the third version of Exhibit E, Brown had ratified such a change in advance. Likewise, even if we were to conclude that the assignment and amendment amounted to a novation, Brown signed both documents as a guarantor, explicitly agreed in the assignment that he would continue to extend that guarantee, and admitted in the course of discovery that he was responsible for any default by LRG. He is therefore liable for that default. See Anderton v. Certainteed Corp., 201 Ga.App. 538, 540, 411 S.E.2d 558 (1991) (guarantor who "consented in advance to be responsible" for a second note cannot be "discharged as a surety by its execution, even if under other circumstances such a note could be considered a novation"); First Union Nat. Bank of Ga. v. Gurley, 208 Ga.App. 647, 650-651(2), 431 S.E.2d 379 (1993) (reversing denial of motion for j.n.o.v. where no material fact existed concerning the validity of a guarantee; a "mere" lack of consideration is "no legal defense" to liability under it). Judgment affirmed. PHIPPS, P.J., and McFADDEN, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501059/	709 S.E.2d 773 (2011) 289 Ga. 111 JONES v. The STATE. No. S11A0414. Supreme Court of Georgia. April 18, 2011. 774 Jason Roy Hasty, Augusta, for appellant. Thurbert E. Baker, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Ashley Wright, Dist. Atty., Adam William King, Charles R. Sheppard, Asst. Dist. Attys., Sara Kaur Sahni, Asst. Atty. Gen., Mary Beth Westmoreland, Deputy Attorney General, for appellee. BENHAM, Justice. In a bifurcated trial, appellant Michael Bernard Jones was convicted of the felony murder of Curtis Tony Howard (with aggravated assault as the predicate felony), possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon.[1] On appeal, Jones contends he was deprived of his constitutional right to effective assistance of counsel. 1. The State presented evidence that two men discovered the victim's body in the bed of his pickup truck which was parked behind a vacant Richmond County mobile home. The medical examiner testified the victim had died as a result of gunshot wounds to his chest and abdomen that were consistent with having been inflicted by a rifle. Appellant was arrested in Texas several days later while a passenger in a car that was stopped for speeding by a Texas Highway Patrol officer, who discovered there was an outstanding warrant from Georgia for appellant's arrest. The man who was driving the car in which appellant was a passenger when he was arrested testified that appellant had 775 told him two days before the victim was killed that appellant was going to participate with others in the robbery "out in the country" of a man coming to Waynesboro with drugs. After the victim was killed, appellant told the witness that he and three others had "done the job" and he had received $250 of the $600-$700 taken from the victim. Two of the three men indicted with appellant pled guilty to lesser charges and testified against appellant. Each of the testifying co-indictees stated he had purchased kilograms of cocaine from the victim, who did not live in the area, and that the victim had called each of them earlier in the week to say he was coming to town later in the week. One co-indictee testified he and the victim drove to the other testifying co-indictee's Burke County home in the victim's pickup truck. As they approached the house, the passenger co-indictee telephoned the co-indictee who owned the home and told him of their impending arrival. When they drove behind the house, appellant and the third co-indictee, both armed with "long guns," approached the pickup truckappellant on the driver's side and the third indictee on the passenger sideand ordered the occupants to get out of the truck and lie face-down on the ground. The passenger co-indictee testified his shirt was pulled up over his head, obscuring his vision, but he heard the armed men repeatedly ask the victim for the location of the drugs. After the victim said the drugs were at the motel where he was staying and begged for his life, two shots were fired, both of which struck the victim. The co-indictee who owned the house then came out of his house and rolled the victim over onto his back and, upon discovering the victim was dead, slapped appellant. Appellant and the three co-indictees placed the victim's body in the bed of the victim's pickup truck, and appellant drove the victim's truck to the vacant mobile home in Richmond County and parked the truck in the backyard. The two co-indictees who testified followed appellant in a truck owned by one of them and picked up appellant at the vacant mobile home. One co-indictee testified that, on the way back to Waynesboro, appellant asked the driver to go by a dumpster where he disposed of a black plastic bag. The other co-indictee testified that appellant had a bag that looked as if it had a gun in it when they picked him up at the mobile home, and appellant left the bag at his home. The evidence summarized above was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant killed the victim while committing an aggravated assault and while in possession of a firearm. After the State presented proof in the second part of the bifurcated proceeding that appellant had been convicted seven years earlier of felony shoplifting, the evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of being a convicted felon in possession of a firearm. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Martin v. State, 281 Ga. 778(1), 642 S.E.2d 837 (2007) (bifurcated proceeding in which defendant was found guilty of possession of a firearm by a convicted felon). 2. Appellant contends he was not afforded his constitutional right to effective assistance of counsel at trial. In order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must show that counsel performed deficiently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different. Coleman v. State, 286 Ga. 291(6), 687 S.E.2d 427 (2009). If appellant fails to meet his burden of proving either prong of the test, the reviewing court need not examine whether the burden of proving the other prong has been met. Fuller v. State, 277 Ga. 505(3), 591 S.E.2d 782 (2004). Appellant cites four instances in which he contends trial counsel did not provide effective assistance of counsel: counsel's failure to contest the validity of the arrest warrant that resulted in appellant's arrest in Texas; counsel's failure to contest the trial judge's authority to preside over appellant's trial; counsel's failure to appear at arraignment; and counsel's failure to ask the trial court to remove a juror who spoke with a witness 776 outside the courtroom after the witness testified. (a) Appellant sees deficient performance in counsel's failure to question the sufficiency of the affidavit executed in support of a law enforcement officer's application for the arrest warrant issued for appellant. Appellant posits that the affidavit did not contain material from which the magistrate could make a finding of probable cause and, had the arrest warrant been ruled illegal, would have prevented the introduction at trial of the testimony of the State's witnesses and the forensic evidence presented against appellant. Trial counsel testified at the hearing on the motion for new trial that he had not challenged the affidavit since appellant was afforded a preliminary hearing at which the probable cause to hold appellant for trial was assessed and found to be present. The affidavit in support of the arrest warrant is not in the appellate record. Compare Jones v. State, 287 Ga. 770(7), 700 S.E.2d 350 (2010); Murray v. State, 307 Ga.App. 621(2), 705 S.E.2d 726 (2011); Ware v. State, 258 Ga.App. 706(3), 574 S.E.2d 898 (2002). The absence of evidence from which a finding of trial counsel's deficient performance could be made, coupled with appellant's mere speculation concerning the prejudice purportedly wrought by the unproven deficient performance, leads us to conclude the trial court did not err when it determined that appellant did not carry his burden of proving ineffective assistance of counsel with regard to this claim. See Lanier v. State, 288 Ga. 109(3) (a), 702 S.E.2d 141 (2010) (unfounded speculation will not support a finding of deficient performance); Whitus v. State, 287 Ga. 801(2), 700 S.E.2d 377 (2010) ("Speculation is insufficient to satisfy the prejudice prong of Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]."). (b) Appellant next argues that trial counsel performed deficiently when he did not challenge the trial court's jurisdiction, i.e., the authority of Judge Michael Annis to preside over appellant's trial in the absence of an order transferring appellant's case to Judge Annis from Judge Neal Dickert, to whom appellant asserts the case was originally assigned.[2] Appellant asserts he suffered prejudice as a result of counsel's purported deficient performance because the issue was not preserved for appellate review. However, the prejudice that must be established for ineffective assistance of counsel is that there is a reasonable probability that the outcome of appellant's trial would have been different but for counsel's failure to question the jurisdiction of the trial court. It is without question that the Superior Court of Burke County had exclusive jurisdiction over appellant, who was an adult charged with committing a felony in Burke County. Ga. Const.1983, Art. VI, Sec. IV, Par. I. Appellant was tried in the Superior Court of Burke County and, in the absence of evidence that Judge Annis was not a member of the Superior Court of Burke County, in the absence of evidence that a substitution of one judge for another in fact occurred and in the absence of evidence of the reason for the purported substitution, appellant has shown no harm resulting to him from Judge Annis presiding over his trial. See Cooper v. State, 281 Ga. 760(3), 642 S.E.2d 817 (2007). Consequently, trial counsel's failure to object to Judge Annis's role in this case does not constitute ineffective assistance. (c) Appellant maintains that trial counsel's failure to appear at appellant's arraignment constituted ineffective assistance of counsel because appellant lost the opportunity to demur to an indictment that purportedly was vague and ambiguous since it did not set out in each count the role each co-indictee played, thereby depriving appellant of a perfect indictment and of information sufficient to put him on notice to allow for an effective defense. Trial counsel testified at the hearing on the motion for new trial that appellant was "very involved" in his defense, implying that appellant was well aware of the 777 charges he faced. Trial counsel further testified he believed there was no basis for filing a demurrer.[3] A defendant is entitled to be tried on a perfect indictment and may file a special demurrer seeking greater specificity or additional information concerning the charges contained in the indictment. Wallace v. State, 253 Ga.App. 220(3), 558 S.E.2d 773 (2002). A defendant who does not file a timely special demurrer waives the right to be tried on a perfect indictment. Dasher v. State, 285 Ga. 308(2), 676 S.E.2d 181 (2009); OCGA § 17-7-110 (timing of pre-trial motions). The true test of the sufficiency of an indictment to withstand a special demurrer "is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. It is useful to remember that the purpose of the indictment is to allow defendant to prepare his defense intelligently and to protect him from double jeopardy." [Cit.] The law is "well-settled" in Georgia "that the State is not required to specify in the indictment that it is charging the defendant as a party to the crime." [Cit.] Metz v. State, 284 Ga. 614(3), 669 S.E.2d 121 (2008). See also Dunn v. State, 263 Ga. 343(2), 434 S.E.2d 60 (1993) ("Due process is satisfied where the indictment puts the defendant on notice of the crimes with which he is charged and against which he must defend."). It is not the purpose of an indictment to set forth the role each co-indictee played in the commission of the crime. Since the charges in the indictment contained the elements of the offenses intended to be charged and sufficiently apprised appellant of what he had to be prepared to meet, thereby allowing him to prepare a defense and safeguarding him against double jeopardy, a timely-filed special demurrer would have been denied. Metz v. State, supra, 284 Ga. 614(3), 669 S.E.2d 121. If trial counsel's failure to appear at arraignment was the reason why a special demurrer was not filed, appellant suffered no harm from the failure to appear. (d) Lastly, appellant contends trial counsel was ineffective when he failed to move for the removal from the jury of a juror who spoke with a witness after court had been adjourned on the day the witness testified for the State during appellant's trial. Both the witness and the juror, while under oath and outside the presence of each other, informed the trial court, the prosecutor, and defense counsel of the content of their conversation that was initiated by the juror and lasted about one minute.[4] At the conclusion of the impromptu hearing at which appellant was present, the trial court, prosecutor, and defense counsel agreed that the juror and witness had not discussed the case during their conversation and all expressed satisfaction that the brief encounter between the juror and the witness would not affect the juror's evaluation of the case. The juror was allowed to remain on the jury. Trial counsel was not asked about this incident during the hearing on the motion for new trial. A defendant is entitled to trial by a jury untainted by improper influence, and *778 communication between a juror and a witness while a trial is on-going is improper. Clark v. State, 153 Ga.App. 829(1), 266 S.E.2d 577 (1980). When irregular juror conduct is shown, there is a presumption of prejudice to the defendant, and the prosecution carries the burden of establishing beyond a reasonable doubt that no harm occurred.... "[W]here the substance of the communication is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant." Holcomb v. State, 268 Ga. 100(2), 485 S.E.2d 192 (1997). Inasmuch as the hearing established the uncontradicted substance of the conversation and that it was not an attempt to discuss the merits of the case or influence the juror, appellant was not harmed by the improper communication and trial counsel did not perform deficiently in failing to seek the juror's removal. The trial court did not err when it determined appellant had not established ineffective assistance of counsel. See Peterson v. State, 284 Ga. 275, 278, 663 S.E.2d 164 (2008). Judgment affirmed. All the Justices concur. NOTES [1] The victim was killed on August 24, 2006 in Burke County, and his body was discovered several days later in the backyard of a vacant mobile home in nearby Richmond County. Appellant was arrested on August 29 by a trooper with the Texas Highway Patrol and was returned to Georgia. On October 25, 2007, the grand jurors of Burke County returned a true bill of indictment charging appellant and three others with malice murder and felony murder (aggravated assault) in connection with the death of Curtis Howard, as well as possession of a firearm during the commission of a crime. Each co-indictee was also charged with being a felon in possession of a firearm. Appellant's trial took place May 5-8, 2008, and resulted in the jury acquitting him of malice murder and convicting him of the remaining charges. Appellant was sentenced on May 8 to life imprisonment for the felony murder and to a term of five years for each of the firearm convictions, to be served consecutively. Appellant's motion for new trial, timely filed May 20, 2008, was amended on May 7, 2010, was the subject of a hearing held on May 18, 2010, and was denied by an order filed July 12, 2010. A timely notice of appeal filed on July 29, 2010, caused the appeal to be docketed to the January 2011 term of Court, where it was submitted for decision on the briefs. [2] "JUDGE DICKERT" is stamped on the cover page of the indictment returned against appellant and his co-indictees. The record does not reflect whether such a stamped entry indicates the jurist to whom the case is assigned pursuant to the local method of case assignment. See Rule 3, Uniform Superior Court Rules. [3] The indictment charged the four co-indictees "with the offense of MURDER (§ 16-5-1(c)) for that said accused, in the County of Burke and State of Georgia, on the 24th day of August, did while in the commission of the felony of Aggravated Assault, cause the death of Curtis Tony Howard, a human being, by shooting him ... [,]" and with the offense of POSSESSION OF FIREARM DURING COMMISSION OF CRIME (§ 16-11-106) for that the said accused, in the County of Burke and State of Georgia, on the 24th day of August, 2006, did have on their and within arms reach of their person a firearm, to-wit: an unknown type rifle, during the commission of a crime, to-wit: murder, said crime involving the person of Curtis Tony Howard, and which crime was a felony, .... [4] Having heard the witness testify to the name of his stepfather with whom he lived, the juror became aware that the witness's stepfather was her child's great-grandfather who had recently undergone heart surgery, and she asked the witness about his health.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2473982/	755 F.Supp.2d 1261 (2010) UNITED STATES of America, v. Anthony Harvey ROSS, Defendant. Case No. 10-CR-10022. United States District Court, S.D. Florida, Miami Division. December 17, 2010. Stewart Glenn Abrams, Michael T. Caruso, Federal Public Defender's Office, Miami, FL, for Defendants. Roger Cruz, United States Attorney's Office, Miami, FL, for Plaintiff. SENTENCING OPINION AND ORDER JAMES LAWRENCE KING, District Judge. THIS CAUSE comes before the Court upon Defendant's Sentencing Memorandum (DE # 22), requesting that this Court impose a sentence deviating from the Guideline range in effect, when Defendant committed the crimes, in favor of the Sentencing Guidelines promulgated by the Fair Sentencing Act of 2010. The Government has filed a Response (DE # 23), and a sentencing hearing was held on December 12, 2010 (DE # 24), where both parties were heard and fully argued their respective positions. At the conclusion of the hearing the Court took the matter under 1262 advisement. After careful consideration of the arguments and legal authorities, the Court concludes as follows. The Sentencing Guidelines are now, of course, advisory. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Thus, although the recommended Guideline range must be taken into account, the Court must follow the "parsimony provision" of 18 U.S.C. § 3553(a), which is the "overarching" command of the statute. Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007). That provision provides: "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection." 18 U.S.C. § 3553(a). With that in mind, the Court turns to the facts at hand. The Defendant committed an offense which involved 13.2 grams of crack cocaine. At the time Defendant committed this crime, 21 U.S.C. § 841((b)(1)(B)(iii) required a five-year mandatory minimum sentence for offenses involving five grams or more of cocaine base. However, on August 3, 2010, the Fair Sentencing Act of 2010 (Pub.L. No. 111-120, 124 Stat. 2372, § 2 (August 3, 2010) became law. This act recognized the disparity between sentences for individuals charged with cocaine base versus cocaine powder offenses, and raised the threshold of cocaine base necessary to trigger the five-year mandatory minimum sentences from five grams to twenty-eight grams. This act became effective as of 90 days from the date that it became law, i.e., as of November 3, 2010. The conundrum before the Court is that under the law in effect prior to November 3, 2010, Defendant faced a five-year mandatory minimum sentence; however, if the Court were to apply the adjustments made in the Fair Sentencing Act of 2010, he would not be exposed to a mandatory minimum five-year sentence. The Court is aware that the act was not made retroactive to crimes committed before November, 2010, and that the crimes in this case occurred from September 2009 to January 2010. The government has a responsibility to argue that Defendant should be sentenced to said mandatory minimum, under 21 U.S.C. § 841((b)(1)(B)(iii), in addition to the five-year consecutive mandatory minimum sentence for his violation of 18 U.S.C. § 924(c)(1)(A), for a total mandatory minimum sentence of ten (10) years. They capably presented this position. Defendant concedes that the section 924(c)(1)(A) count of his conviction requires a minimum five-year consecutive sentence to his crack cocaine conviction. Therefore the only issue is whether he should also receive a five-year minimum mandatory sentence for his section 841((b)(1)(B)(iii) conviction. The Court in good conscious cannot apply the Government's requested interpretation, thus arriving at a sentence the Congress believes to be totally unfair. Indeed Congress was granted emergency authority, to alleviate this issue. Particularly instructive is the letter from Senators Durbin and Leahy, the lead sponsors of the Fair Sentencing Act, requesting that Attorney General Holder apply the act's "modified mandatory minimums to all defendants who have not yet been sentenced, including those whose conduct predates the legislation's enactment." Because the lead sponsors of the Fair Sentencing Act urge Attorney General Holder to do so, and in light of the fact that the Fair Sentencing Act itself, despite the fact that it is not retroactive, does not indicate categories of offenders to whom it applies: those who have not yet offended, offenders not yet convicted, offenders convicted but no yet sentenced, or offenders already sentenced, the Court believes it is proper to 1263 sentence Defendant under the new Guidelines. See U.S. v. Gillam, 753 F.Supp.2d 683, 687-88, 2010 WL 4906283, 4 (W.D.Mich.2010). "It would be a strange definition of "conforming" and "consistency" to have these amended Guidelines go into effect while the old and therefore inconsistent statutory minimums continue." Id. at 688, at 5. Therefore taking into account all the relevant information, the Fair Sentencing Act of 2010 and supporting materials, this Court finds that the circumstances are sufficiently compelling to justify a deviation from the sentencing guideline in favor of the amended provisions of the Fair Sentencing Act of 2010. Accordingly, it is ORDERED, ADJUDGED, and DECREED that: The Court finds that the Defendant is unable to pay a fine and therefore no fine is imposed. The Defendant is hereby sentenced to a term of imprisonment of thirty (30) months followed by a consecutive term of sixty (60) months based on Defendant's conviction pursuant to 18 U.S.C. 924(c). Upon release from imprisonment, the defendant shall be placed on Supervised Release for a term of five (5) years. Within 72 hours of release, the defendant shall report to the probation office in the district where released. While on supervised release, the defendant shall comply with all standard conditions of supervised release, along with all conditions stated in the forthcoming Judgment. It is further ORDERED, ADJUDGED, and DECREED that since the Court has already conducted a full sentencing hearing and carefully considered the briefs and oral arguments of both parties, it is unnecessary to hear further submissions on the merits from counsel. The defendant will be present for pronouncement of sentencing at the already scheduled (see D.E. # 29) sentencing date of January 31, 2011 at 1:00 PM at the United States Courthouse, Courtroom # 1, First Floor, 301 Simonton Street, Key West, Florida. DONE AND ORDERED in chambers at the James Lawrence King Federal Justice Building, Miami, Florida, this 17th day of December, 2010.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2473983/	756 F.Supp.2d 587 (2010) Goodie Imani SAMUELS, Petitioner, v. UNITED STATES of America, Respondent. No. 10 Civ. 8811. No. 08 Cr. 0147. United States District Court, S.D. New York. December 20, 2010. Goodie Imani Samuels, Herlong, CA, pro se. DECISION AND ORDER VICTOR MARRERO, District Judge. Petitioner Goodie Imani Samuels ("Samuels") brought this action pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside or correct his sentence. Samuels pled guilty pursuant to a plea agreement to one count of possession with intent to distribute and distribution of crack cocaine in violation of 21 U.S.C. § 846. The sentencing range under the advisory Guidelines was 188 to 235 months' imprisonment. Applying the considerations under 18 U.S.C. § 3553(a), the Court imposed a non-Guidelines sentence of 108 months' incarceration. Samuels filed an appeal, which he later voluntarily withdrew. Samuels contends that he was denied effective assistance of counsel because trial counsel failed to explain fully a waiver provision contained in the plea agreement pursuant to which Samuels pleaded guilty. Samuels also seeks a determination as to whether he is entitled to the benefit of recent changes in the law relating to sentencing for offenses involving crack cocaine. The Court rejects Samuels's claim of ineffective assistance of counsel. The record of Samuels's plea allocution establishes conclusively that Samuels was fully aware of all the provisions of his plea agreement, including the waivers contained therein, that he was informed of the consequences of his pleading guilty, and that his plea was knowing, voluntary and based on advice of counsel. Moreover, after having been granted requests to replace appointed counsel on two prior occasions in this case, Samuels acknowledged to the Court that he was satisfied with attorney Richard Signorelli ("Signorelli") and the representation he provided Samuels. The Court has otherwise reviewed Samuels's ineffective assistance of counsel claim and finds it meritless. Samuels fails to establish any basis for relief on such ground under the standard enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court finds that a fair assessment of Signorelli's performance in this case shows no evidence that the legal representation Samuels was provided in connection with his plea allocution *588 or at sentencing was deficient, or that if counsel may have committed any professional error it was so serious as to deprive Samuels of a fair proceeding, or that, but for any such error the result of Samuels's sentencing, which was substantially below the bottom of the advisory Guidelines range, would have been different. See id. at 689, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674. In response to Samuels's request for relief pursuant to the Fair Sentencing Act of 2010 ("FSA"), Pub.L. No. 111-222, 124 Stat. 2372, Samuels is not entitled to the benefit of that law. Samuels was convicted pursuant to his guilty plea on April 1, 2009. The FSA took effect on August 3, 2010 and contains no provision making its application retroactive. See United States v. Tejeda, No. 07 Cr. 502, ___ F.Supp.2d ___, 2010 WL 4967977 (S.D.N.Y. Dec. 2, 2010). ORDER For the reasons stated above, it is hereby ORDERED that the motion of Goodie Imani Samuels ("Samuels") for an order to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED. The Clerk of Court is directed to terminate any pending motions and to close this case. Because Samuels has not made a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2473986/	741 F.Supp.2d 405 (2010) Brinett PALMER, Plaintiff, v. NORWEGIAN CRUISE LINE & NORWEGIAN SPIRIT, a cruise liner, Defendants. No. 08-cv-4914 (ADS)(ARL). United States District Court, E.D. New York. October 2, 2010. 406 John Mulvehill, Esq., St. James, NY, for plaintiff. Junge & Mele, LLP, by Peter A. Junge, Esq., of Counsel, New York, NY, for defendants. MEMORANDUM OF DECISION AND ORDER SPATT, District Judge. This action arises out of personal injuries allegedly sustained by the plaintiff, Brinett Palmer, as a result of an accident that occurred on December 21, 2006 while the plaintiff was a passenger on board the 407 Norwegian Spirit, an ocean cruise ship operated by the Norwegian Cruise Line ("Norwegian"). Both the plaintiff and the defendants now move for summary judgment. For the reasons set forth below, the Court grants the defendants' motion for summary judgment, dismisses the plaintiff's claims in their entirety, and deems all other pending motions moot. I. BACKGROUND The following facts are drawn from the parties' submissions. In reviewing the defendants' motion for summary judgment, all inferences that the Court draws from these submissions are viewed in the light most favorable to the plaintiff. In 2006, plaintiff Brinett Palmer worked as a "home health aide" for Home Instead Senior Care ("Home Instead"), a company that provided individual home health care to persons requiring assistance. In September 2006, a woman named Diane Laub contacted Home Instead to request an aide to care for her wheelchair-bound motherin-law, Ruth Laub, on a family sea cruise in December. Home Instead recommended Palmer for the job, and later that month, Diane Laub met with both Palmer and a supervisor from Home Instead so that she could conduct a screening interview. After a successful interview, Diane Laub called Home Instead to approve Palmer, and sometime shortly thereafter in September or October 2006, Home Instead told Palmer that she had been given the assignment. After securing Palmer's services for the cruise, Diane Laub provided Palmer's information to her travel agency, which in turn prepared a cruise ticket in Palmer's name. A sales representative for that travel agency then hand delivered four ticket booklets, including the ticket booklet for Palmer, to Diane Laub's home during the first week of December 2006. The ticket booklets each contained a boarding pass with the passenger's name printed on it, as well as a number of additional pages with information for the passenger. After the initial interview with Diane Laub, Palmer had no contact with any member of the Laub family until the morning they boarded the cruise ship together. On that morning, December 21, 2006, Palmer traveled to the Laubs' home, where she met Diane Laub, Diane's husband Daniel Laub, and Ruth Laub, all of whom were going on the cruise. All four then traveled together to the cruise ship pier in Manhattan. When they arrived, Diane Laub handled the tickets for all members of the party, while Palmer wheeled Ruth Laub up the gangplank. As the group boarded the ship, a Norwegian representative removed the boarding pass from each ticket booklet, and returned the remaining pages of each booklet to Diane Laub. Palmer never saw or read her ticket or ticket booklet, either before or after boarding the ship. Nor did anyone tell Palmer that she needed a ticket to board the cruise ship. After boarding the ship, Palmer accompanied Ruth Laub to her cabin, which the two were to share. That night, Palmer slept on a fold away bed in the cabin, and about 11:00 p.m., while Palmer was sleeping, the wooden slats that supported the bed's mattress gave way. Palmer and the mattress fell to the floor, and Palmer allegedly sustained injuries to her back, neck and foot. Palmer called Diane Laub to report the incident, and ship security came to her room that night to address the situation. The next day, Palmer went to the ship's Medical Center and received treatment for her injuries. For the remainder of the cruise, Palmer visited the medical center on board the ship daily, but she continued to assist Ruth Laub until the cruise ended on January 2, 2007. Once back in New York, Palmer returned to her home. Diane Laub, who had 408 up until that point retained the booklet for Palmer's ticket, discarded it. Palmer has not worked since returning from the cruise. Although Diane Laub discarded the remainder of Palmer's ticket booklet, Norwegian has submitted to the Court Palmer's original boarding pass, which had been removed from her ticket booklet. In addition, Norwegian has submitted a declaration from its Claims Manager, Jane Kilgour, attaching a copy of a blank ticket booklet that Kilgour asserts is identical to the ticket booklet that Norwegian issued to every passenger on the cruise. Although in her memorandum of law the plaintiff argues that this is insufficient proof of the appearance of Palmer's actual ticket booklet, the Court finds that, lacking any evidence to the contrary, the sample booklet submitted by Norwegian is materially identical to the actual booklet issued in Palmer's name. See Ciliberto v. Carnival Cruise Lines, Inc., No. 85-cv-4017, 1986 WL 2560, at 3 (E.D.Pa. Feb. 25, 1986) (finding no reason to doubt a sample ticket submitted by the defendants when the original ticket in the case had been destroyed). Palmer's ticket booklet was a rectangular document with twelve double sided pages, each measuring approximately 8-3/4 by 3-1/2 inches. The first two pages of the booklet include advertising and information concerning international travel. The third page, which is the only single sided page, is the passenger's boarding pass, which is torn out of the booklet upon entry to the vessel. The next page is a materially identical copy of the boarding pass that the passenger retains with the rest of the booklet. On the back of that page of the booklet is the first of four and half double-sided pages of detailed legal provisions concerning the terms of passage, written in small but legible print. The final four pages of the booklet contain departure and itinerary information, as well as additional advertisements. The booklet contains a number of references to the four and a half pages of detailed legal information contained in the ticket booklet. Thus, on the front cover of the booklet a notice states in small, though legible, black lettering: IMPORTANT NOTICE: The guest's attention is specifically directed to the terms and conditions of this contract set forth within. The terms and conditions affect important legal rights and the guest is advised to read them carefully. (Kilgour Decl. at Ex. A.) On the back side of that cover, a message from Norwegian's President and CEO advises customers in large friendly type that "[t]his booklet contains. . . important information to help make Freestyle Cruising the best vacation experience you can imagine. Please take a few moments to go over everything." (Id.) Then, on both the passenger's actual boarding pass and the copy that the passenger retains, the text from the front cover of the booklet is repeated in larger type and in a blue box. Palmer's boarding pass thus appeared as shown below (though slightly larger in the original), with the relevant notice in the bottom right corner: 409 (Id. at Ex. B.) A similar notice appears again at the top of the first of the pages of legal terms. That warning is printed in still larger type, and reads: IMPORTANT NOTICE: Guests are advised to carefully read the terms and conditions of the Guest Ticket Contract set forth below which affect your legal rights and are binding. Acceptance or use of this Contract shall constitute the agreement of Guest to these Terms and Conditions. (Id. at Ex. A (emphasis in original).) Finally, on the last page of the legal terms appears paragraph 10(a), which provides for a shortened, one year limitations period during which a passenger may sue Norwegian for injury sustained while on board the cruise ship. The paragraph states in pertinent part: Suits for Injury or Death: The Guest agrees that . . . no suit shall be maintainable [against Norwegian for injury] unless commenced within one (1) year from the day of the incident giving rise to such injury, illness or death; notwithstanding any provision of law of any state or country to the contrary. (Id.) On March 12, 2007, less than three months after the accident, and well before the shortened limitations period ended, an attorney named Nicholas Panzini submitted a letter to Norwegian, which read in pertinent part: Re: Brinett Palmer Date of Accident: 12/21/06, State-room# 9056 Dear Mr. Vanosmael: Please be advised that I have been retained to represent the above-named in connection with a claim for personal injuries sustained as a result of your negligence.... If I fail to hear from you or your insurance representative within ten (10) days from this date, I will have no recourse but to institute appropriate action on behalf of my client.... NOTE: Please provide my office with a copy of the boarding pass/passenger ticket for this passenger, Brinett Palmer. Very truly yours, NICHOLAS PANZINI (Panzini Decl., July 28, 2010, Ex. 1.) Notwithstanding this letter, Panzini's representation of Palmer is shrouded in mystery. Panzini did not commence a lawsuit against Norwegian on Palmer's behalf, and while he admits that he sent the letter to Norwegian, he states that he "do[es] not have a file on this matter," (Panzini Decl., July 9, 2010 at 1), and that he "do[es] not believe that [he] received an answer [to the letter]" (Panzini Decl., July 410 28, 2010, ¶ 1). For her part, Palmer states that she met with Panzini concerning her injuries, but that they only discussed pursuing a worker's compensation claim. Norwegian does not reveal whether it responded to Panzini's letter. On December 8, 2008, almost two years after the plaintiff's fall, the plaintiff filed the present action through her attorney John H. Mulvehill, Esq., asserting claims against the defendants for failing to satisfy their duty as a common carrier to protect her from injury. On February 18, 2008, the plaintiff amended her complaint to add a claim based on negligence. The defendants now move to dismiss this action as having been filed in violation of the one-year limitations period provided for in the ticket contract. In opposition to this motion, the plaintiff asserts that (1) she is not party to any contract with Norwegian, and (2) if she were a party to the ticket contract with Norwegian, the shortened limitations period would not be enforceable. In addition, the plaintiff moves for summary judgment in her own right, claiming that Norwegian's negligence has been established as a matter of law. She seeks one million dollars in damages, including medical expenses and lost wages. II. DISCUSSION A. Standard on a Motion to Dismiss It is well-settled that summary judgment under Fed.R.Civ.P. 56(c) is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). A fact is "material" within the meaning of Fed.R.Civ.P. 56 when its resolution "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether an issue is genuine, "[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir.1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam), and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989)). Once the moving party has met its burden, "the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). However, the nonmoving party cannot survive summary judgment by casting mere "metaphysical doubt" upon the evidence produced by the moving party. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Summary judgment is appropriate when the moving party can show that "little or no evidence may be found in support of the nonmoving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir.1994) (citations omitted). B. As to the Defendants' Motion to Dismiss The parties here agree that the plaintiff did not file the present suit within one year of her accident, and that, if enforced, the shortened limitations period provided for in Palmer's ticket booklet would bar this suit. Therefore, the issue before the Court is whether the one-year limitations provision should be enforced in this case. 411 The defendants urge that it should; the plaintiff disagrees. 1. As to the Existence of a Contract Between Palmer and Norwegian Palmer's first objection to the enforcement of the shortened limitations period is that she had no binding contract with Norwegian. Palmer neither purchased nor handled nor did she see her own ticket, and she asserts that she did not give authority to anyone else to do so. Thus, Palmer argues, she had no "community of interest" (Pl.'s Opp. at 3) with the purchaser of her ticket, and no "privity of contract" with Norwegian (Id. at 11). As such, Palmer concludes, whether or not the terms found in her ticket booklet would be enforceable, the contract itself does not exist. The Court need not dwell long on this issue. It is well-established that a ticket for passage on a cruise ship constitutes a maritime contract and is governed by United States maritime law. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). Applying this law, numerous cases from both the Second Circuit and various district courts have held that a passenger's ticket may constitute a contract with a carrier even when the passenger neither purchases nor sees that ticket. See Ward v. Cross Sound Ferry, 273 F.3d 520, 524 (2d Cir.2001) (stating that a husband was his wife's agent for purpose of a ticket purchase); Foster v. Cunard White Star, 121 F.2d 12, 13 (2d Cir.1941) (enforcing provisions in a ticket purchased and continuously held by the plaintiff's brother); Kientzler v. Sun Line Greece Special Shipping Co., 779 F.Supp. 342, 346 (S.D.N.Y.1991) (enforcing a ticket contract purchased by a passenger's employer and never presented to the passenger); Ciliberto, 1986 WL 2560 at 1; DeCarlo v. Italian Line, 416 F.Supp. 1136 (S.D.N.Y. 1976). Here, the plaintiff attempts to distinguish her case from these authorities by asserting that she never gave Diane Laub authority to purchase a ticket for her. However, no express authorization for the third-party purchaser is necessary to create a contract between the passenger and the carrier. See, e.g., Kientzler, 779 F.Supp. at 346 (finding an enforceable contract where plaintiff did not know who had arranged for her passage and never saw ticket); Ciliberto, 1986 WL 2560 at 1 (finding an enforceable contract where a traveling companion who had never met the plaintiff purchased plaintiff's ticket, and the plaintiff never saw her ticket). The plaintiff knew or should have known that she needed a ticket to board the cruise ship, and when she embarked pursuant to the ticket Diane Laub purchased for her, that ticket became a valid contract for passage between the plaintiff and Norwegian. Therefore, regardless of whether the limitations period provided for in the plaintiff's ticket booklet is enforceable, the Court is satisfied that the plaintiff had a contract for passage with the defendants. The plaintiff makes an additional objection to the existence of a contract, asserting that the terms of the ticket contract do not apply to her because the contract is between Norwegian and "Guest," and as a health aide to Ruth Laub, she was not a "Guest" on board the ship. This argument is without merit, as the ticket explicitly defines the term "Guest" as "each person whose name appears on the face of this ticket and/or who uses the ticket for passage on the voyage described in the ticket." (Decl. of Jane Kilgour, Ex. A.) Her name appears on the face of her ticket, and the plaintiff was a "Guest" pursuant to the terms of the contract. 412 2. As to the Enforceability of the Terms of the Ticket Contract In this regard, Palmer asserts that, even if there was a contract between her and Norwegian, the shortened limitations period provided for in the ticket booklet is not enforceable. Norwegian disagrees, and contends that the limitations period is enforceable. The Supreme Court has held that a clause in a form passenger ticket contract is enforceable when (1) the terms withstand judicial scrutiny as to reasonableness and fundamental fairness and (2) the clause is "reasonably communicated" to the passenger by the carrier. Shute, 499 U.S. at 590, 111 S.Ct. 1522; Caputo v. Holland America Line, Inc., No. 08-cv-4584 (CPS)(SMG), 2009 WL 2258326, at 3 (E.D.N.Y. July 29, 2009) (citing Shute, 499 U.S. at 590, 111 S.Ct. 1522). The Second Circuit has broken down the second prong of this test into two subdivisions, so that the Court must also examine (a) whether the physical characteristics of the ticket "reasonably communicate to the passenger the existence of important terms and conditions that affect the passenger's legal rights", and (b) whether the "circumstances surrounding the passenger's purchase and subsequent retention of the ticket/contract permitted the passenger to become meaningfully informed of the contractual terms at stake." Ward, 273 F.3d at 523 (internal quotations omitted). a. Prong One: As to the Reasonableness and Fundamental Fairness of the Time Limitation The Court first considers the first prong of the Supreme Court's test for enforceability of a limitations period, which requires that the period be reasonable and fundamentally fair. Shute, 499 U.S. at 595, 111 S.Ct. 1522. Pursuant to 46 U.S.C. § 30508, previously codified as 46 U.S.C. § 183(b)(a), a sea carrier may contractually limit the period in which passengers can file suit for injury, but must allow a claimant at least one year from the date of injury to file a civil action for personal injury or death. See 46 U.S.C. § 30508; see also, Noboa v. MSC Crociere S.p.A., No. 08-cv-2896 (PKL), 2009 WL 1227451, at 3 (S.D.N.Y. May 5, 2009). Accordingly, the Second Circuit has upheld time limitations contained in passenger ticket contracts "provided that the time period is at least one year and the carrier reasonably communicates the existence and importance of the limitation to the passenger." Id. at 3. Because the passenger ticket contract provides for the statutorily required one year limitations period, this Court finds that the terms of the time limitation provision are fundamentally fair and reasonable within the applicable rules. b. Prong Two: As to Reasonable Communication of the Time Limitation Whether a sea carrier has reasonably communicated contractual limitations to a passenger is a question of law for the Court to decide, and is thus appropriate to consider on summary judgment. See Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 9 (2d Cir.1995); Lischinskaya, 2006 WL 4050814, at 3 (citation omitted). In addressing a similar issue in the seminal case Silvestri v. Italia Societa Per Azioni Di Navigazione, 388 F.2d 11, 17 (2d Cir.1968), Judge Friendly held that a contract provision is enforceable when "the steamship line had done all it reasonably could to warn the passenger that the terms and conditions were important matters of contract affecting his legal rights." Then, in Ward, 273 F.3d at 524, the Second Circuit explicitly "refin[ed]" Judge Friendly's standard to employ a two part test focusing on (a) the physical characteristics of the ticket, and (b) the circumstances surrounding 413 the plaintiff's purchase and retention of the ticket. Sub-prong a: The physical characteristics of the ticket Here, the plaintiff does not deny that the physical appearance of her ticket booklet reasonably communicated to her the existence of the limitations period. Thus, the Court addresses this issue only in brief. District courts in this circuit have found the physical characteristics of a ticket to reasonably communicate a contractual limitation where the ticket contains clear and conspicuous notices that passengers were bound by important terms and conditions contained in the ticket booklet. Noboa v. MSC Crociere S.p.A., No. 08-cv-2896 (PKL), 2009 WL 1227451, at 4 (S.D.N.Y. May 5, 2009). Here, Norwegian's ticket booklet contained several such notices to passengers. Moreover, the Second Circuit and numerous district courts have found similar or identical warnings to be sufficient. Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 9 (2d Cir.1995) (finding sufficient notice even where the clause in question was in fine print); Vega v. Norwegian Cruise Lines, No. 06-cv-3887 (NGG)(SMG), 2007 WL 1791624, at 1, 3 (E.D.N.Y. June 20, 2007) (finding that warnings that were identically worded and similar in appearance to those in the present case were sufficient); Valenti v. Norwegian Cruise Line, 04-cv-8895 (RWS), 2005 WL 927167, at 1, 4 (S.D.N.Y. April 21, 2005) (same); Lurie, 305 F.Supp.2d at 360 ("[T]he prominent warnings on the ... passenger ticket contract drawing the passenger's attention to the importance of the contract terms ... clearly meet the first part of [the two-part] test."); Lischinskaya v. Carnival Corp., No. 12356/05, 14 Misc.3d 1230(A), 2006 WL 4050814, at 4 (N.Y.Sup.Ct. Oct. 4, 2006) (finding that several bold, capitalized warnings were sufficient to direct passengers' attention to the various clauses of the contract). In view of these clear precedents, this Court finds that the physical characteristics of Palmer's ticket booklet reasonably communicated the existence of the shortened limitations period. Sub-prong b: The circumstances surrounding the purchase and retention of the ticket Having found the physical characteristics of the plaintiff's ticket were sufficient to reasonably communicate the relevant contractual terms, the only remaining question for the Court to resolve is whether the circumstances surrounding the purchase and retention of the plaintiff's ticket gave her sufficient opportunity to become aware of the ticket's provisions. Both the standard for this inquiry set forth in Silvestri and the Second Circuit's refinement of this standard in Ward generally focus on the acts of the sea carrier in making the passenger aware of the relevant contractual provisions. Silvestri, 388 F.2d at 17 (focusing on whether "the steamship line had done all it reasonably could" to inform the passenger of the relevant provisions); Ward, 273 F.3d at 523 (focusing on whether circumstances "permitted" the passenger to learn the relevant contract terms). Therefore, in applying this test, the Second Circuit does not require that a passenger personally possess, read, see, or purchase a ship ticket for its terms to be enforceable, as long as the ticket was generally available to the passenger for a reasonable period of time both before and after embarkation. See Ward, 273 F.3d at 524 (holding that plaintiffs 414 husband was her agent for ticket purchase, but that the ticket's provisions were not enforceable because husband had purchased the ticket minutes before boarding, and surrendered it upon entering the ship); Foster, 121 F.2d at 13 (enforcing a ticket contract purchased and continuously held by the plaintiffs brother); Kientzler, 779 F.Supp. at 346 (enforcing a ticket contract purchased by a passenger's employer and never presented to the passenger); Ciliberto, No. 85-cv-4017, 1986 WL 2560, at 1; DeCarlo v. Italian Line, 416 F.Supp. at 1136. Here, unlike in Ward, there is no issue as to whether Diane Laub held the plaintiffs ticket for a sufficient period of time to satisfy the notice requirements. Laub received Palmer's ticket three weeks before the cruise, and was allowed to keep Palmer's ticket booklet indefinitely. See, Lurie v. Norwegian Cruise Lines, Ltd., 305 F.Supp.2d 352, 360 (S.D.N.Y.2004) (describing two weeks as reasonable and "well in advance" of the trip). Rather, the issue here is whether, based on Diane Laub's relationship with Palmer, Diane Laub's possession of Palmer's ticket was sufficient to "permit[ ] [Palmer] to become meaningfully informed of the contractual terms at stake." Ward, 273 F.3d at 524. As noted above, the Second Circuit has held that the provisions of a ticket are enforceable against a passenger whose family member purchases and holds the plaintiffs ticket. However, the Second Circuit has not directly addressed whether the same result ensues when a less intimate companion of the passenger purchases and possesses the relevant ticket. Nevertheless, several district courts have addressed this situation, and in each case those courts found that the relevant ticket provisions were enforceable. Thus, in Ciliberto, 1986 WL 2560 at 1, the plaintiff was traveling with her sister, her cousin, and her cousin's co-worker, a woman named Valerie Brown. Although a stranger to the plaintiff, Brown made travel arrangements for everyone in the group. Then, Brown or another member of the groupnot the plaintiffheld the group's tickets before and after embarkation. The court nevertheless enforced a shortened limitations period provided for in the plaintiffs ticket, stating that "[i]t is painfully obvious that the plaintiff did not receive her ticket because she chose to have a `traveling companion' make the arrangements and obtain her ticket for her ... It is immaterial that plaintiff did not personally know Ms. Brown prior to embarking on the cruise for she could have easily inquired as to who was making the arrangements and who had the tickets." Id. at 3; see also DeCarlo, 416 F.Supp. at 1137 (S.D.N.Y.1976) (enforcing ticket contract against a passenger whose "personal friend" held her ticket at all times). Even more closely on point is Kientzler, 779 F.Supp. at 343, a case in which the plaintiffs employer arranged for her to travel aboard a cruise ship with certain of her co-workers to promote the company's products. Id. The plaintiff in Kientzler never saw or handled her ticket, but was nevertheless held bound by its terms. Id. at 346. The court stated: "While Plaintiff claims no knowledge of who had her ticket contract, the cruise was arranged as part of her employment, and clearly someone at [her employer] handled the arrangements for her. Plaintiffs limited knowledge of the circumstances surrounding her trip indicate[s] that she left the details to someone else at [her employer]. Thus, even if another person acting as Plaintiffs agent handled her ticket exclusively, Plaintiff is still charged with knowledge of its contents." Id. 415 The plaintiff seeks to distinguish the first of these cases, Ciliberto, by claiming that Diane Laub was not the type of friendly "traveling companion" who could impute knowledge of travel arrangements to her. The plaintiff argues that the term "traveling companion" as used in that case implies, if not friendship, then at least an agreement that Diane Laub would purchase and hold her ticket. The plaintiff insists that she had no such agreement with anyone. The Court does not find this to be a valid distinction. The plaintiff in Ciliberto, like the plaintiff in this case, knew that she was traveling by cruise ship, but never inquired as to who was booking her ticket, and never expressly agreed that someone else would hold her ticket. To be sure, the plaintiff in Ciliberto was traveling for pleasure and the plaintiff in this case was traveling for work. However, whether she was working or not, a reasonable person would know that passage on a cruise line requires a ticket. A single inquiry to her employer or the Laubs would have revealed who had made arrangements for her passage. However, as in Ciliberto, the plaintiff here chose not to make this inquiry. Similarly, the plaintiff attempts to distinguish Kientzler by pointing out that, unlike that case, her employer here Home Insteaddid not make the relevant travel arrangements. However, the fact that Palmer's ticket was purchased by Diane Laub rather than Home Instead does not differentiate this case from the thrust of the Kientzler court's holding. The Kientzler court essentially held that a passenger who leaves work travel arrangements to someone else is charged with knowledge of the relevant contract provisions, as long as the plaintiff could have readily determined who had made the arrangements and what the relevant contract provisions were. In this case, Palmer could have easily inquired as to who had made her travel arrangements and asked to see her ticket booklet. She did not do so. Under these circumstances, it is difficult to see how Norwegian failed to do its part to provide the plaintiff with an opportunity to learn the rules that applied to her passage. The Court notes that, in her memorandum of law, the plaintiff additionally contends that she was "not permitted" to see her tickets at any time. (Pl.'s Opp. at 3, 16.) However, the plaintiff offers no evidencenot even her own testimonyin support of this assertion. In addition, Diane Laub testified that the plaintiff never asked to see her ticket booklet. (Diane Laub Decl., June 18, 2009, ¶ 9.) Thus, the Court does not consider this objection to be relevant to the present inquiry. The plaintiff also complains that, knowing she was injured on board, Norwegian should have contacted her after the cruise to inform her of the limitations period that applied to a law suit against it. However, the plaintiff offers no case law that suggests that a cruise line has any obligation to do this. Therefore, this argument is similarly of no avail. Despite this compelling authority, the Court is reticent to enforce against a consumer an un-bargained for contract term that was printed in small type, that was written in technical legal language, and that will prematurely end her lawsuit. As the First Circuit wryly noted, a passenger is unlikely to "read all of the fine print on the ticket ... as pleasure reading in the berth the first night at sea." Lousararian v. Royal Caribbean Corp., 951 F.2d 7, 12 (1st Cir.1991). *416 Nevertheless, while not part of the legal scenario, the Court's apprehension in this regard is somewhat assuaged by the fact that the plaintiff here consulted a lawyer concerning a law suit against Norwegian well before the one-year limitations period expired. While the plaintiff denies that she spoke to an attorney about suing Norwegian during the first year after her accident, the letter that attorney Nicholas Panzini sent to Norwegian ten weeks after the incident states plainly that he represented Palmer in connection with a potential suit against Norwegian for the injury she sustained on December 21, 2006 in Stateroom # 9056. The letter further states that if there is no response, an "appropriate action" will be instituted. The Court can draw no other reasonable conclusion from this unchallenged letter except that Palmer discussed with Panzini a lawsuit against Norwegian. It is not clear whether Norwegian responded to Panzini's letter, or whether Panzini took any further action on Palmer's behalf. Nevertheless, the fact that Palmer timely contacted a lawyerwho, while he never saw Palmer's ticket, could have determined whether any time limitations applied to her potential lawsuitenhances the presumption that the terms of the plaintiff's contract of adhesion will be enforced. See Vavoules v. Kloster Cruise Ltd., 822 F.Supp. 979, 981 (E.D.N.Y.1993) (Weinstein, J.) (holding that, where a cruise ship passenger consulted an attorney within the limitations period provided for in cruise ship ticket, the presumption that the limitations period would be enforced was heightened, and citing Angello v. Queen Elizabeth 2, 1987 A.M.C. 1150, 1154 n. 5, 1986 WL 15539 (D.N.J.1986); DeNicola v. Cunard Line, Ltd., 642 F.2d 5, 11 (1st Cir.1981)). Accordingly, in light of the clear Second Circuit authority on this issue, and finding the relevant district court authority persuasive and on point, the Court grants the defendants' motion for summary judgment dismissing he complaint based on the shortened limitations period provided for in the plaintiff's ticket booklet. All other pending motions in this case are therefore deemed moot. III. CONCLUSION For the foregoing reasons, it is hereby ORDERED that the defendants' motion for summary judgment is granted and all of the plaintiff's claims and the complaint are dismissed, and it is further ORDERED that all other pending motions are deemed moot; and it is further ORDERED that the Clerk of the Court is directed to close this case. SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501198/	280 F.Supp.2d 279 (2003) In re SEPTEMBER 11 LITIGATION No. 21 MC 97(AKH). United States District Court, S.D. New York. September 9, 2003. 280 281 282 283 284 285 Paul J. Hanly, Jr., Jayne Conroy, Hanly & Conroy, LLP, New York City, Jody Westbrook Flowers, Ronald L. Motley, Motley Rice, LLC, Mount Pleasant, SC, for Deena Burnett, April D. Gallop, Lorne Lyles, Margaret Ann Cashman, Adelaide Maureen Driscoll, Catherine Powell. Brian Vincent Otero, Michelle R. Parker, Hunton & Williams, New York City, for Burns Intern. Services Corp., Burns Intern. Security Services Corp. Marc S. Moller, Kriendler & Kreindler, New York City, Timothy W. Triplett, Kristopher E. Kuehn, Michael Kuckelman, Michael E. Callahan, Warden, Triplett, Grier, Overland Park, KS, for Certain Underwriters at Lloyd's of London, Comprising Syndicates No 33, 1003, 2003, 1208, 1243, 0376, Great lakes Reinsurance, PLC, Subrogees of Silverstein Properties, Inc. 286 Marc S. Moller, Kreindler & Kreindler, New York City, for Mayore Estates, LLC, 80 Lafayette Associates, LLC, Allainz Ins. Co., Fed. Ins. Co., Essex Ins. Co., Great Lakes Reinsurance UK PLC, Sumitomo Marine & Fire Ins. Co., Citicorp Ins. USA, Inc., All Providing Citigroup, Inc., Property for 7 World Trade Center, Subrogeer of Citigroup, Inc. Salomon Smith Barney Holdings, Inc., Aegis Ins. Services, Inc., Liberty Intern., Underwriters, Inc., Nat. Union Ins. Co. of Pittsburgh, Nuclear Elec. Ins. Ltd., Underwriters at Lloyd's, A/S/O/ Consolidated Edison Co. of New York, Inc., Consolidated Edison Co. of NY Inc., Karoon Capital Management, Inc., Wall Street Realty Capital, Inc., Barcley Dwyer Co., Inc., Tower Computer Service, Inc., US Fire Ins. Co. Desmond T. Barry, Jr., Condon & Forsyth, LLP, New York City, for AMR Corp., American Airlines, Inc., Ual Corp., United Airlines, Inc., Colgan Air, Inc. Richard P. Campbell, Kathleen M. Guilfoyle, Campbell, Campbell, Edwards & Conroy, Boston, MA, for US Airways Group, Inc., US Airways, Inc. Bruce R. Wildermuth, Edward J. McMurrer, Ralph V. Pagano, Laurie Gallun, Max Tribble, Jonathan J. Ross, H. Lee Godfrey, Mendes & Mount, LLP, New York City, for Huntleigh USA Corp. James P. Connors, Jones, Hirsch, Connors & Bull, PC, New York City, for Globe Aviation Services Corp. John L. Altieri, Jr., Paul Robert Koepff, Marissa Bea Mole, Willard Mark Wood, O'Melveny & Myers, LLP, New York City, Paul F. Ware, Jr., F. Dennis Saylor, IV, Christopher D. Moore, Goodwin Proctor LLP, Boston, MA, for Mass Port Authority d/b/a Logan Intern. Airport. Karen M. Berberich, Mark A. Dombroff, Dombroff & Gilmore, PC, New York City, for City of Portland. Michael J. Crowley, James A. Gallagher, Jr., Gallagher, Gosseen, Faller, Kaplan & Crowley, Garden City, NY, Richard A. Williamson, Flemming, Zulack & Willaimson, LLP, New York City, for Port Authority of New York & New Jersey. Charles E. Koob, Joseph F. Wayland, Simpson, Thacher & Bartlett, LLP, New York City, for Argenbright Security, Inc. George S. Kolbe, Brown Gavalas & Fromm, LLP, New York City, for America West Airlines, Inc. Percy M. Samuel, Percy M. Samuel, PC, Elmont, NY, for Wade B. Green, Estate of Roxanne Elizabeth Green, Danielle Tiffany Green. Robert S. Murphy, Mineola, NY, for Tem Enterprises d/b/a Casino Express. OPINION AND ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS HELLERSTEIN, District Judge. The injured, and the representatives of the thousands who died from the terrorist-related aircraft crashes of September 11, 2001, are entitled to seek compensation. By act of Congress, they may seek compensation by filing claims with a Special Master established pursuant to the Air Transportation Safety and System Stabilization Act of 2001, Pub.L. No. 107-42, 115 Stat. 230 (2001) (codified at 49 U.S.C. § 40101) ("the Act"). Or they may seek compensation in the traditional manner, by alleging and proving their claims in lawsuits, with the aggregate of their damages capped at the limits of defendants' liability insurance. If they choose the former alternative, their claims will be paid through a Victim Compensation Fund from money appropriated by Congress, within a relatively short period after filing. Claimants will not have to prove fault or show a duty 287 to pay on the part of any defendant. The amount of their compensation, however, may be less than their possible recovery from lawsuits, for non-economic damages are limited to $250,000, economic damages are subject to formulas that are likely to be less generous than those often allowable in lawsuits, and punitive damages are unavailable. I have discussed, and upheld, certain portions of the Act and regulations related to the Fund in Colaio v. Feinberg, 262 F.Supp.2d 273 (S.D.N.Y.2003), appeal filed, June 6, 2003. Approximately seventy of the injured and representatives of those who died, and ten entities which sustained property damage, have chosen to bring lawsuits against defendants whom they claim are legally responsible to compensate them: the airlines, the airport security companies, the airport operators, the airplane manufacturer, and the operators and owners of the World Trade Center.[1] The motions before me challenge the legal sufficiency of these lawsuits, and ask me to dismiss the complaints because no duty to the plaintiffs existed and because the defendants could not reasonably have anticipated that terrorists would hijack several jumbo jet airplanes and crash them, killing passengers, crew, thousands on the ground, and themselves. I discuss in this opinion the legal duties owed by the air carriers, United and American Airlines, and other airlines and airport security companies affiliated with the air carriers to the plaintiffs who were killed and damaged on the ground in and around the Twin Towers and the Pentagon; by the Port Authority of New York and New Jersey ("Port Authority") and World Trade Center Properties LLC ("WTC Properties") to those killed and injured in and around the Twin Towers; and by the Boeing Company, the manufacturer of the "757" jets that were flown into the Pentagon and the field near Shanksville, Pennsylvania, to those killed and injured in the two crashes. I hold in this opinion that each of these defendants owed duties to the plaintiffs who sued them, and I reject as well defendants' alternative arguments for dismissal. I. Background A. Exclusive Jurisdiction and the Governing Law The Air Transportation Safety and System Stabilization Act of 2001, Pub.L. No. 107-42, 115 Stat. 230 (2001) (codified at 49 U.S.C. § 40101) ("the Act"), passed in the weeks following the September 11 attacks, provides that those who bring suit "for damages arising out of the hijacking and subsequent crashes" must bring their suits in the United States District Court for the Southern District of New York. The Southern District has "original and exclusive jurisdiction" "over all actions brought for any claim (including any claim for loss of property, personal injury, or death) resulting from or relating to the terrorist-related aircraft crashes of September 11, 2001," with the exception of claims to recover collateral source obligations and claims against terrorists and their aiders, abettors and conspirators, Act § 408(c). The Act provides that the governing law shall be "derived from the law, including choice of law principles, of the State in which the crash occurred unless such law is inconsistent with or preempted by Federal law." Act § 408(b)(2). Thus, all cases, whether arising out of the crashes in New York, Virginia, or Pennsylvania, must be brought in the Southern District of New York, to be decided in accordance 288 with the law of the state where the crash occurred. B. The Complaints Plaintiffs' individual pleadings have been consolidated into five master complaints, one for the victims of each crash and one for the property damage plaintiffs. Plaintiffs allege that the airlines, airport security companies, and airport operators negligently failed to fulfill their security responsibilities, and in consequence, the terrorists were able to hijack the airplanes and crash them into the World Trade Center, the Pentagon, and the field in Shanksville, Pennsylvania, killing passengers, crew, and thousands in the World Trade Center and the Pentagon and causing extensive property damage. The complaints allege that the owners and operators of the World Trade Center, World Trade Center Properties LLC and the Port Authority of New York and New Jersey, negligently designed, constructed, maintained, and operated the buildings, failing to provide adequate and effective evacuation routes and plans. Plaintiffs who died in the crashes of American flight 77 and United flight 93 also sue Boeing, the manufacturer of the two "757" airplanes, for strict tort liability, negligent product design, and breach of warranty. C. Motions to Dismiss I heard oral argument on May 1 and 2, 2003 on six motions by the several categories of defendants. I previously have decided three of the motions, by most of the airport operators,[2] by three airlines that did not carry any of the victims or alleged hijackers,[3] and by Fiduciary Trust Company International and Franklin Templeton Investments, an employer of one of the victims.[4] The three motions which remain, and which I now decide are: by the airlines and airport security companies (the "Aviation Defendants");[5] by the Port Authority and World Trade Center Properties LLC (together, the "WTC Defendants"); and by Boeing. The Aviation Defendants concede that they owed a duty to the crew and passengers 289 on the planes, but contend that they did not owe any duty to "ground victims." The Port Authority and WTC Properties argue that they did not owe a duty to protect occupants in the towers against injury from hijacked airplanes and, even if they did, the terrorists' actions broke the chain of proximate causation, excusing any negligence by the WTC Defendants. And Boeing argues that it did not owe a duty to ground victims or passengers, and that any negligence on its part was not the proximate cause for the harms suffered by the plaintiffs. II. Discussion Defendants' motions were made pursuant to Fed.R.Civ.P. 12(b)(6).[6] A Rule 12(b)(6) motion requires the court to determine if plaintiff has stated a legally sufficient claim. A motion to dismiss under Rule 12(b)(6) may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991). The court's function is "not to assay the weight of the evidence which might be offered in support" of the complaint, but "merely to assess the legal feasibility" of the complaint. Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980). In evaluating whether plaintiff could ultimately prevail, the court must take the facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Jackson Nat'l Life Ins. Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir.1994). A. Aviation Defendants' Motion to Dismiss The Aviation Defendants argue that they did not owe a duty to the ground victims; that the injuries suffered by the plaintiffs were beyond the scope of any foreseeable duty that may have been owed; and that the federal laws that regulate aviation preempt any state law to the contrary. i. Choice of Law Section 408(b)(2) of the Act provides that the substantive law "shall be derived from the law, including choice of law principles, of the State in which the crash occurred unless such law is inconsistent with or preempted by Federal law." Ground victims of the planes that crashed into the World Trade Center and the Pentagon have filed suit against the Aviation Defendants, and thus the choice of law principles of New York and Virginia apply. New York typically analyzes choice-of-law issues in tort cases according to two categories of rules: conduct-regulating and loss-allocating. The issue of duty whether duty exists and its scope is conduct-regulating. New York choice of law dictates that the state in which the tort took place has the strongest interest in applying its conduct-regulating rules. Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679, 684-85 (1985). Thus, the substantive law of New York governs the issue of duty in relation to the crashes at the World Trade Center. 290 Virginia's choice of law rules apply to the ground damage claims arising from the crash of American flight 77 into the Pentagon. Under Virginia law, the substantive law of the place of the tort controls. McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662, 664 (1979). The parties agree that the law of Virginia does not differ materially from New York law with respect to the issue of duty and rely on New York law for their arguments. ii. Existence of Duty to Ground Victims "The threshold question in any negligence action is: does the defendant owe a legally recognized duty of care to plaintiff?" Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055, 1060 (2001). In New York, the existence of a duty is a "legal, policy-laden declaration reserved for judges." Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 611 N.Y.S.2d 817, 634 N.E.2d 189, 192 (1994). The injured party must show that a defendant owed not merely a general duty to society but a specific duty to the particular claimant, for "without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm." Lauer v. City of New York, 95 N.Y.2d 95, 711 N.Y.S.2d 112, 733 N.E.2d 184, 187 (2000). Courts traditionally "fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability." Palka, 611 N.Y.S.2d 817, 634 N.E.2d at 193. New York courts have been cautious in extending liability to defendants for their failure to control the conduct of others, "even where as a practical matter [the] defendant can exercise such control." D'Amico v. Christie, 71 N.Y.2d 76, 524 N.Y.S.2d 1, 518 N.E.2d 896, 901 (1987). "This judicial resistance to the expansion of duty grows out of practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another." Hamilton, 727 N.Y.S.2d 7, 750 N.E.2d at 1061. However, courts have imposed a duty when the defendant has control over the third party tortfeasor's actions, or the relationship between the defendant and plaintiff requires the defendant to protect the plaintiff from the conduct of others. As the New York Court of Appeals ruled, "The key in each [situation] is that the defendant's relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm." Id. One additional consideration, the Court of Appeals added, is that "the specter of limitless liability is not present because the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship." Id. Plaintiffs allege that the Aviation Defendants negligently failed to carry out their duty to secure passenger aircraft against potential terrorists and weapons smuggled aboard, enabling the terrorists to hijack and crash four airplanes. Plaintiffs argue that the Aviation Defendants employed their security measures specifically to guard against hijackings, and knew or should have known that the hijacking of a jumbo jet would create substantial risks of damage to persons and property, not only to passengers and crew, but also to people and property on the ground. Plaintiffs assert also that terrorism was a substantial international concern, and that suicidal acts by terrorists seeking to cause death, injury and havoc to as many innocent 291 people as possible had become a frequently used strategy. I must test this dispute over duty even before a record has been established. In New York, duty is a legal question, for the judge to decide. I must assume, for the purpose of the motion, that all well-pleaded facts about the defendants' negligence are true and will in time be proved, and that defendants' negligence proximately caused the injuries and deaths upon which plaintiffs filed their lawsuits. Airplane crashes in residential areas are not unknown. In January 1952, an American Airlines Convair crashed into a residential area of Elizabeth, New Jersey on its approach to Newark airport, killing passengers and crew, as well as seven residents of houses it struck. Elizabeth Recalls First of 3 Crashes, N.Y. Times, Dec. 17, 1952, at 27. A month later, another plane out of Newark, a National Airlines DC-6, struck an apartment house in New Jersey, killing 29 passengers and four tenants of the apartment house. Id. Military airplanes have had to make emergency landings on highways, and have collided with automobiles. See Rehm v. United States, 196 F.Supp. 428 (E.D.N.Y.1961). On July 9, 1982, a Pan American World Airways jet crashed shortly after takeoff, killing all on board and eight individuals on the ground. The airline and the government acknowledged liability for the crash, which was caused by windy conditions. Pan Am and U.S. Accept Responsibility for Crash, N.Y. Times, May 13, 1983, at 6. In January 1990, a Columbian passenger airplane exhausted its fuel supply while circling La Guardia Airport waiting for clearance to land, and crashed into a residential backyard in Long Island's populated North shore. See In re Air Crash Disaster at Cove Neck, 885 F.Supp. 434 (E.D.N.Y.1995). On November 12, 2001, two months after the aircraft crashes of September 11, 2001, a jumbo-jet passenger airplane lost its stability in take-off from JFK airport and crashed into a populated area of the Rockaways, causing the deaths of over two hundred passengers and crew members and five people on the ground. Dan Barry and Elissa Gootman, 5 Neighbors Gone, N.Y. Times, Nov. 14, 2001, at D11. Such incidents are inevitable in the context of the sheer number of miles flown daily in the United States. None matches the quantity or quality of tragedy arising from the terrorist-related aircraft crashes of September 11. Airlines typically recognize responsibility to victims on the ground. See, e.g., Rehm, 196 F.Supp. at 428; Cove Neck, 885 F.Supp. at 439-40. As counsel for the Aviation Defendants stated in argument, Assuming negligence and assuming there is damage to houses on the ground that is the type of traditional ground damage negligent maintenance cases in which the courts have imposed duty.... [W]e would concede in those circumstances assuming the facts of liability are proven there is a legal duty. (Tr. of May 1, 2003 at 8.) However, counsel did not concede duty in relation to those killed and injured on the ground in the September 11, 2001 aircraft crashes. The "potential for a limitless liability to an indeterminate class of plaintiffs," he argued, made the instant cases distinguishable. Id. The distinction, in his opinion, is "no[t][a] difference in kind," but "the law of extraordinary consequences [which] can sometimes draw a distinction based on degree." Id. at 9-10. He explained: We are in an area of policy and there are lines to be drawn that may occasionally seem arbitrary. But what really distinguishes our case from [the hypothetical example of an airplane crash into Shea Stadium while taking off from, or landing at, La Guardia airport] is the 292 intentional intervening acts of the third party terrorists.[7] Id. As defense counsel commented, "we are in an area of policy," where "the existence and scope of a tortfeasor's duty is ... a legal question for the courts," 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Center, Inc., 96 N.Y.2d 280, 727 N.Y.S.2d 49, 750 N.E.2d 1097, 1101 (2001) (Kaye, Ch. J.). It is the court's job to "fix the duty point by balancing factors," including the following: the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability. Id. (citation omitted). 532 Madison Avenue involved collapses of a high-rise office building and a 48-story construction elevator tower, both in midtown Manhattan and both causing busy areas of the city to be closed for a two-week period. The lawsuits sought recovery of financial losses resulting from the closures; plaintiffs had not suffered personal injury or property damage. Applying the considerations set out above, the Court of Appeals limited the scope of defendants' duty "to those who have, as a result of these events, suffered personal injury or property damage," but held that those who suffered merely financial losses could not recover. Id. at 1103. The Court of Appeals acknowledged that "[p]olicy-driven line-drawing is to an extent arbitrary because, wherever the line is drawn, invariably it cuts off liability to persons who foreseeably might be plaintiffs." Id. If those who suffered financial losses were to be allowed to sue, the Court of Appeals held, "an indeterminate group in the affected areas" would be able to recover. Id. If, however, the field of plaintiffs was to be limited to those who "suffered personal injury or property damage" as a result of defendants' negligence, the limitation would "afford[] a principled basis for reasonably apportioning liability," and be "historically" consistent with New York precedents. Id. The cases before me involve claims to recover for personal injuries, death, or property damage. They fall within the line drawn by the New York Court of Appeals in 532 Madison Avenue. There may be more plaintiffs within the ambit of duty at issue here than those contemplated under the rule set forth in 532 Madison Avenue, but that is not a principled basis of distinction. I therefore hold that the Aviation Defendants owed a duty of care, not only to their passengers to whom they concede they owed this duty, but also to victims on the ground. In terms of the 532 Madison Avenue analysis, plaintiffs are favored by the first of the factors set out above, for plaintiffs and society generally could have reasonably expected that the screening performed at airports by the Aviation Defendants would be for the protection of people on the ground as well as for those in airplanes. Ours is a complicated and specialized society. We depend on others charged with special duties to protect the quality of the water we drink and the air we breathe, to bring power to our neighborhoods, and to enable us to travel with a sense of security over bridges, through tunnels and via subways. We live in the vicinity of busy airports, and we work in 293 tall office towers, depending on others to protect us from the willful desire of terrorists to do us harm. Some of those on whom we depend for protection are the police, fire and intelligence departments of local, state and national governments. Others are private companies, like the Aviation Defendants. They perform their screening duties, not only for those boarding airplanes, but also for society generally. It is both their expectation, and ours, that the duty of screening was performed for the benefit of passengers and those on the ground, including those present in the Twin Towers on the morning of September 11, 2001. Nothing that I hold or say should be considered as any form of ruling on the reasonableness of the Aviation Defendants' conduct. Nor should it be construed as a finding on whether their conduct was the proximate cause of plaintiffs' damages, or whether that of the terrorists' constituted an intervening act breaking the chain of causation. I simply hold that the Aviation Defendants, and plaintiffs and society generally, could reasonably have expected that the screening methods at Logan, Newark, and Dulles airports were for the protection of people on the ground as well as for those on board the airplanes that the terrorists hijacked. The second factor to consider is "the proliferation of claims." 532 Madison Ave., 727 N.Y.S.2d 49, 750 N.E.2d at 1101. Proliferation, however, should not be mistaken for size of number. As long as the claimants are known and circumscribed by those "who have, as a result of these events, suffered personal injury or property damage," there is not an impermissible proliferation. See id. at 1103. See also In re Air Crash Disaster at Cove Neck, 885 F.Supp. 434, 439-440 (E.D.N.Y.1995) (allowing claims of emotional injury only for those who also suffered physical injury). Plaintiffs, the ground victims in the cases before me, complain of directly-caused physical injuries to their persons or property. Their number may be large,[8] tragically large, and the potential liability may be substantial if negligence and cause is proven, but the class is not indefinite and claims at this point cannot proliferate. Furthermore, the defendants will be liable only if plaintiffs sustain their burden of proof, with the aggregate liability of the air carriers, aircraft manufacturers, airport sponsors, and persons with a property interest in the World Trade Center capped by federal statute to the limits of their liability insurance coverage. Act § 408(a)(1). Thus, "the likelihood of unlimited or insurer-like liability," the third factor of 532 Madison Avenue, does not weigh heavily against a finding of duty. The fourth factor of 532 Madison Avenue is "disproportionate risk and reparation allocation." This inquiry probes who was best able to protect against the risks at issue and weighs the costs and efficacy of imposing such a duty. The airlines, and the airport security companies, could best screen those boarding, and bringing objects onto, airplanes. The same activities reasonably necessary to safeguard passengers and crew are those that would protect the public as well. Hijacking presents a substantial elevation of risks, not only to those aboard the hijacked airplane, but also to those on the ground. This case is thus distinguishable from other cases where courts did not find a duty to protect against third-party conduct. In Waters v. 294 New York City Housing Authority, the court held that the owner of a housing project did not owe a duty to a passerby when she was dragged off the street into the building and assaulted. 69 N.Y.2d 225, 513 N.Y.S.2d 356, 505 N.E.2d 922 (1987). Imposing such a duty on landowners would do little to minimize crime, and the social benefits to be gained did not warrant the extension of the landowners duty. See id. at 924. Similarly, in Hamilton, 727 N.Y.S.2d 7, 750 N.E.2d at 1062, the court held that gun manufacturers did not owe a duty to victims of gun violence for negligent marketing and distribution of firearms. The connection between the manufacturers, criminal wrongdoers, and victims was too remote, running through many links in a long chain, from manufacturer, distributor or wholesaler, retailer, legal purchasers, unlawful possessors, and finally to the victims of gun violence. The court stated: To impose a general duty of care upon the makers of firearms under these circumstances because of their purported ability to control marketing and distribution of their products would conflict with the principle that any judicial recognition of a duty of care must be based upon an assessment of its efficacy in promoting a social benefit as against its costs and burdens. Here, imposing such a general duty of care would create not only an indeterminate class of plaintiffs but also an indeterminate class of defendants whose liability might have little relationship to the benefits of controlling illegal guns. Id. at 1063. Unlike Hamilton and Waters, the Aviation Defendants could best control the boarding of airplanes, and were in the best position to provide reasonable protection against hijackings and the dangers they presented, not only to the crew and passengers, but also to ground victims. Imposing a duty on the Aviation Defendants best allocates the risks to ground victims posed by inadequate screening, given the Aviations Defendants' existing and admitted duty to screen passengers and items carried aboard. Lastly, recognition of a duty on the part of the Aviation Defendants would not substantially expand or create "new channels of liability," the fifth and last factor of 532 Madison Avenue. New York courts have found on other occasions that aircraft owners and operators owe a duty to those on the ground who may be harmed or sustain property damage resulting from improper or negligent operation of an aircraft. See, e.g., Hassanein v. Avianca Airlines, 872 F.Supp. 1183, 1188-90 (E.D.N.Y.1995) (denying defendant's motion for summary judgment where plane crash could have caused a handrail in plaintiff's house to loosen, causing her fall down the stairs); Rehm v. United States, 196 F.Supp. 428, 430-31 (E.D.N.Y.1961) (awarding damages where car occupants were hit by a plane which crashed after engine failure); Schneider v. United States, 188 F.Supp. 911, 915 (E.D.N.Y.1960) (same). Cf. In re Air Crash Disaster at Cove Neck, 885 F.Supp. 434, 439-440 (E.D.N.Y.1995) (ground victims of plane crash could only sustain claim if they suffered personal injury or property damage). Although these cases involved injuries resulting from negligent operation or maintenance of airplanes, rather than negligence in regulating the boarding of airplanes, there is no principled distinction between the modes of negligence. The same general principle governs, that air carriers owe a duty to people on the ground as well as to passengers and crew. The Second Circuit has recognized that airlines have a duty not only to passengers on the flights they operate, but also to passengers on connecting flights, and thus may be liable when they allow terrorists 295 to board planes. In Stanford v. Kuwait Airways Corp., 89 F.3d 117 (2d Cir.1996), the airline failed adequately to screen passengers against terrorists. The hijacking occurred, not on the airplane initially boarded, but on the connecting flight. The Second Circuit, relying on general tort principles including New York law, upheld the air carrier's duty of care as to the passengers on the connecting flight. Id. at 125. Clearly, the duty of care extends to cover those embraced by the risk of the terrorists' conduct. Accordingly, I hold on the pleadings that the Aviation Defendants owed a duty of care to the ground victim plaintiffs. iii. Scope of Duty to Ground Victims: the Issue of Foreseeability Defendants argue that the ground victims lost their lives and suffered injuries from an event that was not reasonably foreseeable, for terrorists had not previously used a hijacked airplane as a suicidal weapon to destroy buildings and murder thousands. Defendants contend that because the events of September 11 were not within the reasonably foreseeable risks, any duty of care that they would owe to ground victims generally should not extend to the victims of September 11. The scope of duty to a particular class of plaintiffs depends on the relationship to such plaintiffs, whether plaintiffs were within a zone of foreseeable harm, and whether the harm was within the class of reasonably foreseeable hazards that the duty exists to prevent. Di Ponzio v. Riordan, 89 N.Y.2d 578, 657 N.Y.S.2d 377, 679 N.E.2d 616, 618 (1997) (citations omitted). See also Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 100-01 (1928). While foreseeability is generally for the fact finder to resolve, courts may dismiss cases where the risks are unforeseeable as a matter of law. Sanchez v. State of New York, 99 N.Y.2d 247, 754 N.Y.S.2d 621, 784 N.E.2d 675, 678 (2002). "The nature of the inquiry depends, of course, on the particular facts and circumstances in which the duty question arises." Di Ponzio, 657 N.Y.S.2d 377, 679 N.E.2d at 618. In order to be considered foreseeable, the precise manner in which the harm was inflicted need not be perfectly predicted. As Di Ponzio v. Riordan explained: "Where an individual breaches a legal duty and thereby causes an occurrence that is within the class of foreseeable hazards that the duty exists to prevent, the individual may be held liable, even though the harm may have been brought about in an unexpected way. On the other hand, no liability will result when the occurrence is not one that is normally associated with such hazards. Significantly, the kind and number of hazards encompassed within a particular duty depend on the nature of the duty." 657 N.Y.S.2d 377, 679 N.E.2d at 619. However, courts must be careful to draw a line between remote possibilities and those that are reasonably foreseeable in order to prevent the imposition of liability "with the wisdom born of the event." Id. (citation omitted). New York cases emphasize that courts must closely examine the nature of the duty owed and the injury sustained in order to determine if the injury was within a class of foreseeable risks. Di Ponzio held that the alleged misconduct of defendant's employees gas station attendants who failed to require a customer to turn off his engine while getting gas did not give rise to liability from a risk that was not associated with the duty of care. In that case, a car that had been left running slid backward, striking the plaintiff. The court found that the injuries sustained by the plaintiff were not among the hazards associated with leaving a car engine running 296 during the operation of a gas pump. See id. at 620. The duty existed to avoid fire and explosion, not to protect against a vehicle that was not properly braked. Construing the factual allegations in the light most favorable to the plaintiffs, I conclude that the crash of the airplanes was within the class of foreseeable hazards resulting from negligently performed security screening. While it may be true that terrorists had not before deliberately flown airplanes into buildings, the airlines reasonably could foresee that crashes causing death and destruction on the ground was a hazard that would arise should hijackers take control of a plane. The intrusion by terrorists into the cockpit, coupled with the volatility of a hijacking situation, creates a foreseeable risk that hijacked airplanes might crash, jeopardizing innocent lives on the ground as well as in the airplane. While the crashes into the particular locations of the World Trade Center, Pentagon, and Shanksville field may not have been foreseen, the duty to screen passengers and items brought on board existed to prevent harms not only to passengers and crew, but also to the ground victims resulting from the crashes of hijacked planes, including the four planes hijacked on September 11. Defendants point to two decisions in cases brought against manufacturers and distributors of ammonium nitrate utilized in the Oklahoma City bombing and the 1993 attack on the World Trade Center. Relying on either New York or New Jersey law and on Oklahoma law, the courts found that the fertilizer products were not themselves dangerous and served socially useful purposes. In Gaines-Tabb v. ICI Explosives USA, Inc., the district court ruled that the manufacturer did not owe a duty to the plaintiffs because the manufacturer did not expose the plaintiffs to a "recognizable high degree of risk of harm through the misconduct of third persons which a reasonable person would take into account." 995 F.Supp. 1304, 1317 (W.D.Okla.1996) (citation omitted). On appeal, the Tenth Circuit affirmed, but on the ground that the terrorists' actions served as the supervening cause for the plaintiffs' injuries. 160 F.3d 613, 620 (10th Cir.1998). In Port Authority of New York and New Jersey v. Arcadian Corp., the Third Circuit held that the manufacturers and distributors of ammonium nitrate did not owe a duty to the plaintiffs, because the product had been substantially altered after leaving the defendants' control, and because only the altered product created the danger to the plaintiff. 189 F.3d 305, 317 (3d Cir.1999). "[D]efendants' products were not in and of themselves dangerous but were merely the raw materials or components that terrorists used in combination with other ingredients to build a bomb." Id. at 313. The cases are distinguishable. Ammonium nitrate is a socially and economically useful product. To require manufacturers to prevent the appropriation of their products for an unintended purpose when manufacturers have no control over who purchases and alters the fertilizer would be an undue burden. Unlike the manufacturers, however, the Aviation Defendants controlled who came onto the planes and what was carried aboard. They had the obligation to take reasonable care in screening precisely because of the risk of terrorist hijackings, and the dangerous consequences that would inevitably follow. The consequences that in fact followed were within the scope of the duty that the Aviation Defendants undertook to carry out. I hold at this stage of the litigation, on the pleadings and before any discovery has taken place, that the injuries suffered by the ground victims arose from risks that 297 were within the scope of the duty undertaken by the Aviation Defendants. iv. Federal Law Preemption Defendants argue that federal law preempts plaintiffs' claims and that an imposition of a duty of care on the part of the Aviation Defendants in favor of ground victims would be "inconsistent with" the air safety provisions of federal law. Section 408(b)(2) of the Act provides: "The substantive law for decision in any such suit shall be derived from the law, including choice of law principles, of the state in which the crash occurred unless such law is inconsistent with or preempted by Federal law." Defendants contend that since federal regulations providing for protection of passengers and property on aircraft in the event of air piracy do not mention people or property on the ground, it would be inconsistent with the regulatory scheme to impose a duty on the Aviation Defendants towards ground victims. See 49 U.S.C. § 44903(b) (mandating the promulgation of "regulations to protect passengers and property on an aircraft" against acts of criminal violence or aircraft piracy); 14 C.F.R. § 107.3(a)(1) (2001) (air carrier security programs shall "[p]rovide for the safety of persons and property traveling in air transportation and intrastate air transportation against acts of criminal violence and air privacy"). They also contend that the Federal Aviation Administration's "common strategy" approach of full cooperation with the hijackers demonstrates the policy of protecting those on board. Thus, because federal regulations and the FAA's terrorist countermeasures did not account for the lives of ground victims, the Aviation Defendants believe they did not owe a duty under federal law to the ground victims. There is no beginning assumption against preemption in those areas of the law "where there has been a history of significant federal presence." United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000). In areas in which there has been a history of significant federal control, courts "must ask whether the local laws in question are consistent with the federal statutory structure," rather than assuming that "concurrent regulation by the State is a valid exercise of its police powers." Id. Aviation is clearly an area with a significant history of federal control. The courts have taken different positions on the scope of preemption in the aviation context. For example, the First and Third Circuits, as well as courts in this district, have held that federal law establishes the applicable standards of care in the field of aviation. Abdullah v. American Airlines, 181 F.3d 363 (3d Cir.1999) (examining a claim brought by passengers injured during flight as a result of turbulence and concluding that traditional state and territorial law remedies continue to exist for violation of federal standards); French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir.1989) (holding that Federal Aviation Act's prescriptions for the employment of pilots preempted state statute regulating drug testing for employees); Curtin v. Port Auth. of N.Y. and N.J., 183 F.Supp.2d 664 (S.D.N.Y.2002) (finding proper removal of state law claims accusing an airline of negligent supervision and control of emergency evacuation procedures because the comprehensive federal regulatory scheme covering emergency evacuation procedures preempts state law); Schaeffer v. Cavallero, 29 F.Supp.2d 184 (S.D.N.Y.1998) (federal law, not state law, determines right of air carrier to refuse to transport, and to evict, passenger). A few courts have taken a different approach, holding that federal law does not always preempt state law tort claims. See 298 Cleveland v. Piper Aircraft Corp., 985 F.2d 1438, 1444 (10th Cir.1993) (holding that Congress has not indicated a "clear and manifest" intent to occupy the field of airplane safety to the exclusion of state common law); Sakellaridis v. Polar Air Cargo, Inc., 104 F.Supp.2d 160, 163 (E.D.N.Y.2000) (claims by airline mechanic injured while servicing large aircraft may be brought under New York Labor Law and are not preempted by federal statutes relating to safety equipment). These cases do not involve the issue of duty. Preemption is generally found, not in connection with the existence and scope of duty, but in connection with the standards governing the conduct and procedures relating to aviation the standard of care, that is, by which an air carrier must carry out its activities. Defendants have not shown any inconsistency between the law of duty provided by New York law and federal statutes or regulations. The FAA may not have predicted a hijacking that had as its purpose crashing the airplane into a heavily occupied office tower, but that says nothing about the extent, or limitation, of the duty of the screening procedures that the Aviation Defendants performed. The federal regulations do not suggest that crashes of hijacked airplanes and death and destruction to people on the ground as well as in the airplanes were unforeseeable as a matter of law. I therefore hold that New York's law of duty is not inconsistent with, or preempted by, federal law. ~ For the reasons stated, I deny the Aviation Defendants' motion to dismiss the claims of the ground victims. B. World Trade Center Defendants' Motions to Dismiss i. Background The Port Authority of New York and New Jersey and WTC Properties LLC move to dismiss all claims brought against them as owners and operators of the World Trade Center[9] for loss of life, personal injury, and damage to nearby property and businesses resulting from the collapse of the Twin Towers. The claims are alleged in two Master Complaints regarding Flights 11 and 175 in the consolidated litigation, and in numerous individual complaints.[10] Plaintiffs allege that the WTC Defendants: 1) failed to design and construct the World Trade Center buildings according to safe engineering practices and to provide for safe escape routes and adequate sprinkler systems and fireproofing; 2) failed to inspect, discover, and repair unsafe and dangerous conditions, and to maintain fireproofing materials; 3) failed to develop adequate and safe evacuation and emergency management plans; 4) failed to apply, interpret and/or enforce 299 applicable building and fire safety codes, regulations and practices; and 5) instructed Tower Two occupants to return to their offices and remain in the building even while the upper floors of Tower One were being consumed by uncontrolled fires following the airplane crash into Tower One. See Plaintiffs' Flight 11 Master Liability Complaint ¶ 85; Plaintiffs' Flight 175 Master Liability Complaint ¶ 82. The WTC Defendants argue that the complaints against them should be dismissed because they had no duty to anticipate and guard against deliberate and suicidal aircraft crashes into the Towers, and because any alleged negligence on their part was not a proximate cause of the plaintiffs' injuries.[11] The Port Authority argues also that it is entitled to immunity because the complained-of conduct essentially consisted of governmental functions. Because all these claims arise from crashes into the World Trade Center Towers, New York's choice of law rules apply. See Act § 408(b). As discussed earlier, New York has the strongest interest in applying its substantive law to define the issues of duty, proximate causation, and governmental immunity involved in this motion and thus its law will be applied. See Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679, 684-85 (1985). ii. Existence and Scope of Duty The WTC Defendants contend that they owed no duty to "anticipate and guard against crimes unprecedented in human history." Plaintiffs argue that defendants owed a duty, not to foresee the crimes, but to have designed, constructed, repaired and maintained the World Trade Center structures to withstand the effects and spread of fire, to avoid building collapses caused by fire and, in designing and effectuating fire safety and evacuation procedures, to provide for the escape of more people. The existence of a duty owed by the WTC Defendants to its lessees and business occupants has been clearly set out in New York law. "A landowner has a duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition," Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831, 449 N.E.2d 725, 727 (1983), including the duty to adopt reasonable fire-safety precautions, see Washington v. Albany Hous. Auth., 297 A.D.2d 426, 746 N.Y.S.2d 99, 101 (N.Y.App.Div.2002), regardless of the origin of the fire, see Whitfield v. City of New York, 239 A.D.2d 492, 657 N.Y.S.2d 757, 759 (N.Y.App.Div.1997), and Taieb v. Hilton Hotels Corp., 131 A.D.2d 257, 520 N.Y.S.2d 776, 777 (N.Y.App.Div.1987). What constitutes reasonable fire prevention is dictated by the actual property. Taieb, 520 N.Y.S.2d at 777. Specific fire hazards caused by the actual building's design or by the materials used in the building must be corrected by the owner in a timely fashion, even when the owner has fully complied with all applicable fire and building codes. Washington, 746 N.Y.S.2d at 101. The duty of landowners and lessors to adopt fire-safety precautions applies to fires caused by criminals. "[L]andowners have a duty to protect tenants, patrons or invitees from foreseeable harm caused by the criminal conduct of 300 others while they are on the premises." Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055, 1061 (2001). See also Mason v. U.E.S.S. Leasing Corp., 96 N.Y.2d 875, 730 N.Y.S.2d 770, 756 N.E.2d 58, 60 (2001). In Brennan v. New York City Housing Authority, the Housing Authority was liable for failing properly to respond to a gas leak, which fueled a fire, after a third-party defendant stole a stove from an apartment. 302 A.D.2d 483, 756 N.Y.S.2d 73, 74 (N.Y.App.Div.2003). Likewise, the WTC Defendants owed a duty to the occupants to create and implement adequate fire safety measures, even in the case of a fire caused by criminals such as those who hijacked flights 11 and 175 on September 11, 2001. The criteria for establishing the existence of duty, discussed previously in the context of the Aviation Defendants' duty to ground victims, applies as well to the duty of landowners to lessees and business occupants. See 532 Madison Ave., Gourmet Foods, Inc. v. Finlandia Ctr., 96 N.Y.2d 280, 727 N.Y.S.2d 49, 750 N.E.2d 1097, 1101 (2001); Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 611 N.Y.S.2d 817, 634 N.E.2d 189, 193 (1994). First, the parties and society would reasonably expect that the WTC Defendants would have a duty to the occupants of the Twin Towers in designing, constructing, repairing and maintaining the structures, in conforming to appropriate building and fire safety codes, and in creating appropriate evacuation routes and procedures should an emergency occur. Second, although a large number of claims have been filed against the WTC Defendants, there is no danger that the number will proliferate beyond those who died in the collapse of the structures or were injured while trying to escape. Similarly, the WTC Defendants are not subject to unlimited or insurer-like liability, for they can be held liable only after a showing of fault and only to those who suffered death, personal injury, or property damage resulting from their alleged negligence. Furthermore, by specific provision of the Air Transportation Safety and System Stabilization Act, their liability is limited to their insurance coverage. Act § 408(a)(1). Fourth, the defendants' relationship with the plaintiffs, as their landlord or the landlord of their employer, placed the WTC Defendants in the best position to protect against the risk of harm. And fifth, as discussed above, imposing a duty on the WTC Defendants in the situation at hand will not create new channels of liability, for the New York courts have held traditionally that landlords owe duties of safety and care to the occupants of leased premises and their invitees. A finding of duty also requires a consideration of the nature of plaintiffs' injuries, and the likelihood of their occurrence from a particular condition. "Defining the nature and scope of the duty and to whom the duty is owed requires consideration of the likelihood of injury to another from a dangerous condition or instrumentality on the property; the severity of potential injuries; the burden on the landowner to avoid the risk; and the foreseeability of a potential plaintiff's presence on the property." Kush, 462 N.Y.S.2d 831, 449 N.E.2d at 727. The criteria are clearly satisfied, for the severity and likelihood of potential injuries of people unable to escape from a heavily occupied building before fires envelope evacuation routes is high. The more difficult question is whether the injuries arose from a reasonably foreseeable risk. Plaintiffs argue that the WTC Defendants had a duty to exercise reasonable care in order to mitigate the effects of 301 fires in the Twin Towers.[12] They allege that defendants knew about the fire safety defects in the Twin Towers, as evident by the Allied litigation concerning inadequate fireproofing in the construction of the buildings;[13] that defendants could have reasonably foreseen crashes of airplanes into the Towers, given the near miss in 1981 of an Aerolineas Argentinas Boeing 707 and the studies conducted during the Towers' construction reporting that the Towers would be able to withstand an aircraft crash; that defendants were aware of numerous fires and evacuations that had occurred at the World Trade Center since its creation, including arson fires in 1975 and the 1993 terrorist-caused explosion in the garage under Tower One; and that the World Trade Center continued to be a prime target of terrorists. A finding of duty does not require a defendant to have been aware of a specific hazard. See Sanchez v. State of New York, 99 N.Y.2d 247, 754 N.Y.S.2d 621, 784 N.E.2d 675, 679-81 (2002). It is enough to have foreseen the risk of serious fires within the buildings and the goal of terrorists to attack the building. This is a very early point in the litigation. There has been no discovery, and defendants' motions to dismiss accept, as they must, all allegations of the complaints. I hold that the WTC Defendants owed a duty to the plaintiffs, and that plaintiffs should not be foreclosed from being able to prove that defendants failed to exercise reasonable care to provide a safe environment for its occupants and invitees with respect to reasonably foreseeable risks. iii. Proximate and Supervening Causation The WTC Defendants argue that even if they are held to have owed a duty to the plaintiffs and even if a jury ultimately finds that they acted negligently, their negligence was not the proximate cause of plaintiffs' damages. This is because, they claim, the terrorist-related aircraft crashes into the Twin Towers were so extraordinary and unforeseeable as to constitute intervening and superceding causes, severing any link of causation to the WTC Defendants. When an intervening act "is of such an extraordinary nature or so attenuates defendants' negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant," proximate cause is lacking. Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831, 449 N.E.2d 725, 729 (1983). Thus, "when such an intervening cause `interrupts the natural sequence of events, turns aside their course, prevents the natural and probable result of the original act or omission, and produces a different result that could not have been reasonably anticipated,' it will prevent a recovery on account of the act or omission of the original wrongdoer." Sheehan v. City of New York, 40 N.Y.2d 496, 387 N.Y.S.2d 92, 354 N.E.2d 832, 835-36 (1976) (citations omitted). The "negligence complained of must have caused the occurrence of the accident from which the injuries flow." Rivera v. City of New York, 11 N.Y.2d 856, 227 N.Y.S.2d 676, 182 N.E.2d 284, 285 (1962). 302 Generally, an intervening intentional or criminal act severs the liability of the original tort-feasor. Kush, 462 N.Y.S.2d 831, 449 N.E.2d at 729. But that "doctrine has no application when the intentional or criminal intervention of a third party or parties is reasonably foreseeable." Id. In Bonsignore v. City of New York, a New York City police officer shot and seriously wounded his wife. 683 F.2d 635 (2d Cir.1982). The wife sued the City, alleging that it was negligent in failing to identify officers who were unfit to carry guns and who would likely use them without proper restraint and in inappropriate circumstances, and in not recognizing that her husband was such an officer. The City defended on the ground of independent and supervening cause, arguing that the officer's intentional and criminal act severed any link of causation to its own alleged negligence. The Court of Appeals held in favor of the wife, ruling that since the officer's act was precisely that which the City should reasonably have foreseen, the police officer's intentional and criminal act was not an independent and supervening break between the City's negligence and the plaintiff's injury. See id. at 637-38. At this early stage of the case and in the absence of a factual record, I find that plaintiffs have pleaded sufficient facts to allege legal proximate cause. Plaintiffs allege that the WTC Defendants' negligence was a substantial cause of their injuries, because adequate fireproofing and evacuation would have enabled many more escapes. According to plaintiffs, the terrorist acts did not merely "operate upon" the defendants' negligence, Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666, 670 (1980); rather, the failure to provide certain safeguards caused the entrapment of many more people and the loss of many more lives. Large-scale fire was precisely the risk against which the WTC Defendants had a duty to guard and which they should have reasonably foreseen. I also decline at this stage to find that the acts of the terrorists qualify as "extraordinary" intervening cause. Kush, 462 N.Y.S.2d 831, 449 N.E.2d at 729. While the specific acts of the terrorists were certainly horrific, I cannot find that the WTC Defendants should be excused of all liability as a matter of policy and law on the record before me, especially given the plaintiffs' allegations regarding the defendants' knowledge of the possibility of terrorist acts, large-scale fires, and even airplane crashes at the World Trade Center. The defendants may well be able to show at a later stage in this litigation that the conduct of the terrorists "so attenuates defendants' negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant," Kush, 462 N.Y.S.2d 831, 449 N.E.2d at 729. Discovery will either supply evidence to substantiate or eviscerate the parties' divergent claims about foreseeability. See Mason v. U.E.S.S. Leasing Corp., 96 N.Y.2d 875, 730 N.Y.S.2d 770, 756 N.E.2d 58, 60 (2001) (discovery necessary to determine foreseeability of an intruder's assault within an apartment complex). At this point, however, both plaintiffs and defendants should be allowed to proceed to discovery on these issues of causation. iv. Governmental Immunity The Port Authority claims that it is immune from liability to the extent that the plaintiffs complain that the Port Authority was negligent in its performance of governmental functions such as planning for public safety and responding to a public emergency. The Port Authority agrees, however, that it does not enjoy a blanket immunity to suit. See N.Y. Unconsol. Laws § 7106 (2003) ("Although 303 the port authority is engaged in the performance of governmental functions, the said two states [NY and NJ] consent to liability on the part of the port authority in such suits, actions or proceedings for tortious acts committed by it and its agents to the same extent as though it were a private corporation"). The allegations and proofs have to be parsed in order to determine whether, and to what extent, the defense of government immunity applies. The defense of governmental immunity requires a court to scrutinize specific claims. "It is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs [governmental] liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred." Weiner v. Metro. Transp. Auth., 55 N.Y.2d 175, 448 N.Y.S.2d 141, 433 N.E.2d 124, 127 (1982). The inquiry is to determine a point "along a continuum of responsibility," one side of which may be considered as proprietary, and the other, governmental. See Miller v. State, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493, 496 (1984). "[The continuum] begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection." Id. When a public entity acts in a proprietary capacity as a landlord, it is held to the same duty as private landlords. See id. Miller illustrates the issue. The plaintiff, a student at a SUNY college, was assaulted in the college dormitory by an intruder and sued the State for the university's failure to keep doors locked and maintain adequate security. 478 N.Y.S.2d 829, 467 N.E.2d at 495. The Court of Appeals held that while the state could not be liable for failure to provide police protection, the state in its capacity as landowner had the duty to maintain minimal security measures to protect occupants against foreseeable criminal intrusions. See id. at 496. As a landowner, the State must act as a reasonable [person] in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. Under this standard, a landlord has a duty to maintain minimal security measures, related to a specific building itself, in the face of foreseeable criminal intrusion upon tenants. Id. at 497 (citations omitted). Plaintiffs allege negligence by the Port Authority in a number of respects: 1) failure to design and construct the World Trade Center buildings according to safe engineering practices and to provide for safe escape routes and adequate sprinkler systems and fireproofing; 2) failure to inspect, discover, and repair unsafe and dangerous conditions, and to maintain fireproofing materials; 3) failure to develop an adequate and safe evacuation plan and emergency management plan; 4) failure to apply, interpret and/or enforce applicable building and fire safety codes, regulations and practices; and 5) instructing Tower Two occupants to remain in the building rather than evacuate. See Plaintiffs' Flight 11 Master Liability Complaint ¶ 85; Plaintiffs' Flight 175 Master Liability 304 Complaint ¶ 82. Based only on the pleadings and before any discovery has occurred, I have been given no basis to determine where, on the continuum between functions that are essentially proprietary and those that are essentially governmental, these various allegations should fall. It would seem, from the pleadings alone, that it would be difficult for the Port Authority to establish its defense with respect to claims of negligent design, construction, inspection, repair, maintenance, and application and enforcement of building codes, for these functions are not likely to differ from those required of private landowners. The same is true regarding allegations relating to inadequate evacuation and emergency management plans and procedures, but these allegations may touch also upon the functions of the Port Authority police force within the Twin Towers, and come closer to the governmental end of the continuum. This may be even more so for the allegation that occupants of Tower Two were told, before the crash into that Tower, to return to, and remain in, their offices, rather than evacuate. The record does not yet show who gave this instruction, whether a member of the Port Authority's security force or some other employee, and for what reasons the instruction was given. The Port Authority cites to cases which appear to define "governmental function" broadly. See Clinger v. New York City Trans. Auth., 85 N.Y.2d 957, 626 N.Y.S.2d 1008, 650 N.E.2d 855, 856 (1995) (immunity for injuries resulting from storage of construction materials to shield an area of attack for storage was an "overwhelmingly governmental" function); Gasset v. City of New York, 198 A.D.2d 12, 603 N.Y.S.2d 141, 142 (N.Y.App.Div.1993) (immunity to Port Authority for alleged failure to supply adequate security and prevent heavy objects from being thrown from a restricted area, causing death to plaintiff's decedent); Marilyn S. v. City of New York, 134 A.D.2d 583, 521 N.Y.S.2d 485, 486-87 (N.Y.App.Div.1987) (negligence in distributing keys enabling an intruder to rape a teacher in a restroom implicated governmental security function). But other cases are less expansive. In Crosland v. New York City Transit Authority, for example, the Transit Authority's failure to take reasonable precautions for the safety of passengers, such as failing to summon the police during an attack, was likened to the duty owed to passengers by a common carrier, and immunity was denied. 110 A.D.2d 148, 493 N.Y.S.2d 474, 480 (N.Y.App.Div.1985). The Court ruled: This allegation of negligence does not implicate the allocation of police resources or actions taken by the Transit Authority in its police protection capacity, functions which, ordinarily, are governmental. Rather, this allegation touches upon ownership and care relating to transportation of passengers which traditionally has been carried on through private enterprise, specifically by common carriers, and constitutes a proprietary function when performed by a governmental entity. Id. In Rubino v. City of New York, the Board of Education was held liable for failing to warn or take other actions to address the known risk of items being thrown into the school yard from a neighboring lot. 114 A.D.2d 243, 498 N.Y.S.2d 831 (N.Y.App.Div.1986). The court ruled that the Board of Education, as any landlord, had "a duty to take such steps in the management of its property as were reasonably necessary to prevent injuries to teachers and students from such foreseeable dangers." Id. at 835. At this point, the Port Authority has not shown that it will prove its defense of governmental immunity as to the negligence 305 allegations made by WTC occupants. The Port Authority argues also that it should have immunity in its capacity as operator of Newark Airport, for alleged negligence in permitting terrorists and weapons aboard United Air Lines flight 93, and for the hijacking and deaths that resulted. The Port Authority claims that it was performing a governmental function.[14] Again, however, the Port Authority has not shown that it was performing a governmental function with respect to the "specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred." Weiner, 448 N.Y.S.2d 141, 433 N.E.2d at 127. Further development of the record is required. For the reasons stated, I deny the WTC Defendants' motion to dismiss the complaints. C. Boeing's Motions to Dismiss Some of those who were injured and the successors of those who died in the Pentagon, in American Airlines flight 77 which crashed into the Pentagon, and in United Air Lines flight 93 which crashed into the Shanksville, Pennsylvania field, claim the right to recover against Boeing, the manufacturer of the two "757" jets flown by United and American. Plaintiffs allege that Boeing manufactured inadequate and defective cockpit doors, and thus made it possible for the hijackers to invade the cockpits and take over the aircraft. Boeing moves to dismiss the lawsuits. I hold that plaintiffs have alleged legally sufficient claims for relief under the laws applicable to the claims, Virginia and Pennsylvania, respectively. I therefore deny the motion except for certain claims, as discussed below. i. Choice of Law Section 408(b)(2) of the Act provides that the substantive law "shall be derived from the law, including choice of law principles, of the State in which the crash occurred unless such law is inconsistent with or preempted by Federal law," that is, Virginia as to the claims relating to the crash of American flight 77 into the Pentagon, and Pennsylvania as to the claims relating to the crash of United flight 93 into the Shanksville field. As discussed in Part II.A.i., Virginia conflicts law chooses the substantive law of the "place of the wrong" (lex loci delicti), and thus Virginia law must govern the claims arising from the crash of American Airlines flight 77 into the Pentagon. McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662, 664 (1979). Pennsylvania's conflicts law chooses the substantive law of the state having the most interest in the outcome of the case. See Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796, 805 (1964). The parties agree that the substantive law of Pennsylvania should govern the claims arising from the crash of United flight 93 in Shanksville. ii. Motion to Dismiss Claims Arising out of the Crash of American Airlines Flight 77 a. Background Thus far, three individual complaints have been filed with respect to the flight 77 crash. They charge Boeing with strict tort liability and negligent design based on an unreasonably dangerous design of the 306 cockpit doors. See Edwards v. American Airlines, Inc., No. 02 Civ. 9234 (brought on behalf of a decedent who was a passenger on flight 77); Powell v. Argenbright Security, Inc., No. 02 Civ. 10160 (brought on behalf of a decedent who died while working at the Pentagon); Gallop v. Argenbright Security, Inc., No. 03 Civ. 1016 (plaintiffs injured at the Pentagon site). The Plaintiffs' First Amended Flight 77 Master Liability Complaint contains three counts applicable to Boeing. Count Six alleges strict tort liability for an unreasonably dangerous design of the cockpit doors. Count Seven alleges that Boeing breached its duty of care by failing to design the cockpit doors and accompanying locks in a manner that would prevent hijackers and/or passengers from accessing the cockpit. Count Eight alleges that Boeing violated its express or implied warranty that the aircraft structure and frame, with respect to the cockpit doors, were fit for the purposes for which they were designed, intended and used.[15] b. Strict liability claims Virginia does not permit recovery on a strict liability theory in product liability cases. See Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 236 Va. 419, 374 S.E.2d 55, 57 n. 4 (1988). Thus, Count Six in the Flight 77 Master Complaint, and the underlying related claims in the individual complaints Count Three in Edwards, Count Five in Powell, and Count Five in Gallop are all dismissed. c. Negligent design and breach of warranty claims Boeing moves to dismiss both the claims of negligent design and breach of warranty, arguing that it did not owe a duty to prevent the use of the plane as a weapon, and that the independent and supervening acts of the terrorists, not Boeing's acts, caused the injuries of the plaintiffs. A plaintiff, to state a claim of negligence, must allege the existence of a legal duty, violation of that duty, and proximate causation which results in injury. Marshall v. Winston, 239 Va. 315, 389 S.E.2d 902, 904 (1990). In order to state a claim of breach of warranty, plaintiff may invoke the Virginia law of an implied warranty of merchantability, which guarantees that a product "was reasonably safe for its intended use when it was placed in the stream of commerce." Turner v. Manning, Maxwell & Moore, Inc., 216 Va. 245, 217 S.E.2d 863, 868-69 (1975). In order to recover under either a negligence or breach of warranty theory against a product manufacturer, "a plaintiff must show (1) that the goods were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that the unreasonably dangerous condition existed when the goods left the manufacturer's hands." Morgen Indus., Inc. v. Vaughan, 252 Va. 60, 471 S.E.2d 489, 492 (1996). Thus, a manufacturer owes a duty to supply a product "fit for the ordinary purposes for which it is to be used" and safe notwithstanding a reasonably foreseeable misuse that could cause injury, Jeld-Wen, Inc. v. Gamble, 256 Va. 144, 501 S.E.2d 393, 396 (1998). However, "a manufacturer is not required to supply an accident-proof product." Besser 307 Co. v. Hansen, 243 Va. 267, 415 S.E.2d 138, 144 (1992) (citation omitted). The existence of duty in the products liability context is a question of law. "[T]he purpose of making the finding of a legal duty as a prerequisite to a finding of negligence, or breach of implied warranty, in products liability is to avoid the extension of liability for every conceivably foreseeable accident, without regard to common sense or good policy." Jeld-Wen, 501 S.E.2d at 396 (citations omitted). Legal duty may extend to a user of the product, as well as to its purchaser. See Morgen Indus., 471 S.E.2d at 492. While the existence of duty is a question of law, whether a product is unreasonably dangerous is generally a question of fact, id., as is the question whether the misuse was reasonably foreseeable, Slone v. General Motors Corp., 249 Va. 520, 457 S.E.2d 51, 54 (1995). Courts have emphasized that these determinations require careful examination of the record. Compare Slone, 457 S.E.2d at 54 (ruling in favor of reasonable foreseeability), with Jeld-Wen, 501 S.E.2d at 397 (ruling against reasonable foreseeability). In Slone v. General Motors Corp., the court held that plaintiff could proceed with a claim against a truck manufacturer. 457 S.E.2d at 54. While the plaintiff was dumping a load of gravel using the truck with a dump bed attached, the vehicle flipped backwards, crushing the truck cab and injuring the plaintiff. The court ruled that the plaintiff adequately had alleged both an unreasonably dangerous condition and a reasonably foreseeable misuse, by claiming that the design of the truck cab provided inadequate roof support and that the possibility of rollover was reasonably foreseeable by the truck manufacturer. See id. However, in Jeld-Wen, 501 S.E.2d at 396-97, the court examined a claim brought when a child, who had gently touched a screen window that had a defective latch, fell through the open window when the screen fell out. The court distinguished the foreseeability of the screen being dislodged by the child's touch and the foreseeability of the child's losing his balance and falling through the open window. The court held that since the screen was not intended to support a child's body weight and prevent the child from falling through the window, the screen manufacturer could not reasonably foresee its misuse in the manner claimed. Boeing argues that its design of the cockpit was not unreasonably dangerous in relation to reasonably foreseeable risks, and that the risk of death to passengers and ground victims caused by a terrorist hijacking was not reasonably foreseeable. The record at this point does not support Boeing's argument. There have been many efforts by terrorists to hijack airplanes, and too many have been successful. The practice of terrorists to blow themselves up in order to kill as many people as possible has also been prevalent. Although there have been no incidents before the ones of September 11, 2001 where terrorists combined both an airplane hijacking and a suicidal explosion, I am not able to say that the risk of crashes was not reasonably foreseeable to an airplane manufacturer. Plaintiffs have alleged that it was reasonably foreseeable that a failure to design a secure cockpit could contribute to a breaking and entering into, and a take-over of, a cockpit by hijackers or other unauthorized individuals, substantially increasing the risk of injury and death to people and damage to property. I hold that the allegation is sufficient to establish Boeing's duty. Boeing also argues that the regulations of the Federal Aviation Administration ("FAA") relating to design of 308 passenger airplanes did not require an impenetrable cockpit door, and thus its designs, which satisfied FAA requirements, could not be defective. However, the only support provided by Boeing for its argument is an after-the-fact FAA policy statement, issued to explain why the FAA, in 2002, was requiring airplane manufacturers to provide such doors even though the FAA previously had not done so. Flightcrew compartment doors on transport category airplanes have been designed principally to ensure privacy, so pilots could focus their entire attention to their normal and emergency flight duties. The doors have not been designed to provide an impenetrable barrier between the cabin and the flightcrew compartment. Doors have not been required to meet any significant security threat, such as small arms fire or shrapnel, or the exercise of brute force to enter the flightcrew compartment. 67 Fed.Reg. 12,820-12,824 (Mar. 19, 2002). Boeing has not proffered the parameters that existed when it manufactured its "757" jumbo-jet airplanes that United and American flew on September 11, 2001. Boeing also has not shown the extent to which FAA regulations determined how passenger airplanes were to be constructed. Although a FAA promulgation of standards for the design and manufacture of passenger aircraft may be entitled to weight in deciding whether Boeing was negligent, see, e.g., Curtin v. Port Auth. of N.Y. and N.J., 183 F.Supp.2d 664, 671 (S.D.N.Y.2002) (concluding that the standard of care with respect to aircraft evacuation procedures is a matter of federal, not state, law), statements by the FAA characterizing what its former regulations required does not dictate the totality of the duty owed by aircraft manufacturers. Boeing's argument is not sufficient to support its motion to dismiss the complaints against it. d. Proximate Causation Boeing next argues that its design of the cockpit doors on its "757" passenger aircraft, even if held to constitute an "unreasonably dangerous condition," was not the proximate cause of plaintiffs' injuries. Boeing argues that the criminal acts of the terrorists in hijacking the airplanes and using the airplanes as weapons of mass destruction constituted an "efficient intervening cause" which broke the "natural and continuous sequence" of events flowing from Boeing's allegedly inadequate design. See Sugarland Run Homeowners Ass'n v. Halfmann, 260 Va. 366, 535 S.E.2d 469, 472 (2000) (a "proximate cause of an event is that `act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the event, and without which that event would not have occurred,'" quoting Beale v. Jones, 210 Va. 519, 171 S.E.2d 851, 853 (1970)). Plaintiffs have the burden to prove proximate cause and, generally, the issue is a question of fact to be resolved by a jury. Sugarland, 535 S.E.2d at 472. However, when reasonable people cannot differ, the issue becomes a question of law for the court. Id. The record at this point does not support Boeing's argument that the invasion and take-over of the cockpit by the terrorists must, as a matter of law, be held to constitute an "efficient intervening act" that breaks the "natural and continuous sequence" flowing from Boeing's allegedly inadequate design. Plaintiffs allege that Boeing should have designed its cockpit door to prevent hijackers from invading the cockpit, that acts of terrorism, including hijackings of airplanes, were reasonably foreseeable, and that the lives of passengers, crew and ground victims would be 309 imminently in danger from such hijackings. Virginia law does not require Boeing to have foreseen precisely how the injuries suffered on September 11, 2001 would be caused, as long as Boeing could reasonably have foreseen that "some injury" from its negligence "might probably result." See Blondel v. Hays, 241 Va. 467, 403 S.E.2d 340, 344 (1991) ("[A] reasonably prudent [person] ought under the circumstances to have foreseen that some injury might probably result from that negligence"). Given the critical nature of the cockpit area, and the inherent danger of crash when a plane is in flight, one cannot say that Boeing could not reasonably have foreseen the risk flowing from an inadequately constructed cockpit door. Boeing relies heavily on Baltimore & Ohio Railroad Co. v. Patterson, 204 Va. 81, 129 S.E.2d 1 (1963), to support its argument that proximate causation was broken by an "efficient intervening cause." The case, however, is distinguishable. The railroad had been using a certain type of switch for more than forty years. While a long freight train was stopped, with eight cars having passed over the switch and the balance of 51 freight cars still on the other side, a six-year old boy living at the side of the track surreptitiously came onto the tracks and threw the switch. When the train resumed its movement, a number of cars derailed, causing property damage to adjoining properties. The Virginia Supreme Court reversed the verdict for the plaintiff, holding that the railroad reasonably could not have foreseen the occurrence. The switch was of a standard type in use for more than forty years; it was used throughout the railroad's extensive system, and at the location in issue; it had consistently been operated in an identical manner for the forty years; the switch had never before been tampered with; and the railroad crew had not been negligent in monitoring the child or the tampered switch. The court held that an imposition of liability on the railroad would be unreasonable, for it would require the railroad to station employees at or near all its switches. Id. at 12-13. The court ruled also that the boy's criminal conduct, not reasonably being foreseen by the railroad, constituted an independent and proximate cause of the adjoining property owner's damage. In contrast, the danger that a plane could crash if unauthorized individuals invaded and took over the cockpit was the very risk that Boeing should reasonably have foreseen. "Privacy" within a cockpit means very little if the door intended to provide security is not designed to keep out potential intruders. Boeing's citation to cases in other jurisdictions are also distinguishable. Two of the cases, Port Authority of N.Y. and N.J. v. Arcadian Corp., 189 F.3d 305 (3d Cir. 1999), and Gaines-Tabb v. ICI Explosives USA, Inc., 160 F.3d 613 (10th Cir.1998), have already been discussed in Part II. A.iii. of this opinion with respect to the issue of duty. The courts of appeals in both cases addressed the question of causation and held that defendants' actions or inactions were not the "legal proximate cause" of the injuries suffered by the victims of the 1993 World Trade Center and 1995 Oklahoma City bombings. They ruled that the manufacturers of the fertilizer products utilized in the attacks, having made lawful and economically and socially useful fertilizer products, did not have to anticipate that criminals would misappropriate ingredients, mix them with others, and make bombs to bring down a building. The bomb-making by the terrorists were found to be superseding and intervening events and were not natural or probable consequences of any design defect in defendants' products. See Arcadian Corp., 189 F.3d at 318; Gaines-Tabb, 160 F.3d at 621. 310 In re Korean Air Lines Disaster of September 1, 1983, No. 83-3442, 1985 WL 9447, 1985 U.S. Dist. LEXIS 17211 (D.D.C.1985), involved lawsuits by the legal successors of passengers who died when Korean Airlines passenger flight 007 was shot down by Russian fighter planes. The passenger plane had flown off course and over a sensitive military zone in Russia. Russian fighter pilots intercepted the plane and, instead of following international protocol for causing the plane to return to international routes over the high seas or to land at a selected landing field, shot it down. Plaintiffs sued Boeing, the manufacturer of the airplane, alleging that a product defect in its navigation systems caused it to fly off course and over Soviet territory, and that Boeing's improper and unsafe design was therefore the proximate cause of plaintiffs' damages. The court dismissed the complaint, holding that Boeing could not foresee that the Soviet Union would destroy an intruding aircraft in violation of international conventions, and had no ability to guard against such conduct. See id., 1985 WL 9447, 5-6, 1985 U.S. Dist. LEXIS 17211, at 17-20. The court held, consequently, that Boeing did not owe a duty to passengers with respect to such risks, and that the actions of the Russian pilots were independent and supervening causes that broke the chain of causation. These three cases do not offer Boeing much support in its motion. In each, the acts of the third-parties were held to be superseding causes because they were not reasonably foreseeable to the product manufacturer. In Gaines-Tabb and Arcadian, the courts of appeals held that the fertilizer manufacturers could not reasonably foresee that terrorists would mix their products with other ingredients to create explosives to cause buildings to collapse and occupants to be killed. In KAL, the court held that the manufacturer of airplane navigational systems could not reasonably foresee that a passenger aircraft that strayed off course would be shot down by hostile military forces in violation of international conventions. In the cases before me, however, plaintiffs allege that Boeing could reasonably have foreseen that terrorists would try to invade the cockpits of airplanes, and that easy success on their part, because cockpit doors were not designed to prevent easy opening, would be imminently dangerous to passengers, crew and ground victims. Plaintiffs' allegations that duty and proximate cause existed cannot be dismissed as a matter of law on the basis of the record now before me. Accordingly, I deny Boeing's motion to dismiss the complaints against it arising from the crash of flight 77 into the Pentagon. iii. Motion to Dismiss Claims Arising out of the Crash of United Air Lines Flight 93 a. Background The successors of the passengers who died in the crash of United Air Lines flight 93 in Shanksville have filed four lawsuits: Burnett v. Argenbright, 02 Civ. 6168; Lyles v. Argenbright, 02 Civ. 7243; Cashman v. Argenbright, 02 Civ. 7608; and Driscoll v. Argenbright, 02 Civ. 7912. Their allegations are encapsulated in Plaintiffs' Flight 93 Master Liability Complaint, which mirrors the Plaintiffs' First Amended Flight 77 Master Liability Complaint. The Flight 93 Master Complaint alleges claims against Boeing based on strict tort liability, for an unreasonably dangerous design of the cockpit doors (Count Five); negligence, for failure to design cockpit doors and accompanying locks in a manner that would prevent hijackers and/or passengers from accessing 311 the cockpit (Count Six); and express or implied warranty, for creating a product that was unfit for the purposes for which it was dEsigned, intended and used (Count Seven).[16] b. Strict tort liability and breach of warranty claims Under Pennsylvania law, following section 402A of the Restatement (Second) of Torts, a plaintiff pressing a product liability or strict tort liability claim must allege and prove that the product was defective, that the defect existed when it left the defendant, and that the defect proximately caused the harm. See Weiner v. American Honda Motor Co. Inc., 718 A.2d 305, 307 (Pa.Super.1998). The elements of breach of warranty and strict product liability are the same. Cucchi v. Rollins Protective Servs. Co., 377 Pa.Super. 9, 546 A.2d 1131, 1136 (1998), rev'd on other grounds, 524 Pa. 514, 574 A.2d 565 (1990). "The question of whether a product is unreasonably dangerous is a question of law. In answering this question a court is essentially making a social policy determination and acting as both a social philosopher and a risk-utility economic analyst." Riley v. Warren Mfg., Inc., 455 Pa.Super. 384, 688 A.2d 221, 224 (1997). Courts must weigh factors such as "the gravity of the danger posed by the challenged design; the likelihood that such danger would occur; the mechanical feasibility of a safer design; and the adverse consequences to the product and to the consumer that would result from a safer design." Id. at 225. Manufacturers are held strictly liable for product defects because they "market their product for use and because they have a better opportunity to control the defect." Id. at 228. "The focus is on the nature of the product and the consumer's reasonable expectations with regard to the product." Id. Within the risk-utility analysis, courts must examine if the product was safe for its intended use. "A product is defective when it is not safe for its intended use ... a manufacturer is entitled to believe that the product will be used in its usual manner, and need not be the insurer for the extraordinary risks an operator might choose to take." Weiner, 718 A.2d at 308 (citations omitted). See also Schindler v. Sofamor, Inc., 774 A.2d 765, 772 (Pa.Super.2001). The use must also be by one who is an intended user. Hittle v. Scripto-Tokai Corp., 166 F.Supp.2d 159, 167 (M.D.Pa.2001). But see Phillips v. Cricket Lighters, 773 A.2d 802 (Pa.Super.2001), review granted, 567 Pa. 763, 790 A.2d 1018 (2001) (rejecting the "intended user" requirement and finding defect when a child started a fire using a butane light, even though the child could not properly be considered an "intended user"). Because the decision of whether the product was unreasonably dangerous and unsafe for its intended use is a question of law, Boeing argues that the judge should not be influenced by conclusory allegations of the complaint. The reason, Boeing argues, is that "the trial court is not bound by any party's legal conclusions as to the intended purpose of a product, even if those conclusions are couched as averments of fact or presented as expert evidence. To hold otherwise would force trial courts (and reviewing courts) to accept unrealistic, generalized or distorted views of the product's purpose simply because 312 they are presented as factual evidence." Schindler, 774 A.2d at 773. But this is not the situation in the case before me. The cockpit door, like any door, is intended as a separation, a "movable barrier of wood or other material, consisting either of one piece, or of several pieces framed together, usually turning on hinges or sliding in a groove, and serving to close or open a passage into a building, room, etc." Oxford English Dictionary (2d ed.1999). A door may be fitted with, and without, locks, depending on who may be allowed to enter and in what circumstances. The intended users of a door, and in particular a locked door, are those within, in order to assure their privacy, and possibly those without who may have an interest in allowing those within to perform their jobs without unwanted intrusion. Boeing asks me to hold that since the terrorists who hijacked the airplanes were not the intended users of the cockpit doors, one cannot say that the doors were unreasonably dangerous or unsafe in relation to the use that terrorists would be expected to make of the doors. Clearly, however, the intended users of the cockpit doors were not the terrorists who broke through them, but the pilots who had the right to protection from unwanted intrusion, and the passengers who had the right to believe that the pilots could continue to guide the plane, free from intrusion, to ensure their safe arrival at their intended destination. If, as Boeing argues, a person who breaks through a door is considered to be an unintended user, no manufacturer of a door and lock system could ever be liable. The intended user of a door is the person who wishes it to be closed and stay closed, not the person who can easily force it open. The pilots and passengers are not mere "casual bystanders," but people with a vital stake in the door's performing its intended purpose. See Restatement (Second) Torts § 402A, Comments (l) and (o) (intended users include "those who are passively enjoying the benefit of the product, as in the case of passengers in automobiles or airplanes .... casual bystanders, and others who may come in contact with the product, as in the case of employees of the retailer, or a passer-by injured by an exploding bottle, or a pedestrian hit by an automobile have been denied recovery").[17] Boeing may be able to show that the cockpit doors were not unreasonably dangerous, and that it was not unreasonable to design them to provide privacy without making them impenetrable. At this point, it would be inappropriate for a judge to make this determination. The record will have to be developed to show if the cockpit doors, incapable of keeping out unwanted intruders, were unreasonably dangerous, taking into consideration: 1) the gravity of the danger posed by the design; 2) the likelihood that the danger would occur; 3) the feasibility of a safer design; 4) the adverse consequences to the product and to the consumer that would result from a safer design; 5) the usefulness and desirability of the product; 6) the likelihood that the product will cause injury and the probable seriousness of the injury; 7) the availability of a substitute product which meets the same needs and is not unsafe; 8) the manufacturer's ability to eliminate the unsafe character of the product without impairing usefulness or making the product too expensive; 9) the user's ability to avoid danger by the exercise of care in the use of the product; 10) the user's anticipated awareness of the 313 dangers inherent in the product and their avoidability; and 11) the ability of the manufacturer to spread loss through pricesetting or insurance coverage. See Schindler, 774 A.2d at 772; Riley, 688 A.2d at 225. In order to prevail on their strict liability and breach of warranty claims, the plaintiffs must also show that the defect was the proximate cause for the injuries; this will be discussed in the negligent design analysis below. Weiner, 718 A.2d at 307. c. Negligent design claims Boeing argues that the plaintiffs' negligent design claims must be dismissed because it did not owe a duty of care to the plaintiffs, and because its alleged negligence was not the proximate cause of plaintiffs' damages. The elements of a claim of negligence are: the existence of a duty to plaintiffs; the breach of that duty; a causal relationship between the breach and the resulting injury; and actual loss by the plaintiff. See Brisbine v. Outside In School, 2002 PA Super 138, 799 A.2d 89, 93 (2002) (citation omitted). Because Pennsylvania and Virginia law do not appear to differ significantly, the analysis is similar to that for Flight 77. Duty is "imposed on all persons not to place others at risk of harm through their actions. The scope of this duty is limited, however, to those risks which are reasonably foreseeable by the actor in the circumstances of the case." J.E.J. v. Tri-County Big Brothers/Big Sisters, Inc., 692 A.2d 582, 584 (1997) (citation omitted). "In the context of duty, the concept of foreseeability means the likelihood of the occurrence of a general type of risk rather than the likelihood of the occurrence of the precise chain of events leading to the injury." Huddleston v. Infertility Ctr. of Am., Inc., 700 A.2d 453, 460 (Pa.Super.1997) (citation omitted). Plaintiffs have alleged that Boeing reasonably should have foreseen that a negligently designed cockpit door, permitting unauthorized individuals to enter the cockpit, would lead to risk of injury or death. For the same reasons as I have discussed previously, Boeing's motion to dismiss based on the absence of a duty of care to plaintiffs is denied. To determine whether proximate cause exists, "the court must determine whether the injury would have been foreseen by an ordinary person as the natural and probable outcome of the act complained of." Reilly v. Tiergarten Inc., 430 Pa.Super. 10, 633 A.2d 208, 210 (1993). The existence of a concurring cause responsible for producing injury does not relieve a defendant of liability, if "a jury could reasonably believe that a defendant's actions were a substantial factor in bringing about the harm." Powell v. Drumheller, 539 Pa. 484, 653 A.2d 619, 622 (1995). "Among the factors to consider in determining whether a subsequent force is an intervening or superseding cause are whether the force is operating independently of any situation created by the first actor's negligence and whether it is a normal result of that situation." Rabutino v. Freedom State Realty Co. Inc., 809 A.2d 933, 942 (Pa.Super.2002). Plaintiffs allege that without defendant's negligence, the hijackers would not have been able to intrude into the cockpit and take over the airplane. Again, for the reasons previously discussed, the terrorists' unauthorized entry into the cockpit was not unforeseeable, and did not constitute an "intervening" or "superseding" cause that could, as a matter of law, break the chain of causation. 314 Accordingly, I deny Boeing's motion to dismiss the complaints against it arising from the crash of flight 93 into Shanksville. III. Conclusion For the reasons stated, the motions to dismiss the complaints by the Aviation Defendants and the WTC Defendants are denied. The motion of Boeing to dismiss Counts Four and Six in the Flight 77 Master Complaint, Count Four in the Flight 93 Master Complaint, Count Three in Edwards v. American Airlines, Inc., No. 02 Civ. 9234, Count Five in Powell v. Argenbright Security, Inc., No. 02 Civ. 10160, and Count Five in Gallop v. Argenbright Security, Inc., No. 03 Civ. 1016, is granted; the remainder of the motion is denied. By this decision, substantially all preliminary matters have been resolved, with the exception of the Port Authority's motion to dismiss Mayore Estates LLC, 02 Civ. 7198(AKH). We are now ready to proceed with the discovery stages of the lawsuits. To this end, I will meet with all counsel for case management purposes on September 26, 2003, at 9:30 a.m., in Courtroom 14D, 500 Pearl Street, New York, N.Y. 10007. Liaison Counsel shall submit a proposed agenda by September 24, 2003. SO ORDERED. NOTES [1] Many more actions have been brought by claimants who have not yet decided between pursuing compensation through litigation or the Fund. These cases have been placed on the suspense docket pursuant to my orders of September 6, 2002 and July 22, 2003. [2] The airport operators that joined in this motion are: the Massachusetts Port Authority, the Metropolitan Washington Airport Authority, the City of Portland, Maine, and the Port Authority of New York and New Jersey. I denied their joint motion without prejudice. (Order of May 5, 2003, In re September 11 Litigation, 21 MC 97.) The City of Portland, Maine and the Port Authority of New York and New Jersey brought separate supplementary motions to dismiss. I granted Portland's motion, dismissing it as a defendant from those cases where plaintiffs had failed to file a timely notice of claim. In re September 11 Litigation, 265 F.Supp.2d 208 (S.D.N.Y.2003). The Port Authority's supplementary motion will be decided herein, see infra Part II.B.iv. [3] The three non-carrier airlines are Continental Airlines, Air Canada, and America West Airlines. I denied their motion for summary judgment without prejudice. (Order of May 5, 2003, In re September 11 Litigation, 21 MC 97.) [4] (Order of May 13, 2003, Greene-Wotton v. Fiduciary Trust Co. Int'l, 02 Civ. 7245.) The plaintiff's husband had worked for Fiduciary Trust/Franklin Templeton in Tower Two and was allegedly asked to remain at the office after Tower One had been struck. I held that the New York workers' compensation statute precluded plaintiff's negligence claims and that she had failed to state a claim for intentional infliction of emotional distress. [5] The Aviation Defendants who joined in the motion to dismiss include: AirTran Airlines, American Airlines, America West Airlines, AMR Corp., Argenbright Security, Atlantic Coast Airlines, Burn International Services Corp., Burns International Security Services Corp., Colgan Air, Continental Airlines, Delta Air Lines, Globe Aviation Services Corp., Globe Airport Security Services, Inc., Huntleigh USA Corp., Northwest Airlines, Pinkerton's Inc., and United Air Lines. [6] Defendant WTC Properties had answered the complaints in Friedlander v. Port Auth. of N.Y. and N.J., 02 Civ. 7171, Broghammer v. Port Auth. of N.Y. and N.J., 02 Civ. 7174, and Baksh v. Port Auth. of N.Y. and N.J., 02 Civ. 7224, prior to filing its motion, and thus moves under Fed.R.Civ.P. 12(c). The standards to dismiss under Fed.R.Civ.P. 12(b)(6) and 12(c) are identical. D'Alessio v. New York Stock Exch., Inc., 258 F.3d 93, 99 (2d Cir.2001). [7] While defense counsel raised the issue of proximate causation during the oral argument, the issue was not briefed. Counsel suggested, without legal citation, that the extraordinary nature of the attacks, involving intervening acts by the terrorists, should negate the duty air carriers owed to ground victims. [8] The most recent statistics show that 3,016 people died in the attacks at the World Trade Center and the Pentagon, and in the crash into the Shanksville, Pennsylvania field. Diana Henriques, Concern Growing as Families Bypass 9/11 Fund, N.Y. Times, Aug. 31, 2003 at A1. [9] A number of other defendants whose interests are aligned with the Port Authority and World Trade Center Properties LLC those who were named as defendants because they designed, constructed, operated, or maintained the World Trade Center buildings were voluntarily dismissed earlier in the litigation. [10] The individual ground victim cases are: Friedlander v. United Airlines, 02 Civ. 7171; Broghammer v. United Airlines, 02 Civ. 7174; Gabrielle v. United Airlines, 02 Civ. 7176; Regenhard v. American Airlines, 02 Civ. 7177; Ashton v. American Airlines, 02 Civ. 7179; Schroeder v. American Airlines, 02 Civ. 7185; Baksh v. American Airlines, 02 Civ. 7224; Salvo v. United Airlines, 02 Civ. 7267. Two actions alleging property damage have also been brought. The plaintiffs in Serko & Simon LLP v. Port Auth. of N.Y. and N.J., 02 Civ. 10052, rented space as a law firm in Tower One. The plaintiffs in Mayore Estates, LLC v. Port Auth. of N.Y. and N.J., 02 Civ. 7198, owned 22 Cortlandt Street. [11] One of the cases, Mayore Estates, LLC v. Port Auth. of N.Y. and N.J., 02 Civ. 7198, alleges that after the attacks, debris from the World Trade Center, including asbestos, caused extensive damage to the plaintiffs' nearby building at 22 Cortlandt Street. Because of plaintiff's bankruptcy, briefing was deferred but is now progressing. I will decide the motion to dismiss that case separately. [12] Plaintiffs concede that the WTC Defendants owed no duty to those in the Twin Towers who died upon impact of the planes. [13] Port Authority v. Allied Corp., 91 Civ. 0310(CLB) (S.D.N.Y.). In Allied, the Port Authority sued the original construction contractors of several buildings owned by the Port Authority, including the World Trade Center, for the use of asbestos. [14] I previously denied a motion brought by all airport operators, including the Port Authority, to dismiss plaintiff's claims. (Order, May 5, 2003.) I did not, however, address the Port Authority's supplemental motion to dismiss based on immunity from liability and thus do so here. [15] In addition, Count Four of the Master Complaint alleges that all defendants are liable to plaintiffs on the theory of res ipsa loquitur. However, since there are no specific allegations in this count against Boeing, and since the individual complaints also do not allege this theory against Boeing, I hold that Boeing is dismissed from this count, with leave to plaintiffs to replead if my assumptions are incorrect. [16] Plaintiffs also allege a general res ipsa loquitur count. However, I dismiss Boeing as a defendant from Count Four because there are no specific allegations against Boeing, and none of the individual complaints alleges this theory against Boeing. [17] There were no reported ground victims of flight 93. I therefore do not have to consider if they would likely fit the criterion of "intended user."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501219/	280 F.Supp.2d 325 (2003) UNITED STATES Of America, Plaintiff, v. J. Christopher ROBERTS, and Robert Burns, Defendants. No. CRIM.A. 02-94-SLR. United States District Court, D. Delaware. August 14, 2003. 326 Colm F. Connolly, United States Attorney, Richard Andrews, Assistant United States Attorney, Keith Rosen Assistant, United States Attorney, Edmund Falgowski, Assistant United States Attorney, United States Attorney's Office, District of Delaware, Wilmington, Delaware, for Plaintiff United States of America. Solomon L. Wisenberg, Carmen R. Kelley, Marc Rindner, Ross, Dixon & Bell, L.L.P., Washington, D.C. Eugene Maurer, Wilmington, Delaware, for Defendant J. Christopher Roberts. Marc S. Raspanti, Kevin E. Raphael, Miller, Alfano & Raspanti, P.C. Philadelphia, Pennsylvania, for Defendant Robert Burns. MEMORANDUM OPINION SUE L. ROBINSON, Chief Judge. I. INTRODUCTION A. The Indictment On July 24, 2002 a federal grand jury for the District of Delaware returned a five count indictment[1] against J. Christopher Roberts ("Roberts") and Robert Burns ("Burns") concerning their purported acts to wrongfully influence the land use business in New Castle County, Delaware during the fall of 1998. (D.I.1) The indictment charges that in October 1998, Roberts, a New Castle County ("N.C.C.") Councilman, contacted an intermediary[2] to inform Burns that "the blacktop job would cost $5,000." Burns worked for Mario Capano[3] ("Capano"), who had 327 an interest in a housing project in N.C.C. called Chaddwyck ("Chaddwyck"). It is alleged that the payment was to ensure that the recordation vote for the Chaddwyck development would be passed by N.C.C. Council without difficulty. Absent approval by N.C.C. Council, the Chaddwyck development could not be lawfully constructed. To that end, on or about October 23, 1998, Capano gave Burns an envelope containing $5,000 in cash, and Burns delivered the envelope to the intermediary. Roberts then, allegedly, obtained the envelope from the intermediary. Roberts is also charged with witness tampering based on his purported attempt to conceal the alleged machinations. (D.I.58) B. Pretrial Motions This straightforward transaction occurring over four years ago has spawned a barrage of pretrial motions challenging the integrity of the prosecution and the motives of the prosecutors involved. On November 25, 2002, Roberts filed the following: 1) motion to sever trial from Burns (D.I.21); 2) motion to dismiss indictment due to pre-indictment delay (D.I.22); 3) motion to dismiss based on vindictive prosecution (D.I.23); and 4) motion to dismiss count V of the indictment for failure to charge an offense (D.I.24, 74). On the same day, Burns moved to dismiss the indictment with prejudice based on a purported immunity from prosecution agreement and to sever the trial. (D.I.25, 30) The defendant United States of America ("government") filed opposition to the motions (D.I.31, 32, 33, 35, 37, 38) and defendants timely replied. (D.I.44, 46, 47, 48, 49, 53) The court conducted a status conference with the parties on February 4, 2003. (D.I.55) Over the government's objections, the court set an evidentiary hearing for February 20, 2003 regarding: 1) Burns' motion to dismiss based on an alleged immunity agreement; and 2) Roberts' motion to dismiss based on vindictive prosecution "given that the very nature of the charge requires a factual inquiry." (D.I.56) The remaining motions would be resolved without oral argument. The government filed a superseding indictment as to count V against Roberts on February 13, 2003. (D.I.58) The court granted the government's motion to dismiss count V of the original indictment on February 25, 2003. (D.I.63) Because severely inclement weather affected the ability of counsel to prepare for the proceeding (D.I.59), the evidentiary hearing was rescheduled to March 24, 2003. (D.I.60) On March 5, 2003 Roberts moved to compel discovery related to the evidentiary hearing. (D.I.66) By order dated March 17, 2003, the court granted in part and denied in part Roberts' motion: The court is cognizant that the timing of an indictment alone will not overcome the presumption of prosecutorial regularity on the ultimate issue of vindictive prosecution. However, for purposes of 328 discerning the truth through discovery, the court concludes that the objective facts of record "rise beyond the level of unsupported allegations" and warrant some limited discovery of the government's proof in this regard. (D.I.69) Essentially, the government was ordered to produce all documents related to the timing of the indictment as well as a list of witnesses to be called and their statements. (D.I.69) On the same day, the government moved to quash the subpoenas that Roberts had served on United States Attorney Colm F. Connolly ("Connolly"), Assistant United States Attorneys Edmond Falgowski ("Falgowski"), Robert J. Prettyman ("Prettyman") and Keith M. Rosen ("Rosen"). (D.I.68) Alternatively, the government sought a protective order to preclude Roberts from calling the government attorneys as witnesses absent a sufficient proffer that their testimony would be favorable and material to the defense. By order dated March 20, 2003, the court granted the government's motion for a protective order. Roberts was precluded from calling Connolly, Falgowski, Rosen or Prettyman "unless and until defendant provides the court with a satisfactory proffer as to how each of these witnesses will provide favorable and material testimony. See generally United States v. Cruz-Jiminez, 977 F.2d 95, 100 (3d Cir. 1992)." (D.I.75) On the same day, Ronald J. Williams ("Williams"), the Assistant Editor of the editorial page for The News Journal ("News Journal"), moved to quash a subpoena to testify served on him by Roberts. (D.I.71, 72, 73) The testimony sought related to Williams' October 15, 2002 article that quoted unidentified sources close to the Roberts' investigation who opined that the government would not have pursued the indictment if Roberts had retired from his N.C.C. Council seat instead of filing for reelection. (D.I. 73; DX 11) Against this procedural backdrop, the court conducted a two-day evidentiary hearing on March 24 and March 27, 2003. (D.I.88, 92, 83,) The court has jurisdiction pursuant to 18 U.S.C. § 3231. The following are the court's findings of fact pursuant to Federal Rules of Criminal Procedure 12(d). II. FINDINGS OF FACT 1. Lawrence Sullivan ("Sullivan") has been the Public Defender for the State of Delaware for 32 years. (D.I. 88 at 5-6) The Public Defender is appointed by the Governor and confirmed by the Delaware Senate. (Id.) Sullivan supervises 63 attorneys who handle 33,000 cases a year throughout the State. 2. In September 1998, Sullivan also maintained a small private law practice and performed legal work for Capano[4] and his corporation. (Id. at 7, 56) In connection with this legal work, Sullivan met and worked with Burns. (Id. at 62) 3. In September or October of 1998, Sullivan was contacted by Mel Slawik ("Slawik") on behalf of Capano. (Id. at 9) Slawik is the psycho-forensic evaluator for the Public Defender's Office. Prior to his hiring by the Public Defender Office, Slawik was the N.C.C. Executive "who had some problems with the law and spent some time in jail." (Id. at 9) Slawik contacted Sullivan on behalf of Capano and told him that Councilman Roberts had requested a $5,000 payment or assessment from Capano to ensure his support for the Chaddwyck project. (Id. at 10, 11, 57) Sullivan considered this wrong and extortionate. 329 (Id. at 11, 12) In exchange for this information, Capano demanded immunity from prosecution. (Id. at 12) 4. Because Sullivan had helped Tom Gordon ("Gordon") become elected as N.C.C. Executive on a platform of eliminating political corruption, he called Gordon to discuss Slawik's information. (Id. at 13, 11, 15) Sullivan and Gordon have a personal and professional relationship spanning 25 years from when Gordon was a N.C.C. police officer and then later N.C.C. chief of police. (Id. at 12-13, 60, 90) Sullivan considered Gordon the chief law enforcement officer for N.C.C. and trusted him. (Id. at 13, 37) Sullivan has also known the N.C.C. Chief Administrative Officer, Sherry Freebery ("Freebery"), for many years. (Id. at 13, 60) Despite a few phone call attempts, however, Sullivan was unable to reach Gordon. (Id. at 11) 5. Contemporaneous with Sullivan's phone call attempts, the recordation vote for the Chaddwyck project was placed on the calendar for review by N.C.C. Council. Because any delay could adversely affect financing of the Chaddwyck project, Capano authorized Burns to pay $5,000 to Roberts. (Id. at 57-58, 89) On October 22 or 23, 1998, Burns delivered an envelope containing $5,000 in cash to the intermediary to give to Roberts. (Id. at 89) On October 27, 1998, the N.C.C. Council approved the recordation plan for Chaddwyck. United States v. Capano, Criminal Action No. 00-81-SLR. (D.I.6) 6. Sullivan and Gordon finally spoke about a week later. (Id. at 14, 57) Sullivan conveyed Slawik's information and, at that point, Gordon agreed to provide immunity from prosecution to Capano. (Id. at 14) Sullivan then informed Slawik that Gordon "agreed that he would do something about it and that immunity would be no problem." (Id. at 15) Sullivan contacted neither federal agents nor prosecutors to discuss the information or the idea of immunity for Capano. (Id. at 43, 44) 7. On October 28, 1998, Sullivan, Gordon, Freebery, Capano and Slawik met at Sullivan's private law office. (Id. at 15, 16, 58, 93) Before the discussion started, Capano questioned whether he would be receiving immunity for his information. (Id. at 19, 60) Because Capano had received immunity from prosecution on unrelated issues in the past, he knew how immunity worked and understood that to speak without such a guarantee might have self-incriminating consequences. (Id. at 60, 61) Gordon and Freebery assured Capano that immunity would be granted. (Id. at 19, 20) By this time, Sullivan was acting as Capano's attorney. Neither Freebery nor Gordon told Sullivan that anyone else would have to be consulted for authorization on the issue of immunity. (Id. at 21) There was no mention of the federal government or federal prosecution. (Id. at 21) Based on Sullivan's extensive dealings with immunity in criminal cases, it was not unusual for the federal government to be absent at this point in the investigation. (Id. at 22) After the immunity was confirmed, Capano informed Gordon and Freebery about the $5,000 assessment solicited by Roberts. (Id. at 64, 18, 22, 61) 8. At this point, it became clear that Capano never actually spoke with Roberts. (Id. at 23, 29) Instead, Capano's employee, Burns,[5] had all of the direct conversations with Roberts. (Id. at 23, 62) Capano indicated that Burns was an integral part of the deal and that he, too, needed immunity from prosecution. (Id. at 65) The group decided to contact Burns and invite him to the meeting. (Id. at 24, 29) Reaching 330 Burns at a restaurant, Capano told him to report to Sullivan's law office right away. (Id at 24, 65, 66, 91) 9. When Burns arrived, it was apparent from his facial expression that he was unaware of the reason for his summons to Sullivan's law office. (Id. at 24) Capano informed Burns that they would be working with the government to solve the assessment problem. (Id. at 25) Burns became upset and Capano tried to calm him. (Id. at 25, 70, 94) Although Capano explained that an immunity agreement had been reached, Burns remained uncooperative and denied knowledge of the $5,000 assessment. (Id. at 25, 95) Freebery advised Burns that in exchange for a truthful recitation of the events, he would be given immunity from prosecution. (Id. at 95) 10. Capano and Burns were then left alone. (Id. at 26, 69) During their private conversation, Burns asked Capano to care for his family, especially his sick wife, if he went to jail. (Id. at 70) While Capano agreed to help, he assured Burns this would be unnecessary as immunity was guaranteed. (Id. at 70) At this point, Sullivan also began representing Burns. (Id. at 71, 96) After a few minutes of reassurances, Burns was ready to cooperate. (Id. at 27) Sullivan would have forbidden either of his clients from speaking further if he had doubted that immunity from prosecution would be honored. (Id. at 28) 11. Burns' version of the story was the same as Capano's, except richer in detail. (Id. at 29) Burns indicated that the $5,000 assessment was for Roberts' help to move the Chaddwyck project through the N.C.C. Council's recordation vote. (Id. at 35) Roberts had been shepherding the Chaddwyck project before the N.C.C. Council. Roberts and Burns had worked together on Chaddwyck and had a favorable professional relationship. (Id. at 62, 88) 12. At the time the money was paid, Roberts was seeking reelection for his N.C.C. Council seat. (Id. at 73, 88) 13. At the end of the three-hour meeting, there was no indication that the immunity promised was discontinued or that additional authorization (e.g., from the federal government) was necessary. (Id. at 22, 29, 30, 31, 36) A formal immunity document was not prepared. (Id. at 33) The group did consider whether to arrest Roberts immediately. (Id. at 83) The election was scheduled for November 3, 1998. (Id. at 73) The group decided instead to formulate a "sting operation" to gather more incriminating evidence against Roberts. (Id. at 30, 100) 14. The next day, October 29, 1998, Freebery and two high ranking members of the N.C.C. police arrived at Capano's office building to implement a sting operation against Roberts. (Id. at 30, 73, 74, 76, 84, 101) The plan was to stage and tape record a telephone conversation initiated by Burns to Roberts in order to obtain incriminating evidence. (Id. at 30, 74, 100) After the police recording equipment failed, Burns allowed them to use his phone recording equipment because he wanted to help and believed he was protected by immunity. (Id. at 101, 105) The police gave Burns a script to follow in an effort to coax Roberts into discussing the $5,000 assessment. (Id. at 102) Pursuant to police guidance, Burns called Roberts and two telephone calls were recorded.[6] 15. Also on October 29, 1998, N.C.C. police placed a courtesy call to the Federal Bureau of Investigation ("FBI") to apprize them of the Burns/Capano allegations. (D.I. 92 at 63) N.C.C. police told the FBI of their plan to tape record a phone conversation 331 between Roberts and Burns, in hopes of obtaining incriminating evidence. (Id. at 68) The FBI neither authorized nor directed the sting operation. (Id. at 69; DX 15) Jeffrey Troy, Supervisor and Senior Resident Agent of the FBI ("SSRA Troy"), Acting United States Attorney ("USA") Richard Andrews and Assistant United States Attorney ("AUSA") Prettyman decided to defer an active investigation until after the November 3, 1998 state elections.[7] (Id. at 63; DX 15) This conclusion was predicated on the government's reluctance to commence anything that might interfere with or influence the political process.[8] (Id. at 66-68) These federal officers did not question the nature of Burns' cooperation, although clearly aware of the fact of Burns' cooperation. 16. Major James Hedrick of the N.C.C. police met with representatives of the United States Attorney's Office ("USAO") and the FBI to discuss the allegations on November 3, 1998. They agreed the FBI would take over the investigation and all of the information and evidence collected by N.C.C. police was turned over to the FBI. (D.I.98, Ex. A) Consequently, N.C.C. police closed its independent investigation. 17. A few days later, Gordon called Sullivan to advise that Freebery had contacted the USAO about the "sting operation." (D.I. 88 at 35) Sullivan was astonished to learn that Freebery was told: "Mario Capano will get no more deals from this office."[9] (Id. at 35-36) The government's refusal to recognize the immunity from prosecution promised by N.C.C. officials was contrary to Sullivan's experience. The deference given and informality associated with immunity agreements reached by local and federal law enforcement in the past was not honored by the government in this instance. (Id. at 46-47) 18. On November 17, 1998, after Roberts had been re-elected to N.C.C. Council, the FBI opened an official investigation into the allegations. (Id. at 60; DX 15) SSRA Troy supervised the investigation. (Id. at 59, 60) Troy's 16 years of experience with the FBI have been primarily in the area of white collar crime. 19. AUSA Prettyman was assigned to lead the prosecution and investigation in the USAO. At that time, 1998, Connolly also was an AUSA. (D.I. 83 at 121-122) Although Connolly did not work on the case, he was aware of the investigation. 20. In 1999, Keith Rosen became an AUSA and was assigned to the case to assist Prettyman. (D.I. 83 at 77, 19) Together, 332 the two prepared one formal prosecution memorandum. (D.I. 83 at 116) 21. In February 2001, SSRA Troy advised the USAO that Capano was ready to be charged. (D.I. 92 at 74) On February 13, 2001 Capano waived indictment and pled guilty to conspiracy to commit bribery. (Id. at 73) 22. In June 2001, SSRA Troy informed the USAO that the case against Burns was strong and that charges could be filed. (D.I. 92 at 73) About one month later, Troy advised the prosecutors that the Roberts case was ready for indictment. (Id. at 74) There were, nonetheless, disagreements in the USAO over the strength of the case. (Id. at 78) 23. The bulk of the investigative work was completed by August 2001, when the government was prepared to proceed with an indictment. (D.I. 83 at 101) Virtually no documentary evidence was produced between August 2001 and the day of the indictment in July 2002. (Id. at 101, 103; see GX 13) 24. On July 24, 2001, AUSA Prettyman was authorized to seek an indictment against Roberts. (D.I. 92 at 78-80; DX 13) The statute of limitations on the charges is five years and would expire in October 2003. (D.I. 83 at 111) 25. By August 2001, the USAO and Burns had reached a plea agreement. (D.I. 92 at 86) Rosen was prepared to present an indictment against Roberts to the grand jury. (D.I. 83 at 77-78; D.I. 92 at 78, 80) Shortly before the proceeding, however, Rosen was notified that there were problems with the Burns plea agreement that had to be addressed before proceeding with indictment. Subsequently, the plea negotiations broke down and the plea collapsed. Without the cooperation of the central witness to the alleged bribe, prosecutors determined to reevaluate the entire case and investigation. (Id. at 86, 78-80) The grand jury presentation of the Roberts indictment was not made in 2001 and the decision of whether to indict at all became open-ended. (Id. at 79; D.I. 83 at 40; D.I. 92 at 86) 26. After the Burns plea fell through, the focus of the investigation became how to proceed to indict Roberts without Burns. (D.I. 83 at 101) "[I]t was a question of analyzing the proof that [the government] did have as opposed to obtaining new proof." (Id. at 102) Although Burns was no longer cooperating, the government had already secured the assistance of two other witnesses, Capano and Domino. (Id. at 103) Nevertheless, the USAO did not move the prosecution forward at that time based on the evidence it had accumulated to date. (Id. at 81, 82, 106) 27. On September 4, 2001, Connolly was appointed USA for the District of Delaware. (D.I. 83 at 80, 121) As he was preparing to assume the USA position, Connolly knew that the case had been pending in the office for almost three years. Because it was such a high profile, well-publicized case and one of the more significant cases in the USAO, Connolly had hoped it would be resolved before he was appointed. (Id. at 122-123, 150) 28. On September 11, 2001, Rosen and Connolly spoke for the first time about the investigation as both stayed late in the office to monitor the tragic events of the day. (D.I. 83 at 81, 107) This was the first of repeated discussions about the case that they had between the fall of 2001 and the beginning of 2002. (Id. at 81, 106) 29. Although the FBI's focus post-September 11 became national security (D.I. 88 at 89), its investigation of the case at bar remained open until July 24, 2002, the day Roberts and Burns were indicted. (D.I. 92 at 85) 333 30. In November 2001, the USAO launched a major firearms initiative. (D.I. 83 at 82) Connolly assigned primary responsibility for the initiative to AUSA Prettyman. (Id. at 82) 31. In the early part of 2002 and after three years of work on the investigation, Prettyman was removed from the case. Connolly replaced Prettyman with AUSA Falgowski as the lead prosecutor on the case. This was the only one of Prettyman's cases transferred to Falgowski. (D.I. 83 at 112, 114) Rosen continued his work on the case. Despite appointing a new lead prosecutor, Connolly became actively involved in the investigation. (Id. at 125; GX 10) In February 2002, Connolly conducted part of an interview with Capano.[10] (Id. at 151) According to Connolly: The purpose of that meeting in my mind was I thought if I was going to have to ultimately make the decision whether to authorize the indictment, given Mr. Capano's role in the case, I wanted to see first-hand how he would present himself as a witness. That was why I thought it was important to be present at that meeting. (Id. at 151) Connolly also interviewed Capano's banker. (Id. at 125) 32. When AUSA Falgowski took over the case he was told the investigation was ongoing. (D.I. 92 at 102; D.I. 83 at 31, 33) As a prosecutor in the USAO for eighteen years, Falgowski knew that there were disagreements over the merits of the case among prosecutors and case agents. (Id. at 41) At the time of the reassignment, Falgowski had about 50 other cases at unidentified stages of prosecution. (Id. at 103) The file given to Falgowski was over 10,000 pages long and contained about 100 interviews. (Id. at 103-104) 33. Connolly occasionally inquired about Falgowski's progress, but did not impose any deadlines for a decision. (Id. at 37) Falgowksi did not review every page of the 10,000 documents in the file. (Id. at 33) Falgowski, however, attended the interviews with Capano and his banker. (Id. at 36) 34. Patrick Turner was Roberts' legislative aide from December 2001 to September 2002. (D.I. 92 at 41) Turner's responsibilities included: scheduling; addressing constituent concerns; arranging meetings; reviewing legislative drafts from legal departments and legislation prepared by other N.C.C. Council members. (Id. at 42) 35. In May 2002, Turner was informed that Roberts intended to seek reelection as a Democrat in the primary election for N.C.C. Council. (Id. at 42; DX 1) 36. On June 1, 2002, Roberts participated in Separation Day, an annual celebration and parade in N.C.C. (Id. at 43; DX 2) Although not designated as a political event, the "majority of the people who are running for reelection will attend the [Separation Day] parade if they are currently in office." (Id. at 43) Generally, politicians who are not seeking reelection do not attend the event. (Id. at 46) While candidate challengers are not allowed to have an official role in the parade, they can distribute literature along the side lines during the parade. (Id. at 46) The Republican candidate challenging Roberts, Jim Weldon, was present at the parade. 37. Also attending were 50 60 Roberts supporters and volunteers. (Id. at 45; DX 6) They were wearing "Chris Roberts County Council" t-shirts with "Paid for By 334 People for Roberts." Inflated balloons, bumper stickers and push cards were distributed by the Roberts supporters. 38. About a month later, Roberts participated in a similar parade in Delaware City. (Id. at 47; DX 3) Again, about 50 60 volunteers were present and their activities and give-aways were similar to those on Separation Day. On June 24, 2002, Roberts held an official fund-raiser attended by about 80 people. (Id. at 43, 49; DX 4) There was no effort to conceal his reelection campaign; to the contrary, his supporters were trying to "spread the word." (Id. at 57) 39. Sometime during the early weeks of July 2002, AUSA Falgowski and SSRA Troy had a telephone conversation about the case. (D.I. 92 at 76) Falgowski told Troy that the indictment would have to be presented to the grand jury before the election filing deadline, in order to avoid influencing any part of the election.[11] (Id. at 76) It was the collective decision of the USAO that the indictment would have to be presented as quickly as possible in order to beat the deadline.[12] (D.I. 92 at 85, 76, 80, 81, 85) 40. SSRA Troy did not agree with the decision to time the indictment to occur before the election deadline because the election should not have been considered at all. (Id. at 77) Instead, the merits of the case had mandated that it be presented to a grand jury long before Falgowski's July 2002 decision. (Id. at 77) Troy was unaware that Roberts was actively campaigning for reelection in June 2002. (D.I. 92 at 75-76) 41. By the time Roberts filed officially for reelection on July 23, 2002, he had been informally running a campaign for approximately seven weeks. (Id. at 52) Roberts purposely filed so close to the primary deadline in order to evaluate the field of opposing candidates. (Id. at 52) When Roberts filed for reelection on July 23, there was no opposing candidate from the Democratic Party. After Roberts was indicted, another Democratic candidate joined the primary race. (Id. at 52, 56) 42. Wilmington is a close knit political community, with the many state jobs being politically connected. (Id. at 51) Because the state, county and city office buildings are located next to each other, there is much interaction among employees. 43. By July 2002, AUSA Falgowski had expended about 40 hours reviewing the file.[13] (Id. at 104) On July 16, 2002, Falgowski recommended to Connolly that the case be presented for indictment. (Id. at 105) Later that day Connolly, Andrews, Falgowski, Prettyman and Rosen had a impromptu meeting and decided to seek an indictment. (Id. at 106) During their exchange, 335 not all agreed on proceeding with an indictment.[14] Nonetheless, a September date was selected for presentment to accommodate Falgowski's summer vacation schedule. The following morning, however, Connolly reversed his decision and decided to seek an indictment expeditiously. (Id. at 107) He explained that he changed his mind when he suddenly realized that it was an even number year and, therefore, an election year. (Id. at 128, 107) Waiting until September was no longer acceptable to Connolly because the indictment would be returned after the September primary election and that would be unfair to the political process.[15] (Id. at 87) 44. The decision to indict was made a little over a week before the July 24, 2002 filing deadline. (Id. at 85) The prosecutors involved testified that they knew little about the pending election or the candidates running. Specifically, Falgowski, a Pennsylvania resident, relied on The News Journal as his source of information about Delaware. (Id. at 111) Falgowski acknowledged that federal prosecutors must be aware of anything that might be of assistance to a case. (Id. at 63) Although he had seen political advertisements for other candidates, Falgowski did not realize it was an election year until Connolly brought it to his attention on July 17. (Id. at 4) Falgowski, however, did realize that the N.C.C. Council is a four-year term and that Roberts had run in 1998. (Id. at 63) Nonetheless, Falgowski did not conduct any inquiries into Roberts' reelection status. Had Falgowski realized earlier that it was an election year, he would have requested more time to work on the case so he could "expedite" his decision to prosecute. (Id. at 61-62) 45. The other prosecutor on the case, Rosen, likewise knew little about the status of Delaware's upcoming election. Rosen also is a Pennsylvania resident who does not follow Delaware politics. (Id. at 92) Despite the years expended on the investigation, Rosen did not know that there was a N.C.C. election for Roberts' seat in 2002. (Id. at 93) Although the crux of the case was an alleged bribe to help Roberts' reelection campaign in 1998, Rosen did not consider that Roberts would seek election again. Rosen was aware that the Department of Justice had an informal policy prohibiting federal prosecutors from doing anything that might affect the outcome of elections, including indicting public office holders prior to an election.[16] (Id. at 94) 46. Connolly knew that Roberts ran for reelection in 1998 because the alleged crime involved money for that campaign. Nevertheless, he testified that he did not focus on this fact when considering indictment until the evening of July 16, 2002. (Id. at 158) 47. Because Connolly and Rosen were uncertain about Roberts' reelection status on July 17, 2002, each decided to investigate on the Internet. (Id. at 130, 87, 130) 336 After searching for about 15 minutes, Rosen was unable to determine if Roberts were running. (Id. at 95, 88) Although Connolly's search yielded one web page that listed N.C.C. Council positions, he did not see Roberts' name listed. (Id. at 115, 131) Consequently, Connolly "concluded he was not a candidate at that point, although obviously I couldn't have known whether or not he had filed and it wasn't reflected on the web page." (Id. at 131) Neither Connolly nor Rosen called the N.C.C. Council to determine Roberts' filing status. (Id. at 140) Connolly did not investigate whether Roberts intended to file for reelection because he "didn't think about it." (Id. at 136, 138) 48. The FBI was not asked to investigate whether Roberts was campaigning for reelection nor to check on the status of his candidacy. (D.I. 92 at 87) 49. The decision to immediately indict created a scheduling problem for the USAO. The next grand jury would convene in less than a week, on July 23, 2002. Because all of the time slots were already taken for other cases, there was no time available to present the instant case. (Id. at 89, 91) Connolly decided that the grand jury panel would be asked to report again the very next day, July 24, 2002, for a special session to consider the case. (Id. at 108; GX 1) 50. On July 24, 2002, the grand jury convened for a special session and heard about four and one-half hours of testimony. Connolly was in the grand jury room when the case was presented. 51. George Casson, N.C.C. Superintendent of Sewer Maintenance, has been employed by N.C.C. for over 28 years. (Id. at 176) Jim Weldin, the Republican challenger for Roberts' N.C.C. Council seat, was Casson's boss at the Office of Community Governing. (Id. at 177) They were friends. (Id. at 177) About one to two weeks before the filing deadline in 2002, Casson met with Weldin. (Id. at 178) In response to Casson's questions about the campaign, Weldin indicated that the campaign was going well and that Roberts was going to be indicted very soon, leaving very little time for the Democratic Party to field another viable candidate. (Id. at 178) III. DISCUSSION A. Immunity Agreement Defendant Burns moves to dismiss the indictment with prejudice based on the promise of immunity extended by the two highest ranking N.C.C. officials, Gordon and Freebery, in exchange for his information about an alleged assessment demanded by defendant Roberts. (D.I.25, 98) The information provided by Burns formed the substance of the indictment filed by the government on July 24, 2002. (D.I.1) Although the government and Burns did not have an immunity agreement in place, Burns asserts that the doctrine of equitable immunity should be applied to enforce the agreement made by N.C.C. officials. Generally, an immunity from prosecution agreement between a defendant and state actors is not binding on the federal government, unless the federal government has knowledge of and consents to the agreement. United States v. Eliason, 3 F.3d 1149, 1152 (7th Cir.1993); United States v. Roberson, 872 F.2d 597 (5th Cir.1989). It is undisputed that federal prosecutors were absent from the October 28, 1998 meeting with Capano, Burns, Sullivan, Freebery, Gordon and Slawik. Notwithstanding this absence, however, the court concludes that the government knew or should have known that Burns was a cooperating witness by November 1998. 337 Specifically, in response to the court's discovery order, the government produced two documents that demonstrate the FBI had knowledge of the Burns/Capano allegations soon after they surfaced. The court credits SSRA Troy's testimony that the FBI was informed of the allegations on October 29, 1998, the day Burns telephoned Roberts as part of the N.C.C. police sting operation. (D.I. 92 at 68-69) Although the FBI was aware that Burns was going to make the call, the sting operation was neither authorized nor approved by the FBI. (Id. at 69) A second memo dated November 17, 1998 is the request from the Wilmington FBI to open a file to investigate the Burns/Capano allegations. (D.I. 98; DX 15) Having satisfied the knowledge prong of the inquiry, the issue of consent remains. There is no indication of record that the federal government expressly consented to the grant of immunity given to Burns by Gordon and Freebery or that Gordon and Freebery had the authority to bind the federal government absent its express consent. See United States v. Fuzer, 18 F.3d 517, 521 (7th Cir.1994); United States v. Roberson, 872 F.2d 597 (5th Cir.1989) (immunity from state prosecution agreement was not binding in federal prosecution because federal prosecutors never made an agreement with defendant); United States v. D'Apice, 664 F.2d 75, 78 (5th Cir.1981) (a federal prosecutor from one district cannot bind a federal prosecutor from a different district); United States v. Cooke, 650 F.Supp. 991, 994 (D.Md.1987) (immunity agreement enforced against federal government after court found it was a joint investigation between state and federal authorities). Therefore, the immunity agreement fails unless Burns can demonstrate that the facts of record compel application of the doctrine of equitable immunity. See United States v. Goodrich, 493 F.2d 390 (9th Cir.1974) (informal promises of immunity can be enforced by the courts when the circumstances are appropriate). In Rowe v. Griffin, 676 F.2d 524 (11th Cir.1982), the Eleventh Circuit Court of Appeals concluded that, as a matter of fairness, the government should be compelled to honor immunity agreements if the following criteria were satisfied: 1) an agreement was made; 2) the defendant has performed on his side; and 3) the subsequent prosecution is directly related to offenses in which the defendant, pursuant to the agreement, either assisted with the investigation or testified for the government. Id. at 527-28. Applying a contractual analysis, the Eleventh Circuit determined that "when a promise of immunity induces a defendant to cooperate with the government to his detriment, due process requires that the prosecutor's promise be fulfilled." Id. at 524, 528. Consistent with the analytical framework recited above, in this case the record conclusively demonstrates that a promise of immunity induced Burns to cooperate to his detriment in a criminal investigation directly related to the case at bar. Indeed, when the FBI agreed to take over the N.C.C. investigation in November 1998, it would not have been unreasonable to presume that a promise of immunity made in order to initiate an investigation would be honored by those who continued to benefit from the promise. Nevertheless, because the promise was made by N.C.C. officials, the question is whether the equities of record are so compelling as to justify the imposition of the immunity agreement on the federal officials who are prosecuting the case. 338 In this regard,[17] the Third Circuit Court of Appeals has recognized in principle a court's "inherent remedial power" to grant immunity, but has limited the exercise of that power to circumstances where "the government's decisions were made with the deliberate intention of distorting the judicial fact finding process." United States v. Herman, 589 F.2d 1191, 1203-1204 (3d Cir.1978). The record does not evidence such an intent. The fact that the local and federal law enforcement officials who investigated this case did so without the mutual trust or respect citizens might expect speaks volumes about local politics, but constitutes insufficient grounds for the extraordinary relief sought. B. Vindictive Prosecution The government's efforts to carry its burden of proof rests almost entirely upon testimonial evidence of its AUSAs and the USA himself. As a consequence, the demeanor and credibility of these witnesses was particularly significant. The court, therefore, has been careful to observe all aspects of each witness' testimony and assess how well that testimony met with the government's overall explanation of the reasons the indictment was timed as it was. Prosecutors are afforded broad discretion in deciding whom to prosecute. Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). Courts presume prosecutors have properly exercised their responsibilities unless there is clear evidence to the contrary. See United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982); Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). "So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision of whether or not to prosecute and what charge to file or bring before a grand jury, generally rests entirely in his discretion." United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). The Due Process Clause of the Fifth Amendment "protects a person from being punished for exercising a protected statutory or constitutional right."[18]United States v. Goodwin, 457 U.S. at 372, 457 U.S. 368. The Supreme Court has held that "while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right." Goodwin, 457 U.S. at 372, 102 S.Ct. 2485; Blackledge v. Perry, 417 U.S. 21, 28-9, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). To punish a defendant because he has done what the law permits is a due process violation. Bordenkircher v. Hayes, 434 U.S. at 363, 98 S.Ct. 663; United States v. Andrews, 633 F.2d 449, 457 (6th Cir.1980); U.S. v. Paramo, 998 F.2d 1212, 1220 (3d Cir.1993). As discussed, the court already determined that Roberts demonstrated a realistic likelihood of vindictiveness. The 339 government now bears the burden of introducing legitimate, objective reasons for its conduct. See United States v. Esposito, 968 F.2d 300, 305 (3d Cir.1992); United States v. Paramo, 998 F.2d 1212, 1220 (3d Cir.1993); United States v. Wilson, 262 F.3d 305, 315 (4th Cir.2001); United States v. Hooton, 662 F.2d 628, 634 (9th Cir.1981). If the government presents legitimate reasons, the defendant must then demonstrate that the government's justification is pretextual and that actual vindictiveness has occurred. See United States v. Contreras, 108 F.3d 1255, 1263 (10th Cir.1997); Paramo, 998 F.2d at 1221. The government presented the following as its objective reasons for timing the indictment the day after Roberts filed for reelection: 1) the Burns plea agreement fell through in August 2001; 2) Connolly was appointed USA in September 2001; 3) the events of September 11, 2001 diverted FBI resources from the case; and 4) USA Connolly assigned the case to a new lead prosecutor in February 2002. Defendants[19] contend that the above reasons are pretextual and were fabricated only after the court compelled discovery and invoked the presumption of vindictiveness against the government. Defendants recite to no other evidence, however, as proof of actual vindictiveness. Contrary to the representations made by the USAO initially (D.I.35), the record clearly demonstrates that the indictment was timed with the 2002 election in mind. The court nevertheless concludes that the timing was not vindictive, i.e., "(1) the prosecutor harbored genuine animus toward the defendant ... and (2) he would not have been prosecuted except for the animus." United States v. Koh, 199 F.3d 632, 640 (2d Cir.1999). The evidence instead suggests that this straightforward investigation[20] was poorly managed, supplying the groundwork for the suspicion that bad motive lay behind the timing of the ultimate charges. The fact that the lead prosecutors in this case operated in a vacuum, neither living in Delaware nor following Delaware politics or events, further impugned the integrity of the investigation when it was finally viewed in the context of real people and real events. The court does not believe that poor judgment on the part of the prosecutors is equivalent to vindictive prosecution or otherwise provides sufficient reason to dismiss the indictment at bar. IV. CONCLUSION For the reasons stated, the motion to dismiss based on an immunity agreement and the motion to dismiss based on vindictive prosecution are denied. An order consistent with this memorandum opinion shall issue. NOTES [1] Roberts was charged with violating 18 U.S.C. §§ 1951, 1952; 18 U.S.C. § 666(a)(1)(B), (b) & (d); 18 U.S.C. § 1512(b)(3). (D.I.1) Burns was charged with conspiracy to commit bribery in violation of 18 U.S.C. § 371. (D.I.1) A superseding indictment as to Count V against Roberts was returned on February 13, 2003. (D.I.58) The superseding indictment is subject to a motion to dismiss. (D.I.74) [2] Although unidentified by the indictment, the court understands that Tony Domino is the intermediary referenced. (D.I. 88 at 88); United States v. Capano, Criminal Action No. 00-81-SLR. (D.I.10) The record indicates that Domino signed an immunity agreement and made a proffer with the United States Attorney's Office for the District of Delaware in February 2000. (D.I. 92 at 72) [3] While identified as a "separately charged co-conspirator" (D.I. 1 ¶ 9), a one count felony information was filed against Capano on December 8, 2000. United States v. Capano, Criminal Action No. 00-81-SLR. (D.I.1) On February 13, 2001, Capano waived indictment and entered a plea of guilty to conspiracy to commit bribery in violation of 18 U.S.C. § 666(a)(2), (b) and (d) and 18 U.S.C. § 371. Capano was released on his own recognizance pending sentencing. (Id.; D.I. 7) As part of the plea agreement, the government agreed to not prosecute Capano for any other "white collar" federal criminal offenses that were the subject of investigations known to the United States Attorney's Office for the District of Delaware. (Id. at 6) If Capano satisfactorily complies with the terms of the plea agreement, the government has agreed to file a downward departure motion pursuant to U.S.S.G. § 5K1.1, 28 U.S.C. § 994(n), and 18 U.S.C. § 3553. (Id.) During his change of plea hearing, Capano identified Roberts as the N.C.C. Councilman he attempted to bribe. During this plea colloquy, Capano also averred that the payment was to assist Roberts' reelection campaign. (D.I. 92 at 98) By order dated August 19, 2002, the court granted the government's motion to indefinitely continue Capano's sentencing hearing. (Id., D.I. 18) [4] Capano is the owner of numerous companies that develop properties in Delaware, specifically New Castle County. (Id. at 53) Capano had a financial interest in Chaddwyck. [5] Burns has worked for Capano for over ten years. (Id. at 54) [6] The content of their conversation is irrelevant for purposes of the immunity agreement. [7] The text of the file memorandum reads: "Following discussions with Acting United States Attorney Richard Andrews, AUSA Robert Prettyman and SSRA Jeffrey Troy, it was decided that no active investigation should be conducted until after the state elections scheduled for November 3, 1998. Roberts, a candidate for reelection as N.C.C. Councilman in his district, was reelected in that election." (D.I. 98; DX 15) [8] As explained by Troy: The decision at that point in time was that it was very early on, we had just received information. Again, it's early on in the investigation. The decision was, we didn't want to be letting this information coming out and have it have an impact on the election at that time. We just wanted to go forth with our investigation and see what we had. Well, you could have an opponent of an elected official come forth and making a false allegation about that person, and then they could try and get the FBI to be involved in some way. If that got out, they could possibly use that to impact an election. (D.I. 92 at 66; 67-68) [9] Ironically, Capano did get another deal from the USAO, while his employee (Burns) is now facing federal charges in this case and yet another. See United States v. Burns, C.A. No. 03-68-SLR. [10] The interview of Capano was conducted almost a year after Capano pleaded guilty and the government granted him immunity. [11] They talked "about trying to get the indictment done prior to the filing deadline for the campaign for people to announce if they were running or not." (D.I. 92 at 76) [12] The government devoted most of its post-hearing briefing, not to the merits of the pending motions, but to the merits of the court's March 24, 2003 procedural ruling (D.I.76), whereby the government was called upon to rebut SSRA Troy's credible testimony that the indictment was timed with the election in mind, a proposition denied by the government in its initial papers. (D.I.35) Specifically, the government's memorandum in opposition to Roberts' motion to dismiss left the impression that the timing of the indictment as related to Roberts' filing for reelection was a "coincidence." (D.I. 35, at 6-7 & n. 1; D.I. 83 at 56) Despite the nature of the charges at issue and the inconsistent evidence of record, the USAO apparently maintains that it should be immune from the light of public scrutiny. The court obviously disagrees, under the circumstances at bar. [13] Forty hours is the equivalent of a standard work week or less than two hours per week for the six months Falgowski had the file. [14] The breakdown of the prosecutors' opinions was presented to the court, in camera, and provides nothing more relevant than described above. [15] Connolly was worried that it was possible that Mr. Roberts could be running for reelection and could be the declared Democratic candidate and then we would come along and indict him after the primary date, and I understood that that could obviously harm his chances for re-election, if he were the candidate. And I was concerned that it would look like a very political partisan act, and thought it was an untenable situation. (Id. at 128) [16] According to AUSA Rosen: "[T]here is consideration paid to that among the people in Washington in the Public Corruption Section" of the Department of Justice. (Id. at 95) [17] Albeit in the context of granting immunity to a defense witness, not a defendant. [18] The specific legal right at issue is Roberts' candidacy for public office. See Flinn v. Gordon, 775 F.2d 1551, 1554 (11th Cir.1985). The government's opposition brief filed after the evidentiary hearing contends that the right to run for public office is not a protected right. In fact, the government devotes a large part of its brief (D.I.113) to attacking the underpinnings of defendant's argument. Although Roberts raised the vindictive prosecution argument in November 2002, and the government filed opposition thereto, the most recent opposition brief filed on May 23, 2003 contains arguments that for the first time challenge defendant's right to even assert a vindictive prosecution claim. [19] Burns' motion to join the motion for vindictive prosecution was granted by the court on May 22, 2003. (D.I.110) [20] Exploring a single allegation involving a single solicitation of a single $5,000 bribe by a single public official from a single citizen, each working through a single intermediary.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501645/	270 F. Supp. 2d 1060 (2003) UNITED STATES of America, Plaintiff, v. Angela JOHNSON, Defendant. No. CR 00-3034-MWB. United States District Court, N.D. Iowa, Central Division. July 11, 2003. 1061 Patrick J Berrigan, Watson & Dameron, LLP, Kansas City, MO, Thomas P Frerichs, Frerichs Law Office PC, Waterloo, IA, Philip A MacTaggart, Federal Public Defender, Davenport, IA, Robert R Rigg, Drake University Legal Clinic, Des Moines, IA, Dean A Stowers, Rosenberg, Stowers & Morse, Des Moines, IA, Alfred E Willett, Terpstra, Epping & Willett, Cedar Rapids, IA, for Plaintiff. Patrick J Reinert, US Attorney's Office, Cedar Rapids, IA, Charles J Williams, US Attorney's Office, Cedar Rapids, IA, for Defendant. MEMORANDUM OPINION AND ORDER REGARDING DEFEDANT'S MOTION TO RECONSIDER DENIAL OF MOTION TO DISMISS COUNTS 1 THROUGH 5 ON STATUTE OF LIMITATIONS GROUNDS BENNETT, Chief Judge. This casewhich involves the first of two separate indictments against defendant Angela Johnson charging her with crimes arising from her alleged involvement in the murders of five witnesses comes before the court on the defendant's May 21, 2003, Motion To Reconsider Denial Of Motion To Dismiss Counts 1 Through 5 On Statute Of Limitations Grounds (docket no. 471). The government has not deigned to respond to Johnson's motion to reconsider and the deadline for a timely response has long since passed. Therefore, the motion to reconsider is ripe for the court's consideration. Johnson's motion to reconsider challenges a part of this court's December 31, 2002, order published at 239 F. Supp. 2d 897 (N.D.Iowa 2002). The pertinent part of the court's order addressed Johnson's contention that the charges in Counts 1 through 5, which charge murder in violation of the witness-tampering statute, 18 U.S.C. § 1512(a), are not timely under 18 U.S.C. § 3281, even though that statute provides that "[a]n indictment for any offense punishable by death may be found at any time without limitation." Instead, Johnson contended that Counts 1 through 5 of the indictment are untimely under the five-year statute of limitations in 18 U.S.C. § 3282 for "non-capital offenses," because, at the time that she allegedly committed those offenses, in July and November of 1993, the federal death penalty had been declared unconstitutional. United States v. Johnson, 239 F. Supp. 2d 897, 903-05 (N.D.Iowa 2002). The court noted in its ruling that the government had withdrawn its notice of intent to seek the death penalty for violations of the witness-tampering statute. Id. at 901. However, relying primarily on decisions of the Eighth Circuit Court of AppealsUnited States v. Edwards, 159 F.3d 1117 (8th Cir.1998), cert. denied, 528 U.S. 825, 120 S. Ct. 309, 310, 75 (1999), and United States v. Emery, 186 F.3d 921 (8th Cir.1999)this court held that "Johnson has been charged in Counts 1 through 5 with murders that are `punishable by death,' whether or not a constitutionally effective death penalty was available, on procedural grounds, at the time that she allegedly committed the offenses." Johnson, 239 F.Supp.2d at 905 (emphasis in the original). Consequently, this court denied Johnson's motion to dismiss as to those counts. Id. 1062 In her motion to reconsider, Johnson acknowledges that this court's ruling was based on Eighth Circuit precedent, but she now contends that "this precedent is no longer good law in light of Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) and Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S. Ct. 732, 154 L. Ed. 2d 588 (2003)." Defendant's Motion To Reconsider Denial Of Motion To Dismiss Counts 1 Through 5 On Statute Of Limitations Grounds, ¶3. Johnson's argument runs as follows: These cases [Ring and Sattazahn] recognize that aggravating factors that distinguish capital murder from non-capital murder are elements of the capital murder offense and further that non-capital murder is actually a separate, lesserincluded offense of capital murder. Thus, when Congress enacted the death penalty provisions applicable to Title 18, United States Code, § 1512 it was creating a "new" offense by defining additional elements that the government had to allege and prove in order to bring the capital punishment into play. At the same time and as part of the same Public Law that created the death penalty for an array of Title 18 offenses, Public Law 103-322, Congress also amended the statute of limitations applicable to such capital offenses, Title 18, United States Code, § 3281. The phrase "any offense punishable by death" must therefore refer to the separate, distinct and greater offenses defined by law that have additional elements that must be pled and proven [sic] in order to charge and establish a capital offense. The government has agreed that it is not pursuing "capital murder" as defined in Sattazahn and Ring and this is therefore a non-capital prosecution subject to the five-year limitations period. Id. Johnson asks the court to reconsider its ruling in light of her reading of Sattazahn, because that decision was not handed down until after this court's ruling. Although this court agrees that an intervening decision of the United States Supreme Court would present adequate grounds to "reconsider" a prior ruling in a criminal case, the court finds that the Sattazahn ruling upon which Johnson relies simply does not require any different disposition of her motion to dismiss Counts 1 through 5 of the present indictment, on statute of limitations grounds, than this court made in its December 31, 2002, order. In Sattazahn, in pertinent part, Justice Scalia, who announced the judgment of the Court, concluded that Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), established that "aggravating circumstances" were the functional equivalent of elements of an offense, and therefore, for purposes of the Sixth Amendment's right to jury trial, must be found by a jury beyond a reasonable doubt, not by a judge by a mere preponderance of the evidence. See Sattazahn, 537 U.S. at ___, 123 S.Ct. at 739. Justice Scalia then explained, "We can think of no principled reason to distinguish, in this context, between what constitutes an offense for purposes of the Sixth Amendment's jury-trial guarantee and what constitutes an `offence' for purposes of the Fifth Amendment's Double Jeopardy Clause." Id. More specifically, for purposes of the case before it, Justice Scalia concluded that "[f]or purposes of the Double Jeopardy Clause, ... `first-degree murder' under Pennsylvania lawthe offense of which petitioner was convicted during the guilt phase of his proceedings is properly understood to be a lesser included offense of `first-degree murder plus aggravating circumstance(s).'" Id. at ___, 123 S.Ct. at 740. Thus, this portion of Sattazahn can, perhaps, be read for the 1063 proposition for which Johnson contends that it stands: The phrase "any offense punishable by death" in 28 U.S.C. § 3281 must refer to the separate, distinct, and greater offenses defined by law that have additional elements that must be pleaded and proved in order to charge and establish a capital offense. However, even accepting that this portion of Sattazahn stands for the proposition for which Johnson offers it, this portion of Sattazahn does not require dismissal of Counts 1 through 5 in this case on the ground that those counts allege non-capital offenses untimely charged under 18 U.S.C. § 3282. First, the pertinent portion of the Sattazahn decision, § III, only garnered the support of three justices of the Supreme Court: Justice Scalia, the author of the decision, Chief Justice Rehnquist, and Justice Thomas. Thus, this portion of Sattazahn is not, in any sense, controlling. Rather, the controlling authority on the questions presented in Johnson's motion to dismiss remains the Eighth Circuit decisions upon which this court relied. Second, even if this portion of Sattazahn were "controlling" authority, in the sense of a decision with the support of a majority of the justices of the Supreme Court, it simply would not require a different result, because it does not conflict with this court's ruling; indeed, it does not address any pertinent issue. Johnson leaps from the government's decision not to seek the death penalty on the § 1512(a) offenses in Counts 1 through 5 to the conclusion that she has not been charged with "capital offenses" to which no statute of limitations applies under 18 U.S.C. § 3281, but only "non-capital offenses" subject to the five-year statute of limitations in 18 U.S.C. § 3282. This court concludes, however, that whether or not the government decides to seek the death penalty has nothing to do with whether or not "capital offenses" within the meaning of 18 U.S.C. § 3281 have been charged and whether or not such charges are timely. As this court noted in its prior ruling, Counts 1 through 5 of the Superseding Indictment each charge the elements of first-degree murderspecifically, that each killing was willful, deliberate, malicious, with premeditation and malice aforethought. See Superseding Indictment, Counts 1 through 5, and compare 18 U.S.C. § 1111 (1988) (defining "murder" as requiring unlawful killing of a human being with malice aforethought, and defining "murder in the first degree," inter alia, as "murder perpetrated by ... any other kind of willful, deliberate, malicious, and premeditated killing"). Johnson, 239 F.Supp.2d at 905. Thus, what are charged in this case are "capital offenses," even within the meaning of the portion of Sattazahn upon which Johnson relies, because the "aggravating circumstances" are expressly charged. The cited portion of Sattazahn, however, does not purport to address the question squarely addressed in Edwards and Emery, and at issue here, which was whether or not a constitutionally effective death penalty is required for a charged crime to be a "capital offense." Following Edwards and Emery, this court concluded that the answer to that question was no. No decision cited by Johnson stands for the proposition that the government's decision to seek or not to seek the death penalty on an offense properly charged as a "capital offense" somehow changes the charged offense into a "non-capital offense" for statute of limitations purposes. The cited portion of Sattazahn certainly is not such authority. In the cited portion of Sattazahn, Justice Scalia and the two concurring justices concluded that if the petitioner's 1064 sentencing jury had unanimously concluded that the State had failed to prove any aggravating circumstances, such a conclusion would operate as an "acquittal" of the greater offense of "murder plus aggravating circumstance(s)." Sattazahn, 537 U.S. at ___, 123 S.Ct. at 740. However, the three justices concluded that that was not what happened, because the jury reached no decision on death or life and made no findings regarding aggravating or mitigating circumstances, and by operation of state law, the judge entered a life sentence. Id Thus, neither judge nor jury "acquitted" the petitioner of the greater offense, and consequently, there was no double-jeopardy bar to the state retrying the petitioner on both the lesser and the greater offenses after he succeeded in getting his conviction of the lesser offense set aside, because his "jeopardy" never terminated with respect to either offense. Id. Similarly, here, the government's decision not to seek the death penalty, even though "capital offenses" are charged in the indictment, does not amount to a reduction of the offenses, for statute of limitations purposes, to "noncapital offenses" subject to a five-year statute of limitations, because it is not, as Johnson seems to think, a concession that no "capital offense" has been charged or some kind of "acquittal" of the greater offense. Cf. id. Rather, it is an indication that the government recognizes that there was no constitutionally effective death penalty available at the time that Johnson allegedly committed the offenses. For that matter, the government's decision not to seek the death penalty does not amount to an "acquittal" of the greater offense for any purpose, because it is not a jury determination, beyond a reasonable doubt, that no aggravating circumstances can be proved to establish the greater offense. Id As explained in the court's previous order, consistent with Eighth Circuit precedent and even consistent with the portion of Sattazahn on which Johnson relies Johnson has been charged with "capital offenses" in Counts 1 through 5 of the present Superseding Indictment. Therefore, even if the offenses were not charged until more than five years after they were allegedly committed, the charges were timely under 18 U.S.C. § 3281; the five-year statute of limitations in 18 U.S.C. § 3282 is simply inapplicable. THEREFORE, the defendant's May 21, 2003, Motion To Reconsider Denial Of Motion To Dismiss Counts 1 Through 5 On Statute Of Limitations Grounds (docket no. 471) is denied. IT IS SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501152/	280 F. Supp. 2d 459 (2003) Jane DOE, John Doe, Baby Jane Doe, by her guardian, John Doe, Baby John Doe, by his guardian, John Doe, Plaintiffs, v. UNITED STATES of America, Defendant. No. 1:01CV00646. United States District Court, M.D. North Carolina. August 27, 2003. 460 Robinson O. Everett, Craig Myer Kabatchnick, Seth Allen Neyhart, Everett & Everett, Durham, NC, for Plaintiffs. Gill P. Beck, Office of U.S. Attorney, Greensboro, NC, for Defendant. MEMORANDUM OPINION OSTEEN, District Judge. Plaintiffs Jane Doe, John Doe, Baby Jane Doe, and Baby John Doe filed this action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), et seq. Plaintiffs claim that members and civilian personnel of the United States Navy administered a blood transfusion to Jane Doe in 1983 negligently and without her informed consent. After a bench trial, the court issues the following findings of fact and conclusions of law. I. FINDINGS OF FACT Pregnant with her first child, Plaintiff Jane Doe arrived at the Navy Regional Medical Center in Millington, Tennessee ("NRMC Millington"), in the evening of July 7, 1983. She was 20 years old, receiving medical care as a dependent of her Marine husband, Plaintiff John Doe. It was not her first visit to NRMC Millington. 461 Just eight days before, doctors at the facility tried to induce labor because she had carried her child 15 days beyond her due date. The inducement did not result in childbirth. Now she was three weeks past term, her amniotic fluid had been leaking for 20 hours, and she was in labor. After an initial examination, Dr. Harold Short, a family physician, recognized that it was important for Jane Doe's labor to progress. Her ruptured membranes, which permitted amniotic fluid to leak, had caused an infection of the uterus evidenced by a low-grade fever. In addition, she had high blood pressure and an elevated heart rate. Dr. Short placed Jane Doe on antibiotics for the infection and oxytocin, a hormone that stimulates the uterus to contract, to induce childbirth. Recognizing that a Caesarean section was a possibility, he ordered that two units of red blood cells should be typed and cross-matched so Jane Doe could be transfused if necessary. Dr. Short consulted Dr. Romeo Perez, an obstetrician, who concurred with the course of treatment. By 5:30 a.m., on July 8, Jane Doe's labor had stalled despite continued doses of oxytocin. Dr. Short noted the presence of thick meconium, material from the baby's bowel that is typically passed after birth. More alarmingly, the fetal heart monitor showed the baby's heart rate declining after each contraction. Together with the meconium, these "late decelerations" indicated fetal distress. Dr. Perez and Dr. Short decided to perform an emergency Caesarean section. With Dr. Perez en route to the hospital, Dr. Short obtained Jane Doe's consent for the surgery, explaining that further induction posed high risks to the baby's health. Consistent with his standard practice at the time, he identified risks associated with a Caesarean section, including infection, injury to the baby, and risks associated with anesthesia. He discussed the risk of excessive bleeding, including the danger of bleeding so severe that would necessitate a transfusion, which itself carried the risk of a negative reaction. Jane Doe responded that she understood these risks and opted for general anesthesia rather than an epidural anesthetic. Jane Doe signed Standard Form 522 to consent to the procedure in the presence of Dr. Short and a nurse, who also signed the form. Dr. Perez arrived at the hospital and met Jane Doe for the first time. In keeping with his standard practice, he introduced himself, explained his role as a specialist in obstetrics, and discussed why he believed a Caesarean section was appropriate. He identified alternatives to surgery, such as waiting, and their consequences. Like Dr. Short, Dr. Perez told Jane Doe that excessive bleeding during the procedure could make a blood transfusion necessary. He went on to explain that receiving a transfusion brought risks of hepatitis and negative reactions to the transfused blood. He concluded by giving Jane Doe the opportunity to ask questions. Jane Doe does not remember anyone mentioning the possibility of a transfusion before her surgery, nor does she remember any consultation with Dr. Short or Dr. Perez. At 7:02 a.m., on July 8, Baby Jane Doe was born by Caesarean section. After the surgery, Jane Doe continued to receive oxytocin to control bleeding in the uterus. She had lost 450 to 800 cubic centimeters ("cc") of blood during the operation, and by 9:00 a.m. she had saturated three perineum pads with blood. Dr. Perez ordered a complete blood count to be performed six hours after the surgery and another one for the following morning. During the day of July 8, Jane Doe appeared to be recovering well. Her uterus was firm, her postpartum bleeding was moderate, and she visited the nursery in a wheelchair. 462 The blood count results showed that Jane Doe had experienced significant blood loss. The two most direct measures were her levels of hemoglobin and hematocrit; the former is the part of red blood cells which carry oxygen, and the latter is the ratio of red blood cells to total blood volume, expressed as a percentage. Jane Doe's hemoglobin count had fallen from 12.8 grams per 100 milliliters of blood at admission, to 10.1 in the afternoon of July 8, to 8.9 on the morning of July 9. Her hematocrit had fallen from 35.5 at admission to 29.1 on July 8 to 25.6 on the morning of July 9. By 3:00 p.m., on July 9, when Dr. Perez learned the results of that morning's tests, Jane Doe's heart rate had risen from 96 beats per minute when she was admitted to 116 beats per minute, indicating that her heart was working harder to supply oxygen to her body. Her temperature was 100 degrees. By 3:30 p.m., Jane Doe passed what she recalls as one blood clot. The medical record explicitly describes several "large" clots, each understood by obstetricians to mean the size of a fist. At 4:00 p.m., a nurse called Dr. Perez to inform him about the clots, which suggested further loss of blood. Based on this information, but without going to Jane Doe's bedside for a clinical evaluation or additional consent, Dr. Perez ordered a transfusion of two units of packed red blood cells. The blood came from a blood bank operated by the Navy, and everyone involved in collecting and transfusing the blood was a federal employee or agent. After the transfusion, Jane Doe's vital signs improved; her hemoglobin, for example, increased to 10.7, a two-point rise consistent with the administration of two units of red blood cells. She went home three days later, on July 12. Three years later, in 1986, Jane Doe gave birth to her second child, Baby John Doe. She nursed both children. Starting in 1991, Jane Doe developed myriad health problems. She endured swollen glands, gall bladder problems, sore throat with fevers of unknown origin, unexplained rashes, thrush, and shingles, among other ailments. In June 1995, her hair started falling out. In July, she was diagnosed with a severe yeast infection of her esophagus, a condition typically found only in terminally ill patients. On July 18, 1995, Jane Doe tested positive for HIV. The test was performed by Dr. Terry Daniel, Jane Doe's family physician. Dr. Daniel explained to Jane Doe that although another test would be necessary to verify the diagnosis, the preliminary results meant she probably had Acquired Immune Deficiency Syndrome ("AIDS"). On July 24, 1995, Jane Doe learned that subsequent testing had confirmed the diagnosis. Not only did she test positive for HIV antibodies, but her extremely low CD-4 lymphocyte count suggested that her condition was very advanced. On July 31, 1995, Jane Doe learned that she had full-blown AIDS. Dr. Timothy Lane, an infectious disease specialist, took over her medical care. Jane Doe and her doctors immediately began searching for the cause of her infection. On July 31, 1995, the day she received the conclusive diagnosis, Jane Doe and her husband completed an adult HIV Confidential Case Report. The report shortened the list of possible risk factors to two: "sex with male" and "transfusion of blood/blood components." (Gov't Ex. B-21.) Jane Doe had no sexual partners other than her husband. She initially suspected an affair by her husband, three years earlier, as the source of her HIV infection. John Doe, however, had twice tested negative for HIV. A blood transfusion remained the other potential cause of infection. On the HIV Confidential Case Report, Jane Doe listed 463 two occasions when she had received blood transfusions: the Caesarean birth of Baby Jane Doe at NRMC Millington in 1983, and her delivery of Baby John Doe in 1986. Because blood donations have been screened for HIV antibodies since 1985, Dr. Daniel considered the 1983 transfusion the probable cause of Jane Doe's infection.[1] When Mr. and Mrs. Doe took their children to Dr. Wilma Lim for HIV testing on August 31, 1995, they told her that Jane Doe had contracted AIDS from a blood transfusion in 1983. After seeing Jane Doe twice in August and September 1995, Dr. Lane noted in the medical record his intention to trace the 1983 blood transfusion. Jane Doe authorized this "look back" to identify the donors of the transferred blood, and Dr. Lane telephoned NRMC Millington on October 27, 1995.[2] He followed up with a written request on October 31 for records concerning the transfusion and an investigation into the donors' HIV status. The Navy's response to the request arrived on October 4, 1996, nearly a year later, in the form of a faxed copy of an internal memorandum from the Navy's Bureau of Medicine and Surgery to the commanding officer of NRMC Millington. Blood donor number M466896, who contributed one of the units of blood administered to Jane Doe, had died of AIDS.[3] The duration of the look back fell within the typical range for the Navy Blood Program. On September 2, 1998, Plaintiffs' counsel filed administrative claims with the Navy,[4] which denied the claims on statute of limitations grounds on May 18, 2001. The Doe family filed the present action on July 3, 2001. II. DISCUSSION This case arises from the blood transfusion administered in July 1983, in the early stages of the medical profession's encounter with AIDS. In June 1983, military blood donors were asked to voluntarily refrain from donating blood if they fell into particular social groups, including sexually active homosexuals and intravenous drugs users, viewed as more likely to contract AIDS. At that time, "it was only hypothesized that AIDS was a blood borne virus." Doe v. Miles Lab., Inc., 927 F.2d 187, 189 (4th Cir.1991). "It is now widely accepted" that "the medical and scientific communities did not reach a consensus that AIDS could be transmitted by blood until 1984," the year scientists identified the virus that causes the disease. Spence v. Miles Lab., Inc., 37 F.3d 1185, 1187 (6th Cir.1994). That same year, of 1984, discussions 464 of AIDS risk became part of standard obstetric practice in Tennessee. The first test to screen blood for HIV antibodies was not licensed until March 1985. Doe, 927 F.2d at 190. After the court's summary judgment ruling, the case went to trial on the Government's statute of limitations defense and on Plaintiffs' claims of medical malpractice and lack of consent.[5] The court addresses each issue in turn. A. Statute of Limitations The Government contends that the FTCA's two-year statute of limitations bars Plaintiffs' claims. See 28 U.S.C. § 2401(b). Although state law determines whether a cause of action exists under the FTCA, federal law governs when that cause of action accrues. Gould v. Department of Health and Human Servs., 905 F.2d 738, 742 (4th Cir.1990) (en banc). A tort claim against the United States is barred unless it is presented "in writing to the appropriate federal agency within two years after such claim accrues." 28 U.S.C. § 2401(b); United States v. Kubrick, 444 U.S. 111, 113, 100 S. Ct. 352, 354-55, 62 L. Ed. 2d 259 (1979). The FTCA constitutes a limited waiver of sovereign immunity, id. at 117-18, 100 S. Ct. at 357, and satisfying the two-year statute of limitations is a "key jurisdictional prerequisite" to suit that cannot be waived. Kokotis v. United States Postal Serv., 223 F.3d 275, 278 (4th Cir.2000). FTCA claims typically accrue when the plaintiff is injured. Kubrick, 444 U.S. at 120, 100 S. Ct. at 358. In medical mal-practice cases, however, neither the plaintiff's injury nor its cause may be immediately apparent. Id. at 122, 100 S. Ct. at 359. According to the "discovery rule" applied in such cases, a plaintiff's claim accrues "when the plaintiff knows or, in the exercise of due diligence, should have known both the existence and the cause of his injury." Gould, 905 F.2d at 742. A plaintiff possesses this knowledge when he becomes aware of "the critical facts that he has been hurt and who has inflicted the injury." Kubrick, 444 U.S. at 122, 100 S. Ct. at 359. A plaintiff armed with these critical facts must investigate to determine if the injury resulted from negligent conduct. Id. at 123-24 & n. 10, 100 S. Ct. at 360 & n. 10. Thus, a medical malpractice claim accrues under the FTCA "when a claimant first knows of an injury and its cause, and not only later when it is first realized that a particular legal claim may be maintainable in consequence of the injury." Miller v. United States, 932 F.2d 301, 304 (4th Cir.1991). This standard requires that a plaintiff have only "elemental knowledge" of his claim, not that he possess "complete knowledge of all elements or a legal understanding of the nature of the claim." Lekas v. United Airlines, Inc., 282 F.3d 296, 299 (4th Cir.2002). In short, the cause of action accrues upon inquiry notice. Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir.1995) (en banc). For Plaintiffs' FTCA claims to be viable, they must have accrued after September 2, 1996, because Plaintiffs filed an 465 administrative action with the Navy on September 2, 1998. See 28 U.S.C. § 2401(b). Plaintiffs received inquiry notice on one of several possible dates. On July 31, 1995, Plaintiffs learned conclusively that Jane Doe had AIDS and examined her risk factors with Dr. Daniel. On August 31, 1995, Jane Doe told Dr. Lim that she believed the 1983 blood transfusion had caused her HIV infection. On September 21, 1995, Dr. Lane placed the 1983 transfusion at the top of his list of potential causes. On October 27, 1995, Dr. Lane made a telephone inquiry about the 1983 transfusion. On October 31, 1995, he submitted to the Navy a formal request for information. The memorandum conveying the news that one of Jane Doe's blood donors had died of AIDS was dated September 3, 1996. Dr. Lane received this information on October 4, 1996. Defendant argues that Plaintiffs were on inquiry notice on the earliest of the possible dates, July 31, 1995. On that day, Plaintiffs knew that Jane Doe had AIDS; that her only risk factors were "sex with male" and blood transfusions; that she had received a blood transfusion at NRMC Millington in 1983, before donated blood was screened for HIV; that the other suspected transfusion occurred in 1986, after blood banks screened donated blood for HIV; that her only sexual partner was her husband, John Doe; that John Doe had twice tested negative for HIV; and that Dr. Daniel, Jane Doe's family physician, believed the 1983 transfusion was the probable cause of her HIV infection. Thus, Plaintiffs possessed on July 31, 1995 the "critical facts" that Jane Doe had AIDS and that the 1983 blood transfusion had caused her injury. Plaintiffs contend that they were on inquiry notice on the last of the possible dates, October 4, 1996, when Dr. Lane received the fax stating that one of Jane Doe's blood donors had died of AIDS. Before that time, they argue, they could not know the critical fact about the cause of Jane Doe's HIV infection because that information remained in the Government's hands, unavailable despite her reasonable diligence. The Fourth Circuit has rejected this argument. In Kerstetter v. United States, 57 F.3d 362 (4th Cir.1995), the court explained: [I]t should not make a difference when the plaintiff learns just what went wrong during a medical operation. So long as the plaintiff knows the "critical fact" of "who has inflicted the injury," he can act to protect his rights by inquiring whether the injury was inflicted negligently. If he comes to suspect that it was, then he can file suit even before he discovers the precise medical cause of the operation's failure. After all, it might not be until discovery that he gains a satisfactory appreciation of the immediate cause of his injury. Kerstetter, 57 F.3d at 365. The Fourth Circuit explicitly rejected the Kerstetter plaintiffs' suggestion that they knew the cause of their daughter's kidney failure only when they learned "the precise medical reason for the injury." Id. at 364. The "correct" construction of the term "cause" demanded "a greater level of generality one that would require, in this case, only knowledge that the operation caused the injury." Id. Before receiving any information from the Navy, Jane Doe and those treating her had eliminated all risk factors except for the transfusion and her husband, who was HIV-negative. Dr. Daniel identified the transfusion as the probable cause of her infection in July 1995. Jane Doe acknowledged to Dr. Lim in August 1995 that the transfusion caused her infection. Dr. Lane considered the transfusion to be the 466 prime suspect in September 1995. Jane Doe authorized Dr. Lane to submit an inquiry, the essence of inquiry notice, in October 1995. The Supreme Court and the Fourth Circuit have found claim accrual with less definitive notice of causation. See, e.g., Kubrick, 444 U.S. at 122, 100 S. Ct. at 359 (holding that the plaintiff's claim accrued when a physician told him that it was "highly possible" that his hearing loss resulted from a medical procedure); Townley v. Norfolk & W. Ry. Co., 887 F.2d 498, 500 (4th Cir.1989) (concluding that the plaintiff's claim accrued when he "suspected that he suffered from black lung disease and that his condition was caused by his work on the railroad"). Following this authority, the court concludes that the Navy's look-back response provided Plaintiffs merely the "precise medical reason" for Jane Doe's HIV infection, not one of the critical facts necessary for claim accrual. Kerstetter, 57 F.3d at 364. Despite the compassion that Jane Doe's plight inspires, the court concludes that Plaintiffs' claims accrued on July 31, 1995. On that date, Jane Doe knew that her only risk factors were "sex with male" and blood transfusion, and that her husband had twice tested negative for HIV. She also knew that the 1983 transfusion occurred before blood was tested for HIV. Her family physician, Dr. Daniel, testified that Jane Doe's 1983 transfusion was her only HIV risk factor on July 31, 1995, once her husband had tested negative for HIV. Dr. Daniel considered the transfusion the probable cause of her infection. As a measure of the transfusion's importance in the minds of Jane and John Doe, they told Dr. Lim in August 1995 that the transfusion had caused Jane Doe's HIV infection. Plaintiffs may not have been certain that the transfusion was the cause, but lingering uncertainty does not prevent claim accrual. Kerstetter, 57 F.3d at 364. In addition, the existence of more than one potential cause does not delay claim accrual. Nemmers v. U.S., 795 F.2d 628, 631 (7th Cir.1986) ("The putative plaintiff need not know that the suspicious event is more likely than not the cause."). Jane Doe continued to suspect her husband as the source of her infection, but Dr. Daniel eliminated him as the cause after he twice tested negative for HIV. Under the FTCA's objective standard, Jane Doe knew or should have known in July 1995 that the transfusion had caused her HIV infection. See Gould, 905 F.2d at 742; Nemmers, 795 F.2d at 631. Plaintiffs' administrative claims should have been filed before July 31, 1997. Their submission on September 2, 1998 was too late. Jane Doe testified that she was in shock after her diagnosis, and that her immediate focus was on survival, not on gathering information for a prospective lawsuit. This natural reaction cannot be dismissed as unreasonable. Even considering Jane Doe's condition, however, she clearly was on inquiry notice no later than October 31, 1995 when Dr. Lane initiated a formal inquiry about the transfusion. The statute of limitations set forth in 28 U.S.C. § 2401(b) "represents a deliberate balance struck by Congress whereby a limited waiver of sovereign immunity is conditioned upon the prompt presentation of tort claims against the government." Gould, 905 F.2d at 742. Even when faced with powerful equitable considerations, courts are not free to construe the statute "so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims." Kubrick, 444 U.S. at 117, 100 S. Ct. at 357. Jane Doe had family support, and her understandable shock and denial did not last two years. Several witnesses testified that she was interested in what caused her predicament. She identified the 1983 467 transfusion to Dr. Lim as the cause of her infection in August 1995. She authorized Dr. Lane to request a look back in October 1995. When the Navy's response in October 1996 confirmed that one of her blood donors had died of AIDS, she was devastated. In February 1997, however, with help from her husband, she sought legal representation. All of this activity took place within the two-year limitations period, which elapsed in July 1997. Plaintiffs did not file a claim until September 1998. Regardless of the reason for this delay, the Government cannot be made to bear the burden of these consequences. Kubrick, 444 U.S. at 124, 100 S. Ct. at 360 ("If [a plaintiff] fails to bring suit because he is incompetently or mistakenly told that he does not have a case, we discern no sound reason for visiting the consequences of such error on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed."). Plaintiffs argue that the Government's exclusive possession of donor information delayed claim accrual until Dr. Lane received the Navy's response to his inquiry about the 1983 transfusion. The Navy did control some information about Jane Doe's transfusion, including the facts that the blood came from the military and that one of the donors had died of AIDS. As explained above, however, the absence of this information did not delay claim accrual. See Gould, 905 F.2d at 745 (holding that claim accrual under the FTCA "does not wait until a plaintiff is aware that an alleged tort-feasor is a federal employee"). Plaintiffs express justifiable frustration at the manner in which the Navy responded to their request for information. They do not, however, allege misconduct that would support equitable tolling of the statute of limitations,[6] and no evidence suggested wrongdoing or undue delay by the Navy. Although the court recognizes the hardship resulting to Plaintiffs in this case, it has no choice but to apply the law as written. Id. at 747; see also Mann v. United States, 399 F.2d 672, 673 (9th Cir. 1968) ("Although exceptions to the applicability of the limitations period might occasionally be desirable, we are not free to enlarge that consent to be sued which the Government, through Congress, has undertaken so carefully to limit."). The FTCA's statute of limitations "is jurisdictional and nonwaivable," and a claim accrues when the plaintiff knew or should have known of the injury and its cause. Gould, 905 F.2d at 740. Plaintiffs knew on July 31, 1995 that Jane Doe had AIDS and that the 1983 transfusion was a likely cause of her infection. Jane Doe told a doctor one month later that the transfusion had caused the infection. In October 1995 she displayed definitive evidence of inquiry notice by authorizing a formal inquiry to the Navy. Plaintiffs did not file a claim until September 2, 1998, well after the limitations period expired. Therefore, their claims are barred by the statute of limitations.[7] 468 B. Medical Malpractice Even if Plaintiffs could survive the statute of limitations defense, they would still face the challenge of proving liability for events that occurred two decades ago. Claims filed under the FTCA are construed using the substantive law of the state in which the alleged tort occurred. 28 U.S.C. §§ 1346(b), 2674. Therefore, Tennessee law applies in this case. Plaintiffs' first claim alleges that Dr. Perez committed medical malpractice when he ordered the transfusion on July 9, 1983. A medical malpractice plaintiff suing under Tennessee law must prove: (1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which he practices or in a similar community at the time the alleged injury or wrongful action occurred; (2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and (3) As a proximate result of defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred. Tenn.Code Ann. § 29-26-115(a). A doctor has a duty to exercise reasonable care and diligence, and he must exercise his best judgment regarding treatment. Ward v. United States, 838 F.2d 182, 186 (6th Cir. 1988). Liability for malpractice depends on whether the physician fails to exercise the reasonable degree of learning, skill, and experience that is ordinarily possessed by others of his profession. Jackson v. United States, 24 F. Supp. 2d 823, 832 (W.D.Tenn.1998) (citing Ward, 838 F.2d at 186-187). Dr. Perez ordered the blood transfusion at 4:00 p.m. on July 9. He knew that Jane Doe had lost 450 to 800 cc of blood during surgery the previous morning; that her hemoglobin count had fallen from 12.8 grams per 100 milliliters of blood on July 7, to 10.1 on July 8, to 8.9 on the morning of July 9; that her hematocrit had fallen from 35.5 to 25.6 during the same period; that her heart rate, which had been consistently elevated since the surgery, had risen to 116 beats per minute; that her temperature was 100 degrees; and that she had passed blood clots earlier that afternoon, indicating further loss of blood. Based on this information, he ordered the transfusion of two units of packed red blood cells. Under Tennessee law, a physician does not commit malpractice if he chooses a course of treatment supported by other competent physicians. Truan v. Smith, 578 S.W.2d 73, 76 (Tenn.1979). Similarly, because physicians enjoy the latitude of professional judgment, they do not breach the standard of care simply by choosing a procedure that is "but one of several procedures recognized in the profession as adequate" to treat a patient's condition. Harris v. Buckspan, 984 S.W.2d 944, 952-53 (Tenn.Ct.App.1998). Dr. John Van Hooydonk and Dr. Lewis Nelson, both experienced obstetricians,[8] testified that Dr. Perez's decision to transfuse Jane Doe was an appropriate 469 course of treatment, and that the care she received exceeded the standard of obstetrical care in Tennessee in 1983. At that time, physicians relied on guidelines that strongly indicated a transfusion if testing showed a hemoglobin level below 10 or a hematocrit below 30. Jane Doe's readings were 8.9 and 25.6, respectively, and she subsequently passed blood clots suggesting further loss of blood. Dr. Nelson testified that an obstetrician monitoring a post-operative patient under these circumstances may reasonably rely on information from laboratory reports, the observations of an experienced nurse, and his own clinical evaluation from morning rounds to order a transfusion. Dr. Perez's decision not to perform a physical examination before ordering the transfusion was within this standard of care. Similarly, his decision not to draft a separate note detailing his reasons for the transfusion also conformed to the standard of care in 1983, when doctors considered blood transfusion a low-risk procedure. Dr. Richard Van Fletcher, Plaintiffs' expert, opined that Dr. Perez should have visited Jane Doe before ordering the transfusion and should have stated explicitly his reasons for transfusing her in his notes. Dr. Fletcher noted that Jane Doe had normal kidney function, was not dizzy, had no significant drop in blood pressure, and had a heart rate not dramatically different from measures taken throughout her hospitalization. Taken together, Dr. Fletcher observed that these symptoms were inconsistent with shock, the danger that the transfusion purported to avert. He did not testify directly that the decision to transfuse Jane Doe violated the standard of care for making such decisions; to the contrary, he admitted that some physicians in 1983 would have ordered a transfusion for a patient with a hemoglobin count of 8.9. Instead, Dr. Fletcher stated that the cold clinical record did not support Dr. Perez's decision to transfuse Jane Doe, and that the absence of a explicit rationale for the transfusion in the record violated the standard of care. For Plaintiffs to recover based on medical malpractice, it is not enough to show that Dr. Perez should have kept better records. Rather, they must prove that Dr. Perez's order to transfuse Jane Doe violated the standard of care in Millington, Tennessee and similar communities in 1983. See Tenn.Code Ann. § 29-26-115(a); Jackson, 24 F.Supp.2d at 832 ("In determining the degree of learning and skill required of a medical practitioner in the treatment of a particular case, regard must be given to the state of medical science at the time."). Although Dr. Fletcher disagrees with Dr. Perez's transfusion order, "a physician who uses his own best judgment cannot be convicted of negligence, even though it may afterward develop that he was mistaken." McPeak v. Vanderbilt Univ. Hosp., 33 Tenn.App. 76, 229 S.W.2d 150, 152 (1950).[9] No evidence suggests that Dr. Perez did not exercise his best judgment in ordering a transfusion based on the available information. Dr. Perez had evaluated Jane Doe clinically on the morning of July 9, and information from nurses and laboratory tests supported his conclusion that a transfusion was justified to ward off the reasonable risk of shock. Dr. Van Hooydonk and Dr. Nelson testified 470 that this course of treatment exceeded the standard of care in 1983. To the extent that Dr. Fletcher opined that the decision to transfuse Jane Doe violated the standard of care, the court cannot attribute greater weight to that evidence than the statements of Dr. Hooydonk and Dr. Nelson for two reasons. First, although Dr. Fletcher graduated from medical school in Tennessee in 1974, he has never practiced obstetrics there. Dr. Van Hooydonk has practiced in Tennessee since completing his residency at Vanderbilt in 1976. Dr. Nelson taught obstetrics at the University of Tennessee in 1979-1980. Second, Dr. Nelson and Dr. Hooydonk have greater breadth of experience born both of their teaching responsibilities and their ongoing obstetrics practices. Dr. Fletcher stopped practicing in 1990. Plaintiffs failed to prove by a preponderance of the evidence that the decision to transfuse Jane Doe violated the standard of care. Therefore, the court will enter a judgment for the Government on the medical malpractice claim. C. Lack of Consent Plaintiffs' remaining claims allege that Jane Doe did not consent to the transfusion. Tennessee provides two ways to recover for lack of consent: (1) medical battery, for completely unauthorized procedures, and (2) lack of informed consent, a variety of medical malpractice, for failure to disclose risks inherent in authorized procedures. Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn.1998). Plaintiffs proceed under both theories. To prevail on her medical battery claim, Jane Doe must show that she was unaware that she would be transfused, and that she did not authorize the transfusion. Blanchard, 975 S.W.2d at 524. Jane Doe remembered receiving the transfusions, which took several hours to complete. Dr. Short discussed the possibility of transfusion before Jane Doe signed Standard Form 522, which signified that she understood the risks of Caesarean section, including transfusion. Dr. Perez also told Jane Doe before surgery of the risk that a transfusion could be necessary. Plaintiffs argue that Jane Doe's consent to a Caesarean section on July 8 did not encompass consent to a transfusion administered the following day. According to the standard of care in Tennessee in 1983, however, consent to the surgery constituted consent to reasonable post-operative care, including transfusions. Dr. Van Hooydonk, whose practice at a Nashville hospital made him familiar with consent forms from across the state, testified that the Standard Form 522 was representative of pre-operative consent forms in 1983. According to Dr. Van Hooydonk, obstetricians in Tennessee in 1983 did not use a separate consent form before ordering a post-operative transfusion, which was viewed as a low-risk procedure. Dr. Perez also testified that it was not customary to execute a second consent form once a patient gave informed consent to surgery. Plaintiffs offered no evidence to the contrary. Therefore, the court concludes that Jane Doe consented to the transfusion. Because Jane Doe was aware of the transfusions and authorized them by her consent to the surgery, the court will enter judgment for Defendant on the medical battery claim. To prevail on the claim that Jane Doe's consent was not informed consent, Plaintiffs bear the burden of marshaling expert testimony to establish: (1) what a reasonable medical practitioner in the same or similar community would have disclosed to the patient about the risk posed by the proposed treatment, and (2) that the defendant departed from the norm. Ashe v. 471 Radiation Oncology Assoc., 9 S.W.3d 119, 121 (Tenn.1999); German v. Nichopoulos, 577 S.W.2d 197, 204 (Tenn.Ct.App.1978). Plaintiffs also must prove that a reasonable person in Jane Doe's position would not have consented to the transfusion if adequately informed of all significant perils. Ashe, 9 S.W.3d at 120. To determine the adequacy of the information provided, the court considers the nature of the procedure, the extent of the risks involved, and the applicable standard of care. Blanchard, 975 S.W.2d at 525. Regarding the standard of care and its breach, Plaintiffs must demonstrate that: the defendant did not supply appropriate information to the patient in obtaining informed consent to the procedure ... in accordance with the recognized standard of acceptable professional practice in the profession and in the specialty, if any, that the defendant practices in the community in which the defendant practices or in similar communities. Tenn.Code. Ann. § 29-26-118. Standard practice in Millington, Tennessee in 1983 called for disclosure of the fact that transfusion recipients could experience a transfusion reaction, including a fever and rash. Other risks were considered very rare, and informed consent for a transfusion commonly occurred after a brief discussion, commensurate with its status as a low-risk procedure. The standard of care did not require doctors to discuss the risk of infection, for example, because blood banks screened for known blood-borne infectious diseases such as malaria, syphilis, and hepatitis.[10] Every obstetrician, including Plaintiffs' expert, Dr. Fletcher, testified that the standard of care in 1983 did not require informing patients about the risk of HIV from a blood transfusion. A patient's consent to be transfused, granted before surgery, extended to that patient's post-operative treatment. The evidence shows that Dr. Short and Dr. Perez discussed the known material risks of a transfusion with Jane Doe before her surgery. Dr. Short disclosed to Jane Doe the possibility that she would have an unusual reaction to the transfused blood. Dr. Perez told Jane Doe about the risk of febrile reactions and hepatitis associated with blood transfusions. Plaintiffs allege that Dr. Perez and Dr. Short failed to disclose the risks identified on a list attached to a version of Standard Form 522 created four years after Jane Doe's transfusion. Dr. Nelson and Dr. Van Hooydonk testified, however, that several of those risks are so rare that doctors in Tennessee did not disclose them to patients in 1983, when physicians were less wary of transfusions. Dr. Van Hooydonk and Dr. Nelson both testified that the discussion of potential risks by Dr. Short and Dr. Perez, including the risks associated with transfusion, exceeded the standard of care for informed consent in 1983. A doctor may obtain informed consent before a surgery without disclosing "every possible thing that might go wrong." Longmire v. Hoey, 512 S.W.2d 307, 310 (Tenn.Ct.App.1974). Plaintiffs failed to prove that Jane Doe's physicians departed from the standard of care for disclosing the risks of transfusion. They also failed to convince the court that a reasonable person would have refused consent to a transfusion just before submitting to surgery under a general anesthetic. Therefore, judgment for Defendant is appropriate *472 on Plaintiffs' informed consent claim. III. CONCLUSION "We refer from time to time to a case as a hard one. We may mean that it is close and difficult to decide. Or we may mean, as we do here, that, while it is not so close, it is nevertheless difficult to decide because of its harsh impact on one of the parties." Wilkinson v. United States, 677 F.2d 998, 998 (4th Cir.1982). The tragedy that has befallen Jane Doe has brought suffering and anguish to her and her family. The court extends to them its compassion and encouragement. The law and the evidence dictate, however, that the Government is not liable for her injury. Plaintiffs did not file their claims within the two-year limitations period, and they did not prove that Jane Doe's doctors failed to comply with the applicable standards of care. Accordingly, the court must enter a verdict for the Defendant. IV. CONCLUSIONS OF LAW 1. The court has jurisdiction over this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. 2. Venue in this district is proper. 28 U.S.C. § 1402(b). 3. Plaintiffs' claims accrued on July 31, 1995, and they failed to file an FTCA claim until September 1998. Plaintiffs proved no misleading conduct warranting equitable tolling of the statute of limitations. Accordingly, the FTCA's two-year statute of limitations bars Plaintiffs' claims. See 28 U.S.C. § 2401(b). 4. Even if the statute of limitations had not barred Plaintiffs' claims, Plaintiffs failed to prove by a preponderance of the evidence that Dr. Perez violated the applicable standard of care in ordering a transfusion for Jane Doe. 5. Even if the statute of limitations had not barred Plaintiffs' claims, Plaintiffs failed to prove by a preponderance of the evidence that Jane Doe gave no consent to be transfused at NRMC Millington following her Caesarean section. 6. Even if the statute of limitations had not barred Plaintiffs' claims, Plaintiffs failed to prove by a preponderance of the evidence that Jane Doe's consent to the transfusions was not informed. NOTES [1] Contrary to her notation on the Confidential Case Report, Jane Doe had not been transfused in 1986. [2] The Navy implemented the Look Back Program to trace the disposition of blood donations by donors who subsequently tested positive for HIV. [3] Blood donor number M466896 deserted the Navy in April 1985. In April 1986, civil authorities in San Francisco apprehended and turned him over to military police, who detained him in the Treasure Island, California brig. At a special court martial, he was found guilty of desertion and received a sentence that included confinement for 60 months and a bad conduct discharge. He underwent a separation physical examination in May and was released into the private sector on June 2, 1986. His physical did not include an HIV test because the Navy's phased-in testing program did not yet require one. [4] Shortly after learning that one of Jane Doe's donors had died of AIDS, Plaintiffs retained counsel. In late August 1998, nearly two years after the date of the Navy's look-back response, the lawyer passed Plaintiffs' case to their present counsel. Jane Doe's present counsel acted promptly and professionally in recognizing the need to file the administrative claims so quickly. Present counsel are to be commended for their efforts. [5] Both parties moved for summary judgment on the statute of limitations issue. The court determined that the record, viewed in the light most favorable to the respective nonmoving party, presented a genuine issue of material fact as to when Jane Doe knew or should have known that the transfusion caused her HIV infection. At the summary judgment hearing, Plaintiffs conceded that the FTCA's discretionary function exception barred their claims that the Navy negligently administered its blood bank and Look Back programs. Neither party moved for summary judgment on the merits of Plaintiffs' medical battery, informed consent, or medical malpractice claims. [6] Statutes of limitations may be equitably tolled when "the defendant has wrongfully deceived or misled the plaintiff in order to conceal the existence of a cause of action." See Kokotis v. United States Postal Serv., 223 F.3d 275, 280-81 (4th Cir.2000) (quoting English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir.1987)). For FTCA purposes, equitable tolling addresses active deception, Lekas v. United Airlines, Inc., 282 F.3d 296, 301 (4th Cir.2002), and plaintiffs do not accuse the government of such conduct. [7] Because the statute of limitations bars Jane Doe's claims, it also bars the claims of the other Plaintiffs. See McCall v. United States, 310 F.3d 984, 988 (7th Cir.2002); MacMillan v. United States, 46 F.3d 377, 381 (5th Cir. 1995); Zavala v. United States, 876 F.2d 780, 782 (9th Cir.1989); Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 105, 109 (Tenn.1996). [8] Dr. Van Hooydonk has held an assistant professorship in obstetrics and gynecology, in addition to other titles, at the Vanderbilt University School of Medicine since 1979. Dr. Nelson has been a member of the faculty of the Wake Forest University School of Medicine since 1976. He currently holds positions as Acting Chief of the Department of Obstetrics and Gynecology and as an assistant dean in the School of Medicine. [9] Although Tennessee's medical malpractice statute did not take effect until 1975, Tennessee courts applying the statute give precedential effect to cases decided before that date. Ward v. United States, 838 F.2d 182, 184 n. 2 (6th Cir.1988) (citing German v. Nichopoulos, 577 S.W.2d 197 (Tenn.Ct.App. 1978)); see also Cardwell v. Bechtol, 724 S.W.2d 739, 753 (Tenn.1987) (stating that Tenn.Code. Ann. § 29-26-115 codifies the common law elements of negligence). [10] Dr. Short did, however, inform Jane Doe that her overall treatment presented a risk of infection.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501160/	723 S.E.2d 909 (2012) 290 Ga. 732 EAST GEORGIA LAND AND DEVELOPMENT COMPANY, LLC v. NEWTON COUNTY. No. S12A0114. Supreme Court of Georgia. March 19, 2012. 910 Chamberlain, Hdrlicka, White, Williams & Martin, Jimmy Lee Paul, Drew V. Greene, for appellant. Cook, Noell, Tolley & Bates, William Thomas Craig, James Blount Griffin, Covington, Peter Ralph Olson, for appellee. CARLEY, Presiding Justice. Appellant East Georgia Land and Development Company, LLC (EGL) purchased 427 acres of land in Newton County, Georgia, for the purpose of constructing a landfill. As part of its application for a landfill permit from the Georgia Department of Natural Resources, EGL requested a letter of zoning compliance from the Newton County Board of Commissioners (Board) as required by OCGA § 12-8-24(g). On August 25, 1997, the Board declined to issue the letter based on its interpretation that a landfill was not a permitted use under the Newton County zoning ordinance enacted on May 21, 1985. EGL appealed that decision to the Newton County Board of Zoning Appeals (BZA), which upheld the decision and denied the appeal. On December 19, 1997, EGL commenced a multi-count suit which included a request for review of the decision of the BZA as well as a request for a writ of mandamus requiring issuance of the zoning compliance letter. EGL contended that it was entitled to the issuance of a letter as a matter of law because the zoning ordinance was not validly enacted. In an April 13, 2000 order that was issued in response to cross-motions for summary judgment, the trial court stated that the threshold issue was whether the zoning ordinance was valid and thus whether mandamus should be granted, and it held that all other claims would be deferred until the determination of the threshold issue. 911 EGL attacked the validity of the zoning ordinance in two ways. First, it argued that the zoning ordinance was effectively lost and unprovable by the fact that it was neither clearly identified in nor attached to the minutes of the May 21, 1985 meeting during which the ordinance was adopted. After the trial court ruled that the County could not rely on parol evidence to prove the contents of the ordinance, a County probate judge filed a petition pursuant to OCGA § 24-8-1 et seq. seeking to establish a copy of the zoning ordinance. The trial court established the copy as an original, and this Court affirmed in East Ga. Land and Development Co. v. Baker, 286 Ga. 551, 690 S.E.2d 145 (2010). Subsequently, in an order filed on December 20, 2010, the trial court found that the judgment as affirmed in that case rendered moot the argument made by EGL that the zoning ordinance was not attached to the minutes and granted summary judgment in favor of the County on this issue. EGL attacked the validity of the zoning ordinance a second way, by arguing that it is unenforceable because zoning maps had not been properly adopted by the County, thereby making the ordinance void due to indefiniteness or vagueness. In the same December 20, 2010 order, the trial court granted summary judgment in favor of the County on this issue as well, holding that the zoning ordinance was not indefinite. The trial court also stated that "[a]s a result, the zoning administrator of Newton County had no authority to issue the compliance letter to [EGL] as a matter of law." EGL appeals from this order. 1. EGL contends that the trial court erred in holding that Baker mooted any issue regarding whether the original zoning ordinance was invalid for not being attached to the minutes of the May 21, 1985 meeting. In the order issued April 13, 2000, the trial court, interpreting our decisions in Waldrop v. Stratton & McLendon, 230 Ga. 709, 710, 198 S.E.2d 883 (1973) and Friedman v. Goodman, 219 Ga. 152, 160(3)(b), 132 S.E.2d 60 (1963), found that the original zoning ordinance was not sufficiently identified in the minutes of the May 21, 1985 meeting so as to be incorporated by reference and thus held that the County must prove that the ordinance was physically attached to the minutes in order to satisfy the level of certainty and accessibility required under our Zoning Procedures Law (ZPL). See also OCGA § 36-1-25 ("[D]ocuments related to actions taken by a county governing authority may be included in the minutes or incorporated by reference to an alternate location.") The trial court then held that "whether the ordinance was so attached is a material question of fact." After over eight years of discovery, the trial court entered an order on August 22, 2008, staying further proceedings in the present case as the County had filed its petition to reestablish the zoning ordinance by use of a copy pursuant to OCGA § 24-8-1. In an order issued on August 19, 2008 granting a motion to intervene in the reestablishment case filed by EGL, the trial court stated with regard to the stayed case that [i]n denying the first motion for summary judgment filed on July 2, 1999, it was found that whether the zoning ordinance had been attached to the minutes of the May 21, 1985, meeting was an issue of material fact which precluded the grant of summary judgment. The issue in [the reestablishment case] is the content of the zoning ordinance. If a decree is entered establishing the proposed copy of the ordinance as original, a trial will be held concerning whether the ordinance had been attached to the minutes. The parties then proceeded on that basis, and on March 20, 2009, the trial court issued a final order establishing a copy of the zoning ordinance in lieu of the lost original, finding "that a zoning ordinance was adopted . . . on May 21, 1985, and apparently had been attached to the official minutes of the meeting[,]. . . was subsequently lost, and that a copy of the ordinance was found in the zoning office in 1999. . . ." As stated above, this decision of the trial court was affirmed in Baker. In the order that is presently on appeal, the trial court held that our decision in Baker mooted any issue with regard to whether the original zoning ordinance was attached to the minutes so as to have been validly enacted. The trial court and the 912 County seize on the fact that the final order in the reestablishment case stated that the ordinance "apparently had been attached" to contend that this issue is now settled, even though all of the prior dealings in the proceedings had rendered this issue outside of the purview of the reestablishment case. Regardless of the inequity of so holding, neither OCGA § 24-8-1 nor our decision in Baker addresses whether the 1985 zoning ordinance was attached to the minutes so as to be validly enacted. OCGA § 24-8-1 states that when a copy becomes established, such copy "shall be in all respects evidence as the original records would have been." Title 24 is the section of the Georgia Code that sets forth the law regarding evidence. Thus, the plain language of the statute and its position in our code demonstrates that the purpose of this statute is evidentiary only, with the established copy serving as an evidentiary substitute for the lost record. Nothing in OCGA § 24-8-1 et seq. provides that the establishment of a copy of a lost record will validate or render enforceable a previously invalid or unenforceable ordinance. "[T]he sole object of a statute providing for the restoration of [public] records which have been destroyed is to restore the record as it existed, regardless of its regularity or legal effect. [Cit.]" 76 CJS Records § 41. Only a few appellate decisions have construed OCGA § 24-8-1 or its predecessor statutes, but all of these decisions are consistent with the determination that establishing a copy of a lost record serves merely as evidence of its existence and contents and does not purport to validate or enforce it. For example, in Bond v. Reid, 152 Ga. 481, 110 S.E. 281 (1922), a will that had been duly probated and recorded had been destroyed when the county records office was consumed by fire. A proceeding to establish a copy of the lost will was initiated and appealed to this Court due to our jurisdiction over cases involving wills. However, we transferred the case to the Court of Appeals, finding that a proceeding to establish a copy in lieu of a duly probated and recorded will that had been destroyed was not a proceeding to probate a copy of a lost or destroyed will and thus does not fall within this Court's jurisdiction regarding the validity and construction of wills. Bond v. Reid, supra. The Bond court, therefore, distinguished a case to establish a copy of a lost will from a case challenging the validity of a will. See also Loftin v. Carroll County Bd. of Education, 195 Ga. 689(1), 25 S.E.2d 293 (1943) (holding that the Supreme Court does not have jurisdiction over a case to establish a copy of a deed claimed to have been lost); Mize v. Harber, 189 Ga. 737, 742, 8 S.E.2d 1 (1940) (holding that copies previously established as replacements for lost original court documents were "in substance record evidence, and [are] entitled to as much weight as the [original documents] would have been given" as long as the statutes regarding the proper procedure for the recording of the originals had been followed). In Baker, supra, this Court affirmed the establishment of a copy of the 1985 zoning ordinance, but we were careful to clarify that this issue was separate from the enforcement, adoption, or amendment of the ordinance. For example, we explained that "`[p]roperly construed, the [establishment] proceeding is not one to (enforce a zoning ordinance), but is one to establish a copy of a lost record (there)of. . . .' [Cit.]" East Ga. Land and Development Co. v. Baker, supra at 553(2), 690 S.E.2d 145. In explaining our rejection of a challenge to the reestablishment statute based upon an alleged violation of separation of powers and of the ZPL, we stated that having previously distinguished this proceeding from the enforcement of an ordinance, we must now distinguish it from the adoption or amendment of an ordinance. A proceeding to establish a lost or destroyed ordinance is more akin to the interpretation of legislation which has already become effective. . . . Because [the trial court's decree] did not constitute "final legislative action by a local government" resulting in [an] adoption or amendment, the decree was not a "zoning decision" to which the ZPL applies. [Cit.] East Ga. Land and Development Co. v. Baker, supra at 554-555(4), 690 S.E.2d 145. In this portion of Baker, we not only stated that 913 the reestablishment statute had no legislative or enforcement effect, but we also held that the establishment of a copy of a lost public record was not subject to the ZPL, which is the law under which EGL attacks the validity of the procedure the County used to enact the ordinance. Therefore, if the ZPL is inapplicable to a proceeding to establish a copy of a lost public record, then one can hardly claim that the issues with regard to the ZPL were settled and rendered moot in that very proceeding. Finally, an example will illustrate the differing effect of OCGA § 24-8-1 on a lost public record from any law addressing the validity or enforcement of that public record. Suppose a warranty deed is recorded in the county clerk's real estate records. Subsequently, however, the grantor's guardian initiates litigation contending that the deed is unenforceable because the grantor was incompetent at the time of execution. While the litigation is pending, the records in the clerk's office are destroyed by fire. The probate judge institutes proceedings under OCGA § 24-8-1 to establish copies of the lost records, including the lost warranty deed, which is subsequently established. The establishment of the copy of the lost warranty deed, however, does not validate the deed over the guardian's claims that the grantor was incompetent. Rather, the established copy is admissible as if it were the original, which was subject to claims of the grantor's incompetency. Likewise, in the present case, the establishment of a copy of the zoning ordinance does not miraculously cure issues related to its validity, but merely establishes the copy as an evidentiary substitute for the original and thus subject to any validity or enforcement issues that could be raised against the original, including whether the original ordinance was attached to the May 21, 1985 minutes as required by law. Consequently, the trial court erred in holding that Baker mooted any issue regarding the validity of the process used by the County to enact the original zoning ordinance, including whether the original zoning ordinance was attached to the minutes of the May 21, 1985 meeting. 2. EGL also contends that the trial court erred in granting summary judgment because material issues of fact exist regarding whether the zoning ordinance is invalid as vague. EGL contends that the zoning maps were not sufficiently identified to be incorporated by reference in the 1985 zoning ordinance. "Under the [ZPL], the adoption of a zoning map . . . must comply with the same notice and hearing requirements as the adoption of a zoning ordinance. [Cits.]" Mid-Georgia Environmental Mgmt. Group v. Meriwether County, 277 Ga. 670, 674(5), 594 S.E.2d 344 (2004). "The tests to be fulfilled to effectively accomplish `adoption of documents . . . by incorporation by reference' . . . are these: (1) The document must be sufficiently identified `so that there is no uncertainty as to what was adopted.' (2) The document must be made a public record. (3) It must be `accessible to members of the public who are, or may be, affected by it.' (4) The adopting (resolution) must give notice of this accessibility. [Cit.]" [Cit.] Reynolds v. Bd. of Commissioners of Paulding County, 180 Ga.App. 516, 349 S.E.2d 536 (1986). In the December 20, 2010 order, the trial court held that the County has satisfied all four of these tests with regard to the official zoning maps. The court pointed to Article V, Section 5-1 of the 1985 zoning ordinance, which states the following: The sectional atlas property maps bounded in one (1) volume entitled "Official Zoning District Maps for Newton County", hereinafter called Official Zoning Maps, with all notations, references and other information shown thereon shall be the official maps and are hereby made a part of this Ordinance. Said maps shall be made a public record and shall be kept permanently in the Courthouse of Newton County, where the maps or accurate reproductions thereof will be accessible to the general public. The above-quoted Section 5-1, as the trial court ruled, does satisfy the fourth requirement for a valid incorporation by reference. However, the record shows that a question remains regarding the first three tests for incorporation by reference. 914 According to the evidence, the volume of maps that was used as the official zoning maps at the time of EGL's request for a compliance letter was not designated the "Official Zoning District Maps for Newton County" as required by Section 5-1 of the zoning ordinance as well as the first test quoted above for a valid incorporation by reference. This volume was only designated as such after EGL initiated the present litigation. The trial court relied on the oral testimony of John Byce, who worked in the County's zoning office at the time of EGL's compliance request. Byce testified that, although the present maps were not designated as the official maps, the previous set of maps was so designated. However, "parol evidence cannot be used to establish that the [undesignated set of] map[s] is the one referred to in the ordinance. [Cits.]" City of Flovilla v. McElheney, 246 Ga. 552(1), 272 S.E.2d 287 (1980). While the adoption of documents in ordinances by incorporation by reference is valid where the document adopted is sufficiently identified and made a part of the public record ([cit.]), here the resolution required the map to be identified by [designation] and no such [designation appears on] the map. . . . It was therefore not apparent from documents or records thereof that the map was identical to the one which was incorporated by reference into the zoning resolution. Foskey v. Kirkland, 221 Ga. 773, 774(3), 147 S.E.2d 310 (1966). Therefore, the trial court erred by relying on parol evidence to provide a link between the original set of maps incorporated into the 1985 zoning ordinance and the set that is currently located in the zoning office. The importance of ensuring that the maps currently used by the County are identical to the ones incorporated by reference in the zoning ordinance is to provide certainty to the public as to what was actually adopted by the County and also to protect the public from any arbitrary changes of the ordinance or the maps that do not go through the requisite notice process outlined in the ZPL. The County claims that the original, designated volume of zoning maps has always existed and has been kept in the zoning administrator's office. However, the record shows that the County has never produced these originally designated maps which, if they do exist, would certainly settle this issue. As it stands presently, however, the evidence relied upon by the trial court to identify the County's official zoning maps was inadmissible. Judgment reversed and case remanded. All the Justices concur, except BENHAM and HINES, JJ., who dissent. BENHAM, Justice, dissenting. I write because I respectfully dissent to Division 1 of the majority opinion. The trial court was correct when it concluded that the question of the existence of an original ordinance was rendered moot when we affirmed in East Ga. Land and Dev. Co. v. Baker, 286 Ga. 551, 552, 690 S.E.2d 145 (2010), the establishment of a true and correct copy of the ordinance as the original ordinance. The trial court's decision is in line with the purpose of OCGA § 24-8-2 which is to ensure there is evidence of an original record on file with the County in the event of the record's loss or destruction. Appellant cannot continue to use the ordinance's inadvertent detachment from the minutes as a means to draw out this 14-year-old litigation and avoid, by a technical default, the possibility of an unfavorable outcome. In the reestablishment action, the trial court issued a March 20, 2009, order finding that the 1985 ordinance was attached to the council minutes on May 21, 1985. Specifically, after holding a bench trial and hearing evidence from appellant and appellees, the trial court unequivocally stated: "The Court finds that a zoning ordinance was adopted by the Newton County Board of Commissioners on May 21, 1985, and apparently had been attached to the official minutes of the meeting." (Emphasis supplied.) The trial court noted that the issue was a question of fact and based its final findings on various evidence presented, including the testimony of the county clerk who, in 1985, attached the ordinance in question to the minutes. In Baker, supra, we confirmed that "the superior court heard the case . . . [, that the superior court] found that the 1985 ordinance was 915 originally attached to the May 21, 1985 minutes," and we affirmed the trial court's decision in toto. 286 Ga. at 552, 690 S.E.2d 145. Then, on March 1, 2010, we expressly denied appellant's motion for reconsideration which requested this Court to exclude the phrase "found that the 1985 ordinance was originally attached to the May 21, 1985 minutes" from the opinion. Thus, as of 2010, any dispute regarding the attachment of the ordinance to the minutes in 1985 had been resolved between these parties going forward. See, e.g., OCGA § 9-11-60(h) (". . . any ruling by the Supreme Court . . . in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court. . . as the case may be"); In re T.M.G., 275 Ga. 543, 544, 570 S.E.2d 327 (2002) ("the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies" is barred by collateral estoppel). Appellant must now advance its case based on the substance of the ordinance, rather than rehashing a factual dispute that no longer exists. Accordingly, I would affirm the trial court's grant of summary judgment to appellees on this issue. I am authorized to state that Justice HINES joins in this dissent.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501175/	280 F. Supp. 2d 632 (2003) TORCH ENERGY MARKETING, INC., Plaintiff, v. PACIFIC GAS & ELECTRIC COMPANY, Defendant and Third-Party Plaintiff, v. Torch Energy Advisors, Inc., Third-Party Defendant. No. CIV.A.H-01-3402. United States District Court, S.D. Texas, Houston Division. August 13, 2003. 633 Anne M Rodgers, Fulbright & Jaworski, Gerard G Pecht, Fulbright and Jaworski, Houston, for Torch Energy Marketing Inc, plaintiff. Mitchell E Ayer, Thompson & Knight LLP, Rhett G Campbell, Thompson & Knight LLP, Houston, for Pacific Gas & Electric Company, defendant. MEMORANDUM AND ORDER ROSENTHAL, District Judge. This declaratory judgment action arose from a California Production Balancing Agreement ("CPBA") between plaintiff, Torch Energy Marketing, Inc. ("TEMI"), and defendant, Pacific Gas and Electric ("PG & E"). Under the CPBA, TEMI distributed natural gas through a pipeline PG & E owned. The contract required delivery of a specified amount of gas. Failure to deliver less than the specified amount in a given month created an imbalance. If TEMI did not act to correct the imbalance within a set period, and the accrued imbalance exceeded a set amount, PG & E would "cashout" the imbalance and TEMI would owe PG & E the cashout sum. For a number of months, TEMI's deliveries of gas to PG & E's pipeline under the contract were insufficient and created imbalances, which TEMI failed to correct. TEMI repeatedly incurred charges under the CPBA automatic cashout provisions. PG & E, however, failed to invoice TEMI for these charges during the first three years of the contract. TEMI did not pay any of the cashout charges it incurred. PG & E eventually discovered its failure to invoice TEMI for the cashout amounts and sought payment from TEMI, although PG & E did not seek interest on the past due amounts. TEMI refused to pay. 634 TEMI sought a declaratory judgment that the CPBA cashout imbalance payment provisions are unenforceable because PG & E did not timely invoice TEMI for the cashout amounts. PG & E counterclaimed against TEMI for the amount PG & E claims it is owed, the accrued cashout amounts without interest. (Docket Entry No. 6). PG & E also filed a third-party claim against Torch Energy Advisors, Inc. ("TEAI") (Docket Entry No. 8), seeking to enforce the General Guarantee Agreement ("the Guarantee") between TEAI and PG & E, under which TEAI agreed to guarantee TEMI's obligations under the CPBA. PG & E moved for partial summary judgment against TEAI, (Docket Entry No. 17), contending that, as a matter of law, TEAI is liable to PG & E under the Guarantee despite PG & E's failure to invoice TEMI. PG & E asked this court to find that the Guarantee requires TEAI to pay PG & E for the gas it supplied to keep the pipeline balanced under the CPBA with TEMI. PG & E also seeks the attorney fees it incurred in enforcing the Guarantee. TEMI and TEAI moved for summary judgment against PG & E, (Docket Entry No. 18), arguing that the cashout provisions of the CPBA are unenforceable punitive liquidated damages under California law; that PG & E's failure timely to invoice TEMI breached the CPBA and made the cashout imbalance provisions, or, alternatively, the entire contract, unenforceable; that PG & E caused TEMI's imbalances by increasing the pressure in its pipeline and making gas deliveries more difficult; and that all the defenses available to TEMI under the CPBA are also available to TEAI under the Guarantee. In response, PG & E filed a cross-motion for summary judgment against TEMI, asserting that undisputed facts showed its entitlement to the accrued cashout amounts under the CPBA, not including interest. (Docket Entry No. 20). PG & E agreed that the consequence of its failure to issue timely invoices for the cashout amounts is its inability to recover interest for the period TEMI had the use of the money. In an amended complaint, TEMI and TEAI added California state law claims for breach of the covenant of good faith and fair dealing; laches; and estoppel, which TEMI and TEAI argued excused payment of the cashout amounts. (Docket Entry No. 31). TEMI and TEAI also argued that PG & E's failure to send invoices created a course of performance that modified the terms of the original contract. In its Memorandum and Opinion of March 31, 2003, (Docket Entry No. 66), this court held that TEAI was entitled to assert the defenses to payment available to TEMI; that PG & E had not waived its right to recover cashout amounts by failing timely to invoice those amounts; that PG & E's failure timely to invoice the cashout amounts was not a material breach of the CPBA that excused TEMI's performance; that PG & E did not breach the covenant of good faith and fair dealing; that PG & E's course of dealing had not modified the contract so as to allow TEMI volumetrically to balance over time; that PG & E's recovery was not barred by the doctrine of laches; and that fact issues remained precluding summary judgment on TEMI's equitable estoppel defense to payment of the cashout amounts. PG & E has moved for reconsideration of this court's denial of summary judgment of TEMI's equitable estoppel claim. PG & E contends that under California law, the defense of equitable estoppel is unavailable in this case. TEMI has moved for reconsideration of this court's rulings that PG & E did not modify the CPBA through its course of dealing and that the failure timely 635 to invoice cashouts was not a material breach of the CPBA. Based on the motions and responses; the record; and the applicable law, this court GRANTS PG & E's motion for reconsideration and DENIES TEMI's motion for reconsideration. The reasons are explained below. I. PG & E's Motion for Reconsideration PG & E contends that under California law, the affirmative defense of equitable estoppel is not available in disputes involving utility rates approved by the California Public Utility Commission ("CPUC"). TEMI responds that it is not challenging PG & E's filed rates, but rather PG & E's failure timely to invoice cashouts. California law applies to this case. This court's Erie role is to apply existing California law. United Parcel Serv., Inc. v. Weben Indus., Inc., 794 F.2d 1005, 1008 (5th Cir.1986). The California Supreme Court has not addressed whether the defense of equitable estoppel is available in cases in which a utility fails to invoice charges. "When making an Erie-guess in the absence of explicit guidance from the state courts, [this court] must attempt to predict state law, not to create or modify it." Assoc. Inter. Ins. Co. v. Blythe, 286 F.3d 780, 783 (5th Cir.2002) (citation omitted). The court "must do that which [it] thinks the [California] Supreme Court would deem best." Morin v. Moore, 309 F.3d 316, 324 (5th Cir.2002) (citation omitted). This court's Erie duty leads it to consider California appellate court case law to predict what the California Supreme Court would likely rule if confronted with the issue. Id. California Public Utility Code § 532 provides: Except as in this article otherwise provided, no public utility shall charge, or receive a different compensation for any product or commodity furnished or to be furnished, or for any service rendered or to be rendered, than the rates, tolls, rentals, and charges applicable thereto as specified in its schedules on file and in effect at the time, ... nor shall any such public utility refund or remit, directly or indirectly, in any manner or by any device, any portion of the rates, tolls, rentals, and charges so specified, nor extend to any corporation or person any form of contract or agreement or any rule or regulation or any facility or privilege except such as are regularly and uniformly extended to all corporations and persons. Under section 532, "[a] public utility `cannot by contract, conduct, estoppel, waiver, directly or indirectly increase or decrease the rate as published in the tariff ....'" Empire West v. S. California Gas Co. 12 Cal. 3d 805, 117 Cal. Rptr. 423, 528 P.2d 31, 33 (Cal.1974) (quoting Transmix Corp. v. S. Pac. Co., 187 Cal. App. 2d 257, 264, 9 Cal. Rptr. 714 (Cal.Ct.App. 1960)). Scheduled rates must be inflexibly enforced to maintain equality for all customers and to prevent collusion, which otherwise might be easily and effectively disguised. Id. "[A]s a general rule, utility customers cannot recover damages which are tantamount to a preferential rate reduction even though the utility may have intentionally misquoted the applicable rate." Id. California Public Utility Code § 2106 provides: Any public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful, or which omits to do any act, matter, or thing required to be done, either by the Constitution, any law of this State, or 636 any order or decision of the commission, shall be liable to the persons or corporations affected thereby for all loss, damages, or injury caused thereby or resulting therefrom. An award of damages under section 2106 is barred by California Public Utility Code § 1759 if it would "have the effect of undermining a general supervisory or regulatory policy of the [CPUC], i.e. when it would `hinder' or `frustrate' or `interfere with' or `obstruct' that policy." San Diego Gas & Elec. Co. v. Superior Court of Orange County, 13 Cal. 4th 893, 55 Cal. Rptr. 2d 724, 920 P.2d 669, 683 (1996) (citations omitted).[1] California law does not permit discounts or rebates of approved rates. South Tahoe Gas Co. v. Hofmann Land Improvement Co., 25 Cal. App. 3d 750, 760-61, 102 Cal. Rptr. 286 (Cal.Ct.App.1972). "The collection of undercharges ... has been held to be one of the most effective means of preserving the minimum rate structure and of eliminating collusion between carriers and shippers" and "to maintain the integrity of the order of [the] Public Utilities Commission." Id. (citing People v. Ryerson, 241 Cal. App. 2d 115, 120, 50 Cal. Rptr. 246 (Cal.Ct.App.1966); West v. Holstrom, 261 Cal. App. 2d 89, 97, 67 Cal. Rptr. 831 (Cal.Ct.App.1968)). The South Tahoe court stated that a customer cannot defeat recovery of an undercharge, discount, or rebate by claiming that the contract was illegal. South Tahoe, 25 Cal. App.3d at 761, 102 Cal. Rptr. 286. In this case, PG & E essentially undercharged TEMI when it failed timely to invoice the cashout amounts as they accrued. TEMI now seeks to avoid the cashout charges that resulted from TEMI's failure to balance its accounts on PG & E's pipeline. The cashout provisions are part of the CPBA, which the CPUC approved. TEMI acknowledges that it owes PG & E the market cost of the gas TEMI sold in those months in which it underdelivered. TEMI only seeks to avoid paying the cashout rate of 150% of that cost.[2] To allow TEMI to avoid paying the accrued charges would effectively reduce the cashout rate the CPBA provides. The result would be a rate reduction, barred by section 532 and the strong California policy against discounts and rebates in regulated utilities. The courts of several states have held that "where a statute requires a public utility to charge similarly situated customers according to a standard rate schedule, it contravenes public policy to preclude a public utility from collecting the full amount due for its services, even where the public utility has negligently underbilled its customer." Cincinnati Gas & Elec. Co. v. Joseph Chevrolet, 153 Ohio App. 3d 95, 791 N.E.2d 1016, 1022 (2003); see also Memphis Light, Gas & Water Div. v. Auburndale Sch. Sys., 705 S.W.2d 652 (Tenn.1986)(customer negligently underbilled 637 for years could not assert equitable estoppel as defense to payment); Goddard v. Pub. Serv. Co. of Colorado, 43 Colo. App. 77, 599 P.2d 278 (1979)(apartment owners who set rent based on gas bills that were too low unable to assert estoppel claim against gas company under public utility law disallowing rebates or refunds of utility charges); Chesapeake & Potomac Tel. Co. of Virginia v. Bles, 218 Va. 1010, 243 S.E.2d 473 (1978)(under statute similarly worded to section 523, utility customer could not assert equitable estoppel defense to payment of undercharges). These states, like California, have strong public policies supporting a utility's recovery of undercharges to maintain the fairness of the regulated rate system, precluding the assertion of equitable defenses to recovery. TEMI contends that it does not dispute the CPBA's cashout rates, but rather the manner in which PG & E billed TEMI. TEMI relies on Empire West and Cundiff v. GTE California, Inc., 101 Cal. App. 4th 1395, 1405, 125 Cal. Rptr. 2d 445 (Cal.Ct. App.2002) to support the argument that it may assert equitable estoppel as a defense to payment on the basis that PG & E's billing error caused TEMI unknowingly to continue to accrue the cashout charges. Empire West and Cundiff are distinguishable from this case. In Empire West, the plaintiff, an apartment complex developer, received an estimate of the cost of a central gas heating and cooling system for a planned apartment complex from the defendant gas company. Defendant underestimated the yearly operating cost of the gas system. Plaintiff alleged that the defendant knew its estimate was based on inaccurate data and had fraudulently induced plaintiff to purchase the central gas system. Plaintiff contended that it would have installed an electric heating and cooling unit had defendant accurately estimated the cost of a gas system. The court held that plaintiff did not seek preferential rate treatment and could proceed on its fraudulent inducement claim. Empire West, 117 Cal. Rptr. 423, 528 P.2d at 33-34 ("we think that a utility customer who has actually been damaged by a utility's fraudulent misrepresentations regarding matters not contained in the published tariffs should be entitled to bring suit to recover those actual damages."). The plaintiff in Empire West alleged damages from misrepresentations about the quantity of gas an apartment complex would consume, that induced plaintiff to install a gas heating and cooling system rather than an electric system. By contrast, PG & E did not make misrepresentations about future costs to induce TEMI to use its system. The Empire West court cited a CPUC decision holding that a utility's fraudulent statement to a prospective customer to induce business is actionable in a court of law. Empire West, 117 Cal. Rptr. 423, 528 P.2d at 34-35 and n. 4 ("As the commission explains, it is clear that ordinary rules permitting the limitation of liability do not apply to situations involving fraud or wilful misconduct."). TEMI does not allege that PG & E committed fraud or wilful misconduct by failing timely to send cashout invoices. TEMI does not seek damages other than the monthly cashout charges it admittedly accrued, but for which it was not invoiced. TEMI is challenging the 150% rate applied to uncorrected imbalances. Challenges to rates and to charges incurred but not billed through the utility's mistake do not fall under Empire West. TEMI also relies on Cundiff to support its equitable estoppel claim. In that case, the plaintiffs received a monthly bill from the defendant telephone company containing a charge for "equipment rental." The 638 bills did not explain that the "equipment rental" charge included outdated and no longer used rotary telephones.[3] Plaintiffs argued that the vague characterization of the phone rental charges as "equipment rental" deceived them into believing that the charges covered equipment still in use. The court found that the plaintiffs' action was permitted under section 2106 and not barred by section 1759. The court stated: Assuming arguendo that the amount of money defendants charged each month as rent for telephones, we do not perceive the thrust of plaintiffs' complaint to be a challenge to that amount. Nor do we perceive this as a suit challenging the commission's decision to allow defendants to rent telephones to their customers. Rather, plaintiffs are challenging the manner in which defendants billed them for rental of telephones, specifically, the alleged lack of information given to plaintiffs about the rental charge. The gist of this suit is the alleged deception, intentional or negligent, resulting in plaintiffs' unknowingly paying rent month after month, year after year for telephones they do not use, whose value is less than the cumulative rent plaintiffs paid to them. Cundiff, 101 Cal.App.4th at 1406-07, 125 Cal. Rptr. 2d 445 (emphasis in original). TEMI argues that it is only challenging PG & E's manner of billing and not the CPUC-approved cashout rates. TEMI contends that "th[is] suit actually furthers policies of the commission because it seeks to force defendants to bill their customers in such a way that the customers are fully informed of the nature of defendants' charges." Id. at 1408, 125 Cal. Rptr. 2d 445. TEMI's characterization of its suit is inconsistent with its statement that it is willing to pay market price for gas it nominated into the PG & E pipeline but did not deliver and "simply disputes PG & E's right to impose penalties on TEMI when PG & E did not timely invoice TEMI." (Docket Entry No. 54, p. 4; Carthrae Aff. at ¶ 12). Moreover, unlike the telephone company in Cundiff, PG & E provided TEMI with other information about TEMI's account status. Despite the absence of timely invoices, the record shows that PG & E provided other information that TEMI could have used to learn of the need to make adjustments to avoid cashouts. This case involves failure to bill, resulting in undercharges, rather than deceptive billing; California courts consistently and expressly support the collection of undercharges resulting from the utility's mistaken failure to send bills. "The duty of a carrier to collect undercharges, when ordered to do so by the Public Utilities Commission, is based on salutary public policy and is one of the most effective ways of preserving the minimum rate schedule." West, 261 Cal.App.2d at 97, 67 Cal. Rptr. 831. TEMI argues that its equitable estoppel claim is supported by California Public Utilities Code § 453, which provides: (a) No public utility shall, as to rates, charges, services, facilities, or in any other respect, make or grant any preference or advantage to any corporation or person or subject any corporation or person to any prejudice or disadvantage. ... 639 (e) The [CPUC] may determine any question of fact under this section. TEMI argues that PG & E subjected it to prejudice and disadvantage by failing timely to invoice the cashout amounts. TEMI cites an Iowa case, Interstate Power Co. v. Waukon Manor, Inc., 447 N.W.2d 574 (Iowa Ct.App.1989). The Iowa court held that statutory language similar to sections 523 and 453 allowed a plaintiff to defend against backbilling by a utility that had inaccurately calculated the plaintiff's bill.[4] No cases from California or other jurisdictions cite Interstate Power to support an estoppel defense to accrued charges resulting from a utility's failure to bill. "Although couched in general terms of `any' prejudice or disadvantage [section 453(a)], from the outset, has been interpreted, consistent with traditional common law, principles, to prohibit only unjust or unreasonable differential treatment." Gay Law Students Ass'n v. Pac. Tel. & Tel. Co., 24 Cal. 3d 458, 156 Cal. Rptr. 14, 595 P.2d 592, 603 (1979). "Unless discrimination in some form is present, section 453, subsection (a), simply does not apply." Andersen v. Pac. Bell, 204 Cal. App. 3d 277, 285, 251 Cal. Rptr. 66 (1988).[5] PG & E admits that it made an error by failing timely to invoice TEMI for cashout amounts. This court's "Erie guess" is that the California Supreme Court would not treat PG & E's admittedly inadvertent error as "discrimination" under section 453(a). PG & E did not engage in rate discrimination or hiring discrimination. Cf. United States Steel Corp. v. Pub. Util. Comm'n, 29 Cal. 3d 603, 175 Cal. Rptr. 169, 629 P.2d 1381 (1981) (rate discrimination between different localities violates section 453); Gay Law Students Ass'n, 24 Cal. 3d 458, 156 Cal. Rptr. 14, 595 P.2d 592 (hiring discrimination against homosexuals violates section 453). PG & E did not intentionally fail to invoice TEMI for cashouts. TEMI does not allege that PG & E had a policy of favoring some customers over others. The remedy TEMI seeks, a declaration that PG & E is not entitled to enforce the "penalty" cashout provision, itself discriminates in favor of TEMI, in violation of section 523, by allowing TEMI to avoid cashout rates applicable to other gas distributors who accrued similar imbalances. TEMI would effectively receive a rebate from the filed cashout rates. Section 453 does not provide TEMI a defense to payment of the cashout rates. On reconsideration, this court finds that equitable estoppel is not available as an 640 affirmative defense under California law under the present record. TEMI and PG & E are both sophisticated gas companies with experience in the industry. PG & E inadvertently failed timely to invoice TEMI for cashout amounts, but provided the 600 Reports containing information that TEMI could have used to learn the status of its accounts and restore them to balance. California courts strongly enforce payment of undercharges to maintain the fairness of the regulated rate system. TEMI has not alleged that PG & E made fraudulent misrepresentations intended to induce TEMI to increase the size of its imbalance. PG & E's motion to reconsider is GRANTED. TEMI's equitable estoppel cause of action is DISMISSED, with prejudice. II. TEAI's and TEMI's Cross-Motion for Reconsideration A. Modification PG & E produced to TEMI several documents on May 21, 2003, including an email exchange among several PG & E employees. (Docket Entry No. 72, Ex. A). TEAI and TEMI contend that newly-discovered evidence creates a fact issue as to whether PG & E and TEMI's course of dealing modified the CPBA. In one of the email responses, a PG & E employee, Chuck Taylor, explains PG & E's past practices in cases in which cashout imbalances are not timely paid: If PG & E contributed in some way to the problem (i.e. failed to deliver an imbalance statement in a timely manner, told the customer that they did not have to make up the volumes, etc.) which contributed to the situation, we have allowed those imbalance volumes for those months to be made up in-kind in months subsequent to the cashout bill. For bills which cover long periods, we have made payment arrangements with the customer to repay the "old" charges, generally up to the time span of the old charges, and most often not more than a year. The arrangements always include payment of current ($663,200.57). Credit and Collection would have to be involved in arrangements involving the size of these bills. (Id. at p. 2). Although PG & E did fail to send invoices, it did timely make the 600 Reports available to TEMI, giving TEMI information and time necessary to correct imbalances before they were cashed out. There is no evidence that anyone at PG & E told anyone at TEMI that it did not have to make up the volumes, or that Rousselot, Patterson, or anyone else at TEMI believed that volumetric balancing over time was an available option. (Docket Entry No. 66, Memorandum and Order of March 31, 2003, at 41). Section 532 expressly prohibits PG & E from modifying any terms of the CPUC-approved CPBA by course of performance for the benefit of a particular customer. The recently discovered email does not affect this court's conclusion that PG & E's course of performance did not modify the CPBA. TEAI's and TEMI's motion to reconsider this court's finding that PG & E's course of performance modified the CPBA is DENIED. B. Material Breach of the CPBA In the email exchange, Cathy Paulsen, a PG & E employee asked, "I'm just curious why [TEMI] didn't do anything when they received the imbalance statement?" (Docket Entry No. 72, Ex. A at 1). Katherine Moran, another PG & E employee, responded, "According to our records it appears that Torch did do some trading early on. Looks like they stopped in mid 1999. I don't know why. Maybe *641 they figured that since they didn't get billed for cashouts why bother trading? ? I do know that the person responsible for the CPBA at Torch left the company last year and they didn't even have his password to InsideTracc in order to nominate gas." (Id.). TEAI and TEMI contend that Moran's response supports their argument that PG & E's failure timely to invoice cashouts was a material breach of the CPBA, because TEMI would have altered its behavior in response to timely cashout invoices. Moran's email does not create a disputed fact issue material to deciding whether PG & E's failure timely to invoice cashouts was a material breach of the CPBA. Moran's response does not support an inference that TEMI believed that PG & E was not invoicing cashouts because TEMI had properly balanced its account. If anything, Moran's response suggests that TEMI relied on PG & E's continued failure to send invoices as a reason to avoid trading, without regard for whether the accounts were balanced or not. The Moran email in part notes TEMI's failure to access Inside Tracc, PG & E's online system for providing gas account information. That failure is consistent with this court's previous finding that PG & E had provided TEMI the information needed to balance its gas deliveries and avoid cashouts, but TEMI failed to use this information. TEAI and TEMI also contend that this court must strictly construe the CPBA against PG & E. "[I]f there is an ambiguity in a tariff any doubt in its interpretation is to be resolved in favor of the shipper." Transmix Corp., 187 Cal.App.2d at 267, 9 Cal. Rptr. 714. This court did not find that the CPBA was ambiguous. Rather, this court found that PG & E's failure timely to invoice cashout amounts was not a material breach of the CPBA that frustrated the basic purpose of the contract and excused TEMI's performance. TEAI's and TEMI's motion for reconsideration of this court's finding that PG & E's failure timely to invoice cashout amounts was not a material breach of the CPBA is DENIED. III. Conclusion PG & E's motion for reconsideration is GRANTED. TEAI's and TEMI's equitable estoppel cause of action is DISMISSED with prejudice. TEAI's and TEMI's motion for reconsideration of this court's findings that the CPBA was not modified by the parties' course of dealing and that PG & E's failure timely to invoice cashout amounts was not a material breach of the CPBA is DENIED. No later than August 29, 2003, the parties must file a written submission identifying any remaining issues or a proposed form of final judgment. NOTES [1] Section 1759 provides: "No court of this state, except the Supreme Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties, as provided by law and the rules of court." [2] "This lawsuit is about penalty charges.... TEMI has always made it clear that it is willing to pay PG & E market price for the underdelivered gas.... TEMI initiated this lawsuit specifically seeking a declaration that PG & E is not entitled to a penalty price for the underdelivered gas...." (Docket Entry No. 54 (TEMI's Reply to PG & E's Response to the Supplement to TEMI's Motion and TEAI's Cross-Motion for Summary Judgment), p. 1)(emphasis in original). [3] Before the telephone industry was deregulated in 1984, customers were required to rent their telephones from the telephone company. After 1984, telephone customers were able to purchase telephones from vendors other than their telephone service provider. Several telephone companies eliminated their telephone rental programs, but defendant continued to rent telephones. Cundiff, 101 Cal.App.4th at 1401-02, 125 Cal. Rptr. 2d 445. [4] Iowa Code § 476.5 states: "No public utility shall make or grant any unreasonable preferences or advantages as to rates or services or subject any person to unreasonable prejudice or disadvantage." [5] The legislative history of section 453 supports PG & E's argument that a billing error lacks the willful intent needed to be considered impermissible discrimination. Chapter 2, section 2 of the 1878 predecessor to section 453 stated: "A railroad company shall be deemed guilty of unjust discrimination in the following cases: First When it shall directly or indirectly willfully charge, demand, or receive from any person or persons any less sum for passage or persons any less sum for passage or freight than from any other person or persons at the same time, between the same places, and the same direction, for the like class of passage, or for the like quantity of goods of the same class. Second When it shall directly or indirectly willfully charge, demand, or receive from any person or persons, as compensation for receiving, handling, storing, or delivering any lot of goods or merchandise, any less sum than it shall charge, collect, or receive from any other person for the like service, to a like quantity of goods of the same class, at the same place." Gay Law Students Ass'n, 156 Cal. Rptr. 14, 595 P.2d at 605 n. 12. Later modifications of what became section 453 increased the reach of the statute beyond rate discrimination. Id. at 605. The court did not find, however, that the modified statute no longer required the discrimination be "willful."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501630/	270 F. Supp. 2d 687 (2003) Rose CRAIG v. MARYLAND AVIATION ADMINISTRATION No. CCB 01-3506. United States District Court, D. Maryland. July 3, 2003. 689 George Edwin Golomb, Law Office of George Golomb, Baltimore, MD, for plaintiff. John Charles Bell, Maryland Office of the Attorney General Department of Transportation, Hanover, MD, John Ki, Janice G. Salzman, Office of Atty. Gen., Md. Aviation Admin., Bwi Airport, MD, For Defendants. MEMORANDUM BLAKE, District Judge. The defendant, the Maryland Aviation Administration, has moved for summary judgment against the plaintiff, Rose Craig. The issues in this motion have been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons stated below, the motion for summary judgment will be granted in part and denied in part. Factual Background Rose Craig, the plaintiff, is employed by the Baltimore Washington International Airport's ("BWI") Fire and Rescue Department, which is a part of the defendant, the Maryland Aviation Administration. The Fire and Rescue Department provides fire and emergency service to BWI. Ms. Craig has worked at BWI since 1992 as a paramedic and is also trained as a fire-fighter. During her time at BWI, Ms. Craig has served as both a firefighter and a paramedic. The Fire and Rescue Department organizes its firefighters and paramedics into four shifts, A through D. Each shift lasts twenty-four hours and begins at seven in the morning. After working a shift, an employee typically then has seventy-two hours off. Each shift has a Division Chief who is responsible for the operation of the shift and who reports to the Chief of the Fire and Rescue Department. During the events at issue in this action, the Chief of the Fire and Rescue Department was Thomas Mack.[1] In January, 2000, the defendant created a position called a "Paramedic Lieutenant" on each shift. The paramedic lieutenant was to supervise the paramedics on the shift. Firefighters were to be supervised by the fire lieutenant after the paramedic lieutenant position was created.[2] In order to fill these positions, they invited those employees who met the qualifications to apply. Eight people applied. Because there are four shifts, there were four positions open. Ms. Craig was not one of the four initially selected to serve as a paramedic lieutenant. However, in order to have someone filling the role of a paramedic lieutenant when a shift's paramedic lieutenant was not working, the defendant gave the four people who applied but were not selected the position of acting paramedic lieutenant. An acting paramedic lieutenant was assigned to each shift, and would perform the functions and receive the pay of the paramedic lieutenant when that shift's paramedic lieutenant was unable 690 to work. Ms. Craig became an acting paramedic lieutenant on A shift in January, 2000. In June 18, 2000, for reasons that the parties agree were unrelated to any alleged discrimination, Ms. Craig resigned her position as an acting paramedic lieutenant. (Def.Mem.Ex. 2.) She remained on A shift as a paramedic. On January 11, 2001, Ms. Craig asked to be assigned to an acting paramedic lieutenant position again. (Def.Mem.Ex. 3.) She specified that she was "willing to transfer to another shift if it becomes necessary." (Id.) Through the winter and spring of 2001, the acting paramedic lieutenant position on each shift became available. Ms. Craig was not assigned the position on the A shift, B shift, or C shift, but, on March 12, 2001, she was told that she would transferred to D shift to become the acting paramedic lieutenant of that shift effective April 1. D shift, however, already had an acting paramedic lieutenant, with whom Ms. Craig would have to share duties. On March 26, 2001, Ms. Craig filed a complaint of discrimination with the MAA's Office of Fair Practices asking to be named to C shift, and alleging she was discriminated against when she was not promoted because she is female. On May 9, 2001, Ms. Craig was transferred to C shift effective June 17, 2001. On May 21, 2001, Ms. Craig filed a complaint of discrimination with the Maryland Commission on Human Relations and the Equal Employment Opportunity Commission. Ms. Craig alleges that the defendant retaliated against her for protected activity in three ways. First, on August 31, 2001, Ms. Craig asked that she no longer be required to ride a fire engine as a part of her duties on C shift. This request was denied, allegedly as retaliation for the complaint she filed with the MAA's Office of Fair Practices. Second, on September 13, 2001, Ms. Craig requested new fire fighting equipment to replace worn out gear. She was given new equipment, but alleges that it was unsafe because it did not fit her properly. On November 4, she requested properly-fitting equipment and in mid-November she was given new equipment. She alleges being issued unsafe equipment was retaliation for filing her discrimination complaint. Finally, on October 26, 2001, Ms. Craig was asked to assist with an emergency medical technician class at the Anne Arundel County Fire Academy. The defendant agreed to pay overtime to Ms. Craig for her time teaching the class. On November 21, 2001, the defendant informed Ms. Craig that she would no longer be paid to teach the class, rather she would have to volunteer on her own time if she were to continue teaching. Ms. Craig alleges this was retaliation for complaining about Chief Mack's conduct at a party in December of 2000. Specifically, Chief Mack told another employee of the defendant that he would like to see her "with nothing but high heels on." This was overheard by Ms. Craig and her mother, who brought the remark to the attention of Ms. Craig's union. Legal Framework Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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." The Supreme Court has clarified that this does not mean any factual dispute will defeat the motion, rather, "[b]y its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an 691 otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., All U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (emphasis in original). Further, "the party opposing a properly supported motion for summary judgment may not rest upon the mere allegations in his pleading but must set forth specific facts that show there is a genuine issue for trial." Allstate Financial Corp. v. Financorp, Inc., 934 F.2d 55, 58 (4th Cir.1991). The court must "view the facts and draw reasonable inferences in a light most favorable to the nonmoving party," Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994), but it also must abide by its affirmative obligation to ensure that factually unsupported claims and defenses do not proceed to trial. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Discrimination Claims Ms. Craig alleges that she was not promoted to the acting paramedic lieutenant positions of A shift, B shift, and C shift because of her gender. A plaintiff in a Title VII case can prove discrimination either through direct evidence or circumstantial evidence. See Thompson v. Potomac Electric Power Co., 312 F.3d 645, 649 (4th Cir.2002) ("Because [the plaintiff] presented no direct evidence of discriminatory denial of training based on race, he was obliged to proceed under the McDonnell Douglas proof scheme ...."); Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1354 (4th Cir.1995) (citing United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 n. 3, 103 S. Ct. 1478, 75 L. Ed. 2d 403 (1983), for the proposition that "In a Title VII action, `[a]s in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence.'"). In this case, Ms. Craig has produced both direct and circumstantial evidence of discrimination. Circumstantial evidence is evaluated under the familiar McDonnell Douglas burden shifting regime. First, the plaintiff must prove a prima facie case of discrimination. "In order to establish a prima facie case [of a failure to promote in violation of Title VII], [the plaintiff i]s required to demonstrate by a preponderance of the evidence that: (1) she is a member of a protected class; (2) her employer had an open position for which she applied; (3) she was qualified for the position; and (4) she was rejected for the position under circumstances giving rise to an inference of unlawful discrimination." Taylor v. Virginia Union University, 193 F.3d 219, 230 (4th Cir.1999) If the plaintiff is able to prove a prima facie case the burden of going forward then shifts to the employer to articulate a non-discriminatory reason for the failure to promote. If the employer is able to articulate such a non-discriminatory reason, the burden shifts back to the plaintiff to show that the articulated reason is pretextual. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146-49, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) (clarifying evidentiary burdens as set forth under McDonnell Douglas). A Shift On January 11, 2001, when Ms. Craig asked to be assigned to an acting paramedic lieutenant position, the defendant maintains that Robert Lowery had already been named to that position. The affidavits of both Mr. Lowery and the decision-maker, Lieutenant Fayer, support that contention. (Def. Mem. Ex. 24 at f 13; Ex. 25 at ¶ 4.) Ms. Craig disputes this assertion, however, on the basis that she had been working on A shift during the time Mr. Lowery was serving as acting 692 paramedic lieutenant for that shift and she was not aware he had the position. (PI. Mem. Ex. C ¶ 3.) Further, she argues, when she submitted her request to begin serving as the acting paramedic lieutenant on A shift, she was not told that Mr. Lowery had been named to the position and she thinks that she would have been. (Pl Mem. Ex. K at 16.) The defendant responds to Ms. Craig's first argument by noting that acting paramedics only serve if the paramedic lieutenant is absent. Thus, the only time one would expect that those on the shift would be aware that a person is an acting paramedic lieutenant is if the paramedic lieutenant is not at work. Ms. Craig has produced no evidence that the paramedic lieutenant was absent from work before January 11, 2001; thus, there is no reason she would have known that Mr. Lowery had been promoted. Further, even if Ms. Craig's account of when she submitted her request to act on A shift is credited, as it must be, it is simply insufficient to establish that Mr. Lowery was not appointed to the position in December of 2000. There is no genuine issue of material fact that Mr. Lowery had already been promoted to A shift when Ms. Craig applied for the position. For that reason, Ms. Craig's circumstantial case fails, because the defendant did not have an open position which she applied for. Further, her direct evidence case cannot succeed, because she cannot show that the defendant was motivated by gender when there was no open position. For that reason, the defendant's motion for summary judgment will be granted as to the defendant's failure to promote Ms. Craig to the acting paramedic lieutenant position on shift A. B Shift In March 2001, there was an opening on B shift for an acting paramedic lieutenant. The acting paramedic lieutenant on C shift, Brian Francis, was transferred to B shift and filled this opening. Ms. Craig argues that this opening was still subject to her January 11 request to be appointed an acting paramedic lieutenant, and that she submitted a further request on March 11 to be transferred to B shift. Despite the defendant's argument to the contrary, there is a genuine issue of material fact as to whether Ms. Craig applied for the position on B shift. Ms. Craig has produced compelling direct evidence through the deposition testimony of Garry Pace that she was discriminated against on the basis of her gender in the defendant's decision not to promote her to B shift. Mr. Pace was the Division Chief on D shift in the Spring of 2001. (Pl Mem. Ex. D at 6.) He testified that he was contacted by Lieutenant Fayer, the Division Chief of A shift, and was asked if Ms. Craig could transfer to D shift as an acting paramedic lieutenant. (Id at 13-15.) D shift already had an acting paramedic lieutenant, but Mr. Pace agreed that Ms. Craig could come to D shift as an additional acting paramedic lieutenant with the expectation that she would only serve when the other acting paramedic lieutenant and the paramedic lieutenant were unavailable. (Id.) Mr. Pace was then called at home by Chief Mack and instructed to rotate the acting paramedic lieutenants on his shift to give both acting paramedic lieutenants an opportunity to serve, contrary to the past practice of the defendant. (Id.) Mr. Pace asked Chief Mack why Ms. Craig wasn't simply put on the B shift, instead of being transferred to the D shift, because, at that time, the B shift was without an acting paramedic lieutenant. (Id. at 15.) Chief Mack informed Mr. Pace that Ms. Craig would be placed on D shift and rotated, rather than B shift, which would deny the acting paramedic lieutenant on D shift as many opportunities to serve as an acting paramedic lieutenant, 693 because "we've already got one female acting lieutenant, they're taking over the department now, we don't need any more. Put [Ms. Craig] over there and we'll rotate her, that will get everybody mad at her... and then maybe that'll take care of the problem." (Id. at 16.) On a motion for summary judgment, credibility determinations are resolved in favor of the nonmoving party. If Mr. Pace's deposition testimony is credited, Ms. Craig has produced direct evidence that she was not given the position on B shift because of her gender. For that reason, the defendant's motion for summary judgment as to the promotion to B shift will be denied. C Shift When Mr. Francis was transferred from C shift to B shift, this created a vacancy on C shift. The defendant appointed James Clopein to be the acting paramedic lieutenant on C shift. Mr. Clopein had previously served as a paramedic on C shift. Ms. Craig argues both that her January 11 application was an application for this position on C shift, and that she orally asked to be placed in the acting paramedic position on C shift. The court determines that there is a genuine issue of material fact as to whether Ms. Craig applied for the position on C shift. Further, Ms. Craig has produced sufficient direct evidence of discrimination to survive the motion for summary judgment as to the defendant's failure to promote her to C shift. The decision as to whether Ms. Craig should be promoted to C shift was made at the same time as that described in Mr. Pace's deposition as to whether Ms. Craig should be promoted to B shift. Mr. Pace's deposition testimony, therefore, is direct evidence that Chief Mack was both intimately involved in the decisions about who would be placed in the acting paramedic lieutenant positions at the time when the decision about C shift was made, and that Chief Mack was of the opinion that the defendant did not "need any more" female acting paramedic lieutenants because they were "taking over the department." Mr. Pace's deposition testimony also indicates that Chief Mack was concerned about thwarting Ms. Craig's success in particular. For these reasons, resolving all inferences in favor of Ms. Craig, there is a genuine issue of material fact as to whether Ms. Craig was denied the acting paramedic lieutenant position on C shift because of her gender. The defendant's motion for summary judgment as to the decision not to promote her to C shift is therefore denied. Finally, the court notes that the plaintiff has put forth compelling evidence that Chief Mack made a number of highly offensive comments to and about women during his tenure with the BWI Fire and Rescue Department in addition to the remarks directed at the assignment of Ms. Craig to D shift. Because the evidence which is discussed above is sufficient to survive a motion for summary judgment, the court need not determine at this time whether Chief Mack's other remarks are merely "stray remarks" under the applicable Fourth Circuit law or persuasive evidence of discrimination. Retaliation Claims Ms. Craig also claims that she was retaliated against for filing a claim of gender discrimination. After she filed the claim she alleges that she was forced to ride a fire engine after she asked not to, and she was issued allegedly unsafe equipment. Further, Ms. Craig sent a letter to her union complaining about an offensive comment Chief Mack made to a female supervisor at a party, which was brought to the attention of an Equal Employment Opportunity officer of the defendant. Ms. Craig alleges that, in retaliation for this complaint, she was no longer allowed to earn 694 overtime pay while teaching an EMT training course at Anne Arundel County Training Academy. A plaintiff makes a prima facie case of retaliation when she shows that: "(1) she engaged in a protected activity; (2) the employer took an adverse employment action against her; and (3) a causal connection existed between the protected activity and the asserted adverse employment action." Von Gunten v. Maryland, 243 F.3d 858, 863 (4th Cir.2001). It is not disputed that when each of the decisions underlying these claims happened Ms. Craig had engaged in a protected activity. Riding the Fire Engine in Unsafe Equipment Ms. Craig alleges that the defendant retaliated against her by forcing her to ride a fire engine in unsafe equipment after she filed a discrimination complaint. On September 13, 2001, she was issued equipment that allegedly did not fit her properly and was unsafe. (Complaint at ¶ 14.) This equipment was issued to her after she asked for new equipment because the equipment she had been using was worn out. (Def. Mem. Ex. 18 at 112.) On November 5, 2001, during the time Ms. Craig had this equipment, she was directed to ride a fire engine. (Pl. Mem. Ex. C at ¶ 15.) Ms. Craig has stated the first element of her prima facie case of retaliation, that she took a protected action by filing her complaint of discrimination. The defendant issued replacement equipment for the unsafe gear promptly after Ms. Craig requested it, however. She asked for new equipment on November 4, and after writing to the president of her local, she received new equipment later in November. (Complaint at ¶¶ 15, 16; Def. Mem. Ex. 18 at 117.) Based on this record, Ms. Craig has not produced sufficient evidence to create a genuine issue of material fact as to whether there is a causal connection between the filing of her complaint and the issuance of the unsafe equipment. Indeed, on the facts as alleged, she asked for the new equipment for a reason that had nothing to do with her prior complaint, and less than one month passed between when Ms. Craig brought her concern about the equipment to the defendant's attention and when she received new equipment. This simply is not strong enough to create a question that should go to a jury. Further, the defendant argues that this is not sufficient as an adverse employment action for a retaliation claim. The defendant has produced evidence that it is the policy to assign paramedics to ride fire engines from time to time, which is unchallenged by the plaintiff. (Def. Mem. Ex. 24 at ¶ 19; Ex. 26 at ¶ 9; Ex. 30 at ¶ 6.) The Fourth Circuit has held that the manner in which an employer applies a policy "might be evidence of pretext, but it is not evidence of adverse employment action." Von Gunten, 243 F.3d at 869 (internal citation omitted). For these reasons, the defendant's motion for summary judgment as to this claim will be granted. Overtime Pay for Teaching Finally, Ms. Craig alleges that she was not allowed to receive overtime pay for teaching in retaliation for complaining about one of Chief Mack's highly offensive sexual remarks at a party in December, 2000. The defendant argues that Ms. Craig was no longer allowed to receive overtime pay for teaching for budgetary reasons. (Def. Mem. Ex. 29 at ¶ 4.) Ms. Craig disputes this by pointing out that when she was told she could not be paid for teaching, the reason given to her was that she had been disrespectful to Division Chief Thomas Harmon. (Pl. Mem. Ex. C at ¶ 9.) The defendant's stated reason for denying her overtime pay, therefore, was false. This allows an inference that Ms. Craig was denied overtime as retaliation. *695 Cf. Reeves, 530 U.S. at 147, 120 S. Ct. 2097 ("Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive."). Further, after Chief Mack resigned in early 2002, Ms. Craig was allowed to resume receiving overtime pay for her teaching activities. (Pl. Mem. Ex. C at ¶ 21.) This is strongly suggestive that the presence of Chief Mack at the head of the department was the determining factor in whether she was allowed to receive pay for teaching. This also allows an inference that she was denied overtime pay in retaliation for reporting Chief Mack's conduct. Finally, Chief Mack received a vote of no confidence by Ms. Craig's union in August 2001. As the record indicates, the Chief of a Fire Department does not often survive a vote of no confidence by his or her union. (Pl. Mem. Ex. B at 15.) The union vote was motivated by, among other tilings, Chief Mack's inappropriate sexual comments to and about women. (Pl. Mem. Ex. B. Att. 1 n. 12.) It is reasonable to infer that Chief Mack retaliated against Ms. Craig by denying her overtime pay for her complaint against him, particularly in light of the consequences he suffered from complaints such as Ms. Craig's coming to the union's attention. Because all inferences are to be drawn in favor of Ms. Craig at this stage, the court determines that the defendant's motion for summary judgment with respect to this retaliation claim must be denied. Conclusion For the foregoing reasons, the defendant's motion for summary judgment will be granted in part and denied in part. The motion will be granted with respect to Ms. Craig's retaliation claim dealing with riding the fire engine with unsafe equipment and her failure to promote claim for the failure to be promoted to shift A. The defendant's motion with respect to Ms. Craig's failure to promote claims dealing with shift B and C and her retaliation claim for being denied overtime pay for teaching, however, will be denied. NOTES [1] Mr. Mack was appointed Chief in August 2000 and resigned in February 2002. (PL Mem. Ex. A & B.) His resignation followed a vote of no confidence by the firefighters' union in August 2001. The no confidence vote was based on, among other things, a union charge that Mr. Mack made "multiple, numerous, ongoing sexual remarks and comments directed to female firefighters, paramedics, and administrative personnel." (Pl. Mem. Ex. B. Att. 1 n. 12.) [2] Prior to the creation of the paramedic lieutenant position, both firefighters and paramedics reported to the fire lieutenant.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501631/	270 F. Supp. 2d 61 (2003) UNITED STATES of America v. Corey PARDUE, Defendant No. CR. 03-06-P-C. United States District Court, D. Maine. July 2, 2003. 63 Darcie N. Mcelwee, U.S. Attorneys Office, Portland, ME, for USA, Plaintiff. Robert C. Andrews, Portland, ME, for Corey Pardue (1), Defendants. MEMORANDUM OF DECISION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS GENE CARTER, Senior District Judge. Defendant Corey Pardue, charged with knowingly possessing in and affecting commerce 20 rounds of Federal, Gold Medal Match, 308 (Winchester) caliber, Centerfire rifle ammunition, in violation of 18 U.S.C. § 922(g)(9), seeks to suppress the ammunition found in his backpack. Motion to Suppress (Docket Item No. 14). The Government objects. Government's Objection to Defendant's Motion to Suppress (Docket Item No. 16). The Court held a hearing and, based on the evidence presented at that hearing, the Court makes the following findings of fact. I. FACTS At approximately 9:00 p.m. on March 30, 2002, the Portland Police Department received a 911 call complaining of a domestic disturbance at 27 Veranda Street. Complainant Kyra Pardue reported that her brother, Corey Pardue, who was present in the apartment and screaming in the background, had just thrown a lighter at her. While Kyra Pardue was on the phone with the dispatcher, she reported that Corey Pardue left the house on foot. The Portland Police dispatcher relayed this information over the radio to the police officers assigned to the area of Veranda Street. 64 While Portland Police Officers Richard Vogel and Christopher Coyne were en route to the Veranda Street home, the dispatcher gave the name and description of the suspect as Corey Pardue, a white male, 21 years old, wearing a hooded sweatshirt and a hat, and carrying a backpack. The dispatcher also indicated that Mr. Pardue was headed toward Washington Avenue. Shortly after hearing the name and description of the suspect, Officer Coyne saw someone who matched the description given by the dispatcher, walking down Pembroke Street, near Veranda Street. Officer Coyne noticed Mr. Pardue's backpack, pulled his police cruiser over, and stopped to investigate the domestic complaint. When asked by Officer Coyne to identify himself, Defendant stated that he was "Corey Pardue" and indicated he had been in an argument with his sister. Officer Coyne then took Defendant's backpack from his shoulder and placed on the trunk of the police cruiser. Officer Coyne then patted Defendant down. After the patdown, Officer Coyne had Defendant sit in the back of the police vehicle, with the door open. At this point the backpack remained on the trunk of the vehicle. Officer Coyne then searched the backpack where he found Marine Corps discharge paperwork, a hunting rifle scope and mounting brackets, a "Gerber" multi-tool, personal hygiene products, and a couple of boxes of ammunition.[1] All of the items were left in the backpack and the backpack was again placed on the trunk of the police vehicle. Shortly after Officer Coyne stopped Defendant, Officer Vogel arrived at the Veranda Street apartment to speak with Kyra Pardue. Kyra Pardue reported to Officer Vogel that her brother had thrown her son into a pile of laundry and then she asked him to leave. She also told Officer Vogel that her brother threw a lighter at her, striking her on the leg and causing a small welt. She explained that she then called the police, which caused her brother to threaten her. Thereafter, she told Officer Vogel, Corey Pardue left the apartment with his belongings. After searching Cory Pardue and the backpack, Officer Coyne spoke to Officer Vogel over the radio, and he asked Officer Coyne to bring Mr. Pardue to the parking lot of 27 Veranda Street, which was only "a couple hundred feet" away. Tr. at 14. Officer Coyne placed the backpack in the front seat of the police cruiser and, with Defendant in the back seat, drove over to the parking lot. Once he arrived, Officer Coyne spoke with Officer Vogel who explained that Kyra Pardue reported that Corey Pardue hit her with a lighter and threw her son onto a pile of laundry. Officer Coyne then arrested Defendant and took him to the Cumberland County Jail. When Officer Coyne arrived at the Cumberland County Jail, he took the Defendant and his backpack inside for booking. Once inside, the backpack was opened pursuant to standard practice of the Cumberland County Jail not to accept into the jail any personal items that are not on the person of the arrestee without an initial security search to determine if any of the property is, or contains, contraband. Ammunition is considered contraband at the Cumberland County Jail and, as such, it is not permitted inside the jail nor is it permitted to be retained at the jail until the owner is released. Since Officer Coyne was responsible for the backpack, he then took the backpack and all of its contents to the Portland Police Department and logged it in as property. In accordance 65 with the practice and procedure of the Portland Police Department, Officer Coyne logged the contents of the backpack on a property sheet, attached it to the backpack, and placed the backpack in an evidence locker. II. DISCUSSION Defendant contends that the search of his backpack was unlawful because there was no reasonable suspicion that he was armed and that he was arrested without probable cause. The Government responds that Officer Coyne had probable cause to arrest Defendant for assault and, therefore, Officer Coyne was entitled to search the backpack incident to the arrest. In the alternative, the Government contends that Officer Coyne was justified in conducting an investigatory detention of Defendant and subsequently searching his backpack for reasons of officer safety. Finally, the Government relies on the doctrine of inevitable discovery to sustain the search of Defendant's backpack. A. The Terry Stop Searches and seizures conducted without a warrant are per se unreasonable under the Fourth Amendment, subject to some exceptions. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993); United States v. Woodrum, 202 F.3d 1, 6 (1st Cir.2000). One such exception was recognized in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), which held that a police officer with reasonable suspicion of criminal activity may detain a suspect briefly for questioning aimed at confirming or dispelling his suspicions. See Dickerson, 508 U.S. at 372-73, 113 S. Ct. 2130; Woodrum, 202 F.3d at 6. The officer making the stop must possess "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S. Ct. 1868; Woodrum, 202 F.3d at 6. The government bears the burden of establishing by a preponderance of the evidence that a warrantless search falls within one of the exceptions. McDonald v. United States, 335 U.S. 451, 456, 69 S. Ct. 191, 93 L. Ed. 153 (1948). When the government fails to persuade the court that an exception applies, the evidence seized or otherwise obtained through the search must be suppressed. A brief investigative detention does not violate a suspect's rights if the officer had reasonable suspicion to detain the suspect. In evaluating the reasonableness of a Terry stop, courts must consider the totality of the circumstances. See United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981). The officer's suspicion of criminal activity is reasonable if there are sufficient facts to support a reasonable belief in the possibility that criminal conduct has occurred or is about to occur. Here, the officers were responding to a domestic disturbance call, which, by its nature, implies the possibility of violence. In addition, there was reasonable suspicion to believe that an assault may have been committed based on the dispatcher's report that an object, in this case a lighter, had been thrown at the complainant. Officer Coyne was aware that the suspect had thrown a lighter at the complainant, and he was thus investigating a possible assault. These facts gave Officer Coyne reasonable suspicion that Defendant had engaged in criminal activity.[2] Accordingly, the investigative 66 detention of Defendant was based on reasonable suspicion that a crime had been committed. B. The Pat-Down and Search for Weapons In addition to the stop for questioning, the Terry Court held that "[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," the officer may conduct a limited search of the person "to determine whether the person is in fact carrying a weapon." Terry, 392 U.S. at 24, 88 S. Ct. at 1881; Dickerson, 508 U.S. at 373, 113 S. Ct. 2130. Such a protective search, designed to allow the officer to conduct his investigation without fear of violence, must be "strictly `limited to that which is necessary for the discovery of weapons.'" Dickerson, 508 U.S. at 373, 113 S. Ct. 2130 (quoting Terry, 392 U.S. at 26, 88 S. Ct. 1868); see also Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). Typically, this will be "a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault." Sibron v. New York, 392 U.S. 40, 65, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). If the frisk goes beyond what is necessary to determine if the suspect is armed, its fruits will be suppressed. Dickerson, 508 U.S. at 373, 378-79, 113 S. Ct. 2130; see also United States v. Schiavo, 29 F.3d 6, 9 (1st Cir.1994) (affirming suppression where officer's continued exploration of a bulging paper bag in suspect's pocket "`after having concluded that it contained no weapon was unrelated to the sole justification of the search under Terry'") (quoting Dickerson, 508 U.S. at 378, 113 S. Ct. 2130). The Court cautioned that "[n]othing in Terry can be understood to allow a generalized `cursory search for weapons' or, indeed, any search whatever for anything but weapons." Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979). While the Government's legitimate concern for officer safety can, under proper circumstances, justify various protective measures during a Terry stop, there is no evidence in this case suggesting that Officer Coyne was motivated by safety concerns, nor is there sufficient evidence that would objectively give rise to a particularized safety concern to justify the search of Defendant's backpack. Indeed Officer Coyne's testimony at the hearing indicated that Defendant readily identified himself, and cooperated with Officer Coyne by answering his questions and following his directions. Officer Coyne explained that the reason he performed a pat-down search was that he believed that Defendant had "just [been] involved in a domestic violence situation with a domestic assault." Tr. at 24. Although the dispatcher's domestic disturbance report detailing that Defendant had thrown a lighter at his sister indicates that Defendant had recently been violent, there was no evidence presented that he appeared dangerous to Officer Coyne. In addition, there was no testimony from Officer Coyne that he believed Defendant to be armed. Officer Coyne explained that he searched the backpack as part of his routine practice "[t]o make sure there is not a weapon in there that can be used against me or anyone else." Tr. at 52. The Court concludes that Officer Coyne did not have the objectively reasonable belief that the Defendant was armed and dangerous that is necessary to lawfully pat down, let alone open and search, Defendant's backpack. *67 C. Inevitable Discovery Even though the frisk for weapons exceeded the bounds of a lawful Terry stop, suppression is inappropriate in this case since the contraband in the backpack would have been inevitably discovered. The inevitable discovery doctrine is an exception to the exclusionary rule and is applicable whenever "the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching." Nix v. Williams, 467 U.S. 431, 447-48, 104 S. Ct. 2501, 2511, 81 L. Ed. 2d 377 (1984). In this regard, the government bears the burden of demonstrating by a preponderance of the evidence that the evidence that was obtained by unlawful means would have been inevitably secured in some other lawful way. Id. at 444-45, n. 5, 104 S. Ct. at 2509, n. 5. The test the First Circuit has established for this Court to determine whether the inevitable discovery rule operates to bar suppression of the evidence is: (i) the lawful means of its discovery are independent and would have necessarily been employed, (ii) discovery by that means is in fact inevitable, and (iii) application of the doctrine in a particular case will not sully the prophylaxis of the Fourth Amendment. United States v. Zapata, 18 F.3d 971, 978 (1st Cir.1994) (citing United States v. Silvestri, 787 F.2d 736, 744 (1st Cir.1986)). In this case, the record clearly establishes that this test is satisfied. When Officer Coyne brought Defendant up to the parking lot of 27 Veranda Street and spoke with Officer Vogel, he learned that Defendant had hit Kyra Pardue on the leg with a lighter and that Defendant had previously thrown Kyra Pardue's son onto a pile of laundry. At that time, he had probable cause to arrest Defendant for the assault on Kyra Pardue. As a result of Defendant's lawful arrest, the ammunition would have inevitably been discovered during the security search at the Cumberland County Jail or when Officer Coyne inventoried the contents of the backpack in order to store the backpack in the Portland Police Department's property locker. See Colorado v. Bertine, 479 U.S. 367, 369, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987) (exception to the warrant requirement for an inventory search); United States v. Hawkins, 279 F.3d 83, 85 (1st Cir.2002). Based on the evidence presented at the suppression hearing, the Court concludes that the ammunition would have inevitably been discovered by the inventory searches independent of Officer Coyne's unlawful search because those searches were necessary based on the practices of the Cumberland County Jail as well as of the Portland Police Department. Finally, the Court finds that the application of the inevitable discovery exception in this case does not provide an incentive for police misconduct or undermine the protections of the Fourth Amendment. Accordingly, the Court ORDERS that Defendant's Motion to Suppress be, and it is hereby, DENIED. NOTES [1] Officer Coyne remembered that the boxes of ammunition were transparent and that he was able to see the bullets inside without opening the boxes. [2] The Government also asserts that at the time he identified Corey Pardue, Officer Coyne had probable cause to arrest him for assault and, thus, the search of Defendant's backpack was lawful. The Court disagrees. Officer Coyne did not have probable cause to arrest Defendant until he went to the Veranda Street parking lot and discovered that the lighter Defendant threw at his sister actually hit her.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501157/	280 F. Supp. 2d 867 (2003) Cynthia MORICONI, Individually and on behalf of All Others Similarly Situated, Plaintiff, v. AT & T WIRELESS PCS, LLC d/b/a AT & T Wireless, Defendant. No. 4:03-CV-00344 GTE. United States District Court, E.D. Arkansas, Western Division. August 19, 2003. 868 Brian G. Brooks, Susan Nichols, Brian David Reddick, Christine Connely Althoff, 869 Wilkes & McHugh, P.A., Little Rock, AR, for plaintiff. Steven W. Quattlebaum, E.B. Chiles, IV, Patrick William McAlpine, Quattlebaum, Grooms, Tull & Burrow PLLC, Little Rock, AR, for defendant. MEMORANDUM OPINION AND ORDER EISELE, District Judge. Before the Court is Plaintiff's Motion to Remand (Docket # 4). Plaintiff seeks to remand this action back to the state court from which it was removed. Over Defendant's objection, the Court finds that it lacks subject matter jurisdiction in this case, and the case must therefore be remanded. I. PROCEDURAL BACKGROUND Plaintiff Cynthia Moriconi, acting individually and on behalf of other similarly situated individuals, originally filed suit on March 20, 2003, in the Circuit Court of Pulaski County, Arkansas. On May 14, 2003, Defendant AT & T Wireless PCS, LLC d/b/a AT & T Wireless ("AT & T") filed a Notice of Removal, resulting in the removal of this case to federal court and assignment to the undersigned judge. Plaintiff's Motion to Remand shortly followed. AT & T contends that this Court has the power to hear this case based on both federal question and diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. Although Plaintiff raises what are represented to be solely state law claims, AT & T contends the claims are, in fact, claims arising under federal law due to the preemptive effect of the Federal Communications Act ("FCA"), 47 U.S.C. § 151 et seq. Plaintiff disagrees, contending that her state law claims are cognizable notwithstanding the FCA. AT & T further contends that there is complete diversity of citizenship and the matter in controversy exceeds $75,000, exclusive of interest and costs. Plaintiff disputes that the jurisdictional amount is satisfied. II. THE COMPLAINT Plaintiff, a consumer of wireless telephone services, purporting to represent herself and other similarly situated wireless customers (hereinafter referred to as "Class Members") challenges certain of Defendant's business practices and the written contract establishing the terms and conditions of the service relationship. Plaintiff's contentions, the specifics of which are outlined in an eighteen page complaint, may be grouped into two broad areas. First, Plaintiff challenges the manner in which Defendant markets and advertises its wireless services and its charges for such services. As described in the opening paragraphs of Plaintiff's Complaint: 2. . . . [Defendant's] calling plans typically include a flat monthly access/service fee together with either a set number of air-time minutes each month for wireless calls, or provide that air-time will be billed based upon the amount used within a given billing cycle. However, these calling plans uniformly failed to disclose applicable fees and charges, billing and sales practices, service limitations, and other short comings of Defendant's wireless phone network clearly and conspicuously. . . . 3. In fact, the marketing and business and billing practices for these calling plans have consistently misrepresented or failed to disclose, and repeatedly omitted, common material facts necessary to reasonably apprise Plaintiff and other similarly-situated consumers of the material effect of certain billing practices (including the financial consequences of those billing practices on the effective rates charges), and the geographical 870 limitations and other deficiencies with respect to the wireless phone service actually provided, which has caused consumers to pay higher monthly wireless phone charges and fees, and receive lesser quality service than that reflected in Defendant's marketing and as agreed in the underlying customer service agreements. 4. Ms. Moriconi files this class action on behalf of herself and other consumers to obtain restitution and damages from Defendant resulting from Defendant's deceptive, unfair, and unconscionable practices and to enjoin Defendant from further misrepresenting its calling plans to herself and others. (Complaint at pp. 1-3). The remainder of the Complaint is consistent with this initial description. Plaintiff complains that Defendant misrepresents to its wireless telephone customers in a similar fashion the quality of the service provided and the manner in which consumers will be charged for such services. Second, Plaintiff complains that all consumers of AT & T's wireless customers are subjected to pre-printed, non-negotiable, "patently adhesive," "Terms and Conditions" which impose unfair terms and limitations. Among the challenged "Terms and Conditions" are AT & T's attempt to use the contract to limit its liability, the allowance of unilateral changes to material contract terms, and the imposition of mandatory arbitration to resolve disputes. Plaintiff requests a declaration that the limitations on liability and mandatory arbitration provisions contained in the written contract between AT & T and Class Members are "unfair, unconscionable, and otherwise unlawful and unenforceable." (Complaint at ¶ 75). Plaintiff alleges four causes of action: (1) declaratory relief seeking the declaration of the contractual and other legal rights of the parties, pursuant to Ark.Code Ann. § 16-111-104; (2) an equitable claim for restitution of monies received based upon AT & T's failure to adequately disclose the material terms and limitations of its calling plans; (3) actual damages and attorneys' fees for violation of the Arkansas Deceptive and Unconscionable Trade Practices Act, Ark.Code Ann. § 4-88-101 et seq.; and (4) actual damages and attorneys' fees for violation of Arkansas' Deceptive Advertising statute, Ark.Code Ann. § 4-88-108. III. REMOVAL AND REMAND Any civil action brought in state court which alleges claims within the original jurisdiction of the United States District Courts may be removed by the defendant to the appropriate federal court. 28 U.S.C. §§ 1441(a). Once a case has been removed to federal court, a motion to remand to state court may be brought on the basis of any defect in the removal procedure. 28 U.S.C. §§ 1447(c). If it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. 28 U.S.C. §§ 1447(c). In reviewing a motion to remand, the court must resolve all doubts in favor of a remand to state court, and the party opposing remand has the burden of establishing federal jurisdiction by a preponderance of the evidence. In re Business Men's Assurance Co. of America, 992 F.2d 181, 183 (8th Cir.1993)(citing Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3rd Cir.1987), cert. dismissed 484 U.S. 1021, 108 S. Ct. 739, 98 L. Ed. 2d 756 (1988)). The Court must decide whether Plaintiff's claims are within the original jurisdiction of this Court. AT & T contends that the Court has subject matter jurisdiction, either on federal question or diversity grounds. 28 U.S.C. §§ 1331, 1332. These 871 alternative theories for jurisdiction are discussed separately below. IV. FEDERAL QUESTION JURISDICTION A civil action filed in a state court may be removed to federal court if the claim is one "arising under" federal law. 28 U.S.C. § 1441(b). The Court has original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Determining when a suit "arises under" a federal law is customarily determined by applying the well-pleaded complaint rule "which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987). Because the plaintiff is considered the master of his complaint, he may elect to avoid federal removal jurisdiction by relying solely on state law. Id. "Congress has long since decided that federal defenses do not provide a basis for removal." Id. at 399, 482 U.S. 386, 107 S. Ct. 2425, 96 L. Ed. 2d 318. "Thus, a case may not be removed to federal court on the basis of a defense, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case." Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475, 118 S. Ct. 921, 139 L. Ed. 2d 912 (1998)(internal quotations omitted). Limited exceptions to the well-pleaded complaint rule have been recognized. Recently, the Supreme Court characterized these exceptions as follows: "a state claim may be removed to federal court in only two circumstances when Congress expressly so provides, such as in the Price-Anderson Act[1] . . ., or when a federal statute wholly displaces the state-law cause of action through complete preemption." Beneficial Nat. Bank v. Anderson, ___ U.S. ___, ___, 123 S. Ct. 2058, 2063, 156 L. Ed. 2d 1 (June 2, 2003)("As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim.") Despite the omission of any federal claim in Plaintiff's Complaint, Defendant contends that federal question jurisdiction exists in this case for two independent reasons. First, Defendant contends that Plaintiff's state law claims are completely preempted by the Federal Communications Act.[2] Second, Defendant contends based on the "substantial federal question" doctrine that the real nature of Plaintiff's complaint is federal, and thus, that a federal question exists. The Court rejects both contentions. A. Complete Preemption Complete preemption applies in circumstances where certain federal statutes are deemed to possess "extraordinary preemptive power, a conclusion courts reach reluctantly." Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 536, 543 (8th Cir.1996)(internal quotation omitted). "Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, 872 and therefore arises under federal law." Caterpillar, 482 U.S. at 393, 107 S. Ct. 2425, 96 L. Ed. 2d 318. At the outset, it is useful to distinguish conflict, or defensive, preemption from complete preemption. The concepts are distinct. Conflict preemption does not in itself provide for federal question jurisdiction because there is no showing that Congress has intended to create the sole mechanism for enforcement of the federal right. See Rice v. Panchal, 65 F.3d 637 (7th Cir.1995)(Federal preemption that merely serves as a defense to state law causes of action, referred to as "conflict preemption," does not confer federal question jurisdiction.). Instead, state law is preempted only to the extent of an actual conflict between state and federal law. A good example of conflict preemption is the Federal Cigarette Labeling and Advertising Act, which has been found to preempt state law tort claims to the extent that such claims allege claims concerning the inadequacy of warnings or the propriety of cigarette advertising. See, e.g., Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir.1986), cert. denied, 479 U.S. 1043, 107 S. Ct. 907, 93 L. Ed. 2d 857 (1987). Similarly, applying conflict preemption to Plaintiff and the Class Members' claims in this case might result in certain claims being preempted, but only to the extent that such claims are found to interfere or conflict with areas regulated by the FCA. Most importantly for the present analysis, conflict preemption would not transform Plaintiff's state law claims into federal claims. It might provide a defense to some or all of Plaintiff's state law theories of recovery, but such defenses would not provide a basis for this Court to exercise federal question jurisdiction. Complete preemption applies only if there is a finding that Congress intended to provide an exclusive federal remedy for a particular claim. When complete preemption applies, a federal question exists whether a plaintiff characterizes her claims as federal or state. A plaintiff then cannot avoid federal jurisdiction by characterizing her claims only as state law claims. Under the "artful pleading doctrine," the state law claims are re-characterized as federal claims, and removal is proper based on the theory that plaintiff's claim is actually federal, regardless of how it is pled. See Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475-76, 118 S. Ct. 921, 139 L. Ed. 2d 912 (1998). The Supreme Court recently considered the doctrine of complete preemption in Beneficial Nat. Bank v. Anderson, supra, holding that because the National Bank Act provides an exclusively federal cause of action for usury claims against national banks, such causes of action are necessarily federal, arise under federal law, and are removable. ___ U.S. at ___, 123 S.Ct. at 2063. The Court noted that it previously had found complete preemption in connection with the Labor Management Relations Act and the Employee Retirement Income Security Act, and that in both instances "the federal statutes at issue provided the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action." Id. It thus declared that "[o]nly if Congress intended § 86 [which provides for a usury claim against national banks] to provide the exclusive cause of action for usury claims against national banks" could the statute be comparable to other federal statutes declared by the Court as completely preempting state law. Id. at 2064. Defendant points out, and the Court agrees, that Beneficial makes clear that in evaluating congressional intent it is not necessary to find that Congress intended the cause of action to be removable. Such an approach is a semantic departure from prior case law instructing courts 873 faced with a complete preemption argument to "determine whether Congress has clearly manifested an intent to make a cause of action pleaded under state law removable to federal court, mindful that in the ordinary case federal preemption is merely a defense to a plaintiff's lawsuit." See Magee v. Exxon Corp., 135 F.3d 599, 602 (8th Cir.1998)(internal citations omitted). This Court does not, however, read Beneficial as lowering the bar for a finding of complete preemption. Such a finding is still the exception rather than the rule and requires a statute with "unusually powerful pre-emptive force." Beneficial, ___ U.S. at ___, 123 S.Ct. at 2062 (quotation marks omitted). Thus, in evaluating congressional intent to answer the complete preemption question presented in this case, the Court focuses on whether Congress intended for the FCA to provide an exclusively federal cause of action against commercial wireless providers such that there effectively is no cognizable state-law claims or causes of action in this area. THE FEDERAL COMMUNICATIONS ACT The FCA governs and regulates communication by wire and radio. Defendant relies upon a portion of the statute governing commercial mobile service providers such as AT & T Wireless, and more particularly upon a section of the statute expressly prohibiting states from regulating "the entry of or the rates charged by any commercial mobile service." 47 U.S.C. § 332(c)(3)(A). The provision provides in pertinent part: (3) State Preemption. (A) Notwithstanding sections 2(b) and 221(b) [47 U.S.C. §§ 152(b) and 221(b)], no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of mobile services. Nothing in this subparagraph shall exempt providers of commercial mobile services (where such services are a substitute for land line telephone exchange service for a substantial portion of the communications within such State) from requirements imposed by a State commission on all providers of telecommunications services necessary to ensure the universal availability of telecommunications service at affordable rates. Notwithstanding the first sentence of this subparagraph, a State may petition the Commission for authority to regulate the rates for any commercial mobile service . . . 47 U.S.C. § 332(c)(3)(A). Congressional intent regarding the appropriate division of the regulatory authority of federal and state governments under the FCA is reflected by the following House of Representatives' report: Section 332(c)(3) provides that state or local governments cannot impose rate or entry regulation on private land mobile service or commercial mobile services; this paragraph further stipulates that nothing here shall preclude a state from regulating the other terms and conditions of commercial mobile services. It is the intent of the Committee that the states still would be able to regulate the terms and conditions of these services. By "terms and conditions," the Committee intends to include such matters as customer billing information and practices and billing disputes and other consumer protection matters; facilities citing issues (e.g. zoning); transfers of control; the bundling of services and equipment; and the requirement that carriers make capacity available on a wholesale basis or such other matters as fall within a state's lawful authority. 874 This list is intended to be illustrative only and not meant to preclude other matters generally understood to fall under "terms and conditions." H.R.Rep. No. 103-111 (1993), reprinted in 1993 U.S.C.C.A.N. 378, 588. That Congress intended for States to retain some authority to regulate and hear claims concerning commercial mobile service providers is clear from § 332's statutory language and legislative history. The statutory preemption portion of § 332 prohibits states from regulating "the entry of or the rate charged" by commercial mobile service providers, but limits the restriction to the topics noted, pointing out that the paragraph "shall not prohibit a State from regulating the other terms and conditions of mobile service." § 332(c)(3)(A). The statute even contemplates that states may be granted permission to regulate rates. And the legislative history supports the finding that Congress specifically intended to reserve for states the right to regulate and resolve such matters as customer billing information and practices and billing disputes and other consumer protection matters. Finally, the FCA contains a savings clause which provides: Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies. 47 U.S.C. § 414. To resolve the complete preemption issue before it, this Court must examine the statutory scheme to determine whether Congress intended by providing in the FCA an exclusively federal cause of action against commercial mobile service providers with regard to rates and market entry to displace all state law actions. The FCA provides aggrieved consumers with a cause of action in federal district court to challenge damages caused by a wireless provider's unreasonable rates or inadequate service. See, e.g., 47 U.S.C. § 207. The FCA fails, however, to provide aggrieved consumers of wireless services with any federal remedies for deceptive advertisement or billing. The statutory language, the legislative history, and the savings clause compel the conclusion that Congress envisioned that consumers would not be deprived of their state law causes of action for consumer related fraud. For its argument, Defendant relies primarily on a Seventh Circuit case, Bastien v. AT & T Wireless Services, Inc., 205 F.3d 983 (7th Cir.2000). In Bastien, the court found complete preemption in the context of a state law challenge to the quality of AT & T's cellular service and tower construction policies. The case, initially filed in state court, alleged only state law claims for breach of contract and consumer fraud based on the unsatisfactory quality of AT & T's cellular telephone service, resulting in a high volume of unsuccessful and dropped calls. The plaintiff in Bastien specifically alleged the inferior service was the result of AT & T signing up cellular subscribers prior to establishing an adequate cellular tower and network infrastructure to service those subscribers. Id. at 985. In affirming the district court's denial of the remand motion, the Seventh Circuit interpreted 47 U.S.C. § 332(c)(3)(A) as creating "separate spheres of responsibility, one exclusively federal and the other allowing concurrent federal and state regulation." Bastien, 205 F.3d at 987. The court went on to find complete preemption with respect to the exclusively federal sphere, which applies to cases involving, in the statutory language, "the entry of or the rates charged by any commercial mobile service or any private mobile service." 47 U.S.C. § 332(c)(3)(A). States remain free to regulate "other terms and conditions" 875 of mobile telephone service. Id.; Bastien, 205 F.3d at 987. The Bastien court found that the plaintiff's claims "tread directly on the very areas reserved to the FCC: the modes and conditions under which AT & T Wireless may begin offering service in the Chicago market." Bastien, 205 F.3d at 989. The court distinguished the complaint before it from one filed in a Sixth Circuit case, Long Distance Telecommunications Litig., 831 F.2d 627, 633-34 (6th Cir.1987). The Sixth Circuit case involved state law claims against a long-distance service provider for fraud and deceit for failing to tell customers of the provider's practice of charging for uncompleted calls. The Sixth Circuit had reasoned that the purpose of preemption was "to achieve nationwide uniformity in telecommunications regulation." Bastien, 205 F.3d at 989 (discussing Long Distance Litigation, 831 F.2d at 633). "Because the claims for fraud and deceit would not have affected the federal regulation of the carriers at all, the [Sixth Circuit] court held that Congress could not have intended to preempt the claims." Id. at 988-89. The Eighth Circuit has not considered whether the FCA completely preempts state law claims in the field of interstate wireless service telecommunications. A district court case, State ex rel. v. Nextel West Corp., 248 F. Supp. 2d 885 (E.D.Mo. 2003), rejected a cellular service provider's claim of complete preemption in the context of the attorney general's suit alleging that the provider fraudulently characterized rate increases as government mandated charges. The Missouri district court distinguished Bastien as involving a direct attack on "AT & T's rates and its right to enter the Chicago market." Nextel West, 248 F.Supp.2d at 892. In refusing to find that plaintiff's claims were "properly characterized as challenges to defendants' rates," the court found that the plaintiffs were challenging only "the defendants' allegedly deceptive description of their rates in invoices and advertising" further finding that the plaintiffs were not challenging the rates themselves or asking the state court "for any relief that would regulate the defendants' rates." Id. In the context of wire-line carriers, the Second and Eleventh Circuits have rejected the argument that the FCA completely preempts state law claims for consumer fraud type violations. See Marcus v. AT & T Corp., 138 F.3d 46, 54 (2nd Cir.1998)(noting that although the FCA "provides some causes of action for consumers, it provides none for deceptive advertising and billing"); Smith v. GTE Corp., 236 F.3d 1292, 1312 (11th Cir.2001). See also Nextel, 248 F.Supp.2d at 891 (finding the "weight of authority holds that the FCA does not completely preempt state law claims" and citing cases). Defendant argues that many of these cases considered complete preemption in the context of wire-line providers, rather than in wireless carriers, to which § 332(c)(3)(A) is limited. While technically true, this does not mean that overwhelming authority declining to find complete preemption in the context of the FCA is completely without value. Like its wire-line provider counterparts, commercial mobile service providers are considered "common carriers," both of which are subject to the regulation of the Federal Communications Commission ("FCC") by Title II of the FCA. Moreover, if the purpose of applying complete preemption is to promote nationwide uniformity in the regulation of the telecommunications industry, as stated by the Sixth and Seventh Circuits in Long Distance Telecommunications and Bastien, see discussion supra, it makes sense to treat wire-line provider and commercial mobile service providers similarly with regard to the complete preemption issue, assuming of course, that Congress manifested a similar 876 intent with regard to both. This Court does, however, recognize the distinction and relies only upon § 332(c)(3)(A), relevant legislative history, and cases construing the same in reaching its conclusions in this case. The Court finds that § 332 of the FCA lacks the extraordinary preemptive power necessary to convert Plaintiff's state law challenges to Defendant's marketing and advertising practices into a federal claim. Moreover, even assuming that the complete preemption recognized by the Court in Bastien were appropriate, it would not compel a finding of complete preemption in this case. Here, the Plaintiff's state law claims do not, as in Bastien, present a direct challenge to either AT & T's rates or its entry into the wireless market. Defendant contends that Plaintiff has attempted to disguise her claims, which in fact pose indirect attacks on AT & T's rates. The Court disagrees. The Complaint, on its face, does not contain a challenge to Defendant's rates or the nature of its wireless infrastructure, which determines the level of service it is able to provide. The essence of the allegations are that Defendants have not adequately disclosed their true "service fees, billing and sales practices, and service limitations." (Complaint at p. 1.) The Complaint specifically states that Plaintiff "does not contend that the rates charged by Defendant are unfair and unreasonable." Complaint at ¶ 83. To be sure, any challenge to a wireless service provider's practices, if successful, is likely to impact rates and the manner in which services are delivered, but this indirect result does not convert such challenges into a direct challenge to rates and market entry contemplated by the preemptive language of the statute. Notably, the FCC considered the issue of whether § 332 generally preempts state courts from awarding monetary relief in In re Wireless Consumers Alliance, Inc., 15 F.C.C.R. 17021, 2000 WL 1140570 (2000).[3] There the FCC noted its prior finding that the language and legislative history of § 332 did not support "the preemption of state contract or consumer fraud laws relating to the disclosure of rates and rate practices." Id., 15 F.C.C.R. at 17028. The FCC went a step further, finding that the same statutory language and legislative history did not, as a general matter, prevent state courts from awarding damages to customers of commercial mobile radio service providers based on violations of state contract or consumer fraud laws. Id. at 17029. The FCC specifically rejected the argument of the carriers that the non-disclosure and fraud claims of the consumers were in fact disguised attacks on the reasonableness of the rate charged for the service, stating: A carrier may charge whatever price it wishes and provide the level of service it wishes, as long as it does not misrepresent either the price or the quality of service. Conversely, a carrier that is charging a "reasonable rate" for its services may still be subject to damages for a non-disclosure or false advertising claim under applicable state law if it misrepresents what those rates are or how they will apply, or if it fails to inform consumers of other reasonable terms, conditions, or limitations on the service it is providing. We thus do not agree with those commenters who allege that, for consumer protection claims, any damage award or damage calculation, including any refund or rebate, is necessarily a ruling on the reasonableness of 877 the price or the functional equivalent of a retroactive rate adjustment. In re Wireless Consumers Alliance, 15 F.C.C.R. at 17035-36. Of course, the FCC was considering the preemption issue in the defensive posture, that is, the argument of mobile service providers that an award of damages to plaintiffs who prevailed in their state consumer protection, tort, or contract laws was preempted by § 332. It would be inconsistent indeed for this Court to hold that § 332 provides for complete preemption with respect to the consumer fraud and misrepresentation type challenges presented by Plaintiffs here when the FCC has refused to hold that similar challenges were conflict preempted. For the reasons above stated, the Court rejects the argument that § 332 completely preempts the Plaintiff and putative Class Members' state law claims. B. Substantial Federal Question Under the substantial federal question doctrine, federal court jurisdiction may be found to exist where the plaintiff's state law claim will require a federal court to decide or construe a substantial issue of federal law. To apply the doctrine, it must appear "that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims." Franchise Tax Bd., 463 U.S. at 13, 103 S. Ct. 2841, 77 L. Ed. 2d 420; see, e.g., Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S. Ct. 243, 65 L. Ed. 577 (1921). The "mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction." Merrell Dow, 478 U.S. at 813, 106 S. Ct. 3229, 92 L. Ed. 2d 650. Even if state law creates plaintiffs' causes of action, the case may still "arise under" the laws of the United States if a well-pleaded complaint establishes that plaintiffs' "right to relief under state law requires resolution of a substantial question of federal law." City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 164, 118 S. Ct. 523, 139 L. Ed. 2d 525 (1997) (quoting Franchise Tax Bd. of State Of Cal. v. Constr. Laborers Vacation Trust For S. Cal., 463 U.S. 1, 13, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983)) (case arises under federal law when federal law creates cause of action or plaintiff's right to relief necessarily depends on resolution of substantial question of federal law). In such a case, federal jurisdiction is based on "the presence of a federal issue in a state cause of action." Merrell Dow Pharms., Inc., v. Thompson, 478 U.S. 804, 810, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986). Applying this doctrine, which appears relatively straightforward, has proven confusing. As the Supreme Court has acknowledged, applying the concept requires "principled, pragmatic distinctions" and "careful judgments about the exercise of federal judicial power." Id. at 813-14, 478 U.S. 804, 106 S. Ct. 3229, 92 L. Ed. 2d 650. Only where the "federal interest at stake" is substantial will federal jurisdiction lie. Id. at 814 n. 12, 478 U.S. 804, 106 S. Ct. 3229, 92 L. Ed. 2d 650. In short, the Court's teachings instruct lower courts to apply the substantial federal question doctrine with caution. See, e.g., Almond v. Capital Properties, Inc., 212 F.3d 20, 23 (1st Cir.2000) (noting "[p]erhaps the best one could say is that [the substantial federal question doctrine] endures in principle but should be applied with caution and various qualifications"). Despite Defendant's best efforts to turn Plaintiff's Complaint into a challenge to rates and service quality, the Court does not agree with Defendant's characterization of the Complaint. The essence of Plaintiff's claims are that Defendant's misrepresented the quality of its service and what it would cost to obtain it. 878 These are alleged misrepresentations of the amount charged and quality of service provided, "not on the wrongfulness of the charge itself" or the inadequacy of the service provided. In re Universal Serv. Fund, 247 F. Supp. 2d 1215, 1225 (D.Kan. 2002) (unfair competition claims were tied to claim of alleged misrepresentation and therefore did not challenge lawfulness of charges controlled by federal law; no substantial federal question). No reference to federal law is required to determine the state law questions presented by Plaintiffs. See e.g., Sanderson, Thompson, Ratledge & Zimny v. AWACS, Inc., 958 F. Supp. 947 (D.Del.1997) (claims that carrier did not accurately disclose billing practice not governed by FCA); Bauchelle v. AT & T, 989 F. Supp. 636 (D.N.J. 1997) (sections 201, 202 and 203 of the FCA do not apply to state law challenges to carrier's advertising and promotion practices); In re Comcast Cellular Telecomm., Lit., 949 F. Supp. 1193 (E.D.Pa. 1996) (claims that carrier failed to accurately disclose billing practice not governed by FCA); Weinberg v. Sprint Corp., 165 F.R.D. 431 (D.N.J.1996) (same). The substantial federal question doctrine does not support the removal of this case to federal court. V. DIVERSITY OF CITIZENSHIP JURISDICTION Original jurisdiction exists in the district courts in all civil actions where the matter in controversy exceeds the sum of $75,000 and is between citizens of different states. 28 U.S.C. § 1332. The party asserting federal jurisdiction has the burden of proof to show that the required amount in controversy is met. Hatridge v. Aetna Casualty & Surety Co., 415 F.2d 809, 814 (8th Cir.1969). When the complaint does not allege a specific amount, the removing defendant must prove by a preponderance of the evidence that the amount in controversy meets the jurisdictional amount. Trimble v. Asarco, Inc. 232 F.3d 946, 959 (8th Cir.2000); Gilmer v. Walt Disney Co., 915 F. Supp. 1001, 1007 (W.D.Ark.1996). It is undisputed that complete diversity exists between the parties. Rather, the issue is whether the amount in controversy requirement is satisfied. Plaintiff affirmatively represents that the "damages, restitution, injunctive and other relief individually sought by Plaintiff and the class including their pro rata share of punitive damages or attorneys' fees awarded pursuant to this action, if any, is below the jurisdictional requirement" for federal diversity jurisdiction. (Complaint at ¶ 7). As a general rule, where the plaintiffs in a class action suit have separate and distinct claims, each claim must satisfy the jurisdictional amount requirement for diversity jurisdiction. Zahn v. International Paper Company, 414 U.S. 291, 301, 94 S. Ct. 505, 38 L. Ed. 2d 511 (1973)(refusing to overrule Snyder v. Harris, 394 U.S. 332, 89 S. Ct. 1053, 22 L.Ed.2d 319(1969)). Here, neither the Plaintiff nor any individual Class Member seeks or is entitled to individual damages in excess of the $75,000 threshold amount. Defendants implicitly concede this point, and instead focus their argument on the appropriate valuation of Plaintiff's claims for injunctive relief and the equitable remedy of disgorgement. Alternatively, Defendant proposes that Plaintiff's claim for disgorgement of proceeds collected by AT & T creates a common and undivided fund, which can be considered separately from individual damages recoveries for purposes of determining whether the jurisdictional amount can be satisfied. A. Value of Injunctive Relief Defendant proposes that the value of the injunctive relief sought by Plaintiff and the costs incurred by Defendant be 879 considered. Defendant argues that the injunctive relief will require it to monitor and provide customers with detailed information regarding coverage, the cost of which will easily exceed $75,000.[4] Plaintiff argues, and the Court agrees, that under existing Eighth Circuit precedent, "[t]he amount in controversy in a suit for injunctive relief is measured by the value to the plaintiff of the right sought to be enforced." Burns v. Massachusetts Mutual Life Ins. Co., 820 F.2d 246, 248 (8th Cir.1987). Notwithstanding Burns, Defendant argues that, in fact, the Eighth Circuit would favor a more balanced approach and therefore, that aggregation is proper in this case given that Plaintiff seeks injunctive relief that will benefit the class as a whole. (Def.'s Br. at pp. 26-29). It is the view of this Court that such an approach has been foreclosed by the Eighth Circuit, which "requires the district court to rely solely on the plaintiff's viewpoint in meeting the requisite amount." Smith v. American States Preferred Ins. Co., 249 F.3d 812, 813 -814 (8th Cir.2001)(emphasis added). The Fifth Circuit, which also adheres to a plaintiff-perspective or viewpoint rule, recently found it inappropriate to consider the costs incurred by a defendant in complying with declaratory or injunctive relief. See Adams v. Nationwide Mut. Ins. Co., 2003 WL 21251734, 4 (N.D.Tex.2003). The Court thus rejects the contention that it may consider the cost to Defendant of complying with the requested injunctive relief in evaluating the amount-in-controversy. B. Plaintiff's Disgorgement Claim Does Not Permit Aggregation In an effort to avoid the general rule that the putative Class Members' claims cannot be aggregated to determine the amount in controversy, Defendant contends that Plaintiffs, by requesting "disgorgement of ill-gotten gains and restitution," have created a common and undivided interest in that portion of Defendant's profits, a sum that greatly exceeds the jurisdictional minimum of $75,000. Although some courts have permitted aggregation of disgorgement or unjust enrichment claims, the majority of courts considering the issue have rejected it.[5] The cases allowing aggregation of disgorgement claims "rest their holdings upon the premise that disgorgement is a form of relief separate from, and independent of, individual damage recovery and that disgorgement `would inure to the benefit of the class rather than vindicate any alleged violations of individual rights.'" 880 Microsoft, 127 F.Supp.2d at 720 (quoting Aetna II, 48 F.Supp.2d at 41). The Eighth Circuit has spoken on this issue. In Crawford v. F. Hoffman-La Roche Ltd., 267 F.3d 760, 766 (8th Cir. 2001), the Eighth Circuit, relying on Gilman, supra at n. 4, rejected the argument that putative class members' claims for restitution of "all monies" overpaid created a common fund, the value of which could be used to satisfy the minimum jurisdictional amount. Crawford involved a purported class action against pharmaceutical companies alleged to have fixed the price of vitamins and vitamin supplements. In rejecting this argument, the Eight Circuit stated: "Under the classic `common fund' cases, what controls is the nature of the right asserted, not whether successful vindication of the right will lead to a single pool of money that will be allocated among the plaintiffs." Gilman, 104 F.3d at 1427. The members of the prospective class did not hold joint title to any portion of the defendants' profits prior to the commencement of this lawsuit. The rights which the complaint seeks to vindicate, rather, are based on separate purchases of different products by each of the individual members. The restitution of these amounts to individual plaintiffs is not the restitution of a common fund. Crawford, 267 F.3d at 766 (quoting Gilman v. BHC Securities, Inc., 104 F.3d 1418 (2nd Cir.1997)). In this case, Plaintiff and prospective Class Members held no joint title to any portion of AT & T's profits prior to the commencement of this lawsuit. The Complaint seeks to vindicate individual rights based on separate purchases of wireless services. Disgorgement of these amounts, whether phrased in terms of unjust enrichment or equitable restitution, is not the restitution of a common fund. See Gilman, 104 F.3d at 1426-28 (refusing to aggregate "order flow" payments of which plaintiffs sought disgorgement, where those payments were made to the defendant by individual plaintiffs in separate transactions). Moreover, "`[a]bsent unusual circumstances, unjust enrichment remedies do not provide a generalized recovery of a fixed fund for the class. Instead, each plaintiff is entitled to the defendants' profits which resulted from the wrongdoing to that particular plaintiff.'" Aetna I, 54 F.Supp.2d at 1050 (quoting Campbell v. General Motors Corp., 19 F. Supp. 2d 1260, 1268 (N.D.Ala.1998)). "To the extent possible, disgorged funds should be apportioned among the individual claimants rather than being treated as a single collective right in which putative class members have an undivided interest." Id. (citation and internal quotations omitted). "While the damages are admittedly based on the defendants' profits, and not the plaintiffs' harm, each recovery is an individual right and constitutes an individual interest." Id. (citation and internal quotations omitted). Because Plaintiff's claim for disgorgement is subject to the non-aggregation rule, Defendant's reliance on this theory to support the exercise of diversity jurisdiction fails. VI. ATTORNEY'S FEES AND COSTS Plaintiff requests an award of fees and costs incurred in bringing her motion to remand. Pursuant to 28 U.S.C. 1447(c), an order remanding a case may require payment of just costs, including attorney's fees, in the discretion of the Court. An *881 award of costs and fees is entirely discretionary. It is unresolved in this Circuit whether a finding of bad faith is necessary to impose attorney's fees on remand. Compare Moline Machinery, Ltd. v. Pillsbury Co., 259 F. Supp. 2d 892, 905-06 (D.Minn.2003)(denying request for fees where removal sought in good faith and for no improper purpose) with Calloway v. Union Pac. R. Co., 929 F. Supp. 1280 (E.D.Mo.1996)(finding of bad faith not necessary to award attorney's fees on remand). The Court exercises its discretion to decline to award attorney's fees and costs in this case. There is no indication that the removal was sought in bad faith. Although the Court rejected Defendant's arguments, the Court cannot say that Defendant lacked any colorable legal ground for removal. CONCLUSION For the reasons herein stated, IT IS THEREFORE ORDERED THAT Plaintiff's Motion to Remand (Docket Entry # 4) be, and it is hereby, GRANTED. This action is hereby remanded back to the state court from which it was removed. The Clerk of the Court is directed to take the appropriate action to facilitate the transfer. NOTES [1] The Price-Anderson Act, in addition to providing federal courts with jurisdiction over tort actions arising out of nuclear accidents, contains an express provision permitting the removal of such actions from state court even when the action asserts only state-law claims. 42 U.S.C. § 2014(hh). See discussion in Beneficial Nat. Bank, ___ U.S. at ___, 123 S.Ct. at 2062. [2] The Federal Communications Act of 1934, as amended (codified at 47 U.S.C. § 151 et seq.). [3] Significantly, here the FCC was considering the issue as one of conflict preemption, not complete preemption, thus providing further support for the Court's conclusion here. [4] In support, Defendant submits the Declaration of Donald Jones, who opines that the cost of conducting systematic drive surveys in Arkansas, which would be required to provide more detailed information concerning its network coverage in Arkansas, would exceed $75,000. [5] See e.g. Gibson v. Chrysler Corp., 261 F.3d 927 (9th Cir.2001) (finding that a disgorgement plea did not trigger the non-aggregation exception); Morrison v. Allstate Indem. Co., 228 F.3d 1255 (11th Cir.2000) (finding same); Gilman v. BHC Sec., Inc., 104 F.3d 1418 (2nd Cir. 1997) (finding same); Harris v. Physicians Mut. Ins. Co., 240 F. Supp. 2d 715 (N.D.Ohio 2003) (finding same); McCoy v. Erie Ins. Co., 147 F. Supp. 2d 481 (S.D.W.Va.2001) (finding same); Aetna U.S. Healthcare, Inc. v. Hoechst Aktiengesellschaft, 54 F. Supp. 2d 1042 (D.Kan., 1999)("Aetna I")(finding same); Pierson v. Source Perrier S.A., 848 F. Supp. 1186 (E.D.Pa.1994) (finding same); but see Durant v. Servicemaster Co., 147 F. Supp. 2d 744 (E.D.Mich.2001) (finding that a plea for disgorgement allowed plaintiffs' claims to be aggregated); In re Microsoft Corp. Antitrust Litig., 127 F. Supp. 2d 702 (D.Md.2001) (finding same); Aetna U.S. Healthcare, Inc. v. Hoechst Aktiengesellschaft, 48 F. Supp. 2d 37 (D.D.C. 1999) ("Aetna II") (finding same); In re Cardizem, 90 F.Supp.2d at 826 (E.D.Mich.1999)(finding same).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501163/	280 F. Supp. 2d 244 (2003) MARIO VALENTE COLLEZIONI, LTD., Plaintiff, v. AAK LIMITED and Maurice Ian Kindler, Defendants. No. 02 Civ. 0099(RPP). United States District Court, S.D. New York. September 8, 2003. 245 Thomas M. Mullaney, Esq., New York, NY, for Plaintiff. Cohen, Pontani, Lieberman & Pavane, by Martin B. Pavane, Esq., William A. 246 Alper, Esq., New York, NY, for Defendants. OPINION AND ORDER ROBERT P. PATTERSON, Jr., District Judge. Defendants AAK Limited and Maurice Ian Kindler (collectively, "Defendants") move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Mario Valente Collezioni, Limited ("Plaintiff") cross-moves for summary judgment on the issue of collateral estoppel pursuant to Fed.R.Civ.P. 56. For the following reasons, Defendants' motion is denied in part and granted in part and Plaintiff's cross-motion is denied in part and granted in part. Background[1] In 1997, Plaintiff brought an action against Confezioni Semeraro Paolo, S.R.L., et. al. (the "Semeraro defendants"), located in Italy, for breach of contract, trademark infringement and unfair competition (the "Semeraro Action"). The Semeraro defendants did not respond and a default judgment was entered against them. See Mario Valente Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L., 115 F. Supp. 2d 367, 369 (S.D.N.Y.2000). Following an inquest, at which the Semeraro defendants did not appear, Magistrate Judge Eaton issued a report and recommendation on March 23, 1998 recommending that Plaintiff be awarded damages totaling $1,645,970 plus interest. See id. The Semeraro defendants received the report and recommendation but entered no objections. See id. On April 10, 1998, the Court entered judgment for Plaintiff in the amount of $1,693,387.62. See id. Plaintiff then commenced a proceeding in the Court of Appeals of Bari, Italy, in October 1998, for recognition of the American judgment. See id. The Semeraro defendants defaulted in the Italian action, and on January 26, 1999, the Italian court recognized and registered the American judgment. See id. On March 24, 1999, the Semeraro defendants filed a motion before Judge Kaplan, pursuant to Rules 55(c) and 60(b) of the Federal Rules of Civil Procedure to vacate the default judgment entered against them, claiming lack of jurisdiction. Id. at 368-69. After an evidentiary hearing conducted on February 8, February 9 and June 20, 2000, during which Defendant Kindler, Mr. Semeraro, his son-in-law and other witnesses testified, (id. at 376) Judge Kaplan denied the motion. Id. at 378. The decision was appealed by the Semeraro defendants, and the Second Circuit held that the district court properly found personal jurisdiction over the Semeraro defendants, but erred in failing to perform a federal due process analysis. Mario Valente Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L., 264 F.3d 32 (2d Cir. 2001). The Second Circuit affirmed and remanded the case back to Judge Kaplan on the due process issue. Id. at 38. On remand, Judge Kaplan found that the exercise of personal jurisdiction over the 247 Semeraro defendants did not violate due process of law and the judgment became final. Mario Valente Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L., 174 F. Supp. 2d 170, 176 (S.D.N.Y.2001). No part of the judgement has been paid. (Selig Dep. at 244.) In finding jurisdiction over the Semeraro defendants pursuant to C.P.L.R. § 302(a), Judge Kaplan addressed the issues before him: The second and fourth claims quite plainly allege torts. Plaintiff is based in and therefore felt any injury in New York. Hence, if Semeraro and CSP, or their agents, committed any tortious act in New York, they are subject to jurisdiction in accordance with CPLR § 302(a), subd. 2. Similarly, if they committed any tortious act outside the state and satisfied its other requirements, they are subject to jurisdiction under CPLR § 302(a), subd. 3. The plaintiff submitted evidence at the inquest to the effect that Semeraro, who is the sole owner of CMV and the sole proprietor of CSP, sent representatives of AAK Ltd. ("AAK"), a United Kingdom company the chairman of which is Maurice Kindler, to New York to tell plaintiff's customers that Kindler had taken over the Mario Valente label in the United States and that plaintiff was out of business, thus costing plaintiff at least two major accounts. In short, they allegedly cut plaintiff out of the business, leading Magistrate Judge Eaton to find that "the defendants participated in infringement of plaintiff's trade-name and in unfair competition with the intention of damaging plaintiff." He recommended a large damage award based entirely on the loss by plaintiff of its Lord & Taylor and Bloomingdale's accounts as a consequence of what he found to be tortious behavior attributable to defendants. Defendants respond to these allegations and findings by claiming that (1) "Mario Valente" is not a registered trademark and therefore is not protected, (2) defendants never sold goods in the United States under the "Mario Valente" name, and (3) defendants could not prevent third parties to whom CMV sold "Mario Valente" coats in Europe from reselling in the United States. Defendants' first point is entirely without merit. Both the common law and the Lanham Act protect trademarks and trade names irrespective of whether they are registered. The more difficult question is whether Semeraro is subject to long arm jurisdiction in New York on these claims. And it is essential to define the record on which that question must be decided, as it differs in important respects from that which was before the Magistrate Judge. Upon reviewing the papers in support of and in opposition to the motion to vacate the default judgment, this Court concluded that an evidentiary hearing on the jurisdictional issue raised by Semeraro and CSP was appropriate and subsequently conducted a hearing over parts of three days. Accordingly, the record that controls determination of the jurisdictional issue is that of the evidentiary hearing on the motion rather than the inquest that followed the default although it is important also to recognize that parts of the inquest record were received in evidence at the hearing. Mario Valente, 115 F.Supp.2d at 373-74. Judge Kaplan then made the following findings of fact:[2] The starting point for this discussion is the relationship between Joseph Selig, 248 plaintiff's principal, and A.E. "Sonny" Dann, his mentor in starting the plaintiff company. Dann, who was a number of years older than Selig, encouraged him to form and initially was a 50 percent partner in plaintiff and, through Dann's company, A.E.D. Imports, Ltd. ("AED"), operated as plaintiff's factor. In 1994, AED entered into an agreement that provided in relevant part as follows: "Confezioni PAOLO SEMERARO hereby appoint A.E.D. IMPORTS LTD. as their sole DISTRIBUTORS/IMPORTERS for the sale of all goods manufactured by them directly or indirectly in their own factories or any factories controlled or associated with them, from this date henceforth." (Minimum quantity 10000 coats × year). "Confezioni PAOLO SEMERARO hereby undertake that no clothing will be offered by them or anyone acting on their behalf for sale in the U.S.A. except through A.E.D. IMPORTS LTD. their appointed DISTRIBUTORS/IMPORTERS. THIS AGREEMENT IS VALID ONLY FOR PRODUCTION OF MEN'S OVERCOATS." The agreement recited that the parties were AED, plaintiff and CSP. It bore signature lines only for AED and CSP. It was signed by Dann above a line stating "for and on behalf of AED IMPORTS LTD." It was signed by Semeraro above a line stating "for and on behalf of Confezioni PAOLO SEMERARO" and bore a rubber stamp with the name CMV over Semeraro's signature. As the business developed, plaintiff placed orders with defendants each year for men's overcoats which it then sold in the United States under the Mario Valente name. Indeed, the Court infers that, as Dann aged and became less active in the business, plaintiff for a time became defendants' sole U.S. outlet. But Selig and Semeraro fell out in late 1996 and early 1997 in a dispute over prices, quality and, it seems, the appearance in the United States of overcoats bearing Mario Valente labels that had not been purchased by plaintiff. [FN 37] As they negotiated over the problems with a view toward the 1997 season, Semeraro became concerned that further delay could force him to accede to Selig's position because it would become too late to find another U.S. outlet. So he began looking for a replacement for plaintiff while he continued to negotiate with Selig. [FN 37] Paolo Semeraro testified before the Court that he had never used Mario Valente labels in the United States. Hearing Tr. 27-28 (Docket Item 44). When confronted by plaintiff at a meeting in February 1997 about the appearance of garments in New York that were not plaintiff's product but nonetheless bore the Mario Valente label, however, he and his son-in-law appear to have acknowledged that they were using the Mario Valente name in New York, replying only that the labels were Mario Valente Italy labels. See PX 19 (interpreter's minutes of the business meeting) (emphasis added). On the witness stand Paolo Semeraro denied that the meeting in February 1997 took place. Hearing Tr. 27-28 (Docket Item 44). The Court does not find this denial to be credible. At the time of these events, AAK was defendants' exclusive outlet in Great Britain and sold overcoats made by Semeraro under a private label to Marks & Spencer, a large British department store. Kindler, AAK's chairman, knew that plaintiff had the exclusive right to sell Mario Valente overcoats in the United States. [FN40] But he admitted that Semeraro told him that he had had a falling out with Selig and that Selig no 249 longer was buying from him. So Kindler set up a meeting with the Bloomingdale's buyer who previously had bought Mario Valente coats from plaintiff. He also solicited the aid of his friend, Joseph Sheer, in selling defendants' overcoats in the United States, and Sheer contacted Lord & Taylor, another of plaintiff's major customers. FN40. [Hearing Tr., June 20, 2000,] 48-49 [Docket Item 50]. By course of dealing, the parties had substituted plaintiff for AED as the exclusive U.S. distributor of defendants' overcoats. See Hearing Tr. 87-89 (Docket Item 44). The parties' practical construction of the agreement, as demonstrated by their consistent course of performance, is relevant to a determination of the meaning of the agreement. Cf. N.Y.U.C.C. § 2-208(1) (McKinney 1993). Here, plaintiff not only was a party to the agreement that appointed AED the exclusive distributor/importer for defendants' overcoats, but also was the only buyer of the overcoats in the United States from the inception of the agreement. Throughout the parties' course of dealings, up until the dispute giving rise to this action, defendants did not sell their coats to anyone in the United States other than plaintiff. See Hearing Tr. 88. Even after AED was liquidated, the defendants continued to deal exclusively with plaintiff. Id. at 89. In consequence, the Court finds that the parties intended for plaintiff to serve as the exclusive importer of defendants' coats in the United States. Indeed, Kindler's testimony that he knew that plaintiff had the exclusive U.S. distribution rights to defendants' production must have been based upon his discussions with Semeraro, thus confirming Semeraro's agreement to that relationship. The evidence established that Sheer telephoned Evan Dash, then the Lord & Taylor buyer with whom plaintiff previously had dealt, in the spring of 1997. He introduced himself as a representative of AAK, said that Kindler was selling Mario Valente overcoats, and solicited an appointment. The Lord & Taylor buyer asked why Sheer was selling Mario Valente coats, as Lord & Taylor previously had bought them from a domestic company (i.e., plaintiff). Sheer explained that plaintiff had gone out of business or lost the label and that Sheer henceforth would be the exclusive source for Mario Valente coats in the United States. [FN43] FN43. [Hearing Tr., June 20, 2000,] 12-14 [Docket Item 50]. It should be noted that the coats that plaintiff had sold to Lord & Taylor in the past, although manufactured by defendants, had borne a Lord & Taylor private label rather than the Mario Valente name. Lord & Taylor, however, knew the goods as Mario Valente coats. Moreover, it was on the verge of contracting with plaintiff to purchase coats with Mario Valente labels for the following season. Id. 15-16. This call had a devastating impact on plaintiff's business with Lord & Taylor. Although Lord & Taylor previously had bought only private label merchandise from plaintiff, it was on the verge of buying Mario Valente branded goods for the following season. Given the uncertainty as to who owned the name, Lord & Taylor dropped plaintiff as a supplier both for private label and Mario Valente brand coats. [FN 44] [FN 44] Id. 16-17. The evidence concerning Bloomingdale's was less direct but ultimately no less compelling. Although plaintiff's effort to procure the attendance of the Bloomingdale's 250 buyer at the hearing failed and the Court excluded the buyer's deposition, the fact remains that Bloomingdale's largely dropped plaintiff as a supplier in precisely the same time frame. The Court finds that it did so because Kindler told the Bloomingdale's buyer substantially the same things that Sheer told Lord & Taylor. It bases this finding in part upon the fact that it is likely that Sheer, who was merely aiding Kindler in obtaining orders in the U.S., was told what to say to potential customers by Kindler. The fact that defendants called Kindler as a witness, after having induced him to travel to the United States for the hearing, yet chose not to elicit his account of his conversations with Bloomingdale's, lends very substantial support to the inference that Kindler told Bloomingdale's exactly what Sheer told Lord & Taylor. The fact that Kindler and his agent, Sheer, behaved as they did is of no avail to plaintiff here absent proof that Semeraro is legally responsible for their actions, as CPLR § 302(a) requires tortious behavior by the defendant or an agency relationship between the defendant and the tortfeasor. And Kindler and Semeraro both contended at the hearing that Kindler acted independently of Semeraro. But the evidence suggests otherwise. To begin with, defendants' claim that Semeraro did not even know that Kindler would approach U.S. buyers simply is not credible. There is no reason to suppose that Kindler would have told prospective U.S. customers, directly and through Sheer, that AAK had exclusive U.S. rights for Mario Valente overcoats unless Semeraro had so agreed and no reason for Semeraro so to have agreed unless he had been assured that Kindler would make a determined effort to succeed in the United States. After all, Semeraro's motive here, given the substantial risk that he would fail to reach agreement with Selig for the coming year, was to use Kindler to find retail outlets for the volume of production he previously had supplied to plaintiff. So Semeraro and Kindler had a community of interest in violating plaintiff's exclusive rights to Semeraro's production and in persuading plaintiff's customers that Kindler, and not plaintiff, was the only available source of those goods. Indeed, they had a community of interest in persuading prospective customers that plaintiff no longer was a factor in the business. In consequence, it is more likely than not that Semeraro and Kindler together hatched a scheme to dump plaintiff as the U.S. distributor of Semeraro's products, to replace it with Kindler's firm, and to persuade plaintiff's existing U.S. customers and others that plaintiff no longer was a factor in the business and that AAK was the exclusive source in the United States of Mario Valente brand goods as well as Semeraro's other products. In such circumstances, Semeraro is legally responsible for all actions by Kindler and his agents in furtherance of the plan. There is little doubt that the actions of Semeraro and Kindler were tortious. And although Semeraro may not have set foot in New York prior to his motion to set aside the default judgment, his collaboration with Kindler subjects him to personal jurisdiction in New York on two grounds. First, although his agreement with Kindler to participate in behavior that constituted unfair competition and trademark infringement was entered into outside of New York, that behavior caused injury to plaintiff in New York. This injury, in combination with the fact that Semeraro was a party to an exclusive distributorship agreement 251 through which he regularly sold overcoats to plaintiff in New York, thereby deriving revenue from goods used or consumed in New York, serves to satisfy the requirements of jurisdiction under CPLR § 302(a)(3). Second, by virtue of the agency relationship between Semeraro and Kindler, Kindler's actions within New York subject Semeraro to jurisdiction under CPLR § 302(a)(2). Accordingly, the Court holds that Semeraro is subject to in personam jurisdiction here under CPLR § 302(a), subds. 2 and 3, with respect to the tort claims. Insofar as he and CSP move to set aside the default judgment for lack of jurisdiction, their motion is denied. Id. at 374-77.[3] The Present Action In January 2002, Plaintiff commenced the present action against Defendants.[4] According to the Complaint filed on January 7, 2002, in 1994 the Semeraro defendants gave Plaintiff the exclusive right to import and sell Semeraro men's overcoats in the United States and the "exclusive right to the use of the trade-name and trademark in the United States of `Mario Valente,' in connection with the distribution and sale of its men's overcoat [sic] and related products" and Defendants had knowledge of Plaintiff's exclusive rights. (Complaint ¶¶ 6, 7, 10.) Commencing in or about 1997, Defendants received men's overcoats from the Semeraro factories, and exported them to Brooks Brothers in the United States, pursuant to a pre-arrangement with the Semeraro defendants.[5] (Id. ¶ 9.) In the spring of 1997 and subsequently, Defendants and their agent solicited and sought to sell Semeraro overcoats and related products to Lord & Taylor and Bloomingdale's, falsely representing that Plaintiff was going out of business and that Defendants had gained the rights to sell the "Mario Valente" line and use the "Mario Valente" tradename and trademark. (Id. ¶ 11.) Plaintiff alleged the following claims in its Complaint: 1) injury in business due to unfair competition; 2) injury by infringement of tradename and trademark; and 3) injury by intentional and willful interference by Defendants in Plaintiff's contractual and business relationships. (Id. ¶¶ 16-21.) Plaintiff alleged that its action was brought generally pursuant to 28 U.S.C. §§ 1332(a)(2), 1367(b), 1391(a) and (d), New York Civil Practice Law Rules (CPLR), §§ 302(a)1, 3(i) and (ii) and other such applicable laws "including the Common Law of the United States and the State of New York." (Id. ¶ 1.) Defendants moved for summary judgment on all three claims in the Complaint on March 13, 2003 and on April 2, 2003, Plaintiff filed its cross-motion for summary 252 judgment on liability and on all three claims, based on a theory of collateral estoppel.[6] Oral argument on these motions was held on June 10, 2003.[7] Discussion I. Standard for Summary Judgment The standard for granting summary judgment is: First, summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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). Second, the burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists. In considering that, third, all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. Fourth, the moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case. When no rational [fact finder] could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper. Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223-24 (2d Cir.1994) (internal citations omitted). Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Matsushita Electric Industrial Co. Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Adickes v. S.H. Kress & Company, 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). II. Collateral Estoppel Under federal law, collateral estoppel, or issue preclusion applies when: "(1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits." Marvel Characters, Inc. v. Simon, 310 F.3d 280, 288-89 (2d Cir.2002) (internal citation and quotations omitted). Issue preclusion attaches only in the case that "an issue of fact or law is actually litigated and determined by a valid final judgment" and not in the case when "a judgment [is] entered by ... default." Arizona v. California, 530 U.S. 392, 414, 120 S. Ct. 2304, 147 L. Ed. 2d 374 (2000) (internal citation and quotations omitted). The claims brought by Plaintiff against the Semeraro defendants were based on diversity jurisdiction. The Supreme Court has held that the preclusive effect of any decision by a federal court, sitting in a diversity action, is to be determined by the applicable preclusion law of the state in which the district court sat. Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508-09, 121 S. Ct. 1021, 149 L. Ed. 2d 32 (2001). The rule in Semtek "applies to the situation ... where the preclusive effect of a federal decision in a diversity case is being litigated in federal court." NAS Electronics, Inc. v. Transtech Electronics PTE Ltd., 262 F. Supp. 2d 134, 142 (S.D.N.Y.2003). 253 As Judge Koeltl recently stated in NAS Electronics: Under New York law, "[c]ollateral estoppel or issue preclusion `precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party [or those in privity,] whether or not the tribunals or causes of action are the same.'" Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir.2000) (quoting Ryan v. New York Tel. Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 467 N.E.2d 487, 490 (N.Y.1984)); see also, Fletcher v. Atex, Inc., 68 F.3d 1451, 1457 (2d Cir.1995). Whether an issue decided in a prior proceeding has preclusive effect "depends on the specific facts and circumstances of each case." Collateral estoppel applies only "`if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action.'" Id. (quoting Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 690 N.Y.S.2d 478, 712 N.E.2d 647, 651 (N.Y.1999)) ... In addition, the issue must be decisive and conclusive in the subsequent action. See Wight v. Bankamerica Corp., 219 F.3d 79, 86 (2d Cir.2000) ... Id. at 143 (some string citations omitted). The Second Circuit has recognized privity in the context of collateral estoppel "based on representation only if the interests of the person alleged to be in privity were represented in the prior proceeding by another vested with the authority of representation." Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders In Het Kapitaal Van Saybolt International B.V. v. Schreiber, 327 F.3d 173, 185 (2d Cir.2003) (internal citations and quotations omitted). See also, Monahan v. New York Department of Corrections, 214 F.3d 275, 285 (2d Cir.), cert. denied, 531 U.S. 1035, 121 S. Ct. 623, 148 L. Ed. 2d 533 (2000). The Second Circuit has found privity in a situation "where a party to a previous suit was, at the time of litigation, acting as either a fiduciary or organizational agent of the person against whom preclusion is asserted." Schreiber, 327 F.3d at 185. Privity has also been found to exist in the absence of a fiduciary or agency relationship when the "person nonetheless exercised some degree of actual control over the presentation of a party's case at the previous proceeding." Id. See also, Central Hudson Gas & Electric Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 368 (2d Cir.1995). In this case, the Semeraro defendants filed a motion to vacate the judgment against them on March 24, 1999. Mario Valente, 115 F.Supp.2d at 369. An evidentiary hearing to determine the jurisdictional issue raised by the Semeraro defendants was held before Judge Kaplan over parts of three days, and Defendant Kindler was called and testified for the Semeraro defendants.[8]See id. at 373, 375-76. Judge Kaplan made findings and denied the motion to vacate the judgement by Opinion dated September 8, 2000. Id. at 374-78. Defendants' current motion claims that 1) the tortious interference and unfair competition claims are time-barred by the applicable statute of limitations; 2) the evidence in the record does not support 254 the unfair competition and trademark claims; and 3) Defendants are not bound by the judgment in the Semeraro Action. (Defendants' Notice of Motion; Defendants' Memorandum of Law in Support of Summary Judgment.) The parties have cited no cases, and this Court could not find any precedent that addresses the precise situation presented in the case, namely, whether a court's findings of fact and conclusions of law at an evidentiary hearing, in connection with a motion to vacate a default judgment, are binding on the agent of the defendant in a later proceeding brought against the agent. Nevertheless, since Judge Kaplan, after conducting a three day evidentiary hearing in which both parties appeared and Defendant Kindler testified, found that an "agency relationship" existed between Semeraro and Kindler, and that "Semeraro [was] legally responsible for all actions by Kindler and his agents" (id. at 376-77), the Court concludes that Judge Kaplan's factual findings that tortious acts harming Plaintiff were committed by AAK and Kindler and the Semeraro defendants are the equivalent of a decision on the merits. Accordingly, the Court will review the validity of each of Plaintiff's claims, and if necessary, determine if the evidence satisfies the Marvel factors. A. Plaintiff's Tortious Interference Claim Pursuant to New York law, a claim alleging interference with contractual and business relationships is subject to a three year statute of limitations. See N.Y. C.P.L.R. § 214(4); Besicorp Ltd. v. Kahn, 290 A.D.2d 147, 150, 736 N.Y.S.2d 708 (N.Y.App.Div.2002). The limitations period for tortious interference claims begins to run on the date that the alleged injury takes place. See Weizmann Institute of Science v. Neschis, 229 F. Supp. 2d 234, 252 (S.D.N.Y.2002). Plaintiff does not dispute these points. Plaintiff alleged that in the Spring of 1997, Defendants exported Semeraro overcoats to Brooks Brothers in violation of Plaintiff's exclusive right to the importation and sale of Semeraro overcoats. (Compl. ¶ 9.) Plaintiff also alleged that "[d]uring the Spring of 1997, and thereafter,"[9] Defendants solicited orders for Semeraro overcoats from Lord & Taylor and Bloomingdale's. (Id. ¶ 11.) Plaintiff brought the current Complaint against Defendants in January 2002, tolling the statute of limitations. During oral argument on the current motion, Plaintiff conceded that the tortious interference claim was outside the applicable three year statute of limitations. (Tr. at 44.) Defendants' motion for summary judgment with respect to the tortious interference claim is granted. B. Plaintiff's Unfair Competition Claim Both parties addressed Plaintiff's unfair competition claim under the Lanham Act in their briefs and at oral argument. 1. Substantive Law Section 43 of the Lanham Act provides in relevant part: Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading 255 description of fact, or false or misleading representation of fact, which (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. §§ 1125(a)(1)(A) and (B). "Commerce" under the Lanham Act means "all commerce which may be lawfully regulated by Congress."[10] 15 U.S.C. § 1127. a. 15 U.S.C. § 1125(a)(1)(A) The first prong of Section 43 of the Lanham Act states that "any person who, on or in connection with any goods or services ... uses in commerce" a "false or misleading description of fact" or a "false or misleading representation of fact" that is "likely to ... deceive as to the affiliation of ... such person with another person, or as to the ... sponsorship ... of his or her goods ... or commercial activities by another person" is liable under the act. 15 U.S.C. § 1125(a)(1)(A). In the Semeraro Action, Judge Kaplan found the following: Kindler set up a meeting with the Bloomingdales's buyer who previously had bought Mario Valente coats from [p]laintiff. He also solicited the aid of his friend, Joseph Sheer in selling defendants' overcoats in the United States, and Sheer contracted Lord & Taylor, another of [p]laintiff's major customers. The evidence established that Sheer telephoned ... the Lord & Taylor buyer ... in the Spring of 1997[,] ... introduced himself as a representative of AAK, said that Kindler was selling Mario Valente overcoats, and solicited an appointment ... Sheer explained that [p]laintiff had gone out of business or lost the label and that Sheer henceforth would be the exclusive source for Mario Valente coats in the United States. This call had a devastating impact on [p]laintiff's business with Lord & Taylor ... [and] Lord & Taylor dropped [p]laintiff as a supplier both for private label and Mario Valente brand coats. Mario Valente, 115 F.Supp.2d at 375 (emphasis added). Judge Kaplan similarly held that "[t]he evidence concerning Bloomingdale's was less direct but ultimately no less compelling," and that "Kindler told the Bloomingdale's buyer substantially the same things that Sheer told Lord & Taylor." Id. In addition, Judge Kaplan specifically noted Defendant Kindler's own testimony at the jurisdictional hearing that "he knew that [P]laintiff had the exclusive U.S. distribution rights to defendants' production." Id. at 375, n. 40. Accordingly, Judge Kaplan's findings establish that Defendants Kindler and AAK, with knowledge of Plaintiff's exclusive distribution 256 rights in the United States, 1) attempted to sell Semeraro overcoats in the United States; 2) used false and misleading descriptions of fact and representations of fact which were likely to deceive Lord & Taylor and Bloomingdale's as to Plaintiff's right to sell Mario Valente overcoats in the United States; and 3) damaged Plaintiff's business relationship with Lord & Taylor and Bloomingdale's in violation of 15 U.S.C. § 1125(a)(1)(A). b. 15 U.S.C. § 1125(a)(1)(B) For liability under the second prong of Section 43, a person must, "in connection with any goods or services ... use in commerce" a "false or misleading representation of fact ... in ... promotion [that] misrepresents the nature ... and qualities ... of ... another person's goods ... or commercial activities." 15 U.S.C. § 1125(a)(1)(B). With respect to "commercial advertising or promotion" under Section 43 of the Lanham Act, the Second Circuit has adopted a three-part test. Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 56-58 (2d Cir.2002). An alleged representation is actionable under the Lanham Act if it is: "(1) commercial speech; ... [(2)] for the purpose of influencing consumers to buy defendant's goods or services; and [(3)] ... [is] disseminated sufficiently to the relevant purchasing public." Id. With respect to the dissemination requirement of § 1125(a)(1)(B), the Second Circuit noted: [T]he touchstone ... is that the contested representations are part of an organized campaign to penetrate the relevant market. Proof of widespread dissemination within the relevant industry is a normal concomitant of meeting this requirement. Thus, businesses harmed by isolated disparaging statements do not have redress under the Lanham Act; they must seek redress under state law causes of action. Id. at 57. The findings by Judge Kaplan detailed above in relation to 15 U.S.C. § 1125(a)(1)(A) that Defendants AAK and Kindler misrepresented to Lord & Taylor and Bloomingdale's that Plaintiff had lost the Mario Valente label and had gone out of business, and that Defendant Kindler knew that Plaintiff had the exclusive distribution rights to the Semeraro defendants' production, are equally relevant to the analysis here under the second prong of Section 43. The only additional requirement under the law for the second prong of Section 43 is that the misrepresentation occur in "commercial advertising or promotion." 15 U.S.C. § 1125(a)(1)(B). To that end, Defendants argue that, aside from Lord & Taylor and Bloomingdale's, they never contacted any of Plaintiff's "other customers or potential customers in the United States, of which there are at least 80, possibly hundreds," (Defs.' Mem. of Law in Support of Summ. J. at 12.) and Judge Kaplan's findings do not constitute a sufficient showing of "widespread dissemination." Fashion Boutique, 314 F.3d at 57. Judge Kaplan stated that Magistrate Judge Eaton's large damage award was "based entirely on the loss by [P]laintiff of its Lord & Taylor and Bloomingdale's accounts as a consequence of what he found to be tortious behavior attributable to [the Semeraro] defendants." Mario Valente, 115 F.Supp.2d at 373. Judge Kaplan found that Defendant Kindler's actions had "a devastating impact on [P]laintiff's business with Lord & Taylor," id. at 375, and ended up "costing [P]laintiff at least two major accounts." Id. at 373. It is not clear, however, from Judge Kaplan's findings that the magnitude of business that Lord & Taylor and Bloomingdale's constituted 257 for Plaintiff satisfies the "widespread dissemination" requirement of Fashion Boutique, 314 F.3d at 57.[11] Accordingly, there is inadequate proof of the violation of 15 U.S.C. § 1125(a)(1)(B). c. Marvel Characters Analysis Thus, with respect to Plaintiff's unfair competition claim under the Lanham Act, all of the requirements under Marvel Characters, 310 F.3d at 288-89, are satisfied. Pursuant to Marvel Characters: 1) the identical issues were raised in the Semeraro Action, i.e., whether Plaintiff had a contract with the Semeraro defendants for the exclusive distribution of their men's overcoats in the United States, Mario Valente, 115 F.Supp.2d at 375, n. 40; whether Defendant Kindler, with knowledge of Plaintiff's exclusive distribution rights, acted as agent for Semeraro, falsely claiming that Plaintiff had lost the label and was out of business and that Defendant AAK was the exclusive source in the United States for Mario Valente overcoats, id. at 375; and whether the false claim was likely to deceive, id. at 375, n. 43; 2) the issues were actually litigated and decided before Judge Kaplan to the extent that Judge Kaplan made findings of fact at the jurisdictional hearing that Defendants Kindler and AAK had committed "tortious" actions, id. at 376; 3) AAK and Kindler, who was indemnified by the Semeraro defendants before appearing as a witness before Judge Kaplan (Kindler Dep. at 11-12), had a full and fair opportunity to litigate the issue of unfair competition committed by the Semeraro defendants due to the actions of their agents, Defendants AAK and Kindler in this district during a hearing at which, Defendant Kindler testified pursuant to an indemnity agreement, thereby exercising some control of the presentation of the case, Schreiber, 327 F.3d at 185; and 4) Judge Kaplan's findings of fact on the personal jurisdiction question with respect to the unfair competition claim were necessary to support a valid and final judgment against the Semeraro defendants. Marvel Characters, 310 F.3d at 288-89. Since the evidentiary hearing before Judge Kaplan resulted in findings that tortious acts had been committed by Kindler and AAK in New York and resulted in a final judgment, those findings are the equivalent of a judgment on the merits. Accordingly, collateral estoppel with respect to the unfair competition claim applies. 2. Statute of Limitations Defendants' next argue that under the Lanham Act, the unfair competition claim is barred by the applicable state statute of limitations. The Lanham Act does not delineate a statute of limitations period, and a federal court "must look to the analogous State law to determine the limitations period which does best to further the policies behind the Act." H & R Industries, Inc. v. Kirshner, 899 F. Supp. 995, 1001 (E.D.N.Y.1995); cf. Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 191 (2d Cir.1996). Defendants contend that the most analogous statute of limitations for common law unfair competition claims seeking damages is N.Y. C.P.L.R. § 214(4), which governs actions to recover damages for injury to property, and sets a statute of limitations of three years. (Defs.' Mem. of Law in Support of Summ. J. at 13 citing Ediciones Quiroga, S.L. v. Fall River Music, Inc., 35 U.S.P.Q.2d 1814, 1821 (S.D.N.Y.1995)(RPP) (the appropriate limitations provision for the state unfair competition claim was N.Y. C.P.L.R. 258 § 214(4)); Mopex, Inc. v. American Stock Exchange, LLC, 2002 WL 342522, 11 (S.D.N.Y.2002) (court noted that plaintiff conceded that its unfair competition claim was akin to injury to property because "the gravamen of its claim ... is the bad faith misappropriation of a commercial advantage belonging to another ... by exploitation of proprietary information or trade secrets").) Pursuant to N.Y. C.P.L.R. § 214(4), the three year statute of limitations would have already expired as of the date of the filing of the Complaint. In Ediciones, however, the state law unfair competition claim, which the Court found was akin to injury to property, was based on defendants violating a contract and openly changing the credits for lyrics to another person, and thus depriving plaintiff of the credits, not on surreptitious selling in the territory of an exclusive distributorship.[12] Plaintiff contends that the most analogous cause of action, consistent with the policies behind the Lanham Act, is the common law fraud action, pursuant to N.Y. C.P.L.R. § 213(8) which has a statute of limitations period of six years. See e.g., H & R Industries, 899 F.Supp. at 1002 ("policies behind the Lanham Act most closely resemble New York common law fraud"); Charles Atlas, Ltd. v. DC Comics, Inc., 112 F. Supp. 2d 330, 334 (S.D.N.Y.2000); PepsiCo, Inc. v. Dunlop Tire & Rubber Corp., 578 F. Supp. 196, 199 (S.D.N.Y.1984) ("section 43(a) ... applies ... to those deceptive business practices which ... attempt to induce consumers to purchase an advertiser's goods by falsely passing them off" and "[s]uch claims can best be analogized to causes of actions sounding in fraud"). Under Plaintiff's argument, Defendants' actions constituting unfair competition occurring five years prior to the Complaint would be within the six year statute of limitations period. The statute of limitations periods for unfair competition claims have "been treated disparately in New York." Ediciones, 35 U.S.P.Q.2d at 1821, n. 7. In this case, this Court finds that Defendants' behavior more closely resembles that of fraud rather than an injury to property, because the crux of the claim against Defendants involves the surreptitious selling by undisclosed agents of the Semeraro defendants in violation of the exclusive distributorship of Plaintiff by means of false and misleading representations made on behalf of the Semeraro defendants to Plaintiff's customers (i.e. Lord & Taylor and Bloomingdale's). Pursuant to the body of cases holding that the statute of limitations akin to New York state fraud claims of six years applies in this case, Plaintiff's unfair competition claim is not time-barred.[13] Plaintiff's motion for summary judgment on the issue of liability for unfair competition is granted.[14] 259 C. Plaintiff's Trademark Infringement Claim[15] The Lanham Act provides in relevant part: (1) Any person who shall, without consent of the registrant[16] (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or (b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action. 15 U.S.C. §§ 1114(1)(a) and (b). A mark is "`use[d] in commerce'... on goods when ... it is placed ... on the goods or their containers or the displays ... or on the tags or labels affixed thereto, or ... on documents associated with the goods or their sale, and the goods are sold or transported in commerce...." 15 U.S.C. § 1127. Judge Kaplan found that the Semeraro defendants appeared to acknowledge use of the Mario Valente label in New York, after being confronted by Plaintiff at a meeting, replying only that the labels they used were Mario Valente Italy labels, Mario Valente, 115 F.Supp.2d at 374, n. 37. At the hearing before Judge Kaplan, Mr. Paolo Semeraro testified and denied that such a meeting took place, but the court found Mr. Semeraro's denial of such a meeting was not credible. (Id.) There were no findings by Judge Kaplan, however, to suggest that the Semeraro defendants or AAK and Kindler placed the Plaintiff's trademark on goods or related labels, documents or packaging, or applied the mark or copy thereof to labels, signs or advertisements and such, intended to suggest use in commerce such that it would likely cause confusion or deceive. Although Judge Kaplan concluded that Semeraro had an "agreement with Kindler to participate in behavior that constituted trademark infringement," Mario Valente, 115 F.Supp.2d at 376, Judge Kaplan did not find, as Plaintiff claims, that "Defendants' acts constituted trademark infringement." (Pl.'s Mem. of Law in Opp'n and 260 in Supp. of its Mot. for Summ. J. at 21.) Judge Kaplan made no findings showing that the agreement to engage in trademark infringing behavior came to fruition, despite his findings that the actions of Kindler and AAK had caused Plaintiff injury.[17] Accordingly, because there is no evidence to support a trademark infringement claim, and because Judge Kaplan did not make specific findings to that effect, collateral estoppel with respect to liability for trademark infringement does not apply, and Plaintiff's motion for summary judgment is denied. Because Plaintiff is relying solely on a theory of collateral estoppel for its claim of liability against Defendants and the Court has limited other liability discovery in reliance on Plaintiff's claim, Defendants' motion for summary judgement on the trademark infringement claim is granted.[18] Conclusion For the foregoing reasons, Defendants' motion for summary judgment with respect to the tortious interference and trademark claims is granted and Plaintiff's cross-motion for summary judgment with respect to liability, but not damages,[19] for unfair competition is granted. IT IS SO ORDERED. NOTES [1] The Court refers to the following documents in this Opinion: a) The Deposition of Maurice Kindler dated Friday, January 24, 2003 (the "Kindler Deposition"), portions of which are attached as Exhibit 6 to the Declaration of Jeremy Kaufman dated March 13, 2003 (the "Kaufman Declaration"); as Exhibit D to the Affidavit of Thomas M. Mullaney, dated April 2, 2003, (the "Mullaney Affidavit"); and as Exhibit 11 to the Second Declaration of Jeremy Kaufman dated April 23, 2003 (the "Second Kaufman Declaration"). b) The Deposition of Joseph Selig, President of Plaintiff, dated January 29, 2003 (the "Selig Deposition"), portions of which are attached as Exhibit 2 to the Kaufman Declaration. c) Records of Brooks Brothers, attached as Exhibit I to the Mullaney Affidavit. [2] All except four footnotes have been omitted in an effort to conserve time, space and trees. [3] Judge Kaplan also found personal jurisdiction over Plaintiff's breach of contract claim and that the claim "manifestly arises out of [the Semeraro] defendants' contract to supply goods in New York pursuant to C.P.L.R. § 302(a), subd. 1." Mario Valente, 115 F.Supp.2d at 377. [4] The Complaint premises federal jurisdiction on diversity (Compl. ¶ 1), as well as other such applicable laws "including the Common Law of the United States." (Id.) Plaintiff clarified in its cross-motion and at oral argument that claims in the Complaint were brought pursuant to the Lanham Act. (Plaintiff's Memorandum of Law in Opposition at 15-21; tr. at 44-46.) [5] Plaintiff has established that Defendant AAK Limited placed such orders in 1996 and had shipped Semeraro defendants' men's overcoats with Brooks Brothers labels to Brooks Brothers in 1996 and 1997 from Italy. (Kindler Dep. at 26 ("some hundreds")); Records of Brooks Brothers Records (some thousands). [6] Plaintiff filed a Counterstatement in opposition to Defendants' Rule 56.1 Statement, but did not file a separate Rule 56.1 Statement in support of its cross motion. (Transcript at 37.) [7] All transcript citations refer to oral argument on the pending motions held on June 10, 2003. [8] Prior to testifying at the evidentiary hearing before Judge Kaplan, Defendant Kindler received a written indemnification agreement from the Semeraro Defendants. (Kindler Dep. at 11-12.) In anticipation of the current action, Defendant Kindler entered into a second written indemnification agreement in January 2002 under which the Semeraro defendants are paying Defendant Kindler's legal fees. (Id. at 13.) [9] Plaintiff does not allege any specific facts that took place "thereafter" (the Spring of 1997), and Plaintiff does not argue that alleged wrongdoing was ongoing in an effort to counter Defendants' statute of limitations defense. [10] The Complaint describes Brooks Brothers as "a major department store chain in New York and throughout the United States" (Compl. ¶ 9) and Lord & Taylor and Bloomingdale's as "major American department store chains." (Id. ¶ 11.) This Court takes judicial notice of the fact that Brooks Brothers, Bloomingdale's and Lord & Taylor are major American department store chains and are engaged in interstate commerce, and that sales related to these vendors may be lawfully regulated by Congress. This fact is not contested by either party. [11] Joseph Selig, on behalf of Plaintiff, testified on January 29, 2003 in a deposition that Lord & Taylor has about 70 stores, and that Plaintiff supplied coats to all of their northern stores. (Selig Dep. at 64.) [12] Similarly, Mopex did not involve surreptitious acts. In Mopex, the defendant was charged with soliciting confidential disclosure of new financial trading products which were trade secrets of the plaintiff, and, without consent, embodying them in a public application to the Securities Exchange Commission to trade in such financial trading products. Mopex, 2002 WL 342522 at 11. [13] Claims under the Lanham Act are subject to principles of equity. 15 U.S.C. § 1117(a). Since Plaintiff initiated this suit in a reasonable time after final judgment was entered against the Semeraro defendants, equitable principles, rather than the statute of limitations, should be applied. See Saratoga Vichy Spring Co., Inc. v. Lehman, 625 F.2d 1037, 1040-41 (2d Cir.1980); Grotrian, Helfferich, Schulz, Th. Steinweg Nachf v. Steinway and Sons, 523 F.2d 1331, 1344 (2d Cir.1975). [14] Plaintiff confined its argument to the Lanham Act, so this Court does not make any findings with respect to common law unfair competition. [15] Although Plaintiff grouped the trademark infringement claim with a tradename infringement claim in the Complaint, the tradename infringement claim would have been more properly placed within the unfair competition claim. Although tradename is defined separately in the Lanham Act as "any name used by a person to identify his or her business or vocation," 15 U.S.C. § 1127, federal tradename infringement claims are asserted under 15 U.S.C. § 1125(a). See McCarthy's on Trademarks and Unfair Competition, § 9:4 (McCarthy 2003). Therefore, the analysis with respect to the federal unfair competition claims applies to the federal tradename infringement claim in that they comprise the same claim, and a separate analysis of the alleged tradename infringement claim is unnecessary. [16] It is well established that the Lanham Act protects unregistered marks in addition to registered marks. See, e.g., Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 120 S. Ct. 1339, 1342-43, 146 L.Ed.2d 182(2000). Indeed, Judge Kaplan rejected the Semeraro defendants' argument that the Mario Valente trademark was not protected because it was not a registered trademark. Mario Valente, 115 F.Supp.2d at 373. [17] The Complaint refers to Defendants selling men's overcoats to Brooks Brothers in the Spring of 1997. Judge Kaplan made no findings about that alleged sale; in this case, Kindler has admitted making such sales under the Brooks Brothers label. (Kindler Dep. at 26.) [18] Plaintiff's Complaint also seeks relief pursuant to state trademark law, but Plaintiff said nothing in its brief or at oral argument about the requirements under state law or why the claim would be valid. Accordingly, that claim is dismissed for failure to prosecute. [19] The issue of damages was not litigated before Judge Kaplan. Thus, it cannot be said that Defendants had a full and fair opportunity to litigate the issue of damages, and collateral estoppel does not apply.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501169/	280 F. Supp. 2d 661 (2003) Roger STEPHENSON, Petitioner, v. Paul RENICO, Respondent. No. 02-74290. United States District Court, E.D. Michigan, Southern Division. August 8, 2003. 662 663 Roger Stephenson, St. Louis, MI, pro se. Brenda E. Turner, Laura G. Moody, Michigan Department of Attorney General, Lansing, MI, for Respondent. OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS EDMUNDS, District Judge. I. Introduction Petitioner Roger Stephenson, a state inmate currently incarcerated at the St. Louis Correctional Facility in St. Louis, Michigan, has filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging that he is incarcerated in violation of his constitutional rights. For the reasons set forth below, the Court denies the petition. II. Procedural History Following a jury trial in Washtenaw County Circuit Court, in which charges in two separate informations were consolidated for one trial, Petitioner was convicted of one count of armed robbery, five counts of assault with a dangerous weapon, and four counts of felony firearm. He was sentenced on February 13, 1998, to twenty-five to sixty years imprisonment for the armed robbery conviction, thirty-two to forty-eight months imprisonment for each of three of the assault with a dangerous weapon convictions, and two years imprisonment for each of the felony firearm convictions. He was sentenced as a fourth habitual offender to ten to fifteen years imprisonment for each of two assault with a dangerous weapon convictions. Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims: I. Mr. Stephenson was denied his state and federal due process rights to a fair trial when the trial court admitted, over defense objection, Mr. Stephenson's statement in response to police questioning that he did not want to go back to prison in order to show the specific intent required for the felonious assault charges involving the police officers. II. Mr. Stephenson's armed robbery sentence of 25 to 60 years was disproportionate to the seriousness of the circumstances of this offense and this offender. The Michigan Court of Appeals affirmed Petitioner's convictions and sentences. People v. Stephenson, Nos. 217450, 217451, 2000 WL 33417521 (Mich. Ct.App. June 23, 2000). Petitioner filed an application for leave to appeal in the Michigan Supreme Court, presenting the same claims presented to the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Stephenson, Nos. 117234-5, 463 Mich. 922, 630 N.W.2d 619 (Mich. Nov. 29, 2000). Thereafter, Petitioner filed a motion for relief from judgment in the trial court, presenting the following claims: I. Was defendant denied his state and federal due process rights to a fair trial when the court admitted, over defense objection, defendant's prior bad acts [in the form of his statement 664 to police that "he did not want to go back to prison"] in the guise of showing specific intent required for the felonious assault charges involving arresting police officers? II. Were the prosecutor's improper remarks alluding to defendant's previous armed robbery convictions, which were overheard by some of the jurors, so prejudicial as to deny defendant a fair and impartial trial? III. Was defendant's armed robbery sentence of 25 to 60 years disproportionate to the seriousness of the circumstances of the offense? On May 23, 2001, the trial court issued an Opinion and Order Denying Defendant's Motion for Relief from Judgment. People v. Stephenson, Nos. 98-10260-FC; 98-10683-FH (Washtenaw County Circuit Court May 23, 2001). Petitioner filed applications for leave to appeal the trial court's denial of his motion for relief from judgment in the Michigan Court of Appeals and Michigan Supreme Court. Both state appellate courts denied leave to appeal. People v. Stephenson, No. 237463 (Mich.Ct.App. Feb. 20, 2002); People v. Stephenson, No. 121210 (Mich. Sept. 30, 2002). Petitioner then filed the pending petition for a writ of habeas corpus, presenting the same claims presented on collateral review in state court. III. Facts Petitioner's convictions arise out of the robbery of a gas station in Ypsilanti Township, on April 29, 1998. Hakim Albarkat, the gas station clerk, testified that, on April 29, 1998, at approximately 6:50 a.m., Petitioner entered the gas station, pointed a gun at him, and told him to give Petitioner the money from the cash register drawer. Sherry Anning, Nathan Baryo, and Valorie Duzan each testified that they entered the gas station on that morning during the robbery. Each testified that Petitioner showed them his gun and ordered each into the back room. Deputy Sheriff Jeffrey Carak testified that, on the morning of April 29, 1998, he and his partner, Deputy Mike Trester, responded to a reported armed robbery at a gas station in Ypsilanti Township. As they were driving toward the gas station, Deputies Carak and Trester spotted Petitioner walking down a street near the gas station. Both men thought Petitioner fit the description of the robbery suspect. Deputy Carak testified that he exited his car, and ordered Petitioner to take his hands out of his pockets. When he did so, Petitioner had a handgun in one hand. Deputy Carak and his partner continued to order Petitioner to drop the gun. Petitioner briefly pointed the gun at Deputy Carak, then pointed the gun at his own temple. He then dropped his arms to his side, and began walking, while still carrying the gun. Deputy Carak, his partner, and a third deputy, Deputy Hill, continued to order Petitioner to drop the gun. Deputy Carak testified that Petitioner suddenly stopped walking, turned, and pointed the gun at Deputy Hill. In response, Deputies Trester and Hill fired their weapons, shooting Petitioner. Petitioner testified in his own defense. In support of the defense theory that Petitioner was too intoxicated to form the specific intent to commit armed robbery or felonious assault, he testified that he was very intoxicated on the day of the robbery, and had very little memory of what occurred. IV. Analysis A. Standard of Review The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 665 110 Stat. 1214 ("AEDPA") altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because petitioner's application was filed after April 24, 1996, the provisions of the AEDPA, including the amended standard of review, apply to this case. 28 U.S.C. § 2254(d) imposes the following standard of review on federal courts reviewing applications for a writ of habeas corpus: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. 28 U.S.C. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429 (6th Cir.1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1)[1]; see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir.1995) ("We give complete deference to state court findings unless they are clearly erroneous"). The United States Supreme Court has explained the proper application of the "contrary to" clause as follows: A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.... A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent. Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 1519-20, 146 L. Ed. 2d 389 (2000). With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 1521. The Court defined "unreasonable application" as follows: [A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable... [A]n unreasonable application of federal law is different from an incorrect application of federal law.... Under § 2254(d)(1)'s "unreasonable application" 666 clause, then, 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 1521-22. B. Admission of Petitioner's Statement to Police The trial court admitted a tape of statements Petitioner made to Michigan State Police Detective Brian Albright during an interview at the hospital on April 30, 1998. During that interview, in response to a question from Detective Albright as to why he did not drop his gun when directed to do so by police, Petitioner stated he would "rather get shot than go back to prison." The defense objected to admission of this statement because it indicated that Petitioner had committed previous acts for which he had been imprisoned. The defense also suggested that if the court chose to admit the statement, the word "back" should be redacted. The state court admitted the entire, unredacted statement. Petitioner argues that admission of this statement violated his rights under the Due Process Clause. "`[F]ederal habeas corpus review does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991), quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 111 L. Ed. 2d 606 (1990). "Habeas review does not encompass state court rulings on the admission of evidence unless there is a constitutional violation." Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir.1994), citing Fuson v. Jago, 773 F.2d 55, 59 (6th Cir.1985), cert. denied 478 U.S. 1020, 106 S. Ct. 3334, 92 L. Ed. 2d 739 (1986). See also Estelle, 502 U.S. at 72, 112 S. Ct. 475 (holding that a federal court may not grant habeas corpus relief simply on the basis that a trial court incorrectly interpreted state evidence rules to allow admission of prior bad acts evidence). "When an error involving the violation of a state court rule rises to the level of depriving the defendant of fundamental fairness, the claim is remediable on a petition for habeas corpus relief." Matlock v. Rose, 731 F.2d 1236, 1242 (6th Cir.1984) (internal citations omitted). The last state court to issue a reasoned opinion regarding this claim, the Michigan Court of Appeals, held, in pertinent part: Defendant first argues that the trial court erred in admitting his statement that he did not drop his gun pursuant to police orders because "he'd rather get shot than go back to prison" or in refusing to redact the word "back" from the statement. We disagree. This Court reviews a trial court's decision to admit evidence for an abuse of discretion.... Pursuant to M.R.E. 404(b) evidence of other crimes, wrongs, or acts is admissible if the evidence is (1) offered for a proper purpose other than to prove the defendant's character or propensity to commit a crime (2) relevant to an issue or fact or consequence at trial, and (3) sufficiently probative to outweigh the danger of unfair prejudice. To the extent the contested evidence falls within the confines of M.R.E. 404(b) as the parties claim, we hold that it was properly admitted for the proffered purpose of showing defendant's intent. At trial, defendant asserted the theory that he was intoxicated and therefore lacked the specific intent to commit armed robbery and felonious assault. In response, the prosecutor offered defendant's statement that he did not want to go back to prison to establish that he possessed the requisite intent when he assaulted two 667 police officers after repeatedly refusing to drop his weapon; not to show that he was predisposed to commit the offenses. The evidence was relevant to negate defendant's theory with respect to an essential element of the offenses and the only element contested at trial. We also agree with the trial court that the word "back" only increased the statement's probative value because "someone who has been to prison once may fear it more than someone who has never been to prison." Further, the statement's probative value was not substantially outweighed by its prejudicial effect where the jury never heard evidence regarding the nature of the offense that led to imprisonment, and the jury twice received appropriate limiting instructions.... Therefore, the trial court did not abuse its discretion in admitting the contested evidence at trial. People v. Stephenson, slip op. at 1-2. Petitioner fails to show that the trial court's admission of this evidence deprived him of his fundamental right to a fair trial or resulted in any other violation of his constitutional rights. Accordingly, Petitioner is not entitled to habeas corpus relief with respect to these claims. C. Alleged Prosecutorial Misconduct Petitioner alleges that he is entitled to habeas corpus relief because the prosecutor engaged in misconduct. Specifically, Petitioner alleges that while he was testifying, the prosecutor interrupted Petitioner's testimony to approach the bench. Petitioner contends that, as he was passing by the jury box, the prosecutor whispered, "Your Honor. He's already been convicted of other armed robberies. He's getting dangerously close ..." Respondent argues that this claim is barred from review by the doctrine of procedural default. The doctrine of procedural default provides: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default, and actual prejudice as a result of the alleged violation of federal law, or demonstrate that 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, 115 L. Ed. 2d 640 (1991). Such a default may occur if the state prisoner fails to comply with a state procedural rule that required him to have done something at trial to preserve his claimed error for appellate review, e.g., to make a contemporaneous objection, or file a motion for a directed verdict. United States v. Frady, 456 U.S. 152, 167-69, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir.1996). Application of the cause and prejudice test may be excused if a petitioner "presents an extraordinary case whereby a constitutional violation resulted in the conviction of one who is actually innocent." Rust v. Zent, 17 F.3d 155, 162 (6th Cir.1994); Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). For the doctrine of procedural default to apply, a firmly established state procedural rule applicable to the petitioner's claim must exist, and the petitioner must have failed to comply with that state procedural rule. Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir.1992), cert. denied, 507 U.S. 932, 113 S. Ct. 1314, 122 L. Ed. 2d 702 (1993). Additionally, the last state court from which the petitioner sought review must have invoked the state procedural rule as a basis for its decision to reject review of the petitioner's federal 668 claim. Coleman, 501 U.S. at 729-30, 111 S. Ct. 2546. If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last reasoned state court judgment rejecting the federal claim and apply a presumption that later unexplained orders upholding the judgment or rejecting the same claim rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991). Petitioner's prosecutorial misconduct claim was presented for the first time in Petitioner's motion for relief from judgment. The last state court to issue a reasoned opinion regarding these claims, the Michigan Supreme Court, denied leave to appeal "because the defendant has failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Stephenson, No. 121210 (Mich. Sept. 30, 2002). The Sixth Circuit Court of Appeals has held that M.C.R. 6.508(D) is a firmly established and regularly followed state ground precluding subsequent federal habeas review absent a showing of cause and prejudice where the rule was in effect at the time of a petitioner's direct appeal. Luberda v. Trippett, 211 F.3d 1004, 1007 (6th Cir.2000), citing Rogers v. Howes, 144 F.3d 990 (6th Cir. 1998). M.C.R. 6.508(D) was enacted in October 1989. Petitioner was convicted in 1998. Thus, M.C.R. 6.508(D) was a firmly established and regularly followed state procedural bar at the time of Petitioner's conviction and direct appeal. The Sixth Circuit Court of Appeals has also held that even a judgment as brief as the one by which the Michigan Supreme Court denied leave to appeal in this case is sufficient to invoke the doctrine of procedural default. Simpson v. Jones, 238 F.3d 399, 408 (6th Cir.2000). Accordingly, the state court's judgment clearly rested on a procedural bar and the doctrine of procedural default is invoked. Therefore, this Court may not review Petitioner's claim unless he has established cause for the default and actual prejudice as a result of the alleged violation of federal law or unless he has demonstrated that failure to consider this claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750, 111 S. Ct. 2546. Petitioner asserts as cause to excuse his procedural default an argument that his defense attorney was unable to assert the prosecutorial misconduct claim at trial because he was not immediately aware of the claim. However, this argument fails to assert any cause to excuse Petitioner's failure to present this claim on direct appeal. In addition, the trial court, in denying Petitioner's motion for relief from judgment held that Petitioner's self-serving affidavit regarding the statement allegedly made by the prosecutor lacked merit. Petitioner has failed to present any facts or arguments which would call that finding into question or establish that finding was contrary to or an unreasonable application of Supreme Court precedent. Thus, he has failed to establish cause to excuse his procedural default. Because Petitioner has failed to establish cause to excuse his procedural default, this claim is barred from review unless Petitioner can establish that a constitutional error resulted in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). The Supreme Court explicitly has tied the miscarriage of justice exception to procedural default to a petitioner's innocence. Schlup, 513 U.S. at 321, 115 S. Ct. 851. Thus, the petitioner must assert a constitutional error along with a claim of innocence. To make a showing of actual innocence, "a petitioner must show that it is more likely than not that no reasonable 669 juror would have found the petitioner guilty beyond a reasonable doubt." Id. at 327, 115 S. Ct. 851. The Court further explained this standard as follows: The ... standard is intended to focus the inquiry on actual innocence. .... ... [A]ctual innocence does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. It is not the district court's independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt. Id. (internal quotation omitted). Applying the Schlup standard of actual innocence to Petitioner's case, Petitioner has presented no new evidence, in light of which, no juror, acting reasonably, would have found him guilty beyond a reasonable doubt. Thus, his prosecutorial misconduct claim is procedurally defaulted. D. Sentencing Claim Finally, Petitioner claims that he is entitled to habeas corpus relief because the twenty-five to sixty year sentence imposed for the armed robbery conviction was disproportionate. There exists no constitutional right to strict proportionality in sentencing. Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). However, the Eighth Amendment prohibits "extreme sentences that are grossly disproportionate to the crime." Id. at 995, 111 S. Ct. 2680. The Sixth Circuit has held that "a sentence within the statutory maximum set by statute generally does not constitute `cruel and unusual punishment.'" United States v. Organek, 65 F.3d 60, 62-63 (6th Cir.1995); see also United States v. Williams, 15 F.3d 1356, 1364 (6th Cir.1994) (holding that, generally, a sentence within statutory limitations does not violate the Eighth Amendment); Hutto v. Davis, 454 U.S. 370, 374, 102 S. Ct. 703, 70 L. Ed. 2d 556 (1982) (holding that "federal courts should be reluctant to review legislatively mandated terms of imprisonment and ... successful challenges to the proportionality of particular sentences should be exceedingly rare") (internal quotations omitted). The State of Michigan sentencing guideline for armed robbery is life or any number of years. Mich. Comp. Laws § 750.529. Therefore, Petitioner was sentenced in accordance with the Michigan sentencing guidelines. Accordingly, the Court finds that the sentence imposed by the trial court does not offend the Eight Amendment, and the Michigan Court of Appeals' decision that it was not disproportionate was not contrary to or an unreasonable application of Supreme Court precedent. V. Conclusion For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and the matter is DISMISSED WITH PREJUDICE. NOTES [1] 28 U.S.C. § 2254(e)(1) provides, in pertinent part: In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501172/	280 F. Supp. 2d 357 (2003) Walter A. BAIR and Ellen Wray, Plaintiffs, v. SHIPPENSBURG UNIVERSITY and Anthony F. Ceddia in his individual and official capacities, Defendants. No. 4:03-CV-671. United States District Court, M.D. Pennsylvania. September 4, 2003. 358 359 360 William A. Bonner, William Adair Bonner, Attorney at Law, Media, PA, David A. French, Greenbaum Doll & McDonald, PLLC, Lexington, KY, for Plaintiff. Jeffrey Cooper, Pennsylvania State System of Higher Education, Office of Chief Counsel, Harrisburg, PA, for Defendant. ORDER JONES, District Judge. This case presents us with the difficult question of whether portions of an obviously well-intentioned student code of conduct enacted by a state university can with-stand First Amendment scrutiny. Based upon our past experiences in public office, this Court has an acute awareness of the challenges facing the administrators of our colleges and universities. Campus underage and binge drinking have 361 reached epidemic proportions. Student against student violence, including sexual assaults, is a constant concern. Parents and administrators know well that when college students reach the age of majority, this milestone does not instil instant maturity. Indeed, many students continue to demonstrate a reckless disregard not only for their own safety, but fail to respect the rights of their peers. The Court is also aware, however, that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what will be orthodox in politics, nationalism, religion, or matters of opinion or force citizens to confess by word or act their faith therein." West Virginia Board of Education v. Barnette, 319 U.S. 624, 642, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943). Against this backdrop, we must determine whether Anthony P. Ceddia, as the President of Shippensburg University, should be enjoined from enforcing provisions of a student code which unquestionably was enacted with the noble purpose of making that institution a better place to live and learn. Pending before the Court is a motion to dismiss filed by the defendant, as well as a motion for a preliminary injunction filed by the plaintiffs. For the reasons that follow, the Motion to Dismiss will be granted in part and denied in part, and the Motion for a Preliminary Injunction will be granted in part. I. BACKGROUND: A. Procedural History The plaintiffs, Walter A. Bair ("Bair") and Ellen Wray ("Wray") (collectively, "Plaintiffs"),[1] initiated this action by filing a complaint against the defendants, Shippensburg University ("the University" or "Shippensburg University") and Anthony F. Ceddia[2] ("President Ceddia" or "Defendant")(collectively, "Defendants"), on April 22, 2003. Plaintiffs challenge the constitutionality of the University's speech policies based upon their contention that the policies violate students' First Amendment rights to free speech, free association and free exercise of religion. On June 23, 2003, Defendants filed a motion to dismiss Plaintiffs' Amended Complaint. Thereafter, on July 23, 2003, Plaintiffs filed a motion for a preliminary injunction, seeking an order from this Court which would prohibit Defendants "from enforcing the speech-restrictive policies contained within the University's Code of Conduct and within its Racism and Cultural Diversity Policy Statement." (Pls.' Mot. Prelim. Inj. at 1). Oral argument regarding the pending motions was held on August 25, 2003. Subsequent to the completion of day's proceedings, we issued an order dismissing Shippensburg University as a defendant in this action. (See Order dated August 25, 2003). B. The University Speech Code Plaintiffs frame their arguments as to the constitutionality of the University's 362 speech policies by initially characterizing two University publications, the University Catalog and the University Student Handbook, as either the University Speech Code or as the Swataney when considered together in their entirety. (First Amended Complaint at ¶ 7). We shall do the same herein; the totality of the University's policies relevant to our analysis shall be referred to as the University Speech Code, the Code, or as the Swataney. The objectionable portions of the University Speech Code as cited within the parties' submissions are set forth below.[3] The University Catalog contains a Code of Conduct which provides the following in its Preamble: Students, as members of the academic community, are encouraged to engage in a sustained, critical and independent search for knowledge. The University community supports this endeavor by developing policies and procedures that safeguard the freedoms necessary for the pursuit of truth and knowledge. The University will strive to protect these freedoms if they are not inflammatory or harmful toward others. It is therefore expected that students will exercise these freedoms in a manner that does not infringe upon the rights of others in the community. Behavior that interferes with the living conditions, co-curricular activities, working environments, teaching mission, research activities, study conditions, and/or administrative functions of the University is unacceptable. Acts of intolerance directed toward other community members will not be condoned. This is especially true, but not limited to, acts of intolerance directed at others for ethnic, racial, gender, sexual orientation, physical, lifestyle, religious, age, and/or political characteristics. (Defs.' Br. Supp. Mot. Dis. Ex. 1 pg. 18)(emphasis added). The Community Regulations section of the Code of Conduct distinguishes "primary rights" and "secondary rights" within the University setting: Students have certain rights related to their achievement of academic success and personal satisfaction. With these rights comes a reciprocal responsibility to insure that others have similar rights. Therefore, the University strives to strike a balance between maximum freedom and necessary order. Primary rights, especially for University owned campus housing residents, include: A. The right to pursue academic activities without unreasonable disruption. B. The right to be free from harassment, intimidation, physical harm, and emotional abuse. C. The right to a reasonable level of quiet, and correspondingly, the right to sleep and study without unreasonable disruption. D. The right to a reasonably clean, well maintained, and safe environment. Secondary rights, especially for University housing residents are those that, while protected, shall not infringe upon the reasonable exercise of others' primary rights. These include: A. The right to host visitors. Visitors shall not interfere with a roommate's exercise of his/her rights, nor violate the rights of other residents. Visitors must follow all rules and regulations. 363 B. The right to express a personal belief system. The expression of one's beliefs should be communicated in a manner that does not provoke, harass, intimidate, or harm another. C. The right to follow the terms of one's lifestyle provided it does not unreasonably interfere with the rights of others. D. The right to a reasonable level of personal privacy. (Defs.' Br. Supp. Mot. Dis. Ex. 1 pg. 22)(emphasis added). Also objected to within the Community Regulations portion of the Code of Conduct is a provision instructing readers that "[n]o person shall participate in acts of intolerance that demonstrate malicious intentions toward others." (Defs.' Br. Supp. Mot. Dis. Ex. 1 pg. 23)(emphasis added). The University has propounded the Racism and Cultural Diversity Statement which provides as follows: As an institution of higher learning, Shippensburg University is committed without qualification to all aspects moral, legal and administrative of racial and cultural diversity. It is the unequivocal position of Shippensburg University to prohibit racism/ethnic intimidation and harassment; and to affirm cultural diversity, social justice and equality. Racism shall be defined as the subordination of any person or group based upon race, color, creed or national origin. It shall be a violation of this policy for any person or group to maliciously intend to engage in any activity, (covert or overt that attempts to injure, harm, malign or harass), that causes the subordination, intimidation and/or harassment of a person or group based upon race, color, creed, national origin, sex, disability or age. Shippensburg University's commitment to racial tolerance, cultural diversity and social justice will require every member of this community to ensure that the principles of these ideals be mirrored in their attitudes and behaviors. (Defs.' Br. Supp. Mot. Dis. Ex. 2)(emphasis added). University policy provides that undergraduate students shall pay a student activity fee "to fund the numerous extracurricular student activities on campus, including men's and women's intercollegiate athletics, intramural athletics, sport clubs, classes and councils, performing art groups, publications groups (newspaper [Slate], campus radio station [WSYC]), [] the Activities Program Board[,]" and other recognized student organizations and clubs. (First Amended Complaint at ¶ 18). According to the First Amended Complaint, the provisions of the Code of Conduct as well the University Racism and Cultural Diversity Policy apply to student organizations as well as to individuals within the Shippensburg campus community: No group, or its members, shall violate any of the rules and regulations published by the University, including those comprising the student code of conduct. (See First Amended Complaint at ¶ 15). Finally, Plaintiffs object to certain restrictions set forth by the University in the form of a letter ("the Letter"), dated March 25, 2003, from President Ceddia to Members of the Campus Community wherein he advises recipients that the University has "reserved certain spaces on campus" for organized demonstrations and rallies, limited to "the area by the gazebo between the Library and Franklin Science Center and the triangular lawn defined by the sidewalks leading to the Cumberland 364 Union Building facing Franklin Science Center." (Complaint Ex. C). The Letter further informs its recipients that in the event of inclement weather, "demonstrators must reserve rooms through normal University procedures [and a] sign stating the purpose for which the room is being used must be clearly posted outside the door." (Complaint Ex. C). II. MOTION TO DISMISS: A. Standard of Review In considering a motion to dismiss, a court must accept the veracity of a plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir.1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit added that in considering a motion to dismiss based on a failure to state a claim argument, a court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Furthermore, "a complaint should not be dismissed for failure to state a claim 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." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); see also District Council 47 v. Bradley, 795 F.2d 310 (3d Cir.1986). The court will now discuss Defendant's motion in light of the standards set forth above and Rule 12(b)(6) of the Federal Rules of Civil Procedure. B. Standing Defendant argues that Plaintiffs lack standing to bring this suit. In this regard, President Ceddia asserts that "Plaintiffs' allegations are too speculative and do not establish that their subjective fears are objectively reasonable." (Defs.' Br. Supp. Mot. Dis. at 24). Article III of the Constitution provides that only litigants presenting an actual controversy have standing to maintain suit in federal court. In other words, in order to be a proper party in this Court, one must have a personal stake in the outcome of a dispute. See Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L.Ed.2d 663(1962)("the gist of the question of standing" must be resolved in a manner so as "to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions"). "To establish [the requisite] interest, a litigant must show that he or she has personally suffered some actual or threatened injury from the putatively illegal conduct of the defendant, that the injury could fairly be traced to the illegal conduct, and that it would be redressed by a favorable decision." Doe v. University of Michigan, 721 F. Supp. 852, 859 (1989). There is, however, an exception to the general standing rules. "It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable." Forsyth County, 505 U.S. at 129, 112 S. Ct. 2395(citing City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798-99, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984); Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S. Ct. 2568, 96 L. Ed. 2d 500 (1987)); see also Indo-American Cultural Society, Inc. v. Township of Edison, New Jersey, et al., 930 F. Supp. 1062 (1996). This exception to the customary standing requirements has been justified "based upon an appreciation 365 that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the Court." Id. (citing New York v. Ferber, 458 U.S. 747, 772, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S. Ct. 2794, 86 L. Ed. 2d 394 (1985)). Plaintiff Walter Bair is entering his senior year at Shippensburg University and is therefore subject to the provisions of the University Speech Code. According to the allegations set forth in the First Amended Complaint, Bair "fears that the discussion of his social, cultural, political and/or religious views ... may be sanctionable under applicable University [S]peech [C]ode[]." (First Amended Complaint at ¶ 24). Plaintiff Ellen Wray is a recent graduate of Shippensburg University and maintains that while in attendance there "she was reluctant to advance certain controversial theories or ideas regarding any number of political or social issues because ... she feared that discussion of such theories might be sanctionable under applicable University [S]peech [C]ode[]." (First Amended Complaint at ¶ 26). Plaintiffs both allege that they were members of student organizations which hold opinions and beliefs that might be sanctionable under the Code. (See First Amended Complaint at ¶¶ 25, 27). In sum, Plaintiffs assert that the University Speech Code has "had a chilling effect on [their] rights to freely and openly engage in appropriate discussions of their theories, ideas and political and/or religious beliefs." (First Amended Complaint at ¶ 28). The allegations within the First Amended Complaint constitute harm that is more than merely speculative. Plaintiffs have asserted that both of their past, and Walter Bair's continuing, fears of prosecution pursuant to the Code of Conduct have had a chilling affect on their speech. On this basis, we find that Plaintiffs have standing to challenge the constitutionality of the University Speech Code. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S. Ct. 2794, 86 L. Ed. 2d 394 (1985)("where the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish ... [t]here is no want of a proper party to challenge the statute"). C. University Student Organization Chartering and Funding Guidelines In Count IV, Plaintiffs assert that the chartering and funding guidelines "are unconstitutionally vague on their face and constitute and impermissible prior restraint on the Plaintiffs' speech." (First Amended Complaint at ¶ 45). In Count V, Plaintiffs assert that those same guidelines are "overbroad and explicitly and implicitly discriminate on the basis of viewpoint." (First Amended Complaint at ¶ 49). Defendant argues that both of these counts should be dismissed by the Court because the First Amended Complaint "alleges no facts to demonstrate that the [chartering and funding] guidelines are vague, that they are applied in a discriminatory manner, or that political views affect recognition and funding." (Defs.' Br. Supp. Mot. Dis. at 18-19). Plaintiffs did not respond to Defendant's arguments as to Counts IV and V within their Brief in Opposition to the Motion to Dismiss. However, during the preliminary injunction hearing Plaintiffs clarified the allegations set forth within Counts IV and V. In essence, Plaintiffs contend that University guidelines condition the chartering and funding of student groups on compliance with the University Speech Code, which Plaintiffs maintain is unconstitutional. Plaintiffs argue because the Code is 366 incorporated by reference into the funding and chartering guidelines, if the Code is found to be unconstitutional, the chartering and funding guidelines must likewise be deemed unconstitutional. We agree with Plaintiffs that the viability of Counts IV and V is entirely dependant upon the ultimate determination of whether the University Speech Code is constitutional. In light of the procedural posture of the case, Plaintiffs are therefore entitled to present evidence to support their claims. D. President Ceddia's March 25, 2003 Letter Time, place and manner restrictions imposed by the government on protected speech are permissible if they "are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Northeast Women's Center, Inc. v. McMonagle, 939 F.2d 57, 62 (3d Cir.1991)(quoting Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988)); see also Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989). The restriction at issue, President Ceddia's March 25, 2003 letter, refers to "current and controversial issues" and "global events," and creates restrictions for "organized demonstrations and rallies" involving the aforementioned. (Complaint Ex. C). In so doing, the Letter advises students that the University has reserved particular outdoor spaces for demonstrations and rallies, and that in the event of inclement weather, rooms may be reserved through "normal University procedures." (Complaint Ex. C). Defendant contends that the Letter is content neutral, creates public forums for expression of opinion, and does not limit alternative channels of communication. On these grounds, Defendant urges the Court to dismiss Count VII of the First Amended Complaint. Additionally, Defendant maintains that the "suggestions in ... [the][L]etter are limited in duration and have, obviously, expired ... [since the] likelihood of public demonstration regarding the United States' involvement in Iraq is now remote." (Defs. Rep. Br. Supp. Mot. Dis. Resp. Pls.' Br. Supp. Mot. Prelim. Inj. at 4). On these grounds, Defendant argues that Plaintiffs' claims are now moot "and the effect of the [L]etter, if any, has passed without any allegation of interference with an anticipated demonstration or other damage." (Defs. Rep. Br. Supp. Mot. Dis. Resp. Pls.' Br. Supp. Mot. Prelim. Inj. at 4). Initially, we find Defendant's argument as to mootness to be without merit. Contrary to Defendant's characterizations, the Letter does not indicate that it only applies to demonstrations and rallies relevant to the military action in Iraq.[4] Neither does the Letter indicate that the restrictions encompassed within it are limited in duration. As to the reasonableness of the speech restrictions within the Letter, we agree with Plaintiffs that an issue of fact exists as to whether the scheme set forth within the Letter leaves open ample alternative 367 means of communication. Because there is no evidence on the record regarding the size or accessibility of the area available for demonstrations, there is not a sufficient basis from which we may determine whether or not the alternative channels of communication are adequate. See Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984)("a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate"). Accordingly, we hold that inasmuch as Plaintiffs challenge the constitutionality of the time, place and manner restrictions propounded in the Letter, they have stated a viable claim in Count VII of the First Amended Complaint. III. MOTION FOR A PRELIMINARY INJUNCTION:[5] Preliminarily, it is easy to discern that the provisions of the student code in question were part of an attempt to achieve a utopian community within Shippensburg. Students are directed to respect the rights of other students in a world where reasoned, rational debate is the norm. Defendant argues that the prohibitions set forth within the Code will foster free speech, rather than discourage it. Regrettably, this sword has two edges. Certainly during President Ceddia's tenure the Speech Code has not been used, and likely will not ever be used, to punish students for exercising their First Amendment rights. However, given that this is a facial challenge, our inquiry must assume not the best of intentions, but the worst. The determination that an injunction should issue is conditioned upon a finding that the movant has established the following: "(1) a likelihood of success on the merits; (2) irreparable harm without the injunction; (3) a balance of harms in the movant's favor; and (4) the injunction is in the public interest." American Civil Liberties Union v. Ashcroft, 322 F.3d 240, 247 (3d Cir.2003)(citing Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir.1999)). In this case, Plaintiffs have asserted that the University Speech Code is unconstitutional because it is facially overbroad and vague. The concept of overbreadth refers to the legal doctrine that permits courts to strike down statutes that are so broadly written that they create a chilling effect on legitimate constitutionally protected speech. See BLACK's LAW DICTIONARY 1129 (7th ed.1999). The doctrine of vagueness, on the other hand, refers to the ability of courts to strike down statutes that fail to "provide fair warning" of prohibited conduct. Id. at 1548. A. Overbreadth The facial challenge to Shippensburg University's Speech Code on overbreadth grounds will only succeed upon a finding that there is "a likelihood that the [the Code's] very existence will inhibit free expression by inhibiting the speech of third parties who are not before the Court." Saxe, 240 F.3d at 214(quoting Taxpayers for Vincent, 466 U.S. at 799, 368 104 S. Ct. 2118). We must, in our analysis, remain cognizant of the fact that the overbreadth doctrine is narrowly applied. See Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243, 259 (3d Cir.2002)(citing Los Angeles Police Dept. v. United Reporting Publ'g Corp., 528 U.S. 32, 39, 120 S. Ct. 483, 145 L. Ed. 2d 451 (1999)). To render a law unconstitutional, the "overbreadth must be `not only real but substantial in relation to the statute's plainly legitimate sweep.'" Id. (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973)); see also Sypniewski, 307 F.3d at 259. Our analysis as to overbreadth is governed by the Third Circuit's holding in Saxe, where the Court considered and ultimately struck down a school district's antiharassment policy. At the outset, we acknowledge that Saxe is not directly on point with the case at bar: the Code before us was promulgated by administrators of a public university rather than by administrators employed by a public secondary school. With regard to the unique quality of the public secondary and elementary school settings, Supreme Court precedent demonstrates that "[b]ecause of the duties and responsibilities of the public elementary and secondary schools, the overbreadth doctrine warrants a more hesitant application in this setting than in other settings." Sypniewski, 307 F.3d at 259("In the public school setting, the First Amendment protects the nondisruptive expression of ideas. It does not erect a shield that handicaps the proper functioning of the public schools."). As noted by Judge Alito in Saxe, the Supreme Court held in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), that because students do not "shed their constitutional rights to freedom of speech or expression at the school house gate," Id., 393 U.S. at 506, 89 S. Ct. 733, the regulation of student speech in the public schools "is generally permissible only [if] the speech would substantially disrupt or interfere with the work of the school or the rights of other students." Saxe, 240 F.3d at 211; see also Grayned v. City of Rockford, 408 U.S. 104, 119, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972)(reiterating that public schools have a "compelling interest in having an undisrupted school session conducive to the students' learning"). Under Tinker, only "if a school can point to a well-founded expectation of disruption especially one based on past incidents arising out of similar speech" may the speech regulation pass constitutional muster. Id. at 212. Judge Alito also recognized that since Tinker, the Supreme Court has broadened the scope of permissible speech regulation in public secondary and elementary schools. In Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986), the Supreme Court held that a student's "lewd, indecent, or offensive speech" is not protected by the First Amendment in the public school setting and may therefore be regulated by school administrators. Fraser, 478 U.S. at 683, 106 S. Ct. 3159("[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board"). Then, in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988), the Supreme Court held that administrators may regulate school-sponsored speech that speech which "members of the public might reasonably perceive to bear the imprimatur of the school" so long as the administrators' regulatory "actions are reasonably related to legitimate pedological concerns." Id., 484 U.S. at 271, 273, 108 S. Ct. 562. 369 The consequence of the Supreme Court's holdings in Tinker, Fraser, and Hazelwood is that "public secondary and elementary school administrators are granted more leeway [in regulating speech] than public colleges and universities ..." Sypniewski, 307 F.3d at 260. Accordingly, a determination that Shippensburg University's Code of Conduct fails to meet the lower threshold for permissive speech regulations applicable in the high school setting would necessitate the corresponding conclusion that the Code does not pass constitutional muster in the university setting. It should be noted, however, that an important guidepost to our analysis is that "[t]he Supreme Court has held time and again, both within and outside of the school context, that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it." Saxe, 240 F.3d at 215(citing Tinker, 393 U.S. at 509, 89 S. Ct. 733; Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989); Street v. New York, 394 U.S. 576, 592, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969); Doe v. University of Michigan, 721 F. Supp. 852, 863 (E.D.1989)); see also R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 414, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992)("[t]he mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected"); Sypniewski, 307 F.3d at 264-65. Thus, regulations that prohibit speech on the basis of listener reaction alone are unconstitutional both in the public high school and university settings. We now consider the challenged portions of the Shippensburg University Code of Conduct. We do so noting that prior to "declaring the [regulation] unconstitutional, ... we must determine whether it is susceptible to a reasonable limiting instruction: `the elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.'" Saxe, 240 F.3d at 215(quoting Stretton v. Disciplinary Bd. of the Supreme Court of Pennsylvania, 944 F.2d 137, 144 (3d Cir.1991))(citing Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494 n. 4, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982); Broadrick, 413 U.S. at 617 n. 16, 93 S. Ct. 2908). First, Plaintiffs object to the following language within the University Catalog Preamble: "[t]he University will strive to protect these freedoms if they are not inflammatory or harmful toward others ... Acts of intolerance directed toward other community members will not be condoned. This is especially true, but not limited to, acts of intolerance directed at others for ethnic, racial, gender, sexual orientation, physical, lifestyle, religious, age, and/or political characteristics." Next, Plaintiffs oppose two sentences within the Community Regulations portion of the Code of Conduct: (1) "[t]he expression of one's beliefs should be communicated in a manner that does not provoke, harass, intimidate, or harm another[;]" and (2) "[n]o person shall participate in acts of intolerance that demonstrate malicious intentions toward others." Finally, Plaintiffs urge the Court to enjoin the enforcement of the entirety of the Racism and Cultural Diversity Statement ("the Statement"), with the exception of the first sentence within it. Read collectively, the cited portions of the Speech Code would lead a reasonable person to believe that the University sets a number of restrictions on student conduct. To summarize, first, it appears that the University prohibits acts of intolerance that are maliciously motivated, as well as acts of intolerance that are directed at others for a multitude of reasons, a number of which are specifically cited within 370 the Code. Racism, as defined by the University, is "the subordination of any person or group based upon race, color, creed or national origin." The University forbids students from engaging in means of communication that might "provoke, harass, intimidate, or harm another[,]" and forbids students from "maliciously intending to engage in any activity ... that causes the subordination, intimidation and/or harassment of a person or group based upon race, color, creed, national origin, sex, disability or age." Indeed, the language of the Code instructs students that they must "mirror" the University's ideals as they apply to racial tolerance, cultural diversity and social justice. On its face, it is apparent that the Code of Conduct prohibits speech that is protected by the First Amendment. The amorphous term, "acts of intolerance", within the Preamble of the Code can be reasonably interpreted to encompass speech, not just conduct, that intimates intolerance. So construed, the provision of the Code prohibiting acts of intolerance directed at others, which by its terms provides that it is not limited to the examples of prohibited acts cited therein, could certainly be interpreted as prohibiting speech that is protected by the First Amendment. Likewise, the sentence within the Community Regulations of the Code of Conduct that bans students from taking part in "acts of intolerance" which "demonstrate malicious intent towards others" could be understood to prohibit speech which demonstrates malicious intent. While it is true that First Amendment protections do not extend to some forms of speech, these exclusions do not apply to the foregoing. See R.A.V., 505 U.S. at 383, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992)(citing Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957)(obscenity); Beauharnais v. Illinois, 343 U.S. 250, 72 S. Ct. 725, 96 L. Ed. 919 (1952)(defamation); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942) ("fighting words"); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 124, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991)). As such, we conclude that the cited provisions are overbroad. We do, however, find that one of the challenged sentences within the Preamble to the University Catalog does not implicate First Amendment concerns. The Preamble states that "[t]he University will strive to protect [certain enumerated] freedoms if they are not inflammatory or harmful toward others." We agree with Defendant that the cited language seeks to advise the student body of the University's ideals and is therefore aspirational rather than restrictive. With regard to the sentence within the Community Regulations section of the Code which directs students to communicate their beliefs "in a manner that does not provoke, harass, intimidate, or harm anther", we find that this sentence also runs afoul of constitutional concerns. First, the concept of prohibiting communications which "provoke" suggests that a student's beliefs should not be communicated in a way that arouses interest and stimulates a response. Aside from the constitutional concerns of the policy, it is worth noting that such a view is inconsistent with our nation's tradition of safeguarding "free and unfettered interplay of competing views" in the academic arena. Doe v. Michigan, 721 F. Supp. 852, 864 (E.D.Mich.1989); see also Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957). Communications which provoke a response, especially in the university setting, have historically 371 been deemed an objective to be sought after rather than a detriment to be avoided. Moreover, the terms "provoke" and "intimidate" focus upon listeners' reactions to speech. As noted previously, however, "the government may not prohibit speech ... based solely on the motive impact that its offensive content may have on a listener ..." Saxe, 240 F.3d at 209(citing Boos v. Barry, 485 U.S. 312, 321, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988); United States v. Playboy Entertainment Group, 529 U.S. 803, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000); Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992)). Next, in assessing the challenged provisions of the Racism and Cultural Diversity Statement, while we agree with Defendant that the statement within which Shippensburg asserts that it is the University's position "to prohibit racism/ethnic intimidation and harassment[] and to affirm cultural diversity, social justice and equality" is merely aspirational, we believe that the remainder of the Statement is overbroad since it appears to prohibit speech that is protected by the First Amendment. To the extent that the Statement defines racism as "the subordination of any person or group based upon race, color, creed or national origin[,]" and to the extent that speech that advocates subordination qualifies as racism under the definition, based upon the prohibition against racism set forth above we find that the Statement is so expansive as to have treaded into the area of protected expression. See American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323 (7th Cir.1985)(holding that a city ordinance which defined pornography as "the graphic sexually explicit subordination of women" is unconstitutional on overbreadth grounds). While such speech will undoubtedly offend, it is nonetheless protected by the First Amendment. "As the Supreme Court has emphatically declared, `If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.'" Saxe, 240 F.3d at 209(quoting Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989)). Next, according to the terms of the Statement, it is a violation of Shippensburg's policies "for any person ... to maliciously intend to engage in any activity ... that causes the subordination, intimidation and/or harassment of a person or group based upon race, color, creed, national origin, sex, disability or age." Again, because the phrase "engage in any activity" necessarily encompasses speech, the entirety of the quoted portion of the Statement fails on overbreadth grounds. That the only speech which appears to be prohibited pursuant to this portion of the Statement is that which is predicated upon either subordination, harassment or intimidation, as well as that which is directed towards persons based upon characteristics that define protected classes, is of no moment to this determination. It is beyond question that Congress has enacted numerous laws which are intended to protect individuals from being discriminated against on the basis of certain immutable characteristics.[6] While the University's objective of preventing forms of discrimination against these protected 372 classes of individuals is certainly laudable, this ambition still runs afoul of First Amendment concerns if discrimination policies have the effect of prohibiting protected forms of expression. Simply utilizing buzzwords applicable to anti-discrimination legislation does not cure this deficiency. See e.g. Sypniewski, 307 F.3d at 264(citing Saxe, 240 F.3d at 209)("confining prohibited speech to that which constitutes `harassment' is not alone sufficient to ensure constitutionality ... [Indeed], `harassment,' when targeted on the basis of its expressive content, encompasses speech within the area protected by the First Amendment"). Lastly, because Shippensburg's ideals are comprised of precepts which fail to pass constitutional muster, we find that the concluding paragraph of the Statement, which requires "every member of the [Shippensburg University] community to ensure that the principles of [Shippensburg's] ideals be mirrored in their attitudes and behaviors[,]" is also overbroad. Since the University Speech Code, even narrowly construed, prohibits a considerable amount of speech, and since the prohibited speech is neither vulgar nor obscene, we will consider whether the Code's restrictions "are necessary to prevent substantial disruption or interference with the work of the school or the rights of other students." Saxe, 240 F.3d at 216. It is clear that "Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance." Saxe, 240 F.3d at 211. In this case, Defendant's general justifications for the implementation of the challenged provisions of the Code that "Shippensburg is seeking to prevent malicious conduct that, in addition to being unlawful, would substantially interfere with the educational process and employment environment, as well as the rights of other persons," are too speculative to satisfy the Tinker standard. (Defs.' Br. Supp. Mot. Dis. at 12). Defendant has made no attempt to demonstrate that Shippensburg University suffers from a history of conflict such that an expectation of disruption may be characterized as "well-founded." Saxe, 240 F.3d at 212.[7] Moreover, to the extent that the University seeks to prevent criminal behavior, such conduct is already prohibited by criminal laws. Because we hold that the University Speech Code is likely unconstitutionally overbroad, we need not reach the merits of Plaintiffs' vagueness claim. We turn then to the remaining factors relevant to whether an injunction should issue. Having concluded that the University Speech Code is likely violative of the First Amendment and in acknowledgment of the fact that Plaintiffs have alleged that the Code has had a chilling 373 effect on their speech, we find that Plaintiffs have established the irreparable harm element of the test. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); see also Tenafly Eruv Ass'n v. Borough of Tenafly, 309 F.3d 144, 178 (3d Cir.2002). Likewise, we find that the balancing of the hardships weighs in favor of Plaintiffs. Were we to deny a preliminary injunction, the First Amendment rights of Shippensburg University's students would continue to be violated. On the other hand, the issuance of a preliminary injunction leaves Shippensburg free to enact new regulations that are tailored so as to conform to First Amendment jurisprudence. Finally, we find that the public interest favors preliminary injunctive relief. "In the absence of legitimate, countervailing concerns, the public interest clearly favors the protection of constitutional rights ..." Council of Alternative Political Parties v. Hooks, 121 F.3d 876, 884 (3d Cir.1997). IV. CONCLUSION: Time and again in this case, Defendant has asserted that the challenged provisions of the Code are merely aspirational and precatory, and therefore not subject to First Amendment scrutiny. This argument fails because it is obvious that violations of the express provisions of the Code subject Shippensburg students to the disciplinary process set forth therein. While we recognize that citing students under the suspect provisions has not been a common practice, in the hands of another administration these provisions could certainly be used to truncate debate and free expression by students. Accordingly, we shall issue a preliminary injunction enjoining Shippensburg University from enforcing the likely unconstitutional provisions of the Code prospectively during the pendency of this litigation. We are confident that our holding today will not have a deleterious effect upon the ability of Defendant and his administration to properly regulate student conduct at Shippensburg. Other provisions of the Code, local ordinances, the criminal laws of the Commonwealth of Pennsylvania, and applicable federal anti-discrimination laws all combine to provide adequate safeguards. NOW, THEREFORE, IT IS ORDERED THAT: 1. Defendant's Motion to Dismiss (doc. 16) is denied.[8] 2. Plaintiffs' Motion for a Preliminary Injunction (doc. 19) is granted in part and denied in part. The operation of the following provisions of Code of Conduct shall be enjoined until further order of Court. a. "Acts of intolerance directed toward other community members will not be condoned. This is especially true, but not limited to, acts of intolerance directed at others for ethnic, racial, gender, sexual orientation, physical, lifestyle, religious, age, and/or political characteristics." (Defs.' Br. Supp. Mot. Dis. Ex. 1 at 18) b. "The expression of ones' beliefs should be communicated in a manner that does not provoke, harass, intimidate, or harm another." (Defs.' Br. Supp. Mot. Dis. Ex. 1 at 22). c. "No person shall participate in acts of intolerance that demonstrate malicious *374 intentions toward others." (Defs.' Br. Supp. Mot. Dis. Ex. 1 at 23). d. "Racism shall be defined as the subordination of any person or group based upon race, color, creed or national original. It shall be a violation of this policy for any person or group to maliciously intend to engage in any activity, (covert or overt that attempts to injure, harm, malign or harass), that causes the subordination, intimidating and/or harassment of a person or group based upon race, color, creed, national origin, sex, disability or age. Shippensburg University's commitment to racial tolerance, cultural diversity and social justice will require every member of this community to ensure that the principles of these ideals be mirrored in their attitudes and behaviors." (Defs.' Br. Supp. Mot. Dis. Ex. 2). 3. A status call between the parties and the Court will be scheduled by separate order. NOTES [1] The caption of the Complaint originally named John Doe and Jane Doe as plaintiffs. On June 18, 2003, Plaintiffs submitted an amended complaint replacing the name Jane Doe with that of Ellen Wray. On July 31, 2003, and consistent with our order dated July 21, 2003, within which we denied Plaintiff's Motion for a Protective Order, Plaintiffs filed a Motion to Substitute Party by John Doe. That motion was granted on August 5, 2003, and the name Walter A. Bair was substituted for John Doe. [2] Ceddia is the President of Shippensburg University. [3] Emphasis has been utilized by the Court in order to delineate which portions of the University Code Plaintiffs' seek to enjoin the enforcement of. [4] Indeed, had the Letter included language referencing demonstrations regarding the military action in Iraq in particular, the regulation would conceivably fail to pass muster with regard to the requirement of content neutrality. See Ward, 491 U.S. at 792, 109 S. Ct. 2746(the content-neutrality analysis involves a determination of "whether the government has adopted a regulation of speech because of disagreement with the message it conveys"). [5] Plaintiffs' Motion for a Preliminary Injunction and Defendant's Motion to Dismiss are inextricably intertwined. If Plaintiffs are able to establish substantial likelihood of success on the merits, Defendant's Motion to Dismiss must be denied inasmuch as it seeks to dismiss Counts I through VI of the First Amended Complaint. For this reason, the scope of our analysis shall be limited in that upon a finding that Plaintiffs have evidenced a likelihood of success on the merits, Defendant's argument that Counts I through VI should be dismissed because Plaintiffs have failed to set forth facts sufficient to support their claim that the Code is facially overbroad and vague will be rejected. [6] Consider, for example, Title VII, the Americans With Disabilities Act and the Age Discrimination in Employment Act. [7] This explains the dichotomy between our holding today and the Third Circuit's holding in Sypniewski. There, in considering a policy's prohibition on "racially divisive" materials, the Third Circuit concluded that "given the state of racial relations [in the relevant school district, the] defendants appear to have a genuine and well-founded basis for fearing disruption by most ... of the expression prohibited by the policy." Sypniewski, 307 F.3d at 254. In the case at bar, we cannot so easily conclude that broad and undefined conduct like "acts of intolerance", which could be interpreted at including speech that advocates bigoted ideas, is constitutionally permissible when Defendant has failed to establish a genuine fear of disruption or interference with student rights or the educational mission of the University. Significant to the instant matter, the Sypniewski Court noted in its decision that the "reliance on the background of turmoil at a particular place and a particular time means that the policy would likely be unconstitutional in another school district, or even in [the defendant school district] at a different time." Id. at 265. [8] For the sake of clarity and completeness, we note that by order dated August 25, 2003, Defendant's Motion to Dismiss was granted to the extent that Shippensburg University was dismissed as a defendant in this action. Today, we deny the remainder of the prayers for relief within the Motion to Dismiss.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501178/	280 F. Supp. 2d 1259 (2003) Ricky PAYNE Plaintiff, v. David R. McKUNE, et al. Defendants. No. 02-3434-JWL. United States District Court, D. Kansas. September 8, 2003. 1260 Ricky Payne, Lansing, KS, Pro Se. John K. Bork, Office of Attorney General, Topeka, KS, Autumn L. Fox, The Law Office of Autumn L. Fox, P.A., Abilene, KS, Elizabeth L. Reimer, Kansas Judicial Council, Topeka, KS, for Defendants. MEMORANDUM AND ORDER LUNGSTRUM, District Judge. Ricky Payne brings this motion for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. (Doc. 1). Petitioner raises five separate grounds for relief in support of his motion: (1) that he received constitutionally ineffective assistance from his trial attorney because he failed to secure the testimony of alibi witnesses at trial; (2) that the state trial court violated his constitutional rights by failing to suppress statements made to law enforcement officials; (3) that the state court's instruction on aggravated robbery was constitutionally deficient; (4) that the state court violated his right to a fair trial by admitting DNA evidence without proper foundational requirements; and (5) that the state court upheld his convictions based on insufficient evidence. As set forth below, the court finds that the state courts' adjudications were neither contrary to nor an unreasonable application of controlling Supreme Court authority and denies petitioner's request for a writ of habeas corpus. BACKGROUND On January 30, 1997, M.W. fell asleep on her couch around 11:30 p.m.[1] At approximately 2:00 a.m. the following morning, she awoke to find that her head was covered with a blanket and an intruder was beating her. As she stood up and struggled with the intruder, the blanket fell off of her head. M.W. testified that she immediately recognized the intruder as Mr. Payne, who was an acquaintance of her brother's. The intruder held M.W. down and proceeded to rape and sodomize her. Thereafter, he moved her into a bathroom, shut the door, and threatened to kill her if she came out of the room. The intruder 1261 exited, and M.W. called the police to report the incident. M.W. went to the hospital where medical personnel observed that she had bruises, swollen eyes, and fresh abrasions and tears in her anus. Besides M.W.'s eyewitness identification of Mr. Payne, other circumstantial evidence linked him to the crime. For example, investigators discovered shoe prints outside of M.W.'s apartment that matched a pair of shoes owned by Mr. Payne. Investigators also tested a semen stain found on M.W.'s underwear, which matched Mr. Payne's DNA.[2] Also, Mr. Payne gave a statement to the police. According to the interviewing officers, he initially denied being at M.W.'s residence. However, after showing him pictures of the victim and the injuries that she sustained, he stated that the bruises were the result of "rough sex," to which she consented. Mr. Payne denied these statements at trial and further testified that he was not at M.W.'s apartment at the time of the incident. Even so, a jury convicted petitioner of rape, aggravated criminal sodomy, aggravated burglary, and kidnapping. The trial court sentenced him to a controlling term of 486 months of imprisonment. On direct appeal to the Kansas Court of Appeals, Mr. Payne raised five issues: (1) whether the trial court erred in denying his motion to suppress his statements to police; (2) whether the trial court erred in its jury instruction on the aggravated robbery charge; (3) whether the trial court erred by admitting the DNA results into evidence; (4) whether the trial court erred by denying his motion for a new trial; and (5) whether there was insufficient evidence to support his convictions. On August 20, 1999, the Kansas Court of Appeals affirmed his convictions. The Kansas Supreme Court denied his petition for review. On December 29, 1999, petitioner filed a state petition for habeas relief pursuant to K.S.A. § 60-1507. Therein, Mr. Payne alleged that his trial counsel's performance was constitutionally deficient because he failed to properly subpoena alibi witnesses. The district court appointed counsel and heard testimony on two separate occasions. At the conclusion of the first hearing, the trial court found that trial counsel's performance did not deviate from an objectively reasonable standard of care and denied Mr. Payne's motion. Several months later, Mr. Payne filed a notice of appeal out of time. The Court of Appeals appointed new counsel, who requested leave to file the notice of appeal out of time or for an additional hearing on the state habeas motion. Mr. Payne was granted a second hearing on his state habeas motion. At the end of the second hearing, the court again found that trial counsel's performance was not unreasonable and, additionally, found that any deficient performance did not result in prejudice to petitioner's defense. On June 28, 2002, the Kansas Court of Appeals affirmed the trial court's denial of Mr. Payne's state habeas petition. The Kansas Supreme Court denied his petition for review on September 24, 2002. Mr. Payne filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 19, 2002. STANDARD Because Mr. Payne "filed his habeas petition after April 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") govern this [proceeding]." Martinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir.2003) (citing Lindh v. 1262 Murphy, 521 U.S. 320, 326-27, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997)). The AEDPA "`circumscribes a federal habeas court's review of a state-court decision.'" Anderson v. Mullin, 327 F.3d 1148, 1152 (10th Cir.2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 1172, 155 L. Ed. 2d 144 (2003)). Specifically, where the Kansas Court of Appeals reviews the merits of Mr. Payne's claims, "habeas relief is not warranted unless the state adjudication `(1) ... was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) ... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Martinez, 330 F.3d at 1262 (quoting § 2254(d)) (emphasis added).[3] "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 [the Supreme Court] on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). "Under the `unreasonable application' clause, the Court in Williams stressed that the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was `objectively unreasonable.'" Anderson, 327 F.3d at 1153 (citing Williams, 529 U.S. at 409, 120 S. Ct. 1495, 146 L. Ed. 2d 389). The court presumes "that factual determinations made by the state court are correct, and the petitioner bears the burden of rebutting this presumption with clear and convincing evidence." Martinez, 330 F.3d at 1262 (citing § 2254(e)(1); Fields v. Gibson, 277 F.3d 1203, 1221 (10th Cir.2002)). "This presumption does not extend to legal determinations or to mixed questions of law and fact." Id. (citing Herrera v. Lemaster, 225 F.3d 1176, 1178-79 (10th Cir.2000)). "That is, the `deferential standard of review does not apply if the state court employed the wrong legal standard in deciding the merits of the federal issue.'" Id. (quoting Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003)). "Ultimately, our review of the state court's proceedings is quite limited, as section 2254(d) sets forth a highly deferential standard for evaluating state-court rulings." Anderson, 327 F.3d at 1152. ANALYSIS Mr. Payne raises five arguments in support of his petition for relief: (1) that trial counsel's failure to have the Sheriff's department subpoena his alibi witnesses constitutes ineffective assistance in violation of his rights under the Sixth Amendment; (2) that the state court violated his due process rights by admitting involuntary statements made to law enforcement officials; (3) that the state court's instruction on aggravated robbery was constitutionally deficient; (4) that the state court violated his right to a fair trial by admitting DNA evidence; and (5) that the state court upheld his convictions based on insufficient evidence. The court will address each issue in turn. I. Ineffective Assistance of Counsel Mr. Payne believes that his trial counsel was ineffective in failing to secure the testimony of alibi witnesses. Trial counsel testified that he gave the subpoenas to his petitioner's friend, Carol Casey, to serve on the witnesses, instead of having the sheriff's department serve them. The Kansas Court of Appeals found that 1263 trial counsel's performance did not deviate from the level of care guaranteed by the Sixth Amendment, and that even if counsel's performance was deficient, there was not a reasonable probability that the outcome of the proceeding would have changed, but for trial counsel's performance. In reaching this decision the state appellate court relied on the Sixth Amendment framework set forth in State v. Rice, 261 Kan. 567, 599, 932 P.2d 981 (1997). The Rice court, in turn, borrowed its legal framework from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Id. at 597-99, 932 P.2d 981. Thus, while the Kansas Court of Appeals did not directly cite to Strickland, it applied the same legal framework established under controlling Supreme Court precedent. As such, the state court adjudicated petitioner's claim on the merits, within the meaning of 28 U.S.C. § 2254, and petitioner is entitled to relief only if the appellate court's application of the legal framework was objectively unreasonable. Cook v. McKune, 323 F.3d 825, 830-831 (10th Cir.2003) (noting that state court's failure to cite or expressly rely on federal law does not preclude use of the AEDPA standard).[4] The court finds that the state court's application of the Strickland framework was objectively reasonable. First, the state court's finding that counsel's performance did not deviate from a reasonable standard of care was objectively reasonable. The Kansas Court of Appeals reached this finding, in large part, based on the testimony of Mr. Payne's trial counsel, Harry Warren. At the state court evidentiary hearing, Mr. Warren testified that he spoke with the alibi witnesses on at least two occasions prior to trial: once approximately six months before trial and again approximately one week before trial. During these meetings, Mr. Warren advised all the witnesses of the date and time of the trial, and all of the witnesses agreed to appear voluntarily. Nevertheless, Mr. Warren prepared subpoenas for these witnesses the day before trial. Rather than having personnel from the sheriff's department serve the subpoenas, he asked Mr. Payne's friend (Carol Casey) to deliver them. Mr. Warren explained that he decided to give the subpoenas to Ms. Casey (instead of the sheriff's department) because the alibi witnesses were frequently at Ms. Casey's home and Mr. Warren did not believe that the witnesses would answer the door for a sheriff's deputy because they all had some legal problems and feared arrest. The record contains no evidence that Mr. Warren had any reason to believe that Ms. Casey would not make a good faith effort to deliver the subpoenas. According to Mr. Warren, Ms. Casey was Mr. Payne's most ardent supporter. Mr. Payne does not dispute these factual findings. In light of these facts and petitioner's failure to cite any authority to the contrary, the court believes that the state 1264 appellate court's finding that Mr. Warren reasonably believed "that the witnesses would be more readily served by someone they knew and who was not associated with law enforcement" was objectively reasonable. After all, trial counsel had assurances from the alibi witnesses that they would appear voluntarily. Even so, he obtained subpoenas to secure their appearance. These facts distinguish this case from other situations where a failure to secure the attendance of an alibi witness constituted ineffective assistance of counsel. For example, in Holmes v. McKune, 59 Fed.Appx. 239, 2003 WL 220496 (10th Cir.2003), the court found that trial counsel's "complete failure to interview and call any alibi witnesses constituted ineffective assistance of counsel." Id. at 249-50, 2003 WL 220496, at 10. Unlike the petitioner's trial counsel in Holmes, Mr. Warren did investigate the alibi defense and met with the relevant witnesses on at least two occasions before trial. Moreover, he took affirmative steps to ensure their attendance at trial.[5] Even so, the question remains whether Mr. Warren's efforts to secure their attendance deviated from a reasonable standard of professional care. For example, in Washington v. Smith, 219 F.3d 620, (7th Cir.2000), the court found that a trial attorney's failure to subpoena a hard-to-find witness until the eleventh hour constituted ineffective assistance, and that the state appellate court's finding to the contrary was an unreasonable application of Strickland. Id. at 631-32. The trial attorney in Washington never contacted the alibi witness and his efforts to secure attendance were simply too little too late. Here, however, Mr. Warren informed the alibi witnesses on two separate occasions of the time and location of the trial, and the witnesses agreed to appear voluntarily. United States v. Simpson, 32 Fed.Appx. 507, 509-10, 2002 WL 120534, at 3 (10th Cir.2002) (rejecting ineffective assistance claim based on trial counsel's failure to subpoena defense witnesses because "[t]here is no need to subpoena defense witnesses who are willing to appear at trial without a subpoena..."). Mr. Payne even acknowledged in his brief on direct appeal that "[c]learly the Defense had made efforts to locate witnesses, but that these witnesses were not being cooperative." Moreover, his decision to have Ms. Casey, instead of sheriff's deputies, deliver the subpoenas was both practical and logical. Ms. Casey frequently encountered these witnesses at her residence and there was reason to believe that they would avoid service from law enforcement officials. In light of these particular facts, which the petitioner has not disputed in his petition, the court finds that the state appellate court's application of the performance prong of Strickland was not objectively unreasonable, and, therefore, petitioner is entitled to no relief on this claim. Second, the state court's finding that trial counsel's performance did not result in prejudice or otherwise deprive Mr. Payne of a fair trial was reasonable. In reaching its finding, the state appellate court properly examined what effect the alibi witness testimony would have had on the jury, in light of the totality of the evidence presented at trial. See Holmes, 59 Fed.Appx. at 253, 2003 WL 220496, at 3 (citing Strickland, 466 U.S. at 696, 104 S. Ct. 2052) (explaining that "[i]n making a 1265 prejudice determination, the strength or weakness of the State's case is relevant." And, "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."). The state appellate court first recognized that the prosecution presented an abundance of inculpatory evidence against Mr. Payne. For example, the victim firmly and definitively identified Mr. Payne as the perpetrator. In addition to this eyewitness testimony, there was significant circumstantial evidence linking petitioner to the crime. Investigators discovered that petitioner's DNA matched semen stains located on the victim's underwear, which she wore on the night of the attack. Investigators also found a shoe print outside the victim's apartment that matched a pair of shoes owned by Mr. Payne. Finally, officers that interrogated Mr. Payne testified that petitioner admitted to engaging in consensual sex with the victim on the night in question. Given the strength of this evidence, the Kansas Court of Appeals found that "it is difficult to believe that the testimony of three or four transient people, some of whom had criminal records, to the effect that Payne was drinking and smoking marijuana with them at the time of the crime would be sufficient to raise a reasonable doubt in the minds of the jurors." Petitioner has failed to proffer clear and convincing evidence to contradict these factual findings.[6] As such, the court cannot find that the state appellate court unreasonably applied the prejudice prong of the Strickland framework to the facts of this case. See United States v. Nelson, 984 F. Supp. 1368, 1372 (D.Kan.1997) (holding that even if attorney had secured defense witnesses, § 2255 relief was not warranted where the evidence against defendant at trial was so overwhelming that no reasonable probability exists that the result of the proceeding would have been different). While the alibi witnesses might have corroborated Mr. Payne's testimony that he was not at the scene, the state court reasonably found that this evidence (which would have been derived from individuals with criminal records who would have admitted to drinking and smoking marijuana on the night in question) would not have undermined the totality of inculpatory evidence against Mr. Payne. Thus, even if a reasonable jurist could disagree with the state court's ultimate conclusion (which this court does not), petitioner would be entitled to no relief. Upchurch v. Bruce, 333 F.3d 1158, 1163 (10th Cir.2003) ("[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."). II. Suppression of Petitioner's Statements to the Police Mr. Payne contends that the state court violated his constitutional rights by failing to suppress statements he made to the police. The voluntariness of a statement or confession made to law enforcement depends upon whether it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Moran v. Burbine, 475 U.S. 412, 1266 421, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). In deciding whether a statement or confession is involuntary, the court must examine the totality of the circumstances. Id. at 421, 106 S. Ct. 1135. Here, the Kansas Court of Appeals applied the "totality of the circumstances" test in examining Mr. Payne's admissions to law enforcement. As such, petitioner is entitled to relief only if the state court's application of the legal framework was objectively unreasonable. Mr. Payne identifies numerous factors in support of his claim that the totality of the circumstances demonstrates that his statement was involuntary, including: (1) that law enforcement officials failed to provide Miranda warnings before the interrogation; (2) the interview lasted seven hours, with only one break; (3) law enforcement officials denied his request for counsel and his request to stop the interview; and (4) that law enforcement officials employed coercive interviewing techniques. The court is mindful that the relevant constitutional inquiry is whether the totality of the circumstances demonstrate that petitioner's statements were voluntary. Nevertheless, for analytical purposes, it is helpful to address each of Mr. Payne's supporting factors. First, as to his claim that he did not receive Miranda warnings, petitioner did not raise this particular allegation on direct appeal or on state collateral review. In fact, in his brief on appeal, Mr. Payne's counsel explained that "[i]n this case, the Defendant complains that although he was read his rights, (and it should be noted that no written rights waiver form was used), that the rights were treated as non existent during the interview." (Emphasis added). Moreover, investigators testified that they read Mr. Payne his Miranda warnings at the beginning of the interview. Thus, the record fails to support Mr. Payne's first factor offered in support of involuntariness. Second, as to the length of the interview, the Kansas Court of Appeals found that the seven-hour interview was not coercive because it was interrupted by breaks and a hospital examination.[7] Moreover, the Kansas Court of Appeals found that Mr. Payne was permitted to eat, drink and smoke at various times during this period. The court believes that the Kansas Court of Appeals reasonably found that the length of the interview did not render petitioner's statements involuntary. See, e.g., Clark v. Murphy, 331 F.3d 1062, 1073 (9th Cir.2003)(finding petitioner's detention in interview room for eight hours did not render statements involuntary); Jenner v. Smith, 982 F.2d 329, 334 (8th Cir.1993) (six or seven hour questioning not coercive); Martin v. Wainwright, 770 F.2d 918, 927 (11th Cir.1985), modified by 781 F.2d 185 (1986) (five hour intermittent questioning did not render confession involuntary); United States v. Lehman, 468 F.2d 93, 101 (7th Cir.1972) ("vigorous" eight hour questioning interrupted by several breaks did not make confession involuntary). Third, as to petitioner's alleged request for counsel, the record does not provide a sufficient factual basis for this claim. No party disputes the fact that once a defendant has invoked his right to counsel, law enforcement officials cannot interrogate him outside the presence of his attorney, absent a waiver of the right. United States v. Roman-Zarate, 115 F.3d 778, 782 (10th Cir.1997) (citing Miranda v. Arizona, 384 U.S. 436, 474, 86 S. Ct. 1602, 16 1267 L.Ed.2d 694 (1966)). The question is whether, as a matter of fact, Mr. Payne informed the officers that he wanted the assistance of counsel or wanted the interview to cease. At the suppression hearing, petitioner testified that he invoked his right to counsel at some point during the interrogation process. However, Detective Michael Brown testified that he never recalled Mr. Payne invoking his right to counsel. Detective Mike McAtee testified that Mr. Payne did not invoke his right to counsel at anytime during the interview. Similarly, Detective Brown testified that he did not recall Mr. Payne ever invoking his right to remain silent, and Detective McAtee testified that Mr. Payne never requested that officers cease the interview. On direct appeal, the Kansas Court of Appeals found that while petitioner's testimony was "believable," it was contradicted in the record, and "[o]n appellate review, the credibility of witnesses will not be passed upon, conflicting evidence will not be weighed, and all questions of credibility are to be resolved in favor of the State." The issue here is not whether the defendant's statements were sufficient (as a matter of law) to constitute an invocation of his right to counsel, but instead, whether (as a question of fact) petitioner actually requested the assistance of counsel. Ultimately, the state court adopted the version of the facts proffered by the detectives, over those proffered by Mr. Payne, and the state appellate court deferred to the state trial court's credibility determination. "This Court cannot impose its own independent judgment on an issue of credibility to overrule the decision of a court that had the opportunity to view Petitioner's testimony first-hand." Bryan v. Gibson, 276 F.3d 1163, 1171 (10th Cir.2001) (resolving factual issues depends on the factfinder's evaluation of the credibility and demeanor of witnesses). As such, the court is in no position to address whether the state trial court made a proper credibility determination between the testimony of Mr. Payne and the testimony of the interrogating officers. Likewise, the court is in no position to find error in the state appellate court's refusal to re-examine questions of credibility, especially where (as here) petitioner has failed to proffer clear and convincing evidence that the state court should have adopted his version of the facts. See 28 U.S.C. § 2254(e); Rushen v. Spain, 464 U.S. 114, 121 n. 6, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983) (explaining that the state courts' determinations about witness credibility and inferences to be drawn from the testimony were binding on the federal district court); see also Lile v. McKune, 45 F. Supp. 2d 1157, 1161 (D.Kan. 1999) (explaining that petitioner bears the burden of establishing by convincing evidence that any challenged factual determination is erroneous, and that factual issues include the recital of events and the credibility of the narrators). Finally, petitioner's claim that the interviewing techniques were coercive lack sufficient support in the record. As to his claim that the police officers threatened to add additional charges if he did not confess to the crime, Mr. Payne failed to raise this particular claim in his brief on direct appeal. Moreover, the record contradicts Mr. Payne's allegations. Detective Brown testified that he never threatened Mr. Payne with additional charges and did not recall Detective McAtee making any such threats. Similarly, Detective McAtee testified that he never threatened to charge Mr. Payne with additional counts of rape if he did not confess. Finally, Mr. Payne does not identify what additional charges law enforcement officers threatened to file or whether the officers made the alleged threats in bad faith; i.e., without probable cause to believe that petitioner had committed such offenses. See Miles v. Dorsey, 61 F.3d 1459, 1468-69 (10th Cir.1995) 1268 (finding that threat to prosecute family members for covering up defendant's crime unless he pled no contest did not render agreement involuntary where prosecutors acted in good faith belief that family had committed such crimes). The court must further examine Mr. Payne's allegations in light of the state court's findings that suggest his statements were voluntary. The Kansas Court of Appeals found that the interrogation was not uninterrupted. Instead, it concluded that officials gave petitioner breaks from the interrogation, including one extended break when Mr. Payne consented to medical tests at the local hospital. While undergoing testing at the hospital, investigators gave "him some freedom to communicate with others for almost 2 hours." Payne, 983 P.2d 290, 1999 WL 642937, at 3. Moreover, during the entire interview process, there is evidence of only one heated exchange between Mr. Payne and one of the police detectives. Finally, petitioner did not argue that his age, intellect, or background hindered his ability to give voluntary statements to law enforcement officials. In light of the facts contained in the record, the court finds no basis to conclude that the state court unreasonably applied the "totality of the circumstances" test in concluding that petitioner's statements were voluntary. As such, the court denies petitioner federal habeas corpus relief on this claim. III. State Trial Court's Instruction to the Jury on Aggravated Burglary Mr. Payne contends that the trial court erred in its aggravated burglary instruction to the jury. Specifically, he believes that the instruction failed to specify the felony he intended to commit inside the residence. The Tenth Circuit has aptly described the onerous standard for reviewing Mr. Payne's claim of instructional error: In a habeas proceeding attacking a state court judgment based on an erroneous jury instruction, a petitioner has a great burden. Lujan v. Tansy, 2 F.3d 1031, 1035 (10th Cir.1993), cert. denied, 510 U.S. 1120, 114 S. Ct. 1074, 127 L. Ed. 2d 392 (1994). A state conviction may only be set aside in a habeas proceeding on the basis of erroneous jury instructions when the errors had the effect of rendering the trial so fundamentally unfair as to cause a denial of a fair trial. Shafer v. Stratton, 906 F.2d 506, 508 (10th Cir.), cert. denied, 498 U.S. 961, 111 S. Ct. 393, 112 L. Ed. 2d 402 (1990). "The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736-37, 52 L. Ed. 2d 203 (1977) (footnote omitted). The question in this proceeding is not whether the instruction is "undesirable, erroneous, or even `universally condemned,'" but whether the instruction so infected the trial that the resulting conviction violates due process. Id. (quoting Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973)). "An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Id. at 155, 94 S. Ct. at 404. The degree of prejudice from the instruction error must be evaluated in the context of the events at the trial. United States v. Frady, 456 U.S. 152, 169, 102 S. Ct. 1584, 1595, 71 L. Ed. 2d 816 (1982). Maes v. Thomas, 46 F.3d 979, 984 (10th Cir.1995). Here, Mr. Payne has failed to satisfy this burden. When reviewing the instructional error in the overall context of the trial, it is apparent that the aggravated 1269 burglary instruction did not render the proceedings fundamentally unfair. The state trial court instructed the jury that to convict Mr. Payne of aggravated burglary it must find, among other elements, that the defendant entered the victim's residence "with the intent to commit theft, a felony or sexual battery, therein." Rather than specifying the possible underlying crime, the instruction simply tracked the general statutory language. The Kansas Court of Appeals recognized that the district court erred in failing to set forth the statutory elements of the intended felony (underlying the aggravated burglary charge). However, relying on State v. Richmond, 258 Kan. 449, 904 P.2d 974 (1995), the state appellate court concluded that the error was harmless. In Richmond, the state charged the defendant with aggravated burglary, aggravated robbery, rape, and aggravated kidnapping. In Richmond, as here, the trial court failed "to set out the statutory elements of the intended felony." Id. at 459, 904 P.2d 974. Mr. Richmond's defense was that he was not the individual who committed the crimes in question. Id. However, the jury found that Mr. Richmond was the perpetrator. Thus, the Kansas Supreme Court reasoned that "[i]f the jury believed that the man who was in [the victim's] house who beat her, raped her, and stole money and goods from her house was Richmond, there seems to have been little, if any, chance that the jurors would have considered crimes other than aggravated robbery and rape, for which the elements had been supplied, as the reason for entering the house." Id. Mr. Payne's situation is factually indistinguishable from Richmond. That is, Mr. Payne argued that he was not the individual who entered M.W.'s residence and beat, raped, sodomized, and kidnapped her. The jury, however, was convinced beyond a reasonable doubt that Mr. Payne was in fact the perpetrator. Thus, as in Richmond, once the jury was convinced that Mr. Payne was the perpetrator, there is little chance that it considered crimes, other than those charged (for which instructions were provided), to support the specific intent element of aggravated burglary. The court finds that the reasoning in Richmond is logical and persuasive. Moreover, it demonstrates why the instructional error did not so infect the trial that Mr. Payne's resulting conviction violates due process. In other words, when examining the instructional error in the overall context of the proceedings, the court is convinced that the jury would have convicted Mr. Payne of aggravated burglary, even if the trial court had instructed the jury on the underlying offenses supporting the intent element of the aggravated burglary count. As such, petitioner is entitled to no relief as to this claim. IV. DNA Evidence Mr. Payne claims he is entitled to federal habeas relief based on the state court's admission of DNA evidence. First, Mr. Payne contends that the state trial court erred in admitting the DNA evidence based on a "basic explanation" of the testing process, which failed to provide a sufficient foundation for admitting the evidence. The Kansas Court of Appeals reviewed the record and was "convinced" that the KBI scientist sufficiently explained and set forth a sufficient foundation to admit the test results. The court finds that the state court's ruling does not infringe upon petitioner's constitutional rights. "As a general matter, federal habeas corpus relief does not lie to review state law questions about the admissibility of evidence, and federal habeas courts may not interfere with state evidentiary rulings unless the rulings in question rendered the trial so fundamentally unfair as to constitute a denial of federal constitutional rights." Moore v. Marr, 254 F.3d 1235, 1270 1246 (10th Cir.2001) (internal citation and quotation marks omitted). Mr. Payne fails to explain how the state court's evidentiary ruling concerning whether a proper foundation had been laid to admit the evidence resulted in a fundamentally unfair trial. Moreover, during direct examination and, in particular, during cross-examination, the expert witness thoroughly elaborated upon and explained the process for DNA extraction and testing. Thus, to the extent that the trial judge incorrectly found that the prosecution had laid a proper foundation for admitting the evidence under Kansas law, the alleged error was cured by the subsequent testimony of the KBI forensic scientist. Mr. Payne further contends that the statistical analysis interpreting the DNA testing was admitted without sufficient scientific reliability. Here, the Kansas Bureau of Investigation employed the RFLP method of DNA testing. The Kansas Supreme Court has explained that "the statistical analysis portion of both RFLP and PCR testing meets the Frye test... [and] the challenge to DNA statistical analysis goes to the weight of the evidence and not to the admissibility." State v. Isley, 262 Kan. 281, 290, 936 P.2d 275 (1997). Thus, petitioner has failed to establish a federal habeas claim based on the admissibility of this evidence under state law.[8]See Stills v. Dorsey, 7 Fed.Appx. 856, 859, 2001 WL 303351, at 1 (10th Cir.2001)(finding that New Mexico state court determination that PCR method of DNA testing satisfied the standard for expert evidence set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) was not contrary to federal law); Spencer v. Murray, 18 F.3d 237, 239-40 (4th Cir.1994) (finding that admissibility of DNA evidence under state law is not a question the federal court considers on the merits in habeas review). Moreover, Mr. Payne's trial counsel raised several challenges to the accuracy of the DNA results on cross-examination, which further establishes that the admission of this evidence did not render his trial fundamentally unfair. As such, Mr. Payne is entitled to no relief as to this claim. V. Sufficiency of the Evidence Finally, petitioner alleges that there was insufficient evidence to support his convictions. In support of this claim, he explains that he testified that he did not commit the crimes in question, that his admissions to law enforcement were unreliable, and that the DNA evidence lacked foundation and was possibly contaminated.[9] The Kansas Court of Appeals rejected this claim under the controlling Supreme Court precedent set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), i.e., "whether, after viewing the evidence in the light 1271 most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." The state appellate court explained that petitioner's allegations concerning his statements to the police were without merit. It further explained that the jury was able to hear and weigh evidence concerning the reliability of the DNA evidence, and that such reliability and credibility determinations are within the strict province of the jury. Finally, the appellate court noted that there was overwhelming evidence against Mr. Payne, including: (1) the fact that M.W., who was familiar with petitioner's appearance and voice, identified Mr. Payne as the perpetrator; (2) M.W. sustained physical injuries consistent with her testimony about the attack; and (3) Mr. Payne's shoe prints were found outside M.W.'s residence. This evidence was independent from petitioner's admissions to law enforcement officials and the inculpatory DNA evidence. Viewed in the light most favorable to the prosecution, a rational trier of fact could have found Mr. Payne guilty of all counts of conviction. As such, the Kansas Court of Appeals reasonably applied controlling Supreme Court precedent and Mr. Payne is entitled to no relief as to this claim. CONCLUSION The record, briefs and pleadings clearly establish that Mr. Payne is entitled to no federal habeas corpus relief. In particular, as to his ineffective assistance claim, trial counsel took reasonable steps to secure the attendance of alibi witnesses, and any deficient performance did not prejudice Mr. Payne's defense. Second, the Kansas Court of Appeals' application of the "totality of the circumstances" test to petitioner's statements to law enforcement officials was objectively reasonable. Third, the state trial court's aggravated robbery instruction to the jury did not render petitioner's trial fundamentally unfair when viewed in the overall context of the proceedings. Fourth, the state court's evidentiary rulings as to the DNA evidence do not rise to constitutional dimensions. Finally, the state court's finding that there was sufficient evidence to convict Mr. Payne was a reasonable application of federal law. IT IS THEREFORE ORDERED BY THE COURT that Mr. Payne's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied. NOTES [1] The Kansas Court of Appeals set forth a thorough description of the facts surrounding this incident in Mr. Payne's direct appeal, State v. Payne, 983 P.2d 290, 1999 WL 642937 (Kan.App.1999), and his appeal of the trial court's denial of his state habeas petition, Payne v. State, 48 P.3d 695, 2002 WL 1421190 (Kan.App.2002). To the extent that Mr. Payne has not rebutted these facts by clear and convincing evidence, the court has relied on the state court's factual determinations throughout this section. 28 U.S.C. § 2254(e)(1) (explaining that a state court's determination of a factual issue is presumed to be correct and petitioner has burden of rebutting this presumption by clear and convincing evidence). [2] Based on the DNA profile that was developed, the prosecution's expert witnesses testified that there was a one in two billion chance that it matched the DNA of an individual other than Mr. Payne. [3] As discussed within this opinion, where the Kansas Court of Appeals did not "adjudicate" his claims on the merits, the pre-AEDPA standard applies. [4] The State contends that petitioner failed to exhaust his claims raised on direct appeal. It takes the position that such claims are not exhausted unless raised and exhausted in state habeas proceedings. This position is incorrect. To satisfy the exhaustion requirement, Mr. Payne need only show that he presented as federal constitutional issues "to the highest state court, either by direct review of the conviction or in a postconviction attack," those issues that he raises in his federal habeas petition. Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir.1994); see also Butler v. State of Kansas, 57 Fed.Appx. 781, 782-83, 2002 WL 31888316 (10th Cir. 2002) (explaining that to satisfy the exhaustion requirement under 28 U.S.C. § 2254(b)(1)(A) petitioners must present the issues raised in the federal petition to the highest Kansas court, either by direct appeal or by the state post-conviction process). [5] Petitioner also relies on Brown v. Myers, 137 F.3d 1154 (9th Cir.1998) and Bryant v. Scott, 28 F.3d 1411 (5th Cir.1994) in support of his ineffective assistance claim. As in Holmes, trial counsel in these cases completely failed to investigate, locate, interview or produce the alibi witnesses. Here, Mr. Warren investigated, located and took affirmative steps to produce Mr. Payne's alibi witnesses, thereby distinguishing this case from Brown and Bryant. [6] Petitioner does not offer specific facts to challenge the factual findings of the state court, but he does contest the use of the DNA evidence and the statements he made to law enforcement officers on independent grounds. As discussed herein, the court concludes that the admission of this evidence at trial does not constitute a violation of Mr. Payne's constitutional rights. Thus, the court may properly consider this evidence in the context of petitioner's Sixth Amendment claim. [7] Petitioner alleges that he was not given any break, outside of the trip to the hospital to undergo medical testing. However, the Kansas Court of Appeals found that the seven hour time period "included breaks and the hospital examination." The state court's finding is presumed correct, and Mr. Payne fails to proffer clear and convincing evidence to contradict this finding. 28 U.S.C. § 2254(e). [8] Mr. Payne alleges that he has been denied the right to independently test the DNA evidence and apparently contends that this constitutes a Brady violation. However, Mr. Payne failed to raise this claim on direct appeal, and he has neither alleged cause to excuse this procedural default nor prejudice flowing from the default. Cannon v. Gibson, 259 F.3d 1253, 1265 (10th Cir.2001) (noting that except for a few narrow exceptions, § 2254 habeas petitioners must exhaust available state court remedies before seeking habeas relief). Moreover, he fails to allege that the prosecution withheld any exculpatory information. To the extent that Mr. Payne is requesting discovery under Rule 6(a) of the Rules Governing Section 2254 Cases, the court finds that his conclusory allegations in support of such a request fail to establish good cause for such discovery. LaFevers v. Gibson, 182 F.3d 705, 722-23 (10th Cir.1999). [9] On direct appeal to the Kansas Court of Appeals, he also challenged the validity of the eyewitness identification, but he does not appear to raise this particular argument in support of his insufficiency claim in his petition for federal habeas relief.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501409/	270 F.Supp.2d 997 (2003) EOLAS TECHNOLOGIES, INC. and The Regents of the University of California, Plaintiffs, v. MICROSOFT CORPORATION, Defendant. No. 99 C 626. United States District Court, N.D. Illinois, Eastern Division. July 1, 2003. 1000 Richard M. Martinez, Jan M. Conlin, Martin R. Lueck, Howard R. Orenstein, Munir R. Meghjee, Robins, Kaplan, Miller & Ciresi, Minneapolis, MN, Timothy Michael Block, Robins, Kaplan, Miller & Ciresi, Chicago, IL, Nicholas S. Boebel, Darren B. Schwiebert, Emily M. Rome, Keiko L. Sugisaka, Robins, Kaplan, Miller & Ciresi, Minneapolis, MN, Edward William Gleason, Laterza & Lofgren & Gleason PC, Thomas Benard Keegan, Barrett C. Davie, Keegan, Laterza, Lofgren & Gleason PC, Chicago, IL, for Plaintiffs. Richard A. Cederoth, David T. Pritikin, Thomas David Rein, Russell E. Cass, Sidley Austin Brown & Wood LLP, H. Michael Hartmann, Brett A. Hesterberg, Steven Peter Petersen, Allen E. Hoover, Leydig, Voit & Mayer, Ltd., Chicago, IL, T. Andrew Culbert, Redmond, WA, for Defendant. MEMORANDUM OPINION AND ORDER ZAGEL, District Judge. Plaintiffs have submitted five motions in limine, and Microsoft has submitted eleven. Below are the rulings for all sixteen motions. Plaintiffs' Motions in Limine 1. To Preclude Microsoft from Introducing Exhibits Not Identified on the Trial Exhibit List: Microsoft, in its response to the motion, agrees that all exhibits, with the exception of rebuttal and impeachment evidence, must be on the exhibit list. Because there appears to be no dispute, the motion is DENIED as moot. 2. To Order Admissibility of Documents or Testimony of a Witness Regarding Foundation and Authenticity: plaintiffs request that this court order that any document written by an employee of a party, and produced from its files is, when offered into evidence by the opposing party, an authentic business record. In the alternative, plaintiffs ask that this court order Microsoft to make available either for a short deposition or at trial during plaintiffs' case-in-chief, a witness who, as 1001 custodian of the records, can authenticate and lay foundation for documents produced out of Microsoft's business files. In its response to the motion, Microsoft indicates that it had previously offered to enter into a stipulation regarding authenticity so long as it would apply to any materials produced by any party or third party during discovery, but plaintiffs oppose the proposal, arguing that such a stipulation would open the doors to unlimited third party discovery, which is unfathomable at this point in the case. Microsoft opposes plaintiffs' motion because (1) there would be an inequitable evidentiary burden on Microsoft because it has produced many more documents than plaintiffs; (2) it is unreasonable to ask Microsoft to forego any objections to the admissibility of virtually every document upon which plaintiffs rely; and (3) it is premature to request witness testimony for authentication and foundation purposes, and doing so would open discovery back up. Plaintiffs, in this motion, have combined the issues of authenticity with admissibility. This is problematic, for as Microsoft correctly points out, authenticity does not guarantee admissibility. Also, because the business records exception under Fed R. Civ. P. 803(6) is a very narrow exception, such blanket admissibility is not appropriate under the present circumstances. Considering the extremely large number of documents produced in this case (Microsoft estimates that it has produced 300,000 documents that would fall under plaintiffs' proposed order), I am reluctant to enter an order that determines authenticity and admissibility on such a widespread scale. At the time this motion was briefed, exhibit lists had not been exchanged by the parties. Now that they have, perhaps the parties can agree to a stipulation regarding the authenticity and/or admissibility of employee evidence. If such an agreement cannot be made, I think that this issue will be better addressed as problems arise during the course of trial. If both parties, having seen each other's exhibit list, believe that there will be a large number of disputes, they may raise the issue before trial begins, and the court will devise an appropriate solution. Plaintiffs' motion is DENIED. 3. To Compel Microsoft to Make Available Its Employees to Plaintiffs During Trial: Microsoft describes plaintiffs' motion as requesting that the court compel Microsoft to "make any witness it may rely on for live testimony during its case, available to testify during Plaintiffs' case-inchief." Plaintiffs insist that the motion is directed only to Microsoft employees "who Microsoft is already bringing to Illinois to testify." Although it is understandable why Microsoft interpreted the motion as it did, considering plaintiffs' closing paragraph in its Memorandum supporting their motion, I will accept plaintiffs' assertion that the motion is directed solely to those Microsoft employees who will already be brought to Chicago by Microsoft. Therefore, plaintiffs' motion is GRANTED, but only with respect to the limitation noted above. 4. To Exclude Opinion Evidence of Creighton Hoffman: plaintiffs seek to exclude the testimony and opinions of Creighton Hoffman, Microsoft's damages expert, with respect to his allegedly "faulty assumption that a reasonable royalty must be limited to the value of the patent holder company." Microsoft's counter to this is that Mr. Hoffman relied upon the factors laid out in Georgia-Pacific Corp. v. United States Plywood Corp., 318 F.Supp. 1116, 1120 (S.D.N.Y.1970), not a market cap theory. Microsoft argues that although Mr. Hoffman does take into account plaintiff Eolas Technologies, Inc.'s ("Eolas") market value in his reasonable royalty analysis, Mr. Hoffman's conclusions were by no 1002 means based on or limited by that market value, and there is nothing in Fromson v. Western Litho Plate & Supply Co., 853 F.2d 1568, 1574 (Fed.Cir.1988), stating that any reference to earnings or market cap is ipso facto improper. I agree with points made by both sides. I agree that the figure produced by a reasonable royalty analysis should not be limited by the market value of a company. However, after reviewing Fromson, I also agree that while Fromson was concerned with a small company's or individual inventor's poor bargaining position, it does not hold that the market value of a company must always be absent from the analysis. The question then becomes, how much of a factor was Eolas' market value and earnings in Mr. Hoffman's analysis? According to Microsoft, Mr. Hoffman concluded that plaintiffs' damages expert, James Nawrocki, came up with a proposed royalty that was exorbitantly high by comparing Mr. Nawrocki's figure with a number of factors, none of which were Eolas' market value. For example, Microsoft asserts that Mr. Hoffman took into account how much Microsoft paid for the Mosaic browser and Hotmail, as well as the value of other assets that Microsoft has purchased or could have purchased in lieu of a license. Microsoft also points to Mr. Hoffman's consideration of availability to Microsoft of allegedly acceptable alternatives to the patented device that would decrease the royalty rate. See Minco, Inc. v. Combustion Eng'g, Inc., 95 F.3d 1109, 1119 (Fed.Cir.1996). Based on such considerations, it is unclear at this point that Mr. Hoffman's analysis was in fact limited by Eolas' market value. Therefore, plaintiffs' motion is DNIED. If, at trial, plaintiffs can show that those parts of Mr. Hoffman's testimony and opinions using Eolas' market value as a consideration were truly limited by Eolas' market value, despite all of the other factors used in Mr. Hoffman's analysis, I will give appropriate instruction to the jury. 5. To Exclude Evidence of Alleged Inequitable Conduct and Prosecution Irregularities at the Jury Trial: plaintiffs ask the court to preclude documents, testimony, and lawyer argument suggesting that Dr. Michael Doyle had an obligation to submit to the Patent and Trademark Office ("PTO") the limited information he had about ViolaWWW during prosecution of U.S. Patent No. 5,838,906 ("the '906 patent") during the jury phase of the trial. Microsoft concedes that the question of inequitable conduct is for the court, not the jury, to decide, but it opposes the motion because it believes some of the evidence plaintiffs seek to preclude are relevant to the issue of prior art and invalidity, which are for the jury to decide. Clearly, the factual issues surrounding inequitable conduct and prior art and invalidity are intertwined to some degree. While I understand plaintiffs' resulting concern, I feel that this problem is best handled on a case-by-case basis during the course of trial. There will likely be evidence concerning ViolaWWW that is relevant to the issues of prior art and invalidity that does not suggest that Dr. Doyle engaged in any inequitable conduct, and there will likely be evidence relevant to prior art and invalidity, but suggestive enough of inequitable conduct that the potential prejudice to the jury will outweigh its probative value. I will lay down a few guidelines to aid the parties in making these distinctions, although I reserve the right to modify them as the trial progresses: Microsoft's assertion that ViolaWWW is prior art is clearly admissible. On the other hand, that Dr. Doyle did not mention ViolaWWW to the PTO is not to be told to the jury. As for the admissibility of whether he 1003 knew about ViolaWWW prior to the '906 patent application, this will depend on whether he offers an opinion that (1) he considered it as possible prior art around the time that '906 was being processed and regarded the teachings of ViolaWWW as irrelevant to '906, or (2) he testifies that his current opinion is that ViolaWWW is not prior art that casts out his invention. Should he testify only to his current opinion, then his prior encounters are irrelevant. At this time, I am unwilling to make a sweeping restriction on everything concerning Dr. Doyle and ViolaWWW and will thus consider objections to such evidence as the time arises. Plaintiffs' motion is DENIED. Microsoft's Motions in Limine 1. To Bar Plaintiffs from Referring to Other Patent Litigation Involving Microsoft: Microsoft seeks to bar plaintiffs from referring to other patent litigation, including settlements, in which Microsoft was or is involved. Plaintiffs argue that the motion is over broad and vague and note two examples in which prior litigation involving Microsoft has probative value of issues in this case. Microsoft clarifies in its reply to plaintiffs' response that this motion addresses only patent litigation. While it seems unlikely that the probative value of patent litigation involving Microsoft will outweigh the prejudice to the jury that may result, I am reluctant to shut the door completely at this moment and time and therefore, the motion is DENIED. If plaintiffs decide to present other patent litigation involving Microsoft to the jury, they are instructed to inform Microsoft before they do so. Then Microsoft can raise its objections prior to the introduction of such evidence, and I will determine its admissibility at that time. 2. To Bar Plaintiffs from Referring to the Reissue Proceedings of the Koppolu Patent: Microsoft asks the court to bar plaintiffs from referring at trial to Microsoft's attempted reissue of U.S. Patent No. 5,801,701 ("the Koppolu patent"), which has claims similar to those of the '906 patent. Although the attempt to reissue the Koppolu patent has failed thus far, it is still pending. Microsoft argues that evidence related to this reissue proceeding is irrelevant, and even if there was some relevance, the evidence would needlessly complicate the trial, and that cost does not justify allowing it. Microsoft states that it will not argue at trial that the Koppolu patent anticipates the asserted '906 patent claims and thus, evidence pertaining to the Koppolu reissue proceeding is not relevant. Plaintiffs vehemently oppose the motion, asserting that the Koppolu patent "has been central to this case from the start," to which Microsoft responds, "not any more." Plaintiffs believe that Microsoft will refer to the Koppolu patent as invalidating prior art and as evidence of noninfringement and want to be able to respond to such arguments. In its reply to plaintiffs' response, Microsoft states that it is committed to not relying upon the Koppolu patent at trial as invalidating prior art. Microsoft makes a distinction between the Koppolu patent and OLE 2.01 Design Specification, which Microsoft says it will rely upon at trial, stating that the two "are different documents, and they disclose different things." Microsoft also argues that plaintiffs have mischaracterized the Koppolu reissue record, particularly the findings of the PTO. The Koppolu reissue record is voluminous, and Microsoft's argument that the introduction of the proceedings will complicate the case is compelling-this motion in limine alone is the most voluminous of the 16 motions in limine filed by both parties. I am also sympathetic to plaintiffs' concerns that they will be shut out of responding 1004 to an argument made by Microsoft (whether intentional or unintentional) during the course of this trial. However, essentially what plaintiffs are trying to do is present the opinion of the PTO examiner to the jury, which is questionable. More importantly, what plaintiffs want to do in essence is say that (1) Microsoft originally sought to defend this case using the Koppolu patent; (2) Microsoft was unsuccessful with the PTO; (3) this means that Microsoft was advancing a bad defense; and (4) from this the jury can infer that Microsoft's other defenses are bad. To state it this way is enough to show that Microsoft's motion should be granted. The very purpose of elaborate pretrial proceedings is to allow parties to test their theories, and if their theories fail these tests, they can abandon those theories without suffering an adverse influence. For these reasons, I am GRANTING Microsoft's motion, but on the condition that Microsoft not introduce the Koppolu patent at any point during this trial, and if plaintiffs feel that it has been brought into the case in any way, they will be permitted to raise the issue as such time arises. 3. To Bar Plaintiff's from Claiming at Trial That Their Invention Was Made Before the Filing of their Patent Application: Microsoft seeks to prevent plaintiffs from arguing at trial that their invention was made prior to the filing date of its patent application, arguing that plaintiffs cannot overcome the presumption that the invention date is the filing date of the patent application. To prove an invention date prior to the filing date, certain evidentiary requirements must be met, and there are two steps involved with making an invention: conception and reduction to practice. Microsoft argues that none of the evidence offered by plaintiff is sufficient to meet the evidentiary burden, while plaintiffs argue that at this stage in the case, they have provided adequate evidence to show that they can meet this burden. The documents and testimony involved are quite complex-they incorporate very technical and often detailed descriptions that have been subject to two different interpretations by the parties. Whether certain notes describe the invention or some predecessor that is too unlike the invention will be determined by which of two competing interpretations is a more accurate translation of that text. A motion in limine may be used to preclude a party from making an argument where the evidence proffered to support it is "insufficient as a matter of law." United States v. Santiago-Godinez, 12 F.3d 722, 727 (7th Cir.1993). However, what I have before me is an intensely factual dispute, and while plaintiffs' argument may end up being factually insufficient, I cannot at this point draw that conclusion. Therefore, Microsoft's motion is DENIED. 4. To Limit Plaintiffs' Infringement Proof at Trial: Microsoft asks that plaintiffs be barred from maintaining at trial that web pages that specify only the COM classid and do not specify the four other attributes (TYPE, CODE, CODTYPE, or DATA) infringe the '906 patent, arguing that there is no possible way a jury could find that such web pages infringe. Plaintiffs contend that this is merely Microsoft's way of improperly seeking reconsideration of my previous summary judgment ruling in an underhanded way. I will give Microsoft the benefit of the doubt, although I do question why Microsoft did not move to exclude from the case this specific type of specific web page at the summary judgment stage. Microsoft argues that "[f]or the web pages covered by the present motion, no reasonable juror could find that the browser 'identifies and locates' the executable application." Plaintiffs counter with the 1005 statement that "Internet Explorer practices the asserted claims of the '906 Patent without regard to the particular form in which the type information is present in the Web page." Although I do not believe that Microsoft is attempting to sneak in reconsideration of my prior summary judgment ruling, the arguments set forth by both parties echo the arguments already made with respect to that earlier motion. The parties continue to debate what the browser actually does versus what the operating system actually does, which is an issue central to this trial and far from resolved. Microsoft's arguments are based on the assumption that it is undisputed that when the browser parses a web page of the type at issue here, it simply extracts the COM classid and passes it to the operating system, which then performs the real "work" that is needed to identify and locate the application. Plaintiffs make it clear that this is not an undisputed understanding of what the web browser does in such a case, and although Microsoft argues that plaintiffs are simply wrong in their assertions, this is yet to be proven. In my Claim Construction Order, I held that whether the browser is utilizing type information to identify and locate an application "in any given permutation is a question of fact." In my October 18 opinion, I stated that the CLASSID HTML and binary COM classid are "different translations of the same thing." Microsoft interprets this statement to mean that whatever form the COM classid takes, it is simply passed onto the operating system. However, I stated in my opinion that these differing translations still raise the question of what does the identifying and locating. At this point, I cannot agree with Microsoft that a reasonable juror would definitely not find infringement for the web pages at issue here, and consequently, Microsoft's motion is DENIED. If, during the course of trial, Microsoft feels that this point has been proven by the evidence, it may request an appropriate instruction to the jury, and the court will consider that request as such time arises. 5. To Exclude "Evidence" and Argument of Copying: Microsoft asserts that plaintiffs should be barred from maintaining at trial that Microsoft tried to copy the invention of the '906 patent. The evidence at issue in this motion, namely (1) a demonstration by Dr. Doyle to Continuum Productions, (2) evidence of a meeting between Dr. Doyle and Thomas Krauskopf of Spyglass Technologies and Mr. Krauskopf s dealings with Microsoft, and (3) Bill Gates' alleged knowledge of and interest in the '906 technology, have all been addressed by this court already in my April 16, 2003, Memorandum Opinion and Order in which I granted Microsoft's Motion for Partial Summary Judgment with Respect to Willfulness. I granted the motion because I found that Microsoft's defenses to this suit were not frivolous, and I also pointed out that pre-suit willfulness had previously been taken out of this case and therefore no longer at issue. After reading Microsoft's opening brief and plaintiffs' response, it appears that the parties had not yet seen my April 16 opinion at the time these briefs were written. Microsoft incorporates it into its reply and argues that this issue is and has been dead for some time. My inclination is to agree with Microsoft. Plaintiffs seem to suggest in their response to this motion that the evidence of copying described above is relevant to issues other than willfulness. However, given the highly prejudicial nature of the evidence in light of my prior rulings, I am reluctant to allow this evidence back into the case without a more compelling argument for why its alleged relevance outweighs the possible prejudice to Microsoft that may result. Therefore, I am 1006 GRANTING Microsoft's motion, but I will give leave to plaintiffs to raise the issue once more if it should decide to introduce such evidence at trial for issues other than willfulness. Plaintiffs must do so before introducing any such evidence at trial and in the absence of the jury. 6. To Bar Plaintiffs from Seeking Damages on Units of Internet Explorer Made and Sold Outside the United States: Microsoft seeks to bar plaintiffs from seeking damages based on foreign sales of Windows OS products because no U.S. patent, including the one at issue in this case, has extraterritorial effect. Plaintiffs argue that whether the accused products are sold and made within or outside the U.S. is a factual question for the jury and cannot be determined here. This is not the first time this question has arisen before the court. In my October 18, 2002, Memorandum Opinion and Order, I addressed Microsoft's request to amend its response to an admission that certain Windows OS products and Internet Explorer, identified by license numbers, were made in the U.S. At issue then, as it is still now, is what is meant by the word "made." Under 35 U.S.C. § 271(a), anyone who, without authority, makes a patented invention within the U.S. infringes the patent. Plaintiffs argue that they can prove Windows OS products and Internet Explorer are "made" in the U.S. Microsoft argues that the uncontested facts prove that what is done by overseas Original Equipment Manufacturers ("OEMs") constitutes "making" the accused products and therefore, it is not for the jury to decide. The factual issues concerning what constitutes "making" do not appear to have changed since I allowed Microsoft to amend its admission answer last fail. The process described by Microsoft had not been and still is not contested by plaintiffs. Rather, what plaintiffs continue to contend is that the point at which the "making" of a product begins is a factual dispute yet to be resolved. I do not find that the uncontested facts resolve the problem because it is from the interpretation of those facts that an answer must be found, and the record does not unequivocally show that one interpretation is correct over another. Therefore, Microsoft's motion is DENIED. 7. To Exclude Portions of Proposed Opinion Testimony of James J. Nawrocki: Microsoft challenges Mr. Nawrocki's expertise and methodology with respect to all Georgia-Pacific factors except 1, 3, and 7, arguing that his assessment of damages if Microsoft is found to have infringed is based upon expertise not possessed by Mr. Nawrocki, unreliable methods, and is irrelevant. Microsoft's contentions with Mr. Nawrocki's opinions include the following: (1) he failed to consider the possibility of a lump-sum royalty, which affects Factor 2; (2) he did not test his opinions against market realities, which affects Factors 4, 5, 6, and 8; (3) he did not determine the "value" of the patented technology or its effect on sales of Windows, which affects Factors 6 and 13; (4) he failed to account for non-infringing alternatives, which affect Factors 10 and 11. Essentially, Microsoft alleges that Mr. Nawrocki does not possess adequate knowledge of the technology at issue to make his assessments, and he did not take into account certain market issues. Plaintiffs contend that Mr. Nawrocki is qualified to make all assessments in his report, and with respect to those matters that he did not know as much about, whether it concerned technical issues or questions about market values, he relied upon the findings and testimony of other experts employed by plaintiffs for that specialized knowledge. For instance, plaintiffs assert that Mr. Nawrocki did not 1007 upon non-infringing alternatives because he relied upon Dr. Felten's unequivocal opinion that no acceptable non-infringing alternatives existed. Microsoft argues that there is no indication of exactly what Mr. Nawrocki allegedly relied upon, nor is it clear that he interacted with plaintiffs' other experts both in his report and in those other experts' reports. Mr. Nawrocki's report may have relied upon and incorporated information from plaintiffs' other experts despite the absence of any detailed explanation, and for this reason, I am DENYING Microsoft's motion. The bases of Mr. Nawrocki's conclusions may become clearer and more detailed during his examination at trial, and Microsoft will have the opportunity to demonstrate that certain portions of his testimony are inadmissible during crossexamination. At the present, I am not convinced that Mr. Nawrocki's conclusions which Microsoft opposes are entirely baseless or improperly developed-the alleged deficiencies in his report are not enough to establish this. 8. To Exclude Testimony and Damage Calculations Referring to or Relying on Microsoft or Windows Revenues or Profitability: Microsoft argues that plaintiffs' patent claims cover Internet Explorer only, not the Windows OS products, and including revenue numbers associated with Windows OS products is irrelevant and prejudicial to Microsoft. Plaintiffs argue that all Windows OS products are accused and therefore, that revenue information is relevant and appropriate to include when determining the base for the award of royalties. Under Fonar v. Gen. Elec. Co., 107 F.3d 1543, 1552 (Fed.Cir.1997), when damages are sought for a patented functionality which constitutes a single feature of a multi-featured product, the patentee is not entitled to a royalty on revenues from the entire product unless it can show that "the patented feature is the basis for customer demand of the entire [product]." Plaintiffs assert that they will produce evidence at trial showing that Microsoft's incorporation of the '906 functionality was the reason why Windows OS products were successful. Microsoft argues plaintiffs clearly cannot prove this. Whether plaintiffs can show that the '906 technology is the reason for the success of Windows OS products is a factual issue to be determined by the jury, not the court. Therefore, I am DENYING Microsoft's motion. Microsoft's concerns that the jury might produce an erroneously high royalty award will be addressed in the jury instructions and verdict forms, both of which will make clear that if the jury finds that the '906 technology was not the reason for consumer demand of Windows OS products, they cannot consider Microsoft's revenues for Windows OS products in determining a reasonably royalty-they must consider the revenues attributable to Internet Explorer only. 9. To Exclude the Opinion Testimony of Robert J. Dolan: Microsoft asks the court to exclude the testimony of Robert J. Dolan because it offers two broad opinions that are based upon unreliable methodology. Those two opinions concern the supposed importance to Microsoft of incorporating the allegedly infringing technology into Internet Explorer and the connection between the commercial success of Internet Explorer to the accused feature. Microsoft does not appear to contest the qualifications of Mr. Dolan; rather, it questions Mr. Dolan's methodology. Plaintiffs argue that Microsoft's problem is not with Mr. Dolan's methodology but rather, with his conclusions. The methodology at issue is the Harvard case study method, which Mr. Dolan used in developing case studies while he was a faculty member at the Harvard Business 1008 School. Microsoft argues that because the case studies produced by this method always contain the caveat that they should "not be relied upon as a source of empirical data," this methodology is clearly an unreliable means of drawing the conclusions set forth in Mr. Dolan's report. Microsoft also asserts that Mr. Dolan (1) did not consider documents from the appropriate time period; (2) had a mistaken understanding of the '906 patent; and (3) he did not factor into his analysis alternatives to the '906 technology. While the alleged fallacies pointed out by Microsoft may in fact turn out to be true, these questions raised by Microsoft should be addressed in the cross-examination of Mr. Dolan. Also, I do not find the methodology used by Mr. Dolan to be patently unreliable, and there is no case law clearly stating that this methodology is in fact improper in a case such as this. Perhaps there are significant limitations to the value of Mr. Dolan's testimony due to the fact that his methodology is a teaching tool not intended to produce empirical evidence, but excluding his testimony altogether is not appropriate at this stage in the case. For these reasons, Microsoft's motion is DENIED. 10. To Exclude Robert L. Harmon's Testimony That (A) Involves Legal Opinion or Ultimate Legal Issues or (B) Requires Expertise Mr. Harmon Does Not Possess: Microsoft seeks to prevent Robert L. Harmon, an expert witness for plaintiffs, from testifying about interpretations of the law, merits of the case, and Dr. Doyle's alleged intent to deceive the PTO, arguing that such testimony is improper. Plaintiffs argue that Mr. Harmon is qualified to testify about matters contained within his report, and with respect to Dr. Doyle, his testimony would respond to arguments made by Microsoft's expert that Dr. Doyle did intend to deceive the PTO. Mr. Harmon is certainly qualified to testify about patent applications, the prosecution of the '906 patent, PTO procedures, and reexamination, and such testimony will be helpful to the jury. However, the testimony cited by Microsoft is improper. It is improper for Mr. Harmon to testify about, for example, what he believes the legal standard for willful infringement is. It is also improper for Mr. Harmon to testify that based on the record before him, "a reasonable jury could find that Microsoft did not obtain a competent opinion of counsel that would have provided it with a reasonable belief that the '906 patent would be held invalid, unenforceable, or not infringed." Such assessments of the law are the province of this court. With respect to Dr. Doyle, it is true that Microsoft's expert, Larry S. Nixon, concludes in his expert report that based on the evidence before him, it is his opinion that Dr. Doyle either intended to deceive the PTO or chose to ignore material information. Mr. Nixon is careful to make it clear that this conclusion is his opinion based on the evidence before him and that the issue is far from decided at this point. In contrast, Mr. Harmon's conclusion that Mr. Doyle did not intend to deceive or mislead the PTO ends with the statement "there is no evidence of knowledge, nor of intent to mislead." There is a difference between stating that at the present time the evidence tends to show or not show something and stating that the evidence does in fact prove something, and the latter is improper testimony. Mr. Harmon was not present during Dr. Doyle's appearance before the PTO and therefore has no firsthand knowledge of whether Dr. Doyle possessed any intent to deceive or mislead. Thus, his opinion can only be based on the limited evidence before him, and that opinion must be qualified to indicate that the opinion has limited value. Mr. Harmon's statements regarding Dr. Doyle's intent appear to state that although Mr. Harmon was not present when Dr. Doyle testified 1009 before the PTO, the evidence is so unequivocal that the absence of an intent to deceive or mislead clearly never existed. This is improper testimony. Hence, I am GRANTING Microsoft's motion with respect to any testimony regarding interpretations of law, legal conclusions, assessments or predictions of what a jury would conclude, and conclusions regarding Dr. Doyle's intent to deceive or mislead the PTO that are not clearly indicated to be Mr. Harmon's opinion based on the evidence before him. 11. To Set the Order of Proof and Order of Closing Arguments at Trial: Microsoft asks that the order of proofs and closing arguments at trial be organized as such: plaintiffs present evidence on infringement and damages, then Microsoft responds, after which Microsoft presents its case on validity, then plaintiffs present rebuttal on infringement and damages, and finally, Microsoft presents rebuttal on validity. Microsoft feels that because it is the party bearing the burden of proof on invalidity, it should be allowed to go first. Plaintiffs argue that this structure will only complicate the case and cause undue burden on witnesses. While I am sympathetic to Microsoft's concern, structuring the case in the way Microsoft proposes will likely complicate an already complex case, for there are factual issues concerning infringement and validity that overlap. Therefore, the motion is DENIED. However, to address the possible inequity that Microsoft might face, I will allow the following: Microsoft may request an opportunity for the last word on validity after plaintiffs have presented its rebuttal. The court will take into consideration whether the rebuttal evidence is duplicative or raised for the first time in rebuttal, and if it is found to be the latter, Microsoft will then be allowed a final response.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501351/	280 F. Supp. 2d 413 (2003) WORLD WRESTLING FEDERATION ENTERTAINMENT, INC., a Delaware corporation, Plaintiff, v. BIG DOG HOLDINGS, INC., a Delaware corporation, Defendant. No. 01-CV-394. United States District Court, W.D. Pennsylvania. March 10, 2003. 414 415 416 417 Jerry S. McDevitt, Robert L. Byer, Curtis B. Krasik, Jill D. Helbling, Kirkpatrick & Lockhart, Pittsburgh, PA, for Plaintiff. Mark R. Hamilton, Zimmer Kunz, Pittsburgh, PA, Jacqueline A. Criswell, David Butman, Tressler, Soderstrom, Maloney & Priess, Chicago, IL, for Defendant. OPINION OF THE COURT CERCONE, District Judge. I. INTRODUCTION The Worldwide Wrestling Federation Entertainment, Inc. ("WWE") filed a seventeen (17) count Amended Complaint asserting claims against Big Dog Holdings, Inc. ("Big Dog") for copyright infringement (Counts I through VI), trademark infringement under Section 32 of the Lanham Act, 15 U.S.C. § 1114, (Count VII), trademark infringement and false designation of origin under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), (Count VIII), trade dress infringement under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), (Count IX), misappropriation and unfair competition under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), (Count X), trademark dilution under Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c), (Count XI), violation of the Pennsylvania anti-dilution statute, 54 PA. CONS. STAT. ANN. § 1124 (Count XII), violation of Pennsylvania fair trade practices statutes, 73 PA. CONS. STAT. ANN. §§ 201-2 and 201-3 (Count XIII), unfair competition under the common law of Pennsylvania (Count XIV), and violation of the right of publicity under the common law of Pennsylvania (Counts XV, XVI, and XVII). Following the close of discovery, Big Dog filed a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. WWE has responded and the motion is now before the Court. II. STATEMENT OF THE CASE A. The Contestants WWE is an integrated media and entertainment company engaged in the development, promotion and marketing of television programming, pay-per-view programming and live arena events, and the licensing and sale of branded consumer products. (Am. Cmplnt. ¶¶ 11 and 16). WWE has been involved in the sports entertainment business for over twenty (20) years and has developed story lines based around its wrestling characters. (Am. Cmplnt. ¶¶ 17 and 18). Currently, WWE produces five television programs each week: (i) "Raw" and "War Zone" shown consecutively on Monday nights and known as "Raw is War"; (ii) "WWF Smackdown!" on Thursday nights; (iii) "Live Wire" on Saturday mornings; (iv) "Superstars" on Sunday mornings; and (v) "Heat" on Sunday nights. (Am. Cmplnt. ¶ 17). Through its programming, described by WWE as "... action-packed episodic drama ... akin to an ongoing, ever-developing soap opera," WWE has developed popular wrestling characters appearing under unique names and portrayed with unique persona, history relationships, music and visual appearance, and behavior. (Am. Cmplnt. ¶¶ 17 and 19). A principal component of WWE's business is the merchandising and licensing of branded consumer products depicting these characters' names, likenesses, signature phrases, as well as depicting WWE's programming. (See Appendix to WWE's Opposition to Big Dog's Motion for Summary Judgment Exhibit R) (hereinafter "WWE Exhibit ___"). These branded consumer products are marketed and sold through two separate operations: (1) WWE direct merchandising, which refers to WWE's own design, 418 production and sale of product principally through WWE's internet website, semiannual catalogs and sales at live events; and (2) licensing, which refers to WWE's licensing of its intellectual property by category (i.e., t-shirts, trading cards, posters, action figures, etc.) to third-party companies that pay royalties to WWE on product sales.[1] (WWE Exhibit T, p. 6 lines 7-22). WWE, in turn, pays royalties to the individual portraying the character based on revenues from the sales of products depicting the individual's WWE character. (WWE Exhibit Q, ¶ 6). Through predecessor companies, Big Dog has been in business since 1983, and its first full year of operations under current ownership was in 1993. (Big Dog Exhibit G, ¶ 1). Big Dog develops, markets, and retails a branded lifestyle collection of unique, high quality, popular priced consumer products, including active wear, casual sportswear, accessories and gifts. (Big Dog Facts ¶ 18). Big Dog has registered trademarks in both "Big Dogs" and its famous dog design logo. (Big Dog Facts ¶ 35). Its merchandise is sold solely through its own Big Dog stores, its catalogs, and through Big Dog's website. (Big Dog Facts ¶ 19). It is Big Dog's contention that it has always developed certain graphics as parodies of popular culture which poke fun at what is going on in the world. (Big Dog Exhibit F at pp. 13 and 18; Big Dog Exhibit J). Big Dog further contends that the depiction of the Big Dog character over and over in different contexts is part of a long-running joke that consumers have come to identify with the Big Dog brand. (WWE Exhibit A, p. 110:lines 1-12). Big Dog contends that its Big Dog character is intended to be irreverent, funny, and not afraid to make fun of "overinflated aspects of our society." (WWE Exhibit A, p. 92: lines 15-18). Moreover, Big Dog alleges that its t-shirts appeal to customers who enjoy mocking "over-promoted pop phenomena" that are prevalent in today's media. (Big Dog Facts ¶ 32). The Big Dog graphics ridicule, poke fun at, and mock these self-serious icons by characterizing them as dogs, particularly associating them with the Big Dog character, giving them humorous names, and "dogifying" them. (WWE Exhibit A, p. 68: lines 18-25; p. 69: lines 1-6). A Big Dog graphic artist described "dogify" as a means "to satirize a given entity by giving him big floppy ears, a big silly tail, turning him into this variety of dog that we turn everything into." (WWE Exhibit B, p. 12: lines 5-8). The dog graphic essentially is a caricature of the intended subject, copying elements of the subject so in satirizing a particular person or thing, it is recognizable to the public. (WWE Exhibit B, p. 15: lines 1-16). Big Dog continues its long-running dog joke parody by always inserting the dog and showing the Big Dog character in many different contexts. (WWE Exhibit A, p. 110: lines 1-12) B. WWE's Intellectual Property "THE ROCK", portrayed by Dwayne Johnson, "STONE COLD STEVE AUSTIN", portrayed by Steve Williams, and the "UNDERTAKER", portrayed by Mark Calloway, have been three of the WWE's most popular wrestling characters over the past five (5) years. (WWE Exhibit Q, ¶¶ 7 and 8). WWE alleges that it has developed and promoted THE ROCK since 1997, and has created and developed a unique trademarked name, persona and trade dress for THE ROCK. (Am. Cmplnt. 419 ¶¶ 27 and 28). Similarly, a unique trademarked name, persona and trade dress has been created, developed and promoted by WWE for STONE COLD STEVE AUSTIN since 1996, and the UNDERTAKER since 1990. (Am. Cmplnt. ¶¶ 47, 48, 67, 68 and 69). WWE further contends that it owns trademarks and service marks in THE ROCK, STONE COLD STEVE AUSTIN, and the UNDERTAKER.[2] (Am. Cmplnt. ¶¶ 42, 61 and 80; WWE Appendix Exhibit EE). In addition, WWE claims ownership in trademarks and service marks for: (1) registrations for WWF; (2) the WWF scratch logo; (3) WWF Smackdown! design mark; and (4) AUSTIIN 3:16. (Am. Cmplnt. ¶¶ 21, 22, 24, 61, 88, and 89; WWE Appendix Exhibits DD and EE). In conjunction with its registration of THE ROCK mark, WWE alleges that it has acquired common law trademarks in THE ROCK's signature catch phrases and slogans: "Know Your Role"; "Jabroni"; and the "Brahma Bull". (Am. Cmplnt.¶¶ 40-43). WWE also contends it has acquired a common law trademark in THE ROCK's Brahma Bull design mark. (Am.Cmplnt. ¶ 43). Integral to WWE's portrayal of the STONE COLD STEVE AUSTIN character is the use of catch phrase slogans and symbols, including: "Open Up a Can of Whoop Ass"; "Austin 3:16"; "Rattlesnake"[3]; "Cause Stone Cold Said So"; and the Skull design. (Am.Cmplnt. ¶ 59). WWE contends that it has acquired a common law trademark in the "Open Up a Can of Whoop Ass," "Rattlesnake," and the "Cause Stone Cold Said So" marks and the Skull design mark. (Am.Cmplnt. ¶ 63). In addition to their unique persona and character, WWE has portrayed THE ROCK, STONE COLD STEVE AUSTIN and the UNDERTAKER characters with unique and distinctive trade dress. A central component of THE ROCK's trade dress is the Brahma Bull symbol. Not only is THE ROCK often referred to as the "Brahma Bull," but he has a tattoo of a Brahma Bull on his right arm, and his clothing, including his wrestling trunks, t-shirts and black leather jacket, bear the image of a Brahma Bull. (Am.Cmplnt. ¶ 31). THE ROCK is generally portrayed wearing tinted sunglasses, which are often tipped down to reveal THE ROCK's signature facial expressions, most notably, the "People's Eyebrow."[4] (Am.Cmplnt. ¶ 31). STONE COLD STEVE AUSTIN is generally depicted with solid black wrestling trunks, black wrestling boots, no shirt and an open black leather vest with an image of a white skull on the left side and the name "AUSTIN" written vertically in white lettering down the right side. (Am. Cmplnt. ¶ 50). To further the "menacing persona" of the UNDERTAKER, he has been generally portrayed in all black clothing with black leather designs on the legs, a black leather vest with silver buckles, and tattoos covering his body. (Am.Cmplnt. ¶ 70). The UNDERTAKER also wore black elbow pads, black leather fingerless gloves, black leather boots, and often entered the 420 ring wearing a long black cape. (Am. Cmplnt. ¶ 71). The persona, trade dress and character traits of THE ROCK, STONE COLD STEVE AUSTIN, and the UNDERTAKER are used by WWE in its merchandising of a myriad of products, including photographs, shirts, posters, videos, and action figures. (Am. Cmplnt. ¶¶ 32, 51 and 72). C. The Alleged Infringements In November of 1998, Big Dog began selling merchandise which makes reference to WWF and its wrestling characters (collectively "the WBDF merchandise"). (Big Dog Facts ¶ 23). The WBDF merchandise consists of eight (8) graphic designs which appear primarily on t-shirts, but also appear on a mug, sports bottle, stickers and two (2) beanie dolls. (Big Dog Facts ¶ 24; Big Dog Exhibit K). The first WBDF merchandise sold in November of 1998 was a t-shirt with the slogan "LIVE ON-PAW-PER-VIEW" "WBDF v. Bad Dogs of the Empire." (Big Dog Facts ¶ 30; Big Dog Exhibit K). The graphic depicts dog caricatures of two (2) Star Wars villains, "Emperor Pawpetine" and "Bark Maul," fighting two (2) wrestling characters, "Hollywoof Hound Hogan" and "Bone Cold Steve Pawstin," also depicted as dog caricatures. At the bottom of the graphic are the words "BIG DOG SPORTSWEAR. THIS IS A PARODY." (Big Dog Exhibit K). According to Big Dog, the graphic was meant to mock the new "Star Wars" movie coming out at the time, and to do so in multiple arenas. (WWE Exhibit B, p. 34: lines 23-24; WWE Exhibit C, p. 78: lines 10-16). Because it was decided to make wrestlers part of the graphic, it was also meant to parody the WWF and cable television. (WWE Exhibit C, p. 78: lines 19-21). WWE contends this graphic violates its intellectual property rights by, inter alia: (a) featuring an image of STONE COLD STEVE AUSTIN wearing STONE COLD STEVE AUSTIN's characteristic trade dress; (b) featuring STONE COLD STEVE AUSTIN holding a folding chair similar to those chairs often used as props on WWE programming; (c) printing "WBDF" in large block letters at the top of the graphic; and (d) printing "Bone Cold Steve Pawstin" across the image of STONE COLD STEVE AUSTIN. (Am.Cmplnt. ¶ 99). The next graphic marketed by Big Dog is a "Bone Cold Steve Pawstin" graphic featuring a dog caricature of the STONE COLD STEVE AUSTIN character with the words "`Bone Cold' Steve Pawstin" at the top of the graphic and the phrase "Open Up a Can of Woof Ass!" at the bottom. Also, at the bottom of the graphic are the words "BIG DOG SPORTSWEAR. THIS IS A PARODY." (Big Dog Exhibit K). WWE contends this graphic violates its intellectual property rights by, inter alia: (a) featuring an image of STONE COLD STEVE AUSTIN wearing STONE COLD STEVE AUSTIN's characteristic trade dress, specifically an open black vest with the image of the SKULL design (though it's a skull with dog ears) on the left side of the vest with the word "Pawstin" on the right. The dog's face has a goatee, a gold link necklace and a gold hoop earring in his left ear; (b) printing "Bone Cold Steve Pawstin" across the top of the graphic in large blue block letters; (c) printing the words "Open Up a Can of Woof Ass!" at the bottom of the graphic; and 421 (d) printing the letters "WBDF" on the belt buckle of the caricature in reference to WWE's WWF mark. (Am.Cmplnt.¶ 96). A third graphic at issue depicts four (4) caricatures of wrestling characters, "Hollywoof Hound Hogan," "Bone Cold Steve Pawstin," "Goldbark," and "The Underdogger," with WBDF at the top of the graphic and the phrase "The Big Dogs of Wrestling" at the bottom. Also, at the bottom of the graphic are the words "BIG DOG SPORTSWEAR. THIS IS A PARODY." (Big Dog Exhibit K). WWE contends this graphic violates its intellectual property rights by, inter alia: (a) featuring an image of THE UNDERTAKER wearing the characteristic trade dress of THE UNDERTAKER. The dog's face is depicted with a beard and long hair; (b) featuring an image of STONE COLD STEVE AUSTIN wearing STONE COLD STEVE AUSTIN's characteristic trade dress. STONE COLD STEVE AUSTIN is holding a championship belt across his shoulder, and the dog's face is depicted wearing a goatee; (c) printing the words "The Underdogger" across the image of THE UNDERTAKER; and (d) printing the words "Bone Cold Steve Pawstin" across the image of STONE COLD STEVE AUSTIN. (Am.Cmplnt. ¶ 98). The next graphic features three (3) caricatures of wrestling characters "Hollywoof Hound Hogan," "Bone Cold Steve Pawstin," and "The Underdogger," with WBDF in scratch lettering at the top left of the graphic and the phrase "All the Right Moves" down through the center of the graphic. The phrase "All the Right Moves" is surrounded by each of the wrestling characters shown demonstrating a wrestling move on another dog wrestling character. The wrestling moves are named "The Bone Crusher," "The Dog Pounder," and "The Choke Chain." Also, at the bottom of the graphic are the words "BIG DOG SPORTSWEAR. THIS IS A PARODY." (Big Dog Exhibit K). WWE contends this graphic violates its intellectual property rights by, inter alia: (a) featuring an image of STONE COLD STEVE AUSTIN wearing STONE COLD STEVE AUSTIN's characteristic trade dress and performing a wrestling move. The dog's face is depicted wearing a goatee; (b) featuring an image of THE UNDERTAKER wearing the characteristic trade dress of THE UNDERTAKER and performing a wrestling move. The caricature has tattoos covering its arms similar to THE UNDERTAKER. The dog's face is depicted with long hair; (c) printing the words "The Underdogger" beside the image of THE UNDERTAKER; (d) printing the words "Bone Cold Steve Pawstin" beside the image of STONE COLD STEVE AUSTIN; and (e) printing "WBDF" in a lettering style identical to the WWF scratch logo. (Am.Cmplnt. ¶ 100). The fifth Big Dog graphic is a caricature of THE ROCK, again the WWE wrestling character is depicted as a dog, wearing sunglasses and a leather jacket with the name "The Rock-weiler" at the top of the graphic and the phrase "Know Your Role, Ja BONEil" at the bottom of the graphic. Also, at the bottom of the graphic are the words "BIG DOG SPORTSWEAR. THIS IS A PARODY." (Big Dog Exhibit K). 422 WWE contends this graphic violates its intellectual property rights by, inter alia: (a) featuring an image of THE ROCK wearing the trade dress of THE ROCK, specifically a black leather jacket with the image of the BRAHMA BULL design on the sleeve. The dog's face is shown giving the "People's eyebrow," and the nose is the outline of a Brahma Bull; (b) printing the words "The Rock-weiler" across the top of the graphic with the word Rock printed in larger size block letters that appear to be made out of stone; and (c) printing the words "Know Your Role, JaBONEil" at the bottom of the graphic. (Am.Cmplnt.¶ 94). The sixth Big Dog graphic has "WBDF" in scratch lettering at the top of the graphic and the phrase "Smackdown" at the bottom. Between the phrases is an image of two hands smashing a folding chair, with the words "Big Dogs" on it, into the face of a dog with the outline of the dog's face appearing on the seat of the chair. Also, at the bottom of the graphic are the words "BIG DOG SPORTSWEAR. THIS IS A PARODY." (Big Dog Exhibit K). WWE contends this graphic violates its intellectual property rights by, inter alia: (a) printing the letters "WBDF" in red letters across the top of the graphic in a lettering style like the WWF scratch letter logo; (b) printing WWE's "Smackdown" in letters across the bottom of the graphic in the same lettering of WWE's "WWF SMACKDOWN!" design mark; and (c) featuring between the above mentioned writings an image of two hands smashing a folding chair, similar to the chairs used as props on WWE programming, into the face of a dog with the outline of the dog's face appearing through the smashed chair. (Am.Cmplnt.¶ 95). The next Big Dog graphic is a caricature of STONE COLD STEVE AUSTIN, again the WWE wrestling character is depicted as a dog, wearing blue jeans and a black t-shirt with the phrase "Pawstin 3:16" printed on the t-shirt. The figure also has a tail which is wrapped with a bandage. Below the figure are two rattlesnakes, each facing a skull that has dog ears and a tire tread across the face. On and among the snakes is the name "Bone Cold Steve Pawstin," and below the name is the phrase "Because Bone Cold Said So!" Also, at the bottom of the graphic are the words "BIG DOG SPORTSWEAR. THIS IS A PARODY." (Big Dog Exhibit K). WWE contends this graphic violates its intellectual property rights by, inter alia: (a) featuring an image of STONE COLD STEVE AUSTIN wearing STONE COLD STEVE AUSTIN's characteristic trade dress, specifically a black t-shirt with "Pawstin 3:16" printed in white on the front. The dog's face has a goatee, and a gold hoop earring in his left dog ear; (b) printing the words "Bone Cold Steve Pawstin" underneath the image of STONE COLD STEVE AUSTIN in stylized letters in connection with the image of the rattlesnake and the skull design mark; and (c) printing the words "Because Bone Cold Said So!" across the bottom of the graphic, a reference to WWE's common law trademark phrase. (Am.Cmplnt.¶ 97). The final graphic complained of is a design based upon a poster promoting a movie that was to be (and was) released in 423 May of 2001, "The Mummy Returns." The graphic depicts five (5) characters from the movie caricatured as dogs: (a) "Brendan Furasier as Rick O'Collie," (b) "Evelyn Caninevon," (c) "Ardeth Stray," (d) "Imhotdog," and (e) "Scorpion K-9." At the bottom of the graphic are the words "THE DOGGY RETURNS." Situated among the characters is the Big Dog character wrapped like a mummy, and the words "Big Dogs" are printed on the forehead of the "Ardeth Stray" character. Also, at the bottom of the graphic are the words "BIG DOG SPORTSWEAR. THIS IS A PARODY." (Big Dog Exhibit K). Dwayne Johnson, who portrays WWE's THE ROCK character, plays the part of the Scorpion King in the movie. WWE contends the depiction of the Scorpion K-9 on the graphic exploits its intellectual property rights in THE ROCK. (Am. Cmplnt. ¶¶ 113, 114). WWE, further, contends this graphic violates its intellectual property rights by, inter alia: (a) "depicting THE ROCK with a dog's face in such a way as it appears THE ROCK is making his signature facial expression, the People's Eyebrow"; and (b) printing the words "The Rock-Weiler as the Scorpion K-9" next to the caricature of THE ROCK.[5] (Am.Cmplnt. ¶ 114). Big Dog also produces, markets and sells the following products which WWE contends unlawfully exploits and trades on WWE's intellectual property: (a) a beanie doll toy called "The Rockweiler" which depicts a dog dressed in what WWE contends is THE ROCK's characteristic trade dress; (b) a beanie toy called "Steve Pawstin" which depicts a dog dressed in what WWE contends is STONE COLD STEVE AUSTIN's characteristic trade dress;[6] (c) a coffee mug which contains the same image as the "Big Dogs of Wrestling" graphic; (d) a sports bottle which contains the same image as the "Big Dogs of Wrestling" graphic; (e) a sports cap which contains the same image as the Rock-weiler graphic; and (d) a sticker which contains the same image as the Rock-weiler graphic. (Am.Cmplnt. ¶¶ 105, 107-110). WWE argues that Big Dog has blatantly exploited and traded on the intellectual property owned, marketed and licensed by WWE. Big Dog contends that the WBDF merchandise qualifies as parodies or some other form of expressive statements about WWE and its wrestling characters that entitle Big Dog to First Amendment protection in the Court's analysis under copyright and trademark law. Further, Big Dog contends that, whether analyzed under trademark, dilution, copyright or right of publicity law, the WBDF merchandise constitutes a permissible means of expression, and it is entitled to judgment as a matter of law. III. LEGAL STANDARD FOR SUMMARY JUDGMENT Pursuant to FED. R. CIV. P. 56(c), summary judgment shall be granted when 424 there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. To support denial of summary judgment, an issue of fact in dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Id. The court's consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable inferences from the facts must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 180 (3d Cir.1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. 1348. The Second Circuit is instructive in applying these principles to the question of "fair use" in the context of copyright analysis. See Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1257-58 (2d Cir.1986), cert. denied, 481 U.S. 1059, 107 S. Ct. 2201, 95 L. Ed. 2d 856 (1987). Although "fair use is a mixed question of law and fact," Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 560, 105 S. Ct. 2218, 85 L. Ed. 2d 588 (1985), on more than one occasion courts in the Second Circuit have resolved fair use determinations at the summary judgment stage. See, e.g., Maxtone-Graham, 803 F.2d 1253; Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir.), cert. denied, 379 U.S. 822, 85 S. Ct. 46, 13 L. Ed. 2d 33 (1964); Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130 (S.D.N.Y.1968). "The mere fact that a determination of the fair use question requires an examination of the specific facts of each case does not necessarily mean that in each case involving fair use there are factual issues to be tried." Maxtone-Graham, 803 F.2d at 1258 (quoting Meeropol v. Nizer, 417 F. Supp. 1201, 1208 (S.D.N.Y.1976), rev'd in part on other grounds, 560 F.2d 1061 (2d Cir.1977), cert. denied, 434 U.S. 1013, 98 S. Ct. 727, 54 L. Ed. 2d 756 (1978)). The fact-driven nature of the fair use determination suggests that a district court should be cautious in granting Rule 56 motions in this area; however, it does not protect the copyright holder from summary disposition of its claims where there are no material factual disputes. Wright v. Warner Books, Inc., 953 F.2d 731, 735 (2d Cir.1991). In the trademark context, if the record contains no evidence of actual confusion between the parties' marks, the Court can conclude that "no likelihood of confusion exists as a matter of law." See generally V Secret Catalogue, Inc. v. Moseley, 2000 WL 370525, 2000 U.S. Dist. LEXIS 5215 (W.D.Ky.2000). 425 IV. DISCUSSION A. WWE's Copyright Claims WWE contends that Big Dog violated the Copyright Act of 1976 by infringing upon WWE's copyrighted property associated with THE ROCK, STONE COLD STEVE AUSTIN, and the UNDERTAKER. (Am. Cmplnt. Counts I through VI). Copyright infringement is established if the plaintiff proves: (1) that it owned the copyrighted material; and (2) that the copyrighted material was copied[7] by the defendant. Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 290 (3d Cir.1991); Whelan Associates v. Jaslow Dental Laboratory, 797 F.2d 1222, 1231 (3d Cir.1986); Major League Baseball Promotion Corp. v. Colour-Tex, Inc., 729 F. Supp. 1035, 1039 (D.N.J.1990). For the purpose of this Motion for Summary Judgment only, Big Dog assumes that WWE has established the elements required to prove copyright infringement, but contends that any use of WWE's alleged intellectual property was lawful. Federal copyright law provides an exception to the prohibition on reproduction of a copyrighted work where the reproduction qualifies as "fair use." 17 U.S.C. § 107. The fair use doctrine was fashioned as a "guarantee of breathing space" within the confines of copyright that allows for new transformative works that further the public discourse and the free exchange of ideas in order to promote science and the arts. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994). As Justice Story recognized, in truth, in literature, in science and in art, there are, and can be, few, if any, things, which in the abstract sense are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before. Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D.Mass.1845) (No. 4,436). Application of the fair use doctrine "always depends on consideration of the precise facts at hand." Lucent Information Management v. Lucent Technologies, 5 F. Supp. 2d 238, 242 (D.Del.1998) (citing American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 916 (2nd Cir.1995).) The factors that a court should consider when determining whether use of a work in a particular case is a fair use under the statute are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. See 17 U.S.C. § 107. Big Dog argues that its graphics are entitled to a measure of protection under the fair use doctrine as parodies of the WWE property. Although the statute does not specifically list parodies among the categories of potentially "fair" uses, the Supreme Court has authoritatively confirmed the applicability of the fair use doctrine to parodies. Campbell v. Acuff-Rose Music, Inc., 510 U.S. at 579, 114 S. Ct. 1164. In Campbell, the Court initially 426 noted that "parody may or may not be fair use," id. at 581, 114 S. Ct. 1164, and "parody, like any other use, has to work its way through the relevant factors." Id. Specifically relating its first-factor analysis to parodies, the Court stated, "the heart of any parodist's claim to quote from existing material is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." Id. at 580, 114 S. Ct. 1164. (1) The Purpose and Character of the Use The first factor in this fair use analysis requires an examination of two aspects, the character and the purpose, of the Big Dog graphics. Prior to Campbell, courts over emphasized the purpose of the use, finding "every commercial use of copyrighted material [to be] presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright." Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984). The Supreme Court in Campbell, however, has definitively held that a finding of fair use is not barred by the commercial nature of the work. In so holding, the Court stated "the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry ..." Campbell v. Acuff-Rose Music, Inc., 510 U.S. at 584, 114 S. Ct. 1164. There is no issue herein with regard to the commercial purpose of Big Dog's graphics. The Court will therefore move on to the character of the works and whether they are in fact parodies. A critical inquiry regarding this first fair use factor is whether the second work "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is `transformative.'" Campbell, 510 U.S. at 579, 114 S. Ct. 1164. With respect to parody, the Supreme Court concluded: Parody has an obvious claim to transformative value, as Acuff-Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work and, in the process, creating a new one... Thus, ... parody, like other comment or criticism, may claim fair use under § 107. Id.; see also Fisher v. Dees, 794 F.2d 432 (9th Cir.1986) (finding a parody entitled "When Sonny Sniffs Glue" to be a fair use of the song, "When Sunny Gets Blue"); Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D.N.Y.), aff'd, 623 F.2d 252 (2d Cir.1980) (finding "I Love Sodom," a Saturday Night Live parody, to be a fair use of "I Love New York"). The Big Dog graphics therefore must alter WWE's intellectual property with new expression, meaning or message. It is undisputed that in creating Big Dog's WBDF graphics, the artist used photographic references of WWE's wrestling characters. (WWE Exhibit B, p. 25: lines 18-25; p. 26: lines 1-2; p. 29: lines 5-21). Specifically, the artist would get a series of pictures of the wrestlers, generally from magazines, and using all the pictures as a reference, the artist would sketch caricatures of the wrestlers and scan them into the computer for further design. (Id.). Because the new work must reference the copyrighted material, a "[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or its collective victims') imagination ..." Campbell, 510 U.S. at 580-581, 114 S. Ct. 1164. Moreover, to qualify as a parody under the Supreme Court's definition, the newly created 427 work must comment upon or criticize the original copyrighted work. WWE argues that the Big Dog graphics are not parodies because they do not comment on the original copied works. In response to WWE's interrogatories requesting Big Dog to identify and explain in detail the comment or criticism Big Dog contended was made by the WBDF merchandise, Big Dog responded with the following answer for each of the alleged infringing graphics: "Said product provides social commentary and humorous commentary on, and ridicule and poke fun at, the larger-than-life, intimidating, self-serious fierce and violent images and persona of WWF professional wrestling." (WWE Exhibit AA). WWE further argues that such answers act as a concession that Big Dog's WBDF merchandise makes no comment or criticism on the original works. In essence WWE contends that Big Dog admits its alleged parodic caricature of THE ROCK makes no comment specific to WWE's original works depicting THE ROCK and/or THE ROCK character itself; that Big Dog's alleged parodic caricature of STONE COLD STEVE AUSTIN makes no comment specific to WWE's original works depicting STONE COLD STEVE AUSTIN and/or the STONE COLD STEVE AUSTIN character itself; that Big Dog's alleged parodic caricature of the UNDERTAKER makes no comment specific to WWE's original works depicting the UNDERTAKER and/or the UNDERTAKER character itself; etc. The Court finds WWE's interpretation of Big Dog's interrogatory responses unreasonably narrow, and its argument untenable. There is adequate deposition testimony from Big Dog indicating the nature of the commentary relative to the WBDF merchandise.[8] (See e.g. WWE Exhibit A, pp. 64-78; WWE Exhibit B, pp. 29-50; WWE Exhibit C, pp. 77-91). A visual examination of the graphics themselves is evidence of the humor, ridicule, and/or comment on the over-hyped world of professional wrestling. The graphics depict dogs in wrestling garb, with beards and goatees, one dog wearing an earring, with tattoos, wearing leather jackets and vests, wearing sunglasses, smashing each other with chairs, and in fact, wrestling. The WBDF merchandise can certainly be perceived as commenting, through mockery or derision, on "... the larger-than-life, intimidating, self-serious fierce and violent images and persona of WWF professional wrestling." In Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F. Supp. 2d 410 (S.D.N.Y.2002), Hilfiger argued that the Nature Labs alleged parody regarding pet perfume made no comment about Hilfiger, and was therefore not entitled to First Amendment protection from Hilfiger's trademark infringement claim. Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F.Supp.2d at 415. Similarly, Hilfiger argued that the general partner of Nature Labs, John Harris, was unable to point to a specific comment about Hilfiger made by its products. The court stated that "[a]lthough Harris had difficulty expressing the parodic content of his communicative message, courts have explained that: `Trademark parodies ... do convey a message. The message may be simply that business and product images need not always be taken too seriously; a trademark parody reminds us that we 428 are free to laugh at the images and associations linked with the mark. The message also may be a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark's owner.'" Id. citing L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 34 (1st Cir.1987); see also Anheuser-Busch, Inc. v. L & L Wings, Inc., 962 F.2d 316, 321 (4th Cir. 1992). The threshold question when fair use is raised in defense of parody is whether the parodic character can be perceived. Campbell, 510 U.S. at 582, 114 S. Ct. 1164. While the Court has no comment on the quality of the humor, it can certainly perceive the WBDF merchandise as commenting on, or criticizing, the original works. Big Dog transforms the pseudoferocious nature of professional wrestling into a humorous "dog-fight." Moreover, there is no issue of fact regarding whether the WBDF merchandise refers to the original, or to whether the merchandise pokes fun at the original works. In addition, the sale of the parodic WBDF merchandise for their own sake is entitled to more indulgence that an original work used to advertise a product. Campbell, 510 U.S. at 585, 114 S. Ct. 1164. The Court will therefore weigh the first factor in favor of Big Dog. (2) The Nature of the Copyrighted Work The second statutory factor, "the nature of the copyrighted works," 17 U.S.C. § 107(2), recognizes that some works are closer to the core of intended copyright protection than others, and therefore fair use is more difficult to establish when those works are copied. Campbell, 510 U.S. at 586, 114 S. Ct. 1164. This Court certainly questions the originality and creativity of the WWE characters and storylines. The good guys against the bad guys certainly precedes the establishment of professional wrestling, and regarding wrestling's "original" characters, THE ROCK followed "Hulk Hogan" who followed "the Macho Man" who followed "the Sheik" who followed "Andre the Giant," etc. We are not talking about the literary works of Victor Hugo. However, it is not disputed that WWE has spent time and effort on the development of its characters, storylines and persona, and the Court does not question its right to protection. Because "parodies almost invariably copy publicly known, expressive works," this factor provides little help in determining whether the parody is a fair use of the original. Campbell, 510 U.S. at 586, 114 S. Ct. 1164, Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 115 (2d Cir. 1998), Dr. Seuss Enterprises, L.P. v. Penguin Books, 109 F.3d 1394, 1402 (9th Cir. 1997). Drawing all reasonable inferences from the facts in favor of WWE, the Court finds the second factor favors WWE, but only minimally. (3) The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole The third factor asks whether "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," 17 U.S.C. § 107(3), are reasonable in relation to the purpose of the copying. As a general rule: "a work composed primarily of an original, particularly its heart, with little added or changed, is more likely to be a merely superseding use, fulfilling demand for the original." Campbell, 510 U.S. at 588-589, 114 S. Ct. 1164. The application of this guideline to parody, however, is particularly difficult. The Supreme Court has stated: Parody's humor, or in any event its comment, necessarily springs from recognizable allusion to its object through 429 distorted imitation. Its art lies in the tension between a known original and its parodic twin. When parody takes aim at a particular original work, the parody must be able to "conjure up" at least enough of that original to make the object of its critical wit recognizable. Id.; see e.g. Rogers v. Koons, 960 F.2d 301, 310 (2d Cir.), cert. denied, 506 U.S. 934, 113 S. Ct. 365, 121 L. Ed. 2d 278 (1992)("We have consistently held that a parody entitles its creator under the fair use doctrine to more extensive use of the copied work than is ordinarily allowed ...."); Elsmere Music, Inc. v. National Broadcasting Co., 623 F.2d 252 (2d Cir.1980)("An author is entitled to more extensive use of another's copyrighted work in creating a parody than in creating other fictional or dramatic works."); Berlin v. E.C. Publics., Inc., 329 F.2d 541, 545 (2d Cir.1964) (holding that because defendants had taken no more of the original songs than was necessary to "recall or `conjure up' the object of his satire" and because the parody had "neither the intent nor the effect of fulfilling the demand for the original," no infringement had taken place). There is no dispute that Big Dog used actual photographs to copy the recognizable characteristics of THE ROCK, STONE COLD STEVE AUSTIN, and the UNDERTAKER. The question is whether Big Dog took more than was reasonably required to "conjure up" the characters and persona of WWE's professional wrestling. The Supreme Court instructs, however, that a parodist's copying of more than is necessary to conjure up the original will not necessarily tip the third factor against fair use. Campbell, 510 U.S. at 588, 114 S. Ct. 1164. Once Big Dog has taken enough to assure identification with the WWE property, the reasonableness of taking additional aspects of the original property depends on the extent to which the overriding purpose and character of the WBDF merchandise is to parody the original, as well as "the likelihood that the parody may serve as a market substitute for the original." Id., see also Leibovitz v. Paramount Pictures Corp., 137 F.3d at 116. Based on the foregoing, even if Big Dog has "copied every recognizable characteristic" of the WWE characters, this third factor carries very little, if any, weight against fair use when the first and fourth factors favor the parodist. See Leibovitz v. Paramount Pictures Corp., 137 F.3d at 116. (4) The Effect on the Potential Market for or Value of the Copyrighted Work The fourth fair use factor is "the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107(4). Because parody must be a transformative use, a parody is unlikely to serve as a market substitute for the original. Campbell, 510 U.S. at 592, 114 S. Ct. 1164 ("It is more likely that the new work will not affect the market for the original in any way cognizable under this factor, that is, by acting as a substitute for it (superseding its objects). This is so because the parody and the original usually serve different market functions.") (internal quotation marks and citations omitted). Numerous courts have relied on this recognition that separate markets exist in concluding that a parody inflicted no harm on the market for a particular original. For example, in Fisher v. Dees, 794 F.2d 432, 438 (9th Cir.1986), the court held that demand for the song, "When Sunny Gets Blue," a nostalgic reminiscence about lost love, was not supplanted by the parody "When Sonny Sniffs Glue," a song describing the physical aftermath of glue-sniffing. Similarly, in Eveready Battery Co. v. Adolph Coors Co., 765 F. Supp. 440, 448 (N.D.Ill.1991), the district court held that a 430 beer commercial that parodied a battery commercial did not usurp the market for the first commercial. See also Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741, 747 (S.D.N.Y.), aff'd, 623 F.2d 252 (2d Cir.1980) (finding that the song, "I Love Sodom," did not have an impermissible market effect on the demand for the song, "I Love New York."). WWE argues that the WBDF merchandise circumvents the legal standards for licensing of its intellectual property and, therefore, substantially harms one of WWE's significant revenue streams.[9] WWE however is not entitled to a licensing fee for a work that otherwise qualifies for the fair use defense as a parody. See Leibovitz v. Paramount Pictures Corp., 137 F.3d at 117. The Court finds the fourth factor in favor of Big Dog. Based on the foregoing, it is not difficult to determine that the balance in this instance markedly favors Big Dog. The Court finds that the Big Dog's graphics are parodies of the WWE property, entitled to fair use under the statute. As such, Big Dog is entitled to summary judgment on WWE's copyright infringement claims set forth at Counts I through VI of the Amended Complaint. B. WWE's Claims Under the Lanham Act To prove unfair competition under Sections 32 or 43(a) of the Lanham Act, 15 U.S.C. § 1051 et seq., WWE must prove that (1) it owns the mark in question; (2) the mark is valid and legally protectable; and (3) Big Dog's use of the mark to identify goods or services is likely to create confusion concerning their origin. See Checkpoint Sys., Inc. v. Check Point Software Techs., Inc., 269 F.3d 270, 279 (3d Cir.2001), A & H Sportswear v. Victoria's Secret Stores, 237 F.3d 198, 210 (3d Cir. 2000). Though Big Dog does not concede that WWE's alleged marks are valid and entitled to protection under the law, for the purpose of this Motion for Summary Judgment only, Big Dog asks the Court to assume that WWE has valid protectable rights in the trademarks, trade dress and rights of publicity alleged in the Amended Complaint. Because the first and second elements are undisputed, the questions herein involve the delineation and application of standards for the third factor, the evaluation of likelihood of confusion. WWE argues that the WBDF merchandise creates a likelihood of confusion as to WWE's sponsorship or approval of the Big Dog merchandise. Big Dog essentially defends on two fronts: (1) the Big Dog graphics are parodies or some other form of expressive statements about the WWE and its wrestling characters and are protected under the First Amendment; and (2) Big Dog's parodies of WWE's alleged intellectual property are not likely to cause confusion in the marketplace. This Court has found herein that Big Dog's graphics are parodies, however, we cannot allow First Amendment principles to usurp Federal trademark law. In fact, trademark law permissibly regulates misleading commercial speech. See Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F.Supp.2d at 415 (citations omitted). Because Big Dog contends it is merely engaging in a parody of WWE's marks, mixed elements of traditional 431 trademark analysis and free speech policies are involved in the overall analysis. "In a traditional trademark infringement suit founded on the likelihood of confusion rationale, the claim of parody is not really a separate `defense' as such, but merely a way of phrasing the traditional response that customers are not likely to be confused as to source, sponsorship or approval." 3 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 31:153 (4th ed.2002). Parody, therefore, is not an affirmative defense, but only another factor to be considered in determining the likelihood of confusion.[10] Whether a customer is confused is the ultimate question. If Big Dog employs a successful parody, the customer would not be confused, but amused. See Jordache Enters., Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1486 (10th Cir.1987). The keystone of parody is imitation, but must convey two simultaneous and contradictory messages: that it is the original, but also that it is not the original and is instead a parody. To the extent that it does only the former but not the latter, it is not only a poor parody but also vulnerable under trademark law, since the customer will be confused. Nike, Inc. v. Just Did It Enters., 6 F.3d 1225, 1228 (7th Cir. 1993) quoting Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing Group, 886 F.2d 490, 494 (2d Cir.1989). As a practical matter, we must simply ask whether a retail customer buying a t-shirt from Big Dog with the dog/wrestler caricatures and/or the WBDF logo or scratch logo design would likely believe that it is in some way related to, connected or affiliated with, or sponsored by, WWE. "To prove likelihood of confusion, plaintiffs must show that `consumers viewing the mark would probably assume the product or service it represents is associated with the source of a different product or service identified by a similar mark.'" Checkpoint Sys., Inc. v. Check Point Software Techs., Inc., 269 F.3d 270, 280 (3d Cir.2001)(quoting Scott Paper Co. v. Scott's Liquid Gold, Inc., 589 F.2d 1225, 1229 (3d Cir.1978)). The Third Circuit Court of Appeals devised a non-exhaustive list of ten factors, commonly known as the "Lapp" factors, to consider in determining whether there is a likelihood of confusion between marks. Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 462 (3d Cir.1983). These factors are used to test for likelihood of confusion for goods that directly compete with each other, as well as for non-competing goods. A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d at 215. The factors are: (1) The degree of similarity between the owner's mark and the alleged infringing mark; (2) the strength of the owner's mark; (3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; (4) the length of time the defendant has used the mark without evidence of actual confusion; (5) the intent of the defendant in adopting the mark; (6) the evidence of actual confusion; (7) whether the goods, though not competing, are marketed through the 432 same channels of trade and advertised through the same media; (8) the extent to which the targets of the parties' sales efforts are the same; (9) the relationship of the goods in the minds of consumers because of the similarity of the functions; and (10) other facts suggesting that the consuming public might expect the prior owner to manufacture a product in the defendant's market or that he is likely to expand into that market. Id. at 215; Fisons Horticulture, Inc. v. Vigoro Indus., Inc., 30 F.3d 466, 473 (3d Cir.1994); Scott Paper Co., 589 F.2d at 1231. Application of the Lapp factors is a qualitative inquiry. A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d at 215. The Court must utilize the appropriate factors relevant to the instant case, and may properly accord different weight to different factors depending on the particulars of the action. Id. (1) Similarity of the Marks The test for mark similarity is "whether the labels create the same overall impression when viewed separately." Fisons Horticulture, Inc. v. Vigoro Indus., Inc., 30 F.3d at 476 quoting Banff, Ltd. v. Federated Dep't Stores, Inc., 841 F.2d 486, 492 (2d Cir.1988). Courts must "compare the appearance, sound and meaning of the marks," Harlem Wizards Entm't Basketball, Inc. v. NBA Props., Inc., 952 F. Supp. 1084, 1096 (D.N.J.1997), to determine whether the "average consumer, on encountering one mark in isolated circumstances of marketplace and having only [a] general recollection of the other, would likely confuse or associate the two." Checkpoint Sys., Inc. v. Check Point Software Techs., Inc., 269 F.3d at 281; Fisons, 30 F.3d at 477-78. When a parody is at issue however, "[i]f the difference in wording or appearance of the designation together with the context and overall setting is such as to convey to the ordinary viewer that this is a joke, not the real thing, then confusion as to source, sponsorship, affiliation or connection is unlikely." 5 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 31:155 (4th ed.2002). There is no dispute that the graphics of the WBDF merchandise are similar to the WWE marks. That is inherent in the character and purpose of the Big Dog graphics. To be effective as a parody, the Big Dog graphics must convey that the caricatures are WWE wrestling characters, and that they are not the original characters. WWE argues that Big Dog uses several of its marks without alteration, such as the KNOW YOUR ROLE and WWF SMACKDOWN[11] marks, and the BRAHMA BULL and RATTLESNAKE design marks, and the remainder with little or "barely imperceptible" alterations, such as OPEN A CAN OF WHOOP ASS (used as "Open a Can of Woof Ass"), BECAUSE STONE COLD SAID SO (used as "Because Bone Cold Said So"), AUSTIN 3:16 (used as "Pawstin 3:16"), JABRONI (used as "JaBONEi"), and the UNDERTAKER (used as the "Underdogger"). In addition, WWE contends that the marks are used in conjunction with other identifiers of WWE, including images and characters. The Court, however, cannot look at the individual marks and design marks as they stand, but must consider the overall impression 433 of the graphics. First let us examine Big Dog's "Bone Cold Steve Pawstin" graphic that is on the back of a t-shirt filed with the Court as Big Dog Exhibit L. The t-shirt contains the "Big Dog" trademark and dog design logo on the front left of the t-shirt, as well as on the neck label, with the graphic on the back of the t-shirt featuring a dog caricature of the STONE COLD STEVE AUSTIN character with the words "`Bone Cold' Steve Pawstin" at the top of the graphic and the phrase "Open Up a Can of Woof Ass!" at the bottom. (Big Dog Exhibits L and K). The phrase is an obvious "dog" pun of Austin's "Open Up a Can of Whoop Ass!" phrase. Comparing the graphic to the images of STONE COLD STEVE AUSTIN at document nos. WWFE 01554 and WWFE 01569 of WWE Exhibit U, as well as with the photographs contained in WWE Exhibit O, it must be noted first that WWE's images are photographs, while Big Dog's caricature is an obvious sketch. In the WWE photographs of STONE COLD STEVE AUSTIN, Austin is in a variety of poses. The majority show him facing the camera wearing a black vest and a heavy gold chain. Austin has an earring in his left ear in some the pictures and no earring in others. The black vest he is wearing has the words "AUSTIN" vertically down the right side of the vest, an image of a skull on the upper left side, and lettering on the bottom left[12]. In the Big Dog graphic, Pawstin is a dog with floppy ears, a nose in the vague outline of a bull's head, a goatee and its hands, or modified paws, on its hips. Pawstin is facing forward with its head is cocked to the right showing more of the left side of its head and face. Pawstin is wearing a black vest with the words "PAWSTIN" down the right side of the vest and a doggie skull, a skull featuring floppy ears and a nose similar to Pawstin's, on the left side of the vest. The doggie skull is surrounded by the words "BIG DOGS," and the skull itself has obvious differences from the one on AUSTIN's vest, as well as differences from the many SKULLS depicted in the WWE merchandise catalogs. (See WWE Exhibit U). Moreover, the coloring of the lettering is dissimilar. Austin is wearing a gold chain around his neck and in some of the photographs, a large ring on the ring finger of his right hand. Pawstin is also wearing a gold chain around its neck, but Pawstin's chain features an attached dog bone charm. Pawstin has an earring in its floppy left ear, and Pawstin is wearing a belt with "WBDF" on the buckle. We can make a similar comparison of Big Dog's "Pawstin 3:16" graphic that is on the back of a t-shirt filed with the Court as Big Dog Exhibit L. The t-shirt contains the graphic on the back of the t-shirt again featuring STONE COLD STEVE AUSTIN depicted as a dog, and wearing blue jeans with a black t-shirt with the phrase "Pawstin 3:16" printed on the t-shirt. The figure also has a tail which is wrapped with a bandage. Below the figure are two rattlesnakes, each facing a skull that has dog ears, a dog tongue and a tire tread across the face[13]. On and among the snakes is the name "Bone Cold Steve Pawstin," and below the name is the phrase "Because Bone Cold Said Sol" (Big Dog Exhibits K and L). Again, there are many dissimilarities with the WWE's STEVE AUSTIN photographs. None of the photographs 434 represent an exact model for the "Pawstin" graphic. The written marks utilized by the parties are also very similar, with Big Dogs' phrases having obvious canine connotations; Big Dog using "Pawstin" for AUSTIN and the phrase "Woof Ass" as a humorous take on the phrase "Whoop Ass" used by WWE. The Big Dog phrase "Open Up a Can of Woof Ass!" is also an obvious play on Austin's allegedly popular "Because Stone Cold Said So!" There are also dissimilarities in the coloring and the typeface of the phrases. Further, at the bottom of the graphic are the words "BIG DOG SPORTSWEAR. THIS IS A PARODY." As another example, the Court will examine Big Dog's "Rock-weiler" graphic that is on the back of a t-shirt filed with the Court as Big Dog Exhibit L. The t-shirt contains the "Big Dog" trademark and dog design logo on the front left of the t-shirt, as well as on the neck label, with the graphic on the back of the t-shirt featuring dog a caricature of THE ROCK, wearing sunglasses and a leather jacket with the name "The Rock-weiler" at the top of the graphic and the phrase "Know Your Role, Ja BONEi!" at the bottom of the graphic. (Big Dog Exhibits K and L). Further, at the bottom of the graphic are the words "BIG DOG SPORTSWEAR. THIS IS A PARODY." The Court could not find any pictures of THE ROCK in either WWE Exhibit O, WWE Exhibit U, or WWE Exhibit X that could have served as a precise model for Big Dog's Rockweiler graphic. Therefore, the Court compared the Big Dog graphic to pictures of the Rock and associated phrases in the WWE catalogs (WWE Exhibt U), the video, (WWE Exhibt Y), and the included magazine pictures and articles. (WWE Exhibits O and X). Again, the most obvious difference is that WWE's images of THE ROCK are photographs of Dwayne Johnson, while Big Dog's "Rock-weiler" graphic is a sketch of a dog caricatured as the WWE character. Again, the dominant portion of the "Rock-weiler" graphic, like all of Big Dog's graphics, is the fact that the image is a dog portraying a wrestler. The dog is wearing sunglasses and appears to be raising an eyebrow. WWE complains that the eyebrow is one of THE ROCK's facial expressions. It may be true, but it remains obvious that the Big Dog graphic is a dog, not THE ROCK. WWE also complains that Big Dog used the BRAHMA BULL design mark without alteration. A review of WWE's exhibits however show a brahma bull in more than one style. There is a style that looks very similar to the image of the National Basketball Association's Chicago Bulls' emblem, and there is an outline of a bull that looks similar to the emblem of the University of Texas. Further, there are also caricatures of bulls, one of which is a caricature of THE ROCK with a head of a brahma bull. (WWE Exhibt U document no. WWFE 01560). WWE also contends that Big Dog is using many of its trademark phrases with little or no alteration. As mentioned above, Big Dog uses obvious canine connotations in putting its own spin on the WWE's phrases. The Court of Appeals for the Seventh Circuit had to make a determination regarding the likelihood of confusion of similar marks on apparel in Nike, Inc., supra. In making a determination whether apparel with the word MIKE along with the familiar Nike "whoosh" emblem created confusion with consumers looking to buy "Nike" apparel with the "whoosh" emblem, the Seventh Circuit stated: After examining the size of the word MIKE and the mail-order form used for customer purchasing, we cannot conclude 435 ... that as a matter of law the parody and trademark are so similar as to confuse the consumer. Yes, they are similar; but similarity alone does not end the inquiry. A jury could find that MIKE and NIKE, in text, meaning, and pronunciation, are not so similar as to confuse consumers, especially when making the decision to purchase or not to purchase. Nike, Inc. v. Just Did It Enters., 6 F.3d at 1230. The same is evident here. Is it possible for the phrases "JaBONEi" to be confused with "JABRONI," for "Bone Cold Steve Pawstin" to be confused with "STONE COLD STEVE AUSTIN," for the "Underdogger" to be confused with the "UNDERTAKER," or for "Pawstin 3:16" to be confused with "AUSTN 3:16"? Yes, it is certainly possible, especially when viewed from a distance. However, the difference in wording and appearance of the phrases together with the use of dogs as wrestling characters conveys to the ordinary consumer that this is an obvious joke. Moreover, a consumer would certainly not confuse the block lettered "WBDF" with the block logo "WWF." Nor are the scratch lettered "WBDF" confusingly similar to WWE's scratch logo. The "WWF" scratch logo is very distinct, it is a large "W" with a smaller "W" tucked inside the larger "W" and the "F" is made up of the right wing of the "W" with two horizontal slashes across it to form the "F". This Court does not believe that a consumer would be confused when making a decision to purchase or not to purchase the goods of either party. After a comparison of all Big Dog's graphics with the WWE property, the Court has come to similar conclusions. All of the names and phrasing used by Big Dog are modified to make obvious references to dogs. Viewed in their totality, Big Dog's graphics, though similar, are not sufficiently similar to WWE's in appearance, sound or meaning to create a likelihood of confusion. "[W]hile the similarity of the words used in the mark[s] would support an inference of likelihood of confusion, ... the striking dissimilarities in design outweigh any similarities." Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1485 (10th Cir.1987). (2) Strength of the Owner's Mark There is no dispute that WWE's marks are well known, well recognized and popular. Usually, such a strong mark would favor the plaintiff in a trademark case.[14] The general argument is that because WWE's marks are deeply implanted in the consumers' minds, it is more likely that Big Dog's marks will conjure up the image of WWE's products instead of Big Dogs'. See, e.g., Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d 497, 503 (2d Cir.1996); McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1132 (2d Cir.1979); MGM-Pathe Communications Co. v. Pink Panther Patrol, 774 F. Supp. 869, 874 (S.D.N.Y. 1991). However, it is the strength of WWE's marks which make them objects of Big Dog's parodies. Big Dog's parodic use, therefore, does not necessarily lead to confusion. In Yankee Publishing Inc. v. News America Publishing Inc., 809 F. Supp. 267, 273 (S.D.N.Y.1992), the District Court stated "where the plaintiff's mark is being used as part of a jest or commentary ... [and] both plaintiff['s] and defendant's marks are 436 strong, well recognized, and clearly associated in the consumers' mind with a particular distinct ethic ... confusion is avoided ...." Obviously, Big Dog's mark has its own strength in the market place. They have been in business for several years, and have designed and sold a multitude of irreverent, humorous graphics over the years. (See Big Dog Facts ¶¶ 17, 21 and 22, Big Dog Exhibits J and R, and WWE Exhibits E, I and CC). The WBDF merchandise is simply another in a long line of Big Dog jokes. Moreover, this brand of humor has become associated with the Big Dog brand. Therefore, consumers of Big Dog's WBDF merchandise, all of which display the words "BIG DOG SPORTSWEAR. THIS IS A BARODY," are likely to see the graphics as the jokes they were intended. Therefore, the clarity of Big Dog's parodic intent, and the widespread familiarity and strength of WWE's marks, weigh against the likelihood of confusion as to source or sponsorship between Big Dog's WBDF merchandise and WWE's intellectual property. (3) The Price of the Goods and Other Factors Indicative of the Care and Attention Expected of Consumers When Making a Purchase It is undisputed that goods at issue are relatively inexpensive, the most expensive being t-shirts selling for $19.95. (WWE Exhibits u and CC). Where the relevant products are expensive, or the buyer class consists of sophisticated or professional purchasers, courts have generally not found Lanham Act violations. Versa Prods., 50 F.3d at 204 ("Inexpensive goods require consumers to exercise less care in their selection than expensive ones. The more important the use of the product, the more care that must be exercised in its selection.") Obviously, the price levels are important in determining the amount of care the reasonably prudent buyer will use. "If the goods or services are relatively expensive, more care is taken and buyers are less likely to be confused as to source or affiliation." 5 MCCARTHY ON TRADEMARKS, § 23:95; see also Astra Pharm. Prods., Inc. v. Beckman Instruments, Inc., 718 F.2d 1201, 1206-07 (1st Cir.1983) (expensive health care equipment elevated concern of purchasers). Similarly, where the relevant buyer class is composed solely of professional, or commercial purchasers: [I]t is reasonable to set a higher standard of care than exists for consumers. Many cases state that where the relevant buyer class is composed of professionals or commercial buyers familiar with the field, they are sophisticated enough not to be confused by trademarks that are closely similar. That is, it is assumed that such professional buyers are less likely to be confused than the ordinary consumer. 3 MCCARTHY ON TRADEMARKS, § 23:101; see also Ford Motor Co., 930 F.2d at 293 ("Professional buyers, or consumers of very expensive goods, will be held to a higher standard of care."); Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 128 (4th Cir.1990) ("In a market with extremely sophisticated buyers, the likelihood of consumer confusion cannot be presumed on the basis of the similarity in trade name alone."); Oreck Corp. v. U.S. Floor Sys., Inc., 803 F.2d 166, 173-74 (5th Cir.1986) (business purchasers of expensive products not likely to confuse goods with similar marks). Though WWE admits its fans are extremely knowledgeable about the storylines and personalities of the WWE wrestling characters (Big Dog Facts ¶ 41), the Court cannot classify them as "sophisticated" 437 purchasers.[15] At best, the purchasing class may be classified as mixed. In that case, the Third Circuit would not hold the general class to a high standard of care. Ford Motor Co., 930 F.2d at 293 ("When the buyer class is mixed, the standard of care to be exercised by the reasonably prudent purchaser will be equal to that of the least sophisticated consumer in the class."). Though it seems highly unlikely, it is not inconceivable that a WWE fan would confuse WBDF merchandise as affiliated with WWE. Although the fan would have to wander into a Big Dog retail establishment or the Big Dog internet site to come across the merchandise. The third Lapp factor will therefore be weighed in favor of WWE. (4) and (6) The Length of Time the Mark was Used Without Evidence of Actual Confusion, and Evidence of Actual Confusion Evidence of actual confusion is not required to prove likelihood of confusion. Checkpoint Sys., Inc. v. Check Point Software Techs., Inc., 269 F.3d at 291 citing Versa Prods., 50 F.3d at 205; Fisons, 30 F.3d at 476 ("While evidence of actual confusion would strengthen plaintiff's case, it is not essential."). The Third Circuit recognizes the difficulty in finding evidence of actual confusion, therefore, any evidence of actual confusion is highly probative of the likelihood of confusion. Checkpoint Sys., Inc. v. Check Point Software Techs., Inc., 269 F.3d at 291; see also Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 612 (7th Cir.1965) ("Since reliable evidence of actual confusion is difficult to obtain in trademark and unfair competition cases, any such evidence is substantial evidence of likelihood of confusion."). However, evidence of "isolated" or "idiosyncratic" incidents of actual confusion need not be given much weight; "ownership of a trademark does not guarantee total absence of confusion in the marketplace." A & H Sportswear v. Victoria's Secret Stores, 237 F.3d at 227 (quoting Scott Paper Co. v. Scott's Liquid Gold, Inc., 589 F.2d 1225, 1231 (3d Cir.1978)). Further, the Third Circuit allows that if Big Dog's WBDF merchandise has been sold for an appreciable period of time without evidence of actual confusion, "... one can infer that continued marketing will not lead to consumer confusion in the future. The longer the challenged product has been in use, the stronger this inference will be." Id. quoting Versa Prods., 50 F.3d at 205. The parties herein agree that there is no evidence of actual confusion. It is also undisputed that WWE was not aware of the WBDF merchandise for several years after it was introduced into the marketplace. WWE's Vice President of Consumer products, Donna Goldsmith, WWE's Chief Marketing Officer, Julie Hoffman, and THE ROCK, Dwayne Johnson, had not seen any of the WBDF merchandise until their depositions in November and December of 2001. (Big Dog Facts ¶¶ 45 and 47). Tellingly, in the places a consumer has to look to purchase Big Dog merchandise, the consumer would find the WBDF merchandise alongside 438 other Big Dog merchandise which parody several other popular entities, including celebrities, sports figures, movies, etc. Not only does this alert the consumer that the WBDF merchandise is a lampoon, but it is also strong evidence adverse to a likelihood of confusion. Therefore, because there is no evidence of actual confusion, and based upon the permitted inference regarding Big Dog's marketing of the WBDF merchandise for a considerable period of time without confusion, the Court will weight this factor in Big Dog's favor.[16] (5) Big Dog's Intent in Adopting the Mark The "intent" inquiry in a "Lapp" analysis is only relevant to the extent it bears on the likelihood of confusion. A & H Sportswear v. Victoria's Secret Stores, 237 F.3d at 225. The Third Circuit has held that "a defendant's intent to copy, without more, is not sufficiently probative of the defendant's success in causing confusion to weigh such a finding in the plaintiff's favor; rather defendant's intent will indicate a likelihood of confusion if an intent to confuse consumers is demonstrated via purposeful manipulation of the junior mark to resemble the senior." Id. at 225-226. Moreover, the weight of this factor is somewhat diminished in the context of parody as all parodists of consumer products "intend to select" the products' mark to make their comments. Mattel, Inc. v. MCA Records, Inc., 28 F. Supp. 2d 1120, 1151 (C.D.Cal.1998) aff'd 296 F.3d 894 (9th Cir.2002); see also, Jordache Enterprises, 828 F.2d at 1486; Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing Group, 886 F.2d at 494 (recognizing the need to balance First Amendment interests against likelihood of confusion, in part because it "allows greater latitude for works such as parodies, in which expression, and not commercial exploitation of another's trademark, is the primary intent"). The record is replete with evidence of Big Dog's intent to parody the WWE. Further, each of Big Dog's graphics contain the Big Dog trademark and/or its famous dog design logo, as well as the disclaimer "THIS IS A PARODY." Based on the foregoing, the Court must weigh factor (5) in favor of Big Dog. (7) Whether the Goods are Marketed Through the Same Channels of Trade Courts have recognized that "the greater the similarity in advertising and marketing campaigns, the greater the likelihood of confusion." Checkpoint Sys., Inc. v. Check Point Software Techs., Inc., 269 F.3d at 288 quoting Acxiom Corp. v. Axiom, Inc., 27 F. Supp. 2d 478, 502 (D.Del. 1998). Applying this factor, courts must examine the manner in which the parties market and sell their products. It is undisputed that WWE merchandise and Big Dog merchandise are sold through separate and distinct channels. WWE merchandise is sold at the venues of its live shows, through its own website and catalog, and through selective licensees 439 who place the merchandise in retail stores such as K-Mart, Costco, Wal-Mart and Target. (Big Dog Fact ¶ 8). More importantly, WWE gets extremely broad exposure to its products through its television and pay-per-view programming, and its live arena events. (WWE Additional Material Facts ¶¶ 56 and 61). WWE is the number one pay-per-view provider in the world with thirty-four (34) million viewers in 2001. (WWE Exhibit R, p. 9). In 2001, WWE held two hundred twelve (212) live events in one hundred (100) cities throughout the United States, Canada and England. These live events were held in forty-seven (47) of the top fifty (50) media markets. (WWE Exhibit R, p. 11). WWE publishes two (2) monthly magazines, "World Wrestling Entertainment Magazine" and "Raw Magazine," that total over five (5) million readers combined. (WWE Exhibit R, p. 10). In addition, its characters have been featured in several other magazines and on non-WWE television programs. (WWE Exhibits R, X and Y). There is no evidence in this case that Big Dog has this type of exposure. Big Dog sells its WBDF merchandise only in its Big Dog retail stores, and through its website and catalog. Each outlet only sells Big Dog merchandise. (Big Dog Fact ¶ 19). One would not wander into a Wal-Mart and find WBDF merchandise right next to WWE merchandise. Therefore, a consumer must make a choice to visit a Big Dog retail, store, go to its website, or order through the Big Dog catalog to purchase WBDF merchandise. Based upon the separate and distinct channels of trade and the disparate marketing exposure, this factor must be weighed against a likelihood of confusion. (8) The Extent to Which the Targets of the Parties' Sales Efforts are the Same WWE argues that the same consumer market is targeted by both WWE and Big Dog. The Third Circuit has recognized that when parties target their sales efforts to the same consumers, there is a stronger likelihood of confusion. Checkpoint Sys., Inc. v. Check Point Software Techs., Inc., 269 F.3d at 289. It is undisputed that the "attitude" and "humor" of both WWE's merchandise and Big Dog's merchandise are important aspects of their respective markets. It is also not disputed that the products of both parties' products are irreverent to certain societal postures. Though WWE's irreverence and humor are somewhat base and crude[17] when compared to Big Dog's, it is not inconceivable that the same consumer market is targeted. Though the products are not marketed through the same channels of trade, and though there is no evidence they are advertised in the same manner, drawing all reasonable inferences from the facts in a light favorable to WWE, the Court will weigh this factor in favor of WWE. (9) The Relationship of the Goods in the Minds of Consumers Because of the Similarity of the Functions When the relevant goods are similar, there is a likelihood that consumers will assume an affiliation or common source between the products. See Checkpoint, 269 F.3d at 287. Nevertheless, when two products serve different functions and are part of distinct sectors or niche markets within a broader product category, they 440 might be sufficiently unrelated to each other that consumer confusion is less likely. Id. at 287-88. Under this prong, courts examine whether buyers and users of each parties' goods are likely to encounter the goods of the other, creating an assumption of common source affiliation or sponsorship. Fisons, 30 F.3d at 481 ("The question is whether the consumer might ... reasonably conclude that one company would offer both of these related products."). The test is whether the goods are similar enough that a customer would assume they were offered by the same source. Checkpoint Sys., Inc. v. Check Point Software Techs., Inc., 269 F.3d at 286 citing Wynn Oil Co. v. Thomas, 839 F.2d 1183, 1187 (6th Cir. 1988). This Court has already found that, though similarities exist, Big Dog's graphics are not sufficiently similar to WWE's in appearance, sound or meaning to create a likelihood of confusion.[18] Moreover, based upon the product dissimilarities, the different channels of trade, as well as the extreme disparity in market exposure, this factor is weighed in favor of Big Dog. (10) Evidence of Converging Markets Under this factor, the Court looks not only to evidence that a plaintiff has actually moved into the defendant's market, but also to "other facts suggesting that the consuming public might expect the prior owner to manufacture a product in the defendant's market, or that it is likely to expand into that market." Checkpoint Sys., Inc. v. Check Point Software Techs., Inc., 269 F.3d at 290 quoting Interpace Corp. v. Lapp, Inc., 721 F.2d at 463. There is no evidence in this action that the parties' markets are converging. As such this factor must be weighed against a likelihood of confusion. Totality of the Lapp Factors Big Dog's humorous word play and the "dogifying" of the WWE wrestling characters, used in conjunction with its registered trademark, dog design logo, and disclaimer "THIS IS A PARODY," clearly indicate to the consumer that the WBDF merchandise is a broad spoof of WWE, its characters and attitudes. Certainly, there are similarities, and there must be in order to conjure up thoughts of the original, while clearly not being the original. Moreover, there is no evidence in this action of actual confusion, nor does the Court find a likelihood of confusion in the marketplace between the WWE and WBDF merchandise. Big Dog's graphics spoofing the WWE wrestling characters and phrases are parodies that entitle its WBDF merchandise to First Amendment protection when analyzing the Lapp factors. Evaluating the Lapp factors, while applying First Amendment principles to Big Dog's parodies of WWE, the Court finds that the factors favor Big Dog and that there is no likelihood of confusion C. Dilution of the WWE Marks The Federal Trademark Dilution Act of 1995[19] grants protection to strong, well-recognized marks even in the absence of a likelihood of consumer confusion, if 441 the defendant's use diminishes or dilutes the strong identification value associated with the plaintiff's mark. See 4 McCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 24.70. The dilution doctrine is founded upon the premise that a gradual diminution of the value of a famous trademark, resulting from an unauthorized use, constitutes an invasion of the senior user's property rights and/or good will in its mark and gives rise to an independent wrong. Id. To establish a claim for relief under the federal dilution act, WWE must plead and prove: (1) it is the owner of a mark that qualifies as famous; (2) Big Dog is making commercial use in interstate commerce of the mark or trade name; (3) Big Dog's use began after the WWE's marks became famous; and (4) Big Dog's use causes dilution by lessening the capacity of WWE's marks to identify and distinguish goods or services. See Times Mirror Magazines Inc. v. Las Vegas Sports News, 212 F.3d 157, 163 (3d Cir.2000); see also Hershey Foods Corp. v. Mars, Inc., 998 F. Supp. 500, 504 (M.D.Pa.1998) (quoting 4 McCARTHY, supra). For the purpose of this Motion, Big Dog asks that the Court assume that the WWE marks are famous. Additionally, there are no disputes regarding either Big Dog's use in interstate commerce, or that Big Dog's use of the marks began after WWE's use. The only element at issue here is whether Big Dog's use lessens the distinctiveness of WWE's marks. Dilution may occur by "blurring" or "tarnishing" the mark. Dilution by blurring occurs when the use of the defendant's mark results in the loss of the ability for plaintiff's mark to serve as a unique identifier of the plaintiff's product, causing the public to no longer associate the plaintiff's famous mark with its goods or services. Times Mirror, 212 F.3d at 168. Moreover, the defendant's use of the mark causes the identifying features of plaintiff's mark to become vague and less distinctive. Id. Though the Third Circuit in Times Mirror set forth a six (6) factor test to determine whether use of a mark has caused blurring, 212 F.3d at 168, the Court finds the dilution analyses in cases involving parody more instructive. See e.g., Hormel Foods Corp. v. Jim Henson Prods., supra.; Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., supra.; Tetley, Inc. v. Topps Chewing Gum, Inc., 556 F. Supp. 785 (E.D.N.Y.1983). In Jordache, the court found that "because of the parody aspect of Lardashe, it is not likely that public identification of JORDACHE with the plaintiff will be eroded; indeed, parody tends to increase public identification of a plaintiff's mark with the plaintiff." See Jordache Enterprises, 828 F.2d at 1490 (quoting Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., 625 F. Supp. 48, 57 (D.N.M.1985)). The court further found that "under all the circumstances, the continued existence of LARDASHE jeans simply will not cause JORDACHE to lose its distinctiveness as a strong trademark for jeans and other apparel." Id. In Hormel Foods Corp. v. Jim Henson Prods., the court found that Henson's obvious parody was similar to the "Tetley Flea Bag" stickers Tetley sought to enjoin in Tetley, Inc. v. Topps Chewing Gum, Inc., supra., where "the broad humor ... employed served to prevent the type of blurring which might result from a more subtle or insidious effort at humor at plaintiff's expense." Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d at 506, quoting Tetley, Inc. v. Topps Chewing Gum, Inc., 556 F.Supp. at 794, As in these cases involving spoofs, Big Dog's parody is more apt to "increase public identification" of WWE's marks with WWE. See Hormel Foods Corp. v. Jim Henson Prods., 73 442 F.3d at 506; Jordache Enterprises, 828 F.2d at 1490. As a practical matter, however, it is undisputed that WWE is an integrated media and entertainment company engaged in the development, promotion and marketing of television programming, pay-per-view programming and live arena events, and the licensing and sale of branded consumer products. (Am. Cmplnt. ¶¶ 11 and 16) WWE has been involved in the sports entertainment business for over twenty (20) years and has developed story lines based around its wrestling characters. (Am. Cmplnt. ¶¶ 17 and 18) Currently, WWE produces five television programs each week: (I) "Raw" and "War Zone" shown consecutively on Monday nights and known as "Raw is War"; (ii) "WWF Smackdown!" on Thursday nights; (iii) "Live Wire" on Saturday mornings; (iv) "Superstars" on Sunday mornings; and (v) "Heat" on Sunday nights. (Am.Cmplnt. ¶ 17). It is undisputed that WWE's programming, live shows and characters are extremely popular and successful. In addition to the WWE's television exposure, its characters have appeared or been featured on numerous television shows including: The Tonight Show with Jay Leno; Live! With Regis and Kathie Lee; Late Late Show with Craig Kilborn; Late Night with Conan O'Brian; Inside Edition; Rikki Lake; Billboard Music Awards; Fox News Live; E! News Daily; Access Hollywood; MTV; and Saturday Night Live. (WWE Exhibit Y). Moreover, there is a huge disparity in marketing exposure as discussed above. (See WWE Exhibit R). It is therefore inconceivable to this Court that a jury could find that Big Dog's eight (8) graphic designs of dogs caricatured as wrestling characters cause or will cause the public to no longer associate WWE's famous marks with its goods or services. WWE also argues that the WBDF merchandise tarnishes its marks by using them in a manner that is inconsistent, or out-of-keeping, with WWE's image. See Jordache Enterprises, 828 F.2d at 1490.[20] WWE argues that tarnishment has occurred here because Big Dog has used WWE's marks in ways that are "wholly inconsistent" with WWE's carefully developed portrayal of its characters and marks. WWE's argument is unavailing. Tarnishment occurs when the effect of defendant's use of a mark is to dilute by tarnishing or degrading positive associations of the mark and diluting the distinctive quality of the mark, 4 McCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 24.95. In Hormel Foods, the Second Circuit observed that the sine qua non of tarnishment is a finding that plaintiff's mark will suffer negative associations through defendant's use. Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d at 506. A mark is tarnished, therefore, when it is improperly associated with an inferior or offensive product or service as a result of the junior user's mark, "presenting a danger that consumers will form unfavorable associations with the mark." Strick Corp. v. Strickland, 162 F. Supp. 2d 372, 378 n. 10 (E.D.Pa.2001) (quoting Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 881 (9th Cir.1999))(emphasis added). There is no evidence here that Big Dog's WBDF merchandise is either inferior or offensive. The most offensive phrase used by Big Dog is "Open Up a Can of Woof 443 Ass" which is a take-off on WWE's phrase "Open Up a Can of Whoop Ass." Many of WWE's t-shirt graphics contain phrases that are profane, violent or carry sexual connotations, such as: "hey wuss-boy"; "after I beat you, I'm gonna take your girlfriend"; "KILL `EM ALL! LET STONE COLD SORT `EM OUT"; "Got Head?"; "Venis Envy"; "POONTANG PIE"; "If you can't beat it ... SUCK IT"; "Other Side JACKASS"; "TESTICULAR FORTITUDE"; "Sexual Chocolate;" "SUCK IT"; and "AMERICAN BADASS." (WWE Exhibit U, Big Dog Exhibit C). Also found in WWE's catalog are pictures, posters, calendars and videos of semi-nude women. (WWE Exhibit U, Big Dog Exhibit C). Big Dog graphics, on the other hand are humorous and generally appropriate for the entire family, and unlikely to create in the mind of consumers a particularly unwholesome, unsavory, or degrading association with WWE's name or marks. Considering that tarnishment caused merely by an editorial or artistic parody which satirizes plaintiff's product or its image carries the free speech protections of the First Amendment,[21]see 4 McCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 24.105, it is difficult for the Court to find that WWE's marks have been diluted in any way. Moreover, the Supreme Court recently stated "... where the marks at issue are not identical, the mere fact that consumers mentally associate the junior user's mark with a famous mark is not sufficient to establish actionable dilution." Moseley v. V. Secret Catalogue, Inc., 537 U.S. 418, 123 S. Ct. 1115, 155 L. Ed. 2d 1 (2003). Based upon the foregoing, Big Dog will be granted summary judgment on WWE's trademark dilution claim under Section 43(c) of the Lanham Act. Regarding WWE's dilution claim under Pennsylvania law, the wording for the anti-dilution provisions of the Pennsylvania statutes, 54 PA. CONS. STAT. ANN. § 1124, is taken almost verbatim from the anti-dilution provision in the United States Code. Accordingly, there is no appreciable difference in the applicable standard. See Strick Corp. v. Strickland, 162 F. Supp. 2d 372, 378 n. 10 (E.D.Pa.2001). D. WWE's Right of Publicity Claims At Counts XV, XVI and XVII of its Amended Complaint, WWE claims violations of the common law publicity rights on behalf of Dwayne Johnson, who portrays THE ROCK, Steve Williams, who portrays STONE COLD STEVE AUSTIN, and Mark Calloway, who portrays the UNDERTAKER. Pennsylvania recognizes the common law right of publicity, which grants a person an "exclusive right to control the commercial value of his name and likeness and to prevent others from exploiting that value without permission." Brockum Co. v. Blaylock, 729 F. Supp. 438, 445 (E.D.Pa. 1990) (citation omitted); Eagle's Eye, Inc. v. Ambler Fashion Shop, Inc., 627 F. Supp. 856, 862 (E.D.Pa.1985) ("Pennsylvania has recognized the right of publicity ...."); Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133, 136 (1974). A defendant violates a plaintiff's right of publicity by "appropriating its valuable name or likeness, without authorization, [and using] it to defendant's commercial advantage." Philadelphia Orchestra Ass'n v. Walt Disney Co., 821 F. Supp. 341, 444 349 (E.D.Pa.1993); see also Seale v. Gramercy Pictures, 964 F. Supp. 918, 929-30 (E.D.Pa.1997)(finding no Pennsylvania case law clearly setting forth the elements for a right of publicity claims and predicting that the Pennsylvania Supreme Court will clarify the law by adopting the RESTATEMENT (THIRD) OF UNFAIR COMPETITION). Section 46 of the Restatement defines the right of publicity as follows: One who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for the purposes of trade[22] is subject to liability for the relief appropriate under the rules stated in §§ 48 and 49. RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 46. The right of publicity is often invoked in the context of commercial speech when the appropriation of a celebrity likeness creates a false and misleading impression that the celebrity is endorsing a product. See Waits v. Frito-Lay, Inc. 978 F.2d 1093 (9th Cir.1992); Midler v. Ford Motor Co. 849 F.2d 460 (9th Cir.1988). In addressing right of publicity claims, however, courts have been mindful that the First Amendment provides greater protection to works of artistic expression than it provides to pure "commercial" speech. Seale v. Gramercy Pictures, 949 F. Supp. 331, 337 (E.D.Pa.1996). In Cardtoons, L.C. v. Major League Baseball Players Assoc., 95 F.3d 959 (10th Cir.1996), the Tenth Circuit held that the First Amendment guarantee of freedom of expression outweighs the rights of publicity of professional baseball players where a trading card producer sold "parody trading cards" containing cartoons of well-known baseball players. Recognizing that the parody cards "are not commercial speech they do not merely advertise another unrelated product," the Court held that the parody cards "are an important form of entertainment and social commentary that deserve First Amendment protection." Cardtoons, L.C. v. Major League Baseball Players Assoc., 95 F.3d at 970, 976, see also Seale v. Gramercy Pictures, 949 F.Supp. at 337. In Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 106 Cal. Rptr. 2d 126, 21 P.3d 797 (2001), the California Supreme Court found that sketched portraits of The Three Stooges that were sold individually and on t-shirts were expressive works and not an advertisement for, or endorsement of, a product. Though the works were done for financial gain, the court held that the defendant's works did not lose First Amendment protection because they were produced for profit. Comedy III Productions, Inc. v. Gary Saderup, Inc., 106 Cal. Rptr. 2d 126, 21 P.3d at 802. More importantly, the court in Comedy III found that because of the importance celebrities hold in our society[23], the right of publicity can potentially 445 chill alternative versions of celebrity images that are "iconoclastic, irreverent, or otherwise attempt to redefine celebrity meaning." Id., 106 Cal. Rptr. 2d 126, 21 P.3d at 803. Such prominence invites comment, and the right to publicity should not be used as a shield to caricature, parody and satire. Id. There is an obvious tension between forms of artistic expression protected by the First Amendment and those that must give way to a celebrity's right of publicity. The California Supreme Court found copyright analysis to be instructive, using the first fair use factor, "the purpose and character of the use" 17 U.S.C. § 107(1), in reconciling these countervailing rights. Comedy III Productions, Inc. v. Gary Saderup, Inc., 106 Cal. Rptr. 2d 126, 21 P.3d at 808. Whether a work is "transformative" or merely supersedes the objects of the original creation, therefore, is crucial to this Court's attempt at reconciling the right of publicity with the First Amendment. As this Court has set forth in detail above, the WBDF merchandise parodies the characters and persona of the WWE. The graphics are not literal depictions, as the California Supreme Court found in Comedy III, but caricatures of WWE's wrestling characters. Big Dog's use of dogs to poke fun at celebrities and societal icons is an important form of entertainment and expressive commentary that deserves First Amendment protection. There is by no means a direct trespass or rip-off of the WWE wrestling characters, Big Dog has added significant artistic and imaginative expression to its graphics that outweighs the state law interest in protecting WWE's rights of publicity. Moreover, the celebrity status of the high profile of the WWE characters, which the WWE admits and Big Dog does not dispute, make them prime targets of satire and parody. Finding no issue of material fact, this Court finds that Big Dog is entitled to judgment as a matter of law on WWE's claims for violation of the common law publicity rights of Dwayne Johnson, Steve Williams, and Mark Calloway. E. WWE's Remaining Claims WWE also presents claims for false designation of origin, misappropriation and unfair competition under Section 43(a) of the Lanham Act. (Counts VIII and X of the Amended Complaint). Under Section 43(a), unfair competition occurs where, inter alia, a defendant uses a false designation of origin, or misappropriates the goodwill of another, in connection with goods or services in interstate commerce that will likely cause confusIon in the marketplace and likely cause the plaintiff injury. See 15 U.S.C. § 1125(a)(1). Federal trademark infringement, 15 U.S.C. § 1114, and federal unfair competition, 15 U.S.C. § 1125(a)(1)(A), are measured by identical standards. See A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 237 F.3d at 210. To prove either form of the Lanham Act violation, WWE must demonstrate that (1) it has a valid and legally protectable mark; (2) it owns the mark; and (3) Big Dog's use of the mark to identify goods or services causes a likelihood of confusion. See id.; Commerce Nat'l Ins. Servs., Inc. v. Commerce Ins. Agency, Inc., 214 F.3d 432, 437 (3d Cir.2000). 446 The Court conducted a detailed analysis of these factors in finding that Big Dog's graphics and its WBDF merchandise do not infringe upon WWE's trademarks. Therefore, it follows that Big Dog must prevail on WWE's claims for false designation of origin, misappropriation and unfair competition. Moreover, the Third Circuit test for common law infringement and unfair competition is identical to the test for federal infringement and unfair competition. Pharmacia Corp. v. Alcon Labs., Inc., 201 F. Supp. 2d 335, 386 (D.N.J. 2002), Apollo Distrib. v. Jerry Kurtz Carpet Co., 696 F. Supp. 140, 143 (D.N.J.1988). WWE's claim of unfair competition under the common law of Pennsylvania (Count XIV) also fails. Finally, WWE seeks relief for violation of Pennsylvania's fair trade practice statutes. 73 PA. CONS. STAT. ANN. §§ 201-2 and 201-3. Under Section 201-9.2, a private cause of action under the statute is available only to consumers who have purchased or leased goods or services for personal, family, or household purposes. See Weinberg v. Sun Co., 565 Pa. 612, 777 A.2d 442, 445-446 (2001). The statute does not provide a private cause of action for the alleged violation of the unfair competition portion of the statute. See Granite State Ins. Co. v. Aamco Transmissions, Inc., 57 F.3d 316, 320 n. 3 (3d Cir.1995). Because WWE does not bring this claim as a consumer[24], and fails to allege that it purchased or leased Big Dog's WBDF merchandise as a result of the allegedly unfair trade practice, it has no standing to bring an action for unfair competition pursuant to Section 201-3. Big Dog is entitled to Summary Judgment on WWE's claim for violation of Pennsylvania's fair trade practice statutes. V. CONCLUSION Based upon the foregoing, this Court finds that the Big Dog WBDF merchandise parodies WWE's widely popular characters and phrases, and therefore, the property is entitled to the free expression protections of the First Amendment. Moreover, Big Dog's merchandise has the intention and effect to amuse rather than confuse the public, and this Court is unable to find a likelihood of consumer confusion. Big Dog's parodies convey a simple message that business and product images need not always be taken too seriously, and we are reminded that we are free to laugh at the images and associations linked with these icons. Denying Big Dog the opportunity to poke fun at WWE characters and symbols that have become such a major component in today's entertainment media, would constitute a serious curtailment of a protected form of expression. As such, Big Dog's motion for summary judgment shall be granted. An appropriate order will follow. ORDER OF COURT AND NOW, this 10th day of March, 2003, upon consideration of Defendant's Motion for Summary Judgment and Plaintiff's Response thereto, together with the briefs, exhibits and appendices filed therewith, IT IS HEREBY ORDERED, that the Motion for Summary Judgment filed on behalf of Defendant, Big Dog Holdings, Inc., (Document No. 25) is GRANTED. Judgment is hereby entered for Defendant, 447 Big Dog Holdings, Inc., and against Plaintiff, Worldwide Wrestling Federation Entertainment, Inc. NOTES [1] Selected licensees place the merchandise in what is known as "downstairs class of trade," which includes retail stores such as Kmart, Costco, Wal-Mart and Target. (Big Dog's Statement of Undisputed Facts ¶ 8)(hereinafter "Big Dog Facts ¶ ___"). [2] WWE is the exclusive owner of valid copyright registrations in photographs of THE ROCK character, the STONE COLD STEVE AUSTIN character, and the UNDERTAKER character. (Am. Cmplnt. ¶¶ 33, 52, and 73). [3] STONE COLD STEVE AUSTIN is also identified on WWE programming as the "Rattlesnake." (Am.Cmplnt. ¶ 49). [4] THE ROCK's signature facial expression is known as the "People's Eyebrow," in which he raises his right eyebrow while staring, with intimidation in his eyes, at his opponent or the crowd. (Am.Cmplnt. ¶ 29). [5] Neither the graphic contained in Big Dog Exhibit K nor the sample t-shirt filed with the Court at Big Dog Exhibit L (a group exhibit containing actual WBDF merchandise) contains the printed words "The Rock-Weiler as .." Only the words "Scorpion K-9" are set forth in the graphics. [6] The Steve Pawstin beanie doll was also part of Big Dog Exhibit L, but it is not mentioned WWE's Amended Complaint. [7] Copying is a "shorthand reference to the act of infringing any of the copyright owner's five exclusive rights set forth at 17 U.S.C. § 106," Paramount Pictures v. Video Broadcasting Systems, 724 F. Supp. 808, 819 (D.Kan. 1989), including the rights to distribute and reproduce copyrighted material. See Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d at 291. [8] In addition, Dwayne Johnson, the gentleman who portrays THE ROCK character, agreed that the Rock-weiler graphic pokes fun at his THE ROCK character. (Big Dog Exhibit M, p. 40: line 24; p. 41: lines 1-3). WWE's chief marketing director, Julie Hoffman, agreed that the Bone Cold Steve Pawstin graphic mimics or pokes fun at the STONE COLD STEVE AUSTIN character. (Big Dog Exhibit Q, pp. 31-32). [9] WWE also contends that it is entitled to a presumption or inference of market harm because the WBDF merchandise is a nontransformative duplication of the original that was made for commercial purposes. In analyzing the first factor of § 107, the Court found that the WBDF merchandise constituted parodies of the WWE intellectual property, and were transformative works. [10] The Second Circuit has recognized that where the unauthorized use of a trademark is part of an expressive work, such as a parody, the Lanham Act must be construed narrowly, Harley-Davidson, Inc. v. Grottanelli, 164 F.3d 806, 813 n. 14 (2d Cir.1999) (quoting RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 25 cmt. 1 (1995)). [11] This is inaccurate, the Big Dog's "Smackdown" graphic is has the phrase "WBDF SMACKDOWN" printed on the graphic, not "WWF SMACKDOWN." (Big Dog Exhibit K). [12] On some vests the letters "S. O. B." appear to be printed, and on other vests the number "3" appears to be printed. [13] The tire tread was inserted as a humorous reference to a storyline that AUSTIN was not in the ring because he had been hit by a car. (WWE Exhibit B, p. 58: lines 4-11). [14] Under the Lanham Act, stronger marks are apt to receive greater protection. See, e.g., Versa Prods. Co., Inc., v. Bifold Co. (Mfg.) Ltd., 50 F.3d 189, 203 (3d Cir. 1995)(observing that stronger marks carry greater recognition, and a similar mark is therefore more likely to cause confusion). [15] By WWE's own admission however, its "typical viewer is a computer-savvy, college-educated professional ..." A majority of its adult viewers (64%) have attended college. The average household income of a typical viewer is over $50,000. A majority of its viewers (54%) consider themselves "Professionals" or "White Collar." They own more than one computer, and 77% have access to the internet. The average household owns two cars. (WWE Exhibit R, p. 12). [16] The Court is aware that WWE is not legally required to conduct a confusion survey. Such a failure, particularly when the trademark owner is financially able, justifies an inference "that the plaintiff believes the results of the survey will be unfavorable." Charles Jacquin et Cie, Inc. v. Destileria Serralles, Inc., 921 F.2d 467, 475 (3d Cir. 1990); see also Eagle Snacks, Inc. v. Nabisco Brands, Inc., 625 F. Supp. 571, 583 (D.N.J. 1985); Tyco Indus., Inc. v. Lego Sys. Inc., 1987 WL 44363, 1987 U.S. Dist. LEXIS 13193 (D.N.J.1987), aff'd, 853 F.2d 921 (3d Cir.1988). But under the circumstances of this case, and drawing all reasonable inferences from the facts in a light favorable to WWE, WWE's failure to conduct a confusion survey was not weighed against it in this instance. [17] The Court is certainly not attempting to pass judgment or comment on the morality of WWE's products, but the phrases on its graphics are violent, confrontational, exhibit an "in your face" attitude, and many are rife with sexual innuendo. In addition, WWE sells images and videos of semi-nude women. (WWE Exhibit U). Big Dog's products exhibit dog-related humor. The "attitudes" are really quite diverse. [18] The Court finds this to be so not only at the point of sale, but also with regard to post-sale confusion. [19] The Act provides: The owner of a famous mark shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person's commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this subsection. 15 U.S.C. § 1125(c)(1). [20] In Jordache, however, the plaintiff was referring to the quality of plaintiff's product, i.e. its product was tarnished because of the alleged disparity in quality between Lardashe jeans and Jordache jeans. See Jordache Enterprises, 828 F.2d at 1490. [21] The Restatement takes the position that an anti-dilution statute is not available against unauthorized trademark uses which "comment on, criticize, ridicule, parody or disparage" the goods or business of the trademark owner. RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 25(2)(1995). [22] The Restatement defines the term "for the purposes of trade" as follows: The name, likeness, and other indicia of a person's identity are used "for the purposes of trade" under the rule stated in § 46 if they are used in advertising the user's goods or services, or are placed on merchandise marketed by the user, or are used in connection with services rendered by the user.... RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 47. [23] As one commentator stated: "Entertainment and sports celebrities are the leading players in our Public Drama. We tell tales, both tall and cautionary, about them. We monitor their comings and goings, their missteps and heartbreaks. We copy their mannerisms, their styles, their modes of conversation and of consumption. Whether or not celebrities are `the chief agents of moral change in the United States,' they certainly are widely used far more than are institutionally anchored elites to symbolize individual aspirations, group identities, and cultural values. Their images are thus important expressive and communicative resources: the peculiar, yet familiar idiom in which we conduct a fair portion of our cultural business and everyday conversation." Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights 81 CAL. L. REV. 125, 128 (1993)(fns. omitted). [24] The statute protects business competitors from unfair competition by authorizing the Attorney General and district attorneys to bring actions in the name of the Commonwealth of Pennsylvania against people they have reason to believe are "using or about to use any method, act, or practice declared by ... this act to be unlawful." 73 PA. CONS. STAT. ANN. §§ 201-4.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501380/	712 S.E.2d 520 (2011) 310 Ga. App. 221 COLSON v. The STATE. No. A11A0603. Court of Appeals of Georgia. June 2, 2011. Otis Lee Colson, for Appellant. Denise D. Fachini, Matthew Peterson Brown, for Appellee. SMITH, Presiding Judge. Lee Otis Colson appeals pro se from the trial court's order dismissing his "motion to vacate/correct a void sentence." We affirm because Colson has failed to assert any colorable claim that his sentence was void. A Wilcox County grand jury indicted Colson for the crime of escape. On December 14, 1998, Colson entered a guilty plea and was sentenced to ten years, five to be served concurrently with any other sentence he was serving, and five to be served consecutively to any such sentence. In 2003, he moved to modify his sentence, contending that the five years to be served consecutively constituted a void sentence and should be vacated. That motion was denied for lack of jurisdiction. In 2010, he filed the subject motion, again asserting that his sentence is void and seeking a declaration that it should have run concurrently with his previous conviction from December of 1998.[1] The trial court treated Colson's motion as a motion to vacate a void judgment and dismissed it pursuant to Harper v. State, 286 Ga. 216, 686 S.E.2d 786 (2009). But, as Harper acknowledges, id. at 217 n. 1, 686 S.E.2d 786, a void sentence may be attacked at any time. See Williams v. State, 271 Ga. *521 686, 688(1), 523 S.E.2d 857 (1999). The dismissal, however, was nevertheless correct because the trial court had no jurisdiction to modify a sentence after the expiration of the term of court during which the sentence was entered, unless the sentence was void. Anderson v. State, 251 Ga.App. 785, 786, 554 S.E.2d 811 (2001). Here, Colson's sentence is not void. [A] sentence is void if the court imposes punishment that the law does not allow. Nevertheless, when the sentence imposed falls within the statutory range of punishment, the sentence is not void and is not subject to post-appeal modification beyond that provided in OCGA § 17-10-1(f). Upon the expiration of the period provided in OCGA § 17-10-1(f), post-appeal pleadings filed in the sentencing court seeking sentence modification must set forth why the sentence is void, i.e., how it imposes punishment the law does not allow. (Citations and punctuation omitted.) Hughes v. State, 273 Ga.App. 705, 705-706, 615 S.E.2d 819 (2005). Colson's sentence was within the statutory range of punishment permitted by OCGA § 16-10-52(b)(1) ("[a] person who, having been convicted of a felony, is convicted of the offense of escape shall be punished by imprisonment for not less than one nor more than ten years.") Colson complains that the trial court's sentence was void because it imposed a split sentence: five years to be served concurrently with any sentence now serving, and five to be served consecutively to any sentence now serving. He contends that OCGA § 17-10-10 provides for a sentence to be concurrent or consecutive, but not both, and from this he argues that his sentence is not one which the law allows and is therefore void. But the Code section does not say what Colson contends it says. OCGA § 17-10-10(b) provides: "Where a person is convicted on more than one indictment or accusation at separate terms of court, or in different courts, and sentenced to imprisonment, the sentences shall be served concurrently, one with the other, unless otherwise expressly provided therein." (Emphasis supplied.) Here, the sentence expressly provides for both a concurrent and a consecutive portion of the term to be served. Moreover, [t]he (b) section of Code Ann. § 27-2510 [now OCGA § 17-10-10] properly is to be construed as being applicable to groups of offenses committed in a single crime spree, where convictions for such offenses have been obtained in separate courts or terms of court. That section does not constitute a limitation upon the discretion of the trial court, derived from the common law, to set sentences imposed as a result of convictions for a new group of offenses that are separate and distinct from previous sentences to commence at the termination of all sentences previously imposed. (Citation omitted.) Amerson v. Zant, 243 Ga. 509, 510, 255 S.E.2d 34 (1979). Colson's sentence therefore is not void and is not subject to post-appeal modification outside of the provisions of OCGA § 17-10-1(f). Hughes, supra, 273 Ga.App. at 706, 615 S.E.2d 819. Judgment affirmed. MIKELL and DILLARD, JJ., concur. NOTES [1] Colson also filed an appeal from the denial of his motion to vacate the sentence in his prior conviction as void. That denial was affirmed in Colson v. State, 283 Ga.App. xxv (Case No. A06A2500, decided February 2, 2007), where we observed that his life sentence as a recidivist was within the statutory guidelines and declined to review it.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501448/	727 S.E.2d 189 (2012) 315 Ga. App. 396 PALMER v. The STATE. No. A12A0423. Court of Appeals of Georgia. April 5, 2012. 191 Earle Johnston Duncan III, for Palmer. John Thomas Durden Jr., Gregory M. McConnell, Savannah, for The State. ELLINGTON, Chief Judge. After a jury found Michael Palmer not guilty in the United States District Court for the Southern District of Georgia of the federal offenses of armed bank robbery and brandishing a firearm during the commission of a violent crime, the State of Georgia secured an indictment charging Palmer with fifteen violations of Georgia law arising out of the same July 20, 2009 bank robbery. Palmer filed a motion in autrefois acquit, arguing that eight of the state counts, those charging him with armed robbery, aggravated assault, and firearms offenses, are barred under OCGA § 16-1-8(c), which prohibits prosecution when the accused was formerly prosecuted in federal court for the same conduct. After a hearing, the trial court denied Palmer's motion, and he appeals, contending that the state armed robbery and aggravated assault charges are for the same conduct as the federal armed bank robbery charge and that the state firearms charges are for the same conduct as the federal firearms charge. For the reasons explained below, we affirm. The United States is constitutionally prohibited from putting any person in jeopardy of life or liberty twice for the same offense; likewise, the State of Georgia is bound by the rule against double jeopardy.[1] These provisions protect a person not only from multiple punishments by a single sovereign for the same offense but also from successive prosecutions by a single sovereign for the same offense.[2] It is well settled, however, that when a person in a single act breaks the law of two sovereigns, such as the United States and the State of Georgia, the person has committed two distinct offenses and may be prosecuted and punished by each sovereign for the violation of its law.[3] Under this 192 doctrine of dual sovereignty, successive prosecutions by two separate sovereigns for the same offense do not violate double jeopardy.[4] Like many states,[5] Georgia law provides a statutory limitation on the dual sovereignty doctrine. OCGA § 16-1-8(c) provides that [a] prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution or unless the crime was not consummated when the former trial began. In applying OCGA § 16-1-8(c), the "threshold" question is whether the prior federal prosecution was for a crime that was within the concurrent jurisdiction of the State of Georgia. Sullivan v. State, 279 Ga. 893, 894(1), 622 S.E.2d 823 (2005). Where concurrent jurisdiction is absent, "OCGA § 16-1-8(c) is inapplicable regardless of any overlap in the accused's conduct that is the subject matter of the two prosecutions." (Citations and footnote omitted.) Id. In Sullivan v. State, the Supreme Court of Georgia explained that the term "concurrent jurisdiction" as used in OCGA § 16-1-8(c) unambiguously looks to whether there is an existing Georgia penal provision comparable to the [f]ederal crime over which a state court has jurisdiction. Where an accused can be prosecuted in either [s]tate court or [f]ederal district court indifferently for the same crime, then that crime is within the concurrent jurisdiction of this State. Conversely, no concurrent jurisdiction exists where no Georgia counterpart exists to the [f]ederal crime so that the accused could be prosecuted for that crime only in a [f]ederal district court. Id. at 895(1), 622 S.E.2d 823. In Sullivan v. State, the defendant, who had been acquitted in federal court of the offense of using interstate commerce facilities in the commission of murder-for-hire,[6] argued that OCGA § 16-1-8(c) barred a subsequent state prosecution for murder, aggravated assault, and other charges arising out of the death of the same victim. Id. at 893-894, 622 S.E.2d 823. The Supreme Court held that the offense that was the subject of the federal prosecution was not a crime within Georgia's concurrent jurisdiction, and, therefore, that OCGA § 16-1-8(c) did not apply to bar the state prosecution. Id. at 897-900(2), 622 S.E.2d 823. The Supreme Court reasoned that, although it is unlawful in Georgia to commit murder, to be a party to murder by hiring or procuring another to commit the crime, to solicit murder, etc., "no such crime exists in Georgia" as "unlawfully us[ing] or caus[ing] another to use a telephone or other communication device to arrange the commission of [a] murder." Id. at 898(2), 622 S.E.2d 823. And, because "nothing in the Criminal Code of Georgia makes it a crime to use or cause another to use a telephone or other communication 193 facility with the intent to commit or cause the commission of any act constituting murder[,]" the threshold question of concurrent jurisdiction was answered in the negative. Id. at 898, 900(2), 622 S.E.2d 823. That is, concurrent jurisdiction was lacking because no state offense was statutorily defined to include every essential element of the federal offense.[7] In this case, Palmer contends that Counts 1 and 2 of the state indictment, charging armed robbery in violation of OCGA § 16-8-41(a), and Counts 3 and 4 of the state indictment, charging aggravated assault with a deadly weapon in violation of OCGA § 16-5-21(a)(2), are barred by his acquittal on Count 1 in the federal prosecution, charging armed bank robbery in violation of 18 USC § 2113(a) and (d). In addition, he contends that Counts 5 and 6 of the state indictment, charging possession of a firearm during the commission of a crime against the person of another, in violation of OCGA § 16-11-106(b)(1), and Counts 8 and 9 of the state indictment, charging possession of a firearm by a convicted felon in violation of OCGA § 16-11-131(b), are barred by his acquittal on Count 2 in the federal prosecution, charging the offense of brandishing a firearm during the commission of a crime of violence, in violation of 18 USC § 924(c)(1)(A)(ii). To make the determination of whether the federal prosecution was for crimes which were within Georgia's concurrent jurisdiction, we examine the statutes that define the arguably equivalent offenses. Sullivan v. State, 279 Ga. at 897(2), 622 S.E.2d 823. 18 USC § 2113 provides, in pertinent part, that "[w]hoever, by force and violence, or by intimidation, takes ... from the person or presence of another, ... any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank" and, "in committing ... [such] offense[,] ... assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon ..., shall be fined under [the United States Criminal Code] or imprisoned not more than twenty-five years, or both." Applying the Supreme Court's reasoning in Sullivan v. State, we conclude that, although it is unlawful in Georgia to commit armed robbery,[8] no such crime exists in Georgia as taking from the person or the immediate presence of another by use of an offensive weapon any property belonging to, or in the care, custody, control, management, or possession of, any bank. Similarly, although it is unlawful in Georgia to commit aggravated assault with a deadly weapon,[9] no such crime exists in Georgia as to commit an aggravated assault with a deadly weapon and, in doing so, to take any property belonging to, or in the care, custody, control, management, or possession of, any bank. Because armed bank robbery in violation of 18 USC § 2113(a) and (d) includes at least one element that is not included in Georgia's offenses of armed robbery and aggravated assault, armed bank robbery was not a crime within Georgia's concurrent jurisdiction.[10] Turning to the firearms charges, we conclude that brandishing a firearm during 194 the commission of a crime of violence, in violation of 18 USC § 924(c)(1)(A)(ii), includes as an element that the accused made the presence of the firearm known to another person in order to intimidate that person, which is not an essential element of either OCGA § 16-11-106(b)(1) or OCGA § 16-11-131(b).[11] Thus, brandishing a firearm during the commission of a crime of violence was not a crime within Georgia's concurrent jurisdiction. Because concurrent jurisdiction was lacking, we do not reach the issues of whether the state's prosecution is for the same conduct as the federal prosecution and whether each prosecution requires proof of a fact not required in the other prosecution.[12] There was no error. Sullivan v. State, 279 Ga. at 900(2), 622 S.E.2d 823. Judgment affirmed. PHIPPS, P.J., and DILLARD, J., concur. NOTES [1] U.S. Constit., 5th Amendment; Ga. Const. of 1983, Art. I, Section I, Par. XVIII; Benton v. Maryland, 395 U.S. 784, 794(III), 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (The Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment.). [2] Sattazahn v. Pennsylvania, 537 U.S. 101, 106(II)(A), 123 S.Ct. 732, 154 L.Ed.2d 588 (2003); Perkinson v. State, 273 Ga. 491, 494(1), 542 S.E.2d 92 (2001). [3] Heath v. Alabama, 474 U.S. 82, 88(II), 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) ("The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the peace and dignity of two sovereigns by breaking the laws of each, he has committed two distinct offences [sic].... Consequently, when the same act transgresses the laws of two sovereigns, it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.") (citations and punctuation omitted); U.S. v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922) ("[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each."); Sullivan v. State, 279 Ga. 893, 900(2), 622 S.E.2d 823 (2005) 900(2) (Georgia still adheres to the doctrine of dual sovereignty.); Satterfield v. State, 256 Ga. 593, 595(2), 351 S.E.2d 625 (1987) ("Even if the [federal] crime[and the state crime] had been identical[,] [the accused] would not have been subjected to double jeopardy by the federal trial and the [subsequent] state trial because of the dual sovereignty doctrine.") (citations omitted). [4] Heath v. Alabama, 474 U.S. at 88(II), 106 S.Ct. 433. [5] See Michael Dawson, "Popular Sovereignty, Double Jeopardy, and the Dual Sovereignty Doctrine," 102 Yale L.J. 281, 294, nn. 95-96 (1992) (listing thirteen states that limit state prosecution of offenses arising out of the same conduct previously subject to federal prosecution and seven states that limit reprosecution for the same offense); Kenneth Murchison, "The Dual Sovereignty Exception to Double Jeopardy," 14 N.Y.U. Rev. L. & Soc. Change 383, 414, nn. 200-203 (1986) (noting that 25 states had banned successive prosecutions in various aspects); Carolyn MacWilliam, "Conviction or Acquittal in Federal Court as Bar to Prosecution in State Court for State Offense Based on Same Facts Modern View," 97 A.L.R.5th 201 (2002). [6] See 18 USC § 1958 (formerly 18 USC § 1952A). [7] See id. at 904-905(4), 622 S.E.2d 823 (Sears, C.J., dissenting) (Under the majority opinion in Sullivan v. State, "if this State has a crime that mirrors the federal crime, the accused always will have been prosecuted in federal district court for a crime within this State's concurrent jurisdiction, and the accused's prosecution for the state crime always will be barred. If this State does not have a crime that mirrors the federal crime, the accused always may be prosecuted in Georgia."). [8] OCGA § 16-8-41(a) provides, in pertinent part, that "[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon[.]" [9] OCGA § 16-5-21(a)(2) provides, in pertinent part, that "[a] person commits the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon[.]" See also OCGA § 16-5-20(a)(2) ("A person commits the offense of simple assault when he or she ... [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury."). [10] In Dorsey v. State, 237 Ga. 876, 230 S.E.2d 307 (1976), the Supreme Court ruled that the predecessor to OCGA § 16-1-8(c), Code Ann. § 26-507(c), barred the defendant's state prosecution on charges of murder, armed robbery, and other offenses after he pled guilty in federal court to charges of unlawfully killing a person while attempting to avoid apprehension, armed robbery, and other offenses in connection with the same bank robbery. Dorsey v. State does not compel a different result in this case, however, because, in that case, the Supreme Court only addressed the issue of whether the trial court erred in ruling that the statute impermissibly surrendered the exclusive jurisdiction of the superior courts as defined in the Constitution of Georgia, Dorsey v. State, 237 Ga. at 877-878, 230 S.E.2d 307. The Court did not consider the issue of what constitutes concurrent jurisdiction that it later addressed in Sullivan v. State. [11] 18 USC § 924(c)(1)(A)(ii) provides, in pertinent part, that "any person who, during and in relation to any crime of violence ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence[,] ... if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years[.]" See 18 USC § 924(c)(4) ("[T]he term `brandish' means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person[.]"). OCGA § 16-11-106(b)(1) provides, in pertinent part, that "[a]ny person who shall have on or within arm's reach of his or her person a firearm or a knife having a blade of three or more inches in length during the commission of ... [a]ny crime against or involving the person of another[,] ... and which crime is a felony, commits a felony[.]" OCGA § 16-11-131(b) provides, in pertinent part, that "[a]ny person ... who has been convicted of a felony by a court of this state ... and who ... possesses ... any firearm commits a felony[.]" [12] When the threshold question of concurrent jurisdiction posed by OCGA § 16-1-8(c) is answered in the negative, it is "irrelevant how [the] [f]ederal and [s]tate prosecutions of [the accused] would fare under the analysis set forth in the rest of the statute." Sullivan v. State, 279 Ga. at 900(2), 622 S.E.2d 823. It is only where concurrent jurisdiction exists [under OCGA § 16-1-8(c)] that the courts must then turn to the next step in the statutory analysis, namely, whether the [f]ederal prosecution resulted in a conviction or an acquittal and, if it did so, whether the [s]tate's prosecution was for the same conduct. As plainly expressed by the language in OCGA § 16-1-8(c), the accused's conduct comes into issue if, and only if, the former [f]ederal prosecution was for a crime within this [s]tate's concurrent jurisdiction. Should the court determine that the [s]tate's prosecution was for the same conduct, subsection (c) would bar the prosecution unless "each prosecution require[d] proof of a fact not required in the other prosecution" or unless the crime "was not consummated when the former trial began." (Citation omitted.) Sullivan v. State, 279 Ga. at 894(1), n. 2, 622 S.E.2d 823.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501450/	714 S.E.2d 646 (2011) 310 Ga. App. 874 GREEN v. The STATE. No. A11A0743. Court of Appeals of Georgia. July 1, 2011. Reconsideration Denied July 14, 2011. 647 Brian Steel, Atlanta, for appellant. James David McDade, Dist. Atty., Marc Anthony Watkins, James Alan Dooley, for appellee. 648 DOYLE, Judge. Following a jury trial, Brian Green appeals his conviction of armed robbery[1] and kidnapping[2] (two counts each), contending that (1) he received ineffective assistance of counsel based on his trial counsel's failure to object to a jury instruction that allegedly expanded the indictment, and (2) the evidence was insufficient to prove the asportation element of the kidnapping offenses. For the reasons that follow, we affirm. Construed in favor of the verdict,[3] the evidence shows that in December 2005, Melissa Carlisle was working as a sales associate at a bookstore, along with Ben Creekmore, who was working as an assistant manager. Just before closing time, Green entered the store, having been there approximately 20 minutes before. After perusing the gift displays with Carlisle, Green accompanied her to the cash register so he could check out. As Carlisle opened the cash drawer, Green reached over the counter and grabbed the money in the drawer. Carlisle resisted, and Green produced a handgun and said, "Let me show you what I'm all about." Carlisle called out to Creekmore for help. Creekmore came from another part of the store, and Green, having cleaned out the cash drawer, forced both Carlisle and Creekmore to walk approximately 100 feet to the back of the store, where the safe was located. Once at the back of the store, Creekmore told Green that there was no safe, and Green slapped him, saying, "Don't f with me." Green then forced Carlisle, who did not have access to the safe, into an adjacent office and demanded that Creekmore open the safe. After the safe was opened, Green took a bag full of money, put Creekmore in the office with Carlisle, told them not to call the police, closed the door, and fled. After they were sure that Green was gone, Carlisle called the police, while Creekmore went to the front of the store to lock the door. The police arrived shortly thereafter and conducted an investigation. A few days later, Carlisle and Creekmore identified Green in a photo lineup as the armed robber. Green was charged with two counts of armed robbery, two counts of kidnapping, and one count of terroristic threats. The jury returned a guilty verdict on all counts, and the trial court entered a judgment of conviction on all counts, later vacating the terroristic threats conviction due to a defect in the indictment. Green now appeals from the denial of his motion for new trial as to the armed robbery and kidnapping counts. 1. Green contends that he received ineffective assistance of trial counsel based on counsel's failure to object to the jury charge on armed robbery, which, he argues, improperly expanded the indictment. We disagree. Under Strickland v. Washington,[4] to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.[5] "There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case."[6] If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong.[7] In reviewing the trial court's decision, "[w]e accept the trial court's factual findings and credibility determinations unless clearly erroneous, but 649 we independently apply the legal principles to the facts."[8] Green argues that his trial counsel should have objected to a discrepancy between the armed robberies as alleged in the indictment and the manner in which the jury was charged on the armed robbery offenses. Counts 1 and 2 of the indictment, which the trial court did not read to the jury but sent back with the jury during deliberations with instructions for them to carefully read it, alleged as follows: "Brian Green . . . did enter the Family Christian Bookstore with the intent to commit theft and took money from the cash register . . . by use of an offensive weapon, to wit: a handgun, contrary to the laws of [Georgia]. . . ." By contrast, the jury charge on armed robbery given by the trial court stated as follows: "A person commits armed robbery when, with intent to commit theft, that person takes property of another from the person or immediate presence of another by the use of an offensive weapon, or by any replica, article, or device having the appearance of such weapon."[9] Green contends that the italicized portion of the jury charge, which did not appear in the indictment, allowed the jury to convict him of the crime in a manner not alleged in the indictment. Therefore, he argues on appeal that his trial counsel performed deficiently by not objecting to the jury charge. It is error to charge the jury that a crime may be committed by alternative methods, when the indictment charges it was committed by one specific method. If there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, then the conviction is defective because of a fatal variance between the proof at trial and the indictment returned by the grand jury.[10] Here, the sole evidence of Green's weapon was that it was a gun. Each victim referred to it only as a handgun and explicitly referred to his or her fear of being shot. There was no evidence that the object held by Green in this case was anything other than a handgun. There was evidence that Green partially concealed the weapon with a glove, but "[u]nless there is some evidence that appellant committed an armed robbery by use of any replica, article or device having the appearance of an offensive weapon, there is no reasonable [possibility] that the jury convicted him of the commission of this type. . . ."[11] The evidence uniformly showed that the article used in this robbery was a handgun. Therefore, based on this record, there is not a reasonable likelihood that the jury convicted Green of robbing the victims with a replica, and this enumeration presents no basis for reversal.[12] 2. Green also contends that the evidence failed to support the guilty verdict as to kidnapping, arguing that the State failed to prove the asportation element of the offense. We disagree. OCGA § 16-5-40(a) defines the kidnapping offense as follows: "A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will."[13] We must evaluate the sufficiency of the evidence of abduction or stealing away by analyzing the following four factors: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) 650 whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.[14] "Not all of the four factors must favor the [S]tate in order to prove asportation.[15]" Here, the evidence showed that after he robbed the cash register, Green forced Carlisle and Creekmore to move approximately 100 feet at gunpoint from the front of the store to the back of the store and later further back into an office where he closed the door with the employees inside. The only windows were at the front of the store, so the victims could not be seen by anyone outside of the empty store. Although the forced movement to the back of the store may have initially been in furtherance of the robbery of the safe, the further movement into the back office occurred after the robbery was completed. This movement was not a necessary or inherent part of the robbery. Rather, the movement created additional danger to the employees by isolating them and reducing their chances of rescue, enhanced [Green]'s control over them, and enabled [Green] to avoid apprehension and to effect his escape from the scene. Under these circumstances, the movement at issue was not simply a criminologically insignificant circumstance attendant to the armed robberies, but was in the nature of the evil the kidnapping statute was originally intended to address.[16] Accordingly, there was sufficient evidence of asportation to support Green's kidnapping convictions.[17] Judgment affirmed. ELLINGTON, C.J., and MILLER, P. J., concur. NOTES [1] OCGA § 16-8-41(a). [2] OCGA § 16-5-40(a). [3] See Short v. State, 234 Ga.App. 633, 634(1), 507 S.E.2d 514 (1998). [4] 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). [5] See id. at 687-688, 694(III)(A)-(B), 104 S.Ct. 2052. [6] (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857(6), 596 S.E.2d 597 (2004). [7] See Strickland, supra, 466 U.S. at 697(IV), 104 S.Ct. 2052; Fuller v. State, 277 Ga. 505, 507(3), 591 S.E.2d 782 (2004). [8] (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003). [9] (Emphasis supplied.) [10] (Citation and punctuation omitted.) Pettway v. State, 204 Ga.App. 804-805, 420 S.E.2d 619 (1992). [11] Id. at 804-805, 420 S.E.2d 619. See also Childs v. State, 257 Ga. 243, 253(17), 357 S.E.2d 48 (1987). [12] See Pettway, 204 Ga.App. at 804, 420 S.E.2d 619. [13] (Emphasis supplied.) [14] Garza v. State, 284 Ga. 696, 702(1), 670 S.E.2d 73 (2008). In 2009, the legislature amended OCGA § 16-5-40 to provide that slight movement is sufficient evidence of asportation, as long as the movement is not incidental to another offense. OCGA § 16-5-40(b)(1) (2009); Ga. L. 2009, p. 331, § 1. The amendment also defines the circumstances under which the movement is not merely incidental to another offense. See OCGA § 16-5-40(b)(2) (2009); Ga. L. 2009, p. 331, § 1. However, the amendment only applies to crimes committed on or after the amended statute's effective date of July 1, 2009, and, therefore, is not applicable in the present case. Walker v. State, 305 Ga.App. 607, 611-612, n. 1, 699 S.E.2d 902 (2010). [15] Walker, 305 Ga.App. at 612(1)(b), 699 S.E.2d 902. [16] (Punctuation omitted.) Id. [17] See Henderson v. State, 285 Ga. 240, 244-245(5), 675 S.E.2d 28 (2009); Verdree v. State, 299 Ga.App. 673, 681-682(5)(a), 683 S.E.2d 632 (2009); Brower v. State, 298 Ga.App. 699, 707(2), 680 S.E.2d 859 (2009); Flores v. State, 298 Ga. App. 574, 576-577(1), 680 S.E.2d 609 (2009) (short duration of movement not dispositive).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501452/	393 S.C. 364 (2011) 713 S.E.2d 294 In the Matter of Gwendolyn Long ROBINSON, Respondent. No. 27002. Supreme Court of South Carolina. Submitted June 14, 2011. Decided July 11, 2011. Lesley M. Coggiola, Disciplinary Counsel, and Susan B. Hackett, Assistant Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel. Gwendolyn Long Robinson, of Mount Pleasant, pro se. PER CURIAM. The Office of Disciplinary Counsel (ODC) and respondent have entered into an Agreement for Discipline by Consent pursuant to Rule 21, RLDE, Rule 413, SCACR, in which respondent admits misconduct and agrees to the imposition of 365 an admonition, public reprimand, or definite suspension not to exceed nine (9) months. In addition, respondent agrees to pay the costs incurred by ODC and the Commission on Lawyer Conduct (the Commission) in the investigation and prosecution of this matter. We accept the Agreement, issue a public reprimand, and order respondent to pay the costs in this matter within thirty (30) days of the date of this opinion. The facts, as set forth in the Agreement, are as follows. FACTS Respondent represented the plaintiff in an action brought in the United States District Court for the District of South Carolina; Complainant represented the defendants in the suit. The suit alleged a violation of the plaintiff's civil rights. Respondent interviewed Witnesses A and B and prepared affidavits for the witnesses based upon her interviews. Respondent faxed the affidavits to the witnesses and requested they call her if they had any problems with the affidavits. Respondent did not receive a call from either witness. On June 18, 2010, respondent filed the two affidavits with the court in support of her Motion in Opposition to Complainant's Motion for Summary Judgment. One of the affidavits purported to contain the sworn testimony of Witness A. The affidavit was not signed by Witness A. Instead, respondent affixed the following to the signature line: "/s/ Witness A." Respondent then typed her name as the notary public for the document with a date of June 17, 2010. The other affidavit purported to contain the sworn testimony of Witness B. The affidavit was not signed by Witness B. Instead, respondent affixed the following to the signature line: "/s/ Witness B." Respondent then typed her name as the notary public for the document with a date of June 17, 2010. Neither Witness A nor Witness B personally appeared before respondent on June 17, 2010, and neither signed the affidavits on June 17, 2010. When respondent affixed her name as the notary, she indicated the affiant personally appeared before her and attested to the veracity of the contents of the document. This was not true. On June 24, 2010, respondent met with Witness A and Witness B. One of them confronted respondent regarding the 366 affidavits. Both insisted respondent make amendments to the contents of their affidavits. Respondent made the amendments. Both then signed the affidavits and respondent filed the amended affidavits. Respondent admits the requested changes weakened her client's position. On June 25, 2010, Complainant obtained affidavits from Witness A and Witness B indicating they did not sign the affidavits purported to be signed by them on June 17, 2010. Complainant filed a motion with the court asking the court to disregard the documents. The court did not issue a decision Complainant's motion because the case settled. The use of "s/" followed by a name indicates that the document is a copy, the original contains an original signature, and the copy has been conformed to match the original by use of the symbol. Thus, when respondent typed "/s/" followed by the names of Witness A and Witness B on the affidavits, she represented to the court that these individuals had signed original affidavits and she was merely conforming the copies to the signed originals. Respondent admits this was a misrepresentation to the court as signed originals did not exist on June 17, 2010, or June 18, 2010, when the affidavits were filed. The United States District Court for the District of South Carolina has established Policies and Procedures for e-filing. Section 10.5 of the ECF Policies and Procedures manual provides that "documents containing the signature of persons other than Filing Users are to be filed electronically as a scanned image." Additionally, the United States District Court for the District of South Carolina has published an Attorney's Manual. Section 7 of the Manual explains that "[s]ome documents which bear the signatures of persons other than the particular Filing User who filed the document (including other Filing Users) must be electronically filed as scanned images (e.g., affidavits)." Therefore, the federal court's Policies and Procedures required respondent to file scanned images of the originally signed affidavits, not copies with conformed signatures. LAW Respondent admits that, by her misconduct, she has violated the Rules of Professional Conduct, Rule 407, SCACR, *367 particularly Rule 3.3 (lawyer shall not knowingly make false statement of fact to tribunal or fail to correct false statement of material fact previously made to the tribunal by lawyer); Rule 8.4(a) (it is professional misconduct for lawyer to violate or attempt to violate the Rules of Professional Conduct); Rule 8.4(d) (it is professional misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and Rule 8.4(e) (it is professional misconduct for lawyer to engage in conduct prejudicial to administration of justice). Respondent acknowledges that her misconduct constitutes grounds for discipline under the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR, specifically Rule 7(a)(1) (it shall be ground for discipline for lawyer to violate Rules of Professional Conduct). CONCLUSION We find that respondent's misconduct warrants a public reprimand. Accordingly, we accept the Agreement for Discipline by Consent and publicly reprimand respondent for her misconduct. Respondent shall pay the costs associated with the investigation and prosecution of this matter within thirty (30) days of the date of this opinion. PUBLIC REPRIMAND. TOAL, C.J., PLEICONES, BEATTY and KITTREDGE, JJ., concur. HEARN., J., not participating.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501454/	714 S.E.2d 742 (2011) 311 Ga. App. 99 SMITH v. HALL. No. A11A1042. Court of Appeals of Georgia. July 21, 2011. Kenneth E. Futch Jr., Becky C. Wilcox, Waycross, for appellant. Coleman Talley, George T. Talley, Eric Andrew Collins, Valdosta, for appellee. McFADDEN, Judge. William Dalton Smith, Jr. appeals the trial court's order enforcing a settlement agreement with Roxanne Hall, the defendant in Smith's personal injury action. Smith argues that there was no meeting of the minds because in response to his offer to settle, Hall submitted a counteroffer, not an acceptance. We find that Hall's response was an acceptance of Smith's offer to settle, and therefore affirm the trial court. On July 7, 2010, Smith's attorney sent a letter to Hall's attorney submitting a demand for settlement in the amount of $25,000, the limits of Hall's insurance policy. The letter provided that [t]his settlement demand is based upon representations that the limits of liability/bodily injury coverage available to [Hall] [are] 24,000/50,000/25,000 and based upon representations that there is no other available insurance to address the allegations of this action. If it is later determined that this is incorrect, this settlement offer will be void. The letter stated that the offer terminated at 4:00 p.m. on July 14, 2010, and provided that "[a]ny deviation or delay in this acceptance will be considered an automatic rejection of this demand." Smith's counsel extended the deadline for Hall to respond, and Hall's counsel wrote two letters seeking clarification of 743 whether the offer to settle included a release of the claims against Hall and her insurer. Smith did not respond in writing. Nonetheless, by the extended deadline, Hall's counsel wrote to Smith's counsel that "[w]e hereby accept your demand for settlement. . . ." Hall's counsel included a check for $25,000 with the letter. The attorney also included three documents for Smith's or his attorney's signature: a release and indemnity agreement; an affidavit of no liens; and an attorney's certificate of no liens. The letter explained that [i]t is our understanding that there are no other parties or available insurance policies from which your client could collect any potential judgment for his damages. In light of this fact, the release in this matter is general as it relates to our client and [her insurer]. If there is other insurance available, that we are not aware of, we could discuss the terms of a release and consider a Limited Liability Release which would permit Mr. Smith to pursue his claims to the extent there is other insurance available. Otherwise we will assume that the release is acceptable and that you and your client will execute all of the settlement documents prior to negotiating the settlement check. (Emphasis in original.) About a week later, Smith's counsel returned the check and documents to Hall's counsel on the ground that they were not an acceptance of the July 7 demand but instead were a rejection and counteroffer. Hall filed a motion to enforce the settlement agreement. The trial court granted the motion, ordering Smith to accept $25,000 from Hall or her insurer, to execute a release of his claims against Hall and her insurer, and to dismiss the lawsuit with prejudice. Smith appeals. The facts are not in dispute, and our review is de novo. Jones v. Frickey, 274 Ga. App. 398, 400, 618 S.E.2d 29 (2005), aff'd, Frickey v. Jones, 280 Ga. 573, 630 S.E.2d 374 (2006). Smith argues that Hall did not accept the offer to settle because her purported acceptance included a release that sought to release parties other than Hall, and thus attempted to broaden the scope of the method necessary to terminate the lawsuit. Hall counters that her letter constituted an acceptance, and the proposed settlement documents were not a mandatory element. Smith relies on Johnson v. Martin, 142 Ga. App. 311, 235 S.E.2d 728 (1977), while Hall relies on Herring v. Dunning, 213 Ga.App. 695, 446 S.E.2d 199 (1994). Both cases involved series of letters between plaintiff's counsel and defense counsel. In Johnson, the court found no settlement while in Herring, the court found a settlement. In Johnson, the plaintiff, Johnson, sued two defendants, Martin and Ferguson, in her personal injury action. After filing the action, Johnson's attorney wrote a letter to Martin's attorney "offering to settle this case for the limits of your policy in the total amount of $10,000." Johnson, supra at 311, 235 S.E.2d 728. Martin's attorney responded that he accepted the offer to settle. He enclosed with his letter a release of Johnson's claims not only against Martin but also against the other defendant, Ferguson. The attorney wrote that "[u]pon the execution and delivery to us of the enclosed dismissal and release, the enclosed draft may be presented for payment . . . ." Id. In finding no settlement, we held that, "[c]learly the intent of Martin's attorney was to qualify his acceptance of the offer by adding as a condition to the agreement the signing of the release by plaintiff." Id. And that release, which released Johnson's claims against both defendants as well as "any and all persons," would bar Johnson from pursuing her claims against Ferguson, even though her settlement proposal was made only to Martin. Therefore, we concluded, there was no contract to settle the case. In Herring, on the other hand, although the attorneys' letters "contained no express promise to release or discharge the defendant upon tender of the policy limits," Herring, supra at 698, 446 S.E.2d 199, the court nonetheless found that "a promise to terminate the controversy or the litigation is a necessary implication to the offer to settle." Id. (Punctuation omitted.) Therefore, the fact that the correspondence did not resolve how the litigation would endan essential 744 provision which the court dismissed as "so clearly within the contemplation of the parties that they apparently deemed it unnecessary to state it," id.was not fatal to the defendant's attempt to enforce a settlement. The court held that the "fact that [the defendant's] acceptance of [the plaintiff's] offer to settle suggested one form of terminating the controversy over another [did] not render such acceptance a counteroffer which reject[ed] the plaintiff's offer," but instead was "a valid acceptance with the suggested choice for terminating the controversy being merely precatory," id. at 699, 446 S.E.2d 199, "meaning a recommendation, not a condition." Frickey, supra at 575, 630 S.E.2d 374. We ruled that from the moment the acceptance was mailed, a contract had been formed, and that although the presentation of a proper release in a form acceptable to the plaintiff might have been a condition of performance, it was not an act necessary to acceptance of the offer to settle for the policy limits. We find Herring controlling and Johnson distinguishable. Here, like the attorney in Herring, Hall's attorney unequivocally accepted the offer to settle when he wrote "[w]e hereby accept your demand for settlement. . . ." His inclusion of a general release was merely a suggestion of how to terminate the lawsuit, as indicated by his writing that, "[i]f there is other insurance available, that we are not aware of, we could discuss the terms of a release and consider a Limited Liability Release which would permit Mr. Smith to pursue his claims to the extent there is other insurance available." "[T]he presentation of a proper release in a form acceptable to plaintiff may have been a condition of defendant's performance but it was not an act necessary to acceptance of plaintiff's offer to settle for the policy limits." (Punctuation omitted.) Moreno v. Strickland, 255 Ga.App. 850, 853-854(1), 567 S.E.2d 90 (2002). Unlike the attorney in Johnson, Hall did not qualify her acceptance of the offer on Smith's release of claims against named defendants besides herself; here, there was only one named defendant, Hall, and she was willing to discuss the terms of a release so that Smith could pursue his claims to the extent there was other insurance. For these reasons, we conclude that the trial court did not err in granting Hall's motion to enforce the settlement. Judgment affirmed. PHIPPS, P.J., and ANDREWS, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501552/	270 F. Supp. 2d 779 (2003) Karen LECLERC, et al. v. Daniel A. WEBB, et al. No. Civ.A. 03-664. United States District Court, E.D. Louisiana. July 2, 2003. 783 Louis Roy Koerner, Jr., Law Offices of Louis R. Koerner, New Orleans, LA, for Plaintiff. Maureen D Affleck, New Orleans, LA, pro se. Richard P. Ieyoub, Louisiana Department of Justice Attorney General's Office, Baton Rouge, LA, Harry Rosenberg, Bruce Victor Schewe, Christopher K. Ralston, Phelps Dunbar, LLP, New Orleans, LA, for Defendants. ORDER AND REASONS ZAINEY, District Judge. Before the Court are Defendants' Motion to Dismiss (Rec.Doc. 18) filed by Justices Jeffery P. Victory, Jeannette Theriot Knoll, Chet D. Traylor, Catherine D. "Kitty" Kimball, John L. Weimer, Bernette Joshua Johnson, in their official capacities as Justices of the Supreme Court of Louisiana, and Daniel A. Webb and Harry J. Philips, Jr., in their official capacities as Chairman and Vice-Chairman of 784 the Louisiana Committee on Bar Admissions, Plaintiffs' Appeal of the Order of the Magistrate Judge Granting a Protective Order and Staying All Discovery (Rec.Doc. 25) and Plaintiffs' Motion for Summary Judgment (Rec.Doc. 12) filed by Karen Leclerc, Guillaume Jarry, Beatrice Boulord, and Maureen Affleck. Plaintiffs are non-immigrant aliens [1] residing in the United States pursuant to temporary visas. Plaintiffs have brought this suit challenging Louisiana Supreme Court Rule XVII, Section 3(B) which requires that every applicant to the Louisiana bar be a citizen or resident alien of the United States. They allege that Rule XVII, as currently interpreted by the Louisiana Supreme Court, is unconstitutional and/or preempted by federal law. Plaintiffs seek declaratory and injunctive relief as well as an award of costs and attorney's fees. Defendants have moved to dismiss all claims arguing inter alia that the suit is barred by the Eleventh Amendment as well as the doctrines of judicial and legislative immunity. Defendants also argue that Plaintiffs fail to state a claim for relief under federal law. I. Factual Background Plaintiffs currently reside in the United States under temporary visas which provide a date certain when they must leave the United States. Leclerc, Jarry, and Boulord are French citizens admitted to the United States pursuant to J-l visas. Affleck is a Canadian citizen admitted to the United States pursuant to an L-2 visa. All plaintiffs are graduates of foreign law schools. Plaintiffs desire to submit applications to sit for the July 2003 bar examination and believe themselves to be qualified but for their status as non-resident aliens.[2] Affleck applied for an equivalency determination pursuant to Rule XVII, Section 6.[3] On November 15, 2002, the Bar Admissions administrator informed Affleck that an equivalency determination would not be forthcoming because Affleck was neither a U.S. citizen nor resident alien. Rec. Doc. 8, Exhibit 9. Affleck did not petition the Louisiana Supreme Court for a review of that denial pursuant to Section 9 of Rule XVII.[4] When this suit was filed, Leclerc, 785 Jarry, and Boulord had not yet applied for equivalency determinations.[5] Although untimely under the Louisiana rules, Leclerc, Jarry, and Boulord submitted equivalency applications after Defendants argued (in their motion to dismiss) that Plaintiffs lacked standing to bring this suit.[6] On March 6, 2003, Plaintiffs Leclerc, Jarry, and Boulord filed their original complaint seeking declaratory relief and injunctive relief against Defendants as well as costs and attorney's fees. Plaintiffs named as defendants six of the seven Louisiana Supreme Court JusticesJeffery P. Victory, Jeannette Theriot Knoll, Chet D. Traylor, Catherine D. "Kitty" KimbaU, John L. Weimer, and Bernette Joshua Johnson ("the Justices"), Daniel A. Webb, Chairman of the Louisiana Committee on Bar Admissions, and Harry J. Philips, Jr., Vice-Chairman of the Louisiana Committee on Bar Admissions ("the Bar Admissions Officials") (collectively "Defendants"). All Defendants were sued in their official capacities only. The Court held a status conference on March 20, 2003, and set deadlines for briefing on cross motions for summary judgment: Rec. Doc. 7. Plaintiff Affleck joined this suit via amended complaint on March 27, 2003. Defendants moved to stay all discovery pending a determination on their immunity defenses and on May 1, 2003, the magistrate judge granted a stay. Rec. Doc. 17. Plaintiffs' appeal of that order is currently before the Court and is inextricably intertwined with the arguments raised in Defendants' motion to dismiss. Pursuant to the Court's scheduling order, Plaintiffs filed their fully-briefed motion in support of declaratory relief[7] and Defendants filed their fully-briefed motion to dismiss. Both motions were set for hearing on May 21, 2003. On May 21, 2003, the Court held a status conference at Plaintiffs' request and at Plaintiffs' urging the motions were continued for hearing on June 4, 2003. The Court ordered supplemental briefing on Plaintiffs' immigration status, and on June 25, 2003, the Court heard oral argument. In their motion for summary judgment Plaintiffs pray for a judgment: 1. Declaring the unconstitutionality of Section 3(B) of Rule XVII of the Rules of the Louisiana Supreme Court as interpreted by that Court to deny bar admission to "non-resident aliens"; 2. Declaring that Section 3(B) of Rule XVII of the Rules of the Louisiana Supreme Court as interpreted by 786 that Court is preempted by the plenary power of the Federal Government to set immigration policy; 3. Declaring that the Louisiana Supreme Court and the Louisiana Committee on Bar Admissions may not constitutionally deny plaintiffs the opportunity to sit for the Louisiana state bar examination solely on account of the fact that they are not citizens or resident aliens and to permit them to submit an application package, including that for equivalency determination if one has not already been submitted, so as to permit them to sit for the Louisiana state bar examination in July of 2003, provided that they meet all other requirements of Rule XVII, as reasonably interpreted; 4. Awarding Plaintiffs reasonable costs and attorney's fees under 42 U.S.C. § 1988. Defendants assert that Plaintiffs fail to present a justiciable case or controversy because their claims are not ripe for adjudication and because Plaintiffs lack standing. Defendants further argue that Plaintiffs' claims are barred by the Eleventh Amendment and the doctrines of judicial immunity and/or legislative immunity. Finally, Defendants argue that Plaintiffs' complaint fails to state a claim upon which relief can be granted. Alternatively, Defendants urge the Court to abstain from this matter. The Court addresses each argument in turn. II. Defendants'Motion to Dismiss A. Legal Standards A litigant may object to a court's lack of jurisdiction through a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Jurisdictional defects include immunity of the defendants in an action and the court's consequent lack of subject matter jurisdiction. Bank One Texas v. United States, 157 F.3d 397, 403 & n. 12 (5th Cir.1998). Under Rule 12(b)(6) a court must dismiss a complaint that fails to state a claim upon which relief can be granted. When considering a Rule 12(b)(6) motion to dismiss, the court views all material allegations in plaintiffs complaint as true. See In re Mastercard Int'l, Inc., 313 F.3d 257, 261 (5th Cir.2000). Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss. Id. B. Case or Controversy Defendants assert that Plaintiffs rest their claims on factual assumptions and conjecture that do not present a "case" or "controversy" under Article III of the United States Constitution. Thus, Defendants assert that Plaintiffs' claims are not ripe for adjudication and that Plaintiffs lack standing to pursue their asserted claims. Defendants point out that Leclerc, Jarry and Boulord have taken none of the required steps in order to sit for the Louisiana bar exam. Thus, Leclerc, Jarry and Boulord have not been subject to any adverse action by Defendants on any basis including their alienage. Defendants point out that Leclerc, Jarry, and Boulord must obtain equivalency determinations for their foreign law school educations, and that an adverse determination on equivalency would moot any issue as to their residency status. Because Leclerc, Jarry, and Boulord have been subject to no adverse action, Defendants argue that they also lack standing to bring this suit because they seek redress for an injury that has not and may never occur. Defendants concede that Affleck submitted a timely application for an equivalency determination and that her application was not considered due to her status as a non-resident alien. However, 787 Defendant contend that Affleck also has a ripeness/standing problem because she did not avail herself of the review procedures provided in Supreme Court Rule XVII, Section 9.[8] Defendants contend that at the conclusion of that appeal process, which all Plaintiffs would be required to complete, the Rooker-Feldman doctrine would then have deprived this Court of jurisdiction to consider Plaintiffs' claims.[9] Although she did not avail herself of the review procedures provided in the Supreme Court rules, Affleck asserts that federal law does not require exhaustion of state remedies prior to bringing a claim alleging violations of federal law. Moreover, she asserts that any appeal would have been futile anyway. Given then that the bar committee has cited Affleck's alienage as the basis for refusing to consider her equivalency application, Affleck asserts that she has a justiciable claim. Leclerc, Jarry, and Boulord argue that Affleck's situation demonstrates the futility of submitting an equivalency application, and therefore, excuses their failure to seek equivalency determinations.[10] Leclerc, Jarry, and Boulord argue that concrete injury is surely imminent.[11] In reply, Defendants clarify that they are not arguing that any type of administrative exhaustion applies to Plaintiffs' constitutional claims.[12] Rather, Defendants argue that Plaintiffs must receive a definitive adverse action before they may complain of a constitutional violation. Until Plaintiffs pursue their applications through the review and appeal procedures 788 provided for in the Louisiana Supreme Court rules, no plaintiff has received a definitive adverse action for purposes of standing and ripeness. Article III of the United States Constitution limits federal courts to the decision of "cases" and "controversies." Shields v. Norton, 289 F.3d 832, 834-35 (5th Cir. 2002). Ripeness and standing are two "justiciabilty doctrines" developed by federal courts to give meaning to the case or controversy requirement. United Transportation Union v. Foster, 205 F.3d 851, 857 (5th Cir.2000). Thus, ripeness and standing are both constitutional prerequisites to the exercise of jurisdiction. Ripeness A matter is ripe only where an "actual controversy" exists. Shields, 289 F.3d at 835 (citing 28 U.S.C. § 2201(a)). Ripeness separates those matters that are premature because the injury is speculative and may never occur from those that are appropriate for judicial review. United Transportation, 205 F.3d at 857 (citing Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977)). A case is generally ripe if any remaining questions are purely legal ones. Id. (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d 583, 586-87 (5th Cir.1987).). Conversely, a case is not ripe if further factual development is required. Id. When challenging a statute or rule, ripeness may require that the rule be evaluated in light of a particular situation rather than a hypothetical one. See Texas v. United States, 523 U.S. 296, 301, 118 S. Ct. 1257, 1260,140 L.Ed.2d 406 (1998). The Court is not persuaded that Plaintiffs' claims are not ripe for adjudication. Both parties agree that no further factual development is necessary in this litigation. The only issues now before the Court are strictly legal ones. Clearly, an actual controversy exists between the parties. Further, this case does not involve the speculative and hypothetical type of injury at issue in those cases where plaintiffs challenge to a statute has been rejected as premature. For instance Defendants cite National Park Hospitality Association v. Department of the Interior, ___ U.S. ____, 123 S. Ct. 2026, 155 L. Ed. 2d 1017 (2003), in support of their ripeness argument. In National Park, plaintiffs made a facial challenge to a federal law whose scope was unclear. Plaintiffs argued that the uncertainty as to the statute's application was causing them injury in that they could not adequately prepare bids for certain government contracts. The Court rejected that contention and concluded that judicial resolution of the statute's application should await a concrete dispute about a particular contract. 123 S. Ct. at 2032-33. In contrast, the Louisiana Supreme Court has already applied Rule XVII in at least one particular instance in this litigation, i.e., Affleck's application. Her application for equivalency was denied solely due to her residency status. Based on the Louisiana Supreme Court's decisions in In re Bourke, 819 So. 2d 1020 (La.2002), and In re Schnyder, 824 So. 2d 1135 (La.2002), as well as the experiences of Royot, Marty, and Moguen, there is no reason to think that the Supreme Court would have granted Affleck relief had she pursued the appeal process. Likewise, there is no reason to believe that Leclerc, Jarry, and Boulord would have been any more successful than Affleck, Bourke, and Schnyder. Accordingly, Plaintiffs' claims are ripe for adjudication. Standing To satisfy the standing requirement, the plaintiff must have suffered an injury in fact. Southern Christian Leadership Conf. v. Supreme Court of the State 789 of Louisiana, 252 F.3d 781, 787 (5th Cir. 2001). An "injury in fact" is an invasion of a legally protected interest which is both (a) concrete and particularized, and (b) actual or imminent and not conjectural or hypothetical.[13]Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992)). Plaintiff cannot establish standing by relying on an undifferentiated interest in the proper application of the law. Sierra Club v. Glickman, 156 F.3d 606, 613 (5th Cir. 1998). To establish standing to challenge an allegedly unconstitutional policy, as a general matter "a plaintiff must submit to the challenged policy." Ellison v. Connor, 153 F.3d 247, 254-55, (5th Cir.1998) (quoting Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2d Cir.1997)). In other words, a plaintiff "may not seek redress for injuries done to others." Id. (quoting Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1973)). However, in the Fifth Circuit, this threshold requirement for standing may be excused where the plaintiff makes a "substantial showing that application for the benefit ... would have been futile." Id. (citing Jackson-Bey, 115 F.3d at 1096). In Ellison, the Fifth Circuit applied this "futility exception" to plaintiff landowners who sought to challenge the constitutionality of a Corps of Engineers permitting decision. Defendants argued that plaintiffs lacked standing because they had not actually applied for, and been refused, a permit. However, the Corps had previously advised plaintiffs via letter that it would not allow construction on plaintiffs' land. The Fifth Circuit reversed the district court's finding of no standing. 153 F.3d at 254-55. The court concluded that it would be futile to require the plaintiffs to ask the Corps for a permit when the Corps had already made a determination that no permit would issue. Id. at 255. Based on the foregoing, the Court has no doubt that Affleck has standing to challenge Rule XVII. The Bar Committee informed Affleck that her equivalency application would not be considered due to her residency status. She therefore suffered a concrete injury as a result of Rule XVII. Based upon the prior decisions of the Louisiana Supreme Court denying the petitions of other non-immigrant aliens the Court concludes that any petition to the Louisiana Supreme Court would have been futile. Leclerc, Jarry, and Boulord present a far more difficult question because they took no steps in furtherance of submitting an application to sit for the bar exam prior to filing this lawsuit. Although they submitted equivalency applications after they filed this lawsuit, those applications appear to be untimely and therefore may be rejected by Defendants on grounds wholly unrelated to their residency status. However, without a doubt Defendants will eventually reject Leclerc, Jarry, and Boulord's applications due to their residency status given the Supreme Court's unequivocal position on the issue. The fact that Leclerc, Jarry, and Boulord will suffer injury due to Rule XVII is not conjectural or hypothetical. It just has yet to happen. Because their injury is certain to occur and imminent, the Court concludes that they too have standing to challenge Rule XVII.[14] 790 In sum, Defendants' motion to dismiss based on Plaintiffs' failure to establish a case or controversy is DENIED. C. Eleventh Amendment Immunity Defendants argue that the Eleventh Amendment bars Plaintiffs' claims. Because all defendants are state officials sued in their official capacities, the state is the real party in interest. Therefore, Defendants argue, the Eleventh Amendment bars suit regardless of the relief sought. Plaintiffs do not dispute that the Eleventh Amendment applies to the Justices as well as to the Bar Admissions Officials. Plaintiffs assert, however, that sovereign immunity does not bar the prospective declaratory relief Plaintiffs seek. Plaintiffs argue that any assertion that the Eleventh Amendment bars suit regardless of the type of relief sought is contrary to established United States Supreme Court jurisprudence. The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const, amend. XL The Eleventh Amendment generally divests federal courts of jurisdiction to entertain suits directed against states. Green v. State Bar of Texas, 27 F.3d 1083, 1087 (5th Cir.1994) (citing Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S. Ct. 1868, 1871, 109 L. Ed. 2d 264 (1990)). Although by its terms the Amendment applies only to suits against a state by citizens of another state, the Supreme Court interprets the Amendment as barring suits in federal court by citizens against their own states as well. See Cox v. City of Dallas, 256 F.3d 281, 307 (5th Cir.2001) (citing Board of Trustees v. Garrett, 531 U.S. 356, 121 S. Ct. 955, 962, 148 L. Ed. 2d 866 (2001)). The Eleventh Amendment may not be evaded by suing state officers in their official capacities because such an indirect pleading device remains in essence a claim against the state. Id. (citing Stem v. Ahearn, 908 F.2d 1, 3 (5th Cir.1990)). Eleventh Amendment relief is available to both the Louisiana Supreme Court and the Louisiana State Bar Association. Southern Christian Leadership v. Supreme Court of State of Louisiana, 61 F. Supp. 2d 499, 505 (E.D.La.1999) (citing Lewis v. Louisiana State Bar Ass'n, 792 F.2d 493, 497 (5th Cir.1986)). However, where state officials are sued in their official capacities, the doctrine of Ex parte Young may operate as an exception to the Eleventh Amendment. Cox, 256 F.3d at 307 (citing Ex parte Young, 209 U.S. 123,159-60, 28 S. Ct. 441, 52 L. Ed. 714 (1908)). Under Ex parte Young, the Eleventh Amendment does not bar a suit against a state official alleged to be acting in violation of federal law. Id The Ex parte Young doctrine is grounded on the concept that the state cannot authorize its officials to "violate the Constitution and laws of the United States. Id. (citing Ex parte Young, 209 U.S. at 160, 28 S. Ct. 441, 52 L. Ed. 714). Ex parte Young only permits an award of declaratory or prospective injunctive relief, i.e., to enjoin the future enforcement of an unconstitutional rule, regulation, or law. See id.; Thiel v. State Bar of Wisconsin, 94 F.3d 399, 400 (7th Cir.1996). Retrospective relief in the form of a money judgment in compensation for past wrongsno matter how smallis barred. Brennan v. Stewart, 834 F.2d 1248, 1252 (5th Cir.1988). The Ex parte Young exception does not apply to state law claims. See Pennhurst v. Halderman, 465 U.S. 89, 105, 104 S. Ct. 900, 911, 79 L. Ed. 2d 67 (1984) (noting that 791 Ex parte Young is inapplicable where violations of state law are at issue). In this case Plaintiffs' federal claims fall squarely within the Ex parte Young exception to Eleventh Amendment immunity. Plaintiffs have sued all defendants in their official capacities and seek only declaratory and prospective injunctive relief. Plaintiffs are not seeking monetary compensation for past wrongs. Therefore, Defendants are not entitled to dismissal of Plaintiffs' federal claims based upon Eleventh Amendment immunity. However, to the extent Plaintiffs are attempting to assert any type of state law claim, those state law claims are dismissed for lack of subject matter jurisdiction.[15] In sum, Defendants' motion to dismiss based on Eleventh Amendment immunity is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED insofar as Plaintiffs are attempting to assert state law claims. The motion is DENIED as to Plaintiffs' federal claims. D. Absolute Immunity 1. Judicial Immunity Defendants argue that judges are absolutely immune from suits based upon actions taken in their official judicial capacities. Further, Defendants point out that Congress enlarged judicial immunity via the Federal Courts Improvement Act of 1996 ("the FCIA") which specifically amended 42 U.S.C. § 1983. Plaintiffs dispute whether the actions complained of were taken in Defendants' judicial capacities. Plaintiffs point out that their claims arise out of the way Defendants are enforcing an allegedly unconstitutional rule and therefore Defendants' actions have been taken in their enforcement capacities. Plaintiffs assert that the FCIA was not intended to erase the distinction previously made between actions taken in a judicial officer's judicial capacity versus those taken in enforcement and administrative capacities. Plaintiffs also assert that judicial immunity does not apply to the declaratory relief Plaintiffs seek. Plaintiffs distinguish their case from those upholding judicial immunity by pointing out that their case is one questioning the constitutionality of a bar admissions rule generally as opposed to an aggrieved individual. Plaintiffs remind the Court that their challenge to Rule XVII is a facial one so that they are not challenging the adjudication of an individual application, ie., action taken in the officer's judicial capacity. As such, Plaintiffs argue that their claims are not barred by judicial immunity. Three United States Supreme Court cases form an appropriate starting point for consideration of Defendants' judicial immunity defense. In Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 736, 100 S. Ct. 1967, 1977, 64 L. Ed. 2d 641 (1980), the Supreme Court held that judicial immunity did not bar injunctive relief against the Virginia Supreme Court and its chief justice. Plaintiffs brought a facial challenge to an allegedly unconstitutional bar rule and sought to enjoin defendants from prospectively enforcing it against attorneys. In upholding the in-junction, 792 the Court distinguished between the various capacities in which the state's supreme court was authorized to act under state law. Thus, in conjunction with administering bar matters, the state's highest court engages in adjudicative duties (determining moral fitness of attorney applicants), legislative or rule-making duties (promulgating bar admission rules and procedures), and enforcement duties (applying the bar rules against attorneys or bar applicants), but judicial immunity would not per se apply to the latter two functions. In Consumers Union, the Court held that plaintiffs were entitled to declaratory and injunctive relief without regard to the defendants' status as judicial officers because the lawsuit arose out of their role as "enforcers" of the bar rules. Thus, like any state official who enforces laws, injunctive and declaratory relief were available notwithstanding that defendants were judicial officers. Id. Four years later, in Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S. Ct. 1970, 1981, 80 L. Ed. 2d 565 (1984), the Supreme Court held that judicial immunity did not prohibit declaratory and injunctive relief against a judicial officer acting in his or her judicial capacity. In Pulliam, plaintiff had challenged the constitutionality of a state judge's practice of incarcerating persons awaiting trial for nonincarcerable offensesacts clearly taken in defendant's judicial capacity. Thus, in the wake of Consumers Union and Pulliam, judicial immunity did not apply to acts taken by judicial officers in their enforcement capacities and was not a bar to declaratory and injunctive relief for acts taken in the judge's judicial capacity. Finally, in Forrester v. White, 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988), the Court again recognized the importance of properly categorizing a judicial officer's acts for purposes of determining whether judicial immunity applies. In that case the Court found judicial immunity inapplicable where a state judge had been sued for sexual discrimination in employment-related matters. Id. at 229, 108 S. Ct. at 545. The Court noted that there is no immunity for "acts that simply happen to have been done by judges" when those acts are not judicial acts. Id. at 227, 108 S. Ct. at 544. Rather, the "immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches." Id. Although the Supreme Court had never articulated a precise and general definition of the class of acts entitled to immunity, the Court recognized the "intel-Hgible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform." Id, at 227, 108 S. Ct. at 544. Consumers Union, Pulliam, and Forrester demonstrate that the question of judicial immunity in any given situation can only be answered with reference to the relief sought and the capacity in which the judge had acted. It is also clear that the Supreme Court in crafting judicial immunity over the years did not consider every act taken by a judge to be in his judicial capacity merely by virtue of the officer's status as a judge. If Consumer's Union, Pulliam, and Forrester remain good law then Defendants' judicial immunity argument is without merit.[16] However, in 1996 Congress enacted the Federal Courts Improvement Act of 1996 which amended 42 U.S.C. § 1983 to provide that "in any action 793 brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable." Pub.L. No. 104-317, 110 Stat. 3847 (Oct. 19, 1996) (emphasis added). The Senate report indicates that the amendment "restores the doctrine of judicial immunity to the status it occupied prior to [Pulliam ]" because Pulliam had departed from "400 years of common law tradition and weakened judicial immunity protections." S. Rep. 104-366, at 36-37, 1996 U.S.C.C.A.N. 4202, 4216-17. Defendants can make no colorable argument that the FCIA did anything to alter the landscape with respect to declaratory relief. Declaratory relief against judges acting in their judicial capacities was wellestablished before the FCIA. The FCIA amendments continue to contemplate declaratory relief by making express reference to it as a first step before injunctive relief is permissible. Moreover, the FCIA does not purport to eliminate the clear distinctions among the various capacities in which judicial officers act. The Supreme Court's jurisprudence had long been unequivocal in that the Court did not consider every act taken by a judicial officer to be a "judicial act" subject to judicial immunity. Therefore, Congress's decision to preclude injunctive relief when the judge acts specifically in his "judicial capacity" can only mean that injunctive relief remains available when the judicial officer acts in other capacities. This Court cannot make law. Had Congress intended for the amendment to apply regardless of which capacity the judge was acting, Congress would have said so. Likewise, had Congress intended to erase the long accepted capacity distinctions recognized by the High Court it would have used appropriate language.[17] Instead, Congress specifically refers to acts taken in the judicial capacity. The Court is persuaded that the FCIA does not bar injunctive relief where a judicial officer acts in other capacities such as the enforcement capacity. Defendants have argued strenuously that the FCIA protects them from injunctive relief because the acts of which Plaintiffs complain were performed in Defendants' judicial capacities. The Court is not so persuaded given the unique role that the Louisiana Supreme Court occupies under the state constitution and given that Plaintiffs are making a facial challenge to Supreme Court Rule XVII. The Louisiana Constitution gives Defendants the exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship. Succession of Wallace, 574 So. 2d 348, 350 (La. 1991) (citing LSBA v. Edwins, 540 So. 2d 294 (La.1989); Saucier v. Hayes Dairy Products, Inc., 373 So. 2d 102, 109, 115 (La.1979); LSBA v. Connolly, 201 La. 342, 9 So. 2d 582 (1942); Ex Parte Steckler, 179 La. 410, 154 So. 41 (1934); Meunier v. Bernich, 170 So. 567 (La.App.1936)). Consequently, the Louisiana Legislature cannot enact laws defining or regulating the practice of law in any aspect without Defendants' consent. Id. (citing La. Const. 1974, Art. II). Nor is any officer of the executive branch charged with enforcing bar rules. Thus, in conjunction with attorney and bar matters, the Louisiana Supreme Court acts in the role of all three branches of government. It acts as a legislative 794 branch when promulgating rules, as a judicial branch when considering whether a particular applicant should be granted admission, and as an executive branch when it enforces or applies the very rules it makes. Clearly, had Plaintiffs been mounting a facial challenge to an unconstitutional statute passed by the legislature, the proper party defendant would be the executive branch state officer charged with enforcing that statute. In this case, due to the unique role of the Louisiana Supreme Court, Defendants are those state officers. In sum, for the facial challenge Plaintiffs bring today, Defendants are the proper party defendants because they are charged with enforcing the allegedly unconstitutional rule. Thus, for a suit mounting a facial challenge Defendants are by clear implication being sued in their enforcement capacities. Moreover, this conclusion is not at odds with the well-established principle that admission to a jurisdiction's bar is "peculiarly a judicial function." McFarland v. Folsom, 854 F. Supp. 862, 874 (M.D.Ala.1994). Because Plaintiffs are mounting a facial challenge to Rule XVII and are not suing Defendants for any individual culpability in conjunction with Rule XVII, the "judicial function" aspects of judicial immunity are not at issue here. Thus, the Court concludes that Defendants are not entitled to judicial immunity for Plaintiffs' claims.[18] In sum, Defendants' motion to dismiss based on judicial immunity is DENIED. 2. Legislative Immunity Defendants assert that they are entitled to absolute legislative immunity from any suit related to bar admissions rule-making. When the Justices and Bar Admissions Officials promulgate and implement bar admission rules they occupy the position of legislators. In addition to Plaintiffs' arguments already recited regarding immunity, Plaintiffs assert that immunity does not extend to protect rules that are unconstitutional. Thus, regardless of the capacity in which Defendants are acting, a person's constitutional rights cannot be breached to prevent him/her from practicing law. When exercising its sovereign rule-making authority, a state supreme court occupies the same position as that of the state legislature. Lewis v. Louisiana State Bar Ass'n, 792 F.2d 493, 497 (5th Cir.1986) (citing Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977)). Like legislators, the members of the state's highest court are entitled to absolute legislative immunity in conjunction with promulgating bar admission rules. Consumers Union, 446 U.S. at 730-34, 100 S. Ct. at 1974-75. Thus, legislative immunity would foreclose any suit based upon the issuance of, or failure to amend, a challenged bar admission rule. Id. at 734, 100 S. Ct. at 1976. The same immunity applies to members of a state bar association whose role is "completely defined by the court." Lewis, 792 F.2d at 497 (quoting Bates, 433 U.S. at 361, 97 S. Ct. at 2697). Plaintiffs are making a facial challenge to the constitutionality of Rule XVII. They seek to enjoin its enforcement. None of their claims are directed at Defendants' role in having promulgated Rule XVII. Accordingly, legislative immunity is 795 inapplicable. Defendants' motion to dismiss based on legislative immunity is DNIED. E. Abstention Defendants argue that the Court should exercise its discretion to abstain from this matter pursuant to Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943). Defendants point out that this matter involves questions of state law that are uniquely within the knowledge and expertise of the Louisiana Supreme Court. Therefore, the Louisiana Supreme Court, and not the federal judiciary, should oversee and administer Louisiana's bar admission rules. In opposition, Plaintiffs argue that Burford abstention is inappropriate because no difficult questions of state law are involved in this case. Rather, Plaintiffs challenge Section 3(B) of Rule XVII on inter alia federal constitutional grounds. Thus, there is no justification for this Court to abdicate its jurisdiction. While federal courts have a strict duty to exercise jurisdiction that is conferred upon them by Congress, the duty is not absolute. Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 716, 116 S. Ct. 1712, 135 L. Ed. 2d 1 (1996). Keeping in mind that abstention is the exception and not the rule, federal courts may decline to exercise their jurisdiction in circumstances where denying a federal forum would clearly serve important countervailing interests such as considerations of proper constitutional adjudication, regard for federal-state relations, or wise judicial administration. Id. In exercising their discretion, federal courts must "fit within the narrow and specific limits prescribed by the particular abstention doctrine involved." Webb v. B.C. Rogers Poultry Inc., 174 F.3d 697, 701 (5th Cir.1999) (quoting Clark v. Fitzgibbons, 105 F.3d 1049, 1051 (5th Cir.1997)). The Burford abstention doctrine allows federal courts to dismiss a case only if it presents [D]ifficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar or if its adjudication in a federal forum would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Quackenbush, 517 U.S. at 707, 116 S. Ct. at 1716 (quoting Colorado River, 424 U.S. at 814, 96 S. Ct. at 1244-45). Without doubt this lawsuit involves questions of substantial state concern. There is no question that bar admission is distinctly a matter in which Louisiana has substantial interests. Unarguably, the Louisiana Supreme Court has unique knowledge and familiarity with the considerations at stake when licensing lawyers. Notwithstanding, Plaintiffs' claims do not involve the "difficult questions of state law" required for Burford abstention. Plaintiffs' claims are based solely on federal law. The meaning of Supreme Court Rule XVII is not at issue in this suit. The only issue is whether that rule is in conflict with various federal laws. Thus, the threshold requirement for Burford abstention is not present in this case. Furthermore, Defendants' abstention argument is less persuasive given that many of Plaintiffs' federal arguments have already been presented to and rejected by the Louisiana Supreme Court. See In re Bourke, 819 So. 2d 1020 (2002). At this time, there are no pending state court proceedings in which this Court need fear of interfering. For the foregoing reasons the Court declines to exercise its discretion to abstain from this matter. 796 III. Plaintiffs' Motion For Summary Judgment Plaintiffs move for summary judgment on their claims for declaratory relief. They assert that all facts are contained in the pleadings and that none of the relevant facts are in dispute. Plaintiffs point out that because this action results from the unconstitutionality of Louisiana Supreme Court Rule XVII, Section 3(B), and the Rule's blanket application to non-immigrant aliens, it is clear that no facts exist which could be contentious or that might affect the result of the action. Plaintiffs assert that the record indicates that the only genuine issue is one of constitutionality, and therefore, the case is ripe for summary adjudication.[19] A. Legal Standards In determining whether a party is entitled to summary judgment, the court views the evidence in the light most favorable to the non-moving party. Littlefield v. Forney Indep. School Dist, 268 F.3d 275, 282 (5th Cir.2001) (citing Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir.1998); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5th Cir.1998)). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, together with the 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. Id. (citing Celotex Corp. v. Catrett, All U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). The moving party bears the burden, as an initial matter, of showing the district court that there is an absence of evidence to support the nonmoving party's case. Id. (citing Celotex, All U.S. at 325, 106 S. Ct. at 2548, 106 S. Ct. 2548). If the moving party fails to meet this initial burden, the motion must be denied regardless of the nonmoving party's response. Id. B. Constitutional Claims Notwithstanding the plenary power of the state's highest court to regulate the practice of law, a state cannot exclude a person from the practice of law for reasons that contravene the Due Process or Equal Protection Clauses of the Fourteenth Amendment. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S. Ct. 752, 756, 1 L. Ed. 2d 796 (1957). Regardless of whether a state's grant of permission to practice law is a "right" or "privilege," a person cannot be prevented from practicing law except for valid reasons. Id n. 5 (citing Ex parte Garland, A Wall. 333, 379, 18 L. Ed. 366 (1866)). 1. Due Process Claims Plaintiffs assert that they were entitled to a hearing, the presentation of evidence to prove their allegations, and to the disclosure of whatever information and recommendations were presented to the Louisiana Supreme Court by the Louisiana State Bar Association Committee on Admissions. Plaintiffs assert that they were denied their due process rights when the Louisiana Supreme Court overruled its prior jurisprudence constante without giving Plaintiffs an opportunity to be heard. Defendants argue that Plaintiffs do not state a claim for a procedural due process violation nor a substantive due process violation. Defendants point out that none of the Plaintiffs availed themselves of the state review procedures and therefore can claim no due process violation. Defendants 797 argue that a substantive due process claim only protects "fundamental rights" and that there exists no fundamental or constitutional right of a non-lawyer to practice law. The Court has reviewed the authorities cited by Plaintiffs in support of their contention that they were denied due process of law and concludes that Plaintiffs fail to state a claim for a due process violation. While Willner v. Committee on Character & Fitness, 373 U.S. 96, 83 S. Ct. 1175, 10 L. Ed. 2d 224 (1963), does require that a denial of an application to practice law must comport with principles of procedural due process, the case does nothing to support the contention that Leclerc, Jarry, Boulord, and Affleck have been denied procedural due process. Willner requires the state to inform an applicant of the reasons his application is being denied and to permit a hearing thereafter. Id. at 105, 83 S. Ct. at 1181. Affleck was given the specific reason for Defendants' refusal to consider her equivalency application. The Supreme Court rules expressly permitted her to petition the Louisiana Supreme Court and to request a hearing. Willner requires no more. Affleck cannot claim a procedural due process violation as a result of her own failure to pursue the state procedural remedies available to her. Given that Leclerc, Jarry, and Boulord made no attempt, prior to filing this law suit, to submit an application to the Committee, they clearly have no claim for a procedural due process violation. Likewise, Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957), does not persuade the Court that Plaintiffs have stated a claim for a substantive due process violation. In Schware, the United States Supreme Court held that the state had impermissibly applied its moral fitness standards to exclude plaintiff from practicing law. Id. at 247, 77 S. Ct. at 760. The Court held that the state had deprived plaintiff of due process of law because the record was wholly insufficient to support the state's finding of bad moral character. Id. In the instant case, Plaintiffs are mounting a facial challenge to Supreme Court Rule XVII. Schware does not provide Plaintiffs a cause of action for a substantive due process violation in conjunction with a facial challenge. Instead Schware would allow an applicant aggrieved of the state's bar admission process to mount a due process challenge based upon his individual situation. If Plaintiffs had hoped to make such a claim then their appropriate course of action would have been to pursue the state procedures for appeal and then to seek certiorari in the United States Supreme Court as Schware had done. Even if Plaintiffs had done so, the Rooker-Feldman doctrine would have precluded such a substantive due process claim brought as an original action in this Court. In sum, Plaintiffs' complaint fails to state a claim for deprivation of due process. Accordingly, Defendants' motion to dismiss is GRANTED with respect to Plaintiffs' due process claims.[20] 798 2. Equal Protection Claim Plaintiffs argue that Rule XVII, Section 3(B) violates the equal protection clause. Plaintiffs assert that alienage is a suspect classification which triggers strict scrutiny for purposes of an equal protection challenge. Plaintiffs assert that Defendants have given no justification for Rule XVII much less one that could withstand strict scrutiny. Plaintiffs further contend that even under a lower level of scrutiny, Rule XVII cannot withstand attack. Plaintiffs assert that an individual's residency status is wholly unrelated to his or her character and therefore is not a permissible criterion for bar admission purposes. Plaintiffs assert that In re Griffiths, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910, (1973), clearly supports their claims. Citing Southern Christian Leadership Conference v. Supreme Court of Louisiana, 252 F.3d 781, 786 (5th Cir.2001), Defendants contend that Plaintiffs have failed to state a claim for a constitutional violation because there is no fundamental right for a non-lawyer to practice law. Simply said, Plaintiffs have no constitutional right to sit for the Louisiana bar exam and this circuit consistently recognizes the plenary power of the Louisiana Supreme Court to regulate the practice of law. Defendants argue that In re Griffiths is legally and factually dissimilar from this case and therefore does not support Plaintiffs' claims. Defendants assert that Louisiana's decision not to offer bar admission to those persons with truly temporary status, and who are therefore transient, falls within the valid and legitimate exercise of the State's public safety and police power. While there may be no constitutional right for admission to a state's bar, admission policies and procedures cannot run afoul of the Equal Protection Clause. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S. Ct. 752, 756, 1 L. Ed. 2d 796 (1957). The Equal Protection Clause of the Fourteenth Amendment directs that "all persons similarly circumstanced shall be treated alike." Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382, 2394, 72 L. Ed. 2d 786 (1982) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S. Ct. 560, 561, 64 L. Ed. 989 (1920)). However, "[t]he Constitution does not require things which are different in fact or opinion to be treated in law as if they were the same." Id. (alteration in original) (quoting Tigner v. Texas, 310 U.S. 141, 147, 60 S. Ct. 879, 882, 84 L. Ed. 1124 (1940)). Aliens are "persons" guaranteed equal protection of the laws. Id. at 210,102 S.Ct. at 2391. Well-established principles of constitutional law hold that classifications upon a suspect class or classifications that affect fundamental rights are subject to strict scrutiny review. Hatten v. Rains, 854 F.2d 687, 690 (5th Cir.1988) (citing Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S. Ct. 2562, 2566, 49 L. Ed. 2d 520 (1976); San Antonio School District v. Rodriguez, 411 U.S. 1, 16, 93 S. Ct. 1278, 1287, 36 L. Ed. 2d 16 (1973)). Such laws are presumptively invalid unless the state can demonstrate that the law is the least restrictive means to achieve a compelling state interest. See id.; In re Griffiths, 413 U.S. at 721, 93 S. Ct. at 2855. Rarely, if ever, will laws survive challenge at this level of scrutiny. Bernal v. Fainter, 467 U.S. 216, 220 n. 6, 104 S. Ct. 2312, 2316, 81 L. Ed. 2d 175 (1984) ("As one commentator observed, strictscrutiny review is `strict' in theory but usually `fatal' in fact.") 799 However, classifications which operate upon a quasi-suspect class are accorded intermediate scrutiny, and must bear a significant relationship to an important state end. Id. (citing Kirchberg v. Feenstra, 450 U.S. 455, 101 S. Ct. 1195, 67 L. Ed. 2d 428 (1981)). All other classifications need only bear a rational relationship or basis to a legitimate legislative end. Id. (citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985)). Hence, the threshold issue in any equal protection analysis is the level of scrutiny to be applied. The applicable level of scrutiny is of paramount importance to the parties because the level of scrutiny applied often serves as the bellwether of the statute's validity. Naturally then, Plaintiffs herein are arguing for strict scrutiny and Defendants, while not specifically addressing the appropriate level of scrutiny, have implicitly argued for rational basis review.[21] Although the United States Supreme Court has repeatedly used strict scrutiny to invalidate state laws applying classifications based upon alienage, none of those cases involved temporary, non-resident aliens such as Plaintiffs herein.[22] Rather, in all cases where the Court applied strict scrutiny, the affected aliens were permanent resident aliens. See, e.g., Bernal v. Fainter, 467 U.S. 216, 220 n. 6, 104 S. Ct. 2312, 2316, 81 L. Ed. 2d 175 (1984) (invalidating a state law precluding permanent resident aliens from becoming notaries); In re Griffiths, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973) (invalidating a state law precluding permanent resident aliens admission to the state bar). Although the equal protection challenge in Toll v. Moreno, 458 U.S. 1, 102 S. Ct. 2977, 73 L. Ed. 2d 563 (1982), involved a non-resident (nonimmigrant) alien, the Court expressly declined to consider the case on equal protection grounds opting instead to strike the law based on preemption.[23] However, in his dissenting opinion, then Justice Rehnquist discussed how the fundamental differences between permanent resident aliens and non-resident aliens should preclude the Court's ever applying strict scrutiny analysis where non-immigrants are involved. Toll, 458 U.S. at 25, 102 S. Ct. at 2990 (Rehnquist, J., dissenting). The crux of his argument was that resident aliens are so much like citizens that distinctions among them should be carefully scrutinized.[24]Id. at 45, 102 S.Ct. 800 at 3000. Non-immigrant aliens, on the other hand, are sufficiently different from citizens and immigrant aliens in relevant respects that distinctions between them should not call for heightened scrutiny. Id. Since Toll, the Supreme Court has not yet decided the applicable level of scrutiny applicable to non-resident aliens. Lower court opinions have gone both ways without an in depth analysis as to why strict scrutiny was or was not applied. See, e.g., Ahmed v. University of Toledo, 664 F. Supp. 282 (N.D.Ohio 1986) (applying rational basis review); Tayyari v. New Mexico State Univ., 495 F. Supp. 1365 (D.N.M. 1980) (applying strict scrutiny). At oral argument, Plaintiffs' counsel argued that strict scrutiny should be expanded to include temporary non-resident aliens because there are no reasonable differences between resident and non-resident aliens. Therefore, Plaintiffs argued, all lawful aliens should comprise a suspect class. Perhaps all lawful aliens should comprise a suspect class. However, the current state of the law is that the United States Supreme Court has not yet treated non-immigrant aliens as a suspect class. In Toll the Court had the opportunity but chose, not to do so. Instead the Court decided the case on much narrower grounds. Since the U.S. Supreme Court chose not to expand strict scrutiny status to non-immigrant aliens, this Court finds no basis to do so. The Supreme Court reluctantly creates new suspect classes because each new expansion involves the invalidation of virtually every classification bearing upon the newly created suspect class. See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 318, 96 S. Ct. 2562, 2569, 49 L. Ed. 2d 520 (1976) (Marshall, J., dissenting). Moreover, the Supreme Court's rationale for applying strict scrutiny to resident aliens was largely based on the compelling similarities between permanent resident aliens and citizens. See Griffiths, 413 U.S. at 722, 93 S. Ct. at 2855; Nyquist v. Mauclet, 432 U.S. 1, 12, 97 S. Ct. 2120, 2126-27, 53 L. Ed. 2d 63 (1977). Given the similarities between citizens and resident aliens, state-based distinctions among them merit strict scrutiny. However, nonimmigrant aliens differ from immigrant aliens and citizens in a fundamental respectthey are admitted to this country on a temporary basis and for limited purposes. Thus, this Court finds strict scrutiny to be inapplicable in this case. The more difficult question is whether rational basis review should apply or perhaps some intermediate or heightened level of scrutiny that falls somewhere along the strict scrutiny/rational basis review extremes. The United States Supreme Court or even the Fifth Circuit might very well alight on some middle ground analysis given how solicitous the Supreme Court has been of protecting resident aliens. This Court, however, declines the invitation to create a new quasi-suspect class or foray into the "intermediate scrutiny thicket." The Court therefore opts for rational basis review. Defendants argue that Rule XVII, Section 3(B) passes rational basis review because the Louisiana Supreme Court has a legitimate interest in insuring that litigants in the state's courts are represented not only by competent lawyers but by lawyers who are not subject to having their residency revoked on relatively short notice, or at best lawyers who are only in this country temporarily. Defendants point out not only the potential disruption to the courts' dockets but also the prejudice that clients could suffer if a lawyer is forced to leave the country in the midst of litigation or perhaps even a trial. Surely, both parties are aware that litigation can span years and might often times last longer 801 than the time Congress would allow a temporary alien to remain in the United States. A client's representation is therefore subject to disruption for reasons completely beyond the lawyer's controlreasons of which the client might very well be unaware when he retains counsel. At oral argument, defense counsel pointed out the near impossibility of tracking down client files, evidence, etc. should a non-resident alien be forced to leave the United States on unfavorable and sudden terms. Counsel posited that the Louisiana Supreme Court would lack any type of disciplinary recourse against an alien lawyer once deported and outside of any state bar's jurisdiction. Unarguably, the Defendants' proffered reasons do satisfy rational basis review. Rule XVII, Section 3(B) is clearly related to Defendants' legitimate interest in insuring that litigants are represented by counsel who will be in this country when those litigants finally have their day in court. Consequently, Plaintiffs' motion for summary judgment is DENIED on the equal protection claim. C. Federal Preemption Plaintiffs argue that Rule XVII is invalid because only the United States has the exclusive power to establish rules governing immigration, foreign policy, and the rights of non-citizens, and that this power is binding on the states by way of the Supremacy Clause. The authority to control immigration, that is to admit or exclude aliens, is vested solely in the federal government. Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 416, 68 S. Ct. 1138, 1141, 92 L. Ed. 1478 (1948) (citing Fong Yue Ting v. United States, 149 U.S. 698, 713, 13 S. Ct. 1016, 1022, 37 L. Ed. 905, 913). The Constitution grants the states no authority over immigration matters. Id. at 419, 68 S. Ct. at 1142. Thus, state laws which impose "discriminatory burdens" upon the entrance or residence of aliens lawfully within the United States are in conflict with federal law and are therefore invalid. Id. In such a situation, the Supremacy Clause dictates that federal law must prevail. See Toll v. Moreno, 458 U.S. 1, 102 S. Ct. 2977, 73 L. Ed. 2d 563 (1982); U.S. Const. art. VI, cl. 2. However, every state enactment which in any way deals with aliens is not necessarily a regulation of immigration and thus per se pre-empted by federal law. DeCanas v. Bica, 424 U.S. 351, 354, 96 S. Ct. 933, 936, 47 L. Ed. 2d 43 (1976). In other words, "standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration." Id. A regulation of immigration is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain. Id. If the regulation or statute at issue does not regulate immigration, then the court will determine whether the regulation or statute conflicts with federal law. If no conflict exists, then there is no preemption. Id. at 356-58, 96 S. Ct. at 936-38. However, even where no direct conflict exists, state laws will be preempted where they "stand[ ] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the [immigrations laws]." Id. at 363, 96 S. Ct. at 940. Simply said, states have no power to "add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization, and residence of aliens in the United States." DeCanas, 424 U.S. at 358 n. 6, 96 S. Ct. at 938. In Toll, the Supreme Court invalidated Maryland's policy of denying non-immigrant aliens the ability to obtain "in-state" status for purposes of reduced tuition and fees. 458 U.S. at 10, 102 S.Ct. at 2982. 802 The state had argued that the higher fees were an appropriate measure to make up the Congressional tax breaks given to certain aliens. The Court concluded that Maryland's practice of charging higher tuition and fees to the non-immigrant aliens frustrated Congress's policy of giving state tax breaks to G-4 visa holders. Id. at 16, 102 S. Ct. at 2985-86. The Court was persuaded that a state could not recoup indirectly from the non-immigrants what the federal government had expressly barred the state from collecting. Id. The crux of the Toll holding is that a state cannot regulate aliens in such a way so as to deprive aliens of benefits and advantages that Congress specifically intended for those aliens to have while residing in this country. Supreme Court Rule XVII, Section 3(B) has no arguable relevance or impact on who is admitted into the United States. Plaintiffs argue that the Rule is nevertheless a regulation of immigration because it regulates the conditions under which a legal entrant may remain in this country. Plaintiffs' argument is unpersuasive because it requires a far broader interpretation of "conditions under which an [alien] may remain" that what the Supreme Court's jurisprudence would allow. Under Plaintiffs' argument, any state law that affected aliens would be a regulation of immigration. However, the United States Supreme Court expressly rejected that suggestion in DeCanas v. Bica, supra, A more likely reading of "conditions under which an [alien] may remain" would be one encompassing laws that affect an alien's ability to remain in a specific jurisdiction. For instance, no state could enact a law requiring deportation based upon the alien's conduct within the state. Such a law would clearly be one setting conditions under which an alien could remain in the jurisdiction, and such a law would surely be invalid. Rule XVII does not set conditions under which an alien may remain in this country or this state and it is therefore not a regulation of immigration subject to per se preemption. Further, Plaintiffs cite no specific conflicts between Rule XVII and federal immigration law or Congressional policy. Toll and DeCanas demonstrate that Congress has not preempted the field of law applicable to aliens. Thus, absent a law being a regulation of immigration, a true conflict must exist between the challenged regulation and Congressional policy. At the very least, the challenged regulation must in some way frustrate Congress's policy regarding aliens in order for preemption to apply. Looking to the types of visas pursuant to which Plaintiffs reside in the United States, the Court can discern no such tension between Rule XVII and federal immigration law. Leclerc, Jarry, and Boulard entered and remain in the United States pursuant to J-1 visas, also known as exchange visas. J-class aliens are those aliens having a residence in a foreign country which he has no intention of abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill, or other person of similar description, who is coming temporarily to the United States as a participant in a program designated by the Director of the United States Information Agency, for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training.... 8 U.S.C. § 1101(a)(15)(J). Affleck entered and remains in the United States pursuant to an L-2 visa. An L-2 visa is issued to the spouse of an L-1 visa holder. Affleck's spouse is an L-1 class alien which is an alien who, within 3 years preceding the time of his application for admission into the 803 United States, has been employed continuously for one year by a firm or corporation ... and who seeks to enter the United States temporarily in order to continue to render his services to the same employer ... in a capacity that is managerial, executive, or involves specialized knowledge.... 8 U.S.C. § 1101(a)(15)(L). J-visas and L-visas are therefore temporary by design. At oral argument counsel informed the Court that J-visas usually entail an eighteen month or so stay in the United States. Affleck has a temporary Employment Authorization Document ("EAD") and has applied for a permanent one. At oral argument, Plaintiffs argued that Rule XVII, Section 3(B) is inconsistent with the advantages Congress bestowed on them by virtue of their respective immigration visas. The Court disagrees given that the sole effect of Rule XVII upon Plaintiffs is that they cannot obtain licenses to practice law. Leclerc, Jarry, and Boulord can do everything enumerated in the definition of J-class aliens without a license to practice law. Moreover, the practice of law as a licensed attorney lacks congruency with the other teaching and research oriented aspects of J-classification. The inability to obtain a law license simply does not pose an obstacle to Plaintiffs' ability to obtain any of the benefits and advantages associated with having a J-visa. Consequently, federal preemption does not apply. Affleck's situation presents a wholly uncompelling argument given that she is in the United States pursuant to a spousal 2 visa. Again, preemption is not applicable. Takahashi v. Fish & Game Commission, 334 U.S. 410, 68 S. Ct. 1138, 92 L. Ed. 1478 (1948), does not compel a different result. Takahashi invalidated on preemption grounds a provision of California law that banned the issuance of fishing licenses to "any person ineligible to citizenship." Takahashi was a resident alien[25] who had earned a living as a fisherman for nearly thirty years when California sought to exclude all aliens from obtaining fishing licenses. The Court began its analysis by explaining the vast differences in the ability of the federal and state governments to regulate alien activitiesa principle that is now well-established in the law. See note 22 supra. In striking the California statute, the Court concluded that the state's attempt to prevent lawful aliens from earning a living was tantamount to expelling them because an alien cannot live where he cannot work.[26]Id. at 416-19, 68 S. Ct. at 1141-42 (quoting Truax v. Raich, 239 U.S. 33, 36 S. Ct. 7, 60 L. Ed. 131 (1915)). In contrast, Rule XVII does not affect aliens who permanently reside in the United States. Rather, Rule XVII affects temporary aliens who are not in this country to pursue long term, life sustaining employment. Plaintiffs are permitted to earn a living; however, they cannot represent litigants as licensed attorneys at law. The concerns at issue in Takahashi are simply not present in this case. Accordingly, Plaintiffs' motion for summary judgment is DENIED on the preemption issue. 804 D. Affleck's NAFTA Claim Affleck asserts that she is in a special category of non-immigrant aliens in that she is a professional certified by a member of the North American Free Trade Agreement ("NAFTA"). Affleck asserts that Article 1202 of NAFTA requires that "service providers" be treated in a manner "no less favorable" than the treatment of local service providers "in the same circumstances." She asserts that Defendants' actions are a clear breach of that mandate. She argues that the spirit of NAFTA clearly directs the destruction of barriers to attorneys working in member states. Therefore, under the Supremacy Clause, Louisiana cannot make laws contrary to NAFTA. In opposition, Defendants argue that Affleck's NAFTA claims are procedurally defective. NAFTA gives Affleck no private right of action against Defendants to force compliance with NAFTA. Defendants assert that NAFTA provides for enforcement by the Secretary of State and the Attorney General of the United States. Thus, Affleck lacks standing. Further, Affleck offers no support for her implicit assertion that NAFTA preempts the Eleventh Amendment or that NAFTA was meant to preempt well-established state authority over licensing of attorneys. On December 17, 1992, the leaders of the United States, Mexico, and Canada completed and signed NAFTA. Made in the USA Foundation v. United States of America, 242 F.3d 1300, 1302-03 (11th Cir. 2001). On December 8, 1993, Congress passed the NAFTA Implementation Act which approved NAFTA and provided a series of domestic laws to effectuate and enforce NAFTA's provisions. See Pub.L. No. 103-182, 107 Stat.2057 (1993), codified at 19 U.S.C. §§ 3301-3473. Section 102 of the Implementation Act is entitled "Relationship of the Agreement to United States and State Law." Section 102(b) ("Relationship of the Agreement to State law"), subpart (2) ("Legal Challenge"), provides: No State law, or the application thereof, may be declared invalid as to any person or circumstance on the ground that the provision or application is inconsistent with the Agreement, except in an action brought by the United States for the purpose of declaring such law or application invalid. 19 U.S.C. § 3312(b)(2) (emphasis added). Furthermore, subsection (c) ("Effect of the Agreement With Respect to Private Remedies"), provides: No person other than the United States- (1) shall have any cause of action or defense under (A) the Agreement or by virtue of Congressional approval thereof, or * * * * * * (2) may challenge, in any action brought under any provision of law, any action or inaction by ... any State ... on the ground that such action or inaction is inconsistent with the Agreement.... 19 U.S.C. § 3312(c) (emphasis added). In light of the foregoing provisions of the NAFTA Implementation Act, the Court concludes that Affleck lacks standing to challenge Rule XVII based upon any purported conflict with NAFTA. Affleck's claim is an attempt to invalidate a state law due to its inconsistency with NAFTA. NAFTA's enabling legislation expressly limits such a legal challenge to the United States. The enabling legislation compels the conclusion that Affleck lacks standing to challenge Rule XVII based upon any purported conflict with NAFTA. Defendants' motion to dismiss is *805 GRANTED with respect to Affleck's NAFTA claim. Accordingly; IT IS ORDERED that Defendants' Motion to Dismiss (Rec.Doc. 18) should be and is hereby DENIED IN PART AND GRANTED IN PART as detailed in this Order and Reasons; IT IS FURTHER ORDERED that the Motion for Summary Judgment (Rec. Doc. 12) filed by plaintiffs Karen Leclerc, Guillaume Jarry, Beatrice Boulord, and Maureen Affleck, should be and is hereby DENIED and Plaintiffs' complaint is DISMISSED WITH PREJUDICE; IT IS FURTHER ORDERED that Plaintiffs' Appeal of the Order of the Magistrate Judge Granting a Protective Order and Staying All Discovery (Rec. Doc. 25) should be and is hereby DENIED AS MOOT. NOTES [1] The terms non-resident alien and non-immigrant alien are used interchangeably throughout this opinion. Likewise, the terms resident alien and immigrant alien are also used interchangeably. [2] Supreme Court Rule XVII Section 3(B) requires that every applicant for admission to the Louisiana Bar "[b]e a citizen of the United States or a resident alien thereof." La. S.Ct. R. XVII, § 3(B) (emphasis added). The Louisiana Supreme Court had previously interpreted the term "resident alien" to include foreign nationals lawfully living within the United States. See, e.g., In re Appert, 444 So. 2d 1208 (La. 1984), overruled by In re Bourke, 819 So. 2d 1020 (La.2002). However, in 2002, the court held that the term "resident alien" applies to aliens who have been granted permanent resident status in the United States as opposed to those who are merely residing in the country on a temporary basis. Bourke, 819 So.2d at 1022. The court expressly overruled any prior decisions to the contrary. Id. [3] Louisiana's bar admission rules provide: An applicant who has graduated from a law school that is not located in the United States or its territories must submit an application to the Committee for an equivalency determination. Such application shall be in addition to all other applications required by this rule. La. S.Ct. R. XVII, § 6(A). [4] The pertinent text of Section 9 of Rule XVII is located at note 7 infra. Jarry did attempt to petition the Louisiana Supreme Court for permission to take the bar exam. However, he did so without completing any of the requisite steps to apply for admission through the Committee. The Court therefore rejected his petition as premature. In re Royot, 834 So. 2d 427 (La. 2003); Rec. doc. 1, Exhibit 3. [5] Leclerc, Jarry, and Boulord claim that they would have timely submitted equivalency applications but for the experiences of Nathalie Royot, Veronique Marty, and Celine Moguen. Royot, Marty, and Moguen received favorable equivalency determinations but their applications to sit for the bar were denied due to their residency status. Royot, Marty, and Moguen sought writs in the United States Supreme Court but their application was untimely. After this suit was filed and Defendants raised the case or controversy arguments, Leclerc, Jarry, and Boulord then filed applications for equivalency. [6] Louisiana's bar admission rules require that equivalency applications for those applicants wishing to take the July 2003 bar exam were due no later than December 1, 2002. La. S.Ct. R. XVII, § 6(A). [7] After Defendants questioned whether the Federal Courts Improvement Act of 1996, 110 Stat. 3847, 2853 (1996) (amending 42 U.S.C. § 1983), would permit injunctive relief against the state's judicial officers, Plaintiffs moved to amend their complaint to drop the request for injunctive relief. Rec. Doc. 27. The Court denied the motion to amend for reasons unrelated to the request for injunctive relief. [8] Rule XVII, Section 9, Denial of Eligibility; Appeals, provides: Upon notice to the applicant by the Committee that an applicant has failed to fulfill one or more of the requirements of Sections 3 or 5, or upon notice to the applicant from the Committee that the equivalency panel has found that applicant's legal education is not equivalent to that received by a graduate of a law school approved by the American Bar Association as required by Section 6, and that the Committee concurs in such finding, the applicant may appeal by petition directly to the Court. (B) Procedure in Supreme Court. The Court may, in its discretion, without taking further evidence, affirm or reverse the Committee's recommendation, remand to the Committee for further action as the Court instructs, or appoint a Commissioner to take evidence. La. S.Ct. R. XVII, § 9. [9] The Rooker-Feldman doctrine directs that federal district courts lack jurisdiction to entertain collateral attacks on state court judgments. Liedtke v. State Bar of Texas, 18 F.3d 315, 317 (5th Cir.1994) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983)). Constitutional questions arising in state proceedings are to be resolved by the state courts. Id. Any alleged constitutional error in the state court judgment is to be reviewed and corrected by the appropriate state appellate court. Id. Thereafter, recourse at the federal level is limited solely to an application for a writ of certiorari to the United States Supreme Court. Id. The casting of a complaint in the form of a civil rights action cannot circumvent this rule, as absent a specific delegation "federal district courtfs], as court[s] of original jurisdiction, lack[ ] appellate jurisdiction to review, modify, or nullify final order[s] of state court[s]." Id. (quoting Kimball v. Florida Bar, 632 F.2d 1283, 1284 (5th Cir.1980)). [10] As discussed at note 3 supra, Jarry submitted a procedurally improper petition to the Louisiana Supreme Court. [11] Plaintiffs' counsel informed the Court at the April 17, 2003, status conference that Leclerc, Jarry, and Boulord had submitted equivalency applications after they filed suit. [12] Indeed, it is well-established that administrative exhaustion does not apply to civil rights claims unless specifically mandated by Congress. Porter v. Nussle, 534 U.S. 516, 523, 122 S. Ct. 983, 987, 152 L. Ed. 2d 12 (2002); Turner v. Houma Municipal Fire, 2002 WL 1467876 (E.D.La. Jul.8, 2002). [13] The injury must also be traceable to the defendant, and the injury must be redressible. Southern Christian Leadership Conf. v. Supreme Court of the State of Louisiana, 252 F.3d at 787. Those aspects of standing are not at issue in this case. [14] The Court's resolution of the standing issue naturally has no relevance whatsoever as to whether Defendants will ultimately grant Plaintiffs' equivalency applications on the merits. [15] Without citation of authority or explanation, Defendants concede that Plaintiffs Fourteenth Amendment claims are not barred by the Eleventh Amendment. Defendants' Motion to Dismiss at 13 n. 6. For the reasons explained above, Defendants are correct. However, Fourteenth Amendment claims generally are subject to the Eleventh Amendment except where Congress expressly abrogates the state's immunity when legislating pursuant to its enforcement powers under the Fourteenth Amendment. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72, 120 S. Ct. 631, 640, 145 L. Ed. 2d 522 (2000); Santiago v. New York Dep't of Correct. Servs., 945 F.2d 25, 28 (2d Cir. 1991). [16] Consumer's Union is not inapplicable merely because that case dealt with provisions of the Virginia bar's code of ethics. Consumer's Union is applicable because it dealt with a facial challenge to the code of ethics rather than the application of the code of ethics to an individual attorney in disciplinary proceedings. [17] Interestingly, Defendants' own invocation of legislative immunity belies any assertion that they believe that the FCIA erased the recognized distinctions between the various capacities in which judges act. [18] Pulliam also held that Plaintiff could recover costs and attorney's fees in conjunction with obtaining injunctive relief against a judicial officer for acts taken in her judicial capacity. The FCIA amended 42 U.S.C. Section 1988(b) to reverse that aspect of Pulliam. Because the attorney's fees issue is wholly premature at this time, the Court expresses no opinion as to whether Plaintiffs could ultimately recover costs and attorney's fees in this action. [19] Defendants did not file a cross motion for summary judgment but filed a motion to dismiss instead. Defendants' arguments in opposition are taken from their motion to dismiss which Defendants have also designated as their opposition to Plaintiffs' motion for summary judgment. Rec. Doc. 19. [20] Plaintiffs' various memoranda suggest that they were denied due process because the Louisiana Supreme Court reversed its prior stance on the residency issue without giving Plaintiffs an adequate explanation and prior notice of the court's intention. This contention is absurd. Further, Plaintiffs complain that Defendants have never expressed publicly the reason for their change in policy regarding nonresident aliens. Rec. Doc. 12 at 9. It is clear from Plaintiffs' original complaint in this Court as well as the Royot, et al. petition for certiorari filed with the United States Supreme Court that Plaintiffs believe that the Louisiana Supreme Court's sudden reversal on the alien issue was prompted by the participation of foreign lawyers in Louisiana death penalty cases. Even though the Court finds this allegation highly speculative and questionable, as explained in Southern Christian Leadership Conference, unpopular motivations (even if substantiated) do not transform a challenged rule "into an unconstitutional state action." 252 F.3d at 794-95. Finally, the Court fails to comprehend the relevance of other state bar admission rules to any of the legal issues in this case. [21] Defendants assert that Rule XVII "falls within the valid and legitimate exercise of the State's public safety and police powers." Defendants' Motion to Dismiss at 17 n. 10. Such a justification is consistent with rational basis review. At oral argument, defense counsel confirmed Defendants' position that rational basis review should apply. [22] It is now widely accepted that federal laws creating classifications based upon alienage need only satisfy rational basis review. Abreu v. Callahan, 971 F. Supp. 799, 810 (S.D.N.Y. 1997) (citing Mathews v. Diaz, 426 U.S. 67, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976)). In other words, classifications among aliens that are wholly permissible for Congress to make are for the most part off limits to the states. See Takahashi, 334 U.S. at 418-19, 68 S. Ct. at 1142. [23] One commentator has suggested that the Court's choice of the preemption analysis in Toll was a product of the Court's hesitation to apply strict scrutiny to categories of non-resident aliens. Linda S. Bosniak, Membership, Equality, & the Difference That Alienage Makes. 69 N.Y.U. L.Rev. 1047, 1149 n. 251 (1994). The district court in Toll had applied strict scrutiny. [24] Even Justice Brennan, who authored the majority opinion in Toll, noted that "when Congress has done nothing more than permit a class of aliens to enter the country temporarily, the proper application of [the principles applicable to resident aliens] is likely to be a matter of some dispute." Toll, 458 U.S. at 13, 102 S. Ct. at 2984. [25] At oral argument, Affleck asserted that Takahashi was a non-immigrant alien. The case is silent as to Takahashi's status but the Supreme Court mentioned in the opinion that Takahashi became a resident of California in 1907. The Takahashi decision was rendered in 1948. The Court seriously doubts that Takahashi was a non-immigrant alien. [26] Takahashi was also decided against the backdrop of racial discrimination targeted at persons of Japanese ancestry during and after World War II.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501529/	715 S.E.2d 709 (2011) 311 Ga. App. 344 HAMMOCK v. The STATE. No. A11A0861. Court of Appeals of Georgia. July 12, 2011. Reconsideration Denied August 3, 2011. 710 Jimmonique R.S. Rodgers, Fort Gordon, for appellant. Thomas Joseph Campbell, Dist. Atty., Stewart David Bratcher, Asst. Dist. Atty., for appellee. McFADDEN, Judge. Michael Hammock was convicted of theft by taking an automobile. He appeals, challenging the sufficiency of the evidence and the effectiveness of his trial counsel. We find the evidence sufficient to sustain the conviction. In so finding, we disapprove our earlier decision, In the Interest of C.G., 261 Ga.App. 814, 815, 584 S.E.2d 33 (2003), to the extent that it deems testimony describing nonverbal conduct depicted on a surveillance videotape to be hearsay. We also find that trial counsel's performance was not deficient. We therefore affirm. 1. On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. Darnell v. State, 257 Ga.App. 555, 556(1), 571 S.E.2d 547 (2002). We do not weigh the evidence or determine the credibility of witnesses, but determine only if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id. So viewed, the evidence shows that between 3:00 p.m. and 4:00 p.m. on April 22, 2008, Hammock cashed a check at a convenience store in Bartow County and then lingered there for several hours. Sometime after 7:00 p.m., Amy Ellison arrived at the store, put gas in her car and went inside to buy beer, leaving her keys in the car. Ellison, Hammock and store owner Jitendak Patel were the only people inside the store. Hammock cut in front of Ellison at the checkout counter, bought a candy bar and walked out the door. A minute or so later, Ellison went outside and discovered that her car was missing. Ellison and Patel called the police. Ellison, Patel and an officer watched a surveillance videotape, which showed a man walking out of the store, getting into the car and driving away from the scene. All three of them identified Hammock as the man shown on the videotape. Hammock argues that the evidence was insufficient because the surveillance videotape, which had been taped over and was thus unavailable for viewing at trial, was hearsay and the testimony concerning it had no probative value. The argument is without merit because neither the videotape nor the witnesses' testimony about what they observed on the tape was hearsay. "OCGA § 24-3-1 defines hearsay as evidence that `does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.'" Lott v. State, 303 Ga.App. 775, 785(4), 694 S.E.2d 698 (2010). Hearsay "generally relates to an out-of-court statement made by someone other than the witness." (Citation omitted.) Blunt v. State, 275 Ga.App. 409, 411(1)(c), 620 S.E.2d 572 (2005). Thus, "[b]y definition, evidence is hearsay when a witness at trial offers evidence of what someone else said or wrote, outside of court, and the proponent's use of the evidence essentially asks the jury to assume that the out-of-court declarant was not lying or mistaken when the statement was 711 made." (Citation omitted.) Diaz v. State, 275 Ga.App. 557, 559, 621 S.E.2d 543 (2005). Here, the witnesses did not offer any testimony about what someone else said or wrote outside of court. Rather, they testified about their personal observations of the conduct that appeared on the videotape. See Davis v. Civil Svc. Comm., etc. of Philadelphia, 820 A.2d 874, 879, n. 3 (Pa.2003) (store security videotape not hearsay because nonverbal conduct depicted not intended as an assertion); McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788, 794(II)(A) (1995) (surveillance videotape not a statement). Because this testimony did not ask the jury to assume the truth of out-of-court statements made by others, and instead "the value of [the] testimony rested on [the witnesses'] own veracity and competence, the testimony was not hearsay." Lott, supra (officer's testimony that she saw photograph of defendant on a cell phone not hearsay). See also Troutman v. State, 297 Ga.App. 196, 197-198(2), 676 S.E.2d 836 (2009) (testimony that a certain telephone number was displayed on a cell phone as having been recently called not hearsay). Indeed, "the jury was free to disregard [the witnesses'] testimony that the individual depicted in the ... surveillance video was [Hammock]." (Citations omitted.) United States v. White, 639 F.3d 331 (7th Cir.2011). To the extent that In the Interest of C.G., 261 Ga.App. at 815, 584 S.E.2d 33 (2003), holds otherwise and finds that a surveillance videotape merely depicting nonverbal conduct constitutes a hearsay statement, it is hereby disapproved. See Creel v. State, 216 Ga. 233, 235(2), 115 S.E.2d 552 (1960) (testimony describing contents of a photograph did not refer to any statements and thus not hearsay). Accordingly, having reviewed all the evidence in the light most favorable to the verdict, we conclude that there is sufficient evidence from which a rational trier of fact could have found Hammock guilty beyond a reasonable doubt of theft by taking an automobile. See Haugland v. State, 253 Ga.App. 423, 424-425(1), 560 S.E.2d 50 (2002). 2. Hammock contends that his trial counsel was ineffective in failing to raise a hearsay objection to the testimony concerning the surveillance videotape, failing to present photographs of the crime scene and failing to obtain a copy of a later videotape from the surveillance camera to show its poor quality. To prevail on a claim of ineffective assistance of counsel, Hammock must show counsel's performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different. A strong presumption exists that counsel's conduct falls within the broad range of professional conduct. (Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34(4), 644 S.E.2d 837 (2007). (a) With regard to counsel's failure to raise a hearsay objection to the testimony about the videotape, as explained above in Division 1, such an objection would have been unavailing because the surveillance footage and the testimony about what the witnesses personally observed on it was not hearsay. Failing to make a meritless objection to admissible evidence does not constitute deficient performance, and thus, "appellant's ineffective assistance of counsel claim cannot be sustained. [Cit.]" Nash v. State, 285 Ga. 753, 754(2)(a), 683 S.E.2d 591 (2009). (b) At the motion for new trial hearing, trial counsel testified that after visiting the store he decided not to introduce photographs of the store because they would have shown that there were numerous surveillance cameras at the scene. Such a decision not to introduce certain evidence is a strategic and tactical matter that cannot be judged by hindsight to support a claim of ineffective assistance of counsel. See Mattox v. State, 305 Ga.App. 600, 607(3), 699 S.E.2d 887 (2010) (decisions on what evidence to introduce are matters of trial tactics that do not amount to ineffective assistance of counsel); Hood v. State, 292 Ga.App. 584, 585(1), 666 S.E.2d 674 (2008). (c) As for the claim that trial counsel should have presented a copy of the surveillance videotape to show that it was of poor quality making identification from it difficult, the record is devoid of any evidence showing *712 that the tape was indeed of poor quality. Because such a tape was never obtained, Hammock can only speculate as to what it might have shown, and "[s]uch speculation is insufficient to authorize a finding that defense counsel ineffectively overlooked evidence which would have resulted in defendant's acquittal. [Cit.]" Duitsman v. State, 217 Ga.App. 435, 437(1), 457 S.E.2d 702 (1995). Judgment affirmed. ELLINGTON, C.J., SMITH, P.J., MILLER, P.J., PHIPPS, P.J., ANDREWS, MIKELL, ADAMS, DOYLE, BLACKWELL and DILLARD, JJ., concur. BARNES, P.J., concurs in judgment only.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501519/	270 F. Supp. 2d 401 (2003) Anthony FIOTO, Jr., Plaintiff, v. MANHATTAN WOODS GOLF ENTERPRISES, LLC, Manhattan Woods Golf Club, LLC and Kang Lee a/k/a Ken Lee, Defendants. No. 01 CIV. 5383(CM). United States District Court, S.D. New York. July 2, 2003. 402 Todd D. Muhlstock, Mergel, Tubman & Grossman, New York City, for Anthony Fioto, Jr., plaintiff. Chris P. Termini, McCabe, Collins, McGeough & Fowler, L.L.P., Mineola, NY, for Manhattan Woods Enterprises LLC, Manhattan Woods GC, Manhattan Woods Golf Club, LLC, Kang Lee, Dr. aka Ken Lee, defendants. DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW, DISMISSING THE MOTION FOR REDUCTION OF DAMAGES AS MOOT, AND DENYING MTION FOR JUDGMENT AS A MATER OF LAW ON PLAINTIFF'S CLAIM FOR "BREECH" OF COTRACT MCMAHON, District Judge. On April 4, 2003, after a three day trial, a jury returned a verdict in favor of plaintiff on two claims against defendants. Count I alleges that defendants violated the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2612(a)(1)(C), by firing plaintiff from his job as sales manager at Manhattan Woods Golf Club after he took a day off work to be present while his dying mother underwent emergency brain surgery. Count II alleges a breach of contract growing out of the same conduct. The jury awarded plaintiff damages in the amount of $126,825.00 for defendants' violation of FMLA,[1] and in the amount of $74,375.00 for their breach of contract. 403 Defendantswho moved to dismiss the FMLA claim at the close of plaintiffs case (a motion on which I reserved decision) now renew their motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), on the ground that plaintiff failed to adduce any evidence that he qualified for FMLA leave. In the alternative, defendants seek reduction in the amount of FMLA damages awarded by the jury, arguing that the damages awarded to compensate plaintiff for the FMLA violation can not, as a matter of logic, be any greater than the damages awarded for defendants' breach of his employment contract. Defendants also ask the court to overturn the verdict in plaintiffs favor on his "breech" of contract claim. For the following reasons, I grant the motion for judgment as a matter of law and dismiss Count I of the indictment. The motion to reduce damages thus becomes moot. The motion is denied insofar as it addresses the "breech" of contract claim. Standard of Review Federal Rule of Civil Procedure 50 provides that a district court can order a new trial or direct the entry of a judgment as a matter of law if a jury returns a verdict for which there is not a legally sufficient evidentiary basis. Fed.R.Civ.P. 50(b). "[T]he same standard that applies to a pretrial motion for summary judgment pursuant to Fed.R.Civ.P. 56 also applies to motions for judgments as a matter of law during or after trial pursuant to Rule 50." Piesco v. Koch, 12 F.3d 332, 341 (2d Cir. 1993); see also This is Me, Inc., v. Taylor, 157 F.3d 139, 142 (2d Cir.1998) (noting that adoption of the term "judgment as a matter of law" was intended to call attention to the close relationship between Rules 50 and 56). Thus, a court may not grant a motion for a judgment as a matter of law unless "the evidence is such that, without weighing the credibility of witnesses or otherwise considering the weigh of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached." Cruz v. Local Union No. 3, Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir.1970)). In other words, the evidence must be such that "a reasonable juror would have been compelled to accept the view of the moving party." Piesco, 12 F.3d at 343. FMLA Leave and the "To Care For" Standard FMLA provides that an eligible employee is entitled to take up to twelve weeks of unpaid leave "[i]n order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." 29 U.S.C. § 2612(a)(1)(C). According to the Department of Labor, the "to care for" requirement may be satisfied by the provision of either physical or psychological care. The regulation states: (A) The medical certification provision that an employee is "needed to care for" a family member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygenic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care. (B) The term also includes situations where the employee may be needed to fill in for others who are caring for the family member, or to make arrangemerits 404 for changes in care, such as transfer to a nursing home. 29 C.F.R. § 825.116. As the language of the statute and the regulation make clear, FMLA does not provide qualified leave to cover every family emergency. FMLA leave is only available when an employee is needed "to care for" a family member. FMLA does not cover absences that do not implicate giving physical or psychological care for a relative. And while the statute has been broadly construedfor example, one court has found that assisting in making medical decisions constituted giving "care" to a relative for FMLA purposes, see Brunelle v. Cytec Plastics, 225 F. Supp. 2d 67 (D.Me.2002)merely visiting a sick relative does not fall within the statute's parameters. The employee must be involved in providing some sort of on-going care for his relative in order to qualify for FMLA leave. As Magistrate Judge Lefkow stated in Cianci v. Pettibone Corp., 1997 WL 182279 (N.D.Ill. Apr. 8, 1997), a case in which the plaintiff claimed that FMLA had been violated when she was denied an extended leave to visit her ailing mother in Italy, "However sympathetic plaintiffs request to visit her ailing mother may have been and however unfair or uncaring the company's response, the evidence before this court indicates that it is not the type of leave to which she is statutorily entitled." Id. at 7. Both parties agree that plaintiff did not demonstrate that he was needed to take care of his mother's physical needs. Rather, plaintiff contends (and argued to the jury) that he was needed to provide psychological care for his mother. The trial record shows that on July 15, 2000 plaintiff telephoned his employer to let the club know that he would not be coming to work that day. He testified as follows: "My mother had been hospitalized for about ten days, and the cancer they had discovered had spread to her brain, and she was going to have brain surgery that day. I didn't know what time the surgery was going to be, I knew it was goingthat she was being prepped early in the morning. So I was just calling in early to let them know it was a very serious surgery, that I had been warned there was a good chance that my mother wasn't to get through it and to be there." (Tr. 36) The record is completely barren about the condition of plaintiffs mother prior to her surgery. It also includes nothing about what plaintiff did at the hospital, except for the fact that plaintiff did not see her after surgery: I was already upset before I walked through the door [at work the next morning] because I hadn't seen my mother following her surgery. I knew that it went okay, but I was already kind of upset; and when I got this [the memo terminating his employment] it was just like getting kicked in the solar plexus. (Tr. 43) There is no evidence in the record testimony about Fioto's interaction with his mother or her doctors. All the jury knew was that the plaintiffs mother was having brain surgery; that the doctors told Mr. Fioto that it was serious and that she might not make it through; that she was being prepped early in the morning; that Mr. Fioto did not see his mother after her surgery; and that the surgery went okay. The question is whether plaintiff provided enough information from which a reasonable jury could infer that the plaintiff was needed "to care for" his mother. Sadly, I believe the answer to be no. There is a paucity of law on the subject of what constitutes the provision of physical or psychological care to a sick relative. 405 Cianci stands for the propositionreadily derived from the words of the statute that FMLA leave is not available to accommodate mere visitation with a sick relative. Our sister court in Maine, however, has twice ruled that the concept of "psychological care" includes providing even a minimal level of comfort to a sick relative. In Plumley v. Southern Container Inc., 2001 WL 1188469 (D.Me. Oct. 9, 2001), plaintiff testified that he spent time with his father while the father was hospitalized. The plaintiffs father testified that his son was present with him and that the son's presence was comforting and reassuring. Magistrate Judge Cohen concluded (albeit in dicta) that this sufficed to meet the threshold of "psychological care" for FMLA purposes, which includes providing "psychological comfort and reassurance which would be beneficial to a ... parent with a serious health condition who is receiving inpatient ... care." Id. at 9 (quoting 29 C.F.R. § 825.116). A year later, in Brunelle v. Cytec Plastics Inc., 225 F. Supp. 2d 67 (D.Me.2002), plaintiff was the son of a man who was critically burned in a fire. Plaintiffs father remained hospitalized for several months, enduring several surgeries in what ultimately proved a futile effort to save his life. During that period, the plaintiff kept vigil at his father's bedside. According to the testimony of the father's physician, Brunelle helped doctors make decisions concerning his father's care. Chief Judge Hornby, adopting a decision by Magistrate Judge Cohen, concluded that Brunelle satisfied FMLA's "to care for" requirement. I have no difficulty taking the same view of the law that was taken by the Maine courts. By the very terms of the FMLA regulations, a child's offering comfort and reassurance to a bedridden parent qualifies as "caring for" the parent. Moreover, I will assume for purposes of this motion that assisting in the making of medical decisions on behalf of that parent also qualifies as "providing physical or psychological care" within the meaning of FMLA regulations. Indeed, it seems to me that making medical decisions on behalf of an ailing parent is far more than psychological, and qualifies as assisting in the physical care of the parent. Unfortunately for Fioto, the record is completely devoid of any evidence that Fioto was needed to provide either physical or psychological care for his mother, even under this extremely generous reading of FMLA. Insofar as psychological care is concerned, the jury knew only that plaintiff went to the hospital and did not see his mother after her surgery. It was not told whether he saw his mother prior to surgery, or whether his mother was conscious or unconscious when plaintiff arrived at the hospital. The jury did not even know whether plaintiffs mother was aware that he was on the way to the hospital, or was capable of being aware of his imminent arrival. It is entirely possible that his mother was aware of her son's presence at the hospital and felt succored and reassured by it. It is equally possible that she never even knew he was there. Indeed, it is possible that defendant's mother was unconscious for some period prior to her surgerycounsel's assertion in his memorandum of law that Mr. Fioto's mother fell into a coma after her surgery has no evidentiary support. Because the language of the statute does not guarantee employees FMLA leave to visit an ailing parent, it was incumbent on plaintiff to demonstrate that he was doing somethinganything to participate in his mother's care. It would not have taken much to meet the very loose "psychological care" standard. The plaintiffs in Brunelle and Plumley 406 testified about their interaction with their parents and their doctors. Fioto did not. Neither is there any evidence that plaintiff provided physical care in the Brunette sense. Although one might well speculate that plaintiffs presence at the hospital was desirable for that purpose, there is no evidence that plaintiffs presence was needed to make medical decisions for his motherfor that matter, there was no evidence that he was the person with legal authority to make such decisions for her or that he in fact did so. Unlike Brunette, where a physician testified about the plaintiffs interaction with the medical staff and his involvement in decision making, this record is simply and starkly barren. In short, while it is entirely possible that plaintiff did some or all of the kinds of things that qualify as "taking care of his mother, it is equally possible that he did none of them. In order to return a verdict in his favor, the jury necessarily engaged in speculation. Plaintiff argues conclusorily that the phrase "to care for" is to be read broadly to include both physical and psychological care, citing Scamihorn v. General Truck Drivers, 282 F.3d 1078, 1087 (9th Cir. 2002). I agree. However, it cannot be read so broadly that the concept of providing care is read out of the statute. If, on the basis of a bald statement that plaintiff went to the hospital where his mother was having serious surgery, FMLA's "to care for" provision were automatically implicated, the statute would protect mere visitation. By its terms it does not. Congress could have drawn the statute that broadly; nothing could more surely have been anticipated than the need of workers to visit their ailing relatives. It chose to limit FMLA's reach to absences that were occasioned by the provision of care. Plaintiff also suggests that the testimony of defendant Lee, in which Lee used the phrase "take care of his mom," can substitute for the missing evidence. However, there was no evidence that Lee had any knowledge about what it was that plaintiff was doing or was needed to do, and his use of the conclusory phrase "take care of is not evidence from which a reasonable trier of fact could conclude that Fioto qualified for FMLA leave within the meaning of the statute and regulations. It is beyond question that Lee's behavior following plaintiffs wholly understandable taking of a single day for an important personal reason was uncaring and unfeelingindeed, it was unreasonable and, as the jury quite properly concluded, a violation of Fioto's contract. But that does not make it a FMLA violation. Because I am dismissing Count I as a matter of law, I need not reach defendants' alternate argument that the jury awarded excessive damages under the FMLA claim.[2] Defendants' motion for judgment as a matter of law on plaintiffs "breech" of contract claim is denied. Defendants assert, without any support, that the FMLA and contract claims "are one and the same." This, with respect, is utter nonsense. The parties stipulated that the terms and conditions of plaintiffs employment were as provided in the unsigned employment contract dated April 20, 1999. 407 They also further stipulated that both sides were operating in accordance with those terms. [Joint Pretrial Order, Stipulated Facts, at 2]. The letter of agreement called for plaintiff to be employed beginning April 19, 1999. The letter also provided that plaintiff could be terminated only for "reasonable cause," which the agreement defined as fraud, misappropriation or embezzlement; negligence; willful disobedience or misconduct in the performance of duties; criminal or immoral behavior; disparagement; and failure to meet the sales quota. [Plaintiffs Exhibit 6]. The defendants contended that Fioto willfully disobeyed Lee's order by taking the day off without first clearing it directly with Lee. It was undisputed that Lee was not in the office when plaintiff called to say he was on his way to the hospital; that his subordinate, Phil Hughes, took the call; and that Hughes told Fioto to go be with his mother. Viewing the evidence most favorably to the plaintiff, the prevailing party, it is obvious that the jurors concluded that Lee did not have "reasonable cause" to fire Fioto within the meaning of the letter of agreement that the parties stipulated governed the terms and conditions of Fioto's employment. Moreover, the jury made a specific finding (albeit in the context of the FMLA claim) that plaintiffs employment would have terminated on April 30, 2001 the date that the "second bonus period" pursuant to Section 3(b) of the letter of agreement was due to expireif he had not been fired by Lee on July 16. The jury assessed damages accordingly. These determinations were supported by the evidenceindeed, in the opinion of this Court, they were virtually compelled by the evidenceand they were in no way dependent on the FMLA claim. The Clerk of the Court is directed to enter judgment in favor of plaintiff on Count II, in the amount of $74,375.00, plus interest at the statutory rate from the date of the breach (July 16, 2000), and to dismiss Count I. This constitutes the decision and order of the Court. NOTES [1] The jury found damages in the amount of $78,631.00 for the year 2000, $48,194.00 for 2001, and no damages for either 2002 or 2003. [2] I note that defendants appear correct in pointing out the illogic of the jury's determination on damagesthey awarded different amounts for plaintiff's losses stemming from the same event, his termination. However, defendants are incorrect in concluding that it would be appropriate for me to lower the FMLA award to match the contract award. It is equally possible that the contract award is too low and should be raised to match the FMLA award. I recognize that, in view of this decision, one or both parties may now move pursuant to Rule 50(c)(2) and Rule 59 for a post-JMOL new trial.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501557/	270 F. Supp. 2d 223 (2003) RE-ACE, INC. Plaintiff v. WHEELED COACH INDUSTRIES, INC.; Bill de Leon Specialty Vehicles, Inc. Defendants No. CIV 03-1285 CCC/CAG. United States District Court, D. Puerto Rico. June 24, 2003. 224 Alfredo Fernández-Martínez, Esq., Delgado & Fernández, LLP, San Juan, PR, for Plaintiff. Eyck O. Lugo-Rivera, Esq., Martínez, Odell & Calabria, San Juan, PR, for Defendants. OPINION AND ORDER GELPI, United States Magistrate Judge. Plaintiff, Re-Ace, a corporation organized and existing under the laws of the Commonwealth of Puerto Rico, brings the present action against defendants, Wheeled Coach Industries, Inc., a corporation organized and existing under the laws of the State of Florida and Bill de Leon Specialty Vehicles, Inc.[1] Plaintiff alleges violations of Act No. 75 of June 24, 1964, P.R. Laws Ann. tit 10 § 278 et seq. ("Act 75") against Defendant Wheeled Coach Industries, Inc. (Docket No. 1). Plaintiff moved for preliminary injunctive relief rein 225 instating the contractual relationship between the parties, under the provisions of Act 75. (Docket No. 2). Defendant, Wheeled Coach Industries, Inc. opposed the request for preliminary injunction. (Docket No. 12). The preliminary injunction hearing was held on May 13, 2003.[2] After the preliminary injunction hearing was held the Court requested that both parties file memoranda with regards to the preliminary injunction request and they did. (Docket Nos. 30 and 31). Afterwards, the Court ordered the parties to file supplemental memoranda on additional issues. (Docket No. 32). Both parties filed their respective briefs and the Court held that this was the proper venue to entertain this action. (Docket Nos. 33, 34 and 35). I. Factual Synopsis During the preliminary injunction hearing, Re-Ace's President, Mr. Carlos Leal, testified that Re-Ace has been in the business of distributing and selling different types of equipment, specialized trucks and vehicles since 1978. Transcript,[3]page. 9, lines 13-17. On the other hand, Wheeled Coach is engaged in the business of manufacturing ambulances and rescue vehicles, purportedly making 2,000 ambulances a year or 40% of the United States relevant market. Transcript, page 10. The only testimony the Court heard during the preliminary injunction hearing describing the relationship between Re-Ace and Wheeled Coach Industries, Inc. from 1979 until late 2000 was that of Mr. Leal.[4] Re-Ace established its relationship with Wheeled Coach in 1979 when, according to Mr. Leal, "a bid was requested by the City of San Juan for nine rescue ambulances and I [Carlos Leal] contacted a friend in the United States who knew Wheeled Coach, knew the Collins family personally." Transcript, pages 9-10. At the time the relationship between the parties began, Wheeled Coach was not doing any business in Puerto Rico. Transcript, page 9, lines 12-13. According to Mr. Leal, at the time no new U.S. manufactured ambulances were sold in Puerto Rico. Transcript, page 11, lines 5-8. After the initial bid in 1979, Mr.Leal testified that Re-Ace continued, without interruption, selling Wheeled Coach's ambulances in Puerto Rico. Mr. Leal testified that Re-Ace requested the distribution rights for Puerto Rico and the Virgin Islands. Yet, according to his testimony, Wheeled Coach only granted Re-Ace the distribution rights for Puerto Rico. Transcript, page 11, lines 17-20, page 12, lines 1-6. For 24 years, since the relationship between the parties began, according to Mr. Leal, Re-Ace has sold approximately more 226 than 400 of Wheeled Coach's ambulances in Puerto Rico. Transcript, page 11, lines 21-25. Re-Ace and Wheeled Coach continued operating based on an oral contract. In 1989, Re-Ace and Wheeled Coach executed a written Distributor's Contract drafted in Wheeled Coach's form. Transcript, page 12, lines 7-10[5] During his testimony, Mr. Carlos Leal described the relationship between Re-Ace and Wheeled Coach from 1979 to 1989, as follows: "I would continue to sell ambulances. We continued to sell ambulances of all types and there are various types of ambulances. I would say that slowly we started getting into the municipal market, rather than just the big city, San Juan, which I consider a special case. The difficulty was in introducing in Puerto Rico the federal specifications for an ambulance. They're called the KKK-1822 specifications and the federal standard for a minimum ambulance which should be utilized by ambulance purchasers. [...] So, after that the federal ambulances started being much more acceptable as to the price." Transcript, pages 12 (lines 11-25) -13 (lines 1-16). During the period of time from 1979 to 1989, there were no other distributors in Puerto Rico for Wheeled Coach's ambulances, other than Re-Ace. Transcript, page 13, lines 17-19. At the time, Re-Ace was paid in two different ways. Either Re-Ace produced a letter of credit to Wheeled Coach before the ambulance left the manufacturing plant to Puerto Rico or Re-Ace used its own funds or the customer's funds to pay for the ambulance. Transcript, pages 13 (lines 22-25) and 14 (lines 1-5). In its relationship with Wheeled Coach and its distribution business, Mr. Leal testified that Re-Ace's clients are mostly the 78 municipalities of Puerto Rico, the Puerto Rico General Services Administration, the Puerto Rico Department of Corrections, the Puerto Rico Electric Power Authority, and, the Puerto Rico Telephone Company, among others. Transcript, page 15 (lines 8-24). During the same period of time, Wheeled Coach recognized Re-Ace for its good performance with a dealership award, and delivered a plaque as a Wheeled Coach authorized dealer. See plaintiff's Exhibits 1 and 2 (Docket No. 24). According to Mr. Leal, Wheeled Coach gave Re-Ace other verbal recognitions at national sales meetings. Transcript, page 16 (lines 1-25). The plaque identifies Re-Ace as a Wheeled Coach Authorized Dealer, to show customers Re-Ace's authority as a Wheeled Coach dealer in Puerto Rico and as a symbol of recognition. Transcript, page 17, lines 5-25. In 1991, Mr. Mark Granonem (phonetic), Wheeled Coach's General Sales Manager at the time, gave Re-Ace, another plaque because of a successful campaign where 32 ambulances were sold. Transcript, page 18, lines 13-11. At the time, still there were no other distributors in Puerto Rico for Wheeled Coach. Transcript, page 18, lines 17-25. In 1989, Wheeled Coach sent Re-Ace an executed Exclusive Distributor's Agreement. Re-Ace signed the contract which has been in effect ever since. Transcript, page 19, lines 10, page 20, lines 24-25; plaintiff's Exhibit 3. The terms of the agreement were not negotiated by Re-Ace but were acceptable because Re-Ace was 227 granted, in writing, the exclusive distribution rights for Wheeled Coach's ambulances in Puerto Rico. Transcript, page 21, lines i-8. Mr. Ronald Cartwright (phonetic), then President of Wheeled Coach, signed the exclusive distribution agreement on behalf of Wheeled Coach. Transcript, page 21, lines 12-19. The 1989 contract has never been revoked or cancelled by either party up to the actions that gave rise to this case. Transcript, page 22, lines 1-4. After 1989, Re-Ace did business in Puerto Rico based on the terms of the 1989 exclusive distribution agreement executed with Wheeled Coach. Transcript, page 22, lines 5-7. In the distribution relationship with Wheeled Coach, Re-Ace promotes and closes the sales contract. Transcript, pages 24, lines3-5. Although Re-Ace has never kept an inventory of Wheeled Coach's vehicles in Puerto Rico, Mr. Leal explained that the reason is to avoid paying an excise tax on a vehicle that would not be sold because the government clients in Puerto Rico only purchase new ambulances and every ambulance sold has its own completely different separate set of specifications. Transcript, pages 25-27. Moreover, Wheeled Coach has never requested Re-Ace to keep an inventory of its ambulances in Puerto Rico. Transcript, page 27, lines 13-20. In its relationship with Wheeled Coach, Re-Ace exercises control over the prices of the ambulances that are sold in Puerto Rico since the final sales price to Re-Ace's clients is exclusively set by Re-Ace. Transcript, page 27-28. In addition, Re-Ace sets the sales price for the ambulances depending on the competition, limiting or extending its profit on each sale. Transcript, pages 28-29; 170. Mr. Leal also testified, and his testimony was corroborated by Mr. Abel del Río, that Wheeled Coach has never participated in the submittal of bids for the sale of ambulances in Puerto Rico nor entered into any contract in Puerto Rico for the sale of its ambulances. Transcript, pages 181, 30, lines 10-16. Re-Ace is the party who asks Wheeled Coach to make the transfer of the title and vehicle registration of the ambulances to the name of its clients. Transcript page 181. Furthermore, Re-Ace is the party responsible to its clients for the delivery of the ambulances and, thus, informs Wheeled Coach of the date when delivery must be made for the ambulances. Transcript page 181. If not delivered on time, Re-Ace faces substantial economic penalties or fines for delay. Transcript, page 31, lines 21-25. In addition, Re-Ace is the party responsible for collecting monies to pay Wheeled Coach for the ambulances. It is evident to the Court that Re-Ace faces substantial risks in the relationship. See Transcript, page 40, lines 1-18. Also, if an order is placed with Wheeled Coach for an ambulance, and Re-Ace's client cancels the order, Re-Ace pays Wheeled Coach for that vehicle. That is what has happened in the past. Transcript, page 32, lines 8-18. In the contractual relationship with Wheeled Coach, Re-Ace is the party who knows the Puerto Rico ambulance market. Mr. Leal testified that Re-Ace has provided to Wheeled Coach information regarding the Puerto Rico ambulance market, sales forecasts and market distribution by manufacturer. Transcript, page 33, lines 3-20. During the last 24 years Re-Ace has created a substantial market for Wheeled Coach ambulances in Puerto Rico, estimated by Mr. Leal to be 50% of the total ambulance market in Puerto Rico. Transcript, pages 33-34 (lines 1-5). Before Re-Ace became its distributor in the island, Wheeled Coach had not sold one single ambulance in Puerto Rico. Wheeled 228 Coach has never had an office, facilities, or sales persons in Puerto Rico. Transcript page 183. Moreover, Re-Ace, through its relationship with car dealers, is the party that has given publicity in Puerto Rico to Wheeled Coach's ambulances. Transcript, pages 34-36, See also plaintiff's Exhibit 4. Mr. Leal testified that he visits clients regularly, and talks to them on a daily basis. Transcript, pages 34, lines 1-5. Mr. Leal further declared that because of the years selling Wheeled Coach's products, Re-Ace is identified in Puerto Rico as Wheeled Coach's distributor and representative. Transcript, page 35, lines 14-18. In addition, Re-Ace has a sales force in Puerto Rico, acceptable to Wheeled Coach, for the sale and promotion of its ambulances in Puerto Rico. Transcript, page 38, lines 13-25, page 39, lines 1-10. In sum, the evidence presented during the preliminary injunction hearing revealed that through its sole efforts, Re-Ace has established a market in Puerto Rico for Wheeled Coach's ambulances. Re-Ace has also complied with all of the terms and conditions of the exclusive distribution agreement executed in 1989. Transcript, page 39, lines 11-25. Re-Ace is also responsible to service and honor warranty claims with respect to Wheeled Coach's ambulances sold in Puerto Rico. Transcript, page 40, lines 9-25, page 41, lines 1-15. Throughout the more than 24 years of relationship, as Wheeled Coach's exclusive distributor in Puerto Rico, Mr. Leal testified that Wheeled Coach never notified Re-Ace verbally or in writing that it had breached any of the terms of the contract dated 1989. Transcript, page 41, lines 16-20. According to Mr. Leal, Re-Ace has enhanced Wheeled Coach's business in Puerto Rico in a substantial manner through its own effort, service and dedication. Transcript, page 41, lines 21-25, through page 44 (line 18). Furthermore, Wheeled Coach never changed the distribution contract with Re-Ace but, in the year 2002, it sent a new proposed contract to Re-Ace, substantially modifying the terms of the existing agreement, imposing sales quotas, making it non-exclusive and imposing a new applicable law and arbitration proceeding that was rejected by Re-Ace. Both parties continued doing business as before. Transcript, pages 44-52. Wheeled Coach's only witness in the preliminary injunction hearing was Mr. Abel del Río. Mr. Del Río is the current International Sales Manager for Wheeled Coach and has been in that position since late in the year 2000. Mr. Del Río testified that Wheeled Coach paid Re-Ace a standard "commission" of $400.00 per ambulance. During his cross-examination, however, he admitted that in addition to that fee, which is a reimbursement to Mr. Leal, Re-Ace is paid by Wheeled Coach the excess between the sales price agreed by Re-Ace with its clients and the cost of the ambulance charged by Wheeled Coach. Transcript pages 169-173. Thus, Mr. Del Río's testimony confirmed Re-Ace's control over its profit. In addition, Mr. Del Río also testified that after it terminated its relationship with Re-Ace, Wheeled Coach entered into a Distribution Agreement with Bill de Leon Specialty Vehicles. Transcript page 180. He also testified that under said contract Bill de Leon Specialty Vehicles is the only Wheeled Coach distributor in Puerto Rico. Transcript page 177. He also testified that Bill de Leon Specialty Vehicles does not have any warehouse in Puerto Rico, does not have demonstrator vehicles, and does not have any service facilities for the ambulances. Transcript pages 175-179. 229 During the preliminary injunction hearing, Wheeled Coach Industries, Inc. did not question the validity of the 1989 written Distributor's Agreement with Re-Ace. In fact, it did not present any witness with knowledge of the relationship before late in the year 2000. In its memorandum filed with the Court, Wheeled Coach Industries, Inc. does not give any weight to that written agreement. Rather, it contends that Re-Ace is not a distributor protected by Act 75. Further, Wheeled Coach has implied that Re-Ace's poor sales record motivated Wheeled Coach's decision to terminate the agreement between the parties. However, Wheeled Coach did not present any evidence of formal correspondence or notice to Re-Ace to the effect that there existed grounds to terminate their commercial relationship. II. Analysis The parties in this case do not dispute that the Puerto Rico Dealers Act, Act No. 75 of June 24, 1964, 10 P.R. Laws Ann. § 278 et seq. ("Act 75") is the statutory provision applicable to this case.[6] Considering this agreement and the case law on this subject, the Court agrees with the parties. Under Act 75, a dealer can seek equitable relief from the Court if it establishes that it is protected by the law and that its contract with a manufacturer has been unjustly terminated or that the manufacturer has acted in prejudice or detriment to an existing contract. Act 75 provides certain public policy protections and safeguards for all distributors with the purpose of assuring that their relationships with manufacturers are carried out in good faith and not terminated without "just cause". In addition, Act 75 confers upon the Court the authority to grant a preliminary injunction and any other provisional remedy deemed necessary to protect a dealer-manufacturer relationship against unjust terminations or of any act in detriment of the relationship ("menoscabo"). In pertinent part, Act 75 provides: "In any litigation in which there is directly or indirectly involved the termination of a dealer's contract or any act in prejudice of the relation established between the principal or grantor and the dealer, the Court may grant, during the time the litigation is pending solution, any provisional remedy or measure of an interdictory nature to do or to desist from doing, ordering any of the parties, or both, to continue, in all its terms, the relation established by the dealer's contract, and/or to abstain from performing any act or any omission in prejudice thereof. In any case in which the provisional remedy herein provided is requested, the Court shall consider the interests of all parties concerned and the purpose of the public policy contained in this chapter." P.R. Laws Ann., tit. 10 § 278b-1. Maintaining a dealership contract in force during the pendency of the litigation is meant to protect a bona fide dealer from the economic losses it stands to suffer once the contract is terminated. See Systems de P.R., Inc. v. Interface Int., Inc., 123 D.P.R. 379 (1989). Re-Ace's preliminary injunction request is based on its understanding that it has a right, as a dealer/distributor protected by Act 75, against Wheeled Coach's alleged 230 unjust and abrupt termination of the agreement between the parties. In Systema de Puerto Rico, Inc., supra, the Supreme Court of Puerto Rico held that the purpose of the provisional remedy allowed by Act 75 is to protect a dealer from the economic losses it stands to suffer once its distribution contract is terminated. See also Irvine v. Murad Skin Research Laboratories, Inc., 194 F.3d 313 (1st Cir.1999); Euromotion, Inc. v. BMW of N. Am., Inc., 136 F.3d 866, 870 (1st Cir.1998); Borschow Hosp. and Med. Supplies, Inc. v. Cesar Castillo, Inc., 96 F.3d 10, 14 (1st Cir.1996); R.W. Intern., Corp. v. Welch Foods, Inc., 88 F.3d 49, 51 (1st Cir.1996). Courts, interpreting Act 75, have invariably quoted the following excerpt from the Statement of Motives of Act 75: "The Commonwealth of Puerto Rico cannot remain indifferent to the growing number of cases in which domestic and foreign enterprises, without just cause, eliminate their dealers, concessionaires, or agents, as soon as these have created a favorable market and without taking into account their legitimate interests. The Legislative Assembly of Puerto Rico declares that the reasonable stability in the dealer's relationship in Puerto Rico is vital to the general economy of the [Commonwealth], to the public interest and to the general welfare, and in the exercise of its police power, it deems it necessary to regulate, insofar as pertinent, the field of said relationship, so as to avoid the abuse caused by certain practices." 18 Diario de Sesiones 1531 (1964). The legislative reports to Act 75 also state that: "The problem with the dealership system in Puerto Rico has worsened as of late because of the ill-timed action of domestic and foreign manufacturers who, without just cause, terminate their relationship with their representatives or agents in Puerto Rico as soon as the latter have created a favorable market for their products, thus frustrating the legitimate expectations and interests of those who so efficiently carried out their responsibilities. The traditional provisions which regulate contracts between the parties have shown their inefficacy in protecting the legitimate rights of the representative or agent, making it thus necessary to legislate in order to regulate this relationship and guarantee that manufacturers act in good faith, fairly, and not in an arbitrary manner, and to safeguard the rights and justified expectation of the representatives and agents inherent to the relationship. Furthermore, this will consequently stabilize the dealership relationships. This is the serious situation that we intend to remedy with the approval of this project..." Diario de Sesiones, supra at 1531. Bearing this intent in mind, courts have invariably stated that "Act No. 75 unquestionably represents a strong public policy directed to leveling] the contractual conditions between two groups financially unequal in their strength." Medina & Medina v. Country Pride Foods, Ltd., 858 F.2d 817 (1st Cir.1988); Marina Ind., Inc. v. Brown Boveri Corp., 114 D.P.R. 64 (1983); San Juan Merc. v. Canadian Transport Co., 108 D.P.R. 211, 216 (1978); Walborg Corp. v. Tribunal Superior, 104 D.P.R. 184, 189 (1975). Thus, in order to avoid the inequity of arbitrary termination of distribution relationships once the distributor has developed a local market for the principal's products or services, "Act 75 limits the principal's ability to unilaterally end the relationship except for `just cause'" Caribe Indus. Systems, Inc. v. National 231 Starch and Chemical Co., 212 F.3d 26 (1st Cir.2000). The Court finds, based on the evidence presented during the preliminary injunction hearing, that Re-Ace is a distributor protected by Act 75. In Triangle Trading Co., Inc. v. Robroy Industries, Inc., 200 F.3d 1, 4 (1st Cir.1999), the Court of Appeals for the First Circuit, in determining whether the plaintiff was a dealer, decided that the core factor to consider is "whether the dealer obtained a certain level of control over the distribution of the supplier's products in Puerto Rico." Furthermore, the First Circuit deferred to the opinion of the Supreme Court of Puerto Rico in Roberco, Inc. & Colon v. Oxford Inds., Inc., 122 D.P.R. 115 (1988) which provides an inclusive list of factors to be weighed to determine whether a party has the requisite autonomy to be a dealer under Act 75. In the present case, the nature and scope of Re-Ace's duties, in its relationship with Wheeled Coach, leads this Court to conclude that since 1979, it has performed the duties traditionally performed by a distributor, tempered to the particular product to be distributed, in this case, custom made ambulances. Traditionally, courts have considered several factors to determine whether a distribution relationship exists between the parties. The Supreme Court of Puerto Rico has pointed to some of the aspects of a relationship that should be considered to determine whether a party is a distributor protected under Act 75. The main factors considered by the courts are as follows: (i) the nature of the contract between the parties and its title; (ii) who fixes the terms of the sales and the prices of products and who approves all sales orders; (iii) the location from where the distributor conducts his business; (iv) the existence of salespersons and the nature of their work; (vi) which party pays for the freight and storage of the merchandise; (vii) which party owns the merchandise and who is liable for its loss or destruction; (viii) whether the principal delivers the merchandise to the clients according to the orders furnished by the purported distributor, and, after delivery, to which party is the evidence of the delivery furnished; (ix) which party collects the payment for the products from the clients and how the payment process is carried out; and, (x) whether the purported distributor works for a fixed commission. In Cobos Liccia v. DeJean Packing Co., Inc., 124 D.P.R. 896 (1989), plaintiff filed an action for breach of a distribution agreement, seeking a preliminary injunction, as well as an award for damages against Dejean Packing Co., Plaintiff alleged that he was an exclusive dealer of DeJean's product line, which consisted of canned seafood, and that the termination of the contract was without just cause, in violation of the provisions of Act 75. After plaintiff succeeded at the trial court level, defendants filed a writ of certiorari in the Supreme Court, alleging that the trial court erred in awarding the injunction sought, by concluding that plaintiff was a dealer protected under Act 75. On appeal, the Supreme Court stated that in order to determine if plaintiff was a dealer protected under Act 75, an examination of plaintiffs' commercial operations was necessary, taken in conjunction with the contents of the contract executed between the parties, as well as the reality of how business was conducted between them. In order to decide whether plaintiff was an Act 75 distributor, the Supreme Court needed to consider the aforementioned aspects in light of the criteria outlined in Roberco, supra, 122 D.P.R. at 131-132. These criteria were: "...whether the `distributor' performs an active promotion and/or closing of contracts; if he acquires inventory; if he exerts control over prices; if he 232 possesses the discretion to stipulate the terms of sales; if he is responsible for the delivery and charging of merchandise, and has the authority to grant credit; if he carries out efforts of publicity, be it independently or in connection with someone else; if he has assumed the risks and responsibility of his actions; if he buys the product, possesses the physical facilities and offers his clients services related with the product." Regarding these criteria, which are inclusive factors, the Supreme Court of Puerto Rico stated that not all had to be satisfied in order to determine that a plaintiff is an Act 75 distributor. Instead, a trial court must consider said factors in light of the evidence presented. The trial Court must determine if that evidence is sufficient to help reach a conclusion that, given a preliminary injunction, there would be a possibility for plaintiff to succeed on the merits. In Cobos Liccia, supra, the Court referred to the text of the contract between the parties, which stipulated that the acceptance and perfecting of sales orders fell exclusively upon defendants. Also referring to the contract, the Court confirmed that plaintiff did not have the authority to fix the merchandise's prices and that sales were conducted in conformity with the terms and conditions established exclusively by defendant. Furthermore, from the evidence gathered by the trial court, the Supreme Court concluded that plaintiff did not acquire merchandise, nor did he keep an inventory; he did not have power to grant credit; he did not partake in publicity efforts. In fact, plaintiff Cobos failed to show that he fulfilled at least one of the criteria established in Roberco, supra. In said case the plaintiff did not prove, through the evidence presented at the hearing, that he was responsible neither for the risks of his empresarial maneuvering nor for the merchandise itself, nor that he owed any duty to third parties. He was, thus, not a distributor protected by Act 75. The evidence presented in the preliminary injunction hearing before this Court makes this case markedly distinguishable from the Cobos Liccia scenario. In this case some of the uncontested aspects of Re-Ace's relationship with Wheeled Coach are as follows: (i) the contract between them was termed a `Distributor's Contract'; (ii) Re-Ace exercised control over the prices of ambulances that are sold in Puerto Rico; (iii) in no part of the agreement does the same state that Wheeled Coach would be in charge of fixing the terms of the sales, the prices of products or that all orders were subject to their approval[7]; (iv) Re-Ace promotes and closes the sales contracts; [8](v) Re-Ace is the party responsible for the collection of monies to pay Wheeled Coach for the cost of the ambulances; (vi) Re-Ace is the party responsible to its clients for the delivery of 233 the ambulances; if not delivered on time, Re-Ace faces substantial economic penalties or fines for delay; (vii) other risks incurred by Re-Ace include that, if an order is placed with Wheeled Coach for an ambulance and Re-Ace's client cancels the order, Re-Ace pays Wheeled Coach for that vehicle; (viii) Re-Ace is also responsible to service and honor warranty claims by clients with respect to Wheeled Coach's ambulances sold in Puerto Rico; (ix) at times, Re-Ace purchased Wheeled Coach's ambulances for their sale in public bids; (x) Re-Ace conducted publicity by distributing promotional materials in connection with Wheeled Coach and corrected errors in materials provided by Wheeled Coach for distribution; (xi) Re-Ace produced letters of credit to Wheeled Coach before the ambulance left the manufacturing plant to Puerto Rico and, at times, used its own funds or the customer's funds to pay for the ambulance; (xii) Wheeled Coach has no contract for the sale of its ambulances in Puerto Rico with Re-Ace's clients directly; (xiii) Re-Ace does not keep an inventory of Wheeled Coach's vehicles in Puerto Rico to avoid paying an excise tax and given the custom nature of the ambulances sold; (xiv) Re-Ace has been in the business of distributing and selling different types of equipment, specialized trucks and ambulances since 1978; (xv) according to the Agreement, Re-Ace is, and has always been, as evidenced during the hearing, the exclusive distributor for Wheeled Coach in this principal market area; and (xvi) Re-Ace has created a substantial market for Wheeled Coach in Puerto Rico, estimated at 50% of the ambulance market in P.R. The Court has analyzed Re-Ace's relationship with Wheeled Coach, taking into consideration the breadth of their commercial operations in conjunction with the contract stipulations, and coincides with Re-Ace's argument that its operations differ amply from plaintiffs' operations in Cobos Liccia, and in turn fall within the scope of what a dealer is under Act 75 and prevailing jurisprudence. The Court reaffirms its consideration of Mr. Carlos Leal's testimony to reach this conclusion since he was the only person to testify with personal knowledge of the nature and extent of the relationship between Wheeled Coach and Re-Ace, which has existed for over twenty four (24) years. Re-Ace satisfied most of the above-mentioned criteria, by virtue of the evidence presented, giving it a strong likelihood to succeed on the merits of the case. More so, it has presented several additional factors in support of its position. As the Court stated in Cobos Liccia, supra: "A distribution agreement is characterized by its continuity, stability, mutual confidence and coordination between the parties in their capacity as independent promoters, without hierarchical subordination...". Also, "Act 75 is invested with great public interest. Its finality consists in `leveling the trade conditions of two groups economically unequal in their force.' The law seeks to impede the em-powerment by a principal of the accretion of a business after a local distributor has conquered a relevant market and a clientele solely through his efforts." Id. at 906. This Court, thus, finds that Act 75 was drafted to protect distributors, like Re-Ace in this case, from the arbitrary and damaging decisions made by principals when they choose to terminate a relationship without just cause. In reaching this conclusion, the Court considers Act 75 jurisprudence stating that the temporary relief available under the Act "is not tied to a showing of irreparable injury or to the probability of success in a case on the merits, but rather to the policies of the [A]ct in promoting the continuation of dealership agreements and the strict adherence to the provisions of the agreements." *234 Rosario v. Amana Refrigeration, 733 F.2d 172 (1st Cir.1984); DeMoss v. Kelly, 493 F.2d 1012, 1015 (1st Cir.1974);Medika Intern., Inc. v. Scanlan, 830 F. Supp. 81, 88 (D.P.R.1993); Aybar v. F & B. Mfg. Co., Inc., 498 F. Supp. 1184, 1191 (D.P.R.1980). In addition, the Court concludes that Wheeled Coach failed to present any evidence justifying its decision to terminate the contract with Re-Ace, other than its contention that there was no contract in place between the parties. Yet, the 1989 Distributor's Contract was never terminated and the parties continued their commercial relationship even after its termination date. The evidence presented during the preliminary injunction hearing evidences that Wheeled Coach, when it decided to terminate the contract with Re-Ace, failed to mention any reason to terminate the agreement. It did not even have a copy of the written agreement between the parties. Thus, the Court concludes, based on the weight of the evidence presented during the preliminary injunction hearing, that, Wheeled Coach failed to demonstrate a just cause, as defined in Act 75, to terminate its contract with Re-Ace and the latter has a strong probability to succeed on the merits of this action. III. Conclusion In accordance with the foregoing, the Court hereby GRANTS plaintiffs request for a preliminary injunction, and ORDERS the immediate reinstatement of the exclusive distribution agreement between Re-Ace and Wheeled Coach Industries, Inc. for the territory of Puerto Rico, under the same terms and conditions agreed upon and under which both parties have worked since 1979 until the termination of the agreement by Wheeled Coach Industries, Inc.. Considering the above, and the exclusive nature of the relationship with Re-Ace, the Court hereby ENJOINS Defendant, Wheeled Coach Industries, Inc., from entering and/or maintaining any other distribution agreement with third parties for the territory of Puerto Rico. NOTES [1] Wheeled Coach argued during the preliminary injunction hearing that Re-Ace was a corporation not in "good standing" in the Department of State of Puerto Rico for failing to file several annual reports. Nothing in the Puerto Rico Corporations Law precludes Re-Ace from filing this action and seeking equitable remedies. As of today, Re-Ace fully enjoys its corporate existence, although it may be subject to a fine for failing to file its annual reports. See P.R. Laws Ann. tit. 14 § 2302. In addition, for purposes of the preliminary injunction stage of this Act 75 case, the only defendant that has appeared is Wheeled Coach Industries, Inc., as the party who contracted with Plaintiff Re-Ace. Plaintiff's cause of action against Bill de Leon Specialty Vehicles, Inc. is for the alleged tortious interference with the contractual relationship between Re-Ace and Wheeled Coach Industries, Inc.. [2] Both parties submitted to the Court an executed copy of the Notice of Availability of a United States Magistrate Judge to Exercise Jurisdiction and the district court ordered that the case be referred to the undersigned Magistrate Judge to conduct all proceedings and order entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. [3] The transcript of the preliminary injunction hearing has been made part of the record (Docket No. 25). [4] Mr. Abel del Río, the only witness presented by defendant, Wheeled Coach Industries, Inc., during the preliminary injunction hearing admitted that before "late 2000" he had no personal knowledge of Re-Ace's contract with Wheeled Coach. Transcript, page 166. Thus, the Court relies on Mr. Leal's uncontested testimony to describe the relationship between the parties during that period of time. After late in the year 2000, Mr. Del Río testified that he was named International Sales Manager and made efforts to find out about the nature of the relationship between Wheeled Coach Industries, Inc. and Re-Ace. He found out that Re-Ace was Wheeled Coach's distributor in Puerto Rico and that there were no other Wheeled Coach distributors in Puerto Rico. Transcript, pages 165-167. [5] This contract was admitted into evidence at the preliminary injunction hearing as plaintiff's Exhibit 3. [6] Courts presiding in a diversity jurisdiction case are bound to apply the substantive law, including the choice-of-law rules, of the forum where the action is filed. Servicios Comerciales Andinos, S.A. v. GE Del Caribe, 145 F.3d 463, 478 (1st Cir.1998); Beatty Caribbean, Inc. v. Viskase Sales Corp., 241 F. Supp. 2d 123, 128 (D.P.R.2003); Joseph W. Glannon, Civil Procedure Examples and Explanations 163-170 (4th ed.2001). [7] The Court is not convinced of Wheeled Coach's argument that it controls, and not Re-Ace, the prices of the ambulances. It is evident that Re-Ace does not have any input in the price Wheeled Coach charges for its ambulances to Re-Ace. Yet, in the sale to its clients, it is Re-Ace who sets the final price for the ambulances, and includes its profit margin. [8] The Court, once again, is not moved by Wheeled Coach's argument that in its relationship with Ford, Wheeled Coach was the seller of the unit and the Ford dealership was the buyer, hence Re-Ace cannot be an Act 75 distributor. Act No. 75, in Section 278(b), defines a dealer's contract as the: "Relationship established between a dealer and a principal or grantor whereby and irrespectively of the manner in which the parties may call, characterize or execute such relationship, the former actually and effectively takes charge of the distribution of a merchandise, or of rendering of a service, by concession or franchise, in the market of Puerto Rico" (emphasis added).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501559/	270 F. Supp. 2d 293 (2003) UNITED STATES of America v. Makene JACOBS No. CRIM.3:00 CR 227 SRU. United States District Court, D. Connecticut. June 26, 2003. 295 AMENDED SUPPLEMENTAL FINDINGS FOLLOWING REMAND UNDERHILL, District Judge. This case is before the court following a remand from the Second Circuit Court of Appeals, prior to briefing or argument of the pending appeal. Makene Jacobs, who was convicted of a narcotics trafficking offense, moved the Second Circuit to remand for an evidentiary hearing on various grounds. The Court of Appeals granted Jacobs' motion in part and remanded the matter "for the limited purpose of making a supplemental determination on whether Jacobs's trial counsel was ineffective because he failed to move to suppress [certain] evidence, and failed to investigate whether the police had conducted a legal search, seizure, and arrest." Mandate at 1 (Apr. 30, 2003). The parties briefed the issues raised, and on June 20 and 23, 2003 the court held an evidentiary hearing that lasted slightly more than one full day. At the hearing, six witnesses provided live testimony, one witness testified by way of affidavit, and the court received into evidence a number of exhibits. In addition, the court reviewed in camera a substantial volume of material subpoenaed by Jacobs from the City of Bridgeport, with respect to which the City and two individual police officers had filed a motion to quash. Having considered all of the evidence introduced at the hearing and after applying the standards governing claims of ineffective assistance of counsel, the court concludes that Jacobs was not denied effective assistance of counsel. To the contrary, Jacobs' trial counsel commendably represented a difficult client facing a difficult 296 case. The following represents the court's findings of fact and conclusions of law. I. Background In Count Twelve of a Third Superceding Indictment filed on June 20, 2001, Jacobs and a number of other alleged co-conspirators in the Estrada drug organization were charged with conspiracy to possess with intent to distribute one kilogram or more of a substance containing a detectable amount of heroin, in violation of Title 21 U.S.C §§ 841(a)(1) and (b)(1)(A) and 846. In November 2001, Jacobs was tried before a jury over the course of nine days. At trial, the evidence against Jacobs was very strong. In addition to the normal array of government witnesses, the government's case included a surveillance videotape of Jacobs selling narcotics in the PT Barnum Housing Project ("Housing Project") in Bridgeport, Connecticut. Accordingly, there is no dispute that Jacobs was selling drugs and that he was doing so in an area of the Housing Project controlled by the Estrada organization; Jacobs claims, however, that he was not a member of the Estrada organization. The Estrada organization sold heroin under a variety of brand names, including "Hawaiian Punch." Sergeant Gonzalez testified that he observed and videotaped Jacobs selling narcotics on March 27, 2000, and, in his opinion, Jacobs was selling heroin that day. The government also offered testimony linking Jacobs to the Estrada organization. Jermaine Jenkins, a cooperating witness and former Estrada organization member, testified that Jacobs was actively involved in the Estrada organization and described, with particularity, Jacobs' role in the organization. Viviana Jimenez, another cooperating witness, testified that she sold heroin for Jacobs as part of the Estrada conspiracy. Officer Bailey testified that, on August 3, 2000, he observed Jacobs and other members of the Estrada organization selling "Hawaiian Punch" within the Housing Project. Bailey observed customers drive up to the defendant, ask him if he had any "Hawaiian Punch," and then be directed to another Estrada organization member who produced an item that the officer, based on his training and experience, recognized as a "bundle" of heroin. Jacobs acted as a lookout for the police during these transactions. Officer Bailey also overheard a customer approach Jacobs, ask him if he had any "Hawaiian Punch," and heard Jacobs answer, "yeah, it's punch." Officer Bailey then directed the Bridgeport Police to arrest Jacobs and other members of the Estrada organization. Police Officers Pierce and Garcia proceeded to Jacobs' apartment and arrested him. Officer Pierce testified that, upon arresting Jacobs he patted him down and found $2,407 in United States currency in his right front pocket. Officer Pierce then brought Jacobs to the hving room of the apartment where Jacobs lived with his girlfriend, Leandrea Wright, and detained him there while other members of the Bridgeport Police searched the apartment. In his defense, Jacobs took the stand and admitted that he was a drug dealer, although he denied being a member of the Estrada organization. Jacobs provided the jury with two explanations supporting his defense. First, Jacobs attempted to convince the jury that, in light of his working full time for the Schrafel Paperboard Converting Corporation in West Haven, Connecticut he would not have had the time to be a leader in the Estrada organization. To buttress this claim, Richard Meir testified that Jacobs had worked for him full time from March 15, 1999 through March 1, 2000. In addition, Benito Rosario testified on Jacobs' behalf, and stated that, although Rosario was a member of the Estrada organization, Jacobs was not a member of the organization. Second, Jacobs 297 argued that the police witnessed him selling cocaine powder for himself, not selling heroin for the Estrada organization. In support of this latter theory, Jacobs admitted that the $2,407.00 was drug-trafficking proceeds, but claimed that the proceeds resulted from his selling cocaine powder for himself. Jacobs also testified that the police did not seize the money from his person. Jacobs' testimony at trial was not credible. On November 30, 2001, the jury rendered a guilty verdict against Jacobs. On September 26, 2002, this court sentenced Jacobs to a term of life imprisonment.[1] On October 1, 2002, Jacobs timely filed a Notice of Appeal. On March 14, 2003 Jacobs requested the Second Circuit to remand the case to the district court for an evidentiary hearing on whether his trial counsel, Attorney Elliot Warren, rendered ineffective assistance. On April 30, 2003, the Court of Appeals remanded the case to the district court. Jacobs now claims that Attorney Warren provided ineffective assistance of counsel by failing to move to suppress the $2,407 seized and by failing to investigate two other witnesses, Leandrea Wright and Hazel Moore. Jacobs claims these witnesses would have supported his motion to suppress or alternatively would have cast doubt on Officer Pierce's trial testimony. II. Standard of Review for an Ineffective Assistance of Counsel Claim A defendant challenging his conviction on the basis of ineffective assistance of trial counsel bears a heavy burden. United States v. Atherton, 846 F. Supp. 170, 173 (D.Conn.1994). First, the defendant must demonstrate that trial counsel's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In making this determination, the court will afford great deference to trial counsel's strategy because: 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 from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S. Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955), reh'g denied, 350 U.S. 955, 76 S. Ct. 340, 100 L. Ed. 831 (1956)). In light of this highly deferential standard, the Second Circuit has defined conduct to be unreasonable only where there is no plausible trial strategy justifying counsel's behavior. Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir.1998); Eze v. Senkowski, 321 F.3d 110, 112-13 (2d Cir.2003). Second, the defendant must demonstrate that trial counsel's errors prejudiced his defense. See Atherton, 846 F.Supp. at 173. "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." Strickland, 466 U.S. at 694, 104 S. Ct. 2052. Where, as here, a defendant claims that trial counsel's failure to file a suppression motion constitutes ineffective assistance, the defendant must demonstrate that, if made, the suppression motion would have been meritorious, and the result of the proceeding would likely 298 have been different. United States v. Mates, 905 F.2d 30 (2d Cir.1990), citing Kimmelman v. Morrison, 477 U.S. 365, 375-76, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). "In sum, `[t]he benchmark of judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" Atherton, 846 F.Supp. at 173, quoting Strickland, 466 U.S. at 694,104 S. Ct. 2052. III. Discussion For the reasons discussed below, Jacobs fails each step of the ineffective assistance inquiry. A. Adequacy of Trial Counsel's Representation Jacobs first claims that Attorney Warren provided deficient representation by failing to move to suppress the $2,407 seized at the time of his August 3, 2000 arrest. Jacobs claims that the police illegally seized the $2,407 because they seized the money from his apartment without a search warrant or his consent to search the apartment. See Payton v. New York, 445 U.S. 573, 586-87, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (recognizing that the Fourth Amendment prohibits the police from making a warrantless and non-consensual seizure in a suspect's home). In light of the highly deferential standard noted above, the court will determine whether Attorney Warren offered a plausible justification for why he chose not to file a motion to suppress. At the evidentiary hearing, Attorney Warren explained that he believed, particularly in light of his determination that he did not have sufficient credible evidence to succeed on a suppression motion, that it was a sound tactical decision not to file such a motion. Attorney Warren gave several reasons for that decision. First, Jacobs had insisted from the beginning of his representation that he was going to testify at trial. Because Jacobs was going to testify on his own behalf, Attorney Warren was concerned that: (1) anything Jacobs testified to during the suppression hearing could be used to impeach him at trial; see U.S. v. Jaswal, 47 F.3d 539, 543 (2d Cir.1995); and (2) the government could more effectively cross-examine Jacobs at trial if it was given a preliminary opportunity to cross-examine him at the suppression hearing. Second, Attorney Warren was concerned that Jacobs would give fraudulent testimony at a suppression hearing. Jacobs had previously conveyed to Attorney Warren that he was prepared to testify falsely regarding his state court guilty plea in order to withdraw his plea, and Jacobs had requested Ms. Wright and another potential witness to testify falsely on his behalf. Third, Attorney Warren did not believe the $2,407 was critical to the government's case in light of the videotape surveillance, Sergeant Gonzalez's, Officer Bailey's and Officer Pierce's testimony, as well as the co-operating witnesses' testimony. Moreover, as part of his defense, Jacobs was not going to deny that he was a drug dealer. Thus, whether Jacobs had the $2,407 on his person or in his apartment was immaterial to his defense. Fourth, despite Jacobs' claim that Ms. Wright and Mrs. Moore would corroborate Jacobs' story that the police did not seize the $2,407 from his person, Ms. Wright emphatically informed Attorney Warren that she could not corroborate Jacobs' story because she was not present at the time of the seizure.[2] Moreover, she informed 299 Attorney Warren that Jacobs had written to her and asked her if she would testify falsely on his behalf, claiming that she had witnessed the police seizing the money from the apartment, rather than from his person. Ms. Wright then promised Attorney Warren that if he asked her or her mother, Hazel Moore, who lived across the street from Jacobs, to testify on Jacobs' behalf, she would deliver Jacobs' letter requesting fraudulent testimony to the United States Attorney's Office.[3] Thus, Attorney Warren had reason to believe that neither Ms. Wright nor Mrs. Moore[4] could have provided truthful testimony to contradict Officer Pierce. In addition, their testimony would have potentially led to exposing Jacobs to additional criminal charges for obstruction of justice. Attorney Warren, therefore, wisely decided not to call Ms. Wright and Mrs. Moore at a suppression hearing. Sixth, in light of Ms. Wright's threat to go to the United States Attorney's Office, and the other repercussions that could result from a suppression hearing mentioned above, Attorney Warren consulted Jacobs and they both agreed it was not in his best interest to file the motion to suppress. In sum, Attorney Warren presented not only plausible strategic decisions not to file a motion to suppress, but had unquestionably reasonable bases for choosing not to file a motion to suppress. Accordingly, Jacobs' argument that Attorney Warren should have made a motion to suppress fails to satisfy the deficiency prong of Strickland. Alternatively, Jacobs argues that Attorney Warren's representation was deficient because he failed to properly investigate Ms. Wright and Mrs. Moore. Jacobs claims that a reasonable investigation by Attorney Warren would have revealed that Ms. Wright and Mrs. Moore were aware of facts that directly contradicted Officer Pierce's testimony that he seized the $2,407 from Jacobs' person. Jacobs claims that, with their testimony, Attorney Warren would then have been able to secure a motion to suppress the seized money, or alternatively introduce their testimony at trial to cast doubt on Officer Pierce's credibility. "[Although failure to make a suppression motion is not per se ineffective representation, Kimmelman, 477 U.S. at 384, 106 S. Ct. 2574, where trial counsel fails to make a motion to suppress because he neglected `to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary, then ineffective representation is shown.'" United States v. Matos, 905 F.2d 30, 33 (2d Cir.1990), quoting Kimmelman, 477 U.S. at 384, 106 S. Ct. 2574; see also Strickland, 466 U.S. at 691, 104 S. Ct. 2052. At the evidentiary hearing, Jacobs offered Ms. Wright's affidavit and Attorney Warren's Criminal Justice Act ("CJA") time records as proof that Attorney Warren did not reasonably investigate Ms. Wright. There is no dispute that Attorney Warren did not contact Mrs. Moore. According to her affidavit, Ms. Wright states 300 that Attorney Warren never spoke to her regarding the facts relating to the August 3, 2000 entry into her home or the seizure of the currency. In the CJA records, there is no entry specifically indicating that Attorney Warren ever spent time with Ms. Wright. Despite Ms. Wright's affidavit and the CJA records, the court concludes that Attorney Warren sufficiently investigated Ms. Wright as a potential witness for a suppression hearing or trial. The court finds Attorney Warren's entire testimony, and in particular his testimony that he spoke to Ms. Wright on the phone and in person, completely credible. Moreover, the fact that the CJA records do not reflect the short conversations Attorney Warren had with one witness is immaterial and consistent with Attorney Warren's testimony that he did not account for every single minute he spent working on a case, particularly if conversations with witnesses were brief. Although Attorney Warren likely should have asked to see the letter prior to abandoning his investigative efforts, given Jacobs' past experience in requesting potential witnesses to testify falsely, Ms. Wright's extreme reluctance to testify, Ms. Wright's inability to corroborate Jacobs' story, and Ms. Wright's threat to supply the prosecution with incriminating evidence against Jacobs, it was a sound tactical decision to drop the effort to seek her assistance. In addition, Attorney Warren acted reasonably in deciding not contact Mrs. Moore out of fear of inviting additional criminal charges against his client by Ms. Wright going to the United States Attorney's Office with Jacobs' letter. B. Prejudice Suffered by Jacobs Even assuming arguendo that Attorney Warren should have filed a motion to suppress, Jacobs must demonstrate that the motion to suppress would have been meritorious. See Kimmelman, All U.S. at 375, 106 S. Ct. 2574. If Jacobs filed a motion to suppress, Attorney Warren would not have had any additional evidence to corroborate Jacobs' testimony that the search was illegal.[5] As such, the court would have balanced the credibility of Jacobs against the credibility of the Bridgeport Police Officers. At the trial as well as at the evidentiary hearing, Officer Pierce testified that he seized the money from Jacobs' person, and the court found his testimony in both instances credible. Thus, it is unlikely that a motion to suppress would have succeeded. Assuming arguendo that Attorney Warren should have filed the motion to suppress and the motion to suppress would have been meritorious or that Attorney Warren failed to reasonably investigate Ms. Wright and/or Mrs. Moore, Jacobs would still need to demonstrate that, but for Attorney Warren's errors, there is a reasonable probability that there would have been a different outcome at trial. Strickland, 466 U.S. at 694, 104 S. Ct. 2052. Jacobs argues that, if the motion to suppress was meritorious, there would have been minimal evidence linking Jacobs to the Estrada organization. The court finds the opposite to be true. Putting aside the seized money, the government offered significant evidence connecting Jacobs to the Estrada organization. The videotape showed Jacobs personally selling narcotics hand-to-hand in an area of the Housing Project controlled by the Estrada organized. 301 Officer Gonzalez testified that he believed that the drug Jacobs was selling in the Housing Project was heroin. Officer Bailey witnessed Jacobs' involvement with other Estrada members selling "Hawaiian Punch" on the day of his arrest. In addition, the testimony of the cooperating witnesses directly identified Jacobs as a supervisor in the Estrada organization. All of the evidence overwhelmingly indicated that Jacobs was guilty of conspiracy to possess with intent to distribute one kilogram or more of heroin as part of the Estrada organization. Jacobs also argues that if Attorney Warren had reasonably investigated Ms. Wright and Mrs. Moore he would have discovered that they would be able to contradict Officer Pierce's testimony and thereby cast doubt on the government's entire case. Regarding August 3, 2000, Ms. Wright states that she watched from across the street as the police entered her apartment. By the time she entered her apartment, Jacobs was sitting in the living room on the second floor. Shortly after she arrived, a police officer came down the stairs, holding a large bundle of cash, and asked "who's money is this?" Ms. Wright states that the officer was referring to money belonging to Jacobs. At the evidentiary hearing, Mrs. Moore testified, in relevant part, that she was also present in her daughter's living room with Jacobs and Officer Pierce when the police officer came down the stairs with some money in his hand and asked whose money it was. Even if the court accepts as true everything in Ms. Wright's affidavit and Mrs. Moore's testimony, neither of them were present at the time Jacobs was arrested. Accordingly, they would have been unable to testify whether Officer Pierce seized money from Jacobs' person or whether another officer found money upstairs.[6] In addition, they would have been unable to testify whether Jacobs gave his permission to the police to search. Accordingly, it is not reasonable to conclude that, if given the opportunity to testify, Ms. Wright and Mrs. Moore would have cast any significant doubt on the government's case, let alone cast enough doubt to the point where the jury would have found Jacobs not-guilty. Accordingly, Jacobs has not demonstrated that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S. Ct. 2052. IV. CONCLUSION Pursuant to the Second Circuit's mandate, the court makes the following determinations: (1) Attorney Warren did not render ineffective assistance by failing to move to suppress the $2,407 or by failing to investigate Leandrea Wright or Hazel Moore. (2) Assuming arguendo that Attorney Warren should have filed a motion to suppress, the motion to suppress would not have been meritorious. (3) Assuming arguendo that Attorney Warren should have filed a motion to suppress and the motion would have been meritorious or Attorney Warren failed to properly investigate Leandrea Wright or Hazel Moore, there is no reasonable probability that these errors would have resulted in a not-guilty verdict for defendant Makene Jacobs. 302 In short, this court finds no merit to Jacobs' claim of ineffective assistance of trial counsel. NOTES [1] Attorney Jose Rojas represented Jacobs at sentencing. [2] According to Attorney Warren, Jacobs told him that the police seized the money from the living room couch instead of from upstairs. Jacobs also told Attorney Warren that he should contact Ms. Wright who would confirm that the money was seized from the couch. [3] Although an argument can be made that Attorney Warren should have asked to see the letter, Attorney Warren likely believed that Ms. Wright was telling the truth about the letter because he was aware that Jacobs had requested another potential witnesses to testify falsely on his behalf. Specifically, Jacobs had requested Richard Meir to expand the dates during which Jacobs worked at his West Haven job. [4] In fact, as adduced at the evidentiary hearing, Mrs. Moore could not have provided contradictory testimony because she was not in the apartment when Jacobs was arrested, searched or allegedly consented to allowing the officers to search the apartment. [5] By their own statements, neither Ms. Wright nor Mrs. Moore was present at the time Jacobs was arrested and initially taken into the living room. Thus, neither could testify whether or not Jacobs consented to a search of the apartment or whether Officer Pierce found money on Jacobs' person. [6] There was no evidence whatsoever that the money supposedly brought downstairs was ever seized by the police or even that the amount of money brought downstairs was consistent with the amount seized.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501531/	722 S.E.2d 366 (2012) 313 Ga. App. 641 McLEMORE et al. v. GENUINE PARTS COMPANY. No. A11A1681. Court of Appeals of Georgia. January 24, 2012. 367 Matthew Neal Pope, Columbus, for appellants. Hawkins, Parnell, Thackston & Young, Stephen Christopher Collier, for appellee. DOYLE, Presiding Judge. Evelyn L. and Bobbie H. McLemore filed suit against Genuine Parts Company d/b/a Napa Auto Parts ("GPC") after Evelyn sustained injuries when she fell from a curb in a GPC parking lot. The McLemores appeal the trial court's grant of summary judgment to GPC. We affirm, for the reasons that follow. "Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party."[1] So viewed, the record shows that at approximately 11:00 a.m. on November 13, 2007, a GPC store in Columbus hosted a tool show in the store parking lot, including a customer cookout with tables and chairs. On that day, Evelyn drove her husband, Bobbie, to the GPC store to buy hydraulic fluid. According to Evelyn, because the GPC parking lot was filled with people, she parked in a separate lot across the street from the store. As Evelyn approached the store, she stepped up onto a curb and then fell backward, landing on a nearby chair. Several men assisted her and set her in a chair, where she waited for five to ten minutes before she and Bobbie entered the GPC store and purchased hydraulic fluid. Evelyn and Bobbie then exited the store using the handicap ramp and walked to their car. Thereafter, they stopped at a restaurant and then went to the emergency room, where x-rays revealed that Evelyn had two broken ribs. The next morning, Evelyn's doctor concluded that she also had a broken hip, which required surgery. Evelyn later deposed that she and her husband had shopped at the GPC store on three or four occasions prior to her fall. They had a handicap sticker on the car for Bobbie, who was partially blind, and therefore they parked in the handicap parking space and used the handicap ramp to enter and exit the store on their previous visits. Evelyn testified that there "was a lot of distraction" in the parking lot on the day of her fall. There were tables and chairs set up in front of the store to her left as she attempted to step onto the curb to enter the store. Evelyn deposed that the curb, which she was able to see as she approached it, was 368 "higher than usual" and that it was "a higher step than other curbs." Although she "[did not] think [she would have fallen] if it had been a regular height curb," Evelyn conceded that she did not know "what it was that made [her] fall backwards." In a subsequent affidavit, Evelyn testified that when she and Bobbie entered the parking lot, she "was unable to see or walk over to the ramped entrance to the store because of all of the luncheon activities taking place, which blocked [her] path." The GPC store manager, however, testified that the handicap ramp was not obstructed by the tool show or in any other manner on the day of Evelyn's fall.[2] As the McLemores walked toward the store together, Bobbie stepped onto the curb and then saw Evelyn step up "almost simultaneously." According to Bobbie, he "could see the curb and ... the sidewalk in front of [him]" as he approached them, and nothing obstructed his view of the curb, which he could tell "was taller or higher than the average curb." The McLemores' expert engineer, Herman Hill, averred that the curb where Evelyn fell was defectively created, designed, built, and maintained by [GPC], and that it constituted a trip hazard. I am familiar with the Georgia State Minimum Standard Building Code requirements and other industry standards applicable to proper stair design and safety. It is my opinion that [GPC] failed to substantially comply with the standards referred to above ... because the stair riser height where the fall occurred exceeded the maximum allowable height by at least one inch. Hill further opined that GPC "negligently operated this commercial facility in violation of the applicable regulations and standards for maintenance of accessible features at a public accommodation and commercial facility under the Americans with Disabilities Act (ADA) and that such negligence was a proximate cause of the serious injury to ... Evelyn...." On appeal, the McLemores contend that the trial court erred by granting summary judgment to GPC on their premises liability claim. We disagree. Pursuant to OCGA § 51-3-1, "[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe." To prevail on a "trip and fall" claim, the plaintiff must prove that (1) the premises owner had actual or constructive knowledge of the hazard; and (2) the plaintiff lacked knowledge of the hazard, despite her exercise of ordinary care, due to actions or conditions within the owner's control. However, the plaintiffs evidentiary burden concerning the second prong is not shouldered until the owner establishes that the plaintiff was negligent, that is, she intentionally and unreasonably exposed herself to a hazard of which she knew or, in the exercise of reasonable care, should have known existed. With respect to the second prong, we determine whether the record shows plainly, palpably[,] and without dispute that plaintiff had knowledge of the hazard equal or superior to that of defendants or would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety.[3] When the claim involves allegations of a static, dangerous condition, the rule is well established that the basis of the proprietor's liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.[4]*369 "If nothing obstructs the invitee's ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks."[5] Thus, even if GPC had knowledge of the allegedly hazardous condition of the curb, the McLemores cannot recover if Evelyn had equal or superior knowledge or if her ability to see the curb was unimpeded. Although Evelyn testified that "[i]t ... seemed like [there] was a lot of distraction" in the parking lot, meaning there were "a lot of people... moving around ...," she also testified that she was able to see the curb, including its height, as she approached it. Bobbie, who was traversing the parking lot and curb at the same time, conceded that he was able to see the curb as he approached it and observed that it was higher than average. As we noted in Wright v. JDN Structured Finance,[6] [o]ccupiers of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities and trifling defects. One coming upon such premises is not entitled to an absolutely smooth or level way of travel. The ultimate issue is whether [GPC] was negligent in maintaining a hazardous condition on the property, and in everyday life, persons are required to negotiate floors, steps[,] and doorways. Even if the curbed sidewalk was hazardous as [the McLemores] assertf ], the condition was open and obvious, and thus, in the exercise of ordinary care, [Evelyn] could have avoided it. There is no duty to warn of the obvious.[7] We similarly reject the McLemores' argument that the "distraction theory" precludes summary judgment. "The distraction theory covers situations where the plaintiffs attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur."[8] The relevant inquiry, however, is whether appellant's view of the [hazard] was obstructed at the point immediately before [s]he was about to step [o]nto it.... Where an obstruction is perfectly obvious and apparent, so that one looking ahead would necessarily see it, the fact that the plaintiff merely failed to look will not relieve h[er] from the responsibility for h[er] misadventure.[9] Here, Evelyn did not testify that the purported distraction of people attending the tool show in any way obstructed her view of the curb. "The proof offered clearly puts this case within the line of cases involving the plain view doctrine and effectively eliminates any distraction theory." [10] We agree with the trial court that Evelyn had equal knowledge of any hazard presented by the height of the curb. Accordingly, the trial court did not err by granting summary judgment to GPC.[11] Judgment affirmed. ELLINGTON, C.J., and MILLER, J., concur. NOTES [1] (Footnote omitted.) Pirkle v. Robson Crossing LLC, 272 Ga.App. 259, 612 S.E.2d 83 (2005). [2] Although the store manager helped to set up the tool show and to break it down at the end of the day, he remained in the store during the course of the day. [3] (Punctuation and footnote omitted.) Id. at 260-261, 612 S.E.2d 83. [4] (Punctuation omitted.) Perkins v. Val D'Aosta Co., 305 Ga.App. 126, 128, 699 S.E.2d 380 (2010). [5] (Punctuation omitted.) Becton v. Tire King of North Columbus, 246 Ga.App. 57, 59, 539 S.E.2d 551 (2000). [6] 239 Ga.App. 685, 522 S.E.2d 4 (1999). [7] (Citation and punctuation omitted.) Id. at 686-687(2), 522 S.E.2d 4. [8] (Punctuation omitted.) Gray v. Alterman Real Estate Corp., 196 Ga.App. 239, 239, 396 S.E.2d 42 (1990). [9] (Citations omitted; emphasis in original.) Id. at 240-241, 396 S.E.2d 42. [10] (Punctuation omitted.) Id. at 241, 396 S.E.2d 42 [11] See Pirkle, 272 Ga.App. at 262, 612 S.E.2d 83; Wright, 239 Ga.App. at 687(2), 522 S.E.2d 4; Warnke v. Pace Membership Warehouse, 215 Ga. App. 33, 34, 449 S.E.2d 629 (1994). Compare Perkins, 305 Ga.App. at 129-130, 699 S.E.2d 380 (reversing summary judgment to defendant because the plaintiff, who was injured when he stepped off a high curb, presented evidence that "the step down from the curb was difficult to see when approached from above due to lighting conditions, darkened surfaces!,] and lack of warning").	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501538/	712 S.E.2d 642 (2011) 310 Ga. App. 259 FRANKLIN v. FIRST GEORGIA BANKING COMPANY. No. A11A0216. Court of Appeals of Georgia. June 23, 2011. 643 Robert Gregg McCurry, for appellant. Minor, Bell & Neal, Jonathan Bledsoe, Dalton, for appellee. DOYLE, Judge. This case arises from an application for confirmation of three foreclosure sales filed pursuant to OCGA § 44-14-161 by First Georgia Banking Company ("First Georgia") against Stanley Franklin. Franklin appeals the trial court's final order confirming the sales in the amounts of $170,000; $48,000; and $300,000. He argues that the trial court erred by finding that the properties sold for their true market value because no evidence was introduced showing that a foreclosure sale ever took place or what prices were received for the properties at the alleged sales. For the reasons that follow, we reverse. "In a confirmation proceeding, the trial court sits as the trier of fact, and its findings will not be disturbed on appeal if there is any evidence to support them. Further, on appellate review, we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court's judgment."[1] So viewed, the record reveals that First Georgia filed a report for confirmation of sale under power on February 1, 2010. The report stated that "[o]n the first Tuesday in January 2010," First Georgia auctioned three properties to which Franklin had signed deeds to secure debt in favor of First Georgia. The report contended that after Franklin defaulted on the notes, First Georgia thereafter foreclosed on the property under a power of sale provision in the deed to secure debt. The report contended that the three properties, known as the "Wells Drive Property," the "Nashville Street Property," and the "Dixie/Douglas Road Property" sold for $170,000; $48,000; and $300,000 respectively. In the report, First Georgia asked the trial court to confirm the sales and find that the properties sold for true market value. At the confirmation hearing, First Georgia presented the publisher's affidavits and copies of published notices of sale under power 644 for the three properties as well as the testimony of two real estate appraisers. The parties did not stipulate to advertisement, notice, or regularity of the sale. At the close of First Georgia's case, Franklin argued that the sales should not be confirmed because, among other things, there was no competent record evidence that the sales occurred or that the sales were regular. After a hearing, the trial court confirmed the sale, finding that the sales were properly handled and that true market values for the properties were $170,000; $48,000; and $300,000. Franklin argues that the trial court erred by finding that the properties sold for their true market value because no evidence was introduced as to the regularity of the sales, no evidence was introduced showing foreclosure sales ever took place, and no evidence was introduced regarding the actual prices received for the properties at the alleged sales. Franklin contends that First Georgia produced only the notices of sale under power for the properties and the testimony of two appraisers, who provided evidence of the market value of the properties, but First Georgia failed to produce competent evidence as to the occurrence or outcome of the sales. We agree and reverse. OCGA § 44-14-161, the statute governing nonjudicial foreclosures, provides: (a) When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon. (b) The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale. (c) The court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto; and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale. The court may order a resale of the property for good cause shown.[2] The confirmation statute requires the trial court to determine whether the sale under power was properly executed.[3] Here, the trial court's determination as to the regularity of the sales is not supported by any competent evidence in the record.[4] Although the report to the judge contained allegations of fact concerning the sales, the report was not verified and not supported by testimony or other evidence at the hearing. Although First Georgia's attorney stated that the properties sold for $170,000; $48,000; and $300,000; this statement was not competent evidence.[5] Judgment reversed. ELLINGTON, C.J., and MILLER, P.J., concur. NOTES [1] (Punctuation omitted.) 131 Ralph McGill Boulevard, LLC v. First Intercontinental Bank, 305 Ga.App. 493, 699 S.E.2d 823 (2010). [2] (Emphasis supplied.) [3] See OCGA § 44-14-161(c). [4] Cf. McInnis v. Community Bank & Trust, 306 Ga.App. 436, 437-438, 702 S.E.2d 734 (2010) (holding that the bank failed to present competent evidence that the sale under power was properly advertised). Compare Pine Grove Builders v. SunTrust Bank, 307 Ga.App. 764(2), 706 S.E.2d 129 (2011) (holding that sufficient evidence supported the trial court's confirmation of the sale under power because the bank produced testimony from an eyewitness to the sale that the sale occurred). [5] (Punctuation and footnote omitted.) Belans v. Bank of America, 303 Ga.App. 35, 39(2), 692 S.E.2d 694 (2010) ("[A]ttorneys are officers of the court and their statements in their place, if not objected to, serve the same function as evidence. But this principle cannot be extended to convert otherwise incompetent hearsay into competent evidence"). Compare with Winstar Development v. SunTrust Bank, 308 Ga.App. 655(3), 662, 708 S.E.2d 604 (2011) (physical precedent only) (attorney's testimony that she witnessed a foreclosure sale was sufficient to support trial court's determination that sale occurred).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1821045/	380 So. 2d 101 (1980) In re James R. DABOVAL, III, Applying for the Adoption of Ryan Michael Perez. No. 66607. Supreme Court of Louisiana. February 15, 1980. Denied. SUMMERS, C. J., would grant the writ.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501600/	270 F.Supp.2d 50 (2003) Roselle M. NEELY, Plaintiff v. BAR HARBOR BANKSHARES, et al., Defendants. No. 02-CV-98-B-S. United States District Court, D. Maine. July 10, 2003. 51 Ralph A. Dyer, Law Offices of Ralph A. Dyer, James T. Kilbreth, Verrill & Dana, Portland, for Roselle M. Neely, Bar Harbor Bankshare, Bar Harbor Banking, and Trust Company, BTI Financial Group, Bar Harbor Trust Services, Block Capital Management, Dirigo Investments Inc. Graydon Stevens, Kelly, Remmel & Zimmerman, Lee H. Bals, Marcus, Clegg & Mistretta, P.A., Portland, for Paul G Ahern, Bonnie R McFee, Frank Jansen, Brett S Miller. ORDER SINGAL, Chief Judge. The co-trustee of an irrevocable trust brings a complaint against the former director and officer of various financial institutions alleging liability under federal and state statutory law and under state common law. Presently before the Court is Defendant's Motion for Summary Judgment (Docket # 35). For the reasons discussed below the Court GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment. I. STANDARD OF REVIEW The Court grants a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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). An issue is genuine for these purposes 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). A material fact is one that has "the potential to affect the outcome of the suit under the applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993). The Court views the record in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party's favor. McCarthy v. Northwest Airlines, 56 F.3d 313, 315 (1st Cir.1995). II. BACKGROUND Plaintiff Roselle Neely ("Neely") created a trust ("Trust" or "Neely Trust") by an Irrevocable Trust Agreement dated May 1, 1972. In June 1999, Neely met with Paul Ahern ("Ahern"), the investment officer responsible for managing the Trust, and provided him with specific directions for the investment of the Trust. Presently, Neely asserts that her specific directions for conservative investment were not followed and that the Trust was, instead, invested according to a growth intensive model as part of a scheme to generate fees. The undisputed relevant facts are as follows. Beginning in December 1983, Bar Harbor Banking & Trust Company ("BHBT") 52 assumed the role as co-trustee for the administration of the Neely Trust. In early 2000, however, BHBT's parent company, Bar Harbor Bankshares ("Bankshares"), re-organized BHBT's trust and financial services business. Pursuant to the reorganization, Bankshares formed BTI Financial Group ("BTI") as a subsidiary. BTI then further formed three of its own subsidiaries, Bar Harbor Trust Services ("BHTS"), Block Capital Management ("Block"), and Dirigo Investments, Inc. ("Dirigo"). BHTS acquired BHBT's trust and financial services business, thereby assuming BHBT's fiduciary capacities and obligations. In addition, Block became the registered investment adviser, and Dirigo became the broker-dealer for all trades initiated by Block. Subsequent to the restructuring, Block established a growth-oriented model to invest the equity portfolios of various trusts. Block's investment committee selected the stocks that would be part of the model based on their growth potential and reviewed the individual stock investments on a weekly basis. Approximately twenty of the larger trust accounts under BHTS's management were placed "on the model." (See PL's Resp. to Defs.' Statement of Material Facts at ¶ 11.4.10 (Docket # 47).) Approximately forty more trust accounts were added in subsequent months. The Neely Trust was among the sixty accounts put on the model. All the trusts placed on the model were automatically traded, barring some unique constraints in an individual portfolio. Virtually all of the trades for trust investments were made through Dirigo for a fee. At all relevant times, Defendant Bonnie McFee ("McFee") was the President and Chief Executive Officer of Dirigo and was vested with responsibility "for supervision and management of all Dirigo's day-to-day general business operations and such other responsibilities and duties, consistent with [her] position." (See Pl.'s Resp. to Def. Bonnie McFee's Statement of Material Facts at ¶ 6 (Docket # 45).) In addition, McFee was the Vice Chair of BTI's Board of Directors and the Chairperson of all of BTI's committees responsible for strategic planning. Finally, McFee was a senior executive officer at Block with the title Managing Director and a member of Block's investment committee. As Block's Managing Director, McFee assisted the company's Chief Executive Officer in carrying out his supervisory responsibilities and duties. The Trust started declining in value beginning in 2000, and continuing into 2001. At that time, Neely began raising a number of questions as to the Trust's management. In October 2001, after learning that the Trust had been invested on the growth intensive model, Neely requested that BHTS stop trading on her account. In early 2002, Neely filed suit in Probate Court seeking to replace BHTS as cotrustee. The Probate Court approved the substitution of Maine Bank & Trust Company for BHTS as co-trustee. Neely now brings an action against McFee alleging vicarious liability as a "controlling person" under section 20(a) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78t(a) (2003), (Counts I and II) and section 10605(3) of the Revised Maine Securities Act, 32 M.R.S.A. § 10605(3) (2003), (Count IV). In addition, Neely's Complaint alleges several state common law violations, including liability for interference with contract (Count VI), conversion (Count VII), common law fraud and deceit (Count VIII) and aiding and abetting breach of fiduciary duty (Count X). In response, McFee has brought a motion for summary judgment to dismiss all claims. The Court discusses whether Defendant is entitled to summary judgment 53 on Plaintiff's claims under federal and state statutory law before discussing the issues relevant to Plaintiff's claims under state common law.[1] III. DISCUSSION A. "Controlling Person" Liability (Counts I, II and IV) Counts I, II and IV of Plaintiff's Complaint are premised on the theory that Defendant can be held liable as a "controlling person" under section 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. 78t(a), and the analogous provision of the Revised Maine Securities Act, 32 M.R.S.A. § 10605(3), for the securities laws violations allegedly committed by the corporate Defendants. To hold a defendant liable under either the federal or state statute, a plaintiff must establish a primary violation by the controlled entity and that the defendant was a "controlling person" within the meaning of the statute. 15 U.S.C. 78t(a); 32 M.R.S.A. § 10605(3); Aldridge v. AT. Cross Corp., 284 F.3d 72, 84 (1st Cir.2002). Once the plaintiff makes out a prima facie case, the burden shifts to the defendant to show that she acted in good faith. The Court has already decided in its Order dated June 9, 2003, that there are material facts in dispute with regard to the corporate Defendants' primary liability under the federal and state securities laws. Accordingly, at this juncture the Court need only decide whether Defendant can properly be considered a "controlling person" with regard to the corporate Defendants and whether Defendant has established an affirmative defense. 1. Section 20(a) of the Securities Exchange Act of 1934 (Counts I and II) Section 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78t(a), provides: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. Defendant argues that, for Plaintiff to establish that she was a "controlling person" within the meaning of this statute, Plaintiff must show that Defendant not only had actual control over the controlled entity but must also show that she was a culpable participant in the alleged illegal activity. According to Defendant, summary judgment should be granted in her favor because Plaintiff fails to establish either of these elements. The Court, however, disagrees. In the securities context, "control" means "the possession, direct or indirect, of the power to direct or to cause the direction of the management and policies of [an entity], whether through the ownership of voting securities, by contract, or otherwise." 17 C.F.R. § 230.405(f) (2003); Sheinkopf v. Stone, 927 F.2d 1259, 1270 (1st Cir. 1991). Officers and directors possess such potential ability to control. See Loftus C. Carson, The Liability of Controlling 54 Persons Under the Federal Securities Acts, 72 Notre Dame L.Rev. 263, 282 (1997). In addition, the First Circuit has declined to specifically address the issue of whether "culpable participation" is a required element of liability under section 20(a).[2]See Aldridge, 284 F.3d at 85 n. 6. Even if "culpable participation" is required, however, it appears from the First Circuit's decision in Aldridge that the test is met by a showing that Defendant was an active participant in the decision-making process. See id., at 85 (finding that, in addition to some potential ability to control, a plaintiff must show that the alleged controlling person actually exercised direct control over the management and operations of the company). As Plaintiff correctly states, there are no First Circuit cases that require a showing of culpability beyond such active participation. Here, Defendant was the President and Chief Executive Officer of Dirigo. As President and Chief Executive Officer, Defendant supervised and managed all of Dirigo's day-to-day general business operations. In addition, Defendant was the Vice Chair of BTI's Board of Directors and the Chairperson of all of BTI's committees responsible for strategic planning. Finally, Defendant was a senior executive officer at Block, with the title Managing Director, and a member of Block's investment committee. As Block's Managing Director, Defendant assisted the company's Chief Executive Officer in carrying out his supervisory responsibilities and duties. In these positions, Defendant possessed not only the general power to control the direction of management and company policy, but actually exercised such control. Accordingly, Plaintiff satisfies both the "control" and "culpable participation" elements. In light of the above discussion and the fact that Defendant has failed to establish an affirmative defense,[3] the Court denies Defendant's motion for summary judgment on Counts I and II and discusses Defendant's argument for summary judgment on Count IV. 2. Section 10605(3) of the Revised Maine Securities Act (Count IV) Defendant argues that she is entitled to summary judgment on Count IV because she did not employ any "device, scheme or artifice to defraud," as prohibited by 32 M.R.S.A. §§ 10201 (2003)[4] and 55 10203 (2003)[5]. Defendant's argument, however, fails to fully respond to Plaintiff's claim. Contrary to what Defendant assumes, Plaintiff's claim in Count IV alleges vicarious "controlling person" liability in violation of 32 M.R.S.A. § 10605(3) and not the sections mentioned above. 32 M.R.S.A. § 10605(3) of the Revised Maine Securities Act provides: Every person who directly or indirectly controls another person liable under subsection 1[6] ... [and] every partner, officer or director of that other person... is also liable jointly and severally with and to the same extent as that other person, unless the person otherwise secondarily liable under this Act proves that the person did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. Under this provision, Defendant is liable as a "controlling person" of Block, Dirigo and BTI unless she can show that she had no knowledge of the alleged violations of the Maine Securities Act by the corporate Defendants. As discussed above, Defendant fails to make this showing. Accordingly, the Court denies Defendant's motion for summary judgment on Count IV. B. Common Law Torts (Counts VI, VII, and VIII) In addition to her claims under federal and state statutory law, Plaintiff brings various claims against Defendant under state common law, including tortious interference with an existing contract (Count VI), conversion (Count VII), fraud (Count VIII) and aiding and abetting (Count X). In response, Defendant argues that she is shielded from liability in light of the fact that she has never spoken with or had any dealings with Plaintiff or Plaintiffs Trust. The Court agrees with Defendant that the facts in the record are insufficient as a matter of law for purposes of establishing Defendant's direct liability under Counts VI, VII and VIII but disagrees with respect to Count X. The Court explains further below. 1. Conversion (Count VII) Count VII of Plaintiff's Complaint alleges a cause of action for conversion. In order to prove conversion, Plaintiff must establish that: 1) she had a property interest in the property; 2) she had the right to possession at the time of the alleged conversion; and 3) she made a demand for its return that was denied by the holder. Withers v. Hackett, 714 A.2d 798, 800 (Me.1998). Here, it is undisputed that Plaintiff never made a demand upon Defendant for the return of her property that was ultimately denied. In fact, Plaintiff's demand was made to Bar Harbor Trust Services and not Defendant. Accordingly, the Court grants summary judgment on this count in favor of Defendant. 2. Fraud (Count VIII) Count VIII of Plaintiff's Complaint alleges a cause of action for fraud. Under Maine law, a person is liable for fraud if she "(1) makes a false representation (2) of 56 a material fact (3) with knowledge of its falsity or in reckless disregard of whether it is true or false (4) for the purpose of inducing another to act or to refrain from acting in reliance upon it, and (5) the plaintiff justifiably relies upon the representation as true and acts upon it to his damage." Letellier v. Small, 400 A.2d 371, 376 (Me.1979). Here, the undisputed facts show that, prior to the commencement of the present action, Defendant had never communicated with Plaintiff and that she was not even aware of who Plaintiff was. Accordingly, Defendant could not have made any representations to Plaintiff for the purposes of fraudulently inducing her to act or refrain from acting. The Court, therefore, grants Defendant's motion for summary judgment on this count. 3. Tortious Interference with Contract (Count VI) Count VI of Plaintiff's Complaint states a claim for tortious interference with a contractual or other advantageous economic relation. Whenever a person, "by fraud or intimidation procures the breach of a contract that would have continued but for such wrongful interference, that person can be liable in damages for such tortious interference." Pombriant v. Blue Cross/Blue Shield of Maine, 562 A.2d 656, 659 (Me.1989). As stated above, Plaintiff fails to establish the elements of fraud. In addition, there are no facts in the record to suggest intimidation. Accordingly, the Court grants Defendant's motion for summary judgment on this count. 4. Aiding and Abetting (Count X) Count X of Plaintiff's Complaint states a claim for aiding and abetting a tortious act. In Maine, the tort of aiding and abetting a tortious act is drawn from the Restatement of Torts. FDIC v. S. Prawer & Co., 829 F.Supp. 453, 457 (D.Me. 1993). The Restatement (Second) of Torts § 876 (2003) provides that: For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other ... or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person. Here, the Court has already found, pursuant to its Order dated June 9, 2003, that material disputes exist with regard to Plaintiff's claims arising in tort, including fraud, conversion and tortious interference with contract. In addition, the Court now finds that in light of Defendant's status as an officer and director of BTI, Block and Dirigo and her regular involvement with Block's investment committee, there is a material issue as to Defendant's knowledge of and assistance in these alleged tortious activities. Accordingly, the Court denies Defendant's motion for summary judgment on this count. IV. CONCLUSION For the reasons discussed above, the Court GRANTS Defendants' Motion for Summary Judgment (Docket # 35) on Counts VI, VII and VIII but DENIES Defendants' motion on Counts I, II, IV and X. SO ORDERED. NOTES [1] Plaintiff's Complaint also alleges claims against Bankshares, BHBT, BTI, BHTS, Block and Dirigo (collectively "corporate Defendants"). These claims include violations under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), Rule 10b-5, 17 C.F.R. § 240.10b-5 (2003), section 206 and 215 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-6, 80b-15, and state common law. [2] Whether culpable participation is a required element of liability under section 20(a) has generated a great deal of legal debate. Compare SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1472 (2d Cir.1996) (applying such a requirement), with Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1575 (9th Cir.1990) (rejecting such a requirement). [3] Defendant has not presented any evidence to show that she adequately discharged her supervisory responsibilities to ensure compliance with the federal securities laws. Accordingly, Defendant has failed to carry her burden of persuasion that she acted in good faith. See Hollinger, 914 F.2d at 1576. [4] 32 M.R.S.A. § 10201 provides in relevant part: In connection with the offer, sale or purchase of any security, a person shall not, directly or indirectly: 1. Fraud. Employ any device, scheme or artifice to defraud; 2. Untrue statements, material omissions. Make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or 3. Deceptive practices. Engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person. [5] 32 M.R.S.A. § 10203 provides: Neither an investment adviser nor an employee of an investment adviser may, directly or indirectly, employ any device, scheme or artifice to defraud any client or engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any client. [6] 32 M.R.S.A. § 10605(1) provides that "[a]ny person who offers or sells a security in violation of section 10201 ... is liable to the person purchasing the security from that person."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501604/	270 F.Supp.2d 1034 (2003) MARION COUNTY JAIL INMATES, Plaintiffs, v. Sheriff Frank ANDERSON, Defendant. No. IP72-0424-C-B/S. United States District Court, S.D. Indiana, Indianapolis Division. July 10, 2003. 1035 Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, IN, for Plaintiff. Kevin Charles Murray, Locke Reynolds LLP, Anthony W. Overholt, Office of Corporation Counsel, Indianapolis, IN, for Defendant. ORDER FINDING DEFENDANT IN CONTEMPT AND IMPOSING SANCTIONS AS WELL AS COERCIVE MEASURES TO SECURE FUTURE COMPLIANCE BARKER, District Judge. This matter is again before the Court on Plaintiffs' Petition to Hold Defendant in Contempt. Plaintiffs allege, in support of this motion, that Defendant Sheriff Frank Anderson has not complied with this Court's prior orders directing that each prisoner in the Marion County Jail be provided a bed or bunk above the floor and that all prisoners be treated in a safe and humane manner. While essentially conceding that he is in violation of this Court's prior orders, Sheriff Anderson contends that contempt sanctions are inappropriate based on a showing that he has attempted in good faith to comply with the Court's orders. Numerous hearings have been conducted by the Court on the issue of contempt (E.g., IP 72-424-C-B/F, Docket No. 166), the most recent occurring on July 8, 2003. To prevail on a motion for civil contempt, the movant must prove by "clear and convincing evidence" that the non-movant violated a court order. Stotler and Co. v. Able, 870 F.2d 1158, 1163 (7th Cir. 1989); see also Goluba v. School Dist. of Ripon, 45 F.3d 1035, 1037 (7th Cir. 1995). The district court "must be able to point to a decree from the court `hich sets forth in specific detail an unequivocal command' which the party in contempt violated." Stotler, 870 F.2d at 1163 (citations omitted). The district court does not, however, "ordinarily have to find that the violation was `willful'" and may find a party in civil contempt if that party "has not been `reasonably diligent and energetic in attempting to accomplish what was ordered.'" Id. (citations omitted). We do not find the Sheriffs failures to be the result of willful behavior; the failures described and elaborated upon in the filings and at the hearings represent the cumulative results of derelictions of duty in every branch and at every level of county, city, and state government. However, the fact remains that the Sheriff is not in compliance with the substance of our prior 1036 ordersthat every prisoner be afforded bed space above the floor and that all prisoners be treated in a safe, human manner. Therefore, Defendant Sheriff Frank Anderson, having failed to comply with this Court's prior orders, is hereby held IN CONTEMPT, pursuant to which an appropriate sanction should issue. A court passing on a civil contempt petition may impose sanctions to redress harm that has been caused or to secure compliance with its orders, but may not exact punitive damages. E.g. South Suburban Housing Center v. Berry, 186 F.3d 851, 854 (7th Cir.1999); In the matter of Maurice, 73 F.3d 124, 127, 128 (7th Cir. 1995); Connolly v. J.T. Ventures, 851 F.2d 930, 933 (7th Cir.1988). In an action regarding prison conditions, any court-ordered prospective relief to remedy an ongoing constitutional violation must be narrowly drawn, represent the least intrusive means necessary to correct the violation of the constitutional right, and extend no further than necessary to correct such violation. See 18 U.S.C. § 3626. Our prior orders directing that inmates be provided with bed space off the floor and safe, humane treatment satisfied these statutory requirements. However, these statutory requirements do not control the scope of remedies available to cure contempt stemming from a party's failure to comply with a prior court order. Accordingly, the remedies mentioned herein are designed both to remedy the contempt and to coerce compliance with our prior orders. Over the course of recent weeks and months, while the Court has had Plaintiffs' motion under advisement, significant progress has been achieved on all fronts and by all involved in dealing with the jail conditions problem. Despite these efforts, however, Defendant's remediations have fallen short and he remains out of compliance with our prior orders. Indeed, as recently as July 2, 2003, one corrections consultant noted that, after visiting more than 900 jails and prisons in North American in his 31 years of experience, "the conditions ... in Marion County were among the worst" he has ever seen. See Joint Stipulation, July 7, 2003, Exh. 7, Letter from Rod Miller. Moreover, substantial time has elapsed between the original order directing the Sheriff to satisfy constitutional standards with regard to certain conditions in the jail and the very recent steps taken to achieve those conditions, which further underscores the need for judicial action at this time to ensure continued progress. Some of the recent improvements, undertaken are not yet complete. Accordingly, this order imposes remedial measures to cure the ongoing contempt, while recognizing the efforts underway and allowing time for them to be completed before further, specific sanctions will attach. Therefore, having adjudged Defendant in contempt of our prior orders in this matter in these two respectswith regard to bed space above the floor and the safe, humane treatment of prisoners, the Court now issues the following additional orders to enforce compliance with constitutional requirements. Punitive sanctions for Defendant's past contempt shall not be imposed at this time. I. Bed space The Court previously ordered that the Sheriff must provide all inmates of the Marion County Jail with bed space above the floor. This has not been accomplished. Many inmates must sleep in plastic, molded pallets on the floor ("stack-a-bunks") or on inferior and often filthy mattresses on the floor, some on picnic tables, and some directly on the floor. The number of inmates housed in the jail frequently far exceeds the number of beds above the floor. Having adjudged that the Sheriff is in contempt of this order, the Court now 1037 directs that the Sheriff take the following remedial steps: A) The Sheriff must contract for and utilize all available bed space in Marion County Jail II to house prisoners, which means that the emergency funding recently allocated to acquire bed space in Jail II must be made permanent and continue so long as the number of prisoners exceeds the number of available beds in Jail I. It is our understanding that a fiscal ordinance to accomplish such funding is scheduled for final consideration by the City County Council on July 21, 2003, and is expected to pass. B) Failure to provide the necessary funding through the legislative appropriations process to acquire access to the Jail II space shall result in the imposition of a fine at the rate of $40 per day per unfilled bed,[1] which payments shall be made into an account established by the Court that will be used to purchase the space, until all available beds at Jail I and Jail II are utilized. C) Space existing in the Marion County Lock-up[2] that is not required for housing of prisoners on a short-term basis, as referenced in the Court's prior orders dealing with population limits in the Lock-up, and is therefore available for longer-term use, shall within 30 days be adapted and utilized for that purpose at a rate that complies with the Jail Inspector's standards and permissible utilization limits (i.e., in Section C5B of the Lock-up space, jail standards permit bed occupancy of 24). To the extent that utilization of this space is contingent upon there being sufficient staffing to oversee the reconfigured Lockup area, the Sheriff must deploy the required staff to ensure the safety of the inmates housed in that area. To the extent that the Sheriff is impeded in his ability to provide necessary staffing levels because of funding shortfalls from County reserves, a fine shall be levied in the amount of $40 per day for each bed in the Lock-up that goes unfilled (consistent with the Jail Inspector's figure regarding the Lock-up's bed space capacity), which sums shall go into the separate account established by the Court from which the cost of providing the necessary staffing will be paid. The Jail Inspector's bed/ space estimates, based on overall square footage, will control the total amount of this monetary sanction. In no event should the Court's prior orders regarding Lock-up occupancy limits be violated in order to comply with this Order. D) Sentenced inmates housed in the Jail who have been designated for incarceration in a Department of Corrections ("DOC") facility must be transferred forthwith from the Marion County Jail forthwith to their DOC designated facility and, in any event, may not remain at the Marion County Jail for more than five business days after being sentenced. E) Inmates in the care, custody, and control of the DOC who must be returned to the Marion County Jail for additional court appearances shall not be lodged within the Jail facilities overnight, requiring 1038 them to utilize a bed, unless the Jail is in compliance with this Order and can accommodate all the prisoners at that time by providing beds for everyone. F) By September 1, 2003, the following systemic improvements and innovations (hereinafter collectively referred to as "September 1 improvements") are expected to be in place and operational, yielding synergistic, positive results in terms of reducing the Marion County Jail overall occupancy numbers: 1) expansion of home detention/work release programs as pretrial alternatives to incarceration; 2) acceleration of the timetable for preparation of presentence reports; 3) a system to transfer and coordinate criminal cases within divisions of the Marion Superior Court to allow for consolidated processing of multiple prosecutions involving an individual defendant; and 4) formation of the Criminal Justice Council ("CJC") to provide governmental oversight and coordination and policymaking on issues relating to jail overcrowding and jail conditions. F) The newly formed CJC is strongly encouraged to undertake immediately a study of any and all additional jail space options, with due regard to their corresponding costs, so that an inventory of available overflow space is in place should demand for Marion County jail space exceed that which is available in Jails I and II on a sustained basis. This study should include consideration of the availability of other county jails, neighboring states' jails, leased space available from the DOC, and other makeshift space that can be quickly accessed to house prisoners on a temporary, emergency basis. G) The newly formed CJC is strongly encouraged to develop a computer tracking system for all jail inmates in order to permit precise data on the number and identity of each and their whereabouts in the system. H) Following the full implementation of the September 1 improvements, the Sheriff shall undertake promptly a full review and revision as appropriate of the classification system for all inmates in the Marion County Jails I and II. I) From the date of this Order until October 1, 2003, the permissible population limit in Jail I, based on the availability of beds above the floor, is 1,310. When that number is reached, no further inmates may be placed in that facility. J) After September 1, 2003, on any occasion when the bed-occupancy rate in the Marion County Jail reaches 1,134 inmates, the Sheriff must notify the presiding judge of the Marion Superior Court and the chair of the CJC that a jail emergency exists and request that the judge undertake immediately all appropriate steps to mobilize and infuse judicial, prosecutive, and public defender resources to consider the immediate release eligibility on bail or under other court supervision of inmates currently detained in the Marion County Jail, toward the end of averting a situation when the number of permanent beds occupied by inmates exceeds 1,310. When population levels come within 175 of the final permissible limit, that constitutes a "jail emergency" as used in this context. The Presiding Judge of the Marion Superior Court, in conjunction with the CJC, is strongly encouraged to devise a plan for dealing with said jail emergencies at the earliest possible time so that it is in place and in ready status as of September 1, 2003. K) Between September 1, 2003, and April 1, 2004, based on the increased efficiencies and innovations referenced in Section E above, particularly with the Arrestee Processing Center, which will have 1039 available to it and will utilize judicial services on a 24-hour-a-day, 7-day-a-week basis, the number of inmates housed in the Marion County Jail must be incrementally reduced from 1,310 to 1,135 at a rate not to exceed the following monthly population limitations: September 1, 2003 1,310 October 1,2003 1,285 November 1, 2003 1,260 December 1, 2003 1,235 January 1, 2004 1,210 February 1, 2004 1,185 March 1, 2004 1,160 April 1, 2004 1,135 Any violations of these incremental reductions will result in fines being assessed at the rate of $40 per day per inmate for each inmate over the prescribed bed capacity. In complying with this count, the bed provided for each inmate must be above the floor. Thus, the use of "stack-a-bunks" will not suffice as substitutes. The monies paid as fines will be deposited in the separate Court-maintained fund. See ¶ L infra. The CJC and the Presiding Judge of the Marion Superior Court are strongly encouraged to devise a monitoring plan to provide the appropriate alerts when these incremental population limits are threatened to be exceeded so that immediate diversionary steps can be taken to avert violations. This will be especially critical in anticipating and dealing with the influxes of detentions that occur on weekends and holidays, according to historical data. L) All the above-referenced fines shall be computed on a daily basis, and the total amounts shall be deposited weekly in a separate fund, administered and maintained by this Court and overseen by a Special Master, from which allocations shall be made for uses relating to compliance with the Court's prior orders, e.g., to pay the costs of additional bed space, if any can be found to house Marion County inmates; to underwrite the expense of additional jail staffing; to increase or expand the use of home-detention in lieu of incarceration; and to provide improvements in inmate welfare. This list is intended to be illustrative, not exhaustive. Expenditures shall be made upon application to or at the discretion of the Special Master, with approval by the Court. M) The Special Master, charged with overseeing the fund established by the fines described above, shall be appointed by separate order of the Court, and the fees incurred in hiring a special master shall be borne either by the Fund or by the Sheriff. II. Safe and humane treatment The Court also previously ordered that the Sheriff must assure that all inmates of the Marion County Jail are treated in a safe and humane manner. This has not been accomplished. The record is replete with examples of unhealthy, unsanitary, dangerous, offensive conditions, which we will not further elaborate on here. Having adjudged the Sheriff in contempt of this order, the Court now imposes sanctions in the form of the following remedial steps: A) Within 30 days of the entry of this Order, the Sheriff shall obtain from the Marion County Building Authority and provide to the Court a breakdown of expenditures made by the Building Authority to repair and maintain the Jail from the $1 million annual rent payments from the Marion County Sheriff. The report should reflect expenditures over the past eighteen months, and include a detailed explanation of the specific investments made at the jail to make it a safe and humane environment. The Court seeks in this fashion to ensure that the rents paid by the Sheriff are devoted to the upkeep of the jail facility and are not being diverted to other governmental uses. In addition, the Sheriff is directed to determine, with the assistance 1040 of the Building Authority, the order of priorities for addressing maintenance and repair requests by the Marion County Jail, toward ensuring that the needs of prisoner health, safety, and sanitation receive the highest priority in the expenditure of those monies. B) Within 30 days of this Order, the Sheriff shall report to the Court on the comparative per capita costs of housing inmates at Marion County Jails I and II, toward the end of ensuring that there does not exist a two-tiered system. C) Medical care 1. The plan of the Operational Review Committee, composed of, among others, representatives of Correctional Medical Services, Inc., Wishard Health Services ("Wishard"), Midtown Community Mental Health Center, Wishard detention, and the Marion County Jail, who will meet biweekly to conduct continuous review and improvement operations at the jail is hereby approved. See Joint Stipulation, July 7, 2003, Exh. 8. The formation of this consortium is deemed a very positive step, and this group is encouraged to continue to convene for the purposes of making further recommendations as needed and implementing the agreed-upon changes. Special and prompt attention hopefully will be given to the need to improve pharmacy services for inmates requiring ongoing medications. 2. The parties stipulate that the recent improvements to medical care and the plans for further improvements comply with this Court's prior orders. Their stipulation is approved. 3. The Court recommends that the Marion Superior Court Administrator, Mr. Renner, or any other appropriate representative overseeing the new Arrestee Processing Center, consider ways in which appropriate medical screenings can be included as part of the initial processing. 4. In view of the fact that the Jail medical office currently is being staffed 24 hours a day, 7 days a week, the Court encourages the Operational Review Committee referenced above to develop a protocol that would permit patients to be personally seen on a 24-hour basis as medical needs arise. That is, because staffing is available, the clinic would operate around the clock rather than only during the daytime hours. This would replace the paper triage system currently in place for afterhours care. In addition, the Committee is encouraged to address the need for protocols relating to the care of inmates with long-term, chronic injuries or illnesses, more specifically, the need to set standards for determining suitability for transfer to the Wishard Hospital detention unit for extended care rather than attempting to provide intensive medical treatment/oversight in the Marion County Jail. D) Food 1. The Court notes with approval the recent replacement of contaminated food trays and the planned installation of a new food service line by July 18, 2003; these represent significant improvements to the food service conditions at the jail. 2. The current 70-cent per inmate-per meal allotment implemented by the Sheriff pursuant to directives from the State Board of Accounts is constitutionally inadequate in that it deprives inmates of their entitlement to safe and humane treatment with regard to daily nutrition. Indiana Code § 36-8-10-7 provides that the daily meal allowance per inmate in all Indiana jails shall not exceed $2. The State Board of Accounts exempts Marion County from its statewide prisoner meal allotment schedule. Thus, by statute and by regulation (Indiana Code § 36-8-10-7), Sheriff Anderson is authorized to spend up to the $2 maximum per inmate per meal. Therefore, the Sheriff is ordered to upgrade the 1041 per inmate-per meal allotment to provide a safe and humane level of daily nutrition to all Marion County jail inmates by amending its contractual arrangements with its food services vendor(s). 3. The Sheriff, in consultation with a certified nutritionist who oversees menus at the jail, shall upgrade the quality of the fare served to prisoners in terms of quantity (as appropriate) and nutritional content. The sample menu that was tendered as an exhibit at the July 8, 2003 hearing appears to reflect a healthy and diverse array of food; in any event, we rely on the judgment of the certified nutritionist. The Court's concern, therefore, is primarily with those times when exceptions must be made to the approved menu; substitutes to the certified menu fare, when required, should be of comparable quality and quantity with due regard to the nutritional and caloric needs of the individual inmates. 4. Given the inadequacy of the space allocated for the kitchen and food preparation areas of the jail, the kitchen facilities must be shut down for 12 hours every two weeks to allow for thorough and complete cleaning. During these 12-hour hiatuses, the Sheriff must contract with an outside vendor to prepare food off site that satisfies the standards of the certified nutritionist. 5. At the earliest feasible time, the Sheriff shall engage consultants to determine the feasibility of preparing all food for the prisoners off site and using the Jail's limited kitchen space only for purposes of distributing food, rather than its preparation for the general jail population. The Sheriff shall submit a report on the feasibility of this plan, and his proposed response, by December 31, 2003. 6. Regardless of whether off-site food preparation can be instituted, the Sheriff shall, with the proper support from consultants, prepare a plan for the complete overhaul of the jail kitchen facilities, which includes acquiring new equipment and imposing other efficiencies on the area. This plan with the Sheriffs recommendations shall be submitted to the Court by December 31, 2003. E) Recreation 1. The parties have stipulated that recreation is now available to all those inmates who seek it. The Court approves this stipulation. 2. The Sheriff shall nonetheless create a plan to expand the kinds of recreational options available to inmates and a schedule that would allow for expanded hours of participation. This plan should address the problems that deter participation by many inmates, i.e., the loss of property or other adverse consequences when they leave their cells or cellblocks for these periods of time. This plan shall be submitted to the Court by December 31, 2003. 3. Inmates serving extended periods of incarceration should be permitted incrementally more time for recreation, as compared to those held for only short periods of time. F) Cleanliness 1. To ensure safe and humane conditions through proper hygiene, the Sheriff is directed to devise daily/weekly schedules to ensure regular cleaning and maintenance of all inmate residential areas (cellblocks, Lock-up, dorms, etc.). To facilitate the process, to the greatest extent possible, all inmates in a particular area should be removed periodically from that particular area to permit thorough cleaning to occur. Consideration should be given to engaging non-correctional officers and civilian employees (as was done in the staffing of the commissary) to oversee and conduct the cleaning; these cleaning tasks may nonetheless be performed by a subset of inmates. 1042 2. Correctional Medical Services, Inc. should be consulted for standards for screening those individuals who will be required to participate in cleaning activities, similar to the methods of screening kitchen workers, to ensure against employing persons suffering with allergies, physical incapacities, etc. G) Department of Justice reports 1. The Sheriff has informed the Court of two Department of Justice studiesone on jail staffing and one on the Marion County criminal justice systemcurrently underway and scheduled to be completed in the coming weeks. Within one week of the receipt of those studies, the Sheriff shall file the reports with the Court. Within one week of filing the reports with the Court, the Sheriff shall file his reactions/responses to the reports, stating his proposed course of action, in light of their findings. H) No-contact visits 1. In order to relieve the serious staffing shortages at the Jail, effective the date of this Order, the previous order of this Court directing the adoption of a Marion County Jail contact visitation policy is rescinded. Steps should be undertaken immediately to provide a fair and adequate non-contact visitation arrangement, with full implementation occurring within 30 days. 2. In addition, effective the date of this Order, the Sheriff shall undertake to install a new system of video surveillance, both inside and outside the jail, and a new system of audio technology to permit electronic communications between prisoners in the cellblocks and Jail staff and guards. I) Miscellaneous 1. The Court hereby requests that the County Auditor provide assurance that the monies paid into the general fund by the United States Marshals Service for the housing of federal prisoners are allocated in their entirety to the Sheriffs budget for the benefit of inmates. 2. The payments by the United States Marshals Service shall not result in offsetting deductions in the Sheriffs budget which would have the effect of negating the allocation of these funds. III. Summary Summarized below are the operative dates and corresponding obligations created by this Order: July 21, 2003 Anticipated final vote by City County Council on fiscal ordinance for Jail II space funding August 11, 2003 Modification of Lock-up completed, pursuant to Jail Inspector's limitations; Building Authority report submitted to the Court; Sheriffs report on per capita expenditures for inmates in Marion County Jail I and II; implementation of noncontact visitation system September 1, 2003 Arrestee Processing Center online; expanded home detention/work release program; changes to presentence report procedures; fully implemented system to transfer and coordinate criminal cases within divisions involving a single defendant; and active participation of the CJC October 1, 2003 Jail bed capacity reduced to 1,285 November 1, 2003 Jail bed capacity reduced to 1,260 December 1, 2003 Jail bed capacity reduced to 1,235 December 31, 2003 Filing of Sheriffs feasibility report/plan for off-site food preparation; a plan for kitchen overhaul; and a study ofproposal for expanded recreational opportunities *1043 January 1, 2004 Jail bed capacity reduced to 1,210 February 1, 2004 Jail bed capacity reduced to 1,185 March 1, 2004 Jail bed capacity reduced to 1,160 April 1, 2004 Jail bed capacity reduced to 1,135 B) This Order and these requirements shall remain in effect until further order of the Court. Defendant Sheriff Frank Anderson is hereby ordered to distribute copies of this Order to all appropriate officials within the Sheriffs Department, to the judges serving as members of the Executive Committee of the Marion Superior Court for further distribution to all judges of the Marion Superior Court, to the Marion County Prosecutor, to the Marion County Public Defender, to the members of the CJC, to the Marion County Auditor, to the members of the Operational Review Committee, and to the members of the City County Council. It is so ORDERED this ____ day of July, 2003. NOTES [1] According to Jail Inspector Paul Downing, the cost of housing one inmate in the Marion County Jail II is $39.13 per day. [2] In reference to the Court's prior order regarding weekly population reports at the Lock-up, hereafter the Sheriff is relieved of the duty to file with the Court the detailed backup documentation, that is, the lists of prisoner names and length of time each spent in the Lock-up. The population summaries of the Lock-up and the jail population data reflecting overall capacity will suffice for the Court's purposes. However, the Sheriff shall continue to prepare and retain in his departmental files the detailed supporting documentation so that the information is available for review by the Court or the parties at any time.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501574/	393 S.C. 325 (2011) 713 S.E.2d 274 The STATE, Respondent, v. Jamey Allen REID, Petitioner. No. 27004. Supreme Court of South Carolina. Heard April 19, 2011. Decided July 11, 2011. 327 Appellate Defender Kathrine H. Hudgins, of Columbia, for Petitioner. Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General Deborah R.J. Shupe, and Assistant Attorney General William M. Blitch, Jr., all of Columbia, and Solicitor Christina Theos Adams, of Anderson, for Respondent. Justice KITTREDGE. In State v. Reid, 383 S.C. 285, 679 S.E.2d 194 (Ct.App.2009), the court of appeals affirmed Petitioner Jamey Allen Reid's convictions for attempted second-degree criminal sexual conduct (CSC) with a minor and criminal solicitation of a minor. We granted a writ of certiorari to review the court of appeals' analysis and disposition of Petitioner's conviction and sentence for attempted second-degree CSC with a minor. The single issue before us is whether the court of appeals erred in upholding the trial court's denial of Petitioner's directed verdict motion. We affirm. I. The underlying facts are detailed in the court of appeals' excellent opinion. In essence, Petitioner entered an Internet chat room (under the screen name "Fine_Ass_Seminoles_Fan") believing he was chatting with a fourteen-year-old female. The supposed minor was, in fact, Westminster Police Officer Mark Patterson. Officer Patterson used the screen name "Skatergurl." Petitioner quickly turned the conversation to one of a sexual nature, as he desired a sexual encounter with Skatergurl. Skatergurl asked, "You don't care I am 14?" to which Petitioner responded, "No." Petitioner suggested a meeting place and time, specifically the parking lot of the 328 Westminster Middle School between 2:00 and 2:15 a.m. Skatergurl agreed. Petitioner's stated intention was to take Skatergurl to his apartment. Officer Patterson and a fellow officer traveled to the Westminster Middle School parking lot. At approximately 2:30 a.m., Petitioner arrived in the parking lot, driving his vehicle. The officers stopped Petitioner and arrested him. Petitioner was indicted and tried for attempted second-degree CSC with a minor and criminal solicitation of a minor. At the close of the State's case, Petitioner moved for a directed verdict in connection with the attempted CSC charge, arguing that the State had failed to present evidence of an overt act as required by the attempted CSC charge. Because the trial court held there was sufficient evidence presented to create a jury question, the directed verdict motion was denied. The jury convicted Petitioner on both charges, and he was sentenced. Petitioner appealed the attempted CSC conviction, which was affirmed by the court of appeals in a scholarly opinion. II. We granted a writ of certiorari to determine whether Petitioner's traveling to a predetermined location constituted sufficient evidence of an overt act, which is an essential element in establishing an "attempt" to commit the underlying crime. Petitioner contends the evidence, as a matter of law, was insufficient on the question of specific intent and further rose only to the level of "mere preparation," entitling him to a directed verdict of acquittal on the attempted CSC charge. Under the facts of this case, we agree with the court of appeals that because a jury question was presented, the directed verdict motion was properly denied.[1] Turning to the substance of Petitioner's argument, South Carolina law provides that "[a] person is guilty of criminal sexual conduct with a minor in the second degree if... the actor engages in sexual battery with a victim who is 329 fourteen years of age or less but who is at least eleven years of age." S.C.Code Ann. § 16-3-655(B)(1) (Supp.2010). A person guilty of attempt is punishable as if he had committed the underlying offense. State v. Sutton, 340 S.C. 393, 396 n. 3, 532 S.E.2d 283, 285 n. 3 (2000). To prove attempt, the State must prove that the defendant had the specific intent to commit the underlying offense, along with some overt act, beyond mere preparation, in furtherance of the intent. State v. Nesbitt, 346 S.C. 226, 231, 550 S.E.2d 864, 866 (Ct.App. 2001). A. In the context of an attempt crime, specific intent means the defendant intended to complete the acts comprising the underlying offense. Sutton, 340 S.C. at 397, 532 S.E.2d at 285 ("In the context of an attempt crime, specific intent means that the defendant consciously intended the completion of acts comprising the choate offense."). The evidence here presented a jury question on the element of specific intent. As detailed by the court of appeals, Petitioner clearly indicated his desire to have a sexual encounter with Skatergurl, whom he believed to be fourteen years old. B. Beyond the evidence of specific intent, we find that Petitioner's actions also presented a jury question as to whether he committed an overt act in furtherance of the underlying crime. To prove attempt, the State must prove that the defendant committed an overt act, beyond mere preparation, in furtherance of the intent to commit the crime. Nesbitt, 346 S.C. at 231, 550 S.E.2d at 866 (citing State v. Evans, 216 S.C. 328, 57 S.E.2d 756 (1950); State v. Quick, 199 S.C. 256, 19 S.E.2d 101 (1942)); see also State v. Rallo, 304 S.C. 258, 269, 403 S.E.2d 653, 659 (1991) (Toal, J., dissenting) ("In order to constitute an attempt to commit a crime, it is essential that, coupled with the intent to commit the offense, there be some overt act, beyond mere preparation, in furtherance of the intent...."). In Quick, this Court stated, No definite rule as to what constitutes an overt act can safely be laid down in cases of this kind. Each case must depend largely upon its particular facts and the inferences 330 which the jury may reasonably draw therefrom, subject to general principles applied as nearly as can be, with a view to working substantial justice. It is well settled that the "act" is to be liberally construed, and in numerous cases it is said to be sufficient that the act go far enough toward accomplishment of the crime to amount to the commencement of its consummation. While the efficiency of a particular act depends on the facts of the particular case, the act must always amount to more than mere preparation, and move directly toward the commission of the crime. In any event, it would seem, the act need not be the last proximate step leading to the consummation of the offense. 199 S.C. at 259, 19 S.E.2d at 102.[2] The Court further stated, "The preparation consists of devising or arranging the means or measures necessary for the commission of the crime; the attempt or overt act is the direct movement toward the commission, after the preparations are made." Id. at 260, 19 S.E.2d at 103.[3] We agree with the court of appeals that the Quick framework remains viable in the emerging area of Internet sex crimes. While we have not previously had occasion to address the mere preparationovert act distinction in the context of an alleged attempted sex crime stemming from use of the Internet, the court of appeals canvassed the law from other jurisdictions. The majority of jurisdictions that have confronted this issue have concluded that an agreement to meet a fictitious minor at a designated place and time, coupled with traveling to that location, may constitute evidence of an overt act.[4] We agree with the majority approach and hold that an agreement to meet a fictitious minor at a designated 331 place and time, coupled with traveling to that location, may constitute evidence of an overt act, beyond mere preparation, in furtherance of the crime. We do not, however, create a categorical rule. Given Petitioner's express desire for a sexual encounter with a fourteen-year-old minor, coupled with his designation of 332 a vacant parking lot in the middle of the night as the clandestine meeting placeand his travel to that placewe concur with the court of appeals that a jury question was presented on whether Petitioner had the specific intent to commit CSC with a minor and whether his conduct constituted an overt act. AFFIRMED. TOAL, C.J., PLEICONES, BEATTY and HEARN, JJ., concur. NOTES [1] The court of appeals' opinion correctly sets forth the proper standard of review when considering a challenge to a trial court's denial of a directed verdict motion. Reid, 383 S.C. at 292, 679 S.E.2d at 197. [2] Quick did not involve an attempt crime, but its analysis of the mere preparation-overt act distinction has been applied in the attempt context. See Nesbitt, 346 S.C. at 231, 550 S.E.2d at 866-67. [3] In Nesbitt, the court of appeals considered the overt act requirement in the armed robbery context and adopted this language from Quick. The court of appeals held that approaching a convenience store masked and armed constituted an overt act for purposes of attempt. Nesbitt, 346 S.C. at 235, 550 S.E.2d at 868. [4] These jurisdictions employ various testsprimarily the substantial step testto determine whether the defendant has moved beyond mere preparation. See United States v. Farner, 251 F.3d 510 (5th Cir.2001) (defendant took substantial step toward committing crime by arranging and traveling to meet fictitious minor); Kirwan v. State, 351 Ark. 603, 96 S.W.3d 724 (2003) (defendant's arranging to meet fictitious minor for sexual relations and traveling constituted substantial step); People v. Reed, 53 Cal. App. 4th 389, 61 Cal. Rptr. 2d 658 (1996) (arranging and traveling moved beyond mere preparation); State v. Sorabella, 277 Conn. 155, 891 A.2d 897 (2006) (finding traveling to a prearranged location to have sexual relations with someone one thinks is an underage minor constitutes a substantial step); State v. Nero, 122 Conn.App. 763, 1 A.3d 184 (2010) (driving to arranged meeting place constituted substantial step); State v. Glass, 139 Idaho 815, 87 P.3d 302 (Idaho Ct.App.2003) (arranging a meeting place and time for the purpose of sexual activity with a purported minor and arriving with condoms sufficient for overt act); People v. Patterson, 314 Ill.App.3d 962, 248 Ill. Dec. 534, 734 N.E.2d 462, 470 (2000) (arranging to travel for sexual relations with decoy minor, combined with actual traveling to agreed-upon place constituted substantial step; "defendant had taken every possible step he could have taken in order to commit the offense"); State v. Peterman, 280 Kan. 56, 118 P.3d 1267, 1273 (2005) ("[Defendant's] act of driving ... to pick up a child for the purpose of sexual intercourse constituted an overt act beyond mere preparations. [Defendant] went as far as he could toward completing his criminal intentions prior to discovering that the child victim was fictional."); State v. Risinger, 40 Kan. App. 2d 596, 194 P.3d 52 (2008) (engaging in online conversations with fictitious child victim, arranging a meeting, driving to agreed-upon location, and knocking on door sufficient for overt act); Commonwealth v. Bell, 67 Mass.App.Ct. 266, 853 N.E.2d 563 (2006) (finding sufficient evidence of overt act where defendant agreed to pay undercover officer $200 to permit him to engage in sexual relations with five-year-old child, made arrangements to meet undercover officer, and traveled to meeting place); State v. Tarbay, 157 Ohio App. 3d 261, 810 N.E.2d 979 (2004) (defendant's arranging to meet fifteen-year-old to engage in sexual relations and traveling to meeting place constitutes a substantial step); Cook v. State, 256 S.W.3d 846 (Tex.App.2008) (defendant's discussing sex online with fictitious child, arranging to meet, traveling to agreed-upon location with underwear, toiletries, camera, pocketknife, candle, condoms, and lubricant constituted attempt); State v. Townsend, 147 Wash.2d 666, 57 P.3d 255 (2002) (en banc) (defendant's engaging in graphic sexual discussions with fictitious minor, arranging to meet, and traveling to meet constituted sufficient evidence of a substantial step). Our overt act jurisprudence is in line with the "substantial step" test.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501589/	270 F. Supp. 2d 189 (2003) Edna S. Delgado GREO, et al., Plaintiffs, v. Marcelo TRUJILLO, et al., Defendants. Civil No. 01-1389 (JAG). United States District Court, D. Puerto Rico. June 2, 2003. 190 Pablo Landrau-Pirazzi, Ivan M. Castro-Ortiz, Eliezer Aldarondo-Ortiz, Claudio Aliff-Ortiz, Aldarondo & Lopez Bras, Hato Rey, PR, for Plaintiffs, 191 Johanna M. Emmanuelli-Huertas, Ponce, PR, Grisselle Gonzalez-Negron, Faccio & Pabon Roca, San Juan, PR, for Defendants. OPINION AND ORDER GARCIA-GREGORY, District Judge. On April 2, 2001, plaintiffs, all employees of the Southeastern Consortium[1] ("the Consortium"), brought suit against the Mayor of the Municipality of Humacao and President of the Southeastern Consortium's Board of Mayors, Marcelo Trujillo; the Municipality of Humacao; the Southeastern Consortium; and the Executive Director of the Southeastern Consortium, Luis E. Gonzales Torres (collectively "defendants"). Plaintiffs seek redress under 42 U.S.C § 1983 and the Fourteenth amendment alleging that defendants discriminated against them on the basis of their political affiliation. Defendants moved to dismiss for lack of subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). They argue that the Workforce Investment Act ("WIA"), 29 U.S.C. §§ 2801-2945, precludes § 1983 claims because it provides an exclusive administrative procedure for discrimination claims under the act. For the reasons discussed below, the Court DENIES defendants' motion to dismiss. FACTUAL BACKGROUND The Southeastern Consortium is a nonprofit partnership between the municipalities of Humacao, Patillas, Maunabo, Yabucoa, Las Piedras, Juncos, and San Lorenzo. (Docket No. 47 at 3, 13). Following the Puerto Rico general elections on November 7, 2000, Popular Democratic Party ("PDP") mayoral candidates were elected to four of the Consortium's municipalities, namely Humacao, Maunabo, Juncos, and San Lorenzo (Id. at 5-6). In Las Piedras, the NPP incumbent mayor was reelected, and in Patillas and Yabucoa, the NPP candidates won the elections (Id.) The PPD winning candidates were Joe Roman ("Roman") in San Lorenzo; Alfredo Alejandro ("Alejandro") in Juncos; Marcelo Trujillo ("Trujillo") in Humacao; and Jorge Marquez ("Marquez") in Maunabo (Id.). As a result of the change in power in the various municipalities, PDP affiliates gained control of the Consortium's Board of Mayors ("the Board")(/d). Consequently, three of the PDP mayors became president, vice president and clerk of the Board (Id. at 7). On January 16, 2001, the Board met and discussed personnel appointments to the respective local offices (Id.). Plaintiffs, who are all members of the New Progressive Party ("NPP"), allege that as a result of that meeting, starting on January 23, 2001 and through January 2002 (Id. at 3, 13), defendants transferred, discharged, demoted, or did not renew their contracts with the Consortium based on their party affiliation (Id. at 8-46). They claim that this political discrimination began on January 23, 2001 and lasted until January 2002. 192 Plaintiffs brought suit on April 2, 2001, arguing that the defendants' sole purpose in their personnel decisions was to politically discriminate against them in violation of the First Amendment and Puerto Rico Law (Id. at 47). They further argue that the defendants conspired to deprive them of their rights under the Fourteenth Amendment (Id). Plaintiffs also claim defendants violated § 2938(a)(2) of the WIA (Id. at 8). Defendants filed a motion to dismiss on August 21, 2002, arguing that the Court lacks subject-matter jurisdiction over plaintiffs' complaint because WIA's administrative procedure provides the exclusive remedy for discrimination claims brought under the Act (Docket No. 62). In their opposition (Docket No. 73), plaintiffs argue that WIA's statutory language does not expressly preclude § 1983 claims nor implies congressional intent to do so (Docket No. 82). DISCUSSION A. Standard of Review of a Rule 12(b)(1) Motion to Dismiss Pursuant to Fed.R.Civ.P. Rule 12(b)(1) a defendant can assert that the Court lacks subject matter jurisdiction to entertain an action. When deciding whether to dismiss a complaint for lack of subject matter jurisdiction, the Court "may consider whatever evidence has been submitted, such as... depositions and exhibits." See Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir.1996). Motions brought under Rule 12(b)(1) are subject to the same standard of review for Rule 12(b)(6) motions. Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994); see Torres Maysonet v. Drillex, S.E., 229 F. Supp. 2d 105, 107 (D.P.R.2002). Dismissal is proper "only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory." Gonzalez-Morales v. Hernandez-Arencibia, 221 F.3d 45, 48 (1st Cir.2000) (quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990)). The Court accepts all well-pleaded factual allegations as true, and draws all reasonable inferences in plaintiffs' favor. See Correa-Martinez, 903 F.2d at 51; Torres Maysonet, 229 F.Supp.2d at 107. When evaluating the complaint's allegations, the Court need not credit, however, "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like". See Aulson v. Blanchard 83 F.3d 1, 3 (1st Cir.1996). In opposing a Rule 12(b)(6) motion, plaintiffs are responsible for putting their best foot forward in an effort to present a legal theory that will support their claim. McCoy v. Massachusetts Institute of Tech., 950 F.2d 13, 22 (1st Cir.1991) (citing Correa-Martinez, 903 F.2d at 52). Plaintiffs must set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable theory." See Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988) and "cannot expect a trial court to do his homework for him." McCoy, 950 F.2d at 23. B. Section 1983 claim Congress enacted § 1983 to create a remedy for the deprivation of the rights, privileges or immunities granted by the Constitution or laws of the United States. Blessing v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997). To prevail in a § 1983 claim, plaintiffs bear the burden of showing that defendants were acting under color of state law and deprived them of their federal constitutional rights. See, e.g., Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 32 (1st Cir.1996). It is well-established that political discrimination restrains freedom of belief and association, core activiies 193 protected by the First Amendment, see Elrod v. Burns, 427 U.S. 347, 354, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); Padilla-Garcia v. Rodriguez, 212 F.3d 69, 74 (1st Cir.2000). Plaintiffs, therefore, can generally bring a § 1983 claim premised on the deprivation of these First Amendment rights. Nonetheless, congressional intent is crucial in determining whether WIA plaintiffs' rights are enforceable under § 1983. Blessing, 520 U.S. at 341, 117 S. Ct. 1353. Congress can foreclose a remedy under § 1983 by expressly forbidding it in the statute, or "impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983". Id. (quoting Livadas v. Bradshaw, 512 U.S. 107, 133, 114 S. Ct. 2068, 129 L. Ed. 2d 93 (1994)). There is a strong presumption that Congress intended to allow § 1983 suits, and the burden of establishing the contrary rests on defendants. Stowell v. Ives, 976 F.2d 65, 70, n. 5 (1st Cir.1992). See Victorian v. Miller, 813 F.2d 718, 721 (5th Cir.1987). Likewise, plaintiffs need not ordinarily exhaust administrative remedies before filing a suit under § 1983. Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002). Unless statutorily mandated, "application of the exhaustion doctrine is not a jurisdictional requirement, but within the discretion of the district court". Accion Social de Puerto Rico, Inc. v. Viera Perez, 831 F.2d 365, 369 (1st Cir.1987) (internal citations omitted.) C. Foreclosure of a § 1983 claim in the WIA and exhaustion of administrative remedies. 1. Express foreclosure The first part of our inquiry is whether Congress expressly foreclosed recourse to § 1983 in the WIA statute. Stowell, 976 F.2d at 67. Defendants claim that § 2938(a)(2) of the statute provides the remedial scheme for discrimination in programs operating under the WIA precluding § 1983 suits (Docket No. 96 at 2). a. The WIA statute Section § 2938(a)(2) provides that no individual shall be subjected to discrimination due to his or her political affiliation or belief. This provision, however, does not specify any grievance procedures to be followed and does not state whether administrative remedies must be exhausted prior to filing suit under § 1983. Defendants contend that the authority given to the Secretary of Labor (the "Secretary") to issue regulations pursuant to § 2938(e) evinces Congress' intent to foreclose § 1983 suits for discrimination claims. (Docket No. 92 at 7). Furthermore, they argue that the exhaustion of administrative remedies is warranted because § 2938(e) requires that the regulations adopted ensure that complaints "are processed in a manner that avoids duplication of effort." 29 U.S.C. § 2938(e). (Docket No. 92 at 2; Docket No. 112 at 2). They argue that the only way to avoid such a duplication in a political discrimination case is to give the Civil Rights Center ("CRC") office within the Department of Labor created under WIA, sole jurisdiction over political discrimination complaints and require the exhaustion of administrative remedies. (Docket No. 112 at 2-3). Section 2938(e) establishes that the regulations "should adopt standards for determining discrimination and procedures for enforcement", yet it does not state that the administrative procedures must be exhausted nor that these procedures are the exclusive remedy available to § 2938 complainants. Defendants further contend that § 2938's lack of specific language with regards to other remedies available to complainants, such as that found in other sections of the Act, evinces a congressional 194 intent to make the administrative procedures the exclusive mechanism for nondiscrimination claims. (Docket No. 96 at 9). In the absence of specific language, however, the Court may only conclude the contrary: Congress did not intend to foreclose § 1983 claims. See Smith v. Robinson, 468 U.S. 992, 1012, 104 S. Ct. 3457, 82 L. Ed. 2d 746 (1984); Victorian, 813 F.2d at 721. See also Frazier v. Fairhaven School Committee, 276 F.3d 52, 62 (1st Cir.2002). Defendants also argue that § 2931(c)(4), which encompasses violations under § 2938, states that the remedies available for violations of WIA, shall not "be construed to prohibit a grievant or complainant from pursuing a remedy authorized under another Federal, State, or local law" only applies to participants in the employment program (Docket No. 112 at 4). This argument is unavailing. The section clearly refers to "violations of any requirement of this chapter [29 U.S.C. § 2801 et seq.]", thus including not only § 2938 but the entire statute. See 29 U.S.C. § 2931(c)(1),(3) and as such, applies to plaintiffs. b. The WIA's regulation Defendants further argue that the safeguards provided in the regulations evince congressional intention to preclude § 1983 claim (Docket No. 96 at 8). The WIA's administrative procedure requires that recipients, in this case the Consortium, establish local grievance procedures. 29 C.F.R. §§ 37.23, 37.76. Recipients must designate an Equal Opportunity Officer to serve as a liaison with the CRC and to make sure that subrecipients do not offend the non-discrimination provision. 29 C.F.R. §§ 37.23, 37.25. They must also provide initial and continued notice of nondiscrimination policy to registrants, applicants, participants, applicants for employment, employees, unions, professional organizations, subrecipients, and members of the public in general. 29 C.F.R. § 37.30. That notice must contain the information established in the regulations regarding complaint filing procedures and deadlines. See 29 C.F.R. §§ 37.30, 37.31. Any person who believes that he or she has been subjected to discrimination may file a complaint either with the recipient or the CRC. 29 C.F.R. §§ 37.70-37.72. Each recipient's grievance procedure must comply with the guidelines and required elements established in § 37.76. When the recipient's Equal Opportunity Officer determines it has no jurisdiction over the complaint, it must notify the complainant that he or she has a right to file a complaint with the CRC. 29 C.F.R. § 37.78. The Director of the CRC may not accept the complaint if "(a) it was not timely filed; (b) the CRC lacks jurisdiction over the complaint; or (c) the CRC has previously decided the matter." Id. at § 37.82. Defendants contend that pursuant to § 38.85(c)(2), when the complaint arises under § 2938, the CRC has sole jurisdiction, and plaintiffs must exhaust the above mentioned procedures before seeking any remedy in federal court. (Docket No. 96 at 8.) Section 38.85(c)(2) states in relevant part: (c) Where the complaint alleges discrimination by an entity that operates a program or activity financially assisted by a Federal grant making agency other than the Department, but that participates as a partner in a One-Stop delivery system, the following procedures apply:... (2) Where the complaint alleges discrimination on a basis that is prohibited by Section 188 of WIA, but not by any civil rights laws enforced by the Federal grantmaking agency, then the CRC has sole jurisdiction over the complaint, and will retain the complaint and process it pursuant to this 195 part. Such bases generally include religion, political affiliation or belief, .... 29 C.F.R. § 38.85(c)(2) (emphasis added). Defendants argue that because political affiliation is included in this section, plaintiffs must exhaust the administrative procedures (Docket No. 96 at 2-3, 8). Defendants do not claim, however, that the Consortium is an entity operating a program or activity as defined in § 38.85(c)(2). Furthermore, the Court's inquiry centers on the statutory language and not the regulations adopted. Stowell, 976 F.2d at 67. Plaintiffs' "ability to invoke § 1983 cannot be defeated simply by `[t]he availability of administrative mechanisms to protect the plaintiffs interests." Blessing, 520 U.S. at 347, 117 S. Ct. 1353 (quoting Golden State, 493 U.S. 103, 106, 110 S. Ct. 444, 107 L. Ed. 2d 420 (1989)). Moreover, § 1983 is still available even when the Secretary's oversight powers are accompanied by state grievance procedures. Blessing, 520 U.S. at 348, 117 S. Ct. 1353 (internal citations omitted.) In sum, the WIA does not contain any particular phraseology that unmistakably evinces Congressional intent to foreclose a § 1983 claim or require exhaustion of the procedures available under it's regulations. Cf. Frazier, 276 F.3d at 62 (holding that by adopting a particular phraseology in the Individuals with Disabilities Education Act ("IDEA"), Congress unmistakably evinced its intent to require exhaustion of the administrative procedures available under IDEA). This conclusion, however, does not end our inquiry. Congress may have impliedly foreclosed recourse to § 1983. 2. Implied Foreclosure To determine whether Congress impliedly foreclosed recourse to § 1983, the Court must review legislative history and other traditional aids of statutory interpretation to determine congressional intent. Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 13, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981) (internal citations omitted); Frazier, 276 F.3d at 68 (citing Sterling Suffolk Racecourse Ltd. P'ship v. Burrillville Racing Ass'n, 989 F.2d 1266, 1268 (1st Cir. 1993)). The WIA's legislative history is silent with regards to discrimination claims, exhaustion of grievance procedures, or preclusion of § 1983 claims. See P.L. 102-220. See also H.R.Rep. No. 105-689 (1998) reprinted in 1998 U.S.C.C.A.N. 332. Furthermore, no Circuit or District court has addressed the matter. In light of the statute's silence and the absence of judicial guidance, the court looks to WIA's predecessor statutes and their corresponding caselaw: the Job Training Partnership Act ("JTPA") 29 U.S.C. §§ §§ 1501-1792b, and the Comprehensive Employment Training Act ("CETA"), 29 U.S.C §§ 201-999. Plaintiffs contend that WIA did not overrule these cases and consequently, § 1983 remains a viable alternative (Docket No. 99 at 5-7). The First Circuit has not answered this question, and the Courts that have dealt with the issue under both the JPTA and the CETA have arrived at different conclusions. For example, in Uniformed Firefighters Ass'n v. City of New York, 676 F.2d 20 (2nd Cir. 1982), the Second Circuit held that CETA precluded a § 1983 claim. Following the Supreme Court's decision in Sea Clammers, the Circuit Court found that, even in light of the statute's savings clause, CETA's comprehensive remedial scheme provided the exclusive remedy. Uniformed Firefighters, 676 F.2d at 22-23. The Circuit Court, however, proceeded to decide the § 1983 equal protection claim. See 676 F.2d 20. Other circuit courts have therefore interpreted Uniformed Firefighters to mean 196 that the statute's savings clause precluded § 1983 actions for purely CETA based claims but not for federal constitutional claims. See Page v. DeLaune, 837 F.2d 233, 240 (5th Cir.1988); Davis v. Mobile Consortium of CETA, 857 F.2d 737, 741 (11th Cir.1988); Black v. Broward Employment and Training Administration, 846 F.2d 1311, 1312-1314 (11th Cir.1988). But see Eastern Band of Cherokee Indians v. Donovan, 739 F.2d 153, 158 (4th Cir. 1984); Blitz v. Donovan, 740 F.2d 1241, 1248 (D.C.Cir.1984) This District Court addressed the matter under CETA in Colon Collazo v. Cordero Santiago, and held that exhaustion was required despite plaintiffs' procedural due process claims. 698 F. Supp. 30, 33-35 (D.P.R.1988). The facts of that case, however, differ substantially from the facts at hand. Colon Collazo dealt with audit reports and misuse of funds. Furthermore, the complaint's principal claim was that the prime sponsor in charge of CETA's administration had not acted according to the time frames established in the Act's regulations. Moreover, the parties had made use of the administrative mechanism available, therefore, the complete exhaustion of administrative remedies was warranted. Applying the rationale of the CETA cases, the Sixth Circuit held in AFSCME Local 506 v. Private Industry Council, that there was no implied private right of action under § 1553(b)(3)(B) of the JTPA. 942 F.2d 376, 381 (6th Cir.1991). That section protected regular employees from being displaced by JTPA participants. Thus, the case dealt with a purely JTPA based claim rather than a federal constitutional claim. Following the AFSCME Local 506 decision, the District Court of Pennsylvania held in Berry v. Pennsylvania Pressed Metals, Inc., that according to § 1574(g) of the act, JTPA's administrative procedure provided relief for plaintiffs claims (his discharge in breach of the JTPA contract). 846 F. Supp. 27, 29-31 (M.D.Pa.1994). As in the previous case discussed, the case was not a federal constitutional claim.[2] In sum, these cases do not support the conclusion that WIA complainants are barred from bringing § 1983 claims without first exhausting administrative procedures. The statute does not expressly manifest Congress' intent to foreclose such claims; nor can the Court find an implied congressional intent to do so. The Court may not lightly infer or conclude that Congress intended to preclude § 1983 claims to remedy the deprivation of federally secured rights subject to WIA. See Smith, 468 U.S. at 1012, 104 S. Ct. 3457; Victorian, 813 F.2d at 721. In conclusion, defendants have failed to "muster adequate evidence of Congress' prohibitory intent." Stowell, 976 F.2d at 70, n. 5. They have not met their burden of showing that "the remedial devices provided in [the Act] are sufficiently comprehensive... to demonstrate congressional intent to preclude the remedy of suits under § 1983." Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 424, 107 S. Ct. 766, 93 L. Ed. 2d 781 (1987) (quoting Sea Clammers, 453 U.S. at 20,101 S. Ct. 2615). In light of the foregoing, the Court concludes that based on WIA's statutory lanuage, 197 glegislative history, and the cases decided under its predecessor statutes JTPA and CETA, plaintiffs are not required to exhaust administrative remedies with regards to their First Amendment § 1983 claim. CONCLUSION Accordingly, the Court DENIES defendants' motion to dismiss. IT IS SO ORDERED. NOTES [1] Plaintiffs are: Edna S. Delgado Greo, Marta S. Lebron Ortiz, Sonia I. Gordian Cruz, Elizabeth A. Boyle Reyes, Elicier Lopez Hernandez, Roberto Cruz Rodriquez, Sobeida Gonzalez Disdier, Rafael Rondon Fonseca, Wilma Reyes Ayala, Brenda Liz Alejandro Rodriquez, Freddy A. Rodriquez Rodriquez, Hector A. Marquez Neris, Miguel Angel Gonzales Diaz, Izaida M. Garcia Cruz, Ana M. Martinez, Jesus Agosto Zayas, Ovidio Calderon Velazquez, Jose A. Lebron Pena, Sandra Enid Clemente Rosado, Miriam Ortiz Burgos, Zulma V. Pagan Luyando, Gloria E. Matos Morales, Marisol Castro Gomez, Ketty M. Sanchez Cardona, Betzaida Vega Davila, Lisaris Vellon Castro, Maria del Carmmen Morrabal Roman, Heriberto Sierra Gonzalez, Maria del C. Pagan Santiago, Luz Selenia Navarro Neris, Luz Eneida Torres Montariez, Hilda M. Sanchez Castro, Diana Berberena Rivera, Marylin Pagan Perez, Luis F. Sanchez Rivera, Sonia N. Miranda Perez, and Margarita Aponte Cruz. [2] In Casey v. Central Oregon Intergovernmental Council, a constitutional rights case, the District Court of Oregon held that according to AMSCME Local 506, there is no private right of action under the JTPA and that CETA, did not give rise to a § 1983 claim. No. Civ.98-1246 HA, 2002 WL 33201929 * 4 (Dec. 1, 2000). The Court cited Davis and Uniformed Firefighters to support its conclusion. The Court, nonetheless, dismissed the § 1983 claim on the grounds that plaintiff failed to prove supervisor liability.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2501709/	42 F.Supp.2d 1293 (1999) UNITED STATES of America, Plaintiff, v. FIFTY SEVEN THOUSAND, FOUR HUNDRED AND FORTY-THREE DOLLARS ($57,443.00), Defendant. No. 97-1602-Civ-LENARD. United States District Court, S.D. Florida. January 24, 1999. 1294 1295 AUSA Gerardo M. Sims, United States Attorney's Office for the Southern District of Florida, Miami, Florida, for plaintiff. Peter S. Herrick, Miami, Florida, for defendant. ORDER TURNOFF, United States Magistrate Judge. This matter comes before the Court on the United States's Motion for Summary Judgment (DE 15) and Claimant Luz Neyla-Dunlap's Motion to Dismiss (DE 17). For the reasons stated below, this Court will deny the government's Motion for Summary Judgment (DE 15), deny in part and grant in part the Claimant's Motion to Dismiss (DE 17), and enter a finding of probable cause in favor of the United States pursuant to Federal Rule of Civil Procedure 56(d). Procedural Background On May 20, 1997, the United States of America filed a Verified Complaint for civil forfeiture in rem against fifty-seven thousand four hundred and forty-three dollars in United States currency. (DE 1). The Verified Complaint alleges that the defendant currency is subject to forfeiture pursuant to three federal statutes: (1) 31 U.S.C. § 5317, which subjects to forfeiture any monetary instrument transported across the borders of the United States without filing a required report; (2) 18 U.S.C. § 981(a)(1)(A), which subjects to forfeiture any monetary instrument used in money laundering activity (as that activity is defined in 18 U.S.C. § 1956); and (3) 21 U.S.C. § 881(a)(6), which subjects to forfeiture any monetary instrument representing the proceeds of illegal narcotics activity (as that activity is defined in 21 U.S.C. § 801 et seq.). On July 2, 1997, Luz Neyla-Dunlap filed a Verified Claim, Answer, and Counterclaim. (DE 8, 9).[1] On April 2, 1998, pursuant to 28 U.S.C. § 636(c), all parties consented to proceed before a United States magistrate judge. (DE 11). By Order dated April 8, 1998, this matter was referred to the undersigned for all further proceedings. (DE 12). On August 24, 1998, the United States moved for summary judgment, or, in the alternative, for partial summary judgment on the issue of probable cause. (DE 15). On September 14, 1998, Claimant Neyla-Dunlap filed a Motion to Dismiss pursuant to Rule E(2) of the Supplemental Rules for Certain Admiralty and Maritime Claims, as well as an Opposition to the government's Motion for Summary Judgment. (DE 17). On October 15, 1998, this Court held a hearing on the pending motions. Factual Background Prior to June 26, 1995 and as part of an ongoing narcotics and money laundering investigation, U.S. Customs agents learned that a known money launderer intended to deliver a large amount of U.S. currency to Adrianna Martinez. (DE 21 at 9-11).[2] On 1296 June 26, 1995, Customs agents observed that individual meet with Ms. Martinez in a car parked at Miami-Dade Community College ("Miami-Dade"). (DE 18 at 41). Customs agents then followed Ms. Martinez and placed her under investigation for possible money laundering activity. (DE 15 at 4). Customs agents also staked out her home. (DE 18 at 6-11; DE 21 at 10). On June 27, 1995, the agents followed Ms. Martinez to work at Pardo International Freight Forwarders ("Pardo"). (DE 18 at 10-11). After a period of surveillance, Customs agents entered Pardo, identified themselves to Ms. Martinez, and requested permission to search the premises. (DE 21 at 12-13). Pursuant to Ms. Martinez's written consent, agents searched the premises with the aid of a dog trained to detect the trace odor of illegal narcotics. (DE 1 at 2; DE 21 at 17-18). The agents discovered approximately nine thousand dollars in U.S. currency in a desk drawer in Ms. Martinez's office after the dog alerted to the money. (DE 1 at 3; DE 21 at 19-20). According to Martinez, earlier that morning she had brought the money from her home an apartment shared with her mother and two brothers. (DE 21 at 22). Ms. Martinez told agents that she had received the money as part of her freight forwarding business, but was unable to produce any receipts at the time. (DE 21 at 22). Ms. Martinez's mother Claimant Neyla-Dunlap then arrived on the scene while federal officers were still present. (DE 1 at 2; DE 21 at 20). After identifying herself, Ms. Neyla-Dunlap stated that she was not employed by Pardo, but instead worked for a party-planning company. (DE 1 at 3). In response to questions, Ms. Neyla-Dunlap claimed that she did not have any large amounts of money, either on her person or at her home. (DE 1 at 3; DE 21 at 27). Ms. Neyla-Dunlap then stated that she had to leave to go to work and left the premises. (DE 1 at 3; DE 21 at 27). As noted above, Customs agents had previously placed Ms. Neyla-Dunlap's apartment under surveillance, and, therefore, observed her enter that apartment shortly after leaving Pardo. (DE 18 at 6-7 & 12). Ms. Neyla-Dunlap emerged a few minutes later carrying a medium-sized box. (DE 18 at 14). She placed the box in her car and drove off. (DE 18 at 14-16). Customs agents then initiated a traffic stop, during which they asked for and received Ms. Neyla-Dunlap's consent to search her car. (DE 1 at 3-4; DE 18 at 28). Agents discovered approximately fifty-five thousand dollars in U.S. Currency in the box, as well as two thousand additional dollars in Ms. Neyla-Dunlap's purse. (DE 1 at 3-4). The currency was bundled and sealed in air-tight freezer bags, most of it in denominations of ten dollars or less. (DE 1 at 3-4; DE 18 at 40). The agents did not find any narcotics in the vehicle or any evidence of other illegal activity. (DE 18 at 42). Upon questioning, Ms. Neyla-Dunlap admitted that she had arranged for Ms. Martinez to pick up the money the previous day at Miami-Dade in response to a telephone call from an unidentified female. (DE 19 at 15). Ms. Martinez arranged to meet the woman at the Miami-Dade Registrar's Office. (DE 20 at 16). Ms. Martinez then accompanied the woman back to a car and received a bag which she did not open. (DE 20 at 16). Ms. Martinez placed the bag in her own car and drove home. (DE 20 at 16). Ms. Martinez did not ask for or receive a receipt or count the money either at the parking lot or 1297 when she returned to her apartment. (DE 19 at 17; DE 20 at 16). Ms. Neyla-Dunlap now alleges that the currency is hers and originated in Colombia, South America, from the sale of real property. (DE 8). A search of records maintained by the Department of the Treasury, however, did not produce any reports of international transactions in currency or monetary instruments filed by or on behalf of Luz Neyla-Dunlap at any time during the last ten years. (DE 15 at 5). In response, Ms. Neyla-Dunlap has produced documentation allegedly related to a sale of real property in Colombia. (DE 15 at 8). She also proffers both her own and her daughter's deposition testimony that the money was the result of a "currency-swap" arrangement. (DE 19; DE 20). In particular, Ms. Neyla-Dunlap alleges that she placed the money from the sale of her Colombian property into a friend's bank account in Colombia, until such time as it was withdrawn and provided to a Colombian "money-broker" Jaime Salsado. (DE 19 at 9-14). Mr. Salsado then arranged for Ms. Neyla-Dunlap to receive an equivalent amount of U.S. currency in the United States by having Ms. Martinez go to the parking lot of Miami-Dade and pick up the money. (DE 20 at 16). Neither Ms. Martinez nor Ms. Neyla-Dunlap received any paperwork to document this "currency swap." (DE 19 at 17; DE 20 at 16). I. PRELIMINARY CONSIDERATIONS Claimant Neyla-Dunlap raises two preliminary objections to the government's Motion for Summary Judgment. According to Ms. Neyla-Dunlap, the government: (1) unreasonably stopped and searched her vehicle in violation of the Fourth Amendment; and (2) unreasonably delayed in bringing the present action. (DE 17 at 7-8; DE 9 at 3). This Court, however, finds both arguments unpersuasive. A. Fourth Amendment The Fourth Amendment attaches in all forfeiture proceedings. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). Indeed, if a given search or seizure violates the Fourth Amendment, a court must generally suppress the resulting evidence pursuant to the Exclusionary Rule. Id. Law enforcement agents may stop and search a vehicle without a warrant if they have probable cause to believe that the vehicle contains contraband or other evidence of illegal activity. Carroll v. United States, 267 U.S. 132, 153-56, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Young, 38 F.3d 338, 340 (7th Cir.1994).[3] Indeed, if officers have probable cause, a vehicle search may be "as thorough as a magistrate could authorize in a warrant `particularly describing the place to be searched.'" United States v. Ross, 456 U.S. 798, 800, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (citation omitted). Law enforcement officers have probable cause to search a vehicle if, under the totality of the circumstances, "including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Considering the totality of the circumstances, this Court agrees with the government that its stop and search of Claimant's vehicle did not violate the Fourth Amendment. Customs agents had been conducting surveillance on Claimant's home since at least June 26, 1995. On that date, Ms. Martinez picked up a bag which Customs agents understood contained a 1298 large sum of money representing the proceeds of illegal narcotics activities. Indeed, the agents had been informed that the person delivering the currency to Ms. Martinez was a known money-launderer. Agents then followed Ms. Martinez and watched her take the money to the apartment she shares with Claimant Neyla-Dunlap. Armed with this knowledge, Customs agents followed Ms. Martinez to work the next day and initiated a consent search of the premises, discovering approximately $9,000 in narcotics-tainted money that Martinez claims came from Claimant's apartment. Ms. Neyla-Dunlap then appeared, claiming that she had no money at her home a claim Customs agents knew to be false from their surveillance of the day before. The fact that Claimant then rushed home, retrieved a box, and drove off with it after stating to the agents that she was on her way to work and had nothing to hide supports the agents' decision to stop Claimant's automobile. As a result, this Court finds that the agents' stop and search of Claimant's vehicle was supported by probable cause and, therefore, did not violate the Fourth Amendment.[4] B. Timeliness of the Present Action For her second general objection to summary judgment, Claimant Neyla-Dunlap argues that the present action is untimely. The defendant currency was seized on June 27, 1995 and the present action filed on May 20, 1997 a delay of approximately 23 months. Although this represents a substantial delay, the Court finds Ms. Neyla-Dunlap's arguments on the issue unpersuasive.[5] 21 U.S.C. § 881(b) requires the attorney general to commence forfeiture proceedings promptly after seizure. Similarly, 19 U.S.C. § 1604 requires every United States Attorney to inquire immediately into the facts of cases reported to him by Customs officials, and, when a forfeiture action is to be filed, to do so without delay. Indeed, in United States v. Eight Thousand Eight Hundred and Fifty Dollars (8,850) in U.S. Currency, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983), the Supreme Court held that all federal forfeitures are subject to the Fifth Amendment's due process requirement allowing potential claimants the opportunity for a post-seizure hearing on forfeitability "at a meaningful time." 461 U.S. at 564, 103 S.Ct. 2005. The Supreme Court went on to establish a balancing test used to determine whether a given delay in instituting forfeiture proceedings is reasonable. Eight Thousand Eight Hundred and Fifty Dollars (8,850) in U.S. Currency, 461 U.S. at 556, 103 S.Ct. 2005. Among the factors the Court cited are: (1) the length of and reason for the delay; (2) whether the claimant promptly and diligently asserted a right to the seized property; and (3) whether the delay has resulted in any prejudice to the claimant. Id. at 565-69, 103 S.Ct. 2005. Here, the facts simply do not support Claimant Neyla-Dunlap's arguments of unreasonable delay. First, by Claimant's own admission, the delay in bringing this action arose primarily 1299 because of a parallel administrative proceeding in which she participated. (DE 17 at 6). As noted above, the seizure occurred on June 27, 1995. Ms. Neyla-Dunlap filed a petition for administrative review with U.S. Customs on August 10, 1995.[6]Id. Customs reviewed that petition and denied it on February 2, 1995. (DE 17 at 6). Significantly, Ms. Neyla-Dunlap filed a second petition with Customs on March 5, 1996. Id. While that second petition was still pending, Ms. Neyla-Dunlap nonetheless filed two requests for the case to be referred to the U.S. Attorney on May 24, 1996 and again on August 2, 1996. (DE 17 at 6). Ms. Neyla-Dunlap also lodged a parallel administrative request for waiver of the $5,000 cost bond required by 19 C.F.R. § 162.47(b) (1997). Id. The Court notes that Ms. Neyla-Dunlap may herself be largely responsible for the government's delay in bringing these proceedings. 19 C.F.R. § 162.47(d) requires Customs to refer any seizure to the U.S. Attorney for forfeiture proceedings "[w]hen the claim and bond, if required, are filed within the 20-day period" after notice. Here, it seems that Ms. Neyla-Dunlap failed to file either a request or a bond within the required 20-day period. Indeed, Ms. Neyla-Dunlap failed even to request a bond waiver pursuant to 19 C.F.R. § 162.47(e) until May 24, 1996 almost a year after receiving notice of her petition rights. (DE 17 at 6). Such administrative delays remain insufficient to render a forfeiture action untimely. See e.g., Nnadi v. Richter, 976 F.2d 682, 688 (11th Cir.1992) (holding that the government is not responsible for delay in forfeiture proceedings when the claimant fails to make timely filings). The second and third factors also militate against Ms. Neyla-Dunlap's arguments of unreasonable delay. While Claimant eventually asked Customs to refer this matter to the U.S. Attorney, she did so after significant delay and then without fully complying with the relevant regulations. Further, and perhaps most significantly, Ms. Neyla-Dunlap fails to point to any prejudice she has suffered as a result of the government's delay in bringing this action. United States v. Bissell, 866 F.2d 1343, 1352-53 (11th Cir.), cert. denied sub nom. Caraballo-Sandoval v. United States, 493 U.S. 876, 110 S.Ct. 213, 107 L.Ed.2d 166 (1989) (holding that courts should consider whether any delay in bringing a forfeiture action "hampered the claimant's defense on the merits"). As a result, this Court finds the government's delay in bringing this action reasonable and insufficient to warrant dismissal. II. MOTION FOR SUMMARY JUDGMENT This Court next addresses the government's Motion for Summary Judgment. As noted above, the United States moves for summary judgment on each of the three counts of its Verified Complaint. In the alternative, the government asks this Court to enter partial summary judgment on the issue of probable cause.[7] 1300 Legal Standard In general, summary judgment is appropriate only where there is no genuine issue of material fact and where the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This Court must view the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. If the movant meets its burden, the burden then shifts to the non-moving party to establish that a genuine dispute of material fact exists. Hairston v. Gainesville Sun Pub., Co., 9 F.3d 913, 918 (11th Cir.1993). If the evidence relied on is such that a reasonable jury could return a verdict in favor of the non-moving party, then the court should refuse to grant summary judgment. Hairston, 9 F.3d at 919. A. Count I Failure to Declare Imported Currency For summary judgment, a plaintiff must show there is no genuine issue of material fact concerning each of the elements of the cause of action at issue. See Lowe v. Aldridge, 958 F.2d 1565, 1569 (11th Cir.1992); see also Thomas v. Heatherton Staff Leasing, 1995 WL 646247, 1995 U.S. Dist. LEXIS 16220, at 14, n. 3 (N.D.Ill. Nov. 2, 1995) (holding that a court may not grant a "plaintiff summary judgment if a genuine issue of material fact exists as to an essential element of his claim"). The United States argues that there is no genuine issue of fact about whether the defendant currency was brought into the country in violation of 31 U.S.C. § 5317 (1997). This Court, however, disagrees. Section 5317 of Title 31 of the U.S.Code provides that: If a report required under section 5316 with respect to any monetary instrument is not filed (or if filed, contains a material omission or misstatement of fact), the instrument and any interest in property ... traceable to such instrument may be seized and forfeited to the United States. Section 5316(a)(1)(B), in turn, provides that a person must file a currency declaration form when knowingly transporting monetary instruments in excess of $10,000 "to a place in the United States from or through a place outside the United States." As a preliminary matter, therefore, the government must prove that the defendant currency was: (1) knowingly; (2) transported into the United States; (3) in the form of a monetary instrument; and (4) in excess of $10,000. Setting aside the other elements of its cause of action, the government has adduced absolutely no evidence that the money was transported into the United States in the form of a monetary instrument. Claimant Neyla-Dunlap alleges that she received the defendant currency as the result of a "currency swapping" arrangement. (DE 17 at 5). In other words, she delivered Colombian pesos (allegedly representing proceeds from the sale of real property) to an individual in Colombia (DE 17 at 2-3). That individual then arranged to pay Ms. Neyla-Dunlap an equivalent amount in U.S. dollars from currency he had located in the United States. (DE 17 at 3). Such currency swapping arrangements are certainly not unknown. See, e.g., Banca Commerciale Italiana v. Northern Trust Int'l Banking Corp., 160 F.3d 90, 91-92 (2d Cir.1998) (describing how, in an 1301 international currency swap, parties exchange the payment of funds in one country for the delivery of funds in another); United States v. BCCI Holdings (Lux.), S.A., 833 F.Supp. 22, 24 (D.D.C.1993) (same). Further, in an international currency swap, no monetary instruments actually enter or leave the United States. Id. Absent any evidence suggesting that the defendant currency in this case actually entered the United States from Colombia, this Court must deny the government's Motion for Summary Judgment as to Count I. For the same reasons, the government's request for a finding of probable cause is equally unavailing. The Eleventh Circuit has defined probable cause in forfeiture cases as "a reasonable ground for a belief of guilt supported by less than prima facie proof but more than mere suspicion." United States v. A Single Family Residence, 803 F.2d 625, 628 (11th Cir.1986); United States v. One 1978 Chevrolet Impala, 614 F.2d 983, 984 (5th Cir.1980).[8] Based on the government's complete inability to suggest how, where, when, or through whom the defendant currency may have entered the country, this Court finds the government's allegations concerning Count I to rise only to the level of mere suspicion. This Court, therefore, declines to make a finding of probable cause pursuant to Rule 56(d) as to Count I. B. Count II Use of Currency in Money Laundering Activities The government next argues that there is no genuine issue of fact about whether the defendant currency was used in money laundering activities in violation of 18 U.S.C. § 981(a)(1)(A), as that offense is defined in 18 U.S.C. § 1956. (DE 1 at 6). Section 1956 defines money laundering in part to include any financial transaction involving illegal proceeds and knowingly used to promote or conceal "the manufacture, importation, sale, or distribution of a controlled substance." See 18 U.S.C. §§ 1956(a)(1)(A)(I), 1956(a)(1)(B)(I), 1956(c)(7)(B)(I). While there is record evidence to support the government's allegations, a genuine issue of material fact prevents this Court from entering summary judgment. The record reveals basically two theories of what happened. The government contends that Ms. Neyla-Dunlap's transaction[9] with the unknown female at Miami-Dade was designed to promote or conceal the proceeds of illegal narcotics activities. (DE 15 at 7-9). In support, the government points to: (1) the surreptitious nature of the meeting; (2) the small denominations involved; (3) the airtight packaging of the money; (4) the fact that a dog alerted to the trace presence of illegal narcotics on money from Ms. Neyla-Dunlap's apartment; (5) the fact that Ms. Neyla-Dunlap originally lied to police when she claimed not to have any large amounts of cash at her home; and (6) the fact that Ms. Neyla-Dunlap immediately went home to move the money after being questioned by federal agents. (DE 15 at 7). Ms. Neyla-Dunlap counters that the defendant currency represents proceeds from the sale of certain real property she owned in Colombia. (DE 17 at 2). In support, Ms. Neyla-Dunlap points to a document from Colombia memorializing the sale as well as to her deposition testimony in which she identified the "money broker" through whom she arranged the alleged currency swap. (DE 15 at 8; DE 19 at 14). Based on the record evidence presented to date, this Court cannot conclusively determine 1302 as a matter of law that the government is entitled to summary judgment. To be sure, a party opposing summary judgment "must do more than 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); Irby v. Bittick, 44 F.3d 949, 953 (11th Cir.1995). Ms. Neyla-Dunlap, however, has at least created a triable issue by producing documentary and testimonial evidence in support of her defense. This Court, therefore, must deny the government's Motion for Summary Judgment as to Count II. Denial of the government's Motion as to Count II, however, does not end the inquiry. In a forfeiture action under Section 981, the government initially bears the burden of proof a burden which then shifts to the claimant if the government demonstrates probable cause. 18 U.S.C. § 981(d) (1997); 19 U.S.C. § 1615 (1997); see also United States v. Certain Accounts, 795 F.Supp. 391, 395 (S.D.Fla. 1992). Further, in demonstrating probable cause, the government may rely on "otherwise inadmissible hearsay evidence." United States v. 1012 Germantown Rd., 963 F.2d 1496, 1501 (11th Cir.1992). Here, the totality of the circumstances[10] establishes an inference of probable cause. See, e.g., United States v. 141,770.00 in United States Currency, 157 F.3d 600, 602-04 (8th Cir.1998) (holding that cash stored in zip-lock storage bags may show probable cause that the money was derived from illegal drug transactions); United States v. Dickerson, 873 F.2d 1181, 1184 (9th Cir.1988) (holding that a positive canine alert may show probable cause that the money was derived from illegal drug transactions); United States v. U.S. Currency, $83,310.78, 851 F.2d 1231, 1236 (9th Cir.1988) (holding that possession of a large amount of cash "is strong evidence that the money was furnished or intended to be furnished in return for drugs" and may be used to show probable cause in support of forfeiture); United States v. $250,000 in United States Currency, 808 F.2d 895, 898 (1st Cir.1987) (holding that $40,000 in cash maintained in small denominations may show probable cause that the money was derived from illegal drug transactions); United States v. Thirteen Thousand Seven Hundred & Fifteen Dollars in U.S. Currency, 736 F.Supp. 135, 137 (E.D.Mich.1990) (holding that the fact that a claimant lied to federal officers during the seizure of cash may show probable cause that the money was derived from illegal drug transactions); United States v. One 1984 Nissan 300ZX, 1990 WL 112130, 1990 U.S. Dist. LEXIS 10198, at 10 (E.D.Pa. Aug. 6, 1990) (holding that a claimant's hurried attempt to conceal a large amount of cash in response to the presence of federal agents may show probable cause that the money was derived from illegal drug transactions). Pursuant to Rule 56(d), therefore, this Court finds probable cause in support of Count II of Plaintiff's Complaint. C. Count III Currency as Proceeds of Illegal Narcotics Activities For its third argument in favor of forfeiture, the government contends that there is no genuine issue of fact about whether the defendant currency represents the proceeds of illegal narcotics activities in violation of 21 U.S.C. § 881(a)(6). In support, the government offers essentially the same arguments it advances in support of Count II. For the same reasons, however, this Court must deny the government's Motion. While the government's allegations support an inference of probable cause, Ms. Neyla-Dunlap offers at a least a plausible alternative explanation concerning how she obtained the defendant currency. This Court, therefore, denies 1303 the Plaintiff's Motion for Summary Judgment and, pursuant to Rule 56(d), finds probable cause in support of Count III of the government's Complaint. III. CLAIMANT'S MOTION TO DISMISS Claimant Neyla-Dunlap's Motion to Dismiss argues that the United States has failed to file a verified complaint with the particularity required by Rule E(2) of the Supplemental Rules for Certain Admiralty and Maritime Claims. (DE 17 at 8). For the purposes of a motion to dismiss, the material allegations of a complaint must be accepted as true. Franklin v. Meredith, 386 F.2d 958, 959 (10th Cir. 1967). Indeed, a complaint should not be dismissed with prejudice 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." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In considering whether to dismiss a forfeiture complaint, courts construe the pleadings liberally, and if there is any possibility of relief on the allegations of the complaint the case should not be dismissed. See, e.g., United States v. $31,000 in United States Currency, 740 F.Supp. 803, 804 (D.N.M.1990). Supplemental Rule E(2)(a) departs from the notice pleading normally required by the Federal Rules,[11] instead requiring that the government allege all "circumstances from which the claim arises with ... particularity." See, e.g., United States v. Real Property Located at 2323 Charms Road, 946 F.2d 437, 441 (6th Cir. 1991). This "requirement is not merely a procedural technicality, but a way of ensuring that the government does not seize and hold, for a substantial period of time, property to which, in reality, it has no legitimate claim." United States v. Pole No. 3172, 852 F.2d 636, 638 (1st Cir.1988). As distinct from notice pleading, Rule E(2)'s particularity requirement is "designed to assure that the forfeiture complaint apprises potential claimants of the circumstances which support the government's contention that there is probable cause to believe that the defendant property was connected with illegal [activity], thus enabling claimants to commence an investigation of the facts and to frame a responsive pleading." United States v. One Parcel of Real Property, 921 F.2d 370, 375 (1st Cir.1990) (citations and internal quotations omitted). Rule E(2)(a), therefore, does not require the government, at the pleading stage, to meet its ultimate trial burden of showing probable cause; rather, the government's complaint must establish only a reasonable belief that the government can show probable cause for forfeiture at trial. One Parcel of Real Property, 921 F.2d at 376. Here, Counts II and III of the government's complaint easily satisfy the particularity required by Rule E(2). The government describes the surveillance at Pardo International, the agents' interviews with Ms. Martinez and Ms. Neyla-Dunlap, as well as the surveillance at the Claimant's house leading up to the stop and search of her vehicle. (DE 1 at 2-5). In addition, the Complaint offers a precise breakdown of the amount and denominations of the defendant currency, as well as a description of Ms. Martinez's meeting at Miami-Dade the day before the seizure. (DE 1 at 4-5). Given that this Court has already found that such facts support an inference of probable cause, it follows that Counts II and III of the government's Complaint contain the particularity necessary to "allow a claimant to commence an investigation of the facts and to frame a responsive pleading." Supplemental Rule E(2). Accordingly, Claimant Neyla-Dunlap's Motion to Dismiss is denied with respect to Counts II and III. *1304 Count I of the government's Complaint, however, requires a different result. Count I alleges a failure to declare imported currency. (DE 1 at 5-6). While relying on essentially the same allegations as Counts II and III, the government fails to allege, let alone describe, any circumstances suggesting that the defendant currency was ever transported into the United States. Claimant's Motion to Dismiss Count I, therefore, is well-taken. $31,000 in United States Currency, 740 F.Supp. at 805 (granting a motion to dismiss pursuant to Rule E(2) because of the government's failure to specify circumstances central to its allegations, including the "date or location of" the illegal act, the "dollar amount" involved, and the alleged "participant[s]"). Accordingly, Claimant Neyla-Dunlap's Motion to Dismiss Count I is granted without prejudice. Conclusion Accordingly, it is hereby ORDERED and ADJUDGED that Plaintiff's Motion for Summary Judgment (DE 15) is DENIED, Claimant's Motion to Dismiss (DE 17) is GRANTED IN PART AND DENIED IN PART, Count I of Plaintiff's Complaint (DE 1) is DISMISSED WITHOUT PREJUDICE, Claimant's Counterclaim (DE 9) is DISMISSED WITHOUT PREJUDICE, and this Court finds probable cause to support Counts II and III of Plaintiff's Complaint (DE 1). ORDERED AND ADJUDGED. NOTES [1] Ms. Neyla-Dunlap has recently consented to the dismissal of her counterclaim. (DE 25 at 1). This Court, therefore, now dismisses that counterclaim pursuant to Federal Rule of Civil Procedure 41(b). [2] Prior to June 26, 1995, law enforcement officers had seized a vehicle registered to Luis Salgado, together with approximately $247,000 in U.S. currency. (DE 21 at 5-7). The money was later forfeited as property involved in illegal narcotics and money laundering activities. (DE 1 at 2; DE 21 at 6). On September 6, 1995, Salgado was arrested this time in possession of approximately twenty (20) kilograms of cocaine. (DE 1 at 2; DE 21 at 6-7). Although Salgado has since become a fugitive from justice, a confidential informant in the Salgado case identified the individual who later delivered the defendant currency to Ms. Martinez. (DE 1 at 2; DE 21 at 8-9). [3] Warrantless vehicle searches may be reasonable without a separate showing of exigent circumstances because of a vehicle's movable nature. Ross, 456 U.S. at 805-06, 102 S.Ct. 2157. An individual's expectation of privacy does not survive where the law enforcement officers have probable cause to believe a vehicle contains contraband. United States v. Johns, 469 U.S. 478, 483, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985). [4] Although Customs agents also obtained Ms. Neyla-Dunlap's consent to search her vehicle, that consent was unnecessary in fight of the probable cause they possessed. United States v. Navarro, 90 F.3d 1245, 1253 (7th Cir.1996) (holding that because "officers had probable cause to stop the vehicle and search for the contraband, it was not necessary for them to have the consent of the owner of the vehicle"). Further, such consent would have been insufficient to justify the agents' stop of the vehicle retroactively. Ms. Neyla-Dunlap, for her part, argues that her consent to the search was involuntary because there were so many armed agents, she was alone, and the agents lied to obtain her consent by claiming the vehicle had been stolen. Although the Fourth and Fourteenth Amendments require that any consent to search be voluntarily, this Court need not reach the issue given that the agents' stop and search of Ms. Neyla-Dunlap's car was supported by probable cause. [5] While not dispositive of the issue, 19 U.S.C. § 1621 (1997) establishes a five year statute of limitations for forfeiture actions in rem. [6] The Court notes that the timeliness of Ms. Neyla-Dunlap's administrative petition may itself be at issue. 19 C.F.R. § 162.47(a) (1997) requires a potential claimant to initiate administrative proceedings no later than 20 days after notice of the seized property is served pursuant to 19 C.F.R. § 162.45 (1997). Here, Ms. Neyla-Dunlap admits that she received notice of her petition rights on July 15, 1995, but did not file a petition until August 10, 1995. (DE 17 at 6). [7] The Court notes that it may not enter summary judgment on a portion of a claim such as the issue of probable cause (which is an element of each of the government's three causes of action). See, e.g., Warner v. United States, 698 F.Supp. 877, 878-79 (S.D.Fla. 1988) (noting that "a party may not make an independent Rule 56(d) motion" for a finding of fact on an issue that does not dispose of an entire cause of action); see also Charles Allen Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, § 2737 (3d ed.1998); see also Capitol Records, Inc. v. Progress Record Distributing, Inc., 106 F.R.D. 25, 28 (N.D.Ill.1985) (holding that a party may not move for partial summary judgment "on less than a single claim"). For example, even if this Court were to agree with the government and enter a finding of probable cause, that finding would not result in an appealable "judgment" within the meaning of Rule 56. Nevertheless, in considering motions for summary judgment, Fed.R.Civ.P. 56(d) authorizes courts to make findings of fact. This Court, therefore, will consider the government's request for a finding of probable cause in the context of Rule 56(d). [8] The Eleventh Circuit has adopted as binding precedent all decisions of the former Fifth Circuit decided prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981). [9] The parties agree that although it was Ms. Martinez who actually picked up the currency, it is Ms. Neyla-Dunlap who is the real party in interest. The parties further agree that Ms. Neyla-Dunlap conducted a financial transaction with the defendant currency. [10] As the Eleventh Circuit has held, "It is well established, both in the law of forfeiture and in other areas of the law, that the probable cause inquiry is a flexible one in which the court must consider the totality of the circumstances." United States v. $121,100.00 in U.S. Currency, 999 F.2d 1503, 1506 (11th Cir. 1993) (citations omitted). [11] The Federal Rules of Civil Procedure generally do apply to civil forfeiture actions, but the Supplemental Rules take precedence where the two are inconsistent. See Fed. R.Civ.P. A; United States v. $39,000 in Canadian Currency, 801 F.2d 1210, 1216 (10th Cir.1986).	01-03-2023	10-30-2013

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